author: Mr. JUSTICE STAMOS

text:
    Robert E. Martin, Plaintiff-Appellee, Cross-Appellant, v. Orvis Brothers & Co., Defendant-Appellant, Cross-Appellee.
    (No. 58805;
    First District (2nd Division)
    December 17, 1974.

      McDermott, Will & Emery, of Chicago (Hamilton Smith and Bruce H. Schoumacher, of counsel), for appellant.
    Hartigan & Ward, of Chicago (William M. Ward and David M. Hartigan, of counsel), for appellee.
   Mr. JUSTICE STAMOS

delivered the opinion of the court:

Robert E. Martin filed an action pursuant to the Securities Law of 1953 (Ill. Rev. Stat. 1971, ch. 12172, par. 137.1 et seq.) to void the sale of securities and to recover the purchase price, plus interest and attorney’s fees, on the ground that the securities were not registered with the Secretary of State as required by law. Defendant, Orvis Brothers & Co. (hereinafter Orvis), counterclaimed to recover the sum owed by plaintiff to defendant for stock purchased but for which payment had not been made. The case was tried before the court without a jury, with judgment being entered in favor of the plaintiff on his complaint in the principal sum of- $243,649.01, together with interest of $57,233.90 and attorney’s fees of $37,500; and for defendant on its counterclaim in the principal sum of $79,936.47, together with interest of $20,714.95. This appeal is from the entry of judgment in favor of plaintiff on the complaint. Plaintiff cross-appealed from the entire order, except to the extent it awarded plaintiff’s attorney’s fees and the principal sum of the counterclaim. The facts, in selective part, follow.

Plaintiff, Dr. Robert E. Martin, was licensed to practice medicine in 1936 and later specialized in internal medicine and radiology. He made early investments in oil and real estate, but by late 1968, he had disposed of his real estate investments. In November of 1965 he began to substantially invest in the stock market, and between then and May 1969, he purchased and sold stock with approximately 17 brokerage houses. During this period he purchased securities costing $6,979,899.96 and sold securities for a price of at least $5,607,526.72. To finance his market activity, plaintiff borrowed money from various Chicago banks; his loans from seven of the banks totaled at least $2,386,800, Although, during this period, plaintiff maintained his medical office and pursued his medical practice, a great, if not the greater, portion of his time appears to have been devoted to his market activity.

During the period of April 15, 1968, thru April 11, 1969, Martin purchased through Orvis, a registered broker-dealer, 25,190 shares of the common stock of Gamma Process Company, Inc., for a total cost of $678,085.74. It is undisputed that the Gamma stock was unregistered in Illinois and sold over the counter (see Ill. Rev. Stat. 1971, ch. 121½, pars. 137.5, 137.12 A & D), and that on June 10, 1969, Martin served his written notice of rescission upon Orvis. See Ill. Rev. Stat. 1971, ch. 121½, par. 137.13.

The particulars of the Gamma stock purchases from Orvis are as follows: Martin purchased the entire 25,190 shares of Gamma stock from defendant through its registered representative, Lee Robert Artoe. Artoe had previously handled an account for Martin at Merrill Lynch.

Martin testified that on April 14, 1968, Artoe, to whom he had not spoken in approximately 3 months, called to say that he was now associated with Orvis and had a “terrific proposition” for Martin as an investment, one which “I highly recommend to you,” and which was identified as Gamma Process Company. Martin testified that Artoe called again the next day, and said, “If you are going to buy this stock, let’s buy now.” He then purchased 500 shares at $12 per share, and before the end of the month had purchased a total of 2,000 shares at prices ranging from $12 to $19 per share.

Martin further testified that he was urged by Artoe to purchase more shares quickly, even if other securities had to be sold to effectuate the additional purchases; that Artoe explained the excellent business prospects of Gamma, which possessed special patents for the process of irradiation, in the most glowing terms; and that Artoe, in May of 1968, had arranged a meeting with Dr. Welt, a key man at Gamma, who confirmed the excellent prospects of Gamma. After the meeting with Dr. Welt, plaintiff testified that Artoe recommended the purchase of 20,000 additional shares, enough to become a director.

By the end of May 1968, plaintiff purchased approximately 7,200 additional shares at prices ranging from $16 to $26 a share; during June 1968, 5,000 more shares were purchased at a price range of $29 to $32. During the period of May and June, both Artoe and Dr. Welt expressed the opinion that the company would grow and the price of the stock would go up. Plaintiff claimed that in July he expressed apprehension tt> Artoe “about converting good securities to buy this over-the-counter stock,” and told Artoe that his fund's were running low. But Artoe pressed him to buy more and said that he had some connections at banks from which Martin could obtain additional funds. From July 1 to July 13, 1968, plaintiff purchased 1,300 shares at prices ranging from $40.50 to $45.00. At this juncture, the stock had peaked in price and plaintiff’s total acquisition was 15,600 shares.

Thereafter, in November of 1968, Martin attended a meeting with Artoe at which a Mr. Arnel, the president of Gamma, and a Dr. Silver-stein, the vice-president in charge of research, stated the very favorable business prospects of Gamma. It was a promotional meeting, attended by 40 to 50 people from various brokerage houses. Martin then met privately with Artoe, Amel and Silverstein, who further discussed the possibility of Martin becoming a director and told him that he would become a wealthy man from his investment in Gamma. Artoe continued to recommend the stock to Martin as a long-term investment. Plaintiff made his last purchase of stock on April 11, 1969, his total shares now numbering 25,190 for a total purchase price of $678,085.74. The stock was then selling at $18 a share.

Martin stated that in January of 1969, he spoke with Kurt Karmin, a stock broker at Freehling & Company, concerning a quote on Gamma stock; Karmin told Martin that he thought Gamma Process stock was not registered, but wasn’t sure. Martin immediately called Artoe who stated that Karmin was full of “hot air,” that the company was doing business in Illinois and must have been registered.

Martin stated that he telephoned Karmin in the early part of May, to ask him the quote on Gamma and during this conversation Karmin said that he was positive that Gamma stock was not registered. Martin called the Secretary of State’s office which advised him that the stock was not registered. After confirming the nonregistration of the stock, Martin called his attorney, Jay Erens, who told Martin that he had a right to rescind. Martin placed the conversation with Erens about the middle of May.

Jay Erens testified that the conversation took place on June 2, at which time Martin told Erens that Gamma stock was not “qualified for sale” in Illinois, and stated “I don’t know what that means.”

Kurt Karmin testified for plaintiff and stated that he first heard of Gamma when Martin invited him to attend a meeting at the Union League Club in the fall of 1988 or 1969. The witness did not attend the meeting, but had four other conversations with Martin about Gamma, the second of which occurred months after the first, the third weeks after the second, the fourth days after the third, and the fifth hours after the fourth. He placed his first statement to Martin to the effect that Gamma was not registered in the third conversation. On cross-examination the witness admitted that he could not recall the exact time when Martin invited him to the meetings at the Union League Club, nor was he sure about the time relationship between the various conversations. Although he was faint in his recollection, he did not deny that on August 28, 1969, he told a member of Orvis that the conversation with reference to non-registration occurred when Gamma stock was selling in the range of $33 — $35 a share, which would place the conversation sometime in July or August of 1968.

Robert Artoe, testifying for the defense, stated that after Martin’s account was closed out at Merrill Lynch on February 2, 1968, he talked to Martin nearly every day, keeping him abreast of the market. After he went to work for Orvis in early April, Artoe called Martin and advised him that he could trade with Artoe at Orvis. He testified that at the outset he mentioned Gamma to Martin as a stock he liked, and thereafter supplied information to Martin about Gamma on the latter’s request. Artoe admitted that he invited Martin to meet with Dr. Welt of Gamma in May of 1968, but denied telling Martin that he ought to buy Gamma stock, or that he should have a designated position in the stock. Artoe testified that after the dinner on May 7, and prior to Martin’s purchase on May 8, he told Martin, “This has to be considered long term for now because that much stock can’t be immediately liquidated.” On May 30 or 31, when Martin wanted to buy still more Gamma stock and Gamma was selling for $25 a share, Artoe testified, “I told him absolutely not to. My exact words were Tut this to sleep.’ ” Artoe testified that, in connection with Martin’s purchases on June 20 and June 21, he stated to Martin: “Please don’t. Put this one to sleep. We have plenty. I also believe it is going quite a bit higher, but we have plenty. Let’s let it rest.” Subsequently, on July 8, Artoe told Martin that the stock was going up very nicely, and “I wondered if it would become an offer wanted situation.” Sometime between July 19 and August 12, 1968, Artoe testified that he told Martin, “Come on, damn it, you have got enough of this stuff.” Martin asked him if the stock was going to go up and Artoe answered, “Yes, I do.” Martin then bought more shares.

