author: Mr. JUSTICE STAMOS

text:
    Lloyd A. Fry Roofing Company, Petitioner, v. The Pollution Control Board et al., Respondents.
    (No. 56629;
    First District (2nd Division)
    May 28, 1974.

      Arnstein, Gluck, Weitzenfeld & Minow, of Chicago, for petitioner.
    William J. Scott, Attorney General, of Chicago, for respondents.
    DePaul Law Clinic, of Chicago, for respondents Louis Hemmerich et al.

   Mr. JUSTICE STAMOS

delivered the opinion of the court:

This is a petition for review of an order of the Pollution Control Board. The Board denied petitioner Fry Roofing Company (hereinafter Fry) a variance from the Environmental Protection Act, found that Fry has caused air pollution as defined by sections 3(b) and 9(a) of the Act and has emitted particulates into the atmosphere in an amount exceeding the limits set forth in the Rules and Regulations Governing the Control of Air Pollution. The Board ordered Fry to cease and desist the emission of particulates, and assessed a penalty against Fry in the amount of $50,000 for violation of the Act and the Rules and Regulations.

Fry contends that: 1) the Environmental Protection Act is unconstitutional in that: (a) it is vague and indefinite; (b) unlimited discretion and legislative power is delegated to the Pollution Control Board; (c) the Act confers judicial power upon an administrative agency; (d) application of the Act results in a denial of equal protection of law; and (e) the Act denies the right to a jury trial; 2) the hearing was unfair in that: (a) the Board did not ‘hear” the evidence because the Board members are not required to attend the hearing; (b) the hearing officer did not comply with his duty to exclude immaterial and prejudicial evidence as required by the Act; (c) the hearing officer was not impartial; and (d) Fry was denied its right to submit a brief and argument before the Board; and 3) the decision of the Board is not supported by competent, sufficient evidence.

Fry is one of the world’s largest manufacturers of asphalt roofing operating 24 plants in various parts of the United States. The facility involved in the present proceeding is located in Summit, Illinois. The VoIIney Felt Mill occupies the same premises, supplying the felt used in the operation. The Trumbull Asphalt Company, while purportedly being a separate entity unconnected with Fry, is located contiguous to the Fry plant in Summit as it is in oilier parts of the country where Fry plants are located, and supplies the asphalt used in Fry’s manufacturing process.

On January 7, 1971, Fry filed a petition for a variance from the provisions of the Environmental Protection Act. The petition stated that Fry had installed no control equipment because of possible relocation problems caused by the proposed South-West Expressway. On February 26, 1971, a complaint was filed before the Pollution Control Board by members of a community group known as S.O.R.E. The complainants alleged “that Respondent Fry did, on February 17, 1971, cause and allow the discharge and emission into the environment of contaminants so as to cause or tend to cause air pollution in Illinois, and further that Respondent Fry has engaged and continues to engage in a pattern of com duct such as to cause and allow the discharge and emission into the environment of contaminants so as to cause or tend to cause air pollution in Illinois.” Such allegations clearly allege violations of section 9(a) of the Act and inform Fry of the manner of the alleged pollution. However, the complaint does not allege violations of the Rules and Regulations promulgated by the Board.

Section 31 of the Act requires that the complaint state “the manner in, and the extent to which such person (the person complained against) is said to violate this law.” Notice to the alleged violator is a fundamental element of due process. Charges in an administrative proceeding need not be drawn with the same refinements as pleadings in a court of law, but the charges must be sufficiently clear and specific to allow preparation of a defense. (Greco v. State Police Merit Board, 105 Ill.App.2d 186, 245 N.E.2d 99.) Section 31 requires notice of a specific violation charged and notice of the specific conduct constituting the violation. (See Citizens Utilities Co. v. Pollution Control Board, 9 Ill.App.3d 158, 289 N.E. 2d 642.) In addition P.C.B. Procedural Rule 304(c)(2) requires that the complaint contain “a concise statement of the facts upon which the respondents are claimed to be in violation.”

In the instant case the complaint did not allege violations of the Rules and Regulations Governing the Control of Air Pollution. Therefore, the Board improperly found Fry in violation of the Rules and Regulations, and we reverse that part of the Board’s order. We do not believe that this defect was cured by the facts that the hearing on Fry’s petition for a variance from the Rules and Regulations was consolidated with the enforcement proceedings based upon the complaint, and that Fry introduced evidence regarding its emission rates which are governed by the Regulations. Therefore we will consider only that evidence concerning a violation of section 9(a) of the Act.

A lengthy hearing covering more than 900 pages in the record was held before the hearing officer. In order to consider defendant’s contentions, the testimony and evidence adduced must be summarized. Geddam Reddy, an engineer employed by the Environmental Protection Agency, testified on direct examination that, from a reading of generally accepted treatises on air pollution emission factors, he was convinced that emissions from asphalt roofing companies are carcinogenic and dangerous to human health. He stated that since Fry had no emission control equipment, it was emitting carcinogenic materials. Near the end of the hearings the hearing officer struck the direct testimony of this witness on the basis that he had never visited the Fry plant and had not inspected it. Reddy was later called by Fry and stated that Fry Exhibit 1, United States Environmental Protection Agency Manual (1971 preliminary draft), was a generally accepted emission standard manual.

Ronald Kluszewski, a trustee of the Village of Summit, testified as to the contents and. background of a resolution passed by the trustees on January 18, 1971, requesting a denial of Fry’s variance application, and also requesting that Fry be required to comply with' pollution control laws and regulations. He also testified to complaints from citizens and to his opinion as to public feeling. Finally, he testified that he was able to pinpoint the “obnoxious” odor as emanating from Fry and that it interfered with his enjoyment of his home.

The Summit chief of police also testified to complaints, regarding the odors emitted by Fry. Sixty-three complaints from 1966 were introduced into evidence; many of these pertained to Trumbull Asphalt Company and did not name Fry. The witness stated that he had gotten approximately 20 complaints per year since he became chief in 1966; none of these were introduced into evidence.

A Vista volunteer testified to being present at a meeting on December 18, 1970, with Lloyd Fry, Jr., and members of S.O.R.E. Mr. Fry told the group that he knew that he was polluting, but S.O.R.E. could take him to court to make him stop. This witness also testified that his understanding of the law was that Fry would be compensated for control equipment if the plant was condemned for the proposed highway, and that this was discussed at the meeting.

Approximately 12 members of S.O.R.E. then testified. Affidavits from all these witnesses were introduced into evidence. These affidavits related that on February 17, 1971, the affiants observed gray smoke and a sickening odor being emitted from the Fry smokestacks, and that this odor interfered with their enjoyment of their property and environment. Many of these affidavits related incidents prior to February 17, 1971, and subsequent to that date in which the smoke and odor emanating from Fry produced ill effects. One of the affidavits contained newspaper articles reflecting public concern over Fry’s operation; two affidavits contained information regarding Fry’s operations and lawsuits in three other states. One witness testified that S.O.R.E. has received 111 complaints regarding Fry during December and January of 1971 and 1972. These witnesses were cross-examined extensively by Fry as to their certainty in identifying the source of the odors they attributed to Fry, and as to the contents of their affidavits.

The complainants also called Lloyd Fry, Jr., and Harvey Hoffman, the former director of environmental control at the Fry plant, as adverse witnesses. Fry stated that he did not know what type of particulates the plant was emitting, and did not know of an injunction against the Fry plant in California. Hoffman was questioned regarding the pollution control equipment installed in Fry’s other plants.

WiUiam Zenisek, an expert witness for the Environmental Protection Agency testified that he visited Fry in 1968 and 1971 and estimated the emissions rate from the United States Environmental Protection Agency Manual, 1968 (E.P.A. Exhibit 1). No tests were conducted on the Fry plant to determine actual emission rates. This witness testified that there is no official update of the 1968 manual, only preliminary revisions. Air PoHution Engineering Manual, U.S. Department of Public Health, 1967, was also introduced into evidence (E.P.A. Exhibit 3) as depicting the state of the art as it relates to asphalt saturators and the control of emissions.

Steven Rosenthal, an environmental protection engineer employed by the Environmental Protection Agency testified that he visited the Fry plant two or three times in 1971, and observed a disagreeable odor. He computed the Fry emission rate from the 1968 Environmental Protection Agency Manual. He stated that in his opinion the wood flour he observed on the premises was the result of a violation. The recommendation of the Environmental Protection Agency, which stated that Rosenthal had made three inspections of the area and had noted a piercing stench, was introduced into evidence. The recommendation also stated that Fry was not complying with section 9(a) of the Act and Rule 3— 3.11 of the Rules and Regulations regarding emission rates. Fry made a motion to call Mr. McCreery of the Agency who purportedly wrote the recommendation; the hearing officer held that Rosenthal signed it and only he was required to testify.

Fry called its plant manager who testified to the saturating process, and stated that to his knowledge “nothing goes out of the stacks,” with the exception of steam. He also testified that the stacks did not have hoods to catch emissions, but that the instaHation of such hoods was planned.

Petitioner’s first constitutional argument is that the Environmental Protection Act is unconstitutionally vague and indefinite. Section 9(a) of the Act provides:

“No person shall:
(a) Cause or threaten to allow the discharge or emission of any contaminant into the environment in any State so as to cause or tend to cause air pollution in Illinois, either alone or in combination with contaminants from other sources, or so as to violate regulations or standards adopted by the Board under this Act; * *

Section 3(b) of the Act states that:

“ ‘Air Pollution is the presence in the atmosphere of one or more contaminants in sufficient quantities and of such characteristics and duration as to be injurious to human, plant, or animal life, to health, or to property, or to unreasonably interfere with the enjoyment of life .or property.”

Section 3(d) states that:

“‘Contaminant’ is any solid, liquid or gaseous matter, any odor, or any form of energy, from whatever source.”

At the outset, we acknowledge that all presumptions are in favor of the constitutionality of legislation (Gadlin v. Auditor of Public Accounts, 414 Ill. 89, 110 N.E.2d 234), and petitioner has the burden of clearly proving unconstitutionality. Statutes directed at control of pollution in the environment are intended to encompass infinitely variable conditions. Therefore, flexibility and adaptability are required. In addition, the above definitions in this Act, taken together, are clear and easily understandable. All types of contaminants and “pollution” need not be scientifically delineated in a statute of this kind. Metropolitan Sanitary District v. United States Steel Corp., 41 Ill.2d 440, 243 N.E.2d 249.

