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rubyruby27
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« on: August 23, 2006, 07:12:54 PM »

Does anyone have a federal  or state case for FDCPA violations they would be willing to send to me via email.

Thanks,
Ruby
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« Reply #1 on: August 23, 2006, 08:49:46 PM »

Rawson v Credigy FDCPA Suit
http://members.aol.com/discussiondox/dox/
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I am not a lawyer. It would not be wise to use anything I say as legal advise. Check for yourself.
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« Reply #2 on: August 23, 2006, 10:43:58 PM »

Quote from: "Florida Debtor"


This is a really juicy case. The jury trial is not until April 2007.
Credigy asked for a jury.

I though it was funny how Credigy counsel argued that the 5 year SoL instead of the 10 year Sol for credit card accounts in Illinois would send shockwaves through the banking industry and effect extensions of credit.

Credigy argues that the 10 year SoL applies now but admits the pennies on the dollar purchase. If the 10 year SoL was so critical to the "banking" industry, which JDBs are not a member of, you would think they would be able to get more than 2 to 5 cents on the dollar for these accounts from the JDBs. Obviously, a 5 year SoL would have little effect, since the bank gets almost nothing for the accounts already with the supposed assumption of the 10 year SoL alleged by Credigy counsel.

I bet if one tracked the decline of the pennies on the dollar purchase rates for receivables, it drops off the table at 5 years and not at 10 years in Illinois. That would be a great indicator that the JDBs know the shorter SoL actually applies.
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« Reply #3 on: August 23, 2006, 11:05:21 PM »

Affirmative defense two is ridiculous.  They KNOW they are a debt collector.  There is tons and tons of caselaw stating distressed debt purchasers are DEBT COLLECTORS within the meaning of the FDCPA.

At least this isn't a case of Credigy being greedy with a state court appeal like Portfolio in Florida.
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« Reply #4 on: August 24, 2006, 12:58:02 PM »

Quote from: "VexatiousLitigant"
Affirmative defense two is ridiculous.  They KNOW they are a debt collector.  There is tons and tons of caselaw stating distressed debt purchasers are DEBT COLLECTORS within the meaning of the FDCPA.

At least this isn't a case of Credigy being greedy with a state court appeal like Portfolio in Florida.



Mr. VL:

We need you to copy the Harris Trust v. McCray case,
316 NE2d 209, to this topic, since you have stated that you have law website access.
We would like to read the ruling to see which side in the Rawson case is accurately describing this ruling.

Also, we would like to have the So.2d case number for the Portfolio Recovery Services v. Fernandes case.

Thanks.
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« Reply #5 on: August 24, 2006, 04:58:54 PM »

21 Ill.App.3d 605, 316 N.E.2d 209, 14 UCC Rep.Serv. 1338, 2 A.L.R.4th 671

 

Appellate Court of Illinois, First District, Fourth Division.

HARRIS TRUST AND SAVINGS BANK, Plaintiff-Appellee,

v.

Loncie D. McCRAY, Defendant-Appellant.

 

No. 59855.

 

July 24, 1974.

 

 

A bank, the issuer of a credit card, brought an action against the credit card holder to recover the balance due on the credit card account. The Circuit Court, Cook County, Joseph A. Solan, J., denied the credit card holder's motion to dismiss the complaint on the basis of the statute of limitations and entered judgment in the bank's favor, and the credit card holder appealed. The Appellate Court, Johnson, J., held that the action was governed by the ten-year limitation applicable to written contracts, including promises to pay money, rather than the four-year statute governing contracts for the sale of goods, and that the action was therefore not barred.

Affirmed.

 
 

Action by issuer of credit card against credit card holder to recover balance due on holder's account was governed by ten-year limitation applicable to written contracts, including promises to pay money, and not by four-year statute of limitations governing contracts for sale of goods. S.H.A. ch. 26, § 2-725, ch. 83, § 17; Ill.Rev.Stat.1965, ch. 121 1/2, § 223.

 

**209 *606 Ron Fritsch, Chicago, for defendant-appellant.

Chapman & Cutler, Chicago (Michael W. Ford, Terry A. McIlroy, Chicago, of counsel), for plaintiff-appellee.

 

JOHNSON, Justice:

This action was filed in order to recover a judgment for an amount of money allegedly due on a credit card account. The defendant filed a motion to dismiss the complaint, and the trial court denied the motion. The only question presented in this appeal is whether a credit card issuer may commence an action based upon the holder's failure to pay for the purchase of goods more than four years after the issuer's cause of action accrued.

The facts are undisputed. Defendant made two purchases with a credit card issued to her by the plaintiff. On December 14, 1966 she purchased goods for $400, and on December 19, 1966 she purchased additional goods for $102.27. She made no other purchase and incurred no other debts, except for interest, through the use of the plaintiff's card.

Defendant made three payments on her account with plaintiff: $20 in April 1967; $39.98 in June 1967; and $35 in March of 1968. Finance charges of $58.30 were charged to the account from February to September 1967. The defendant's account was ‘charged off’ plaintiff's books in September 1967, when the balance due was $500.59. Defendant's final payment of $35 was made after her account was ‘charged off.'

**210 On June 13, 1972 plaintiff filed a complaint against the defendant seeking a judgment for the balance of $465.59 plus $77.32 attorney fees, for a total of $542.91. On January 16, 1973 the defendant filed a motion to dismiss which asserted that plaintiff's claim was barred by the four year limitation in Section 2-725 of the Uniform Commercial Code. (Ill.Rev.Stat.1971, ch. 26, s 2-725.) Plaintiff filed a counter petition on March 27, 1973, objecting to defendant's motion to dismiss on the ground that its cause of action was not brought upon a contract for sale but rather a debtor-creditor relationship. On April 24, 1973 the Honorable Joseph A. Solan denied the defendant's motion to dismiss.

On November 8, 1973 the cause was tried without a jury before the Honorable George W. Kasserman, who found for the plaintiff. Judgment was entered against the defendant in the amount of $542.91 and costs. On November 30, 1973 the defendant filed this notice of appeal.

Defendant argues that, when she purchased merchandise with a credit card issued by plaintiff, she entered a ‘contract for the sale of goods.’ *607 She contends that plaintiff's cause of action is based upon a breach of this contract, which occurred when she failed to pay for the goods, and is thus governed by the four year limitation of Section 2-725 of the Uniform Commercial Code. That section provides:

An action for breach of any contract for sale must be commenced within 4 years after the cause of action has accrued. By the original agreement the parties may reduce the period of limitation to not less than one year but may not extend it. Ill.Rev.Stat.1971, ch. 26, s 2-725.

Plaintiff's position is that the credit card transaction involved herein created a debtor-creditor relationship. It argues that the cause of action could not have arisen from the failure to pay for the goods because the goods were paid for by the bank. Instead, plaintiff urges, the cause of action arose when the defendant failed to repay the bank for funds advanced on her behalf to the merchant where the goods were purchased. Therefore, plaintiff argues, the applicable statute of limitations is that dealing with written contracts, including promises to pay money, which provides:

Except as provided in Section 2-725 of the ‘Uniform Commercial Code,’ enacted by the Seventy-second General Assembly, actions on bonds, promissory notes, bills of exchange, written leases, written contracts, or other evidences of indebtedness in writing, shall be commenced within 10 years next after the cause of action accrued; but if any payment or new promise to pay shall have been made, in writing, on any bond, note, bill, lease, contract, or other written evidence of indebtedness, within or after the period of 10 years, then an action may be commenced thereon at any time within 10 years after the time of such payment or promise to pay. Ill.Rev.Stat.1971, ch. 83, s 17.

Before discussing the specific question raised in this appeal, we deem it advisable to consider briefly the nature of the transaction involved herein.

The bank credit card system involves a tripartite relationship between the issuer bank, the cardholder, and merchants participating in the system. The issuer bank establishes an account on behalf of the person to whom the card is issued, and the two parties enter into an agreement which governs their relationship. This agreement provides that the bank will pay for cardholder's account the amount of merchandise or services purchased through the use of the credit card and will also make cash loans available to the cardholder. It also states that the cardholder shall be liable to the bank for advances and payments made by the bank and that the cardholder's obligation to pay the bank shall not be affected *608 or impared by any dispute, claim or demand by the cardholder with respect to any merchandise or service purchased.

**211 The merchants participating in the system agree to honor the bank's credit cards. The bank irrevocably agrees to honor and pay the sales slips presented by the merchant if the merchant performs his undertakings, such as checking the list of revoked cards before accepting the card. The sales slips signed by the cardholder at the time of the purchase contain the following undertaking by the cardholder:

I hereby authorize the Issuer of the Midwest Bank Card imprinted above to pay the amount shown as Total hereon upon presentation hereof to Issuer by a bank which is a member of the Midwest Bank Card system. I hereby promise to pay said Issuer the amount shown as Total hereon (together with other charges due thereon, if any) subject to and in accordance with the terms of the cardholder agreement governing the use of Issuer's Midwest Bank Cards.

These slips are forwarded to the member bank which originally issued the card. The cardholder receives a statement from the bank periodically and may then decide whether to make payment to the bank in full within a specified period, free of interest, or to defer payment and ultimately incur an interest charge.

Defendant contends that the foregoing transaction does not establish a debtorcreditor relationship between the issuer bank and the cardholder. She points out that no money was in fact loaned in this transaction, even though the agreement provides for cash advances. Defendant concedes that money advanced to her would be a loan, but she contends that money paid directly to merchants constitutes a sales contract for the purchase of goods.

We believe that money advanced to a merchant in payment for merchandise received by the defendant constitutes a loan. The defendant promised to repay the bank for money it paid to the merchant for her benefit. The credit card allowed defendant to make use of the resources of ths issuer bank, and the merchant is in the same financial position as if he were receiving cash from the bank at a small discount for its service. Under this arrangement, the bank assumed the risk that the cardholder would not pay the debt and has no recourse against the merchant.

Defendant argues that the terms of the cardholder agreement itself recognize a difference between a cash advance made directly to the cardholder and payment for merchandise purchased through the use of the credit card. Thus, she urges, we should consider the former a loan and the latter an assignment of a retail installment sales contract from the merchant to the bank.

*609 Plaintiff contends that it is not possible to read into this distinction the conclusion that the direct advance creates a loan and the indirect advance is the acceptance of an assignment of a retail installment sales contract. It urges, to the contrary, that the distinction is merely for the purpose of reflecting the different methods involved in disbursing these loans and computing the amounts necessary to repay them.

Defendant's argument is belied by the definition of a retail installment sales contract in effect at the time the transactions in question occurred in 1966. Although the act expired the following year, it is interesting to note that it stated:

‘Retail installment contract’ or ‘contract’ means and includes any agreement, negotiated or entered into in this state, including a chattel mortgage, conditional sale contract, or any other form of instrument evidencing an agreement to purchase goods for delivery to a person residing in the State of Illinois, other than for a commercial or business use of for the purpose of resale, by payment of the purchase price in two or more installments over a period of time and pursuant to which title to, or a lien upon the goods, which are the subject matter of the sale, is retained or taken by the seller as security, in whole or in part, for **212 the buyer's obligation. Ill.Rev.Stat.1965, ch. 121 1/2, s 223.

Title to the goods in the case at bar unquestionably passed to defendant when she signed the sales slip and took possession of them, no lien was retained thereon, and the payment of the purchase price did not involve two or more installments. Thus, the statutory definition of a retail installment sales contract, in effect at the time of the transaction in question, clearly did not include the tripartite agreement involved here.

We are not persuaded to reach a contrary conclusion by the two cases defendant cites in support of her argument. She relies upon Johnson v. Sears Roebuck & Co. (1973), 14 Ill.App.3d 838, 303 N.E.2d 627 as authority for the proposition that Illinois courts have rejected the notion that a credit card account is in substance a loan of money. However, Johnson involved a department store credit card, used solely for credit purposes, in which there were only two parties, the store and the customer. Here, there was a tripartite relationship in which the bank paid merchants for goods purchased by the cardholder, and the defendant argeed to repay the bank rather than the merchant. Thus, in our opinion, Johnson is not authority for defendant's contention that a three-party bank charge card transaction is in substance a loan of money.

Defendant also cites Berry v. G. D. Searle & Co. (1974), 56 Ill.2d 548, 309 N.E.2d 550, wherein the Supreme Court of Illinois held that *610 s 2-725 of the Uniform Commercial Code is applicable to the sale of birth control pills. We do not believe that Searle is applicable here because the relationship between the defendant and the bank was that of debtor-creditor.

In view of the foregoing, we conclude that the payments made by the plaintiff to the merchants pursuant to the cardholder agreement constituted a loan of money. Thus, plaintiff's cause of action was governed by the 10 year limitation applicable to written contracts, including promises to pay money. It was not barred by the expiration of the four year statute of limitations governing contracts for the sale of goods.

Affirmed.

 

ADESKO, P.J., and DIERINGER, J., concur.
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« Reply #6 on: August 25, 2006, 11:52:41 AM »

Negative Citing References (U.S.A.)

   Declined to Extend by
Taylor v. Unifund Corp., 2001 WL 1035717 (N.D.Ill. Sep 01, 2001) (NO. 98 C 5921)

   Distinguished by
Citizen's Nat. Bank of Decatur v. Farmer, 77 Ill.App.3d 56, 395 N.E.2d 1121, 32 Ill.Dec. 740, 27 UCC Rep.Serv. 1001 (Ill.App. 4 Dist. Oct 05, 1979) (NO. 15523)

Fallimento C.Op.M.A. v. Fischer Crane Co., 995 F.2d 789, 20 UCC Rep.Serv.2d 944 (7th Cir.(Ill.) Jun 16, 1993) (NO. 92-3015)
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« Reply #7 on: August 25, 2006, 12:34:16 PM »

Quote from: "VexatiousLitigant"
Negative Citing References (U.S.A.)

   Declined to Extend by
Taylor v. Unifund Corp., 2001 WL 1035717 (N.D.Ill. Sep 01, 2001) (NO. 98 C 5921)

   Distinguished by
Citizen's Nat. Bank of Decatur v. Farmer, 77 Ill.App.3d 56, 395 N.E.2d 1121, 32 Ill.Dec. 740, 27 UCC Rep.Serv. 1001 (Ill.App. 4 Dist. Oct 05, 1979) (NO. 15523)

Fallimento C.Op.M.A. v. Fischer Crane Co., 995 F.2d 789, 20 UCC Rep.Serv.2d 944 (7th Cir.(Ill.) Jun 16, 1993) (NO. 92-3015)


I have no idea what that means
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« Reply #8 on: August 25, 2006, 08:07:02 PM »

Mr. V.L., please look up these cases and post them here. Thanks.

Here are other important case numbers from the Rawson pleadings that I saw:

211 NE2d 775
498 NE2d 854
490 NE2d 36
474 NE2d 759
435 NE2d 923
387 NE2d 831
673 NE2d 290
566 NE2d 730
358 NE2d 1305
32 NE 424
368 NE2d 767
270 NE2d 75
454 NE2d 1049
401 NE2d 1299
432 NE2d 1309
395 NE2d 1121

618 F. Supp 1480
202 F.3d 987
465 U.S. 89
344 U.S. 33
352 F.3d 1118
937 F.2d 1237
995 F.2d 789

2004 US Dist. LEXIS 23172
2001 US Dist. LEXIS 13915

411 U.S. 356, 93 S.Ct. 1652
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« Reply #9 on: August 28, 2006, 07:19:55 AM »

64 Ill.App.2d 228, 211 N.E.2d 775

Appellate Court of Illinois, First District, Third Division.
Elmer WIELANDER, Plaintiff and Appellant,
v.
N. HENICH, d/b/a A. Aball Roofing and Hardware Co., Defendant and Appellee.
Gen. No. 49917.
Oct. 28, 1965.

