author: JUSTICE RARICK

text:
    EVELYN BRIDGEMAN, Special Adm’r of the Estate of Charles Bridgeman, Deceased, Plaintiff-Appellee, v. TERMINAL RAILROAD ASSOCIATION OF ST. LOUIS, Defendant-Appellant.
    Fifth District
    No. 5—88—0491
    Opinion filed March 16, 1990.

      Gundlach, Lee, Eggmann, Boyle & Roessler, of Belleville (Richard M. Roessler and Thomas R. Peters, of counsel), for appellant.

      Brennan, Cates & Constance, P.C., of Belleville (Rosemary D. McGuire, of counsel), for appellee.
   JUSTICE RARICK

delivered the opinion of the court:

Defendant, Terminal Railroad Association of St. Louis (TRRA), appeals from the judgment entered in favor of plaintiff, Evelyn Bridgeman, as special administrator of the estate of Charles Bridge-man, deceased, after a jury trial in the circuit court of Madison County, awarding her $300,000 in damages under the Federal Employers’ Liability Act (45 U.S.C. §51 et seq. (1982)) in connection with the death of her husband. We affirm.

According to the evidence presented at trial, on June 2, 1979, Charles Bridgeman, a switchman for TRRA, reported to work for the 8 a.m. shift. He informed the foreman of his crew, Francis Kelley, he was not feeling well. Kelley asked Bridgeman if he wished to go home to which Bridgeman replied, “No.” Kelley instructed Bridgeman to ride the engine. At approximately noon, the crew arrived at TRRA’s yard at Omaha and 16th Street in Granite City and stopped for clearance. Kelley walked into a nearby shanty to call the yardmaster. Bridgeman followed him into the shanty and sat down on a bench. Another switchman, Ponce DeLeon Williams, also entered the shanty to use the latrine. When he came out of the latrine, Bridgeman was lying down on the bench. Kelley subsequently tapped Bridgeman on the leg and told him they were about to leave. Bridge-man stated he did not feel well. Kelley left Bridgeman lying on the bench and went back to the engine. Williams returned to the shanty a few minutes later. At this point, Bridgeman was in the latrine. Williams left and returned again a short time later, but Bridgeman was still in the bathroom. While waiting on the bench to use the latrine, Williams heard Bridgeman coughing and clearing his throat. Bridge-man then called out to get the foreman. Williams left to inform Kelley that Bridgeman was asking for him. Kelley returned to the shanty and called out to Bridgeman. Bridgeman did not respond. Kelley then left to get his engineer. The two returned to the shanty and again called out to Bridgeman. When Bridgeman still did not answer, they opened the bathroom door. They found Bridgeman slumped against the wall. He appeared not to be breathing and was pale, cold and wet. They checked for a pulse and found none. At approximately 12:15, Kelley called the yardmaster, stating that Bridge-man needed an ambulance. Kelley overheard the yardmaster pick up another line and speak to an unidentified person requesting an ambulance. Because no ambulance responded, Kelley called the yardmaster an additional three or four times requesting help. The ambulance arrived some 45 minutes later. The ambulance report reflected the call for assistance was not received until 1 p.m. The evidence at trial also revealed the closest ambulance unit was approximately eight blocks away from the yard at 16th and Omaha, and St. Elizabeth’s Trauma Center was approximately one minute away. The engineer, contrary to the other crew members, testified the ambulance arrived shortly after being called. Bridgeman was pronounced dead at the scene at approximately 1:25. Death was caused by acute myocardial infarction. The autopsy revealed Bridgeman had severe obstructive coronary artery disease and was alive for a minimum of 30 minutes from the onset of the attack until death.

TRRA raises seven issues on appeal, namely: (1) whether plaintiff failed to plead and prove a duty recognized by the Federal Employers’ Liability Act (FELA) (45 U.S.C. §51 et seq. (1982)), failed to prove TRRA was negligent and failed to prove that any negligence on the part of TRRA caused plaintiff’s damages; (2) whether the trial court erred in allowing plaintiff to file during trial a second amended complaint alleging new theories of liability; (3) whether the trial court erred in precluding witnesses who discovered Bridgeman from testifying as to whether he was dead when found; (4) whether the court incorrectly instructed the jury on the issues; (5) whether the trial court incorrectly instructed the jury on the method for determining pecuniary losses; (6) whether the court erred in giving over TRRA’s objection plaintiff’s instruction defining “proximate cause”; and (7) whether the verdict is excessive and unwarranted by the evidence. We address these issues in the order stated.

TRRA’s first argument in condensed form is that plaintiff failed to allege and prove a submissible case. TRRA contends no duty exists under the FELA to render medical aid and, more importantly, plaintiff failed to demonstrate with reasonable certainty that TRRA’s acts caused the injury because Bridgeman was already dead when discovered. Negligence, according to TRRA, is not established simply by proving an employee died at work.

Under the Federal Employer’s Liability Act,

“[ejvery common carrier by railroad *** shall be liable in damages to any person suffering injury while he is employed by such carrier *** for such injury or death resulting in whole or in part from the negligence of any of the officers, agents, or employees of such carrier.” (45 U.S.C. §51 (1982).)

In plain language, the statute imposes liability on the railroad for death resulting in whole or in part from the negligence of any of its officers, agents or employees. (See Randall v. Reading Co. (M.D. Penn. 1972), 344 F. Supp. 879, 881-82.) Using liberal construction to fulfill the purposes of the Act, courts have permitted recovery in instances when railroad employees suffer fatal heart attacks during their tours of duty or have been stricken with sudden illness on the job, rendering them helpless to secure aid on their own, and die because of the railroad’s failure to exercise due care in furnishing emergency medical assistance after it learned or should have learned of their plight. (Randall, 344 F. Supp. at 882. See also Lancaster v. Norfolk & Western Ry. (7th Cir. 1985), 773 F.2d 807, 819; Annot., 64 A.L.R.2d 1108 (1959).) Clearly, TRRA had a duty to help Bridgeman once it was aware of the need. Kelley recognized the emergency situation at 12:15 and called for help. There was evidence from some of the crew members, however, that help was not summoned for some 45 minutes. Both medical experts who testified at trial stated that the sooner a patient suffering a myocardial infarction received life-sustaining treatment, the better the chances were for survival and that not receiving any aid for such a lengthy period of time doomed Bridgeman with medical certainty. Clearly, plaintiff stated and proved sufficient allegations and evidence to make a submissible case as to the duty to act and the negligence of the railroad. It is true there was conflicting evidence as to what time Bridgeman became ill and what time the ambulance was called. Such discrepancies, however, are for the jury to resolve. (See, e.g., Clay v. Brodsky (1986), 148 Ill. App. 3d 63, 71, 499 N.E.2d 68, 74.) The jury heard testimony pertaining to Bridgeman’s condition when discovered by his fellow crew members. The jury also heard testimony from the medical experts explaining how Bridgeman was alive for at least 30 minutes to an hour from the beginning of his heart attack to death and how individuals with no ascertainable pulse can be saved by prompt medical attention. We cannot say mere conjecture or speculation forms the basis of the judgment here. (See Walling v. Lingelbach (1975), 33 Ill. App. 3d 949, 952, 338 N.E.2d 917, 919, aff’d (1976), 65 Ill. 2d 244, 357 N.E.2d 530. See also Potter v. Edgar (1975), 34 Ill. App. 3d 33, 36, 339 N.E.2d 321, 324.) There simply is no evidence on the record before us so overwhelmingly against the jury’s verdict as to require reversal in this instance. See Randall, 344 F. Supp. 879. See also Clay, 148 Ill. App. 3d at 70-71, 499 N.E.2d at 73-74; Murphy v. Chestnut Mountain Lodge, Inc. (1984), 124 Ill. App. 3d 508, 512, 464 N.E.2d 818, 821-22.

TRRA argues, however, in connection with this issue, that plaintiff’s medical expert, in response to an improper hypothetical question, testified the “hypothetical man” could have been saved if he had received prompt medical attention. TRRA asserts the hypothetical question failed to reveal nearly every critical fact concerning Bridgeman’s condition when found and that all relevant material undisputed facts must be included in a hypothetical for the answer to go beyond mere speculation. (See Ryan v. Blakey (1979), 71 Ill. App. 3d 339, 350, 389 N.E.2d 604, 612; Pritchett v. Steinker Trucking Co. (1969), 108 Ill. App. 2d 371, 376-77, 247 N.E.2d 923, 926.) TRRA did make an objection at trial to plaintiff’s hypothetical on the grounds the question called for speculation. But, TRRA did not specifically mention the lack of alleged critical facts, thereby precluding any chance for correction or supplementation. More importantly, however, a hypothetical question is not improper merely because it includes only a part of the facts in evidence. (See Graham v. St. Luke’s Hospital (1964), 46 Ill. App. 2d 147, 155, 196 N.E.2d 355, 359.) Any additional or contrary information could have been explored on cross-examination simply by varying the original hypothesis. Finally, even if the hypothetical question were deemed improper, it would not mandate reversal in this instance. The jury was more than adequately made aware of Bridgeman’s condition when found in addition to being advised of medical science’s ability today to resuscitate those who appear to be dead.

TRRA next argues the trial court erred in permitting plaintiff to file, during the middle of the trial, a second amended complaint which TRRA believes alleged new theories of liability. According to TRRA, plaintiff’s first amended complaint was based on the theory that TRRA was negligent in requiring Bridgeman to perform his work when it knew or should have known he had heart disease, while the second amended complaint added allegations that TRRA negligently failed to provide or obtain emergency medical aid for Bridgeman.

In general, the granting or denying of leave to amend a complaint prior to judgment is a matter within the sound discretion of the trial court, and its decision will not be disturbed on appeal unless there is an abuse of that discretion. (See, e.g., Adams v. Zayre Corp. (1986), 148 Ill. App. 3d 704, 709, 499 N.E.2d 678, 683; Blazina v. Blazina (1976), 42 Ill. App. 3d 159, 165, 356 N.E.2d 164, 169.) Additionally, the provisions of section 2 — 616 of the Civil Practice Law (Ill. Rev. Stat. 1987, ch. 110, par. 2—616) are to be liberally construed and applied to carry out their purpose of permitting amendments to pleadings; the key question being whether the amendment will be in the furtherance of justice. (See Blazina, 42 Ill. App. 3d at 165, 356 N.E.2d at 169. See also North Shore Marine, Inc. v. Engel (1980), 81 Ill. App. 3d 530, 533, 401 N.E.2d 269, 272.) While it is also true that ordinarily an amendment which alters the nature and quality of proof required to defend or which is prejudicial should not be allowed as to matters of which the pleader had full knowledge at the time of filing the original pleading if no excuse is presented for not putting its substance in the original pleading (see Biundo v. Christ Community Hospital (1982), 104 Ill. App. 3d 670, 675, 432 N.E.2d 1293, 1297; North Shore, 81 Ill. App. 3d at 533, 401 N.E.2d at 272), any doubts should be resolved in favor of allowing amendments (see Blazina, 42 Ill. App. 3d at 165, 356 N.E.2d at 169). Here, any prejudice to TRRA was minimal, while the overriding principles of furtherance of justice and liberal construction were substantial. TRRA cannot claim surprise at the “new” allegations contained in plaintiffs’ second amended complaint; it too explored on discovery whether the failure of anyone to assist Bridgeman when found had any effect on his ability to survive the myocardial infarction. One of TRRA’s primary defenses was that Bridgeman, given his cardiovascular history, would have died anyway regardless of its acts or omissions. The allegations in plaintiff’s second amended complaint arose out of the same incident and the same facts. The “new” allegations served to elaborate on those already pleaded. We find no abuse of the trial court’s discretion in this instance in allowing the second amended complaint to stand. If TRRA were truly surprised, it easily could have requested a continuance to conduct further discovery on the time issue. Instead, it chose to proceed. We cannot fault the trial court for refusing to grant a request never presented to it.

