author: Mr. JUSTICE DIXON Mr. JUSTICE THOMAS J. MORAN,

text:
    Oscar Patrick, Plaintiff-Appellant, v. Burgess-Norton Manufacturing Company, Defendant-Appellee.
    (No. 73-195;
    Second District (2nd Division)
    February 14, 1975.

      Rehearing denied March 25, 1975.

    T. MORAN, J., dissenting.
    John G. Phillips, of Chicago (Sidney Z. Karasik, of counsel), for appellant.
    Gates W. Clancy, of Geneva, for appellee.
   Mr. JUSTICE DIXON

delivered the opinion of the court:

This is an appeal from a final order denying plaintiff’s petition to set aside a judgment entered by the Circuit Court of Kane County. Plaintiff’s counsel had failed to appear for trial because he was engaged in the trial of another cause in Cook County.

The lawsuit was filed in 1959. On March 15, 1963, it was dismissed for want of prosecution without notice to plaintiff. Plaintiff filed a new complaint within 1 year, and this complaint was dismissed. Plaintiff appealed, and on March 26, 1965, this court reversed and remanded with directions to reinstate the cause. The opinion of the court appears in abstract form in 56 Ill.App.2d 145. On July 29, 1965, the cause was reinstated in the circuit court. After completion of discovery, plaintiff appeared on December 26, 1972, and advised the court that he was ready for trial. The case was never prettied but was placed on the master trial calendar. On the 5th of February, 1973, there was a trial call, and an order was entered setting the case for trial on February 13, 1973, at 10 A.M. Plaintiff’s case was Number 90 on a trial call of 91 cases. On February 9, plaintiff’s counsel began trial of another matter in Chicago and remained on trial until February 17. On February 13 he was notified that this case was up for trial and the court would hold it for trial until 1:30 P.M. that day. At 1:25 P.M. plaintiff’s attorney reached the trial judge and explained that he was the only attorney in the case and that he was engaged on trial. The trial judge insisted that the attorney either be there or engage someone else. At 1:30 P.M., the trial court proceeded to empanel a jury and to hear the matter ex parte. On a verdict for defendant, the judge entered judgment for defendant as of that afternoon.

On March 6, 1973, plaintiffs counsel prepared a verified petition to set aside the judgment. The petition set forth the above facts. A hearing was held on March 12, 1973, and the trial court denied the petition. This appeal is from that denial.

The sworn petition also recites the substance of a conversation had with defendant’s attorney, Gates W. Clancy, prior to February 5, and an agreement in general not to seek an immediate trial date because of a problem of making service on a third-party defendant and Clancy’s assertion of having approximately 13 other cases on the trial call ahead of the instant case. This conversation was not only never denied,'but the defense attorney who appeared at the hearing stated that on February 1 or 2 Mr. Phillips “related to me that he had some land of conversation with Mr. Clancy about continuing the trial.” This attorney attended the trial call of February 5, and informed the court that Mr. Phillips would like the case continued. The court then set the trial for February 13. The defense attorney states that he called Mr. Phillip’s office and left a message with a girl that the case was set for February 13. The verified petition denies any knowledge of this phone call and has also attached two letters about the case, one dated February 5 and one dated February 6 from the office of Gates W. Clancy in which there was no mention of the Feb. 13 trial date.

It was further shown that plaintiff had not previously requested any continuances or postponements of the trial.

Did plaintiffs attorney have grounds for a reasonable belief that trial was not imminent and that he could prepare for the Cook County trial which commenced on February 9, and was the fact that he was on trial in Cook County good grounds for continuance? Plaintiff’s attorney did not attend the trial call.

It is apparent from the record that on the morning of the 5th, plaintiffs attorney knew that his case was Number 90 on a list of 91 cases and that defendant’s attorney had about 13 cases on that trial call. In the usual course of events the case would not be reached. The record shows that on the 5th the assignment judge with no advance notice plucked the case from position 90 and set it down for February 13. A phone call was allegedly made and a message left that the case had been set for a day certain. This would not be the first time in Illinois where an attorney’s secretary failed to communicate a message to her employer. (See Becker v. Pescaglia, 24 Ill.App.3d 410.) Plaintiffs attorney has stated on his oath that he did not receive any notice whatsoever until die morning of the 13th when he was engaged in trial. The defendant in the instant case presented no testimony and filed no counter-affidavits, and, accordingly, the statements of fact in the affidavit must be taken as trae. Lane v. Bohlig, 349 Ill.App. 487.

Modem cases only require that a just result be achieved and whether it is reasonable, under the circumstances, to compel the other party to go to trial on the merits. People ex rel. Reid v. Adkins, 48 Ill.2d 402, 406; Glenner v. Chicago Transit Authority, 9 Ill.App.3d 323, 326; Accurate Home Supply, Inc. v. Malpede, 12 Ill.App.3d 749, 753; Widicus v. Southwestern Electric Cooperative, Inc., 26 Ill.App.2d 102, 108-9; Village of Mundelein v. Turk, 24 Ill.App.3d 223; Smith v. National Drag Racing Enterprises, Inc., 24 Ill.App.3d 91.

The reviewing court need not determine, as a matter of law, that the trial court abused its discretion, but only resolve the question of whether justice has been served. Trojan v. Marquette National Bank, 88 Ill.App.2d 428, 438; Knight v. Kenilworth Insurance Co., 2 Ill.App.3d 493.

Applying these principles to the facts of this case, we are of the opinion that allowing the plaintiff to have his day in court and to a trial on the merits of this case will not result in any prejudice to the defendant. It is the belief of this court that justice will be done by reversing the judgment of the trial court and remanding with instructions to set aside the judgment and allow the plaintiff to go to trial on the merits.

Reversed and remanded with directions.

RECHENMACHER, P. J., concurs.

Mr. JUSTICE THOMAS J. MORAN,

dissenting:

In December of 1959, plaintiff brought suit under the Structural Work Act. The case was dismissed for want of prosecution on March 15, 1963. A year later, March 16, 1964, plaintiff filed a new suit as provided under section 24 of “An Act in regard to limitations” (Ill. Rev. Stat. 1963, ch. 83, § 24(a)), and defendant moved to dismiss the action as being untimely filed. The motion to dismiss was allowed, and plaintiff appealed. This court reversed and remanded the case on the basis that plaintiff had instituted his new action on the last day allowed under the statute. The case was reinstated on July 20, 1965, and on January 12, 1967, plaintiff filed an amended complaint. It was not until December 20, 1972, that plaintiff’s counsel requested defense counsel to appear before Judge Page and place the case on the master jury-trial calendar. Sometime prior to February 2, 1973, plaintiff received notice that on February 5, 1973, the cases on the master jury-trial calendar would be called and set for trial. (Plaintiff’s case was tire 90th on a call of 91.) After this notice, plaintiff’s counsel (Phillips) saw defense counsel (Gates Clancy) in Chicago, where they discussed the trial call and defendant’s problems in obtaining service upon the third-party defendant. At this meeting, Phillips states, he and Clancy agreed not to seek an immediate trial. On February 1 or 2, 1973, Phillips phoned Clancy’s office and talked to an attorney. (Phillips claims that the attorney was one Mills; the report of proceedings identifies the attorney as Cunningham.) Upon learning that Cunningham intended to answer the trial call, Phillips informed him of the conversation with Clancy and requested Cunningham to seek a continuance of the case. Cunningham responded that he knew nothing about the conversation and that he doubted that the trial court would grant a continuance because of the age of the case. On February 5, 1973, Cunningham made Philips’ request known to Judge Krause, who conducted the call; the continuance was denied and the matter set for jury trial on February 13, 1973, before Judge Petersen. That same afternoon, Cunningham asserted, he called Phillips and, not finding him in, gave Phillips’ secretary a message which contained the name of the case and the date set for trial. The secretary stated she would relay the message.

Also on February 5, Mills, an attorney in Clancy’s office, forwarded a letter tp Phillips setting out the impracticalities of Phillips’ suggestion to Clancy during their Chicago conversation with respect to defendant’s attempt to recover over against the third-party defendant. On that same date, Wendell Clancy sent plaintiff a motion to produce certain records at trial. Neither letter mentioned the trial date. On February 12, however, plaintiff sent defendant a motion to produce certain records at trial and a request for supplemental answers to interrogatories.

The majority opinion lends great weight to the facts that Phillips filed a verified petition and that defendant presented no counter-affidavits or testimony. On this basis, and relying upon a 1953 case, the opinion concludes, “accordingly the statements of fact in the affidavit must be taken as true.”

Affidavits in support of a motion to vacate a judgment have not been necessary since the statute was amended in 1955. (Glenner v. Chicago Transit Authority, 9 Ill.App.3d 323, 325 (1972).) Additionally, the report of proceedings indicates that, at the hearing, statements wtere made by Cunningham which contradicted plaintiff’s alleged lack of knowledge as to the trial date. It is apparent from the trial judge’s remarks that he gave credence to Cunningham’s statements, and the judge was not precluded from doing so by the fact that plaintiff’s petition was verified. Noted also by the trial court was the fact that plaintiff, on February 12, sent a notice to defendant to produce certain records at trial.

