author: Mr. Justice Burke

text:
    L. Klein, Appellant, v. Bernard Rosen, Appellee.
    Gen. No. 43,349.
    Heard in the third division of this court for the first district at the February term, 1945.
    Opinion filed December 20, 1945.
    Released for publication January 8, 1946.
    Isaac B. Lipson, of Chicago, for appellant.
    Julius H. Selinger, of Chicago, for appellee.
   Mr. Justice Burke

delivered the opinion of the court.

On July 19,1944 L. Klein, a corporation filed a verified complaint in chancery in the circuit court of Cook county against Bernard Rosen alleging that throughout its corporate existence it had.been engaged in the business of operating a retail store on South Halsted street, near Fourteenth street in Chicago, consisting of a six-story fireproof building, housing numerous departments of sale; that for more than 15 years plaintiff had been engaged in the business of selling optical goods; that throughout that period it sold and was then selling eyeglasses and spectacles on prescription from persons authorized under the laws of Illinois to practice optometry or medicine and surgery; that in the department selling optical goods, eyeglasses and spectacles it employed defendant for the period from August 23, 1937 until June 24, 1944, at which time he left his employment; that plaintiff kept and maintained a list of purchasers of eyeglasses, spectacles and optical goods, the list consisting of looseleaf cards kept in alphabetical order in a cabinet of drawers located in the department, each card being numbered and being devoted to a single purchaser, containing a history of the purchaser’s eye conditions and defects, a statement of the nature and quality of the lenses prescribed for such purchaser or sold to him, the type and size of frame and bridge which had been provided, the price thereof, the style of lens, the size of the eye, the age of the purchaser, his or her address, and all matters of interest in connection with the furnishing of eyeglasses or spectacles for such purchaser; that the total number of cards in the list was around 5,000; that the amount of sales per annum made “to said purchasers” was from $15,000 to $18,000; that it was a profitable, business; that the list of customers has a value of many thousands of dollars to plaintiff; that it could be sold at a very substantial price to other persons engaged in a similar business; that the department for the sale of optical goods, eyeglasses and spectacles was in charge of defendant; that the ‘customers ’ list was under his direction and control; that during the period of approximately seven years in which he was in control of the department he was in sole control of the list; that a large number of the cards were made out by him or under his direction while he was so employed on a salary from plaintiff; that a blank form of the card comprising the list shows the name of the patient, the card number, the date, age, data as to the glasses supplied to the patient, the price charged, the person who examined the patient; that attached to each card was a stub bearing the same number as the card, the stub being delivered to the customer, the stub showing the name of the customer, the date when the glasses were promised, the price, the amount of deposit and the balance; and that stub also bore the following notation: “L. Klein, Optical Dept. Specialists in Prescribing, Grinding and Fitting Glasses.”

The complaint further avers that on or about June 12,1944 defendant informed plaintiff that he was about to terminate his employment; that on Saturday, June 24, 1944 he terminated his employment; that since then he has not been in plaintiff’s employ; that on the day he terminated his employment he sent by mail to all the customers of plaintiff whose names appear on the list of customers a letter stating that he was “the doctor who fitted you with the glasses you áre wearing”; that after many years “as the eye doctor at L. Klein, I have now gone into private practice for myself”; that he enjoyed caring for the customer in the past and thought the customer would be interested in knowing his new location; that the customer’s eyes had not been examined in some time and he suggested that the customer drop in at his new office and receive a thorough check-up without charge; that the offer was extended to any member of the customer’s family, and that the same facilities and services "he had “always tried to render” would be continued, “if not exceeded”; that he enclosed a courtesy card permitting any member of the customer’s family to take advantage of the “free eye examination”; and that at the head of the letter was a portrait of defendant. Plaintiff further alleges that the list of customers was accumulated by it at great expense; that the data contained therein makes it possible to serve the requirements of each customer without a repetition or examination of the requirements of such customer, the history of the eye condition or the prescriptions previously employed by him, and enables the possessor of the list to serve the needs of the customer at a lower expense and to furnish the requirements of the customer at a lower price; that the list contains confidential and valuable information; that the possession of the list solely by plaintiff maintains the good will of the plaintiff in its business with the customers mentioned on the list and is the strongest single- factor which holds the patronage of the customers; that the defendant, while in the plaintiff’s employ, surreptitiously and wrongfully copied the list of customers and the cards constituting the same, together with the data thereon; that the data on the list is voluminous and could not be memorized; that the letters sent out by defendant to all the customers on the list were prepared and made ready for mailing by defendant prior to the time he terminated his employment with plaintiff on Saturday, June 24, 1944, and were promptly mailed so they were received by the customers on the list the following Monday morning; that by reason of this wrongful act defendant was able to begin business practically without any expenditure of money or labor in building up a patronage and obtaining customers, and was wrongfully placed in an unfair position to compete, particularly with the business of plaintiff; that due to the fact that defendant was in charge of the department he was placed in a position to undermine the business of the plaintiff and appropriate to himself the profitable business which was built up by the plaintiff prior to and during the time when the defendant was in its employ; that a copy of the customers’ list is now wrongfully in the possession of defendant and is being wrongfully used; that the use of the list is calculated to inflict great injury on plaintiff’s business and damage which is not ascertainable at law; and that the sending out of the letters has resulted in damage to plaintiff and a loss and reduction in plaintiff’s trade and has brought profits to the defendant, the amount of which plaintiff is unable to state. Plaintiff prayed for an injunction restraining defendant from making any use of the list or any copy or memorandum of the list; that he be enjoined from sending any further communications to any of the persons on the list; that he be required to return and deliver to plaintiff all copies of the list or any memorandum or record thereof; that he be required to make an accounting showing which, if any, of the customers of the plaintiff to whom defendant sent letters have purchased eyeglasses, spectacles or optical goods from him, the date, nature and amount of such purchases and the cost of the goods sold.

Plaintiff moved for a temporary injunction and by agreement of the parties defendant was restrained from making use of the list of customers who had purchased eyeglasses, spectacles or optical goods from plaintiff, or making use of any copy or record or memorandum of such list until the further order of the court. Defendant moved to dismiss the complaint for want of equity for matters appearing on its face, namely:

“1. Plaintiff is a corporation and as such is prohibited by law from engaging in, practicing or competing with defendant in the profession of optometry. 2. The relief prayed is on its face in violation of the statute and law of this State in that it would enable plaintiff to engage in practice of a profession prohibited by law to corporations. 3. Plaintiff does not come into equity with clean hands in that its sworn complaint states that it is engaged in a profession from which corporations are excluded.”

The court having heard argument of counsel, ordered that the temporary injunction be dissolved and that the complaint be dismissed for want of equity. This appeal followed.

Defendant maintains that the complaint and exhibits when read together contain admissions that plaintiff was performing functions which the statute forbids to corporations; that the complaint and exhibits admit that defendant is not competing with plaintiff in its legitimate sphere of trade and commerce, and that plaintiff is engaged in unauthorized practice; that where there are contradictions between allegations and exhibits in a complaint, the exhibits will control; and that equity will grant no injunctive or other relief which will enable a party to engage in unauthorized practice of a profession, or impose a restraint upon one authorized by law to engage in such profession. Plaintiff replies that the defense relied upon is not presented by the motion to dismiss for the reason that the complaint, upon its face, does not show that it violated the statute on optometry, but on the contrary shows that it is exempt from the operation of that statute; that the law of this State is that a customers’ list (dr an agents’ list) is property of the employer and that the employee is bound not to disclose or use confidential matter which he gathered by reason of his former employment; and that under the statute a corporation may sell spectacles upon the prescription of a registered optometrist though that person may be in the corporation’s employ. Neither in his motion to dismiss nor in his brief in this court does defendant challenge plaintiff’s position that a customers’ list is the property of the employer, and that an employee is bound not to disclose or use confidential matter which he gathered by reason of his former employment. Hence, it is unnecessary to discuss this proposition.