Petitioner’s next contentions are that the Act confers unlimited legislative discretion and judicial power upon the Pollution Control Board. Petitioner’s argument that the delegation of authority to interpret the Act and to make rules and regulations is an abdication of legislative responsibility is not persuasive. There is no clear line separating excessive and permissive delegations of legislative authority. A reading of sections 9(a), 3(b) and 3(d) indicates that the legislature has provided some standards in the Act. Section 5(b) provides:

“The Board shall determine, define and implement the environmental control standards applicable in the State of Illinois and may adopt rules and regulations in accordance with Title VII of this Act.”

The discretionary power delegated to the Board is clearly limited by the section 5(b) requirement that the Board determine standards. We are in agreement with the decisions of the courts in Ford v. Environmental Protection Agency, 9 Ill.App.3d 711, 292 N.E.2d 540, Bath, Inc. v. Pollution Control Board, 10 Ill.App.3d 507, 294 N.E.2d 778, and City of Monmouth v. Environmental Protection Agency, 10 Ill.App.3d 823, 295 N.E. 2d 136, that the authority and powers bestowed on the Board to make rules and adjudicate cases are in keeping with the spirit of the Environmental Protection Act for the practical apphcation and operation of the Act. See also Reif v. Barrett, 355 Ill. 104, 188 N.E. 889.

In addition, we hold that the authority to impose monetary penalties granted by sections 33(b) and 42 of the Act does not constitute a prohibited grant of judicial power. Our supreme court has recently decided the issue by holding that the discretionary power to impose penalties is reasonably necessary to accomplish the legislative purpose of the agency, and therefore, does not violate the constitutional separation of powers. City of Waukegan v. Pollution Control Board, 57 Ill.2d 170, 311 N.E.2d 146.

Petitioner’s final constitutional arguments are that the Act denies it equal protection of law and its right to trial by jury. Petitioner argues that section 44 of the Act provides that violations shall constitute misdemeanors, and that, therefore, one person may be charged with a violation before the administrative agency whüe another person may be charged with the same violation in a criminal proceeding.

The fourteenth amendment requires that all persons subject to legislation “shall be treated afike, under like circumstances and conditions, both in privileges conferred and in liabüities imposed.” (Hayes v. Missouri, 120 U.S. 68, 71-72.) The provisions of the Environmental Protection Act and the regulations of the Board are equally applicable to all persons in Illinois. Petitioner has shown no discrimination or abuse of discretion in bringing administrative actions. On the contrary, the Act provides that enforcement actions be brought before the Board. Ford v. Environmental Protection Agency, supra. See also State v. Lloyd A. Fry Roofing Co. 9 Ore.App. 135, 495 P.2d 751, remanded on other grounds, 502 P.2d 253.

We are also unable to agree with petitioner that the Act is applied in a capricious or arbitrary manner because actions for violation of the Act can be brought against persons, even though they may be in compliance with the regulations, and even though section 49(e) of the Act states that compliance with the regulations is a prima facie defense to an action. It is sufficient to point out that violations of the Act occur whenever a person causes or tends to cause “air pollution" or violates the rules and regulations adopted by the Board. (Ill. Rev. Stat. 1971, ch. 111%, par. 1009(a).) Compliance with the regulations is a prima facie defense, but it is not a complete defense.

Petitioners contention that the Act deprives it of its constitutional right to trial by jury is also without merit. The Constitution of 1970 provides that “[t]he right of trial by jury as heretofore enjoyed shall remain inviolate.” This language is identical to that in the Constitution of 1870, and has been interpreted to secure the right of jury trial as it existed at common law. (Stephens v. Kasten, 383 Ill. 127, 48 N.E.2d 508.) In the instant case, the Act provides for the creation of an administrative agency to enforce the Act. The constitutional guarantee of right to trial by jury was never intended to apply to administrative proceedings which were unknown at common law, and therefore, petitioner cannot argue that this right has been abridged. Ford v. Environmental Protection Agency, supra.

Petitioner next argues that the Pollution Control Board’s order must be reversed because petitioner was denied a fair and impartial hearing. Due process of law requires that an administrative hearing be fair. (Smith v. Department of Registration & Education, 412 Ill. 332, 106 N.E.2d 722.) In administrative review, it is our duty to review the manner in which evidence was adduced before the administrative agency. From petitioner’s specific allegations of unfairness, we cannot conclude that the administrative hearing in this case was not fair and impartial.

Petitioner asserts that the Act itself precludes a fair hearing because none of the Board members personally hear the evidence and the hearing officer merely receives the evidence without participating in the decision-making process. The United States Supreme Court has held that in administrative proceedings “there must be a hearing in a substantial sense.” (Morgan v. United States, 298 U.S. 468, 481.) In the instant case, the Act requires the Board to malee its determinations after “due consideration of the written and oral statements, the testimony and arguments that shall be submitted at the hearing, * * *.” (Ill. Rev. Stat. 1971, ch. 111%, par. 1033(a).) Thus we must conclude that the decision-making procedure set forth in the Act conforms to the Morgan requirement that “the officer who makes the determinations must consider and appraise the evidence.” Morgan v. United States, supra, at 582; see also Des Plaines Currency Exchange, Inc. v. Knight, 29 Ill.2d 244,194 N.E.2d 89.

Petitioner also argues that the hearing was unfair because the hearing officer failed to exclude irrelevant, prejudicial testimony as required by Procedural Rule 320(b). Although we agree that incompetent evidence was admitted into evidence (we note that evidence was adduced regarding events outside the time scope of the complaint), we are not compelled to conclude that substantial unfairness or an overall denial of justice resulted. The Act requires the Board to file a written opinion stating the facts and reasons for its decision (Ill. Rev. Stat. 1971, ch. 111%, par. 1033(a)), and its decision must be based upon competent evidence. The admission of incompetent evidence is not reversible error if there is substantial evidence to sustain the decision of the Board. (See Yiannopoulos v. Robinson, 247 F.2d 655 (7th Cir.).) A failure to observe the technical rules of evidence is not sufficient reason to set aside an agency’s decision unless the error materially affects the rights of a party and results in substantial injustice to him. (Administrative Review Act, Ill. Rev. Stat. 1971, ch. 110, par. 275(2).) Our perusal of the record reveals no instance where the ruling of the hearing officer resulted in substantial injustice to Fry.

Likewise, we are not convinced that the hearing officer was biased, and actively participated in proving petitioner’s guilt. It is an established principle that the decision of an administrative agency will be set aside if the prejudice or bias of the hearing officer results in an unfair hearing. (Gigger v. Board of Fire & Police Commissioners, 23 Ill.App.2d 433, 163 N.E.2d 541.) Upon our review of the record, we are satisfied that the hearing officer conducted the proceedings in a fair and impartial manner. The "expert” testimony of the Agency’s engineer, Reddy, was stricken from the record when the hearing officer became aware that Reddy had no personal knowledge of the Fry plant. The hearing officer’s instructions to complainant’s attorney regarding foundation for a witness’s testimony, a letter to the Board stating that the evidence from the Agency would hopefully produce a “knowledgeable expert”, the introduction of police reports from 1966, the introduction of testimony regarding community feeling and lawsuits against Fry in other States, the narrative testimony of certain witnesses, and the hearing officer’s interrogation of the witnesses are interpreted by us as a conscientious effort by the hearing officer to “insure development of a clear and complete record,” as required by the Board’s regulations. (Pollution Control Board Regulations, section 115.) In addition, petitioner was represented by counsel and was offered the opportunity to prepare a defense and introduce evidence, and all of the testimony adduced at the hearing was subject to cross-examination. From the above state of the record, we are of the opinion that the hearing was conducted as a fact-finding proceeding with a view toward achieving substantial justice.

As a final assertion of procedural unfairness, petitioner argues that it was denied its right to file a written brief to the Board as permitted by the Board’s regulations. (Pollution Control Board Regulations, section 330.) Petitioner does not contend that it was denied the opportunity to present argument, offer testimony or cross-examine witnesses as required by the Act, or that the Board issued its order without considering the statements, testimony and arguments submitted at the hearing as required by the Act. The intent of the legislature, as seen from the Act itself, was to afford parties procedural due process. In the case at bar, the hearing conformed to fundamental principles of justice, and we construe the regulation providing that written briefs may be filed as a discretionary provision only. The Board did not abuse its discretion in rendering its order without considering briefs from the parties.

Petitioner’s final contention is that the decision of the Board must be overturned because there is not substantial, competent evidence upon which to base that decision. Petitioner maintains that the decision was based on irrelevant allegations and prejudicial conclusions.

It is well established that a reviewing court may examine findings of an administrative agency to determine if they are supported by sufficient, competent evidence. (St. James Temple of the A.O.H. Church of God, Inc. v. Board of Appeals, 100 Ill.App.2d 302, 241 N.E.2d 525; Russell v. License Appeal Com., 133 Ill.App.2d 594, 273 N.E.2d 650.

In the instant case, the complaint charged plaintiff with violations of the Act in discharging contaminants into the atmosphere on February 17, 1971, and causing or tending to cause air pollution. Complaints sought a cease and desist order and a $1,000 fine for the February 17th incident and every other day during which Fry discharged contaminants. The order of the Board ordered Fry to cease and desist and assessed a $50,000 penalty for violations of the particulate emissions provisions of the Rules and Regulations Governing the Control of Air Pollution; for failure to file a letter of intent and air contaminant emission reduction program; and for causing air pollution.

Upon our review of the record, we are convinced that the Board’s finding of air pollution by Fry, in violation of section 9(a), is supported by substantial, competent evidence. Section 3(b) of the Act defines air pollution as the presence of sufficient quantity and quality of contaminates as to (1) be injurious to human life, (2) be injurious to plant life, (3) be injurious to animal life, (4) be injurious to health, (5) unreasonably interfere with the enjoyment of life or property. The Board’s finding of a violation must rest upon a finding that the alleged pollution resulted in one or more of the above-mentioned situations.

The opinion of the Board erroneously states that it need only find “substantial interference” with the enjoyment of life or property in order to support a finding of violation of the statute. The Board found that the evidence:

“amply supports a finding of severe nuisance and air pollution as defined in the statute *** [and that Fry’s operation caused] a severe burden and nuisance on the community.”

