Rosen v. DePorter-Butterworth Tours, Inc. , 62 Ill. App. 3d 762 ( 1978 )

Mr. PRESIDING JUSTICE BARRY

delivered the opinion of the court:

The plaintiff, Steven Rosen, brought this suit to recover $1,136 which he paid to the defendant, DePorter-Butterworth Tours, Inc., for arranging an itinerary and supplying a tour for an overland African safari. The plaintiff alleged that the defendant had breached the agreement to arrange the tour and as a result plaintiff was not able to go on the tour. After a bench trial on the merits, the trial court entered judgment for the plaintiff and against the defendant in the sum of *1,136 plus costs of suit. The defendant appeals from that judgment.

On August 27, 1975, the plaintiff took a brochure advertising an overland African safari, beginning in Cairo and followed by six weeks of an overland tour throughout Africa, to the defendant, DePorter-Butterworth Tours, Inc. The brochure had the name of World Trek on it. Plaintiff testified that he had acquired the brochure from a friend. The plaintiff asked Mrs. Andrews, an employee of the defendant, about such an African trip and was told that it could be arranged. He left a *100 deposit with the defendant that day and on the following day he returned and paid the defendant *1,036, the balance due on the trip. The defendant contemplated a commission on the transaction and forwarded to World Trek a letter indicating the commission for booking the tour of *113.60 and sending a DePorter-Butterworth check for only *1,022.40 for the remainder of the tour price. Plaintiff informed defendant that he was leaving the area 2/2 months ahead of the time for his African safari and would be traveling on an unscheduled casual basis from London and on through Europe. Mrs. Andrews, for DePorter-Butterworth Tours, Inc., advised the plaintiff of all the documents and innoculations he would need and was told to contact Kimbala Tours on his arrival in London for additional information. The plaintiff also was told that he would be met in Cairo and transferred to the Fontana Hotel where the rest of the group would be gathering for the safari. Plaintiff distinctly advised the defendant that he could be contacted in Athens through the American Express office at any time prior to his departure for Cairo to begin the tour. The evidence also revealed that the defendant had arranged a passage to a hotel in Rome for plaintiff’s father so that he could visit with plaintiff prior to plaintiff’s departure for Cairo to begin the safari. Plaintiff’s father had been a client of the defendant for many years. Defendant admitted the ability to contact the plaintiff and plaintiff testified that he checked the Athens American Express office for messages but received none from the defendant.

The plaintiff arrived in Cairo on December 4, the date set for the safari. He arrived at the Fontana Hotel pursuant to his instructions, but was informed that the hotel management had never heard of his tour. He contacted the Sphinx Travel Agency in Cairo but learned nothing more of his tour. Due to conditions in Egypt, plaintiff testified it was impossible to make a phone call outside the country. After remaining in Cairo one week and still finding no safari tour assembling he flew back to Athens and from there he called Kimbala Tours in London. He was advised by Kimbala that the itinerary of the tour had been changed to eliminate Cairo and that Kimbala Tours had not been able to contact the plaintiff to tell him to meet the tour group in Nairobi instead. It appeared from the evidence that the defendant had not communicated plaintiff’s contact address in Athens to -World Trek or Kimbala Tours.

On appeal defendant raises several issues: (1) whether the Uniform Commercial Code is applicable to this transaction; (2) whether the trial court erred in failing to grant judgment upon defendant’s affirmative defense; (3) whether the trial court erred in failing to grant judgment upon defendant’s counterclaim; and (4) whether the trial court erred in finding the defendant liable to the plaintiff for the price of the tour.

That the Uniform Commercial Code (Ill. Rev. Stat. 1975, ch. 26, par. 2—105 et al.) applies to this transaction, or more specifically, defendant argues, that the plaintiff merely purchased tickets for the trip from the defendant and that tickets fall within the definition of things for purposes of the Sales Article of the Uniform Commercial Code, is the first issue raised. The defendant cites several cases in support of his claim that tickets fall generally within the category of things, all of which we believe are distinguishable. In United States v. Rhea (W.D.Ark. 1961), 199 F. Supp. 301, and Turner v. State (Tex. Crim. App. 1963), 372 S.W.2d 346, the courts of review dealt with criminal charges and defined a credit card and a railroad ticket, respectively, as coming within the definition of things in a criminal statute prohibiting stealing. Neither case involved sales under article 2 of the Uniform Commercial Code. In Monroe County Savings Bank & Trust Co. v. Klohr (1928), 249 Ill. App. 576, and Tumy v. Mayer (1919), 289 Ill. 458, 124 N.E. 661, the courts were involved with construing the difference between “things” and “things in action.” Neither case decided that tickets or a vacation tour was within the definition of goods so that the Uniform Commercial Code was applicable. Contrary to defendant’s arguments we believe that the plaintiff purchased a trip and contracted for defendant’s services as a travel agent and did not purchase tickets, goods, or “things.” The Uniform Commercial Code is not applicable to these facts and circumstances.

Defendant’s second claim of error is that the trial court erred in not entering judgment on defendant’s affirmative defense as alleged in his answer. The case of Cunningham v. City of Sullivan (3d Dist. 1958), 15 Ill. App. 2d 561, 147 N.E.2d 200, defines an affirmative defense as one that gives color to the opposing party’s claim and then asserts new matter by which the apparent right is defeated. In defendant’s answer the only thing that is arguably an affirmative defense is the allegation that plaintiff failed to notify the tour sponsor, World Trek, of his whereabouts so that he could be notified of any changes in the travel plans of the tour. Although the allegation relates to new matter it ignores the existence of an agency relationship and therefore does not amount to a bar to plaintiff’s claimed right of recovery.

