author: MR. JUSTICE BURMAN

text:
    Weather-Gard Industries, Inc., Plaintiff-Appellant, v. Fairfield Savings & Loan Association, Defendant-Appellee.
    Gen. No. 53,301.
    First District, First Division.
    April 21, 1969.
    Albert E. Jenner, Jr., and John G. Stifler, of Chicago (Raymond, Mayer, Jenner & Block, of counsel), for appellant.

      David L. Gomberg and Robert J. Sharfman, of Chicago (Gomberg, Levin and Rosen, of counsel), for appellee.
   MR. JUSTICE BURMAN

delivered the opinion of the court.

This appeal is taken from a summary judgment entered in the Circuit Court in favor of the defendant, based solely on the pleadings and sworn statements contained in answers to interrogatories and on the deposition of plaintiff’s president. The plaintiff, Weather-Gard Industries, Inc. (hereinafter referred to as Weather-Gard), had filed a complaint in four counts against the defendant, Fairfield Savings & Loan Association (hereinafter referred to as Fairfield) for breach of contract to provide financing for home improvements.

In Count I of its amended complaint, Weather-Gard alleged that it had completed four home improvement contracts with its customers entitling it to receive funds which Fairfield offered to provide with respect to each account. In Count II plaintiff complained that Fairfield refused to provide financing for 26 additional home improvement contracts which plaintiff had partially fulfilled in reliance upon Fairfield’s promise to provide financing. Plaintiff alleged in Count III that Fairfield required plaintiff’s president to execute an invalid contract under conditions amounting to duress, whereby Fairfield unlawfully withheld over $52,000 from an $82,000 “reserve fund” on executed home improvement contracts.

It is necessary to set out the pleadings in some detail. The plaintiff alleged in Count I that in accordance with the usual, customary and normal procedure, it secured sales contracts for remodelling jobs from four named customers. Various notices from Fairfield were sent to these customers for home improvement loans, copies of which were sent to Weather-Gard indicating the credit of the customers to be satisfactory and indicating defendant’s intentions to make the loan by disbursing the funds when all necessary documents, including a certificate indicating that the work had been completed, were received in proper order. Based upon the intent and offer of the defendant, plaintiff completed all the work and delivered the various documents requested by the defendant, but defendant returned the documents and refused to pay plaintiff the sum due under said contracts. It was further alleged that a contract existed between the parties by virtue of the offer of defendant by sending advance notices to the applicant and dealer for a home improvement loan and the acceptance thereof by the customer and plaintiff; or, in the alternative, that by virtue of a course of dealing in accordance with the usual, customary and normal procedure a contract exists between the parties by virtue of plaintiff’s performance based upon the intent of defendant to disburse the funds upon completion of the work; or, in the alternative, the defendant should be estopped to deny that a contract exists between the parties, having placed plaintiff in the position of completing the work after indicating defendant’s intention to make the loan.

Count II realleges the foregoing allegations and sets forth 26 additional contracts under which plaintiff had expended substantial amounts of time and money. It alleged that plaintiff was ready, willing and able to complete all of the work and to deliver all the necessary documents upon completion of the work; that all the contracts and contract purchasers were approved by defendant in writing and defendant agreed to accept the loan on completion of the work prior to the commencement of any work by plaintiff; and that plaintiff commenced work on each of said contracts, but subsequent to the commencement of said work and after expenditures were made by plaintiff, defendant notified plaintiff that defendant would not accept such approved “deals.” As a result of the unilateral action of defendant, the plaintiff alleges that it suffered damages and loss of profit.

In Count III plaintiff sought to nullify a “reserve agreement” which provided that 10% of each loan, except F. H. A. loans, were to be withheld by defendant until final cash disbursement of the gross amount of the contract. Weather-Gard alleges that because there was an absence of consideration and because they had agreed to Fairfield’s terms under duress, the “reserve fund” should be returned.

The defendant filed an answer to all counts of the complaint. In its answer to Count I Fairfield denied that a contract existed between plaintiff and defendant by virtue of an offer by defendant in the form of sending of advance notices to the loan applicants and plaintiff, and denied acceptance thereof by the applicant or plaintiff. The defendant further denied that its dealings with plaintiff gave rise to a contract between it and plaintiff and denied that a contract to purchase said notes existed by virtue of plaintiff’s performance based upon defendant’s intention to disburse funds upon completion of work and presentation of documents. The defendant further denied that plaintiff is entitled to invoke an estoppel against it thus denying it the right to deny the existence of a contract by virtue of plaintiff’s having allegedly completed the work under its various contracts on the strength of defendant’s intentions in the advance notice.

The defendant answered Count II of Weather-Gard’s complaint by denying that there was at any time an offer pending, in the form of said advance notices, or that said advance notices constituted an offer by the defendant, that its dealings with plaintiff gave rise to a contract between it and plaintiff, and that a contract to purchase said notes existed by virtue of plaintiff’s partial performance based upon disbursed funds upon completion of work and presentation of documents; denied that plaintiff was ready, willing and able to complete all the work as described or that plaintiff suffered losses. The defendant further denied that plaintiff is entitled to invoke an estoppel against it.

Fairfield’s answer to Count III denied that default occurred on only a few contracts or that it unjustly or unlawfully holds a reserve balance of $52,000 or that plaintiff is entitled to same. Defendant denied that plaintiff is entitled to documents on the defaulted contracts. Further answering, defendant stated that the rights and remedies of the parties are as set forth in the reserve agreement and not otherwise.

The defendant also set up an affirmative defense to the first two counts of the plaintiff’s complaint. Briefly stated, the defendant maintains that no contract exists by reason of the advance notice documents in that there was never any offer intended by the defendant to purchase said loans by virtue of said documents; that the advance notice document was merely an expression of defendant’s approval of credit of the borrower and no more than an invitation for an offer by plaintiff; that notwithstanding any course of dealings, defendant never intended to enter into a contract with plaintiff with respect to the purchase of said loans; that there was no mutuality of contract existing between the parties with respect to an agreement to purchase the contracts; and that the defendant’s refusal to purchase the notes and contracts was conditional upon plaintiff’s nonperformance on previous job complaints. A reply was filed to the affirmative defense by plaintiff.

The question before this Court is whether the trial court properly entered a summary judgment against the plaintiff. The right to the entry of a summary judgment is created by statute (Ill Rev Stats 1967, c 110, § 57, supplemented by rules 191 and 192 of the Supreme Court, Ill Rev Stats 1967, c 110A, §§ 191, 192). Summary judgment procedure is intended to avoid the expense and delay of a trial where there are no issues of fact, and such judgment can only be granted where there are no triable issues before the court. Section 57 of the Civil Practice Act provides that the plaintiff or defendant may move for a summary judgment with or without supporting affidavits for all or any part of the relief sought; that the opposite party may file counteraffidavits, and that judgment shall be rendered if the pleadings, depositions and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. Printing Mach. Maintenance v. Carton Products Co., 15 Ill App2d 543, 147 NE2d 443.

In the case at bar, the plaintiff contends that the trial court erred in granting defendant’s motion for summary judgment on the ground that the present case provides a classic example of a unilateral offer which ripens into a contract when the promisee partially or completely performs the acts required of him and that there was a valid contract as a matter of law. The offer, plaintiff maintains, is contained in the advance notice Fairfield sent to the plaintiff’s customers. A copy of this notice was customarily sent to the plaintiff as well. The notices read:

We have found the credit of-to be satisfactory for the net amount of $-for-months under Title 1 of the National Housing Act. Then appears a heading “Weather-Gard Ind.” Under this heading it is stated “The face amount of the note will be $-which includes finance charges and will be payable in installments of $-per month. It is our intention to make this loan by disbursing the funds to you when all necessary documents including a certificate indicating the work has been completed, are received in proper order, but not earlier than six days from this date. If you have any questions regarding this transaction, or if we can be helpful in any way, kindly let us hear from you within six days from this date.

The defendant, Fairfield, argues, however, that its offer is a conditional offer made to a customer of the plaintiff, not to the plaintiff. “A plain reading of the ‘notice’ reveals that it is not addressed to the plaintiff.” However, the exhibits show that 16 of the 30 notices attached to the amended complaint are specifically directed “To Weather-Gard” and contain the heading “Advance Notice of Approval to Dealer for Property Improvement Loan.” In several instances the word “dealer” was substituted for “Applicant.”

The principal case relied upon by the defendant in support of this point is L. B. Herbst Corp. v. Northern Illinois Corp., 99 Ill App2d 101, 241 NE2d 125. There the offer to finance was directed by the defendant company to a third party, not the plaintiff. The third party rejected the tender of performance as not fulfilling the terms of the contract. Furthermore, this finding was based on disputed evidence which was resolved only after a full trial. We cannot see why Herbst is applicable on the facts to the case before us.

The defendant also maintains that Weather-Gard had already signed a contract with its customer at the time Fairfield was first contacted by the plaintiff. Nothing the defendant could have done would have altered or improved upon the agreement already existing between the plaintiff, who was obligated to do the work, and the customer, who was obligated to pay the plaintiff for it. The plaintiff gave up nothing and received nothing to which it was not already entitled to under the terms of its agreement with its customer. It is argued that there was no mutuality between the parties (plaintiff and defendant) and that the plaintiff’s interrogatory shows that plaintiff “did not feel legally obligated to the defendant to bring all (or any) of its business to this lender.”

Weather-Gard’s complaint alleged that Fairfield was their sole source of finance for the previous two and one-half years. In his deposition, Jack Ogron, president of Weather-Gard, stated that practically 100% of its financial dealings during the two and one-half years preceeding the initiating of the present action was with Fairfield. His understanding was that when he brought Fairfield a “deal” they would consider it, or reject it, and if approved it was with an understanding that he would submit all the necessary papers before payment would be made by Fairfield. It appears from the record before us that in those transactions completed before the present action was brought, that when the plaintiff previously brought in the necessary papers payment was made by Fairfield.