The Act now in effect regulating the practice of optometry was approved on April 19, 1919. It was amended by an Act approved June 28, 1945, subsequent to the entry of the decree in the instant casé. Sec. 1 of the Act (par. 90, ch. 91, Ill. Rev. Stat. 1945 [Jones Ill. Stats. Ann. 94.01]) provides that “no person shall practice or attempt to practice optometry, as defined in this Act, without a valid existing certificate of registration as a registered optometrist issued by the Department of Begistration and Education.” Sec. 2 defining the practice of optometry, reads:

“Any one or any combination of the following practices constitutes the practice of optometry: (a) The examination of the human eye, without the use of drugs, medicines or surgery, to ascertain the presence of defects or abnormal conditions which can be corrected by the use of lenses, prisms, or ocular exercises; the employment of objective or subjective means to determine the accommodative or refractive status of .the human eye or the range or power of vision of the human eye; (b) The prescription or adaptation; of lenses, prisms, ocular exercises or any means other than the use of drugs,, medicine or surgery to correct or alleviate defects or abnormal conditions of the human eye or to adjust the human eye to the conditions of specific occupation or to individual environment. (c) The replacement or duplication of an ophthalmic lens without a prescription from a person authorized under the laws of this State to practice either optometry or medicine and surgery. The provisions of this paragraph shall not be construed to prevent an optical mechanic from doing the merely mechanical work of replacement or duplication of such ophthalmic lens. An ophthalmic lens within the meaning of this Act shall be any lens which has a spherical, cylindrical or prismatic power or value, and is ground pursuant to a prescription.”

The 1945 amendment removed the following paragraph theretofore in sec. 2: “No registered apprentice may independently practice optometry. A registered apprentice may however, under the immediate personal supervision of a registered optometrist, assist a registered optometrist in the practice of optometry.” Sec. 3 reads:

“The following persons, firms and corporations are exempt from the operation of this Act: (a) Persons authorized under the. laws of this State to practice medicine and surgery; (b) Persons, firms and corporations who shall sell eyeglasses or spectacles in a store, shop or other permanently established place of business on prescription from persons authorized under the laws of this State to practice optometry or medicine and surgery.' (c) Persons, firms and corporations who manufacture or deal in eyeglasses or spectacles in a store, shop or other permanently established place of business, and who neither practice nor attempt to practice optometry.”

Sec. 3a grants to the Department of Registration and Education supervision and jurisdiction over the practice of optometry. The functions of the department, among other things, are as follows: 1. To conduct examinations to ascertain the qualifications and fitness of applicants for certificates of registration as registered optometrists, and pass upon the qualifications of applicants for reciprocal licenses, certificates and authorities. 2. Prescribe rules and regulations for a method of examination of candidates. 3. Prescribe rules and regulations defining what shall constitute a school, college or university or department of a university, or other institution, reputable and in good standing, and to determine the reputability and good standing of a school, college or other institution by reference to a compliance with such rules and regulations provided that no school, college or university, or department of a university or other institution that refuses admittance to applicants, solely on account of race, color or creed shall be considered reputable and in good standing. 4. Establish a standard of preliminary education deemed requisite to admission to a school, college or university, and to require satisfactory proof of the enforcement of such standard by said schools, college and universities. 5. Conduct hearings on proceedings to revoke or refuse renewal of licenses, certificates or authorities of persons applying for registration or registered under the provisions of this Act and to revoke or refuse to renew such licenses or certificates or authorities. Sec. 4, in defining a person qualified to receive a certificate of registration, states that such person shall be at least 21 years of age, of good moral character and temperate habits, free from contagious or infectious diseases, a citizen of the United States and having certain educational requirements. Sec. 7 provides for the issuance of a certificate of registration as a registered optometrist. Sec. 9 provides for the annual renewal of the certificate on payment of a fee. Other sections provide for the refusal, revocation or suspension of the certificate, the procedure thereunder, and for a review by the courts. Prior to the amendment approved on June 28,1945, see, 14 of the Act read, (par. 103, ch. 91, Ill. Rev. Stat. 1943 [Jones Ill. Stats. Ann. 94.14]):

“Each of the following constitute a misdemeanor, punishable, upon conviction, by a fine of not less than $25.00 nor inore than $200.00: (a) The practice of optometry or an attempt to practice optometry,, without a certificate of registration as a registered optometrist. . . . (c) Permitting any person in one’s employ, supervision or control, to practice optometry, unless that person has a certificate of registration as a registered optometrist. . . .”

Sec. 14, as amended by the Act approved June 28, 1945, reads, (par. 103, ch. 91, Ill. Rev. Stat. 1945):

“Any person who shall practice optometry, or offer to practice optometry in this state, without being registered for that purpose, shall be subject to prosecution before any court of competent jurisdiction and shall upon conviction, be fined for the first offense any sum not less than $200.00, nor more than $500.00, and for each subsequent conviction, shall be punished by a fine of not less than $500.00 and not more than $1,000.00, or by punishment in the county jail for not less than six months, nor more than one year, or both so fined and imprisoned in the discretion of the court. Each of the following constitutes a misdemeanor, punishable, upon conviction, in the same manner as practicing optometry without a certificate of registration as aforesaid, (a) The obtaining of, or an attempt to obtain, a certificate of registration, by fraudulent misrepresentation ; (b) The making of any wilfully false oath or affirmation whenever an oath or affirmation is required by this Act; (c) The violation of the provisions of Section 8 of this Act. All fines and penalties shall inure to the Department of Registration and Education.”

Section 8 (mentioned in sec. 14), provides that every holder of a certificate of registration shall display .it in a conspicuous place “in Ms principal office, place of business or employment,” and that whenever a registered optometrist practices optometry outside of or away from his principal office, place of business or employment, he shall deliver to each patient in his care a certificate of identification. This certificate shall contain his signature, the number and date of his certificate of registration, the post office address of his principal office, place of business or employment, and the date upon which the certificate of identification is delivered to the patient.

The parties are agreed that plaintiff is not authorized to practice optometry. Under clause (b) of sec. 3 plaintiff, in selling eyeglasses or spectacles in its store on prescription from persons authorized to practice either optometry or medicine and surgery, is exempt from the operation of the Act. Defendant calls our attention to paragraph 6 of the complaint, which sets out a blank form of the cards comprising the list, and the statement that attached to each card is a stub bearing the same number as the card, the stub being delivered to each customer, the stub stating: “L. Klein, Optical Dept. Specialists in prescribing, grinding and fitting glasses.”

We are of the opinion that under the allegations of the complaint, plaintiff is a corporation as described in clause (b) of sec. 3, and sells eyeglasses or spectacles on prescriptions from persons authorized under the statute to practice optometry, whether such persons or one or more of them are or are not in the employ of plaintiff, and that in selling eyeglasses or spectacles on such prescriptions it is exempt from the operation of the statute. Plaintiff is engaged in a lawful business. Defendant charges that the complaint leads to the conclusion that plaintiff is practicing optometry. In our opinion, the positive allegation that plaintiff was and is selling eyeglasses or spectacles on prescriptions from persons authorized to practice optometry or medicine and surgery, i,s not overcome by the language on the card that plaintiff is a specialist in prescribing, grinding and fitting glasses. It is interesting to note that sec. 8 of the Act requires every holder of a certificate of registration to display it in a conspicuous place in his principal office, place of business or employment, and that whenever he is outside of or away from such place he shall deliver to each patient in his care a certificate of identification. The use of the word “employment” indicates that the Act contemplates that licensed optometrists may be employed. Nowhere in the Act is the “employment” limited to licensed optometrists or physicians and surgeons as employers. Sec. 14 of the Act, in effect at the time the instant case was decided, states that permitting any person in one’s employ, supervision or control to practice optometry unless that person has a certificate of registration as a registered optometrist, shall constitute a misdemeanor. This language shows that where the person in the employ of another as an optometrist had a certificate of registration as a registered optometrist, there was no violation of the statute by the employer. The amendment of 1945 removes this provision. Sec. 14, as amended, however, calls specific attention to sec. 8, which contains the provision relative to the holder of a certificate displaying it in a conspicuous place in his place of “employment,” and is to be read in connection with the entire Act. It is common knowledge that corporations operating department stores as well as copartnerships and individuals employ registered optometrists to examine purchasers’ eyes and to prescribe glasses. We assume that the members of the General Assembly possessed this knowledge. Although the Optometry Act has been in operation since 1919 and was amended in 1945, the Legislature has not inhibited the employment of optometrists by corporations, copartnerships or individuals who are in the business of selling eyeglasses or spectacles.

The Optometry Act, among other things, licenses persons who have qualified - themselves for the purpose of rendering services as optometrists, and allows optical stores to remain in the business of selling eyeglasses or spectacles, but protects the public by requiring that their corrective lenses shall be prescribed by a qualified person who is licensed and registered. These two purposes are not inconsistent. Under the optometry section a person may be selling services and, incidental thereto, eyeglasses, and under the exemption section a person, firm or corporation in an established business may be engaged primarily in selling eyeglasses or spectacles, in which case the glasses must be furnished on the prescription of a qualified optometrist or physician and surgeon.

