No. 2--02--0362

JUSTICE CALLUM delivered the opinion of the court:

Plaintiff, Donald R. Hessler, sued defendant, Crystal Lake Chrysler-Plymouth, Inc., for breach of contract. Following a bench trial, the courtentered judgment for plaintiff and awarded him $29,853 in damages. Defendantappeals, arguing that the trial court erred in (1) concluding that a certain termwas part of the contract; (2) interpreting the term; (3) finding that defendantbreached the contract; and (4) calculating the damages award. We affirm.

I. BACKGROUND

In February 1997, Chrysler Corporation introduced a new promotional vehiclecalled the Plymouth Prowler. However, the company did not reveal whether it wouldmanufacture any of the vehicles. Plaintiff became aware of the vehicle and of itsuncertain production, and, on February 4, 1997, contacted several dealerships toinquire about purchasing a Prowler.

On February 5, 1997, plaintiff met with Gary Rosenberg, co-owner ofdefendant-dealership and signed a "Retail Order for a Motor Vehicle" (hereinafterAgreement). The Agreement, which was filled out primarily by Rosenberg, statedthat the order was for a 1997, V6, two-door, purple Plymouth Prowler. Moreover,it read:

"Customer to pay $5,000 00/100 over list price by manufacturer. Moneyrefundable if can not [deliver] by 12/30/97. Dealer to keep car 2 weeks."

The Agreement also contained a preprinted integration clause, which read asfollows:

"Purchaser agrees that this Order includes all the terms and conditions of[sic] both the face and reverse side hereof, that this Order cancels andsupersedes any prior agreement and as of the date hereof comprises thecomplete and exclusive statement of the terms of the agreement relating tothe subject matters covered hereby, and that THIS ORDER SHALL NOT BECOMEBINDING UNTIL ACCEPTED BY DEALER OR HIS AUTHORIZED REPRESENTATIVE. Purchaser by his execution of this Order acknowledge that he has read itsterms and conditions and has received a true copy of this Order." (Emphasisin original.)

The order also noted that plaintiff had deposited $5,000 by check.

The Agreement contained a box labeled "TO BE DELIVERED ON OR ABOUT." Insidethe box was written "ASAP" in a handwriting and ink different from that in therest of the document. Rosenberg testified that he did not write "ASAP" onplaintiff's order himself. Rather, a salesperson wrote it in the process of"finishing up" the transaction. Rosenberg did not instruct the person to do so,but he routinely delegates to defendant's employees the processing of customerchecks and the dispensing of receipts. Rosenberg stated that the term "ASAP" isused in his business "in lieu of a stock number. Just line it up in order. Assoon as you can get it done, do it." He also testified that "[i]n the literaryform" it means as soon as possible. The Agreement contains another box labeled"STOCK NO.," which was left blank.

Rosenberg testified that plaintiff was the first person to place an orderfor a Prowler. Further, Rosenberg was "pretty sure" that plaintiff's order wasthe first order on which he received a deposit.

Plaintiff testified that he requested that Rosenberg insert language intothe order that provided that plaintiff's money would be returned if no car wasultimately delivered to defendant. He did not ask Rosenberg to insert languagespecifying that plaintiff would receive the first Prowler, but he assumed that hewould receive the first one.

The Agreement contains handwritten initials. Plaintiff testified that,while an employee at the dealership was processing his receipt, plaintiff noticedthat the contract had not been signed by the dealership and he thus requested thatRosenberg sign it. The employee, instead, signed the contract in plaintiff'spresence. Rosenberg, however, testified that he initialed the Agreement.

A. May 11 Conversation

Plaintiff testified that his next contact with Rosenberg was on May 11,1997, when he called Rosenberg to discuss the Prowler's list price. They agreedthat the information they had received was that the manufacturer's list pricewould be $39,000.

B. Palandri's Contract

On May 23, 1997, Salvatore Palandri entered into a contract with defendantto purchase a 1997 Plymouth Prowler. His contract reflects a purchase price of"50,000 + tax + lic + doc" and a $10,000 deposit. It further states that Palandriwould receive the "first one delivered to [the] dealership." Palandri testifiedthat he wrote a check for his deposit on the same day that he entered into thecontract. Palandri stated that his initial discussions with Rosenberg about theProwler, however, occurred about one to three months before the contract date.

C. August 11 Conversation

Plaintiff testified that the next conversation that the parties had occurredon August 11, 1997. Plaintiff stated that Rosenberg informed plaintiff that noProwlers would be delivered to the Midwest and that he would be returningplaintiff's check. Plaintiff requested assurance that, should defendant receivea vehicle, it would be his. Rosenberg said that it would. Plaintiff thenrequested assurance in writing, and Rosenberg stated that he would check with hisbrother. He also indicated that he was not certain that plaintiff was the firstperson who had a contract for a Prowler.

