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Peoria Harbor Marina v. Mcglasson

OPINION FILED MARCH 25, 1982.

PEORIA HARBOR MARINA, PLAINTIFF-APPELLEE,

v.

WILMA PAULINE MCGLASSON, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Peoria County; the Hon. ROBERT E. HUNT, Judge, presiding.

PRESIDING JUSTICE SCOTT DELIVERED THE OPINION OF THE COURT:

On July 10, 1979, the plaintiff, Peoria Harbor Marina, filed a complaint against the defendant, Wilma Pauline McGlasson, in the circuit court of Peoria County. The plaintiff sought judgment on a promissory note signed by the defendant for the principal amount of $20,695, with interest thereon at 8% per annum since September 4, 1978. Following a bench trial, the plaintiff was awarded $7,607.64 plus costs of suit on May 29, 1981. The defendant appeals.

The trial consisted of testimony by the four persons present when the agreement for the sale and purchase of a boat was executed. These witnesses were the defendant, the defendant's son, Larry Teel, the plaintiff's vice-president, Lou Paulsen, and the plaintiff's salesman, Walter Herncjar. Based on their testimony, a summary of the facts can be made.

Larry Teel wanted to buy a 28-foot Chris Craft Cruiser from the plaintiff, but due to divorce proceedings, his credit standing was poor. His mother agreed to purchase the boat in her name, on her credit, and Teel would pay her. With this objective in mind, the defendant and Teel met with Paulsen and Herncjar at the marina on September 4, 1978.

During this meeting the parties agreed to a price of $19,900 for the boat, plus a sales tax of $995. Included in the sale price was a 50/50 warranty for 30 days, which meant that the seller and buyer would share equally the cost of repair on problems discovered within 30 days after the sale. The slip rental (dock space) and winter storage until April 1, 1979, would be provided by the plaintiff free of charge. A $200 deposit was made, leaving a balance due of $20,695.

These oral terms were written on a blank form which appeared to be a bill of sale, and upon which the plaintiff's letterhead appeared at the top. Lou Paulsen signed his name and the date. The paper contained a description of the item sold, the warranty, storage and slip rental, sales tax, deposit and balance due. The defendant signed the paper. However, the defendant testified that at the time she signed the paper, she did not think it was a bill of sale.

According to the defendant and her son, there was one other term agreed upon which was not written on the sales slip. They testified that the agreement to purchase the boat was contingent upon the defendant securing a loan. If she could not obtain financing, there was to be no contract. However, when questioned as to the specifics of this alleged condition, such as what would be an acceptable interest rate, the defendant stated there were none. She claimed that she had 30 days to get a loan, or there was no agreement. In other words, according to the defendant, she had carte blanche as to what financing she would or would not accept.

The plaintiff's vice-president and salesman contradicted this testimony by stating there was no condition to the contract. They claimed that the defendant did not have a sufficient down payment to secure a retail installment contract through the plaintiff's bank, but that she would secure her own financing. They stated further that the defendant said she would get a loan by giving a second mortgage on her house.

There was contradictory testimony as to whether the defendant signed the promissory note; however, this question was not presented as an issue in this appeal and will not be considered.

The note was payable 30 days after September 4, 1978. The principal amount due was $20,695, with interest at 8% per annum.

After the papers were signed by the defendant and retained by the plaintiff, the only set of keys to the boat was given to the defendant's son. The defendant and Teel went out on the boat that day. From September 4, 1978, until the boat was stored for the winter, sometime in mid-November 1978, Larry Teel used the boat exclusively on a weekly basis. He stated he used it one to two times a week, while Herncjar and Paulsen claimed he used it three to four times a week. Teel brought friends on the boat and had personal belongings on board. The defendant went on the boat a couple of times after September 4, 1978.

The defendant tried to get financing at three banks, but she was refused because her income was not sufficient to make the monthly payments. Paulsen tried to get financing for Teel, but when that failed, he arranged for a loan application for the defendant with the First National Bank of Chillicothe, where the plaintiff had done business. The bank also rejected the loan on December 12, 1978. In a stipulation filed by the defendant, a bank vice-president stated with some uncertainty that she had not told the defendant of the rejection when the defendant called and informed the bank she did not want to pursue a loan. The defendant and Teel informed the plaintiff, through Paulsen, that no financing was available. They considered the matter closed.

In February 1979 Larry Teel removed some of his belongings from the boat. The boat was taken out of storage in the spring, and Paulsen tried to contact the defendant and Teel but could not reach them. Paulsen then sold the business. On May 6, 1979, Larry Teel went to the marina and delivered a check for $306 and received a receipt in return. Apparently the slip rental and winter storage until April 1, 1979, would have cost $506 had the plaintiff not provided it free of charge in the contract for sale. The defendant was no longer operating under the terms of the contract, however, and attempted to pay the rental and storage fee as though she and her son had only rented, and not purchased, the boat. The $306 would be the balance due if the $200 deposit made by the defendant on September 4, 1978, were deducted. The check was never presented for payment because the plaintiff was still operating under the terms of the contract.

The boat was placed on the market for resale in June or July 1979 by the plaintiff. On October 1, 1979, the defendant was sent notice that the boat would be sold on October 8, 1979. The defendant did nothing. The boat was then sold on September 8, 1980, according to the date on a bill of sale. The evidence on when the boat was actually resold is contradictory. The transcript from the trial and the briefs of the parties refer to the date of resale as October 8, 1979. However, the bill of sale given to the resale buyer bears the date September 8, 1980. The trial judge used the date of September 8, 1980, as ...


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