Motive Parts Co. of America, Inc. v. Robinson

• Decision Date: 07 October 1977
• Docket Number: No. 76-513,76-513
• Citation: 53 Ill.App.3d 935,369 N.E.2d 119,11 Ill.Dec. 665
• Parties: , 11 Ill.Dec. 665 MOTIVE PARTS COMPANY OF AMERICA, INC., an Illinois Corporation, Plaintiff-Appellant, v. Sheldon R. ROBINSON, Individually and d/b/a Robinson Automotive Supply Company, Defendant-Appellee.
• Court: United States Appellate Court of Illinois

Page 119

369 N.E.2d 119

53 Ill.App.3d 935, 11 Ill.Dec. 665

MOTIVE PARTS COMPANY OF AMERICA, INC., an Illinois

Corporation, Plaintiff-Appellant, v. Sheldon R. ROBINSON, Individually and d/b/a Robinson

Automotive Supply Company, Defendant-Appellee.

No. 76-513.

Appellate Court of Illinois, First District, Fifth Division.

Oct. 7, 1977.

[11 Ill.Dec. 667] Arnstein & Levin, Chicago, for plaintiff-appellant

Gerald B. Saltzberg, Fishman & Fishman, Chicago, for defendant-appellee; Sidney Z. Karasik, Chicago, of counsel.

WILSON, Justice.

This is an appeal from a judgment finding defendant not liable for goods allegedly purchased by him. Plaintiff raises two issues on appeal: (1) whether defendant's failure to object to statements of account mailed to him constitutes an acceptance of the accuracy of the figures listed thereon and a promise to pay the balance due; and (2) whether an executory accord was created during a conversation between defendant and one of plaintiff's employees. We affirm.

Plaintiff is a wholesale dealer in automotive parts and defendant is a distributor of such parts. Each business day morning defendant would determine the extent to which he could fill his customers' orders from his small parts inventory. He would then order parts he could not supply from plaintiff and other suppliers. Whenever he ordered parts from plaintiff he would telephone plaintiff's Milwaukee Avenue store and speak to the store manager or one of several other store employees. The ordered items would then be drawn from the store's stock and placed on a delivery counter. Plaintiff kept a charge plate at the store which reflected defendant's name and address. The store manager or one of the store's employees would use this plate in the preparation of invoices. After the charge plate was used to imprint defendant's name and address on a three-copy, carbon interleaved invoice, the items ordered were listed and the white copy of the invoice was placed on the delivery counter with defendant's order. Either defendant or his delivery driver would go to plaintiff's store, find the parts ordered and the white copy on the delivery counter, compare the parts with the items listed on the white copy, mark the white copy to indicate that the items listed were actually received, take the parts and the white copy and deliver the parts to customers. The store kept the yellow copy of the invoice and sent the pink copy to plaintiff's central office. At plaintiff's office information on the pink copy was entered in an accounts receivable ledger. Using this ledger plaintiff's employees prepared a statement every month showing the status of defendant's account as of the 25th of the month and mailed this statement to defendant. Defendant denied receipt of these monthly statements. After receiving the goods he ordered from plaintiff, defendant would place the white copy Defendant testified that he had paid for all of the goods he ordered and received from plaintiff. Plaintiff claims a balance due of $8,643.09. Following a bench trial the trial court concluded that plaintiff had proved a statement of account but not an account stated. It found that plaintiff had offered no proof of delivery of parts in the alleged sales except an account and copies of invoices bearing no indication of receipt of the merchandise listed thereon. It stated that this proof did not even warrant an assumption of delivery. Accordingly, plaintiff's proof of delivery was found to be insufficient to create liability.

[11 Ill.Dec. 668] of the invoice in a file designated by plaintiff's name. Once a month he corrected pricing errors, deducted trade discounts and totaled the invoices. Then he would prepare a check for the sum he [53 Ill.App.3d 938] arrived at through this procedure and deliver it to plaintiff's store between the 20th and the end of the month.

OPINION

The first issue raised by plaintiff on appeal is whether defendant's failure to object to the statements of account that were mailed to him constitutes an acceptance of the accuracy of the figures listed thereon and a promise to pay the balance due.

Plaintiff appears to argue that if a creditor mails a statement of account to a debtor and the debtor retains it without objection for more than a reasonable time, assent to its correctness is implied and an account stated is created.