Suit by owner of premises upon fiveyear guarantee for repair work to be done by defendant. The Municipal Court of Chicago, First Municipal District of the Circuit Court of Cook County, Joseph B. Hermes, J., entered judgment for defendant and plaintiff appealed. The Appellate Court, Sullivan, J., held that where parol evidence would be required to show that plaintiff had been person with whom contract for roof repair work had been entered into, that plaintiff had been owner of property at that time and that work had been done on plaintiff's property, and to show year contract had been entered into, contract must be considered oral contract and five-year statute of limitations pertaining to oral contracts was applicable.
Affirmed.


Where parol evidence would be required to show that plaintiff had been person with whom contract for roof repair work had been entered into, that plaintiff had been owner of property at that time, and that work had been done on plaintiff's property, and to show year contract had been entered into, contract must be considered oral contract and five-year statute of limitations was applicable. S.H.A. ch. 83, § 16.

If party is named in contract, his signature is not necessarily needed to enforce that contract.

*228 **775 Frank J. Toman, Berwyn, for appellant.
No appearance for appellee.

*229 SULLIVAN, Justice.
Plaintiff, Elmer Wielander, owner of premises at 1415 South Harlem Avenue, Berwyn, Illinois, brought suit against the defendant, N. Henich, d/b/a A. Aball Roofing and Hardware Co., upon a five-year guarantee written in an estimate submitted by the defendant to the ‘Owner of Property’ at 1417 So. Harlem Avenue. **776 The estimate was for roof repair work to be done by the defendant, and specified the type of work, but did not mention upon which particular property the work was to be done. The estimate was not signed by anyone, but was written on the stationery of the defendant. Further, the year when the estimate was given cannot be ascertained from the instrument since it was filled out as ‘November 15, 195--.'
Plaintiff, in his amended statement of claim, claimed that this estimate constituted an agreement between himself and the defendant, entered into in the year 1955, and that the work was to be done on the premises owned by the plaintiff at 1415 S. Harlem Avenue, Berwyn, Illionis. Plaintiff alleged that the work was done by the defendant in an improper manner, that the roof leaked, and that water entered his premises damaging the interior of the building in the amount of $1,000.00. Plaintiff did not allege when the leak occurred, either before the work was done, after it was done and within the five-year guarantee period, or after the five-year guarantee period expired.
The suit was commenced by the plaintiff on November 4, 1963. The defendant filed a motion to strike the claim on the grounds that the action was barred by the five-year statute of limitations pertaining to oral contracts. The trial court sustained this motion, dismissed the cause, and gave judgment for the defendant. The plaintiff appeals from that order.
*230 The relevant portions of the estimate, which plaintiff contends constitutes the agreement between himself and the defendant, are as follows:
‘A. Aball Roofing & Hardware Co. 3925 W. Roosevelt Road

* * *

Chicago 24, Ill. November 15, 195
TO Owner of Property
1417 So. Harlem Ave.
Estimet (sic)'
Then follows a description of the work, and the instrument ends with:
‘and gurantted (sic) for 5 years.'
The contract was not signed by either of the parties.
The only question presented here is whether plaintiff's action is barred by the five-year statute of limitations pertaining to oral contracts. That statute provides: ‘* * * actions on unwritten contracts, expressed or implied, * * * shall be commenced within 5 years next after the cause of action accrued.’ Ill.Rev.Stat.1963, chap. 83, par. 16.
Though the exact year when this estimate was given cannot be ascertained from the face of the instrument itself, plaintiff alleges that it was given in 1955. He contends that since this is a written contract the ten year statute of limitations pertaining to written contracts applies, (Ill.Rev.Stat.1963, chap. 83, par. 17) and therefore the suit was commenced within the proper time limit.
We do not agree with the plaintiff. Several reasons lead us to conclude that since parol testimony must be used to make the agreement complete, it is at best an oral contract and the suit is barred by the fiveyear statute of limitations.
*231 The pertinent law on agreements such as the instant one, is: ‘A written contract is one, which, in all its terms, is in writing. A contract partly in writing and partly oral is, in legal effect, an oral contract.’ Bishop on Contracts, secs. 163, 164. ‘If it be true that the agreement, as set forth in writing, is so indefinite as to necessitate resort to parol testimony to make it complete, the law is that in applying the statute of limitations it must be treated as an oral contract. Both reason and authority support this view.’ Plumb v. Campbell, 129 Ill. 101, 18 N.E. 790.
This estimate merely reads ‘Owner of Property’ and nowhere on its face does it mention the plaintiff by name. Not only must parol evidence be introduced to show **777 that the plaintiff was the party with whom the agreement was entered into, but also that plaintiff was the owner of the property at 1417 So. Harlem at that time.
The case of Railway Passenger and Freight Conductors' Mutual Aid and Benefit Association v. Loomis, 142 Ill. 560, 32 N.E. 424, concerned an action by a widow to recover benefits under the bylaws of a mutual aid society. The action was brought after five years and within ten years after the action accrued, and one of the issues was whether it was barred by the five-year statute of limitations pertaining to oral contracts. The plaintiff's deceased husband was a member of the society, but the bylaws merely provided for ‘widows' to be paid a specific sum. The court said that this was not a contract in writing with the widow, as parol evidence was necessary to show that the deceased left a widow, and that the party seeking its enforcement was his widow.
On page 567, 32 N.E. p. 426 of the opinion the court said: ‘A contract cannot be said to be in writing unless the parties thereto, as well as the terms and provisions thereof, can be ascertained from the instrument itself. If the party to a written contract is not named therein, the contract is defective, as containing only a part of the agreement. *232 In such case the agreement is only partly reduced to writing, because parol evidence must be resorted to in order to show with whom the bargain was made.’ (Citing cases.)
The court went on to conclude that since the plaintiff was not named as a party in the certificate of membership and constitution and bylaws, the contract was an oral one and governed by the statute of limitations pertaining to oral contracts.
By analogy to the instant case, the Loomis case, supra, shows that a contract is oral if parol evidence is needed to show who is a party to a written contract. The estimate does not name the plaintiff as a party thereto, and oral evidence is needed not only to show that he was the party with whom the agreement was entered into, but also that he was the owner of the property at that time.
Cases subsequent to Loomis, supra, cite that case with approval and authority. In Novosk v. Reznick, 323 Ill.App. 544, 56 N.E.2d 318, the court referred to the Loomis case, ‘* * * which is the leading case in this State and has been repeatedly cited and followed.’ Cf. also Mullberg v. Johnson, 340 Ill.App. 92, 91 N.E.2d 63; Kordewick v. Indiana Harbor Belt R. Co., 7 Cir., 157 F.2d 753, cert. denied, 329 U.S. 806, 67 S.Ct. 502, 91 L.Ed. 688.
[1] Link to KeyCite Notes[2] Link to KeyCite Notes Plaintiff cites certain cases which he contends demonstrate that this is actually a written contract. These cases are not applicable to our factual situation since in each of these cases both parties to the contract were named therein, and there was only a question of whether acceptance of benefits could remedy the defect of nonsignature by one of the parties. We have no quarrel with these cases since the law is clear that if a party is named in the contract, his signature is not necessarily needed to enforce that contract. However, in our case, not only do we not have a signature by the *233 plaintiff, but he is not named on the face of the instrument.
In Plumb v. Campbell, 129 Ill. 101, 18 N.E. 790, the instrument, held to be a written contract, contained the names of both of the parties thereto. In Memory v. Niepert, 131 Ill. 623, 23 N.E. 431, in specifying the elements going to make up a completed written contract, it is said: ‘The names of the contracting parties are given, etc.’ In Ames v. Moir, et al., 130 Ill. 582, 22 N.E. 535, both of the parties to the contract were named therein, and the court held it be a contract even though not executed by one of the parties, since that party accepted its benefits.
The case of Staley v. Snow, 209 Ill.App. 452 (1918), is cited by the plaintiff in support of his contention that if the names **778 of the defendants do not appear on the contract, and it is necessary to introduce evidence to identify them, it does not make the contract an oral one. In that case the defendant in the contract was named as the Co-Operative Home Purchasing Society, and the only oral evidence needed to sustain the contract was evidence to identify the named defendants as copartners who did business under the name of Co-Operative Home Purchasing Society.
This case does not aid the plaintiff's case as it is not contended that the plaintiff must prove that the defendant owned the A. Aball Roofing & Hardware Co. Rather, plaintiff must show that he was the one to whom the contract was submitted, and that he owned the property at 1417 So. Harlem Avenue. This the plaintiff is unable to do without introducing parol evidence, which would then make the contract an oral one.
Furthermore, there are additional reasons why this contract must be construed as partly oral and partly written. The plaintiff in his amended statement of claim alleged that he is the owner of premises located at 1415 So. Harlem Ave., while the estimate was addressed to ‘Owner of Property 1417 So. Harlem Ave.’ Because of *234 the discrepancy between the address in the amended statement of claim and the address in the estimate, it would be necessary to prove by parol evidence that the work was done on plaintiff's property, the address at which the work was done and that the plaintiff was the owner of the property at the time the work was done.
Another omission in the contract which requires parol evidence to make it complete is the fact that the year it was entered into is not stated on the face on the instrument. The date reads ‘November 15, 195--.’ Since the defense interposed herein was the statute of limitations, the year the contract was entered into is most material. To make the contract complete in that respect it would be necessary to offer parol evidence as to the year it was entered into.
We conclude that the contract here sued upon is not in all its terms in writing, and since it is partly in writing and partly oral it must be considered an oral contract under the law.
The trial court correctly concluded that this action was barred by the five-year statute of limitations pertaining to oral contracts.
Affirmed.

DEMPSEY, P. J., and SCHWARTZ, J., concur.
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« Reply #10 on: August 28, 2006, 07:21:17 AM »

147 Ill.App.3d 935, 498 N.E.2d 854, 101 Ill.Dec. 530

Appellate Court of Illinois,
First District, Fourth Division.
David S. BROWN, Plaintiff-Appellant,
v.
Lawrence GOODMAN, Defendant-Appellee.
No. 85-2768.
Sept. 30, 1986.

Vendor brought action against subsequent purchaser to enforce option agreement to repurchase property. The Circuit Court, Cook County, Thomas E. Hoffman, J., granted summary judgment in favor of purchaser. The Appellate Court, Jiganti, J., held that: (1) written option agreement which was executed by vendor and initial purchaser, but which failed to identify subsequent purchaser, was oral contract, and, thus, five-year statute of limitations for action on oral contract, rather than ten-year statute of limitations for action on written contract, governed vendor's action, and (2) vendor and subsequent purchaser did not intend to enter into new contract when vendor attempted to exercise option rights.
Affirmed.

Written contract is considered to be written for purpose of statute of limitations, if all essential terms of contract are in writing and are ascertainable from instrument itself and if parol evidence is not needed to make contract complete.

Written option agreement, which was executed by vendor holding option and initial purchaser, and which stated that it bound third-party purchasers, but which failed to identify subsequent purchaser, was oral contract, and, thus, five-year statute of limitations for action on oral contract, rather than ten-year statute of limitations for action on written contract, governed vendor's action against subsequent purchaser to enforce option. S.H.A. ch. 110, ¶¶ 13-205, 13-206.

Laches was inapplicable to cause of action barred by five-year statute of limitations for action on oral contract. S.H.A. ch. 110, ¶ 13-205.

Vendor, who attempted to exercise option to repurchase property from subsequent purchaser by depositing certified check and additional earnest money checks which stated on back that checks were being delivered as required by option contract between vendor and initial purchaser and who delivered notice of intent to purchase property along with certified check, did not intend to enter new contract with subsequent purchaser who refused to sell property due to vendor's alleged failure to comply with option agreement.

**855 *936 ***531 Springer, Casey, Haas, Dienstag & Silverman, Chicago (Gary E. Dienstag, Adolph L. Haas, Martin L. Silverman, of counsel), for plaintiff-appellant.
Foran, Wiss & Schultz, Chicago (Jeff D. Harris, Kenneth M. Soldat, of counsel), for defendant-appellee.

Justice JIGANTI delivered the opinion of the court:
On January 8, 1963, the plaintiff, David S. Brown, entered into a contract with Joseph J. Kuhny for the sale of certain real estate owned by Brown. Under the contract, Kuhny agreed to purchase the subject property and Brown reserved a five-year option to repurchase *937 the property. To exercise that right, Brown was required to notify Kuhny of his intention to purchase and deposit simultaneously with the delivery of the notice of intent a certified check in the sum of $10,000 as earnest money and, within 15 days thereafter, deposit additional earnest money of $40,000. The option agreement provided that a sale to a third party shall specifically be subject to Brown's right of purchase. The contract and option agreement were recorded.
On October 23, 1964, the property was sold by Kuhny to the defendant, Lawrence Goodman. The contract between Goodman and Kuhny refers to the option rights of Brown and states that the sale is subject to Brown's option rights under the 1963 option agreement. Brown was notified by Kuhny of the sale to Goodman but did not attempt to exercise the option at this time.
On January 8, 1968, within the five-year period, Brown appeared at the offices of Goodman with a certified check for $10,000. Brown delivered the check to Goodman along with his notice of intent to purchase which stated as follows:
“Mr. L. Goodman
c/o Portland Investment Company
2800 North Milwaukee Avenue
Chicago, Illinois
Dear Mr. Goodman,

