text:
    The City of Lockport, Plaintiff-Appellee, v. County Board of School Trustees Will County et al., Defendants-Appellees — (Bruce D. Cheadle et al., Intervening Petitioners-Appellants.)
    (No. 70-199;
    Third District
    — November 30, 1971.

      Saxon & Niznik, of Plainfield, for appeHants.
    Herschbach, Tracy & Johnson, of Joliet, for appellees.
   Mr. PRESIDING JUSTICE ALLOY

dehvered the opinion of the court:

This cause involves two consolidated appeals from orders of the circuit court of WiH County. Both actions were in fact prosecuted by taxpayer-property owners of the City of Lockport, Illinois (hereinafter referred to as Petitioners). The object of the actions was to prevent defendant School Trustees and School District (hereinafter referred to as Defendants) from dealing with the property, sometimes referred to as the Lockport Public Square, by sale or otherwise in any manner to change its character to anything other than so-called “public square property”. The first case (Circuit Court No. W 69 G 2028E) was instituted in the name of the City of Lockport but was apparently financed by petitioners. We shall hereafter refer to this case as the “City of Lockport case”. The other case (Circuit Court No. W 70 G 1474E) was instituted by petitioners in their own names after the circuit court had dismissed the City of Lockport case by an order which was adverse to the complaint of petitioners.

The complaint in the City of Lockport case, which was filed September 9, 1969, sought a declaratory judgment that title to the real property consisting of a square block designated on the Lockport city plat as a “Public Square”, is vested in the City of Lockport. A school budding stands on the property. The school is now closed. The complaint sought a finding that defendants (the trustees and the school district) had no right to sell such property to thud parties and that an injunction precluding such sale should be issued by the court. Defendant, in response to the complaint, filed a motion to dismiss under Section 48 of the CivH Practice Act (Ill. Rev. Stat. 1969, ch. 110 par. 48). The motion was ultimately aHowed by the circuit court of WiH County on May 25, 1970. It is shown in the record that the Lockport City Council, on June 1, 1970, adopted a resolution to take no further action in the case instituted in the name of the City of Lockport. On June 23, 1970, within thirty (30) days of the order of dismissal, petitioners filed a petition for leave to substitute themselves as parties-plaintiff in place of the City of Lockport, and for leave to file a motion for a rehearing of the motion to dismiss on the basis of after-discovered evidence. Petitioners likewise requested consolidation of the City of Lockport case with the subsequent case filed by the petitioners. In the verified petition it is aUeged, among other things, that the City Council of the City of Lockport “* * 6 has directed that the proceedings in this cause be terminated, but that the above-named taxpayers (Petitioners) wish to prosecute their case in Cause No. W 70 G 1474E without being prejudiced by any order previously entered in Cause No. W 69 G 2028E”. On October 5, 1970, the circuit court of Will County entered its order denying the petition for substitution and for other relief. That cause is now on appeal from such order.

The complaint in the case filed separately in the names of the taxpayers also sought a declaratory judgment. In one count it sought to protect petitioners’ “private property interests” in the Lockport Public Square, and in another count, it sought, on behalf of the petitioners as taxpayers, to quiet title to the property in question in the City of Lock-port. This complaint was also dismissed pursuant to defendant’s motion on January 14, 1971, ostensibly on the basis that the court’s order of dismissal in the prior City of Lockport case was res adjudicata as to matters sought to be raised in the case filed in the names of Petitioners.

Counsel for the respective parties to these appeals have raised substantive questions as to the status of title to the Lockport Public Square. We note, however, that the order appealed from in the City of Lockport case denied petitioners the right to intervene in the lawsuit as parties-plaintiff, and it is, therefore, clear that the merits of the questions are not yet before this court (Strader v. Board of Education, etc., 413 Ill. 610, 110 N.E.2d 191; People v. Thompson, 101 Ill.App.2d 104, 242 N.E.2d 49). Accordingly, we express no opinion as to the merits of the question of title to the public square. We have concluded that the only issues presently before us are, whether the trial court’s order denying petitioners’ leave to substitute themselves as parties-plaintiff in the City of Lockport case was proper, and, if not, whether the trial court abused its discretion in refusing to grant petitioners’ motion for leave to file a request for rehearing in opposition to defendants’ motion to dismiss previously allowed. Our determination of these questions, as shown in the body of this opinion, renders unnecessary a ruling on the trial court’s action in the subsequent case filed by the petitioners individually.

The right of petitioners to substitute themselves, for the original plaintiff-City of Lockport, as parties-plaintiff in the City of Lockport case, and thus to intervene in the lawsuit, is governed by section 26.1 of the Civil Practice Act (Ill. Rev. Stat. 1969, ch. 110 par. 26.1). The pertinent part of the Section provides:

“(1) Upon timely application anyone shall be permitted as of right to intervene in an action: * * *
(b) when the representation of the applicant’s interest by existing parties is or may be inadequate and the applicant will or may be bound by a judgment, decree or order in the action; * * *
(6) An intervenor shall have all the rights of an original party, except that the court may in its order allowing intervention, whether discretionary or a matter of right, provide that the applicant shall be bound by orders, judgments or decrees theretofore entered or by evidence theretofore received, that the applicant shall not raise issues which might more properly have been raised at an earlier stage of the proceeding, that the applicant shall not raise new issues or add new parties, or that in other respects the applicant shall not interfere with the control of the litigation, as justice and the avoidance of undue delay may require.”

Defendants contend that the trial court acted properly in refusing the requested substitution and intervention on the ground that the motion therefor was not timely. (Childress v. State Farm Mutual Auto Ins. Co., 97 Ill.App.2d 112, 122, 239 N.E.2d 492, 497). Defendants also contend that since petitioners elected in the first instance to assert their rights through the City of Lockport, they are in no position to come in later and object to the City’s determination not to appeal the allowance of defendants’ motion to dismiss. We do not agree with such contentions.

It is apparent that at the time the complaint in the City of Lockport case was filed, the petitioners reasonably believed that the only manner in which the claimed rights of the public to the property in question could be protected, was through litigation nominally brought by the City. This procedure was appropriate, because in Droste v. Kerner, 34 Ill.2d 495, 217 N.E.2d 73, which was the precedent then to be followed in such cases at such time, a taxpayer or property owner, in absence of statute, had no individual standing in equity to enjoin an alleged misuse of property held in a public trust, unless he could show that he would suffer special damage different in kind and degree than that allegedly suffered by the public at large. On September 29, 1970, this principle was overruled in Paepcke v. Public Building Commission of Chicago, 46 Ill.2d 330, 283 N.E.2d 11. Petitioners, therefore, can hardly be penalized for originally seeking to protect the rights of the taxpayers and property owners in the only manner which was then apparently available as a result of Droste v. Kerner, supra. We likewise do not believe that the existence of the statute (Ill. Rev. Stat. 1969, ch. 24 par. 1 — 5—1) permitting taxpayers to bring suit against any person for recovery of money or property belonging to a municipality, presented petitioners with a viable procedural alternative at the time the original suit was filed in this cause. The statute referred to specifically directs that such actions are to be brought in the name of the municipality, and if, as here, the municipality is willing to prosecute the case at the outset, there was no reason for petitioners to seek recourse specifically under that statute.

During the period of time, therefore, that the City was nominally prosecuting the case, the rights of petitioners were amply protected, and only when the City determined to withdraw from further prosecution of the case, did petitioners properly deem it necessary to seek to substitute themselves as parties-plaintiff in place of the City. We note that after entry of the order of dismissal on May 25, 1970, the City decided not to litigate further on June 1, 1970. Petitioners filed their motion for substitution on June 23, 1970, only 22 days after the City had declined to proceed. Under such circumstances, we do not believe that petitioners could validly be charged with laches or undue delay in asserting their individual rights as taxpayers or property owners in seeking substitution and intervention in the cause, for the reason that until that time their rights as well as those of the general public were adequately represented (see People v. Thompson, 101 Ill.App.2d 104, 242 N.E.2d 49, 51.) We, therefore, conclude that the trial court was wrong in holding that petitioners’ motion for substitution was untimely. We feel, also, that, under the clear mandate of Section 26.1(6) of the Civil Practice Act quoted above, petitioners were entitled to intervene in the lawsuit as a matter of right at such time.