Rosenberg testified about this conversation as follows. Plaintiff inquiredwhether defendant would receive any cars and he replied that he had "no guaranteesat this time." Rosenberg never understood that no Prowlers would be delivered tothe Midwest. The conversation consisted of nothing more than this discussion. Rosenberg denied having stated whether the car belonged to plaintiff or that hewould have to check with his brother.

Plaintiff testified that he called several dealers to check on theavailability of Prowlers. He believed that he was the first customer to place anorder for a Prowler because plaintiff and Rosenberg had to discuss the potentiallist price for the vehicle.

D. September 5 Conversation

Plaintiff testified that he called Rosenberg on September 5 to inquire ifRosenberg had received any additional information about the Prowler. Rosenbergindicated that he had not. Plaintiff then asked for confirmation that ifdefendant received a car it would be allocated to plaintiff, and Rosenberg statedthat it would. Plaintiff stated that Rosenberg did not mention a contract withPalandri.

E. September 19 Trip

Plaintiff next testified that he attended a Chrysler customer appreciationevent at Great America on September 19 and spoke to a company representativeabout the Prowler. Two days later, the representative sent him a fax thatcontained a tentative list of dealers who were to receive Prowlers. Defendant'sname was on the list.

F. September 22 Conversation

Plaintiff testified that he called Rosenberg on September 22 to notify himthat his dealership was on a list of dealers due to receive Prowlers. Rosenberginformed plaintiff that he would not sell plaintiff a car because plaintiff hadgone behind Rosenberg's back and that contacting Chrysler would cause Rosenbergproblems. Rosenberg also stated that plaintiff was not the first person with whomhe contracted to sell a Prowler. Plaintiff protested and Rosenberg informed himthat he did not sign the contract and would not sell plaintiff the car. Based onthis and previous conversations with Rosenberg, plaintiff did not believe that hewould be able to purchase a Prowler from defendant.

Rosenberg testified that he had a conversation at this time with plaintiffabout the Great America show and that he told plaintiff that he was "pretty sure,"given the dealership's sales, that it would receive at least one car. Whenplaintiff requested confirmation that it would be his car, Rosenberg told him thatthe car was already "committed."

G. Plaintiff's Purchase of a Prowler

Beginning on September 23, 1997, plaintiff contacted 38 Chrysler-Plymouthdealerships to inquire about purchasing a 1997 Prowler, but did not obtain one. Plaintiff had "serious doubts" about whether Rosenberg would deliver to him aProwler.

On October 24, 1997, plaintiff attended a Prowler coming-out party at theHard Rock Café and saw a purple Prowler in the parking lot with a sign in itswindow that had defendant's name written on it. On October 25, plaintiff went todefendant's showroom and saw a Prowler parked there. He found Rosenberg andinformed him that he was there to pick up his car. Rosenberg stated that he wasnot going to sell plaintiff the car and that he did not want to do business withhim. Later that day, plaintiff purchased a Prowler from another dealer for$77,706.

On October 27, 1997, defendant sold the only Prowler it received in thatyear to Palandri for a total sale price of $54,859, including his $10,000 deposit.

H. Plaintiff's Suit

In November 1997, plaintiff directed his attorney to send defendant a demandletter to purchase a Prowler. Plaintiff testified that he was prepared topurchase a vehicle from defendant even though he had already purchased oneelsewhere. Plaintiff continued to research prices for Prowlers and, by January1998, had not seen a price lower than the $77,706 he had paid for his vehicle. On January 7, 1998, plaintiff received his $5,000 deposit back from defendant. On April 23, 1998, plaintiff sued defendant for breach of contract. Defendant moved to dismiss plaintiff's complaint (735 ILCS 5/2--619.1 (West1998)), and the motion was granted. Plaintiff appealed, and this court reversedand remanded the cause for an evidentiary hearing to determine the meaning of thecontract (Hessler v. Crystal Lake Chrysler Plymouth, Inc., No. 2--98--1367 (1999)(unpublished order under Supreme Court Rule 23)). This court found the contractambiguous and further found that plaintiff could prove a set of facts to show thatdefendant breached the contract.

Following a bench trial, the court entered judgment for plaintiff andawarded him $29,853 in damages. It concluded that defendant breached theAgreement and that plaintiff properly covered by purchasing a replacement vehiclefor $29,853 more than the contract price. Further, the court found that the term"ASAP" "is not want of meaning"; that Rosenberg testified that it means "if andwhen a car is delivered" and "as soon as something can be done[,] do it." Thecourt found credible plaintiff's description of at least two conversations withRosenberg, during which Rosenberg confirmed that, if defendant took delivery ofa purple Prowler, it would be sold to plaintiff. It concluded that delivery ofa Prowler was to be as soon as possible and that defendant was on the road torepudiating the contract when it entered into a contract with Palandri in May1997. The trial court also concluded that defendant repudiated its contract inSeptember and October of 1997 when Rosenberg told plaintiff that he would not sellhim a car. It found plaintiff "ready, willing, and able to perform the contract." The court found that the price plaintiff paid for the car at another dealershipwas the best price he could receive for a Prowler after Rosenberg's refusal tosell to him a car.

