Appeal from the Circuit Court of McHenry County. No. 98--LM--196 Honorable Maureen P. McIntyre, Judge, Presiding.
The opinion of the court was delivered by: Justice Callum
Plaintiff, Donald R. Hessler, sued defendant, Crystal Lake Chrysler-Plymouth, Inc., for breach of contract. Following a bench trial, the court entered judgment for plaintiff and awarded him $29,853 in damages. Defendant appeals, arguing that the trial court erred in (1) concluding that a certain term was part of the contract; (2) interpreting the term; (3) finding that defendant breached the contract; and (4) calculating the damages award. We affirm.
In February 1997, Chrysler Corporation introduced a new promotional vehicle called the Plymouth Prowler. However, the company did not reveal whether it would manufacture any of the vehicles. Plaintiff became aware of the vehicle and of its uncertain production, and, on February 4, 1997, contacted several dealerships to inquire about purchasing a Prowler.
On February 5, 1997, plaintiff met with Gary Rosenberg, co-owner of defendant-dealership and signed a "Retail Order for a Motor Vehicle" (hereinafter Agreement). The Agreement, which was filled out primarily by Rosenberg, stated that the order was for a 1997, V6, two-door, purple Plymouth Prowler. Moreover, it read:
"Customer to pay $5,000 00/100 over list price by manufacturer. Money refundable if can not [deliver] by 12/30/97. Dealer to keep car 2 weeks."
The Agreement also contained a preprinted integration clause, which read as follows:
"Purchaser agrees that this Order includes all the terms and conditions of [sic] both the face and reverse side hereof, that this Order cancels and supersedes any prior agreement and as of the date hereof comprises the complete and exclusive statement of the terms of the agreement relating to the subject matters covered hereby, and that THIS ORDER SHALL NOT BECOME BINDING UNTIL ACCEPTED BY DEALER OR HIS AUTHORIZED REPRESENTATIVE. Purchaser by his execution of this Order acknowledge that he has read its terms and conditions and has received a true copy of this Order." (Emphasis in original.)
The order also noted that plaintiff had deposited $5,000 by check.
The Agreement contained a box labeled "TO BE DELIVERED ON OR ABOUT." Inside the box was written "ASAP" in a handwriting and ink different from that in the rest of the document. Rosenberg testified that he did not write "ASAP" on plaintiff's order himself. Rather, a salesperson wrote it in the process of "finishing up" the transaction. Rosenberg did not instruct the person to do so, but he routinely delegates to defendant's employees the processing of customer checks and the dispensing of receipts. Rosenberg stated that the term "ASAP" is used in his business "in lieu of a stock number. Just line it up in order. As soon as you can get it done, do it." He also testified that "[i]n the literary form" it means as soon as possible. The Agreement contains another box labeled "STOCK NO.," which was left blank.
Rosenberg testified that plaintiff was the first person to place an order for a Prowler. Further, Rosenberg was "pretty sure" that plaintiff's order was the first order on which he received a deposit.
Plaintiff testified that he requested that Rosenberg insert language into the order that provided that plaintiff's money would be returned if no car was ultimately delivered to defendant. He did not ask Rosenberg to insert language specifying that plaintiff would receive the first Prowler, but he assumed that he would receive the first one.
The Agreement contains handwritten initials. Plaintiff testified that, while an employee at the dealership was processing his receipt, plaintiff noticed that the contract had not been signed by the dealership and he thus requested that Rosenberg sign it. The employee, instead, signed the contract in plaintiff's presence. Rosenberg, however, testified that he initialed the Agreement.
Plaintiff testified that his next contact with Rosenberg was on May 11, 1997, when he called Rosenberg to discuss the Prowler's list price. They agreed that the information they had received was that the manufacturer's list price would be $39,000.
On May 23, 1997, Salvatore Palandri entered into a contract with defendant to purchase a 1997 Plymouth Prowler. His contract reflects a purchase price of "50,000 tax lic doc" and a $10,000 deposit. It further states that Palandri would receive the "first one delivered to [the] dealership." Palandri testified that he wrote a check for his deposit on the same day that he entered into the contract. Palandri stated that his initial discussions with Rosenberg about the Prowler, however, occurred about one to three months before the contract date.
C. August 11 Conversation
Plaintiff testified that the next conversation that the parties had occurred on August 11, 1997. Plaintiff stated that Rosenberg informed plaintiff that no Prowlers would be delivered to the Midwest and that he would be returning plaintiff's check. Plaintiff requested assurance that, should defendant receive a vehicle, it would be his. Rosenberg said that it would. Plaintiff then requested assurance in writing, and Rosenberg stated that he would check with his brother. He also indicated that he was not certain that plaintiff was the first person who had a contract for a Prowler.
