Oak Trust and Sav. Bank v. Annerino

• Decision Date: 25 September 1978
• Docket Number: No. 77-498,77-498
• Citation: 381 N.E.2d 1389,64 Ill.App.3d 1030,21 Ill.Dec. 704
• Court: United States Appellate Court of Illinois
• Parties: , 21 Ill.Dec. 704 OAK TRUST & SAVINGS BANK, Plaintiff-Appellee, v. John A. ANNERINO, Defendant-Appellant.

Page 1389

381 N.E.2d 1389

64 Ill.App.3d 1030, 21 Ill.Dec. 704

OAK TRUST & SAVINGS BANK, Plaintiff-Appellee, v. John A. ANNERINO, Defendant-Appellant.

No. 77-498.

Appellate Court of Illinois, First District, First Division.

Sept. 25, 1978.

John C. Ambrose, Chicago, for defendant-appellant.

Robert L. Berkover, Chicago (McCracken & Walsh, Chicago, of counsel), for plaintiff-appellee.

O'CONNOR, Justice:

Oak Trust & Savings Bank (plaintiff) sued John A. Annerino (defendant) to recover the balance due on two checks drawn by defendant, payable to the order of plaintiff. Plaintiff's motion for summary judgment was granted and defendant appeals, arguing that a genuine issue of material fact exists which precludes summary judgment and an affidavit submitted in support of plaintiff's motion sets forth conclusions, not evidentiary facts.

Plaintiff's complaint alleges that on June 22, 1974, defendant and Raphael Tyler went to Oak Trust & Savings Bank to pay a loan which Tyler owed plaintiff in order to obtain a release of lien on Tyler's automobile. Defendant drew two checks payable to plaintiff for a total of $2,549.65. In return for the checks, defendant received the title to Tyler's automobile, plaintiff's lien stamped "Satisfied" and the original installment loan contract stamped "Paid." Plaintiff presented the checks to defendant's drawee-bank, which refused to pay the checks because the defendant had stopped payment on them.

After his motion to dismiss for failure to comply with the Statute of Frauds was denied, defendant filed his answer, which admitted that he had delivered the checks as alleged, stated he had insufficient knowledge concerning the presentment and dishonor of the checks and denied all the other allegations of plaintiff's complaint.

Plaintiff moved for summary judgment. In support of its motion for summary judgment, plaintiff submitted defendant's deposition testimony. At his deposition, defendant stated that on June 22, 1974, he and Tyler went to the bank to pay off the loan on Tyler's Pontiac automobile. The Pontiac was to have been "traded in" for a new Cadillac that same day. Defendant was also lending more money to Tyler for the Cadillac. The title to the Cadillac was to have been in defendant's name. Defendant stated that he stopped payment on the checks which he had delivered to plaintiff because he found out that Tyler had not put the Cadillac title in defendant's name. He stopped payment on the checks to prevent Tyler from making a fool of him. The Cadillac dealer took Tyler's Pontiac in trade on June 22, 1974. The dealer would have taken the Pontiac in trade only if Tyler had title to it, but he did not know for a fact whether Tyler had the title. Defendant said Mr. Healy from the bank said Annerino should get the title because he was paying the money.

The affidavit of Terrance Healy, an officer of plaintiff, was also submitted in support of plaintiff's motion. Healy stated that after defendant insisted his checks were good and produced a $20,000 deposit slip for his checking account, Healy agreed to exchange the collateral installment note, stamp it paid and release the lien on Tyler's Pontiac to defendant and Tyler. Healy further stated that he delivered the note, stamped "Paid", and the lien to defendant and Tyler when he accepted defendant's checks.

Defendant's answer to plaintiff's motion for summary judgment denied that he received the note and lien. In his counter-affidavit, defendant stated that Healy told him they had no deal until the checks cleared. Defendant further stated that delivery of the title to Tyler was contrary to Healy's statement that the title would not be delivered until the checks cleared.

Defendant contends that there is a genuine issue of material fact because there is a question regarding the consideration for his checks. Plaintiff argues that consideration for a negotiable instrument is presumed to exist and unless there is clear and convincing evidence of a failure of consideration, the presumption remains unrebutted.

Plaintiff's officer's affidavit states clearly that the note and release...