Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 86 C 1508--Ann C. Williams, Judge.
William J. Bauer, Chief Judge, Walter J. Cummings, and Michael A. Kanne, Circuit Judges.
MICHAEL A. KANNE, Circuit Judge.
Defendant Brink's Inc., appeals from the district court's decision granting judgment to plaintiff Evanston Bank on a suit for breach of contract regarding a misdelivery of $20,000.00 in cash. We affirm.
On July 21, 1983, the bank received a telephone call from one of its customers, Elema Schonander, requesting that $20,000.00 be withdrawn from his checking account and delivered to him at his downtown Chicago, Illinois office.*fn1 The bank agreed and called Brink's, an armored car company, to make arrangements for the delivery. Brink's arrived at the bank on the same day and picked up the $20,000.00 for next-day delivery to Schonander. Unfortunately for Brink's its employees went on strike at 12:00 a.m. July 22, 1983, making next day deliveries impossible.
On July 22, 1983, a bank official telephoned a Brink's manager and without explaining why, asked Brink's to return the $20,000.00 to the bank.*fn2 The manager verified that Brink's still had the money and told the bank official that the money would be returned.
In the meantime, an individual identifying himself as Schonander called Brink's and asked about his $20,000.00 shipment. The Brink's employee who spoke with Schonander, unaware that the manager had promised to return the money to the bank, told Schonander no deliveries could be made but that Schonander could pick up the money himself with proper identification. Shortly thereafter, Schonander arrived and produced identification. Still unaware of the manager's promise to the bank, other Brink's employees turned the money over to Schonander.
It was not until a few days later that the bank learned that the money had been turned over to Schonander. The bank demanded reimbursement based on Brink's oral promise to return the money to the bank. Brink's refused and the bank filed a breach of contract and negligence action against Brink's.*fn3
Following a bench trial, the district court ruled in the bank's favor, finding that Brink's was liable for its failure to return the money to the bank. This appeal followed.
On appeal, Brink's argues the district court's findings are fundamentally flawed because they are based on the wrong contract. That is, the delivery from the bank to Schonander was made under a contract between Brink's and Schonander and not the bank/Brink's contract.*fn4 Under the Schonander/Brink's contract, Brink's legitimately turned the money over to Schonander when he presented proper identification. Brink's also argues that the bank must bear the responsibility for its losses, because it turned the $20,000.00 over to Brink's for delivery without first ensuring that Schonander's checks had cleared.
The bank argues there is no evidence that when Schonander called the bank to arrange for a delivery, he requested it be done under his contract with Brink's. Moreover, there is no evidence that when the bank called Brink's to make delivery arrangements, Schonander's contract was ever mentioned or that the bank was acting as Schonander's agent. Thus, everyone, including Brink's, was operating under the assumption that the bank/Brink's contract was controlling. Under the bank/Brink's contract, only deliveries from one bank branch to another were permitted. However, the bank argues that its contract was orally modified when it requested Brink's to make a delivery to a third party and Brink's agreed. The contract was modified again when Brink's agreed to return the money to the bank. Brink's failure to live up to the second modification constituted a breach of contract.
Brink's points out that the Schonander/Brink's contract permitted a delivery to Schonander without modification. Thus, the bank/Brink's contract was not orally modified to permit delivery to a third ...