The opinion states, “It is apparent from the record that on the morning of the 5th, plaintiff’s attorney knew his case was Number 90 on a list of 91 cases and that defendant’s attorney had about 13 cases on that trial call.” It goes on to state, “In the usual course of events the case would not be reached.” The purpose of the call of the master jury calendar is not to try the cases at that time, but to determine the status of the cases on the call awaiting trial. The procedure is for the court to inquire as to the status of each case on the call. By so doing, the court is able to establish a jury-trial calendar of cases to be tried on dates certain coinciding with the time when jurors will be present. I find no basis in the record for the statement that in the usual course of events the case would not be reached on February 5. All cases on the master calendar call would be reached, not for trial, but for the setting of a day certain for trial, without further notice.

The opinion further states that on February 5 “the assignment judge [Krause] with no advance notice plucked the case from position 90 and set it down for February 13.” The italicized portion of the statement implies that an additional notice to that already given is necessary before a judge can set any of the cases on the call for a day certain. Only one notice is necessary, and even Phillips acknowledges receiving notice of the February 5 call. He discussed it with Gates Clancy and had Cunningham request a continuance of the case. The remaining portion of the statement leaves the impression that plaintiff’s case was arbitrarily taken out of sequence. There is nothing in the record to indicate that the usual procedure was not followed at the call of the master calendar.

Plaintiff seeks to place the cause of his problem at the doorstep of defense counsel. In point of fact, defense counsel twice appeared in court on plaintiff’s behalf (the last being to answer the trial call and to relay plaintiff’s request for postponement) and then left plaintiff a telephone message as to the trial date. Plaintiff stresses that neither of the two letters received (from Mills on the 5th and Wendell Clancy on the 6th) referred to the trial date. The trial judge took this into consideration together with Cunningham’s statements regarding the already-telephoned message. In light of that message, it would have been -unnecessary for defendant’s correspondence to repeat the trial date. Even to assume, contrary to the trial court’s determination, that the telephone message was never received, it is a crucial fact that plaintiff never inquired as to the outcome of the February 5 proceedings after having requested defense counsel to continue the cause. A telephone call to the clerk’s office would have disclosed all pertinent information. It was plaintiff’s duty to follow his case. Esczuk v. Chicago Transit Authority, 39 Ill.2d 464, 468-69 (1968).

The majority concludes that justice will be served by allowing a trial on the merits and that the trial "will not result in any hardship to the defendant.” Over 15 years have passed since plaintiff’s cause of action accrued, and it seems unrealistic to conclude, without supporting facts, that defendant will not now be prejudiced.

I would affirm.


source: Caselaw Access Project

author: Mr. JUSTICE SCOTT

license: Public Domain

text:
    Thomas A. Kimes et al., Plaintiffs-Appellees, v. Shirley A. Rogers, Defendant-Appellant.
    (No. 73-129;
    Second District
    February 14, 1975.

      Rehearing denied March 25, 1975.

    Hunter, Hunter & Madden, of Freeport, for appellant.
    Kroeger, Burt & DeMik, of Freeport (Woodruff A. Burt, of counsel), for appellees.
   Mr. JUSTICE SCOTT

delivered the opinion of the court:

This is an appeal from a judgment entered by the Circuit Court of Stephenson County whereby it was declared that the plaintiffs, Thomas A. Kimes and Marion H. Kimes, were entitled to certain net proceeds from life insurance policies of Mike Rogers, the deceased husband of Shirley A. Rogers, the defendant.

The factual situation which led to litigation in the trial court and further resulted in this appeal is as follows. Plaintiff Thomas A. Kimes for many years prior to September, 1969, was president of the H. A. Hillmer Company, an Illinois corporation. The outstanding stock of the corporation was owned by the plaintiffs, Thomas A. and Marion H. Kimes. A series of documents dated September 13, 1969, were executed by the plaintiffs and a Mike Rogers on November 19, 1969, and all of the documents related to the purchase by Rogers of the outstanding stock of the corporation. The documents executed were an agreement for the sale and purchase of the stock, a nonnegotiable installment note for $23,381.36 payable to Thomas A. Kimes, a nonnegotiable installment note for $17,089.16 payable to Marion H. Kimes, and a pledge agreement. In addition to these documents there was further executed on the same date a nonnegotiable installment note in the sum of $11,775 payable to Thomas A. Kimes by the H. A. Hillmer Company.

It should be further noted that in 1971 a note in the sum of $30,000 payable to Thomas A. Kimes was executed by Mike Rogers and that an additional agreement (referred to as the 1971 agreement) was entered into by the Kimes and Mike Rogers.

Prior to entering into any of the transactions pertaining to the purchase of the stock of the Hillmer Company, three policies of insurance were owned by Mike Rogers. Two policies were issued by the Minnesota Mutual Life Insurance Co. and one by Travelers Life Insurance Co. The insured under these policies was Mike Rogers, and the named beneficiary was his wife, the defendant Shirley A. Rogers.

Subsequent to the execution of the documents with the Kimes, assignments of the policies were made by Mike Rogers. The assignment of the Minnesota Mutual policies were in favor of Thomas A. Kimes and Marion H. Kimes “as his, their, or its interest may appear.” The Travelers policy was assigned “to Thomas A. Kimes and Marion Kimes, as respective interest may appear as creditors, balance, if any, to Shirley A. Rogers, wife.”

Mike Rogers died on April 13, 1972, and at the time of his death was not in default on any of the notes executed by him to the Kimes; however, his unpaid obligation to them was in excess of $60,000. Total insurance payable under the three policies of insurance carried by Mike Rogers was in the sum of $42,479.66.

Subsequent to the death of Mike Rogers, a controversy arose between the Kimes and Mrs. Rogers as to who was entitled to the life insurance proceeds. It is the Kimes’ contention .that the insurance proceeds were intended to secure the entire unpaid balance of the indebtedness represented by the notes executed by Mike Rogers. Conversely it is the contention of the defendant, Shirley Rogers, that the notes executed by her husband do not provide for acceleration upon the event of the death of the promissor and that therefore the Kimes are entitled only to an amount of the insurance proceeds equal to the sum of any installments of principal and accrued interest delinquent as of the date of the death of her husband.

The contentions of the plaintiffs, Kimes, and the defendant, Shirley Rogers, present the paramount issue to be determined by this court; however, as we analyze the question presented we find that the issue is actually a narrower one, to-wit, whether the agreement entered into by the parties is ambiguous.

It is a settled principle of law that if an agreement is plain and unambiguous there is no need for judicial construction. (See 17 Am. Jur. 2d Contracts §241 (1964).) The defendant, Shirley Rogers, argues that the word “due” can be interpreted in more than one way, and hence the agreement between the parties is ambiguous and judicial construction is required. This agreement is indeed a tenuous one and if accepted might well give rise to a situation where virtually all agreements could arguably be termed ambiguous, since it is universally acknowledged by lexicographers that the English language is fraught with words susceptible of dual meanings. We cannot accept the proposition that the possible dual interpretation of a word used in a contract results in the agreement being ambiguous per se.

We acknowledge that the word “due” is capable of different interpretations, but is its use in the instant case such as to make an agreement ambiguous? In order to determine this question, we must of necessity direct our attention to its usage in the documents executed by the Kimes and Mike Rogers.

In the pledge agreement executed by Mike Rogers in 1969 we find the following provision:

“[Paragraph 1(c)] To carry life insurance on his life at all times in an amount not less than the aggregate unpaid balance on the notes due Pledgees. Each policy shall be endorsed to be payable to Pledgees to the extent of any unpaid balance due either of them.”

We find no ambiguity in the contractual provisions contained in paragraph 1(c) of the pledge agreement. It js clear that Mike Rogers was to carry an amount of insurance not less than the total amount of money owed to the Kimes as of date of the agreement, which was November 19, 1969. (Emphasis supplied.) Secondly, the provision provides that the insurance proceeds would be payable to the Kimes to the extent of any unpaid balance due either of them. To require a borrower to carry an amount of insurance equal to his total indebtedness but to interpret the language “to be payable to pledgees to extent of any unpaid balance due either of them” to mean that proceeds would be used to pay only a payment of his indebtedness plus interest at the date of his death would be an unwarranted and inconsistent interpretation of the language used. If the argument of the defendant, Shirley Rogers, is accepted, then the insurance proceeds in excess of $40,000 would have served as security for only delinquent interest payments until November 1973, and further, in analyzing the various documents, no more than approximately $6,500 would have ever been payable to the Kimes prior to August, 1976. Under such a state of facts we are justified in asking, “Ergo, why should Mike Rogers have been required to carry an amount of insurance equal to the total of his indebtedness?” This question is unanswerable since it is abundantly clear to us that the interpretation called for by the defendant, Shirley Rogers, is a distorted one and cannot be sustained by the language employed.

Our conclusion is reinforced by an examination of the 1971 agreement which amended and supplemented the 1969 agreement. We deem the following language of the 1971 agreement especially enlightening and pertinent:

“7. It is hereby acknowledged that Rogers has complied with the requirements of paragraph lc of the pledge agreement of September 13, 1969. In as much as the parties hereto desire that the new loan of $30,000, to be made by Kimes, shall likewise be secured by life insurance, but recognize that the parties hereto do not, at the time of the execution of the agreement, know whether or not Rogers can purchase additional life insurance at normal rates and because the parties acknowledge that the purchase of insurance at rates over and above tire normal rate could be prohibitive in cost to Rogers it is hereby agreed that the insurance policies previously pledged under the provisions of paragraph lc of the agreement of September 13, 1969 shall also stand as security for the new loan of $30,000 and that in addition Rogers will attempt to procure new life insurance so that the outstanding balance of the notes of September 13, 1969 and the new loan of $30,000 will be secured by life insurance * * (Emphasis added.)