Re: NOTICE OF INTENT TO PURCHASE

Pursuant to the terms of contract dated January 8, 1963 between David S. Brown and Joseph J. Kuhny I hereby notify you of my intention to purchase the property referred to in said contract and in all the documents referred to therein and I deposit with you herewith my certified check payable to you in the amount of $10,000. This is sent to you as successor in title to Joseph J. Kuhny.
Yours truly,
/s/ David S. Brown
David S. Brown
4739 N. Harding Avenue
Chicago 25, Illinois
encl. $10,000 ck.”
At the time Brown delivered the $10,000 check, he instructed an employee of Goodman to type the following statement on the reverse side of the check:
**856 ***532 “Earnest money deposit paid per Supplemental Agreement dated January 8, 1963, between David S. Brown and Joseph J. Kuhny.”
*938 Two weeks later, on January 19, 1968, Brown again appeared at Goodman's offices with $40,000 in additional earnest money checks, each of which was unendorsed and payable to Brown and contained the following language on the back of each check:
“Additional earnest money deposit paid per supplemental agreement dated January 8, 1963 between David S. Brown and Joseph J. Kuhny.”
Goodman informed Brown that he would not sell Brown the property for less than $1,000,000. Brown refused to pay anything more than $500,000 and refused to endorse the $40,000 in additional earnest money checks.
On January 24, 1968, Goodman's attorney wrote the following letter to Brown:
“We reiterate on behalf of our client that the tender does not comply with the agreement referred to above and we consider the option to purchase set forth therein as not having been complied with and to have therefore expired by its terms on January 8, 1968.”
Ten years later, on January 6, 1978, Brown brought this two-count second amended complaint against Goodman. Count I alleged that Goodman breached the 1963 option agreement on January 19, 1968, when Goodman refused to honor Brown's option rights after Brown had performed all conditions precedent for a valid exercise of the option. Count II alternatively alleged that Goodman breached a new agreement entered into on January 8, 1968, when Brown offered to purchase the property from Goodman on the same terms contained in the 1963 option agreement. According to Count II, a new contract was created when Brown tendered to Goodman the $10,000 earnest money check which Goodman accepted when he endorsed the check.
Goodman moved for summary judgment on the second amended complaint. Goodman alleged that as to Count I, the 1963 option agreement was an oral contract governed by the five-year statute of limitations for oral contracts. (Ill.Rev.Stat.1985, ch. 110, par. 13-205.) Since this action was not filed until ten years after the alleged breach, the action was time-barred. As to Count II, Goodman contended that the events in January 1968 did not constitute a new contract. Consequently, as it was not a written contract it was also time-barred. The trial court granted summary judgment on both counts. However, the trial court granted Brown leave to file a third amended complaint to proceed on an unjust enrichment claim based on Goodman's retention of the $10,000 check. That matter is still pending in the trial court.
*939 On appeal, Brown first contends that Count I was not barred by the five-year statute of limitations applicable to actions on unwritten contracts. (Ill.Rev.Stat.1985, ch. 110, par. 13-205.) Rather, he asserts that the 1963 option agreement was written and therefore subject to the 10-year statute governing actions on written contracts. (Ill.Rev.Stat.1985, ch. 110, par. 13-206.) Consequently, his action was timely brought within 10 years from the date of breach. Goodman responds that as the contract did not name Goodman or otherwise identify him as a party to the option agreement, parol evidence would be necessary in order to ascertain any contractual relationship between Brown and Goodman. Goodman maintains that accordingly the option agreement must be considered unwritten for limitation purposes.
[1] Link to KeyCite Notes Illinois courts give a strict interpretation to the meaning of a written contract within the statute of limitations. For statute of limitations purposes a contract is considered to be written if all the essential terms of the contract are in writing and are ascertainable from the instrument itself. ( Clark v. Western Union Telegraph Co. (1986), 141 Ill.App.3d 174, 176, 95 Ill.Dec. 563, 490 N.E.2d 36; Weaver v. Watson (1984), 130 Ill.App.3d 563, 567, 85 Ill.Dec. 799, 474 N.E.2d 759; **857 ***533 Munsterman v. Illinois Agricultural Auditing Association (1982), 106 Ill.App.3d 237, 238-39, 62 Ill.Dec. 125, 435 N.E.2d 923; Baird & Warner, Inc. v. Addison Industrial Park, Inc. (1979), 70 Ill.App.3d 59, 73, 26 Ill.Dec. 1, 387 N.E.2d 831.) If parol evidence is needed to make the contract complete, then the contract is treated as being oral under the statute of limitations. ( Clark v. Western Union Telegraph Co. (1986), 141 Ill.App.3d 174, 176, 95 Ill.Dec. 563, 490 N.E.2d 36; Wielander v. Henich (1965), 64 Ill.App.2d 228, 231, 211 N.E.2d 775.) With regard to the identity of the parties to the agreement, the leading case of Railway Passenger and Freight Conductors' Mutual Aid and Benefit Association v. Loomis (1892), 142 Ill. 560, 32 N.E. 424, states that if the agreement, as set forth in writing, is so indefinite as to the identity of the parties to the agreement so as to necessitate the resort to parol evidence, the agreement is an oral contract within the meaning of the statute of limitations. ( Railway Passenger and Freight Conductors' Mutual Aid and Benefit Association v. Loomis (1892), 142 Ill. 560, 567, 32 N.E. 424.) Loomis concerned whether an action brought by a widow to recover benefits under the bylaws of a mutual aid society was barred by the five-year statute of limitations pertaining to oral contracts. The plaintiff's deceased husband was a member of the society, but the bylaws merely provided for the “widow” to be paid a specific sum. The court found that the agreement was not a contract in writing with the widow, as she was not named in the agreement and the term “widow” was too general. The court found that the plaintiff could not be ascertained as a party to the contract as parol evidence was necessary *940 to show that the deceased left a widow and that the plaintiff was his widow. Thus, the law is clear in Illinois that to constitute a written contract under the statute of limitations the written instrument itself must completely identify the parties to the contract. ( Railway Passenger and Freight Conductors' Mutual Aid and Benefit Association v. Loomis (1892), 142 Ill. 560, 32 N.E. 424; Clark v. Western Union Telegraph Co. (1986), 141 Ill.App.3d 174, 95 Ill.Dec. 563, 490 N.E.2d 36; Munsterman v. Illinois Agricultural Auditing Association (1982), 106 Ill.App.3d 237, 62 Ill.Dec. 125, 435 N.E.2d 923; Pratl v. Hawthorn-Mellody Farms Dairy, Inc. (1977), 53 Ill.App.3d 344, 347, 11 Ill.Dec. 216, 368 N.E.2d 767; Matzer v. Florsheim Shoe Co. (1971), 132 Ill.App.2d 470, 472, 270 N.E.2d 75; Wielander v. Henich (1965), 64 Ill.App.2d 228, 211 N.E.2d 775; see also Jones v. United States (N.D.Dist.1976), 424 F.Supp. 236, 238.) We recognize that courts in some jurisdictions, in applying the same general principles discussed above, are more liberal in treating a written instrument as a written contract for statute of limitations purposes if the instrument meets the requirements of a written contract under the statute of frauds. See 3 A.L.R.2d 809, 812 (1949).
Brown contends that while Goodman was not named in the option agreement, Goodman's identity as a party to the option agreement is easily ascertainable from several writings made subsequent to the option agreement; namely, Brown's notice of intent to purchase sent to Goodman and Brown's $10,000 earnest money check endorsed by Goodman. We find that this argument is not on point. The issue is not whether the identity of Goodman can be readily ascertainable from subsequent writings, the issue is whether the identity of Goodman can be readily ascertained from the 1963 option agreement itself so as to avoid the resort to parol evidence. Brown cites a number of cases in support of his position. However, these cases concern whether an instrument is in writing to meet the statute of frauds requirements. ( Western Metals Co. v. Hartman Ingot Metal Co. (1922), 303 Ill. 479, 135 N.E. 744; Shugan v. Colonial View Manor (1982), 107 Ill.App.3d 458, 63 Ill.Dec. 82, 437 N.E.2d 731; Jones v. Olsen (1980), 80 Ill.App.3d 1016, 36 Ill.Dec. 245, 400 N.E.2d 665; Mid-Town Petroleum, Inc. v. Dine (1979), 72 Ill.App.3d 296, 28 Ill.Dec. 261, 390 N.E.2d 428.) These cases are not relevant to the issue of whether the option agreement is a written contract as related **858 ***534 to Goodman in order for the ten-year statute of limitations on written contracts to apply. As we earlier stated, the test for whether a contract is written under the statute of limitations in Illinois is not whether the contract meets the requirements of the statute of frauds, but whether all essential terms of the contract, including the identity of the parties, are in writing and can be ascertained *941 from the written instrument itself. The option agreement here fails to meet that test.
[2] Link to KeyCite Notes In the instant case, the option agreement does not name Goodman as a party to the contract. The option agreement merely states that the terms of the option are binding on a “third party” purchaser. The existence of any contractual relationship between Brown and Goodman can only be established by going outside of the option agreement and resorting to extrinsic evidence. Parol evidence is necessary to show that Goodman was the “third party” purchaser of the property from Kuhny and that Goodman was the owner of the property at the time Brown attempted to exercise the option. Consequently, the option agreement must be considered unwritten for limitation purposes, and Brown had to commence this action against Goodman within five years after the alleged breach. As Brown, however, did not file this lawsuit until almost ten years after the alleged breach, his cause of action in Count I was time-barred.
[3] Link to KeyCite Notes We also reject the additional argument Brown makes that Count I could only be barred by laches rather than the statute of limitations. In fixing the period in which rights and claims will be barred by laches, equity follows the law, and generally courts of equity will adopt the statute of limitations period. ( Wall v. Chicago Park District (1941), 378 Ill. 81, 96, 37 N.E.2d 752; Davis v. Board of Review of the Department of Labor (1985), 132 Ill.App.3d 853, 856, 87 Ill.Dec. 716, 477 N.E.2d 842; Beynon Building Corp. v. National Guardian Life Insurance Co. (1983), 118 Ill.App.3d 754, 764, 74 Ill.Dec. 216, 455 N.E.2d 246.) Consequently, laches will not be found if the delay in bringing suit, as in the instant case, is beyond the statute of limitations period. ( Schlossberg v. Corrington (1980), 80 Ill.App.3d 860, 865, 35 Ill.Dec. 936, 400 N.E.2d 73.) Having concluded that Count I was barred under the statute of limitations, laches is inapplicable.
Brown devotes a major portion of his brief to the issue of whether the trial court improperly granted summary judgment on Count II of the second amended complaint. Brown urges that there is a genuine issue of material fact as to whether the parties intended a new contract, separate from the 1963 option agreement, to purchase the real estate. He suggests that a written contract was entered into by the parties when Goodman endorsed and cashed the $10,000 cashier's check which Brown had delivered to Goodman on January 8, 1968, which incorporated by reference the terms and provisions of the 1963 option agreement.
[4] Link to KeyCite Notes We believe that the facts set forth in the pleadings, depositions and accompanying exhibits are insufficient to raise a genuine issue *942 of material fact as to intent. The option agreement provided that one of the conditions precedent to make a valid exercise of the option was the timely deposit of a $10,000 check as earnest money. Brown delivered a certified check for $10,000 to Goodman. On the back of the check, Brown had an employee of Goodman type “Earnest money deposit paid per Supplemental Agreement dated January 8, 1963, between David S. Brown and Joseph J. Kuhny.” Brown stated that he had this language typed on the back of the check so Goodman would know what the check was for. Brown stated in his deposition that he regarded the $10,000 check as an exercise of his option rights under the 1963 option agreement. Goodman also stated in his deposition testimony that he believed that the $10,000 check was Brown's exercise of the option.
The option agreement also required that Brown deliver with the $10,000 check a notice of intent to purchase. Brown delivered his notice of intent to purchase the **859 ***535 property along with the $10,000 check to Goodman. Brown's notice of intent states that it was being delivered to Goodman
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« Reply #11 on: August 28, 2006, 07:25:24 AM »

141 Ill.App.3d 174, 490 N.E.2d 36, 95 Ill.Dec. 563, 27 Wage & Hour Cas. (BNA) 1055

Appellate Court of Illinois,
First District, Fifth Division.
Joe CLARK, Plaintiff-Appellant,


Salesman's action for breach of compensation contract was barred by five-year statute of limitations, where, despite salesman's contention that statute was tolled by fraudulent concealment, salesman discovered causes of action alleged in his complaint more than two years before statute ran, which was reasonable time within which to file suit.

Wage Payment and Collection Act [S.H.A. ch. 48, ¶ 39m-14] does not toll period of limitations until employer pays indebtedness in question.

Continuing violation provision of Illinois Wage Payment and Collection Act [S.H.A. ch. 48, ¶ 39m-14] applies to actions brought by Department of Labor, and civil suits by aggrieved employees are governed by limitations provisions of code of civil procedure. S.H.A. ch. 110, ¶ 13-101 et seq.

**36 *174 ***563 P. Scott Neville, Jr., Arthur Wheatly, Chicago, for plaintiff-appellant.
Todd H. Thomas, Eckhart, McSwain, Hassell & Silliman, Chicago, for defendants-appellees.

LORENZ, Justice:
Plaintiff Joe Clark appeals from the dismissal of his complaint against defendant Western Union Telegraph Company and individually named agents of the company. Plaintiff alleged that Western Union's refusal to pay the full commission on a sale constituted a breach of *175 contract, fraud, and a violation of the Illinois Wage Payment **37 ***564 and Collection Act ( see Ill.Rev.Stat.1977, ch. 48, pars. 39m-1, et seq.). The trial court found that plaintiff's actions were barred by the five-year statute of limitations for oral contracts, fraud, and “civil actions not otherwise provided for.” ( See Ill.Rev.Stat.1983, ch. 110, par. 13-205.) We accept all well-pleaded facts as true.
Plaintiff alleged that in 1978, he was employed by Western Union as a major account representative in the Chicago sales office. He alleged that defendants computed commissions for members of the sales force by (1) determining the number of “quota units” associated with a given product according to the 1978 Sales Compensation Plan, (2) determining the dollar value per quota unit according to the employee's individual 1978 Compensation Arrangement, and (3) multiplying the number of quota units by the dollar value per unit. Plaintiff attached copies of the Sales Compensation Plan and his Compensation Arrangement to his complaint.
Plaintiff alleged that in October of 1978, he sold Western Union's Infocast system to the Chicago Board of Trade, but that defendants underpaid him for the sale. According to the Sales Compensation Plan, plaintiff alleged, he was entitled to a commission of $53,760; however, defendants refused to pay according to the plan, and paid plaintiff only $6,500. Plaintiff alleged that agents of Western Union knew that Infocast was commissionable, but misrepresented that fact to plaintiff. Plaintiff claimed that this course of conduct constituted breach of contract, fraud, and violation of the Illinois Wage Payment and Collection Act ( see Ill.Rev.Stat.1977, ch. 48, pars. 39m-1, et seq.).
Plaintiff filed his complaint on November 29, 1983. Defendants filed a motion to dismiss on grounds that the complaint was barred by the applicable statute of limitations, that the complaint failed to state a cause of action, and that the complaint was barred by a pending action for administrative review ( see Clark v. Human Rights Com. (1986), 141 Ill.App.3d 178, 95 Ill.Dec. 556, 490 N.E.2d 29 (1986)). The trial court found that plaintiff's complaint stated a cause of action for breach of an oral contract, and that all of his claims were barred by the five-year statute of limitations. See Ill.Rev.Stat.1983, ch. 110, par. 13-205.
Plaintiff filed a timely notice of appeal.

OPINION

Plaintiff contends that his compensation contract was written, not oral, and therefore subject to the ten-year statute of limitations ( see Ill.Rev.Stat.1983, ch. 110, par. 13-206). Defendants respond that the purported writings lack essential terms of the contract, and so the trial *176 court properly concluded that the five-year statute for oral contracts barred plaintiff's cause of action. We agree with defendants.
[1] Link to KeyCite Notes A contract is written where all essential terms are reduced to writing and are ascertainable from the instrument itself; if parol evidence must be introduced to make the contract complete, then the contract is unwritten. ( See Railroad Passenger & Freight Conductors' Mutual Aid & Benefit Assoc. v. Loomis (1892), 142 Ill. 560, 32 N.E. 424; Schmidt v. Niedert (1976), 45 Ill.App.3d 9, 3 Ill.Dec. 620, 358 N.E.2d 1305.) Defendants point to a number of essential terms absent from the alleged contract writings, including the number of quota units associated with the sale of Infocast, the dollar value per quota unit, and plaintiff's name. Plaintiff responds that these terms are set forth in other writings and in the judicial admissions of the defendants.
[2] Link to KeyCite Notes We believe that plaintiff has misconceived the issue in this case. The issue is not whether the terms of the contract can be readily ascertained, the issue is whether the writings contain the necessary terms. Here, the parties' agreement with respect to the allocation of quota units for Infocast and the dollar value per unit cannot be found in the writings attached to the complaint. It may be true that company policy and testimony before an administrative tribunal establish these matters, but this does not convert an unwritten agreement into a **38 ***565 written one, and plaintiff cites no authority to this effect. We conclude that the trial court properly applied the five-year statute of limitations to plaintiff's action.
[3] Link to KeyCite Notes[4] Link to KeyCite Notes Plaintiff next contends that the statute was tolled by defendants' fraudulent concealment of his cause of action. Defendants respond that plaintiff had a reasonable time after discovery of his cause of action in which to file suit, and so the statute was not tolled. It is settled that if a plaintiff discovers a cause of action before the statutory period has run and fails to file within a reasonable time, the plaintiff is barred notwithstanding the defendants' fraudulent concealment. ( Anderson v. Wagner (1979), 79 Ill.2d 295, 322, 37 Ill.Dec. 558, 402 N.E.2d 560; Sabath v. Mansfield (1978), 60 Ill.App.3d 1008, 1014-15, 18 Ill.Dec. 8, 377 N.E.2d 161.) The complaint in this case demonstrates that plaintiff's causes of action accrued in October of 1978, and that plaintiff discovered defendants' alleged breaches and misrepresentations no later than June of 1981. It is apparent, therefore, that plaintiff discovered the causes alleged in his complaint more than two years before the statute of limitations ran. The trial court was correct in holding that, as a matter of law, this was a reasonable time within which to file suit, and that plaintiff's claims filed on November 29, 1983, were barred.
Plaintiff next contends that defendants' conduct constituted a *177 violation of the Illinois Wage Payment and Collection Act (the Act) ( see Ill.Rev.Stat.1977, ch. 48, pars. 39m-1 et seq.), and that section 39m-14 of the Act provides that
   
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« Reply #12 on: August 28, 2006, 07:30:52 AM »

130 Ill.App.3d 563, 474 N.E.2d 759, 85 Ill.Dec. 799

Appellate Court of Illinois,
Fifth District.
Rosemary WEAVER, Plaintiff-Appellee,
v.
Hugh H. WATSON, Defendant-Appellant.
No. 5-84-0051.
Dec. 27, 1984.

