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Bull v. Mitchell

OPINION FILED APRIL 29, 1983.

EDWIN T. BULL, PLAINTIFF-APPELLANT AND COUNTERDEFENDANT,

v.

GEORGE MITCHELL ET AL., D/B/A MORRIS HARBOR SERVICE, DEFENDANTS-APPELLEES AND COUNTERPLAINTIFFS. — (IOWA MARINE REPAIR CORPORATION, PLAINTIFF-APPELLEE,

v.

EDWIN T. BULL ET AL., DEFENDANTS-APPELLANTS.)



Appeal from the Circuit Court of Will County; the Hon. Thomas W. Vinson, Judge, presiding.

JUSTICE BARRY DELIVERED THE OPINION OF THE COURT:

Plaintiff, Edwin T. Bull, Sr., appeals from judgment entered by the circuit court of Will County dismissing two counts of his complaint against defendant, Iowa Marine Repair Corporation, and entering judgment against him in Iowa Marine's complaint to foreclose lien. The subject of these consolidated actions is an 80-foot fishing trawler named Bull Head, which was built by Bull in 1961. In July of 1974, Bull leased the Bull Head to George Mitchell and Ralph Hix. At that time, the Bull Head was in excellent condition, having recently been completely overhauled. The parties' lease was an "evergreen" arrangement for an indefinite period, terminable at the election of either party.

On June 20, 1976, the lease was terminated. The Bull Head, which had been used by Hix Wrecking Company on a job in Pekin, Illinois, dismantling a bridge over the Illinois River, was towed upriver to Morris, Illinois, no longer operating on its own power. Jerry Stanton, an employee of Hix Wrecking, rode the vessel from Pekin to Morris where he was to turn it over to Les Doyle, an employee of Bull, pursuant to Bull's instructions. Doyle was staying by a scrapyard operated by Charles Schopf on the south side of the river, just across from Iowa Marine's offices on the north side. About 1,000 feet downriver from the scrapyard, the Bull Head was met by a harbor tug called the Maryellen. The Maryellen was owned by Iowa Marine. Bill Brown, an employee of Iowa Marine, piloted the Maryellen and switched the Bull Head, removing it from tow and moving it upriver towards the south bank where it was tied off per Stanton's orders.

The next day, Stanton and Doyle moved the Bull Head a short distance back downstream and tied it to a barge owned by Bull named the Shaun Rue. The Bull Head remained on the south shore of the river until December of 1976, when Doyle found it grounded. Doyle hired Dennis Rapp, an independent diver and marine salvage man, to lift the vessel up to free it and move it to deeper water. Rapp did so after first clearing the deal for his services with Bull. Shortly thereafter, Iowa Marine moved the Bull Head from the south shore of the river to the north shore, where Iowa Marine maintained its regular fleeting operations.

The Bull Head has remained in the same general vicinity of the north bank of the river in Morris, in a greatly deteriorated condition, ever since. Iowa Marine sent billing statements for their services to Bull's place of business in Joliet, and, when Bull refused to pay the amount demanded for switching, fleeting and other services rendered on behalf of the Bull Head since June 20, 1976, Iowa Marine initiated proceedings to claim a lien on the vessel and to foreclose thereon. Iowa Marine's claim for lien on watercraft was filed in Grundy County on May 6, 1977. Its complaint to foreclose lien was also filed in Grundy County and is dated August 25, 1977.

Meanwhile, on February 22, 1977, plaintiff Bull had instituted a multicount complaint against Iowa Marine, George Mitchell and Ralph Hix claiming, inter alia, damages for conversion of the Bull Head and, in the alternative, for wrongful detention of the Bull Head. Bull's complaint was filed in Will County. On May 27, 1977, Iowa Marine answered Bull's complaint and filed a counterclaim praying for personal judgment against Bull for the value of services performed on behalf of the Bull Head. By order of July 25, 1980, Iowa Marine's cause of action was transferred to Will County for consolidation with the suit initiated by Bull.

