Alden Press, Inc. v. Block and Co., Inc.

• Citation: 173 Ill.App.3d 251,123 Ill.Dec. 26,527 N.E.2d 489
• Decision Date: 20 July 1988
• Docket Number: No. 86-3313,86-3313
• Parties: , 123 Ill.Dec. 26, 7 UCC Rep.Serv.2d 78 ALDEN PRESS, INC., Plaintiff-Appellee, v. BLOCK AND COMPANY, INC., Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 489

527 N.E.2d 489

173 Ill.App.3d 251, 123 Ill.Dec. 26,

7 UCC Rep.Serv.2d 78

ALDEN PRESS, INC., Plaintiff-Appellee, v. BLOCK AND COMPANY, INC., Defendant-Appellant.

No. 86-3313.

Appellate Court of Illinois,

First District, Third Division.

July 20, 1988.

Hinshaw, Culbertson, Moelmann, Hoban & Fuller, Chicago (Robert E. Nord, Mark M. Christerson and Kathryn A. Spalding, of counsel), for defendant-appellant.

Altheimer & Gray, Chicago (Roger B. Harris, and Judy L. Smith, of counsel), for plaintiff-appellee.

Justice FREEMAN delivered the opinion of the court:

Plaintiff, Alden Press Inc., sued defendant, Block and Company, Inc., for breach of contract. The jury returned a verdict for plaintiff for the total amount allegedly due under the contract, $66,389.16. The trial court also awarded plaintiff costs, prejudgment and postjudgment interest. Defendant appeals from the judgment for plaintiff.

Defendant is a mail order company which sells it goods through catalogs. Plaintiff is a printer. In February 1981, defendant contracted with plaintiff for, inter alia, the printing and mailing of 100,000 copies of a Mitchell Block, defendant's president, and Dick Hane, its vice-president of purchasing in 1981, discovered in late March or early April 1981 that the covers of the catalogs were falling off. Block testified that the this problem was significant because the mailing labels were attached to the back covers and if the covers fell off the catalogs would be undeliverable.

                [123 Ill.Dec. 28] bank and cashier equipment catalog, no. 2381.   Plaintiff contracted to "saddle stitch" the catalogs "with 3 wires."   This meant that three staples would be used to hold the catalogs together.  It also agreed to "trim" the catalogs "flush to size."   This meant that the catalogs' covers would be the same size as their pages.  The original quantity of 100,000 was later increased to 125,000.  Under the contract, the catalogs were to be mailed to defendant's customers over a six-month period beginning on April 1, 1981.  After completion of the printing, plaintiff delivered a carton of 50 of the catalogs to defendant on March 30.  Plaintiff mailed 17,888 catalogs on the 31st and delivered an additional 3,120 catalogs to defendant for use by its telemarketing personnel and to be sent to customers.  Defendant held the remaining catalogs in its inventory awaiting further instructions from defendant
                

After being notified by Hane, Dick Sher, plaintiff's salesman in charge of defendant's account, inspected the catalogs with Hane. Scher took some of the catalogs back to plaintiff's plant and showed them to Don Carlson, plaintiff's vice-president of field sales. According to Scher, plaintiff agreed to remedy the problem with the catalogs by reprinting the covers, tearing the old covers off and rebinding the new covers to the existing 96-page catalog bodies.

Thereafter, Dick Hane testified, at a meeting of representatives of both parties, Mitchell Block told plaintiff's representatives that the catalogs were unacceptable and that he wanted a reprint. In response, Scher proposed that the catalogs be put in plastic bags and the mailing labels attached to the bags. That solution was unacceptable to Block. Scher next proposed that the catalog covers be reprinted and rebound to the catalogs. Scher displayed two sample catalogs with white covers "saddle stitched" with two additional staples, for a total of five, and "trimmed flush" with the catalog pages. Mitchell Block approved this solution on the condition that defendant be allowed to review the rebound catalogs before they were mailed by plaintiff.

Thereafter, plaintiff had the catalogs rebound by Frank's Bindery at plaintiff's expense. On April 27, 1981, plaintiff received 50 rebound catalogs from Frank's Bindery which it sent to defendant. A meeting was then held at Mitchell Block's request at which he told Scher and Carlson that he was unhappy with the rebound catalogs but would abide by the decision of his staff. A day or so later, Scher and Hane inspected the rebound catalogs at plaintiff's plant. Scher testified that Hane was satisfied that the catalogs would travel through the mail but reserved final approval of the catalogs until he got back to his office. Thereafter, Hane called Scher and told him that defendant wanted the entire catalog reprinted.