This provision dispels any doubt which might be lingering as to meaning of the word “due” in the 1969 pledge agreement. Considering both the 1969 and 1971 agreements together eliminates any possible claim of ambiguity. To hold otherwise would have the effect of rendering the word “security” in the 1971 agreement as a meaningless word.

The defendant, Shirley Rogers, in an effort to reinforce her argument that the agreements entered into were ambiguous, attempts to cloud the issue by asserting that the primary security pledged to the Kimes was the stock of the Hillmer Company and not the insurance proceeds. We agree that the corporate stock was indeed pledged as security by Mike Rogers, but the agreements make it abundantly clear that security by proceeds from life insurance coverage was a vital factor in the transactions between the parties. That the Kimes may have elected to redeem the corporate stock in no way precludes them from relying upon the agreements which permitted them to seek payment of indebtedness to them from insurance proceeds. The defendant, Shirley Rogers, further quarrels with an able memorandum opinion drafted by the trial judge wherein it was found that the notes given by Mike Rogers to the Kimes contained prepayment privileges and that prepayment was constructively exercised by the assignment of the insurance. The defendant faults', this finding of the trial court; however, we find it to be of no significance as to whether prepayment of the notes was or was not permitted. We are only concerned with the provisions of the agreements regarding insurance (no reference to insurance appears in any of the notes), and we have concluded that there is no ambiguity and that the trial court properly directed payment of the insurance proceeds to the Kimes.

Lastly, the defendant, Shirley Rogers, claims that Mike Rogers is relieved of personal liability on the notes because the plaintiff, Thomas Kimes, placed the note given by tie Hillmer Company to his sisters in judgment subsequent to the death of Mike Rogers. The defendant seeks to construe this action as an election on the part of Thomas Kimes to declare a forfeiture of his agreement with Mike Rogers and that all personal obligations of Mike Rogers and his successors in interest were retroactively terminated pursuant to the provisions of paragraph 6(F) of the pledge agreement. Without delving into the language of the pledge agreement relating to forfeiture, we deem it sufficient to note that even the defendant, Shirley Rogers, concedes that there was no express declaration of forfeiture by the Kimes, nor will the evidence adduced support a finding that there was a constructive forfeiture resulting from the acts of either of the Kimes. We deem it significant that Thomas A. Kimes, in obtaining judgment against the Hillmer Company, was acting in a fiduciary capacity and not in an individual capacity as the pledgee under the pledge agreement and hence was not availing himself of the forfeiture provisions of the pledge agreement .

For the reasons set forth, the judgment of the Circuit Court of Stephenson County is affirmed.

Affirmed.

STOUDER and DIXON, JJ., concur.


author: Mr. PRESIDING JUSTICE SEIDENFELD

text:
    Rose Calcese, Special Adm’r of the Estate of Charles Calcese, Deceased, Plaintiff-Appellant, v. Cunningham Cartage, Inc., et al., Defendants-Appellees.
    (No. 73-170;
    Second District (1st Division)
    January 29, 1975.

      Edwin A. Strugala and Marshall I. Teichner, both of Chicago, for appellant.
    Snyder, Clarke, Dalziel, Holmquist & Johnson, of Waukegan (Alfred W. Lewis, of counsel), for appellees.
   Mr. PRESIDING JUSTICE SEIDENFELD

delivered the opinion of the court:

Charles Cálcese sued the defendants Cunningham Cartage Inc., a corporation, and Robert M. Cunningham, its driver, to recover damages for personal injuries suffered in a motor-vehicle collision. The defendants were found not guilty of negligence in a jury trial. The jury also found, in response to a special interrogatory, that the plaintiff was free of contributory negligence. Subsequently Charles Cálcese died, and this appeal has been filed by his wife, acting as special administrator of his estate.

The plaintiff contends that a verdict should have been directed in favor of the plaintiff or that a judgment n.o.v. should be entered because the general verdict of the jury cannot stand as a matter of law based on the evidence. Alternatively, the plaintiff argues that the general verdict is inconsistent with the jury’s finding that the plaintiff was not guilty of contributory negligence. He also claims that various trial errors mandate a new trial.

The accident occurred at the intersection of State Route 120 and Fairfield Road in Lake County, Illinois, at approximately 5:30 A.M. on April 16, 1969. Charles Cálcese was driving his automobile south on Fairfield Road on his way to his employment. The defendant, Robert M. Cunningham, as an employee of the defendant corporation was driving east on Route 120 in a tractor-trailer truck with a load of gravel. State Route 120 is a preferential highway, and there is a stop sign for traffic on Fairfield Road at the intersection. At the time of the accident there was what was generally characterized in the record as a “dense fog.” It was also “drizzling” and “dark.”

The defendant, Robert M. Cunningham, testifying under adverse examination, said that on the morning of the accident he had picked up his load at the McHenry Sand and Gravel Pit located approximately 5 miles west of the intersection in question and was headed for the atomic-energy plant in Zion, Illinois. His truck was a tractor-trailer unit weighing 70,000 pounds loaded. It was equipped witii a total of 16 forward shifts. He said that he drove his vehicle in the sixth gear which at its highest speed would probably go 37 to 38 miles per hour. The highest speed he attained in the 5 miles between the gravel pit and the intersection was 35 miles per hour, and he stated that just prior to the collision he was going between 30-32 miles per hour. His driving lights were on low beam. He had amber fog lights and five lights across the top of the cab, together with numerous lights on both sides of the trailer towards the front and rear.

He said that he sounded his horn, which could be heard for more than 200 feet, when he was approximately 150 feet from the intersection. At that time he said he could see a street light on one comer of the intersection and some house lights in the trailer court area located there.

He testified that the front of his tractor was in approximately the center of the intersection when he first saw the plaintiff’s vehicle, which was only a foot or two away, alongside him.

A court reporter, who took Cunningham’s statement on the day following the accident, stated that Cunningham said he was going about 40 miles per hour at the time of the occurrence, and that as he approached the intersection he could see only a car length or two because of the density of the fog. When questioned about this statement, Cunningham said he did not recall making the statement as to the 40-mile-per-hour speed. As to the visibility, he explained that there were previous areas where he could see only two car lengths, but as he approached the intersection he could see the 150 feet.

Charles Cálcese testified that he lived on Fairfield Road approximately 2 miles north of the intersection and that he started to work about 5:30 A.M. on the day of the accident, driving south on Fairfield Road to the intersection where he intended to cross Route 120 and continue south. He said he tested his fights, horn and brakes that morning before leaving his house. He stated that, because of tire fog, in some places heading south he could hardly see in front of his car, and in other spots the visibility was not over 50 feet. He had on his head fights and windshield wipers.

He came to a complete stop at the white fine located some 5 or 6 feet south of the stop sign on Fairfield Road, fit a cigarette at that point, looked to Iris left, then to his right and observed no traffic approaching from either direction. He then proceeded into the intersection. He had traveled approximately 5 or 6 feet into the intersection when he saw the flickering lights of what seemed to be a trailer to his right and in 1 to 3 seconds the collision occurred. He was not positive whether the front of his car had reached the center fine of Route 120 at the time of the collision. He did not hear a horn.

He said he told the officer who interviewed him in the hospital that he had hit or attempted to hit his brakes and all he could see or feel was gravel. The officer testified that Cálcese told him that upon approaching the intersection he applied his brakes and failed to stop because of sand or gravel. The officer also testified that he found no signs of skid marks of either vehicle prior to the point of impact.

Based on the facts in the record and the inferences from the facts which the jury could draw, we conclude that the verdict was not against the manifest weight of the evidence. The visibility at the particular time and place was a matter for the jury to decide under the conflicting evidence and the inferences which could be drawn from it. The plaintiff’s argument that it is unlikely that the accident could have happened if the defendant’s testimony is to be believed is speculative and a theory which was fully argued to the jury. There was, on the whole record, evidence which the jury could find credible that the defendant who was on a preferential highway was not proceeding at an excessive rate of speed, that his truck was properly lighted and that he attempted to warn of his approach by sounding his air horn. The finding that he was not negligent under these circumstances is not against the manifest weight of the evidence. See Ruggiero v. Public Taxi Service, Inc. (1973), 16 Ill.App.3d 754, 760; Legerski v. Nolan (1971), 132 Ill.App.2d 51, 54.

This conclusion also stands as an answer to the plaintiff’s argument that it was error not to enter a judgment n.o.v. which requires even more conclusive evidence than that necessary to justify a new trial. See Pedrick v. Peoria & Eastern R. R. Co. (1967), 37 Ill.2d 494, 509-510.