A bench trial was held March 18, 1982, through March 23, 1982. On April 13, 1982, the trial court entered an order which was subsequently modified by supplemental orders of April 22 and May 10. For the purposes of the matter presently before us, the court held: (1) that Iowa Marine had not wrongfully detained or converted the Bull Head; and (2) that Iowa Marine was entitled to a lien on the Bull Head in the amount of $31,612.50 for labor and services rendered on behalf of the vessel from June 20, 1976, to the time of trial. The court entered judgment for Iowa Marine and against Bull in the amount of $31,612.50 and "[i]n the event that Defendant * * * has not paid to Plaintiff [said] sum," judicial sale of the Bull Head was ordered together with deficiency judgment against Bull. It is from the entry of these judgments that the instant appeal arises.

With respect to Bull's suit against Mitchell and Hix, the court generally found the issues in favor of Bull (since Ralph Hix had never been served with process, no judgment was entered against him), and entered judgment against Mitchell. Mitchell appealed from the entry of judgment against him as well. However, at oral argument the parties to that appeal (Bull and Mitchell) gave notice to this court that they were stipulating to vacatur of the trial court's judgment insofar as it affected claims against each other and dismissal of the counts upon which that judgment was founded. We have dismissed Mitchell's appeal accordingly and will not consider the issues raised therein.

In the appeal before us, Bull contends that the findings of the trial court were contrary to the manifest weight of the evidence. With respect to the court's denial of the relief sought on Bull's conversion and wrongful detention counts, Bull asserts that the court's factual findings are unsupported by the record and that the court was "confused as to the law." We disagree.

• 1 Both conversion and wrongful detention actions are premised on wrongful deprivation of property from the person entitled to possession. (Kunde v. Biddle (1976), 41 Ill. App.3d 223, 353 N.E.2d 410; Mineika v. Union National Bank (1975), 30 Ill. App.3d 277, 332 N.E.2d 504.) Proof of a valid possessory lien on the property in question may operate to defeat either action, inasmuch as it renders the defendant's possession lawful.

The right to a lien for labor, material, or services arises upon the furnishing of such labor, material, or services and by force of a statute, an express contract, an implied contract or the usages of trade or commerce. (Deitchman v. Korach (1947), 330 Ill. App. 365, 71 N.E.2d 367.) The right to retain possession of the property to enforce a possessory lien continues until such time as the charges for such materials, labor and services are paid. Knapp, Stout & Co. v. McCaffrey (1899), 178 Ill. 107, 52 N.E. 898.

In the present case, it is unquestioned that Iowa Marine performed valuable switching services for the benefit of the Bull Head on June 20, 1976, at the request of Jerry Stanton who was at that time in lawful possession of Bull's property.

• 2 On appeal, Bull takes the position that Iowa Marine was required to establish its exclusive possession of the south bank property in order to prevail on its claim of lien for the period between June 20, 1976, and December 1976, when the Bull Head was moved to the north bank. Such, however, is not a correct assessment of the law of Illinois. Rather, as Iowa Marine correctly asserts, the fleeting company is properly considered in possession for purposes of creating and maintaining a lienhold interest for a period when a vessel is tied to real property leased or owned by the lienholder in the absence of evidence that the vessel's owner had a superior interest in the real estate. Compare L & LC Trucking Co. v. Jack Freeman Trucking Co. (1976), 36 Ill. App.3d 186, 343 N.E.2d 716 (owner of a truck established existence of an oral lease of space on a garageman's property, thus defeating garageman's right to lien for storage).

According to Oliver Brown, manager of Iowa Marine's operations in Morris during the period in question, he paid $400 per month rent to Bob Biley for the use of the property on the south bank of the river where the Bull Head was docked on June 20. To Brown's knowledge, Biley owned the leased property. As evidence of the rental agreement, Iowa Marine produced checks, one of which was admitted into evidence at trial. This check was made payable to Mr. Biley in the amount of $400 and was annotated "for April fleeting." According to Brown, the leasing agreement between Biley and Iowa Marine was oral, rather than written. In addition, Ed Sabinske, testifying on ...


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