These statements do not provide a necessary recognition of the elements of sections 9(a), 3(b) and 3(d) which are required to support a finding of air pollution. Nowhere in the Board’s opinion is there an explicit finding of “unreasonable” interference with the enjoyment of life or property of nearby residents. Our court has recently held that neither a finding of nuisance nor burden on the community amounts to a sufficiently specific finding that Fry “unreasonably” interfered with the enjoyment of life. See Mystik Tape v. Pollution Control Board, 16 Ill.App.3d 778, 308 N.E.2d 574.

However, we believe that sufficient, competent evidence was adduced at the hearing to support a finding of unreasonable interference with life and property. Affidavits of members of S.O.R.E. were introduced into evidence. These affidavits related specific instances of pollution by Fry on February 17, 1971, and on subsequent dates (in addition to irrelevant mention of instances prior to February 17, 1971). The affiants testified at the hearing that smoke and odors emanating from Fry interfered with the enjoyment of their property, and that they were able to identify the harmful and irritating odors as emanating from Fry. Fry was afforded opportunity, of which they availed themselves, to thoroughly cross-examine each of these witnesses.

One of the affiants, James Johnstone, testified that he lives four blocks from the Fry plant. He observed gray smoke and was aware of the odor of asphalt and felt emanating from the Fry smoke stacks. He testified that the smoke and odor “makes you sick * * * it makes your eyes water, parches your throat.” He observed the smoke and was aware of the odor prior to February 17, 1971, and subsequently. He testified that the odor in the park across from the Fry plant is ‘Trad,” and that he could not jog in the park because of the odor and smoke.

Another affiant, Mary Younkers, who lives three blocks from Fry, testified that on April 16, 1971, she was in the park and was aware of odors emanating from Fry. The odors pervaded the area and caused her to leave the park. She also was aware of the odor in her home subsequent to February 17, 1971, and it caused her headaches and nausea.

Other witnesses testified that the odors being emitted from the Fry smoke-stacks were “obnoxious” or “disagreeable.” More importantly, witnesses testified that the odor caused headaches, nausea, coughing and eye irritation. Therefore, we conclude that the evidence adduced supports a finding of unreasonable interference with the enjoyment of life and property of the residents. Section 33(c) of the Act provides:

“In making its orders and determinations, the Board shall take into consideration all the facts and circumstances bearing upon the reasonableness of the emissions * *

We note that, in its order, the Board failed to demonstrate compliance with this section in that the order did not indicate consideration of the factors enumerated therein. Fry does not raise this issue on appeal, and moreover, we are of the opinion that sufficient evidence was adduced as to each enumerated factor to support the Board’s findings.

Section 33(c)(1) concerns “the character and degree of injury to, or interference with the protection of health * # The testimony of the affiants, as previously set forth in this opinion, is sufficient to indicate the character and degree of injury. Concerning “the social and economic value of the pollution source” 33(c)(2)), Fry introduced evidence of the operation of the plant. As to the “suitability or unsuitability of the pollution source to the area in which it is located * * *” (§ 33(c) (3)), evidence was adduced as to the presence in the general area of the Chicago Metropolitan Sanitary District slush ponds, The Trumbull Asphalt Co. and the Corn Products Co. plant, in addition to residences and a public park. Finally, evidence concerning “the technical practicability and economic reasonableness of reducing or eliminating the emissions * * * resulting from such pollution source” (§ 33(c) (4) was adduced through testimony regarding the availability of pollution devices to asphalt plants and the existence of pollution control devices on Fry plants in other areas of the country. In addition, the Fry plant manager testified that no emission control devices were employed, but that plans for installation of such devices had been made.

Based upon the evidence previously alluded to, the Board properly concluded that air pollution caused by Fry unreasonably interfered with enjoyment of life and property, and that Fry is in violation of section 9(a) of the Act. Accordingly, we affirm that part of the order of the Pollution Control Board ordering Fry to comply with section 9(a) of the Act; we reverse that part of the order finding Fry in violation of the Board’s Rules and Regulations. Because the Board imposed a penalty of $50,000 for violations of the Act and the Regulations, and did not indicate what portion of the penalty was imposed for the statutory violation, we remand this cause to the Board for a redetermination of an appropriate penalty.

Affirmed in part; reversed in part; remanded in part.

HAYES, P. J., and LEIGHTON, J., concur.

       Ill. Rev. Stat. 1971, ch. 111%, par. 1041; Ill. Rev. Stat. 1971, ch. 110A, par. 335.

       Ill. Rev. Stat. 1971, ch. 111%, par. 1001 et seq.

       Ill. Rev. Stat. 1971, ch. 111%, pars. 1003(b), 1009(a).

       At the time of the filing of this complaint, another cause was pending in the Circuit Court of Cook County against Fry. (County of Cook v. Lloyd A. Fry Roofing Co., Inc. 71 Ch 585.) A consent order, in which Fry agreed to install emission control equipment, was entered in that suit before the termination of the instant hearing before the Board.

       Ill. Rev. Stat. 1971, ch. 111%, par. 1031.

       Ill. Rev. Stat. 1971, ch. 111%, par. 1009(a).

       Ill. Rev. Stat. supra, par. 1003(b).

       Ill. Rev. Stat. supra, par. 1003(d).

       We note that these sections are as clear as those used in the statutory framework of other states’ pollution statutes. See Houston Compressed Steel Corp. v. Texas (Tex. Civ. App.), 456 S.W.2d 768; Air Pollution Commission v. Coated Material Co. (Pa. Ct. Comm. PI.) IERC 1444; Department of Health v. Owens — Corning Fiberglas Corp. 100 N.J. Sup. 366, 242 A.2d 21, aff’d, 53 N.J. 248, 250 A.2d 11.

       Ill. Rev. Stat. 1971, ch. 111%, pars. 1033(b), 1042.

       The proceeding before the Board was a combination variance and enforcement proceeding. Therefore, the Board did not exceed its statutory authority to impose fines in enforcement proceedings. (Ill. Rev. Stat. 1971, ch. 111%, pars. 1033(b), 1042). The Board may not impose fines in the context of a variance proceeding. Citizens Utilities Co. v. Pollution Control Board, 9 Ill.App.3d 158, 289 N.E.2d 642; City of Mattoon v. Environmental Protection Agency, 11 Ill.App.3d 259, 296 N.E .2d 383.

       Ill. Rev. Stat. 1971, ch. 111%, par. 1044.

       Ill. Rev. Stat. 1971, ch. 111%, par. 1049(e).

       Ill. Const. 1970, art, I, § 13,

       Ill. Rev. Stat. 1971, ch. 111%, par. 1032.

       Ill. Rev. Stat. supra, par. 1033(a).


source: Caselaw Access Project

author: Mr. JUSTICE LEIGHTON

license: Public Domain

text:
    Van C. Argiris Co., Plaintiff-Appellee, v. Caine Steel Co., Defendant-Appellant.
    (No. 57097;
    First District (2nd Division)
    May 28, 1974.

      Rehearing denied July 15, 1974.

      Kenart M. Rahn, of Chicago, for appellant.
    Jerole S. Solovy, John G. Stiller, and James A. Lowe, all of Chicago (Jenner & Block, of counsel), for appellee.
   Mr. JUSTICE LEIGHTON

delivered the opinion of the court:

This appeal is from a judgment entered in a suit filed by Van C. Argiris Company, an Illinois-licensed real estate brokerage corporation, against Caine Steel Company, an Illinois corporation, to recover a real-estate commission. The issues arise from the following facts.

In May 1962, Van C. Argiris, president of the plaintiff corporation, learned that defendant’s building at 5501 West Grand Avenue in Chicago was available for sale or a long-term lease at a price of $1,250,000. He went to the building, inspected it and discussed the terms with defendant’s president, Leon Caine. Later, Argiris received plans of the building and, in due course, showed the property to several prospective buyers.

On May 15, 1962, Argiris wrote a letter to the Beardsley & Piper Division, Pettibone Mulliken Corporation, telling them about defendant’s building. Thereafter, on July 2 and September 13, 1962, additional letters were written to Pettibone Mulliken calling its attention to the favorable features of defendant’s building and urging the corporation to look into the possibility of acquiring the property. In January 1963, defendant temporarily withdrew its building from the market. Nonetheless, Argiris continued to communicate with Pettibone Mulliken concerning possible purchase of the property.

Then, in September 1964, defendant’s president, Leon Caine, communicated with Argiris and again took up the sale of the building. Argiris suggested that his company be made defendant’s exclusive agent for this purpose. This suggestion, however, was rejected. Instead, on October 15, 1964, defendant signed an agreement with Bennett & Kahnweiler, a firm of real estate brokers, under which it became exclusive agents to sell or lease defendant’s building. For their compensation, the brokers, or they and any cooperating broker, were to receive a commission in the amount recommended by the Chicago Real Estate Board for sales or leases of industrial property. The agreement provided “[i]t is further understood that in the event the property is sold or leased within one hundred and twenty (120) days from the termination date of this Agreement, to a prospect to whom it was submitted by you during the continuance of said Agreement, or to anyone on behalf thereof, and whose name has been disclosed to us, then in that case we agree to pay you a broker’s commission as stipulated above.” By its terms, the exclusive agency was to remain in force until May 1, 1965, or “[tjhereafter until either party terminates said employment by written notice delivered to the other not less than thirty (30) days prior to the intended date of termination.”

Argiris, on behalf of the plaintiff, acted as a cooperating broker under the Bennett & Kahnweiler exclusive. He wrote letters to the Pettibone Mulliken Corporation urging its interest in defendant’s property. On November 5, 1964, and later in February 1965, he took officers of Pettibone Mulliken to defendant’s building for inspections. Thereafter, he wrote letters to officers of Pettibone Mulliken concerning defendant’s building and calling their attention to its attractive features, which Argiris thought met Pettibone’s needs. Then, on May 4, 1965, defendant, by certified mail, terminated the exclusive agreement, effective June 4, 1965.

Despite this fact, Argiris continued his efforts to interest Pettibone Mulliken in buying defendant’s building. On July 29, 1965, he prepared an inter-office memorandum in which he notified his sales staff that contacts for the sale of defendant’s building were to be made directly with defendant’s president, Leon Caine, or its assistant treasurer, Joe Shure. The memorandum stated that defendant was still asking $1,250,000, as it had when Bennett & Kahnweiler were exclusive agents. According to Argiris, on the day he prepared the memorandum, he spoke with Leon Caine who told him to find a buyer and deal directly with him. Argiris said it was Caine who suggested that the building be handled on an “open listing basis”; and that Argiris’s company would be paid a commission if it procured a buyer. Argiris said he told Caine of Pettibone Mullikeris continued interest in the building; and thereafter, wrote that corporation three letters concerning defendant’s property and kept in contact with it concerning possibility of a purchase. In the meantime, Argiris had numerous telephone conversations with Caine and with Shure. Three times after July 29, 1965, he met them at the building. On these occasions, Argiris told Caine of Pettibone’s efforts, through a stock offering, to obtain financing in order to purchase defendant’s building. Sometime early in November 1965, Argiris called Caine and told him he was going to Europe on November 4; therefore, Mr. Campbell of his office would follow through with contacts with Pettibone Mulliken because that corporation was only awaiting completion of the stock offering so it could make á firm offer to purchase defendant’s building.

