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08/24/89 Toby Kahr Et Al., v. Karon Markland Et Al.

August 24, 1989

TOBY KAHR ET AL., PLAINTIFFS-APPELLEES

v.

KARON MARKLAND ET AL., DEFENDANTS-APPELLANTS



Before the entrustment provisions of the UCC can be applied, a delivery is required. Plaintiff's act of unknowingly leaving the sterling silver with Goodwill is not equivalent to a voluntary transfer. The term "voluntary" is defined as: "proceeding from the will or from one's own choice or consent" and "done by design or intention." (Webster's Third New International Dictionary 2564 (1981).) We conclude the entrustment provisions of the UCC do not apply to this case.

APPELLATE COURT OF ILLINOIS, FOURTH DISTRICT

543 N.E.2d 579, 187 Ill. App. 3d 603, 135 Ill. Dec. 196 1989.IL.1298

Appeal from the Circuit Court of Champaign County; the Hon. Jeffrey B. Ford, Judge, presiding.

APPELLATE Judges:

PRESIDING JUSTICE McCULLOUGH delivered the opinion of the court. GREEN, J., concurs. JUSTICE LUND, specially Concurring.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE MCCULLOUGH

This appeal concerns a replevin order entered against defendant Karon Markland (Markland), directing the return of sterling silver owned by the plaintiffs and sold to Markland by Land of Lincoln Goodwill Industries, Inc. (Goodwill). Markland and Goodwill contend the trial court erred in characterizing the silver as lost property when the evidence established that Toby Kahr entrusted the silver to Goodwill pursuant to section 2-403(3) of the Uniform Commercial Code-Sales (Ill. Rev. Stat. 1987, ch. 26, par. 2-403(3)). Markland urges she received good title to the silver from Goodwill and is the true owner of the silver against the plaintiffs. We affirm.

This appeal concerns only the order entered for plaintiffs against Markland on count VI of their amended complaint against Goodwill and Markland filed on April 1, 1984, and amended on January 14, 1985. In count VI, plaintiffs alleged they were owners of 28 pieces of sterling silver of the "Joan of Arc" silver pattern manufactured by International Silver Company. The pieces were engraved with the letter "K." On April 5, 1983, plaintiffs brought sacks of used clothing for donation to Goodwill in Champaign. Unknown to the plaintiffs, the sterling silver was included in the sacks given to Goodwill, along with a wallet containing plaintiffs' credit cards. At the time the sacks were donated, plaintiffs informed Goodwill that plaintiffs' donation was used clothing. Later, on the same day, Goodwill sold the sterling silver to Markland for $15. Plaintiffs alleged the sale of silver to Markland was without their consent and, therefore, Goodwill transferred void title to the silver to Markland. Plaintiffs further alleged the value of the silver was $3,791 and sought an order of replevin for the silver and damages for the wrongful detention of the silver by Markland.

On June 29, 1988, Markland filed a third motion for summary judgment on count VI, two previous motions having been denied. In support of her motion, Markland submitted the depositions of Toby Kahr, Judy Taylor, a Goodwill employee, and her own deposition. Prior to ruling on this motion, the cause was called for a bench trial on counts I through VI of the complaint on July 18, 1988. At that time, all parties agreed to a summary bench trial, at which testimony would be received and considered along with the depositions on file in support of the summary judgment motion.

At trial, Rita Kahr testified regarding how the silver was mistakenly included with the donation for Goodwill. She stated that the silver was put in bags to be put in her attic along with jewelry and credit cards when she and Toby went on vacation. After returning from vacation, the bags of valuables were put on the dining room table with sacks of clothes for Goodwill. When Toby took the bags of clothes to Goodwill, he mistakenly picked up the bags containing the silver. Approximately two hours after Toby returned from Goodwill, Rita asked where the silver was and then Rita and Toby realized it was taken to Goodwill. That same day, Toby called Goodwill and was told the pieces had been sold. Rita stated the silver was a wedding present 27 years previous from her father. Rita stated that no one told the Goodwill employees not to sell the silver but her husband did tell Goodwill the donation was clothing only. Toby's testimony in court and in his deposition substantiated Rita's statements. He also stated he knew the donation would be resold; however, he did not know the silver was in the bags with the clothing.

Judy Taylor, the Goodwill employee who received the plaintiffs' donations in April 1983, testified that she priced the silver after it was discovered and knew it was a bit nicer than other silver received by Goodwill. Taylor stated she discovered the wallet among the clothing after Toby left the store and called someone at the plaintiffs' home about the wallet. She did not mention the silver in the phone conversation because she had not yet discovered the silver. Taylor did not recall Toby stating the donation was clothing but remembered he did not want a receipt for the donation. According to Taylor, Toby became irate when he called concerning the items. Taylor stated she had no conversation with Markland regarding the silver. Taylor testified it was not uncommon for Goodwill to receive nice things in donations but she did not recognize the silver to be sterling.

Taylor testified in her deposition that Markland shopped at Goodwill almost everyday and on April 5 bought the silver within five minutes after it was received. Deborah Neese, director of operations for Goodwill, testified that Taylor had authority to price donations immediately and display them for resale.

Markland testified in her deposition that she worked for Goodwill for a short time in 1972 through 1973 as a sales clerk receiving donations. When she purchased the silver, Markland stated she knew it was not stainless steel but was uncertain whether the silver was sterling or silver plate. Markland stated she purchased the silver because of the monogram "K" on each piece and realized when she arrived at home that the silver was sterling. Markland stated she received a telephone call from Taylor and Neese asking her to return the silver but she refused.

The delivery of the bags to Goodwill, the call concerning the billfold, the sale of the silver, and Toby's call to Goodwill concerning ...


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