Layaway Does Not Last Forever in Illinois

Suppose you go to your local hardware store, and order bathroom tile for a “weekend” project. Suppose you don’t pick it up within the time required because you are not ready install it. Then suppose you finally get to the point where you need the tile, but it is a year later. In Illinois, at least, if you order an item from your local hardware store but don’t pick it up within the store’s guidelines, you can’t go back later and claim you are entitled to the product and seek damages if they don’t give it to you.

In a recent opinion, Longo Realty v. Menard, Inc., No. 14M3430, the Appellate Court of Illinois, First District, held that a delay in picking up an “ordered” product did not entitle the consumer to purchase the product at the original price or claim damages because the store sold its inventory, and did not set aside and keep the product for the consumer in the event that he would possibly come back later and pick it up.

Longo Realty (actually an attorney doing business as a business entity) in January 2012 went to a Menard, Inc. hardware store to pick out tile for a home renovation project. Menard notified Longo that the tile was ready for pick up, that it should be picked up immediately, and would not be held past a designated period. Longo paid for the tile, and was given a “picking list”, which Menard used to pull purchases from its then available inventory. The List noted: “TO AVOID PRODUCT NOT BEING AVAILABLE ON A LATER DATE PLEASE PICK UP TODAY THANK YOU.” The List also provided:

“This is a quote valid today. Upon payment this quote becomes a yard picking list subject to the terms and conditions below. Quantities listed above may exceed quantities available for immediate pickup. Product is not held for a specific guest, but instead is available to the buying public on a first-come first-served basis. Please pick up purchases made on this picking listing immediately. Failure to pick up products on this picking list today will result in additional charge to you, of on the day of pickup, the retail price of the products are higher than on the day purchased. Menard’s liability to you is limited to refunding your original purchase price for any product not picked up.”Menard’s return policy listed on all store receipts:

“Returns with a receipt after 90 days of purchase: in-store credit shall be issued for original purchase price.”Longo failed to pick up the tile even though a store employee handwrote on the Picking List that “Your tile is pulled and off our sales floor.” Longo took over a year to return to the store in 2013, by which time the original tile had been discontinued, and all Menard’s stores had sold out of that specific brand and model of tile. Menard later mailed Longo an in-store credit for the original purchase price of the tile.

In January 2014, while at another Menard’s store, Longo noticed a tile similar to the tile that he had originally ordered, but from a different manufacturer with a different stock number, and sold at a higher price. Longo said he wanted the new tile, but at the original tile’s lower price.

When Menard’s refused to sell him the new tile at the lower price, Longo filed a two count complaint against it. He alleged a violation of the Illinois Consumer Fraud Act as well as sought a recovery under a “bailment” theory. In a Court tried case, the trial court ruled that no bailment was created by the written statement on the Packing List “Your tile is pulled and off our sales floor”, and that there was no violation of the Illinois Consumer Fraud Act.

On appeal, the Appellate Court held that the handwritten notation did not mean that the store had an obligation to keep the tile indefinitely, until such time as Longo ultimately decided to pick up the tile. All the handwritten statement meant was that for at least a short designated period of time, the store would not sell the tile to any other customer. Longo’s failure to pick it up within the designated time period provided in the store’s written guidelines meant that the store was permitted to later sell the “pulled tile” to any other customer in the normal course of business.

The Appellate Court also held that the written notation did not violate the Illinois Consumer Fraud Act. The Court held there were no deceptive practices engaged in by Menard’s because the preprinted Picking List form also noted:

“Failure to pick up products on this picking list today will result in additional charge to you, if on the day of pickup, the retail price of the products are higher than on the purchased.”As noted above, the form also stated: “Product is not held for a specific guest, but instead is available to the buying public on a first-come first-served basis” and “Failure to take your merchandise with you may result in it not being available at a later date.” The handwritten notation did not supersede those pre-printed clauses, and such clauses did not offend Illinois public policy.

What is the takeaway? If you are a retailer which “holds” items for your customers, make sure all your pre-printed forms disclose completely your store’s pickup and return policies.

If you are a consumer, pickup as soon as possible (or at least within the store’s guidelines) any items you order and want put on lay away. Otherwise you risk “losing those items” and/or risk not being able to purchase them at the original price.