In the recent case of Babcock v. Nudelman, 367 Ill. 626, which involved the right of the State to levy and collect the ¡Retailers’ Occupation Tax from persons engaged in the practice of optometry, the court de-cided, in effect, that where an optometrist also furnishes glasses, the furnishing of the glasses is incidental to the service of optometry and is therefore not subject to the sales tax. Plaintiff' states that the sale of spectacles by it upon a prescription furnished by its employee is clearly subject to the sales tax; that a person goes to its store to buy eyeglasses; and that the selling of these is a matter of trade and business in such a case, whether the type or kind of corrective lens is determined by a person employed by plaintiff or by some person who is engaged in independent business. A licensed optometrist may prescribe lenses and may also sell the lenses. He may do either or both. He is not required to have a license when he merely sells the lenses. A corporation, copartnership or in- . dividual may sell eyeglasses or spectacles on prescriptions, whether or not such prescriptions are given by a registered optometrist in the employ of the seller.

We have studied the cases of People v. Peoples Stock Yards State Bank, 344 Ill. 462; Dr. Allison, Dentist, Inc. v. Allison, 360 Ill. 638; and People v. United Medical Service, Inc., 362 Ill. 442. These cases involve the practice of law, medicine and dentistry. In the case of Silver v. Lansburgh & Bro., (111 F. (2d) 518'), 128 A. L. R. 582, the United States Court of Appeals for the District of Columbia affirmed a decree of the district court denying relief in a suit to restrain certain corporations from engaging in the practice of optometry. The court said (583):

“Appellants, in the main, base their claim for injunctive relief upon the ground that optometry is a learned profession, the very nature of which, they say, prohibits the practitioner thereof from any affiliation or connection with a corporation or nonoptometrist. . . . The court found that optometry is a mechanical art which requires skill and a knowledge of the use of certain mechanical instruments and appliances designed to measure and record the errors and deviations from the normal found in the human eye, but is not a learned profession comparable to law, medicine and theology, and that, though certain standards of education are prescribed by the statute and by rules of the board created under it, optometry is not a part ,of medicine. The court was, therefore, of the opinion that neither defendant is engaged in the practice of - optometry contrary to the statute. In the recent case of United States v. American Medical Association (decided March 4,1940), 72 App. D. 0.12,110 F. (2d) 703, we pointed out that the practice of medicine in the District of Columbia is subject to licensing and regulation, and we stated that, in our opinion, it might not lawfully be subjected to commercialization and exploitation. We cited many authorities holding that a corporation engages unlawfully in the practice of medicine when it employs licensed physicians to treat patients, itself receives the fee, and the profit object is its main purpose, the arrangement being such as to divide the physician’s loyalty and destroy the well recognized confidential relation of doctor and patient. This brings us, then, to consider whether this rule applies to the practice of optometry. ... It is unlawful for any person to engage in the practice until he shall have complied with the requirements of the Act. These requirements are that he must be a person over twenty-one years of age, of good moral character, who has had a primary education, equivalent to a two-years ’ course in a first-class high school and who is a graduate of a school of optometry in good standing, and who shall pass an examination consisting of tests in practical optics, theoretic optometry, anatomy and physiology, and such pathology as may be applied to optometry, practical optometry, theoretic and physiologic optics. Upon compliance with these conditions, the applicant is entitled to a license, but the Act provides that this shall not include the right to use any title or any word or abbreviation indicating that he is engaged in the practice of medicine, surgery, or the treatment of the eye, or the diagnosis of diseases of or injuries to the eye, or the writing or issuing of prescriptions for the obtaining of drugs or medicine in any form for the treatment or examination of the eye. Many states have similar or nearly similar statutes, but their courts have disagreed on whether optometry is a learned profession. We have considered the cases and are of the opinion the best considered adopt the view that optometry is not ‘one of the learned professions.’ Optometry is said by a well known writer on the subject not to be a part of medicine, ‘either by inheritance, basic principles, development or practice.’ It is ‘an applied arm of optical science resting upon the work and discoveries of physicists and opticians through the ages down to modern times. It does not treat the eye, whether in health or disease, but adapts the light waves which enter the eye, in accordance with optical principles so as to produce focused and single vision with the least abnormal exertion on the part of the eye.’ Arrington’s History of Optometry, p. 24 (1929). The District of Columbia statute neither requires nor contemplates that an optometrist shall be a graduate physician or that he shall, like an oculist, diagnose or treat diseases of the eye. In actual practice, the function which he performs is in measuring the refractional abnormalities of the eye and prescribing, and sometimes grinding the lenses to correct them. The distinction between oculists and optometrists is succinctly stated by the New Jersey Supreme Court in New Jersey State Board v. Kresge Company, 113 N. J. L. 287,174 A. 353, 357; ‘ Oculists and ophthalmologists pursue a calling quite distinct from that of optometrists. The first has relation to the practice of medicine and surgery in the treatment of diseases of the eye, and the second to the measurement of the powers of vision, and the adaptation of lenses for the aid thereof. ’ And in the following cases the difference in methods of practice is described and explained. Georgia State Bd. v. Friedmans’ Jewelers, 183 Ga. 669, 189 SE 238; State v. Gus Blass Co., 193 Ark. 1159, 105 S. W. (2d) 853; Dvorine, et al. v. Castelberg Jewelry Corp., 170 Md. 661, 185 A. 562. The cited cases base the distinction mainly upon the difference in the required degree of learning and training and, based on this difference, hold that where the statute itself does not specifically control, the reasons for preventing the practice of law and medicine through corporations do not apply to optometry. But we prefer to rest our view upon the broader distinction arising out of the traditional relationship between physician and patient, and attorney and client, a relationship which does not exist in the practice of optometry. The professional service required of the former, of its very nature, creates a relationship of trust and confidence. Both in the case of the physician and the lawyer, the person seeking his services must break down the barriers of reserve which otherwise serve to protect him and deliberately reveal to his professional adviser secrets of physical or mental disability or secrets of business of the most intimate nature. These necessary disclosures create the personal relationship which cannot exist between patient or client and a profit-seeking corporation. The universal recognition of this immediate, unbroken, and confidential association between doctor and lawyer and those who engage their services early created and still justifies the rule that their .allegiance must be wholeheartedly to the patient or the client, and not to another. Nothing of this nature applies to the-practice of optometry. In this view, we may very well concede that optometry is a profession, as that term is now colloquially used, but that fact is not enough to bring the rule into effect. There is no more reason to prohibit a corporation, organized for the purpose, from employing licensed optometrists, then there is to prohibit similar employment of accountants, architects, or engineers. We know of no instance in which the right in any of those cases has ever been challenged, though universally all are deemed professions. We find nothing in the.statute to indicate that Congress intended to prohibit corporations from employing licensed optometrists. Its primary purpose was to insure that the service would be rendered by competent and licensed persons and thereby to protect the public from inexpertness. That purpose may be fully accomplished, though the person rendering the service is employed by a corporation.”

Following the last mentioned case (128 A. L. E. 582, 585) appears an annotation reviewing the reported cases on the right of a corporation or individual, not licensed, to practice optometry through a licensed employee.

In Babcock v. Nudelman, 367 Ill. 626, our Supreme Court stated that in passing the optometry Act the evident intention of the legislature was “to create a recognized class in the nature of a profession similar to persons practicing medicine, surgery or dentistry, and to elevate the calling to that of a profession or skilled occupation.” In the Silver case the court recognized that optometry is a profession, as the term is now colloquially used, but that such fact is not enough to bring optometrists within the rules of law applicable to lawyers and physicians. The view of the learned justices of our Supreme Court and of the United States Court of Appeals for the District of Columbia are harmonious. Although there are cases to,the contrary, we are of the opinion that the better view is expressed in the Silver case by the United States Court of Appeals for the District of Columbia. In testing the sufficiency of a motion to dismiss for want of equity appearing on the face of the complaint, we accept as true the material allegations of ultimate fact and reasonable inferences therefrom. We are of the opinion that the complaint was not vulnerable to the motion to dismiss. Therefore, the decree of the circuit court of Cook county is reversed and the cause remanded for further proceedings in due course.

Decree reversed and cause remanded with directions.

Kilby, P. J., and Lews, J., concur.


source: Caselaw Access Project

license: Public Domain

text:
    Great Atlantic & Pacific Tea Company, Appellee, v. Town of Bremen, Appellant.
    Gen. No. 43,358.
    Heard in the third division of this court for the first district at the April term, 1945.
    Opinion filed December 20, 1945.
    Beleased for publication January 8, 1946.
    Arthur H. Grosskopf, of Chicago, for appellant.
    Ashcraft & Ashcraft, of Chicago, for appellee; Alan E. Ashcraft, Jr., of Chicago, of counsel.
   Mr. Justice Burke

delivered the opinion of the court.

