author: MORAN, PRESIDING JUSTICE.

text:
    Luther B. Adams and Lillie Adams, Plaintiffs-Appellants, v. Rubye E. Blazier Grace, Harvey Louis Blazier, and William Grace, Defendants-Appellees.
    Gen, No. 69-94.
    Fifth District.
    August 7, 1970.

      Kern & Pearce, of Carmi, for appellants.
    Deneen A. Watson, of Harrisburg, for appellees.
   MORAN, PRESIDING JUSTICE.

Plaintiffs-counterdefendants appeal from an order of the Circuit Court of Gallatin County denying their motion to vacate a default judgment entered against them on defendant-counterplaintiffs’ counterclaim and dismissing their complaint.

Appellants, Luther B. Adams and Lillie Adams, filed their complaint on August 31, 1968, to enforce a contract for the sale of certain property entered into between Rubye E. Blazier Grace as vendor and appellants as vendees. The complaint alleged that Rubye Blazier Grace is the holder of record title to Lots 444 through 455 in New Haven, Illinois, by virtue of a warranty deed executed by John and Ñola Duley on August 11, 1966; that on August 11, 1966, Rubye Blazier Grace and Harvey Louis Blazier were husband and wife; that on April 25, 1968, appellants entered into a written contract with Rubye E. Blazier for the purchase of the described property for the sum of $1,000, $150 due on execution and the balance of $850 due on or before March 1, 1970; that appellants as purchasers under the contract entered into possession of the premises and paid the taxes thereon; that on or about August 14, 1968, Rubye Blazier procured a divorce from Harvey Louis Blazier and the divorce decree provided, in part, that the parties agreed to sell the described property then held in the name of Rubye Blazier and divide the net proceeds equally; that since the divorce decree Rubye Blazier has united in marriage with William Grace and that Rubye Blazier and Rubye Blazier Grace is one and the same person; that appellees have attempted to declare the purchase contract invalid and that appellants are ready, able, and willing to complete their obligation under the contract.

On September 25, 1968, appellees, Rubye E. Blazier Grace, Harvey Louis Blazier and William Grace, filed an answer and counterclaim alleging that on October 13, 1962, Harvey and Rubye Blazier entered into a contract for the purchase of the described real estate from John and Nola Duley which was recorded on October 16, 1962; that on August 11, 1966, John and Nola Duley conveyed the described premises to Rubye Blazier by warranty deed which was recorded on August 14,1966; that at least 50% of the purchase price for the described property was furnished by Harvey Louis Blazier and by reason thereof, there was created a resulting trust in his favor with Rubye Blazier as trustee; that on February 9, 1968, Rubye Blazier executed a lease and option to Luther Adams in which Harvey Louis Blazier did not join; that on April 25, 1968, Rubye Blazier executed a land purchase contract with and drawn by appellants, in which . Harvey Louis Blazier did not join, notwithstanding the fact that appellants knew that Rubye and Harvey Louis Blazier were married at that time; that at the time of the execution of this contract, appellants knew that Rubye Blazier and Harvey Blazier were married and that she was not a widow as stated in the contract and that Rubye E. Blazier was mentally weak, was ignorant of the consequences of her acts and did not have needed legal counsel or other competent advice as to this transaction; that at the time of the execution of this contract, appellants used undue influence upon Rubye Blazier, well knowing that she needed money, offered an inadequate price for the premises and misrepresented or concealed from her the consequences of her acts; that on August 14, 1968, a divorce decree was granted which provided that Rubye Blazier and Harvey Louis Blazier agreed to sell the described premises and divide the net proceeds; that Rubye and Harvey Louis Blazier gave a notice of cancellation of the contract to appellants on August 19, 1968, and attempted to return the $150 down payment; that since the granting of the divorce, Rubye Blazier married William Grace who claims an inchoate right of dower in the interest of Rubye Blazier in the described premises. Appellees’ counterclaim prayed that the contract of April 25, 1968, between Rubye Blazier Grace and appellees be declared null and void.

Appellants filed no answer or motion to appellees’ answer and counterclaim. On October 22, 1968, appellees’ attorney wrote a letter to appellants’ attorney indicating that no answer to the counterclaim had been filed and asking whether such an answer would be filed. No response was made to this inquiry by appellants’ attorney. On November 27, 1968, appellees filed a motion for default judgment on their counterclaim and notice was sent to appellants’ attorneys that a hearing would be held on the motion on December 5, 1968. On that date, no one appeared for appellants. Appellees testified briefly in their own behalf and the court entered a default judgment sustaining appellees’ counterclaim. This order was filed December 16, 1968. On January 2, 1969, appellants filed a motion to vacate the default judgment stating that (1) they had an adequate defense to the counterclaim, (2) no rule to plead was entered against them, and (3) that the matter should be heard on its merits. On January 18, appellees filed a cross motion to strike appellants’ motion to vacate the judgment. Appellees’ attorney sent notice by certified mail postmarked February 14, 1969, to appellants’ attorneys that a hearing would be held on their cross motion on February 21, 1969. This notice was filed on February 18, 1969, and the record indicates that it was not received by appellants’ attorney until February 21, the date of the hearing. No one appeared for appellants at that time, and the court entered an order on that date sustaining appellees’ cross motion to strike appellants’ motion to vacate.

On March 11, 1969, appellants filed a motion to vacate the trial court’s order of February 21 alleging that the notice given by certified mail was not received until February 21, 1969, the date of the hearing, and that the hearing was not set by the court and no notice was given by the clerk. Appellees filed a cross motion to strike appellants’ motion, alleging that on February 10, 1969, appellees’ attorney wrote to appellants’ attorney suggesting that defendants’ cross motion to strike appellants’ motion to vacate the default judgment entered on December 17 be heard on either February 20 or February 21; that appellants’ attorney did not respond to the letter and appellees’ attorney set the hearing with the trial court for February 21; that on February 14 appellees’ attorney mailed a notice by certified mail to appellants’ attorney in his office at Carmi, Illinois, which mail normally arrives within one day; that appellants’ attorney failed or refused to accept this notice and that appellants’ attorney was negligent in so doing; that appellants have not shown that they were not negligent in their failure to file the required answer to defendants’ counterclaim as required by section 182(b) of the Supreme Court Rules, nor have they shown that they have exercised reasonable diligence or have had a reasonable excuse for their failure to comply nor have they shown facts showing that they had a meritorious defense to defendants’ counterclaim.

After a hearing on April 16, at which counsel for all parties were present, the court entered the order now on appeal denying appellants’ motion to vacate the default judgment and the prior ruling sustaining appellees’ cross motion to strike appellants’ motion to vacate.

The proof offered by appellees on their motion for default judgment on their counterclaim consisted of the following testimony:

Harvey Louis Blazier testified that he was married to Rubye Blazier from July 12, 1961, until August 14, 1968. They were separated some time in 1967. He and his wife Rubye had entered into a contract to buy the described property from John and Ñola Duley on October 13, 1962, but on August 11, 1966, a deed was issued only to his wife. Of the total consideration of $1,500 at that time, he paid $1,000. He was not a party either to the lease or land purchase contract given by Rubye Blazier to appellants. He had no knowledge of either of these transactions, and had not been consulted. During the early part of 1968, his wife was under care at Bowen Center for her mental condition. The lease and land purchase contract were executed during this time. A social worker with the Children and Family Services had recommended that his wife undergo these treatments. He does not think she was able to make a contract because of her sickness. The contract with appellees calls for a consideration of $1,000. Other persons are now willing to pay $2,000 for the property.

Rubye Blazier Grace testified that she had been committed to Anna State Hospital in 1959, where she stayed for nine months. She had another breakdown in December 1967, and was hospitalized in Pierce Hospital in Eldorado. She underwent treatment at Bowen Center from January 1968 for approximately six months. She testified that she did not understand what she was doing nor did she consult any lawyer or any other person about these transactions. She said the reason she sold the property is that she was on relief and needed money badly. She did not read the land sale contract which was prepared by appellants. She felt she was unduly influenced by appellants. She and Harvey Louis Blazier sent a notice of cancellation, along with the return of the down payment of $150, to the appellants. She has had occasion since that time to sell her property for $2,000. She testified that appellants knew she was married at the time she made the contract, even though the contract stated she was a widow and that appellants also knew of her mental condition.

William Grace testified that he is now married to Rubye Blazier Grace and that he has knowledge of her past mental history and that he does not believe that she had the mental capacity to make a contract.

The issue before this court is whether the trial court should have set aside the default judgment entered on appellees’ counterclaim and permitted appellants to answer and proceed to trial on the merits. The applicable section of the Civil Practice Act provides:

“(5) The court may in its discretion, before final order, judgment or decree, set aside any default, and may on motion filed within 80 days after entry thereof set aside any final order, judgment or decree upon any terms and conditions that shall be reasonable.” (Ill Rev Stats, c 110, § 50, par 5.)

The law pertaining to vacation of default judgments pursuant to section 50, par 5, with which we are in accord, is well stated in several recent Appellate Court decisions.

