author: Mr. JUSTICE HALLETT

text:
    Glenn R. Lighthart, Plaintiff-Appellant, v. George Lindstrom et al., Defendants-Appellees.
    (No. 73-191;
    Second District (1st Division)
    January 13, 1975.

      Farrell & Edgerton, of West Chicago, for appellant.
    Thomas C. Kelleghan, of Wheaton, and Bauer & Hotte, of Emhurst, for appellees.
   Mr. JUSTICE HALLETT

delivered the opinion of the court:

The plaintiff realtor sued the defendants for real estate commissions allegedy due as the result of his procuring, at their request, a tenant for part of an office building in which they (and their wives) held the beneficial interests under a land trust. A 5-year written lease was signed with an insurance company which, at the end of that initial period (but after both defendants had sold and assigned their interests), exercised its option to renew said lease for another 5 years. No writing whatsoever provided for any real estate commission.

The trial court entered judgment for the plaintiff for commissions ($862.10) due and unpaid on the basis of the initial 5-year term (which judgment has since been fully paid and is not involved in this appeal) but entered summary judgment for the defendants and against the plaintiff insofar as he sought another $693.12 for commissions based on the renewal, some 5-years later. This appeal followed.

The plaintiff contends (1) that the Statute of Frauds (relating to contracts not to be performed within one year of the making) does not bar the alleged oral agreement; and (2) that, since the evidence as to such agreement conflicted, summary judgment was improperly entered because a genuine issue of fact remained for the jury. We disagree and affirm.

The Elmhurst National Bank as Trustee in 1964 acquired a piece of vacant property commonly known as 350 Schmale Road, Carole Stream, Illinois, on which an office building was thereafter erected. The beneficial owners at the time were the Lindstroms and the Ericsons, each husband and wife entity holding a one-half interest. The American States Insurance Company was referred to them by the plaintiff realtor and on March 31, 1965, a written lease was executed between said trustee and said tenant, which lease ran for an initial period of 5 years, with two 5-year options for renewal. No writing whatsoever provided for any commissions, either for the initial term or any renewal.

During that initial 5-year term, both the Ericsons and the Lindstroms disposed of their beneficial interests. The Ericsons sold their one-half interest on May 27, 1967, to the 209 West Wesley Building Corporation (controlled by Jack D. Mason as attorney in fact). On August 1, 1969, the Lindstroms sold their one-half interest to the Helfricks and the Engeseths who, in turn, on September 9, 1970, sold said share to Jack Mason. The American States Insurance Company,, on September 1, 1970, exercised its option under the lease to renew its lease for another 5-year term. So far as the record here discloses, said renewal was not “procured” by the plaintiff, and it is not disputed that the defendants at that point no longer had any interest whatsoever in the lease or in the land trust.

Although some four payments on his commissions were made between 1966 and 1971, the plaintiff had never been fully paid and in May of 1972 sued Lindstrom and Ericson for $2,082.78. Ericson, in turn, filed a third-party complaint against Mason and the 209 West Wesley Building Corporation and, in October of 1972, moved for summary judgment. In November of 1972, the plaintiff amended to seek another $610.34 and, in December of 1972, moved to strike the defendants’ motion for summary judgment. On March 14, 1973, the plaintiff moved for a partial summary judgment for $862.10 for unpaid commissions based on the first 5-year term and, on that same day, the court entered such a judgment for $862.10 (which has since been paid and is not here involved) and also entered summary judgment for the defendants and against the plaintiff insofar as he sought commissions based on the renewal, some 5 years later. This appeal followed.

I

The plaintiff’s first contention is, in substance, that the Illinois Statute of Frauds (relating to contracts not to be performed within 1 year of the making thereof) does not apply to bar the alleged oral agreement. That statute (Rev. Stat. 1874, ch. 59, par. 1), in pertinent parts, provides as follows:

“[N]o action shall be brought * * * to charge any * * ° person * * * upon any agreement that is not to be performed within the space of one year from the making thereof, unless the promise or agreement upon which such action shall be brought, or some memorandum or note thereof, shall be in writing, and signed by the party to be charged therewith, or some other person thereunto by him lawfully authorized.”

In this case, the plaintiff claims an oral agreement that he was to be paid not only a commission (7 — 4—2—2—2) based on rentals during the first 5-year term but another 2% on the rentals during any renewal thereof, apparently regardless of whether or not he “procured” such renewal and regardless of whether or not those whom he now seeks to hold liable still had, at the time of the renewal, any interest in the lease or property.

Since, when the oral agreement allegedly was made and the 5-year lease was signed (March 31, 1965), it could not have been said that the lease would necessarily or even probably be renewed at tibe end of the first 5-year term, we do not here have a situation where a commission is definitely due for services performed but with payment deferred for 5 years. On the contrary, we have here a situation where, at the time of the alleged oral contract and signing of the lease, it was not at all certain that the contingency (upon which liability for commission was to depend) would ever occur, and most certainly that could not be ascertained until the end of the first 5-year term. As a result, it is obvious and we now hold that the alleged oral agreement (for a 2% commission on any renewal after the first 5-year term) was and is within the Statute of Frauds unless otherwise circumvented. Plaintiff cites only one case (Thermal-Tite Insulation Co. v. American Insulation Corp. (1945), 326 Ill.App. 252, 61 N.E.2d 304) on this issue but that case is readily distinguished because there the court held that the contract “could have been performed within the year” which is simply not the case here. In no way could it have been ascertained, within the first year, that the lease would be renewed some 5 years later.

Plaintiff next contends that the Statute of Frauds does not here apply “as a result of full performance by Plaintiff,” citing some five cases. Again, this does not stand up under analysis. The plaintiff did not “perform” the act (viz., renewal) which made his commission due. He had nothing to do with the renewal, nor is he assisted by his argument that the defendants are somehow “estopped” because, at the time of the renewal, neither of them had any interest whatsoever in the lease or the property.

A somewhat similar case is Zupan v. Blumberg (1957), 2 N.Y.2d 547, 161 N.Y.S.2d 428, where an advertising solicitor sought commissions of an advertising agency on the basis of business it had done more than 1 year later with client he had referred to it within the year. In reversing a judgment for the plaintiff without remandment, the Court of Appeals said that the contract had to be in writing “since performance is dependent, not upon the will of the parties to the contract, but upon that of a third party” (2 N.Y.2d 547, 550, 161 N.Y.S.2d 428, 429), and quoted from an earlier New York case where the court had reached a similar result because “‘[t]he plaintiffs’ right to commissions * 9 * was wholly dependent upon the act of the third party, the procured customer.’” 2 N.Y.2d 547, 551, 161 N.Y.S.2d 428, 431.

Similar results on this same ground are reflected in Nurnberg v. Dwork (1960), 12 App. Div. 2d 612, 208 N.Y.2d 799, and Washecka v. Brownyard (Sup. Ct. 1961), 219 N.Y.S.2d 320.

We therefore conclude and hold that, insofar as the plaintiff claims an oral agreement in 1965 which would entitle him to a commission on rentals under a renewal in 1970, the alleged oral agreement was and is barred by the Statute of Frauds relating to contracts not to be performed within 1 year of the making thereof.

II

This brings us to the plaintiffs second contention — that, since the evidence as to the oral contract he alleges conflicts, summary judgment was improperly entered because a genuine issue of fact remained for the jury.

Summary judgment is properly entered whenever:

“* # * the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment or decree as a matter of law. * * Ill. Rev. Stat. 1971, ch. 110, par. 57(3); see also Strobeck, Reiss & Co. v. Nehf (1973), 14 Ill.App.3d 529, 302 N.E.2d 743.

The issue of fact necessary to block summary judgment must not only be genuine, it must involve a “material fact." Illinois Power Company v. City of Jacksonville (1960), 18 Ill.2d 618, 165 N.E.2d 300; Stein v. Baum (1967), 89 Ill.App.2d 142, 232 N.E.2d 96; Menge v. Liberty National Bank (1962), 36 Ill.App.2d 61, 183 N.E.2d 567.

Since we have already held that the contract alleged is barred by the Statute of Frauds (relating to contracts not to be performed within 1 year of the making thereof) unless in writing, and since it is conceded by the plaintiff that no such wilting has ever here existed, the issue conceniing it does not involve a “material fact" and the defendants are, regardless of its resolution, “entitled to a judgment or decree as a matter of law.”

In Sinclair v. Sullivan Chevrolet Co. (1964), 31 Ill.2d 507, 202 N.E.2d 516, in affirming a summary judgment for the defendant on the ground that the agreement alleged was not one to be performed within 1 year from the making thereof and was not in writing, our supreme court, at page 511, concluded “that the present suit was barred by statute as a matter of law and that the trial court was correct in granting summary judgment for the defendant”.

We likewise conclude that the oral contract claimed by the defendant was and is barred by the Statute of Frauds and that the trial court was correct in granting summary judgment for the defendants and against the plaintiff insofar as he sought commissions based on the tenant’s renewal, some 5 years later.

We therefore affirm that judgment of the circuit court.

Judgment affirmed.