Widow of deceased partner brought action against surviving partner to recover share of business pursuant to partnership contract. The Circuit Court, Franklin County, Loren P. Lewis, J., entered judgment for widow, and surviving partner appealed. The Appellate Court, Welch, J., held that: (1) the action was not barred under five-year statute of limitations applicable to unwritten contracts; (2) the action was not barred by laches; (3) judgment was not inconsistent with prior unappealed order in which trial court concluded that widow had done nothing after deceased partner's death to “continue” the partnership per the partnership agreement; and (4) widow was entitled to prejudgment interest.
Affirmed.

Statute of limitations to be applied is to be determined by type of injury sustained, rather than by nature of facts from which the claim arises.

Where parol evidence must be resorted to to show existence of a contractual relationship between plaintiff and defendant, five-year limitations period applicable to actions on unwritten contracts rather than ten-year period relating to written contracts applies. Ill.Rev.Stat.1973, ch. 83, §§ 16, 17.

Five-year statute of limitations relating to unwritten contracts was applicable in action brought by deceased partner's widow against surviving partner to recover her share of the business under partnership contract where parol evidence was necessary to show her personal right to recover. Ill.Rev.Stat.1973, ch. 83, § 16.

A surviving partner bears a fiduciary relationship toward estate of a deceased partner.

Statute of limitations applicable to deceased partner's widow's action on partnership contract against surviving partner was tolled until widow learned of surviving partner's actions inconsistent with her claimed interest in the partnership business and, thus, the action was not barred. Ill.Rev.Stat.1973, ch. 83, § 16.

“Laches” is applied where there is such neglect or omission to assert a right, taken in conjunction with a lapse of time of more or less duration and other circumstances causing prejudice to an adverse party, as will operate to bar relief in equity.

Laches will not be found merely because of lapse of time; passage of time must have caused such a hardship to defendant that granting relief to plaintiff would be inequitable and unjust.

Laches will not be found if the delay is short of statutory period of limitations and there has been no change of circumstances.

Deceased partner's widow's action on partnership contract against surviving partner was not barred by equity where the action was not barred by applicable statute of limitations and where defendant's allegedly prejudicial disposal of his records was not attributable to any delay on plaintiff's part.

Deceased partner's widow, who brought action against surviving partner under partnership contract, was not bound by unappealed order in which trial court concluded that she had done nothing after her husband's death to “continue” the partnership per the partnership agreement; final judgment awarding plaintiff damages was not inconsistent with the order and, even if it were, reversal would not be required because the order did not finally determine rights of the parties.

An interlocutory order may be modified or vacated at any time prior to final judgment.

Judgment awarding damages to widow of deceased partner in action on partnership contract did not depend on conclusion that surviving partner and widow ever operated the business as partners.


A partner is not liable for interest merely because the property is in his hands for purpose of winding up affairs of the partnership, and whether he may be liable depends on circumstances of each case.

Where circumstances relating to winding up of partnership are such as equitably to demand payment of interest, as where one partner has retained the money for an unreasonable length of time, or where he is wrongfully withholding it, or where one partner has improperly used or neglected to account for assets of the partnership, interest will be allowed from the time when the partnership accounts should have been settled.

n deceased partner's widow's action against surviving partner to recover under partnership contract, findings that, since deceased partner's death, surviving partner had been under a duty at all times to render an accounting for deceased partner's interest in the partnership, yet had retained possession of deceased partner's property and had used it in the business were sufficient to support award of interest, and were not manifestly contrary to weight of the evidence.

**761 *564 ***801 Elmer Jenkins, Benton, for defendant-appellant.
Harris, Lambert & Wilson, Marion, for plaintiff-appellee.

WELCH, Justice:
Plaintiff Rosemary Weaver filed her complaint on February 19, 1981, in the circuit court of Franklin County against defendant Hugh Watson, seeking that a receiver be appointed to operate the business known as Watson's Jewelry, that Mr. Watson be enjoined from operating Watson's Jewelry and disposing of its assets, that the business be ordered wound down, that a full accounting be made as to the assets and business of Watson's Jewelry, and that Mrs. Weaver be paid for her share of Watson's Jewelry. After a bench trial and an accounting, the court entered judgment for Mrs. Weaver and against Mr. Watson *565 in the sum of $93,789.77 plus costs of suit. Mr. Watson appeals. There is no cross-appeal.
Most of the pertinent facts are undisputed. Mr. Watson and his brother Allie, Mrs. Weaver's husband, entered into a written partnership agreement dated May 27, 1950, concerning the operation of Watson's Jewelry, the partnership business. The agreement by its terms was to run for a period of 25 years, should both partners so long live. Under the articles of partnership, Mr. Watson was to devote the whole of his time and attention to the business; Allie was not required to devote any time to the business; Mr. Watson was to draw a monthly salary, to be determined by the partners, payable out of profits of the business; if there were no profits, Mr. Watson was to be paid whenever there were profits. Under the articles of partnership, if either partner were to die during the partnership, then his executor or administrator, or any person or persons to whom he should by will bequeath his share, was entitled to the share of such deceased partner in the capital, stock, property, and effects of the partnership, and might either continue as a partner or partners in the business or terminate the partnership as therein provided by a living partner. Under the agreement's provisions governing termination, the partners were to fully and correctly account to each other, and were to divide everything in the same shares as their capital contributions; the agreement stated that the capital had been brought in by the partners in equal shares.
Allie died September 17, 1974, in his will leaving his entire estate to his wife, Mrs. Weaver. There is no indication of record that said will was ever admitted to probate. Mr. Watson and Mrs. Weaver met at various times after Allie's death to discuss the business; the substance of these conversations is disputed. By written notice to Mr. Watson dated November 21, 1980, Mrs. Weaver gave Mr. Watson 90 days notice of termination of the partnership.
Mrs. Weaver testified that in a meeting between herself and Mr. Watson about four days after Allie's death, she and Mr. Watson agreed to carry on the business as partners; that, a few days later, Mr. Watson brought her a bank signature card, which she signed, after which her name was added to the business checking account together with Mr. Watson's and Allie's name was dropped; she discovered in 1980 that on September 26, 1978, her name had been dropped, and Mr. Watson's wife's added, without Mrs. Weaver's knowledge or permission; in 1976, she received from Mr. Watson a check for $1,000 with the note “dividends” on the face of the check; she received a $750 check in 1977 and a $500 check in 1978; in May, *566 1979, Mr. Watson told her that the business had had a bad year and that there had been no profits and hence no checks; in June, 1979, Mr. Watson offered her $15,000 for her share of the business.
**762 ***802 Mr. Watson testified that his discussions with Mrs. Weaver after Allie's death concerned what amount she would take for Allie's interest in the business; she never set a price; she turned down an offer of $20,000; he never agreed to be her partner; the “dividend” payments were gratuitous and were made out of his affection for his deceased brother; he had put her name on the checks of the business to make her feel better; she had no interest in the business.
Per order of the trial court, Mr. Watson caused to be prepared a proposed accounting, dated September 17, 1981. After a hearing, the trial court found that accounting insufficient. A second accounting was filed December 1, 1981. After another hearing, the trial court on September 30, 1983, entered the judgment complained of. Inter alia, the court found that the partnership had dissolved upon Allie's death and that at all times since Allie's death Mr. Watson had been under a duty to render an accounting for Allie's interest in the business, but had failed to do so and instead had used Allie's property in the operation of Watson's Jewelry. The judgment included amounts for (1) Allie's estate's share of the partnership property as of his death; (2) the estate's share of the net profits of the business from Allie's death to December 31, 1982, due to Mr. Watson's retention of the estate's property; and (3) statutory interest on the amounts owed for property and profits, less the amounts paid by Mr. Watson to Mrs. Weaver from 1976 to 1978. The court reserved jurisdiction as to accounting for 1983 profits, if any. Mrs. Weaver's prayer for appointment of a receiver was denied.
Mr. Watson argues that the trial court erred in failing to find Mrs. Weaver's claim barred by the applicable statute of limitations. Mr. Watson argues that Mrs. Weaver's cause of action accrued upon Allie's death and thus is barred by the five year statute of limitations applicable to actions on unwritten contracts and for actions for injury done to property, real or personal, or to recover the possession of personal property or damages for the detention or conversion thereof, and all civil actions not otherwise provided for. (Ill.Rev.Stat.1973, ch. 83, par. 16.) Mrs. Weaver argues that she had no right to sue for an accounting until she dissolved the partnership by letter, effective 90 days after the receipt thereof, and that her cause of action accrued when the partnership was dissolved. Alternatively, Mrs. Weaver contends that her cause of action accrued on January 7, 1980, when she discovered that her name had been dropped from the business checking *567 account and thus discovered Mr. Watson's position that she had no interest in the partnership. Mrs. Weaver also argues that her action is based on the written partnership agreement and hence that the applicable statute of limitations is the 10 year statute governing actions on written contracts or other evidences of indebtedness in writing. Ill.Rev.Stat.1973, ch. 83, par. 17.
[1] Link to KeyCite Notes[2] Link to KeyCite Notes The statute of limitations to be applied is to be determined by the type of injury sustained, rather than the nature of the facts from which the claim arises. ( Schrebier v. Eastern Airlines, Inc. (1976), 38 Ill.App.3d 556, 348 N.E.2d 218, 219-20.) Under section 16 of the Limitations Act (Ill.Rev.Stat.1973, ch. 83, par. 17), a contract cannot be said to be in writing unless the parties thereto, as well as the terms and provisions thereof, can be ascertained from the instrument itself. Thus, where parol evidence must be resorted to show the existence of a contractual relationship between the plaintiff and the defendant, the five year statute rather than the 10 year statute applies. Novosk v. Reznick (1944), 323 Ill.App. 544, 56 N.E.2d 318, 321.
[3] Link to KeyCite Notes Recognizing the applicability of the rule in Novosk v. Reznick, Mrs. Weaver argues that Mr. Watson's duty was to account to his brother, and that this is what the trial court ordered him to do. However, Mrs. Weaver's action was brought in her own right, and judgment entered in her favor personally, not as representative of an estate. Parol evidence was necessary to show her personal right to recover based **763 ***803 on the contract of the partners. The five year statute applies in this case.
Accordingly, we must decide whether Mrs. Weaver's cause of action accrued more than five years prior to the February 19, 1981, filing of her complaint. Two events suggest themselves as having commenced the running of the five year period, the first being Allie's death in 1974 and the second being Mrs. Weaver's 1980 discovery that her name had been dropped from the business checking account. The latter event was expressly relied upon in Mrs. Weaver's complaint as revealing to her that her partnership with Mr. Watson was denied by him. The complaint was filed within five years of this event.
[4] Link to KeyCite Notes[5] Link to KeyCite Notes The result is no different if Mrs. Weaver's cause of action is deemed to have accrued upon Allie's death. Mr. Watson was the dominant figure in the partnership business even when his brother was alive. The placing of Mrs. Weaver's name on the business checking account and the annual “dividend” payments were, if not evidence of a partnership agreement between herself and Mr. Watson, at least a representation that she had an interest in the business and that that *568 interest would be recognized. A surviving partner bears a fiduciary relationship toward the estate of a deceased partner. ( Jackson v. Jackson (1951), 343 Ill.App. 31, 98 N.E.2d 169, 176.) Under the instant circumstances, we are of the view that the statute of limitations was tolled until Mrs. Weaver learned of Mr. Watson's actions inconsistent with her claimed interest in the partnership business. (See Higgins v. Higgins (1966), 72 Ill.App.2d 179, 219 N.E.2d 88, 93-94.) The trial court did not err in failing to find Mrs. Weaver's action barred by the five year statute of limitations.
[6] Link to KeyCite Notes[7] Link to KeyCite Notes[8] Link to KeyCite Notes Mr. Watson argues that the trial court erred in failing to find Mrs. Weaver's action barred by laches. Laches is applied where there is such neglect or omission to assert a right, taken in conjunction with a lapse of time of more or less duration and other circumstances causing prejudice to an adverse party, as will operate to bar relief in equity. It is necessary to examine the facts of each case to determine whether laches applies. ( Thurston v. State Board of Elections (1979), 76 Ill.2d 385, 30 Ill.Dec. 304, 305-06, 392 N.E.2d 1349, 1350-51.) Laches will not be found merely because of lapse of time. ( Kozak v. Retirement Board of the Fireman's Annuity and Benefit Fund of Chicago (1981), 99 Ill.App.3d 1015, 1019, 55 Ill.Dec. 198, 201, 425 N.E.2d 1371, 1374, aff'd (1983), 95 Ill.2d 211, 69 Ill.Dec. 177, 447 N.E.2d 394.) The passage of time must have caused such a hardship to the defendant that granting relief to the plaintiff would be inequitable and unjust. ( Harper v. City Mutual Insurance Co. (1978), 67 Ill.App.3d 694, 24 Ill.Dec. 308, 312, 385 N.E.2d 75, 79.) Laches will not be found if the delay is short of the statutory period of limitations and there has been no change of circumstances. Pinelli v. Alpine Development Corp. (1979), 70 Ill.App.3d 980, 26 Ill.Dec. 942, 958, 388 N.E.2d 943, 959.
[9] Link to KeyCite Notes Mr. Watson argues that he was prejudiced by Mrs. Weaver's delay in filing her action in that he was induced to dispose of the written records which he needed to prove his position as to Allie's share of the partnership business. We disagree in view of Mr. Watson's testimony at trial and his admission in his brief that he had met several times with Mrs. Weaver beginning in 1974 in an effort to agree upon compensation for her share. Such records were pertinent to any informed attempt to determine the worth of Allie's share. Thus Mr. Watson's disposal of his records does not appear to have been attributable to any delay on Mrs. Weaver's part. The trial court, having failed to find Mrs. Weaver's claim barred by the statute of limitations, did not err in refusing to find her guilty of laches.
[10] Link to KeyCite Notes[11] Link to KeyCite Notes Mr. Watson argues that Mrs. Weaver is bound by the unappealed September 16, 1981, written order in which the trial court concluded that Mrs. Weaver had done nothing after Allie's death to “continue” *569 the partnership per the partnership **764 ***804 agreement. Mr. Watson argues that the trial court in its final judgment nevertheless awarded Mrs. Weaver damages as though she had been a partner after Allie's death. There are two answers to this contention. First, the final judgment appealed from is not inconsistent with the September 16, 1981, order. In the final judgment, Mrs. Weaver was found entitled to her husband's share as of his death, plus damages resulting from Mr. Watson's failure to account for and pay over that share at that time. Second, even if the September 16, 1981, order were inconsistent with the final judgment, such inconsistency alone would not require reversal of the judgment. The order of September 16, 1981, did not finally determine the rights of the parties. Such determination could not be made until an accounting was rendered. Thus the September 16, 1981, order was merely interlocutory. (See In re Estate of Basile (1975), 32 Ill.App.3d 618, 336 N.E.2d 214, 215.) An interlocutory order may be modified or vacated at any time prior to final judgment. Richichi v. City of Chicago (1964), 49 Ill.App.2d 320, 199 N.E.2d 652, 655.
[12] Link to KeyCite Notes Mr. Watson argues that the evidence establishes that Mrs. Weaver did not act to “continue” the partnership after Allie's death and that the court's apparent conclusion otherwise was contrary to the manifest weight of the evidence. Our review of the judgment complained of indicates that the trial court agreed with Mr. Watson on this point. Said judgment does not depend on the conclusion that Mr. Watson and Mrs. Weaver ever operated the business as partners.
[13] Link to KeyCite Notes[14] Link to KeyCite Notes[15] Link to KeyCite Notes Finally, Mr. Watson contends that the trial court erred in awarding Mrs. Weaver prejudgment interest as to the amounts due her from Allie's share of the partnership. A partner is not liable for interest merely because the property is in his hands for the purpose of winding up the affairs of the partnership, and whether he may be liable depends on the circumstances of each case. ( Randolph v. Inman (1898), 172 Ill. 575, 50 N.E. 104, 105.) Where the circumstances are such as equitably to demand payment of interest, as where one partner has retained the money for an unreasonable length of time, or where he is wrongfully withholding it ( Korziuk v. Korziuk (1958), 13 Ill.2d 238, 148 N.E.2d 727), or where one partner has improperly used or neglected to account for the assets of the partnership ( Randolph v. Inman; Snell v. Taylor (1899), 182 Ill. 473, 55 N.E. 545, 547), interest will be allowed from the time when the partnership accounts should have been settled ( Korziuk v. Korziuk ). Here, the trial court found that since Allie's death, Mr. Watson *570 had been under a duty at all times to render an accounting for Allie's interest in the partnership, yet had retained possession of Allie's property and had used it in the business. These findings are sufficient to support the award of interest, and are not manifestly contrary to the weight of the evidence. (See Pinelli v. Alpine Development Corp. (1979), 70 Ill.App.3d 980, 26 Ill.Dec. 942, 959, 388 N.E.2d 943, 960.) We find no error as to the award of interest.
For the foregoing reasons, the judgment of the circuit court of Franklin County is affirmed.
AFFIRMED.

