Artoe v. Mann

• Decision Date: 13 February 1976
• Docket Number: No. 60585,60585
• Citation: 36 Ill.App.3d 204,343 N.E.2d 647
• Parties: Lee ARTOE, d/b/a Lee Artoe Carbon Company, Plaintiff-Appellant, v. Richard MANN et al., Defendants-Appellees.
• Court: United States Appellate Court of Illinois

Page 647

343 N.E.2d 647

36 Ill.App.3d 204

Lee ARTOE, d/b/a Lee Artoe Carbon Company, Plaintiff-Appellant, v. Richard MANN et al., Defendants-Appellees.

No. 60585.

Appellate Court of Illinois, First District, Fifth Division.

Feb. 13, 1976.

L. Robert Artoe, Chicago, for plaintiff-appellant.

John K. Kallman, Chicago (Sidley & Austin, Chicago, of counsel), for defendants-appellees.

BARRETT, Justice.

This is an appeal from an order of the circuit court dismissing a complaint brought by plaintiff, an Illinois resident, against three defendants, one an individual, a resident of San Francisco, California and two corporate entities, one a California corporation and the other a Nevada corporation, both doing business only in California and Oregon, to recover a part of the selling price of certain motion picture projection equipment shipped by plaintiff to defendant Redwood on the order of defendant Theatre Management Inc., hereinafter TMI. Redwood is wholly owned by TMI. Defendant Mann is president of both.

The action was commenced on the plaintiff's theory that the Illinois so-called 'Long Arm Statute' (Ill.Rev.Stat.1971, ch. 110, par. 17), applied to the transaction involved and thereby conferred IN PERSONAM jurisdiction over the defendants.

The facts pertinent to our consideration are as follows. Plaintiff is in the business of selling motion picture projection equipment, some manfactured by him and some by other manufacturers. Defendants build and operate motion picture theatres in California and Oregon, the principal offices of the corporate defendants being in San Francisco, California. On May 20, 1971 plaintiff visited the office of defendant TMI to attempt to sell his product. He did not succeed beyond interesting TMI in his equipment. There followed some telephone discussions, some initiated by plaintiff and some by TMI. In August or September, 1971 plaintiff again visited TMI. As a result of that visit TMI mailed its purchase order to plaintiff, which order included a provision for installation of, or supervision over, such installation at a stated price plus transportation expenses for the installer or supervisor of the installation. We find it fair to infer that the purchase order was a confirmation of an agreement to purchase entered into on plaintiff's visit to TMI in August or September. When the equipment was received and installed under supervision of plaintiff, it failed to function properly and plaintiff sent a representative to attempt to correct the problem. He failed and defendants obtained replacement equipment from other sources.

The record is not clear as to whether all of plaintiff's equipment was returned but plaintiff did credit defendants with the greater part of the purchase price, but claims a balance due of $3,144.49 as against the original purchase order for an amount in excess of $13,000.

Later, in February, 1972, plaintiff again visited the office of TMI in an attempt to collect freight charges to the point of delivery. TMI refused. Apparently at that time no demand was made for payment of the amount later claimed to be due and owing. It appears from the record that neither the individual defendant or a representative of the corporate defendants was ever in the State of Illinois with reference to the transaction involved in this cause. It is well to note here that defendant Mann as president of the two corporate defendants had nothing to do...