The plaintiff next contends that the answer to a special interrogatory in which Charles Cálcese was found not guilty of contributory negligence is inconsistent with, and controls, the general verdict which found the defendant not guilty of negligence. (See Freeman v. Chicago Transit Authority (1965), 33 Ill.2d 103, 106.) We do not, however, find them inconsistent in this case. To establish a case of negligence it is incumbent upon a plaintiff to not only prove freedom from contributory negligence but also to prove that the defendant driver was negligent and that his negligence proximately caused the collision and resulting injuries. Here, the jury could have found from the evidence that plaintiff was free from contributory negligence, believing that he stopped and proceeded across the intersection using reasonable care, but that defendant had also proceeded on the preferential highway using reasonable care under the circumstances. The jury could have reasonably concluded that due to the foggy conditions both drivers were prevented from seeing the other in time to avoid the accident, and thus that neither driver was chargeable with negligence. See Legerski v. Nolan, 132 Ill. App.2d 51, 54-55.

Dursch v. Fair (1965), 61 Ill.App.2d 273, Stone v. Warehouse & Terminal Cartage Co. (1955), 6 Ill.App.2d 229, and Cornwell v. Bloomington Business Men’s Assn, (1911), 163 Ill.App. 461, are cited by the plaintiff as authority for the claim that the jury could not find that the accident was unavoidable on the facts before them. We do not find the cases persuasive. In Dursch, the defendant drove his car into the rear of a truck. Hiere was substantial evidence that he was asleep at the time, and there was no evidence introduced concerning weather conditions which could affect visibility. In Stone, there was a conflict as to respective distances and speeds of two vehicles which collided at an unregulated intersection. The court found that there was no evidence to indicate that the occurrence was without fault of either party on the facts, which did not include any problems of visibility. In Cornwell, the defendants offered no evidence to show that the accident was caused other than by their negligence as disclosed by the plaintiff’s evidence. The court ruled that it was not error for the trial judge to refuse to give an instruction that the injury was caused by a mere accident without fault or neglect on the part of the defendants. Here, by contrast, although there was evidence from which the jury could find that the plaintiff was not guilty of negligence, there was also evidence which justified a finding that defendant was not negligent.

The plaintiff claims that he was substantially prejudiced by the conduct of the defendant’s counsel in reading from a police report which was not in evidence in his closing argument. While the plaintiff contends that this was repeated after objection and admonishment by the court, the certified record before us, which imports verity (see Kazubowski v. Kazubowski (1970), 45 Ill.2d 405, 416; People v. Spence (1971), 133 Ill.App.2d 171, 172), reveals only the following:

* * Mr. Cálcese was testifying, he talked to a deputy and he said, I told the deputy that I applied my brakes but all I saw was gravel.
That’s sort of a vague statement to make here. The implication was, crawling out, or what, I don’t know, but I know that investigating police officers prepared this report like an hour or two after the accident, after he could immediately talk to these people and he doesn’t have anything to do with this case, except for, through his job as an investigating officer. And he has stated that Mr. Cálcese told him he was traveling south on Fort Hill Road and upon approaching the stop sign —
MR. STRUGALA: I beg your pardon. Objection. What is he reading from?
THE COURT: It should be from the evidence.
MR. STRUGALA: I would like to be heard on a motion right now, if the Court please.
■ THE COURT: I would ask the jurt [sic] to consider the evidence they hear in this case, and you heard the evidence from the witness stand. I would just as soon limit the argument.”

It is, of course, improper to refer to a police report which is not in evidence. (See Anderson v. Universal Delta (1967), 90 Ill.App.2d 105, 111-112.) In this case, the trial judge did not err in ruling in his discretion that the error was not prejudicial. The objection was quickly sustained before the jury was informed of substantial details of the report, and the partial reference which was heard by the jury concerned matters to which the police officer previously testified on tire stand and which only affected the issue of plaintiffs contributory negligence. The fact that the juiy found the plaintiff not guilty of contributory negligence indicates that the improper reference to a police report not in evidence did not prejudice the plaintiff. See Redding v. Schroeder (1964), 54 Ill. App.2d 306, 314-315.

The plaintiff further contends that the court erred in refusing his offer of proof, which he claims would have impeached the defendants testimony that he was traveling only at 30-32 miles per hour at the time of the accident, and his testimony as to the highest speed which his track could reach. The tendered proof was to the effect that the maximum number of daily trips the defendant ever made between the pit where he picked up his load of gravel and the 30 miles to his destination in Zion was six, and that his track could travel at 55-60 miles per hour on a downgrade. We conclude that the trial court properly refused the tender of proof because it was both irrelevant and nonimpeaching.

Relevancy is established where a fact offered tends to prove a fact in controversy or renders a matter in issue more or less probable in the light of logic, experience and accepted assumptions of human behavior. (Marut v. Costello (1966), 34 Ill.2d 125, 128.) There was nothing in the testimony to establish how many trips the defendant would have made that particular day, and moreover, there is no substantial relationship between an average speed and the rate of speed the defendant would be traveling at any one moment. Similarly, the offer to prove the speed at which the truck was capable of traveling did not impeach the defendant’s testimony on a material matter. He had testified that the truck could travel at 52 miles per hour and reach at least 55 miles per hour on downgrades.

For the reasons stated, we affirm the judgment below.

Affirmed.

GUILD and HALLETT, JJ., concur.


author: PRESIDING JUSTICE CHAPMAN

text:
    FARM CREDIT BANK OF ST. LOUIS, as Successor in Interest to Federal Land Bank of St. Louis, Plaintiff-Appellee, v. CHARLES L. DORR et al., Defendants-Appellants (Bobbi J. Dorr et al., Defendants).
    Fifth District
    No. 5 — 92—0031
    Opinion filed September 9, 1993.

      Jerold W. Barringer, P.C., of Carlinville (Jerold W. Barringer, of counsel), for appellants.
    Terry Sharp, of Law Office of Terry Sharp, P.C., of Mt. Vernon, for appellee.
   PRESIDING JUSTICE CHAPMAN

delivered the opinion of the court:

This is a mortgage foreclosure action brought by the Farm Credit Bank of St. Louis, as successor in interest to the Federal Land Bank of St. Lotus, on a note and mortgage dated January 29, 1982. Defendants appeal from the order of foreclosure and from the court’s order which struck their affirmative defenses. We affirm.

The first issue on appeal is whether the trial court erred in allowing the Farm Credit Bank of St. Louis (Farm Credit Bank) to proceed as successor in interest to the Federal Land Bank of St. Louis (Federal Land Bank). Defendants claim that the Farm Credit Bank offered no proof that it is the legal owner and holder of the note and mortgage at issue and that without such proof the Farm Credit Bank was without authority to proceed with the foreclosure action. Farm Credit Bank argues that the issue is not properly before the court as it was not raised in the trial court and that proof was offered from which the circuit court could properly determine that the Farm Credit Bank was the holder and owner of the note and mortgage.

Defendants contest Farm Credit Bank’s assertion that they waived the issue below. However, defendants fail to support their contention that they objected in the trial court to the substitution of Farm Credit Bank as a party plaintiff. Defendants argue that it could not be determined until trial whether the Farm Credit Bank was the holder and owner of the note and mortgage and that absent the plaintiff’s proof of such status defendants cannot be said to have waived an objection on appeal. We disagree.

The Federal Land Bank filed its complaint on June 23, 1987. On January 23, 1989, counsel for Farm Credit Bank filed a motion for substitution of counsel. The motion stated that Farm Credit Bank was a successor in interest to the Federal Land Bank. Counsel for the Farm Credit Bank requested permission for his law firm to continue to prosecute the foreclosure on behalf of and in substitution for the Federal Land Bank’s counsel. According to the record, defendants did not object, and the trial court granted the motion for substitution of counsel. From that point on, the caption on the pleadings in the record read, “Farm Credit Bank of St. Louis, as successor in interest to Federal Land Bank of St. Louis.” Moreover, the Farm Credit Bank prosecuted this foreclosure action, and it is undisputed that it has at all times relevant to this action been in possession of the note and mortgage. In any event, defendants’ objection was not presented to and ruled on by the trial court, and it may not be raised for the first time here. See People v. Rockford Silver Plate Co. (1944), 388 Ill. 534, 58 N.E.2d 599; First National Bank & Trust Co. v. Maas (1975), 26 Ill. App. 3d 733, 327 N.E.2d 205; Rasmussen v. Village of Bensenville (1965), 56 Ill. App. 2d 119, 205 N.E.2d 631.

Turning to the next issue, defendants contend that the trial court erred in striking their fourth, fifth, and sixth affirmative defenses. Defendants maintain that had the court not stricken those defenses, they would have prevailed in the foreclosure action.

Defendants’ fourth affirmative defense alleges that plaintiff failed to comply with the 1985 amendments to the Farm Credit Act of 1971, which required it to stay the foreclosure proceedings pending notification to the mortgagors that plaintiff was required to consider them for restructuring. (See 12 U.S.C. §2001 et seq. (1988).) Defendants’ fifth affirmative defense alleges plaintiff failed to comply with the Food Security Act of 1985, which amended the Farm Credit Act of 1971 and required plaintiff to notify defendants of the procedures to pursue to qualify for rights under the Food Security Act of 1985. (See Farm Credit Amendments Act of 1985, Pub. L. No. 99 — 205, 99 Stat. 1678 (Dec. 23, 1985).) The sixth affirmative defense alleges the plaintiff failed to comply with the 1987 amendments to the Farm Credit Act of 1971, which required it to stay foreclosure until defendants had a fair opportunity to apply for a reduction of indebtedness or restructuring. See Agricultural Credit Act of 1987, 12 U.S.C. §2202(a) (1988).