We note that in subparagraph (6) of the same section of the Civil Practice Act, even in cases where intervention must be allowed as a matter of right, the court may provide certain limitations upon the intervening parties in its order allowing intervention as justice and the avoidance of undue delay may require. In People v. Thompson, supra, the Appellate Court relied upon this section in upholding the lower court’s order precluding intervention in a quo warranto proceeding by individual taxpayers seeking to question the legality of the creation of a school district. The court in that case concluded that even if the trial court had aHowed intervention, justice would have required a decision on the merits as against the taxpayers, largely for the reason that too long a period of time had elapsed between the creation of the school district and the inception of the quo warranto proceeding seeking to challenge the legality of its existence. The new district had become operative, had hired personnel, had levied taxes, and the formerly existing partially adjoining school districts had been dissolved. The Appellate Court there felt that it would have been futile to allow the taxpayers the right to intervene in an action which necessarily would ultimately have been decided adversely to their position. We cannot say that such would clearly be the case in the action before us. Evidence in the record here discloses that the property in question has been used contemporaneously as a public square and for school purposes for decades at the time this suit was begun, and only when it was indicated that defendants were contemplating the sale of the property to third parties, and thereby asserting their right to do so, did the problem as to the title actually become apparent to the petitioners. There seemed to be no practical need for the institution of a lawsuit seeking a judicial determination of the title to the real estate until the ownership question as between the city and defendants was raised by the proposed actions of defendants. It was only at that time that the character of the property (as viewed by petitioners) was sought to be changed by defendants from a use by the school district to a contemplated sale to private third parties.

Defendants’ opposition to the right of petitioners to be substituted as parties-plaintiff in the City of Lockport action, was also to the effect that, in any event, petitioners are estopped from asserting the claimed rights of the City of Lockport in the property in question because of long acquiescence and delay in questioning the rights of the defendants to the property in question. Defendants rely principally upon Hickey v. Illinois Central Railroad Co., 35 Ill.2d 427, 220 N.E.2d 415, where the doctrine of estoppel was reluctantly applied by the Supreme Court of this State against the State and City of Chicago, and thus prevented them from contesting the right of the Illinois Central Railroad in and to the fee in substantial portions of Chicago lakefront property. It was shown, however, in that case, that over a period of more than 50 years all government entities involved had consistently and by overt action disclaimed any interest in the property in question, and continuously acted as if the fee were held by the railroad. In the instant case, if petitioners’ documentary evidence is to be believed, the City of Lock-port, with some insignificant exceptions, treated the property as permissively used by the school districts for school purposes. The record also shows that the property was contemporaneously used over the years for those purposes befitting a public square and that such use was not inconsistent with the claim of the City to ownership of the property, subject to the rights of the school districts for use for school purposes. As the Supreme Court has stated with reference to the estopped doctrine in Melin v. Community Consolidated School District, 312 Ill. 376, 385:

“But in order to apply this doctrine there must clearly appear to be an abandonment by the municipality or public and an adverse holding by the school district. In this case there has been a continued occupancy and use of the land by the school district for more than sixty years, but there is no showing that this use was adverse to the claims of the public. As a matter of fact, the land enclosed for school purposes has for many years also had upon it a band-stand and a speaker’s stand, and apparently the portion of the public square used for school purposes has at the same time been used for the general purposes to which a public square might be put * *

It is noted that the extraordinary acquiescence by a governmental body in disclaiming any interest in property as to which it may have some rights is not present in the instant case as it was in the Hickey case, and, therefore, the precedent is not applicable to the facts in the instant case. We also note that petitioners are not seeking to prevent defendants from continued use of the property under consideration for school purposes, but only desire to prevent a sale to private third parties for use inconsistent with what is referred to as a public trust. Since this is the situation, the cases which apply estoppel as against parties seeking to enjoin long existing uses of certain properties are similarly not controlling here e.g., Hoskins v. Chicago Park District, 380 Ill. 78, 43 N.E.2d 546; Carstens v. City of Wood River, 344 Ill. 319, 176 N.E. 266; Chicago R.I. and Pacific Railroad Co. v. City of Joliet, 79 Ill. 25.

If, in fact, title to this property is vested in the City of Lockport, it may truly be “public trust” property, and the interest of the public requires, under the Supreme Court decision in the Paepcke case, supra, that these petitioners have their day in court with respect to its disposition. As stated in the Paepcke case (at page 341):

“If the public trust’ doctrine is to have any meaning or vitality at all, the members of the public, at least taxpayers who are the beneficiaries of that trust, must have the right and standing to enforce it. To tell them that they must wait upon governmental action is often an effectual denial of the right for all time.”

We conclude that the trial court erred in refusing substitution and intervention by petitioners in the City of Lockport case.

Since we have determined that the court erred in refusing substitution and intervention, the question further raised is whether the court abused its discretion in refusing to allow that portion of petitioners’ motion requesting leave to file a motion for rehearing in opposition to defendants’ motion to dismiss the amended complaint. From the briefs on file in this cause and the record submitted, it is apparent that the question of legal title to the property involved is quite complex, and has necessarily involved and will further involve a substantial expenditure of time and effort in bringing all available relevant materials before the court. The land was originally acquired in fee by the State of Illinois through an 1827 Act of Congress whereby certain canal lands were granted to the State by the Federal Government (Werling v. Ingersoll 1901, 181 U.S. 131, 45 L.Ed. 782). Documentary History of the Illinois and Michigan Canal issued by the Department of Public Works (1956, page 22) and devolution of title to the property from that time on is a matter of serious dispute, upon which reasonable men may clearly differ. The compilation of documentary evidence as to the chain of title is at best a time-consuming task. At the time the circuit court entered its order dismissing the amended complaint in the City of Lockport case, much relevant material and facts were not before it. Acquisition of this information, it is represented to this Court, involved the search of Lockport newspapers from approximately 1890 to the present; search of records of the Illinois-Michigan Canal reposing in the Archives of the State of Illinois at Springfield; as well as the relevant corporate minutes of the City of Lockport from 1857 until 1960. Initial arguments on defendants’ motion to dismiss were heard by the trial court on March 23, 1970, when defendants were given an additional 21 days to file affidavits and documents in support of their motion. These items were filed on April 3, 1970, and petitioners thereupon began their search, as indicated above, for materials or evidence controverting defendants’ documents. Prior to the time these materials were presented to the court by petitioners, and while the motion to dismiss was then under advisement, the May 25, 1970 order of dismissal was entered.

We agree that the evidentiary material proposed to be submitted to the court in connection with the request for rehearing on the motion to dismiss were necessarily in existence prior to the time the order for dismissal was entered and, thus, do not constitute new evidence not in existence prior to the entry of such order. We do not, however, believe that petitioners did not exercise due diligence in obtaining such evidence. It was obtained and petitioners sought to present it to the court by June 23, 1970, less than 30 days subsequent to the order of dismissal. The manifest public importance of the substantive questions involved in the case makes it, in our judgment, indispensable for all parties concerned herein that a determination on the merits of the case be entered only after all available evidence has been presented to and considered by the court. The taxpayers seek to protect what they contend is a public trust, and, if they have been diligent in pursuing their object (as we believe the record indicates in this case) they should not be presented from having the court decide a question of such substantial public importance without having ample opportunity to present their case. Therefore, under the unusual circumstances of this case, we believe that the ends of justice require that we rule that the trial court improperly denied the request of petitioners for a hearing on the motion to dismiss.

We, therefore, conclude that the order of dismissal entered in the City of Lockport case (W 69 G 2028E) should be and is hereby reversed and that cause is remanded with directions to the court to enter an order allowing petitioners the right to intervene in the cause, and the court is further directed to grant petitioners leave to file their motion for rehearing in opposition to defendants’ motion to dismiss and for further proceedings consistent with this opinion. The companion case filed by petitioners as individuals (W 70 G 1474E) becomes surplusage, in view of our determination, and the appeal in such case is dismissed as being moot.

Cause designated in the Circuit Court of Will County as W 69 G 2028E is reversed and remanded with directions.

Appeal in cause W 70 G 1474E is dismissed.

STOUDER and SCOTT, JJ., concur.


source: Caselaw Access Project

author: Mr. JUSTICE SCOTT

license: Public Domain

text:
    Hobson’s Truck Sales, Inc., Plaintiff-Appellant, v. Carroll Trucking, Inc., Defendant-Appellee.
    (No. 70-204;
    Third District
    — November 30, 1971.

      David Radley, of Peoria, for appellant.
    Bruce R. Becker, of Peoria, for appellee.
   Mr. JUSTICE SCOTT

delivered the opinion of the court:

Hobson’s Truck Sales, Inc., hereinafter referred to as plaintiff, brought an action for damages against Carroll Trucking, Inc., hereinafter referred to as defendant, for the alleged conversion of a truck tractor, the ownership of which was claimed by the plaintiff. After a trial without a jury by the circuit court of Peoria County judgment was entered for the defendant. It is from this judgment that the plaintiff now appeals.

On or about July 15, 1968, the plaintiff, a corporation engaged in truck sales, contracted to seU a truck tractor to a Harold A. Wildhaber on a retail installment sales contract. Subsequently Wildhaber defaulted in his payments and in late October or early November of 1968 the plaintiff’s president, Mr. Hobson, traveled to Pontiac, Illinois, where he met Wildhaber and of him either demanded the return of the truck tractor or the payment of the balance of the down payment as called for by the contract of sale. There was some dispute concerning an alleged faulty transmission in the vehicle and the confrontation between the parties was terminated when Wildhaber threw either an orange or apple at Mr. Hobson, who left and contacted a sheriff. It is apparent from the record that the sheriff did not take any steps to repossess the truck tractor.

