{
  "id": 12141787,
  "name": "SOUTHERN PROVISIONS, INC., d/b/a Southern Purveyors, Plaintiff, v. HARRIS TRUST AND SAVINGS BANK, Defendant and Third-Party Plaintiff-Appellant.-(NORTH BANK, Third-Party Defendant-Appellee; MICKEY MORRISON, a/k/a Mickey Weed, Defendant.)",
  "name_abbreviation": "Southern Provisions, Inc. v. Harris Trust & Savings Bank",
  "decision_date": "1981-05-18",
  "docket_number": "No. 80-986",
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    "judges": [
      "CAMPEELE, P. J., and O\u2019CONNOR, J., concur."
    ],
    "parties": [
      "SOUTHERN PROVISIONS, INC., d/b/a Southern Purveyors, Plaintiff, v. HARRIS TRUST AND SAVINGS BANK, Defendant and Third-Party Plaintiff-Appellant.\u2014(NORTH BANK, Third-Party Defendant-Appellee; MICKEY MORRISON, a/k/a Mickey Weed, Defendant.)"
    ],
    "opinions": [
      {
        "text": "Mr. JUSTICE McGLOON\ndelivered the opinion of the court:\nHarris Trust and Savings Bank instituted an action against North Bank for breach of warranty of good title. The trial court found that North Bank had breached its warranty, but held that Harris Bank was not entitled to attorney\u2019s fees and litigation costs under section 4 \u2014 207(3) of the Uniform Commercial Code.\nOn appeal, Harris Trust and Savings Bank claims that the trial court erred in denying its request for attorney\u2019s fees and litigation costs.\nWe affirm.\nOn September 1, 1978, Southern Provisions, Inc. (Southern Provisions), issued a check in the amount of $2,500 payable to Ben Wilkerson. The check was drawn on Harris Trust and Savings Bank (Harris). On September 15, 1978, without payee Wilkerson\u2019s authority, Mickey Weed endorsed the check and deposited it in her account at North Bank. The check then was endorsed by North Bank, and sent to Harris for payment.\nSouthern Provisions notified Harris in writing that the check did not contain Wilkerson\u2019s endorsement and asked that Harris recredit $2,500 to its account. Harris then returned the check to North Bank for collection.\nOn May 3,1979, Southern Provisions filed a complaint against Harris, seeking to have its account recredited. Harris in turn filed a third-party complaint against North Bank. Primarily, the third-party complaint alleged that North Bank, by its endorsement and by obtaining payment, warranted that it had good title to the $2,500 check. Harris claimed that North Bank was in breach of such warranty and that North Bank, therefore, should be held liable for the amount of any judgment rendered in favor of Southern Provisions against Harris. The complaint further alleged that Harris had tendered to North Bank the defense of Southern Provisions\u2019 lawsuit against Harris and that North Bank had refused to assume Harris\u2019 defense.\nIn addition to the amount of any judgment rendered in Southern Provisions\u2019 favor, Harris sought its attorney\u2019s fees and litigation costs incurred in defending against Southern Provisions\u2019 action and in prosecuting the third-party complaint. On November 15, 1979, the trial court entered judgment in favor of Southern Provisions and against Harris in the amount of $2,500 plus costs. On March 6, 1980, the trial court entered judgment in favor of Harris and against North Bank in the same amount. The trial court, however, denied Harris\u2019 request for its attorney\u2019s fees and litigation costs.\nInitially, we note that it is not disputed that North Bank was in breach of warranty of good title (see Ill. Rev. Stat. 1977, ch. 26, par. 4 \u2014 207(1)(a)) and therefore liable to Harris for the $2,500 judgment rendered in favor of Southern Provisions against Harris. The sole issue raised in this appeal is whether Harris is entitled to attorney\u2019s fees and litigation costs under section 4 \u2014 207(3) of the Uniform Commercial Code. That section provides:\n\u201c \u00b0 \u00ae \u00b0 Damages for breach of such warranties or engagement to honor shall not exceed the consideration received by the customer or collecting bank responsible plus finance charges and expenses related to the item, if any.