KARNS and HARRISON, JJ., concur.
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« Reply #13 on: August 28, 2006, 07:33:20 AM »

106 Ill.App.3d 237, 435 N.E.2d 923, 62 Ill.Dec. 125

Appellate Court of Illinois, Third District.
Robert MUNSTERMAN, Arthur Brutlag and Kenneth Brutlag, Plaintiffs-Appellants,
v.
ILLINOIS AGRICULTURAL AUDITING ASSOCIATION, a corporation; and Illinois Agricultural Association, a corporation, Defendants-Appellees.
No. 81-660.
May 12, 1982.

Persons who had sold grain to elevator or stored grain at elevator brought action against elevator's auditors to recover for breach of contract and tortious misrepresentation. The Circuit Court, Iroquois County, Wayne Dyer, J., dismissed and plaintiffs appealed. The Appellate Court, Heiple, J., held that: (1) contract is in writing for limitations purposes as to a party only if he can be ascertained from the agreement; (2) for the ten-year statute of limitations to apply, the parties to the contract must at least be named in the contract; and (3) contract was wholly oral as to asserted third-party beneficiary who could be identified only through parol evidence.
Affirmed.


For limitations purposes, contract is in writing as to a party only if he can be ascertained as a party from the agreement.

Where none of the plaintiffs were named parties to the contract and could only be ascertained as beneficiaries or third parties to the agreement by resort to parol evidence, the contract was wholly oral as to them and the five-year statute of limitations was applicable to action which they brought for breach of contract. S.H.A. ch. 83, ¶¶ 16, 17.

Contractual term “employee” would not be sufficient to identify employees of parties to the contract so as to make the contract written as to them, and thus make the ten-year statute of limitations applicable to an action for breach. S.H.A. ch. 83, ¶¶ 16, 17.
I find this one interesting.


Fact that a party benefits from a contract does not transpose an unwritten contract into an executed one for limitations purposes where the party seeking to enforce the contract is unnamed and unidentified in the contract; parties to a contract must be, at least, named if the ten-year statute of limitations is to apply. S.H.A. ch. 83, ¶¶ 16, 17.


Complaint seeking to recover for tortious misrepresentation sounds in tort and is governed by five-year statute of limitations.


Filing of class action suspended operation of limitations statute while the cause was pending.

Limitations period begins to run again when class action was terminated.

Filing of class action, which was not certified as such, did not continue to toll statute of limitations after its dismissal until the time that individual actions were dismissed.

*237 **924 ***126 James Wylder, James Walker, Ltd., Bloomington, for plaintiffs-appellants.
Gary D. Nelson, William J. Voelker and Judith A. Schiebe, Heyl, Royster, Voelker & Allen, Peoria, for defendants-appellees.

HEIPLE, Justice:
Robert Munsterman, and Arthur and Kenneth Brutlag, plaintiffs, sold or stored grain at an elevator in Crescent City, Illinois prior to May 8, 1972. That elevator was owned and operated by the Crescent City Farmer's Grain Company (“the Company”). In 1967, the Company executed*238 a written agreement with the defendant, Illinois Agricultural Auditing Association (“IAAA”) whereby IAAA would audit the Company's elevator accounts in return for compensation. That contract included warranties that IAAA would discharge its audits in a competent manner. Illinois Agricultural Association (“IAA”), the other defendant, is the parent company and majority stockholder of IAAA.
From 1967 to 1971, IAAA published annual reports on their audits of the Company. These reports indicated the Company was fiscally sound. Similar appraisals by IAAA personnel echoed at the Company's annual meetings. By May 8, 1972, however, the Company was insolvent. It could not discharge its financial or commodity obligations to its agricultural customers.
**925 ***127 On November 23, 1973, a class action suit was filed in Ford County against defendants for the economic losses suffered by those persons trading with the Company. Plaintiffs here were not individually named in that suit. The class action was stricken on September 6, 1974; whereupon the action was amended on behalf of other individual plaintiffs (not the plaintiffs in the instant case). That litigation languished until April 27, 1977, when it was transferred to Iroquois County on stipulation of the parties. On October 7, 1977, that suit was dismissed.
On January 16, 1979, plaintiffs filed the instant action. Defendant filed a motion to dismiss the cause, maintaining plaintiffs were barred by the statute of limitations. The circuit court agreed, dismissing the complaint on February 22, 1980. On June 1, 1981, plaintiffs filed an amended complaint. The defendants reasserted that the action was barred by the statute of limitations and moved for judgment on the pleadings. The Circuit Court of Iroquois County dismissed the amended complaint with prejudice on October 9, 1981. Plaintiffs appeal.
Plaintiffs contend the five year statute of limitations on oral contracts was suspended by the filing of a class action wherein they were a represented party. Alternatively, they argue the ten year statute of limitations (Ill.Rev.Stat.1979, ch. 83, s 17) pertaining to written contracts is applicable, since they are third party beneficiaries to the written agreement between the Company and IAAA. Plaintiffs rely on Allen v. McWilliams Electric Co., Inc. (N.D.Ill.1980), 494 F.Supp. 53. We disagree.
[1] Link to KeyCite Notes[2] Link to KeyCite Notes Our Limitations Act provides the time period for enforcement of an unwritten contract is five years after the date on which the cause of action accrued. (Ill.Rev.Stat.1972, ch. 83, s 16.) The parties agree that any cause of action accrued on May 8, 1972, the date of the Company's insolvency. The auditing agreement between the Company and IAAA for auditing services does not identify plaintiffs to it. A contract is in writing as to a party only if he can be ascertained as a party from such agreement. (*239 Railway Passenger and Freight Conductors Mutual Aid & Benefit Association v. Loomis (1892), 142 Ill. 560, 567, 32 N.E. 424.) None of the plaintiffs are named parties to the contract. They can only be ascertained as beneficiaries or third parties to such agreement by resort to parol evidence. Hence, the contract is wholly oral as to them. (Wielander v. Henich (1965), 64 Ill.App.2d 228, 231-233, 211 N.E. 775.) For limitation purposes, because the contract is unwritten, the five year statute applies. Matzer v. Florsheim Shoe Company (1971), 132 Ill.App.2d 470, 472, 270 N.E.2d 75.
[3] Link to KeyCite Notes[4] Link to KeyCite Notes The Allen court found the 10 year statute applicable in a federal employer/employee labor contract dispute even though the employees were not named in the contract. That court, in applying what it perceived to be Illinois law, held the plaintiffs were sufficiently identified to the contract by the term, “ * * * employee * * *.” If Allen is based on Illinois law, it is incorrectly decided. No other Illinois reviewing court has followed it. Neither will we. The fact a party benefits from a contract does not transpose an unwritten contract into an executed one, for limitation purposes, where the party seeking to enforce that agreement is unnamed and unidentified to such pact. (e.g., Pratl v. Hawthorn-Mellody Farms Dairy Inc. (1977), 53 Ill.App.3d 344, 347, 11 Ill.Dec. 216, 368 N.E.2d 767.) The parties to such a contract must be, at least, named if the 10 year statute is to be applied. Wielander v. Henich.
[5] Link to KeyCite Notes Secondly, the gravamen of plaintiffs' amended complaint sought to sustain a cause of action based on tortious misrepresentation. Such an action sounds in tort. It is governed by the five year limitations provision. Chicago Park District v. Kenroy (1980), 78 Ill.2d 555, 560-561, 37 Ill.Dec. 291, 402 N.E.2d 181.
[6] Link to KeyCite Notes[7] Link to KeyCite Notes Absent some event, statutory provision, or personal disability tolling the five year statute, plaintiffs' cause of action became unenforcible on May 8, 1977. Plaintiffs**926 ***128 say the filing of the Ford County class action on November 23, 1973 suspended the operation of the limitations statute while the cause was pending. (Steinberg v. Chicago Medical School (1977), 69 Ill.2d 320, 342, 13 Ill.Dec. 699, 371 N.E.2d 634, citing, American Pipe & Construction Company v. Utah (1974), 414 U.S. 538, 554, 94 S.Ct. 756, 766, 38 L.Ed.2d 713, 727.) We agree. But we note plaintiffs did not file an individual action on or before the class action suit was filed. And, we observe the class action suit was dismissed on September 6, 1974, nine months and 14 days after being filed. The limitations period began to run again when the class action was terminated on September 6, 1974. Thus, plaintiffs' claim was not barred on May 8, 1977, but nine months and 14 days later, namely, February 22, 1978. Plaintiffs filed the present action January 16, 1979, some ten months after the limitations period (including the time tolled) expired. Accordingly, the trial judge correctly dismissed plaintiffs' complaint since it was time-barred.
The American Pipe case is instructive. In that cause a class action suit was filed 11 days before the statute of limitations expired on causes of *240 action of non-party members of the class. After the limitations period expired, the trial court refused to certify the class, thereby stripping the class members of standing to proceed with their complaint. Eight days after the entry of that order, non-party members of the defunct class sought to intervene. The United States Supreme Court held the statute of limitations was tolled for those non-parties while the class action was being litigated, at least as to the nominal plaintiff's authority to proceed as a class. The statute of limitations commenced running immediately after the trial court refused to certify the class. Thus, those non-party members who sought intervention within 11 days from that order were not time-barred from seeking to enforce their remedies. (Compare with, United States Airlines Inc. v. McDonald (1977), 432 U.S. 385, 394, 97 S.Ct. 2464, 2470, 53 L.Ed.2d 423, 432.) We adhere to the reasoning of American Pipe.[FN1]

    FN1. We realize American Pipe addressed a federal statute in the context of Rule 23 of the Federal Rules of Civil Procedure. Nonetheless, the reasoning is persuasive in view of the adaptation of the Illinois Class action rule (Ill.Rev.Stat., 1979, ch. 110 par. 57.2) which is modelled, in large part, on the federal rule. (Ill.Rev.Stat.1979, ch. 110, par. 57.2 (Supplement to Historical and Practice Notes) (Smith-Hurd).

[8] Link to KeyCite Notes Plaintiffs say Steinberg v. Chicago Medical School goes further. Namely, the Ford County class action, although not certified as such, tolled the statute of limitations until the individual action was dismissed on October 7, 1977. In short, plaintiffs say, Steinberg suspends and ultimately extends the limitations period for the purpose of filing independent actions. We think not.
Steinberg held the filing of a class action suit suspended the limitations period for all members of the class in the class action itself. The record indicates the plaintiffs did not intervene once the class action in Ford County was terminated. They did not do anything until January 16, 1979. Because of this failure to assert their rights on or before February 22, 1978, plaintiffs were barred from seeking to enforce their remedy on January 16, 1979.
For the reasons stated, the judgment of the Circuit Court of Iroquois County is hereby affirmed.
AFFIRMED.

ALLOY and SCOTT, JJ., concur.
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« Reply #14 on: August 28, 2006, 08:07:47 AM »

Supreme Court of the United States
WARNING! This one is long (19 pages).

Leila MOURNING, Petitioner,
v.
FAMILY PUBLICATIONS SERVICE, INC.
No. 71-829.
Argued Nov. 9, 1972.
Decided April 24, 1973.

Action was brought by magazine subscriber against subscription service corporation to recover civil penalty for failure of the corporation to make disclosures required by the Truth in Lending Act in the contract between parties. The United States District Court for the District of Florida entered summary judgment for the subscriber and the corporation appealed. The United States Court of Appeals for the Fifth Circuit, 449 F.2d 235, reversed and remanded with directions, and certiorari was granted. The Supreme Court, Mr. Chief Justice Burger, held, inter alia, that in light of legislative history of Truth in Lending Act, Federal Reserve Board in promulgating four installment rule compelling seller to comply with disclosure requirements of Act to those to whom it extends consumer credit without finance charge if sum owed is payable in more than four installments does not exceed statutory authority and is reasonably related to its objectives of preventing the evasion of reporting requirements of Act by concealing credit charges, and the regulation is not invalid as creating a conclusive presumption in violation of the Fifth Amendment.
Reversed and remanded.
Mr. Justice Powell filed a dissenting Justice Stewart and Mr. Justice Rehnquist concurred filed an opinion dissenting in part.
Mr. Justice Powell filed a dissenting opinion.
On remand, judgment of Court of Appeals vacated and judgment of District Court affirmed, 488 F.2d 979.


Section of Truth in Lending Act delegating to the Federal Reserve Board broad authority to promulgate necessary regulations to render Act effective evinces awareness of Congress that some creditors would attempt to characterize their transactions so as to fall one step outside whatever boundary Congress attempted to establish and desire of Congress to insure that Board has adequate power to deal with such attempts at evasion. Truth in Lending Act, § 105, 15 U.S.C.A. § 1604.

By delegating broad authority to Federal Reserve Board to promulgate regulations necessary to render Truth in Lending Act effective, Board is empowered to define such classifications as are reasonably necessary to insure that objectives of Act are fulfilled no matter what adroit or unscrupulous practices are employed by those extending credit to consumers. Truth in Lending Act, § 105, 15 U.S.C.A. § 1604.

Where empowering provision of statute simply states that agency may make such rules and regulations as may be necessary to carry out provisions of Act, validity of regulation promulgated thereunder will be sustained so long as it is reasonably related to purposes of enabling legislation.

In light of legislative history of Truth in Lending Act, Federal Reserve Board in promulgating the four installment rule compelling seller to comply with disclosure requirements of Act to those to whom it extends consumer credit without finance charge if sum owed is payable in more than four installments does not exceed statutory authority and is reasonably related to its objectives of preventing the evasion of reporting requirements of Act by concealing credit charges. Truth in Lending Act, § 105, 15 U.S.C.A. § 1604.

Where reasonable minds may differ as to which of several remedial measures should be chosen, court should defer to the informed experience and judgment of agency to whom Congress delegated appropriate authority.

None of the sections of Truth in Lending Act which refer specifically to transactions involving finance charges or any other sections of Act indicate congressional attempt to list comprehensively all types of transactions to which Federal Reserve Board regulations might apply, and therefor the references in Act to transactions in which a finance charge is in fact imposed do not establish invalidity of Federal Reserve Board four installment rule requiring disclosure in some cases in which no finance charge exists. Truth in Lending Act, §§ 103(f), 121, 130(a), 15 U.S.C.A. §§ 1602(f), 1631, 1640(a).