A complaint at law filed on February 23,1944 by the Great Atlantic & Pacific Tea Company, a corporation, against the Town of Bremen, a quasi municipal corporation in Cook county, alleges, in substance, that Otto Ziebel, supervisor and ex officio overseer of the poor of the Town of Bremen from November 1, 1939 to February 28,1940, issued disbursing orders directed to plaintiff; that plaintiff, pursuant to such disbursing orders, furnished groceries, food, meat and other provisions to the persons named therein; that in issuing the disbursing orders the overseer of the poor acted for and on behalf of defendant; that the prices charged by plaintiff were fair and reasonable; that plaintiff made many demands upon the board of town auditors to audit and allow its claim; that the board refused to act on the demands; that on November 23, 1943 plaintiff filed in the circuit court of Cook county a petition for mandamus, praying that the board of town auditors be directed to proceed to audit and allow or reject the claim of plaintiff; that on January 31, 1944, while the petition for mandamus was pending, the board of town auditors at a special meeting unanimously rejected plaintiff’s claim, and that defendant is indebted to plaintiff in the sum of $5,364.33, for which it asks judgment. Defendant filed a demand for a jury trial and a motion to dismiss the complaint. This motion was overruled.

Answering the complaint, defendant alleged that on November 1, 1939 it was indebted upon prior issued disbursing orders in the sum of $31,000; that on that date there were no funds available to pay poor relief disbursing orders; that the total uncollected taxes theretofore levied on that date were $24,484.32; that outstanding against such uncollected taxes on that date were tax anticipation warrants in the sum of $18,300, plus interest; that in November and December 1939 and in January and February 1940 expenditures for poor relief purposes, including disbursing orders, work relief and administration were in excess of funds available for their payment and in excess of taxes levied and uncollected for the payment of such expenditures; that on March 1, 1940 defendant was indebted upon prior issued disbursing orders in the sum of $40,959.25; that on that date the poor relief account was overdrawn; that on that date there were no monies available for the payment of disbursing orders; that on that date the total uncollected taxes theretofore levied were $23,864.24; that outstanding against such uncollected taxes on that date were tax anticipation warrants in the sum of $16,300, plus interest; that the disbursing orders mentioned in plaintiff’s complaint were issued in excess of taxes for that purpose levied and uncollected by defendant and in excess of funds currently available for their payment; that no consent was given by the board of town auditors to the then supervisor to issue such disbursing orders; that the supervisor as ex officio overseer of the poor did not act for and on behalf of defendant; that he did not have legal authority to issue the disbursing orders; that he exceeded his power and authority in issuing them; and that the disbursing orders were illegal, invalid and created no liability on the part of defendant by reason of sec. 20, ch. 107, Ill. Rev. Stat. 1943 [Jones Ill. Stats. Ann. 98.22]. In reply plaintiff alleged that it had no knowledge sufficient to form a belief as to the truth of the allegations that Otto Ziebel failed to present plaintiff’s statements to the board of town auditors and therefore denied such allegations.

In support of a motion for summary judgment, plaintiff filed two affidavits. An affidavit by Paul J. Sengstock stated that he was an assistant manager in plaintiff’s Chicago office; that he had-15 years experience as an accountant; that he personally examined the books and records of defendant for the period commencing July 1, 1936 and ending March 31, 1940; that nowhere in such books and records did it appear that defendant was indebted upon prior issued disbursing orders in the sum of $31,000, or in any other amount; that in November 1939 defendant received from the State of Illinois $18,045 to be used exclusively for relief purposes and for the payment of expenses incurred in the administration of such relief; that according to the books and records of defendant it issued disbursing orders and cash during November 1939 in the sum of $12,761.25 for relief purposes, and further expended $1,440.96 for administration of relief, or a total of $14,202.21 for relief purposes; that in December 1939 defendant received from the State of Illinois the sum of $15,626 to be used exclusively during that month for relief purposes and for the payment of expenses incurred in the administration of such relief; that according to the books and records of defendant it issued disbursing orders and cash during December 1939 in the sum of $10,475.34 for relief purposes and expended $1,853.34 for administration of relief, or a total of $12,328.68 for relief purposes; that in January 1940 defendant received from the State of Illinois $15,899 to be used exclusively during that month for relief purposes and for the payment of expenses incurred in the administration of such relief; that according to the books and records of defendant it issued disbursing orders and cash during January 1940 in the sum of $12,738.66 for relief purposes and expended $1,466.74 for administration of relief, or a total of $14,205.40 for relief purposes; that in February 1940 defendant received from the State of Illinois $15,294 to be used exclusively during that month for relief purposes and for the payment of expenses incurred in the administration of such relief; and that defendant had issued disbursing orders and cash during February 1940 in the sum of $13,541.74 for relief purposes and expended $1,572.51 for administration of relief, or a total of $15,114.25 for relief purposes. An affidavit by Edward S. Dauber states that he is office manager of plaintiff’s Chicago office; that from November 1, 1939 to February 28, 1940 defendant furnished groceries, food, meat and other provisions to the various holders of disbursing orders issued by defendant in the sum of $5,364.33; that the prices so charged by plaintiff were fair and reasonable and the usual customary prices in the vicinity at the time.

Walter C. Dohl, in an affidavit of merits filed in behalf of defendant, stated that he was the supervisor and duly authorized agent of defendant; that he verily believed that defendant had a good defense to all of plaintiff’s claim; that he personally examined the books and records of defendant; that they show that the disbursing orders described in plaintiff’s complaint and in its affidavit for summary judgment were issued in excess of taxes for that purpose levied and uncollected by defendant and in excess of funds currently available for their payment; that no consent was given by the board of town auditors to the then supervisor to issue such disbursing orders; that on November 1,1939 defendant was indebted upon prior disbursing orders in the sum of $31,000; that on that date there were no funds available to pay poor relief disbursing orders; that the total uncollected taxes theretofore levied on that date were $24,484.32; that outstanding against the uncollected taxes on that date were tax anticipation warrants in the sum of $18,300, plus interest; that in November and December 1939 and January and February 1940 expenditures for poor relief purposes, including disbursing orders, work relief and administration, were in excess of funds available for their payment and in excess of taxes levied and uncollected for the payment of such expenditures; that on March 1, 1940 defendant was indebted upon prior issued disbursing orders in the sum of $40,959.25; that on that date the poor relief account of defendant was overdrawn and there were no monies available for the payment of disbursing orders; that on that date the total uncollected taxes theretofore levied by defendant were $23,864.24; that outstanding against such uncollected taxes on that date were tax anticipation warrants in the sum of $16,300, plus interest; that at the time of the issuance of the orders there was in full force and effect sec. 20, ch. 107, 111. Rev. Stat. 1943; that he personally examined the books and records of defendant; that they showed that during November 1939 defendant received from the State of Illinois $18,045 to be used during that month fo.r relief purposes, including the cost incurred in the administration of such relief; that defendant issued disbursing orders during that month in the sum of $12,761.25 for relief purposes and expended $1,440.96 for costs and expenses of administration of relief, and $6,658.80 for work relief purposes, making a total of $20,861.01 expended by defendant for relief purposes; that the books and records of defendant showed that during December 1939 it received from the State $15,626 to be used during that month for relief purposes, including the cost incurred in the administration of such relief; that defendant issued disbursing orders during that month in the sum of $10,475.34, expended $1,853.34 for costs and expenses of administration of relief, and $6,308.23 in work for relief purposes, making a total of $18,636.91 expended for relief purposes; that the books and records of defendant show that during January 1940 it received from the State $15,899 to be used during that month for relief purposes, including the cost incurred in the administration of such relief; that it issued disbursing orders during that month in the sum of $12,738.66 and expended $1,466.74 for costs and expenses of administration of relief; that defendant expended during that time the sum of $3,424 in work relief for relief purposes, making a total of $17,629.40 expended by it for relief purposes; that during February 1940 defendant received from the State $15,294 to be used during that month for relief purposes, including the cost incurred in the administration of such relief; that it issued disbursing orders during that time in the sum of $13,541.74 for relief purposes and expended $1,572.51 for costs and expenses of administration of relief; that defendant expended $837.32 in work relief for relief purposes, making a total of. $15,952.07 expended by it for relief purposes during that month.

Plaintiff’s motion for summary judgment in the sum of $5,364.33 was sustained and defendant appeals. Plaintiff’s theory is that the affidavits filed by it in support of its motion are sufficient to sustain the judgment; that defendant’s affidavit of merits is insufficient; that such affidavit discloses that there is no material issue to be tried; that the entire record is not before the court; and that it will be presumed that sufficient evidence was submitted to justify the entry of the judgment. Defendant’s theory is that plaintiff is not entitled to recover a summary judgment because of the insufficiency of its affidavits and because the record presents defenses which should be submitted to a jury.