SEIDENFELD, P. J., and GUILD, J., concur.


source: Caselaw Access Project

author: Mr. PRESIDING JUSTICE T. MORAN.

license: Public Domain

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. William Timmons, Defendant-Appellant.
    (No. 73-51;
    Second District
    January 13, 1975.
    Ralph Ruebner and Adam Lutynski, both of State Appellate Defenders Office, of Elgin, for appellant.
    Jack Hoogasian, State’s Attorney, of Waukegan (James W. Jerz, of Model District State’s Attorneys Association, of counsel), for the People.
   Opinion by

Mr. PRESIDING JUSTICE T. MORAN.


author: Mr. JUSTICE RECHENMACHER

text:
    Joseph Krass et al., Plaintiffs-Appellants, v. Dominic Froio, Defendant-Appellee.
    (No. 74-174;
    Second District (2nd Division)
    January 9, 1975.
    Ricci & Lascaro, of Wood Dale, for appellants.
    Teschner & Botti, of Wheaton (A. E. Botti, of counsel), for appellee.
   Mr. JUSTICE RECHENMACHER

delivered the opinion of the court:

Plaintiffs appeal from the trial court’s order dismissing their amended complaint to recover damages for libel and awarding defendant $400 as attorney’s fees.

Plaintiffs amended complaint alleged that on April 15, 1973, when defendant was a candidate for the office of president of the Village of Bloomingdale, he published and caused to be distributed to the residents of that municipality a letter which stated in part that plaintiffs and “the unknown powers hidden in the trust controlling the TIT [Bloomingdale Pit News] will do anything to influence the outcome of this election. They will spend vast amounts of money to defeat any candidate for elective office in Bloomingdale that dares to present the facts, and refuses to be bribed or bought off. The residents * * * should ask Mr. Joe Krass, Paul Ahlrich and others about the financial benefits and new home offered to Trustee Froio since his election to the board.” The complaint alleged further that the letter meant that plaintiffs had committed the crime of bribery in violation of section 33 — 1 of the Criminal Code (Ill. Rev. Stat. 1973, ch. 38, par. 33 — 1) and that said letter was so read and understood by the residents.

Defendant moved to dismiss, or in the alternative, to strike the amended complaint or make it more definite, and for attorney’s fees in the sum of $400 “in researching and preparing this motion, not counting arguments to follow.” The trial court filed an opinion referring to an earlier opinion dismissing the original complaint, and after a thorough consideration of the Illinois authorities on libel per se and per quod held in effect that since the words used are capable of an innocent construction they are not libelous.

We agree. In determining whether or not material is libelous it must be read as a whole, and if after being so read it is capable of an innocent construction, it must be so construed and declared nonactionable as a matter of law. (Snead v. Forbes, Inc. (1971), 2 Ill.App.3d 22, 26-27, and John v. Tribune Co. (1962), 24 Ill.2d 437, 442.) The statements contained in the letter of which the plaintiffs complain obviously fall within the Illinois innocent construction rule which makes it non-actionable.

The trial court’s opinion did not refer to or comment upon defendant’s request for attorney’s fees made in conjunction with his motion to dismiss the amended complaint. That request was stated to have been based upon section 41 of the Civil Practice Act (Ill. Rev. Stat. 1973, ch. 110, par. 41). However, the order appealed from did award defendant $400 as attorney’s fees.

Neither do the briefs of the parties in this court present any argument concerning the propriety of that award. The only pertinent reference to that portion of the order is contained in appellants’ brief and is to the effect that such award “was made in spite of the fact that at tire proceeding on the motion to dismiss the amended complaint, no hearing was had on the question of fees.”

Section 41 provides as follows:

“§ 41. Untrue statements. Allegations and denials, made without reasonable cause and not in good faith, and found to be untrue, shall subject the party pleading them to the payment of reasonable expenses, actually incurred by tire other party by reason of the untrue pleading, together with a reasonable attorney’s fee, to be summarily taxed by the court at trial.”

That section clearly contemplates a hearing at the trial at which the court may summarily tax reasonable attorney’s fees and reasonable expenses incurred by reason of untrue pleading by the adverse party. The plaintiffs’ amended complaint cannot be characterized as an untrue pleading, and, of course, there was no trial. Therefore, the trial court erred in awarding attorney’s fees to the defendant.

We affirm the dismissal of the amended complaint and reverse the award of attorney’s fees.

Affirmed in part and reversed in part.

T. MORAN and DIXON, JJ., concur.

         The cases include Cook v. East Shore Newspapers, Inc., (1945), 327 Ill.App. 559, 588, and Lundstrom v. Winnebago Newspapers, Inc. (1960), 27 Ill.App.2d 128, 133.


author: Mr. JUSTICE GUILD

text:
    The People ex rel. Joe Vasquez, Relator-Appellant, v. Gerald R. Pratt, Sheriff, Winnebago County, Respondent-Appellee.
    (No. 74-336;
    Second District
    January 13, 1975.
    Ralph Ruebner, of State Appellate Defender’s Officer, of Elgin, for appellant.
    Philip G. Reinhard, State’s Attorney, of Rockford (James W. Jerz and Christine Drucker, both of Illinois State’s Attorneys Association, of counsel), for appellee.
   Mr. JUSTICE GUILD

delivered the opinion of the court:

This is an appeal from a judgment quashing a petition for a writ of habeas corpus. On this appeal, relator contends that he should be released from custody since he was held for 3 days beyond the 30-day commitment period authorized by section 15 of the Uniform Criminal Extradition Act (Ill. Rev. Stat. 1973, ch. 60, par. 32) while awaiting requisition without recommitment for an additional 60 days pursuant to section 17 of the Act being ordered until the 33rd day of his confinement. On the 33rd day of his confinement, recommitment for an additional 60 days was ordered and it appears that the requisition warrant was filed on the same date.

The relator herein, Joe Vasquez, was arrested and incarcerated in the Winnebago County jail on June 12, 1974. On June 17, 1974, a warrant was issued charging the relator with being a fugitive from justice. On June 18, 1974, Vasquez was brought before an associate judge on the fugitive warrant and complaint. The court ordered Vasquez held for 7 days pending the filing of the requisition warrant from the Governor of Michigan. On June 25, 1974, Vasquez again appeared in court and the trial judge ordered him to reappear 30 days from the date he was incarcerated, which was June 12, 1974. On July 12, 1974, a hearing was held to determine whether Vasquez should be held an additional 60 days or should be discharged. On that date the hearing was continued for decision to July 15, 1974. On July 15, 1974, the court ordered that Vasquez be held for another 60 days. While the record before us is not clear, it appears that on the same date, July 15, 1974, the Governors warrant of the State of Michigan, dated July 1, 1974, was filed. The relator asked leave to file a petition for a writ of habeas corpus and the trial judge allowed him until September 12, 1974, to file his application for the writ. In the meantime, on August 13, 1974, the Governor’s rendition warrant of the State of Illinois, dated August 2, 1974, was filed. The petition for habeas corpus was filed on September 3, 1974, and the matter was continued to September 20, 1974. On that date a witness from the State of Michigan testified that he had seen Vasquez within the State of Michigan on the date of the alleged murder. The petition for writ of habeas corpus was denied and Vasquez was ordered delivered to the Michigan authorities. The execution was stayed pending appeal to this court.

The application for the writ of habeas corpus was based on the fact that the defendant was held more than 30 days, to-wit: 33 days, as computed from the date of his arrest, June 12, 1974, to the date recommitment for an additional 60 days was ordered and the Michigan Governor’s warrant was filed. In People ex rel. Mack v. Meyering (1934), 355 Ill. 456, 463, 189 N.E. 494, 497, the appellant contested the validity of his detention pursuant to a warrant issued out of the municipal court of Chicago charging appellant with an offense different from that for which his extradition to New Jersey was-sought. When the rendition warrant was served, the preliminary proceeding pursuant to the warrant issued out of the municipal court of Chicago was dismissed. In affirming the dismissal of his petition for habeas corpus, the court stated that after the rendition warrant was served:

, ” appellant was held by authority of the rendition warrant. If he thought the warrant from the municipal court caused him to be held illegally, he could have asked for a writ of habeas corpus at that time. It was too late to question the validity of the preliminary arrest after he had been arrested by the authority of the Governor s warrant.”

The same principle would apply in the case before us, and that is, the determination of the validity of the relators preliminary detention should have been determined by a petition for a writ of habeas corpus filed prior to the service of the rendition warrant by the Governor of Illinois. See People ex rel. Emerson v. Pratt, 23 Ill.App.3d 340, 319 N.E.2d 108.

The most closely analogous case to the situation before us is found in People ex rel. Gummow v. Larson (1966), 35 Ill.2d 280, 220 N.E.2d 165. In Gummoto the relator was originally arrested by the Lake County sheriff on December 11, 1964, pursuant to a warrant issued upon a complaint of the Racine, Wisconsin, authorities as provided by section 13 of the Uniform Criminal Extradition Act (Ill. Rev. Stat. 1963, ch. 60, par. 30). He was released on bail, and the cause was continued to January 5, 1965. The relator remained at liberty until March 23, 1965, when, pursuant to an extradition warrant issued by the governor of Illinois, he was arrested and taken into custody by the sheriff of Lake County. He then filed the habeas corpus petition considered by the court. The relator contended that the provisions of the Uniform Criminal Extradition Act (Ill. Rev. Stat. 1963, ch. 60, pars. 32, 33, 34) were not complied with, contending that he could be admitted to bail or he could be committed to the county jail for not more than 30 days awaiting the extradition warrant to be issued by the Governor. He further contended that if the Governor’s extradition warrant were not executed within 30 days, as specified in section 15, supra, that he might be recommitted for a period not to exceed 60 days. The relator went on to allege that, inasmuch as more than 90 days had elapsed between the date of the relator’s admission to bail and the date of his subsequent arrest pursuant to the Governor’s warrant of extradition, the spirit of the extradition law required his discharge. In rejecting the relator’s contention, the court stated the following with reference to the purpose and effect of the time limitations contained in sections 15 and 17 of the Act.

