The opinion
JUSTICE LUND, specially concurring:
This case appears to present an issue of first impression. I consider the issue to be narrow and limited to whether a charitable retailer can convey good title to an item mistakenly delivered to the charity by a charitable donor. It is my opinion that the facts presented in this case are different than in Michael v. First Chicago Corp. (1985), 139 Ill. App. 3d 374 , 487 N.E.2d 403 , because in this case, the silver was the sale item, while in Michael, the file cabinets, not the certificates, were the sale items.
Section 2 — 403 of the Uniform Commercial Code — Sales (UCC) was intended to “state a unified and simplified policy on good faith purchase of goods.” (Ill. Ann. Stat., ch. 26, par. 2 — 403, Uniform Commercial Code Comment, at 332 (Smith-Hurd 1963).) The comment following section 2 — 403 of the UCC, referring to subsection (2), states:
“This subsection extends protection to bona fide purchasers of goods who qualify as ‘buyers in the ordinary course of business’ from a ‘merchant who deals in goods of that kind.’ ” Ill. Ann. Stat., ch. 26, par. 2 — 403, Illinois Code Comment, at 331 (Smith-Hurd 1963).
A strong argument can be made that the description of “entrusting” under section 2 — 403(3) of the UCC would include the act of mistaken delivery. However, such an argument is not so compelling as to overcome the equitable interests of those having made the mistake. The absence of case law on this subject indicates the lack of substantial problems for the charitable retailers.
For the reasons stated, I concur in Presiding Justice McCullough’s opinion and find plaintiffs’ mistake did not equal an entrustment or a sale to Goodwill.