TRRA next finds fault with the trial court’s refusal to allow two of the crewmen who were present when Bridgeman was found in the latrine to testify whether Bridgeman was dead at the time discovered. The trial court precluded such testimony on the basis it required a medical conclusion, something a lay person was not qualified to render. The court did allow, however, each witness to describe in detail exactly what he observed as to Bridgeman’s condition when discovered. In addition, the trial court allowed the testimony of one witness who, when asked to relate his observations, testified he first thought Bridgeman was dead, to stand as an instantaneous impression. Again, we find no error in the trial court’s rulings. The court simply prohibited lay testimony requiring a medical conclusion but did allow each witness to relate a graphic and detailed picture of their observations. There was no prejudice. TRRA was able to present everything it wanted to the jury except a conclusion which the witnesses were not qualified to give. While there is authority that lay persons may give such an opinion under certain circumstances (see Prudential Insurance Co. v. Spain (1950), 339 Ill. App. 476, 482-83, 90 N.E.2d 256, 259), under the facts of this case, specifically in light of the medical testimony rendered, the trial court committed no error in prohibiting lay opinion testimony here.

For its fourth argument on appeal, TRRA contends the trial court incorrectly instructed the jury on the issues involved in the case. TRRA believes the instruction improperly implied to the jury TRRA had duties which are not imposed upon a railroad under FELA, namely, the duty to render emergency medical assistance. TRRA also argues there was insufficient evidence to show that had emergency aid been given, Bridgeman’s life would have been saved or that it even failed to obtain such aid. These contentions have already been addressed through TRRA’s first three arguments. Suffice it to say there was a duty and there was sufficient evidence to support all the allegations submitted to the jury. TRRA fails to acknowledge that a plaintiff in a FELA case can get to the jury with even the slightest evidence of negligence. Lancaster, 773 F.2d at 820. See also Randall, 344 F. Supp. at 883.

TRRA’s fifth issue on appeal also pertains to the jury instructions. This time TRRA contends the trial court incorrectly instructed the jury on the method of determining plaintiff’s losses. We first note TRRA failed to preserve this issue for appeal by not including it in its post-trial motion. Secondly, every element of damage on which the jury was instructed had been presented to the jury through witness testimony or physical evidence. We find no error and decline to address the matter further.

TRRA’s final contention with respect to jury instructions centers on plaintiff’s instruction, given over TRRA’s objection, defining proximate cause as “that cause which played any part, even the slightest, in producing the injury complained of.” The language of the instruction, however, is a proper statement of proximate cause under the FELA and is supported by case law. (See Blyzes v. Midwest Towing Co. (1969), 109 Ill. App. 2d 48, 57-58, 248 N.E.2d 305, 309-10. See also Page v. St. Louis Southwestern Ry. (5th Cir. 1963), 312 F.2d 84, 91-92; DeLima v. Trinidad Corp. (2d Cir. 1962), 302 F.2d 585, 588.) The United States Supreme Court has stated clearly that the employee’s burden of proof in a FELA case is met when the employee has shown any evidence from which the jury could infer the negligence of the defendant employer played any part, however small, in the injury or death. (Rogers v. Missouri Pacific R.R. Co. (1957), 352 U.S. 500, 506-08, 1 L. Ed. 2d 493, 499-500, 77 S. Ct. 443, 448-49.) The instruction here appropriately conveyed to the jury that the negligence of TRRA need not be the sole or only cause of the injury. It did not bind or require the jury to find anything; it only defined the parameters of what the jury was entitled to find. (Cf. Bertrand v. Southern Pacific Co. (9th Cir. 1960), 282 F.2d 569, 573.) As the instruction complied with the intent of Congress to hold the employer liable for that injury for which it is wholly or partly responsible, however slight (Rogers, 352 U.S. at 507-08, 1 L. Ed. 2d at 500, 77 S. Ct. at 449), we find no error in the giving of the instruction or any possible misleading of the jury.

As its final argument on appeal, TRRA asserts the verdict of the jury was excessive, unreasonable and unwarranted by the evidence and therefore the result of prejudice, sympathy and passion. We find no merit to this contention. Nothing was presented to the jury at trial or in closing argument to arouse the passions and prejudices of the jury. More importantly, the record clearly supports the jury’s verdict. The ascertainment and assessment of damages are primarily questions of fact peculiarly within the province of the jury to determine. We will not substitute our judgment for that of the jury as to the amount to be awarded in any given case. (Blyzes, 109 Ill. App. 2d at 55, 248 N.E.2d at 308-09. See also Clay, 148 Ill. App. 3d at 76, 499 N.E.2d at 77.) The award here is not so excessive or large, falling outside the necessarily flexible limits of fair and reasonable compensation, as to shock the judicial conscience.

For the aforementioned reasons, we affirm the judgment of the circuit court of Madison County.

Affirmed.

WELCH and CHAPMAN, JJ., concur.


source: Caselaw Access Project

author: JUSTICE CHAPMAN

license: Public Domain

text:
    WAYNE HICKOX et al., Plaintiffs and Appellees and Counterdefendants and Cross-Appellants, v. BILLY V. BELL et al., Defendants and Appellants and Counterplaintiffs and Cross-Appellees (Indiana National Bank, Defendant and Cross-Appellee).
    Fifth District
    No. 5—87—0648
    Opinion filed March 16, 1990.

      Morris Lane Harvey and Heidi A. Hoffee, both of Law Offices of Morris Lane Harvey, of Fairfield, for appellants.
    Terrell Lee Sharp and Matt E. Beal, both of Law Office of Terry Sharp, P.C., of Mt. Vernon, for appellees Wayne Hickox and Lucille Hickox.
    Morris Lane Harvey and Heidi A. Hoffee, both of Law Offices of Morris Lane Harvey, of Fairfield, for appellee Indiana National Bank.
   JUSTICE CHAPMAN

delivered the opinion of the court:

On September 22, 1976, Wayne and Lucille Hickox entered into a written agreement for the sale and purchase of 864 acres of real estate with Barbara and Billy Bell. As the issues in this appeal center around the interpretation of that contract, we include herein pertinent portions of it:

“THIS AGREEMENT made this 22nd day of September, 1976,by and between WAYNE HICKOX and LUCILLE HICKOX, *** hereinafter called ‘Sellers’; and BILLY V. BELL and BARBARA JOAN BELL, ***, hereinafter called ‘Buyers.’

WITNESSETH:

* * *

Said real estate to be conveyed is described as follows:

* * *

containing in all, 864 acres more or less in Wayne County, Illinois. ***

2. PRICE AND TERMS: In consideration thereof, Buyers herein agree to pay Sellers herein the sum of SEVEN HUNDRED THOUSAND DOLLARS ($700,000.00) In the manner following:

(a) The sum of ONE THOUSAND DOLLARS ($1,000.00) on the date of this offer and Acceptance and Earnest Money Receipt, dated July 2, 1976.

(b) On January 2, 1977, FORTY NINE THOUSAND DOLLARS ($49,000.00).

(c) Remaining SIX HUNDRED AND FIFTY THOUSAND DOLLARS ($650,000.00) shall be paid in annual payments commencing on December 1, 1977 and on December 1 of each year thereafter. The first five years, beginning December 1, 1977, payments shall be of interest only at l1k per cent upon unpaid balance. The following fifteen years commencing December 1, 1982, the Buyers shall pay the annual payment of TWENTY THOUSAND DOLLARS ($20,000.00) plus interest of 7.5% on the unpaid balance to the Sellers as hereinafter stated. Any balance of the payment at the end of said twenty year period, to-wit: December 1, 1996, shall be due and payable by the Buyers to the Sellers herein. ***

(d) Buyers herein shall have the option to pay the unpaid balance of the principal due and payable, or any part thereof under this Contract in multiples of One Thousand Dollars at any one annual payment period herein provided.

DISASTER CLAUSE:

It is further provided in said Contract that in the event the beans were less than twenty bushel[s] (20 bu.) per acre, corn less than fifty bushel[s] (50 bu.) per acre, or wheat less than twenty-seven and one-half bushel[s] (271/2 bu.) per acre, or any one of them, that such yields shall be considered a disaster and the Buyers herein shall pay to the Sellers herein one-third of the annual payment, which is fixed at TWENTY THOUSAND DOLLARS ($20,000.00) per year payable as herein stated. * * *

4. ABSTRACT:

* * *

Buyers herein shall have the option as payments are paid upon the entire purchase price, which total acreage is figured at approximately EIGHT HUNDRED FIFTEEN DOLLARS ($815.00) per acre and that as the Buyers herein have paid the annual amount of money upon said contract; said money shall entitle the Buyers herein to a Warranty Deed to such land as may then be paid for based on $815.00 per acre, except

The East Half of the Northeast Quarter of Section Nineteen, Township One North, Range Nine East of the Third Principal Meridian, containing 80 Acres more or less, all situated in the County of Wayne and State of Illinois

shall be sold at ONE THOUSAND DOLLARS ($1,000.00) per acre if so selected. All costs of deeds and abstracts in such event shall be at Buyers’ expense; the conveyances selected by the Buyers shall be carved out of the total acreage sold ***.

Upon execution of this Agreement, Sellers herein shall execute their Warranty Deed to the Buyers herein for Eight Hundred Sixty-Four Acres (864A) herein described, which may be amended if prior deeds are made as provided herein.

