of happening. Under the circumstances of the instant case, application of the concept of implied consent is much less a fiction and more a reality than it is under the unauthorized parking scenario. Under Ch. 82, para. 47a, where a person parks an automobile on private property without authorization, implied consent is applied to supply the automobile operator's consent to an action which he knows may happen, but does not desire to happen - the towing of his car. Where an owner of personal property enters into an agreement for the storage of that property with the lessee of the premises upon which the personal property is to be stored, both the owner of the personal property and the lessee may not know, but presumably would desire, that, in the event the lessee loses possession of the premises, the lessor will continue to store the property for an intermediate period prior to the property owner obtaining knowledge or notice of the lessee's loss of possession.
The practical effect of a contrary ruling adopting the Magistrate's Ruling and Recommendation would be to place GSC, and all other commercial lessors, in a "catch-22" situation. On one hand they are denied a chattel lien as a "mere possessor", while, on the other hand, once a gratuitous bailee, they cannot simply discard the subject of the bailment. Where the lessee leaves property which is large, this might make the premises impossible to relet or, at least, reduce that portion of the premises from which the lessor can derive a benefit. Moreover, to the extent a lessor could avoid a gratuitous bailment by immediately refusing to exercise control over the property, see Kirby v. City Bank & Trust Co., 82 Ill. App. 3d 1113, 403 N.E.2d 720, 38 Ill. Dec. 489 (1st Dist. 1980) (essential element of bailment is bailee's acceptance of control), denying a storage lien would encourage repossessing lessors to engage in a wasteful commercial practice even more damaging to property owners - immediately discarding the property.
Restriction of the application of implied consent to instances in which property is stored on leased commercial premises will ensure that the use of implied consent is not expanded to the extent that statutory liens displace gratuitous bailments. Similarly, it must be emphasized that, while the court holds that the lessor has the right to assert a lien for storage of property remaining on the premises, the lessor has no duty to provide storage.
GSC PROPERLY ENFORCED ITS LIEN
Concluding that GSC had a chattel lien in the Goods under Ch. 82, para. 40, requires an examination of whether, as a matter of law, GSC properly enforced its lien under Ill. Rev. Stat. ch. 141, para. 3. Ch. 141, para. 3 requires, among other things, that the lienor give personal notice to the owner of the property, if known, against which a chattel lien is asserted at least 10 days prior to the enforcement of the lien through public sale. GSC, lacking knowledge of the identities of the Goods' owners did not send personal notice to plaintiffs. GSC will be charged with the knowledge of plaintiffs' identity, if it had knowledge of facts which upon diligent inquiry would have led to knowledge of plaintiffs' identity as the owners of the Goods. Burdash v. Olsen, 48 Ill. App. 3d 572, 362 N.E.2d 1335, 6 Ill. Dec. 415 (1st Dist. 1977). If GSC had constructive knowledge of the identity of the Goods' owners, then, having failed to send them personal notice of the sale, GSC would not have properly enforced its lien.
An examination of plaintiffs' Memorandum In Support Of Motion For Partial Summary Judgment As To Liability reveals that the basis for plaintiffs' assertion that it is entitled to summary judgment is an affidavit by Fischer's trustee in bankruptcy. It is largely upon the information in this affidavit that plaintiffs conclude that GSC is chargeable with knowledge of plaintiffs' identify and thus, by failing to send personal notice to plaintiffs, failed to comply with Ch. 141, para. 3. Essentially, the trustee concludes that certain of plaintiffs' brochures, which were in file cabinets on the Premises, contained information which upon further inquiry would have led to the Goods' manufacturers. Certainly, if plaintiffs' addresses were on their brochures, whether in English, French or German, and defendant in fact had access to them, then defendants had knowledge of information which would, on further reasonable inquiry, have led to plaintiffs' identities. However, the affidavit fails to specifically state that defendants had access to Fischer's documents and records. Were the file cabinets in which they were contained unlocked? More importantly, the affidavit fails to specify exactly what information was contained on the brochures. Instead, there is simply the conclusion that "these documents provided sufficient information from which to determine the identity and location of the manufacturers of the property that remained on the St. Charles Road premises." Affidavit of David E. Grochinski, para. 8. Finally, ignoring the conclusory nature of this statement, that GSC may have had notice of the identity of the manufacturers of the Goods does not equate to notice of the identity of the owners of the Goods. That, for example, General Motors manufactured a certain Cadillac does not, standing alone, establish ownership of the Cadillac.
GSC properly enforced its lien. It did not have constructive knowledge of plaintiffs' identity as the owners of the Goods. GSC attempted to contact a representative of Fischer in order to determine the owner of the Goods. This is a diligent inquiry, given that GSC possessed no other information indicating the owners of the Goods.
No reasonable jury could conclude otherwise.
Accordingly, the court rejects the Magistrate's Report and Recommendation and grants summary judgment in favor of defendants.
IT IS SO ORDERED.
DATED: July 28, 1989