In a related argument defendant contends that the plaintiff failed to respond to the matters alleged as an affirmative defense or counterclaim and that plaintiff thereby admitted them. Defendant’s alleged affirmative defense amount to only a general denial of plaintiff’s basis of recovery and no answer by plaintiff was needed. The record reflects that defendant went to trial on all issues including the alleged affirmative defense and counterclaim and failed to further object or move for a judgment based upon plaintiff’s admission by failing to respond to them. The case of Larson v. R. W. Borrowdale Co. (1st Dist. 1964), 53 Ill. App. 2d 104, 203 N.E.2d 77, applies by analogy and defendant waived his right to object to plaintiff’s failure to respond to his counterclaim by his proceeding to a trial on the merits without objection. The record also reflects that the trial court in its judgment order specifically found against the defendant on his counterclaim after hearing all the evidence despite the plaintiff’s failure to specifically answer and deny the counterclaim.

The final issue presented for review is whether the trial court erred in finding defendant liable to the plaintiff for the price of the tour. Inherent in a decision of this issue is a determination of the relationship between plaintiff and defendant and defendant and the tour sponsor, World Trek. The facts in the case of Simpson v. Compagnie Rationale Air France (1969), 42 Ill. 2d 496, 248 N.E.2d 117, are analogous to the instant appeal and we believe, therefore, that the same special agency relationship between a traveler and his travel bureau exists in this case. The conclusion reached by the supreme court in Simpson was that in the normal situation between a travel bureau and its traveler client a special agency relationship arises for the limited object of the one business transaction between the two parties. It is clear in the present case that the plaintiff employed the defendant travel bureau as his special agent for the limited purpose of arranging the African Safari Tour sponsored by World Trek.

Although the sponsor of the tour, World Trek, as advertised in the brochure, was not a party to this lawsuit, their relationship to the defendant is an important factor in deciding liability. The record contains a letter from defendant to World Trek as plaintiff’s exhibit no. 4, which admits to defendant’s selling of World Trek’s tour to the plaintiff and hints of a principal-agency relationship between World Trek and the defendant. The evidence also disclosed that the defendant received a 10% commission from World Trek for selling its tour. The legal principal that an agent is liable as a principal to a third party in the case of an undisclosed agency relationship is well established and needs no citation for authority. In the instant case the plaintiff was aware that World Trek was sponsoring the tour but was without knowledge as to whether the defendant was truly representing him as his special agent for arranging the tour or whether defendant was acting as an agent for World Trek in selling its tour to plaintiff.

The traditional relationship between a travel bureau, such as defendant, and the tour sponsors of the various tours sold has been categorized as one of agent and principal particularly in the field of tort liability of the travel bureau for injuries that occur to the traveler, as clearly set out in cases cited under Annot., 53 A.L.R. 3d 1310 (1973). No sound reason exists for not finding the same principal-agent relationship between a tour sponsor and a travel bureau in the case of alleged liability for breach of an agreement involving the ultimate sale of the tour to an ordinary member of the traveling public, such as the plaintiff.

Under circumstances similar to the case at bar involving a breach of contract by a travel bureau to its customer several out-of-state courts have readily recognized a principal-agent relationship between the tour sponsors and the travel bureaus, and accordingly found liability for the breach in favor of the traveler. (See Unger v. Travel Arrangements, Inc. (1966), 25 App. Div. 2d 40, 266 N.Y.S. 2d 715, and McQuade Travel Agency, Inc. v. Domeck (Fla. App. 1966), 190 So. 2d 3.) As we have heretofore indicated, if an agent does not disclose the existence of an agency relationship and the identity of his principal, he binds himself to the third party with whom he acts as if he, himself, were the principal. (Vander Wagen Bros., Inc. v. Barnes (1973), 15 Ill. App. 3d 550, 304 N.E.2d 663.) In a case similar to the instant one it was held that it was not sufficient for an agent to escape liability that the third party had knowledge of facts and circumstances which would, if followed by reasonable inquiry, disclose the identity of the principal. (Mawer-Gulden-Annis, Inc. v. Brazilian & Columbian Coffee Co. (1964), 49 Ill.App. 2d 400, 199 N.E.2d 222.) The fact that the plaintiff knew that World Trek and not defendant was the tour sponsor does not satisfy the necessary disclosure to prevent defendant from becoming liable as principal. The instant situation becomes particularly sensitive for the defendant with the strong possibility that he is acting in a dual agency capacity with inherent conflicting interests.

Under the authority of Simpson v. Compagnie Nationale Air France (1969), 42 Ill. 2d 496, 248 N.E.2d 117, it is also clear that the defendant is the special agent of the plaintiff. The record supports a conclusion that the plaintiff acted with due care and informed the defendant of his whereabouts for purposes of any contacts to prevent the unfortunate happening which actually occurred. On the other hand the defendant negligently failed to inform World Trek of plaintiff’s whereabouts so that messages of changes in the tour could be communicated to him, and the defendant also failed to inquire of World Trek of any changes in the tour which would affect its customer, the plaintiff. In that aspect we believe defendant acted negligently in violation of his duties under his agency agreement with the plaintiff to arrange this particular tour. The defendant failed to exercise the degree of care required of it as the agent of plaintiff and is therefore liable for the damage that resulted. (Thorp v. Gosselin Hotel Co. (1965), 65 Ill. App. 2d 107, 212 N.E.2d 1.) The trial court, as the trier of fact, agreed with this conclusion, and we believe the trial court’s findings are here manifestly supported by the evidence contained in the record.

Because of defendant’s inherent conflict of interest in acting for both plaintiff and World Trek, we cannot give any weight to the defendant’s contention that it was only the fault of World Trek that plaintiff was not notified of the change in the tour which resulted in plaintiff missing the tour.

For the reasons stated the judgment of the Circuit Court of Rock Island County is affirmed.

Affirmed.

ALLOY, J., concurs.