The concept of "account stated" has been explicated in several definitions. For example, it has been defined as an agreement between parties who have had previous transactions of a monetary character that all the items of the accounts representing such transactions are true and that the balance struck is correct, together with a promise, express or implied, for the payment of such balance. (See, e. g., Soft Water Service, Inc. v. M. Suson Enterprises, Inc. (1976), 39 Ill.App.3d 1035, at 1040, 351 N.E.2d 264; Malkov Lumber Co. v. Wolf (1971), 3 Ill.App.3d 52, at 54, 278 N.E.2d 481; Wolford Morris Sales, Inc. v. Weiner (1966), 75 Ill.App.2d 238, at 249, 221 N.E.2d 308; Pure Torpedo Corp. v. Nation (1945), 327 Ill.App. 28, at 32, 63 N.E.2d 600.) It has also been defined as an agreement between two parties which constitutes a new and binding determination of the balance due on indebtedness arising out of previous transactions of a monetary character, containing a promise, express or implied, that the debtor shall pay the full amount of the agreed balance to the creditor. (See Canadian Ace Brewing Co. v. Swiftsure Beer Co. (1958), 17 Ill.App.2d 54, at 60, 149 N.E.2d 442.) The agreement mentioned in these definitions must, of course, manifest the mutual assent of the debtor and creditor. (See Canadian Ace Brewing Co.) The meeting of the parties' minds upon the correctness of an account is usually the result of one party rendering a statement of account and the other party acquiescing thereto. (See Pure Torpedo Corp.) The form of the acquiescence or assent is immaterial, however, and the meeting of minds may be inferred from the conduct of the parties and the circumstances of the case. (See Pure Torpedo Corp.,327 Ill.App. at 32-33, 63 N.E.2d 600.) For example, where a statement of account is rendered by one party to another and is retained by the latter beyond a reasonable time without objection, the retention of the statement of account without objection within a reasonable time constitutes an acknowledgment and recognition by the latter of the correctness of the account and establishes an account stated. See Malkov Lumber Co., 3 Ill.App.3d at 54-55, 278 N.E.2d 481; Wolford Morris Sales, Inc., 75 Ill.App.2d at 250, 221 N.E.2d 308; Canadian Ace Brewing Co.; Pure Torpedo Corp., 327 Ill.App. at 33, 63 N.E.2d 600.

The manager of plaintiff's Milwaukee Avenue store, defendant and plaintiff's controller testified at trial. Defendant testified that he owned Robinson Automotive Supply Company and indicated that he had operated this company since sometime in 1968. His business was located at 3720 West Dempster Street in Skokie, Illinois for approximately five years. In November of 1973, he moved to 5500 West Touhy Avenue in Skokie. From some point during either 1969 or 1970 to June or July of 1974, he purchased goods from plaintiff's Milwaukee Avenue store. When called as an adverse witness and asked if he ever received at either his old or his new location monthly statements reflecting purchases from plaintiff and a balance due, defendant said he had never received one. Later, during direct testimony, when asked if he had ever received monthly statements covering the period of October, 1972, to August, 1974, at his place of business, defendant said he did not remember seeing any of them. On cross-examination he repeated this statement and went on to say that between 1972 and 1974 he was the only recipient of the store's mail.

William Schwartz, plaintiff's controller, testified that there was no company policy of requiring defendant to sign any of the copies of the invoice when items were picked up. He explained that when a pink copy is received at the office, it is posted to the customer's account in plaintiff's accounts receivable ledger. A monthly statement showing all transactions and payments during the month and the balance due is prepared in duplicate from this ledger. The original is mailed to the customer and the copy is kept at the office. Such monthly statements were mailed to defendant's store during the period of October, 1972, through August, 1974. Reproductions of plaintiff's copies of these statements were admitted into evidence. According to this witness, the original of each of these copies was mailed to the address shown on these copies. Under his supervision each original was folded and put in a window envelope so that defendant's address could be seen through the window. Postage was then applied to the envelopes and they were mailed. The post office never returned any of these statements to plaintiff's office and defendant never complained about an error on any of them.

Plaintiff's argument relies upon an implicit premise, viz., the presumption that a document properly addressed and mailed is received by the addressee. (See Dick v. Zimmerman (1904), 207 Ill. 636, at 639, 69 N.E. 754.) Plaintiff appears to allege that defendant began his practice of not paying for all of the parts he purchased at some point in late 1972, and that over the following two years his balance grew until it reached the sum claimed in late 1974. Until November of 1973 defendant was located at 3720 West Dempster Street in Skokie. Beginning with the October 25, 1972, statement and ending with the November 25, 1973, statement, which shows a balance due of $2,606.90, the monthly statements were sent to "3720 Dempster" in Skokie. In November of 1973, defendant moved his store to 5500 West...