* * *

7. DEFAULT: Time shall be of essence of this agreement, and in the event Buyers herein shall default in the making of any of the payments by it to be made hereunder, or in the performance of any other covenant by it made, and such default shall continue for sixty (60) days after Sellers herein have given Buyers herein written notice of such default, Sellers herein at their option may declare this Agreement forfeited and terminated, and may re-enter possession of the subject land and retain all monies paid hereunder as and for reasonable rentals and liquidated damages, but not as any penalty. In the event the Sellers herein default in the performance of any of the conditions and covenants on their part to be performed, and such default shall continue for sixty (60) days after Buyers herein have given Sellers herein written notice of such default, Buyers herein may, at their option, declare this Agreement forfeited and terminated and shall have cause against the Sellers herein for all real damages incurred thereby, together with a return of all money theretofore paid, plus the value of all improvements to said land less reasonable rental value thereof. Both parties do retain all alternative rights to have cause for specific performance of this Agreement, and the non-defaulting party shall be entitled to all reasonable attorney’s fees, court costs and other expenses incurred in the enforcement of this provision as a part of their damages, whether at law or in equity, from the defaulting party. * * *

9. SCOPE: This agreement may be assigned by either party without the prior written consent of the other party; and the terms and covenants herein contained shall accrue to the heirs, devisees, executors, administrators, agents and assigns of the parties hereto, and in the event of such assignment, the assignors herein shall be relieved of liability. The Buyers may pre-pay the Contract or sell all or any part on Contract, but in such case, the Buyers shall remain liable to the Sellers herein.”

The Bells paid the $1,000 earnest money deposit required under the contract. In addition, the record shows that payments under the contract to date, delivered to the Mt. Erie State Bank as escrow agent, are as follows:

$49,000.00 (principal) January 3, 1977
$48,750.00 (interest) December 1, 1978
$48,750.00 (interest) December 2, 1979
$48,750.00 (interest) December 1, 1980
$48,750.00 (interest) November 27, 1981
$48,750.00 (interest) December 1, 1982
$20,000.00 (principal) December 1, 1982
$47,381.25 (interest) December 2, 1983
$6,666.67 (principal) December 2, 1983
$46,620.14 (interest) December 1, 1984
$6,666.67 (principal) December 1, 1984.

The record shows that the payments made up to and including the interest payment of December 1, 1980, were made by the Bells. The payments of November 27, 1981, and thereafter were made by Herbert and Victor Hess.

In a letter dated June 25, 1985, addressed to Mr. and Mrs. Hickox, Michael Molt, an attorney representing the Bells, requested that the Hickoxes execute a warranty deed conveying to the Bells 83.67 acres of the total 864 acres referred to in the contract. The letter explained that the contract between the Hickoxes and the Bells provides that the Bells are entitled to receive a warranty deed for certain real estate based on the amount of principal which has been paid to date. Mr. Molt noted that with the exception of a purchase price of $1,000 per acre allocated to one 80-acre tract, the contract specifies that the real estate is priced at $815 per acre. Mr. Molt calculated that to date $83,333.34 had been paid as principal under the contract. Mr. Molt advised the Hickoxes that the Bells desired to allocate $80,000 of that amount to the 80-acre tract priced at $1,000 per acre. The other 3.67 acres included in the deed were only part of the 4.089 acres, valued at $815 per acre, the Bells were to date entitled to receive. The 3.67-acre tract was improved with a machine shed, cattle feed bunk and feeding floor with a concrete lot and two steel harvester silos. The Hickoxes did not execute the deed nor did they reply to Mr. Molt’s correspondence.

On November 25, 1985, Billy and Barbara Bell served a notice of termination of agreement for sale and purchase of real estate upon Lucille Hickox. The notice alleges that the Hickoxes are in default for failure to honor the requirement of the contract requiring the Hick-oxes to deliver certain warranty deeds to the Bells. The notice provides that all obligations, responsibilities and requirements in the contract are terminated, and that possession of the real estate is returned to the Hickoxes.

Mr. and Mrs. Hickox subsequently filed a six-count complaint in the circuit court, naming as defendants Billy Bell, Barbara Bell and the Indiana National Bank as trustee under trust number 13917 — 005. Counts I, II and III, directed against the Bells, allege that the plaintiffs are not in default of the contract between the parties; the Bells failed to pay sufficient consideration to entitle them to conveyance of the realty they demanded; and the Bells are not entitled to a forfeiture or termination of the contract. The complaint also contains allegations that the Bells breached the contract by failing or refusing to make payments for 1985; to maintain the fertility of the land; and to maintain insurance on the land, or to otherwise repair the damage which has occurred to various buildings on the land. Plaintiffs claim that as a result of the Bells' breach of contract the value of the land has decreased substantially, resulting in damage to the plaintiffs in excess of $300,000.

Counts IV, V and VI of the Hickox complaint are directed at the Indiana National Bank as trustee under trust number 13917 — 005. Those counts allege that on or about December 31, 1980, the Bells entered into a contract for the sale and purchase of real estate with the Indiana National Bank, as trustee under the trust number above designated, as buyer. Pursuant to that contract the Indiana National Bank, as purchaser on behalf of Herbert and Victor Hess, agreed to assume the indebtedness of the Bells to the Hickoxes in the amount of $653,927.08, and to assume all covenants required of the Bells under their contract with the Hickoxes. Counts IV and V, with which we are concerned in this appeal, set forth the agreement between the Hick-oxes and the Bells, the agreement between the Bells and the bank, and service of the demand for the deed by the Bells. Count IV prays that the court declare that the Hickoxes are not in default and that the agreement is in full force and effect. Count V sets forth the same allegations as count IV and further alleges that the bank failed and refused to make payments on the contract. That count asks the court to award the plaintiffs a money judgment against the bank for the past-due installments.

The Indiana National Bank filed a motion to dismiss those counts of the complaint directed against it. In an affidavit attached to the motion, attorney Michael Molt stated that after the bank entered into the contract with the Bells, it assigned the contract to the Hesses, and that after the assignment from the bank to the Hesses, the Hesses had possession and use of the property and made the payments on the contract. The affidavit further stated that in May of 1985 the Hesses entered into an agreement with the Bells under which the Hesses assigned all of their right, title, and interest in the real estate back to the Bells. That contract, in effect, purported to relieve the Hesses and the bank from any obligation to pay the Hick-oxes.

The trial court’s docket entry, dated November 17, 1986, granted the Indiana National Bank’s motion to dismiss, stating that “Counts IV and V make no allegation that a contractual relationship existed between the Bells and Bank when the agreement between Hickoxes and Bells was breached.” Plaintiffs thereafter sought leave of court to amend the complaint as to the bank. The court denied the motion to amend and subsequently denied the plaintiffs’ motion to reconsider.

The Bells filed a counterclaim. Count I of the counterclaim sought a declaration by the court that the contract between the parties is terminated, and that the Bells are entitled to reimbursement of all sums paid to the Hickoxes and are also entitled to attorney fees and costs incurred as a result of this action. The Bells in count II prayed for the same remedies as were requested in count I, and in the alternative prayed that the court order specific performance of the contract as to conveyance of the realty demanded by the Bells. Count III of the counterclaim requested that the court declare the contract terminated and award the Bells an amount equal to the fair market value of the realty which the Bells demanded the plaintiffs convey by deed. Count III also prayed for an amount equal to the reasonable attorney fees and costs incurred by the Bells in enforcing the contract.

Following a trial on the dispute between the Hickoxes and the Bells, the court entered a seven-page, written order on August 21, 1987. The court’s findings included the following:

(1) The parties entered into a contract for the sale and purchase of real estate.
(2) Pursuant to the contract, the defendants were entitled to a warranty deed to portions of land conveyed under the contract prior to the completion of said contract as principal payments were paid toward the contract. The amount of land to which they were entitled was to be based upon a value of $815 per acre except for one 80-acre tract which is to be valued at $1,000 per acre.
(3) That as of June 25, 1985, the defendants had paid toward the principal amount owed $83,333.34.
(4) The failure of plaintiffs to deliver the warranty deed requested by defendants was a breach of the contract, but said breach was not so material or substantial so as to entitle defendants to rescission or to forfeiture or termination.
(5) Defendants are entitled to specific performance with regard to the request for warranty deed.
(6) Plaintiffs had actual possession of the premises during 1986 and through the date of the hearing in this case.
(7) Defendants are entitled to possession of the premises and to any rents and profits generated during plaintiffs’ possession of the premises.
(8) That the rents and profits, including government payments, generated by the subject property during the year 1986, net of real estate taxes paid upon the property by the plaintiffs, is $23,449.13.
(9) That the parties stipulated in open court that the tracts of land for which a deed was demanded by defendants in June of 1985 have diminished in value by $16,000 since the time of said demand. Defendants are entitled to recover from plaintiffs for the diminution in value by reason of plaintiffs’ refusal to convey said property.
(10) Pursuant to the agreement, defendants are entitled to recover from plaintiffs their attorney fees incurred in in this cause in the amount of $14,933.57.
(11) Plaintiffs shall deliver to defendants warranty deeds to the parcels requested by defendants together with proof of merchantable title thereto.
(12) Defendants shall be obligated to the plaintiffs to pay the annual principal installments with interest for the years 1985 and 1986 in the total amount of $132,500. Defendants shall be entitled to a credit against said amount of $54,382.70, said sum representing the $16,000 diminution in value of the tracts, $23,449.13 in rents and profits including government payments obtained by the plaintiffs during the year 1986, and $14,933.57 as defendants’ attorney fees in this cause, leaving a net amount due plaintiffs $78,117.30.

Billy and Barbara Bell appeal from the judgment of the trial court, asking that the judgment be reversed as to the trial court’s refusal to recognize a forfeiture and termination of the contract. The Hickoxes also appeal from the trial court’s decision. The Hickoxes raise three issues for our review. The first issue is whether the Bells paid a sufficient amount of principal to entitle them to conveyance of the realty demanded. The second issue is whether the court erred in finding the plaintiffs in default of the contract. Third, the plaintiffs argue that the trial court erred in dismissing the Indiana National Bank as a party defendant. We will first consider whether the Bells paid a sufficient amount of principal to be entitled to a conveyance of the 83.67 acres they demand under the contract.

In its order dated August 21, 1987, the court found that the defendants had paid $83,333.34 toward the principal amount owed under the contract. The Hickoxes first argue that the only payment against principal made by the Bells was the $50,000 down payment, and that any amount of money paid by the Hesses is not to be credited to the Bells as payment under the contract. The contract allows for assignment by the parties. The validity of the assignment and reassignment of the contract by the Bells to the Hesses, and the Hesses to the Bells, was never raised in the circuit court. It is axiomatic that questions not raised in the trial court are deemed waived and may not be raised for the first time on appeal. (Western Casualty & Surety Co. v. Brochu (1985), 105 Ill. 2d 486, 500, 475 N.E.2d 872, 879; Board of Education v. Kusper (1982), 92 Ill. 2d 333, 343, 442 N.E.2d 179, 184.) We assume, therefore, that the assignment is valid. “It is well settled in Illinois that when a valid assignment is executed, the assignee (1) acquires all of the interest of the assignor in the property that is transferred and (2) stands in the shoes of the assignor.” (Stavros v. Karkomi (1976), 39 Ill. App. 3d 113, 123, 349 N.E.2d 599, 607.) As the right to assignment of the contract was clearly provided for in the written agreement, and since the validity of the assignment and reassignment of the contract between the Bells and the Hesses was not contested at trial, we find that the money paid by the Hesses under the contract is to be credited to the Bells as payment under the contract.