In late July or early August of 1968, Artoe stated that he had a telephone conversation with Martin in which Martin said, “You know, Hotshot, that stock is not registered in Illinois.” Artoe testified that he told Martin that if Gamma was not registered under Illinois securities laws, he was entitled to return his stock, and get his money back. He said that since the market price was substantially above his average cost, he assumed Martin did not want to do that, with which Martin agreed.

It is undisputed that on September 26, 1968, Martin opened a second account at Orvis in the name of “Mr. Robert E. Martin” with a view to applying the so-called Crystal-Doyle technique. (See Doyle v. Commissioner (7th Cir. 1961), 286 F.2d 654.) Thereafter, 9,300 shares of Gamma, which were purchased by Martin between June 20, 1968 and August 12, 1968, were transferred from the account of “Dr. Robert E. Martin” to the account of “Mr. Robert E. Martin” and a commission was paid to Orvis on the transaction. The technique was employed at the suggestion of Artoe, and by reason of the transaction, Martin was able to claim a short-term loss of $123,625.55.

Although defendant, in the trial below, conceded that Gamma was not registered in Illinois, it raised several affirmative defenses.- It first argued that the sales to Martin of Gamma stock were not “solicited,” and therefore, the stock fell under section 4N of the Law (Ill. Rev. Stat. 1971, ch. 121½, par. 137.4N), which exempts a broker-dealer from liability for the sale of unregistered securities if it acts only as a broker for a customer in the transaction and had not solicited the trades. Defendant also argued that Martin was a “dealer” in securities and therefore defendant was exempted from liability under section 4C. (Ill. Rev. Stat. 1971, ch. 121½, par. 137.4C.) Apart from the above exemption provisions, defendant asserted that the notice of rescission was untimely, and further, that Martin was equitably estopped from rescinding the 9,300 “Crystal-Doyle” shares purchased between June 20 and August 12, and transferred to a second account in September of 1968.

At the conclusion of the trial, the court, sitting without a jury, found that the notice of rescission served upon Orvis was timely within the purview of section 13B of the Law (Ill. Rev. Stat. 1971, ch. 121½, par. 137.13B)); that as a matter of fact and law, Martin was not a “dealer” within the meaning of section 4C; that although Artoe initially solicited the sales of stock, the solicitation terminated on July 15, 1968, and sales thereafter were not subject to rescission; and that plaintiff was equitably estopped from rescinding the 9,300 shares involved in the “Crystal-Doyle” transaction.

The parties to this litigation have requested an interpretation of various sections of the Illinois Securities Law, and we think it appropriate to initially note the purpose of thé Law. The legislative intent in enacting the Securities Law has for its object the protection of the public from unscrupulous stock promoters. Registration with, and approval by; the Secretary of State is the primary safeguard, and comprehensive action against all participants in an unauthorized sale is the primary remedy. (Silverman v. Chicago Ramada Inn, Inc., 63 Ill.App.2d 96, 211 N.E.2d 596.) The Law is paternalistic in character and should be liberally construed to better protect the public not just from fraud or dishonesty, but also from the incompetence, ignorance and irresponsibility of persons engaging in the business of disposing of securities to the public. (Foreman v. Holsman, 10 Ill.2d 551, 141 N.E.2d 31; Meihsner v. Runyon, 23 Ill.App.2d 446, 163 N.E.2d 236.) Accordingly, the prohibition against the solicited sales of unregistered securities is unqualified. No knowledge that the security is unregistered and no intent to defraud the purchaser are required. The statute was designed to prevent injury to the investing public and it indicates a legislative purpose to impose absolute liability for its violation. Home Indemnity Co. v. Reynolds & Co., 38 Ill.App.2d 358, 187 N.E.2d 274.

From these general propositions we turn to defendants contention that the trial court erred in finding that plaintiffs notice of rescission was timely within the purview of section 13(B) of the Law which provides, inter alia: “Notice * * * shall be given by the purchaser, within 6 months after the purchaser shall have knowledge that the sale of the securities to him is voidable * * *” (Ill. Rev. Stat. 1971, ch. 121½, par. 137.13(B).) The trial court, in holding that Martin first had knowledge that the sales were voidable in early June 1969, after conferring with his attorney, relied upon Curtis v. Johnson, 92 Ill.App.2d 141, 155, 234 N.E. 2d 566, which, in reference to section 3B of the Law, stated:

“Knowledge that the sale is “voidable” is a mixed question of fact and law on which a laymen is entitled to acquire his first knowledge from an attorney.”

Defendant argues that the legislature did not intend that the 6-month period of section 13B would run only when knowledge of the sale’s void-ability was acquired from an attorney. Since the trial court, defendant asserts, read the holding of Curtis as an absolute requirement of the statute, the court erred as a matter of law. Further, defendant argues that since Artoe was a credible witness and Martin was not, the manifest weight of the evidence is that Martin had knowledge that the Gamma transactions were voidable in July or August of 1968, when Artoe, according to his testimony, told Martin that if the stock was not registered, Martin could rescind. Alternatively, defendant asserts that the manifest weight of the evidence is that Martin knew that Gamma stock was not registered prior to December 10, 1968, and that such knowledge was sufficient to trigger the 6-month period of section 13B. This proposition is based upon the general rule that one who has sufficient knowledge to be put on inquiry cannot escape the consequences of his knowledge by failing to make inquiry.

The 6-months rule regarding notice is not a statute of limitations, but rather an equitable feature built into the statute to protect against stale claims. (Gowdy v. Richter, 20 Ill.App.3d 514, 314 N.E.2d 549.) Its purpose is to prevent purchasers, who have sufficient knowledge of the remedy available to them, from waiting the entire statute of limitations to decide whether to elect rescission. Norville v. Alton Bigtop Restaurant, Inc., 22 Ill.App.3d 273, 317 N.E.2d 384.

We must agree with defendant’s contention that the trial court did not employ the proper standard in determining the time plaintiff obtained sufficient knowledge to commence the running of the 6-month period. In holding that legal consultation was a prerequisite to the running of the rescission-notice period, the trial judge misinterpreted our earlier decision in Curtis v. Johnson, 92 Ill.App.2d 141, 234 N.E.2d 556. As a reading of the opinion makes clear, the only question which this court decided in Curtis is whether an allegation that a purchaser of unregistered securities acquired his first knowledge of the sales’ voidability from an attorney was sufficient to support a cause of action. However, neither Curtis supports, nor does section 13B warrant, the conclusion that legal consultation is a necessary prelude to the running of the rescission-notice time period. Having applied an improper standard in determining the issue of timely notice, the trial court erred as a matter of law. However, we cannot accept defendant’s assertion that there is no need to remand the cause because the manifest weight of the evidence is that plaintiff knew the transactions were voidable in July or August of 1968, or alternatively, knew that Gamma stock was not registered prior to December 10, 1968.

The evidence concerning the question of when plaintiff first acquired actual knowledge that his purchases of the instant stock could be rescinded is in direct conflict. Plaintiff testified that he acquired this knowledge for the first time from his lawyer in late May or early June of 1969. However, Artoe testified that he had informed plaintiff that the latter could “get his money back” in July or August of 1968. Due to his interpretation of the Curtis decision, the trial judge never resolved the conflicting testimony. It is well established that resolution of conflicting evidence is preeminently a question for the trier of fact. Upon the record before us, this court is not in a position to resolve such conflict as a matter of law.

Defendant’s alternative argument, that the manifest weight of the evidence is that plaintiff had knowledge of the nonregistration of the stock prior to December 10, 1968, assumes that knowledge of the non-registration of the stock is synonymous with knowledge of the sales’ voidability. However, the statute does not require the election to rescind be made 6 months after notice that the securities are not registered, but specifically requires that an election be made 6 months after the purchaser has knowledge that the sale is “voidable.” Given the paternalistic nature of the Law in protecting investors, and the liberal construction which is to be employed in furtherance thereof, it would be improper to rigidly equate knowledge of the sales’ voidability with knowledge of the nonregistration of the stock. It is equally true, however, that the statute does not require actual knowledge of the sales’ voidability, and consequently, the legal maxim that “the law charges a person with the knowledge he might have obtained by making use of the means afforded him” applies. (See Gowdy v. Richter, 20 Ill.App.3d 514, 314 N.E.2d 549.) While knowledge of the stock’s nonregistration is a factor in determining whether a purchaser had constructive knowledge of the sales’ voidability, it is not singularly decisive. Like the issue of actual knowledge, the question of whether Martin had constructive knowledge of the sales’ voidability, as well as the question of when he acquired knowledge of the nonregistration of the stock, is properly determined by the trier of fact.

