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11/01/89 Computer Sales Corporation v. Rousonelos Farms

November 1, 1989

COMPUTER SALES CORPORATION, PLAINTIFF-APPELLANT

v.

ROUSONELOS FARMS, INC., DEFENDANT-APPELLEE



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, THIRD DIVISION

546 N.E.2d 761, 190 Ill. App. 3d 388, 137 Ill. Dec. 816 1989.IL.1727

Date Filed: November 1, 1989; As Corrected May 7, 1990.

Appeal from the Circuit Court of Cook County; the Hon. Walter B. Bieschke, Judge, presiding.

APPELLATE Judges:

JUSTICE WHITE delivered the opinion of the court. McNAMARA* and RIZZI, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE WHITE

In an action for breach of contract, the jury found in favor of plaintiff, Computer Sales Corporation, and against defendant, Rousonelos Farms, Incorporated, and awarded plaintiff damages of $81,776.14. The jury did not apportion the damage award in any way. However, plaintiff's president testified that defendant owed plaintiff $26,845 for the computer equipment that plaintiff sold to defendant under the contract and $30,201 in interest as provided by the contract. It is assumed that the remainder of the damage award represented attorney fees and costs incurred by plaintiff in prosecuting the action for breach of contract.

Defendant filed a post-trial motion for judgment notwithstanding the verdict or, in the alternative, for a new trial. The trial court denied the post-trial motion. However, the trial court found that plaintiff could not recover interest at a rate higher than 9% per annum and ordered a remittitur of $15,100.50 from the interest awarded to plaintiff by the jury. The court also found that "it would be inequitable to combine the quantum meruit agreement for fees which plaintiff had with its first set of attorneys in addition to the 1/3 contingent fee agreement which plaintiff had with its second set of attorneys." The court, therefore, ordered a remittitur of $9,550 from the amount awarded to plaintiff by the jury for attorney fees incurred in prosecuting the lawsuit.

Plaintiff has appealed the order of the trial court that he file a remittitur from the interest and attorney fees awards. Defendant has cross-appealed, contending that the award of attorney fees should be reversed in its entirety. We reverse the order of the trial court insofar as it requires plaintiff to file a remittitur from the interest and attorney fees awards. INTEREST AWARD

The contract for the sale of the computer equipment provides in part:

"If Customer fails to pay any charges when due and payable, Customer agrees that Computer Sales will have the right to invoice and Customer will pay a late payment charge of 1-1/2 percent per month, but not in excess of the lawful maximum, on the past due balance."

The interest awarded to plaintiff was calculated at the rate of 1 1/2% per annum on the amount due and owing from the defendant under the contract.

Defendant maintains that section 4 of the Interest Act (Ill. Rev. Stat. 1985, ch. 17, par. 6404) (hereinafter the usury statute) limits the interest that may be awarded to plaintiff under the contract. We disagree. The usury statute provides in relevant part:

"General Interest Rate. (1) In all written contracts it shall be lawful for the parties to stipulate or agree that 9% per annum, or any less sum of interest, shall be taken and paid upon every $100 of money loaned or in any manner due and owing from any person to any other person or corporation in this state, and after that rate ...


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