On November 18, 1965, Pettibone Mulliken wrote defendant a letter of intent by which it agreed to purchase defendant’s building for $1,100,-000. In a separate paragraph, Pettibone guaranteed “* * * that Caine Steel Company will not have to pay Van C. Argiris and or Bennett & Kahnweiler any brokerage commission.” Defendant’s building was purchased by Pettibone; and thereafter, plaintiff filed its suit for the brokerage commission it alleged became due from defendant when through its efforts Pettibone Mulliken became a purchaser of defendant’s real estate. The case was heard by a jury which heard evidence, received instructions, and was given two special interrogatories submitted by defendant. The first asked, "Was the Plaintiff employed by the defendant after July 29, 1965 to procure a purchaser for the property located at 5501 West Grand Avenue, Chicago, Illinois?” The second asked, “Did the Plaintiff procure Pettibone Mulliken Corporation after July 29, 1965, as a purchaser for the property located at 5501 West Grand Avenue, Chicago, Illinois?” The jury answered both interrogatories in the affirmative and returned a verdict in favor of plaintiff, assessing its damages against defendant in the sum of $55,500.

Four issues are presented for our review. I. Whether the exclusive agency agreement with Bennett & Kahnweiler barred plaintiffs claim for a real-estate commission from the sale of defendant’s real estate to the Pettibone - Mulliken Corporation. II. Whether the trial court erred in allowing plaintiff to prove, by copies of letters, memoranda and conversations, all of its dealings with the defendant, including its showing of the real estate involved and its contacts with the Pettibone Mulliken Corporation that ultimately became the purchaser of defendant’s real estate. III. Whether the trial court erred in giving and refusing certain instructions to the jury. IV. Whether the evidence supports the findings and verdict of the jury.

I.

Defendant’s agreement of October 15, 1964, with Bennett & Kahnweiler, created an exclusive agency under which, as its own broker, it could have sold the property but was prohibited from appointing another agent for that purpose. (Flynn v. La Salle National Bank, 9 Ill.2d 129, 139, 137 N.E.2d 71; Wozniak v. Siegle, 226 Ill.App. 619, I.L.P. Brokers § 31.) The employment relation it created was for a period ending on a certain date, unless either party gave a 30-day prior notice of termination. Plaintiff, as a cooperating broker, was bound by the terms of that agreement. (Smart & Golee, Inc. v. Delany, 65 Ill.App.2d 60, 213 N.E.2d 27.) However, it appears that plaintiff’s theory of the case was not that plaintiff, in its capacity as a cooperating broker under the exclusive agency agreement between defendant and Bennett & Kahnweiler, was suing for breach by defendant of the said agreement; rather, its theory was that defendant requested plaintiff to continue and encourage negotiations between defendant and the Pettibone Mulliken Corporation; that plaintiff did so, with the result that it procured the sale of defendant’s building.

The provision under which a broker’s commission was payable if a sale or lease of defendant’s building were made within 120 days after the agreement was terminated did not extend Bennett & Kahnweiler’s exclusive agency; the post-termination obligation was merely one of the conditions of the employment relation. (See Minkoff v. McLean (1929), 295 Pa. 396, 145 A. 534.) Therefore, defendant’s letter to Bennett & Kahnweiler, dated May 4, 1965, and giving notice of its desire, terminated the exclusive agency on June 4, 1965. (See Nicholson v. Alderson, 347 Ill.App. 496, 107 N.E.2d 39; 12 Am. Jur. 2d Brokers § 58; I.L.P. Brokers § 28.) For these reasons, defendant’s exclusive agency agreement with Bennett & Kahnweiler did not bar plaintiff’s claim for a real estate commission for the sale of defendant’s real estate to the Pettibone Mulliken Corporation.

II.

In proving its claim for the commission, plaintiff offered and, over defendant’s objections, the trial court admitted, evidence consisting of letters and testimony of Argiris concerning the unsuccessful showing of defendant’s property to two corporations. In addition, and similarly over defendant’s objections, plaintiff was allowed to prove, by copies of three letters and Argiris’s testimony, that it wrote to the Beardsley & Piper Division of Pettibone Mulliken concerning defendant’s building. As to the letters, Argiris testified that they were mailed by his office and addressed to the particular official of Pettibone Mulliken. In one instance, the official in question denied having received the letters addressed to him. However, it is well established that testimony showing that a letter was mailed and denial that it was received raise a question to be resolved by the trier of the fact. (Werdell v. Turzynski, 128 Ill.App.2d 139, 262 N.E.2d 833.) Therefore, it was for the jury to decide whether the letters were mailed and whether they were received. See Winkfield v. American Continental Insurance Co., 110 Ill.App.2d 156, 249 N.E.2d 174.

Plaintiff was also permitted to prove by Argiris that in 1962 defendant engaged its services as a real estate broker and that plaintiff functioned in that capacity, although defendant withdrew its property from the market more than 2 years before the time plaintiff claimed it procured a buyer ready and able to purchase the real estate in question. In addition, plaintiff was permitted to show by Argiris’s testimony, and by copies of letters, the efforts it made as a cooperating broker with Bennett and Kahnweiler. Over defendant’s objections, plaintiff offered and the trial court admitted copies of inter-office memoranda and communications with defendant which Argiris prepared after June 4, 1965.

In deciding whether admission of this evidence was error, we observe that none of it was received to prove value of the services plaintiff rendered or to establish the amount of compensation to which it was entitled. This evidence was offered to prove that in July of 1965 defendant employed plaintiff to procure a buyer for its braiding. Therefore, this case is distinguishable from the one on which defendant relies, Fred W. Hoch Associates, Inc. v. Western Newspaper Union, Inc. (1955), 308 N.Y. 461, 126 N.E.2d 749, where the New York Court of Appeals held it was error to permit a broker to prove his unsuccessful efforts “as part of the services rendered” by him. The letters, memoranda and Argiris’s testimony concerning conversations with Caine were introduced to show the conduct of the parties and plaintiff’s efforts in procuring a purchaser for defendant’s property. They were admissible. (See Vancil v. Walter, 323 Ill.App. 291, 55 N.E.2d 305; Voellinger v. Kohl, 261 Ill.App. 271; Spengler v. Eiger, 255 Ill.App. 322; I.L.P. Brokers § 104; 12 C.J.S. Brokers, § 113.) Therefore, the trial court did not err in allowing plaintiff to prove by copies of letters, memoranda and conversations, all of its dealings with the defendant, including its showing of defendant’s building and plaintiffs contacts with Pettibone Mulliken, the corporation that ultimately purchased defendant’s real estate. Compare Greenwald v. Lidsker, 337 Ill.App. 654, 85 N.E.2d 467; Hess v. Canode, 257 Ill.App. 535.

in.

After the jury heard this evidence, the parlies met in a jury instruction conference. Defendant, through its counsel, asserted that its exclusive agency agreement with Bennett & Kahnweiler remained in force until October 2, 1965. Defendant argued that although the agreement was terminated on June 4, 1965, it was subject to a 120-day post-termination period which would have obliged defendant to pay a commission if a sale or lease were made to a prospect who had been shown the building during existence of the agreement. Accordingly, defendant requested the trial court to instruct the jury that plaintiff had the burden of proving that after October 2, 1965, it employed the plaintiff to procure a purchaser for its building; and after that date, plaintiff procured the Pettibone Mulliken Corporation as a purchaser for defendant’s property. The trial court refused to give the jury that instruction. Then, defendant, insisting on its contention that the Bennett & Kahnweiler agreement continued in existence until October 2, 1965, requested that the jury be given two instructions which told it that if it found plaintiff procured Pettibone Mulliken as a purchaser of defendant’s property during the Bennett & Kahnweiler agreement, or while plaintiff was working as a cooperating broker, then it was to find in defendant’s favor. The trial court refused to give either instruction. Instead, over defendant’s objection, the court gave an instruction tendered by plaintiff which told the jury:

“In order for the plaintiff to be regarded as the procuring cause of the sale of the building located at 5501 West Grand Avenue, the plaintiff must show that he was instrumental in bringing the parties together. It is not necessary that the buyer was actually introduced to the defendant by the plaintiff. It is sufficient if the sale was effected through the efforts of the plaintiff or through information derived from him.”

In deciding whether it was error for the trial court to refuse defendant’s three instructions and give the instruction tendered by plaintiff, we bear in mind that plaintiff did not sue as a cooperating broker who sought to enforce the terms of the Bennett & Kahnweiler exclusive agreement. Plaintiff sued to recover on what it claimed was an agreement in July of 1965 by which defendant employed it to procure a purchaser for its real estate. As we have already decided, the exclusive agency was terminated by defendant on June 4, 1965. Therefore, defendant’s tendered instructions, all predicated on the contention that the exclusive agreement continued in force until October 2, 1965, did not correctly state the law and would have misled the jury. Instructions that incorrectly state the law and mislead the jury should not be given. See Krensky v. Lynch, 240 Ill.App. 28; Anderson v. Elden, 125 Ill.App.2d 220, 260 N.E.2d 485.

Plaintiff’s instruction, however, correctly stated the law and was applicable to the evidence of the case. (Doss v. Kirk, 8 Ill.App.2d 536, 132 N.E.2d 49; Graff v. Whitehouse, 71 Ill.App.2d 412, 219 N.E.2d 128.) A brokers right to a commission depends on whether the sale was procured or effected through his efforts or through information derived from him, and cannot be defeated by the owner’s making a sale himself or through another broker. (Chiagouris v. Continental Trailways, 50 Ill.App.2d 196, 200 N.E.2d 399.) Therefore, the trial court did not err in giving the instruction tendered by plaintiff or in refusing the three instructions tendered by the defendant.

IV.