Wffdhaber continued to use the vehicle in dispute and some further payments were made to the plaintiff either by him or by the defendant on his behalf. The plaintiff in turn made some payments to a bank who had purchased the contract of sale.

On or about December 16, 1968, the defendant corporation arranged for two of its employees to use the truck tractor for the purpose of delivering a shipment of hogs to the State of New Jersey. On the return trip an accident occurred in Pennsylvania and the vehicle was demoHshed. The record is not clear whether the contract to deliver the hogs was one entered into by Wildhaber, who because of illness had to call upon the defendant for assistance in fulfiUing the same, or whether it was a joint enterprise entered into between Wffdhaber and the defendant. In any event there was some type of agreement between Wildhaber and the defendant corporation in regard to a division of fees and expenses. The truck tractor at this time had the defendant’s name, “Carroll Trucking, Inc.”, imprinted on its sides.

After plaintiff learned that the vehicle was demolished he demanded payment in full of the unpaid purchase price from the defendant, which demand was refused. As we previously stated, a trial based upon alleged conversion by the defendant ensued resulting in judgment for the defendant and this appeal stems from that ruling.

Several issues have been presented for review but we direct our attention first to whether or not the plaintiff by the evidence adduced during trial sustained the burden of proving the requisite elements of the tortious conduct of conversion.

To constitute conversion of a chattel there must be an unauthorized assumption of the right to possession or ownership. The essence of conversion is not the acquisition of the property by the wrongdoer, but a wrongful deprivation of the owner thereof; and one claiming a conversion must show a tortious conversion of the chattel, a right of property in it, and a right to immediate possession, absolute and unconditional and not dependent upon some act to be performed. Illinois Law and Practice, Vol. 35, Trover and Conversion, Sec. 3, p. 144; Genslinger v. New Illinois Athletic Club of Chicago, 229 Ill.App. 428; Nettleton v. Kerr, 167 Ill.App. 74.

We are now confronted with a question as to whether there was an unauthorized assumption of the right to possession by the defendant as far as the truck tractor was concerned. The record fails to disclose that the defendant wrongfully assumed and continued to deprive the plaintiff of the possession of the property. It is true that the defendant trucking company and Wildhaber, the contract purchaser, were closely associated. At times the defendant would make payments to the plaintiff on behalf of Wildhaber, so we must recognize the fact that the corporate officers of the defendant realized that Wildhaber did not have a clear title to the truck tractor. It is true that the defendant’s business name was imprinted upon the sides of the truck tractor but there is no evidence to the effect that the defendant had any knowledge that Wildhaber was embroiled in a controversy with the plaintiff regarding possession of the vehicle. While the record is conflicting we will assume for purpose of arguendo that a clear and firm demand was made by the plaintiff upon the purchaser, Wildhaber, for the return of the truck tractor. Wildhaber refused to comply with that request and instead permitted the vehicle to be used by the defendant. No demand for possession was ever made by the plaintiff upon the defendant until after the property was demolished in an accident.

The plaintiff contends that such demand is unnecessary and that the mere use and retention of the truck tractor by the defendant trucking company is sufficient to constitute conversion. It is true that where some other independent act of conversion can be shown there is no necessity for a demand by the person claiming ownership or right to possession and a refusal by the original taker thereof to deliver it, in order to show a conversion of the property. (See Union Stock-Yard & Transit Co. v. Mallory, Son & Zimmerman Co., 157 Ill.554, 41 N.E. 888, 43 N.E. 979; Camp v. Unger, 54 Ill.App. 653). However, the plaintiff in the case before us fails to designate some independent act which would constitute conversion and thereby render a demand unnecessary or useless. Such failure is to be expected since the record does not disclose any evidence to the effect that the defendant wrongfully acquired possession of the property or was retaining possession and exercising dominion over it in a wrongful, illegal or unlawful manner.

The great weight of authority is to the effect that demand and refusal are necessary for the maintenance of an action of conversion in all cases in which the defendant was rightfully in possession. (See 38 Cyc. 2032, 2 Cooley on Torts, 3rd Ed. 870, 61 A.L.R. 615; 129 A.L.R. 633.) A mere detention of another’s chattels which rightfully came into one’s possession is not an actionable conversion. (Helen v. Colwell, 45 R.I. 465, 123 Atl. 879.) We agree with plaintiff that Wildhaber, the vendee under a conditional sales contract, committed a number of acts which would constitute “acts of default” as far as a purchase contract was concerned. Wildhaber defaulted in his payments, he delivered possession of the vehicle to the defendant, presumably without plaintiff’s knowledge or consent, and he permitted it to be removed to the State of New Jersey, but the question presented is whether these acts of default and wrongful dominion over the property shall be imputed to a third party, namely, the defendant. We believe not, for the record is devoid of any evidence that would show or even indicate that defendant knew that Wildhaber’s acts constituted defaults of the various provisions of the retail sales contract. See Amberg v. Philbrick, 33 Ill.App. 200.

The plaintiff cites and relies upon the law set forth in the case of Associates Discount Corp. v. Walker, 39 Ill.App.2d 148, 188 N.E.2d 54. We quarrel not with the law as set forth in this case and the law found in many other cases dealing with innocent purchasers of value where the seller did not possess legal title to the chattel involved. No citations are necessary to support the well known general rule of law that one can not purchase and acquire a good title to stolen property. In the Associates Discount case the defendant was an innocent purchaser for value of an automobile from a seller who had forged the title to the vehicle. It was held that an action of trover would He against the defendant even though he was an innocent purchaser for value. Such is not the situation in the case before us for we are not concerned with a sale. The defendant at no time attempted to acquire ownership of the truck tractor by purchase. It is true that he and Wildhaber entered into some arrangements for its use, however, the record is barren of any evidence that the defendant did or performed any act that would indicate he was attempting to convert the property to his own use and to the detriment of the rights of the plaintiff. Unfortunately for the plaintiff in this case, he had some difficulties with the purchaser Wildhaber and after one confrontation where demand for the return of the truck tractor was possibly made, the plaintiff did nothing further until after the vehicle was demolished. He then brings suit against the defendant for an alleged conversion and for damages in the sum of $11,000.00. We fail to find in the record sufficient evidence to sustain the tortious conduct of conversion against this defendant. Having so concluded it is unnecessary for us to consider other issues presented for review and accordingly the judgment of the circuit court of Peoria County is affirmed.

Judgment affirmed.

ALLOY, P. J., and STOUDER, J., concur.


author: Mr. JUSTICE STOUDER

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Jerry Warren, Defendant-Appellant.
    (No. 70-213;
    Third District
    — November 30, 1971.
    Isadore I. Katz, of Rock Island, for appellant.
    James N. DeWulf, State’s Attorney, of Rock Island, for the People.
   Mr. JUSTICE STOUDER

delivered the opinion of the court:

The Defendant, Jerry Warren was charged in a two-count indictment with the crime of theft by deception in an amount exceeding $150. Count One alleges that the victim was Spero Polios and Count Two alleges the victim to be Theodore Grevas. The defendant was subsequently convicted on both counts by a jury and sentenced to probation with orders to make restitution in the amount of $4,000 to each of the complainants.

Subsequent to the formation of the Warren Oil Company, Spero Polios, a businessman and Theodore Grevas, a medical doctor, were procured by the defendant’s brother-in-law for the purpose of investing and speculating in oil. The two investors entered into an agreement with the defendant’s oil company on December 15, 1967. There were actually two separate identical written agreements by which each purchased a three-eights’ working interest in a certain well called Wilcoxen #1, located in Pike County, Indiana. At that time the well had not been drilled. The defendant signed the contract on behalf of the Warren Oil Company. According to the agreement, during the first stage, each investor was to pay $7,000. The reciprocal obligation of the Warren Oil Company was to drill to a certain depth or else to refund the $7,000.

A rotary rig was then brought on to the Wilcoxen lease, set in place and the actual drilling was begun on ■ December 20, 1967. Paragraph Two of the agreement stated that, “If first party should decide to set casing, second party is to pay $7,500 to be applied on the equipment and completion from casing point on, of said well, within (5) days from notification from first party that they have set casing on said well. » # On January 2, 1968, the defendant and the two investors met in Rock Island, Illinois. Prior to this meeting the well had been drilled to the required depth and each investor had made his initial payments. The defendant advised them of his decision to go ahead with the completion stage of the Wilcoxen well. Pursuant to that decision the investors each paid to the defendant an additional $7,500 and casing was put down by defendant which was in accord with Paragraph Two of the contract. While there was some conflict during the testimony offered at trial, it is apparent that Thomas Metcalf, a petroleum engineer, employed by the Warren Oil Company to examine the Wilcoxen well and study the samples, was pessimistic about the ability of the Wilcoxen well to produce, even though he found free oil at 1,742 feet. He made his opinion known to the defendant.