\u201d (Emphasis added.) (Ill. Rev. Stat. 1977, ch. 26, par. 4 \u2014 207(3).)\nComment 5 of the Uniform Commercial Code Comments to section 4 \u2014 207(3) states that the \u201cexpenses\u201d referred to may be ordinary collecting expenses and in appropriate cases could also include such expenses as attorney\u2019s fees.\nHarris argues that the drafters of the Uniform Commercial Code intended to include attorney\u2019s fees and litigation costs within the term \u201cexpenses\u201d as used in section 4 \u2014 207(3) and that the Uniform Comments which follow that section are evidence of the drafters\u2019 intent. North Bank, on the other hand, maintains that the drafters did not intend the term \u201cexpenses\u201d to encompass such fees and costs. Alternatively, North Bank urges that even if we adopt Harris\u2019 view of section 4 \u2014 207(3) and the Comments, we should nevertheless deny Harris\u2019 claim since the pertinent comment merely indicates that the decision of whether to award such fees and costs is within the discretion of the trial judge.\nSome jurisdictions have recognized a statutory right under section 4 \u2014 207(3) and the Uniform Comments to recover attorney\u2019s fees and litigation costs incurred in defending a claim brought by a drawer to recredit its account or in prosecuting a breach of warranty action against a warranting bank. (See generally Bagby v. Merrill Lynch, Pierce, Fenner & Smith, Inc. (8th Cir. 1974), 491 F.2d 192; Guaranty Bank & Trust Co. v. Federal Reserve Bank (W.D. Okla. 1977), 454 F. Supp. 488.) Other jurisdictions have held that such fees and costs are not authorized by section 4 \u2014 207(3) notwithstanding the Uniform Comments. See generally Riedel v. First National Bank (1979), 287 Ore. 285, 598 P.2d 302; Security Bank & Trust Co. v. National Bank of Commerce (1971), 9 UCC Rep. Serv. 291.\nIllinois courts have not previously addressed the specific issue of whether attorney\u2019s fees and litigation costs are \u201cexpenses\u201d as the term is used in section 4 \u2014 207(3). The import of the Uniform Comments in determining the intent of the legislature in drafting the Code, however, has been addressed. In Pastor v. National Republic Bank (1978), 56 Ill. App. 3d 421, 371 N.E.2d 1127, affd (1979), 76 Ill. 2d 139, 390 N.E.2d 894, the court held that the Uniform Comments \u201cmay be\u201d examined to discern the legislature\u2019s intent. (56 Ill. App. 3d 421, 423-24.) Relying on the language in Pastor, we find that the decision to award or deny attorney\u2019s fees and litigation costs is within the discretion of the trial judge. We do not find that the trial court abused its discretion in this matter.\nJudgment affirmed.\nCAMPEELE, P. J., and O\u2019CONNOR, J., concur.",
        "type": "majority",
        "author": "Mr. JUSTICE McGLOON"
      }
    ],
    "attorneys": [
      "Mark P. Cohen, of Chapman & Cutler, of Chicago, for appellant.",
      "Raymond E. Stachnik, of Abramson & Fox, of Chicago, for appellee."
    ],
    "corrections": "",
    "head_matter": "SOUTHERN PROVISIONS, INC., d/b/a Southern Purveyors, Plaintiff, v. HARRIS TRUST AND SAVINGS BANK, Defendant and Third-Party Plaintiff-Appellant.\u2014(NORTH BANK, Third-Party Defendant-Appellee; MICKEY MORRISON, a/k/a Mickey Weed, Defendant.)\nFirst District (1st Division)\nNo. 80-986\nOpinion filed May 18, 1981.\nRehearing denied June 22, 1981.\nMark P. Cohen, of Chapman & Cutler, of Chicago, for appellant.\nRaymond E. Stachnik, of Abramson & Fox, of Chicago, for appellee."
  },
  "file_name": "0745-01",
  "first_page_order": 767,
  "last_page_order": 770
}