On plaintiff’s behalf, the jury heard Van C. Argiris, Leon Caine as an adverse witness, and Richard P. O’Neill, who was present in November 1964, when Argiris took representatives of the Pettibone Mulliken Corporation to inspect defendant’s building. In addition, plaintiff offered 26 exhibits which were admitted in evidence. Among these were carbon copies of letters between the parties, letters plaintiff wrote to Pettibone Mulliken concerning defendant’s building, copies of memoranda and a Xerox copy of the letter Pettibone Mulliken wrote defendant when it decided to buy the building. On defendant’s behalf, the jury heard Caine as a defense witness, E. J. Seifert, president of Pettibone Mulliken and Joe Shure who was defendant’s comptroller and assistant treasurer. Defendant offered 12 exhibits; but only four were admitted in evidence: a copy of the exclusive agency agreement with Bennett & Kahnweiler, copies of two letters and the copy of the memorandum.

Argiris’s testimony, plaintiff’s principal evidence, was sharply contradicted by Caine. According to Argiris, Caine, either on July 29, 1965, or thereafter, through informal conversations by telephone and in person, employed plaintiff to procure a purchaser for defendant’s building and promised to pay a commission in the amount customarily paid real estate brokers for sales or leases of industrial property. According to Caine, these things did not occur. Therefore, on this conflicting evidence, it was for the jury to decide whether on and after July 29, 1965, defendant, through Caine, employed plaintiff to procure a purchaser for its real estate, and whether plaintiff procured Pettibone Mulliken, which purchased defendant”s property. Wright v. Olson, 191 Ill.App. 272; Anderson v. Elden, 125 Ill.App.2d 220, 260 N.E.2d 485.

No particular form of words is necessary to engage the services of a real estate broker. (Greenwald v. Marcus, 3 Ill.App.2d 495, 123 N.E.2d 139.) AH that is required is action by the broker with consent of the principal, consent given in writing, orally, or by implication from conduct of the parties. O’Dea v. Throm, 250 Ill.App. 577; Dickerson Realtors, Inc. v. Frewert, 16 Ill.App.3d 1060, 307 N.E.2d 445; 12 C.J.S. Brokers § 12.

In this case, by Argiris s testimony, plaintiff proved that defendant, through Caine, employed it to act as a broker to sell the real estate involved. Argiris’s testimony, itself plausible and believable, found support in the exhibits, the testimony of O’Neill, and in the evidence introduced by defendant. The jury accepted plaintiff’s version of the transactions between the parties. In our judgment, the evidence adequately supports its findings and verdict. Crilly v. Young, 152 Ill.App. 72; Scheske v. Wiechert, 2 Ill.App.2d 331, 119 N.E.2d 508. The judgment is affirmed.

Affirmed.

HAYES, P. J. and STAMOS, J., concur.


text:
    Nardi & Co., Inc., Plaintiff-Appellee, v. Robert A. Allabastro, Defendant-Appellant.
    (No. 57301;
    First District (2nd Division)
    May 28, 1974.

      Richard B. Harty, of McGrath & Harty, of Wheaton, for appellant.
    Jonathan T. Howe, of Chicago (Jenner & Block, of counsel), for appellee.
   Mr. JUSTICE LEIGHTON

delivered the opinion of the court:

Nardi & Co., Inc., an Illinois corporation, filed a suit against Robert A. Allabastro; and in an amended complaint, it alleged the breach of an express written contract to pay a $40,000 real estate brokerage commission. Defendant appeared and denied plaintiff’s material allegations. Thereafter, without a jury, the trial court heard evidence and found that plaintiff was entitled to recover $25,000 in damages from the defendant. The sole issue in this appeal is whether in this action ex contractu the trial court could enter a judgment quantum meruit in favor of the plaintiff.

I.

Early in 1965, Robert A. Allabastro, a real estate broker who specialized in acquiring vacant real estate for industrial development, purchased from three separate farm families options to buy 200 acres of contiguous farmland in Du Page County, Illinois. Allabastro planned to have the land rezoned and then sell it at $10,000 per acre for development of an industrial park. As is common in such ventures, Allabastro encountered problems; and as a result, he met Robert K. Bley, a licensed real estate broker then employed by Nardi & Podolsky, an Illinois licensed real estate brokerage corporation that dealt primarily in the development of industrial sites. Nardi & Podolsky was the predecessor corporation to the plaintiff in this case, Nardi & Company, Inc.

After several meetings and conversations, Allabastro agreed with Bley that Nardi & Podolsky could be his exclusive agent to sell the 200 acres. Accordingly, on March 7, 1968, the agreement was signed; and under its terms, several prospective purchasers (not including Winthrop Lawrence, Inc.) were submitted to Allabastro, one of which made an offer to purchase the 200-acre parcel, treating it as having a net acreage of 170 acres. This feature of the offer made it unacceptable to Allabastro. Therefore, he contacted William Klebold, a District of Columbia mortgage broker, and through him began negotiations for sale of the land to Winthrop Lawrence, Inc. In discussing what should be the commission, Allabastro expressed to Klebold the willingness to pay $100,000 if he got his price: $2,000,000. Thereafter, negotiations with Winthrop Lawrence continued and culminated with an agreement that if adequate financing could be obtained, it would purchase the 200 acres for $2,000,000. It was Winthrop Lawrence’s plan to reseH the land in smaller parcels to companies in need of industrial sites.

After the Winthrop Lawrence agreement was formalized, Bley and Milton Podolsky, a partner, stockholder and employee of Nardi & Podolsky, worked to obtain the required financing. Through their efforts, Equitable Life Assurance Society of America agreed that if Winthrop Lawrence had the services of a real estate broker experienced in the sale of industrial sites, it would make a mortgage commitment. Nardi & Podolsky was qualified to meet this requirement of the mortgage lender. The firm agreed to handle the contemplated parceling and resale of the 200 acres. As a consequence, Equitable made the mortgage commitment.

On August 28, 1968, Allabastro and Bley, in the presence of business associates, met to discuss the impending sale of the land to Winthrop Lawrence and the compensation for Bley and the firm that employed him. Allabastro agreed that Bley had been of considerable assistance in obtaining the mortgage and in activities related to the potential sale. In the course of the discussion, Allabastro pointed to the contemplated resales of the land by Winthrop Lawrence, resales which he thought would produce as much as $500,000 in real estate brokerage commissions. As a result, it was agreed that Bley and Nardi & Podolsky were to be paid a sum certain, in the event of a sale; or a sum certain if the firm became exclusive agents for resale of the land. On the same day of the meeting, Allabastro wrote Bley the following letter:

August 28, 1968
“Mr. Robert K. Bley
Nardi and Podolsky, Inc.
221 North La Salle St.
Chicago, Illinois 60601
Dr. Mr. Bley:
In the event a sale is consummated to Lamot Dupont Copeland or Winthrop Lawrence, Inc. or their nominee for the 200 acres of land fronting 1,615 feet on Devon Avenue and going back in depth to Thorndale Road, west of Route 83, Du Page County, Illinois, I agree to pay to Robert K. Bley and Nardi and Podolsky, Inc. a real estate commission of Fifty Thousand Dollars ($50,000.00). In the event an exclusive real estate agreement is entered into between the above purchasers and Nardi and Podolsky, Inc. for the development of this property, Robert K. Bley and Nardi and Podolsky, Inc. will only be entitled to a real estate commission for the sale of Twenty Five Thousand Dollars ($25,000.00), this commission to be paid upon consummation of sale and passing of title.
Yours very truly,
/s/ Robert A. Allabastro
Robert A. Allabastro
It is further agreed that Robert Allabastro shall be entitled to commissions equal to 20% of all commissions collected by Nardi and Podolsky for sale of said land. Total commission not to exceed Fifty Thousand Dollars ($50,000.00).
/s/ Robert Allabastro
Robert Allabastro
/$/ Robert K. Bley
Robert K. Bley”

Neither Bley nor Nardi & Podolsky became exclusive agents to resell the land. In fact, Winthrop Lawrence changed its plans. Instead of purchasing the 200 acres for resale, it consummated its deal with Allabastro by purchasing his option rights to the 200 acres for $2,000,000 and sold them to the Tremmel-Crow Corporation, one of the prospective purchasers who had been shown the land by Nardi & Podolsky. After the deal was closed, but from proceeds of the sale on behalf of Allabastro, Klebold was paid a commission of $60,000.

Nardi & Podolsky was not paid any compensation. Then, relying on the first paragraph of Allabastro’s letter of August 28, 1968, it submitted an invoice for its commission. The invoice was not paid; this suit was filed. The trial court heard evidence by testimony of the persons immediately involved and exhibits received on behalf of plaintiff and defendant. It found in plaintiffs favor and that plaintiff was “* * * entitled to damages on a quantum merit basis [sic] against the defendant in the amount of Twenty-Five Thousand Dollars ($25,000.00).”

Thereafter, in a post-trial motion, defendant moved to arrest the judgment or, in the alternative, for a new trial on the ground that it was error for the trial court to grant plaintiff a judgment, quantum meruit, without amendment of its pleading, when its complaint was a suit ex contractu to enforce an express written contract for payment of a specific real estate commission. The trial court denied the motion and entered judgment on the findings.

II.

In the law, the expression “quantum meruit” means literally “as much as he deserves.” (Redd v.Lir & Contracting Co. (1963), 246 Miss. 548, 151 So .2d 205, 207; 73 C.J.S. 1269.) It is an expression that describes the extent of liability on a contract implied by law. (See Derr v. Moody (1969), 5 Conn. Cir. 718, 261 A.2d 290, 293.) This liability is predicated on the reasonable value of services performed. Thus, the basis for recovery quantum meruit is receipt by a defendant from a plaintiff of a benefit which it is unjust for him to retain without paying for it. Dunn v. Phoenix Village, Inc. (W.D. Ark. 1963), 213 F.Supp. 936, 952.

In this case, defendant admitted, when he testified, that in his attempts to sell the land on which he had option rights, he benefited from the services of Bley, plaintiff s employee and agent. Bley and Milton Podolsky testified and described the work they did for defendant. In fact, it was to provide for Bley’s compensation that defendant wrote the letter of August 28, 1968. Defendant’s counsel, in summation of defendant’s position before the trial court, conceded defendant’s indebtedness to Bley. This concession is important because in all his dealings with defendant, Bley was plaintiffs employee and agent. It is well established that rights acquired by an agent while acting for a disclosed principal inure to the benefit of the principal. Kost v. Peterson (1971), 292 Minn. 46, 193 N.W. 2d 291.