On January 24, 1968, Polios and Grevas met again with Warren and entered into an agreement for offset wells, the Thorn and the Vinson. Each of the investors claimed that they were induced to enter into this new agreement on the basis of the defendant’s alleged representations that the Wilcoxen well would be a productive well. At this time each investor knew that there had been no oil production from the Wilcoxen well. The form of the new contract was identical to the Wilcoxen contract. Each investor was to invest $4,000 for drilling and $4,000 for completion of the two offset wells. In return, they were to receive a one-eighth interest each in both wells. Metcalf testified that while he was pessimistic of the productivity of the Wilcoxen well, he felt that the Thorn and Vinson wells were worth developing. Each of the two investors eventually acquired a one-quarter interest in the Thorn and Vinson wells.

The Wilcoxen, Thorn and Vinson wells were completed in accord with the respective contracts. The Thorn and Vinson wells evidently have been productive wells and payments, though somewhat irregular, have been made to Polios and Grevas, the last payment having been made approximately four months prior to trial. Polios and Grevas, at the time of trial, still owned their respective interests in the wells and equipment. The investors indicated that they both have previously been involved in oil well ventures and were aware that investing in oil is highly speculative.

In seeking to reverse his conviction the defendant among other assignments of error, contends that as a matter of law no criminal offense was established by the evidence. The State indicted the defendant under the following statute, “A person commits theft when he knowingly: # # * (b) Obtains by deception control over property of the owner: * * * and (1) Intends to deprive the owner permanently of the use or benefit of the property: * * Ill. Rev. Stat. 1967, ch. 38, par. 16 — 1(b) (1).

We agree with the State’s contention that the intent requirement in this case as in any theft case may be proved by the surrounding facts and circumstances. We further agree with the State that the factual issues are for the jury to determine and the jury finding will not be disturbed unless the proof does not meet the requirements of the law. People v. Thicksten, 14 Ill.2d 132, 150 N.E.2d 813.

Let us first examine the contract itself. Paragraph Two of the contract provides that in the event the Warren Oil Company decided to set the casing the complainants Polios and Grevas were to pay $7,500 on equipment. (second stage of the agreement) Paragraph Seven of the contract provided if the well produced oil or gas the second party would receive an assignment. The language in itself guarantees the complainants nothing in the way of oil production.

The evidence shows that the complainants paid money to the defendant’s oil company in accordance with the agreement The defendant performed according to his promises in tire agreement. Pursuant to his promises the evidence shows that the defendant purchased the necessary equipment and performed drilling in accordance with the contract. The estimated costs of drilling and casing the well exceeded the amounts paid by the complaining witnesses and it is undisputed that defendant had paid or had agreed to pay all of such costs.

Although the defendant was charged with knowing deception it is difficult to ascertain from the brief of the State just what conduct is relied upon to support such charge. From the testimony presented it appears that the State is contending either that the defendant by some deceptive and fraudulent scheme obtained the second stage payments on the Wilcoxen lease or induced the complainants to enter into the offset contracts. Notwithstanding the fact that Paragraph Two of the Wilcoxen contract vested the discretion as to whether the well would be cased and the additional payments therefore made by the complainants to the defendant and notwithstanding the fact that the contract was complied with by the defendant, the State contends that the defendant intended to deceive the complaining witnesses. How the complaining witnesses could have been deceived by the defendant’s exercise of his judgment as required by the contract escapes our understanding. (People v. Greer, 321 Ill. 69, 151 N.E. 604 and People v. Bischoff, 319 Ill. 262, 149 N.E. 756.) Whether the opinion of the expert Metcalf supported the defendant’s decision is immaterial and the only conclusion to be drawn from the evidence is that the defendant acted for the benefit of all parties to the contract in accord with its terms.

To support its contention that the requisite criminal intent was proven in spite of the contractual arrangements between the parties the State cites, Jackson v. People, 126 Ill. 139, 18 N.E.2d 286 and Moore v. People, 190 Ill. 331, 60 N.E. 535. Neither of such cases is applicable to the facts in the case at bar. In Jackson, the defendant fraudulently misrepresented the condition of a horse and sought to avoid the consequences of such fraudulent conduct by relying on an exculpatory written warranty given after the sale had been concluded. The defendant in the Moore case executed a mortgage representing that he owned cattle secured by the mortgage which he in fact did not own. No such conduct as is shown in either of the foregoing cases is presented by this record.

Nor do we believe that defendant knowingly deceived the complaining witnesses in inducing them to contract with respect to the offset wells. So far as the production of oil from the Wilcoxen well is concerned, the complaining witnesses knew that no oil had been produced from such well and indeed there is nothing from which it may be inferred that defendant knew any more about the Wilcoxen well than the complainants. Viewing the evidence in its aspect most favorable to the State, the only inferences which may be drawn from such evidence is that the defendant and for that matter the complaining witnesses, were optimistic about the prospects of production from the Wilcoxen well. The fact that such optimism was both premature and contrary to later developments does not thereby render such conduct unlawful. Lory v. People, 229 Ill. 268. 82 N.E. 261.

Much evidence was presented and either admitted or excluded which was irrelevant to the issues and its only tendency could have been to confuse the jury. In view of our conclusion concerning the insufficiency of the evidence to support the offense alleged it is unnecessary to consider the other errors urged.

For the foregoing reasons the judgment of the circuit court of Rock Island County is reversed.

Judgment reversed.

ALLOY, P. J., and DIXON, J., concur.


text:
    Ida Frances Walsh et al., Plaintiffs-Appellees, v. Gilbert Oberlin et al., Defendants-Appellants.
    (No. 71-57;
    Third District
    — December 2, 1971.

      Rehearing denied January 7,1972.

      Thomas J. Logue, of Mattoon, for appellants.
    Richard J. Doyle, of Hoopeston, for appellees.
   Mr. JUSTICE STOUDER

delivered the opinion of the court:

Pursuant to jury verdicts the circuit court of Iroquois County entered judgments based on fraud and deceit in favor of Ida Walsh, PlaintiffAppellee, in the amount of $3,300 against Gilbert Oberlin and Reinhardt Lucht, Defendants-Appellants and in favor of August Reder, PlaintiffAppellee, for $4,000 against Reinhardt Lucht, Defendant-Appellant. Post-trial motions were denied and this appeal followed.

In separate and unrelated transactions the defendants, Oberlin and Lucht, solicited and induced plaintiffs to subscribe to and pay for shares of stock in Ranger Motels Inc., an Arizona Corporation. Each plaintiff paid $5,000 for such shares and the money so paid was turned over to Ranger by defendants. The defendants received no commission for sale of the shares, it appearing that they were interested in the corporation as promotors and investors.

Apparently the Ranger Motel Corporation was unsuccessful although the only specific evidence regarding its affairs is a copy of an order of the Secretary of State of Arizona dissolving the Corporation in 1967.

This action was commenced in March, 1968, against these defendants together with some nine other co-defendants seeking rescission of the stock sale on the grounds that the defendants (all of them) had failed to register the securities in Illinois as rejuired by the Illinois Securities Act. After amendment, the complaint as so amended was dismissed pursuant to defendants’ motion for the reason that the complaint failed to allege that the plaintiffs had complied with all of the statutory conditions precedent to enforcement of the statutory liability. At the same time the court granted plaintiffs leave to file a second amended complaint which they did and it is such second amended complaint which is the subject of this appeal. Such second amended complaint was based on common law fraud and deceit and seeks damages based on the alleged fraudulent representations of the defendants on this appeal, Oberlin and Lucht. Since the other defendants named in the original complaint as amended were not named as defendants in the second amended complaint their motion to have the action dismissed as to them was granted, the court including the finding that the dismissal was in bar of any further action against the named defendants and that no just reason existed for delaying appeal. No appeal was taken by the plaintiffs from this judgment.

Defendants, Oberlin and Lucht, moved for summary judgment alleging first that the claim as set forth in the second amended complaint was barred by the five year statute of limitations and second that the original action of plaintiffs seeking rescission and the judgment against them on such complaint represented an election which barred plaintiffs from thereafter seeking monetary damages arising out of the same transaction. These motions for summary judgment were denied. Only the courts ruling on the second motion regarding election of remedies has been assigned as error on this appeal. The case proceeded to trial before a jury resulting in verdicts as aforesaid in favor of each plaintiff and the defendants have assigned as error on this appeal alleged errors in the giving and refusing of instructions, the failure of the plaintiffs to make out a prima facie case and the insufficiency of the evidence to support the verdicts of the jury.

Considering first the defendants’ argument that the plaintiffs are barred from seeking damages for fraud and deceit after adverse rulings on their counts for rescission, it is our conclusion that the trial court committed no error in this regard.