The purpose of these sections of the extradition law is to prevent unreasonably lengthy periods of confinement of fugitives pending consummation of extradition proceedings by the demanding State. (Cf. Lott v. Heyd, (5th cir.), 315 F.2d 350; Bolton v. Timmerman, 233 S.C. 429, 105 S.E.2d 518.) There is, however, no indication of any legislative intent to restrict the period within which the Governor of Illinois may issue his rendition warrant to the period within which the court which issues the fugitive warrant may commit the accused or require him to give bond.” (People ex rel. Gummow v. Larson (1966), 35 Ill.2d 280, 282, 220 N.E.2d 165, 167.)

Citing Lott v. Heyd (5th Cir. 1963), 315 F.2d 350, and Lombardo v. Tozer (Mo. App. 1954), 264 S.W.2d 376, the court went on to hold that the legality or illegality of the fugitive warrant proceedings was moot since that warrant became functus officio upon issuance and service of the rendition warrant. Similarly, in the instant case, we find that the relator’s petition for habeas corpus was filed too late since it was filed after the rendition warrant was issued and served by the Governor of Illinois, at which time the legality or illegality of the prior proceedings became moot.

Relator makes the additional argument that his release from custody in this case is analogous to the remedy provided by the Code of Criminal Procedure (Ill. Rev. Stat. 1973, ch. 38, par. 103-5(d)) for individuals who are deprived of their right to a speedy trial. This argument is without merit since it ignores the critical difference in the nature of the proceedings contemplated by section 103-5(d) of our Code of Criminal Procedure and the Extradition Act. Section 103-5(d) contemplates a trial to determine the guilt or innocence of a person charged with a crime in which evidentiary rules and constitutional principles of due process are rigidly adhered to in order to assure the defendant a fair hearing. The Extradition Act, on the other hand, contemplates summary, ministerial proceedings in which the primary object is to provide for the expeditious return of the person charged with being a fugitive from justice to the demanding state and in which the guilt or innocence of the person charged with the crime in another jurisdiction cannot be contested. (See People ex rel. Millet v. Babb (1953), 1 Ill.2d 191, 115 N.E.2d 241.) In addition, Gummow, supra, is authority for the proposition that the time period dining which the accused may be committed or required to give bond does not run against the governor of the asylum state so that his failure to issue and serve the rendition warrant within the time wiH prevent extradition. This is to be contrasted with a criminal prosecution in which the failure to bring an accused to trial by a court having jurisdiction within 120 days from the date he was taken into custody unless delay is occasioned by the defendant forever bars the State from prosecuting that person for the offense.

We therefore find that in order for petitioner to have been released on a petition for writ of habeas corpus on the ground that he was held for 3 days without a proper court order while awaiting the issuance and service of the requisition warrant, he should have filed the same and demanded release prior to the service of the rendition warrant of the State of Illinois. Once the rendition warrant has been filed, issues relating to any delay in consummating the extradition proceedings become moot, and absent any question as to the validity of the rendition warrant, relator may be delivered to the demanding State. While there is some authority for the proposition that a petition for habeas corpus contesting the validity of extradition procedures on the basis of a delay in consummation comes too late if filed after the effective date of the requisition warrant, we need not decide this issue inasmuch as relator filed his petition after the effective date of the rendition warrant. Additionally, it is to be noted that even if relator were discharged for having been held over the 30 days, he could be rearrested upon the proper Governor’s warrants having been issued by the State of Michigan and the State of IHinois. (See May v. Sexton (1966), 35 Ill.2d 585, 221 N.E.2d 283.) The judgment of the trial court in quashing the petition for a writ of habeas corpus is hereby affirmed.

Affirmed.

T. MORAN, P. J., and SEIDENFELD, J., concur.


author: Mr. JUSTICE ALLOY Mr. JUSTICE STOUDER,

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. James Thomas, Defendant-Appellant.
    (No. 73-272;
    Third District
    December 31, 1974.
    STOUDER, J., dissenting.
    James Geis and Richard Steok, both of State Appellate Defender’s Office, of Ottawa, for appellant.
    Robert E. Richardson, State’s Attorney, of Ottawa (Frank X. Yackley, Assistant State’s Attorney, of counsel), for the People.
   Mr. JUSTICE ALLOY

delivered the opinion of the court:

Defendant James Thomas was found guilty of possession of cannabis (weighing 25.37 grams) in a jury trial in the Circuit Court of LaSalle County. He was sentenced to a fine of $500 to be paid in period of 6 months. On appeal in this court the only issue presented for review is whether the sworn complaint for a search warrant failed to establish probable cause. Defendant contends that it failed to establish probable cause because it did not contain information sufficient to establish the reliability of the anonymous informer.

It appears from the record that on November 19, 1971, police obtained a warrant and searched defendant’s automobile where they found the cannabis referred to. The warrant was based on information given by an anonymous informer. The affidavit which was filed in the case to authorize the issuance of the warrant specifically stated in relevant part:

“4. That said confidential informant is trustworthy as an informer because of the following facts:
A. Said informant has furnished affiant with information on four prior occasions which information has resulted in four purchases of marijuana or dangerous drugs and that arrests are pending on these four purchases.
B. Said informant told affiant that on November 16, 1971, at our [sic] about 7:00 P.M., said informant saw marijuana in said automobile and Jimmie D. Thomas told informant that the substance was marijuana; said informant told affiant that on numerous occasions in the past he has seen Jimmie D. Thomas with marijuana in said automobile.”

It is contended by defendant that under Aguilar v. Texas, 378 U.S. 108, 12 L.Ed.2d 723, 84 S.Ct. 1509, the affidavit for the search warrant was inadequate. In the Aguilar case the court specified that the affidavit or complaint must show (1) circumstances which establish that the information given is reliable, and (2) circumstances which indicate the reliability of the informer himself.

It is apparent that defendant does not contest the sufficiency of the complaint as to the first ground, that is, the reliable nature of the information. The complaint indicated specifically that the informer had seen marijuana in defendant’s car and that defendant had told the informer that the substance was marijuana and that the informer had also carefully described defendant’s car. The defendant argues the fact that the sworn complaint based its conclusion that the anonymous informer was reliable on the fact that the complaint recited “arrests are pending” in instances where previous information was given by informant. They argue from this that apparently the police had not yet concluded that informant’s previous information was accurate since no arrests had as yet been made,. and that there was no corroboration of the informant’s information.

The State correctly notes that four times the informant gave information on direct purchases and four times drugs were purchased as the result of such information furnished by the informant. The fact that arrests had not yet been made in such cases could simply indicate a continuing undercover drug investigation. A police officer may temporarily forego making an arrest so that he may continue the undercover drug purchases. Nothing was developed in any manner supporting the position taken by defendant on this issue. As a matter of fact, arrests are not necessary to verify past information of an informant, as noted in the case of People v. Lawrence, 133 Ill.App.2d 542, 544, 273 N.E.2d 637, where the court said:

“Arrests, standing alone, do not establish reliability, but information that has been proved accurate does. Arrestees may not be prosecuted; if prosecuted they may not be indicted; if indicted they may not be tried; if tried they may not be convicted. If a case is tried, the informer may never testify; his credibility may never be passed upon in court. The true test of his reliability is the accuracy of his information.”

The Lawrence case in the final sentence quoted to the effect that the true test of the informer’s reliability is the accuracy of his information states the essentials required in a complaint for a search warrant. Also, there is certainly no requirement that a search warrant could not issue unless some “independent entity” has passed on the reliability of a police informer as contended by defendant. It is also unnecessary for the affidavit to assert that the affiant himself has made the purchases of the drugs so long as purchases were made on the basis of information given by the informer. It is clear that the allegation that drugs were purchased on the basis of information furnished by the informer in four prior instances stands as a sound basis for the officer s belief that the anonymous informer was reliable.

A judge who determines whether or not there is probable cause may exercise commonsense in interpreting an affidavit. It is not necessary that an affiant spell out in detail the underlying circumstances from which affiant concluded that the informant was reliable. Information which permits the court to render a judgment upon a commonsense reading of the entire affidavit is adequate. As stated by the United States Supreme Court in United States v. Ventresca, 380 U.S. 102, 109, 13 L.Ed.2d 684, 689, 85 S.Ct. 741:

“Recital of some of the underlying circumstances in the affidavit is essential if the magistrate is to perform his detached function and not serve merely as a rubber stamp for the police. However, where these circumstances are detailed, where reason for crediting the source of the information is given, and when a magistrate has found probable cause, the courts should not invalidate the warrant by interpreting the affidavit in a hypertechnical, rather than a commonsense, manner. Although in a particular case it may not be easy to determine when an affidavit demonstrates the existence of probable cause, the resolution of doubtful or marginal cases in this area should be largely determined by the preference to be accorded to warrants. Jones v. United States, supra 362 US at 270, 4 L ed. 2d at 707, 78 ALR2d 233.”