This reminds us of the old Illinois case where a horse thief, for whose capture Montgomery County offered a $300 reward, escaped and fled to the State of North Carolina where he was arrested and confined on another charge. Robinson, who had been victimized by the thief, employed White, paid his expenses and sent him, assisted by extradition papers, to bring back the culprit. White did so; and thereafter claimed the reward for which he obtained a judgment against the county. On appeal, it was argued that Robinson was not entitled to the reward because White had made the recapture. The Supreme Court, however, held that since White was Robinson’s agent in returning the horse thief, the county had to pay Robinson the reward. County of Montgomery v. Robinson, 85 Ill. 174.

In our judgment, this old decision controls this point of the case before us. Bley was plaintiffs agent when defendant received the benefit of his labor. Defendant, in the trial court, as a witness and by his lawyer, conceded being indebted to Bley. This was a concession of indebtedness to the plaintiff. (Compare Kirby v. Wilson, 98 Ill. 240.) It was also a concession of liability, not on the express contract sued upon by the plaintiff but on a contract implied in law. (See Wyche v. Perrin (Civ. App. Texas 1950), 228 S.W.2d 330.) In such a case, and without amendment of the pleadings, there can be recovery quantum meruit. (Moreen v. Estate of Carlson, 365 Ill. 482, 6 N.E.2d 871; Anderson v. Biesman & Carrick Co., 287 Ill.App. 507, 4 N.E.2d 639; compare First National Bank of Lincolnwood v. Glenn, 132 Ill.App.2d 322, 270 N.E.2d 493.) The recovery is limited to the reasonable amount by which the trial court finds defendant was unjustly enriched at the expense of the plaintiff. Comm v. Goodman, 6 Ill.App.3d 847, 855, 286 N.E.2d 758; 25 C.J.S. Damages §74.

As to this, the trial court had before it testimony of the persons involved and exhibits that reflected the relation between the parties. The evidence disclosed the nature, size and value of the transaction; it revealed that defendant, a real estate broker who knew the reasonable value of service by a broker, was willing to pay a commission of $100,000. In fact, the letter of August 28, 1968, showed that defendant thought Bley and plaintiff were entitled to at least $25,000 for the benefit defendant had received from their labors. The evidence, then, adequately supports the trial court’s finding as to damages. Therefore, we conclude that in this action ex contractu, without amendment of the pleadings, the trial court could enter a judgment in favor of the plaintiff, quantum meruit; and that the award of $25,000 in damages for plaintiff against defendant was proper. The judgment is affirmed.

Affirmed.

HAYES, P. J., and STAMOS, J., concur.


author: PER CURIAM:

text:
    Elmore Butler, Plaintiff-Appellee, v. Jorge Castillo, Defendant-Appellant.
    (No. 58425;
    First District (2nd Division)
    May 28, 1974.
    DOWNING, J., took no part.
    Porrillo, Sims and Bresler, of Chicago, for appellant.
    C. Gus Kages, of Steinberg, Burtker & Kages, Ltd., of Chicago, for appellee.
   PER CURIAM:

Judgment was entered upon a verdict assessing damages for plaintiff and against defendant for injuries which allegedly arose out of a collision involving automobiles operated by the respective parties. Defendant contends on this appeal that the trial court was in error in failing to require the jury to answer a special interrogatory submitted by defendant on the question of plaintiff’s freedom from contributory negligence.

The complaint alleged, inter alia, that at the time of the mishap the plaintiff was in the exercise of ordinary care for his own safety, which allegation was specifically denied in defendant’s answer. Together with the instructions tendered for submission to the jury, the defendant tendered the following special interrogatory:

“Was the plaintiff, ELMORE BUTLER, before and at the time of the alleged occurrence guilty of contributory negligence which was the proximate cause of his injury?”

The jury returned a general verdict for plaintiff, but failed to answer the special interrogatory. Defendant’s post-trial motion to vacate the judgment specifically raised the question whether the trial court was in error by having failed to require the jury to answer the special interrogatory and by having permitted it to remain unanswered. The post-trial motion was denied, and defendant persists on this appeal in his position adopted in that motion.

Section 65 of the Civil Practice Act provides that a jury must be required, upon request of a party to an action, to find specially on any material questions of fact submitted to them in writing; if the answer to such special interrogatory is in conflict with the jury’s general verdict, the former finding will control the latter. (Ill. Rev. Stat. 1973, ch. 110, par. 65.) The question posed by defendant to the jury in the instant special interrogatory involved a matter material to the outcome of this case, the answer to which would clearly have controlled the jury’s general verdict if contrary thereto. The correct practice in this instance was for the trial court to have required the jury to answer the special interrogatory. Consolidated Coal Co. v. Maehl, 130 Ill. 551, 22 N.E. 715; Cleveland, C., C. & St. L. Ry. Co. v. Doerr, 41 Ill.App. 530; Ill. Rev. Stat. 1973, ch. 110, par. 65. See also Weaver v. Illinois Bell Telephone Co., 114 Ill.App.2d 10, 252 N.E.2d 387 (abstract opinion).

Plaintiff’s position, that, because the jury was properly instructed on all material issues of the case, it was not necessary for them to have answered the special interrogatory, is without merit; that position ignores the statutory requirement that the jury must answer such interrogatory when properly posed by a party to the action. The cases cited by plaintiff in support of his position are distinguishable: Ryan v. Chicago & Northwestern Ry. Co., 320 Ill.App. 361, 51 N.E.2d 74; Schmidt v. Blackwell, 15 Ill.App.3d 190, 304 N.E.2d 113.

For these reasons, the judgment of the circuit court of Cook County is reversed and the cause is remanded for a new trial.

Judgment reversed and cause remanded for a new trial.

DOWNING, J., took no part in the consideration or decision of this case.


author: Mr. JUSTICE DOWNING

text:
      In re Estate of Frank Mallerdino, Deceased, Appellee — (Trinity Universal Insurance Company, Appellant.)
    (No. 59546;
    First District (2nd Division)
    May 28, 1974.
    Hubbard, Hubbard, O’Brien & Hall, of Chicago (Alvin G. Hubbard, Frederick W. Temple, and Douglas W. Graham, of counsel), for appellant.
    Roland V. Libonati and Richard Altieri, both of Chicago, for appellee.
   Mr. JUSTICE DOWNING

delivered the opinion of the court:

This is an appeal from an order entered in the court below dismissing the amended complaint of appellant Trinity Universal Insurance Company (hereinafter Trinity) which had been filed against the estate of Frank Mallerdino, deceased. Trinity had filed its claim against the estate, in its own name, contending that it had been subrogated to the rights of one of its insureds against the deceased to the extent of $4,000, which it had paid said insured under uninsured motorist provisions of an applicable policy. On motion of the administrator of the estate, the court below dismissed Trinity’s complaint; Trinity’s appeal followed.

The pertinent facts are as follows. Trinity had issued to one James Wamken an automobile insurance policy, which included uninsured motorist coverage and which was effective from May 11, 1969, to May 11, 1970. The policy provided, in part, that Trinity would pay all sums which an insured would be legally entitled to recover as damages for injuries caused by accident and arising out of the ownership, maintenance, or use of an uninsured automobile.

On September 4, 1969, Frank Mallerdino, an uninsured motorist, allegedly negligently drove his auto into the rear end of an auto operated by Frances Warnken, wife of James Warnken, which resulted in bodily injury to Frances Wamken, an insured under the Trinity policy. Subsequently, in compliance with the uninsured motorist provisions of the policy, on November 19, 1970, Trinity paid $4,000 to Frances Wamken in settlement of her claim under the policy.

Under the “Family Protection Coverage” section of the Trinity policy, there were these provisions:

“Trust Agreement. In the event of payment to any person under this Part:
(a) the company shall be entitled to the extent of such payment to the proceeds of any settlement or judgment that may result from the exercise of any rights of recovery of such person against any person or organization legally responsible for the bodily injury because of which such payment is made;
(b) such person shall hold in trust for the benefit of the company all rights of recovery which he shall have against such other person or organization because of the damages which are the subject of claim made under this Part;
(c) such person shall do whatever is proper to secure and shall do nothing after loss to prejudice such rights;
(d) if requested in writing by the company, such person shall take, through any representative designated by the company, such action as may be necessary or appropriate to recover such payment as damages from such other person or organization, such action to be taken in the name of such person; in the event of a recovery, the company shall be reimbursed out of such recovery for expenses, costs and attorneys’ fees incurred by it in connection therewith;
(e) such person shall execute and deliver to the company such instruments and papers as may be appropriate to secure the rights and obligations of such person and the company established by this provision.”

On November 19, 1970, James and Frances Wamken executed a “Receipt and Tmst Agreement” with Trinity, which provided in part:

“In consideration of the payment of the above amount [$4,000.00] by Trinity Universal Insurance Company, herein called ‘Beneficiary,’ the undersigned, herein called ‘Trustee’:
(1) Hereby releases and forever discharges Beneficiary from any and all liability whatsoever to the undersigned under the Uninsured Motorist provisions of the above policy for bodily injury, sickness or disease arising out of the above described accident.
(2) Agrees to hold for the benefit of Beneficiary all rights, claims and causes of action which trastee has or may have against anyone other than Beneficiary for such bodily injury, sickness or disease.
(3) Agrees to take, through any representative designated by the Beneficiary, such action in the name of Trustee as may be necessary or appropriate to recover damages for such injuries, sickness or disease, the Beneficiary to pay all costs and expenses in connection therewith.
(4) Agrees that any money so recovered by the Trustee for such injuries, sickness or disease, whether by settlement or otherwise, not in excess of the above amount, plus expenses, costs and attorneys fees incurred by Beneficiary in connection with such recovery, shall be held in trust by the Trustee and paid to Beneficiary upon demand.
(5) Represents to Beneficiary that Trustee has not released anyone other than Beneficiary from any rights, claims or causes of action which Trustee may have to recover damages for such injuries, sickness or disease, and that Trustee has received no payment from anyone other than Beneficiary as damages, compensation or otherwise, for such injuries, sickness or disease.” (Emphasis supplied.)

On April 26, 1973, Trinity filed its second amended complaint in tort in its own name against the estate of Frank Mallerdino, alleging, inter alia, that the deceased had negligently operated his auto at the time of the September 4, 1969, accident with Frances Wamken, which resulted in injuries to her; that the deceased was an uninsured motorist at the time of the accident; that Trinity had paid Frances Wamken $4,000 in settlement of her claim with Trinity under the policy’s uninsured motorist provisions; and that Trinity had become subrogated to the rights of Frances Wamken against the deceased to the extent of the $4,000 paid. A copy of the Trinity policy was attached to this complaint.