The general rule is that the defrauded person may elect to accept the situation created by the fraud and seek to recover his damages, or he may elect to repudiate the transaction and seek to be placed in status quo. (19 I.L.P., Fraud, ch. 2, par. 31.) The rule is based on the recognition that the remedies are inconsistent and that the plaintiff by his conduct or election makes only one of such remedies appropriate under the circumstances. There are no Illinois authorities dealing directly with the election as a matter of pleading particularly in view of the broad authority to join actions or amend pleadings authorized by Ill. Rev. Stat, ch. 110, par. 46. A review of the several cases cited in support of the general rule reveals that none of them actually involve an election or the effect thereof between the remedies of rescission and an action for damages based on fraud and deceit. In In Re Thomas Estate, 333 Ill.App. 238, 77 N.E.2d 426, the claimant was seeking damages in a claim against the estate of the alleged defrauder and whether claimant had or had not rescinded the transaction was not material to the decision. The court decided that the Probate Court had no jurisdiction to consider a tort claim based on fraud and deceit.

In Chicago Trust & Savings Bank v. Anderson, 93 Ill.App. 347, affirmed in Supreme Court by adopting opinion of Appellate Court, 195 Ill. 341, the Court concluded in so far as relevant to this issue, that the alleged defrauded person had ratified the misconduct with full knowledge thereof and was barred from seeking rescission. By the same token the plaintiff would have been barred from seeking damages for fraud and deceit since it was not the election of remedies which was involved but rather the election to waive the fraud altogether and seek to secure the benefits of the contract.

Again in Slade v. Slade, 310 Ill.App. 77, 33 N.E.2d 951, the only question was whether plaintiff was required to rescind the transaction before seeking damages resulting from the defendant’s misconduct. The court concluded that the plaintiff was not limited to the single cause of action and accordingly plaintiff’s election of one remedy over another was not an issue in the case.

From the foregoing cases we conclude that the election of remedies depends upon the affirmative conduct of the defrauded person, such options being related directly to the fraud charged. Joining inconsistent or alternative remedies does not constitute an election as contemplated by the rule. As indicated by the foregoing facts the original complaint seeking relief based on rescission was not based on fraud or deceit but rather a statutory cause of action. The effect of the decision was that the plaintiffs had not and were not legally entitled to rescind the agreement and hence it can not be said that a rescission did occur. Whatever may have been the intent of the original cause of action it did not involve an election to seek any remedy based on fraud and deceit,the gist of the second amended complaint.

This brings us to defendants’ principal assignment of error namely that the evidence is insufficient to support the jury’s verdict that defendants were guilty of fraud and deceit. Defendants moved for directed verdict at the close of plaintiffs’ case, at the close of all of the evidence and moved for judgment notwithstanding the verdict in their post trial motion. All of the motions were denied.

The elements which make up a cause of action for fraud and deceit have been often stated and need not be repeated here. (Broberg v. Mann, 66 Ill.App.2d 134, 213 N.E.2d 89 and Bennett v. Hodge, 374 Ill. 326, 29 N.E.2d 524.) There is no dispute concerning these necessary elements and the only issue is whether there is sufficient evidence of each of the elements. It is conceded that the defendants solicited the subscription to and sale of shares in the motel company and that the plaintiffs were induced to purchase the shares by the defendants. However defendants insist there is an entire failure of evidence from which it may be reasonably inferred that they made any material representations of fact which were false. Since falsehood is the gist of the action it follows according to the defendants, that plaintiffs have failed to prove any cause of action for fraud and deceit.

The misrepresentations charged in the complaint alleged to have been made by defendants are, “That the company was doing a large and very profitable business which was rapidly increasing; That the Defendant, Reinhardt Lucht, stated he personally invested $10,000.00 in the stock and the Defendant, Gilbert Oberlin stated he personally invested $25,-000.00 in the stock; that 20 motels had already been franchised by Ranger Motels, Inc. and that many more additional motels were about to be franchised; that the shares would certainly increase in value and that the President of the Corporation was taking no salary.” While there is some dispute concerning whether the above described representations were made and whether they constitute material representations of fact it is our conclusion that the only evidence relating to falsity which is disputed, is that dealing with the representations of the amounts which Lucht and Oberlin had invested in the motel corporation. Assuming for the purposes of argument that there were representations of investment by Lucht of $10,000 and Oberlin of $25,000, it also appears that Lucht invested $6,700 and Oberlin invested from $13,000 to $16,000. Viewing the evidence most favorably to plaintiffs it is nevertheless our conclusion that the representations were not substantially false and the difference between what was allegedly represented and the true state of facts was not of any significance in the plaintiffs’ purchase of the shares. In this regard we note that both Reder and Walsh were retired farmers, that Oberlin and Lucht were or had been farmers residing in the general area with plaintiffs. Reder testified that he was socially acquainted with Lucht, that the matter of the sale of Ranger stock was first broached by Lucht during a visit at the Lucht home, that the matter was discussed generally on several occasions over a period of from four to six weeks. According to Walsh he had invited Lucht to his house for the purpose of buying some shares in another corporation and that Oberlin apparently came along as an interested party. Both Walsh and Reder indicated they believed the defendants to be honorable men and while the plaintiffs may have believed the profit prospects of the company to be good such belief was based on their confidence in the defendants and not upon any representations made. In fact until the second amended complaint was filed in 1968, some three years after the transaction, neither of the plaintiffs had either accused the defendants of being liars or suggested that they had falsely represented the stock in question.

The principal case relied upon by plaintiffs is Rice v. Snarlin, Inc. (Ill. App.2d), 266 N.E.2d 183, and the statement attributable to such case in the plaintiffs’ brief illustrates the erroneous theory upon which the plaintiffs proceeded. In the Rice case, the plaintiff alleged the defendant failed to inform the plaintiff that the five hundred (500) companies were chosen at random and that the listing was more in the nature of an advertising flyer rather than a solicited prospectus. The court held that the failure to inform plaintiff as to these several important factors was the very wrong which the plaintiff had alleged and that the plaintiffs may well have acted differently if they had known the undisclosed facts.

In the Rice case the plaintiff specifically alleged the failure to disclose certain facts which were known or should have been known by defendant. In the case at bar neither the pleadings nor the evidence indicate any such nondisclosure. According to the testimony of Lucht, elicited by plaintiffs under Section 60, the plaintiffs sought to infer that because Lucht and Oberlin were members of the board of the Ranger Corporation at some time during 1965, they either knew or should have known facts which they should have disclosed to plaintiffs indicating that the Corporation would be unsuccessful. The issues raised by such testimony were, in the main, irrelevant since it had no tendency either to prove the representations made or their falsity. By interjecting irrelevant issues into the case the essential nature of the action became confused. The fraud charged was not based on nondisclosure and what the defendants may or may not have known about the company’s affairs apart from the misrepresentations charged was immaterial.

For the foregoing reasons the judgments of the circuit court of Iroquois County are reversed.

Judgments reversed.

ALLOY, P. J., and DIXON, J., concur.


author: PER CURIAM.

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Michael J. Fragale et al., Defendants-Appellants.
    (No. 71-73;
    Third District
    — December 2, 1971.
    Jim D. Lucie, of Bushnell, for appellants.
    Henry D. Sintzenich II, State’s Attorney, of Macomb, for the People.
   PER CURIAM.


author: Mr. JUSTICE DEMPSEY

text:
    The People of the State of Illinois, Appellant, v. Josephus Williams, Appellee.
    (No. 53624;
    First District
    — September 23, 1971.
    Gerald W. Getty, Public Defender, of Chicago, (Fred Shandling, Assistant Public Defender, of counsel,) for appellee.
    Edward V. Hanrahan, State’s Attorney, of Chicago, (James Veldman, Assistant State’s Attorney, of counsel,) for the People.
   Mr. JUSTICE DEMPSEY

delivered the opinion of the court:

The People appeal from an order which dismissed an indictment for attempted murder. The order was entered pursuant to section 114 — 1(1) of the Code of Criminal Procedure (Ill. Rev. Stat., 1967, ch. 38, par. 114 — 1) upon the ground that the defendant, Josephus Williams had been in custody for more than 120 days without having been brought to trial; that he had not requested a continuance or caused the delay and was entitled to be discharged under section 103 — 5 of the Code of Criminal Procedure. Ill. Rev. Stat., 1967, ch. 38, par. 103 — 5.

Williams was incarcerated on September 29, 1967, for the murder of Ambrose Lane and the attempted murder of William Thompson. A preliminary hearing was held and he was bound over to the grand jury on both charges. He was held without bond on the murder charge; a bond of $25,000 was set on the attempt murder. In October 1967, he was indicted for the murder. No indictment was sought or returned for the attempt murder and Williams remained in custody on both charges. On June 5, 1968, an indictment was returned charging him with the attempt murder. He filed a petition for discharge under the four-term act, the court granted his petition and the State appeals.

