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Barliant v. Follett Corp.

OPINION FILED SEPTEMBER 24, 1985.

DONALD E. BARLIANT, D/B/A MAYUBA BOOK STORES, PLAINTIFF-APPELLANT,

v.

FOLLETT CORPORATION, DEFENDANT-APPELLEE.



Appeal from the Circuit Court of Cook County; the Hon. Albert Green, Judge, presiding.

JUSTICE BILANDIC DELIVERED THE OPINION OF THE COURT:

Plaintiff-appellant Donald E. Barliant brought a class-action suit against defendant-appellee Follett Corporation, alleging that Follett had overcharged for its shipments of books. Specifically, Barliant claimed that the terms of sale were F.O.B. seller's warehouse in Chicago and that Follett breached those terms by adding a charge designated as "BKPST TRANS-INS" (bookpost, transportation, and insurance) to its invoices without notifying its customers. After a bench trial, in which only the issue of liability was litigated, the court found that Barliant had failed to prove his case, and it entered a judgment in favor of Follett. The issue is whether the court's findings were against the manifest weight of the evidence.

Barliant is an attorney and the owner of two bookstores in Chicago who filed suit against Follett on June 6, 1972. He alleged that Follett's terms of sale, published in its catalogues and order forms, and consistent with the custom and usage in the industry, were F.O.B. Follett's warehouse in Chicago. Pursuant to these terms, Barliant bought books from defendant and reimbursed it for the costs of transportation from the warehouse to the stores.

Barliant also alleged that on or about January 1, 1971, Follett began to include in its invoices a charge that was higher than the rates charged by the Postal Service for its bookpost (4th class) delivery. Barliant claimed that this was done without defendant's changing its published terms of sale. Follett claimed that the change was instituted because it switched to computerized billing, the "pre-bill" system. Under this system, Follett weighs each book and enters the information in its computer. When an order is received, the order is picked in the warehouse, and the computer then calculates the weight of the books and estimates the weight of the packing material — the paper carton, the filler, etc. The computer also selects the shipping method unless the buyer specifies it.

Barliant paid all the invoices that contained the "BKPST TRANS-INS" charge from January 1971 to May 1972, the date when he discovered the alleged overcharge after reading a newspaper article. Barliant demanded a refund from Follett, which was refused, and Barliant then filed suit, claiming that the extra charge was an attempt to increase the price of books. The complaint alleged breach of contract, fraud, and deceptive trade practices within the meaning of the Uniform Deceptive Trade Practices Act. (Ill. Rev. Stat. 1971, ch. 121 1/2, par. 311 et seq.) Barliant prayed for an accounting, the appointment of a receiver, temporary and permanent injunctions, compensatory and punitive damages, costs and attorney fees, and other appropriate relief.

The case was assigned to Judge Charles R. Barrett, who found that the class — on behalf of all purchasers of the defendant who were billed "BKPST TRANS-INS" — was proper and that the complaint stated a good cause of action. Several months later, the State of Illinois intervened on behalf of a subclass of all public institutions that had bought books from defendant. In December 1972, this case was consolidated with another class action, Avery Coonley School v. Follett Corp.

After Judge Barrett was elevated to the appellate court, the case was reassigned to Judge Emmett F. Morrisey. In December 1975, the Avery Coonley suit was settled, and a month later, the Attorney General and Follett settled their dispute, and that action was dismissed.

After Judge Morrisey became ill, the case was reassigned to Judge Joseph M. Wosik, who dismissed the class action allegations. We affirmed. (Barliant v. Follett Corp. (1977), 53 Ill. App.3d 101, 368 N.E.2d 654.) *fn1 Our supreme court, however, reversed and reinstated the class action, holding that the order vacating the class action three years after a determination was made was improper and that the requirements of a class action were satisfied. The circuit court was also required to determine whether the 18-month delay in Barliant's giving notice to Follett, as required by the Uniform Commercial Code (Ill. Rev. Stat. 1971, ch. 26, par. 2-607(3)(a)), was so unreasonable as to require Barliant's dismissal as the class representative. Barliant v. Follett Corp. (1978), 74 Ill.2d 226, 384 N.E.2d 316.

On remand, Judge Albert Green found that the firm that presently represents the class is qualified and that Barliant's delay in notifying defendant of the alleged breach was not unreasonable. Follett filed an amended answer and counterclaim on December 16, 1980, alleging as an affirmative defense that its billing for transportation charges was in conformity with industry custom. Follett admitted that it sold books on an F.O.B. basis and argued that, if plaintiffs prevailed, Follett would be entitled to reimbursement for the books that had been lost in transit and replaced by the defendant.

In his answer to the counterclaim, Barliant claimed that the use of trade in the industry was that a publisher replaces or gives a credit for books that are billed but not delivered. The trial, on the issue of liability only, began on July 26, 1983, and was continued from time to time until its conclusion on November 10, 1983.

On February 27, 1984, the court entered its findings. It found that Barliant "failed to submit any evidence that the custom and usage in the publishing industry was to ship all books by bookpost without any form of insurance, or handling [and] packaging charges." The court also found that Barliant's testimony — that he did not remember seeing the notation "BKPST TRANS-INS" on any invoice from January 1971 to May 1972 — to be "incredible" because the evidence showed that Barliant examined invoices before signing the checks. Barliant also failed to answer any questions about shipments made by other publishers, and his method of calculating damages did not coincide with postal rates. In sum, the court concluded that Barliant failed to prove a breach of contract or any other type of liability. The court also found that Follett did not prove its counterclaim. Only Barliant appealed the judgment.

A reviewing court will not disturb a lower court's findings of fact unless they are against the manifest weight of the evidence. (Brown v. Zimmerman (1959), 18 Ill.2d 94, 102, 163 N.E.2d 518.) For a finding to be against the manifest weight of the evidence, it must appear that a conclusion opposite to that reached by the trial court is clearly apparent. Emmenegger Construction Co. v. King (1982), 103 Ill. App.3d 423, 427, 431 N.E.2d 738.

There is no dispute that the terms of sale that appeared in Follett's catalogues were "F.O.B. seller's warehouse in Chicago." Section 2-319 of the Uniform ...


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