Defendant’s next contention is that plaintiff was a “dealer” within the meaning of section 4C of the Law (Ill. Rev. Stat. 1971, ch. 121½, par. 137.4C), and therefore, the sales to Martin were exempted from registration. A dealer is defined in section 2.7 as one who “engages * * * for all or part of his time, directly or indirectly, as agent, broker or principal, in the business of offering, selling, buying and selling, or otherwise dealing or trading in securities issued by another person.” (Ill. Rev. Stat. 1971, ch. 121½, par. 137.2 — 7.) Defendant argues that plaintiff devoted enough time to buying and selling securities to be deemed engaged in the business of so doing as a dealer within the meaning of section 2.7. In support thereof, defendant points to the fact that not only did plaintiff characterize his business as that of “physician-investor” on his 1967 tax return, but also purchased $1,844,260.81 of securities between April and July of 1968, and sold $1,559,123 of securities during the same period, and additionally, borrowed at least $2,386,000 from nine banks to purchase securities. Considering the intensity of plaintiff’s market activities, and widely understood concepts of what constitutes engaging in business, defendant argues, the conclusion is inescapable that Martin was a dealer and all his transactions were exempt from registration. We disagree.

In Reid v. NX Corp., 11 Ill.App.3d 706, 708, 297 N.E.2d 380, this court stated that the purpose of exempting sales from registration when the purchaser is himself a dealer, is that it is assumed dealers, like the other institutional investors enumerated in section 4C, are capable of protecting themselves and do not require the protection afforded by the Law. However, unless the specific words of the exemption provisions require their inclusion, private investors are not denied coverage under the Law merely because they are “sophisticated investors.” (Mark v. McDonnell & Co. (7th Ch. 1971), 447 F.2d 847.) Similarly, we judge that the protection afforded the investing public at large should not be diluted by denominating a private investor a “dealer” whenever the magnitude and number of his purchases exceed a certain limit. Such distinction is artificial and frustrates the purpose of the Law. In the present case, it is undisputed that all of plaintiff’s security purchases, despite their volume and recurrence, were for his own account; he shared none of the characteristics normally attributable to a dealer. See II Loss, Securities Regulations, ch. 8B, at 1296-1297 ( 2d ed. 1961).

Furthermore, a statute should be construed so that effect is given to all its provisions, so that no part will be superfluous or inoperative. (Tan v. Tan, 3 Ill.App.3d 671, 279 N.E.2d 486.) The legislative intent in excluding from section 4C persons engaged in heavy trading for their own account is evidenced by section 4D which distinguishes between a dealer and a “trader buying or selling * * * in frequent operations, for its or his own account * * * to such extent that it or he may be said to be engaged in such activities as a trade or business.” The omission of this latter language from section 4C, which would more aptly be descriptive of plaintiff, must be deemed intentional, and as such, excluded from its operation.

In his cross-appeal, plaintiff contends that the trial court erred in holding that all transactions from July 15, 1968 onward were not “solicited” within the meaning of section 4N of the Law (Ill. Rev. Stat. 1971, ch. 121½, par. 137.4N), which provides for an exemption in the following circumstances:

“The execution of orders for purchase of securities by a registered dealer, provided such dealer acts as agent for the purchaser, has made no solicitation of the order to purchase the securities, has no direct interest in the sale or distribution of the securities ordered, receives no commission, profit, or other compensation other than the commissions involved in the purchase and sale of the securities and delivers to the purchaser written confirmation of the order which clearly identifies the commissions paid to the registered dealer;”

The trial court, although finding that Artoe initially “solicited” plaintiff to purchase Gamma stock, accepted Artoe’s version of the July 1968 conversation in which Artoe told Martin, “Come on, damn it, you have had enough o£ this stuff.” The trial court held that all transactions subsequent to this conversation were “unsolicited” and therefore exempt from the requirement of registration. In so holding, the court replied upon Home Indemnity Co. v. Reynolds & Co., 38 Ill.App.2d 358, 368, 187 N.E.2d 274, which distinguished solicited and unsolicited sales:

“A solicited sale is one in which the salesman ‘actively encourages the purchase or sale of a security by a client.’ Unsolicited sales, in which a customer requests that a security be purchased for him and the salesman just takes the order and acts as agent for the purchaser, are not prohibited.”

Plaintiff asserts that the subsequent conduct of Artoe demonstrates the insufficiency, as a matter of law, of the July conversation to terminate the “solicitation” of sales. Plaintiff points to the fact that after the July conversation, Artoe told Martin that the stock would go up, suggested the Crystal-Doyle transaction, and invited him to a meeting at which the prospects of Gamma were again extolled by Gamma’s president. Plaintiff further advocates a rule which would continue a broker’s liability with respect to repeated purchases of unregistered stock until the broker has advised his customer that he has 6 months in which to elect to rescind, the customer has elected not to rescind, and the broker has obtained a nonsolicitation letter from the customer.

In support of his contention plaintiff relies upon various Federal cases interpreting the concept of “offer to sell” (which includes “solicitation of an offer to buy”) under the Securities Act of 1933. (E.g., S.E.C. v. Liberty Petroleum Corp., C. C. H. Fed. Sec. L. Rep., ¶ 93, 209 (1971-72 Transfer Binder).) However, these cases deal with an initial solicitation or offer to sell, and not, as the instant case, with the question of whether an initial solicitation may be terminated within a chain of sales.

As to the issue in the present case, we are of the opinion that a solicitation may cease when the broker strongly and emphatically advises his customer not to make any further purchases of the particular stock. Although the trial court found an initial solicitation of stock, it does not necessarily follow that all subsequent sales must, as a matter of law, be deemed as solicited. The language of the statute does not require such a holding, nor has plaintiff presented authority which compels such construction. The trial court apparently did not view Artoe’s conduct subsequent to the July conversation as conduct designed to procure additional purchases of Gamma stock, but rather, as continuing service to a customer who had already made a substantial investment in Gamma. Given the direct and unequivocal character of Artoe’s advice not to make further purchases of Gamma stock, the finding of the trial court was not prohibited by section 4N (Ill. Rev. Stat. 1971, ch. 121½, par. 137.4N), nor was it against the manifest weight of the evidence.

Plaintiff’s next contention is that the trial court erred in holding that Martin was equitably estopped from rescinding the 9,300 “Crystal-Doyle” shares purchased between June 20 and August 12, and transferred to a second account in September. Defendant’s argument is that by selling, or attempting to sell the stock, from one account to another in order to generate a tax deduction, Martin affirmed his purchase of those shares, thereby barring rescission. We disagree.

In the recent case of Gowdy v. Richter, 20 Ill.App.3d 514, 525, 314 N.E. 2d 549, this court stated:

“The law in Illinois is clear in allowing only statutory, not equitable, defenses to be raised by a defendant in a case involving a blue sky violation. The penal character of the statute negates the utilization of in pari delicto or estoppel defenses.”

In Hudson v. Silver, 273 Ill.App. 40, it was argued, in defense to a blue sky violation, that plaintiff, by participating in the dividend of the stock which was subsequently tendered back and having acted as a director in the company even after the stock had been tendered, thereby “affirmed” the contract of purchase. In rejecting the defense, the court noted that although the actions of plaintiff would tend to show affirmance of the transaction in a chancery action, the penal nature of the securities law precluded such defense.

Similarly, in the present case, we think the transfer of stock from one account to another does not preclude rescission of those shares on equitable grounds. There is no statutory exemption covering tire transaction, and the parties do not argue that the Federal tax consequences of the transaction affect plaintiff’s right to rescind. Plaintiff was the named owner of both accounts, and the transfer did not prevent plaintiff from tendering the identical stock back. (Cf. Glen v. Dodson, 347 Ill. 473, 180 N.E. 393.) Accordingly, we hold that plaintiff could rescind those shares of Gamma stock involved in the “Crystal-Doyle” transaction which were purchased before July 15, 1968.

Plaintiff1s final contention is that the trial court erroneously allowed interest on defendant’s counterclaim for stock purchased but for which payment had not been made. Tire trial court awarded interest predicated upon the issuance of confirmation slips sent to plaintiff and found that the amount became due on May 1, 1989. Although plaintiff argues that the “confirmation slips” were not “instruments of writing” within the meaning of the Interest Statute (Ill. Rev. Stat. 1971, ch. 74, par. 2), he fails to point out in his brief where in the excerpts or record the documerits may be found, and fails to point out any of the operative facts necessary to an understanding of the issues presented as required by Supreme Court Rule 341(f) (Ill. Rev. Stat. 1971, ch. 110A, par. 341(f)). Plaintiff’s omission is particularly serious when, as here, the record contains voluminous testimony and documentary evidence. (See Horn v. J. O. Nessen Lumber Co., 236 Ill.App. 187.) Although the entire record is available to the reviewing court, we are not required to search the record to find a reason for reversing the judgment. (Elden v. Addison Farmers Mutual Insurance Co., 90 Ill.App.2d 417, 233 N.E.2d 42.) On appeal, all reasonable presumptions are in favor of the judgment of the trial court, and the party who prosecutes an appeal has the burden of overcoming these presumptions by affirmatively showing the errors charged. Husted v. Thompson-Hayward Chemical Co., 62 Ill.App.2d 287, 210 N.E.2d 614.