The trial court granted plaintiff’s motion for summary judgment as to these affirmative defenses but gave no reason for its decision. Defendants claim that the trial court’s decision is based on the premise that no private cause of action exists under the Farm Credit Act of 1971 or its amendments. Although we cannot determine the basis of the trial court’s ruling, the parties’ arguments focus on whether defendants may assert a private cause of action.

Plaintiff contends that defendants cannot assert claims based upon a denial of rights under the Farm Credit Act of 1971 or its amendments, regardless of whether said claims are made as part of a complaint or are pled as affirmative defenses. We agree.

It is undisputed that the Farm Credit Act contains no express provision conferring upon individuals a cause of action to enforce the provisions of the Act. Yet, courts have held that a statute which fails to expressly provide a private right of action can nevertheless create an implied private right of action if a private right of action is necessary to effectuate the purpose of the statute. (Smith v. Russellville Production Credit Association (11th Cir. 1985), 777 F.2d 1544, 1547.) In Cort v. Ash (1975), 422 U.S. 66, 45 L. Ed. 2d 26, 95 S. Ct. 2080, the Supreme Court set forth four factors to consider when determining whether a statute creates an implied right of action.

“First, is the plaintiff ‘one of the class for whose especial benefit the statute was enacted,’ [citation] — that is, does the statute create a federal right in favor of the plaintiff? Second, is there any indication of legislative intent, explicit or implicit, either to create such a remedy or to deny one? [Citation.] Third, is it consistent with the underlying purposes of the legislative scheme to imply such a remedy for the plaintiff? [Citations.] And finally, is the cause of action one traditionally relegated to state law, in an area basically the concern of the States, so that it would be inappropriate to infer a cause of action based solely on federal law?” (Emphasis in original.) (422 U.S. at 78, 45 L. Ed. 2d at 36, 95 S. Ct. at 2088.)

In analyzing these factors, the ultimate inquiry remains whether Congress intended to create, either expressly or by implication, a private cause of action. (Touche Ross & Co. v. Redington (1979), 442 U.S. 560, 575, 61 L. Ed. 2d 82, 95, 99 S. Ct. 2479, 2489.) Unless congressional intent can be inferred from the language of the statute, the statutory structure, or some other source, the essential predicate for implication of a private remedy simply does not exist. Saltzman v. Farm Credit Services of Mid-America, A C A (7th Cir. 1991), 950 F.2d 466, 468.

In Harper v. Federal Land Bank (9th Cir. 1989), 878 F.2d 1172, the court conducted an in-depth analysis of the Farm Credit Act and delved into legislative history to discern its purpose and the legislature’s intent. As for the first prong of the Cort analysis, namely, whether defendants are among those for whose special benefit the statute was enacted, the Harper court concluded that while one of the purposes of the Act was to provide borrowers with certain limited rights, the Act’s overall purpose was to reassure both farmers and financial markets that the Farm Credit System would remain a viable entity. (See also Walker v. Federal Land Bank (C.D. Ill. 1989), 726 F. Supp. 211 (in which the court held that Congress carefully drafted the Act in order to achieve two opposing goals: to shore up the financial structure of the Farm Credit System and to benefit financially strapped farmers).) Whatever the reason for the Act, it is clear that the second Cort factor, the presence of congressional intent to create a private remedy, simply does not exist. See Thompson v. Thompson (1988), 484 U.S. 174, 179, 98 L. Ed. 2d 512, 519-20, 108 S. Ct. 513, 516.

Harper pointed out that an express private right of action was proposed in both houses of Congress but deleted in the final conference version. The conference committee’s report stating that the.committee deleted the private right of action provision “ ‘represents the final statement of the terms agreed to by both houses.’ ” (Harper, 878 F.2d at 1176, quoting Demby v. Schweiker (D.C. Cir. 1981), 671 F.2d 507, 510; Zajac v. Federal Land Bank (8th Cir. 1990), 909 F.2d 1181, 1182.) Given the deletion of the private-right-of-action provision and the fact that the Act provides for administrative remedies, Harper concluded that Congress intended administrative review to be the exclusive remedy of the borrower. Harper, 878 F.2d at 1176; see also Zajac, 909 F.2d at 1183, quoting Massachusetts Mutual Life Insurance Co. v. Russell (1985), 473 U.S. 134, 87 L. Ed. 2d 96, 105 S. Ct. 3085 (wherein the court stated, “[T]he presumption that a private remedy was deliberately omitted from a statute is strongest when Congress has enacted a comprehensive legislative scheme including an integrated system of procedures for enforcement”).

Courts in addition to Harper have concluded that allowing a private right of action under the Act would undermine the objectives of the Farm Credit System and would be inconsistent with congressional intent not to confer a private right of action. (See Saltzman v. Farm Credit Services of Mid-America, A C A (7th Cir. 1991), 950 F.2d 466; Zajac v. Federal Land Bank (8th Cir. 1990), 909 F.2d 1181; Griffin v. Federal Land Bank (10th Cir. 1990), 902 F.2d 22; Harper v. Federal Land Bank (9th Cir. 1989), 878 F.2d 1172; Redd v. Federal Land Bank (8th Cir. 1988), 851 F.2d 219; Schroder v. Volcker (l0th Cir. 1988), 864 F.2d 97; Mendel v. Production Credit Association (8th Cir. 1988), 862 F.2d 180; Bowling v. Block (6th Cir. 1986), 785 F.2d 556; Smith v. Russellville Production Credit Association (11th Cir. 1985), 777 F.2d 1544; Walker v. Federal Land Bank (C.D. Ill. 1989), 726 F. Supp. 211; Aberdeen Production Credit Association v. Jarrett Ranches, Inc. (D.S.D. 1986), 638 F. Supp. 534.) We agree that the Farm Credit Act does not expressly create a private right of action, and there is no support for the conclusion that Congress intended to create a private right of action under the Act. Therefore, we hold that the trial court did not err in striking defendants’ affirmative defenses.

On its face the decision of the trial court is the result of a summary judgment proceeding. A review of the record, however, reveals that in reality the parties and the court dealt with the issue regarding the propriety of the affirmative defenses as if the issue were raised in a motion to dismiss under section 2 — 615 (735 ILCS 5/2 — 615 (West 1992)). Instead of ruling that there was no material issue of fact to be tried, the court struck defendants’ affirmative defenses on the basis that defendants have no legal right to raise these particular affirmative defenses.

A motion to dismiss tests the sufficiency of pleadings, whereas a motion for summary judgment seeks to determine whether there are any material issues of fact to be tried. (Barber-Colman Co. v. A & K Midwest Insulation Co. (1992), 236 Ill. App. 3d 1065, 1070, 603 N.E.2d 1215, 1220; Morrey v. Kinetic Services, Inc. (1985), 133 Ill. App. 3d 1002, 1004, 479 N.E.2d 953, 954, citing Janes v. First Federal Savings & Loan Association (1974), 57 Ill. 2d 398, 312 N.E.2d 605.) It is apparent that the parties and the trial court combined an inquiry into whether defendants’ pleadings were sufficient to state a valid affirmative defense with an examination which assumed that a cause of action had been stated. Such a proceeding is both confusing and deserving of disapproval. (Janes v. First Federal Savings & Loan Association (1974), 57 Ill. 2d 398, 312 N.E.2d 605.) As the proceedings below and the arguments on appeal were actually conducive to a motion to dismiss, we affirm the decision of the trial court striking defendants’ fourth, fifth, and sixth affirmative defenses.

The next issue raised by the defendants is whether the trial court erred in granting summary judgment striking the defendants’ tenth affirmative defense. Defendants’ tenth affirmative defense provides in pertinent part as follows:

“1. At the beginning of the loan presently under foreclosure, the Plaintiff represented to the Defendants that the Defendants would have sufficient income and sufficient cash-flow to take care of the Federal Land Bank obligations, as well as the obligations of all other creditors.
2. This statement was made in December, 1981 or in January, 1982, by the loan officer in charge of the loan at that time, to induce the Defendants to proceed with the completion of the loan package.
3. Since that time, the government has specifically and directly altered the ability of the Defendants to repay the loans by adopting a pricing, subsidy and trade policy that directly reduces the Defendants’ potential income each and every year, and which makes it impossible for the Defendants to repay their loans to the Plaintiff.
4. This process by the government is directly in violation of 15 U.S.C. §1022c(C) and Article I, Sec. VIII, which provide the authority and mandate of first the Congress, and then the President with the recommendation of Congress to regulate the economy in a manner which would have created this impossibility.
5. Further, the Plaintiff failed to inform the Defendants that it had specifically altered the way it calculates interest to the borrowers, and the percentage of overage or spread it deems necessary between the cost of money and the charge to its borrowers, which has significantly increased the costs to the Defendants and which makes it impossible for the Defendants to repay their loans to the Plaintiff.
6. Each of these actions, whether individually or in conjunction with the other, has made it an absolute impossibility for the Defendants to perform on their obligations, and these actions are all outside the control of the Defendants and without their agreement, and thereby require this Court stay or dismiss this action until the circumstances change which provide an opportunity for the Defendants to perform on their obligations.”