In each town the supervisor, town clerk and justices of the peace of the town constitute a board of auditors. The supervisor is ex officio overseer of the poor. The board of auditors is required to meet at the town clerk’s office for the purpose of examining and auditing the town accounts, at least semiannually, and may meet at such other times as they may determine. Upon the request of the supervisor or of any two members of the board, the town clerk is required to call a meeting at the time requested. The board of auditors is required to examine the accounts of the overseer of the poor (where the town sustains its own poor) and the commissioners of highways of such town for all monies received and distributed by them, and also to examine and audit all charges and claims against the town. The accounts so audited and those rejected, if any, are required to be delivered with a certificate of the auditors, or a majority of them, to the town clerk, to be by him kept on file for the inspection of any of the inhabitants of the town. Sec. 20, ch. 107, Ill. Rev. Stat. 1945, reads:

“The overseer of the poor shall receive and pay out all moneys raised by taxes or allocated by the State for support of paupers and shall have the care and oversight of all such persons in their municipality, town or precinct as are unable to earn a livelihood in consequence of any bodily infirmity, idiocy, lunacy, or other unavoidable cause, and as are not supported by their relatives or at the county home, and shall see that they are suitably relieved, supported and employed, subject to such restrictions and regulations as may be prescribed by the . . . board of town auditors. ... No indebtedness shall be incurred by the overseers of the poor in excess of taxes for this purpose levied and uncollected or for the payment of which funds are not currently available without the consent of the . . . board of town auditors . . . .”

The final sentence of sec. 20 was added at the first special session of the legislature in 1938. Prior to that amendment the overseers of the poor were obliged to relieve the wants of paupers within the town and if no funds were available, they were obliged to pledge the credit of the town. Town of Kankakee v. McGrew, 178 Ill. 74.

Belying on the requirements of sec. 20 above quoted, defendant insists that there remain issues of fact which should be submitted to a trial by jury and that the court, in entering a summary judgment, committed error. The purpose of the summary judgment procedure is not to try an issue of fact, but rather to determine whether there is an issue of fact. The matter is necessarily inquisitorial. If there is a material issue of fact, it must be submitted to the jury. The right of the moving party to a judgment should be free from doubt. Bertlee Co., Inc. v. Illinois Publishing & Printing Co., 320 Ill. App. 490. In Shirley v. Ellis Drier Co., 379 Ill. 105, the court said (110):

“If there is anything left to go to the jury the motion for summary judgment is denied. If what is contained in the affidavits would have constituted all of the evidence before the court and upon such evidence, there would be nothing left to go to the jury, and the court would be required to direct a verdict, then a summary judgment will be entered.”

Defendant maintains that the pleadings and the affidavits show a dispute of fact as to whether the disbursing orders issued by the overseer of the poor were in excess of taxes for that purpose levied and uncollected, or for the payment of which funds were not currently available and were without the consent of the board of town auditors, and that if upon a trial it developed that the disbursing orders were issued by the overseer in violation of sec. 20, defendant would be entitled to have judgment in its favor. Defendant assails the affidavit of Paul Sengstock because it purports to give his findings according to the books and records of defendant without identifying them in any way and without presenting any portions of them to the court as exhibits, and maintains that Mr. Sengstock’s affidavit is entirely insufficient and without any probative value. The affidavit states that affiant is the assistant manager of plaintiff; that he had 15 years’ experience as an accountant; and that he personally examined the books and records of defendant for the period from July 1,1936 and ending March 1, 1940. He then states the ultimate facts concerning such examination. In the instant case the books and records are in the possession of defendant. Defendant did not move to strike plaintiff’s affidavit to which he now objects. In fact, defendant filed an affidavit of merits based on the same type of evidence to which it now objects. We are of the opinion that under the circumstances plaintiff’s affidavits were sufficient.

We turn to a consideration of defendant’s point that the disbursing orders for poor relief which plaintiff filled, were in excess of taxes for this purpose levied and uncollected, or for the payment-of which funds were not currently available. Defendant states that its affidavit of merits shows that during the entire period from November 1, 1939 to February 28,1940, in which the disbursing orders were issued, its total income for poor relief purposes including State aid, was always less than the indebtedness that the then supervisor incurred by the issuance of disbursing orders, and that the board of town auditors never consented to the issuance of the disbursing orders. The assertion that the food was delivered by plaintiff to the persons named in the disbursing orders and that the prices charged were reasonable, is not controverted by defendant. It became incumbent upon defendant by the affidavit of merits presented in its behalf, to show that it had a good defense so that there was an issue of fact to be determined by a jury. Defendant knew when the disbursing orders were issued and when the groceries and meats were delivered. If, at the time of the issuance of a disbursal order and the delivery of the meats and groceries thereunder the indebtedness thereby attempted to be created was not in excess of taxes for the purpose levied and uncollected, or for the payment of which funds were currently available, defendant should pay for the food so ordered. During the four months in which deliveries were made, defendant received $64,864 from the State to be used during that time. During this period it issued disbursing orders in the aggregate amount of $49,516.99. .Defendant then adds to the aggregate amount of disbursing orders issued, the sum of $23,562.40 expended for administration and work relief, making a total “expended” of $73,079.39. Having “expended” $73,079.39 and having “currently available” only $63,864, defendant asserts that plaintiff is not entitled to be reimbursed for the groceries and meats delivered pursuant to disbursing orders issued during the four month period. In its affidavit of merits defendant makes no attempt to show that each or any of the disbursing orders issued by it and honored by plaintiff was issued and honored at a time when in any of the four months the money “currently available” for that month had been exhausted. We thus have a situation where the supervisor, having $64,864 available, attempted to obligate the town during the four month period to the extent of $73,079.39. It was incumbent upon defendant to make a showing that each disbursing order issued by the overseer and honored by plaintiff was issued at a time in each month subsequent to the time the overseer had incurred obligations to the extent of funds then available. In our opinion defendant’s affidavit does not make this showing. There is no statement in the affidavit as to when the disbursing orders were issued, or as to the condition of the township treasury at the time. Conceding every presumption to defendant, the affidavit shows that disbursing orders aggregating $41,301.60, out of a total of $49,516.99, were valid. There is no presumption that the disbursing orders honored by plaintiff were not included in the $43,301.60 of validly issued orders.

Sec. 20 does not state how the consent of the board of town auditors to the incurring of indebtedness by the overseer in excess of taxes for that purpose levied and uncollected, or for the payment of which funds are not currently available, shall be shown. A careful reading of the record, however, satisfies us that the board of town auditors consented to the incurring of the indebtedness for which plaintiff was given judgment. We find that defendant failed to present in its affidavit statements of ultimate facts showing that there was an issue to be tried by a jury. Therefore, the judgment of the circuit court of Cook county is affirmed.

Judgment affirmed.

Kiley, P. J., and Lews, J., concur.


author: Mr. Justice Lewe

text:
    Albert Pick Company, Inc., Assignee of Albert Pick-Barth Company, Inc., Appellant, v. Thomas Valos, Appellee.
    Gen. No. 42,952.

      Heard in the third division of this court for the first district at the December term, 1943.
    Opinion filed December 20, 1945.
    Rehearing denied January 8, 1946.
    Released for publication January 8, 1946.
    Sidney J. and Arthur Wolf, both of Chicago, for appellant; Arthur Wolf, of Chicago, of counsel.
    Paul Demos and Frank L. Hume, both of Chicago, for appellee.
   Mr. Justice Lewe

delivered the opinion of the court.

By this appeal plaintiff seeks to reverse a judgment based upon a finding by the court, in a proceeding to revive a judgment, that the bailiff’s return on the summons showing personal service on the defendant Thomas Yalos was false, and also seeks to have set aside an order denying counsel fees and expenses incurred as a result of defendant’s refusal, under the provisions of rule 53 of the municipal court, to admit certain facts.

In the year 1930, Albert Pick-Barth Company, Incorporated, a corporation, brought an action in the municipal court of Chicago against the defendants Dan G. Yalos, John Katsules and Thomas Yalos. The return of the bailiff appearing on the summons shows there was personal service on all defendants. On August 7,1930, the return day of the summons, an appearance was filed and defendants were granted additional time in which to file an affidavit of merits. Thereafter, on September 17,1930, all defendants were defaulted for their failure to file an affidavit of merits, and a judgment was entered against them for $600.42. Subsequently, Albert Pick-Barth Company, Incorporated, a corporation, assigned the judgment to the plaintiff Albert Pick Co., Inc., a corporation.

