APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, THIRD DIVISION
527 N.E.2d 489, 173 Ill. App. 3d 251, 123 Ill. Dec. 26 1988.IL.1125
Appeal from the Circuit Court of Cook County; the Hon. David Cerda, Judge, presiding.
JUSTICE FREEMAN delivered the opinion of the court. WHITE, P.J., and McNAMARA, J., concur.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE FREEMAN
Plaintiff, Alden Press Inc., sued defendant, Block and Company, Inc., for breach of contract. The jury returned a verdict for plaintiff for the total amount allegedly due under the contract, $66,389.16. The trial court also awarded plaintiff costs, prejudgment and post-judgment interest. Defendant appeals from the judgment for plaintiff.
Defendant is a mail order company which sells it goods through catalogs. Plaintiff is a printer. In February 1981, defendant contracted with plaintiff for, inter alia, the printing and mailing of 100,000 copies of a bank and cashier equipment catalog, No. 2381. Plaintiff contracted to "saddle stitch" the catalogs "with 3 wires." This meant that three staples would be used to hold the catalogs together. It also agreed to "trim" the catalogs "flush to size." This meant that the catalogs' covers would be the same size as their pages. The original quantity of 100,000 was later increased to 125,000. Under the contract, the catalogs were to be mailed to defendant's customers over a six-month period beginning on April 1, 1981. After completion of the printing, plaintiff delivered a carton of 50 of the catalogs to defendant on March 30. Plaintiff mailed 17,888 catalogs on the 31st and delivered an additional 3,120 catalogs to defendant for use by its telemarketing personnel and to be sent to customers. Defendant held the remaining catalogs in its inventory awaiting further instructions from defendant.
Mitchell Block, defendant's president, and Dick Hane, its vice-president of purchasing in 1981, discovered in late March or early April 1981 that the covers of the catalogs were falling off. Block testified that the problem was significant because the mailing labels were attached to the back covers and if the covers fell off the catalogs would be undeliverable.
After being notified by Hane, Dick Scher, plaintiff's salesman in charge of defendant's account, inspected the catalogs with Hane. Scher took some of the catalogs back to plaintiff's plant and showed them to Don Carlson, plaintiff's vice-president of field sales. According to Scher, plaintiff agreed to remedy the problem with the catalogs by reprinting the covers, tearing the old covers off and rebinding the new covers to the existing 96-page catalog bodies.
Thereafter, Dick Hane testified, at a meeting of representatives of both parties, Mitchell Block told plaintiff's representatives that the catalogs were unacceptable and that he wanted a reprint. In response, Scher proposed that the catalogs be put in plastic bags and the mailing labels attached to the bags. That solution was unacceptable to Block. Scher next proposed that the catalog covers be reprinted and rebound to the catalogs. Scher displayed two sample catalogs with white covers "saddle stitched" with two additional staples, for a total of five, and "trimmed flush" with the catalog pages. Mitchell Block approved this solution on the condition that defendant be allowed to review the rebound catalogs before they were mailed by plaintiff.
Thereafter, plaintiff had the catalogs rebound by Frank's Bindery at plaintiff's expense. On April 27, 1981, plaintiff received 50 rebound catalogs from Frank's Bindery which it sent to defendant. A meeting was then held at Mitchell Block's request at which he told Scher and Carlson that he was unhappy with the rebound catalogs but would abide by the decision of his staff. A day or so later, Scher and Hane inspected the rebound catalogs at plaintiff's plant. Scher testified that Hane was satisfied that the catalogs would travel through the mail but reserved final approval of the catalogs until he got back to his office. Thereafter, Hane called Scher and told him that defendant wanted the entire catalog reprinted.
Defendant found the catalogs unacceptable because, inter alia, the covers overlapped the catalog pages rather than being trimmed flush to the pages. As a result, an attempt to open the catalogs would cause them to open at the middle, where the order form was located. Concomitantly, the first 20 pages of the catalog, where the products accounting for 70% of defendant's sales were located, would be bypassed. Defendant felt that this would inhibit impulse purchases of its high volume items.
Notwithstanding defendant's dissatisfaction with the catalogs, it instructed plaintiff to proceed with the second mailing, of 19,379 catalogs, on or about April 30. Mitchell Block testified that he approved the second mailing because he "had no choice" and because a failure to mail any catalogs would have "spelled financial disaster" for defendant. Block also testified that he thereafter called plaintiff's president twice but was unsuccessful in reaching him. Dick Hane testified that he too attempted to reach plaintiff's president but was unsuccessful. Thereafter, Hane contacted Scher, informed him the catalogs were unacceptable and requested that the catalogs be reprinted. Don Carlson telephoned Dick Hane and informed him that plaintiff would not reprint the catalogs. At Carlson's request, Hane wrote a letter to plaintiff, dated May 1, rejecting the catalogs. On May 5, defendant ordered 2,000 catalogs from plaintiff for office use. Finally, defendant had 80,000 catalogs printed by a second printer. Defendant never paid plaintiff for any of the 125,000 catalogs it printed.
Defendant first contends that the trial court erred in denying its motion for judgment notwithstanding the verdict because the evidence established that it had not accepted all of the catalogs. Plaintiff asserts that defendant waived this issue. During its deliberations, the jury asked the trial court what the governing law was if it chose not to award "the entire amount" to either party. Plaintiff notes that defendant did not object to the trial court's answer that the jury had been given the instructions on the law. It also notes that defendant did not propose at that time or earlier that the jury be instructed that it could decide the case on less than an "all or nothing basis." As a result, plaintiff concludes, defendant waived its right to complain that the trial court did not instruct the jury that defendant accepted only some of the catalogs.
Defendant's failure to object to the instruction given in response to the jury's inquiry did not result in a waiver of the error alleged. (See Darda v. Chicago Transit Authority (1968), 100 Ill. App. 2d 94, 100, 241 N.E.2d 478 (inquiry on motions for directed verdict and judgment n.o.v. assumes that determination will be made in light of correct and applicable law and motion for judgment n.o.v. is and must be decided without consideration of argument to jury, instructions or the verdict, which occur after presentation of the evidence).) Rather, the test of waiver of such argument is whether it was presented to the trial court. Here, defendant undeniably ...