The Hickoxes next argue that assuming that all amounts which the Mt. Erie State Bank shows paid are credited to the Bells as payment under the contract, the Bells have not paid a sufficient amount of principal to be entitled to a conveyance of 83.67 acres. They contend that, assuming early deeding is authorized under the contract, the most the Bells could be credited for as principal with regard to the early deeding provision, is $33,333.34. The Hickoxes theorize that the initial $50,000 paid by the Bells is a down payment, not intended to be credited as principal until all other annual payments have been paid under the contract. Plaintiffs draw our attention to paragraph 7 of the contract, which provides that upon default of any payment, “Sellers *** may declare this Agreement forfeited and terminated, and may re-enter possession of the subject land and retain all monies paid hereunder as and for reasonable rentals and liquidated damages, but not as any penalty.” (Emphasis added.) They argue that to allow the $50,000 to be applied against principal in an early deeding of the property would: (1) ignore the liquidated damages clause in the contract, and (2) defeat the purpose of a down payment in a land installment contract; that is to provide the vendor security for the purchaser’s performance of the contractual obligations.

Although the issue was not raised by the parties, we find it first necessary to determine whether the forfeiture provision is for a penalty or liquidated damages. Whether a provision for damages is a penalty clause or a liquidated damages clause is a question of law. (Weiss v. United States Fidelity & Guaranty Co. (1921), 300 Ill. 11, 16, 132 N.E. 749, 751; Morris v. Flores (1988), 174 Ill. App. 3d 504, 506, 528 N.E.2d 1013, 1015.) If the purported liquidated damages clause herein is in fact a penalty imposed upon a party to secure prompt performance of a contract rather than a term giving compensatory damages to the nondefaulting party, then it is unenforceable. (Scofield v. Tompkins (1880), 95 Ill. 190, 193; Heckmann v. Mid States Development Co. (1965), 60 Ill. App. 2d 113, 207 N.E.2d 715.) In Bauer v. Sawyer (1956), 8 Ill. 2d 351, 359, 134 N.E.2d 329, 333, our supreme court quoted the Restatement of Contracts as a declaration of the requirements a party must meet in order to show that a contractual provision is for liquidated damages and is not a penalty:

“An agreement, made in advance of breach, fixing the damages therefor, is not enforceable as a contract and does not affect the damages recoverable for the breach, unless (a) the amount so fixed is a reasonable forecast of just compensation for the harm that is caused by the breach, and (b) the harm that is caused by the breach is one that is incapable or very difficult of accurate estimation.” (Restatement of Contracts §339(I) (1932); see also Restatement (Second) of Contracts §356(1) (1979).)

In addition to the above requirements for determining that a damages clause is enforceable, it must be shown that it was the intention of the parties to agree in advance as to the settlement of damages that might arise upon a breach of contract. Heckmann v. Mid States Development Co. (1965), 60 Ill. App. 2d 113, 118, 207 N.E.2d 715, 718; Curtin v. Ogborn (1979), 75 Ill. App. 3d 549, 554, 394 N.E.2d 593, 598.

We are aware that a liquidated damages clause will be given effect if it is difficult to determine the actual damages which would result in event of breach. We do not find the actual damages difficult to assess in this case. The contract establishes the value the parties had determined as the per-acre value of the land to be conveyed. Evidence as to land values is available and could easily be used to calculate any increase or diminution in value to the land in question. Furthermore, it would not be difficult to calculate the rent and or profits generated during any party’s possession of the premises. As a determination of actual damages in the event of breach of contract would not be difficult, we find as a matter of law that the liquidated damages clause is not enforceable.

Notwithstanding our finding that the liquidated damages clause is unenforceable, plaintiffs argue that to allow the $50,000 down payment to be applied against principal in early deeding of the property would deprive them of security for the purchasers’ performance of the contract. Plaintiffs cite Pruett v. La Salceda, Inc. (1977), 45 Ill. App. 3d 243, 359 N.E.2d 776, in support of their position that the seller may retain a down payment even though there was nothing in the contract authorizing its retention. In Pruett the purchasers brought suit against sellers to recover earnest money paid to the sellers pursuant to a written contract for the purchase of a home. The sales contract required a partial down payment of $1,000, with the balance of the down payment, $7,700, to be paid within 10 days and the balance of the purchase price due at closing. Upon the purchasers’ default, the court held in favor of the sellers in allowing them to retain the earnest money deposit. Pruett relied on Linster v. Regan (1969), 108 Ill. App. 2d 459, 248 N.E.2d 751, which held that, in the absence of an express contract provision to the contrary, earnest money or down payment should be accepted as the bargain and agreement of the parties as an assurance to the seller that the buyer will perform. Linster, 108 Ill. App. 2d at 463, 248 N.E.2d at 753.

As in Pruett and Linster, the contract in the case at bar contains no express provision for the retention of the earnest money by the seller in the event of breach. Pruett and Linster, however, did not involve installment contracts where early deeding was contemplated by the parties. The contract at issue does contain an express provision:

“Buyers herein shall have the option as payments are paid upon the entire purchase price *** and that as the Buyers herein have paid the annual amount of money upon said contract; said money shall entitle the Buyers herein to a Warranty Deed to such land as may then be paid for.”

To read the provision “to such land as may then be paid for” as not including the $50,000 down payment would be contrary to the unequivocal meaning of the contract read as a whole. The law is well settled that a contract must be read as a whole without any one clause standing alone. (Board of Trade v. Dow Jones & Co. (1983), 98 Ill. 2d 109, 122, 456 N.E.2d 84, 90; La Throp v. Bell Federal Savings & Loan Association (1977), 68 Ill. 2d 375, 381, 370 N.E.2d 188, 191, cert. denied (1978), 436 U.S. 925, 56 L. Ed. 2d 768, 98 S. Ct. 2818.) Plaintiffs argue that the buyers and the trial court have ignored the term “annual amount of money.” Plaintiffs assert that this phrase refers to the annual payments required under the contract, and that only the annual payments may be used in calculating the amount of principal which has been paid toward the purchase price in effectuating the early deeding of property. We disagree. To give the contract provision at issue the meaning plaintiffs ascribe to it would require our inserting language in the contract which is clearly not there. It is our opinion that based on the contract language and the nature of the undertaking therein declared, the $50,000 down payment was included in the phrase “such land as may then be paid for.” Plaintiffs themselves admit that the $50,000 was to be applied as principal against the total purchase price. Had the parties desired to limit the early deeding of property to land valued at an amount of principal as then paid for, less the $50,000 down payment, such language should have been included in the contract. No such language having been included, we agree with the meaning ascribed to the contract provision by the trial court.

Before we address the issue of whether the trial court erred in finding that the plaintiffs’ failure to deliver the warranty deeds requested by defendants was a breach of the contract, we will first address the issue whether the trial court properly admitted extrinsic evidence in interpreting the contract. Plaintiffs argue that the contract does not completely disclose the agreement between the parties concerning the restriction on early deeding for the sole purpose of building a house. Plaintiffs insist that admission of the extrinsic evidence was necessary for the court to discern the true intent of the parties in providing for early deeding and in limiting early deeding only to land upon which to build a house. Plaintiffs contend that the trial court erred in construing the contract along with the extrinsic evidence to allow early deeding for anything other than to allow the buyers to construct a house and for any tract of land less than what is described in the contract as an entire tract. The Bells argue that the trial court did not find the agreement ambiguous and that the admission of extrinsic evidence was not proper.

The primary object of a court in construing a contract is to give effect to the intention of the parties. (Martindell v. Lake Shore National Bank (1958), 15 Ill. 2d 272, 283, 154 N.E.2d 683, 689.) Generally, the intention of the parties is to be determined from the final agreement executed by them rather than from preliminary negotiations and the construction placed upon the agreement by the parties (Lenzi v. Morkin (1984), 103 Ill. 2d 290, 293, 469 N.E.2d 178, 179; Martindell, 15 Ill. 2d at 283, 154 N.E.2d at 689), but when there is an ambiguity arising from terms of a contract, meaning may be derived from extrinsic facts surrounding formation. Mid-City Industrial Supply Co. v. Horwitz (1985), 132 Ill. App. 3d 476, 482, 476 N.E.2d 1271, 1275; La Throp v. Bell Federal Savings & Loan Association (1977), 68 Ill. 2d 375, 384, 370 N.E.2d 188, 192, cert. denied (1978), 436 U.S. 925, 56 L. Ed. 2d 768, 98 S. Ct. 2818.

As has already been detailed in the beginning of this opinion, the contract provides that the “[b]uyers herein shall have the option as payments are paid upon the entire purchase price *** and that as the [b]uyers herein have paid the annual amount of money upon said contract; said money shall entitle the [bjuyers herein to a Warranty Deed to such land as may then be paid for.” The option provision of the contract further provides that “all costs of deeds and abstracts *** shall be at [b]uyers’ expense; the conveyances selected by the [b]uyers shall be carved out of the total acreage sold.” It is clear that the terms employed in the agreement viewed in their entirety express the parties’ intent that the purchasers would have more than one option to demand warranty deeds as they paid for the land. The option provision refers to more than one deed and one abstract by the use of the plural of those words. The use of the term carved out also evidences the parties’ intent to allow for early deeding of acreage if the purchasers chose to exercise said option and it expresses no restriction as to the amount or location of acreage. The express language of the agreement convinces us that no ambiguity exists. The mere fact that the parties do not agree upon the meaning of the terms of a contract does not create an ambiguity. L.K. Comstock & Co. v. Morse/UBM Joint Venture (1987), 153 Ill. App. 3d 475, 480, 505 N.E.2d 1253, 1256-57.

In view of our finding that the contract is not ambiguous, the court erred in admitting the extrinsic evidence about the circumstances surrounding the negotiation of the contract. We find, however, after reviewing the record and the extrinsic evidence admitted at trial, that the admission of said evidence was harmless error. The evidence consisted of a transcript of a tape-recorded meeting between the Hickoxes and the Bells to discuss the terms of the sale of the Hickox farm, which occurred prior to execution of the contract. Present at that meeting were Wayne and Lucille Hickox, Bill and Barbara Bell, the Hickoxes’ attorney William Kidwell, and his wife, Irma Kidwell. With the consent of all those present, Irma Kidwell recorded a substantial portion of that meeting. References made by the parties at that meeting to early deeding of acreage were as follows:

“MR. BELL: When we get so much paid on the principal, then we can get some land made into our name.
* * *
Lets bring something else up. There are three things that Wayne and Mrs. Hickox have agreed on and Bill didn’t get it on there.
We get so many acres after so many dollars was paid, if we want to build a new house on there, they are not going to let us borrow, money for a house on a contract place. You have to own it. What we discussed was [S]ay we get the 80A paid for. Or the home place paid for, or whatever we got enough principal paid down on would go into our names so we could go ahead with a house.
WKK: Is that satisfactory with you folks[?]
WAYNE: Yes we agreed.
WKK: Let me get this on the record here so I can pick it up. Do you want me to figure the price on 80A or do you want it specified now[?]
MR. BELL: No because we don’t know the place that well.
WKK: Let the contract show that when the buyers have paid a sufficient amount to warrant the conveyance of a Warranty Deed to them that the contract to purchase shall permit such a sale. The -Sellers agree that they will convey by good and sufficient Warranty] Deed such acreage as such payment as been made on contract.
WKK: That is going to put a little more expense on you because you are going to have to carve out whatever acreage you want. Wayne do you want to split the cost of the Abstract to carve it out? Do you or have you said anything about if these folks have that year to or put an option in here about a delay in payment[?]”