It is an elementary principle that where a party publishes an offer to the world and before it is withdrawn another acts upon it, the party making the offer is bound to perform his promise. 17 Am Jur2d, Contracts, § 45 (1964). A similar position is taken in the Restatement of Contracts, § 45, which states:

If an offer for a unilateral contract is made, and part of the consideration requested in the offer is given or tendered by the offeree in response thereto, the offeror is bound by a contract, the duty of immediate performance of which is conditional on the full consideration being given or tendered within the time stated within the offer, or, if no time is stated therein within a reasonable time.

Also, in many cases it may fairly be said that the party making an offer has impliedly made performance a sufficient acceptance or has waived notice of acceptance. 17 Am Jur2d, Contracts, § 45 (1964).

The defendant cites Streich v. General Motors Corp., 5 Ill App2d 485, 126 NE2d 389, to support its claim of lack of mutuality. In Streich this Court struck down an alleged requirements contract to purchase and sell certain automobile parts as lacking mutuality of obligation. The purported agreement in Streich was bilateral and the Court used the traditional concept of mutuality to test its validity. In the case at bar, however, the alleged agreement is unilateral. In this situation, mutuality as delineated in requirements contract cases is an inappropriate vehicle for analysis since by its very nature a unilateral contract lacks the mutuality of obligation found in a bilateral contract. 1A Corbin, Contracts, § 152, pp 4-6 (1963 ed). For this reason we find the Streich case to be inapposite to the case before us.

The defendant argues that even assuming arguendo that the advance notice was an offer, it was a conditional offer of a unilateral contract. It could only be accepted by complying with all of the conditions of the so-called offer. One of the conditions was the production of a certificate showing that all the work called for by the plaintiff’s agreement with customers was completed. “Not one job described in Count II of the complaint was ever completed.”

The defendant’s argument that a unilateral contract can only be accepted by complete performance ignores the fundamental premises underlying the Restatement of Contracts, § § 45, 90. Both of these sections recognize that acceptance can be based upon part performance. Also, both sections codify the doctrine which gives effect to the promisee’s claim even though the promisor has withdrawn his offer prior to complete performance. Thus, we do not feel that the defendant’s argument and the case cited to support it (Campbell Inv. Co. v. Taylor, 246 Ill App 433) are controlling in the case at bar.

In Count III of the amended complaint plaintiff claimed that its president was coerced into executing a “reserve agreement.” The defendant answers that the best evidence of the lack of actual duress is the adamant position taken by the other officer of the plaintiff present at the execution of the documents that the agreement not be signed. Without considering the merits of either side we must remark that the issue of duress generally is one of fact, to be judged in light of all the circumstances surrounding a given transaction, and we do not believe that the summary judgment proceeding was the proper place to resolve this factual question in the case at bar.

The defendant bolsters its contention of lack of duress by quoting from Stoltze v. Stoltze, 393 Ill 433, 66 NE2d 424. We do not find that Stoltze is determinative of the instant case in that it merely sets forth the general guidelines for judging duress and does not resolve the issue presented by the facts as pleaded in the instant case.

The essence of a motion for summary judgment is that there is no genuine issue of material fact, and that the moving party is entitled to a judgment as a matter of law. Whether an enforceable obligation or a binding agreement arose by reason of Fairfield’s notices to plaintiff and to its customers approving their credit and the extent to which plaintiff relied upon the notices are issues of material fact which can only be properly determined at trial. In our opinion, there are genuine issues of fact to be decided in all three counts. The absence of counteraffidavits to defendant’s motion for summary judgment does not affect our decision in view of the verified complaint, answers to interrogatories and sworn deposition of the plaintiff’s president.

We have purposely refrained from detailing many of the factual issues upon which we have arrived at our determination because much of the facts are in the form of allegations at this stage of the proceedings and have not been reduced to evidence upon trial. We desire to emphasize that nothing we have said is intended, or is to be construed, as an expression on the merits of the case.

The summary judgment order also recites that Fair-field voluntarily requested that their counterclaim be dismissed without prejudice and it was so ordered. It is plain that this was due to the entry of summary judgment in its favor.

Accordingly, the judgment of the Circuit Court is reversed and the cause is remanded with directions to overrule the defendant’s motion for summary judgment, to reinstate Counts I, II and III of plaintiff’s complaint and to reinstate the defendant’s counterclaim.

Reversed and remanded with directions.

ADESKO, P. J. and MURPHY, J., concur.

       The fourth count of the complaint was abandoned by plaintiff during oral argument.

       We note that Campbell involved a single transaction between the parties whereas in the case at bar a series of similar transactions were entered into by the plaintiff and defendant.


source: Caselaw Access Project

author: MR. JUSTICE BURKE

license: Public Domain

text:
    Ruth Cook Norris, Plaintiff, Cross-Appellant, v. Drake Associates, Inc., f/k/a Drake Personnel, Inc., Defendant, Cross-Appellee. Drake Associates, Inc., f/k/a Drake Personnel, Inc., Counterplaintiff, Cross-Appellee, v. Ruth Cook Norris, Cook Associates, Inc., and Marvin S. Fenchel, Counterdefendants, Cross-Appellants.
    Gen. Nos. 52,500, 52,526. (Consolidated.)
    First District, Second Division.
    April 22, 1969.

      Berger, Newmark & Fenchel, of Chicago (Harry D. Lavery, of counsel), for appellants.
    James B. Martin and John D. Vosnos, of Chicago, for appellees.
   MR. JUSTICE BURKE

delivered the opinion of the court.

Ruth Cook Norris filed an action for an accounting and the recovery of commissions which Drake Associates, Inc., an employment agency, allegedly owed to her for placements she made while in Drake’s employ as an employment placement counselor. Drake counterclaimed, requesting an injunction and damages against Norris, Cook Associates and Marvin Fenchel on the ground of an alleged combination to steal Drake’s business records, clients and employees. Norris, Cook Associates and Fenchel thereafter filed claims under section 41 of the Civil Practice Act for recovery of their reasonable expenses and attorneys’ fees incurred by reason of Drake’s alleged untrue pleadings, made without reasonable cause and not in good faith.

The matter was referred to a master in chancery who heard extensive evidence and received numerous exhibits. The master’s report recommended a money judgment for Norris on her complaint, a judgment against Drake on its counterclaims, and a judgment taxing Drake with the master’s fees. The master also found that Drake’s pleadings were untrue and made without reasonable cause and not in good faith, concluded that Norris, Cook Associates and Fenchel were entitled to recover their reasonable expenses and attorneys’ fees, and recommended that proofs thereof be taken by the chancellor.

Judgment was entered by the chancellor in favor of Norris on her complaint and against Drake on its counterclaims. Drake appealed that judgment to this Court. (General Number 52,500.) A subsequent judgment was entered by the chancellor taxing the master’s fees against Drake and denying the section 41 relief requested by Norris, Cook Associates and Fenchel. Drake appealed from that part of the second judgment taxing the master’s fees, and Norris, Cook Associates and Fenchel cross-appealed from the denial of the section 41 relief. (General Number 52,526.) Both appeals, General Numbers 52,500 and 52,526, were consolidated for consideration in this Court. This Court on June 12, 1968, dismissed both appeals taken by Drake and ordered the parties to proceed upon the cross-appeal in General Number 52,526 alone.

The sole issue raised here is the propriety of the chancellor’s determination that Norris, Cook Associates and Fenchel (plaintiff and counterdefendants) were not entitled to relief under section 41 of the Civil Practice Act. Section 41 gives a party the right to recover reasonable expenses and attorneys’ fees from an offending party incurred by reason of the untrue pleadings, made without reasonable cause and not in good faith, filed by the offending party.

The original complaint, filed in September 1964, alleged that on and prior to July 26, 1962, Norris was employed by Drake as an employment counselor pursuant to an oral contract. It was alleged she was to receive as compensation an amount equal to 35% of all commissions received by Drake on placements made through her efforts and 5% of all commissions received by Drake on placements made by the other Drake employment counselors. The complaint alleged that Drake was indebted to Norris for unpaid compensation in an amount which could be determined only by an examination of Drake’s books and records, and that Drake refused Norris access to the books and records.

Drake’s answer, verified by Drake Vice-President John F. Schmidt, admitted that plaintiff was in Drake’s employ on and prior to July 26, 1962, and denied the balance of the allegations contained in the complaint.

Together with its verified answer, Drake filed a counterclaim against Norris. The counterclaim alleged that Norris had been employed by Drake, that it was agreed between the parties that Norris was to receive 35% of all commissions received by Drake on placements made by Norris, and that on July 28, 1962, Drake and Norris stated an account as to the amount due Norris, which Drake in fact paid to her. It was further alleged that Norris, when she terminated her employment with Drake, took with her certain records belonging to Drake, that she organized her own employment agency and that she had solicited Drake’s employees and clients to deal with her agency. The counterclaim was also verified by Schmidt.

On September 21, 1964, notice was served upon Drake that a deposition was to be taken of its President, Lon Barton; the notice further directed that Drake produce all placement invoices for the period of January 1962, through September 1962. At his November 2,1964, deposition, Barton testified that Drake had copies of the previously requested invoices, but he refused to produce them on advice of counsel. A notice of deposition to be taken of Vice-President Schmidt and Era Moore, Drake’s controller, which was dated November 16, 1964, further directed that the said invoices be produced. A court order of December 1, 1964, also directed the production of these documents. At his later deposition on January 5, 1965, Barton testified that he did not have the said invoices and that “we do not keep those.” Moore testified at his deposition on January 12, 1965, that the said invoices had been destroyed on his order in late December 1964 or early January 1965. On February 15, 1965 the cause was referred by the chancellor to the master in chancery who began taking proofs.