The Ventresca case was decided after the Aguilar case and in fact referred to the Aguilar case in the course of the opinion. In following the Ventresca injunction as to the trial court’s basis for determination of issues such as before us in this case, we note that the affidavit in the instant case specifically described the automobile commonly operated by Jimmie D. Thomas. It also expressly referred to the fact that information from the informant on four prior occasions resulted in four purchases of marijuana or dangerous drugs. Informant also stated that on November 16, 1971, at a specific time, the informant saw marijuana in the automobile of defendant and was told by defendant that this substance was marijuana and that on numerous occasions in the past he had seen defendant with marijuana in said automobile.

The complaint and affidavit were clearly sufficient to sustain the search warrant. To find otherwise in this case would be to apply a hyper-technical, rather than a commonsense, interpretation and would not resolve doubtful or marginal cases according to the preference to be accorded to warrants as mandated in Ventresca. To do otherwise would also require a departure from the principles enunciated and interpreted in the Supreme Court cases (notably the Ventresca case) in requiring unnecessary additional specificity in the affidavit which would not be requisite to defendant’s protection. To search for a hypertechnical basis for quashing the search warrant in the instant case would involve a distortion of the function of this court of review. While virtually all cases treating the issue have certain distinguishing features, the trial judge should be able to use a rational commonsense approach in determination of tire issue. People v. McNeil, 52 Ill.2d 409, 288 N.E.2d 464; People v. Marro, 4 Ill.App.3d 197, 280 N.E.2d 560.

In the cause before us the affiant did not act simply on suspicion or belief but stated the facts and circumstances upon which the belief was based, and the underlying circumstances which are requisite were adequately furnished so as to permit the issuing judge to perform his independent function of determining the existence of probable cause.

For the reasons stated, the judgment of the Circuit Court of La Salle County is affirmed.

Affirmed.

SCOTT, J., concurs.

Mr. JUSTICE STOUDER,

dissenting:

I respectfully disagree with the decision of the court. In my opinion, the affidavit does not sufficiently establish probable cause for the issuance of the search warrant. Consequently, the search and seizure under the authority of the warrant were improper, and the evidence so seized should have been suppressed.

Although the rule is axiomatic and so universal that its repetition might not seem of any significance, nevertheless I think that it should be borne in mind that the constitutional requirement that search warrants issue only upon probable cause requires that the sufficiency of the affidavit or other evidence of probable cause be considered without regard to the success or failure of the execution of the warrant. A distorted view of the constitutional protection is possible and must be guarded against when the cases on this issue are considered. Because of the nature of the problem, published cases involve generally those circumstances where contraband and other incriminating evidence have been in fact discovered and seized. Those cases in which the search has been fruitless do not come to the attention of the reviewing courts, and this is so regardless of whether the search warrant was or was not properly issued or executed. This places, in my judgment, a heavy burden both on the police officers and the court issuing search warrants to conscientiously safeguard a citizens right of privacy from unreasonable invasion.

The majority of the court and both parties concede the validity of the rule in Aguilar v. Texas, 378 U.S. 108, 12 L.Ed.2d 723, 84 S.Ct. 1509, regarding the twofold requirement for the complaint for a search warrant where the information is supplied by an informant. Aguilar requires that two things be shown in the complaint for the search warrant: (1) the underlying circumstances from which the informant concluded that the narcotics were where he claimed they were; and (2) the underlying circumstances from which the officer concluded that the informant was credible or his information reliable. The sole issue on this appeal is whether the affidavit for the search warrant failed to establish probable cause because it did not contain information sufficient to establish the reliability of the anonymous informer.

Although recognizing the existence of the Aguilar rules, the majority of the court, by placing such heavy reliance on United States v. Ventresca, 380 U.S. 102, 13 L.Ed.2d 684, 85 S.Ct. 741, suggests that the Aguilar rule has been modified by the Ventresca case. This is not true, for Ventresca does not involve the reliability of an anonymous informer. I have no quarrel with the majority’s citing the Ventresca case for the general principle that a commonsense reading should be given to an affidavit rather than a hypertechnical interpretation. Indeed, I wholeheartedly support the rule that requires that the affidavit be considered from a commonsense view, but I believe the application of the rule which supports the result in the Ventresca case compels an opposite result in the instant case.

Ventresca involved a prosecution for possession and operation of an illegal distillery. The affidavit in that case recited that the relevant information was in part based upon the affiant’s (investigator assigned to the case) observations as weH as upon information obtained from other investigators of the Alcohol and Tobacco Tax Division of the Internal Revenue Service assigned to the same investigation. The affidavit there described seven different occasions when a car was driven into defendant’s yard. On four of these occasions the car carried loads of sugar in 60-pound bags; it made two trips loaded with empty tin cans, and once it was merely observed as being heavily laden. The car’s owner and a passenger were seen on several occasions loading the car at defendant’s house and later unloading apparently full 5-gallon cans at the passenger’s house later in the evening. On one particular date after a delivery of empty tin cans to defendant’s house, the driver and passenger were observed carrying from the house cans which appeared to be fiHed and placing them in the trunk of the car. On two specific occasions investigators smelled the odor of fermenting mash as they walked along the sidewalk in front of Ventresca’s house. On another occasion at about the same time in the early morning they heard certain metallic noises. On the day before applying for the search warrant they heard (while they smelled the mash) sounds similar to that of a motor or pump coming from defendant’s house. All of these observations were made by affiant and his fellow investigators engaged in a common investigation, and the affidavit so stated such fact.

The Ventresca case, as can be readily seen from the above exposition of its facts, is easily distinguishable from the case at bar wherein the only support for the reliability of the informer himself is that “said informant has furnished affiant with information on four prior occasions which information has resulted in four purchases of marijuana or dangerous drugs and that arrests are pending on these four purchases.” I see no way of comparing the facts contained in the affidavit in the Ventresca case with the only issue in the present case, namely, the reliability of the anonymous informer.

Defendant cites three Illinois cases in support of his argument that the sworn complaint for the search warrant failed to establish probable cause because it did not contain information sufficient to establish the reliability of the anonymous informer, People v. Parker, 42 Ill.2d 42, 245 N.E.2d 487, People v. McClellan, 34 Ill.2d 572, 218 N.E.2d 97, and People v. Lawrence, 133 Ill.App.2d 542, 273 N.E.2d 637. In Parker, in holding that the affidavits for the search warrant were defective, the court stated, "They do not reveal the character of this prior information or whether it led to arrests or convictions. Nor do they allege that the present information had been independently corroborated by the affiant or any other officers, other than the proof that the substances handed over were marijuana. Absent such factual allegations, or other grounds from which as issuing magistrate could reasonably credit the informer’s accusation, the affidavits are defective and the warrants cannot stand.” (42 Ill.2d 42, 44-45.) The facts in the Parker case are strikingly similar to those in the instant case and furnish persuasive support for the conclusion that the result in the present case be the same as that in Parker.

In McClellan the court held there was not probable cause for an arrest without a warrant where the reliability of the informer was only shown by the fact that the police had acted on previous tips by making arrests. The court there left unanswered the question whether the tips of an informer must lead to convictions, but held that the fact that the police acted upon previous information of an informer does not prove that the prior information was accurate and the informer reliable.

The Lawrence case also dealt with the existence of probable cause for a warrantless arrest and there the court affirmed the conviction. At the hearing on the motion to suppress one officer testified that he had used the informant on three prior occasions, that his information proved accurate, arrests resulted and the cases were pending in court. The other officer testified that he had used the informer once, that the information supplied by him turned out to be correct, and arrests had been made and the case was awaiting trial. The court there stated that convictions are not essential in establishing an informer’s reliability and held, “The true test of his reliability is the accuracy of his information.” (133 Ill.App.2d 542, 544.) The Lawrence case is distinguishable because there was at least an indictment and an entity distinct from the police (the grand jury) examined the prior information and found it accurate. It is not necessary here tp decide whether such an independent entity’s ex-animation of the information is necessary since Lawrence is distinguishable on its facts. Lawrence dealt with a warrantless arrest, and there was a certain degree of exigency involved in the factual situation. Contrary to the assertion of the majority of the court, the Lawrence case is not authority for the proposition that arrests on former tips are unnecessary to justify the conclusion of reliability. In fact there were prior arrests and prior indictments. Indeed, the court concludes that even if there were prior arrests the reliability of the anonymous informer may not have been shown.

The State in its brief argues, “The Complaint for Search Warrant in the instant case states that this informant gave information to the affiant on four previous occasions; that each of these four occasions involved information on drug purchases; that each time the affiant purchased drugs based on the information furnished by this same informant; and that arrests were pending in each of the four cases at the time the instant Complaint for Search Warrant was drawn up.” The State contends that the affiant stated that the affiant purchased drugs based on the information, and yet an examination of the record reveals that this is not the case. The affidavit for the search warrant only states that the information given to the affiant resulted in purchases being made. It does not state, as contended by the State in its brief, that the affiant made the purchases. It appears that the State is arguing on appeal what it believes should have been included in the affidavit. The affiant merely concludes the information resulted in purchases and gives no indication in the affidavit as to how he knew this to be true or that the materials purchased were marijuana. If the purchases had been made by the affiant based on the informant’s information it would have been a simple matter to so state this fact in the affidavit. It cannot be assumed that the affiant personally made the purchases. I do not intend to imply that an affiant need make purchases himself, but if sales are to be relevant in determining reliability, the affiant must show, as the State apparently concedes, some personal knowledge in the transaction.