On January 18, 1943, plaintiff instituted proceedings to revive the judgment against the defendants and, on March 8, 1943, judgment was entered against defendants Dan Yalos and John Katsules in these revival proceedings. The defendant Thomas Yalos filed a special appearance and a defense averring in substance that in the original proceedings he “was not served with summons or publication notice and did not enter his appearance in the proceeding and did not authorize the entry of his appearance in said proceeding.”

Upon a hearing by the court without a jury, the court, on June 25, 1943, found the issues against the' plaintiff and entered judgment thereon.

. Plaintiff’s theory is that no proper defense was interposed, since the original judgment was based on the bailiff’s return of the original summons showing proper personal service on all three defendants. Defendant’s theory is that the bailiff’s return was false and the appearance filed in his behalf was unauthorized.

Plaintiff’s principal contention is that the court erred in permitting the defendant Thomas Yalos to introduce evidence contradicting the bailiff’s return on the original summons.

The record discloses that the court permitted the defendant to testify that he was absent from the State at the time the bailiff’s return shows that he was personally served. The law is well settled that if the return of the bailiff was false and the defendant had a defense to the plaintiff’s action which he was prevented from making because of the false return, he had a remedy against the bailiff in an action for the bailiff’s false return. (Marabia v. Mary Thompson Hospital, 309 Ill. 147, 156.) In Chapman v. North American Life Ins. Co., 292 Ill. 179,187, the court said:

“The doctrine prevails in this State that the return of the sheriff on the summons,- where that return is in harmony with the findings of the court in its judgment that the defendant was duly served, cannot be contradicted after the term of court has ended in which judgment was rendered, . . .

In the instant case more than twelve years have elapsed' from the time of service in the original proceeding to the raising of the defense of the bailiff’s alleged false return, although the record clearly shows that the defendant had personal knowledge of the existence of the judgment several years before he interposed this defense. The defendant is here in effect making a collateral attack on the original proceeding by contradicting the record. This cannot be done. In Bank of Eau Claire v. Reed, 232 Ill. 238, at p. 240, the court said:

“The only question to be determined in a proceeding by scire facias to revive a judgment is whether the plaintiff has a right, as against the defendant, to have the judgment executed. . . . The only defense in the trial of the scire facias on a judgment is a denial of the existence of the judgment or proof of a subsequent satisfaction or discharge thereof. The defenses available, and which go to the plaintiff’s right, as against the defendant, to have the judgment executed, are, that there is no such record, or that the judgment has been paid or released, or there has been an accord and satisfaction. ... A plea to a writ of scire facias to revive a judgment denying service of process is a collateral attack on the judgment, and the defendant is not entitled to make such an attack by evidence aliunde against a record which shows valid service.”

Application of the principles announced in the Bank of Earn Claire case makes the defendant’s position untenable. The trial court should have entered judgment for the unpaid portion of the judgment as set forth in plaintiff’s statement of claim for the sum of $415.42 with interest thereon at the rate of 5 per cent per annum from the 17th day of September 1930.

The record also discloses that on June 3, 1943, while the trial was in progress, plaintiff served, under the provisions of rule 53 of the municipal court of Chicago, a written demand on the defendant Thomas Yalos to admit that it was a corporation and held a valid assignment of the judgment'from Albert Pick-Barth Company, Incorporated, a corporation, and certain indentures of transfer and bills of sale, which the defendant refused to admit. It does not appear that the trial judge at the hearing certified that the refusal to admit was reasonable.

On July 2,1943, plaintiff filed a written motion to ascertain and assess the expenses and reasonable counsel fees incurred by the plaintiff in proving the facts in accordance with the notice of June 3,1943. On July 13, 1943, the court overruled plaintiff’s motion. No reason is disclosed by the record justifying the defendant’s refusal to admit the specific facts in question. As a consequence it appears that defendant’s action necessitated the introduction by plaintiff of voluminous documents to establish these facts thus swelling the record to more than 600 pages in a case involving a question of law. Buie 53 of the municipal court, which has its counterpart in rule 18 of the Supreme Court, is a salutory rule designed to improve the administration of justice. (Wintersteen v. National Cooperage & Woodenware Co., 361 Ill. 95.) The court erred in overruling the plaintiff’s motion and we, therefore, direct the court to ascertain the expenses and reasonable counsel fees incurred by the plaintiff in proving the facts referred to in plaintiff’s motion of June 3,1943, and to assess these additional amounts against the defendant Thomas Valos.

Upon the oral argument before this court, new counsel appeared in behalf of the defendant and asked the court for leave to raise some new points in the argument that had not been raised on the trial or in the briefs. We shall not consider them, since rule 7 of this court provides that “No point not contained in such brief shall be raised afterwards either in oral or printed argument or by reply brief or on petition for rehearing. ’ ’

For the reasons indicated, the judgment and order of the municipal court of Chicago are reversed and the cause is remanded with directions to proceed in a manner not inconsistent with this opinion.

Reversed and remanded with directions.

Kilby, P. J., and Burke, J., concur.


author: Justice Scanlan.

text:
    R. M. Genius, Jr., Appellee, v. Robert M. Hoffman et al., Defendants. Robert M. Hoffman and Emily Pope Hoffman, Appellants.
    Gen. No. 43,099.
    Heard in the second division, first district, this court at the June term, 1944;
    opinion filed December 18, 1945;
    modified and rehearing denied January 15, 1946;
    released for publication January 15, 1946.
    Robert N. Golding and Joseph T. Tyrrell, for appellants; Miller, Gorham, Wescott & Adams, for appellee; Herbert C. DeYoung, of counsel.
   Opinion by

Justice Scanlan.

Not to be published, in full.


author: Presiding Justice Kiley.

text:
    Harold Popel et al., Appellees, v. Metropolitan Life Insurance Company, Appellant.
    Gen. No. 43,235.

      Heard in the third division, first district, this court at the October term, 1944;
    opinion filed December 20, 1945;
    released for publication January 8, 1946.
    Hoyne, O’Connor & Rubinkam, for appellant; Nathaniel Rubinkam and Melvin L. Gibbard, of counsel, and Eckert & Peterson, Nathaniel Rubinkam, also for appellant; Tom Deeming, Owen Rail and Melvin L. Gibbard, of counsel; Joseph Barbera, for appellee.
   Opinion by

Presiding Justice Kiley.

Not to be published in full.


text:
    Anne Neiman, Appellee, v. Aaron Neiman, Appellant.
    Gen. No. 43,264.
    Heard in the third division, first district, this court at the February term, 1945;
    opinion filed December 20, 1945;
    released for publication January 8, 1946.
    Julius H. Selinger, for appellant; Bernard W. Vinissky, Prank E. Gettleman and Louis N. Grossman, for appellee; Louis N. Grossman and Bernard W. Vinissky, of counsel.
   Opinion by

Presiding Justice

Kiley.

Not to be published in full.


author: Justice Burke.

text:
    Frank H. Weber, Appellant, v. Madeleine A. Weber, Appellee.
    Gen. No. 43,267.

      Heard in the third division, first district, this court at the December term, 1944;
    opinion filed December 20, 1945;
    released for publication January 8, 1946.
    Milton H. Weiss and Edward Vf. Weiss, for appellant; Teed & Johnson, for appellee.
   Opinion by

Justice Burke.

Hot to be.published in full.


text:
    Josephine Ublasi, Appellee, v. Western & Southern Life Insurance Company, Appellant.
    Gen. No. 43,345.
    Heard in the third division, first district, this court at the February term, 1945;
    opinion filed December 20, 1945;
    released for publication January 8, 1946.
    Eckert & Peterson, for appellant; Tom Deeming and Melvin L. Gibbard, of counsel; Kelner & Kelner, for appellee.
   Opinion by

Justice Burke.

Hot to be published in full.


author: Justice Lewe.

text:
    Lillian L. Robinson, Appellee, v. Peoples Gas Light and Coke Company, Appellant.
    Gen. No. 43,031.

      Heard in the third division, first district, this court at the April term, 1944;
    opinion filed December 20, 1945;
    opinion modified and rehearing denied January 17, 1946;
    released for publication January 18, 1946.
    Miller, Gorham, Weseott & Adams, for appellant; Herbert C. DeYoung, of counsel; John P. MeGoorty, Jr., for appellee.
   Opinion by

Justice Lewe.