Contrary to plaintiffs’ belief, the negotiations that took place between the parties as evidenced by the transcript of the meeting do not conclusively establish that constructing a house was the sole reason that the Bells requested early deeding. It is also clear that the parties did not discuss limiting the early conveyance of acreage to specific tracts.

We find that the contract does not limit the early conveyance of acreage to land necessary to build a house. Nor does the contract restrict early deeding of acreage to entire tracts. As noted supra, defendants paid a sufficient amount of principal to entitle them to an early conveyance of property. It is clear from the face of the contract that defendants were entitled to request the warranty deeds demanded of the Hickoxes, and that the Hickoxes’ failure to deliver the warranty deeds constituted a breach of contract. To state a cause of action for breach of contract, a plaintiff must show (1) the existence of a valid and enforceable contract; (2) the performance of the contract by plaintiff; (3) the breach of the contract by defendant; and (4) a resulting injury to plaintiff. (Allstate Insurance Co. v. Winnebago County Fair Association, Inc. (1985), 131 Ill. App. 3d 225, 233, 475 N.E.2d 230, 236.) A defendant’s failure to comply with the duty imposed by the contract gives rise to the breach. (Allstate Insurance, 131 Ill. App. 3d at 233, 475 N.E.2d at 236.) We agree with the trial court’s finding that plaintiffs’ failure to deliver the warranty deeds requested by defendants was a breach of the contract.

We now turn to the issue raised by the Bells, that is whether the trial court erred in refusing to recognize a forfeiture and termination of the contract. The Bells argue that the default provision of the contract gave them the option to declare the contract forfeited and terminated or to seek specific performance of the contract. It is true that, generally, where a forfeiture has occurred in the manner prescribed in a contract the court will give effect to it. (See, e.g., Eade v. Brownlee (1963), 29 Ill. 2d 214, 219, 193 N.E.2d 786, 789.) However, forfeitures are not favored by courts of equity, and the parties will be relieved from a technical forfeiture if injustice results from its enforcement. (See, e.g., Rose v. Dolejs (1953), 1 Ill. 2d 280, 289-90, 116 N.E.2d 402, 409; Allabastro v. Wheaton National Bank (1979), 77 Ill. App. 3d 359, 366, 395 N.E.2d 1212, 1217; Krentz v. Johnson (1976), 36 Ill. App. 3d 142, 145, 343 N.E.2d 165, 167.) Whether or not a breach of contract is material, thereby discharging the other’s duty to perform, is a question to be decided based upon the inherent justice of the matter. Hanson v. Duffy (1982), 106 Ill. App. 3d 727, 732, 435 N.E.2d 1373, 1378, quoting Leazzo v. Dunham (1981), 95 Ill. App. 3d 847, 850, 420 N.E.2d 851, 854. See also Restatement (Second) of Contracts §241, Comments (1979).

Here the refusal to tender the deeds did not go to the essential purpose of the contract. The refusal of the Hickoxes to execute the warranty deeds requested by the Bells would not have deprived the Bells of possession of the premises. The record reflects that the Bells voluntarily relinquished possession after notice of termination of the contract was served on the Hickoxes. The Hickoxes never refused to accept payments made under the contract, and there was never any attempt by the Hickoxes to preclude the Bells from continuing their farming operations on the land in question. In addition, there was no evidence that the Hickoxes were abandoning the contract. Under the circumstances, the general purpose of the contract could be accomplished without declaring a forfeiture by ordering the Hickoxes to convey the executed warranty deeds requested by the Bells, ordering the payment of any damages sustained by the Bells, and ordering the Bells to make the installment payments due under the contract.

It is well settled that a reviewing court will not disturb the findings of the trier of fact unless clearly against the manifest weight of the evidence. (Ray v. Winter (1977), 67 Ill. 2d 296, 307, 367 N.E.2d 678, 684.) The trial court found that, as the breach of the contract by the Hickoxes was not material, the notice of termination served by the Bells was not effective to rescind or forfeit the contract. We agree with the trial court’s finding that the Bells are entitled to specific performance with regard to their request for warranty deeds. We further agree with the lower court’s finding that the Bells are entitled to possession of the premises described in the contract and to any damages incurred by them as a result of plaintiffs’ breach. As the parties do not raise the issue of whether the damages awarded by the court are proper, we need not address that issue.

The plaintiffs’ final issue on appeal is whether the trial court erred in dismissing the Indiana National Bank as a party defendant. Plaintiffs allege that once the contract was entered into between the Bells and the bank, under which the bank agreed to pay the indebtedness owed under the contract to the Hickoxes, the Hickoxes became third-party beneficiaries of the contract between the Bells and the bank. The Hickoxes argue that their third-party beneficiary status gives them a vested right which cannot be modified without the Hick-oxes’ prior consent.

The courts in Illinois have distinguished between third-party donee beneficiaries and third-party creditor beneficiaries in determining what rights each has with regard to the third-party contract. A donee beneficiary, as distinguished from a creditor beneficiary, is a third party to whom the benefit comes without cost, such as a donation or gift. A creditor beneficiary is a third party to whom a preexisting duty or liability is owed. (Robson v. Robson (N.D. Ill. 1981), 514 F. Supp. 99, 102.) The Hickoxes are categorized as creditor beneficiaries. The courts of this State have consistently held that the third-party beneficiary obtains a vested right as against the promisor, and this right, once given, deprives the promisor of any interest or right in the subject matter of the promise, including the right to alter, rescind or revoke the promise. (Bay v. Williams (1884), 112 Ill. 91, 1 N.E. 340; Conerty v. Richtsteig (1942), 379 Ill. 360, 41 N.E.2d 476; Town & Country Bank v. James M. Canfield Contracting Co. (1977), 55 Ill. App. 3d 91, 370 N.E.2d 630; Pliley v. Phifer (1954), 1 Ill. App. 2d 398, 117 N.E.2d 678.) Because creditor beneficiary cases only involve situations where a preexisting duty or liability is contractually transferred to a new party, there is never any question that the third-party beneficiary’s rights vest as soon as the contract is executed. Robson, 514 F. Supp. at 102; Pliley, 1 Ill. App. 2d at 407, 117 N.E.2d at 682.

The contract between the Hickoxes and the Bells allowed the parties to assign their rights and obligations under the contract. Once the Bells assigned the contract to the Indiana National Bank, the Hickoxes became vested third-party creditor beneficiaries. The original contract did not authorize the assignor or assignee to modify, revoke or otherwise alter the contract. Accordingly, as the Hickoxes never consented to releasing the Indiana National Bank of its obligations, the bank remains bound by its obligations under the contract. Therefore, we find that the trial court erred in dismissing the Indiana National Bank as a party defendant.

The bank contends that even if the Hickoxes are third-party beneficiaries of the agreement entered into between the Bells and the bank, they are beneficiaries of an agreement which by its terms did not preclude modification or reassignment of the agreement. It is the bank’s position that once it assigned the rights and obligations conferred upon it by the Bells to another party, it was absolved of any liability on the original contract between the Hickoxes and the Bells. The Indiana National Bank cites the Restatement (Second) of Contracts section 311 (1979) in support of its theory that the court properly dismissed it as a party defendant. That section provides that, in the absence of language in the contract making the rights of a third-party beneficiary irrevocable, “the promisor and promisee retain the power to discharge or modify the duty by subsequent agreement” until such time as the beneficiary without notice of the discharge or modification, “materially changes his position in justifiable reliance on the promise or brings suit on it or manifests assent to it at the request of the promisor or promisee.” With the exception of Board of Education of Community School District No. 220 v. Village of Hoffman Estates (1984), 126 Ill. App. 3d 625, 467 N.E.2d 1064, which pointed out that apparently the majority of jurisdictions have now adopted the rule set forth in section 311, our research has not revealed any case in Illinois recognizing the application of that section.

In view of our supreme court’s long-standing ruling on the immediate vesting of creditor beneficiaries’ rights, we do not feel free to adopt the position of the Restatement (Second) of Contracts section 311 (1979). However, even if we were to do so, it would not change the result herein. Under the facts of this case, if the plaintiffs were able to plead and prove that they had materially changed their position in justifiable reliance on the promise or that they had assented to it at the request of the Indiana National Bank or the Bells, they would come under the provisions of section 311 of the Restatement. Therefore, even under the bank’s position, we feel that the trial court erred in refusing to allow the plaintiffs to amend their complaint. We reverse the trial court’s order dismissing the Indiana National Bank as a party defendant and remand for proceedings consistent with this opinion.

For the reasons given, the judgment of the circuit court is affirmed in part and reversed in part and remanded.

Affirmed in part; reversed in part and remanded.

RARICK and GOLDENHERSH, JJ., concur.


author: JUSTICE HARRISON

text:
    JERRY PAYNE et al., Plaintiffs-Appellants, v. COUNTRY MUTUAL INSURANCE COMPANY, Defendant-Appellee.
    Fifth District
    No. 5—88—0792
    Opinion filed March 21, 1990.

      Joseph A. Bassy, of Ripplinger & Dixon, of Belleville, for appellants.
    Terry R. Black, of Campbell, Black, Camine & Hedin, P.C., of Mt. Vernon, for appellee.
   JUSTICE HARRISON

delivered the opinion of the. court:

Plaintiffs, Jerry Payne and Deborah Payne, appeal from the order of the circuit court of Jefferson County which dismissed with prejudice certain portions of their three-count complaint and dismissed without prejudice the remainder of the complaint against defendant, Country Mutual Insurance Company. The only issue presented for review is whether determinations made in a prior adjudication involving plaintiffs estop them from seeking recovery of insurance proceeds for the loss of personal property.

In August 1981, Jerry and Deborah Payne filed for bankruptcy under chapter VII (11 U.S.C. §701 et seq. (1989)), listing their personal property and claiming as exempt their clothing, household goods and furnishings and appliances. On or about December 15, 1981, fire destroyed the Paynes’ residence and virtually all of their personal property. The Paynes’ homeowners insurance, with Country Mutual, provided for payment of the replacement cost of the destroyed goods. The Paynes filed a claim with Country Mutual, presenting a detailed list of the personal property damaged or destroyed in the fire. An investigation conducted by Country Mutual showed the value of the personal property to be $17,389.47, $5,000 of which was paid directly to the Paynes.