Ruth Cook Norris testified that she had experience in employment placement and counseling prior to 1951 and that from 1951 to 1953 she held a position in an employment agency owned by Drake’s President, Barton. Between 1953 and July 26, 1962, she was employed by Drake, first as a placement counselor, then as a supervisor, and finally as manager of Drake’s operations. She testified that, as manager, she received as compensation 35% of all commissions received by Drake on placements made by her and 5 % of the commissions received on placements made by the rest of the Drake employment counselors. She further testified that after a client was placed in a position, a fee invoice was sent to the employer; the time when payment of the commission was made by the employer varied with each account.

Norris testified that at the time she left Drake she had no agreement with Drake to forego any commissions to which she was then entitled for placements which had been made, nor did she enter an account stated with Drake in this regard. On July 28, 1962, two days after she terminated her association with Drake, Norris furnished Drake with a statement of all pending accounts, and denied that she ever furnished Drake with an account of the monies due her.

Norris testified that she opened an employment counseling agency, Cook Associates, Inc., (counterdefendant) sometime after Labor Day in 1962 with the aid of an attorney, counterdefendant Marvin Fenchel. Several persons previously connected with Drake later joined Cook Associates, and to the best of Norris’ knowledge none of them brought with them any documents pertaining to Drake’s operations. Norris further testified that she did not take any matters belonging to Drake with her when she left Drake, and that she at no time saw any matters belonging to Drake in Cook Associates’ offices.

Richard Morgan testified for Drake and stated that he had been in the employ of Cook Associates between October 1964 and May 1965. Prior to his employment at Cook, he had been employed as a counselor by Drake. He testified that he saw Drake Exhibits 1-4 in the Cook offices in late April or early May 1965. The exhibits consisted of two Drake placement resumé cards for Clifford Thompson and for H. B. Ely, and two Cook invoice notices for their respective placements. He testified that in mid-April 1965 he observed a subpoena duces tecum tacked to the bulletin board at Cook Associates, and that Norris told him that if he had anything on his desk which did not belong to Cook he should dispose of it. He testified that this occurred about a week before he received Exhibits 1-4 from Norris when she threw them on his desk. He stated that he did not know why Norris gave the cards to him and that she did not instruct him what to do with them.

In early May 1965, Morgan contacted Barton and was promised $3,000 and certain legal services in return for Exhibits 1-4. A few days later Morgan and Barton met again, with Barton’s attorney, and the exhibits were turned over to Barton. Morgan was asked by Barton whether he knew of any other materials at Cook Associates which belonged to Drake and Morgan replied in the negative. Prior to leaving Cook Associates, Morgan had received $1,100 from Barton and expected that he would receive the balance of the $3,000 at the conclusion of this litigation. Morgan testified that Exhibits 1-4 were the only documents belonging to Drake in his possession and that he brought everything he had pursuant to a subpoena duces tecum.

On August 23, 1965, Drake filed a second amended answer denying that Norris was an employee of Drake between January 1, 1959, and the date this action was instituted and denying any obligation or agreement on Drake’s part to pay her commissions. An account stated was again affirmatively pleaded as well as an oral agreement between Norris and Drake that the latter’s obligations to her ceased whenever she terminated her employment with Drake.

Drake also filed a supplemental counterclaim, verified by Moore, naming Cook Associates and Marvin Fenchel as additional counterdefendants. The supplemental counterclaim alleged that Norris and Fenchel confederated to organize Cook Associates and to solicit Drake’s associates and business; that Norris dealt with Drake after January 1, 1959, as an independent contractor; that Norris and the persons from Drake who were induced to leave Drake to go with Cook Associates took with them numerous papers, files, etc., belonging to Drake; that, upon advice of counsel, Norris ordered the destruction of all records and matters belonging to Drake which were in the possession of Cook Associates; and that all said matters were destroyed with the exception of 280 exhibits which Drake would produce at trial. Norris, Cook Associates and Fenchel’s verified replies to the amended counterclaim controverted the affirmative allegations contained therein, and further requested relief under section 41 of the Civil Practice Act.

Drake resumed its proofs on November 1, 1965, and Schmidt testified that Norris submitted to him, on July 28, 1962, a statement of all her pending placements. He further testified that she received as compensation 35% of the commissions received by Drake on all placements made by her, and 5% on the “Drake people she supervised.”

Norman Mayell testified that he had worked as a placement counselor for Cook Associates in 1962 and 1963, and that he made the placements connected with Exhibits 1-4. He stated that he made the Ely placement about November 26, 1962, and the Thompson placement sometime thereafter. He testified that he had previously worked for Drake and that when he left Drake in August 1962 he took with him some placement cards, which had been available in quantity to all Drake counselors, and which he used while at Drake and after he left Drake. Mayell testified that he received part of the Ely information while at Drake and that he took the blank Ely card with him when he left because he considered it his personal record of Ely. The Ely card was then in blank form and Mayell later completed the card through his own efforts. The Thompson card was also blank when Mayell came to Cook Associates. Mayell testified that he never showed the cards to Norris nor to anyone else connected with Cook Associates. Placement cards bearing the name of Drake, marked as Drake Exhibits 5-280, were also shown to Mayell who testified that while he may have had occasion to use some of the cards while he was at Drake, he did not take any of them when he left.

Richard Morgan again testified and stated that while he was with Cook Associates he had possession of Exhibits 5-280. He took them with him when he left Cook in April 1965 and gave them to Barton’s attorney in August 1965. He testified that the conversations which Norris had with the Cook counselors concerning the discarding of matters in their possession which did not belong to Cook was a reaffirmation of Cook general policy in that regard. He also testified that when he told Barton and Barton’s attorney that he did not have any Drake documents in his possession while at Cook Associates other than Exhibits 1-4, he was being untruthful with them.

John Schmidt again testified and stated that he observed at least 70% of Exhibits 5-280 in a drawer in Mayell’s desk the day before Mayell left Drake, and that although they were missing after Mayell had left, he had no actual knowledge of where they were after Mayell’s departure. He testified that he could associate some of the cards with the cards he observed in Mayell’s desk because he could remember some of the names on the cards; however, the witness was unable to recall any of those names “without seeing the card and getting the overall impression.”

Clifford Thompson testified that his wife prepared the Thompson card about July 31, 1962, and mailed it to Mayell at Drake. The first time Thompson met Mayell was at Cook Associates. He accepted the position secured through Mayell’s efforts about the middle of October 1962.

Lon Barton testified that Norris’ commission on placements was 35% on the placements made by her and an “override” of 5 % on the placements made by other counselors brought in by her. In an earlier disposition, however, he testified that Norris received 5% on “whatever the counselors brought in, individually, themselves.” He was unable to recall any counselor at Drake for whose work Norris did not receive the 5 % override. He further testified that Norris was never a manager at Drake, but in his earlier deposition he testified that she had been the manager of Drake’s operations.

Norris testified under section 60 and stated that six Drake counselors eventually joined Cook Associates. She testified that she did not see either the Ely card or the Thompson card until the instant trial. Norris also testified that she secured clients through various personnel directories and advertised the opening of Cook Associates in various newspapers.

Era Moore, Drake’s controller, testified that Exhibits 5-280 were given to Barton by Morgan in October 1965.

Barton was called in rebuttal under section 60 and testified that he did not know of any account stated between Drake and Norris. He further testified that there was a sizable turnover of counselors at Drake, they “were coming and going.”

Mayell testified in rebuttal that he did not take Exhibits 5-280 with him when he left Drake, and that at no time did Norris solicit him to leave Drake. Norris again testified and denied that she gave Morgan Exhibits 1-4 and stated that she left all Drake material at Drake when she resigned her position there.

The master’s report was filed June 29, 1966, and found, inter alia, that in late 1959 or early 1960 Norris became manager of Drake, thereafter receiving compensation at a rate of 35 % on all commissions received by Drake from placements made by her and a 5% override on all commissions from placements made by all other Drake counselors. When she resigned from Drake, Norris submitted a letter to Drake detailing all placements pending at the time; she also requested payment of the commissions due her as of that time. When she left Drake, Norris took no names, addresses, documents, or the like, belonging to Drake. When Mayell came to Cook Associates from Drake, he brought with him the Ely and Thompson cards, but that this was unknown to Norris and Cook Associates.

The report further found that the business of Cook Associates commenced through newspaper advertising and word-of-mouth contact, and clients were secured through various personnel directories. Norris did not solicit any of the Drake counselors who subsequently came to Cook Associates.

The master found that Morgan, Drake’s witness, was totally unreliable, that he admitted perjury and also admitted lying to Barton and others. Since Morgan was the source of Drake’s Exhibits 1-280, the master gave no credence to that testimony.

The master concluded that Norris was entitled to recover a money judgment against Drake as prayed in her complaint. It was further concluded that there was no evidence to support Drake’s counterclaims, with the single exception of Mayell’s use of the Thompson placement card while at Cook Associates. The master made special findings that the overwhelming majority of Drake’s pleadings, both its answers and counterclaims, were not substantiated by the proofs and concluded that Norris, Cook Associates and Fenchel should be allowed the relief requested under section 41. The report recommended that the chancellor take proofs pursuant to section 41 for the purpose of determining the expenses and attorneys’ fees incurred by Norris, Cook Associates and Fenchel because of those untrue pleadings, made without reasonable cause and not in good faith.

