Wilder Binding Co v. Oak Park Trust & Savings Bank

552 N.E.2d 783, 135 Ill. 2d 121, 19 U.C.C. Rep. Serv. 2d (West) 916, 142 Ill. Dec. 192, 58 U.S.L.W. 2554, 1990 Ill. LEXIS 18
CourtIllinois Supreme Court
DecidedFebruary 16, 1990
Docket67709
StatusPublished
Cited by18 cases

This text of 552 N.E.2d 783 (Wilder Binding Co v. Oak Park Trust & Savings Bank) is published on Counsel Stack Legal Research, covering Illinois Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Wilder Binding Co v. Oak Park Trust & Savings Bank, 552 N.E.2d 783, 135 Ill. 2d 121, 19 U.C.C. Rep. Serv. 2d (West) 916, 142 Ill. Dec. 192, 58 U.S.L.W. 2554, 1990 Ill. LEXIS 18 (Ill. 1990).

Opinions

CHIEF JUSTICE MORAN

delivered the opinion of the court:

Plaintiff, Wilder Binding Company, filed this breach of contract action in the circuit court of Cook County against defendant, Oak Park Trust and Savings Bank. Plaintiff sought to recover $19,630 in damages from defendant, because of its alleged improper payment of a series of forged checks. Plaintiff filed a motion for summary judgment pursuant to section 2 — 1005 of the Code of CivH Procedure (Code) (Ill. Rev. Stat. 1985, ch. 110, par. 2 — 1005). The circuit court granted the motion and entered judgment in favor of plaintiff in the amount of $19,630.° Defendant appealed.

On appeal, a majority of the appellate court affirmed, holding that there was no genuine issue as to any material fact and that plaintiff was entitled to summary judgment as a matter of law. The court reasoned that a bank fails to exercise ordinary care under section 4 — 406(3) of the Uniform Commercial Code (Ill. Rev. Stat. 1985, ch. 26, par. 4 — 406(3)) (section) when it uses automated check-sorting equipment and automatically pays checks drawn for less than a designated amount without manually verifying the signatures on those checks. The dissent stated that summary judgment should not have been entered, because the question regarding whether a bank exercised ordinary care in paying checks under the section is one of fact which should be answered by the trier of fact. 173 Ill. App. 3d 34.

This court granted defendant’s petition for leave to appeal (107 Ill. 2d R. 315) and accepted amicus curiae briefs from the Illinois Public Action Council in support of plaintiff, and from the American Bankers Association, the Illinois Bankers Association and the Chicago Clearing House Association in support of defendant. 107 Ill. 2d R. 345.

The only issue presented for review is whether the appellate court erred in affirming the circuit court’s entry of summary judgment in favor of plaintiff.

On April 23, 1981, plaintiff opened a business checking account with defendant. On that same date, plaintiff filed a signature card with defendant which designated Donald W. McCarrell, plaintiff’s president, and Douglas S. McCarrell, plaintiff’s vice-president, as the authorized signatories on its business checking account No. 864— 398.

In December 1983, Lorine Daniels was hired as plaintiffs bookkeeper. Between December 20, 1983, and June 29, 1984, Daniels embezzled $25,254.78 from plaintiff by forging Douglas S. McCarrell’s signature on 42 checks which were made payable to herself. Each of the forged checks was drawn for less than $1,000.

Once defendant paid the forged checks, they were cancelled and returned to plaintiff in the monthly statements of account. Plaintiff received statements containing forged checks for the following months: December 1983 and January, February, March, April, May, June and July 1984. However, under plaintiff’s bookkeeping system, Daniels reviewed the monthly statements and cancelled checks.

The checks forged by Daniels were not discovered until July 15, 1984, when plaintiff’s comptroller found them while examining company records. On July 20, 1984, plaintiff notified defendant of the forged checks and demanded reimbursement of $25,254.78, the sum total of the 42 forged checks.