In the leading case of Widicus v. Southwestern Elec. Cooperative, 26 Ill App2d 102, 167 NE2d 799, the court stated at 107-109:

“. . . History will reveal that the courts of Illinois have been liberal in setting aside defaults entered at the same term, and that where there has been no trial on the merits, the courts’ discretion is usually exercised in favor of granting the motion. Moreover, our legislature has directed that our Practice Act be liberally construed so that controversies may be speedily and finally determined according to the substantive rights of the parties.
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“In view of the fact that the statute, as it now stands, does not contain the requirement that good and sufficient cause appear, we do not believe that a court now must categorically determine that a meritorious defense or a reasonable excuse be proven to justify setting aside a default. We believe that the discretion will be properly invoked if it is based upon principles of right and wrong and is exercised for the prevention of injury and the furtherance of justice.
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“The question of whether or not a court should set aside a default should be so resolved as to do substantial justice between the parties and with the idea in mind of carrying out, insofar as it is possible, the determination of matters upon their merits. In resolving this problem, a court may well consider whether or not a defendant has a meritorious defense, and whether or not defendant’s delay in responding to the court’s command actually jeopardizes plaintiff’s basic position. But this should not be the only, nor necessarily, the determining factors. It seems to us that the overriding reason should be whether or not justice is being done. Justice will not be done if hurried defaults are allowed any more than if continuing delays are permitted. But justice might, at times, require a default or a delay. What is just and proper must be determined by the facts of each case, not by a hard and fast rule applicable to all situations, regardless of the outcome.
“The entering of a default is one of the most drastic actions a court may take to punish for disobedience to its commands. The court has other powers which are ample in most instances. In our judgment, a default should only be condoned when, as a last resort, it is necessary to give the plaintiff his just demand. It should be set aside when it will not cause a hardship upon the plaintiff to go to trial on the merits.”

And in Lynch v. Illinois Hospital Services, Inc., 38 Ill App2d 470, 187 NE2d 330, where an order of the trial court denying defendant’s motion to vacate a default judgment was reversed, the court stated at 475-476:

"... A default should be entered when, as a last resort, it is necessary to give the plaintiff his just demand. It should be set aside when it will not cause a hardship upon the plaintiff to go to trial on the merits.
“. . . We are not prepared to say that the order of the trial court denying the petition to set aside the default, was an abuse of discretion. We do not believe it is required, under the liberal interpretation and rules of the cases of Widicus v. Southwestern Electric Cooperative, Inc., 26 Ill App2d 102, 167 NE2d 799, In re Estate of Hoyman, 27 Ill App2d 438, 170 NE2d 25, Kehrer v. Kehrer, 28 Ill App2d 296, 171 NE2d 239, and Wolder v. Wolder, 30 Ill App2d 98, 173 NE2d 546, that this court determine as a matter of law, that the trial court exceeded or abused its discretion in denying the petition to set aside a default. We believe the overriding rule that should determine cases of this character, is whether or not justice is being done.”

This reasoning has been approved in this court in Sentry Royalty Co. v. Kraft, 79 Ill App2d 410, 226 NE2d 282, and therefore, it is in light of these principles that we view the facts and contentions in the present case. Appellants’ counsel admits that he failed to file an answer to appellees’ counterclaim and that he received appellees’ notice of motion for default judgment on the counterclaim but did not appear, and he offers no excuse or explanation for these failures. Appellant contends that no rule to plead was issued and no date was set by the court either for the motion for default judgment or on the motions to vacate the default judgment and the cross motion to strike that motion. Section 50, paragraph 4 provides that default judgment may be entered for failure to plead, and the Joint Committee comments to that subsection indicate that this includes any pleading requiring an answer, including an answer to a counterclaim. Supreme Court Rule 182(b) (Ill Rev Stats 1965, c 110A, § 182(b)), requires that “answers to and motions directed against counterclaims shall be filed by parties already before the court within twenty-one days after the last day allowed for the filing of the counterclaim,” and with this statutory requirement no rule to plead is necessary. Michael v. Mace, 137 Ill 485, 27 NE 694. Appellants admit there is no local court rule requiring a rule to plead in order to place a party in default.

Next, we find no merit to appellants’ contention that the sending of the notice for a hearing on the motion for default judgment by opposing counsel, rather than by the clerk of the court, excuses his conduct where he actually receives that notice.

Appellants strenuously contend that they had a meritorious defense to the counterclaim, in that the counterclaim is not well pleaded and is not supported by evidence, and thus cannot sustain a default judgment. It should first be noted that, while appellees’ counterclaim makes allegations that the described property is subject to a resulting trust in favor of Harvey Louis Blazier and an inchoate right of dower in William Grace, the prayer for relief in the counterclaim requested only that the land sale contract be declared null and void. This was the only relief which was given and which could have been given in the order for default judgment. The nature of this relief would necessarily depend upon the rights of Rubye Blazier Grace only, and for this reason we consider appellants’ contention only with respect to her claim.

It is clear that a contract may be -set aside where one party to the transaction suffers from mental weakness, coupled with a lack of business experience, inadequacy of price, proof of stress of financial necessity, lack of advice or misrepresentation or concealment. We believe that appellees’ counterclaim contains sufficient allegations to sustain this cause of action and that the evidence, while brief and sometimes conclusory, is sufficient to support this default judgment and certainly does not defeat it. There was testimony by Rubye Blazier Grace’s first and second husbands who would have had an opportunity to observe her over a period of time and were able to express an opinion as to her mental capacity, that she was not capable of making a contract. There was also evidence that she had been released from a mental hospital but was undergoing treatment during the time when these transactions occurred; that she was on relief during that time; that the consideration to be paid under the contract of $1,000 was $500 less than that paid by Harvey and Rubye Blazier six years previously and $1,000 less than the present offer for the property; that she did not consult an attorney or any other person before making this contract; that she had not read the contract and that the appellants had prepared it. The best that can be said then, is that the allegations of the counterclaim and the evidence created a triable question of fact as to the mental capacity of Rubye Blazier Grace.

On the other hand, we note that appellees have not shown any particular hardship which would jeopardize their position if they were required to go to trial on the merits of this case.

Although we are disturbed by counsel’s tacit admission of, and failure to explain, his failure to file an answer or to appear for the hearing on default, we are mindful, as was the court in Mieszkowski v. Norville, 61 Ill App2d 289, 209 NE2d 358, that a default judgment resulting from the negligence of an attorney, even though imputed to his client (Lamoreau v. Havranek, 25 Ill App2d 51, 165 NE2d 547) often visits drastic and vicarious punishment on an unsuspecting litigant. There is no indication in the record or allegation by appellees’ counsel that the appellants knew, had reason to know, or participated in their attorney’s conduct. And while inadvertent or negligent conduct which is imputed to the litigant is not an excuse to vacate a judgment, neither should it necessarily bar such relief.

As in Lynch v. Illinois Hospital Services, Inc., supra, we do not find it necessary to find that the trial court abused its discretion in denying appellants’ motion to vacate, but on the basis of the record before us, we believe that justice would best be served by reversing the order of the trial court and remanding this case with instructions to set aside the default judgment and permit appellants to plead to appellees’ counterclaim and proceed to a determination of this matter on its merits. Nothing we have stated in this opinion should be construed to support either the position of the appellants or the appellees in the determination of this cause on its merits.

Therefore, the order of the Circuit Court of Gallatin County is reversed and remanded with directions to permit appellants to plead to appellees’ counterclaim and to proceed with the trial of this cause on its merits.

Reversed and remanded with directions.

GOLDENHERSH and EBERSPACHER, JJ., concur.


source: Caselaw Access Project

author: EBERSPACHER, J.

license: Public Domain

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Robert H. Rosen, Defendant-Appellant.
    Gen. No. 70-19.
    Fifth District.
    August 7, 1970.
    Dick H. Mudge, Jr., of Edwardsville, for appellant.
    R. W. Griffith, Jr., State’s Attorney of Madison County, of Edwardsville, and Ben Allen, Assistant State’s Attorney, for appellee.
   EBERSPACHER, J.

This is an appeal from the lower court conviction for the offense of “driving while intoxicated” in violation of chapter 95%, section 144, Ill Rev Stats. The charge was set out on an Hlinois Uniform Traffic Ticket and Complaint. Defendant, unaccompanied by counsel, pleaded not guilty and was found guilty by the court and given a one-year sentence to be served at the Hlinois State Farm at Vandalia.

The following issues are raised on this appeal:

(1) Did defendant waive a trial by jury?

(2) Should defendant have been advised of his right to request a verified complaint?

(3) Did defendant waive his right to counsel ?

(4) Was defendant deprived of a legal hearing in aggravation and mitigation?

We note that no record of the lower court proceedings is presented for our consideration other than an “Abstract of Trial Proceedings” prepared and filed by the State four months after the notice of appeal. It purports to set forth the procedure in the trial court and is certified as true by the trial judge. There is nothing to show that it is in compliance with Supreme Court Rule 323(c), (c 110A, § 323(c), HI Rev Stats), or that from such “Abstract of Trial Proceedings” the issues raised by defendant could be resolved. Defendant has moved to strike this Abstract of Proceedings which motion we have taken with this case, which motion we grant. The only other record is that of a transcript of proceedings on a hearing on a motion to set aside and vacate the judgment, conviction and sentence rendered on November 26, 1969, and a common-law record. From these we are unable to determine any of the above issues. The motion to set aside was denied, and this appeal results.