We merely note that a writing in confirmation of the sale or purchase of securities which is not objected to within 10 days after receipt is sufficient to enforce a contract for the sale of securities (Ill. Rev. Stat. 1971, ch. 26, par. 8 — 319(c)), and as such, may be an “instrument of writing” upon which money becomes due. See Murray v. J. M. Doud & Co., 167 Ill. 368, 47 N.E. 717; Hufford v. National Retailer-Owned Grocers, Inc., 16 Ill.App.2d 1, 147 N.E.2d 437; contra, Dempsey-Tegeler & Co. v. Irwin (7th Cir. 1969), 415 F.2d 1348 (wherein the court found no underlying agreement to purchase the securities).

Plaintiff further argues that there was a bona fide dispute concerning the amount due, which could not be determined until plaintiff’s claim against defendant was resolved. For interest to attach, prior to judgment, absent an agreement, the amount must be fixed, or determinable, and due, in the sense that a debtor-creditor relationship has come into being. (Kansas Quality Construction, Inc. v. Chiasson, 112 Ill.App.2d 277, 250 N.E.2d 785.) If the amount is determinable, interest can be awarded on money payable even when the claimed right and the amount due require legal ascertainment (L. W. Foster Sportswear Co. v. Goldblatt Bros., Inc. (7th Cir. 1966), 356 F.2d 906, construing Illinois law), and the fact that the parties could reasonably differ as to their liability is not a consideration so far as the statute is concerned. (Kansas Quality Construction, Inc. v. Chiasson, supra.) In tire present case, the trial court apparently was able to determine the amount due by reference to the confirmation slips. The fact that a portion of the amount due may have arisen in connection with the purchase of “nonsolicited” Gamma stock does not alter the liquidated nature of the claim. (See Socony Mobil Oil Co. v. Klapal (D. Neb. 1972), 205 F.Sup. 388.) Accordingly, we affirm the trial court’s award of interest on the counterclaim.

In view of the foregoing, the judgment of the circuit court is affirmed in all respects with exception of that part wherein the court held that the notice of rescission was timely and that plaintiff was estopped to rescind the 9,300 shares of Gamma stock involved in the Crystal-Doyle transfer. The cause is reversed and remanded for a determination, in accordance with the views expressed herein, of the time when plaintiff acquired knowledge of the sales’ voidability, and, if necessary, for re-computation of the principal amount of plaintiff’s judgment and interest thereon, in accordance with our holding that plaintiff was not estopped to rescind that portion of the 9,300 shares of Gamma stock which was purchased before July 15, 1968.

Affirmed in part; reversed and remanded in part.

McNAMARA and LEIGHTON, JJ., concur.


source: Caselaw Access Project

author: Mr. JUSTICE LEIGHTON Mr. JUSTICE DOWNING,

license: Public Domain

text:
    Citizens Utilities Company of Illinois, Plaintiff-Appellee, v. The Metropolitan Sanitary District of Greater Chicago, Defendant-Appellant.
    (No. 57027;
    First District (2nd Division)
    December 17, 1974,

      DOWNING, J., specially concurring.
    Allen S. Lavin and Foran, Wiss and Schultz, both of Chicago (Robert E. Wiss and James J. Casey, of counsel), for appellant.
    Sheldon Karon, Joseph A. Spitalli, and Robert M. Kluchin, all of Chicago (Friedman & Koven, of counsel), for appellee.
   Mr. JUSTICE LEIGHTON

delivered the opinion of the court:

This appeal arises from a suit by Citizens Utilities Company of Illinois, a privately owned public utility, against the Metropolitan Sanitary District of Greater Chicago to recover, under the constitution, for damage to a sewage treatment plant. The material facts are not in dispute.

On December 18,1962, the Sanitary District, acting within its statutory powers and lawfully exercising its authority, completed construction of an interceptor sewer near the Village of Hoffman Estates in Cook County, Illinois. This completion was anticipated by all concerned because District had jurisdiction of the area in which the village was situated. It notified all officials immediately involved and directed that sewer lines from Hoffman Estates be connected with the interceptor. Ten days later the connection was made, and from then on, all sewage from the village was diverted into the District’s sewage disposal system.

Until that time, in fact from 1955, sewage utility service had been furnished to the village by a treatment plant that was constructed, and on two occasions improved, at a total cost of $486,756. The plant was operated under certificates of convenience and necessity issued by the Illinois Commerce Commission. In its 1960 certificate, the Commission required that the plant obtain from the Sanitary District such permits as may be required by law. Accordingly, on January 1, 1961, the District reviewed plans and specifications and then issued the permit under which the plant was operating when the interceptor sewer was completed. In elaborating on the terms of its permission, District told the owners that the plant was to operate as a temporary sewage treatment facility and stated that the permit was to remain in force only until Sanitary District facilities were available.

When these did become available and village sewer lines were connected with District’s interceptor sewer, the plant, having no sewage from the village to treat, ceased operations entirely, totally depreciated in value and became useless. Indeed, the cost of salvaging the plant exceeded its value by $17,000. Because of this fact, although no part of their property was taken or physically touched by the District, owners of the plant demanded that District compensate them for their loss. District, however, refused, saying that it was under no moral or legal obligation to pay the owners any compensation.

Following this refusal, Citizens, a company which acquired ownership rights to the plant after the interceptor sewer was completed, filed suit alleging that it was entitled to recover from District the sum of $520,000 as just compensation for property that allegedly became useless as a result of District’s construction of the interceptor sewer and connection of sewer lines from the Village of Hoffman Estates. For its theory of the case, Citizens relied on article II, section 13, of the Illinois constitution of 1870, on section 19 of “An Act to create sanitary district * *

and on the fifth and fourteenth amendments to the Federal constitution. District appeared, answered the complaint, denied the material allegations and interposed affirmative defenses. In later pretrial proceedings, tire trial court entered an order which found that there was no factual dispute concerning the issue of District’s liability, if any; the dispute between the parties involved a question of law. Therefore, it was agreed that Citizens and District would file cross-motions for summary judgment. This was done, and thereafter, memoranda of law arguing the respective positions of the litigants were submitted. The court took the motions under consideration and then denied the one filed by District and granted the one filed by Citizens. After this ruling, the question of damages was heard by a jury that returned a verdict of $385,000 in favor of Citizens. Judgment was entered on the verdict. District now brings the case to this court for our review. The dispositive issue presented is whether the trial court erred in granting Citizens’ motion for summary judgment, thus holding that with regard to the loss of the sewage treatment plant, it suffered damages compensable under article II, section 13 of the Illinois Constitution of 1870 or under section 19 of “An Act to create sanitary districts * * ** (Ill. Rev. Stat, 1961, ch. 42, par. 339).

It is clear from the record before us that no property belonging to owners of the plant or to others adjacent to it was taken by the Sanitary District. Taking of private property within the meaning of the constitution can be accomplished only by the fifing of a petition, the ascertainment of value and the payment of just compensation. (People ex rel. Gutknecht v. City of Chicago, 414 Ill. 600, 111 N.E.2d 626; 17 I.L.P. Eminent Domain §42 (1956).) And, it is also clear that there was no physical intrusion on or obstruction of Citizens’ property by District. What happened was District’s construction of a public improvement, an interceptor sewer, that was later connected to sewer fines from the Village of Hoffman Estates, thereby diverting sewage from Citizens’ treatment plant, followed by the plant becoming useless because it no longer could serve the village.

The question, then, is whether this was damage of private property for public use within the meaning of the constitutional guarantee or damage by reason of the construction of an improvement within the meaning of section 19 of the sanitary district act. The answer to this question necessarily depends on the meaning our courts have given to the concept of damage as it appears in the applicable provision of the 1870 constitution and in the pertinent section of the drainage code.

In Rigney v. City of Chicago, 102 Ill. 64, a property owner invoked article II, section 13, of the Illinois constitution of 1870 and sued the city of Chicago for damages he allegedly sustained as a result of the city’s construction of'.a viaduct some distance from his property. As in the case before us, there was no taking, nor was there any physical intrusion upon the land. However, the owner proved that the viaduct cut his land from all communication with one. of the city’s main thoroughfares, one to and from which he had had prior access. The owner’s evidence established that as a result of this obstruction, monthly rentals of his property were reduced and its value deteriorated by two-thirds. Despite this showing, the owner was denied recovery in the trial court; the appellate court affirmed. He appealed to the supreme court and tire issue he presented required construction of the words “or damaged” in the provision of the Illinois constitution of 1870 which guaranteed that “[p]rivate property shall not be taken or damaged for public use without just compensation.” (Emphasis supplied.) Ill. Const. 1870, art. 11, § 13.

