Fruehauf Trailer Co. v. Lydick , 325 Ill. App. 28 ( 1944 )

Mr. Presiding Justice Sullivan

delivered the opinion of the court.

This action was brought by plaintiff, Fruehauf Trailer Company, to recover a balance of $336.98 claimed to be due from defendant, Albert M. Lydick, for repairs made to one of his trailers. Defendant filed a counterclaim for damages alleged to have resulted from plaintiff’s wrongful refusal to deliver to him a bill of sale for another and different trailer which he had purchased from the Fruehauf Trailer Company and fully paid for. The case was tried before the court without a jury and judgment for $211 was entered in favor of plaintiff on its statement of claim and judgment was entered against defendant on his counterclaim. Defendant appeals from both judgments.

Although plaintiff’s statement of claim averred that the balance due it for repairs to one of defendant’s trailers was $336.98, at the opening of the trial its counsel offered to prove that the balance due for such repairs was $211, which offer defendant accepted.

Defendant’s amended counterclaim alleged substantially that on February 15, 1941 he purchased a Fruehauf trailer from plaintiff on a conditional sale contract; that he completed the payments thereon on September 24, 1942; that “since September 24, 1942, the defendant has requested from the plaintiff a bill of sale or other evidence of title to the said trailer but the plaintiff has refused and still refuses to give the defendant a bill of sale to the said trailer and has based its refusal on the unwarranted grounds that the defendant was indebted to the plaintiff on the claim herein sued upon”; that “because of the plaintiff’s refusal to give the defendant the bill of sale or other evidence of title, the defendant has been unable to obtain an Illinois license for the said trailer and has, therefore, been unable to use the said trailer”; that “there is a great demand for the use of trailers such as defendant’s during the present emergent conditions and has been since the start of the war and if the defendant had had the use of the said trailer since October, 1942, he would have earned from the use of the said trailer approximately $10.00 per day”; and that “plaintiff has thereby deprived the defendant of the use of the said trailer and prevented him from earning a sum approximating $2,100.00 and this action upon the part of the plaintiff has been wilful and malicious and unwarranted.” The counterclaim concluded with a prayer for the allowance "to defendant of $2,100 damages against plaintiff. Plaintiff’s answer to the amended counterclaim consisted merely of a general denial of the facts alleged therein.

The conditional sale contract contained the following provision:

“Title to said goods is now and shall remain in Seller until the sum aforesaid, with interest, shall be fully paid. When the total purchase price herein provided for has been paid and all conditions hereunder have been satisfied by the buyer, it is agreed that the title papers to said goods, together with proper evidence of satisfaction of this contract, shall be delivered to the buyer.”

Section 17 of the Illinois Motor Vehicle Act (par. 18, ch. 95½, Ill. Rev. Stat. 1943 [Jones Ill. Stats. Ann. 85.018]) provides in part as follows:

“Upon the sale of a motor vehicle by a manufacturer or dealer, he shall thereupon give to the purchaser a bill of sale setting forth the name and address of the purchaser, the date of purchase, together with a description of such motor vehicle . . . . ”

Defendant made his final payment on the trailer on September 24,1942 and at that time he did not receive a bill of sale for said trailer, although he demanded same. His persistent and repeated demands for a bill of sale over a period of several months were evaded and he finally received a letter from plaintiff, dated January 22, 1943, which contained the following statement :

“You asked that if we are unable to find this title to please send you a notarized bill of sale, covering this unit. However, in checking my records, I find that you are indebted to us for approximately $350.00 which has been turned over to the United Mercantile Agency, in Louisville, Ky. for collection and until this account is settled in full, we do not see our way clear to issue a title to this trailer.

“If you will take care of this item with the United Mercantile Agency and have them advise us that the account has been settled, we will then furnish you with a bill of sale.”

Prior to the time the trailer in question was completely paid for it had not been operated in Illinois but when the final payment was made thereon defendant apprised plaintiff that he wanted to use it in this state. Plaintiff, being engaged in the manufacture and sale of trailers and having a place of business in this state, knew or should have known that defendant could not operate his trailer in Illinois without procuring a license therefor and that before he could secure a license he first had to get a certificate of title, which the secretary of state would not issue to him without a bill of sale showing his title to and ownership of the trailer. There is evidence in the record that defendant and his wife attempted on numerous occasions to secure a certificate of title and license without a bill of sale but they were unsuccessful in such attempts because the secretary of state was not authorized to receive an application for a certificate of title unless the application included “a bill of sale or statement of transfer by the seller.” (Sec. 4(b), par. 77, ch. 95½, Ill. Rev. Stat. 1943 [Jones Ill. Stats. Ann. 85.078, subpar. (b)]).