The parties agree that no Record of Proceedings was made in the trial court. With reference to the issues raised on appeal, the common-law record shows the following docket entry:

“And now on this day, defendant appeared in open court and was advised of the charge against him. (47 U. A. R. T.) Defendant’s age: 26. Defendant pleaded not guilty. Witnesses sworn, evidence presented. The Court found the defendant guilty as charged. Hearing had in mitigation and aggravation. The Court sentenced defendant to one (1) year at the State Farm in Vandalia. Mittimus to issue. Clerk to deduct costs from Bond.”

The common-law record also contains the Illinois Uniform Traffic Ticket and Complaint, on the reverse of which is a place at which it is to be indicated whether defendant waived trial by jury and a line for the signature of the person charged. Whether defendant waived trial by jury is not indicated and it does not bear defendant’s signature.

Our Criminal Code provides:

“Every person accused of an offense shall have the right to a trial by jury unless understandingly waived by the defendant in open court.” Chapter 38, section 103-6, Ill Rev Stats 1969.

The rule applies to misdemeanors, as well as felonies. In Callan v. Wilson, 127 US 540, 32 L Ed 223, 8 S Ct 1301, the United States Supreme Court declared that the Sixth Amendment right to jury trial “is not to be construed as relating only to felonies, or offenses punishable in the penitentiary. It embraces, as well, some classes of misdemeanors, the punishment of which involves or may involve the deprivation of the liberty of the citizen.” That language was quoted by the United States Supreme Court as recently as June 1970, in Baldwin v. New York, 399 US 66, 26 L Ed2d 437, 90 S Ct 1886, 1889. And even in cases in which the defendant is represented by counsel, “It has been repeatedly held that it is the responsibility of the trial judge to insure that the waiver of a jury trial is knowingly and understandingly made.” People v. Brownlow, 14 Ill App2d 458, 252 NE2d 685. In that case, the trial court directed no questions regarding the waiver and upon being advised by the attorney that the jury was waived, immediately proceeded with the trial. In People v. Cowart, 51 Ill App2d 388, 201 NE2d 153, there was no affirmative showing in the record that the defendant expressly and understandingly waived his right to a jury trial, and the Court reversed the judgment and remanded for a new trial, stating that the inconvenience to the State in reprosecution was a small price to pay for the assurance that the accused had been accorded his right to trial by jury. Similar results have been more recently reached in People v. Rambo, 123 Ill App2d 299, 260 NE2d 119, and in People v. McKinney, 126 Ill App2d 339, 261 NE2d 797.

Waiver of the right to be tried by a jury cannot be presumed from a silent record. Boykin v. Alabama, 395 US 238, 243, 23 L Ed2d 274, 89 S Ct 1709, 1712. We will, therefore, not presume that the waiver of so basic a right has been intelligently and understandingly made from a record that does not reflect the questions regarding the waiver and the responses thereto.

As we said in People v. McKenzie, 89 Ill App2d 157, 231 NE2d 702, “Where there is a material question in controversy upon a material issue and the record fails to disclose all the evidence on that issue, this Court has the power to reverse the judgment and remand the case for further evidence.” See People v. McGrath, 85 Ill App2d 388, 229 NE2d 14.

Since the record submitted to us does not affirmatively show that defendant knowingly and understandingly waived trial by jury, we are compelled to reverse the judgment of the trial court and remand the case for a new trial.

Our decision on this issue makes it unnecessary to consider the remaining issues; but by failing to do so we do not ignore their importance in cases which “may involve the deprivation of liberty of the citizen.”

Judgment reversed and cause remanded.

GOLDENHERSH and MORAN, JJ., concur.


author: MR. PRESIDING JUSTICE DAVIS

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Francis Harold Cecil, Defendant-Appellant.
    Gen. No. 70-72.
    Second District.
    August 14, 1970.
    William J. Sturgeon, Public Defender, of Dixon, for appellant.
    Albert N. Kennedy, State’s Attorney of Lee County, of Dixon, for appellee.
   MR. PRESIDING JUSTICE DAVIS

delivered the opinion of the court.

The defendant, Francis Harold Cecil, entered a plea of guilty in the Circuit Court of Lee County, to five separate charges of burglary, as set forth in five separate informations which were filed in that court on December 31, 19S9, and January 5, 1970. Three charges involved the burglary of Mr. Kurtis Beauty Salon on November 20 and 21, and on December 28, 1969. The other charges pertained to the burglary of the Modern Shoe Shop and the Yeager Shoe Shop on or about December 23, 1969. All of said businesses which were burglarized were located in Dixon, Illinois.

The defendant had counsel appointed on his behalf. He understandingly waived the right to be prosecuted under an indictment and consented to prosecution by information and, after being fully advised as to his right to trial by jury, he knowingly and understandingly waived this right. After full admonishment, he knowingly and understandingly entered a plea of guilty to the five charges of burglary, and the court accepted the plea. Counsel for the defendant made an oral motion for probation for the defendant in each of the five burglary proceedings, and stipulated with the State’s Attorney that the hearing on the application for probation and the hearing on aggravation and mitigation be held at the same time.

At the hearing on the application for probation and on aggravation and mitigation, the persons who operated the businesses which had been burglarized testified for the People, and the defendant and his mother testified on his behalf. The evidence indicated that windows were broken in connection with gaining entrance into the beauty salon and the respective shoe shops. In connection with the first two respective burglaries of the beauty salon, cash in the sum of $89 and $15 was taken, and in the last burglary thereof, no cash was found. The burglary of the Modem Shoe Shop yielded $157.50 and that of the Yeager Shoe Shop yielded $3 or $4 in change.

The Clerk of the Circuit Court testified that his records revealed that the defendant was charged with battery in a complaint filed on December 9, 1968, wherein he was found guilty and sentenced to ten days in the Lee County jail; that a complaint charging the defendant with battery was filed on February 4, 1969, wherein he was found guilty and sentenced to ninety days in the State Penal Farm at Vandalia; that a complaint filed on July 7, 1969, charged the defendant with disorderly conduct, wherein he was found guilty, fined $50 and costs, and remanded to the County jail for failure to pay the fine; that a complaint was filed on September 2, 1969, charging the defendant with criminal damage to property wherein he entered a plea of guilty and was sentenced to eight days in the Lee County jail; and that a complaint charging the defendant with disorderly conduct was filed on December 11, 1969, wherein he was found guilty, was fined $25 and costs, and was remanded to the Lee County jail for failure to pay the fine.

The testimony of the defendant and his mother indicated that the defendant was twenty years of age and was single; that he could not get along with his father; that he left home in the summer of 1969; that his work record was poor; and that he had been drinking when he committed the foregoing offenses.

The court denied the application for probation and sentenced the defendant to the Illinois Department of Correction for a minimum term of not less than five and a maximum term of not more than eight years on each of the burglary charges, said sentences to run concurrently in each case.

The Public Defender of Lee County represented the defendant in the trial court and on this appeal. He has filed a motion for leave to withdraw as appellate counsel, and pursuant to Anders v. California, 386 US 738, 18 L Ed2d 493, 87 S Ct 1396 (1967) has filed a brief in support of his motion, wherein he alleged that the appeal was without any legal points which might arguably support the review of the judgment on its merits, and that the only possible error that might be urged is that the trial court abused its discretion in imposing an excessive sentence. Proof of service indicates that a copy of the motion and brief was mailed to the defendant at the penitentiary at Joliet on April 29, 1970.

On May 8, 1970, the court, on its own motion, caused the clerk to direct a letter to the defendant whereby he was further notified that the Public Defender had moved to withdraw as his appointed counsel, pursuant to a copy of such motion which was mailed to him by the Public Defender on April 29,1970; and that the court, on its own motion, had continued the matter until June 15, 1970, in order to allow the defendant sufficient time to file any additional matters which he believed to be meritorious on his behalf, or to assert any other reasons why the motion should not be allowed, or why the court after review of the record, should not affirm the judgment of the trial court.

The defendant did not file any pleadings in response to the notice of the Public Defender or of the court, and sought no extension of time within which to do so. However, the defendant did write the court wherein he related that he more or less got into an argument with the trial judge at the hearing on aggravation and mitigation, and that this may have affected his sentence.

In view of the number of burglaries of which the defendant stands convicted — five burglaries within a period of approximately thirty days — and in view of his past criminal record, his poor work record, the absence of strong family ties, his characteristics, attitude and the paucity of other beneficial rehabilitating factors, we would not be warranted in reducing the sentence imposed upon him by the trial court. The People v. Miller, 33 Ill2d 439, 444, 445, 211 NE2d 708 (1965); The People v. Smith, 14 Ill2d 95, 97, 150 NE2d 815 (1958); People v. Stasin, 113 Ill App2d 466, 251 NE2d 307 (1969); People v. Juve, 106 Ill App2d 421, 428, 429, 245 NE2d 293 (1969).

We have fully examined all the proceedings as required by Anders v. California, supra, and conclude that the appeal lacks merit, and if pursued further, would be frivolous. Thé Public Defender is, therefore, given leave to withdraw as the defendant’s counsel and the judgment of the trial court is affirmed.

Judgment affirmed.

MORAN and SEIDENFELD, JJ., concur.


author: MR. JUSTICE ADESKO

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Melvin Mitchell, Defendant-Appellant.
    Gen. No. 53,588.
    First District, First Division.
    August 17, 1970.