Drake filed a motion to suppress the report which was denied on July 28,1966. Drake then filed objections to the report, specifically objecting to the finding that Norris, Cook Associates and Fenchel were entitled to relief under section 41 on the grounds that the master gave an “opinion” in this regard and also that the master’s actions were not within the scope of the general reference from the chancellor. Alternatively, if the master’s action was within the scope of the reference order, it was argued that the findings were made without a trial as required by section 41 and that such trial could only be conducted by the chancellor and not delegated to the master. Also objected to was the recommendation that the chancellor hear proofs as to expenses and attorneys’ fees. The objections were overruled and were allowed to stand as exceptions to the report.

The matter with respect to the section 41 relief was re-referred to the master who was ordered to file a supplemental report detailing which of the allegations and/or denials in the Drake pleadings were found to be untrue and made without reasonable cause and not in good faith. The master thereafter filed a supplemental report specifically enumerating those portions of the Drake pleadings which were untrue and made without reasonable cause and not in good faith. A motion to suppress the supplemental report, filed by Drake, was denied by the chancellor and an order was entered disapproving portions of the original report dealing with the section 41 relief and also disapproving the supplemental report.

The chancellor entered his second judgment which taxed the master’s fees against Drake and Drake appealed. The judgment also provided that no section 41 relief be allowed Norris, Cook Associates and Fenchel, from which they filed this cross-appeal.

The foregoing summary of the pleadings and evidence clearly supports the master’s findings that many of the Drake allegations and denials were untrue and made without reasonable cause and not in good faith. Under the circumstances the master was correct in concluding that Norris, Cook Associates and Fenchel (plaintiff and counterdefendants) were entitled to recover reasonable expenses and attorneys’ fees and in recommending that the chancellor hold a hearing thereon. Ready v. Ready, 33 Ill App2d 145, 157-62, 178 NE2d 650; Ill Rev Stats 1967, c 110, par 41.

Drake’s contention that Norris, Cook Associates and Fenchel failed to show that Drake’s pleadings were not made in good faith is unavailing. A serious doubt is cast upon the good faith of Drake by its allegations that Norris dealt with Drake as an independent contractor, whereas Drake’s president first testified that she was Drake’s manager but later testified that she was not the manager, merely an employment counselor; denials that Norris was entitled to the 35% and 5% commissions, whereas Drake’s president and others connected with Drake testified that she was compensated on that basis for her services; Barton’s promise to pay Morgan $3,000 and to supply him with legal services in another matter, in return for Morgan’s testimony and the exhibits; the destruction of the placement invoices by Drake after the demand and order that they be produced at the several depositions, and the like.

Drake further contends that the master, under the general order of reference from the chancellor, had no power to make findings, conclusions and recommendations as to section 41 relief. Although section 41 provides that expenses and attorneys’ fees are “to be summarily taxed by the court at trial,” that section does not preclude a master from taking proofs and making findings with respect to the relief requested. Whether a party is entitled to section 41 relief should be determined by the same judicial officer who hears the evidence on the issues in the action. (Boss v. Coe Inv. Co., 45 Ill App2d 417, 424, 195 NE2d 735.) The general order of reference required the master to hear all issues raised by the pleadings, including the subsequently filed amended counterclaim as well as the subsequently filed claim for section 41 relief. It should also be noted that the chancellor, after the master had submitted his first report, re-referred the matter to the master for a supplemental report specifically finding which of Drake’s allegations and/or denials were found to be untrue and made without reasonable cause and not in good faith.

For these reasons the judgment as it applies to the requested section 41 relief is reversed and the cause is remanded with directions to hold a hearing on the reasonable expenses and attorneys’ fees incurred by plaintiff and counterdefendants pursuant to Section 41 of the Civil Practice Act, and to enter judgment thereon.

Judgment reversed and cause remanded with directions.

LYONS, P. J. and McCORMICK, J., concur.


author: PRESIDING JUSTICE LYONS.

text:
    People of the State of Illinois, Plaintiff-Appellee, v. George Funches, Otherwise Called George Eldorado, Defendant-Appellant.
    Gen. No. 52,685. (Abstract of Decision.)
    First District, Second Division.
    April 22, 1969.
    Gerald W. Getty, Public Defender of Cook County, of Chicago, for appellant;
    Edward V. Hanrahan, State’s Attorney of Cook County, of Chicago, for appellee.
   Opinion by

PRESIDING JUSTICE LYONS.

Not to be published in full.


author: JUSTICE McCORMICK.

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Lawrence Butler, Defendant-Appellant.
    Gen. No. 52,767. (Abstract of Decision.)
    First District, Second Division.
    April 22, 1969.
    Gerald W. Getty, Public Defender of Cook County, of Chicago (John E. Hughes 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 and Gerald T. Rohrer, Assistant State’s Attorneys, of counsel), for appellee.
   Opinion by

JUSTICE McCORMICK.

Not to be published in full.


text:
    People of the State of Illinois, Plaintiff-Appellant, v. Susan St. Ives, Defendant-Appellee.
    Gen. No. 52,827.
    First District, Second Division.
    April 22, 1969.
    Rehearing denied May 13, 1969.

      John J. Stamos, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane, Daniel W. Weil, and Lewis A. Wenzel, Assistant State’s Attorneys, of counsel), for appellant.
    Allan A. Ackerman, of Chicago, for appellee.
   MR. JUSTICE BURKE

delivered the opinion of the court.

Defendant was indicted in December 1966 for the crime of unlawful possession of narcotics. Defendant’s motion to suppress evidence was allowed by the trial court and the State appeals. Supreme Court Rule 604(a); Ill Rev Stats 1967, c 110A, Par 604(a); People v. Vaglica, 99 Ill App2d 194, 240 NE2d 271.

On July 21, 1966, Chicago Police Officers John Kane and John McCormick made several telephone calls to telephone numbers which they thought might be the numbers of prostitutes. Officer Kane dialed a specific number and spoke to a woman, later stipulated to have been the defendant. Officer Kane identified himself as “Jerry Siegel” and set a date with defendant for 6:00 p. m. that same evening at defendant’s apartment in Chicago, the address of which defendant gave Officer Kane during the telephone conversation. No search warrant or arrest warrant was issued in this matter.

Shortly before 6:00 p. m., Officers Kane, McCormick, Goughian and Meade drove to the vicinity of defendant’s apartment. Officer McCormick alighted from the police vehicle and walked to the apartment building. Upon reaching the foyer of the building, the officer rang the buzzer to defendant’s apartment and a woman’s voice, later determined to have been that of the defendant, inquired as to the caller’s identity over the building’s call system. Officer McCormick replied, “Jerry Siegel,” to which defendant replied, “Come on up.” The officer proceeded upstairs to defendant’s apartment on the second floor, and finding the apartment door slightly ajar, he looked into the apartment and observed defendant seated at a portable bar. Officer McCormick knocked lightly and said, “I’m Jerry,” and defendant replied, “Come on in.”

The officer entered the apartment and engaged defendant in conversation, after which the other three officers were summoned to the apartment. Although defendant’s memorandum in support of her motion to suppress reveals that she was placed under arrest for “solicitation for prostitution,” how the officers secured the narcotics in question does not appear of record other than a statement in the memorandum that Officer McCormick “allegedly observed a bottle bearing a label of ‘Cocaine’ ” and that after defendant was placed under arrest a search was conducted and the narcotics in question were found in a drawer. The trial court refused to allow into evidence anything which transpired in the apartment subsequent to the entry by Officer McCormick, on the ground that entrance to the apartment was gained illegally, by means of the subterfuge of the fictitious name “Jerry Siegel,” in violation of defendant’s constitutional rights. The court held the illegal entry tainted all matters occurring subsequent thereto.

The question raised is whether the employment of the name “Jerry Siegel” by Officer Kane to set up a date for entry into the apartment of a suspected prostitute by Officer McCormick constituted such subterfuge on the part of the police as to violate defendant’s constitutional rights. We are of the opinion that it did not.

In the case of Lewis v. United States, 385 US 206, decided in December 1966, narcotics undercover agent Edward Cass telephoned defendant’s home and represented himself as “Jimmy the Pollack.” The officer told defendant that he and defendant had a mutual friend and requested the purchase of narcotics. The defendant and the officer had not known each other prior thereto. Defendant agreed to the sale and gave the officer his home address where two sales of narcotics by defendant to the officer were subsequently made. Defendant was arrested and tried for the unlawful sale of narcotics. Defendant there claimed that the officer gained illegal entry to his home by means of subterfuge, in violation of his constitutional rights.

The Supreme Court, in answering this contention, stated at page 210 of that opinion:

“. . . [Defendant] invited the undercover agent to his home for the specific purpose of executing a felonious sale of narcotics. [Defendant’s] only concern was whether the agent was a willing purchaser who could pay the agreed price. . . . Were we to hold . the deceptions of the agent in this case constitutionally prohibited, we would come near to a rule that the use of undercover agents in any manner is virtually unconstitutional per se. Such a rule would, for example, severely hamper the Government in ferreting out those organized criminal activities that are characterized by covert dealings with victims who either cannot or do not protest.”

(A footnote to the above quoted portion makes reference to criminal activities which the Court had in mind such as vice, liquor and narcotics.)

In the case at bar, Officer Kane, representing himself as “Jerry Siegel,” succeeded in setting a date with defendant. Officer McCormick, employing the same name, succeeded in gaining access to defendant’s apartment where the officers had reasonable grounds to believe a crime was about to be committed, based upon Officer Kane’s prior telephone conversation with defendant. (See People v. Owens, 41 Ill2d 465, 244 NE2d 188.)