It will be noted from the foregoing excerpt from plaintiff’s letter to defendant of January 22, 1943 that the only reason advanced therein for its refusal to issue a bill of sale to defendant was the latter’s failure to pay plaintiff an indebtedness of $350. It appears that the indebtednéss referred to was for repairs made to a different trailer and, while defendant admitted that he owed plaintiff for work done on the other trailer, he insisted that the amount claimed for such repairs was exorbitant. That such claim was exorbitant is indicated by plaintiff’s willingness upon the trial to accept $211 for the repairs, although in its letter of January 22, 1943, it claimed $350 therefor and in its statement of claim $336.98. Defendant was willing and anxious at all times to pay what he actually owed for the repairs. In any event the transaction involving plaintiff’s claim for repairs was entirely unrelated to defendant’s0right to a bill of sale for the trailer which he had fully paid for. Plaintiff’s withholding of the bill of sale until defendant paid the admittedly exorbitant charge for repairs to another trailer can only be regarded as a sharp and tricky practice adopted by it to .compel defendant to pay an unfair bill.

That there was no justification for its refusal to give defendant a bill of sale for the trailer must be conceded by plaintiff, since it offered no valid explanation or reason for such refusal in the trial court and.it offers none here. There can be no question but. that by reason of its wrongful conduct in refusing to issue to defendant a bill of sale, “title papers” or “evidence of the satisfaction of the contract” plaintiff breached its contract and violated its statutory duty and thereby unlawfully deprived defendant of the use of his trailer. Neither can there be any question but that defendant is entitled to recover damages for the loss of the use of his trailer. This brings us to the proper measure of damages applicable to this case, which presents a sui generis situation as to damages due to war conditions.

Although the trial judge apparently recognized that the enforced idleness of defendant’s trailer resulted from plaintiff’s wrongful conduct in deliberately refusing to issue a bill of sale therefor, he held that defendant was not entitled to recover any damages and stated his reasons for so holding as follows:

“It seems to me that the damages claimed are too remote or indirect. If defendant was entitled to a Bill of Sale or other title papers after payment of the contract had been made in full and such Bill of Sale or other title papers, were refused, then it seems to me the measure of damages would be the fair and reasonable costs of compelling the plaintiff to do what it should have done under the contract. The damages claimed are not the natural and probable result of such refusal.” The trial judge apparently assumed that defendant’s only recourse was under the provisions of the Uniform Motor Vehicle Anti-Theft Act, hereinafter discussed, which, as will be seen, did not apply.

In its endeavor to sustain the refusal of the trial court to find the issues in favor of defendant on his amended counterclaim, plaintiff contends that “defendant’s failure to obtain an Illinois title and license resulted from his own neglect, not from plaintiff’s refusal to give him a bill of sale,” and cites in support of -such contention the following portion of section 4(b) of the Uniform Motor Vehicle Anti-Theft Act (par. 77, ch. 95½, Ill. Rev. Stat. 1943 [Jones Ill. Stats. 85.078, subpar. (b)]):

“. . . Where application is made for a certificate of title for a new or used motor vehicle not previously titled in this State and not sold or transferred under any of the above enumerated conditions establishing a prima facie case of ownership in the purchaser or transferee, the Secretary of State shall not issue a certificate of title therefor, but shall, upon payment to him by said applicant of the sum of twenty dollars ($20.00) as a fee for title investigation, cause a thorough investigation to be made of the source and antecedents of such title and the right of such applicant to a certificate of title.

“If, as a result of any investigation of title herein authorized, the Secretary of State is satisfied as to the validity of the title and ownership of the applicant, he shall issue a certificate of title in accordance with the terms of this Act.”