Rosenberg testified about this conversation as follows. Plaintiff inquired whether defendant would receive any cars and he replied that he had "no guarantees at this time." Rosenberg never understood that no Prowlers would be delivered to the Midwest. The conversation consisted of nothing more than this discussion. Rosenberg denied having stated whether the car belonged to plaintiff or that he would have to check with his brother.
Plaintiff testified that he called several dealers to check on the availability of Prowlers. He believed that he was the first customer to place an order for a Prowler because plaintiff and Rosenberg had to discuss the potential list price for the vehicle.
D. September 5 Conversation
Plaintiff testified that he called Rosenberg on September 5 to inquire if Rosenberg had received any additional information about the Prowler. Rosenberg indicated that he had not. Plaintiff then asked for confirmation that if defendant received a car it would be allocated to plaintiff, and Rosenberg stated that it would. Plaintiff stated that Rosenberg did not mention a contract with Palandri.
Plaintiff next testified that he attended a Chrysler customer appreciation event at Great America on September 19 and spoke to a company representative about the Prowler. Two days later, the representative sent him a fax that contained a tentative list of dealers who were to receive Prowlers. Defendant's name was on the list.
F. September 22 Conversation
Plaintiff testified that he called Rosenberg on September 22 to notify him that his dealership was on a list of dealers due to receive Prowlers. Rosenberg informed plaintiff that he would not sell plaintiff a car because plaintiff had gone behind Rosenberg's back and that contacting Chrysler would cause Rosenberg problems. Rosenberg also stated that plaintiff was not the first person with whom he contracted to sell a Prowler. Plaintiff protested and Rosenberg informed him that he did not sign the contract and would not sell plaintiff the car. Based on this and previous conversations with Rosenberg, plaintiff did not believe that he would be able to purchase a Prowler from defendant.
Rosenberg testified that he had a conversation at this time with plaintiff about the Great America show and that he told plaintiff that he was "pretty sure," given the dealership's sales, that it would receive at least one car. When plaintiff requested confirmation that it would be his car, Rosenberg told him that the car was already "committed."
G. Plaintiff's Purchase of a Prowler
Beginning on September 23, 1997, plaintiff contacted 38 Chrysler-Plymouth dealerships to inquire about purchasing a 1997 Prowler, but did not obtain one. Plaintiff had "serious doubts" about whether Rosenberg would deliver to him a Prowler.
On October 24, 1997, plaintiff attended a Prowler coming-out party at the Hard Rock Café and saw a purple Prowler in the parking lot with a sign in its window that had defendant's name written on it. On October 25, plaintiff went to defendant's showroom and saw a Prowler parked there. He found Rosenberg and informed him that he was there to pick up his car. Rosenberg stated that he was not going to sell plaintiff the car and that he did not want to do business with him. Later that day, plaintiff purchased a Prowler from another dealer for $77,706.
On October 27, 1997, defendant sold the only Prowler it received in that year to Palandri for a total sale price of $54,859, including his $10,000 deposit.
In November 1997, plaintiff directed his attorney to send defendant a demand letter to purchase a Prowler. Plaintiff testified that he was prepared to purchase a vehicle from defendant even though he had already purchased one elsewhere. Plaintiff continued to research prices for Prowlers and, by January 1998, had not seen a price lower than the $77,706 he had paid for his vehicle. On January 7, 1998, plaintiff received his $5,000 deposit back from defendant. On April 23, 1998, plaintiff sued defendant for breach of contract. Defendant moved to dismiss plaintiff's complaint (735 ILCS 5/2--619.1 (West 1998)), and the motion was granted. Plaintiff appealed, and this court reversed and remanded the cause for an evidentiary hearing to determine the meaning of the contract (Hessler v. Crystal Lake Chrysler Plymouth, Inc., No. 2--98--1367 (1999) (unpublished order under Supreme Court Rule 23)). This court found the contract ambiguous and further found that plaintiff could prove a set of facts to show that defendant breached the contract.
Following a bench trial, the court entered judgment for plaintiff and awarded him $29,853 in damages. It concluded that defendant breached the Agreement and that plaintiff properly covered by purchasing a replacement vehicle for $29,853 more than the contract price. Further, the court found that the term "ASAP" "is not want of meaning"; that Rosenberg testified that it means "if and when a car is delivered" and "as soon as something can be done[,] do it." The court found credible plaintiff's description of at least two conversations with Rosenberg, during which Rosenberg confirmed that, if defendant took delivery of a purple Prowler, it would be sold to plaintiff. It concluded that delivery of a Prowler was to be as soon as possible and that defendant was on the road to repudiating the contract when it entered into a contract with Palandri in May 1997. The trial court also concluded that defendant repudiated its contract in September and October of 1997 when Rosenberg told plaintiff that he would not sell ...