The cases cited by defendant in support of her position are not in point. In Gouled v. United States, 255 US 298, a close business acquaintance of the defendant, acting pursuant to police directions, gained access to defendant’s office under the pretext of making a social visit, but in defendant’s absence secretly ransacked the office and seized certain incriminating papers for the police. Here it is not claimed that defendant was acquainted with either Officer Kane, Officer McCormick or “Jerry Siegel” and she was not deceived into allowing access to her apartment. Officer McCormick was admitted to the apartment according to the arrangements made previously by Officer Kane.

In Fraternal Order of Eagles, No. 778 v. United States, 57 F2d 93, police officers gained admittance to defendant’s premises by means of falsified membership cards and false representations that they were members of the defendant organization. No such situation is presented here.

The holding in People v. Dent, 371 Ill 33, 19 NE2d 1020, that the action of police officers in gaining admittance to defendant’s premises was fraudulent because an unknown person within invited the officers into the premises and because they failed to disclose “their official character and purpose,” was modified by the later case of People v. Walker, 30 Ill2d 213, 195 NE2d 654, which holds that a police officer need not voluntarily disclose his purpose or office, so long as he does not affirmatively represent himself as “anything other than a member of the general public.” The Walker case, decided in January 1964, should be read with the more recent case of Lewis v. United States, discussed above.

Defendant contends that her home should be accorded the full range of constitutional protection. In Lewis v. United States, 385 US 206, at page 211, the court said that when the home “is converted into a commercial center to which outsiders are invited for purposes of transacting unlawful business, that business is entitled to no greater sanctity than if it were carried on in a store, a garage, a car, or on the street.”

In the instant case the police were invited into defendant’s apartment. The trial judge should have allowed evidence to be presented of the conversations the officers had with the defendant and the activities in the apartment subsequent to the entry.

For these reasons the order is reversed, the indictment is reinstated, and the cause is remanded for further proceedings.

Order reversed, indictment reinstated, and cause remanded for further proceedings.

LYONS, P. J. and McCORMICK, J., concur.


author: MR. JUSTICE McCORMICK

text:
    Irma Musolino, Plaintiff-Appellee, v. Checker Taxi Company, Defendant-Appellant.
    Gen. No. 53,397.
    First District, Second Division.
    April 22, 1969.

      Jesmer and Harris, of Chicago (Julius Jesmer and Ronald J. Gold, of counsel), for appellant.
    Leonard E. Newman, Berman and Newman, of Chicago, for appellee.
   MR. JUSTICE McCORMICK

delivered the opinion of the court.

This is a personal injury action brought to recover damages occasioned by the alleged negligence of the defendant, Checker Taxi Company, in the operation of its taxicab. The case was originally set for trial at 10:00 a. m., on May 28, 1968. Plaintiff’s counsel said he would get his file and present a petition for change of venue. He returned in ten minutes and presented two petitions which he had signed, and the court denied them on the ground that they were not in proper form, since the plaintiff had not signed them. The court then instructed counsel to return to court at 1:30 p. m., at which time counsel said the plaintiff would present a proper petition. The court stated he would entertain no other petitions for change of venue, and that they would go ahead at 1:30 and select a jury.

At the afternoon session, prior to beginning the selection of a jury, counsel for the plaintiff presented a signed petition for change of venue in proper form, and the following conversation followed:

“The Court: Mrs. Musolino, do you know me? Did you ever see me before?
“Mrs. Musolino: No, sir.
“The Court: Motion denied.”

Defendant’s attorney then approached the court and said:

“Your Honor, if I might say something. This puts me in an embarrassing situation. ... I am put in the position now where I am going to have to take my client through the trial and if I am successful in winning it, I think that right now there are good grounds for a post-reversal upon appeal for failure to grant change of venue. I would think this is a good time right now that we would re-evaluate the situation. I think if we win, we lose. I think that is the situation here and we wouldn’t be helping the backlog any by going ahead.
“I am prepared to go. I will leave myself in your Honor’s hands, but I just wanted for the record to state my position.”

The Court said:

“The Court has already disposed of this petition because I told counsel when he prepared these two prior petitions we were going to trial at 1:30. There will be no more consideration to any further motions or petitions. Your recently submitted petition has been read, and I denied it.”

Plaintiff’s attorney said:

“May I file it?”

The Court said:

“Certainly. We can just keep on going on motions for change of venue and get to trial next Thursday.”

The trial was commenced before a jury which returned a verdict in favor of the plaintiff, upon which the court entered judgment. An appeal was taken by the defendant from the judgment of the court.

In this court the defendant argues that the judgment against it should be reversed because the court, in denying the petition for change of venue, committed reversible error. The plaintiff urges that the court’s denial of a petition for change of venue was proper, since the petition was made for the purpose of delay and that the defendant waived the alleged error by failing to object thereto, and that the defendant was not prejudiced by the denial of the petition.

The argument of plaintiff that the petition was filed for the purpose of delay is not borne out in the record, and under the circumstances of this case, is immaterial. It is, of course, the law that where either party fears he will not receive a fair trial in the court in which the suit is pending because the judge is prejudiced against him, a petition properly filed for change of venue must be allowed by the court. Ill Rev Stats 1967, c 146, § 1; Mockler v. David F. Thomas & Co., 273 Ill App 121.

In the instant case the petition for change of venue was filed at the earliest opportunity, was regular in form and properly verified. The Venue Statute left no discretion in a trial court to deny a properly prepared petition for a change of venue where such a petition is made on account of the prejudice of the trial judge. People v. Scott, 326 Ill 327, 157 NE 247.

The instant case is one of first impression. If we assume, for the sake of argument, that the petition for change of venue was improperly denied, the situation is not changed. In Chicago & A. R. Co. v. Harrington, 192 Ill 9, 61 NE 622, the court made the following statement at page 17:

“It is claimed by the appellant that, when the court entered its first order in vacation denying the petition for a change of venue, it was thereafter without jurisdiction to take any steps in the case. This contention is without force.”

It is true that in several cases decided in the Appellate Court the statement has been made that if a petition for change of venue is improperly denied, all proceedings subsequent to that order are void. See Johnson v. United Motor Coach Co., 66 Ill App2d 295, 214 NE2d 326; Hoffmann v. Hoffmann, 86 Ill App2d 374, 230 NE2d 277. However, in all of the cases where the court has used the word “void,” judgment had been entered against the party whose petition for change of venue had been erroneously denied by the trial court, and that party is the one who is seeking to have the judgment vacated. Under those circumstances the use of the word “void,” while loosely used, is a proper statement of the law.

What is really meant by the statements in these cases is that if a petition for change of venue is made in accordance with the statute, and the court erroneously denies the petition for a change of venue, and if judgment is entered against the party seeking the change of venue, the court, upon motion made by the party, must set the judgment aside and will hold it void. However, the rule also is that if a party asks for a change of venue and it is erroneously denied, the party seeking it may waive his rights by not asking afterwards to have the judgment vacated. The judgment is not void ipso facto.

We have been cited no case, nor have we been able to find one which would give a right to a defendant against whom judgment was entered to attack the judgment on the ground that the court had improperly denied the petition for change of venue on the part of the plaintiff. In our view of the case, insofar as the defendant is concerned, it is entirely immaterial whether the change of venue was properly or improperly denied. The defendant has no right to attack the judgment on that ground.

The judgment of the Circuit Court is affirmed.

Affirmed.

LYONS, P. J. and BURKE, J., concur.


author: MR. PRESIDING JUSTICE SULLIVAN

text:
    American National Bank and Trust Company, as Trustee Under Trust No. 18373, Plaintiff-Appellee, v. City of Chicago, a Municipal Corporation, Defendant-Appellant.
    Gen. No. 52,269.
    First District, Third Division.
    April 24, 1969.

      Raymond F. Simon, Corporation Counsel of City of Chicago (Marvin E. Aspen and Henry N. Novoselsky, Assistant Corporation Counsel, of counsel), for appellant.
    No brief or appearance filed in behalf of appellee.
   MR. PRESIDING JUSTICE SULLIVAN

delivered the opinion of the court.

Defendant appeals from a judgment declaring the Chicago Zoning Ordinance unconstitutional as applied to property located at 5253-65 South Cicero Avenue, Chicago, and declaring that the plaintiff has a clear legal right to erect four buildings, each containing three dwelling units, on four individual lots located in a B4-1 Restricted Service District. The defendant contends that the plaintiff failed to properly exhaust the local administrative or legislative remedies available to it and that the plaintiff failed to show by clear and convincing evidence that the Chicago Zoning Ordinance is arbitrary and unreasonable and, therefore, plaintiff has failed to rebut the presumption of validity in favor of the ordinance.

The plaintiff has failed to file an appearance or brief in this court and this cause on appeal could be reversed and remanded or this court could summarily reverse the judgment of the trial court. (541 Briar Place Corp. v. Harman, 46 Ill App2d 1, 196 NE2d 498; Ogradney v. Daley, Mayor, 60 Ill App2d 82, 208 NE2d 323.) On the other hand, this court may examine the points raised by appellant to see if they merit reversal. Perez v. Janota, 107 Ill App2d 90, 246 NE2d 42.

The property involved is located at 5253-65 South Cicero Avenue. It has a frontage of 153 feet on the east side of Cicero Avenue and a depth of 108 feet. It contains 16,524 square feet of lot area and is vacant. The property is zoned B4-1, Restricted Service District, Chicago, Ill., Zoning Ordinance, Map 12-K (1967).

On August 18, 1965, the plaintiff filed an application for an amendment to the Chicago Zoning Ordinance to rezone the subject property. It requested that the property be rezoned B4-2, Restricted Service District. The City Council of the City of Chicago denied this request. Both a B4-2 zoning classification and a B4-1 classification are business district classifications. Chicago, Ill., Zoning Ordinance, art 4, § 4.1.