Williams was held in custody on the murder charge from the date of his arrest until the case, on motion of the State, was stricken-with-leave-to-reinstate. He was responsible for some of this delay. The case was continued from time to time, sometimes by order of the court, sometimes on motion of the State and sometimes on motion of the defendant; a Behavior Clinic examination was ordered and the case was also continued for this purpose. But Williams was not responsible for any part of the nine-month delay on the attempt murder charge for which he was also held in custody from the date of his arrest in September 1967, until the date his petition for discharge was allowed, July 1, 1968. The State waited from September 1967, to June 1968, before presenting the attempt murder case to the grand jury. Because it had chosen to proceed on the murder charge alone, the State, and only the State, was responsible for the separation of charges and the long delay in obtaining the attempt murder indictment.

The State seeks to transfer the defendant’s motions for continuances in the murder case to the attempt case and further argues that since the defendant was given an examination to determine his competency to stand trial on the murder charge, it cannot be assumed that he was ready for trial on the attempt charge. Both contentions are meritless and the arguments made in support of them fallacious. The indictment on the attempt murder charge was not before the court when the continuances were requested. The continuances in the murder case did not toll the running of the four-term act in the attempt case. The Behavior Clinic examination did not delay the indictment of the attempt case and the continuances had no relevancy to a case that was not in court. Further, more than the 120 days within which the defendant had a right to be tried had elapsed between the September arrest and the date the Behavior Clinic order was entered; thus, his right to be discharged had accrued before the competency examination was ordered.

To give effect to the constitutional and statutory right to a speedy trial, the period in which the trial must be held dates from the time of the arrest and not from the date an indictment is returned. (Guthmann v. People (1903), 203 Ill. 260.) The right to a speedy trial is not a discretionary right to be lightly considered, but is an absolute right conferred by the constitution and expressly limited by statute. (People v. Szobor (1935), 360 Ill. 233, 195 N.E. 648.) Williams was in custody for nine months on the attempt murder charge. Since he was not tried within 120 days and had not occasioned the delay, his right to a speedy trial was violated.

The judgment is affirmed.

Judgment affirmed.

McNAMARA, P. J., and McGLOON, J., concur.


author: Mr. PRESIDING JUSTICE McNAMARA

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Sander Caravello, a/k/a Sam Sanders, or Sam Sander, Defendant-Appellant.
    (No. 53539;
    First District
    — October 21, 1971.

      Bellows, Bellows & Magidson, of Chicago, for appellant.
    Edward V. Hanrahan, State’s Attorney, of Chicago, (Robert A. Novelle and Roger S. Matelski, Assistant State’s Attorneys, of counsel,) for the People.
   Mr. PRESIDING JUSTICE McNAMARA

delivered tire opinion of the court:

On May 11, 1965, defendant was indicted for the crime of theft of checks and money orders. On April 5, 1967, he pleaded guilty to that charge. On March 8, 1968, after denying defendant’s motion to withdraw the plea of guilty, the court placed defendant on probation for five years, ordering that the first year be spent in the County Jail and that defendant make restitution of $22,000. On appeal defendant argues that the court erred in not allowing him to withdraw his plea of guilty since it was involuntarily made. Because of the contention we consider it necessary to set forth the chronology of the proceedings in some detail.

After indictment, defendant was arraigned on May 14, 1965 and entered a plea of not guilty. Thereafter several continuances were had without objection from the prosecutor or the attorney representing the complaining witness. On November 30, 1965, defense counsel informed the court that he and the attorney for the complainant had agreed to a 60 day continuance, and added: “We are in the process of working this problem out, and I think we are at the tail end of it now, Judge.” The cause was continued to February 2, 1966, at which time defense counsel requested another continuance and advised the court that “we have got this thing practically all settled between ourselves.” The court then inquired of the State if it would have a recommendation for a disposition at the next hearing, and the prosecutor replied affirmatively. The cause was continued to April 25, 1966, and on that day a different judge presided. Defense counsel stated that the parties had agreed that $33,000 would be paid to complainant. He then requested that the matter be put over to June, and that he would be ready or pay the money. The court replied that payment of the money wouldn’t necessarily obviate the need of a trial. Defense counsel said that he understood, but that it was a civil matter between the parties, rather than criminal.

On the next date, June 1, 1966, the original trial judge again presided. Defense counsel made a long statement as to the progress of negotiations. He stated that he had conferred with the prosecutor and the complainant’s attorney, and that he needed a 45 day continuance to get the money. The prosecutor stated: “The State would agree to one last final continuance on the basis of the good faith shown by counsel for the defendant. We are not adverse to restitution in this matter, but this case has been pending for some period of time. Counsel has said the civil law and I don’t doubt — .” His statement was interrupted at that point. After August 1 was selected as the next date, the prosecutor stated: “One further statement before the Court, as long as we have such a long date there is no reason why there cannot be some communication as to your progress with the State.” Defense counsel replied that, as he had done in the past, he would keep in communication with the prosecutor and the attorney for the complaining witness as to settlement negotiations. On October 3,1966, after defense counsel again reviewed negotiations and certain proceedings in the civil courts, he requested a 45 day continuance. A substitute prosecutor agreed to the continuance, but pointed out that there was a crime charged and that restitution was secondary. Thereafter the cause was continued several times to April 5, 1967.

On April 5, 1967, defense counsel stated that, “for the purpose of the record” they were entering a plea of guilty and requesting that the matter be continued for 90 days and then another 90 days so that complete restitution could be made. Counsel also informed the court that he was presenting $5000 to the complaining witness. Counsel further stated:

“We have an understanding that if he does not pay it, that tire plea of guilty will then become final * * *”

After the court ascertained that the $5000 had been received, it admonished defendant as to the consequence of the guilty plea. When defendant persisted in the plea, the court accepted it and entered judgment. The court made no inquiry as to whether defendant was making the plea because of any promises or representations made to him. Defense counsel also inquired to whom the monthly payments of $1000 would be made, and it was decided that payments would be made to the attorney for the complaining witness. The cause was continued to July 10, again to October 17, and then to January 8, 1968.

On the following court date, March 8, 1968, after a total of $11,000 had been paid to the complaining witness, defense counsel informed the court that a $3000 check tendered to the complainant on January 8, 1968 had not cleared the bank because of insufficient funds. The court indicated that it was on the basis of the check that he had granted the continuance and said that eleven months after the plea of guilty, defendant still owed twenty or twenty-two thousand dollars. The court then said:

“I want to see money or I want this disposed today.”

The prosecutor objected to another continuance on the grounds that defendant had not paid restitution “as per agreement.” Defense counsel requested that defendant be allowed to withdraw his plea of guilty and to plead not guilty to the charge. The court denied tire motion and imposed sentence.

Thereafter there was a hearing on new defense counsel’s amended motion for a new trial and in arrest of judgment. At this hearing, defendant testified that he pleaded guilty upon the advice of his lawyer and upon the repeated assurances that if he made restitution the case would be thrown out or that he would get probation. There were conferences between his attorney and the complainant’s attorney, and he overheard the latter say “as long as we get our money, there is nothing to worry about.” This representation was also made at another conference. Defendant never conferred with the assistant State’s Attorney.

Defendant’s first counsel testified that he had handled very few criminal cases prior to the instant trial. He said that the complaining witness wanted only his money, and did not want defendant to go to jail. This representation was made more than five times. Counsel also testified that just before defendant changed his plea to guilty he advised defendant that if he made restitution that the case would be thrown out or he would get probation, even after the plea had been entered.

Defendant was not permitted to call the attorney for the complaining witness as an adverse witness. He was then called as a defense witness at the hearing and testified that he had been retained by the complaining witness to obtain the return of money. He never promised defendant or his counsel a dismissal or probation upon restitution. He did have a conversation with defense counsel one day, but did not remember the details.

On appeal defendant contends that the trial court erred in not allowing defendant to withdraw his plea of guilty as the plea was involuntary, having been induced by representations that the finding would be vacated or no sentence or incarceration would be imposed if restitution were made; and that therefore it was obtained in violation of defendant’s rights to due process of law.

Where an accused, with full understanding, enters a plea of guilty to a charge, it is discretionary with the court whether the plea will be permitted to be withdrawn and a plea of not guilty substituted. (People v. Grabowski, (1957) 12 Ill.2d 462, 147 N.E.2d 49.) Where the motion to withdraw a plea of guilty is based upon nothing more than the unfulfilled hope of receiving a lesser sentence than would be received by the defendant had he been found guilty at trial, the refusal of the trial judge to allow the withdrawal of the plea of guilty is not an abuse of his discretion. People v. Hancasky (1951), 410 Ill. 148, 101 N.E.2d 575; People v. Ensor (1925), 319 Ill. 255, 149 N.E. 737; People v. Kleist, (1924), 311 Ill. 179, 142 N.E. 486.

However, in People v. Morreale, (1952), 412 Ill. 528, 107 N.E.2d 721, our Supreme Court stated at pp. 531-32:

“Where it appears that the plea of guilty was entered on a misapprehension of the facts or of the law, or in consequence of misrepresentations by counsel or the State’s Attorney or someone else in authority, or the case is one where there is doubt of the guilt of the accused, or where the accused has a defense worthy of consideration by a jury, or where the ends of justice will be better served by submitting the case to a jury, the court should permit the withdrawal of the plea of guilty and allow the accused to plead not guilty.”