II. ANALYSIS

A. Inclusion of The Term "ASAP" in the Contract

We must first determine whether the trial court correctly included the term"ASAP" in the Agreement. Defendant argues that the term was written in theAgreement by a salesperson after Rosenberg and plaintiff negotiated the contractand after plaintiff signed the contract. Thus, defendant contends that the term"ASAP" was not a part of the parties' final expression of their agreement.

Construction of a contract is a question of law, which we review de novo. Molter Corp. v. Amwest Surety Insurance Co., 267 Ill. App. 3d 718, 721 (1994). This transaction involves the sale of goods and thus is governed by the UniformCommercial Code--Sales (UCC) (810 ILCS 5/2--101 et seq. (West 2000)).

Section 2--207(1) of the UCC provides:

"(1) A definite and seasonable expression of acceptance or a writtenconfirmation which is sent within a reasonable time operates as anacceptance even though it states terms additional to or different from thoseoffered or agreed upon, unless acceptance is expressly made conditional onassent to the additional or different terms." 810 ILCS 5/2--207(1) (West2000).

Comment 1 to section 2--207 provides, in relevant part:

"This section is intended to deal with two typical situations. The one isthe written confirmation, where an agreement has been reached either orallyor by informal correspondence between the parties and is followed by one orboth of the parties sending formal memoranda embodying the terms so far asagreed upon and adding terms not discussed. The other situation is offerand acceptance, in which a wire or letter expressed and intended as anacceptance or the closing of an agreement adds further minor suggestions orproposals such as 'ship by Tuesday,' 'rush,' 'ship draft against bill oflading inspection allowed,' or the like." (Emphasis added.) 810 ILCS Ann.5/2--207, Comment, at 117 (Smith-Hurd 1993).

Comment 6 to section 2--207 provides, in relevant part:

"If no answer is received within a reasonable time after additional termsare proposed, it is both fair and commercially sound to assume that theirinclusion has been assented to." 810 ILCS Ann. 5/2--207, Comment, at 118(Smith-Hurd 1993).

Defendant argues that "ASAP" was not a term on which the parties agreed. It was written in different ink on the contract and by a salesperson who was notinvolved in the negotiations with plaintiff, both facts that plaintiff himselfacknowledged at trial. Defendant suggests that, because the Prowler's productionwas uncertain, the parties purposely inserted no delivery date into the Agreement. Thus, "ASAP" was not part of the parties' final expression of their agreement. We disagree.

Rosenberg testified that the term "ASAP" was written on the contract by asalesperson in the process of "finishing up" the transaction. He also testifiedthat he routinely delegated certain tasks in the course of his business dealings. Defendant does not argue that the salesperson had no authority to insert the terminto the contract on behalf of defendant or that the insertion was a mistake. Wenote that defendant's own preprinted integration clause provides that the contractshall not be binding until defendant or its "authorized representative" acceptsit. We also note that defendant's agents never attempted to modify the Agreementafter its execution to delete the term. Although the term was not discussed bythe parties, we conclude that, because the term was written contemporaneously withthe execution of the contract by defendant's authorized agent, and because neitherparty ever protested its inclusion in the Agreement, the term constituted part ofthe contract. See 810 ILCS 5/2--207(1) (West 2000).

B. Admission of Extrinsic Evidence

Having concluded that the term "ASAP" is part of the Agreement, we must nextdetermine whether the trial court erred in interpreting the term. As this issueinvolves the construction of a contract, our review is de novo. Molter Corp., 267Ill. App. 3d at 721.

Assuming that the term "ASAP" is part of the Agreement, defendant assertsthat it was a meaningless insertion and that the court erred by improperlyconsidering extrinsic evidence to interpret the term to mean that plaintiff wasentitled to the first Prowler. Defendant contends that the Agreement isunambiguous and that the court erred, first, in admitting parol evidence and,second, in admitting evidence that contradicted the explicit language in theAgreement. Defendant further argues that, even if the extrinsic evidence isconsistent with the language in the contract, the trial court erred in consideringit because the contract was completely integrated and even consistent statementscannot be considered in interpreting an integrated document.

The basic notion of the parol evidence rule is that a writing intended bythe parties to be a final expression of their agreement may not be contradictedby certain kinds of evidence. J. Calamari & J. Perillo, Contracts