After discovering the existence of the insurance proceeds, the trustee in bankruptcy, Charles R. Wood, Jr., instituted an action seeking to make them part of the bankruptcy estate. On January 4, 1983, the United States Bankruptcy Court for the Southern District of Illinois ordered Country Mutual to pay the Paynes $1,114.29 of the remaining insurance proceeds, and to pay the balance to the trustee. The order of the bankruptcy court was affirmed by the United States District Court for the Southern District of Illinois. The United States Court of Appeals for the Seventh Circuit, in Payne v. Wood (7th Cir. 1985), 775 F.2d 202, cert. denied (1986), 475 U.S. 1085, 89 L. Ed. 2d 722, 106 S. Ct. 1466, affirmed in part and remanded with instructions for an adjustment in the amount of the proceeds awarded to the Paynes.

On March 2, 1988, the Paynes filed the instant complaint, alleging that Country Mutual had wrongfully denied coverage for the loss of personal and real property suffered by the Paynes as a result of the fire. Country Mutual filed a motion to dismiss the complaint, which alleged, in part, that collateral estoppel barred any attempt by the Paynes to recover insurance proceeds for lost personal property, and cited for support the order of the bankruptcy court and the subsequent affirmance by the court of appeals. Following a hearing on the motion, the circuit court, on December 1, 1988, issued the order herein appealed, which stated in pertinent part: “All references which involve the attempted recovery of insurance proceeds based upon the alleged loss of personal property are dismissed with prejudice on the basis of collateral estoppel.”

The doctrine of collateral estoppel applies when a party or someone in privity with a party participates in two separate and consecutive cases arising on different causes of action and some controlling fact or question material to the determination of both causes has been adjudicated against that party in the former action by a court of competent jurisdiction. (Housing Authority v. YMCA (1984), 101 Ill. 2d 246, 252, 461 N.E.2d 959, 962.) Here, plaintiffs assert that collateral estoppel does not bar the present action because the question decided in the prior case — how the insurance proceeds were to be divided between the Paynes and the trustee in bankruptcy — is not the same question raised herein. Plaintiffs characterize the present action as one which “seeks to determine the Paynes’ rights under the original policy of insurance as well as to determine the propriety of Country Mutual’s conduct in alerting the Trustee in Bankruptcy of the existence of the proceeds.” This characterization, however, finds no basis in the facts presented by plaintiffs’ pleadings.

Plaintiffs’ complaint essentially alleges a contract of insurance, a fire loss, and a failure to pay. At the hearing on defendant’s motion to dismiss, the following colloquy occurred between the court and plaintiffs’ counsel, Joseph Bassy:

“THE COURT: If I understood you correctly, part of your argument is that what the Defendant did in notifying the bankruptcy trustee of the funds was improper and that that is the foundation of your claim for the additional funds for personal property?
MR. BASSY: Right. That’s correct.
THE COURT: Was that plead [sic] in your complaint some place?
MR. BASSY: Yes. We have here in — -well, we — basically, we don’t plead that. *** [W]e discuss in *** paragraph 12 under all three counts that the Defendant [has] denied coverage under §2 of coverage D despite Plaintiffs’ demand based on the expiration of 180 days from the date of insureds’ loss, which expiration was precipitated by the Defendant’s own conduct and breach of contract. The conduct we’re referring to there is [defendant] notifying the bankruptcy trustee that there were proceeds to be made out ***.
THE COURT: All right. Well [sic], probably, drop this line of inquiry since I don’t see much pleading behind that.”

A motion to dismiss does not admit conclusions of law nor conclusions of fact unsupported by allegations of specific fact upon which such conclusions rest. (Willis v. Ohio Casualty Co. (1981), 101 Ill. App. 3d 1099, 1105, 428 N.E.2d 1061, 1067.) Thus, where the present suit, based on the facts well-pled, and, indeed, according to plaintiffs’ brief, is one “seeking recovery of insurance proceeds for loss of personal property,” and the entitlement of plaintiffs to said proceeds was the controlling question adjudicated in the former bankruptcy action, collateral estoppel applies.

In Kramer v. Chicago Title & Trust Co. (1979), 69 Ill. App. 3d 1015, 387 N.E.2d 1105, the reviewing court held that where prior litigation determined that vendors of certain real estate, and not plaintiffs who were in default, were entitled to funds deposited with escrowee, plaintiff was estopped from claiming in a later suit that escrowee, which paid sums to vendors in compliance with the previous court order, was obligated instead to pay money to plaintiff. Similarly here, the issue of who was entitled to the $12,389.47 in insurance proceeds for personal property lost in the fire was determined in the prior bankruptcy litigation. Plaintiffs are thus bound by the bankruptcy and appeals courts’ determination that the trustee was entitled to a portion of the proceeds as property of the estate. Therefore, under Kramer, even if plaintiffs’ complaint did sufficiently articulate the issue of defendant’s conduct, plaintiffs are estopped from claiming that Country Mutual, which paid the trustee in compliance with court order, was obligated instead, by the insurance contract provisions, to pay the money to plaintiffs.

For the foregoing reasons, the order of the circuit court of Jefferson County is affirmed.

Affirmed.

HOWERTON and GOLDENHERSH, JJ., concur.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. MARK MARKOVICH, Defendant-Appellant.
    Fifth District
    No. 5—88—0386
    Opinion filed March 26, 1990.

      Daniel M. Kirwan and Rita K. Peterson, both of State Appellate Defender’s Office, of Mt. Vernon, for appellant.
    Charles Garnati, State’s Attorney, of Marion (Kenneth R. Boyle, Stephen E. Norris, and Raymond F. Buckley, Jr., all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE CHAPMAN

delivered the opinion of the court:

The defendant, Mark Markovich, was found guilty of violation of bail bond (Ill. Rev. Stat. 1987, ch. 38, par. 32—10) in a bench trial. He was sentenced to one year of conditional discharge, a fine of $500 plus costs, and restitution in the amount of $658.75. Defendant appeals his conviction, alleging that the sentencing provision under the violation of bail bond statute is unconstitutional, and that the trial court abused its discretion in imposing a $500 fine, or in the alternative, that defendant is entitled to a $100 credit toward his fine because he spent 20 days in jail prior to his release on bond.

The record shows that defendant was charged with two counts of criminal sexual assault (Ill. Rev. Stat. 1985, ch. 38, par. 12—13), and two counts of aggravated criminal sexual assault (Ill. Rev. Stat. 1985, ch. 38, par. 12—14), which are Class 1 and Class X felonies, respectively. Defendant was admitted to bail on the charges on October 3, 1986, for appearance in circuit court on January 5, 1987. Defendant failed to surrender himself within 30 days following his appearance date, forfeited his bail and was thereafter arrested and charged with violation of bail bond. It is defendant’s conviction on the charge of violation of bail bond which is the subject of this appeal.

The State contends at the outset that defendant lacks standing to raise this issue since defendant received only a one-year term of conditional discharge and is, therefore, unaffected by the alleged unconstitutional provision. A party has standing to challenge the constitutionality of a statutory provision if he is directly affected as one “within the class aggrieved by the alleged unconstitutionality.” (People v. Mayberry (1976), 63 Ill. 2d 1, 6, 345 N.E.2d 97, 100, cert. denied (1976), 429 U.S. 828, 50 L. Ed. 2d 92, 97 S. Ct. 87; People v. Wagner (1982), 89 Ill. 2d 308, 311, 433 N.E.2d 267, 269.) Although defendant received a term of conditional discharge, he was subject to the sentencing scheme of section 32 — 10 and was convicted of a Class 1 felony. He clearly has standing to challenge the validity of the statute.

Defendant contests the constitutionality of the sentencing provision of the violation of bail bond statute, which reads:

“Violation of bail bond. Whoever, having been admitted to bail for appearance before any court of this State, incurs a forfeiture of the bail and willfully fails to surrender himself within 30 days following the date of such forfeiture, commits, if the bail was given in connection with a charge of felony or pending appeal or certiorari after conviction of any offense, a felony of the next lower Class or a Class A misdemeanor if the underlying offense was a Class 4 felony; or, if the bail was given in connection with a charge of committing a misdemeanor, or for appearance as a witness, commits a misdemeanor of the next lower Class, but not less than a Class C misdemeanor.” (Ill. Rev. Stat. 1987, ch. 38, par. 32—10.)

Defendant argues that the sentencing scheme of section 32 — 10 punishes the failure of a defendant to appear in court more severely than it does much more serious crimes. Defendant refers, for example, to the crime of escape from a penal institution by a person convicted of a felony (Ill. Rev. Stat. 1987, ch. 38, par. 31—6(a)), which is a Class 2 felony. Defendant contends that a person convicted of a violation of section 31 — 6(a) can never be charged with more than a Class 2 felony, while a person convicted of violation of bail bond can be found guilty of a Class X felony, depending on what the underlying offense is. This, defendant argues, is disproportionate sentencing and an unconstitutional violation of due process.

Defendant cites People v. Bradley (1980), 79 Ill. 2d 410, 403 N.E.2d 1029, in support of his contention that the alleged sentencing disparity of section 32 — 10 results in a denial of due process. In Bradley the Illinois Supreme Court reversed the conviction of several defendants for possession of a schedule IV controlled substance because that offense (Ill. Rev. Stat. 1977, ch. 56½, par. 1402(b)) was classified as a Class 3 felony, whereas delivery of -the same schedule controlled substance was only a Class 4 felony. The supreme court reasoned that the greater sentence for possession constituted a denial of due process. The court premised its reasoning on the legislature’s intent as expressed in the Illinois Controlled Substances Act (Ill. Rev. Stat. 1977, ch. 56½, par. 1100) not to treat the unlawful user with the same severity as the traffickers of controlled substances.

Unlike the sentencing scheme in Bradley, the sentencing provision at issue does not violate any express legislative purpose. On the contrary, the legislative history of section 32 — 10 illustrates that the purpose behind the act is to “increase the penalties because the penalties *** should be more severe for bond jumping of more severe penalties.” (82d Ill. Gen. Assem., House Proceedings, March 18, 1981, at 9 (statements of Representative Cullerton on third reading of House Bill 149).) The Constitution does not require things which are different in fact or opinion to be treated in law as though they were the same. (Tigner v. State of Texas (1940), 310 U.S. 141, 147, 84 L. Ed. 1124, 1128, 60 S. Ct. 879, 882.) The legislature apparently did not regard the threat which escapees pose to be the same as the threat posed by persons who violate bail. Because it is easier for a person on bail to forfeit bail and refuse to appear than a person who is incarcerated to escape, the legislature may have reasonably determined that deterrence of the former crime calls for a greater penalty.

In view of the foregoing we cannot say that the legislature did not act rationally when it imposed the sentencing scheme under section 32 — 10, and we hold that the sentencing scheme of section 32 — 10 does not violate the due process guarantees of the United States and Illinois Constitutions.