Defendant found the catalogs unacceptable because, inter alia, the covers overlapped the catalog pages rather than being trimmed flush to the pages. As a result, an attempt to open the catalogs would cause them to open at the middle, where the order form was located. Concomitantly, the first 20 pages of the catalog, where the products accounting for 70% of defendant's sales were located, would be bypassed. Defendant felt that this would inhibit impulse purchases of its high volume items.

Notwithstanding defendant's dissatisfaction with the catalogs, it instructed plaintiff to proceed with the second mailing, of 19,379 catalogs, on or about April 30. Mitchell Block testified that he approved the second mailing because he "had no choice" and because a failure to mail any catalogs would have "spelled financial disaster" for defendant. Block also testified that he thereafter called plaintiff's president twice but was unsuccessful in reaching

[123 Ill.Dec. 29] him. Dick Hane testified that he too attempted to reach plaintiff's president but was unsuccessful. Thereafter, Hane contacted Scher, informed him the catalogs were unacceptable and requested that the catalogs be reprinted. Don Carlson telephoned Dick Hane and informed him that plaintiff would not reprint the catalogs. At Carlson's request, Hane wrote a letter to plaintiff, dated May 1st, rejecting the catalogs. On May 5, defendant ordered 2,000 catalogs from plaintiff for office use. Finally, defendant had 80,000 catalogs printed by a second printer. Defendant never paid plaintiff for any of the 125,000 catalogs it printed.

OPINION

Defendant first contends that the trial court erred in denying its motion for judgment notwithstanding the verdict because the evidence established that it had not accepted all of the catalogs. Plaintiff asserts that defendant waived this issue. During its deliberations, the jury asked the trial court what the governing law was if it chose not to award "the entire amount" to either party. Plaintiff notes that defendant did not object to the trial court's answer that the jury had been given the instructions on the law. It also notes that defendant did not propose at that time or earlier that the jury be instructed that it could decide the case on less than an "all or nothing basis." As a result, plaintiff concludes, defendant waived its right to complain that the trial court did not instruct the jury that defendant accepted only some of the catalogs.

Defendant's failure to object to the instruction given in response to the jury's inquiry did not result in a waiver of the error alleged. (See Darda v. Chicago Transit Authority (1968), 100 Ill.App.2d 94, 100, 241 N.E.2d 478 (inquiry on motions for directed verdict and j.n.o.v. assumes that determination will be made in light of correct and applicable law and motion for j.n.o.v. is and must be decided without consideration of argument to jury, instructions or the verdict, which occur after presentation of the evidence).) Rather, the test of waiver of such argument is whether it was presented to the trial court. Here, defendant undeniably argued below that it was entitled to a j.n.o.v. in part because it had not accepted all of the catalogs. It thus properly preserved the issue for purposes of appeal.

Defendant asserts that it was entitled to a j.n.o.v. because the evidence revealed that the catalogs were defective and that defendant never accepted them. Alternatively, defendant asserts the trial court should have: (1) directed a finding that defendant did not accept the catalogs which it did not instruct plaintiff to mail or otherwise use in any manner; and, (2) reduced the verdict accordingly; or, (3) granted a new trial to determine the reasonable value of the catalogs defendant did accept. Defendant asserts that its rejection of the catalogs remaining in plaintiff's possession complied with the requirements of the Uniform Commercial Code-Sales (the Code) (Ill.Rev.Stat.1981, ch. 26, par. 2-201 et seq.).

Plaintiff asserts there was substantial evidence from which the jury could have found and did find that the rebound catalogs "were of good quality." Specifically, plaintiff notes the following: (1) several of the rebound catalogs were introduced into evidence; (2) Barbara Cole, defendant's vice-president of marketing, testified that she never received any complaints about the appearance of the rebound catalogs; (3) Don Carlson testified that plaintiff refused to reprint the catalogs because it concluded that the catalogs were printed properly, as well as any it had printed for defendant and were "a first-class job"; (4) Dennis Uchimoto, plaintiff's expert witness, testified that the approximately 5,000 catalogs he examined were well within industry standards in appearance and appropriateness of binding and trimming and were commercially acceptable.

A j.n.o.v., like a directed verdict, may be entered only where all the evidence, when viewed in its aspect most favorable to the nonmovant, so overwhelmingly favors the movant that no contrary verdict based on the evidence could ever stand. (Pedrick v. Peoria & Eastern R.R. (1967), 37 Ill.2d 494, 229 N.E.2d 504.) In view of the evidence cited by plaintiff, all the evidence, when viewed in its aspect most favorable to plaintiff, does not so overwhelmingly favor defendant's contention that the catalogs were nonconforming to the contract that the verdict for plaintiff cannot stand. That is, the evidence of the nonconformity of the catalogs is not sufficient to warrant the entry of a j.n.o.v. for defendant on the grounds that the catalogs...