Defendants submitted two affidavits, loan documentation, and other materials to support the allegations of their tenth affirmative defense. Defendants argued at the hearing on the motion for summary judgment that the documentation submitted in support of its tenth affirmative defense consisted' of congressional records, studies presented to Congress, and other information which showed that Congress and the President, through their policy decisions, have chosen to eliminate farmers and have in effect intervened in the economic market so as to render it impossible for the defendants to perform on their loan obligations. After a hearing on the motion for summary judgment, the court issued the following decision from the bench:

“Well *** I guess what you want this Court to do is to second-guess the President and the Congress and play Monday morning quarterback. But I don’t think that’s an affirmative defense. You have made your argument. You have made your record. If I was to allow this affirmative defense to stand, then every time there is a mortgage foreclosure, somebody is going to be in this courtroom saying well, the economy is not what I expected it to be when I took out this loan and that’s because the President and the Congress messed up in their decision making process and because of that I shouldn’t be held to answer to this mortgage, and I just don’t think that’s an affirmative defense that should be allowed to stand in this court.
*** But if I am allowing this affirmative defense, I’m going to allow everybody who ever had a mortgage to come in and say, well, the economy has gone down and it’s the President’s fault and it’s Congress’s fault and because of that, they should have made different decisions. If they would have made different decisions, I still could have made the payments, and you shouldn’t foreclose my mortgage. And I don’t think that’s an affirmative defense.
So the motion for summary judgment as to the 10th affirmative defense will be granted. That affirmative defense will be stricken.”

Defendants argue that the court erred in granting plaintiff’s motion for summary judgment because plaintiff submitted no facts to support its position. The purpose of a summary judgment proceeding is to determine whether there are any genuine issues of material fact, and the evidence is to be strictly construed against the moving party. (Vallejo v. Mercado (1991), 220 Ill. App. 3d 1, 10, 580 N.E.2d 655, 662.) Nonetheless, where the record only presents a question of law, a trial court may properly grant a motion for summary judgment. (Marshall v. City of Centralia (1991), 143 Ill. 2d 1, 6, 570 N.E.2d 315, 317.) It is undisputed that the trial court based its decision granting plaintiff’s motion for summary judgment on the conclusion that defendants presented no genuine issue of material fact to support a legally cognizable impossibility-of-performance defense in this foreclosure action.

As a general rule, where the parties to a contract, by their own conduct and positive undertaking, create a duty or charge upon themselves, they must abide by the contract and make the promise good, and subsequent contingencies not provided against in the contract, which render performance impossible, do not bring the contract to an end. (Leonard v. Autocar Sales & Service Co. (1945), 392 Ill. 182, 187, 64 N.E.2d 477, 479.) An exception to this rule is where the continued existence of a particular thing is so necessary to the performance of a contract that, by law, it is implied as a condition of the contract that the destruction of that thing shall excuse performance. Leonard, 392 Ill. at 189, 64 N.E.2d at 480; American National Bank v. Richoz (1989), 189 Ill. App. 3d 775, 780, 545 N.E.2d 550, 553.

In this case defendants argue that the government’s economic policies, and the Farm Credit Bank’s subsequent actions in light of those policies, interfered with interest calculations so as to render defendants’ performance on their loan obligations impossible. Defendants’ argument is tantamont to the theory, under the doctrine of commercial frustration, that the continued existence of a stable economic environment and, hence, interest rates, was an implied condition necessary to the performance of the contract between the parties. We disagree.

It is uncontroverted that the foreclosed-upon loan was a variable-rate loan. Consequently, defendants knew that the interest rate was subject to periodic change. The note in issue provides:

“FOR VALUE RECEIVED, the undersigned *** promises to pay *** the principal sum of $271,600.00 *** with interest on the whole amount of said principal sum remaining from time to time unpaid, at the rate of 12% per centum per annum or at said bank’s option at such other rate applicable to this class of loan as may be subsequently adopted by said bank all in accordance with the Farm Credit Act of 1971 ***.”

The prior relevant statute referred to in the note was 12 U.S.C. §2015, which provided that Federal Land Bank loans:

“shall bear interest at a rate or rates, and on such terms and conditions, as may be determined by the board of directors of the bank from time to time, with the approval of the Farm Credit Administration *** the loan documents may provide for the interest rate or rates to vary from time to time during the repayment period of the loan, in accordance with the rate or rates currently being charged by the bank.”

The Agricultural Credit Act of 1987 revised the above provision and renumbered it as 12 U.S.C. §2016 (1988):

“(a) In general.
Loans and discounts made by a Farm Credit Bank shall bear such rate or rates of interest or discount, and be on such terms and conditions, as may be determined by the board of directors of the bank from time to time. ***
(b) Setting rates and charges.
In setting rates and charges, it shall be the objective to provide the types of credit needed by eligible borrowers at the lowest reasonable costs on a sound business basis taking into consideration the cost of money to the bank, necessary reserve and expenses of the bank and associations, and providing services to members. The loan documents or discounting and financing agreements, [sic] may provide for the interest rate or rates to vary from time to time during the repayment period of the loan or agreement.”

In Northern Illinois Gas Co. v. Energy Cooperative, Inc. (1984), 122 Ill. App. 3d 940, 461 N.E.2d 1049, the court made the following observation:

“[T]he only certainty of the market is that prices will change. Changing and shifting markets and prices from multitudinous causes is endemic to the economy in which we live. Market forecasts by supposed experts are sometimes right, often wrong, and usually mixed. If changed prices, standing alone, constitute a frustrating event sufficient to excuse performance of a contract, then the law binding contractual parties to their agreements is no more.” (Northern Illinois Gas Co. v. Energy Cooperative, Inc. (1984), 122 Ill. App. 3d 940, 952, 461 N.E.2d 1049,1059.)

Given that the loan in this case was a variable-rate loan, the parties were on notice that the interest rate could fluctuate, and we cannot insert stable interest rates as an implied condition of the loan agreement.

While the defense of commercial frustration is a viable doctrine in Illinois, it will be applied only when the defendant has satisfied two rigorous tests: (1) the frustrating event was not reasonably foreseeable; and (2) the value of the counterperformance had been totally or nearly totally destroyed by the frustrating cause. (Smith v. Roberts (1977), 54 Ill. App. 3d 910, 913, 370 N.E.2d 271, 273.) As set forth above, defendants failed to submit proof that the purported frustrating event was not reasonably foreseeable. Summary judgment is properly rendered when the pleadings, depositions, and admissions on file show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. (735 ILCS 5/2 — 1005(c) (West 1992).) In light of the foregoing we cannot find that the trial court abused its discretion in holding that the defense of commercial frustration was not available to defendants and granting summary judgment in favor of the plaintiff as to defendants’ tenth affirmative defense.

The final issue defendants raise is whether the trial court erred in accepting the plaintiff’s proof of damages. Defendants argue that the plaintiff’s sole witness as to damages was unable to substantiate the validity of the financial information he testified to, that an improper foundation was presented as to the evidence produced, and therefore, that the trial court erred in finding that plaintiff sustained its burden of proof on damages.

To prove damages, the plaintiff called James Steinmann, senior loan-accounting analyst for the Farm Credit Bank. He testified that his duties included establishing the outstanding amount of indebtedness on defaulted loans. Steinmann testified that this note was accelerated on October 29, 1986, and that it had an unmatured principal at that time of $266,519.18. In calculating defendants’ indebtedness, Steinmann testified that he relied on the records of the Farm Credit Bank, which were tendered as exhibits 5, 6, and 7. Exhibit 5 is a payment history which outlines all of the payments made by the defendants from the time the loan was made until the time the loan was accelerated because of default. Exhibit 6 is a statement of indebtedness on the note, showing the amount owed at the time of acceleration and all of the activity on the loan since acceleration. Steinmann referred to exhibit 6 and testified that the outstanding principal at the time of acceleration was $331,635.47. Steinmann testified that exhibit 7 consists of copies of the microfiche from the original accounting system and copies of the payment history in the present accounting system generated by the bank’s computer system. Steinmann testified as to the reliability of the computer system and the accuracy of the exhibits and that the exhibits are business records kept in the ordinary course of business. He concluded that according to the Farm Credit Bank’s records and his investigation of the matter, the total amount due on the note is $569,735.97. The court’s order of foreclosure held that by the terms, conditions, and provisions of the mortgage and note, by the defaults in payment of principal and interest, by other defaults, and by the election of the plaintiff, $569,735.97 was due and owing.

Plaintiff had the burden not only of establishing that it sustained damages but also of establishing a reasonable basis for computation of those damages. (Schoeneweis v. Herrin (1982), 110 Ill. App. 3d 800, 808, 443 N.E.2d 36, 42.) A court of review will not disturb the trial court’s findings as to damages unless those findings are manifestly against the weight of the evidence. (City of Peoria Municipal Employees Association v. City of Peoria (1991), 217 Ill. App. 3d 550, 555, 577 N.E.2d 819, 822.) While the trial court struck exhibit 7 as cumulative, exhibits 5 and 6 and Steinmann’s testimony presented a reasonable method for computing the damages sustained. We hold that the trial court’s finding as to the amount of damages is not against the manifest weight of the evidence.

In conclusion, we affirm the decision of the circuit court of Fayette County.

