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06/10/87 Dan Pilson Auto Center, v. William Demarco

June 10, 1987

DAN PILSON AUTO CENTER, INC., PLAINTIFF-APPELLANT

v.

WILLIAM DEMARCO, AS SHERIFF OF THE COUNTY OF SANGAMON, DEFENDANT-APPELLEE



APPELLATE COURT OF ILLINOIS, FOURTH DISTRICT

509 N.E.2d 159, 156 Ill. App. 3d 617, 108 Ill. Dec. 733 1987.IL.796

Appeal from the Circuit Court of Sangamon County; the Hon. Richard E. Mann, Judge, presiding.

APPELLATE Judges:

JUSTICE McCULLOUGH delivered the opinion of the court. SPITZ, P.J., and LUND, J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE MCCULLOUGH

The plaintiff, Dan Pilson Auto Center, Inc., brought a replevin action seeking to recover possession of six automobiles from the defendant, William DeMarco, the sheriff of Sangamon County. Following a hearing on the matter, the circuit court of Sangamon County denied Pilson's complaint for replevin. Pilson appeals the order of the circuit court.

On appeal, Pilson maintains: (1) the decision of the circuit court is contrary to the evidence, thus entitling him to possession of the cars as a matter of law; and (2) the sheriff may not prevail as a "buyer in the ordinary course" as he was on notice of possible defects in title. We reverse and remand.

At the hearing, Dan Pilson, president of Dan Pilson Auto Center located in Mattoon, Illinois, testified that he had entered into an oral agreement to sell six used squad cars to Leo Palmeri. Palmeri was a buyer for Fleet Automotive, a Rockford dealership specializing in fleet transactions. Pilson and Palmeri conducted all negotiations by telephone, which, according to Pilson, was the customary manner of conducting wholesale fleet transactions.

At the agreement was made, Pilson was not yet in possession of the cars. Under the terms of the agreement, Pilson was to contact Palmeri upon receipt of the vehicles. Then Palmeri was to come to Mattoon to make an inspection of the cars, and assuming no problems existed, Pilson and Palmeri were to exchange car titles and possession for a cashier's check.

Pilson contacted Palmeri shortly after the agreement was made to inform him that the squad cars would be coming in later than anticipated. Pilson testified that Palmeri indicated some concern with respect to the delivery date because he had already arranged for sale of the cars and his customer was becoming anxious. The vehicles arrived in early April, and on April 11, 1986, Palmeri was informed the vehicles were ready for his approval. Palmeri indicated that he would come to Mattoon immediately to pick up the vehicles and close the deal.

Palmeri contacted Pilson later that same day and told Pilson that his customer was the Sangamon County sheriff. Palmeri asked Pilson if it would be all right if the sheriff picked up the cars, as the sheriff was anxious to get the vehicles. Palmeri indicated that he would be arriving shortly after the sheriff's men, but that Pilson should allow the sheriff to take the cars. Pilson agreed to the arrangement.

Captain Pyle of the Sangamon County sheriff's department arrived at Pilson's dealership. Pyle inspected the vehicles and then expressed some concern with respect to the mileage and condition of the tires on the squad cars. Pilson stated that he informed Pyle that his transaction with Palmeri was not yet complete and that any price adjustments could be made later by Palmeri. Pyle then signed a "delivery receipt" and took possession of the cars.

Pilson further testified that at the time he released possession of the cars, he was unaware of the fact that Pyle, on behalf of the sheriff's department, had already tendered payment to Fleet Auto. Pilson, however, maintained that his transaction was strictly with Palmeri. Palmeri never showed on April 11 and never paid Pilson for the six squad cars. Pilson is still in possession of the certificates of title.

Captain John Pyle, director of support services for the Sangamon County sheriff's department, testified that he entered into an agreement with Palmeri to purchase 19 squad cars. Pyle indicated that he had engaged in one previous transaction with Palmeri. It was Pyle's understanding that Palmeri would obtain squad cars ...


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