In the complaint for declaratory judgment, the plaintiff requested the right to erect four buildings, each containing three dwelling units on the ground floor. The proposed use would require an R-4, General Residence District zoning classification which is residential in nature, Chicago, Ill., Zoning Ordinance, art 4, § 4.1 (1967) and which allows dwelling units below the second floor, Chicago, Ill., Zoning Ordinance, art 7, § 7.5-4 (1967).

The defendant’s answer sets forth that the plaintiff had not properly exhausted its local remedies by applying for an amendment to the zoning ordinance and points out that plaintiff had requested in its petition for amendment that the subject property be rezoned B4-2, Restricted Service District while the relief sought in the action for declaratory judgment would in effect result in a reclassification to R-4, General Residence District.

The defendant is correct in asserting that the plaintiff’s petition before the City Council for amendment to the existing ordinance, even if granted, would not have given the plaintiff the relief it later sought to obtain by the declaratory judgment action since, as stated before, both BA-2 and B4-1 zoning classifications prohibit dwelling units on the ground floor. However, dwelling units on the ground floor of an improvement located in a Restricted Service District are permitted special uses, Chicago, Ill., Zoning Ordinance, art 8, § 8.4-4 (3) (1967). Special uses cannot be granted by the City Council, but must be sought by applying to the Zoning Board of Appeals of the City of Chicago, Chicago, Ill., Zoning Ordinance, art 8, §§ 8.3-4A(l), 8.A-4(3), art 11, § 11.10-2 (1967). The plaintiff never attempted to secure such relief.

In Bright v. City of Evanston, 10 Ill2d 178, 139 NE2d 270, the Supreme Court established by judicial policy that a property owner is first required to exhaust all administrative remedies before challenging a zoning ordinance as it applies to his property. In that case, it was pointed out that zoning matters are peculiarly local in nature and should, if possible, be locally resolved. In the later case of Reilly v. City of Chicago, 24 Ill2d 348, 181 NE2d 175, the court said on page 349:

“The requirement for seeking relief at the local level is equally cogent whether the appropriate remedy be through the board of appeals or the local legislative body, and has been so recognized by this court.”

It is our opinion that the plaintiff in this case has failed to exercise the local remedies available to it as contemplated in the Bright case, supra, and in subsequent decisions. The City of Chicago was never given an opportunity to correct the specific errors and individual hardships allegedly imposed by the present zoning ordinance. It should again be noted that the relief sought by the plaintiff in the application for amendment which it presented to the Chicago City Council would also have precluded the development of dwelling units below the second floor. The right to utilize the ground floors for dwelling units in either a B4-1 or a B4-2 district can only be obtained by initially requesting a special use from the Zoning Board of Appeals as heretofore mentioned. The very purpose of the judicial doctrine of Bright, supra, requiring exhaustion of local remedies before seeking judicial relief is to give to the local authorities an opportunity to correct any error in the zoning classification or to remedy any unreasonable hardships imposed thereby before the aggrieved party enters into litigation. Bright v. City of Evanston, supra; Van Laten v. City of Chicago, 28 Ill2d 157, 190 NE2d 717; Fiore v. City of Highland Park, 76 Ill App2d 62, 221 NE2d 323.

Since the plaintiff failed to afford the local authorities an opportunity to correct the alleged errors and hardships, it has not exhausted its available local remedies and judgment should have been entered for the defendant.

It will not be necessary to discuss the second point raised by the defendant since we have concluded that this case must be reversed upon consideration of defendant’s first point.

Judgment reversed.

SCHWARTZ and DEMPSEY, JJ., concur.


author: MR. JUSTICE DEMPSEY

text:
    Mary Ann Bumblauskas, Plaintiff-Appellee, v. South Suburban Safeway Lines, Inc., an Illinois Corporation, Defendant-Appellant.
    Gen. No. 53,173.
    First District, Third Division.
    April 24, 1969.

      Dale, Haffner, Grow & Overgaard, of Chicago (Mitchell J. Overgaard, of counsel), for appellant.
    Sussman & Hertzberg, of Chicago (Harvey S. Sussman, of counsel), for appellee.
   MR. JUSTICE DEMPSEY

delivered the opinion of the court.

South Suburban Safeway Lines appeals from a $3,000 judgment entered, after a nonjury trial, in favor of Mary Ann Bumblauskas, a fourteen-year-old high school student, who was injured in getting off a bus operated by the defendant.

The accident happened in the afternoon as the plaintiff was on her way home from school. The bus traveled east on 127th Street to Throop Street, Chicago, where it was to make a left turn to let off passengers on the east side of Throop.

The bus was a standard model with the driver at the left front, a door to his right and a two-step stairwell leading to the door with handrails on either side. Mary Ann stood at the front of the bus facing the doorway with her right hand on the handrail and her left hand carrying books and a purse, waiting to leave. According to her, the front door was open as the bus made the left turn and she was thrown out when the bus suddenly stopped to discharge passengers. She testified that she did not touch the stairs or any part of the front of the bus as she fell; that she landed on her knees and elbows, then swerved and struck the back of her neck on the pavement. The girl who stood in back of her in the bus helped her to her feet and gathered her scattered books. The bus driver asked her if she was all right, she said she was and walked away.

Therese Rubin, a friend of Mary Ann, was also waiting to get off; she was standing in the aisle of the bus behind the plaintiff. She testified that the bus made a sharp and abrupt stop. She lost her balance, fell forward, and struck her wrist on the coin box as Mary Ann flew out of the door and onto the ground.

The defense witnesses testified that the bus made a smooth turn and stop. The bus driver stated that before making the turn to the north he stopped for oncoming traffic; that from five to seven girls were in the front waiting to leave as he brought the bus to a complete and easy stop, and that the plaintiff was the first one in line and was on the second step. He said he opened the door after making the stop, that the plaintiff and three other girls rushed out and the first thing he saw was the plaintiff three to four steps from the bus. However, he went on to say that: “She fell out face down both hands spread out right on her face”; she “tripped and fell to the ground”; she “did not fall from the bus onto the street” and “I don’t know if she fell directly from the bus to the street.”

The other defense witnesses were three school girls who were on the bus at the time of the accident. Two testified that the door did not open until after the bus stopped and that the plaintiff fell from the bottom step to the ground. The third testified that the plaintiff tripped after she had fully alighted from the bus. This testimony was contradictory to a statement she had given in her own handwriting at the time of the accident which said that the plaintiff tripped on the bottom step of the bus.

The defendant contends that the judgment was against the manifest weight of evidence and argues that there was insufficient proof that the bus stopped abruptly, and that it was physically impossible for the plaintiff to have been ejected as she claimed. It is pointed out that she testified that she did not touch the stairs, door-frame or other part of the bus as she fell; that if the stop had been abrupt she would have been thrown toward the front and not through the side door.

The plaintiff and Therese Rubin testified that they were the only passengers waiting to go out the front door; that there was a sudden stop which caused them both to fall; that the plaintiff was thrown through the open door and Rubin against the coin box. Although they were propelled in different directions, the plaintiff was standing at the top of the stairs with her right hand on the handrail and her left arm full of books; this may have altered the normal forward motion and swung her out the side.

In a nonjury trial the judge must determine the credibility of the witnesses and the weight to be accorded their testimony, and his decision will not be disturbed unless it is against the manifest weight of evidence. Hood v. Brinson, 30 Ill App2d 498, 175 NE2d 300 (1961). The trial judge chose to believe the testimony that the stop was abrupt and that this stop threw the plaintiff from the bus. This conclusion was not against the manifest weight of the evidence.

The defendant next argues that the remarks of the trial judge concerning the credibility of the defendant’s witnesses suggests that his decision was the result of anger or prejudice and that it was based on the rejection of the defendant’s evidence rather than on the adequacy of the plaintiff’s proof. The judge commented that the bus driver’s testimony was incapable of belief and he was critical of the three school girls who appeared for the defense, noting inconsistencies in their testimony. He also remarked that they collaborated in filling out cards given them by the bus driver immediately after the accident; that prior to the trial they were told of the driver’s statement that he stopped at the intersection of 127th and Throop Streets to wait for oncoming cars to clear and that their like testimony was probably because of this. In making these comments the judge not only voiced his displeasure at the testimony of the defendant’s witnesses but he explained the reasons for his judgment and for resolving the credibility issue against the defendant. Although the criticisms may have been unduly harsh they in no way indicated prejudice or that the plaintiff was held to a lesser degree of proof than was required.

At the conclusion of the plaintiff’s case on the issue of liability her attorney informed the judge that the medical witnesses would not be available until another day. It was decided to proceed with the defendant’s case. The plaintiff made a motion to exclude witnesses and the motion was granted. After a short recess the judge reversed his ruling saying that the motion should have been made at the proper time. The bus driver then testified. After the driver left the stand the plaintiff renewed her motion. This time the judge overruled the defendant’s objection and granted the motion. The defendant contends that a motion to exclude witnesses must be made at the opening of trial and that granting the motion after the plaintiff and her occurrence witness had testified was error.

Whether it is proper to exclude the witnesses of the opposite party after the first party’s witnesses have testified has never been squarely presented in Illinois. The closest Illinois case is the criminal case of People v. Winchester, 352 Ill 237, 185 NE 580 (1933), where the court indicated that an order to exclude after some testimony had been heard would not have been improper. The order referred to, however, was for the exclusion of additional witnesses for the same side. After one witness for the State had testified and during the cross-examination of the second, the defendant’s attorney asked to have other witnesses for the State excluded from the courtroom. The court denied the motion because it came too late. In upholding the trial court’s ruling, the reviewing court stated:

“The exclusion from the courtroom of witnesses waiting to be examined is a matter within the discretion of the trial court. . . . The court might properly have granted the defendant’s request in this case, even though some testimony had been taken before the request was made, but it was a matter within its discretion.”