Since deterrent effect of Federal Reserve Board four installment rule implements objectives of Truth in Lending Act, rule is not void because it also requires disclosure by some creditors who do not charge credit and thus need not be deterred. Truth in Lending Act, § 105, 15 U.S.C.A. § 1604.


Not every section of an act establishing a broad regulatory scheme must be construed as a penal provision merely because a few sections of the act provide for civil and criminal penalties.

Penal statutes are construed narrowly to insure that no individual is convicted unless a fair warning has been first given to the world in language that the common world will understand of what the law intends to do if a certain line is passed.

Section of Truth in Lending Act providing that penalty assessed shall be twice the amount of finance charge imposed for not less than $100 does not forbid the imposition of civil penalty in cases in which no finance charges are involved but where a regulation requiring disclosure is violated. Truth in Lending Act, § 130, 15 U.S.C.A. § 1640.

Since civil penalty prescribed in Truth in Lending Act is modest and the prohibitive conduct clearly set out in regulation promulgated under Act, court need not construe the section imposing penalty as narrowly as a criminal statute providing graver penalties such as prison terms. Truth in Lending Act, § 130, 15 U.S.C.A. § 1640.

Because objective in delegating rule-making authority to an agency is to relieve Congress of the impossible burden of drafting code explicitly covering every conceivable future problem, Congress cannot be required to tailor civil penalty provisions so as to deal precisely with each step which agency thereafter finds necessary.

Under section of Truth in Lending Act providing that penalty assessed shall be twice the amount of finance charge but not less than $100, the imposition of the minimum sanction for violation of four installment rule was proper in case in which finance charge was nonexistent or undetermined. Truth in Lending Act, § 130, 15 U.S.C.A. § 1640.

Federal Reserve Board four installment rule regulation under Truth in Lending Act applying the disclosure requirements of Act to those extending consumer credit without finance charge if sum owed is payable in more than four installments does not violate Fifth Amendment on the ground that it establishes conclusive presumption of determinative facts. Truth in Lending Act, § 130, 15 U.S.C.A. § 1640; U.S.C.A.Const. Amend. 5.

Statutory scheme of Truth in Lending Act is within power granted to Congress under the commerce clause. Truth in Lending Act, § 102 et seq., 15 U.S.C.A. § 1601 et seq.; U.S.C.A.Const. art. 1, § 8, cl. 3.

It is not function of court to speculate as to whether statute is unwise or whether the evil sought to be remedied could have been better regulated in some other manner.

**1654 *356 SyllabusFN*

    FN* The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U.S. 321, 337, 26 S.Ct. 282, 287, 50 L.Ed. 499.

Petitioner, who contracted to purchase magazine subscriptions from respondent, brought this action in District Court, alleging that respondent had failed to comply with the disclosure provisions of the Truth in Lending Act, as implemented by Federal Reserve Board ‘Regulation Z.’ The District Court found that respondent had failed to comply with Regulation Z, in that respondent had extended credit to petitioner, payable in more than four installments, without making the disclosures required by the Act. The Court of Appeals reversed, holding that the Board had exceeded its statutory authority in issuing Regulation Z since the regulation required disclosure in some credit transactions in which a finance charge had not been made, and, alternatively, that the regulation violated due process by creating a conclusive presumption that credit payments made in more than four installments included a finance charge. Held:
1. The ‘Four Installment Rule’ of Regulation Z is a valid exercise of the Federal Reserve Board's rulemaking authority under the Truth in Lending Act. Pp. 1657-1664.
(a) Congress, which was well aware that merchants could evade the disclosure requirements of the Act by concealing credit charges, gave the Board broad rulemaking power to prevent such evasion, and, in the exercise of that power, the Board issued the challenged rule to deal with the practice of concealing finance charges in the cash price of merchandise sold. Pp. 1657-1660.
(b) No conflict arises from the fact that the Act mentions disclosure only in regard to transactions in which a finance charge is imposed while the disclosure requirements of the rule sometimes apply where no such charge exists, since Congress did not attempt to specify all types of situations under which the Board's regulations might apply, and the deterrent effect of the rule clearly implements the objectives of the Act. Pp. 1662-1663.
(c) The Board had authority to promulgate a general rule to prevent circumvention, even if the rule embraces some transactions*357 that the provisions of the Act might not on their face reach. Village of Euclid v. Ambler Realty Co., 272 U.S. 365, 47 S.Ct. 114, 71 L.Ed. 303. Pp. 1662-1663.
(d) Existence of penalty provisions in the Act does not require a narrow construction of the Act's nonpenalty provisions. FCC v. American Broadcasting Co., 347 U.S. 284, 74 S.Ct. 593, 98 L.Ed. 699, distinguished. Pp. 1663-1664.
**1655 2. Imposition, pursuant to s 130 of the Act, of a minimum penalty of $100 in cases such as this where the finance charge is nonexistent or undetermined, but where disclosure has not been made, is a permissible sanction. P. 1664.
3. In imposing a disclosure requirement on all members of a defined class to discourage evasion by a substantial portion of that class, the challenged regulation does not create a conclusive presumption violative of the Fifth Amendment. Pp. 1664-1665. 5 Cir., 449 F.2d 235, reversed and remanded.

Eric Schnapper, New York City, for petitioner.
A. Raymond Randolph, Jr., Washington, D.C., for United States, as amicus curiae, pro hac vice, by special leave of Court.
Robert S. Rifkind, Washington, D.C., for respondent.

*358 Mr. Chief Justice BURGER delivered the opinion of the Court.
We granted the writ of certiorari in this case to resolve whether the Federal Reserve Board exceeded its authority under s 105 of the Truth in Lending Act FN1 in promulgating that portion of Regulation Z commonly referred to as the ‘Four Installment Rule.'FN2

    FN1. 82 Stat. 148, 15 U.S.C. s 1604.

    FN2. 12 CFR s 226.2(k) (1972 rev.).

Respondent is a Delaware corporation which solicits subscriptions to several well-known periodicals. In 1969, one of respondent's door-to-door salesmen called on the petitioner, a 73-year-old widow residing in Florida, and sold her a five-year subscription to four magazines. Petitioner agreed to pay $3.95 immediately and to remit a similar amount monthly for 30 months. The contract form she signed contained a clause stating that the subscriptions could not be canceled and an acceleration provision similar to that found in many installment undertakings, providing that any default in installment payments would render the entire balance due. The contract did not recite the total purchase price of the subscriptions or the amount which remained unpaid after the initial remittance, and made no reference to service or finance charges. The total debt assumed by the petitioner was $122.45; the balance due after the initial payment was $118.50.
Petitioner made the initial payment, began to receive the magazines for which she had contracted, and then defaulted. Respondent declared the entire balance of $118.50 due and threatened legal action. Petitioner brought this suit in United States District Court, alleging that respondent had failed to comply with the disclosure provisions of the Truth in Lending Act. She sought recovery*359 of the statutory penalty and reimbursement for the costs of the litigation, including reasonable attorney's fees.
In support of her claim, petitioner submitted to the District Court a series of ‘dunning’ letters which she had received from respondent. One letter, dated December 16, 1969, stated:
‘After making the terms of our contract clear to you, we went ahead in good faith and had your subscriptions entered for the entire periods you had agreed to take. The contract you signed is: Not subject to cancellation after acceptance or verification.
‘Knowing, therefore, the obligations we have incurred in your name, we feel confident that you will continue your magazine subscriptions and make the convenient monthly payments regularly and promptly.'FN3

    FN3. App. 21.

A second letter, received a week later from respondent's agent, declared:
‘After an account is three months delinquent it is brought to my attention. I feel that you should realize that **1656 you are receiving our merchandise which we have paid for. Had you dealt directly with the publishers yourself, you would have had to pay them in advance for the magazines.
‘Again, let me remind you that we have ordered these magazines in advance and that you have incurred an obligation to repay us. This is a credit account, and as such must be repaid by you on a monthly basis, much the same as if you had purchased any other type of merchandise on a monthly *360 budget plan. (Emphasis supplied; underlined words are emphasized in the original letter).’ FN4

    FN4. App. 20.

Respondent admitted sending each of the above letters to petitioner. FN5 In addition, respondent submitted one affidavit to the District Court, describing the nature of the contracts which it offered to its clients. The affidavit stated that a customer who ordered magazine subscriptions from respondent was required to pay for all magazines during the first half of the contract term. FN6 Thus, according to the affidavit, at all times during the course of contract, a purchaser who has complied with the *361 terms of the contract has paid for more magazines than he has received. Respondent did not, however, submit any affidavit to the court contesting any of the facts stated in its ‘dunning’ letters. On this record, both parties moved for summary judgment, declaring explicitly that no factual question remained undecided.

    FN5. Petitioner also submitted to the court a letter sent to her legal counsel by respondent's office manager. The letter stated:

    ‘Whereas, FPS, acts initialy (sic) as agent for the various publishers; upon acceptance of her contract, FPS thereafter acts solely as financier, and coguaranter (sic) of service with the various publishers; whereas, FPS, has fully invested in Mrs. Mourning's contract and does not receive refund in part or full from any, or, all publishers; for said FPS, investment, we therefore, must insist on compliance of your client to the terms of said contract until full-filment (sic) of said terms in the aforementioned contract result (sic) in mutual resolve (sic) of liability.’ App. 14.

    Respondent admitted that this letter had been written on its stationery by its employee, but denied that the employee was authorized to send it. Consequently, we do not consider the facts stated in the letter to have been admitted by respondent.

    FN6. Affidavit of Stanley R. Swanson, Vice President of Family Publications Service, Inc., Aug. 26, 1970, p. 2 (District Court Record 198, 199). The affidavit also stated that, while customers of respondent were free to pay the entire price of their magazine subscriptions when their contract with respondent was signed, the price charged would be equal to the aggregate of the payments that would have been made had the customer elected to pay in installments. Respondent now admits that this statement was not true. In some cases, customers who agreed to pay the entire contract price immediately were charged less than the aggregate amount of the installment payments.

Section 121 of the Truth in Lending Act requires merchants who regularly extend credit, with attendant finance charges,FN7 to disclose certain contract information ‘to each person to whom consumer credit is extended and upon whom a finance charge is or may be imposed . . .'FN8 Among other relevant facts, the merchant must, where applicable, list the cash price of the merchandise or service sold, the amount of finance and other charges, and the rate of the charges.FN9 Failure to disclose renders the seller liable to the consumer for a penalty of twice the amount of the finance charge, but in no event less than $100 or more than $1,000.FN10 The creditor may also be assessed for the costs of the litigation, including reasonable attorney's fees FN11 and, in certain circumstances**1657 not relevant here, may be the subject of criminal charges.FN12

    FN7. s 103(f), 15 U.S.C. s 1602(f). Certain transactions, not here relevant, are exempt under s 104, 15 U.S.C. s 1603.

    FN8. 15 U.S.C. s 1631.

    FN9. s 128, 15 U.S.C. s 1638.

    FN10. s 130, 15 U.S.C. s 1640.

    FN11. Ibid.

    FN12. s 112, 15 U.S.C. s 1611.

Section 105 of the ActFN13 provides:

    FN13. 15 U.S.C. s 1604.

‘The (Federal Reserve) Board shall prescribe regulations to carry out the purposes of (the Act). These regulations may contain such classifications, differentiations, or other provisions, and may provide for such adjustments and exceptions for any class of transactions, as in the judgment of the Board *362 are necessary or proper to effectuate the purposes of (the Act), to prevent circumvention or evasion thereof, or to facilitate compliance therewith.'
Accordingly, the Board has promulgated Regulation Z, which defines the circumstances in which a seller who regularly extends credit must make the disclosures outlined in s 128.FN14 The regulation provides that disclosure is necessary whenever credit is offered to a consumer ‘for which either a finance charge is or may be imposed or which pursuant to an agreement, is or may be payable in more than four installments.'FN15

    FN14. 15 U.S.C. s 1638.

    FN15. 12 CFR s 226.2(k) (1972 rev.).

Relying on the rule governing credit transactions of more than four installments, the District Court granted summary judgment for petitioner. The court found that respondent had extended credit to petitioner,FN16 which by agreement was payable in more than four installments, but had failed to comply with the disclosure provisions of the Act.

    FN16. Respondent challenges the finding of the District Court that credit was extended to petitioner. In some cases in which a consumer pays in installments for a magazine subscription, credit may not have been extended to the consumer. However, in view of the admissions by respondent which were before the District Court, respondent's failure to controvert those admissions by affidavit, and the litigation posture which respondent has consistently maintained beginning in the District Court, i.e., that no factual matters remained unresolved, we conclude that summary judgment on this issue was properly granted. Fed.Rule Civ.Proc. 56(e).

The Court of Appeals reversed, holding that the Board had exceeded its statutory authority in promulgating the regulation upon which the District Court relied. The regulation was found to conflict with s 121 of the Act FN17 since it required that disclosure be made in regard to some credit transactions in which a finance charge had *363 not been imposed. As an alternative ground for its decision, the Court of Appeals held that the regulation created a conclusive presumption that credit payments made in more than four installments included a finance charge. Relying on Schlesinger v. State of Wisconsin, 270 U.S. 230, 46 S.Ct. 260, 70 L.Ed. 557 (1926), and Heiner v. Donnan, 285 U.S. 312, 52 S.Ct. 358, 76 L.Ed. 772 (1932), the court concluded that such an irrebuttable presumption of fact violated the Due Process Clause of the Fifth Amendment.

    FN17. 15 U.S.C. s 1631.


I

Passage of the Truth in Lending Act in 1968 culminated several years of congressional study and debate as to the propriety and usefulness of imposing mandatory disclosure requirements on those who extend credit to consumers in the American market. By the time of passage, it had become abundantly clear that the use of consumer credit was expanding at an extremely rapid rate. From the end of World War II through 1967, the amount of such credit outstanding had increased from $5.6 billion to $95.9 billion, a rate of growth more than 4 1/2 times as great as that of the economy.FN18 Yet, as the congressional hearings revealed, consumers remained remarkably ignorant of the nature of **1658 their credit obligations and of the costs of deferring payment. FN19 Because of the divergent, and at times fraudulent, practices by which consumers were informed of the terms of the credit extended to them, many consumers were prevented from shopping for the best terms available and, at times, were prompted to assume liabilities they could not meet.FN20 Joseph Barr, then Under Secretary of the Treasury, noted in testifying before a Senate subcommittee*364 that such blind economic activity is inconsistent with the efficient functioning of a free economic system such as ours, whose ability to provide desired material at the lowest cost is dependent on the asserted preferences and informed choices of consumers.FN21

    FN18. H.R.Rep.No.1040, 90th Cong., 1st Sess., 10-11 (1967).

    FN19. Id., at 13; S.Rep.No.392, 90th Cong., 1st Sess., 2-3 (1967).

    FN20. H.R.Rep.No.1040, supra, n. 18, at 13; S.Rep.No.392, supra, n. 19, at 1-2.

    FN21. Hearings on H.R. 11601 before the Subcommittee on Consumer Affairs of the House Committee on Banking and Currency, 90th Cong., 1st Sess., pt. 1, p. 76 (1967).

The Truth in Lending Act was designed to remedy the problems which had developed. The House Committee on Banking and Currency reported, in regard to the then proposed legislation:
‘(B)y requiring all creditors to disclose credit information in a uniform manner, and by requiring all additional mandatory charges imposed by the creditor as an incident to credit be included in the computation of the applicable percentage rate, the American consumer will be given the information he needs to compare the cost of credit and to make the best informed decision on the use of credit.'FN22

    FN22. H.R.Rep.No.1040, supra, n. 18, at 13.