      Gerald W. Getty, Public Defender of Cook County, of Chicago (Nunzio D. Tisci, James N. Gramenos, and James J. Doherty, Assistant Public Defenders, of counsel), for appellant.
    Edward V. Hanrahan, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane, Assistant State’s Attorney, of counsel), for appellee.
   MR. JUSTICE ADESKO

delivered the opinion of the court.

The defendant was convicted of armed robbery in a jury trial and was sentenced to a term of not less than eight, nor more than twenty years. On appeal, the defendant contends that the identification evidence was insufficient to prove his guilt beyond a reasonable doubt; that from the evidence in this case and the failure to conduct any pretrial identification procedure, the manner of identification was conducive to mistake; that defendant was denied adequate representation of counsel; and was denied time to prepare his case because of the trial court’s refusal to grant a requested continuance.

Due to the similarity of the defendant’s contentions regarding the identification in this case, we will review the evidence with regard to those questions. The record discloses that defendant’s guilt was predicated completely upon his being identified as the person who committed the crime. The robbery occurred at about 10:00 o’clock in the morning of January 4, 1968, at a Yellow Cab Company garage located at 4611 West Lake Street, Chicago. The company cashier had just returned from a bank with about $3,000 in a money bag. After the cashier parked his car in the garage and while walking towards the cashier’s cage, he was accosted by an individual who demanded the money. The cashier struggled with the robber, who finally succeeded in taking the money from him and was struck on the head by the robber. The cashier did not see the person who took the bag, nor the individual who assisted in the crime.

The defendant was subsequently identified at trial as the man who had taken the money from the cashier. This identification resulted from the testimony of three individuals, all employees of the cab company. Wardell Tate, a cabdriver, was present in the garage during the robbery. Tate saw a man approach the cashier, announce a robbery and then take the money while striking the cashier with a revolver. Tate grabbed this man by holding his hand in which he held the gun. At this time, the accomplice struck Tate with a gun and he released the robber. Tate stated he was unconscious for a while from the blow to his head but that he “never was all the way out.” He also said his knees buckled but he managed to look up and see the robbers going out of the garage. Tate said he had observed the individual with whom he struggled in the garage earlier that day. The defendant was then pointed out by Tate as that person. Following the date of the robbery, Tate next saw the defendant sometime in February, when the case was called in court. Defense counsel established that the witness had not participated in any lineup or showup in this case.

Tate stated further that the lighting conditions were good on the date of the crime; that the robbery took about five or six minutes; and that he was within three or four feet of the cashier when the money was taken. Tate’s description of the robber was that of a dark complexioned male, 5 feet 8 inches tall, about 85 to 40 years old, and weighing about 160 pounds. The robber’s clothing was described as a green sweater, black slacks, dark glasses, coat and hat. Tate was unsure of the colors of the outer garments and was not positive if the robber had a mustache or a goatee, Tate said the robber’s hair was dark and he observed no long side-bums. When asked about his observing the robber, he responded: “It happened so quick, you didn’t have time to watch him.” Then Tate stated he watched the robber when holding him during their struggle. Tate also said he looked at the defendant several times in the early morning when the defendant was loitering in the garage. On redirect examination, Tate disclosed that he went to a police station on the afternoon of the robbery. There he looked at photographs in the form of movie slides. The record does not disclose whose picture was identified by Tate, but he apparently recognized a movie slide of the defendant.

The State next called George Goodman, a mechanic for the cab company, who was working that day. He said he observed some strangers in the garage on the day of the robbery. Specifically, he testified he saw defendant in the garage between 8 o’clock and 10 o’clock that morning. Goodman’s observation of the robbery consisted of seeing two men backing out of the garage and firing two shots. The distance from Goodman’s work area to the cashier’s cage was about 60 to 70 feet. Goodman said that earlier that day he observed defendant only for a few seconds from an unspecified distance. The next time he saw defendant was when he was backing out of the garage. This observation was at a distance of 15 feet as the men backed past his position in the garage. Goodman identified the defendant in court as this same individual. The witness gave this description: A dark individual, about 5 féet 8 inches tall and weighing about 150 pounds, wearing a green hat and no sunglasses.

The last identification witness was James Nixon, the assistant manager of the cab company. The robbery occurred about 40 feet from where he stood. Nixon said he observed an individual running backwards, firing three shots into the garage roof. His observation was at a 5-foot distance, limited to the time after the individual passed on his way out of the garage. Nixon’s description was of a man 5 feet 7 inches tall, wearing a green sweater, dark glasses and a three-quarter length coat. The witness stated he observed the robber’s face for about ten seconds, although prior to that time the individual was backing towards him. According to this witness, the lighting conditions were good. Nixon identified the defendant as the individual he saw that day. The witness admitted he did not see the defendant until sometime in February when he appeared in court to testify.

On cross-examination, the witness was unsure as to whether defendant was wearing a hat, nor was he positive as to the color of his hair. The witness could not describe the color or type of coat worn by the defendant. Further, Nixon’s testimony was that he only saw one man leaving the garage and that he ran for cover when the shots were fired.

All of the State’s identification witnesses stated that they did not participate in any pretrial identification procedure with regard to the defendant. All three witnesses admitted that the next time they observed the defendant after the robbery was in court, when they appeared to testify concerning the robbery. These instances occurred in February and April of 1968, about one to three months after the robbery. The defendant was arrested in Peoria, Illinois, and was subsequently returned to Chicago on February 23, 1968. It appears that the defendant was apprehended as a result of his picture being picked out by the witness Tate.

From the foregoing evidence, the defendant argues that the identification evidence is not sufficient to remove all reasonable doubt of his guilt. Defendant argues that “the attendant circumstances clearly afford great opportunities for mistake.” Defendant characterizes the identification testimony of the State’s witnesses as inconsistent and that this raises reasonable doubt of his guilt. The State argues that the record reflects that a positive identification was made of this defendant by all three occurrence witnesses.

The testimony of Tate, Goodman and Nixon was positive but as to the latter two witnesses contained some discrepancies that affected their testimony. Goodman said the man he observed was not wearing sunglasses when he left the garage. Nixon corroborated Tate’s description of the defendant, but his testimony reveals that he ran for cover when shots were fired and that he only saw one man fleeing the garage. However, even if we were to completely discount the testimony of Goodman and Nixon, the testimony of Tate still remains for our consideration.

The State correctly maintains that the positive identification by one witness is sufficient to sustain a conviction. People v. Lamphear, 6 Ill2d 346, 128 NE 2d 892 (1955); People v. Marshall, 74 Ill App2d 472, 221 NE2d 128 (1966). The circumstances under which War-dell Tate observed the defendant were good. He stated that before the robbery he saw the defendant loitering around the garage; that during the robbery he struggled with the defendant in an attempt to abort the robbery ; and he picked out a photograph of defendant which led to his apprehension. Despite some statements of Tate on cross-examination, his testimony was unshaken. The defendant has not convinced this court that the identification testimony was insufficient to prove his guilt beyond a reasonable doubt.

Defendant further complains that the failure to conduct a pretrial identification procedure and the circumstances of this case served to produce a mistaken identification in the instant case. The defendant argues that the fact that all of the identification witnesses next saw the defendant in court after the robbery was conducive to mistake. Defendant relies upon cases which are critical of showup procedures where a witness views a single individual under circumstances that seem to be suggestive. People v. Gardner, 35 Ill2d 564, 221 NE2d 232 (1966); People v. Sanders, 357 Ill 610, 192 NE 697 (1934); People v. DeSuno, 354 Ill 387, 188 NE 466 (1933); People v. Crane, 302 Ill 217, 134 NE 99 (1922).

We are mindful of the rule that there is no requirement to conduct a lineup or any other pretrial identification procedure, People v. Boney, 28 Ill2d 505, 192 NE2d 920 (1963). Furthermore, the rule had been that the manner or method of identification goes to the weight rather than the competency of the evidence, People v. Brinkley, 33 Ill2d 403, 211 NE2d 730 (1965). These principles have been tempered by the decision of Stovall v. Denno, 388 US 293 (1967), so that the admissibility of identification testimony will depend upon the circumstances of the case. In the Stovall case, the rule was announced that a violation of due process may result where the totality of the circumstances are “so unnecessarily suggestive and conducive to irreparable mistaken identification” as to deny an accused due process of law. We are of the opinion, based on a thorough review of the record, that the circumstances in the instant case were not so suggestive as to result in a mistaken identification of the defendant.

Finally, defendant contends that he was denied adequate representation and sufficient time to prepare for trial when the trial court denied his appointed counsel’s motions for continuances. Prior to defendant’s trial on July 16, 1968, the defendant was represented by private counsel from April 3, 1968, to June 19, 1968. On the latter date, private counsel withdrew and the Public Defender was appointed to represent defendant. The cause was continued to July 16, 1968. On that date, the Public Defender sought a further continuance. This motion was denied. It appears that defense counsel was notified the day before that the State was going to proceed on the armed robbery indictment, although defendant had an additional indictment pending. The trial commenced with jury selection and the State’s case being presented on July 16. Following adjournment and up to the next morning, defense counsel sought to investigate this matter. Counsel attempted to contact some witnesses in Peoria, Illinois, who could purportedly establish an alibi for the defendant. The trial court was informed that he had the names and addresses of several witnesses and that he had talked to one witness who would be willing to testify for defendant and say that defendant had registered at a motel in Peoria on the date of the robbery.