The nearest statutory approach to the problem in Illinois is limited to the preliminary examinations of defendants in criminal cases. The statute provides that at these hearings, during the examination of any witness, the judge may and on the request of either the defendant or the State shall, exclude all other witnesses. Ill Rev Stats 1967, c 38, § 109-3 (c) (1967).

Dean Wigmore advocated unrestricted freedom in the use of the exclusionary privilege. He termed it “one of the greatest engines that the skill of man has ever invented for the detection of liars in a court of justice.” 6 Wigmore, Evidence, 3rd ed, § 1838. He stated: “It seems properly to be demandable as of right, precisely as is cross-examination” (§ 1839) and added, “It need not be demanded at the very opening of the testimony, at any time later, when the supposed exigency arises, the order may be requested.” (§ 1840.) Notwithstanding the dean’s observation that a motion to exclude need not be made before testimony begins, a review of the case law of the jurisdictions that have passed on the question does not disclose a uniform practice. In those few states where courts have held that a request may be made at any time, the decisions are generally predicated on statutes or rules. Blitch-Everett Co. v. Jackson, 29 Ga App 440, 116 SE 47 (1923); State v. Lea, 228 La 724, 84 So2d 169 (1955); Medrano v. City of El Paso (Tex Civ App), 231 SW2d 514 (1950); Clary v. State, 68 Tex Crim 290, 150 SW 919 (1912). In Pritchard v. Henderson, 19 Del 128, 50 A 217 (Del Super Ct 1901) the defendant’s request for exclusion after he had examined three witnesses was denied because it came too late. In In re Hillman’s Estate, 217 Mich 142, 185 NW 684 (1921) the trial court refused the plaintiff’s request for exclusion after several witnesses had testified, and in Wiles v. Northern Pac. Ry. Co., 66 Wash 337, 119 P 810 (1911) the trial court granted the plaintiff’s motion for exclusion after the plaintiff’s case had been completed. Both decisions were sustained; however, the reviewing courts stated that the motions for exclusion should have been seasonably made. See also Kaufman v. U. S., 163 F2d 404 (1947) where the defendant’s motion for exclusion, made after one and a half weeks of trial, was refused, and Tice v. Mandel (ND), 76 NW2d 124 (1956) where the trial court refused the defendant’s request for exclusion after he had been called as an adverse witness and cross-examined by the plaintiff. In both cases the trial court’s ruling was affirmed — the reviewing courts held that sequestration was within the trial court’s discretion.

The correct time to make a motion to exclude witnesses is before any witness has testified — this gives stability to the trial procedure and applies impartially to all parties. But the usefulness of the exclusionary device for the accurate ascertainment of truth is too important to automatically deny exclusion after the opening of trial. The court may, therefore, in its discretion, order exclusion in the midst of trial if it believes this is necessary to effectuate justice.

In the present case, a principal reason given by the court for granting the exclusion was that the defendant’s witnesses were young girls. The three witnesses may have been young but they had finished high school and were employed respectively as a secretary, a bookkeeper and an insurance policy writer. While the age of the witnesses did not justify the exclusionary order, the defendant has not shown how it was prejudiced by the order. The contention that since the plaintiff’s occurrence witness heard her testify the defendant’s witnesses should have been permitted to hear each other testify would carry some force if the defendant had tried unsuccessfully to exclude the plaintiff’s witnesses. Having made no such motion the defendant’s contention must be reduced to the proposition that if its witnesses had heard each other testify they might have corrected the testimonial discrepancies which disturbed the judge. Such a proposition is untenable. The judge should have denied the plaintiff’s untimely motion, but granting it where no harm resulted to the defendant was not the clear abuse of judicial discretion which demands reversal.

Finally, the defendant contends the award for damages was excessive. The plaintiff felt pain in her neck and her knees began to stiffen on the night of the accident. For the next month she was treated by her family doctor, who fitted her with a cervical collar. Her medical costs were $326 and she missed approximately three weeks of school. At the time of trial, about three and a half years later, she had difficulty, once or twice a month, turning her neck. An expert witness testified she had a permanent chronic sprain.

The question of damages is one for the trial judge in a non jury trial and his decision will not be upset unless it is so excessive as to indicate passion or prejudice on his part. Healy v. Nordhous, 40 Ill App2d 320, 188 NE2d 227 (1963). In addition to medical expenses and her pain in the weeks following the accident, the plaintiff suffered discomfiture which continued to the time of trial. The award of $3,000 was not excessive.

The judgment is affirmed.

Affirmed.

SULLIVAN, P. J. and SCHWARTZ, J., concur.


text:
    Clark Oil and Refining Corporation, a Wisconsin Corporation, Plaintiff-Appellee, v. Village of Tinley Park, a Municipal Corporation, et al., Defendants-Appellants.
    Gen. No. 53,239.
    First District, Third Division.
    April 24, 1969.

      Matthew J. Beemstrerboer, Brunswick, Beemstrerboer & Jemilo, of Blue Island, and Stanley T. Kusper, Jr., of Chicago, for appellants.
    Lyle E. Nelson, of Tinley Park, for appellee.
   MR. JUSTICE DEMPSEY

delivered the opinion of the court.

The plaintiff, Clark Oil and Refining Corporation, sought a writ of mandamus to compel the defendant, the Village of Tinley Park, to issue a permit to construct a gasoline station. The court issued the writ and the Village appeals. It contends that the court erred in voiding only part of an invalid ordinance and in not finding the plaintiff’s application for the permit deficient.

The plaintiff applied for a permit to construct a gasoline filling station in a B-2 business district. In that district, gasoline stations were permitted but the ordinance prohibited the location, construction or maintenance of a station without first obtaining the written consents of the property owners representing a majority of specified frontage property. The plaintiff’s application for the permit did not contain the required frontage consents and was denied for that reason.

The plaintiff filed an action for a writ of mandamus. The complaint alleged compliance with all of the requirements of the Village for obtaining the permit except for the frontage consents. This allegation was denied in the defendant’s answer. The plaintiff then submitted written interrogatories to the defendant which asked in what respect the plans accompanying the application were deficient. The defendant responded that the Village officials had not inspected the plans because of the failure to obtain frontage consents and that the permit was denied solely because of the lack of the consents.

After receiving this reply, the plaintiff filed a motion for a declaratory judgment. The motion asked the court to declare the frontage consent requirement invalid and to order the Village to process the application for a permit without delay.

A hearing on the motion was held. During it, the defendant admitted the invalidity of the frontage consent requirement but argued that if this part of the ordinance was invalid the whole ordinance granting permission for a gasoline station in a B-2 district was invalid. The court disagreed and stated that the writ would issue. The defendant thereupon interposed the objection that there had been no evidence as to the sufficiency of the application but the court replied, “You never raised that; that is not before me.” The writ was then issued.

The defendant moved for a new trial. It raised again the two issues: the invalidation of the whole ordinance and the insufficiency of the plaintiff’s application. The court granted the motion and a new hearing was held— at which the defendant offered to produce a member of the Village board to testify as to the intent of the Village in passing the ordinance. The court refused this offer. The plaintiff introduced evidence relative to the completeness of its application. This evidence, on direct and cross-examination, revealed some deficiencies. The court ruled that the question of the sufficiency of the application had been abandoned but conceded that the plaintiff would have to submit a complete and proper application before it was entitled to the permit; nevertheless the court ordered the issuance of an unconditional writ of mandamus directing the Village to grant the permit.

On appeal, as in the trial court, the defendant admits that the frontage consent requirement is invalid. It contends, however, that the language of the ordinance indicates that the part of the ordinance creating zoning for gasoline stations would not have passed without the provision requiring the obtention of frontage consents. It also contends that the evidence it offered to introduce— testimony from a member of the Village board which passed the ordinance — would have shown that the board would not have granted permission for the stations without the accompanying restriction.

The offer of proof was properly rejected. Legislative intent must be sought primarily from the language used in an ordinance and where the intent can be ascertained it must prevail without resort to other aids of construction. Berwyn Lumber Co. v. Korshak, 34 Ill2d 320, 215 NE2d 240 (1966); Mid-South Chemical Corp. v. Carpentier, 14 Ill2d 514, 153 NE2d 72 (1958); Burke v. Industrial Commission, 368 Ill 554, 15 NE2d 305 (1938). In the present case the legislative intent can be ascertained from the language of the ordinance itself.

The ordinance imposed the following restriction in reference to gasoline stations in a B-2 business district:

“. . . No person shall locate, construct, or maintain any filling station (except filling stations in existence or under construction at the time of passage of this Ordinance) in connection with which there is installed any tank for the storage of flammable liquids on any lot or plot of ground without first obtaining the written consents of the property owners representing the majority of the total frontage in feet of any lot or plot of ground lying wholly or in part within lines one hundred fifty (150) feet distant from and parallel to the boundaries of the lot or plot of ground where any tank for the storage of flammable liquids is to be installed. . . .”