On May 21, 1973, the administrator of the estate filed with the court a motion to dismiss Trinity’s complaint, contending that any “subrogating” rights of Trinity had been “transferred or assigned” to Frances and James Wamken, as trustees, by virtue of the provisos of the November 19, 1970, “Receipt and Trust Agreement” set out above; a copy of the agreement was attached to the motion by the administrator as an exhibit. On June 14,1973, the court entered an order sustaining the administrator’s motion to dismiss Trinity’s complaint.

As we see it, a single issue is presented here for resolution: whether Trinity, in light of provisions contained in the “Trust Agreement” section of the policy and in the “Receipt and Trust Agreement,” had the right to file the complaint in the court below in its own name. On appeal, Trinity argues that by paying the claim under the policy to Frances Wamken, it became subrogated to her rights and was entitled to sue in its own name, pursuant not only to the policy’s provisions, but also by virtue of statutory and case law established in this state. The estate, on the other hand, contends that neither the statutes nor the case law of this state provide Trinity the right to sue in its own name, adding, moreover, that the estate has the right to require that there shall be such a plaintiff before the court as will make the recovery against the estate a bar to any other action by another for the same damages.

Section 22(3) of Illinois’ Civil Practice Act (Ill. Rev. Stat. 1971, ch. 110, par. 22(3)) provides:

“(3) Any action hereafter brought by virtue of the subrogation provision of any contract or by virtue of subrogation by operation of law shall be brought either in the name or for the use of the subrogee; provided, the subrogee shall in his pleading on oath, or by his affidavit if pleading is not required, allege that he is the actual bona fide subrogee and set forth how and when he became subrogee.”

Section 755a of Illinois’ Insurance Code (Ill. Rev. Stat. 1969, ch. 73, par. 755a), entitled “Uninsured or hit-and-run motor vehicle coverage,” reads in part:

“(3) In the event of payment to any person under the coverage required by this section and subject to the terms and conditions of such coverage, the insurer making such payment shall, to the extent thereof, be entitled to the proceeds of any settlement or judgment resulting from the exercise of any rights of recovery of such person against any person or organization legally responsible for the bodily injury or death for which such payment is made, * "

Remsen v. Midway Liquors, Inc. (2nd Dist. 1961), 30 Ill.App.2d 132, 174 N.E.2d 7, a case to which both parties on appeal call our attention, involved, in the context of uninsured motorist coverage, a trust agreement. In Remsen, the administrator of the estate of George W. Remsen (insured) and his widow, Elizabeth N. Remsen, individually instituted a dram shop action, which resulted in a settlement and a covenant not to sue. Payments were made, and, pursuant to order of court, all settlement funds were deposited with the clerk of the court pending the court’s further order of distribution.

An insurance company filed an intervening petition, alleging that it had been subrogated to a portion of the settlement proceeds of the dram shop action, in custody of the clerk of the court, because it had paid its insured’s claims under applicable uninsured motorist provisions of an insurance policy.

The insureds in Remsen had executed a release and trust agreement similar in theory — but not identical in language — to that before the court in this case. At issue in Remsen was the legal effect of the release and trust agreement, whereby the administrator for the insured, in consideration of the deceased’s own insurance carrier paying the estate the amount of legal damages flowing from the tort of an uninsured motorist, agreed to hold in trust for the insurer any proceeds that the estate of the insured may later obtain from the tortfeasor or any other person legally responsible to the insured up to the amount paid by the insurance carrier.

In Remsen, the suit was instituted by the administrator of the estate of the deceased and the widow of the insured, who was the person actually injured in the accident which brought about the litigation; the defendants were a liquor company and a tavern. On the other hand, in the instant matter, the insured was not a party to the litigation in the court below. The Remsen court, in holding that the agreement was only for subrogation to part of the proceeds of the cause of action which remained in the insured and was not an assignment of a cause of action for tort, said at pages 143-144 of its opinion:

“Subrogation presupposes an actual payment and satisfaction of the debt or claim to which the party is subrogated, although the remedy is kept alive in equity for the benefit of the one who made the payment under circumstances entitling, him to contribution or indemnity while assignment necessarily contemplates the continued existence of the debt or claim assigned. Subrogation operates only to secure contribution and indemnity, whereas an assignment transfers the whole claim. [Citation.]”

At page 144 of the Revisen opinion, the court stated:

“[W]e conclude that the Trust Agreement is one of subrogation and not an assignment of an action for injuries to the body. It meets all of the characteristics of subrogation in that the debt was paid under a legal obligation for the wrong of another. It does not transfer the entire claim but only to the extent of the insurers payment and is repayable only in the event of subrogors recovery from any person liable for the injury.” (Emphasis supplied.)

In our opinion, it is clear that the words “be entitled to the proceeds of any settlement or judgment,” as set forth in chapter 73, section 755a(3), and the words “shall be entitled to the extent of such payment to the proceeds of any settlement or judgment,” which are a part of paragraph (a) of the Trust Agreement in the instant case, in no way created in Trinity, the subrogee, the right to file suit in its own name against the estate of Frank Mallerdino. Our opinion on this point is amply supported by the rationale espoused in Remsen, supra. We further agree with the estate that it had the right to require that there should have been before the court such a plaintiff as would, have made recovery against the estate a bar to any other action by another for the same damages arising from the injury to Frances Warnken. See Ragen v. Bennigsen (1st Dist. 1956), 10 Ill.App.2d 356, 363, 135 N.E.2d 128; Balch v. English (1st Dist. 1928), 247 Ill.App. 429, 435; and Brosam v. Employers Mutual Casualty Co. (4th Dist. 1965), 61 Ill.App.2d 183, 188-189, 209 N.E.2d 350.

Trinity’s reliance upon the cases cited in its brief in support of its position is misplaced. Both Bernardini v. Home & Automobile Insurance Co. (1st Dist. 1965), 64 Ill.App.2d 465, 212 N.E.2d 499, and Damhesel v. Hardware Dealers Mutual Fire Insurance Co. (1st Dist. 1965), 60 Ill.App.2d 279, 209 N.E.2d 876, involved situations where insureds had executed general releases to third parties who had caused their injuries. Thereafter, the insureds sued their insurance companies to collect for medical bffls which were covered under their automobile insurance policies. Both Bernardini and Damhesel reflect holdings that the insureds therein had breached their contractual obligations by executing the general releases, which prejudiced the rights of the insurers. We do not find the circumstances of the matter at hand to be analogous to those presented in Bernardini and Damhesel.

Dworak v. Tempel (1959), 17 Ill.2d 181, 161 N.E.2d 258, concerned a proceeding under the Liquor Control Act instituted by an injured insured for the use of his insurance company against certain defendants. The issue presented in Dworak was whether an insurance carrier was entitled to assert a claim under the Liquor Control Act, in its own right, or as subrogee of its assured for payments made to its assured for property damage caused by an intoxicated person. The court held, at pages 192-193 of its opinion, that an insurance company was not entitled to assert said claim in its own right, but may assert the valid claim as subrogee. However, in Dworak the suit was instituted in the name of the injured insured for the use of the insurance company, a situation significantly different from that in the case at bar.

Trinity, in its brief and on oral argument, strongly urged the applicability of Shaw v. Close (1st Dist. 1968), 92 Ill.App.2d 1, 235 N.E.2d 830, so far as the case relied upon section 22(3) of the Illinois Civil Practice Act. Shaw involved an accident in which the injured sued, in his own name, the tortfeasor for the total repair bill. A release was executed between the parties, under which the only action remaining was that of the insurance company. This court held that the action had to be brought either in the name of, or for the use of, the insurance company, as the injured party had released his entire cause of action. Thus, under such circumstance, the statute (section 22(3)) was held to be applicable. That circumstance, however, is not comparable to the instant situation.

Furthermore, the correlative historical note following section 22(3) clearly indicates that the section was not intended to apply to the circumstances obtaining in the matter at hand; the note reads:

“Subsection (3) would appear to provide that in a suit brought by an insured who has been compensated by an insurer, where the insurer is the real party in interest, the suit must be brought by or for the use of the insurer. But the provision has not been so construed, at least when the insured is entitled to recover something over and above the amount of the subrogation claim. In such a case, the suit may be brought in the name of the insured only, even though all except a nominal share of the claim is made on behalf of the insurer as subrogee. Osgood v. Chicago & N. W. Ry. Co., 253 Ill.App. 465 (1929) (construing the substantially identical predecessor to subsection (3)).” (S.H.A., ch. 110, par. 22 (1968).)

While the cited case supports the second quoted sentence, we recognize that it does not support the third quoted sentence, which states the principle which we hold in the instant case. Nevertheless, we think the note-writers conclusion is both significant and correct.

We have considered the other reasons advanced by Trinity in support of its appeal and find that they are without merit.

For these reasons, we affirm the judgment of the circuit court of Cook County.

Judgment affirmed.

HAYES, P. J., and LEIGHTON, J., concur.

       The record before this court does not contain any previously filed complaint.

       The intervening petition was filed some 3 months after one defendant was dismissed by settlement stipulation and less than 30 days before the other defendant was dismissed by settlement stipulation as to one of two counts.

       The release was executed Oct. 22, 1958, about 1 month after said suit was filed.


author: Mr. JUSTICE HALLETT

text:
    The People of the State of Illinois, Plaintiff-Appellant, v. James Giannopoulos et al., Defendants-Appellees.
    (Nos. 57659-57664 cons.;
    First District (1st Division)
    June 3, 1974.

      Bernard Carey, State’s Attorney, of Chicago (Kenneth L. Gillis and Jerald A. Kessler, Assistant State’s Attorneys, of counsel), for the People.
    No brief for appellees.
   Mr. JUSTICE HALLETT

delivered the opinion of the court:

Defendants were charged with various gambling offenses as a result of evidence obtained against them by poHce executing a search warrant. The defendants’ motion to quash the warrant and to suppress evidence obtained from the search was granted and the State has appealed. For reasons subsequently set forth, we reverse and remand.