Affirmed.

LEWIS and WELCH, JJ., concur.


author: JUSTICE DOYLE

text:
    ABBOTT-INTERFAST CORPORATION, Plaintiff-Appellant, v. FRANK HARKABUS, Defendant-Appellee.
    Second District
    No. 2 — 92—1029
    Opinion filed August 30, 1993.

      James A. Calabrese, of Wheeling, for appellant.
    Daniel J. Leahy, of Leahy, Eisenberg & Fraenkel, Ltd., of Chicago, for appellee.
   JUSTICE DOYLE

delivered the opinion of the court:

Plaintiff, Abbott-Interfast Corporation (Abbott), sued defendant, Frank Harkabus, a former employee, for violating a noncompetition agreement. The trial court granted Harkabus’ motion for judgment on the pleadings on the ground that the noncompetition agreement was an unenforceable restraint on trade. In particular, the trial court found that the nonsolicitation clause in the agreement was overly broad because it contained no geographic limitations. The trial court refused to sever that provision from the remainder of the agreement. Abbott appeals.

According to Abbott’s complaint and the supporting documentation, Abbott manufactured various types of fasteners. Abbott employed Harkabus as a salesman. In 1977, Abbott and Harkabus entered into an employment agreement (Agreement) which contained the following provisions relevant to this case:

“2. Agreement Not To Solicit. During the term of the Employee’s employment with Employer and for a period of one (1) year after his employment with Employer shall terminate for any reason whatsoever, Employee shall not, except for and on behalf of Employer, and upon Employer’s request, directly or indirectly on his own account, or as an employee, consultant, partner, joint venturer, owner, officer, director, or stockholder of any other person, firm, partnership, corporation, or other entity or in any other capacity, directly or indirectly, canvass, solicit, divert, take away, accept orders, or interfere with any of the business, customers, trade, or patronage of Employer, wherever located, as same may exist as of the of [sic] termination of Employee’s employment, as aforesaid.
3. Maintenance of Trade Secrets and Confidential Informar tion. Employee shall use his best efforts and the utmost diligence to guard and protect all trade secrets and confidential information of Employer. Employee shall not, either during or after the period of his employment by Employer, in whole or in part, use for himself or any other person, firm, partnership, corporation, association or entity, the identity of Employer’s customers or customer lists, methods of operation, obtaining business, pricing, processes, techniques, systems, formulas, any information contained in the ‘customer history book’ furnished by Employer to Employee, or other trade secrets or confidential information relating to Employer’s business. In the event Employee’s employment by Employer shall terminate for any reason whatsoever, he shall immediately return to Employer originals and any copies of all catalogs, price books, ‘customer history books’, designs, drawings, estimates, quotations, customer lists, records and papers and all other matters or documents of whatever nature which bears Employer’s secrets or confidential information, and which are in Employee’s possession or in his control. Employee acknowledges and agrees that the memorization or mental retention by Employee of the aforesaid secret or confidential information shall be deemed to be a ‘taking’ hereunder, and thus subject to the restrictions contained in this Agreement.
4. Remedies. ***
* * *
[T]o the extent any provision hereof is deemed unenforceable by virtue of its scope in terms of area or length of time, buy [sic] may be made enforceable by limitations thereon, Employee agrees that the same shall be enforceable to the fullest extent permissible under the law and public policies applied in such . jurisdiction in which enforcement is sought.
* * *
8. Severability. The invalidity, illegality, or unenforceability of any provision hereof shall not in any way affect, impair, invalidate or render unenforceable this Agreement or any other provision hereof.”

On December 30, 1991, Harkabus voluntarily terminated his employment with Abbott.

Abbott’s complaint alleged that Harkabus had breached the Agreement by (1) soliciting, accepting orders and interfering with Abbott’s customers; (2) wrongfully utilizing Abbott’s trade secrets; and (3) wrongfully making and retaining lists of Abbott’s customers. Abbott further alleged that Harkabus wrongfully used Abbott’s trade secrets lists in order to obtain customers for himself in violation of the agreement as well as the Illinois Trade Secrets Act (765 ILCS 1065/1 et seq. (West 1992)). Abbott asked for damages as well as injunctive relief.

Harkabus moved for judgment on the pleadings under section 2— 615 of the Code of. Civil Procedure (735 ILCS 5/2 — 615 (West 1992)). According to Harkabus, paragraph 2 of the agreement was unenforceable because it lacked geographic limitations and would prevent him “from engaging in any business whether directly or indirectly which would compete with” Abbott. On July 13, 1992, the trial court granted, by letter, Harkabus’ motion for judgment on the pleadings, subject to the preparation by Harkabus’ counsel of a written order. On July 27, 1992, Abbott moved that the court sever any unenforceable provisions in the agreement from those which were enforceable and grant judgment only as to those provisions which were unenforceable. On July 31, 1992, the trial court entered an order, prepared by Harkabus’ counsel, granting Harkabus’ motion for judgment on the pleadings, finding that the entire agreement was “void as being against public policy in a restrain of trade [sic].” Abbott appeals this order.

The grant of a motion under section 2 — 615 is appropriate only where plaintiffs complaint is legally insufficient such that plaintiff can prove no set of facts that would entitle it to relief. (Campbell v. A.C. Equipment Services Corp. (1993), 242 Ill. App. 3d 707, 711.) We must accept as true all well-pleaded facts in plaintiff’s complaint and determine whether plaintiff has set forth a cause of áction on which relief may be granted. Delgatto v. Brandon Associates, Ltd. (1989), 131 Ill. 2d 183; Geise v. Phoenix Co. of Chicago, Inc. (1993), 246 Ill. App. 3d 441, 445.

"Enforceability of a restrictive covenant in an employment contract is dependent on whether, given the particular facts of the case, the restraints imposed thereby are reasonably necessary for the protection of the employer’s business from unfair or improper competition.” (Emphasis added.) (Arpac Corp. v. Murray (1992), 226 Ill. App. 3d 65, 75; see also Label Printers v. Pflug (1991), 206 Ill. App. 3d 483, 491.) The reasonableness of a noncompetition agreement is measured by its hardship to the employee, its effect upon the general public, and the reasonableness of the time, territory, and activity restrictions. (Millard Maintenance Service Co. v. Bernero (1990), 207 Ill. App. 3d 736, 750.) Courts uphold only those noncompetition agreements which protect the employer’s legitimate proprietary interests and not those whose effect is to prevent competition per se. L S B Z, Inc. v. Brokis (1992), 237 Ill. App. 3d 415, 425.

An employer ordinarily has no proprietary interest in its customers. (Reinhardt Printing Co. v. Feld (1986), 142 Ill. App. 3d 9, 15.) However, Illinois recognizes a protectable proprietary interest in “near-permanent” customer relationships. (Agrimerica, Inc. v. Mathes (1988), 170 Ill. App. 3d 1025, 1031-32.) Courts use the following factors to determine whether such a near-permanent relationship exists:

“(1) the length of time required to develop the clientele; (2) the amount of money invested to acquire clients; (3) the degree of difficulty in acquiring clients; (4) the extent of personal customer contact by the employee; (5) the extent of the employer’s knowledge of its clients; (6) the duration of the customers’ association with the employer; and (7) the continuity of employer-customer relationships.” (L S B Z, 237 Ill. App. 3d at 426.)

The employer must further show that, but for the employee’s relationship with the employer, the employee would not have developed the contact with the customer. Reinhardt, 142 Ill. App. 3d at 16.

An employer can also claim a proprietary interest in its clients when its employee has obtained from the employer confidential information or trade secrets which the employee then uses for his or her personal benefit. Arpac, 226 Ill. App. 3d at 73; Shapiro v. Regent Printing Co. (1990), 192 Ill. App. 3d 1005,1010.

The absence of a geographic limitation is not necessarily fatal to a noncompetition agreement. Courts have upheld restrictions which lack geographic limitations where the purpose of these restrictions “was to protect the employer from losing customers to a former employee who, by virtue of his prior relationship, gained special knowledge and familiarity with the customers’ requirements.” (Arpac, 226 Ill. App. 3d at 77; see also PCx Corp. v. Ross (1988), 168 Ill. App. 3d 1047, 1059.) A restriction on the employee’s ability to solicit clients is only enforceable when the restriction is “reasonably related to the employer’s interest in protecting the customer relations that its employees developed as a direct result of the employment.” McRand, Inc. v. van Beelen (1985), 138 Ill. App. 3d 1045, 1057.

A noncompetition agreement which restricts a specific activity, such as soliciting particular clients, is subject to a lower degree of scrutiny than an agreement which prohibits the employee from engaging in any type of competition with the employer. Arpac, 226 Ill. App. 3d at 76; Dryvit System, Inc. v. Rushing (1985), 132 Ill. App. 3d 9, 13.