The State cites three Illinois cases in support of its position that the affidavit here established the reliability of the informant, People v. McNeil, 52 Ill.2d 409, 288 N.E.2d 464, People v. Marro, 4 Ill.App.3d 197, 280 N.E.2d 560, and People v. Ramirez, 124 Ill.App.2d 407, 260 N.E.2d 435. All three cases are distinguishable on their facts from the instant case. Ramirez dealt with a warrantless arrest and search where the police were twice informed by the informer that he could make a purchase of marijuana from defendant, the informer was searched sufficiently to make sure that he did not have narcotics on his person, he was given a prerecorded bill, the police officers were subsequently advised by radio that the informer had notified headquarters that the sale had been completed, and the officer then recovered marijuana from defendant. In Ramirez the court recognized the distinction between cases such as Ramirez concerning a warrantless- arrest and search and cases concerning an affidavit in support of a search warrant. It stated, “Cases cited'by defendant are inapplicable or distinguishable from the case at bar. Aguilar * * * and People v. Parker * * * - are cases dealing with the reliability of an anonymous informant in connection with an affidavit made for the issuance of a search warrant, and are not concerned with reasonable grounds for arrest without a warrant and an incidental search.” (124 Ill.App.2d 407, 412.) As the State recites in its own brief, “[o]ne cannot reason from the probable cause required for an arrest to the probable cause needed for a search warrant, as was specifically held in People v. Ramirez, 124 Ill.App.2d 407, 260 N.E.2d 435.”

The McNeil and Marro cases both dealt with affidavits in support of a search warrant and in both cases the affidavits were held sufficient. These two cases, however, are easily distinguishable from the case at bar on their facts. In McNeil the court stated, “In appraising .the present affidavit the issuing judge was entitled to take into account the fact that the dominant feature of the present situation was the-imperative necessity for quick action.” (52 Ill.2d 409, 413.) It should be noted in the case at bar that the information was given to the affiant police officer 3 days prior to the issuance of the search warrant. In the Marro case the court held: “In the instant case we must note that the facts involved are almost identical with those # In each of these cases the affiant police officer received information from an undisclosed informant who had previously supplied true and accurate information resulting in enumerated arrests and convictions. In each of these cases the undisclosed informant stated he placed bets over a certain phone number, and a check with the telephone company resulted in ascertaining the address associated with that phone number, which address was set out in the warrant. In each of these cases the affiant stated he dialed the given phone number, handed the telephone to tire informer and then listened to the one-sided conversation of the informant, the substance of which was the placing of a bet.” 4 Ill.App.3d 197, 202.

In the case at bar, the affidavit states arrests were pending in the cases « previously involving the informant. This term “arrests pending” is a very conclusionary and vague phrase from which it is not possible to ascertain exactly what the situation was concerning these prior tips.' The majority of the court speculates concerning the meaning of the term-, suggesting,perhaps, that arrests will be made in the future or that perhaps legal proceedings will be instituted pursuant to the sales and tips. Such speculation hardly attains the status of a “commonsense interpretation” of the affidavit.

I believe the court erred in refusing to quash the search warrant.


text:
    Ulis H. Garrett, Plaintiff-Appellee, v. Warren C. Babb et al., Defendants-Appellants.
    (No. 73-148;
    Second District
    January 9, 1975.

      Rehearing denied January 11,1975.

      North, North & Ohlson, of Rockford (David A. North, of counsel), for appellants.
    John A. Strom, of Belvidere, for appellee.
   Mr. JUSTICE GUILD

delivered the opinion of the court:

This is an appeal from a judgment against the seller of real estate, entered upon a jury verdict, which awarded $5,000 to the executor of the estate of a real estate broker. The judgment arose out of an action filed by Ulis H. Garrett, the realtor, since deceased, and substituted by Hanzel L. Garrett, as executor of the estate of Ulis H. Garrett, as party plaintiff against the defendant sellers, Warren C. Babb and Violet Babb. The complaint alleged that a commission was due plaintiff as the result of his efforts in attempting to secure a purchase for the sale of the Babb farm. The issues herein presented are whether the judgment was contrary to the manifest weight of the evidence and whether the jury was improperly instructed as to the applicable law.

In 1966, the defendants orally engaged Ulis H. Garrett to secure a purchaser for the sale of their 200-acre farm in Boone County. It is agreed that the defendants employed plaintiff on a nonexclusive basis and that the plaintiff’s claim for commission is based solely upon plaintiff’s efforts in producing Dean Warrington, a. prospective purchaser, to whom the farm in this case was eventually not sold. The defendants contend that the judgment below must be reversed either because no binding sales contract was “completed” by the buyer and seller, or alternatively because the prospective purchaser was unwilling and/or unable to buy the property upon the terms agreed to by the seller.

The testimony of Dean Warrington, the prospective purchaser, indicated that in the early part of December, 1966, he went to the Garrett Realty office in response to an advertisement for the sale of a farm which he had seen in the local newspaper. Garrett took Warrington to the Babb farm and they examined the premises and Warrington generally discussed the terms of sale with Warren Babb and Garrett. About 2 or 3 days later Warrington again visited the Babb farm, accompanied on this occasion only by his wife, and again discussed the terms of sale but this time with considerable specificity. The terms agreed upon at this meeting were a purchase price of $130,000 payable as follows: $10,000 as a down payment, $10,000 at the time of the signing of the contract, $10,000 by November 1, 1967, and yearly installment payments of $2,000 or more plus 5%% interest, with the entire contract to be paid 10 years from date. Included in the pinchase price were certain specialized equipment, outbuildings, lumber, storage bins and other items. On December 9 Warrington and Garrett came to the Babb farm and discussed the same terms that Warrington and Babb had agreed to previously. At this time Warrington signed his check for $10,000 payable to Garrett, which Babb had written and upon the back of which Babb had written the following restrictive endorsement:

“Any endorsement on this check constituted as earnest money on Boone Co. Farm owned by Warren Babb purchase price $130,000.”

This check was endorsed by Ulis Garrett, the realtor. After Babb filled out the front and back of Warrington’s check he extended his hand, shook hands with Warrington and said, “You have bought yourself a good farm.” It appears that Warrington secured this initial $10,000 down payment by cashing in $14,000 in government savings bonds which he had on hand. Warrington needed $6,000 to complete the total of $20,000 to be paid at the execution of the contract, according to the terms previously agreed to. Babb subsequently presented a contract to Warrington which omitted certain agreed upon terms. Warrington refused to sign this contract and, upon complaining to Babb about the omissions, he was advised by Babb that another contract would be drafted.

Warrington contacted his bank and was unable to obtain the additional $6,000 necessary to complete the contract. He then contacted the office manager of the Production Credit Office in Boone County and was told that the matter would be brought up before the board meeting. Warrington testified that he was informed that his $6,000 loan was approved on either January 12 or 19, 1967, Warrington then testified that sometime later his attorney advised him that a second contract had been submitted by Babb and that if he (Warrington) had his finances arranged, it could be signed. He further testified that he was then advised that the farm had been sold to a third party. The testimony is unclear as to the length of time, if any, between the contract having been presented to Warring-tons attorney and the date on which Warrington was informed that the farm was sold to another party. Upon learning that the farm had been sold to a third party, Warrington immediately set up a closing date but on that date no contract was signed. The record does not reveal to whom the farm was eventually sold.

Warren Babb, one of the defendants, was excluded from testifying by the court under the evidence act (Ill. Rev. Stat. 1971, ch. 51, par. 2). Defendants called Ronald Babb, Warren Babb’s son, who testified that there was an express agreement between the plaintiff Garrett and defendant Babb that the commission was to be $5,000 in the event of a sale. He further testified that “the agreement was that the commission would only be earned on completion of the contract and Mr. Garrett agreed to that.”

The general rule regarding brokers’ commissions was stated by the Illinois Supreme Court in Fox v. Ryan (1909), 240 Ill. 391, 396, 88 N.E. 974, 976, as follows:

“Where a broker is employed to sell property by the owner, if he produces a purchaser within the time limited by his authority who is ready, willing and able to purchase the property upon the terms proposed by the seller he is entitled to his commissions, even though the seller refuses to perform the contract on his part. In such case, however, it is necessary for the broker to prove the readiness, willingness and ability of the purchaser to take the property on the terms proposed.”

In Chicago Bar Association v. Quinlan and Tyson, Inc. (1964), 53 Ill.App.2d 388, 203 N.E.2d 131, reversed in part on other grounds in 34 Ill.2d 116, 214 N.E.2d 771, the court noted that it is not essential in Illinois that an executed, written agreement actually be entered into. The seller becomes bound at the moment that his terms have been met.