After reviewing history and decisional law of this and other jurisdictions, the court concluded that damage under the 1870 constitution did not require, in every case, proof of actual appropriation or physical injury to an owner’s property. Therefore, the court reversed the denials of relief to the owner. In doing so, it concluded that “damaged” meant any direct physical disturbance of a right, either public or private, which an owner enjoys in connection with his property; a right which gives the property an additional value; a right which is disturbed in a way that inflicts a special damage with respect to the property in excess of that sustained by the public generally. The court added, “[I]t was the intention of the framers of the present constitution to require compensation to be made in all cases where, but for some legislative enactment, an action would lie by the common law.” 102 Ill. 64 at 81.

This definition has stood unchanged and unmodified since Rigney wadecided. It has been approved by the highest court of this country. (See City of Chicago v. Taylor (1888), 125 U.S. 161, 31 L.Ed. 638, 8 S.Ct. 820; D.M. Osborne & Co. v. Missouri Pacific Ry. Co. (1893), 147 U.S. 248, 37 L.Ed. 155, 13 S.Ct. 299.) It has influenced development of American law. (See City & County of Honolulu v. Market Place, Ltd. (Hawaii 1973), 517 P.2d 7, 13; Van Alstyne, Statutory Modification of Inverse Condemnation: The Scope of Legislative Power, 19 Stan. L. Rev. 727, 771-72 (1967); Nichols on Eminent Domain § 6.441 [3] (rev. 3d ed.); 26 Am. Jur. 2d Eminent Domain § 159 (1966).) And, with regard to section 19 of “An Act to create sanitary districts * * *” (Ill. Rev. Stat. 1961, ch. 42, par. 339), there is no reason to believe the legislature intended the word “damaged” to have any other meaning. The principal legislative puipose in the enactment of this statute, which occurred after the Rigney decision, was to' creat a venue and afford litigants the right to bring their action in: counties where the damaged real estate is situated as well as in the county where the sanitary district is located. Kosicki v. S. A. Healy Co., 380 Ill. 298, 44 N.E.2d 27.

Therefore, damage within both the constitutional and statutory provisions means some direct physical disturbance of a right which owners of the plant in question enjoyed in connection with their property, one that gave the plant additional value, and which, when disturbed, would cause special damage in excess of that sustained by the public generally and give rise to an action by the common law. (See Otis Elevator Co. v. City of Chicago, 263 Ill. 419, 424, 105 N.E. 338.) Damage, as thus defined, had to be actionable, but for District’s statutory authority. (Compare Illinois Power & Light Corp. v. Talbott, 321 Ill. 538, 152 N.E. 486; see 2A Nichols on Eminent Domain § 6.41[1] (rev. 3ded.).) This meaning of damage, of course, has application to the rights to or in property which the owners enjoyed in connection with their treatment plant.

“Property,” within the meaning of our constitution, is a word of general import which applies to every specie of right and interest capable of being enjoyed as such and on which it is practicable to base a money value. (See Father Basils Lodge, Inc. v. City of Chicago, 393 Ill. 246, 65 N.E.2d 805; City of Belleville v. St. Clair County Turnpike Co., 234 Ill. 428, 84 N.E. 1049; 11 I.L.P. Constitutional Law §461 (1955).) “The term comprehends not only the thing possessed, but also, in strict legal parlance, means the rights of the owner in relation to land or a thing; the right of a person to possess, use, enjoy, and dispose of it, and the corresponding right to exclude others from the use.” (26 Am. Jur. 2d Eminent Domain § 173 (1966); see Drainage Commissioners v. Knox, 237 Ill. 148, 86 N.E. 636; Transcontinental Oil Co. v. Emmerson, 298 Ill. 394, 131 N.E. 645.) It is in recognition of these rights that our constitution prohibits private property from being damaged for public use without just compensation and thus secured to the owners of the sewage treatment plant the right to undisturbed use and enjoyment of their property. See Kane v. City of Chicago, 392 Ill. 172, 176, 64 N.E.2d 506.

Now, what property right of the treatment plant owners was damaged that is, subjected to a direct physical disturbance by District in a way that gave rise to a cause of action by the common law? Careful examination of the admitted facts discloses without question, that the owner’s right to the treatment plant itself, that is, to the res, was not disturbed by the Sanitary District in connection with completion of the interceptor sewer. (See Rigney v. City of Chicago, 102 Ill. 64, 77, 77 C.J.S. Res, at 273 (1952); compare Horn v. City of Chicago, 403 Ill. 549, 554-55, 87 N.E.2d 642.) Nor did the District, in any way, disturb the right of the treatment plant owners to possess, use, enjoy, dispose or exclude others from using their property. Therefore, it appears that no right which owners of the treatment plant enjoyed with regard to their property was disturbed by the District. The only occurrence, the one that gave rise to this controversy, was District’s exercise of its lawful jurisdiction, its directions, as it had the statutory right to give, that sewer lines of the Village of Hoffman Estates be connected with the completed interceptor sewer, and loss to the treatment plant of the village to which it would have continued furnishing sewage treatment service. Therefore, the question we reach is whether the consequential interruption of the plant’s sewage treatment service to the village damaged the right of the plant owners to undisturbed use and enjoyment of their property. In our judgment, it did not. We are convinced that such a theory of compensable constitutional damage cannot be fashioned by refining the concept that underlies the right to undisturbed use and enjoyment of property.

The plant in question was a privately owned public utility that was operating under a certificate of convenience and necessity issued by the Illinois Commerce Commission. In this state, “[n]o certificate of public convenience and necessity shall be construed as granting a monopoly or an exclusive privilege, immunity or franchise.” (Ill. Rev. Stat. 1961, ch. 111⅔, par. 56.) Moreover, the certificate under which the plant was operating when District’s interceptor sewer was completed required its owners to “* * * secure such permit or permits from the Metropolitan Sanitary District of Greater Chicago as may be required by law * * In compliance with this requirement, owners of the plant submitted plans and specifications and applied for a permit. The permit which District issued allowed the plant to operate as a temporary sewage treatment facility with a provision which told the owners that “[a] 11 Permits for temporary sewage treatment facilities will be * * * in force only until it is determined by the Chief Engineer of The Metropolitan Sanitary District that Metropolitan Sanitary District sewerage facilities are available. When the Chief Engineer shall so determine, the Permittee agrees to abandon operations of the temporary sewage treatment plant and make a direct or indirect connection to a Metropolitan Sanitary District sewerage facility.” Therefore, not only was tire plant existing under a nonexclusive franchise, it was operating under a temporary permit which by its terms was revocable whenever the chief engineer of tire District determined that District’s own sewage facilities were available.

Termination of a franchise or permit which by its terms is revocable does not deprive the owner of property that is constitutionally compensable. (See Boston Elevated Ry. Co. v. Commonwealth (1942), 310 Mass. 528, 39 N.E.2d 87; United Electric Light Co. v. Deliso Construction Co. (1943), 315 Mass. 313, 52 N.E.2d 553; compare Acton v. United States (9th Cir. 1968), 401 F.2d 896; Greater Wilmington Transportation Authority v. Kline (Del. 1971), 285 A.2d 819; Hendricks County Rural Electric Membership Corp. v. Public Service Co. (Ind. App. 1971), 276 N.E.2d 852.) For example, a municipality like the Village of Hoffman Estates that constructs and operates a utility in competition with an existing one has no constitutional obligation to pay for depreciation in the value of the property affected. (Compare Greater Tangipahoa Utility Co. v. City of Hammond (La. App. 1971), 255 So. 2d 510, writ denied (1972), 260 La. 290, 255 So. 2d 773; City of Tucson v. Polar Water Co. (1953), 76 Ariz. 126, 259 P.2d 561.) Even in a taking by eminent domain, where value must be determined for the purpose of compensation, loss of business profits and consequential deterioration in property value are not elements of damage. (See Chicago & Evanston R.R. Co. v. Dresel, 110 Ill. 89; compare Department of Public Works 6- Buildings v. Diel, 89 Ill. App.2d 130, 232 N.E.2d 133.) In fact, in this case, absent proof of some direct physical disturbance of a right they enjoyed in connection with their property, there was no one whom the plant owners could sue at common law to recover for the loss which was a consequence of the connection of the sewer lines from the Village of Hoffman Estates with the completed interceptor sewer. For these reasons, we conclude that no right of the owners to or in their sewage treatment plant was damaged by the Sanitary District; and as a consequence, District was not liable to Citizens. Therefore, the trial court erred in granting Citizens’ motion for summary judgment and holding that with regard to the loss of the sewage treatment plant, Citizens suffered damages compensable under article II, section 13 of the Illinois Constitution of 1870 or under section 19 of “An Act to create sanitary districts * * Accordingly, we reverse the grant of summary judgment, and without reaching any of the issues concerning proof of damages, we reversed Citizens’ $385,000 judgment based on the jury’s verdict. We order judgment entered in this court in favor of the Sanitary District.* **

Reversed, with judgment here for the Sanitary District.