This purpose was stated explicitly in s 102 of the legislation enacted:
‘The Congress finds that economic stabilization would be enhanced and the competition among the various financial institutions and other firms engaged in the extension of consumer credit would be strengthened by the informed use of credit. The informed use of credit results from an awareness of the cost thereof by consumers. It is the purpose of this subchapter to assure a meaningful disclosure of credit terms so that the consumer will be able to *365 compare more readily the various credit terms available to him and avoid the uninformed use of credit.'FN23

    FN23. 15 U.S.C. s 1601.

[1] Link to KeyCite Notes[2] Link to KeyCite Notes The hearings held by Congress reflect the difficulty of the task it sought to accomplish. Whatever legislation was passed had to deal not only with the myriad forms in which credit transactions then occurred, but also with those which would be devised in the future.FN24 To accomplish its desired objective, Congress determined to lay the structure of the Act broadly and to entrust its construction to an agency with the necessary experience and resources to monitor its operation. Section 105 delegated to the Federal Reserve Board broad authority to promulgate regulations necessary to render the Act effective. The language employed evinces the awareness of Congress that some creditors would attempt to characterize their transactions so as to fall one step outside whatever boundary Congress attempted to establish. It indicates as well the clear desire of Congress to insure that the Board had adequate power to deal with such attempted evasion. In addition to granting to the Board the authority normally given to administrative agencies to promulgate regulations designed to ‘carry out the **1659 purposes' of the Act, Congress specifically provided, as noted earlier, that the regulations may define classifications and exceptions to insure compliance with the Act.FN25 *366 See supra, at 1656-1657. The Board was thereby empowered to define such classifications as were reasonably necessary to insure that the objectives of the Act were fulfilled, no matter what adroit or unscrupulous practices were employed by those extending credit to consumers.

    FN24. See letter from Paul R. Dixon, Chairman of the Federal Trade Commission, to Senator A. Willis Robertson, Chairman of the Senate Committee on Banking and Currency, Feb. 18, 1964, in Hearings on S. 750 before the Subcommittee on Production and Stabilization of the Senate Committee on Banking and Currency, 88th Cong., 1st and 2d Sess., pt. 2, p. 1303 (1963-1964).

    FN25. 15 U.S.C. s 1604.

One means of circumventing the objectives of the Truth in Lending Act, as passed by Congress, was that of ‘burying’ the cost of credit in the price of goods sold. Thus in many credit transactions in which creditors claimed that no finance charge had been imposed, the creditor merely assumed the cost of extending credit as an expense of doing business, to be recouped as part of the price charged in the transaction.FN26 Congress was well aware, from its extensive studies, of the possibility that merchants could use such devices to evade the disclosure requirements of the Act. The Committee hearings are replete with suggestions that such manipulation *367 would render the Act a futile gesture in the case of goods normally sold by installment contract. FN27 Opponents of the bill contended that the reporting provisions would actually encourage merchants who had formerly segregated their credit costs not to do so. They predicted that the effect of the Act would thus be to reduce the amount of information available to the consumer, a result directly contrary to that which was intended.FN28 Proponents of the legislation claimed that the Act would enhance the consumer's ability to make an informed choice even if finance charges were hidden. In response to a claim that credit costs would be incorporated **1660 in the price of goods, Senator Douglas, who first proposed the Truth in Lending Act, stated:

    FN26. For example, two merchants might buy watches at wholesale for $20 which normally sell at retail for $40. Both might sell immediately to a consumer who agreed to pay $1 per week for 52 weeks. In one case, the merchant might claim that the price of the watch was $40 and that the remaining $12 constituted a charge for extending credit to the consumer. From the consumer's point of view, the credit charge represents the cost which he must pay for the privilege of deferring payment of the debt he has incurred. From the creditor's point of view, much simplified, the charge may represent the return which he might have earned had he been able to invest the proceeds from the sale of the watch from the date of the sale until the date of payment. The second merchant might claim that the price of the watch was $52 and that credit was free. The second merchant, like the first, has forgone the profits which he might have achieved by investing the sale proceeds from the day of the sale on. The second merchant may be said to have ‘buried’ this cost in the price of the item sold. By whatever name, the $12 differential between the total payments and the price at which the merchandise could have been acquired is the cost of deferring payment.

    FN27. Hearings on S. 1740 before the Subcommittee on Production and Stabilization of the Senate Committee on Banking and Currency, 87th Cong., 1st Sess., 49, 56-57, 127, 389-390, 447-448, 563, 1155-1156 (1961); Hearings on S. 1740 before the Subcommittee on Production and Stabilization of the Senate Committee on Banking and Currency, 87th Cong., 2d Sess., 16, 45, 265, 267-268, 287, 341-342, 360-361, 365-367, 376, 407, 415 (1962); Senate Hearings on S. 750, 88th Cong., 1st and 2d Sess., supra, n. 24, pts. 1 and 2, pp. 13-14, 749, 1284-1285; Hearings on S. 5 before the Subcommittee on Financial Institutions of the Senate Committee on Banking and Currency, 90th Cong., 1st Sess., 41-42, 123-134, 377-379, 513, 699 (1967); House Hearings on H.R. 11601, 90th Cong., 1st Sess., supra, n. 21, pts. 1 and 2, pp. 583, 590-591, 802, 825-826.

    FN28. Senate Hearings on S. 1740, 87th Cong., 2d Sess., supra, n. 27, at 287; Senate Hearings on S. 750, 88th Cong., 1st and 2d Sess., supra, n. 24, pt. 1, pp. 13-14; House Hearings on H.R. 11601, 90th Cong., 1st Sess., supra, n. 21, pt. 2, p. 596.

‘I would like to call to your attention, Senator, for purposes of the record, that this bill does not provide for judgment solely on the basis of the . . . annual interest rate or the total finance charges. It also provides that there shall be a statement of the *368 cash price or delivery price of the property or service to be acquired. Both things are to be stated, price and finance charges, and the judgment of the consumer can be on the basis of both of these factors, not merely on one alone; and if a merchant tries to have a low finance charge and bury it in a high cash price or delivered price, then the purchaser can shop on price just as much as on the finance charges.’ FN29

    FN29. Senate Hearings on S. 1740, 87th Cong., 1st Sess., supra, n. 27, at 447-448. See also Senate Hearings on S. 1740, 87th Cong., 2d Sess., supra, n. 27, at 45.

It was against this legislative background that the Federal Reserve Board promulgated regulations governing enforcement of the Truth in Lending Act. In September, 1968, with the aid of an advisory board composed of representatives of diverse retail, lending, and consumer groups, the Board compiled and released a draft of proposed regulations.FN30 Comments and criticisms from interested parties were invited. After more than 1,800 responses were received and considered by the Board, the regulations were reviewed and published in the Federal Register.FN31

    FN30. 33 Fed.Reg. 15506-15516 (1968).

    FN31. 34 Fed.Reg. 2002-2011 (1969).

The Four Installment Rule was included in the original published draft of the regulations and was not amended prior to its final adoption.FN32 The Board's objective in promulgating the rule was to prevent the Act from fulfilling the prophecy which its opponents had forecast. As J. L. Robertson, vice chairman of the Board of Governors, stated in an advisory letter issued a year later:

    FN32. Compare s 226.2(h), 33 Fed.Reg. 15507 (1968), with s 226.2(k), 34 Fed.Reg. 2003 (1969).

‘The Board felt that it was imperative to include transactions involving more than four instalments *369 under the Regulation since without this provision the practice of burying the finance charge in the cash price, a practice which already exists in many cases, would have been encouraged by Truth in Lending. Obviously this would have been directly contrary to Congressional intent.’ FN33

    FN33. Federal Reserve Board Advisory Letter of Mar. 3, 1970, by J. L. Robertson. See also Federal Reserve Board Advisory Letter of Aug. 26, 1969, by J. L. Robertson.

Furthermore, even as to sales in which it was impossible to determine what, if any, portion of the price recompensed the creditor for deferring payment, the regulation at least required that the consumer be provided with some information which would enable him to make an informed economic choice. FN34

    FN34. Statement of J. L. Robertson, Vice Chairman, Board of Governors of the Federal Reserve System, in Hearings on Consumer Credit Regulations before the Subcommittee on Consumer Affairs of the House Committee on Banking and Currency, 91st Cong., 1st Sess., pt. 2, pp. 380-381 (1969).


II

[3] Link to KeyCite Notes The standard to be applied in determining whether the Board exceeded the authority delegated to it under the Truth in Lending Act is well established under our prior cases. Where the empowering provision of a statute states simply that the agency may ‘make . . . such rules and regulations as may be necessary to carry out the provisions of this Act,'FN35 we have held that **1661 the validity of a regulation promulgated thereunder will be sustained so long as it is ‘reasonably related to the purposes of the enabling legislation.’ Thorpe v. Housing Authority of City of Durham, 393 U.S. 268, 280-281, 89 S.Ct. 518, 525, 21 L.Ed.2d 474 (1969). See also American Trucking Assns. v. United States, 344 U.S. 298, 73 S.Ct. 307, 97 L.Ed. 337 (1953).

    FN35. E.g., s 8 of the United States Housing Act of 1937, as amended, 42 U.S.C. s 1408.

*370 We have also construed enabling provisions similar to s 105 of the Truth in Lending Act, in which Congress has stressed the agency's power to counteract attempts to evade the purposes of a statute. In Gemsco, Inc. v. Walling, 324 U.S. 244, 65 S.Ct. 605, 89 L.Ed. 921 (1945), we were asked to determine whether the Administrator of the Wage and Hour Division of the Department of Labor was empowered under the Fair Labor Standards Act of 1938 FN36 to prohibit companies from allowing or requiring their employees to do industrial homework. The Act required the Administrator to approve orders which were designed to raise the minimum wage to 40 cents an hour. While the Act did not specifically mention industrial homework, s 8(f) stated that the Administrator's orders

    FN36. 52 Stat. 1060.

‘shall contain such terms and conditions as the Administrator finds necessary to carry out the purposes of such orders, to prevent the circumvention or evasion thereof, and to safeguard the minimum wage rates established therein.’ FN37

    FN37. 52 Stat. 1065.

After hearings, the Administrator determined that homework furnished ‘a ready means' of evading his orders, and prohibited certain companies subject thereto from employing this means of production. The Court concluded that the Administrator had not exceeded his authority under the Act, noting that a more restrictive interpretation of the enabling provision would have rendered the Act inoperable. Focusing on the mandate provided by s 8(f), the Court stated:
‘When command is so explicit and, moreover, is reinforced by necessity in order to make it operative, nothing short of express limitation or abuse of discretion in finding that the necessity exists should undermine the action taken to execute it. When *371 neither such limitation nor such abuse exists, but the necessity is conceded to be well founded in fact, there would seem to be an end of the matter.’ 324 U.S., at 255, 65 S.Ct., at 612.
[4] Link to KeyCite Notes In light of our prior holdings and the legislative history of the Truth in Lending Act, we cannot agree with the conclusion of the Court of Appeals that the Board exceeded its statutory authority in promulgating the Four Installment Rule. Congress was clearly aware that merchants could evade the reporting requirements of the Act by concealing credit charges. In delegating rulemaking authority to the Board, Congress emphasized the Board's authority to prevent such evasion. To hold that Congress did not intend the Board to take action against this type of manipulation would require us to believe that, despite this emphasis, Congress intended the obligations established by the Act to be open to evasion by subterfuges of which it was fully aware. As in Gemsco, the language of the enabling provision precludes us from accepting so narrow an interpretation of the Board's power.
[5] Link to KeyCite Notes Given that some remedial measure was authorized, the question remaining is whether the measure chosen is reasonably related to its objectives. We see no reason to doubt the Board's conclusion that the rule will deter creditors from engaging in the conduct which the Board sought to eliminate. The burdens imposed on creditors are not severe, when measured against the evils which are avoided. Furthermore, were it possible or financially feasible to **1662 delve into the intricacies of every credit transaction, it is clear that many creditors to whom the rule applies would be found to have charged for deferring payment, while claiming they had not. That some other remedial provision might be preferable is irrelevant. We have consistently held that where reasonable minds may differ as to which of several remedial measures should *372 be chosen, courts should defer to the informed experience and judgment of the agency to whom Congress delegated appropriate authority. Northwestern Elec. Co. v. FPC, 321 U.S. 119, 124, 64 S.Ct. 451, 453, 88 L.Ed. 596 (1944); National Broadcasting Co. v. United States, 319 U.S. 190, 224, 63 S.Ct. 997, 1013, 87 L.Ed. 1344 (1943); American Telephone & Telegraph Co. v. United States, 299 U.S. 232, 236, 57 S.Ct. 170, 172, 81 L.Ed. 142 (1936).
[6] Link to KeyCite Notes Respondent contends, however, that the Four Installment Rule must be abrogated since it is ‘inconsistent’ with portions of the enabling statute. The purported conflict arises because the statute specifically mentions disclosure only in regard to transactions in which a finance charge is in fact imposed, FN38 although the rule requires disclosure in some cases in which no such charge exists. Respondent argues that, in requiring disclosure as to some transactions, Congress intended to preclude the Board from imposing similar requirements as to any other transactions.

    FN38. s 103(f), 15 U.S.C. s 1602(f); s 121, 15 U.S.C. s 1631; s 130(a), 15 U.S.C. s 1640(a).