In Morreale, the court also said that judicial discretion “should always be exercised in favor of innocence and liberty and in the light of the preference that is shown by law for a trial upon the merits by a jury.” P. 531. The court further stated “that the least influence or surprise causing the defendant to plead guilty, when he has any defense at all, should be sufficient cause to permit a change of the plea from guilty to not guilty.” P. 532.

In the instant case, we find that the trial court abused its discretion in refusing to permit the defendant to withdraw his plea of guilty and to plead not guilty to the charge. Defendant’s plea of guilty was obviously induced by promises and representations that if he pleaded guilty and made restitution either the finding would be vacated or at least he would not be sent to jail. Even if the trial court rejected the post-trial testimony of defendant and his attorney as to these representations, an examination of the record conclusively reveals that by their statements and conduct, the prosecutor, the attorney for the complaining witness and the trial judge himself all acted in making such a belief on the part of defendant inevitable.

In February 1966, after defense counsel advised the court that the parties had practically settled the matter between themselves, the prosecutor replied affirmatively when the judge asked if he would have a recommendation for disposition at the next hearing. In June 1966, while requesting a continuance, defense counsel again discussed settlement negotiations extensively. In agreeing to the continuance, the prosecutor commented on defense counsel’s good faith and apparently agreed with the defense that the dispute was civil rather than criminal. The prosecutor also requested that he be kept informed of the progress of negotiations. On the date defendant pleaded guilty, defense counsel first stated that he had conferred with the prosecutor and complainant’s attorney. He then announced that they were entering a plea of guilty for the purpose of the record [emphasis added]. He also stated that the plea of guilty would become final, if defendant did not pay the restitution. No one disputed these statements; nor did the court or prosecutor contradict the plain import of the remarks that, if restitution were made, the plea of guilty would be set aside. Moreover, before accepting the plea of guilty, the court made sure that defendant had in fact given $5000 to the complaining witness that morning. Thus we see that the court and prosecutor gave credence and substance to what defense counsel had told defendant. Only twice in the protracted 23 month period between arraignment and plea was defendant told that restitution would not necessarily conclude the proceedings. Once, a different judge stated it, and the other time, a substitute prosecutor made the statement. Even after the plea of guilty was entered, the emphasis remained on restitution. Indeed, on the date of sentencing, the court indicated that if more restitution were made that day, a sentence could be avoided. And the prosecutor opposed a further continuance only because defendant had failed to keep his "agreement.”

In People v. Zuckerman (1964), 46 Ill.App.2d 210, 197 N.E.2d 136, defendant claimed that the trial court abused its discretion in refusing to allow him to withdraw his plea of guilty and enter a plea of not guilty. His plea of guilty was made upon the representation of a prosecutor that the State would use him as a State witness in the trial of a co-defendant and then recommend probation. Defendant testified but the trial court directed a verdict in favor of the co-defendant. Defendant was granted probation, but upon learning of his long criminal record, the trial court revoked probation and sentenced him to prison. It was held that the trial court erred in not permitting defendant to withdraw his plea of guilty and enter a plea of not guilty.

We conclude that under the facts and circumstances of the instant case, the plea of guilty was obtained by improper representations, and that the court erred in not permitting the plea of guilty to be withdrawn. Accordingly, the judgment of the Circuit Court is reversed and the cause is remanded with instructions to permit defendant to enter a plea of not guilty, and for further proceedings not inconsistent with this opinion.

Judgment reversed and cause remanded with directions.

DEMPSEY and McGLOON, JJ., concur.


author: Mr. JUSTICE GOLDBERG

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Edward J. Bies, Defendant-Appellant.
    (No. 55399;
    First District
    — November 8, 1971.
    Ryan and Connolly, of Franklin Park, (Matthew J. Ryan, of counsel,) for appellant.
    Edward V. Hanrahan, State's Attorney, of Chicago, (Robert A. Novelle and Arthur Belkind, Assistant State’s Attorneys, of counsel,) for the People.
   Mr. JUSTICE GOLDBERG

delivered the opinion of the court:

After a bench trial, Edward Bies (defendant), was found guilty of driving under the influence of intoxicants, (Ill. Rev. Stat. 1969, ch. 95%, 144(a).) He was fined $100 and appeals to this court. A factual statement is essential.

At approximately 2:00 A.M., on the morning of December 20, 1969, defendant was driving his automobile through Schiller Park, Illinois. Two police officers observed that the car made a “U” turn over a raised median strip. He then drove through a red traffic light. The officers noticed his vehicle being driven on a weaving or irregular course. They stopped defendant’s car and opened the door. Defendant tumbled off of his seat and was held up by one of the officers. There was a strong odor of alcohol about him. He was duly informed of his constitutional rights and was taken to the police station. His automobile was towed to the same destination. He told the officers that he was coming home from an office party and bowling banquet and that he had consumed at least ten drinks of whiskey with water.

The officers gave defendant various physical tests relating to intoxication. In a balance test, he was wobbling and swaying. In a walking test, he swayed and was unsure. In a turning test, he was hesitant and swayed. In bringing his finger to his nose, he was hesitant with his right hand and completely missed the nose with his left hand. Based upon these and other physical tests and upon their experience as police officers in observing drunken persons, the officers both expressed the opinion that defendant was under the influence of alcoholic liquor while driving the vehicle.

Defendant testified in his own behalf. He admitted that he had made the “U” turn over the barrier. He denied that he had passed the red traffic light. He admitted that he had been to an office party and that he had “something to drink.” He did not remember whether he told the officers that he had ten drinks of whiskey.

The only defense of consequence raised by defendant is based upon the fact that when entering the police station he requested that the police give him a breathalyzer test. The officers advised him that the Schiller Park Police Station does not have breathalyzer equipment and when this apparatus is required they use the equipment at the Franklin Park Police Station. Therefore, the police did not accede to defendant’s request for a breathalyzer test. Defendant’s contention is that he had a constitutional and absolute right to a breathalyzer or other scientific test for determination of whether he was intoxicated. In advancing this contention, he depends on the wording of the statute, Ill. Rev. Stat. 1969, ch. 95%, par. 144(f), and upon the decision of a California District Court of Appeals, In re Newbern (1959), 175 Cal.App.2d 862, 1 Cal. Rptr. 80.

The California case involves a chronic alcoholic who requested that a doctor be called at his own expense to take a sample of Ms blood to determine if he was intoxicated. This request was refused by the police. It does not appear that any test of any kind was given to defendant but he was merely held in custody as havmg been drunk in a public place. The case arose as one of a number of habeas corpus proceedings instituted by defendant as retaliation or protection against repeated arrests for alleged drunkenness. The cited authority is inapplicable here. Furthermore, in the cited case, defendant requested that he have permission to call a doctor to administer the test at his own expense. In the case at bar, defendant simply said to the police, “I would like to take a breathalyzer test.” He then fell asleep; and, when he awakened, he went home.

The statute depended upon by defendant is as follows (Ill. Rev. Stat. 1969, ch. 95%, par. 144(f) ):

“(f) The person tested may have a physician authorized to practice medicine in all its branches, a qualified technician, chemist, registered nurse, or other qualified person of his own choosing to administer a chemical test or tests, at his own expense, in addition to any administered at the direction of a law enforcement officer. The failure or inability to obtain an additional test by a person does not preclude the admission of evidence relating to the test or tests taken at the direction of a law enforcement officer.”

A careful reading of this statute convinces us that it is not a mandatory enactment which places upon the police the absolute duty of administering scientific intoxication tests to each and every person charged with drunken driving. The statute applies only to persons who have already been subjected to scientific tests by the police. Sections (c) 1,2 and 3 and Sections (d) and (e) of ch. 95%, par. 144 all pertain to the administration of scientific tests. Section (f), immediately following, refers to, “The person tested * * *.” This shows that Section (f) is intended to be applicable only to a person who has been subjected to scientific tests by the police. This interpretation is further strengthened by the use of the phrase, “* * * in addition to any administered at the direction of a law enforcement officer.” We also note that the statute refers to “* * * an additional test * * *.” This shows that the section is intended to be applicable only in connection with the taking of tests in addition to those already administered by the police. Since no scientific tests were administered to defendant, the provisions of section (f) are not applicable to him.

Furthermore, in this portion of the section, the use of the words “by a person” in describing the additional test shows with final clarity that the additional test contemplated by the legislature was not to be obtained by the police but solely by “the person tested.” It follows that this section of the statute cannot be construed as being applicable to defendant under the facts in this case.

We construe this statute as granting a privilege to any defendant, already subjected by the police to scientific tests for intoxication, to request and have additional scientific tests at his own expense. The section does not impose upon police a mandatory and absolute duty to administer scientific tests to every person arrested in connection with an offense involving intoxication.