Defendant was initially admitted to bail on charges of Class 1 and Class X felonies. At the sentencing hearing the court considered defendant’s violation of section 32 — 10 a Class 1 felony. It is urged by defendant that his conviction should be reduced to a Class 2 felony. Defendant insists that section 32 — 10 is capable of two constructions since, as in the instant case where defendant was charged with two crimes, it is unclear under the violation of bail statute which underlying offense determines the classification of the bail violation crime. Defendant argues that since a criminal statute should be strictly construed in favor of the accused (People ex rel. Gibson v. Cannon (1976), 65 Ill. 2d 366, 370, 357 N.E.2d 1180, 1182), that construction which finds defendant guilty of a Class 2 felony should be adopted.

“The cardinal rule of all statutory construction, to which other rules are subordinate, is that the true intent and meaning of the legislature must be ascertained and given effect. [Citation.] The language used in a statute is the primary source for determining this intent, and where that language is certain and unambiguous, the proper function of the courts is to enforce the statute as enacted.” (General Motors Corp. v. Industrial Comm’n (1975), 62 Ill. 2d 106, 112, 338 N.E.2d 561, 564.) The clear and obvious meaning of the statutory provision defendant refers to is that the defendant who violates his bail under section 32 — 10 “commits, if the bail was given in connection with a charge of felony *** a felony of the next lower Class.” (Ill. Rev. Stat. 1987, ch. 38, par. 32—10.) Here the defendant’s bail was given in connection with charges of both a Class X and a Class 1 felony. The statute is absent any condition or limitation that where there are multiple underlying charges, the court is bound to charge the defendant with a felony of the next lower class of the lesser offense. The legislative intent should be sought primarily from the language used in the statute. Where the language of the act is certain and unambiguous, the only legitimate function of the courts is to enforce the law as enacted. (Certain Taxpayers v. Sheahen (1970), 45 Ill. 2d 75, 84, 256 N.E.2d 758, 764.) We, therefore, hold that the circuit court acted permissibly in imposing sentence on the next lower class felony of the underlying Class X felony.

Defendant next argues on appeal that the trial court abused its discretion in imposing a $500 fine to be paid out of defendant’s bail bond deposit. Defendant claims error in that the court did not consider that a third party had posted the bail and did not consider the financial resources and future ability of defendant to pay the fine. At the sentencing hearing defendant testified that his grandmother posted his $2,000 bond. He further testified that he has not been able to repay his grandmother any portion of the money. Other than defendant’s testimony, the record does not indicate that in sentencing the defendant the court took into consideration that the bond money had been posted by a third party. While the courts are not unsympathetic to the circumstances of third parties, such as defendant’s grandmother in this case, the statutory scheme does not direct the judiciary to conduct hearings to consider or determine the interest of defendants or interested third parties in bail bond deposits. (People v. Owens (1988), 174 Ill. App. 3d 156, 161, 528 N.E.2d 446, 448.) Under Illinois law, bail posted under the 10% deposit provision (Ill. Rev. Stat. 1987, ch. 38, par. 110—7) is conclusively presumed to be posted by the defendant and can be used to pay fines despite third-party claims on the funds. (People v. Nicholls (1978), 71 Ill. 2d 166, 177, 374 N.E.2d 194.) Although we find no error where the trial court in sentencing defendant presumably failed to consider that a third party had posted defendant’s bail, this is not to say that no error was committed by the court in failing to consider this fact in determining defendant’s financial ability to pay the fine.

The State relies on People v. Nicholls in arguing that defendant’s financial ability to pay a fine is irrelevant where a cash bond has been posted and is sufficient to cover such fine. In Nicholls our supreme court interpreted section 110 — 7(h) to allow cash bail deposits to be used to pay the costs of an unsuccessful appeal. The court stated that whether or not the cash received as bail is actually the property of the defendant is irrelevant. Contrary to the State’s argument, the Nicholls court did not hold that where a cash bail is deposited on behalf of a defendant, the trial court is free to disregard the defendant’s financial ability to pay a fine. Section 5 — 9—1(d) of the Unified Code of Corrections (Ill. Rev. Stat. 1987, ch. 38, par. 1005—9—1(d)) provides that “[i]n determining the amount and method of payment of a fine, the court shall consider the financial resources and future ability of the offender to pay the fine.” The intention of the legislature in enacting section 5 — 9—1(d) would be contravened if the trial court failed to consider defendant’s financial ability to pay a fine simply because a cash bond was deposited. The State argues that the court did consider the defendant’s financial resources and future ability to pay the fine when it considered defendant’s presentence investigation report. The State contends that, based on the report and the defendant’s testimony at the sentencing hearing, the trial court did not abuse its discretion in imposing the fine.

The presentence investigation report indicates that defendant is a high school graduate and currently attends college, where he is pursuing an associate’s degree in data processing. Defendant’s education is being financed by a job training program of Illinois. The report further shows that defendant is 32 years of age, he lives with his grandmother and has never been married. Defendant receives general assistance of $144 per month and has no checking or savings accounts. Although currently unemployed, defendant states in the report that he worked for Penn Aluminum from 1984 to 1986 earning $7.85 an hour. He states that he worked from 1978 to 1984 as a construction worker. The report listed defendant’s assets as consisting of a 1973 Plymouth station wagon. Defendant’s only liability is a $900 bank loan.

Section 5 — 9—1, under which defendant was fined, creates no presumption that defendant has the financial ability to pay and requires the court to inquire into a defendant’s actual ability to pay before imposing a fine. (People v. Gaines (1982), 104 Ill. App. 3d 974, 980, 433 N.E.2d 970, 974.) We recognize that a trial judge need not specifically state that the defendant was determined to have the financial resources and ability to pay a fine and that such a finding is implicit in the imposition of a fine where the judge is aware of the facts which support such a determination. (People v. Miller (1983), 120 Ill. App. 3d 495, 504-05, 457 N.E.2d 1373, 1381; People v. Jumper (1983), 113 Ill. App. 3d 346, 353, 447 N.E.2d 531, 536; People v. Bishop (1980), 81 Ill. App. 3d 521, 524, 401 N.E.2d 648, 650.) We believe that the facts before the trial court were sufficient to support a finding that defendant had the financial ability to pay a $500 fine. Accordingly, we find no error in the circuit court’s order directing the $2,000 bond posted to be applied to the fine against defendant.

Subsequent to sentencing, defendant filed a corrected petition for appointment of State Appellate Defender. In addition to the assets and liabilities listed in the presentence investigation report, this petition shows defendant’s assets as including a 1947 Harley Davidson motorcycle valued at $500, and also listed defendant as a recipient of public aid in the amount of $87 per month. Liabilities listed included a $3,000 debt to defendant’s grandmother and a $5,000 debt to defendant’s parents for amounts borrowed to pay for legal expenses connected with this cause.

Defendant’s argument on appeal assumes that the trial court considered these assets and liabilities in determining defendant’s financial ability to pay the fine. The State argues that since the corrected petition for appointment of appellate defender was filed after sentence was imposed, it was not considered by the trial court and should not be considered on appeal. Defendant failed to object to the court imposing sentence without having notice of the assets and liabilities shown in the petition. Defects in a presentence investigation report may be waived. (People v. Gacy (1984), 103 Ill. 2d 1, 107, 468 N.E.2d 1171, 1218, cert. denied (1985), 470 U.S. 1037, 84 L. Ed. 2d 799, 105 S. Ct. 1410; People v. Meeks (1980), 81 Ill. 2d 524, 533, 411 N.E.2d 9, 14.) We find defendant has waived consideration of the alleged deficiency of the presentence investigation report.

Defendant finally argues that he is entitled to a $100 credit toward his fine because he spent 20 days in jail prior to his release on bond. The State concedes the validity of defendant’s argument. Defendant’s arrest warrant for violation of bail bond indicates it was served on June 3, 1987. On June 22, 1987, defendant posted bond. We conclude that pursuant to section 110 — 14 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1987, ch. 38, par. 110—14), defendant is entitled to a $100 credit toward his fine. People v. Johns (1984), 130 Ill. App. 3d 548, 474 N.E.2d 739.

The judgment of the circuit court of Williamson County is affirmed and the cause remanded with directions as stated in this opinion.

Affirmed and remanded with directions.

LEWIS, P.J., and RARICK, J, concur.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. LARRY W. ROESLER, Defendant-Appellant.
    Fifth District
    No. 5—89—0031
    Opinion filed March 27, 1990.

      Braud/Warner, Ltd., of Rock Island (Duane Thompson, of counsel), for appellant.
    Timothy L. Fornes, Special Prosecutor, of Harrisburg (Kenneth R. Boyle, Stephen E. Norris, and Debra Buchman, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE RARICK

delivered the opinion of the court:

Defendant, Larry W. Roesler, was charged in the circuit court of Saline County with two counts of rape and one count of deviate sexual assault. Defendant entered pleas of guilty on all three charges and thereafter was sentenced to three consecutive 60-year terms of imprisonment. After sentencing, defendant filed a motion to withdraw his guilty pleas or, in the alternative, a motion for reduction of sentence. Both motions were denied. Defendant appeals from the denial of these motions.

On September 4, 1979, at approximately 10:30 p.m., Roesler went to the home of the victim, a 73-year-old widow who lived alone. Roesler gained entry by claiming his stepfather, who also happened to be the victim’s cousin, had told him she would let him use the phone. Once inside, Roesler pulled a knife and forced her into the bedroom, where he removed her clothes and tied her to the bed. Throughout the night and into the early hours of the next morning, Roesler repeatedly raped and sodomized the victim. During the attacks, which lasted over five hours, she suffered a broken rib which separated from her spine. When Roesler eventually left, he did not untie her. After freeing herself, the victim called the police and later that day identified Roesler in a photo lineup.

On September 6, 1979, Roesler surrendered to the Eldorado police department, and on November 8, 1979, he pleaded guilty to all three charges. Subsequently, the court ordered a presentence investigation (PSI). The PSI revealed that Roesler had several juvenile offenses. Likewise, in 1976 he pleaded guilty to rape by threat in the State of California, and was sentenced to six months’ to life imprisonment. He served less than three years of the sentence and was on parole when the crimes now in question occurred. The PSI also revealed that Roesler had a very poor relationship with his stepfather, and he had a long history of drug and alcohol abuse.

The court sentenced Roesler to three consecutive terms of 60 years’ imprisonment, the maximum sentence available. The court cited Roesler’s prior history of delinquency and criminal activity, the need to deter others from, committing the same offenses, and the nature of defendant’s conduct, which caused serious harm.

After sentencing, Roesler filed a motion to withdraw his guilty plea. After eight years, during which he was appointed several different attorneys, an amended motion to withdraw pleas or, in the alternative, for reduction of sentence was filed on August 5, 1988. The court denied Roesler’s motions, and this appeal follows.