To accept respondent's argument would undermine the flexibility sought in vesting broad rulemaking authority in an administrative agency. In American Trucking Assns. v. United States, supra, we noted that it was not:
‘a reasonable canon of interpretation that the draftsmen of acts delegating agency powers, as a practical and realistic matter, can or do include specific consideration of every evil sought to be corrected. . . . (N)o great acquaintance with practical affairs is required to know that such prescience, either in fact or in the minds of Congress, does not exist. Its very absence, moreover, is precisely one of the reasons why regulatory agencies such as the Commission are created, for it is the fond hope of their authors that *373 they bring to their work the expert's familiarity with industry conditions which members of the delegating legislatures cannot be expected to possess.’ 344 U.S., at 309-310, 73 S.Ct., at 314 (citations omitted).
Neither the sections of the Truth in Lending Act which refer specifically to transactions involving finance charges nor any other sections of the Act indicate that Congress attempted to list comprehensively all types of transactions to which the Board's regulations might apply. To the contrary, s 105's broad grant of rulemaking authority reflects an intention to rely on those attributes of agency administration recognized in American Trucking. We cannot then infer that references in the Act to transactions involving credit charges were intended to limit the deterrent measures which the Board might choose.
[7] Link to KeyCite Notes Since the deterrent effect of the challenged rule clearly implements the objectives of the Act, respondent's contention is reduced to a claim that the rule is void because it requires disclosure by some creditors who do not charge for credit and thus need not be deterred. The fact that the regulation may affect such individuals does not impair its otherwise valid purpose. A similar contention was made in Gemsco, and rejected by the Court. Gemsco claimed that the Administrator was not attempting to enforce the requirements of the statute but was attempting to advance ‘experimental social legislation’ which **1663 Congress had not approved. Responding to that argument the Court stated:
‘Section 8(f), in directing the Administrator to include ‘such terms and conditions' as he ‘finds necessary to carry out the purposes of such orders,’ did not forbid him to take the only measures which would be effective, merely because other consequences necessarily would follow. The language neither states *374 expressly nor implies that he is to do only what will achieve the stated ends and nothing more. The statute does not direct the Administrator to make the rate effective by all necessary means except those which may have other social or economic consequences.' 324 U.S., at 257, 65 S.Ct., at 613.
There the Court was referring to the regulation of subject matter not specifically mentioned in the enabling legislation. A similar rule applies when a remedial provision requires some individuals to submit to regulation who do not participate in the conduct the legislation was intended to deter or control. In Village of Euclid v. Ambler Realty Co., 272 U.S. 365, 388-389, 47 S.Ct. 114, 118, 71 L.Ed. 303 (1926), the Court held that, in defining a class subject to regulation, ‘(t)he inclusion of a reasonable margin, to insure effective enforcement, will not put upon a law, otherwise valid, the stamp of invalidity.’ See also North American Co. v. SEC, 327 U.S. 686, 66 S.Ct. 785, 90 L.Ed. 945 (1946). Nothing less will meet the demands of our complex economic system. Where, as here, the transactions or conduct which Congress seeks to administer occur in myriad and changing forms, a requirement that a line be drawn which insures that not one blameless individual will be subject to the provisions of an act would unreasonably encumber effective administration and permit many clear violators to escape regulation entirely. That this rationale applies to administrative agencies as well as to legislatures is implicit in both Gemsco and American Trucking Assns. In neither case was every individual engaged in the regulated activity responsible for the specific consequences the agency sought to eliminate.
Respondent argues that such an interpretation of the Truth in Lending Act is inconsistent with our holding in FCC v. American Broadcasting Company, 347 U.S. 284, 74 S.Ct. 593, 98 L.Ed. 699 (1954). In that case, the Court considered whether, in *375 establishing regulations to govern programing, the FCC had properly interpreted a criminal provision prohibiting the broadcasting of lotteries. After noting that a given statute could not be construed one way for purposes of an administrative proceeding and another for criminal prosecution, the Court stated:
‘If we should give (the criminal provision) the broad construction urged by the Commission, the same construction would likewise apply in criminal cases.’ Id., at 296, 74 S.Ct., at 600.
Since, in drafting its regulation, the Commission had failed to apply the well-established rule that penal provisions must be construed narrowly, the Court held the regulation invalid.
[8] Link to KeyCite Notes[9] Link to KeyCite Notes Relying on American Broadcasting, respondent contends that the Truth in Lending Act must be construed narrowly since it contains penal provisions, FN39 and that a narrow interpretation requires that the Board's rule be nullified. We cannot agree, however, that every section of an act establishing a broad regulatory scheme must be construed as a ‘penal’ provision, as that term is used in American Broadcasting, merely because two sections of the Act provide for civil and criminal penalties. Penal statutes are construed narrowly to insure that no individual is convicted unless ‘a fair warning (has first been) given to the world in language that the common world will understand, of what **1664 the law intends to do if a certain line is passed.’ McBoyle v. United States, 283 U.S. 25, 27, 51 S.Ct. 340, 341, 75 L.Ed. 816 (1931).FN40 Where, as here, the language of the challenged rule is explicit, that risk is not present. See Kraus & Bros., Inc. v. United States, 327 U.S. 614, 621-622, 66 S.Ct. 705, 707-708, 90 L.Ed. 894 (1946).

    FN39. s 112, 15 U.S.C. s 1611; s 130, 15 U.S.C. s 1640.

    FN40. See Kordel v. United States, 335 U.S. 345, 69 S.Ct. 106, 93 L.Ed. 52 (1948). See also W. LaFave & A. Scott, Criminal Law 72 (1972).

*376 [10] Link to KeyCite Notes[11] Link to KeyCite Notes[12] Link to KeyCite Notes[13] Link to KeyCite Notes We are also unable to accept respondent's argument that s 130FN41 does not allow imposition of a civil penalty in cases where no finance charge is involved but where a regulation requiring disclosure has been violated. Section 130 provides that the penalty assessed shall be twice the amount of the finance charge imposed, but not less than $100. Since the civil penalty prescribed is modest and the prohibited conduct clearly set out in the regulation, we need not construe this section as narrowly as a criminal statute providing graver penalties, such as prison terms. We have noted above that the objective sought in delegating rule making authority to an agency is to relieve Congress of the impossible burden of drafting a code explicitly covering every conceivable future problem. Congress cannot then be required to tailor civil penalty provisions so as to deal precisely with each step which the agency thereafter finds necessary. In light of the emphasis Congress placed on agency rule making and on private and administrative enforcement of the Act, we cannot conclude that Congress intended those who failed to comply with regulations to be subject to no penalty or to criminal penalties alone. As the District Court concluded, imposition of the minimum sanction is proper in cases such as this, where the finance charge is nonexistent or undetermined.

    FN41. 15 U.S.C. s 1640. This section refers only to the failure to provide ‘information required under this part to be disclosed . . ..’ (Emphasis supplied.) The italicized language was added to the statute to distinguish disclosure required in regard to sales transactions from that required in regard to advertising. H.R.Rep.No.1040, supra, n. 18, at 19, 30. The penalty provision applies both to the failure to disclose information specifically required by the statute and to the failure to abide by regulations promulgated by the Board to govern such disclosure.

[14] Link to KeyCite Notes Finally, the Four Installment Rule does not conflict with the Fifth Amendment under our holdings in Schlesinger v. State of Wisconsin, 270 U.S. 230, 46 S.Ct. 260, 70 L.Ed. 557 (1926), and *377 Heiner v. Donnan, 285 U.S. 312, 52 S.Ct. 358, 76 L.Ed. 772 (1932). In Schlesinger and Heiner, we held that certain taxing provisions violated the Due Process Clauses of the Fifth and Fourteenth Amendments because they conclusively presumed the existence of determinative facts. The challenged rule contains no comparable presumption. The rule was intended as a prophylactic measure; it does not presume that all creditors who are within its ambit assess finance charges, FN42 but, rather, imposes a disclosure requirement on all members of a defined class in order to discourage evasion by a substantial portion of that class.

    FN42. In regard to some transactions to which the Four Installment Rule applies, merchants need not report the amount and rate of finance charges. Federal Reserve Board Advisory Letter of July 24, 1969, by J. L. Robertson; Federal Reserve Board Letter No. 30, July 8, 1969, by Frederic Solomon.

The Truth in Lending Act reflects a transition in congressional policy from a philosophy of ‘Let the buyer beware’ to one of ‘Let the seller disclose.’ By erecting a barrier between the seller and the prospective purchaser in the form of hard facts, Congress expressly sought ‘to . . . avoid the uninformed use of credit.’ 15 U.S.C. s 1601. Some may claim that it is a relatively easy matter to calculate the total payments to which petitioner was committed by her contract with respondent; but at the **1665 time of sale, such computations are often not encouraged by the solicitor or performed by the purchaser. Congress has determined that such purchasers are in need of protection; the Four Installment Rule serves to insure that the protective disclosure mechanism chosen by Congress will not be circumvented.
[15] Link to KeyCite Notes[16] Link to KeyCite Notes That the approach taken may reflect what respondent views as an undue paternalistic concern for the consumer is beside the point. The statutory scheme is within the power granted to Congress under the Commerce Clause. *378 It is not a function of the courts to speculate as to whether the statute is unwise or whether the evils sought to be remedied could better have been regulated in some other manner.
Reversed and remanded.

Mr. Justice DOUGLAS, with whom Mr. Justice STEWART and Mr. Justice REHNQUIST concur, dissenting in part.

I have concluded that this is not a proper case for summary judgment under Fed.Rule Civ.Proc. 56(c), which provides that summary judgment only may be granted if there is ‘no genuine issue as to any material fact’ and ‘the moving party is entitled to a judgment as a matter of law.’ As I interpret the present record in light of our decisions, see, e.g., Adickes v. S. H. Kress & Co., 398 U.S. 144, 90 S.Ct. 1598, 26 L.Ed.2d 142; White Motor Co. v. United States, 372 U.S. 253, 83 S.Ct. 696, 9 L.Ed.2d 738; United States v. Diebold, Inc., 369 U.S. 654, 82 S.Ct. 993, 8 L.Ed.2d 176, there remains unresolved a genuine issue of material fact. Although I agree with the majority that Regulation Z is valid and accordingly would reverse the decision of the Court of Appeals, I would remand this case to the District Court for resolution of that material issue.
The disclosure provisions of the Truth in Lending Act apply only to an extension of ‘consumer credit.’ 15 U.S.C. s 1631. Thus, in order to assert successfully a claim under the Act for the statutory penalty and reimbursement for the costs of the action, see id., s 1640, petitioner, inter alia, must satisfy her burden of proving that respondent extended consumer credit within the meaning of the Act. Section 103(e) of the Act, 15 U.S.C. s 1602(e), defines ‘credit’ as ‘the right granted by a creditor to a debtor to defer payment of debt or to incur debt and defer its payment.’ In her complaint, petitioner merely alleges that respondent ‘extends Consumer Credit as defined in Regulation Z, 12 C.F.R. (s) 226.2*379 (K) . . ..’ Respondent denies in its answer that its contract with petitioner involved a ‘credit transaction.’ In one paragraph respondent avers: ‘Under the contract executed by the customer and Defendant, the customer agrees to pay a stated amount per month for half of the life of the contract and Defendant agrees to supply the magazines for the full term of the contract. At all times the customer has prepaid for the magazines to be delivered. Under its arrangement with most of the publishers, Defendant reimburses the publisher periodically during the full term of the subscription.’ In another paragraph it avers: ‘At no point during the life of the contract has Defendant paid money to a third person or supplied goods or services to the customer for which reimbursement is expected from the customer in the future.'
On the basis solely of these allegations, one would conclude that the contract between the petitioner and the respondent did not constitute a credit transaction. If respondent merely collected $3.95 per month from each customer and sent the receipts periodically to the publisher,FN1 less the respondent's commission, respondent never would have made any advances for the customer, and the customer would owe nothing to the respondent for the loan of money **1666 or, in the words of the Act, as a ‘finance charge.’ On the other hand, if respondent advanced all or part of the subscription price to the publishers, respondent would be advancing ‘credit’ for the benefit of the customer.FN2 The legislative history indicates*380 that ‘the disclosure requirement would not apply to transactions which are not commonly thought of as credit transactions . . ..'FN3 As Professor Corbin has stated: ‘A transaction may be an instalment contract without being a credit transaction at all. Both parties may agree to perform in instalments without promising to render any performance in advance of full payment of the price of each instalment so rendered.'FN4 The Act, in defining ‘credit,’ refers to the deferred payment of a ‘debt.’ A debt, however, is more than a binding contractual obligation to pay a sum of money in the future upon the performance of certain conditions by the other party to the contract. It is an unconditional obligation to pay.FN5 Thus, in my view, a proper resolution of the issue whether respondent extended credit to petitioner depends, at least in part, on the contractual relationships between the respondent and the publishers. The contracts between respondent and the publishers are not in the present record.FN6

    FN1. There are suggestions in the record that respondent is a wholly owned subsidiary of Time, Inc. Respondent, however, sold not only Life, a Time, Inc., publication, but magazines of other publishers.

    FN2. In a free-enterprise system, one must presume that there is a ‘finance charge’ for the advance of credit. It would nonetheless be a ‘finance charge’ although it were wholly undisclosed or not separately stated in an account rendered to the customer.

    FN3. S.Rep.No.392, 90th Cong., 1st Sess., 14; H.R.Rep.No.1040, 90th Cong., 1st Sess., 25.

    FN4. 3A A. Corbin, Contracts s 687, p. 246 (1960). A published opinion of the Federal Reserve Board recognizes that installment payment plans may not involve an extension of credit when charges for services rendered do not exceed prior payments. FRB Opinion Letter No. 262 (1970).

    FN5. 3A A. Corbin, Contracts s 691 (1960).

    FN6. My Brother POWELL asserts that, given the undisputed fact that petitioner agreed to pay in advance, respondent as a matter of law could not have extended credit. Post, at 1667-1668. We do not, however, know what the financial relationships in this tripartite arrangement are. For example, it may be that respondent advances the full five-year subscription price to the publisher on the subscriber's behalf when the contract between the subscriber and respondent is executed. If that is so, the subscriber may receive an unconditional right to receive magazines from the publisher over the five-year period, whether or not he meets his contractual obligations with respondent. Under these circumstances, respondent will be acting as a financier, enabling the subscriber to take advantage of the publisher's five-year subscription offer, but yet to defer payment on the subscription price. Any ‘profit’ respondent receives will be largely attributable to its services as a financier. I do not see that such a financial arrangement differs substantially from the case where a subscriber borrows the full subscription price from a bank and pays the publisher directly, obligating himself to repay the bank in equal installments, with interest, over two and one-half years. As my Brother POWELL argues, the subscriber under those circumstances will be advancing credit to the publisher because he has paid for all magazines in advance, but it cannot be doubted that at the same time the bank has advanced credit to the subscriber.

*381 The pleadings, of course, are not the only papers to be considered by the District Court in determining whether one party or the other is entitled to summary judgment. Under Rule 56(c) the court must consider ‘the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any . . ..’ During the collection period, respondent had sent petitioner a dunning letter reminding her ‘that we have ordered these magazines in advance and that you have incurred an obligation to repay us. This is a credit account, and as such must be repaid by you on a monthly basis, much the same as if you had purchased any other type of merchandise on a monthly budget plan.’ Respondent formally admitted that it had sent this letter to petitioner. Accordingly, it was properly **1667 considered by the District Judge. FN7 But, I do not view this ‘admission’*382 as conclusive or sufficient proof that respondent had extended credit within the meaning of the Act at the time the contract between petitioner and respondent was entered into.FN8 First, this is not an admission in terms that credit was extended within the meaning of the Act. Second, since petitioner at the time the letter was sent was three months in arrears, it may be that respondent had advanced money on her account only after she failed to meet her contractual obligation. It is settled under our decisions that material lodged by the moving party ‘must be viewed in the light most favorable to the opposing party.’ Adickes v. Kress & Co., 398 U.S., at 157, 158-159, 90 S.Ct., at 1608; United States v. Diebold, Inc., 369 U.S., at 655, 82 S.Ct., at 994.

    FN7. Respondent mailed another letter to petitioner which stated:

    ‘Whereas, FPS, acts initialy (sic) as agent for the various publishers; upon acceptance of her contract, FPS thereafter acts solely as financier, and co-guaranter (sic) of service with the various publishers; whereas, FPS, has fully invested in Mrs. Mourning's contract and does not receive refund in part or full from any, or, all publishers; for said FPS, investment, we therefore, must insist on compliance of your client to the terms of said contract . . ..'

    Although respondent admitted that the letter appeared on its stationery and was written by an employee, it denied that the employee was authorized to send the letter. Accordingly, since there was an issue of fact whether the letter was authorized and thus a binding admission, the letter could not be considered properly on petitioner's motion for summary judgment. Cf. 3 W. Barron & A. Holtzoff, Federal Practice and Procedure s 1231, p. 75 (1971 Supp.).

    FN8. We need not resolve here whether, if the contract was not originally a credit transaction, petitioner's own breach could have converted it retroactively into a credit transaction within the meaning of the Act.

Respondent is not deprived of the benefit of this principle of interpretation merely because it did not file an affidavit controverting the contents of the letter. Rule 56(e) provides that ‘(w)hen a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be entered against him.’ The Advisory Committee note on the amendment which added this provision to the Rule, however, stated that ‘(w)here the evidentiary matter in support of the motion*383 does not establish the absence of a genuine issue, summary judgment must be denied even if no opposing evidentiary matter is presented.’ We cited this comment with approval in Adickes v. Kress & Co., supra, 398 U.S. at 160, 90 S.Ct. at 1609. The moving party, in this case petitioner, FN9 must meet her burden of showing the absence of a genuine issue as to any material fact. Id., at 157, 90 S.Ct. at 1608. I cannot conclude that she met that burden. The District Judge was not possessed of sufficient information to resolve properly the issue whether credit had been extended. Under these circumstances, he should not have granted summary judgment. Cf. White Motor Co. v. United States, 372 U.S., at 263, 83 S.Ct., at 702.

    FN9. Both parties moved for summary judgment. That does not relieve the District Judge of his responsibility to consider each motion separately in light of the theories advanced by each party and to proceed to trial if he concludes that there is a genuine issue of material fact to be resolved. See 6 J. Moore, Federal Practice 56.13 (2d ed. 1972).
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