Pursuant to this information, the trial court granted a one-day continuance and the jury was excused until the next morning. Defense counsel sent an investigator to Peoria on July 17 and based on his information, sought another continuance on July 18. The investigator for the Public Defender’s office testified outside the jury’s presence that he attempted to contact the alibi witnesses in Peoria. He was successful in talking to one individual who said he saw defendant in Peoria the first week of January, but didn’t say he saw defendant on January 4, 1968. The investigator also said he made a copy of a motel record which showed that a Mr. and Mrs. Thomas Smith were registered there on January 4, and January 5. This record was not introduced into evidence. The motion for continuance was denied.

Defendant contends that he had inadequate time to prepare his defense. His counsel argued that at the time the Public Defender was assigned on June 19, 1968, he had other cases which took priority; he did not know the trial would commence on July 16, 1968, and had intended to seek a continuance; and that he was not informed of the State’s intention to proceed until the day before the trial. Defendant argues that although the granting of a continuance is within the trial court’s discretion, one should be entitled to a continuance to prepare an adequate defense. People v. Kenzik, 9 Ill2d 204, 137 NE2d 487 (1956).

The rule of this State has been expressed in People v. Solomon, 24 Ill2d 586, 182 NE2d 736 (1962), at pages 589-90:

“The granting of a continuance to permit preparation for a case . . . necessarily depends upon the particular facts and circumstances surrounding the request, and is a matter resting within the sound judicial discretion of the trial court. [Citations omitted.] Before a judgment of conviction will be reversed because of the denial of such a motion, it must appear that the refusal of additional time in some manner embarrassed the accused in preparing his defense and prejudiced his rights.”

We are of the opinion that the trial court did not abuse its discretion in refusing defendant’s motions for continuance on July 16 and 18. The defendant has not shown any embarrassment to his defense or prejudice of rights from this record. The record reveals that private counsel had been retained for almost three months. Nothing appears as to what was done by defendant’s private counsel. The case was continued for about one month after the Public Defender was appointed. Once the trial began, the trial court granted a one day continuance to check out any alibi witnesses for the defense. The judge then heard testimony from an investigator as to his efforts to establish this defense. The testimony appeared to be inconclusive in proving defendant’s alibi. Our examination of the record shows that defense counsel conducted an adequate defense.

We have reached this decision as to the denial of a continuance based upon an analysis of the facts and circumstances of this case. The cases relied upon by defendant are easily distinguishable. For instance, in our decision in People v. McNeil, 102 Ill App2d 257, 243 NE2d 576 (1968), we reversed a conviction because of prejudice manifested when the trial court refused a defendant’s motion for a continuance after the State had indicated on the date of trial it was changing its election as to which of several indictments it now wished to prosecute. The instant case does not reveal such a split-second change of events that would prejudice defendant’s right to adequate preparation and representation of counsel. The trial judge ruled properly in the instant case in denying further continuance and we will not disturb that decision.

Therefore, the judgment of the Circuit Court of Cook County is affirmed.

Judgment affirmed.

BURMAN, P. J. and MURPHY, J., concur.


author: MB. JUSTICE ADESKO

text:
    Blanche Wright, Plaintiff-Appellee, v. Lawrence J. Young, Defendant-Appellant.
    Gen. No. 53,492.
    First District, First Division.
    August 17, 1970.

      John S. Charone, of Chicago, for appellant.
    Westbrooks, Holman and E. F. Johnson, of Chicago (Claude W. B. Holman, of counsel), for appellee.
   MB. JUSTICE ADESKO

delivered the opinion of the court.

This is an appeal from a judgment on a jury’s verdict in the amount of $2,000 and costs for Blanche Wright, plaintiff, in a suit for damages for an alleged false arrest for receiving stolen property of the value of $50. Motions for a new trial and for judgment non obstante veredicto were denied. On August 13, 1957, plaintiff, at the suggestion of one Ella Scrutchings, came to the defendant to purchase a fur coat. Defendant claimed that after plaintiff left, he noticed that one of his coats was missing. After some discussions with Ella Scrutchings and the plaintiff, the defendant sought the advice of an attorney and thereafter on January 22, 1958, procured a warrant for the plaintiff’s arrest. Several months later, on October 21, 1958, the plaintiff was discharged and the cause dismissed for want of prosecution.

Defendant claims on appeal that at the time of the hearing of said criminal complaint, all the parties appeared in open court, were represented by their attorneys and after a conference, the plaintiff, Blanche Wright, agreed to return the coat. Defendant further claims that the dismissal order was erroneously entered. On August 2, 1960, plaintiff filed the instant suit in which defendant demanded a jury trial. Defendant also claims on appeal that he had probable cause for the warrant and that it was his attorney’s opinion that defendant had ample grounds for causing a warrant to issue; that the jury's verdict was against the manifest weight of the evidence and that the trial court erred in not entering judgment for the appellant notwithstanding the verdict or in the alternative, grant a new trial.

Defendant relies on the holding in Galarza v. Sprague, 284 Ill App 254, 1 NE2d 275 (1936). In that case, the court stated as follows at page 259:

“It is the law that when one in good faith submits facts fairly to an attorney of standing or to a judge, obtains advice as to whether a person who is supposed to have committed an offense should be prosecuted and, acting upon such advice, institutes proceedings of a criminal or quasi-criminal nature against the party, such facts will constitute a complete defense to an action for false arrest and malicious prosecution, although the person charged is not, in fact, guilty.”

In Lyons v. Kanter, 285 Ill 336,120 NE 764 (1918), the court reminds us on page 340:

“The defense that the prosecution was initiated upon the advice of counsel is based on a full and truthful disclosure to counsel of all the facts within the knowledge of the prosecutor. [Citations omitted.] The defendants testified to such disclosure, but the plaintiff’s testimony as to material facts, of which the defendants had knowledge, was contradictory to that of the defendants, and if his testimony was true the disclosures of the defendants to their counsel was untrue. There was therefore a question of fact which precluded the giving of the peremptory instruction and which it is not our province to determine.”

In Froemke v. Massman, 215 Ill App 86 (1919), at page 89, the court stated:

“To justify by advice of counsel the defendant must show that he stated to such counsel all the facts bearing upon the guilt or innocence of the accused in good faith. The making of an exaggerated or incorrect statement or the withholding of any material fact is inconsistent with probable cause. It is incumbent upon the defendant to show what information was given to his counsel, so that the jury may determine whether it was a full, truthful and correct statement of all the facts.”

Applying the guidelines pointed out by the courts in the above decisions to the issues in the instant case, we come to the conclusion that the basic question here was one of credibility of the witnesses, which is for the jury to decide. The record here presents many conflicts in the testimony and leaves one in a state of confusion. Was Ella Scrutchings an employee of the defendant Young? Did the plaintiff, Wright, drive her automobile when she came to Young’s store or home? Did Young sell the plaintiff, Wright, a coat which did not belong to him? Was his attorney properly and fully advised of all the facts relating to the disappearance of the coat? Was the criminal charge against the plaintiff, which was dismissed for want of prosecution, the result of an agreement and compromise between the parties? The record shows that there was a dispute as to the alleged agreement, and it was a factual question which was properly submitted to the jury. The jury’s decision in a case involving disputed factual questions should not be set aside unless it “is palpably erroneous and wholly unwarranted from the manifest weight of the evidence.” Hamas v. Payne, 107 Ill App2d 316, 246 NE2d 1 (1969).

We conclude that a thorough examination of the record compels us to hold that the verdict of the jury was not against the manifest weight of the law and evidence and the trial court did not err in denying the defendant’s post-trial motion seeking a new trial or a judgment n. o. v.

Since we are affirming the judgment of the trial court, it will be unnecessary to consider plaintiff’s request that defendant’s brief be stricken because it violates Supreme Court Rule 341(e)(6), (7).

The judgment of the Circuit Court of Cook County is affirmed.

Judgment affirmed.

BURMAN, P. J. and MURPHY, J., concur.


author: MR. PRESIDING JUSTICE BURMAN

text:
    Kenny Construction Company of Illinois, an Illinois Corporation, Also Known as Kenny Construction Company, an Illinois Corporation, Plaintiff-Appellee, Cross-Appellant, v. The Sanitary District of Greater Chicago, Defendant-Appellant, Cross-Appellee.
    Gem. No. 53,764.
    First District, First Division.
    August 17, 1970.
    Rehearing denied September 14,1970.

      Allen S. Lavin, Sidney B. Baker and James Kennedy, of Chicago (Ralph Brill and Fred Herzog, of counsel), for appellant.

      Healy, McGurn & O’Brien, and O’Keefe, O’Brien, Hanson & Ashenden, of Chicago (Donald V. O’Brien and James H. O’Brien, of counsel), for appellee.
   MR. PRESIDING JUSTICE BURMAN

delivered the opinion of the court.

This is an action commenced by the Kenny Construction Company (hereinafter referred to as “Kenny”) against the Metropolitan Sanitary District of Greater Chicago (hereinafter referred to as “District”) to recover an adjustment of the price of a sewer construction contract necessitated by allegedly unforeseen and unexpected subsurface conditions. The defendant waived a jury, and the case went to trial on May 13, 1968. Testimony was concluded on June 10th. A judgment was entered in July for the plaintiff in the amount of $131,237.71, from which defendant appeals. Plaintiff cross-appeals as to the adequacy of the amount awarded.

