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Superior Partners v. Pro. Ed. Network

OPINION FILED NOVEMBER 14, 1985.

SUPERIOR PARTNERS, PLAINTIFF-APPELLANT,

v.

PROFESSIONAL EDUCATION NETWORK, INC., DEFENDANT-APPELLEE.



Appeal from the Circuit Court of Cook County; the Hon. Francis J. Reilly, Judge, presiding.

JUSTICE JOHNSON DELIVERED THE OPINION OF THE COURT:

Rehearing denied December 13, 1985.

Plaintiff, Superior Partners, appeals from the judgment of the circuit court of Cook County finding that certain personal property located on premises leased to defendant, Professional Education Network, Inc., was not subject to distraint for rent because, prior to its seizure under a distress warrant, the property had been sold to a third party. Plaintiff contends that the contract to sell the property was not enforceable because it violated the statute of frauds, and that, assuming that the contract was enforceable, the purported sale was fraudulent because the buyer failed to take possession of the property before it was seized under the distress warrant.

Plaintiff leased office space to defendant which, due to financial difficulties, failed to pay rent for several months. On February 16, 1985, Robert H. Block, plaintiff's building manager, met with Robert S. Levy and Richard Friedman, two of defendant's corporate officers. Levy testified that Friedman informed Block that defendant was discontinuing its business operations and was disposing of its assets. According to Levy, Block agreed to allow defendant's personal property, consisting of office furniture and equipment, to remain on the premises until it had been sold. Levy advised Block that he expected to sell the property to the Chicago Tourism Council and that one of its representatives was going to inspect the property on February 18, 1985. Following the inspection, the Chicago Tourism Council, on February 26, 1985, purchased the property for $2,000. At trial, Levy identified a bill of sale, which was dated February 26, 1985, and which was signed by Richard Friedman on defendant's behalf. (The bill of sale has not been included in the record on appeal.) On the same date, Levy left a message with Block's office that the Chicago Tourism Council had purchased the property.

Levy testified further that on March 11, 1985, he had a telephone conversation with Block in which he told him that the buyer was attempting to make arrangements to pick up the property. When Block asked Levy whether the property had been sold, Levy confirmed that it had been sold "some time ago" and that the buyer wanted to take possession. Block expressed his dissatisfaction with the transaction and stated that he might not allow the property to be removed from the premises. On March 14, 1985, the Chicago Tourism Council issued a check to defendant in the amount of $2,000, which Levy picked up at the Council's office on the same date. Defendant introduced a letter from the Chicago Tourism Council dated March 21, 1985, into evidence which confirmed the details of the purchase and indicated an intention to take possession of the property that had been sold. (The letter has not been included in the record on appeal.) Before the Council could remove the property from the premises, plaintiff, on March 15, 1985, filed a distress for rent action against defendant and seized the office furniture and equipment. Defendant was served with summons on March 19, 1985.

Robert H. Block, testifying for plaintiff, denied that he had agreed to let defendant's property remain on the premises until it had been sold. Block also stated that he had no knowledge of the purported sale before the distress for rent action was filed.

Following an evidentiary hearing on April 9, 1985, the trial court entered judgment for defendant. The court found that on February 26, 1985, defendant had entered into a contract to sell the office furniture and equipment to the Chicago Tourism Council, had given to the Council a bill of sale identifying the property and reflecting the sale price of $2,000, and had advised plaintiff that the property had been sold; and that on March 11, 1985, which was four days before plaintiff filed its distress for rent action, defendant again had notified plaintiff that the property had been sold. This appeal follows.

Plaintiff contends that the contract to sell the property was not enforceable because it violated the statute of frauds and that, assuming that the contract was enforceable, the purported sale was fraudulent because the buyer failed to take possession of the property because it was seized under the distress warrant.

Section 9-301 of the Code of Civil Procedure (Ill. Rev. Stat. 1983, ch. 110, par. 9-301) provides:

"In all cases of distress for rent, the landlord * * * may seize for rent any personal property of his * * * tenant that may be found in the county where such tenant resides, and in no case shall the property of any other person, although the same may be found on the premises, be liable to seizure for rent due from such tenant."

• 1, 2 The language of this provision is general and is not subject to construction — in no case shall the property of any other person be seized. (Howdyshell v. Gary (1886), 21 Ill. App. 288, 291; Schiller Park Compressed Steel Corp. v. Boerema (1977), 45 Ill. App.3d 343, 347, 359 N.E.2d 852.) The landlord's right to seize the tenant's personal property for rent must be determined by the ownership of the property sought to be reached at the time of seizure, and it is not material that the property formerly belonged to the tenant or that it remains on the leased premises. (Howdyshell v. Gary (1886), 21 Ill. App. 288, 291; see also Cottrell v. Gerson (1938), 296 Ill. App. 412, 421-22, 16 N.E.2d 529, aff'd (1939), 371 Ill. 174, 20 N.E.2d 74, and the cases cited therein.) If the property has by a legal sale and delivery passed to another, it is not subject to seizure under the distress warrant against the goods of the tenant. Howdyshell v. Gary (1886), 21 Ill. App. 288, 291.

• 3 The trial court found that on February 26, 1985, defendant entered into a contract to sell the office furniture and equipment to the Chicago Tourism Council. In our judgment, this finding was amply supported by the evidence. Plaintiff, however, contends that the contract was not enforceable because it violated the Statute of Frauds. (Ill. Rev. Stat. 1983, ch. 26, par. 2-201(1).) We find no merit in this contention.

Subsection 2-201(1) of the Uniform Commercial Code (the Code) provides in pertinent part:

"[A] contract for the sale of goods for the price of $500 or more is not enforceable by way of action or defense unless there is some writing sufficient to indicate that a contract for sale has been made between the parties and signed by the party against whom enforcement is sought or by ...


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