The Arpac decision contains a helpful discussion of the factors a court uses to evaluate whether a restriction is reasonable. The court in Arpac evaluated the reasonableness of the following provisions in a noncompetition agreement:

“[defendant] expressly covenants and agrees that during the term of his employment by [plaintiff] and for a period of twenty-four (24) months immediately following the expiration or termination of such employment for any reason *** he will not at any time for himself or on behalf of any other person, firm, partnership or corporation engage in the business (or any part thereof) of manufacturing, producing, marketing or selling shrink-packaging machinery in the United States (other than the states of Wyoming, Montana, Hawaii, and Alaska). Further, [defendant] expressly covenants and agrees that during the term of his employment by [plaintiff] and for a period of twenty-four (24) months immediately following the expiration or termination of such employment for any reason *** he will not at any time induce, or attempt to induce, any customer of [plaintiff] to whom goods have been sold in the preceding five (5) years to refrain from purchasing the same or similar goods from [plaintiff] or to cancel or fail to renew any contract with [plaintiff]; or solicit the business of such customers directly or indirectly for his own account or for the account of any other person, firm, partnership or corporation; or induce, or attempt to induce, any employees, agents or sales personnel of [plaintiff] to terminate any relationship with [plaintiff].” Arpac, 226 Ill. App. 3d at 69.

Defendant in Arpac had appealed the trial court’s order enjoining him from violating the terms of the noncompetition agreement. After concluding that plaintiff had a protectable interest in its customers, the court upheld the trial court’s injunction as to the portion of the agreement which prohibited defendant from soliciting plaintiff’s customers. (Arpac, 226 Ill. App. 3d at 76.) The court determined that, in light of the nature of the industry, that portion of the' agreement was a reasonable attempt to protect plaintiff’s relationship with its customers. (Arpac, 226 Ill. App. 3d at 76.) The court held unenforceable, however, the portion of the agreement prohibiting defendant from engaging in any manner whatsoever in the shrink-wrap manufacturing business for two years. (Arpac, 226 Ill. App. 3d at 79.) The court reasoned that (1) “the virtually unlimited geographic restraints on competitive activities and the further restriction from association with any company whose activities involve competition in the shrink-wrap industry [were] clearly beyond the need of [plaintiff] to protect its interest and [were] unduly harsh on [defendant]”; and (2) plaintiff’s “concern for the protection of its customers *** [was] adequately addressed *** by the nonsolicitation clause of [defendant’s] agreement.” Arpac, 226 Ill. App. 3d at 79.

In Millard Maintenance, the court upheld a noncompetition agreement which prohibited the employee, either by himself or in association with a competing business, from soliciting, diverting, or taking away the employer’s customers, for two years from the termination of the employee’s employment. (Millard Maintenance, 207 Ill. App. 3d at 741.) In Millard Maintenance, the employer presented evidence that it had established long-term relationships with its clients and that its employees became acquainted with those clients by virtue of their employment. (Millard Maintenance, 207 Ill. App. 3d at 742-43.) In upholding the nonsolicitation agreement, the court reasoned that the agreement was reasonable because it left the employee free to solicit any client except those with whom the employer had established a relationship. Millard Maintenance, 207 Ill. App. 3d at 750.

A noncompetition agreement, however, which prohibits an employee from soliciting any of the employer’s clients is less likely to be upheld as a reasonable restraint on trade than a noncompetition agreement which prohibits an employee only from soliciting clients with which the employee has had contact while he or she was employed with the employer. See PCx Corp. v. Ross (1991), 209 Ill. App. 3d 530, 538-39; McRand, 138 Ill. App. 3d at 1058.

We also point out that hardship to the public is one of the factors relevant to whether a restriction on trade is reasonable. Therefore, it is more difficult for an employer to justify prohibiting its former employees from accepting orders from the employer’s clients than merely prohibiting its employee from soliciting such clients. Prohibiting a former employee from accepting orders or doing business with a customer places restrictions on that customer even though it is not a party to the noncompetition agreement. (See Millard Maintenance, 207 Ill. App. 3d at 750.) However, such a restriction can be reasonable where there are a large number of other competitors with which the general public is free to do business. McRand, 138 Ill. App. 3d at 1057; see also Howard Johnson & Co. v. Feinstein (1993), 241 Ill. App. 3d 828, 837.

We now turn to the facts of this case. Defendant argues that enforcing the Agreement would “restrict[ ] the Defendant from making a living in the same type of business.” Defendant is correct that a restriction which would effectively prohibit him from “engaging in his occupation” would be an unreasonable restraint on trade. (See Lee/O’Keefe Insurance Agency, Inc. v. Ferega (1987), 163 Ill. App. 3d 997, 1005.) However, it is not clear from the face of the Agreement in this case that the restrictions at issue constitute such an unreasonable restraint on trade. Although courts closely scrutinize noncompetition agreements (Callahan v. Balfour (1989), 179 Ill. App. 3d 372, 378), only in extreme cases will a court find such an agreement invalid on its face. (See Dryvit, 132 Ill. App. 3d at 14 (agreement prohibiting employee from competing with employer in any manner with no geographic limitation clearly unreasonable).) The Agreement in this case provides that defendant may not “canvass, solicit, divert, take away, accept orders, or interfere with any of the business, customers, trade, or patronage of Employer, wherever located, as same may exist as of the date of termination of Employee’s employment.” It seems, therefore, that under the terms of the Agreement, defendant is free to solicit clients who are not associated with Abbott. It is impossible to ascertain, from the face of the agreement, the hardship that the enforcement of the Agreement will impose upon defendant. Without knowing anything about plaintiff’s business, the type of client relationships that plaintiff maintains, or defendant’s duties during his employment with plaintiff, we are not convinced that plaintiff could prove no set of facts which would entitle it to relief. The enforceability of the agreement will necessarily turn upon the particular facts and circumstances of the case. See Label Printers, 206 Ill. App. 3d at 491.

Having concluded that the trial court erred in granting judgment on the pleadings to defendant, we remand the cause to the trial court for a factual determination, in accordance with the principles we have discussed, as to whether the noncompetition agreement in this case is enforceable.

We next address certain issues that the parties have raised which are likely to arise on remand. First, Abbott argues that if the trial court correctly finds that certain portions of the Agreement are unenforceable, it should sever those provisions and enforce the remaining lawful provisions. Abbott points out that the Agreement contains a severability clause.

The trial court may, in its discretion, modify a contract so that it comports with the law or sever unenforceable provisions from a contract. (Arpac, 226 Ill. App. 3d at 80; Corroon & Black of Illinois, Inc. v. Magner (1986), 145 Ill. App. 3d 151, 166.) The existence of a sever-ability clause in a contract certainly strengthens the case for the severance of unenforceable provisions because it indicates that the parties intended for the lawful portions of the contract to be enforced in the absence of the unlawful portions. (McRand, 138 Ill. App. 3d at 1058.) In certain circumstances, however, the unenforceability of one provision in a contract will render the entire contract void, even though the contract contains a severability clause. (Hill v. Names & Addresses, Inc. (1991), 212 Ill. App. 3d 1065, 1089.) In Hill, the court refused to apply a severability clause to salvage a provision in a non-competition agreement where other provisions in that agreement were unenforceable and the agreement labeled those provisions “essential.” The court reasoned that the language in the agreement labeling the unenforceable provisions “essential” conflicted with the severability clause. (Hill, 212 Ill. App. 3d at 1089.) The court further reasoned that the “essentiality” clauses took precedence over the severability clause because they were “principal and specific.” Hill, 212 Ill. App. 3d at 1089.

In determining whether to modify the Agreement or to sever certain provisions while enforcing others, the trial court should consider the extent to which the provisions operate independently of each other. Because the parties in this case intended the provisions in the Agreement to be severable, the equities would seem to favor enforcing those provisions in the agreement which are valid unless they are so closely connected with unenforceable provisions that to do so would be tantamount to rewriting the Agreement. See Lee/O’Keefe, 163 Ill. App. 3d at 1006-07.

The fairness of the Agreement as originally written is also relevant to whether the trial court should modify the Agreement or sever the unenforceable provisions. House of Vision, Inc. v. Hiyane (1967), 37 Ill. 2d 32, 39; Corroon & Black, 145 Ill. App. 3d at 165-66; Dryvit, 132 Ill. App. 3d at 14.

Harkabus argues, however, that even if the severability clause applies, paragraph 3 of the agreement, concerning trade secrets and confidential information, is invalid because it contains no time restrictions. A trade secret is “a plan or process, tool, mechanism, compound, or informational data utilized by a person in his business operations and known only to him and such limited other persons to whom it may be necessary to confide it.” (I L G Industries, Inc. v. Scott (1971), 49 Ill. 2d 88, 92.) Items such as customer lists, pricing information, and business techniques can be trade secrets if the employer has developed the information “over a number of years at great expense and kept [it] under tight security.” (Reinhardt, 142 Ill. App. 3d at 18.) Whether a piece of information constitutes a trade secret depends on the facts of the particular case. See Label Printers, 206 Ill. App. 3d at 494-95; Reinhardt, 142 Ill. App. 3d at 19-20.

Section 8 of the Illinois Trade Secrets Act provides that “a contractual or other duty to maintain secrecy or limit use of a trade secret shall not be deemed to be void or unenforceable solely for lack of durational or geographical limitation on the duty.” (765 ILCS 1065/8(b)(l) (West 1992).) Therefore, we cannot say that, as a matter of law, the contractual prohibition on the disclosure of trade secrets in this case is void because it contains no time limitation.

The judgment of the circuit court of Du Page County is reversed, and the cause is remanded for further proceedings in conformity with this disposition.

Reversed and remanded.

INGLIS, P.J., and COLWELL, J., concur.