In 1958 the District advertised for sealed bids for the construction of a sewer in Wheeling Township, Cook County, Illinois, which was to connect with an existing intercepting sewer. All of the plans and specifications were made available to plaintiff and the other prospective bidders. The nature of the construction job was partially described as follows:

The work consists of building approximately 8,100 linear feet of concrete sewer of 4 feet 6 inches internal width and 5 feet internal height in tunnel, three junction chambers and one transition with manholes and miscellaneous structures and work collateral thereto . . . Portions of this work may require the use of compressed air due to bad soil conditions to be encountered in tunneling.

Kenny had much experience in sewer construction for the District. Before preparing its bid its personnel read the contract documents, specifications and plans. They went to the site, looked at the job from the standpoint of obstructions, reviewed the soil borings in the District’s files, including information of soil samples, and made their own soil borings. They ultimately submitted a bid of $1,138,250.00 which was the lowest bid of the six interested bidders in the computation of the unit and lump sum prices set forth in the contract and their bid was accepted.

The general provisions of the contract contained the following:

Extra work.
Art. 7. The Contractor shall perform such extra work as the Engineer may direct in his written order, provided that no extra work, the total price or cost of which is in excess of Twenty Five Hundred Dollars ($2500.00), shall be performed by the Contractor until the Engineer is authorized by the Board of Trustees of said Sanitary District to issue a written order therefor, and shall have issued such written order ....

The provision further requires that all claims for extra labor, rental of equipment or material furnished must in any event be presented to the engineer and to the Trustees’ committee on engineering within thirty days after the end of the month during which such extra work was done. Under the heading of “Estimating Extra Work” appears the following:

RENEGOTIATING: Where unforeseen or not anticipated conditions develop in the construction of this project so that there is a variation of 15 percent in quantities of materials required (either more or less than the original estimates), then either the Metropolitan Sanitary District of Greater Chicago or the contractor shall have the right to demand an examination of the site and immediate renegotiation as to the quantities and amounts.
CHANGED CONDITIONS: Should the Contractor encounter during the progress of the work subsurface conditions at the site materially differing from any shown on the contract drawings or indicated in the specifications or such conditions as could not reasonably have been anticipated by either the Metropolitan Sanitary District of Greater Chicago or the contractor which conditions will materially affect the cost of the work to be done under the contract, the attention of the Chief Engineer must be immediately called to such conditions before they are disturbed. The Chief Engineer shall thereupon promptly investigate the conditions and if he finds that they do so materially differ, the contract may with his written approval be modified to provide for increase or decrease of cost and/or differences in time resulting from such changed conditions. Any increase in costs resulting therefrom should be subject to approval by the Board of Trustees.

The major item in the contract was Item I, providing a price of $109.50 per lineal foot for excavation, the unit price for each item, complete in place. Approximately 3,093 linear feet were completed without any problem by using a method of mining and removing material in free air, then placing steel ribs and hard wood lagging to hold back the earth and finally pouring the concrete. Payments were made by the District as the work progressed.

At another portion of the work, Kenny subsequently encountered bad soil conditions and a cave-in occurred on August 4, when the miners unearthed running sand and silt, i. e. underground water bearing quantities of fine unstable particles of soil. Kenny’s engineer testified that the job called for both free air and compressed air and that they knew they would need compressed air for approximately 45 percent of the job. Efforts to mine this unstable soil proved futile even under compressed air.

When the attempt to drive the tunnel under compressed air from a lock built in the tunnel section failed, Kenny abandoned the work. John Kenny, President of Kenny, testified that a meeting was held in September, 1959, with Burton Scheidt, the District’s Chief Engineer, and his Assistant Chief Engineers to consider possible ways to overcome subsoil conditions. He testified that Scheidt stated that if Kenny would drive steel sheet piling and perform the work in open cut, the lock could be extended. Kenny agreed to this. He testified further that he asked Scheidt how he would be compensated and Scheidt said “Go out and do as we have decided to do at this meeting, and we will discuss the payment later.” He said he repeated two or three times at the meeting that he had to be paid for the work and that Scheidt said “that to attempt to forecast or to permit us to give him a price at that time for the work, did not seem fair; that he felt that it would be fairer to both parties if we did as he had suggested, go out, produce the work, and then come back in, after the work had been completed, and he and his forces would have a better opportunity to evaluate the costs.” Kenny who testified that he was familiar with the practices of the District said he believed and relied upon Scheldt’s statements.

In addition, Mr. Kenny wrote a letter to the District to Scheldt's attention on September 14, referring to the meeting and stating:

This work will be done and we wish to point out that we consider this situation a changed condition, subject to renegotiation and are proceeding assuming that we are to be paid for all expenses incurred.

On September 18, plaintiff submitted a procedure and an engineering drawing for the work discussed at the meeting. Mr. R. H. Kelly, the District’s Assistant Chief Engineer, approved the drawing as a working plan in his letter of September 24, subject to Kenny’s “agreement that it shall in no way affect the contractor’s responsibility or relieve him of any liability which may arise.” On November 17,1959, Kenny again wrote to the District that the subsurface conditions have proven to be materially different than those originally assumed at the September 14 meeting and “as required by the contract, your attention is further called to the unforeseen changed conditions.” They suggested that the 3,076 feet stretch either be deleted from the contract or constructed with revised plans and methods under an agreed change order. “The steel-sheeted open-cut work near Sta. 16, decided on September 14, has cost approximately $95,800 to date and a pertinent change order covering such extra work is respectfully requested.”

On November 19, Scheidt replied by letter that the present completed portion of the work was of no value because there was no sewage outlet for any portion of the completed work. “At the present time we do not have any assurance from your company that the south portion of the contract will be completed and made available for service; therefore, it is impossible for us to consider any revisions, changes or deletions in this contract” between certain specified stations.

On December 17, Kenny again wrote to the District summarizing the inability to tunnel in the unstable ground because of excessive cave-ins, suggesting an attempt to resume mining under a different construction method, the “liner plate method.” He also stated “if your decision is that a reasonable attempt be made to tunnel this stretch by the method of liner plates, we propose a price of 25 cents for a new bid item of liner plates. Further, because of the changed conditions and methods, it would be necessary to modify our contract price for Bid item 1.” Thereafter, there were meetings, discussions and additional correspondence as to the “liner plate method” but nothing was resolved.

On January 28, 1960, Seheidt wrote to Kenny acknowledging receipt of the various letters:

. „ . with reference to your claim for extras as a result of alleged subsoil conditions which you claim could not have been anticipated at the time of the execution of the above referred to contract. Our engineers have been examining your claims and it is impossible at this time to determine whether those claims are covered by the renegotiation clause in your contract. If the existing conditions are such that they could have been anticipated prior to the commencement of the work, the renegotiation clause would not cover any change in conditions and you would be obliged to perform in accordance with the other provisions of the contract. We do not wish to preclude a claim for extras at present, but we feel as though the work under the contract should be completed in accordance with the terms thereof, and upon completion, full consideration will be given to all of your claims.

On February 2, Kenny replied by letter that they did “not understand why any judgment of changed conditions should be deferred to some future date, inasmuch as the facts have already been submitted and are available now. We again request the findings of the Chief Engineer as to the changed conditions.” On February 5, Seheidt wrote to Kenny that the District was informed that the contract was in a no-work status since November 17 and advised that unless the work was recommenced immediately, it would be obliged to declare a default on the performance bond.

Kenny testified that he then received a phone call from Frank Chesrow, the President of the District in the latter part of February, inviting him to discuss the status of the contract and what the difficulties were. He said he told Chesrow that they had had meetings with the Engineering Department of the District in which they had suggested using liner plates and steel ribs for the construction, but he had not received approval. Chesrow told him he would talk with the Engineering Department in an attempt to get the job under way. Kenny said he brought up the point of payment and told Chesrow he would consider going back to work only if he would be told that he would be paid. Chesrow replied that he would talk to his Engineering Department and if agreeable to them, Kenny would be compensated for his work for producing the sewer.

Scheldt called him about the first week in March and they met in Scheldt’s office with Mr. Kelly, the latter’s assistant and Scheldt told him they were willing to try the method of liner plate construction which was a much more costly method than the method recited in the contract. Kenny told him he would do it if they could agree on a price and he gave them a price of 23 cents a pound to which he said they agreed. He said he told them that this was not the total solution of their problem and it was necessary to review the monies he had expended for producing the tunnel to date and the additional money they would need because of the change in method and a much slower method than was originally conceived and used. He said Scheldt told him that he had pointed out to him that the method he would like to employ was that Kenny proceed with the work so that they might be paid at a later date stating that it was much more realistic for them to evaluate the work after completion when all of the contractor’s expenditures could be checked than to accept an amount from the contractor which might be exorbitant before the work was started. Kenny said he believed the representations made by Scheldt and relied on those representations in undertaking the balance of the work. He also stated that it was the practice of the District with which procedure he was familiar that the work to be undertaken was to be performed, and then evaluated, and then an agreement made as to the price, after the work had been finished.