The defendants have not seen fit to appear as appellees or to file briefs. Where, as here, an appellee has not filed a brief in the reviewing court, it may reverse without considering the case in detail but reversal is not required and the reviewing court may if it chooses consider and determine the case on its merits. (2 I.L.P. Appeal and Error, ch. 10, § 560; Perez v. Janota (1969), 107 Ill.App.2d 90, 246 N.E.2d 42; Daley v. Jack’s Tivoli Liquor Lounge, Inc. (1969), 118 Ill.App.2d 264-275, 254 N.E.2d 814; Lynch v. Wolverine Insurance Co. (1970), 126 Ill.App.2d 192, 193, 261 N.E.2d 466.) We elect to follow the latter course here.

The facts giving rise to this dispute were as follows. Investigator Dineen applied for a search warrant by filing the following complaint.

“On January 25, 1971 I, Investigator John M. Dineen, a police officer assigned to the Intelligence Division of the Chicago Police Department interviewed an informant as to his knowledge of illegal gambling activities in the Chicago area. I have known this informant for over three years during which time he has given me information on gambling activities on at least six occasions resulting in six local gambling raids with at least nine arrests and four convictions. On all raids conducted with information provided by this informant illegal gambling paraphernalia was seized.
This informant stated to me that he has been placing wagers with two persons known to the informant as Schnaps and Pete on horse races and various sporting events. The informant stated that these two men would call him at his place of employment and accept the wagers and that they would meet on Fridays at various places on the north side and sit in the auto of the two men and pay off or collect from the informant. The informant identified the auto of Schnaps as a 1969 white Chevrolet bearing 1970 Illinois license LT 5723 and the auto of Pete as a 1969 black over white Chevrolet bearing Illinois 1970 license HN 7225. These two autos were known to the affiant as belonging to James Giannopoulos aka Schnaps and Peter Grafner. Photos of these two men were obtained and shown to the informant and he identified these as being the men known to the informant as Schnaps and Pete.
On January 28, 1971 at about 11:50 AM I was with the informant at his place of business when he received a telephone call. The informant held the telephone so that I could hear both parties to the conversation and addressed the man who called as ‘Schnaps’. Schnaps stated to the informant, ‘You’re up forty-eight from yesterday, what do you want today’. The informant stated ‘Give me the number one horse in the fifth at Hialeah and the number five in the seventh and ninth at the Fair Grounds, five across the board on each and a ten dollar Round Robin’. Schnaps then said, ‘OK, you’re on, we’ll meet you this evening at about six at Lincoln and Bryn Mawr to settle up, I’ll be in my car, not Petes.’
At about 5:50 PM on January 28,! ( & ! I observed the informant standing on the comer of Lincoln and Bryn Mawr with the auto of James Giannopoulos, the aforementioned 1969 white Chevrolet, pulled up and two men were observed in the auto. The driver being James Giannopoulos and the passenger Peter Grafnér. The informant entered the auto and remained in same for about four minutes. The informant then got out of the car and it drove off. The informant was then interviewed and he stated that Pete and Schnaps referred to sheets of paper they kept under the front seat of the auto before squaring off the weeks wagers with him.
On February 3, 1971 I again was in the place of employment of the informant when he received a telephone call and held the telephone so that I could hear both parties to the conversation and I listened as the informant stated ‘Pete, what is my figure’ and the man on the other end answered ‘You’re down sixty-eight’. The informant then stated ‘OK call me back tomorrow and I’ll even up with you. The voice on the other end then stated ‘OK, I’ll see you Friday’.
On February 3, 1971 at about 10:55 PM I observed James Giannopoulos driving his 1969 white Chevrolet at Western Ave. and Catalpa St. and observed that it was bearing Illinois 1971 license SC 1098.
A check with the Chicago Police Department Inquiry Section shows James Giannopoulos aka James Harris has an IR#20797 which lists several prior gambling arrests and that Pete Grafner has an IR#227662 which lists several prior gambling arrests with one conviction for violation of the federal gambling statutes and a federal penitentiary sentence for same.
In view of the aforementioned facts I believe that James Giannopoulos aka James Gardner, James Harris or Schnaps and Peter Grafner alca Peter Gray are operating an illegal gambling operation and that records of wagers will be found on these men or in the 1969 white Chevrolet bearing Illinois 1969 license SC 1098.”

A search warrant was issued. Its execution resulted in defendants’ arrests, however, their subsequent motion to quash the warrant and suppress evidence obtained as a result of the search was granted by the court. Defendants’ memorandum in support of the motion contended that the search warrant was issued on the basis of information obtained from illegal eavesdropping thereby depriving them of their rights under the fourth amendment of the U.S. Constitution and their rights under article 1, section 6 of the Illinois Constitution. The State has appealed the order of the court. Defendants have not participated in the appeal.

' The State first contends that there was no illegal eavesdropping because there was no eavesdropping as that term is defined by statute (Ill. Rev. Stat. 1971, ch. 38, par. 14 — 2) since no eavesdropping device was used (see Ill. Rev. Stat. 1971, ch. 38, par. 14 — 1). The State maintains that therefore the evidence which they obtained from their search warrant procured as the result of information overheard on the telephone was admissible (see Ill. Rev. Stat. 1971, ch. 38, par. 14 — 5). In any case the State maintains that no violation of defendants’ rights under either the State or Federal constitutions occurred.

We agree with the State’s first contention that no violation of the eavesdropping statute occurred when Investigator Dineen overheard the conversation between informant and defendant Giannapoulos as the result of the informant holding out the telephone receiver so that Dineen could listen. Section 14 — 2(a) of the Criminal Code (Ill. Rev. Stat. 1971, ch. 38, par. 14 — 2(a)) provides that a person commits the offense of eavesdropping when he “[u]ses an eavesdropping device to hear or record all or any part of any conversation unless he does so with the consent of any other party to the conversation and at the request of a State’s Attorney.” (Emphasis ours.) Whether the unaided human ear listening to a telephone on which the conversation is being conducted constitutes use of an eavesdropping device which is defined by statute as “any device capable of being used to hear or record oral conversation whether such conversation is conducted in person by telephone, or by any other means” (Ill. Rev. Stat. 1971, ch. 38, par. 14 — 1(a)) is a question which has been definitively settled by this court: It does not (People v. Brown (1970), 131 Ill.App.2d 244, 248-249, 266 N.E.2d 131; People v. 5948 West Diversey Ave. (1968), 95 Ill.App.2d 479, 483, 238 N.E.2d 229). Therefore, we conclude that no eavesdropping as defined by statute occurred in this case.

The State next contends that no right under the fourth amendment of the U.S. Constitution was violated. We agree. The United States Supreme Court held in United States v. White (1971), 401 U.S. 745, 28 L.Ed.2d 453, 91 S.Ct. 1122, that where an informant is a party to a conversation with a defendant the informer may transmit the contents of that conversation to a third party police officer since no invasion of privacy occurs where one party to a conversation consents to divulge the contents of the conversation to police officers. The same is true of a tape recording made of the conversation by an informer and later given to police (Lopez v. United States (1963), 373 U.S. 427, 10 L.Ed.2d 462, 83 S.Ct. 1381), or of notes later given to police by the informer (United States v. Hoffa (1966), 385 U.S. 293, 17 L.Ed.2d 374, 87 S.Ct. 408). In effect a defendant takes his chances that the person to whom he reveals information which might subject him to criminal liability is not a police officer or informant (United States v. Hoffa, supra). In the instant case the contents of the conversation leading to the issuance of a search warrant were clearly revealed through the consent of the informer who was a party to the conversation. Therefore, no fourth amendment right was violated.

It remains to be seen, however, whether defendants’ rights under article 1, section 6 of the Illinois Constitution were violated. The State contends that no violation of article 1, section 6 occurred. Defendants argued below in their memorandum in support of their motion that there was a violation. We have concluded that there was no violation of defendants’ rights. Article 1, section 6 provides:

“The people shall have the right to be secure in their persons, houses, papers and other possessions against unreasonable searches, seizures, invasions of privacy or interceptions of communications by eavesdropping devices or other means. No warrant shall issue without probable cause, supported by affidavit particularly describing the place to be searched and the persons or things to be seized.”

A proper analysis of whether there has been a violation of article 1, section 6 involves the following analysis: was there an interception of the conversation between defendant and the person to whom he speaks, and if so, then was it accomplished by use of an eavesdropping device or was it accomplished by other means. Finally, assuming that there was an interception by use of an eavesdropping device or other means then we must determine whether that interception was reasonable or unreasonable. If unreasonable, it would constitute a violation of article 1, section 6.

The initial consideration is whether an interception of the conversation between the informer and defendant occurred when the informer held out the telephone receiver so that Officer Dineen could overhear the conversation. Since interception is nowhere defined we must examine the intent of the framers as exhibited in their constitutional debates to help clear up the ambiguity. (People v. Nahas (1973), 9 Ill.App.3d 570, 577, 292 N.E.2d 466.) During the question and answer session following the presentation of the proposed article 1, section 6 provision subsequently adopted by the Convention, the following colloquy occurred between Delegate Kamin, the questioner, and Delegate Foster who authored the provision:

“MR. KAMIN: The concept of an inter — the concept of an interception somehow seems to imply something that comes between the two ends of something, and I’m curious what happens when somebody is at the end. If somebody is at the receiving end, it seems to me it is not an interception.
MR. FOSTER: I would agree with that. If you take the mail out of your mailbox and hand it to me, I haven’t intercepted. If I take it out of your mailbox, steam it, read it, and put it back in, I have intercepted. If you invite me into a room where there is a speaker-phone, for example, and we all sit around and listen to a conversation that the other guy at the other end doesn’t know we are listening to, that’s not interception. If I am sitting in the basement of your house without you knowing I’m there with some kind of a induction device listening to that conversation, it is an interception.
Interception, I think, implies, first of all, that it involves a third party to the communication before the communication has been completed, and also I think interception implies lack of consent.
MR. KAMIN: But it does not apply — it does not apply, then, to one of the parties to the communication?
MR. FOSTER: A party cannot intercept a communication.” (Sixth Illinois Constitutional Convention, Verbatim Transcript of June 4, 1970, vol. III, page 1530.)

We hold that under the facts of this case there was no interception for two reasons. First, there was consent by a party to the conversation, and second, the officer overheard the conversation by listening with his unaided human ear to a telephone on which the conversation was conducted. Since there was no interception, we find no need to address ourselves further to an analysis of article 1, section 6. Defendants’ rights were not violated.

We therefore reverse the judgment and remand the case with directions to deny the defendants’ motion to quash the search warrant and suppress the evidence obtained from the search.

Reversed and remanded with directions.

GOLDBERG and BURKE, JJ., concur.