HAYES, P. J., concurs.

Mr. JUSTICE DOWNING,

specially concurring:

I concur with both the result and the reasoning set forth in the majority opinion. Based on the record before the court, I believe there are additional facts which support the decision of this court.

Since 1955 the sanitary sewerage system, which included the sewage treatment plant and collector lines, was owned and operated by Suburban Utilities Co. (hereinafter Suburban). In 1956 Citizens purchased, and since that date, owned the stock of Suburban.

On May 11, 1962, the Village filed in the Circuit Court of Cook County an eminent domain action to acquire the entire sewerage system, including the real estate involved in the instant litigation. This action named, among others, Citizens and Suburban as defendants. Prior to commencing the eminent domain litigation, the Village was authorized on April 25, 1962 by the Illinois Commerce Commission to institute the action against a certificated public utility. (See Ill. Rev. Stat. 1961, ch. 47, par. 1 et seq.) Citizens filed a traverse to, and a motion to dismiss said eminent domain petition challenging, for various reasons, the legal sufficiency of said petition. On December 4, 1962 the circuit court denied the motion to dismiss and traverse.

On December 18, 1962, Metropolitan served notice upon the Village and Suburban of the availability of its interceptor sewerage system. Thereafter, on December 27, 1962, the local collector sewer lines within the Village were connected to the Metropolitan interceptor and service at the treatment plant terminated. The record further discloses that on December 29,1962, the treatment plant site was the subject of a quit-claim deed from Suburban to F & S Construction Co. — the original subdivider and developer; the deed was recorded on June 11, 1964.

On October 18, 1963, an agreement was reached between the Village and Citizens, with respect to the said eminent domain action for the sale of the sewerage system excluding the subject treatment plant site; the consideration was $1,642,176.00. The purchase was to be consummated January 7, 1964.

On January 17, 1964, Citizens and the Village stipulated to an order dismissing the eminent domain action. The stipulation, among other things, said “* * * and all matters in controversy having been satisfactorily settled by and between the parties,”

In Illinois, it has long been held that in eminent domain actions, title to real estate relates back to the time of the filing of the petition to condemn and rights existing against the land at that date are transferred as a part of the award. (See Chicago v. McCausland (1942), 379 Ill. 602, 604-05, 41 N.E.2d 745; 17 I.L.P. Eminent Domain §163 (1956).) As stated in the aforesaid case, “It is also said that in law the land is regarded as being taken at the time the petition for eminent domain is filed. [Citations.]” See also Board of Junior College District 504 v. Carey (1969), 43 Ill.2d 82, 250 N.E.2d 644.

When Metropolitan served (on December 18, 1962) its notice on the Village and Suburban to connect to its interceptor, the record o£ the eminent domain action indicated the Village had an eminent domain action on file which had withstood a traverse and motion to dismiss. Therefore, the Village had a primary interest in the connection of the interceptor and the effect on the sewage treatment plant. It is recognized that the Village, as a condemnor, could have abandoned its eminent domain action subject to the sanctions of section 10 of the Eminent Domain Act. Ill. Rev. Stat. 1961, ch. 47, par. 10.

Of course, we do not know the reasons for the agreement between the Village and Citizens in the said eminent domain proceedings, and the exclusion of the treatment plant from the agreement. However, the simple fact is that the record clearly demonstrates that Citizens had a proper forum (in the eminent domain case) in which to resolve the question of damage, if any, to the treatment plant and its site as the result of the connection of the sewers to Metropolitan’s interceptor and the amount of “just compensation” as provided in our Illinois Constitution.

Whatever the tactical reasons may have been which caused Citizens at that time to abandon its right in the eminent domain case for “just compensation” for the taking by the Village of the treatment plant and site, I have been unable to find anything in this record which would legally justify transferring to Metropolitan the duty to pay Citizens such “just compensation.”

      In the balance of this opinion, Citizens Utilities Company, plaintiff below, appellee in this court, will be referred to as Citizens. Metropolitan Sanitary District óf Greater Chicago, defendant below, appellant in this court, will be referred to as the Sanitary District or District, as the context may require.

       The substance of article II, section 13 of the Illinois constitution of 1870 is now in a revised condensed paragraph which provides that “[plrivate property shall not be taken or damaged for public use without just compensation as provided by law. Such compensation shall be determined by a jury as provided by law.” Ill. Const. (1970), art. 1, § 15.

       "Every sanitary district shall be liable for all damages to real estate within or without such district which shall be * * * damaged by reason of the contraction, enlargement or use of any 888 improvement under the provisions of this act * * *.” Ill. Rev. Stat. 1961, ch. 42, par. 339.

       The 5th amendment to the United States Constitution is a limitation only on the powers of the Federal government. (Corrigan v. Buckley (1926), 271 U.S. 323, 330, 70 L.Ed. 969, 46 S.Ct. 521; 16 C.J.S. Constitutional Law § 69 (1956).) Moreover, the guarantee in our State constitution that “private property shall not be taken or damaged for public use without just compensation” is greater than that secured by the 5th amendment. (See Donaldson v. City of Bismarck (1942), 71 N.D. 592, 3 N.W.2d 808, 816.) Therefore, in resolving the dispositive issue in this appeal, we will discuss only on the State constitutional and statutory provisions involved.

       Supreme Court Rule 366 provides that “[i]n all appeals the reviewing court may, in its discretion, and on such terms as it deems just:

        ft e ft

      (5) give any judgment and make any order that ought to have been given or made * * Ill. Rev. Stat. 1973, ch. 110A, par. 366 (a)(5).

       Also, named as defendants were Citizens Utilities Co., a Delaware corporation (who was dismissed), and “Unknown Owners." The petition sought to acquire both the sewerage and water systems owned by Citizens and operated in the Village.

       At the same time, the Village also purchased and acquired Citizens’ water system located in the Village.

       Metropolitan did not press this point on appeal.


author: Mr. JUSTICE LEIGHTON

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Allison Hoffman, Defendant-Appellant.
    (No. 59871;
    First District (2nd Division)
    December 17, 1974.

      Paul Bradley and Allen L. Wiederer, both of State Appellate Defender’s Office, of Chicago, for appellant.
    Bernard Carey, State’s Attorney, of Chicago (Patrick T. Driscoll, Jr., and Raymond J. Prosser, Assistant State’s Attorneys, of counsel), for the People.
   Mr. JUSTICE LEIGHTON

delivered the opinion of the court:

This is an appeal from an order entered in a proceeding under the Post-Conviction Hearing Act. On State and Federal constitutional grounds, appellant Allison Hoffman, acting as his own counsel, filed a petition in which he sought to set aside an armed robbery conviction and a sentence of 15 to 30 years. Appellee State of Illinois moved to dismiss. The trial court sustained the motion and without an evidentiary hearing, denied post-conviction relief. In seeking reversal of the order, appellant has been represented in this corut by the Illinois State Appellate Defender who has filed a brief presenting two issues for our review. (1.) Whether the pro se post-conviction petition alleged facts which show that in the trial leading to his conviction and incarceration, appellant was denied due process of law and penalized for exercising his right to a trial by jury. (2.) Whether appellant was denied effective assistance of counsel in his post-conviction proceeding. In addition, appellant requested, and we allowed him leave to file a typewritten pro se brief in order that he may present four additional issues which he insists should be resolved by this court. These issues, which we will state as we resolve them, arise from the following facts.

On April 28, 1969, two indictments were returned against appellant and Arnold Vitek who, a short time before, was appellant’s employer. One indictment charged them with murder and the other with armed robbery. On July 1, 1969, Vitek, with counsel of his choice, appeared before Judge L. Sheldon Brown and pled guilty to the armed robbery indictment. After hearing evidence in aggravation and mitigation and considering a recommendation of the State that Vitek be sentenced to a term of not less than 4 nor more than 7 years, the court sentenced him to serve 3 to 6 years. The murder indictment was nolle pressed by the State. Thus, the charges against Vitek were disposed of.

Those against appellant, however, were not. In fact, it was on October 4,1969, a little more than 3 months after Vitek was sentenced, that appellant was arrested in Indianapolis, Indiana. He waived extradition and was brought to Cook County, Illinois, where, on October 14, 1969, he was arraigned on the two charges. At his request, counsel was appointed for him, and on July 27, 1970, before Judge Edward E. Plusdrak and a jury, he was tried on the indictment that charged armed robbery. The jury found him guilty, and after hearing and overruling post-trial motions, the court conducted a hearing in aggravation and mitigation. No one told Judge Plusdrak about Vitek or the sentence he had received. At the conclusion of the hearing, appellant was sentenced to serve not less than 15 nor more than 30 years. He was advised of his right to appeal, and, after exercising that right, the public defender of Cook County was appointed to represent him in this court.