Not to be published in full.


text:
    W. A. Ashmore et al., Appellees, v. J. A. Wolf, Appellant.
    Gen. No. 43,075.
    Heard in the third division, first district, this court at the June term, 1944;
    opinion filed December 20, 1945;
    rehearing denied January 8, 1946;
    released for publication January 8, 1946.
    Ekern, Meyers & Matthias, for appellant; Donald L. Thompson, William G. Ohorn and Arthur F. Gruenwald, of counsel; Alfred J. Cilella, for appellees; J. Kentner Elliott, of counsel.
   Opinion by

Justice Lewe.

Not to be published in full.


text:
    Frances E. Schmidt, Appellant, v. Bernice Schmidt Edmonds et al., Appellees.
    Gen. No. 43,127.

      Heard in the third division, first district, this court at the June term, 1944;
    opinion filed December 20, 1945;
    rehearing denied January 8, 1946;
    released for publication January 8, 1946.
    Jesse H. Brown, for appellant; Eugene P. Kealy and Francis L. Brinkman, for certain appellees.
   Opinion by

Justice Lewe.

Not to be published in full.


author: Mr. Presiding Justice Hayes

text:
    Supergear Drive Corporation, Appellant, v. Hollister-Whitney Company, Appellee.
    Gen. No. 9,464.

      Heard in this court at the October term, 1945.
    Opinion filed October 23, 1945.
    Rehearing denied February 5, 1946.
    Released for publication February 5, 1946.
    Harold A. Fein, of Chicago, and John T. Inghram, of Quincy, for appellant; George A. Gordon, of Chicago, of counsel.
    Emmons & Emmons and Wilson & Schmiedeskamp, all of Quincy, for appellee.
   Mr. Presiding Justice Hayes

delivered the opinion of the court.

The plaintiff, Supergear Drive Corporation, brought action against the defendant, Hollister-Whitney Company, a corporation, in the circuit court of Adams county to recover damages for breach of contract, upon the defendant’s failure to machine and deliver certain forgings. The case was tried by the court without a jury, and at the conclusion of plaintiff’s evidence the court entered a judgment for the defendant from which this appeal is taken.

The complaint alleges; that the plaintiff and the defendant entered into a contract whereby the defendant agreed to machine 3,614 parts at the price of $1.68% each; that the defendant completed 100 of the parts and delivered them and was paid by the plaintiff at the rate of $1.68%; that then the defendant informed the plaintiff that it would have to have $3.90 per part instead of $1.68%, which increase the plaintiff refused to pay, and thereupon the defendant refused to deliver to the plaintiff the balance of the machine parts. It further alleges that the defendant had knowledge that plaintiff had contracted to deliver said parts to a third party for $2.92 per part, and that plaintiff suffered damages in the sum of $4,339.29.

Defendant in its amended answer admits the making of the contract and denies the other allegations of the complaint.

It appears from the evidence that the Solar Aircraft Company of San Diego, California contracted with the plaintiff for the machining of the forgings in question, at the price of $2.92. The forgings were to be furnished in the first instance by the Aircraft Company. The plaintiff in turn subcontracted the work to the defendant who had a plant located at Quincy, Illinois at the agreed price of $1.68%; that the defendant had knowledge of the contract existing between the plaintiff and the Aircraft Company and that on July 20,1943, defendant wrote a letter to the plaintiff in which it informed the plaintiff that it would not complete the machining of the forgings unless the plaintiff would pay $3.90 instead of the contract price of $1.68% for each part. It further appears that several weeks had been taken in special tooling for the job and that the tools were in the possession of the defendant; that the plaintiff on getting the letter of July 20 from the defendant informed the Aircraft Company of defendant’s refusal to perform without an increase in price; that about the same time the defendant got in communication with the Aircraft Company for a contract of its own on this work; that on July 27 the defendant offered the Aircraft Company a price of $3.90 for machining the forgings and requested a confirming order after cancellation with the Supergear Drive Corporation. It then appears 'that the Aircraft Company immediately cancelled the contract with the plaintiff and made a contract direct with the defendant.

The question involved in this appeal is, “Did the plaintiff at the close of plaintiff’s evidence drawing all the inferences most favorable to the plaintiff establish a prima facie case?” The question of law presented on a motion to direct a verdict is whether when all the evidence is considered together with all reasonable inferences drawn from it in its most favorable aspect to the party against whom the motion is directed there is a total failure to prove one or more necessary elements of the case? Foreman-State Trust & Savings Bank v. Demeter, 347 Ill. 72; Moudy v. New York, C. S St. L. R. Co., 317 Ill. App. 154. It is also the law that where there is such uncertainty arising from the evidence that fair-minded men may honestly draw different conclusions that it then ceases to be a question of law, but one of fact to be settled by the weighing of the evidence either by a jury or by the court. Plodzien v. Segool, 314 Ill. App. 40; Turner v. Cummings, 319 Ill. App. 225.

It was incumbent upon the plaintiff in establishing a prima facie case to prove the existence of the contract, the breach of the same, and the resulting damages.

From the documentary evidence in the record, also by the admission in the pleadings the existence of the contract is established.

Defendant’s letter, under date, of July 20, states: “we must have $3.90 per piece or we see no alternative than to stop the work on this order . . . we simply cannot make them at the price we originally quoted. ’ ’ This language can hardly be construed other than a breach, particularly when the defendant makes a direct contract with the Aircraft Company for the same work at $3.90 per piece rather than $1.68% as the original contract provided. The. evidence further shows that Mr. Hollister, one of the executives of the defendant, stated to the plaintiff over the telephone that he must have a price of $3.90, and if he did not get that price he would not turn a stick of work on the job.

The other element remaining in plaintiff’s prima facie case is damages, and it appears from the evidence that the contract provided for the machining to be done at $1.68% and the plaintiff was getting $2.92 for each part. It definitely appears that by breach of the contract plaintiff lost $1.23% per part. These parts were made for a specific purpose and could not have a market value.

Where it was known at the time the contract was entered into that the goods were being bought for resale in a particular market, the buyer, on failure of the seller to deliver, may recover the expected profit. Carpenter v. First Nat. Bank, 119 Ill. 352; Lapp v. Illinois Watch Co., 104 Ill. App. 255; Meyer, Hess & Co. v. Way, 187 Ill. App. 67; Black Diamond Fuel Co. v. Illinois Fuel and Phosphate Co., 219 Ill. App. 150. In Carpenter v. First Nat. Bank, supra, it is stated: “The general rule is, that the purchaser is entitled to recover the difference between the contract price and the value of the article in the market at the time and place of delivery. (Messmore v. Lead Co., 40 N. Y. 427.) This rule, however, is changed, where the vendor knows, that the purchaser has an existing contract for a resale at an advanced price, and that the purchase is made to fulfill such contract, and the vendor agrees to supply the article to enable him to fulfill the same, because those profits, which would accrue to the purchaser upon fulfilling the contract of resale, may justly be said to have entered into the contemplation of the parties in making the contract.”

It appears the damages shown are in no way speculative, contingent or uncertain. They can be determined with definiteness and certainty. The evidence in the case shows the plaintiff was in no position to mitigate the damages for the reason that immediately after the breach of the contract by the defendant, the Aircraft Company cancelled plaintiff’s contract with them; that the special tools were in the possession of the defendant who refused to surrender them and that it would take eight weeks to make another set so that the plaintiff had no opportunity to go elsewhere to have the work done in view of the length of time between the refusal of the defendant to perform and the cancellation of its contract by the Solar Aircraft Company.

Defendant urged in support of the judgment entered in the court below that the plaintiff upon receiving its letter tried to prevail on the defendant to proceed and finish the contract and offered to sacrifice some of its profit and therefore as a legal proposition it did not treat the contract as breached, but it appears from the evidence that attorney for the plaintiff immediately wrote the defendant demanding payment of the $1.23% per part on the whole order and stated that if payment was not immediately made that suit would be instituted to recover the same, and the plaintiff would institute the suit based on the breach. In the interim the defendant had made the contract directly with the Solar Aircraft Company which made it impossible for plaintiff to continue the performance of its contract with the defendant.

For the reasons herein expressed we are compelled to hold the trial court improperly allowed the motion at the end of plaintiff’s case for a finding in favor of the defendant and in dismissing plaintiff’s complaint. We also hold that the court improperly entered judgment on the cross complaint without a full hearing on the merits. Therefore, the judgment against the plaintiff is hereby reversed, also the judgment in favor of the defendant is reversed and cause remanded to the trial court for trial on the merits of both issues.

Reversed and remanded.


author: Mr. Justice Wheat

text:
    Mildred Pack, Appellee, v. A. J. Sporleder et al., Appellants.
    Gen. No. 9,477.