As an accommodation to plaintiff, a long-standing customer, defendant reimbursed $5,624.78, which represented the sum total of forged checks contained in the monthly statements for June and July 1984. Defendant refused to reimburse the remaining $19,630 on the basis that affirmative defenses contained in the Commercial Code prevented plaintiff from recovering those funds.

On December 24, 1984, plaintiff filed its verified complaint seeking to recover $19,630 in damages from defendant. On March 20, 1985, defendant filed its answer and affirmative defenses to plaintiff’s verified complaint. Defendant asserted as its affirmative defenses sections 3 — 404, 3 — 406 and 4 — 406 of the Commercial Code (111. Rev. Stat. 1985, ch. 26, pars. 3 — 404, 3 — 406, 4 — 406). On July 9, 1985, plaintiff filed its answer to defendant’s affirmative defenses alleging the insufficiency of those defenses.

Over one year later, on July 16, 1986, plaintiff filed a “Request to Admit Facts.” The request provided in relevant part that: (1) between December 1, 1983, and July 1, 1984, defendant utilized automated check-sorting equipment which separated checks drawn for less than $1,000 from checks drawn for $1,000 or more; (2) the signatures on checks which were drawn for less than $1,000 were not manually verified before being paid; and (3) as a consequence of defendant’s use of automated check-sorting equipment, none of the signatures on the forged checks were manually verified. As defendant neither denied nor objected to plaintiff’s “Request to Admit Facts,” the aforementioned facts were considered admissions by defendant pursuant to Supreme Court Rule 216(c) (107 Ill. 2d R. 216(c)).

Approximately two weeks later, on August 1, 1986, plaintiff filed its motion for summary judgment (111. Rev. Stat. 1985, ch. 110, par. 2 — 1005). The motion was supported by a memorandum of law and the affidavit of Douglas S. McCarrell. The affidavit provided in part that: (1) Douglas S. McCarrell was plaintiff’s vice-president; (2) only he and Donald W. McCarrell were authorized signatories on plaintiff’s checking account No. 864 — 398; (3) 42 checks purportedly bearing his signature were drawn on plaintiff’s account, but neither did he sign the checks nor did he or anyone else authorize the signing of those checks; (4) plaintiff’s comptroller discovered the forged checks and notified him of them on July 15, 1984; and (5) plaintiff notified defendant of the forged checks and demanded reimbursement of the total amount paid, but defendant only reimbursed $5,624.78 and has refused to reimburse the remaining $19,630.

On November 10, 1986, defendant responded to plaintiff’s motion for summary judgment by filing a memorandum of law and the counter affidavit of Robert S. Visconti, defendant’s assistant vice-president. The counteraffidavit provided in part that: (1) Robert S. Visconti was defendant’s assistant vice-president in charge of bookkeeping and check disbursement; (2) defendant processed an average of between 8,000 and 11,000 checks per day and that an average of 650 to 750 of those checks were written for more than $1,000; (3) defendant maintained a staff of five full-time employees and additional part-time employees to manually verify the signatures on all checks written for $1,000 or more; (4) defendant and at least four other banks in the metropolitan Chicago area utilized automated check-sorting equipment to separate checks drawn for less than the designated amount from checks drawn for the designated amount or more; and (5) the signatures on checks drawn for less than the designated amount were not manually verified before being paid, while signatures on checks drawn for more than the designated amount were manually verified before being paid.

Plaintiff contends that the appellate court did not err in affirming the circuit court’s entry of summary judgment. Its contention is based on its belief that no genuine issue as to any material fact exists and, accordingly, that it is entitled to summary judgment.

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Wilder Binding Co v. Oak Park Trust & Savings Bank
552 N.E.2d 783 (Illinois Supreme Court, 1990)

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Bluebook (online)
552 N.E.2d 783, 135 Ill. 2d 121, 19 U.C.C. Rep. Serv. 2d (West) 916, 142 Ill. Dec. 192, 58 U.S.L.W. 2554, 1990 Ill. LEXIS 18, Counsel Stack Legal Research, https://law.counselstack.com/opinion/wilder-binding-co-v-oak-park-trust-savings-bank-ill-1990.