Applying these principles to the instant facts, we note first that the jury was at liberty to either credit or discredit the testimony of Ronald Babb as to the terms of the agreement between his father, Warren Babb, as seller, and Ulis Garrett, the realtor. That defendants orally engaged plaintiff to procure a purchaser for their real estate and that they agreed to pay plaintiff a commission for his services in procuring a purchaser were facts admitted in the pleadings and, therefore, removed from jury consideration. The credibility of witnesses and the weight to be a‘c-corded their testimony must be determined by the trier of fact, and unless those findings are manifestly against the weight of the evidence, they will not be disturbed on appeal. (M. E. Stein & Co., Inc. v. Jones (1973), 13 Ill.App.3d 184, 300 N.E.2d 553.) We find that the implied finding of the jury that the parties did not agree that a commission was to be paid only upon “completion” of a contract is not contrary to the manifest weight of the evidence.

Defendants next urge that the judgment below should be reversed because plaintiff failed to show the ability or willingness of the prospective purchaser to buy upon the terms agreed to by the seller. A prospective purchaser of realty will be considered ready, willing and able to buy if he has agreed to purchase the property and has sufficient funds on hand or if he is able to command the necessary funds with which to complete the purchase within the time allowed by the offer. (William C. Bender & Co. v. Tritz (1949), 338 Ill.App. 661, 88 N.E.2d 519.) While the exact date on which Warrington was advised that his $6,000 loan, needed for payment on signing of the contract, was approved is unclear, his testimony is clear that his loan was in fact approved and that he was advised of this no later than “around the 19th of January, 1967.” The jury thus had a substantial basis upon which to find that Warrington became “able” to purchase by no later than “around January 19, 1967” since by that time the total of tire funds which he had on hand and the funds which he could command were sufficient to enable him to execute a contract of sale according to the terms agreed to by Babb on December 9, 1966. While there was no testimony which showed that Warrington advised Babb that his $6,000 loan had been approved, we do not believe that under the facts of this case plaintiff was required to make such a showing in order to support his recovery. No testimony was adduced at trial indicating that Babb had any grounds upon which to question Warrington’s ability to purchase or that Babb ever did, in fact, question Warrington’s ability. While it appears that Warrington was not able to buy the realty on December 13, the contract which Babb submitted to Warrington on that date did not contain all the terms agreed to by the parties, and due to the nature of the offer to purchase, the failure of Warrington to sign the contract submitted on December 13 did not terminate the offer made December 9. Warrington had made a substantial down payment for the purchase of property for a total of $130,000. In these circumstances, we do not believe that the offer to purchase had lapsed by tire mere passage of time by January 19 so that the purchaser’s ability to buy came too late. Thus, the plaintiff has introduced evidence which, if believed by the jury, would support a finding that the plaintiff had produced a purchaser who was “able” to purchase the property upon the terms agreed to by the sellers by no later than around January 19, 1967.

The defendant contends, however, that even if Warrington became able to purchase by January 19, the fact that Warrington did nothing from January 19 until February 9 or 10 when he learned that the property had been sold after having been advised by his attorney that a second contract was in his office and could be signed if he had his finances arranged, indicated that Warrington was unwilling to buy. We believe, however, that there is sufficient evidence in the record upon which the jury could have determined that Warrington was continuously willing to purchase throughout the negotiations. The testimony is not explicit as to when Warrington was advised by his attorney that the second contract was ready to be signed. The jury could reasonably have determined that Warrington had insufficient time in which to arrange a date for signing the contract until he learned that the property had been sold to another. Warrington testified to his continued willingness up until February 11 to execute a contract with Babb according to the terms agreed to on December 9; he testified that subsequent to January 18 or 19 he began disposing of surplus livestock in anticipation of completing the same; and he testified that he began moving certain items of personal property onto the Babb farm. He further testified that he planted some trees and moved a hive of bees to the farm. The jury was free to reject an inference of unwillingness arising out of Warrington’s inaction during the period in which the second contract was ready to be signed. On appeal, we will not substitute our judgment for that of the jury where there is sufficient evidence in the record to support the jury’s determination. (Rhodes v. Oliva (1973), 13 Ill.App.3d 849, 301 N.E.2d 126.) Since we find that there was sufficient evidence in the record herein upon which the jury could find that plaintiff had procured a purchaser who was ready, willing and able to purchase within the time allowed by the offer, the verdict of the jury will not be set aside. We hold, therefore, that under the test of readiness, willingness and ability stated in Bender, supra, a broker who shows that he produced a prospective purchaser who agreed to the sellers’ terms, who was continuously willing to purchase during the time of the relevant negotiations and who became able to execute a contract upon the agreed terms at a reasonable time subsequent to the initial negotiations, has made a prima facie case for recovery of his commission. The commission is earned upon the simultaneous concurrence of the buyer’s readiness, willingness and ability.

Finally, defendants assert that the jury was improperly instructed as to the applicable law, Defendants contend that the giving of plaintiff’s instructions No. 6 and No. 7 over defendants’ objections was error. They read as follows:

“If you believe by a preponderance of the evidence as defined in these instructions, that Ulis H. Garrett was employed by the defendants, Warren Babb and Violet Babb, to effect a sale of the farm owned by the defendants and that Ulis H. Garrett was the efficient and procuring cause of the sale, then Ulis Garrett would be entitled to a commission no matter how slight the service performed might appear to be. [Plaintiff’s instruction No. 6.]”
“If you believe from the evidence that the defendants employed the plaintiff as a real estate agent to sell for them the land in question at the specified price, and that the plaintiff entered upon such employment and did on behalf of Warren Babb and Violet Babb find and negotiate with Dean Warrington and did bring him and the defendants together and that he and the defendants did agree upon the price and terms of such proposed sale and that Dean Warrington was ready, able and willing to make such purchase according to such agreement, and that it was no fault of his or the plaintiff that such sale was not finally made, then such facts would entitle the plaintiff to recover for his services in this behalf. [Plaintiff’s instruction No. 7.]”

Plaintiff’s instruction No. 6 presupposes that a sale actually took place. Factually the jury found that the plaintiff realtor was entitled to his commission because the realtor produced a buyer who was ready, willing and able, but due to defendants’ fault, the sale did not actually take place. This instruction, if it would tend to mislead the jury, would require an item of proof that was not in evidence, to wit, an actual sale, and based on this instruction the jury could be justified in finding for the defendants as no sale actually took place. Viewing all of the instructions as a whole, we fail to see how the jury could be misled by this instruction and we accordingly find that, while the instruction may technically not be correct, we do not find that it constituted reversible error. This is particularly true when objected-to instruction No. 7 is considered. Defendants contend that instruction No. 7 is argumentative and misleading. We do not agree. The oft-reiterated rule in this state is that each party is entitled to have the jury instructed on its theory of the case provided such theory is supported by the evidence. Trowbridge v. Chicago & Illinois Midland Ry. Co. (1970), 131 Ill.App.2d 707, 263 N.E.2d 619.

Defendants further contend that the trial court erred in refusing to give defendants’ tendered instruction No. 9. We find from an examination of all the instructions given by the court that the jury was fully and fairly instructed as to both the plaintiffs and defendants’ theory of the case. Defendants’ instruction No. 9 was completely covered by other instructions. As stated by the court in Lou v. West Towns Bus Co. (1959), 16 Ill.2d 442, 452, 158 N.E.2d 63, 69:

“Where several instructions embodying the same legal principle are submitted to the court, it may select the one it sees fit and need not repeat the same proposition of law in different language in separate instructions.”

Thus, the refusal to give defendants’ instruction No. 9 was not error.

For the foregoing reasons, the judgment entered below is hereby affirmed.

Affirmed.

T. MORAN, P. J., and SEIDENFELD, J., concur.


author:
Mr. PRESIDING JUSTICE THOMAS J. MORAN
      Mr. JUSTICE RECHENMACHER,

text:
    The People ex rel. Leon Lutz, Petitioner-Appellee, v. Roberta Lutz et al., Respondents-Appellants.
    (No. 73-96;
    Second District
    January 13, 1975.

      RECHENMACHER, J., dissenting.
    Covey, McKennery & Powers, of Crystal Lake, for appellants.
    James P. Hecht, of Woodstock, for appellee.
   Mr. PRESIDING JUSTICE THOMAS J. MORAN

delivered the opinion of the court:

Respondents, Anthony and Marian Ferdinardo, appeal from an order of the trial court granting custody of Marian Ferdinardo’s granddaughter, Marian Lutz, to petitioner, Leon Lutz.

Mrs. Ferdinardo’s daughter, Roberta, married petitioner in 1967. Petitioner adopted Roberta’s child, Marian, who had been bom in 1966. Another daughter, Dawn, was bom of the marriage. The couple separated in 1970, at which time Roberta, with Marian, moved to the respondents’ home. In June of 1972, petitioner was awarded a divorce on the grounds of desertion. Both parties being found fit parents, the trial court awarded petitioner custody of Dawn, and Roberta custody of Marian. By terms of the settlement, the parties were made solely responsible for the support of the child placed in their custody. Shortly after the divorce became final, Roberta was killed in an automobile accident. Marian has remained with her grandparents, the respondents.

Subsequent to Roberta’s death, petitioner filed a writ of habeas corpus for custody of Marian. Respondents filed a motion in the original divorce proceedings to award them custody and also filed a return to the petition for writ of habeas corpus wherein they alleged that petitioner was not entitled to Marian’s custody because he is an unfit parent. The issues were consolidated for hearing. The Mai judge denied the respondents’ motion for custody, granted the writ of habeas corpus and modified the divorce decree to award petitioner custody. The order provided that the respondents have visitation privüeges 1 weekend every 2 months and 5 days at Christmas time.