On March 31, 1960, the Committee on Engineering appeared before the District’s Board of Trustees and reported that in accordance with the negotiation clause of its contract, the contractor advised the District’s Chief Engineer of the unforeseen and unanticipated soil conditions he encountered, that it was decided that the contractor resume tunnel operations by the new method of using steel liner plates and steel ribs at a price of 23 cents a pound for liner plates. The Board gave Scheidt authority to use the new method at a cost of 23 cents a pound and, if it proved satisfactory, Scheidt was authorized to use it where necessary for completion of the contract work.

The sewer was completed on October 10, 1960. Kenny submitted by a letter addressed to Scheidt on May 26, 1961, their itemized claim for adjustment of the contract price in the amount of $495,347.11. It indicates that their total bill was $1,274,170.12 and that they had received $778,823.01, which included the 23 cents a pound for the liner plates leaving a balance of claim for $495,347.11. This claim was rejected by Scheidt in his letter of October 13, 1961, to which letter he attached a report given by the District’s Attorney, George A. Lane. In this report, Mr. Lane stated adjustments had been made authorizing a revision of tunnel construction provisions at extra costs, which were paid. Also that after notification by Kenny of unforeseen underground conditions that were encountered, a major part of the sewer remaining to be performed was eliminated from the contract at Kenny’s request and substituted in lieu thereof 1270 linear feet of 18-inch pipeline and pumping station at a cost to the District of $112,400.00, which had also been paid. He added that as a result of the two Board actions of March 31,1960, and September 8,1960, specifically modifying the contract after renegotiation they paid the extra costs therein provided and agreed with Scheldt that Kenny’s claim should be rejected. Thereafter, pursuant to a District Board action of November 9, 1961, the District authorized a final payment in the sum of $38,169.70 to Kenny.

On April 9, 1963, plaintiff filed this lawsuit claiming $412,496.40. In an amended complaint, it sought $512,469.11, itemized as $342,946.60 additional costs for the south end of the project, $119,155.73 for the “cofferdam” or bracing and sheeting work at the north end, and $50,366.78 for delay and equipment costs and the same amount was claimed in its second amended complaint.

During the trial which lasted five weeks, the court ruled that the schedule of amounts claimed by Kenny for the use of equipment was not admissible. This changed the original claimed amount. Again the court held that all the profits and losses should go into one computation for a net figure. Hence, there were many figures and computations. The court concluded that the law of Illinois did not allow a contractor to change a unit-price lump sum contract for public construction into an unwritten arrangement for time and material plus overhead and profit and therefor denied the claim for overhead and profit. The court pointed out that Kenny’s General Ledger indicated “Job Cost account Sheet No. 14 shows a total cost of $949,832.16, and credits of $816,922.71” and the words “Final before suit.” The difference is $132,839.45. After another adjustment judgment was entered for plaintiff for $131,237.71, which the court found was Kenny’s adjusted minimum net cost for changed conditions on the south end of the job!

We will first determine whether the increased cost for the alleged extra work was approved by the District as required by the contract or whether the requirement of such approval was waived. If neither is the case, then Kenny may not recover whether the work was extra or required by the contract.

Kenny initially argues that the “Extra Work” and “Changed Conditions” provisions are separate and distinct. We do not agree. The “Changed Conditions” provision was added to the end of Article 8, “Estimating Extra Work.” It was not set off as a separate article, but denoted a particular kind of extra work and included the statement that “Any increase in costs resulting therefrom should be subject to approval by the Board of Trustees.” It is apparent that because of the large sums of money involved and the overriding public interest in public improvement contracts, paid out of tax revenues, the “Extra Work” and “Changed Conditions” provision was added to the contract to guarantee against claims for further payments other than those specified in the contract which was awarded to Kenny as the lowest bidder. See 43 Am Jur Public Works & Contracts, § 117.

The “Extra Work” provision states that extra work shall require a written order by the Chief Engineer and, if the cost exceeds $2500.00, authorization by the Board of Trustees. This provision further states that all claims for extra costs from any cause whatsoever must be presented to the engineer and the committee on engineering in writing within thirty days after the end of the month during which such extra work was performed. These provisions are specifically made conditions precedent to any recovery for any extra work performed.

The record establishes that Kenny did get written approval from the District’s Chief Engineer for a change in the method to be used in regard to the north end sheeting and bracing. However, it did not get the necessary written approval from the Chief Engineer to treat the work as an extra and to be compensated for extra costs. It also failed to present any specific claim for extra work to the Chief Engineer or the committee on engineering in writing within thirty days after the end of the month as required, and it failed to establish any authorization by the Board of Trustees for the performance of extra work to be paid for by the District as extra costs.

Kenny, who was familiar with the type of contract in question and with the policies of the District, did secure an order from the Board approving the modification of the agreement to allow the construction to proceed by the liner plate method as described in plaintiff's letter of March 29, 1960, to the District at a cost of 23 cents per pound. If there were going to be a claim for compensable increases in costs beyond the 23 cents per pound, Kenny was obliged as a condition precedent to recovering to obtain the consent of the Board for a claim of further extra costs. Kenny did not present any claim for additional costs at the time it received approval of the liner plate method and its increased cost per pound nor did it get any such approval from the Board.

Kenny thus did not get the written approval of the Chief Engineer and the Board of Trustees for its alleged extra costs other than for the 23 cents per pound for the liner plate. In Joliet Bridge & Iron Company v. East Side Levee & Sanitary District, 210 Ill App 575, it was held that a contractor could not recover for extra work in removal and replacement, under the direction of the engineer in charge, of a span of bridge for the benefit of another contractor where no estimate in writing was made by the engineer as to the cost thereof, and no agreement made in reference thereto as the contract required.

We now turn to the question of waiver. There is no evidence in the record that would support the conclusion that the Chief Engineer determined that the District would pay extra costs for the change in work method involved here. In its correspondence with the Chief Engineer, Kenny did call attention to what it alleged were changed conditions and did seek payment. The record shows that on January 28, 1960, the Chief Engineer advised Kenny that full consideration would be given to Kenny’s claim at the completion of the work. The Chief Engineer, subsequently did then make a determination that the work was within the contractor’s obligation under the contract and denied Kenny’s claim. At no time did the Chief Engineer give Kenny written approval for extra work and extra costs, and, even if he had done so, he could not waive the additional requirement of authorization by the Board of Trustees.

Neither do the actions of the President of the Board of Trustees amount to a waiver. While there was a no-work status on the project, Mr. Kenny met with Frank Chesrow, the President of the District, in Mr. Chesrow’s office and at his request. Mr. Kenny testified that he informed Mr. Chesrow that no approval or disapproval had been given him on his suggestion of another method to be used than that of using liner plates and steel ribs. Chesrow replied that he would suggest to the Engineering Department that they meet with Kenny in an attempt to get the job under way. Kenny also testified that he told Chesrow that he would consider going back to work only if he were told he would be paid. According to Kenny, Chesrow said “that he would talk to the Engineering Department, and if agreeable to them, that we would be compensated for our work for producing the sewer.” This conversation was not a waiver by Chesrow, but an attempt to get the work restarted. Even were it a waiver, the President of the Board is only one member of the Board and cannot waive the approval of the Board required by the contract. Salfisburg & Co. v. City of St. Charles, 154 Ill App 531.

At Kenny’s request, and in view of the difficulties, the Board of Trustees modified the contract by deleting some of the work originally required. The Board also approved a change in the method to be used on the north end and authorized the use of liner plate at 23 cents a pound on the south end. There is no evidence that the Board had knowledge of any other requests by Kenny for extra compensation. It cannot be said to have waived the conditions precedent of the contract.

Kenny relies on Stahelin v. Board of Education, School Dist. No. 4, Du Page County, 87 Ill App2d 28, 230 NE2d 465. In Stahelin, unlike the case at bar, there was no dispute that extras had been incorporated in the school building. The school board was aware that changes were being made for which extra compensation would be sought. “It understood and consented to the procedure which was followed by its agent, the architect, in ordering certain changes, with the adjustment for extras and credits to be made at the end of the job.” 87 Ill App2d at 38, 230 NE2d at 470.

Great Lakes Dredge and Dock Co. v. City of Chicago, 353 Ill 614, 158 NE 196, is also distinguishable. While the contractor in that case was at work on the project of straightening the south branch of the Chicago River, Lake Michigan increased the water level in the river about four feet above the flow line designated in the plans for the project. This made it impossible to continue the dock work in the manner provided in the plans and specifications. The City did not deny that the contractor had a right under the contract for additional time required for the recession of the water and had recognized that this delay would be very costly to the City. As the additional work progressed the items were checked by the City and computed on the basis of the unit price. There was direct evidence that the City Council had full and complete knowledge of this situation and the contractor’s expectation of payment while the work was proceeding, but failed to stop the work or repudiate the agreement of its Chief Engineer made for this emergency. In the case at bar, the District’s Board of Trustees had no knowledge until after all of the work was completed that Kenny was demanding further payments. As we have pointed out, Kenny did seek approval of the Board for the use of liner plates and their cost and was given such consent, but did not seek a commitment from the Board at the time or at any other time while the work was in progress to pay for other additional costs.