While his appeal was pending, appellant filed a pro se petition under the provisions of the Post-Conviction Hearing Act. In his petition, appellant alleged that he was tried and found guilty of armed robbery by a jury; that before his trial, prosecutors indicated to him that if he would plead guilty to armed robbery and murder, they would recommend to the court a sentence of 14 years to 14 years and 1 day, but if he did not so plead, they would recommend 25 to 50 years on the armed robbery charge; that the prosecutors had initially indicated to appellant and his cotinsel that they would proceed against him first on the murder indictment so as to maneuver him into pleading guilty to both murder and armed robbery, but later, they decided to proceed with the lesser charge; that appellant elected to stand trial; that the armed robbery for which he was tried involved a concert of action between him and Arnold Vitek; that Vitek had pled guilty to the armed robbery charge and received a sentence of 3 to 6 years; that yitek did not aid in appellant’s prosecution; that Vitek and appellant participated equally in the commission of the armed robbery; that no violence was involved in the robbery; that Vitek was appellants employer prior to the offenses in question; that he and Vitek had similar criminal records; that at the hearing in aggravation and mitigation following appellant’s jury trial, his attorney, a court appointed counsel, did not bring to the sentencing judge’s attention the fact that Vitek had earlier pled guilty and had been sentenced for the same offense for which appellant was convicted; that appellant was sentenced to a term of 15 to 30 years for the same offense for which Vitek received 3 to 6 years; that, therefore, the harsher sentence imposed on appellant was a penalty for his having exercised his constitutional right to a jury trial; and that imposition of a harsher sentence on those who exercise the constitutional right to trial by jury, under the circumstances of this case, will discourage others from exercising that right.

While this petition was pending, we affirmed appellant’s conviction for armed robbery. (People v. Hoffman, 7 Ill.App.3d 146, 287 N.E.2d 219.) A short time after that affirmance, the State moved to dismiss the petition, asserting (1) its allegations failed to raise any constitutional questions; (2) the allegations that might raise constitutional questions were bare and insufficient to require a hearing; and (3) the doctrine of res judicata barred consideration of appellant’s claims. The motion to dismiss was heard. At the hearing, two assistant public defenders appeared with the request that they be relieved of the responsibility of representing appellant. They gave as their reason his refusal to cooperate with them. The request was denied, with the trial court instructing the lawyers to remain in the case as appellant’s advisors. Appellee’s motion to dismiss was then sustained, and the relief prayed for in the petition was denied. We now turn to the issues presented.

I.

A sentence imposed on a defendant as punishment because he exercised the right to a trial by jury is a constitutional deprivation. (Peo pie v. Dennis, 14 Ill.App.3d 493, 494, 302 N.E.2d 651.) And, as a principle of our criminal justice system, it is said that fundamental fairness and respect for our laws require that similarly situated defendants not receive grossly disparate sentences. (People v. Henne, 10 Ill.App.3d 179, 293 N.E.2d 172; People v. Haynes, 132 Ill.App.2d 130, 266 N.E.2d 172.) However, mere disparity between the sentences imposed on a defendant who stands trial and another who pleads guilty does not of itself require action by a reviewing court; it is the reason or the absence of any reason for the disparity that is controlling. People v. Martin, 47 Ill.2d 331, 339, 265 N.E.2d 685.

A petitioner for post-conviction relief who relies on a disparity between sentences to support his claim of constitutional deprivation must allege facts and point to a record which reflects that the sentence imposed on him was a punishment. In other words, the mere fact that a post-conviction petitioner received a greater sentence after a trial by juiy than did a codefendant who had pled guilty does not justify the conclusion that the greater sentence was imposed because of the election to stand trial. People v. Sanders, 129 Ill.App.2d 444, 263 N.E.2d 615; People v. King, 4 Ill.App.3d 942, 282 N.E.2d 252.

This is not an appeal from a final judgment in a criminal case. It is an appeal from an order entered in a collateral proceeding, a post-conviction petition. A petitioner who seeks relief from his conviction in such a proceeding must allege facts which, if proven, would show that his constitutional rights were violated; allegations under oath of mere conclusions to that effect will not suffice. (People v. Reeves, 412 Ill. 555, 107 N.E.2d 861; People v. Durham, 10 Ill.App.3d 911, 295 N.E.2d 298.) For example, a petition which alleged that the trial judge sent an appointed lawyer to offer tire petitioner a certain sentence in consideration for his guilty plea was insufficient to require a hearing in the absence of allegations which state how the information was imparted to the petitioner and which charge that negotiation for the plea was initiated by the trial judge, or that the sentence was recommended by him rather than by defense counsel or the State’s Attorney. (See People v. Pierce, 48 Ill.2d 48; 268 N.E.2d 373.) It has been uniformly held that a pro se post-conviction petition which alleges only legal conclusions is insufficient to require an evidentiary hearing. People v. Stoudt, 45 Ill.2d 118, 257 N.E.2d 110; People v. French, 46 Ill.2d 104, 262 N.E.2d 901; People v. Goerger, 52 Ill.2d 403, 288 N.E.2d 416.

In the case before us, appellant’s pro se petition does not allege any fact which would show that the sentence imposed on him was a punishment because he elected to go to trial before a jury. It is admitted that he did not, nor did anyone for him, tell the trial judge about Vitek .or the 3 to 6 years’ sentence he had received. In fact, the record of the armed robbery trial shows that the sentence of 15 to 30 years was imposed because of appellant’s crime and his long criminal record; seven convictions, one involving an attempt to kill a police officer. It also discloses that at the conclusion of the aggravation and mitigation hearing, appellant asked the trial judge to explain what he was trying to accomplish by the sentence he was going to impose. The judge replied:

“I will tell you what I hope to accomplish, to get you out of the way, out of circulation, so people who are innocent bystanders or customers in a store don’t have to be frightened with some guy pointing a gun in their stomach and saying, ‘Keep your mouth shut.’ That’s the problem. You’ve got a streak in you where you like to play with guns, and that becomes extremely dangerous when they are loaded.
The sentence will be 15 to 30 years in the Illinois State Penitentiary. As you say, the parole board may let you out. You apparently know the answers. But that will be left to their discretion.”

Therefore, the record of appellant’s conviction shows the reasons for the sentence he received. It is clear that his pro se post-conviction petition did not and, indeed, could not allege facts which show that in the trial that led to his conviction and incarceration, he was denied due process of law and penalized for exercising his right to a trial by jury.

II.

In People v. Hoffman, 7 Ill.App.3d 146, 287 N.E.2d 219, we affirmed the armed robbery conviction and sentence which appellant sought to set aside by these post-conviction proceedings. Therefore, the record of his trial is part of our own. Generally, we know our own records, and, in an appeal, we will take notice of them. (People v. Bernovich, 403 Ill. 480, 87 N.E.2d 609.) Accordingly, we have examined the record of appellant’s trial and observe a consistent tendency on his part to distrust lawyers. For example, when he was charged with attempting to kill a police officer in Ohio, he refused appointment of counsel and insisted on representing himself. In his armed robbery trial, he insisted on having a hand in his defense. In this appeal, he has asked us to allow a pro se brief, although capable lawyers have filed one for him.

In his post-conviction petition which, as far as we can tell, was prepared by him, appellant impugned almost all the lawyers of this community when he said, “I don’t have an attorney to represent me in this matter and I don’t want any, especially one from the Cook County public defender’s office or the Chicago Bar Association. If you appoint an attorney from either of these offices, I won’t talk to them or answer their letters. I realize that I’ve probably missed some issues that could have been presented in this petition and I waive them if I don’t. However, having an attorney from one of these organizations is tantamount to waiving them anyway, so it doesn’t make any difference.”

We are constrained to doubt that a'mong the more than 10,000 able and conscientious lawyers about whom appellant spoke, one could not be found to represent him. In any event, despite his assertions, the trial court appointed the public defender of Cook County as his post-conviction counsel, and on the day the motion to dismiss was heard, two lawyers were in court on his behalf. They reported to the trial judge that they had interviewed appellant in the penitentiary, but that he had refused to cooperate with them. For this reason, they asked for leave to withdraw. The trial judge denied the request and ordered the lawyers to remain in the case as appellant’s advisors. Then, the court sustained appellee’s motion and dismissed the petition. Thereafter, no amendment was offered nor did the public defender make any effort to obtain appellant’s cooperation so that an amended petition could be filed. It is now alleged for appellant that he was denied effective assistance of counsel in his post-conviction proceeding because it is not shown in the record that his court appointed lawyers read the transcript of his trial, amended his pro se petition, attached affidavits to it, offered any evidence in its support or filed the certificate required by Supreme Court Rule 651(c). See People v. Slaughter, 39 Ill.2d 278, 235 N.E.2d 566; Ill. Rev. Stat. 1971, ch. 110A, par. 651(c).