We also point out here the complete fairness to defendant of the entire proceeding. The evidence as to defendant’s erratic manner of driving by itself furnishes strong support to the finding of guilt entered by the trial court. (See, People v. Allgauer, 114 Ill.App.2d 405, 407; People v. Greenberg, 79 Ill.App.2d 288, 293.) The remaining competent evidence proved defendant guilty beyond any reasonable doubt.

We note here that there is substantial authority in Illinois to support the principle that in a prosecution for drunken driving opinion testimony, such as that of arresting officers, based upon proper observation, as to the intoxication of the defendant is competent in proving guilt without the presentation of any supporting scientific tests for intoxication. (People v. Coolidge, 124 Ill.App.2d 479, 486; People v. Casa, 113 Ill.App.2d 1, 6.) In other decided cases, defendants have been found guilty of driving a vehicle while intoxicated without the presence of scientific proof. See, People v. Buzinski, 64 Ill.App.2d 194; People v. Armstrong, 16 Ill.App.2d 365.

The judgment is, therefore, affirmed.

Judgment affirmed.

BURKE, P. J., and LYONS, J., concur.


author: Mr. JUSTICE DRUCKER

text:
    Norma Jean Palermo, Plaintiff-Appellee, v. The City of Chicago Heights, Defendant-Appellant.
    (No. 55019;
    First District
    — November 12, 1971.

      Scariano and Gubbins, of Chicago Heights, (Michael B. Gubbin, of counsel,) for appellant.
    Stanley J. Horn and Steven B. Randall, of Chicago, (Gabriel Aprati, of Chicago Heights, of counsel,) for appellee.
   Mr. JUSTICE DRUCKER

delivered the opinion of the court:

Defendant appeals from a judgment awarding plaintiff $5500 for personal injuries received when plaintiff fell into a water meter box maintained by defendant on a parkway. The case was tried without a jury.

On appeal defendant contends: (1) that the defendant had neither actual nor constructive notice of the defective water meter cover; (2) that defendant was free from negligence as a matter of law; and (3) that plaintiff was guilty of contributory negligence as a matter of law.

On September 25, 1967, plaintiff drove her car to 1443 East End Avenue, Chicago Heights, Illinois, to visit her friend, Mrs. Ida Alexander. East End Avenue runs in a north-south direction and plaintiff parked her car, facing north, on the east side of the street, the side on which Mrs. Alexanders house was located. Plaintiff arrived at the house at about 6:00 P.M.

The pertinent testimony is as follows: Plaintiff testified that there was a curb running north and south in front of the house next to which she parked. A sidewalk ran in front of the house parallel to the curb. Between the curb and sidewalk was a parkway. A cement crosswalk ran in an east-west direction extending from the street curb to the sidewalk. Plaintiff parked her car “a little bit south” of this cement crosswalk. She got out of her car on the passenger side since tire driver’s door was broken. She crossed the parkway and went into the house. She did not notice the meter box.

Plaintiff visited with Mrs. Alexander and then left at about 7:40 P.M. It was twilight and the visibility was good. She left by the back door which was on the south side of the house and walked west on a path to the sidewalk. She opened the gate in front of the house and crossed the sidewalk “proceeding to my car.” While crossing the parkway she “stepped on a lid and it tilted and * * * flipped over * * Plaintiff’s right leg went into the hole up to her buttocks. She did not see the lid prior to stepping on it. She had been looking at her car door.

On cross-examination plaintiff stated that she had previously visited the Alexanders’ house about ten times but had never noticed the water meter box. The meter box was located in the parkway about two feet south of the cement crosswalk which ran from the street curb to the sidewalk. The passenger door of her car was “back a little ways” from the cement crosswalk. The path leading from the Alexanders’ back door to the sidewalk was two sidewalk sqaures south of the crosswalk. There was a tree “fairly close” to the water meter box. She described the lid as about the size of a ten inch pizza and assumed that it was partly on because as soon as her toe hit it she went straight down and the lid flipped over.

As a result of the faU plaintiff suffered soft tissue injuries requiring hospitalization. She also lost time from work.

Mrs. Ida Alexander testified for the plaintiff. She and her husband resided at 1443 East End Avenue, Chicago Heights, Illinois. Four weeks before the accident she observed that the lid “[wjasn’t aU the way on. It was holding on with one screw, a bolt, or whatsoever you would caU it. And aU you had to do was just knock it aside. If you touched it, it would fall off.”

Over defendant’s objection Mrs. Alexander stated that her husband had telephoned the “water company” approximately six weeks before the date of the accident to complain about the condition of the lid. She was sitting next to her husband when he made the call. On cross-examination Mrs. Alexander said that she heard her husband say into the phone, “Will you send someone down here to fix this water hole because the cap is off of it and we have a lot of small children in the back and some of them might fall in it.” She did not know what number her husband had dialed. Her husband subsequently said that someone did come out and they did do something to the water hole but it didn’t last long. She did not know how long the cover remained fixed but that her husband was awfully angry about it. She never noticed what they did to fix it but it was not fixed when she went to the hospital two weeks prior to the accident. She stated that kids were playing in it but did not know if they played with it after defendant had been out to fix it.

Her husband was not present at the trial having gone to a funeral.

Joseph Faso testified for the defendant. He is the City Commissioner of Waterworks. He described the particular water meter as covered by a steel lid about eleven or twelve inches in diameter and protruding one and one-half inches above the ground. The steel lid is bolted down exactly in the center. The meter was located on the south side of a three foot wide crosswalk which ran from the street curb to the sidewalk. The meter was “on the outside of this crosswalk at approximately five to six feet from the curb.” The records of his department showed that no complaint was registered prior to the date of the accident regarding the condition of the water meter box. Meter boxes are inspected on a quarterly basis unless a specific complaint is made to the water department.

Over plaintiff’s objection Faso testified that Mr. Alexander came to see him at his private place of business about two or three days after the accident; that after discussing business, Mr. Alexander told him that a lady had tripped on the meter; that it was loose and that perhaps this could have been caused by children who are continually playing with this meter vault cover.

Opinion

Defendant first contends that as a matter of law it had neither actual nor constructive notice of the defective water meter cover. Both parties agree that defendant must have had notice of the alleged defect to be held liable.

Defendant argues that testimony of Mrs. Alexander concerning the telephone call made by her husband which allegedly gave defendant actual notice of the defective meter cover was erroneously admitted into evidence. We agree. Telephone conversations which are relevant and material to the issue are competent if the parties to the conversations are identified by direct evidence or facts and circumstances. (People v. Powloski, 311 Ill. 284.) However, where a bystander merely presumes the identity of the other party to the conversation, as is the case here, evidence relating to what the bystander heard one party say is incompetent. Bates v. Estate of Cronin, 196 Ill.App. 178. See Miles v. Andrews, 153 Ill. 262.

Constructive notice is present where a defective condition exists for such a length of time that public authorities, by the exercise of reasonable care and diligence, might have known of the condition. (Baker v. City of Granite City, 311 Ill.App. 586.) Factors to be considered are the conspicuity of the defect and the length of time it existed. (Trojan v. City of Blue Island, 10 Ill.App.2d 47, 50.) The issue is generally one for the trier of fact and becomes a question of law only if “all of the evidence, when viewed in its aspect most favorable to [the plaintiff here] * * *, so overwhelmingly favors the [defendant here] * * * that no contrary [finding] * * * based on that evidence could ever stand.” Pedrick v. Peoria & Eastern R.R. Co., 37 Ill.2d 494, 510.

In the instant case Mrs. Alexander testified that she saw the loosely attached meter cover four weeks prior to the accident. However, it is unclear what, if anything, happened thereafter. She did state definitely that she saw the loosely attached cover two weeks before the accident.

The water meter was not conspicuous being in the parkway next to a tree and protruding only about one inch and one-half above the ground. Moreover, the evidence showed that the defect itself was even less conspicuous. Mrs. Alexander testified that two weeks prior to the accident the lid was loosely attached by a bolt or a screw. Plaintiff testified that she assumed the cover to be lying on top of the meter because she did not step down into an empty hole. Rather, her toe first hit the lid and it “flipped over.”

The defendant city cannot be expected to inspect each of its meters every month. Also, the defect here was not as easily observable as an openly exposed crack or hole in a sidewalk. It consisted of a bolt loosely attached to a meter cover. We conclude that as a matter of law defendant had no constructive notice of the defective meter lid since it existed only two weeks or at most four weeks and was not plainly visible. Since there was neither actual nor constructive notice to defendant, the defendant is not liable.

In view of this determination we need not consider defendant’s other contentions. The cause is reversed and remanded with directions to enter judgment for the defendant.

Reversed and remanded with directions.

ENGLISH, P. J., and LORENZ, J., concur.

       “Except as otherwise provided in this article, a local public entity * * * shall not be liable for injury unless it is proven that it has actual or constructive notice of the existence of such a condition that is not reasonably safe in sufficient time prior to an injury to have taken measures to remedy or protect against such condition.” S.H.A. eh. 85, par. 3 — 102(a).