In Anderson Co. v. City of Highland Park, 276 Ill App 327, the Board of Local Improvements had knowledge that plaintiff was performing engineering services for the City and accepted the results of the services for the estimate of the cost of a special assessment project. The court held that since the City had accepted the benefits of plaintiff’s work, it would be unjust to permit the City to defeat plaintiff’s claim because plaintiff had not strictly complied with certain ordinances. In the case before us, other than for the instances detailed above, the District Board of Trustees never considered that extra work was being performed in addition to the performance due under the contract and no action or agreement on its part showed any acceptance by it of extra costs to be paid by the District.

The case at bar is a good example of the need for “extra work” clauses in public works contracts and compliance therewith. The proposal for bids and the contract itself informed the contractor of the general nature of the work including the warning of possible poor soil conditions. The contractor was told that these poor conditions, if found, would possibly necessitate the use of compressed air and therefore the use of air locks which might require the installation in open cut. Yet at the completion of the work, the Board of Trustees was for the first time presented with a bill for approximately $500,000.00 for extra work of this type.

Since we have determined that defendant is not liable to plaintiff for any extra costs, the judgment rendered in behalf of plaintiff is reversed.

Reversed.

MURPHY and ADESKO, JJ., concur.


text:
    Estate of Catherine L. Tognotti, Deceased. Luigi Donati, Petitioner-Appellee, v. Margaret Ginocchio, Individually and as Executor of the Estate of Catherine L.Tognotti, Deceased, Respondent-Appellant, Victorio Focher, et al., Respondents-Appellees.
    Gen. No. 54,455.
    First District, First Division.
    August 17, 1970.

      James F. Lyons, of Chicago, for respondent-appellant.
    Gerald M. Chapman, Edward Atlas, Peter V. Fazio, and John G. Spatuzza, of Chicago (Gerald M. Chapman and Edward Atlas, of counsel), for respondents-appellees.
   MR. PRESIDING JUSTICE BURMAN

delivered the opinion of the court.

This is a supplemental proceeding filed in Probate on December 28,1967, by the beneficiaries of a testamentary trust created under the Last Will and Testament of Zaverio Tognotti seeking to recover from the estate of Catherine L. Tognotti certain assets which she allegedly held as a life tenant under the will of Zaverio Tognotti, her husband, and requesting an accounting.

The principal issue is whether the shares of stock which Catherine received as a life tenant with the power to convey under her husband’s will and which, along with additional shares received from stock splits that were registered in her name at the time of her death passed under her will or that of her husband.

Zaverio Tognotti died testate on June 20, 1985, and was survived by his wife, Catherine, no children having been born to or adopted by them. His Last Will and Testament was duly admitted to Probate, and Catherine

was appointed executrix of his estate. The provisions pertinent to this controversy under his will are as follows:

SECOND: After payment of said debts and funeral expenses, all the rest, residue and remainder of my property, real or personal, and wheresoever situate, whereof I may die seized or possessed, or to which I or my estate may be in any manner or to any extent entitled, or as to which I may have any power of appointment, I give, devise and bequeath to my beloved wife, Catherine Tognotti, to have hold, use and enjoy for and during the time of her natural life, with the right to sell, mortgage, pledge, invest expend, give away, and otherwise dispose of and deal with the same, or the proceeds thereof; and after her death, if there be anything left, I give, devise and bequeath the same in equal shares to the persons and in the manner designated in the following paragraph.

In the third paragraph of his Will, Zaverio Tognotti, designated Pompilio Piccinini as trustee “of whatever is left of my estate” until the youngest of certain grandnephews and grandnieces reached twenty-one, at which time the estate was to be distributed.

On October 21, 1985, Catherine filed an inventory listing shares of stock in American Telephone and Telegraph Company, Hecla Mining Company, International Telephone and Telegraph Corporation and Peoples Gas, Light & Coke Company. In 1936, she caused the certificates in A. T. & T. and Hecla Mining to be cancelled, and new certificates were issued to her in the name of “Mrs. Catherine L. Tognotti, life tenant under the Will of Zaverio Tognotti” and “Mrs. Catherine L. Tognotti, life tenant” respectively. In the same year she also caused the I. T. & T. and Peoples Gas shares to be can-celled and certificates to be issued in the name of “Catherine L. Tognotti.” In 1965, Mrs. Tognotti had the A. T. & T. and Hecla Mining shares cancelled and re-registered in the name of “Mrs. Catherine L. Tognotti.” During her lifetime Catherine L. Tognotti received additional shares as the result of stock splits which were registered in her name.

Catherine died on March 27, 1967, and her Will was duly admitted to Probate. Letters Testamentary were issued to Margaret Ginocchio who was also the sole beneficiary under Catherine’s will. Included in Catherine’s estate were shares of stock in the four aforementioned corporations which were directly traceable through certificate numbers to the shares of stock received by her in these companies from her husband’s estate, along with additional shares due to stock splits.

This proceeding was then filed in Probate from which it was transferred to the Chancery division. The cause was considered on the basis of the verified pleadings filed by the parties, a stipulation of facts and the evidence deposition of William J. Tognotti.

Thereafter, a decree was entered containing certain detailed findings, among which were the following:

Zaverio intended to leave his wife a life estate in the disputed assets with a power of disposition during her lifetime with the provisions that any part of such assets that remained in her possession at her death would pass to the trustee of the trust he created under his will. It was not his intention that his wife would have the power to dispose of any of the assets which remained in her possession at her death by her will or as part of her estate. The shares of stock of the four aforementioned corporations which were in Catherine’s possession at the time of her death were directly traceable to the shares which she received from her husband as a life tenant. Such shares were not part of her estate and were wrongfully included in the inventory. The transfers by Margaret Ginocchio of this stock into her own name were in derogation of the rights of the trustee under Zaverio’s Will.

A judgment was entered against Margaret Ginocchio for dividends collected by her, and she was ordered to deliver the stocks in question to the named successor trustee of the trust created under Zaverio’s Will. The court retained jurisdiction to determine the persons constituting the class of beneficiaries of the trust. The court pursuant to Supreme Court Rule 304 expressly found that there was no just reason to delay the enforcement or appeal of the decree which disposed of the controversy between the Executor of Catherine’s estate and the claimants to the trust under Zaverio’s Will. This appeal has been taken from that decree by Margaret Ginocchio individually and as Executrix of the Estate of Catherine L. Tognotti.

A life estate in personal property has long been recognized in Illinois. Dickinson v. Griggsville Nat. Bank, 209 Ill 350, 70 NE 593. A life estate may include, as this one did, a power to dispose of the subject of the estate which if exercised will defeat the interest of the remaindermen. In re Estate of Cashman, 134 Ill 88, 24 NE 963. The question in this case is whether the action of Catherine Tognotti in changing the registration of the shares of stock to her individual name without designation as a life tenant was a disposition under the will which defeated the remaindermen.

It is clear from the terms of the will that it was Zaverio’s intention that his wife, Catherine, have a life estate in the securities. He explicitly provided how and to whom any which remained at her death were to be distributed. To provide for Catherine’s support, Zaverio gave her the power to dispose of all the shares in her lifetime. She could have sold them, or under the terms of the will, even given them away. However, we do not think that her causing the shares to be registered in her individual name without designation as a life tenant was a disposition of the stock. No cases have been cited to us in support of this proposition. The fact that the large corporations were willing to so alter the stock certificates did not give Catherine Tognotti absolute title to the stock so as to defeat the remainder interest of the testamentary trustee under Zaverio’s Will.

In Cales v. Dressler, 315 Ill 142, 146 NE 162, the testator gave his wife a life estate with the power to sell, but also provided that whatever was left at her death be divided among certain named devisees. The widow conveyed part of the real property during her lifetime to a third person, who reconveyed it to her in order that the property might pass under her will rather than that of her husband. The court held that to sustain a conveyance for such a purpose would permit a mere subterfuge to defeat the testator’s intention and ordered that the property pass by the husband’s will. Similarly, in Henderson v. Blackburn, 104 Ill 227, the court held that the issuance of a deed to another in which the widow retained a life estate in the property was an ineffective attempt to make a testamentary disposition of the property.

So it is in the case at bar. Catherine Tognotti still held control over the property at the time of her death. She had not disposed of it. The language of Zaverio’s Will is unmistakable. His denial of a power of testamentary disposition is explicit because it states “if there be anything left” it is to go to a named trustee. Every phrase and word of a Will must be given effect, and none may be rejected as surplusage. Western & Southern Indemnity Co. v. Industrial Commission, 366 Ill 240, 243, 8 NE2d 644. The words “if there be anything left,” must be given their natural meaning, that is, all property which Catherine received from Zaverio and which she still owned at the time of her death passed to the trustee under Zaverio’s Will, and not, under Catherine’s Will. The property, therefore, was not a part of her estate, but passes under her husband’s will.

It is also contended that the court erred in allowing the filing of an evidence deposition which was actually an attempt to make heirship. The trial judge made it clear that he was not accepting this deposition as a proof of heirship, but only for the purpose of determining whether proper parties brought this action. We find no error. There is also no merit to the contentions that the gift of the remainder to the trustee was a contingent remainder and, therefore, no trust could exist or that the court erred in refusing to require the claimants to file and post a bond for costs.

For the reasons stated, the decree of the Circuit Court is affirmed.

Affirmed.

MURPHY and ADESKO, JJ., concur.