On appeal, the respondents contend that it was against the manifest weight of the evidence for the court to find (1) petitioner a fit parent, and (2) Marian’s best interest and welfare would be served by placing her in petitioner’s custody.

On the subject of petitioner’s fitness, nine witnesses (eight related to the respondent, Mrs. Ferdinardo) testified to alleged incidents of petitioner’s having abused Marian during the time of his marriage to Roberta. Six of the witnesses gave virtually verbatim testimony regarding separate occurrences of petitioner having force-fed the baby, Marian. Three of the relatives testified to seeing petitioner spank or ‘beat” Marian in anger. There was testimony that petitioner referred to Marian on occasion as “Roberta’s love child.” (We note that although all such incidents were said to have occurred during his marriage to Roberta, the divorce decree found petitioner a fit and proper parent.)

During an interview with the trial judge, Marian at times said that petitioner had hit her and, at other times, said she did not remember him having hit her. The judge stated that he viewed the interview as inconclusive with respect to the question of custody.

A psychiatrist who had interviewed Marian for one-half hour and had a 5-minute discussion with the respondents, testified on the Iatters’ behalf recommending that Marian stay with respondents. He conceded, however, that if he did not believe petitioner had beaten Marian, and if Marian liked petitioner, he would recommend the child be placed in petitioner’s custody.

The petitioner denied all incidents of force-feeding, name-calling and beating. He introduced evidence of his personal fitness through his own testimony, and that of his mother, wife and two former neighbors. Witnesses testified that while he Hved with both girls, he treated them lovingly, that he was a good father to Dawn who continued to five with him after her parents’ separation, and that he could adequately provide for Marian.

Testimony adduced at trial with respect to the best interest of Marian reveals that both petitioner and respondents could provide adequate and proper environments for her and that both parties are fit and proper to have custody. Respondents, who live in a well-kept, middle-class home with Mrs. Ferdinardo’s two daughters, had four witnesses testify to their character and to their affection for Marian. Petitioner is remarried, his wife has no children, and the couple live in a six-room, four-bedroom farm house with Marian’s half-sister, Dawn.

In determining the question of custody, it is not the fitness of a parent but “the best interest of the child” that is the controlling standard. (People ex rel. Edwards v. Livingston, 42 Ill.2d 201, 209 (1969).) In Edwards, the supreme court, reversing the trial court, awarded custody of the 12-year-old boy to his grandfather rather than to the boy’s natural father, despite the fact that both the father and grandfather were found fit to have custody. The facts revealed, however, that during the 9 years that the boy had lived with his grandfather, the natural father, who lived only 30 miles away, had made no attempt to see his son, had not communicated with him except for one Christmas card and, for all practical purposes, was a stranger to the boy. The father had assumed no parental responsibilities and made no contribution to the child’s education or welfare. He, with weekly earnings of $80-$90, had remarried to a woman with five children and the family (of nine) shared a four-bedroom house. Evidence clearly showed that the grandfather had demonstrated a superior ability to provide a loving home for the boy and that during the course of the 9 years, a father-son relationship had been established between the grandfather and the boy. It must be noted that, even under these circumstances, the grandfather was awarded only temporary custody, and the court directed that the father be given liberal visitation privileges in order that affection and understanding could develop between the father and son.

The sole similarity which the instant case shares with Edwards is that here, too, we have determined that both parties are fit and proper to have custody. The remaining facts differ significantly. Here, testimony indicates that after Roberta left, taking Marian with her, petitioner, although living 200 miles away, made at least two dozen attempts to see Marian, saw her twice, wrote letters and sent presents. It is clear that he did not abandon her. Dissimilar also were the facts that Marian had lived with her grandparents for only 2 years at the time of the trial court’s judgment, that petitioner’s second wife has no children and the couple live in a six-room, four-bedroom farm house with Marian’s half-sister, Dawn.

It is recognized that a natural parent has a superior right to custody of the child so long as it is in accord with the best interest of the child. (Osman v. Osman, 130 Ill.App.2d 830, 834 (1970).) This superior right of a parent to custody is based partially on the notion that the child’s welfare is usually promoted by living in a home where there exists a parent-child relationship. (Middlecoff v. Leofanti, 133 Ill.App.2d 822, 826 (1971).) Although these cases specifically concern rights of natural parents, the instant distinction of petitioner being an adoptive parent does not negate the relevance of the rule of law. The fact that petitioner willingly adopted Marian manifested his intent to have and maintain a parent-child relationship with Marian.

The trial judge as the trier of fact is in a position superior to that of the court of review to observe tire demeanor of witnesses and determine their credibility, especially when, as here, the testimony is contradictory. (Schulenburg v. Signatrol, Inc., 37 Ill.2d 352, 356 (1967); Brown v. Zimmerman, 18 Ill.2d 94, 102 (1959).) It is a long-standing axiom that the findings of a trial judge will not be disturbed unless against the manifest weight of the evidence. Shores v. Shores, 119 Ill.App.2d 85, 88 (1970).

The judge’s evaluation of testimony concerning petitioner’s abuse of Marian was that it was apparent to him that the relatives had “chosen up sides” over the question of custody and he was struck by the similarities in the testimony of respondents’ witnesses, particularly by the reoccurrence of the same words and phrases from different witnesses describing separate incidents of alleged abuse.

The judge’s decision in awarding petitioner custody of Marian promotes the integrity of the family unit and Marian’s best interest. Not only is Marian to be reunited with her father; she will also be living with her sister and her step-mother, who expressed enthusiasm for having Marian live with them.

It is evident that the trial judge attempted to effect a solution that would inure to Marian’s best interest. The judge awarded permanent custody to petitioner but made specific provisions in the order for the respondents to have visitation privileges. His intent was to place Marian in her family unit but allow her to experience the love and affection of her maternal grandparents.

For a judgment to be against the manifest weight of the evidence, it is not enough to show that there is sufficient evidence to support a contrary judgment. The evidence on behalf of the appellant must be so strong and convincing as to completely overcome the evidence and presumptions, if any, existing in favor of the appellee. People ex rel. Louth v. Wilmington Coal Co., 402 Ill. 161, 167 (1949); Broncata v. Timbercrest Estates, Inc., 100 Ill.App. 49, 54-55 (1968).

We find that the manifest weight of the evidence supports the trial court’s ruling that Marian’s welfare would be best served by giving petitioner permanent custody and granting visitation rights to the grandparents.

Judgment affirmed.

GUILD, J., concurs.

Mr. JUSTICE RECHENMACHER,

dissenting:

I must dissent.

The resolution of a custody dispute is without doubt among the most difficult of all matters which come before the courts. I recognize that in reviewing the judgment of a trial court we must give due weight and consideration to the fact that the trial court had the opportunity of observing and evaluating the witnesses. However, in this case, a review of the testimony convinces me that the award of Marian’s custody to the appellee was contrary to the weight of the evidence and was not in the girl’s best interest. The appellee and his adopted daughter, Marian, were never close and appellee’s wife is an absolute stranger to the girl. In fact, at the time of the hearing she had been married to appellee only 2 weeks, had never had any children of her own, had never seen Marian prior to the hearing, and appellee testified that the plan was for her (appellee’s present wife) to take over the care of his natural child, Dawn, as well as Marian.

The best interest of the child is the standard, and it is not necessary that the natural parent be found unfit or be found to have legally forfeited his right to custody if it is in the best interest of the child that he or she be placed in the custody of someone other than the natural parent. (See Giacopelli v. The Florence Crittenton Home (1959), 16 Ill.2d 556.) If this standard applies to a natural parent it certainly should apply to the appellee who is an adoptive parent.

The child has been living with and in the home of the maternal grandparents since August of 1970. She went there first with her mother, after her mother and the appellee separated, and she remained with the maternal grandparents after the mother was killed in June of 1972.

It is undisputed that the child is well-adjusted and happy in the grandparents’ home. Also, it is undisputed that the grandparents are fit and proper persons to have the custody of a child; there is no testimony whatever to the contrary. There is considerable testimony to the effect that the appellee beat the child and that the child fears him. There is also testimony by Dr. Kesert, a neurological psychiatrist, that he examined Marian Lutz and that in his opinion the child was happy in the home of the appellants (grandparents), that she was afraid of the appellee, and that it would be very traumatic psychologically for her to be taken from the home of the grandparents at this time. Considering all of these circumstances I am of the opinion that it was against the manifest weight of the evidence and was not in keeping with the child’s best interest to remove her from a happy, stable and wholesome environment for the apparent primary purpose of placing her with her adoptive (not natural) father. I would reverse the judgment of the trial court.


author: Mr. JUSTICE DIXON

text:
    Gulf Oil Corporation, Plaintiff-Appellee, v. County of Du Page, Defendant-Appellant.
    (No. 73-214;
    Second District (2nd Division)
    January 13, 1975.

      Rehearing denied February 11, 1975.

