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09/28/89 Orlando T. Coryell, v. Lombard Lincoln-Mercury

September 28, 1989




Before we discuss the small claims hearing, we note that no court reporter was present, and, thus, no transcript exists. A report of proceedings was apparently reconstructed by the parties and certified by the trial court. The court below, in certifying said report of proceedings, stated that although plaintiff made no formal offer of exhibits A through J, the court considered said exhibits in reaching its decision. Our reading of the report of hearing shows that indeed plaintiff did formally offer said exhibits and that the trial court improperly failed to rule on the submitted exhibits. For purposes of this appeal, we will treat the tendered exhibits as part of the record on appeal.


544 N.E.2d 1154, 189 Ill. App. 3d 163, 136 Ill. Dec. 379 1989.IL.1555

Appeal from the Circuit Court of Du Page County; the Hon. Edward Duncan, Jr., Judge, presiding.


JUSTICE WOODWARD delivered the opinion of the court. UNVERZAGT, P.J., and DUNN, J., concur.


Plaintiff, Orlando Coryell, appeals from a judgment of the circuit court of Du Page County, which entered a directed finding for defendant, Lombard Lincoln-Mercury Merkur, Inc., on both counts of the amended complaint.

Plaintiff filed a small claims complaint against defendant on August 17, 1987. He later filed an amended small claims complaint which consisted of two counts. In count I, plaintiff alleged the following. On July 30, 1983, plaintiff brought his Mercury automobile (Mercury) to defendant for repairs. At the time of the repairs, defendant, as part of the contract, promised a lifetime guarantee on the repair, i.e., to wit, "We fix it right, or we fix it free." In reliance on this lifetime service guarantee, plaintiff permitted defendant to install a rebuilt carburetor in his Mercury. Subsequently, on a number of occasions, plaintiff brought the Mercury to defendant's shop for repairs which were necessitated by the rebuilt carburetor's failure to perform properly. At the time the amended small claims complaint was filed, the Mercury still ran poorly, the result of defendant's failure to fix the car properly.

In count II, plaintiff alleged the following. On June 8, 1987, plaintiff brought the Mercury to defendant's repair center. Defendant made certain adjustments in the Mercury, which rendered the car unsafe for travel. Plaintiff refused to pay the $615.54 bill charged by defendant which, in turn, refused to deliver the vehicle to plaintiff until the outstanding bill was paid. As a result of the failure to deliver the Mercury, plaintiff failed to attend a final job interview, at which he was to discuss a job offer. Plaintiff subsequently was not hired for the position. Plaintiff alleged suffering stress, fear, and mental anguish, resulting from defendant's breach of warranty and sought a $500 judgment for said suffering.

At the small claims proceeding on May 1, 1988, plaintiff appeared pro se, and defendant was represented by two attorneys. After plaintiff had rested his case, the court below granted defendant's motion for a directed finding. Regarding count I (breach of warranty), the court found there were no elements of damage proved and that defendant did not breach its warranty of repair. Regarding count II (consequential damages), the court found that the claimed damages were too remote and were not a reasonably foreseeable consequence of defendant's alleged wrongdoing.

On appeal, plaintiff raises two issues in his pro se appellate brief, namely, (1) the trial court erred by ruling that no express or implied warranty existed and that defendant had not breached express and implied warranties; and (2) defendant did not legally impound plaintiff's automobile.

Initially, plaintiff argues that defendant created an express warranty, i.e., a lifetime service guarantee "We fix it right, or we will fix it free," by making said statements on an advertising brochure and a sign prominently displayed in defendant's customer service area. Plaintiff asserts that the advertising brochure which was specifically addressed to him and the warranty sign, which plaintiff estimated was 3 feet by 4 feet, induced him to use defendant's repair services.

At the small claims hearing, plaintiff testified:

"I received this advertising brochure in the mail which I submit to the court as Exhibits B and C. This brochure states 'We fix it right or we fix it free'. Please note that the Compare Repair Guararantees [ sic ] chart specifically includes carburetors.

On July 30, 1985 I contracted with Lombard Lincoln-Mercury to have my stationwagon's carburetor fixed. As I stood at the service writer's desk I saw a large sign hanging on the wall. It looked like it was about 3 feet by 4 feet in size. The sign said 'Lifetime Service Guarantee'.

I asked about what the sign meant. I was told it applied only to Ford parts.

I told the service writer the condition of the stationwagon: black smoke comes out the tail pipe but the engine only uses a quart of oil every 2000 miles, the gas mileage on the highway is now 18 miles to the gallon, the engine has a sound like a vacuum leak, the engine snaps and crackles, and fumes come into the car.

The service writer and I discussed whether a simple repair would fix the problems or whether overhauling the carburetor would be the solution. He emphaised [ sic ] that a fix would not be a permanent ...

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