It is well settled that leave to withdraw a guilty plea is not granted as a matter of right, but as required to correct manifest injustice under the facts involved. (People v. Hillenbrand (1988), 121 Ill. 2d 537, 545, 521 N.E.2d 900, 903.) The decision of the trial court as to whether a guilty plea may be withdrawn will not be disturbed on appeal unless it appears that the guilty plea was entered through a misapprehension of facts or law, or that there is doubt of the guilt of the accused and the ends of justice would better be served by submitting the case to a trial. (Hillenbrand, 121 Ill. 2d at 545, 521 N.E.2d at 903.) Furthermore, it is the defendant’s burden to demonstrate that withdrawal of the guilty plea is necessary to correct a manifest injustice. People v. Seidel (1985), 138 Ill. App. 3d 616, 618, 485 N.E.2d 1330, 1332; People v. Nichols (1981), 96 Ill. App. 3d 354, 355-56, 420 N.E.2d 1166, 1168.

Defendant’s first argument is that he entered his guilty pleas based upon a misapprehension of law. In support of this contention, defendant claims his appointed counsel advised him that he would not be eligible for an extended-term sentence as is provided in section 5— 5 — 3.2 of the Unified Code of Corrections (Ill. Rev. Stat. 1979, ch. 38, par. 1005—5—3.2). Defendant claims, in fact, his counsel told him to disregard any admonishments the court gave him concerning the extended term. He also testified at the hearing on his motion to withdraw that his attorney estimated his sentence would be 15 years’ imprisonment. And, in a signed affidavit, defendant claims six years’ imprisonment was the sentence his attorney estimated.

A misapprehension as to sentencing alternatives may render a guilty plea involuntary if the defendant was actually unaware of the possible punishments. (People v. Kraus (1984), 122 Ill. App. 3d 882, 888, 461 N.E.2d 1036, 1041; People v. Turner (1982), 111 Ill. App. 3d 358, 371, 443 N.E.2d 1167, 1178.) However, if the defendant has been admonished thoroughly by the court, a guilty plea cannot be withdrawn because he subjectively believed he would receive a certain sentence. Turner, 111 Ill. App. 3d at 371-72, 443 N.E.2d at 1178; People v. Cohn (1980), 91 Ill. App. 3d 209, 214-15, 414 N.E.2d 543, 547-48.

Defendant’s counsel, Frederick Turner, testified at the hearing that he had advised Roesler an extended term was a possibility. He also denied he promised defendant he would receive no more than six years in prison. This testimony is made more believable by Turner’s lengthy arguments against the extended term at the sentencing hearing. It stands to reason that had Turner believed the extended term was not a possibility, he would not have spent several pages of testimony arguing against it. Likewise, the inconsistency in defendant’s affidavit and testimony at the motion hearing makes his version suspect. At any rate, a guilty plea made in reliance upon the advice of counsel estimating a sentence to be expected is not involuntary. People v. Woods (1985), 134 Ill. App. 3d 294, 300, 480 N.E.2d 179, 183; People v. Willis (1977), 50 Ill. App. 3d 498, 504, 365 N.E.2d 597, 602.

Defendant next claims he did not understand the court’s admonishments concerning the possibility of the extended term because the court gave a lengthy admonishment, or “dissertation,” as the defendant refers to it. However, within that admonishment, the court referred to the extended term three times, the last time just moments before the court asked defendant if he understood. Defendant responded that he did understand the sentencing possibilities. The record also indicates the court was careful in assuring defendant understood the nature of the charges and the nature of the rights he was relinquishing by pleading guilty.

Defendant also contends it was error that the court did not define the phrase “exceptionally brutal or heinous behavior indicative of wanton cruelty” as contained in section 5 — 5—-3.2 of the Uniform Code of Corrections (Ill. Rev. Stat. 1979, ch. 38, par. 1005—5—3.2) and that nowhere was defendant advised that these terms applied to him or the crimes charged. This argument is without merit. The court advised Roesler the sentencing guidelines may apply to him and it would be within the sole discretion of the court to determine whether or not they would apply to defendant. Moreover, a sentencing judge is not required to inform a defendant of factors in aggravation justifying an extended term before accepting a guilty plea. (People v. Kane (1986), 140 Ill. App. 3d 928, 930, 489 N.E.2d 500, 502.) Likewise, defendant now contends he was coerced into pleading guilty by family pressure brought on by community harassment. Again, the trial court took great pains to insure defendant’s plea was not coerced, asking him three times if the plea was voluntary. The court substantially complied with Supreme Court Rule 402 (107 Ill. 2d R. 402) by advising him of his rights, by insuring that the plea was voluntary, and by informing defendant of the minimum and maximum penalties and their possible application to him. See People v. McCoy (1979), 74 Ill. 2d 398, 402-03, 385 N.E.2d 696, 698-99.

Defendant next argues he should have been allowed to withdraw his pleas because he had a defense worthy of consideration. According to his affidavit and testimony, he had consumed a pint and a half of wine, hashish and cannabis, rendering him excessively intoxicated. Section 6 — 3 of the Criminal Code of 1961 (Ill. Rev. Stat. 1979, ch. 38, par. 6—3) provides a defense of intoxication in certain instances. However, courts have consistently held this defense applies only to specific intent-crimes. (People v. Rosas (1981), 102 Ill. App. 3d 113, 429 N.E.2d 898; People v. Harkey (1979), 69 Ill. App. 3d 94, 386 N.E.2d 1151.) Since rape is a general intent offense, the voluntary intoxication defense is not available to defendant. People v. Hunter (1973), 14 Ill. App. 3d 879, 885, 303 N.E.2d 482, 486.

Moreover, voluntary intoxication must be “so extreme as to entirely suspend the power of reason.” (See People v. Mikel (1979), 73 Ill. App. 3d 21, 26, 391 N.E.2d 550, 554. See also People v. Lucas (1989), 132 Ill. 2d 399, 435, 548 N.E.2d 1003, 1021.) Defendant recalls noting the time as he went to and from the victim’s home. He recalled specifically what drugs and alcohol he consumed and at what times he started drinking and what time he stopped. When the record indicates that defendant acted with any purpose or rationality, the defense is unavailable. (People v. Nichols (1981), 96 Ill. App. 3d 354, 359, 420 N.E.2d 1166, 1170.) Here, defendant’s ability to recall details supports the trial court’s denial of withdrawal of pleas based on this argument. See People v. Madej (1985), 106 Ill. 2d 201, 216-17, 478 N.E.2d 392, 398-99.

Defendant also contends that the trial court abused its discretion by relying on the PSI as the only evidence of aggravation. As we noted earlier, the trial court relied on other factors, namely the defendant’s conduct, which caused serious harm, and the need to deter others. However, the State is correct in its contention that the trial court must consider the PSI when imposing a sentence. (People v. Testa (1984), 125 Ill. App. 3d 1039, 1049, 466 N.E.2d 1126, 1134-35.) In addition, determination of an extended-term sentence is within the sound discretion of the trial court and the court can exercise wide discretion as to the type of evidence it uses to assist in sentencing. See People v. La Pointe (1981), 88 Ill. 2d 482, 431 N.E.2d 344.

In Testa, the defendant argued the court improperly considered the PSI when sentencing him because it had not been admitted into evidence, nor had the State offered any other evidence in aggravation. The court rejected defendant’s claim, holding the State’s election not to introduce evidence in aggravation “did not affect the court’s consideration of the PSI, mandated pursuant to statute.” (Testa, 125 Ill. App. 3d at 1049, 466 N.E.2d at 1134.) The appellate court upheld the extended-term sentence.

In a related argument, defendant claims that although the PSI contained reports of his alcohol and drug abuse as well as his very poor relationship with his stepfather, this information was not formally introduced into evidence apart from the PSI, and the trial court did not consider them as factors in mitigation. We know of no such requirement. And, as noted above, the court must consider the PSI when sentencing. Absent an indication to the contrary, it will be presumed that a trial court has considered any mitigation evidence if it has articulated any aggravating factors. (People v. Ulmer (1987), 158 Ill. App. 3d 148, 151, 510 N.E.2d 1296, 1298-99.) In addition, the trial court need not recite every factor it considered. (People v. Meeks (1980), 81 Ill. 2d 524, 534, 411 N.E.2d 9, 14.) Here, the court listed the factors in mitigation as provided in section 5 — 5—3.1 of the Uniform Code of Corrections (Ill. Rev. Stat. 1979, ch. 38, par. 1005—5—3.1), and stated whether or not each factor applied, indicating that it did consider mitigation.

In addition, defendant claims he was not afforded an opportunity to read the PSI. Although a deficiency in a presentence report is waived by a failure to object (Meeks, 81 Ill. 2d at 533, 411 N.E.2d at 14), defendant contends that since he did not read the report, he could not properly object to its contents. Attorney Turner testified at the motion hearing it would have been customary procedure to show the PSI to clients, though he had no personal recollection as to whether he did or did not in this instance. At the sentencing hearing, Turner said defendant had read the report. The trial court has the responsibility of weighing the witnesses’ credibility, and absent an abuse of discretion, we cannot disturb that court’s determination. People v. Leggett (1971), 2 Ill. App. 3d 962, 965, 275 N.E.2d 651, 653.

Defendant next argues since the crimes to which he pleaded guilty are by their very nature brutal. and heinous, the State must prove behavior beyond what is already, inherent in the crime. However, the determination of what constitutes “heinous behavior” is within the discretion of the trial court. A reviewing court must give great deference to the trial court’s determination and will not modify or vacate a sentence absent abuse of discretion. (Testa, 125 Ill. App. 3d at 1050, 466 N.E.2d at 1135; People v. Jackson (1984), 122 Ill. App. 3d 166, 169, 460 N.E.2d 904, 907.) In Testa, defendant argued his conduct was neither brutal nor heinous since he did not carry a weapon or verbally threaten the victim’s life. Likewise, in Jackson, there was no weapon, no express threats to the victim’s life, and no serious physical injury. The appellate court in both cases found no abuse of discretion and upheld both extended terms. Here, defendant carried a knife. When the victim told him he was hurting her, he threatened her with it. The victim suffered a broken rib, and she no doubt suffered great emotional injury, which a sentencing court may consider. (See Jackson, 122 Ill. App. 3d at 170, 460 N.E.2d at 907.) We find no abuse of the trial court’s discretion in finding defendant’s behavior to be brutal and heinous under these circumstances. We have held consistently that it is not our function to serve as a sentencing court. (See, e.g., People v. Sullivan (1989), 183 Ill. App. 3d 175, 181, 538 N.E.2d 1376, 1380.) Although the sentences imposed here are the maximum allowable by statute, under the facts presented on the record before us, we simply can find no abuse of any discretion whatsoever. See People v. Cox (1980), 82 Ill. 2d 268, 279-80, 412 N.E.2d 541, 547; People v. Perruquet (1977), 68 Ill. 2d 149, 154-56, 368 N.E.2d 882, 884-85.

For the foregoing reasons, the judgment of the circuit court of Saline County is affirmed.

Affirmed.

WELCH and CHAPMAN, JJ., concur.