      Heard in this court at the October term, 1945.
    Opinion filed December 4, 1945.
    Released for publication February 5, 1946.
    Murphy & Murphy, of Bock Island, for appellants.
    S. S. DuHamel and Barber & Barber, all of Springfield, for appellee.
   Mr. Justice Wheat

delivered the opinion of the court.

This suit arises out of a petition for writ of mandamus to compel the re-employment of a school teacher by a school board. The circuit court granted the petition and the board appeals.

On October 17, 1944, petitioner appellee filed her petition for a writ of mandamus against the Board of School Directors of District No. 175 of Sangamon County, Illinois, to compel such board to renew her contract of employment and for compensation for the interim months of unemployment. Her petition, among other things, alleges that on August 27, 1943, and for more than two years prior thereto, she had been employed by such board as a teacher in such district ; that on such date she entered into a written contract with such board for employment as a teacher for a term of eight months beginning September 1, 1943, at a salary of $140 per month; that on April 21, 1944, such board served upon her a written notice not to re-employ for the following school year; that the reasons set forth in such notice were void because no cause for dismissal, specified in clause 3 of par. 123 of ch. 122, Ill. Rev. Stat. 1943 [Jones Ill. Stats. Ann. 123.130], is stated in such notice, and void for the further reason that such notice fails to specify any provision in such contract as cause for dismissal, and for the further reason that none of the reasons alleged in said notice were valid and sufficient to terminate such contract.

Such notice not to re-employ set forth the following-reasons :

“1. We desire to terminate your right to continue as the teacher in said District under the Teacher Tenure Law now in force in the State of Illinois.

2. We may desire to employ someone other than you' as our teacher for the next school year and for that reason we have elected to terminate your rights under the Teacher Tenure Law of this State.

3. We may desire to reduce the salary paid our teacher for the next school year and we feel that for that reason your rights given you by the Teacher Tenure Law of the State of Illinois should be terminated at the end of the term for which you were hired which will expire on or about the last day of April, A* D. 1944.

4. This board has elected to terminate your rights under the Teacher Tenure Law of the State of Illinois so that the Board may select any teacher they see fit to select to teach the school in said District during the next school year.”

Defendants appellants moved to dismiss the petition for the reason that petitioner’s contract expired at the close of the school year in April 1944; that such notice not to renew her contract was served on her, April 21, 1944; that such board had the power to terminate any right such teacher may have had to continue as a teacher by serving such notice; that such board was not required to set forth any of the reasons set forth in clause 3 of par. 123 of the School Act; that par. 136b of ch. 122, Ill. Rev. Stat. [Jones Ill. Stats. Ann. 123.146] furnished a method by which such board had the right to discontinue the employment at the end of the school year by giving written notice prior to April 25, 1944.

The court overruled the motion of defendants who refused to plead further; default was entered and writ of mandamus ordered and issued as prayed. Defendants appeal.

In 1941 the legislature amended par. 136b of ch. 122, Ill. Rev. Stat. This section applies to districts having a board of school directors as in the instant case. Paragraph 136c [123.161 (1)] was added and applies only to those districts having a board of education or board of school inspectors, and is now discussed only to the extent it may have a bearing upon the construction to be placed upon par. 136b, relating to districts having a board of school directors. Sections of a statute relating to the same subject matter are statutes in pari materia and are treated and construed together as though they constituted one Act. (The People ex rel. Frazier v. Cleveland, C. C. & St. L. Ry. Co., 306 Ill. 459.)

Petitioner seems to have mistakenly assumed that her status is determined by said par. 136c, which provides that whenever any teacher has been employed in any district as a full time teacher for a probationary period of two consecutive years, such teacher shall enter upon “contractual continued service” until such teacher reaches the age of 65 years. In the event of dismissal, written notice is required by registered mail stating the “specific charges” against such teacher; the dismissal must be approved by a majority vote of the members of the board after a hearing which may be requested by the teacher; the hearing may be public; the teacher may have counsel and may cross-examine witnesses; subpoenas may be issued; an appeal may be taken to the county superintendent of schools. In other words, detailed procedure is prescribed in the event a board declines to re-employ a teacher under her original contract during the period before such teacher reaches the age of 65 years, even though the original employment, after the probationary period, was for a. period of only one year.

In contrast with the above, par. 136b, applicable in the instant case, has no provision for ‘‘ contractual continued service” and has no provision requiring the making of “specific charges” against the teacher. It merely provides that contracts may be entered into by the board and a teacher for as many as three years instead of one year as before, and that if the board does not desire to re-employ or tender a new contract, the teacher must have written notice before April 25 of the school term. This provision was apparently intended to provide the teacher with ample opportunity to seek other employment. The variance between the two sections is important and must be assumed as intentional on the part of the legislature.

The provisions of par. 136b relating’ to notice of non-re-employment are as follows: “ ... it shall be the duty of the Board of School Directors on or before April 25 of each year- in which any regular employment contract expires to notify in writing said employee concerning his . re-employment or lack thereof. In case any teacher, principal, or superintendent is not to be re-employed, written reasons therefor shall be given in writing by the employing Board of Directors.”

Inasmuch as the legislature has not attempted to define what it means by the word “reasons” as used in the Act, it becomes necessary to determine the intent of the legislature in the use of the word. In the case of Anderson v. Board of Education, 390 Ill. 412, 434, the Supreme Court said: “Under the prior decisions of this court, no person has a right to demand that he or she shall be employed as a teacher. The School Board has the absolute right to decline to employ or to re-employ any applicant for any reason whatever. It is no infringement upon the constitutional rights of any future Board to decline to employ a teacher in the schools. It is free to contract with whomsoever it chooses. Neither the constitution nor the statute places any restriction on this right and no one has any grievance which the Court shall recognize simply because the Board of Education refuses to contract with him or her. (Citing cases).” In the same opinion at page 422, the court states: “A statute creating a new liability must be strictly construed in favor of persons sought to be subjected to its operation. (59 C. J. 1129). ‘If a statute creates a liability where none would otherwise exist or increases a common law liability it will be strictly construed .... The courts will not extend or enlarge the liability by construction; they will not go beyond the clearly expressed provisions of the act.’ (Sutherland on Statutory Construction, p. 472, par. 371.) The Teacher Tenure Law clearly creates a new liability where none would otherwise exist; it makes a contract for the parties by operation of the law where otherwise none would exist.- Therefore, under this rule above quoted, the word ‘year’ should be given a strict construction and its meaning not extended beyond the ordinary meaning of the word. ’ ’ In the same opinion at page 425, the court said: “In construing a statute its words must be given their plain and ordinary meaning, (citing cases) and the court has no right to read into the statute words that are not found therein either by express inclusion or by fair implication.”

In view of these rules of construction, the court should give to the word “reason” its plain and ordinarymeaning of “a statement offered as an explanation of an act.” (Webster’s New International Dictionary, 1944 Ed., p. 2074.) The court has no right to read into this section of the statute a meaning such.as is connoted by the word “charges,” as used in sec. 136c. A “charge” is defined as “an accusation of a wrong or offense.” (Webster, supra, p. 452.)

From a careful consideration of the foregoing, the conclusion is reached that the written notice to petitioner by the board setting forth its reasons, i.e., that the board might desire to reduce the salary and that the board desired to select any teacher it saw fit to select, was a sufficient compliance with the provisions of the Act.

Petitioner further contends that the notice required must relate to one of the causes of dismissal set forth in clause 3 of par. 123 of the School Act, i.e., the board shall have power to dismiss a teacher for incompetency, cruelty, negligence, immorality, or other sufficient cause. This section was adopted in 1909 at a time when a teacher could legally be employed for only one year and was intended to apply to removal during the course of the school year. An analogous provision was so construed in the case of The People ex rel. Davidson v. Bradley, 382 Ill. 383.

Petitioner has cited various decisions from other States in support of her interpretation of the Illinois Act in regard to “reasons” for nonre-employment. The statutes of all of these other States are in no way similar to the Illinois Act and in general provide that failure to re-employ may only be predicated upon certain causes specifically enumerated in the Acts.

It is our opinion that petitioner was employed by a written contract for a one-year term ending in April 1944; that she was legally notified in apt time that a new contract would not be tendered to her; that' any rights she had as a teacher in School District No. 175 expired at the end of the school year in April 1944. In the case of Friedman v. City of Chicago, 374 Ill. 545, the court said: “It is a matter so well settled as to need no citation of authorities that one seeking a writ of mandamus must show a clear right to the writ, . . . .” Petitioner has failed to show any right to the writ of mandamus in this case. The judgment of the circuit court of Sangamon county is reversed.

Reversed.