This portion of section 4(b) of the statute has no application to the situation presented here. Reference is made therein to motor vehicles “not previously titled in this State and not sold or transferred under any of the above enumerated conditions establishing a prima facie case of qjvnership. ” The sale of the trailer to defendant was made under one of the “above enumerated conditions” establishing a prima facie case of ownership in him but he was unable to present prima facie evidence of his ownership solely because of plaintiff’s unwarranted and wrongful refusal to give him the bill of sale he was legally entitled to receive. Preceding the portion of section 4(b) quoted by plaintiff that section also contains the following provision: “Whenever application is made for a certificate of title for a motor vehicle for which a certificate of title has not previously been issued in this State, such application shall include a bill of sale or statement of transfer by the seller. . . .” Because of defendant’s inability to include a bill of sale in his application for certificate of title the secretary of state was neither authorized nor required under section 4 (b) of the Motor Vehicle Anti-Theft Act to accept an application from him for a certificate of title or to investigate his title to the trailer. Our attention is also called to sections 9(a) and 9(b) of the Uniform Motor Vehicle Anti-Theft Act (par. 82, ch. 95½, Ill. Rev. Stat. 1943 [Jones Ill. Stats. Ann. 85.083, subpars. (a), (b)]), which provide in part as follows: “If the Secretary of State shall determine that an applicant for a Certificate of Title to a motor vehicle is not entitled thereto, he may refuse to issue such certificate and to register such motor vehicle .... Any person denied a Certificate of Title . . . may, within ninety (90) days thereafter, file a petition in the Circuit Court . . . for a hearing or review, and such court . . . shall thereupon hear such cause and enter such order as may be proper. ’ ’ The foregoing provision for review by the circuit court of the action of the secretary of state in refusing to issue a certificate of title cannot apply here since, because of plaintiff’s wrongful conduct, defendant never could or did present a proper or valid application for a certificate of title upon which the secretary of state was authorized? or required to take any action.

Other than its reliance upon sections 4(b) and 9(a) and 9(b) of the Uniform Motor Vehicle Anti-Theft Act, plaintiff makes no effort in its brief to support the proposition advanced by the trial court that “the measure of damages would be the fair and reasonable costs of compelling the plaintiff to do what it should have done under the contract.” The trial court did not point out and neither does plaintiff in its brief any prompt and certain remedy available to defendant to compel plaintiff to give him a bill of sale.

It is contended that “the damages sought to be recovered by defendant were speculative and remote, for which no recovery could be had.” It is sufficient answer to this contention to state that plaintiff knew that defendant was in the trucking business, that there was an unusual demand for the use of trailers of this kind and that defendant would suffer loss if he was unable to use the trailer because of its refusal to give him a bill of sale so that he could procure a certificate of title and a license. Mot only are the damages claimed by the defendant neither remote nor speculative but they are such as plaintiff must have known would result directly and as a natural and probable consequence of its refusal to issue the bill of sale.

Plaintiff contends that “defendant failed to mitigate the alleged damages and failed to exercise reasonable care and diligence to avoid loss and to minimize any resulting damages.” We are not unmindful of the rule that a party being damaged cannot stand by and suffer the injury to continue and increase, without reasonable effort to prevent further loss. But defendant was helpless under the circumstances. He not only made every reasonable effort but every possible effort to prevail upon plaintiff to issue the bill of sale to him. It appears conclusively that defendant was powerless to do any more than he did do to prevent his damages from increasing as a result of plaintiff’s continued wrongful conduct. It was solely within the control of plaintiff to prevent any injurious consequences to defendant by giving him the bill of sale when he was entitled to it. It was also solely within its control to give him a bill of sale on any day thereafter up to the time of the trial and thus prevent his damages from continuing and increasing. It is stated in defendant’s brief and not denied that plaintiff still refuses to issue the bill of sale. Defendant was even precluded from selling the trailer and thereby mitigating the damages because he could not sell it without a certificate of title.

The wrongful conduct of plaintiff had its inception in its endeavor to intimidate and compel defendant to pay an unfair and exorbitant bill for repairs to another trailer by refusing to issue to him a bill of sale for the trailer involved in his counterclaim and, as already shown, such refusal and continued refusal utterly disregarded plaintiff’s contractual and statutory duty. Without fault or neglect on defendant’s part and solely by reason of the deliberate, wrongful and wilful conduct of plaintiff, Lydiek was deprived of the use of his trailer and we are impelled to hold that plaintiff should be required to pay such damages as defendant sustained as a result of the loss of the use of his trailer.

In our opinion the proper measure of damages for plaintiff’s wrongful conduct in depriving defendant of the use of his trailer is the reasonable use or rental value thereof (sec. 83 (c), p. 600, 25 C. J. S.). Defendant’s uncontradicted evidence shows clearly that the reasonable use or rental value of this twenty-four foot trailer was from $7 to $10 per day. Having shown the reasonable use or rental value of the trailer per day, it was also incumbent upon defendant to prove the actual number of days it could and would have been used in his business or could and would have been rented, if he had a license for it.