In our opinion, this argument totally lacks merit. It does not appear that appellant’s petition could have been amended. Where no amendment, no matter how skillfully drawn, can overcome the deficiencies of a post-conviction petition, the petitioner is not denied effective assistance of counsel because his pro se petition was not amended. (People v. Goodwin, 5 Ill.App.3d 1091, 284 N.E.2d 430.) Moreover, "[w]here a petitioner refuses, as here, to co-operate with counsel he cannot properly complain of possible inadequacy of representation which is attributable to his own deliberate conduct.” People v. Curtis, 48 Ill.2d 25, 30, 268, N.E.2d 29.

III.

The first of the four issues appellant presents in his pro se brief is whether, within the meaning of the equal protection clause of the 14th amendment, a defendant represented by appointed counsel in a court where plea bargaining is an accepted practice is entitled to the same sentence imposed on his co-defendant who was represented by counsel of his choice, pled guilty and was given a more favorable term of imprisonment as his punishment. We observe that the affirmative of the issue is urged by appellant with respectful candor, but with insistence that it is an important one. In our judgment, this issue has been resolved against appellant by reviewing Gourts of this and other jurisdictions.

In Williams v. Illinois (1970), 399 U.S. 235, 26 L.Ed.2d 586, 90 S.Ct. 2018, it was said that “[sentencing judges are vested with wide discretion in the exceedingly difficult task of determining the appropriate punishment in the countless variety of situations that appear. The Constitution permits qualitative differences in meting out punishment and there is no requirement that two persons convicted of the same offense receive identical sentences.” (399 U.S. 235, 243.) Therefore, “[t]he belief no longer prevails that every offense in a like legal category calls for an identical punishment without regard to the past life and habits of a particular offender.” Williams v. New York (1949), 337 U.S. 241, 247, 93 L.Ed. 1337, 1342, 69 S.Ct. 1097.

Going from constitutional considerations to the provisions of our criminal law, the 4th District Appellate Court of this State held in People v. Tice, 89 Ill.App.2d 313, 231 N.E.2d 607, that “equality of sentencing is not mandated by our Code of Procedure and clearly not required in the case of unequal offenses or unequal rehabilitation prospects of offenders.” (89 Ill.App.2d 313, 317-18.) Consistent with this holding, we said in People v. Robinson, 3 Ill.App.3d 267, 278 N.E.2d 137, that “[u]nder our law guilt is personal; sentence is individual. One purpose of our criminal code is to ‘[prescribe penalties which are proportionate to the seriousness of offenses and which permit recognition of differences in rehabilitation possibilities among individual offenders • * [Citation.] Our system of criminal justice does not contemplate that in every case there be similar punishment of persons similarly guilty of the same offense.” (3 Ill.App.3d 267, 272.) Therefore, we conclude that whether considered from the viewpoint of the Federal constitution or our code of criminal procedure, a defendant represented by appointed counsel in a court where plea bargaining is an accepted practice is not entitled to the same sentence imposed on his codefendant who, represented by counsel of his choice, pled guilty and was given a more favorable term of imprisonment as his punishment. Many variables play a part in determining the punishment to be imposed in a given case. Modern penology teaches that punishment should fit the offender, not merely the crime. If a sentence is to fit one of several offenders, a lesser punishment of one does not impeach a greater sentence imposed on another. People v. Cox, 119 Ill.App.2d 163, 167, 255 N.E.2d 208.

IV.

As the second issue presented in his pro se brief, appellant asks us to decide whether his sentence of 15 to 30 years for armed robbery, imposed after a jury trial, is excessive when compared with the sentence of 3 to 6 years imposed on his co-defendant who pled guilty. We do not think it is. The difference between two sentences imposed in the same case can be the difference in the criminal records of the defendants involved. (See People v. Newberry, 1 Ill.App.3d 251, 273 N.E.2d 205.) We have examined the record of Vitek’s conviction and we conclude that his criminal record, coupled with the fact that he pled guilty, justified the sentence he received. That sentence does not make excessive the one to which appellant was subjected. A sentence is excessive only when it cannot be justified by any reasonable view which may be taken of the record. (People v. Dalton, 12 Ill.App.3d 1097, 299 N.E.2d 352, (abstract opinion).) In our opinion, the record of appellant’s conviction reveals many factors concerning him and the crime which reasonably justify the sentence of 15 to 30 years for armed robbery imposed on him by the trial court.

V.

The third issue that appellant presents is whether his pro se petition alleged facts which show that, in violation of his constitutional rights, the armed robbery sentence of 15 to 30 years was imposed because he refused to plead guilty to another offense. We are not told what was the other offense. We assume it was the accompanying charge of murder. In any event, it is well established that a defendant should not be punished by a heavier sentence merely because he exercised his constitutional right to be tried by an impartial judge or jury. (People v. Morgan, 14 Ill. App. 3d 232, 302 N.E.2d 152.) A judgment of conviction in a record reflecting this fact will be reversed. People v. Moriarty, 25 Ill.2d 565, 185 N.E.2d 688.

However, the claim that a sentence was imposed as a punishment because the defendant invoked his right to a trial must be supported by evidence that clearly establishes this fact. (People v. Jackson, 9 Ill.App.3d 1020, 293 N.E.2d 665 (abstract opinion).) This does not appear in the case before us. Other than appellant’s bald conclusional statement to that effect, there is no allegation in the petition, nor is there anything in the record, which will support the suggestion that he was sentenced because he refused to plead guilty to another offense. Unsupported conclusional statements in a petition for post-conviction relief are insufficient to require an evidentiary hearing under the Post-Conviction Hearing Act. People v. Morris, 43 Ill.2d 124, 251 N.E.2d 202; see People v. Guzman, 17 Ill.App.3d 623, 308 N.E.2d 159 (abstract opinion).

VI.

The fourth and final issue presented in appellant’s pro se brief is whether sentences imposed in the criminal courts of Cook County are so capriciously and haphazardly determined that his sentence of 15 to 30 years is cruel and unusual punishment. No facts are alleged in appellant’s petition which would tell us how criminal court sentences in Cook County are capriciously and haphazardly determined. Nonetheless, we will say without deciding that imposition in state courts of capricious and haphazard sentences would raise constitutional questions under the provisions of the eighth amendment to the Constitution of the United States. This much, in our view, is suggested in Furman v. Georgia (1972), 408 U.S. 238, 33 L.Ed.2d 346, 92 S.Ct. 2726, and Robinson v. California (1962), 370 U.S. 660, 8 L.Ed.2d 758, 82 S.Ct. 1417.

However, there is nothing either in appellant’s petition or in the record to suggest that his sentence was capriciously and haphazardly determined. The terms of the sentence were within the limits of the statute. Therefore, allegations concerning its imposition raised no issue that was cognizable under the Post-Conviction Hearing Act. (People v. Ballinger, 53 Ill.2d 388, 292 N.E.2d 400.) We conclude that no showing is made by appellant that sentences imposed by criminal courts in Cook County are so capriciously and haphazardly determined that his armed robbery sentence of 15 to 30 years is cruel and unusual punishment.

For the reasons we have given in resolving the issues he and his appellate counsel have presented, we affirm the order dismissing appellant’s pro se post-conviction petition.

Affirmed.

HAYES, P. J., and DOWNING, J., concur.

       The Act provides that “[a]ny person imprisoned in the penitentiary who asserts that in the proceedings which resulted in his conviction there was a substantial denial of his rights under the Constitution of the United States or of the State of Illinois or both may institute a proceeding under this Article.” Ill. Rev. Stat. 1971, ch. 38, par. 122 — 1.
      Sections 122. — 2 and 122 — 7, inclusive, contain the provisions that detail contents, of the petition and the right of review of a final judgment entered upon a petition. See Ill. Rev. Stat. 1971, ch. 38, pars. 122 — 2 to 122 — 7.

       Vitek had been found guilty of petty larceny, larceny of an auto, robbery, assault to commit murder, conspiracy to commit larceny, robbery and armed robbery; appellant had been found guilty of auto theft, theft, petty larceny, assault to kill, vagrancy, petty theft and disorderly conduct.

       In this regard, we note that neither Vitek’s sentence nor a transcript of the hearing in aggravation and mitigation of his offense was part of the record on appeal of appellant’s conviction. Hence, the constitutional deprivation asserted here could not have been made there because direct review is limited to what appears in the trial record. (People v. Jackson, 28 Ill.2d 37, 190 N.E.2d 823; see People v. Forbis, 12 Ill.App.3d 536, 298 N.E.2d 771; People v. McCarroll, 10 Ill.App.3d 249, 294 N.E.2d 52.) Therefore, we reject the State’s contention that res judicata is applicable to this case. We are now of the view that in proceedings such as these, the invocation of res judicata warrants closer scrutiny. See People ex rel. Williams v. Brantley (7th Cir. 1974), 502 F.2d 1383.