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Bender v. Cons. Mink Ranch

OPINION FILED NOVEMBER 1, 1982.

NANCY BENDER, PLAINTIFF-APPELLEE,

v.

CONSOLIDATED MINK RANCH, INC., DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Lake County; the Hon. Robert K. McQueen, Judge, presiding.

JUSTICE UNVERZAGT DELIVERED THE OPINION OF THE COURT:

Rehearing denied December 7, 1982.

This action was brought by an employee of the defendant mink ranch to recover damages, alleging that the employer, which was raising her minks, refused to surrender the minks to her upon demand. A jury fixed her damages at $17,600 and found against the defendant on its counterclaim, upon which the trial court entered the judgment from which this appeal is taken. We affirm.

Three issues are presented for review: (1) Whether the trial court properly denied the defendant-employer's motion for a directed verdict; (2) Whether the jury was properly instructed as to damages, and (3) Whether the trial court erred in failing to grant a continuance for trial.

Plaintiff, Nancy Johnson Bender, filed a two-count complaint in the circuit court of Lake County against Consolidated Mink Ranch, Inc. (hereinafter CMR).

Count I, stating a cause of action for conversion, alleged that CMR, lawfully in possession of 417 minks and storage equipment (a housing shed) owned by the plaintiff, unreasonably refused to tender same to her upon demand made "on or about June 26, 1979." *fn1 Her complaint alleged on information and belief that CMR shipped 200 of the minks to auction where CMR would unlawfully realize the proceeds of said sale. She claimed the value of the minks, and her damages, to be $25,800. An additional $25,000 was claimed as exemplary damages, which claim was stricken at the close of the evidence at trial.

An amended count II, for breach of contract, alleged that plaintiff and CMR entered into an agreement whereby plaintiff purchased 50 female and 11 male minks from CMR. The agreement, dated December 22, 1974, and indicating a duration period of December 1, 1974, to December 1, 1975, was annually orally renewed between the parties for the years 1975 through 1978. Count II alleged that the plaintiff performed all of her obligations under the agreement and that despite a provision of the agreement that it was terminable at will by either party, CMR refused to allow her to terminate same and remove her minks and storage equipment from the premises upon her demand. Plaintiff claimed actual damages of $25,000 due to CMR's breach of the contract.

In its answer, CMR admitted it had lawful possession of the minks, cared for the minks after plaintiff ceased her employment at the ranch in June 1979, and that it sold the mink pelts to cover the cost of said care, pelting and sale. As a defense, CMR alleged plaintiff left her employment with CMR abruptly and without notice and that the minks would have died within two to three days if CMR had not continued to provide the care necessary to keep the minks alive. CMR alleged plaintiff failed to respond to its July 23, 1979, letter and that it, therefore, considered she had abandoned her minks. Accordingly, CMR requested plaintiff's count I for conversion be dismissed.

CMR also counterclaimed for an agister's lien pursuant to section 50 of "An Act to revise the law in relation to liens" (Ill. Rev. Stat. 1981, ch. 82, par. 59), in the amount of $16,000 which was based on an approximate cost of $40 per pelt produced for sale to cover the cost of feed and care rendered to the minks.

CMR's answer to amended count II admitted the agreement and the fact of annual oral renewal of the agreement, but denied plaintiff performed all of her obligations under the contract, or that the contract was terminable at will. CMR further denied plaintiff informed it that she wished to terminate the agreement or asserted her right to remove the minks and storage equipment from the ranch. CMR's first defense to the amended count II was stricken and it counterclaimed for set-off in the amount of $16,000 to cover the cost of care and feeding of the minks.

The plaintiff had begun working part-time on the ranch while she was in high school in 1973, and later she became the ranch's only full-time employee in December 1974 when she purchased the minks from CMR. She was paid hourly for her work and, although her minks were kept and tagged separately from those which belonged to CMR, they were cared for by everyone on the ranch staff, including plaintiff, in the usual course of the ranching operation. The minks were usually bred in March, born in April or May, and raised until November or December when the majority were slaughtered for their pelts. The highest quality minks were retained as breeders. Her herd increased in size to 400 in 1979, including 80 adult females and 16 adult males. Her 1978 crop of minks were sold at auction in 1979 by the Hudson Bay Company in New York, for which she received $9,000.

Due to illness, plaintiff left the ranch during the afternoon of June 25, 1979, and the next day telephoned Willard J. Nieland, the president of CMR, that she would return when she felt better. As of June 25, 1979, plaintiff was current under the payment terms of the agreement which she and Willard J. Nieland had orally renewed in December 1978.

Plaintiff returned to the ranch on July 27, 1979, with her husband, William Bender. She testified she told Nieland she would not be coming back to work since she was too sick and could not do the work. Nieland said if she was not coming back to work, that he would give her $1,000 for her minks at the end of the year. She said she would take her minks and shed, but he refused to allow her to do that; she then said she would continue to make payments, but he said no to that as well, and told her she had to come back to work. Her testimony was corroborated by her husband's testimony.

At the time plaintiff talked with Nieland, she had not yet received his letter dated July 23, 1979, giving her until August 3 "to call, or come, and discuss this with me [Nieland] as [sic] regards [sic] to the continuation or termination of this agreement in a calm and business-like manner," otherwise "it will be considered that you [plaintiff] have completely abandoned your agreement and your animals." Nieland did not mention the letter to plaintiff on July 27, assuming that she had received it. He later received the return receipt for the registered letter which indicated she had received the letter on ...


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