Defendant Albert M. Lydick testified that from the time he purchased the trailer in question until it was completely paid for and plaintiff refused to give him a bill of sale for it, he used it continuously seven days a week; that from December, 1941 to the time of the trial “there has been a big demand for trailers and tractors, being that the country is at'war, there has been a terrific demand because ODT had closed all building of new equipment, and even old equipment is pulled out of the junk yards and reconditioned in order to do hauling today. The equipment is very scarce ... I have not been able to license it and I have never been able to use it” since “the forepart of October, 1942”; and that from “the beginning of October, 1942 down to the present time,” requests or demands were made of me “for the use of a trailer for hauling or for entering into hauling contracts or for doing trucking and leasing . . . the demands come in there regularly, I have had as high as two a day, and there was not a week went by but what I would get a demand for the equipment. ’ ’

Earl Beaty, one of the three experts who testified as to the fair and .reasonable use or rental value of the trailer, also stated that “in December of ’41 the Government froze all sales on the selling of new equipment, tractors and trailers and due to that fact it created an unusual demand for the old equipment and due to the fact that there is considerable tonnage with new manufacturing, the operators earned considerably more money the following years, than previously”; and that there was a steady demand “from then until now. ’ ’

Eleanor Lydick after stating that she was the bookkeeper and general helper of her husband in his trucking business, testified in part on her direct examination as follows:

‘ ‘ Q. Are you familiar with the trailer that is in dispute here between Fruehauf and yourself? A. Tes, I am. Q. Do you know the trailer? A. Tes. Q. You have seen it? A. Yes. Q. Originally and continuously? A. Yes. Q. Since October 1942 and before? A. Yes. Q. Has that trailer been used? A. We used it for a period of time . . . and it amounts to seventy-five days, to be exact. Q. Seventy-five days? A. Yes sir. . . . Q. Mrs. Lydick, to your knowledge, do you know how many days this twenty-four foot van of Fruehauf that is in dispute here was not used by you or by Mr. Lydick in your business because of your inability to obtain a certificate of title and a license? A. I figured out 397 days. Q. 397 days? A. Yes. Q. When does that start? A. That starts on October 16th of 1942. Q. And terminates when? A. Terminates the end of January of this year [1944]. . . . Q. And does that exclude the 75 days that you have referred to? A. Yes, it does. Q. And so there is a net of 397 days? A. That is right.”

It also appeared that defendant used the trailer illegally without an Illinois license for the 75 days Mrs. Lydick referred to in her testimony; and that after defendant had rented another trailer for two or three weeks at $72 a week, he purchased same and used it in his business for a considerable period and then sold it at a profit.

The foregoing comprises all the evidence in the record concerning the constant demand for the use of trailers generally and for the use of the trailer in question. Not only was it shown by Lydick’s testimony that there was a persistent, steady demand for the use of his trailer but his wife testified that the trailer “was not used” in defendant’s trucking business for 397 days between October 16, 1942 and January 31, 1944, solely because he was unable “to obtain a certificate of title and a license.” Mrs. Lydick’s testimony made out a prima facie case that the trailer could and would have been used 397 days in her husband’s business if plaintiff had not wrongfully deprived him of its use by its unwarranted conduct in refusing to give him a bill of sale. Plaintiff offered no evidence to contradict her testimony and neither was it impeached in any manner.

As has been seen, at some unstated time during the period involved herein defendant purchased another trailer which he used in his business and later sold at a profit. Plaintiff contends that defendant is not entitled to damages for loss of the use of the trailer in question during the period,the newly purchased trailer was used in its place and stead. There is not the slightest merit in this contention. The mere fact that defendant made an advantageous purchase of another trailer instead of renting one to use in his business in place of the Pruehauf trailer cannot inure to plaintiff’s benefit. The fact still remains that defendant lost the use .of his trailer during said period, when it could have, been used or rented if he had a license for it. On the whole, plaintiff’s theory seems -to be that it could wrongfully prevent the use of defendant’s trailer indefinitely and until it had become worthless by refusing to issue the bill of sale to him and the defendant would still have no recourse against it for damages.

We hold that the evidence submitted by defendant meets the test of definiteness required by law to support an award of damages to him on his amended counterclaim for the loss of the use of his trailer for 397 days, which loss at the rate of $7 per day, amounts to $2,779. Said 397 days does not include the 75 days’ illegal use of the trailer by defendant without an Illinois license. Inasmuch as defendant’s ad damvmm was stated to be $2,100 in his amended counterclaim, that is the maximum amount of damages that may be allowed him on said counterclaim. Deducting $211, the amount of damages allowed1 plaintiff on its statement of claim, from the $2,100 which defendant is entitled to recover on Ms amended counterclaim, leaves a balance of $1,889, for wMck amount judgment should be rendered against plaintiff and in favor of defendant.

Inasmuch as this case was tried without a jury it would serve no useful purpose to remand it to the trial court.

For the reasons stated herein the judgments of the municipal court of Chicago are reversed and judgment is entered here for $1,889 against plaintiff and in favor of defendant on the latter’s amended counterclaim.

Judgments reversed and judgment here.

Friend and Scanlan, JJ., concur.