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Harney-morgan Chev. Olds Co. v. Rabin

OPINION FILED SEPTEMBER 23, 1983.

HARNEY-MORGAN CHEVROLET OLDS COMPANY, PLAINTIFF-APPELLEE AND CROSS-APPELLANT,

v.

KENNETH RABIN ET AL., DEFENDANTS-APPELLANTS AND CROSS-APPELLEES.



Appeal from the Circuit Court of Mercer County; the Hon. Clarke C. Barnes, Judge, presiding.

JUSTICE SCOTT DELIVERED THE OPINION OF THE COURT:

Rehearing denied November 8, 1983.

This lawsuit began on April 7, 1981, when the plaintiff, Harney-Morgan Chevrolet Olds Company, filed a complaint to replevy a 1981 Oldsmobile from the defendants, Kenneth Rabin and his wife, Gertrude Rabin. When the property in question was not delivered up pursuant to a writ of replevin, the plaintiff amended its complaint seeking damages for the value of the 1981 Oldsmobile. After a hearing on the merits of plaintiff's complaint in the circuit court of Mercer County, a judgment for the plaintiff in the sum of $13,510.57 plus attorney fees and costs was entered. The same court denied plaintiff any recovery based upon allegations of fraud. The defendants have appealed the decision of the circuit court, and the plaintiff has cross-appealed.

Kenneth Rabin, a resident of Morton Grove, Illinois, was a traveling furniture salesman. On March 19 or 20, 1981, while calling on a customer in Aledo, Illinois, Mr. Rabin mentioned that he was interested in purchasing a new car. Mr. Rabin's customer offered to phone the local Chevrolet-Oldsmobile dealer, Lawrence Morgan, as an introduction to doing business.

Following the phone call, Mr. Rabin went to the dealership in Aledo where he was met by Mr. Morgan. Mr. Morgan was shortly thereafter forced to leave, but not before introducing Mr. Rabin to a salesman, Mr. Olson. At the same time, Mr. Morgan gave Mr. Olson a note that read: "Kenny Rabin had a 1978 Cadillac and was interested in an Oldsmobile."

Mr. Rabin looked at a new Oldsmobile, and Mr. Olson inspected and test-drove the Cadillac which Mr. Rabin was driving that day and which was to be the subject of the trade-in. Mr. Olson offered a deal to sell the Oldsmobile to Mr. Rabin for the Cadillac and cash. After approximately one hour, Mr. Rabin left the Aledo dealership and returned to his home in Morton Grove. Thereafter, Mr. Rabin compared the offer he had received from the plaintiff dealership with trade-in deals he could make at automobile dealerships near his home. Discovering that the best price for a new car had been offered by the plaintiff dealership, Mr. Rabin phoned Harney-Morgan Chevrolet Olds Company to accept the offer.

Mr. Rabin returned to Aledo with his wife a day or two later. There he signed a retail buyer's order setting forth the terms of the agreement, including a term which provided for the trade-in of a 1978 Cadillac. He also signed an odometer certificate representing the mileage stated on the odometer, 52,470 miles was correct. Finally, Mr. Rabin signed instruments of title turning the Cadillac over to the dealership as a trade-in. However, the Cadillac was not a 1978 model, but rather a 1976 model. The model year was correctly reflected on the instrument of title assigned to the dealership. Nevertheless, it would appear that during the entire negotiation process, the automobile dealer and his agents mistakenly concluded that the Cadillac was a 1978 model. There is no allegation that Mr. Rabin intentionally misrepresented the model year of the car he was trading in, and indeed the salesmen had ample opportunity to inspect and test drive the Cadillac which they mistook as a 1978 model.

Two days after the sale was consummated and Mr. and Mrs. Rabin drove away in their new Oldsmobile, the Aledo dealer discovered that the Cadillac was a 1976 model. Immediately the dealer demanded that Mr. Rabin return the Oldsmobile and rescind the sale. Mr. Rabin refused. Suit was filed by the dealership in the circuit court of Mercer County. On April 7, 1981, that court filed a temporary order restraining the defendants, Kenneth and Gertrude Rabin, from driving or using the new Oldsmobile. Thirteen days later the same court concluded that the plaintiff dealership had made a prima facie showing of its entitlement to possession of the Oldsmobile, and ordered the issuance of a writ of replevin restoring possession of the new Oldsmobile to the plaintiff. The defendants failed to comply with either the temporary order or with the writ of replevin.

When the Oldsmobile was not delivered up pursuant to court order, the plaintiff dealership filed additional counts to its complaint seeking damages for conversion, misrepresentation and fraud. Still, Mr. Rabin continued his possession and use of the new Oldsmobile. The matter proceeded to trial and the court found for the plaintiff, awarding damages on both the conversion theory and the misrepresentation theory, but deciding that no fraud occurred in the transaction.

The defendants, Mr. and Mrs. Rabin, have appealed, asserting that a valid contract was entered into for the trade-in of the Cadillac which Mr. Olson inspected and test-drove, and that no legal basis for rescinding that contract has been demonstrated. The plaintiff dealership has appealed, urging that the circuit court should have found in its favor on the fraud theory alleged in its complaint.

• 1 The provisions of the Uniform Commercial Code (Ill. Rev. Stat. 1981, ch. 26, par. 1-101 et seq.) apply to the transaction in question. That code provides that in contracts governed by its rules,

"(1) The price can be made payable in money or otherwise. If it is payable in whole or in part in goods each party is a seller of the goods which he is to transfer." (Ill. Rev. Stat. 1981, ch. 26, par. 2-304(1).)

Thus, with the transaction in question, the plaintiff dealership was a seller of a new Oldsmobile, and the defendants were sellers of the 1976 Cadillac. It follows then that the plaintiff dealership, in attempting to set aside this transaction, would have the remedies granted to a party in the position of a buyer. Since the dealership had, in the terminology of the Code, "accepted" the Cadillac, its statutory remedies would be limited to revoking its acceptance. (Ill. Rev. Stat. 1981, ch. 26, par. 2-608.) In addition, the dealership buyer would have certain remedies existing at common law and not supplemented by the Code. Ill. Rev. Stat. 1981, ch. 26, par. 1-103.

• 2-4 In the court below, the plaintiff relied on two of these common law theories to support its position that the contract never existed. First, the dealership urges that it was mistaken as to the vintage of the Cadillac trade-in. Secondly, it urges that the defendants misrepresented the actual mileage which the Cadillac had been driven. Generally, the unilateral mistake of one party to a contract may not be relied upon to relieve that party from the obligations of the contract where the party's own negligence and lack of prudence resulted in the mistake. (Diedrich v. Northern Illinois Publishing Co. (1976), 39 Ill. App.3d 851, 350 N.E.2d 857.) Here, the dealership had an opportunity to inspect and test-drive the 1976 Cadillac before entering into the agreement. It would not be inequitable to charge the dealership with superior knowledge concerning the values, styles, and appearances of used automobiles. That superior knowledge should have enabled the prudent and diligent dealer to correctly appraise the car and to correctly determine its model year. If the plaintiff here failed to exercise that diligence and prudence in inspecting the goods which were to be the subject of the bargain, it would not be inconsistent with established contract law to deny relief based upon a theory of unilateral mistake. However, in this case the dealer's otherwise inexcusable mistake was induced, at least in part, by the actions of the defendants. Mr. and Mrs. Rabin signed the retail buyers' order, which called for the trade-in of a 1978 Cadillac, when in fact they knew that their automobile was a 1976 Cadillac. This written misrepresentation was negligently accomplished, the defendants never taking time to read the ...


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