      John J. Bowman, State’s Attorney, of Wheaton (Frank J. Petra, Assistant State’s Attorney, of counsel), for appellant.
    Edward T. Graham, of Glen Ellyn, for appellee.
   Mr. JUSTICE DIXON

delivered the opinion of the court:

This is a declaratory judgment action, in which the plaintiff, Gulf Oil Corporation, asks that the zoning ordinance of Du Page County be declared invalid as applied to certain property the plaintiff owns. The property is located at the northwest corner of Butterfield Road and Park Boulevard, in Du Page County, and is presently zoned R-2, single-family residence district. The plaintiff had petitioned the Du Page County Zoning Board of Appeals and the Du Page County Board of Supervisors for rezoning of its property so as to permit the construction and operation of an automobile service station at that location, but its petition was denied by both of those Boards and so it commenced this action. The Circuit Court of Du Page County entered judgment for the plaintiff, finding that the County’s zoning ordinance was void as applied to the plaintiff’s property, and enjoining the County from enforcing its ordinance so as to prevent the proposed use. The County has appealed from the trial court’s judgment.

From the evidence it appears that the property belonging to the plaintiff which it desires to use for a service station is a square tract of vacant land with a frontage of 200 feet on Butterfield Road and 200 feet on Park Boulevard, at the northwest comer of the intersection. Adjoining this square tract is an L-shaped tract, which the plaintiff also owns, having 26.5 feet of frontage on Butterfield and 202.5 feet of frontage on Park Boulevard, on which is located an abandoned schoolhouse along Park Boulevard which is presently used by the Glen Ellyn Little Theatre Group. Adjoining this L-shaped tract is another L-shaped tract of vacant land, with 410,7 feet of frontage on Butterfield and 35 feet of frontage on Park Boulevard. North and west of this there is yet another L-shaped tract, with 900 feet of frontage on Butterfield and 500 feet of frontage on Park Boulevard, occupied by Glenbard South High School. Farther north along Park Boulevard, past the abandoned schoolhouse, is a church. Farther northwest is the CoHege of Du Page. To the west there is an old farmhouse, and past that, a substantial single-family subdivision. In the area lying north, northwest, and west of the intersection of Butterfield and Park Boulevard and within a distance of a mile from the intersection, there are no commercial uses at the present time; aH the uses are residential, or uses permitted in residential districts; and the zoning is entirely residential.

At the northeast comer of the intersection of Butterfield and Park Boulevard there is a 14-acre tract which is presently vacant, but it is zoned for multiple-family residential use and a substantial multiple-family development is planned for it. For some distance beyond this comer tract, as far as half a mile from the intersection, the land north of Butterfield and east of Park Boulevard is zoned and used for single-family residences.

At the southeast comer of the intersection there are a recently constructed gasoline service station and a recently constructed convenience-type food store. An area of 200 feet by 200 feet immediately east of the service station and the food store is zoned for general business uses but is vacant. For some distance beyond the corner parcels, as far as half a mile from the intersection, the land lying south of Butterfield and east of Park Boulevard is zoned residential and is used entirely for residential purposes, except for one church and one school, which are permitted uses.

At the southwest comer of the intersection there is a house which is used as an office by the doctor who lives there, this being a home-occupation use permitted in a residential district. Beyond, as far as half a mile from the intersection, the land south of Butterfield and west of Park Boulevard is zoned and used for single-family residences.

Butterfield Road, south of which lies the only commercial property in the vicinity, was characterized by a witness for each of the parties as a buffer. It is a limited-access freeway, heavily traveled, with a 200-foot right-of-way and a speed limit of 55 miles per hour. It has been widened to four lanes at the intersection. Park Boulevard is also a major highway, with a 100-foot right-of-way and a speed limit of 50 miles per hour north of Butterfield and 40 miles per hour south. It has four lanes north of Butterfield and two lanes south. Vehicular movements at the intersection are controlled by traffic lights.

The plaintiff proposes a gasoline service station for its corner property, with two pump islands on Butterfield and two on Park Boulevard. The station would have “low-profile” lighting which would illuminate just the buildings and the pump islands, and would have no outside vending machines, rental trailers, pennants, or searchlights. It was not to have deceleration lanes, for the reason that they were not considered necessary, although it was admitted that vehicles entering or leaving a 55-miles-per-hour highway present problems.

The highest and best use of the property, according to the plaintiff’s witnesses, was for a service station. The highest and best use, according to a witness for the County, was for multiple-family residences, which would also require rezoning. The plaintiff’s witnesses testified that the property was not suitable for either single-family or multiple-family residential development, and could not be developed economically for residential use. A witness for the County testified that a gas station would not be a suitable use, but would be an intrusion of an intensive commercial use into a substantial single-family residential community, an intrusion incompatible with the character of the neighborhood. There was agreement, however, by witnesses for both sides that it was possible to make use of the property for single-family residences.

Witnesses for the plaintiff testified that the corner property was worth $25,000 to $27,000 zoned single-family residential, and $130,000 to $140,-000 as a site for a gas station. The property had been bought by the plaintiff in 1968 for business development, with knowledge of its residential classification and knowledge that a gas station could not be constructed there under residential zoning restrictions. Witnesses for the plaintiff testified that permitting use of the comer property for a gas station would have no detrimental effect on neighboring property, but it was conceded that if there were a house on adjoining property it would be harder to sell with a gas station next to it. A witness for the plaintiff testified that a gas station was needed at that location, but he further testified, on cross-examination, that in addition to the gas station at the southeast comer of the intersection, there were two of them east on Butterfield at Route 53, one west on Butterfield at Warrenville, and three gas stations plus a vacant gas station north on Park Boulevard at Roosevelt Road.

The plaintiff takes the position that the zoning ordinance substantially impairs the value of its property without benefit to any surrounding property or any substantial relation to the public welfare and that the findings of a trial court should not be disturbed on appeal unless they are contrary to the manifest weight of the evidence.

Whether a zoning classification bears a substantial relation to the public welfare depends on a number of factors which have been spelled out many times by the Illinois Supreme Court. (See La Salle National Bank v. County of Cook, 12 Ill.2d 40, 46-47.) The supreme court has, however, also stated: “This court has always considered of paramount importance the question whether the subject property is zoned in conformity with surrounding existing uses and whether those uses are uniform and established.” (River Forest State Bank & Trust Co. v. Village of Maywood, 23 Ill.2d 560, 563.) In another case, in which there were commercial uses to the south across a heavily traveled street, the supreme court said: “We are of the opinion that plaintiffs property takes its residential character from the area to the west, north and east and that it is zoned in conformity with surrounding existing uses, a factor of paramount importance.” (Ryan v. County of Du Page, 28 Ill.2d 196, 198.) Again, in dealing with a sizeable “valuation differential,” the supreme court declared: “This is an omnipresent element and one meriting serious attention — but it is not the dominant consideration. ‘Of paramount importance in determining the validity or invalidity of the given classification is the question as to whether it is in conformity with existing uses and the zoning classification of nearby property.’” Sutter v. Village of Mundelein, 27 Ill.2d 589, 592-93.

With regard to the plaintiffs argument that a reviewing court should not disturb a trial court’s findings unless they are contrary to the manifest weight of the evidence, it has been said that “this rule of appellate judgment * * * does not always have the same force in zoning cases as it does in other litigation. The overriding consideration in zoning cases is whether the presumptive validity of the ordinance has been overcome and there is, therefore, a dimension of proof not required in most nonzoning litigation. The determination of zoning' classifications is a legislative rather than a judicial function and all zoning cases hold that the presumption of validity which accompanies the legislative judgment must be overcome by clear and convincing evidence.” (Chicago Title & Trust Co. v. City of Chicago, 130 Ill.App.2d 45, 50-51.) Whether the property would be more suitable for multiple-family use is not the question before us. (Schultz v. Village of Lisle, 53 Ill.2d 39, 42.) On the other hand, the plaintiffs having bought the property with knowledge of the zoning restrictions is a circumstance which should not be ignored. (See La Salle National Bank v. City of Evanston, 57 Ill.2d 415, 430; Gedmin v. City of Chicago, 88 Ill.App.2d 294, 303-04.) The supreme court has said, with respect to the plaintiffs burden of proof: “A presumption exists in favor of the validity of a zoning ordinance and the one who attacks such an ordinance has the burden of overcoming the presumption by proving with clear and convincing evidence that, as applied to him, it is arbitrary and unreasonable and is without substantial relation to the public health, morals, safety and welfare.” (Bennett v. City of Chicago, 24 Ill.2d 270, 273-74.) It has said, further, that where the evidence “accommodates a legitimate difference of opinion as to the reasonableness of the ordinance # * * the legislative judgment must prevail.” Standard State Bank v. Village of Oak Lawn, 29 Ill.2d 465, 471.

Under the evidence as we view it, giving appropriate weight to the existing uses and the zoning classification of property for some distance in every direction and particularly north of Butterfield Road, we believe the most that can be said for the plaintiffs case is that it presents a debatable question as to the reasonableness of the restrictions imposed, and so the legislative judgment must prevail. We therefore decide that the plaintiff has not sustained its burden of overcoming with clear and convincing evidence the presumptive validity of the zoning ordinance, and consequently it was error for the trial court to hold the ordinance invalid as applied to the plaintiff’s property. Accordingly, the judgment of the Circuit Court of Du Dage County is reversed.

Judgment reversed.

RECHENMACHER, P. J., and T. MORAN, J., concur.