Where the portions of an ordinance are so connected with one another that the court cannot say that the legislative body would have passed the remaining part without the invalid part, the entire act is void, otherwise it is not. Lee v. Retirement Board of Policemen’s A. & B. Fund, 31 Ill2d 252, 201 NE2d 361 (1964); People ex rel. Holland Coal Co. v. Isaacs, 22 Ill2d 477, 176 NE2d 889 (1961); City of Elmhurst v. Buettgen, 394 Ill 248, 68 NE2d 278 (1946). The issue here is the severability of the grant of permission for filling stations and the imposition of the frontage consent restriction. In the case of Drovers Trust & Savings Bank v. City of Chicago, 18 Ill2d 476, 165 NE2d 314 (1960) is pertinent to this issue. The case of Drovers Trust involved an area zoned for business purposes in which a filling station was a permitted use. However, ordinances prohibited the installation of storage tanks of flammable materials and the issuance of a license for a filling station without first obtaining the written consents of the owners of a majority of the applicable frontage property. The plaintiff failed to obtain the necessary consents and the permit was denied. The plaintiff then filed a suit for declaratory judgment asking the court to declare the frontage consent requirement invalid as to its property. The court held the provision invalid because it constituted an unconstitutional delegation of legislative power which would leave the ultimate determination of whether stations would be detrimental to the public welfare to the discretion of the neighboring owners. Despite the invalidity of this provision, however, the court enforced the rest of the ordinances which permitted the use of the property for gasoline stations. In the course of its opinion, the court said, “The city must have concluded that use of the subject tract for filling station purposes would not be detrimental to the public interest, since the property is within an area wherein filling stations are a permitted use.” See also Valkanet v. City of Chicago, 13 Ill2d 268, 148 NE2d 767 (1958); Koos v. Saunders, 349 Ill 442, 182 NE 415 (1932).

The present case involves an area zoned for business purposes in which filling stations were to be permitted and, like the Drovers Trust case, the ordinance imposes a frontage consent requirement. The frontage consent provision is invalid but the rest of the ordinance granting permission to use the property for filling station purposes is independent of it and may be separately enforced. The consent requirement has no relation to the public interest but only to the private interests of nearby property owners. The specific allowance of gasoline stations in the B-2 district shows that the Village itself considered the use of property for such purposes consistent with the interests of the community.

The defendant’s remaining contention is that the court should have denied the writ of mandamus because the application for the permit, apart from the lack of frontage consents, was deficient. It claims that this issue was raised by the pleadings and never abandoned during the course of the proceedings. The defendant’s answer did deny the plaintiff’s allegation that the application except for frontage consents was complete; however, the defendant’s response to the plaintiff’s interrogatories said that the only reason that the permit was denied was the failure to comply with the frontage consent requirement. The response further stated that the officials of the Village had not even inspected the plans with respect to their compliance with the building code in view of the failure to obtain frontage consents. While this response was not an admission of the sufficiency of the application, it certainly could have misled the plaintiff and the judge into thinking that the only issue before the court was the validity of the frontage consent requirement.

It does not matter, however, whether the defense of the sufficiency of the application was or was not abandoned for, in either event, the court, having found that the plaintiff was entitled to the mandamus writ on the frontage consent issue, should have made the writ conditional upon the plaintiff’s complete compliance with the other regulations of the building code. The plaintiff is not entitled to a permit unless and until its application meets these regulations, but its failure to correct the admitted deficiencies in its application was the fault of the defendant. The latter’s denial of the application for the sole reason that it did not meet the frontage consent requirement made the correction of the other deficiencies futile. These minor shortcomings could have been corrected and, according to the plaintiff, would have been had not the permit been refused for just the one reason. The judgment of the court should have afforded the plaintiff the opportunity of correcting the shortcomings and should have directed the Village to issue a permit upon their correction.

The court properly invalidated the frontage consent requirement and enforced the rest of the ordinance, but the court erred in issuing a writ of mandamus which unconditionally ordered the Village to grant the plaintiff’s application. The judgment will be reversed and remanded with directions to issue a writ of mandamus directing the Village to process the plaintiff’s application and to issue a permit if and when it complies with the remaining regulations of the ordinance.

Reversed and remanded with directions.

SULLIVAN, P. J. and SCHWARTZ, J., concur.


author: MR. JUSTICE SMITH

text:
    W. Paul Ward and Imperial Elevator Co., an Illinois Corporation, Plaintiffs-Appellees and Cross-Appellants, v. Dean L. Colcord and Leonard E. Tooke, Defendants-Appellants and Cross-Appellees.
    Gen. No. 50,663.
    First District.
    April 25, 1969.
    Gerard A. Serritella, of Chicago (Gerard A. Serritella and Philip J. McGuire, of counsel), for appellants.
    Schwartz & Gutstein, of Chicago (Julius J. Schwartz, Solomon Gutstein, and Michael F. Zlatnik, of counsel), for appellees.
   MR. JUSTICE SMITH

delivered the opinion of the court.

The trial court entered a decree finding that the management of this corporation was deadlocked, directed that the parties sell and dispose of the corporate assets, pay corporate debts and liabilities, and account between themselves as to their respective stock interests within 90 days, or in the alternative that a sale of the elevator company or its assets or its stock would be under the direction of the court. In the meantime, the management of the corporation would be under old officers. The defendants initiated the appeal and the plaintiffs cross-appeal. Both sides appeal from the decision of the court that the corporate management was deadlocked and each side appeals from a finding of the trial court that neither had established fraud against the other or any basis for equitable relief.

The plaintiff-Ward was the president and principal stockholder of the corporation, with his wife and one Schwartz as directors. He died prior to the conclusion of the proceedings in the trial court and proper party substitution was made. He negotiated with Colcord and Tooke to buy into the corporation. After some negotiations with them, an attorney was called in to finalize their agreement and the result was a contract dated December 15, 1962. By its terms, Colcord and Tooke were each to pay $1,500 cash and give a note for $6,000 payable in thirty-six months without interest. Ward then agreed to transfer 24%% of the stock to each of them and an additional %% when they each paid the balance of his note. The contract carries a December 15, 1962 date as does the minutes of the stockholders’ meeting and the directors’ meeting. The contract indicates that all documents, including the agreement, stock certificates, and the transfer of cash and notes, were to be executed and delivered at the same time. In fact, the attorney who prepared the documents testified that he advised them that all documents should be signed simultaneously. The record is crystal clear that Colcord and Tooke each paid their $1,500 on February 7, 1963, and each receipted for his stock on that date. The stock book indicates that each certificate was dated December 15, 1962, and delivered February 7, 1963. Colcord came to work for the elevator on or about December 27, and it was understood between the parties that Tooke would not begin working for the company until its business and financial condition would warrant. The record also indicates that in the latter part of December Mrs. Ward and Schwartz executed their resignation as directors. The evidence is in dispute whether or not these resignations were actually effected or whether they were handed to Mr. Ward by both parties to be used if and when he saw fit. The testimonial record is in dispute as to when many of the transactions took place. The exhibit record would indicate, however, that February 7 was the actual consummation and effective date of the transaction.

It is quite apparent that both sides became disenchanted with each other very shortly, that Colcord refused to sign checks for some of the debts of the corporation and refused to sign salary checks for Mr. and Mrs. Ward. In July, 1963, Ward summarily fired Col-cord. In October, Ward filed this suit for a rescission of the contract charging fraud. Colcord and Tooke filed their cross-complaint seeking to be restored to their alleged lawful rights as stockholders and directors of the corporation and for damages. The trial court found that the charge of fraud was established by the evidence on neither side and we are constrained to say the findings of both the Master and the Chancellor are correct on this point. We likewise think that the Chancellor was squarely on target when he held that the management of this corporation was deadlocked, gave them 90 days in which to break the deadlock and then provided for a sale of the corporation and its dissolution. The defendants-appellants, of course, contend that December 15, 1962, is the date of the contract, the date of the corporate minutes, the date of the stock, and that it is the magic date when Ward, Colcord and Tooke became officers of the corporation and functioned as such thereafter. If we accept this date as true, the corporation is nevertheless deadlocked, because those self-same minutes provided that the Board of Directors could function in the corporate manner only by unanimous vote. It is apparent that at and before the time of the institution of this suit, Colcord had refused to sign checks, had refused to pay bills and an order of the court was required to get this done. It is thus transparently clear that the management was deadlocked.

In support of their December 15 date, Colcord and Tooke cite in their brief Majestic Household Utilities Corp. v. Stratton, 353 Ill 86, 186 NE 522, as holding that “when certificates of stock are officially executed by the corporation to its shareholders they are issued in the ordinary sense.” It thus follows, they say, that they were shareholders, their rights began on that day and their duties as directors began on that day. The difficulty with this citation is that it is not a springboard for the defendants’ position. In fact, it is actually a pretty much broken-down spring. In both the Hlinois reports and Northeastern reports, the citation reads “when certificates of stock are officially executed AND DELIVERED by the corporation to its shareholders they are issued, in the ordinary sense.” (Emphasis supplied.) Colcord and Tooke receipted for their stock on February 7 and their own citation correctly cited states unequivocally that this stock was not issued until delivered to them. They paid for it on February 7, for their checks are so dated. The annual report of the corporation for the year 1963, sworn to on January 29, 1963, by W. Paul Ward and filed in the Secretary of State’s office on February 4, lists not Colcord and Tooke, but Paul Ward, his wife and Schwartz as the directors and officers of the corporation. Thereafter in March and April, there were bids for job applications, performance bond premiums, bank signature cards and etc., which list Ward, Colcord and Tooke as officers. It thus seems clear to us that there was at one time at or about February 7 a meeting of the stockholders and directors of this corporation and that Ward, Colcord and Tooke became officers. It would also follow, therefore, that there was a meeting at which they were elected and at which the bylaws were amended requiring unanimous consent of the Board of Directors for corporate action. Thus, this record clearly establishes a typical case where a court of equity has the power to liquidate the assets and business of a corporation where it appears “(a) (1) That the directors are deadlocked in the management of the corporate affairs and the shareholders are unable to break the deadlock.” Ill Rev Stats 1965, c 32, § 157.86. Since the decree of the trial court was entered and the business has continued under the management of the old directors and without defendants Colcord and Tooke participating, this court has no way to determine the present status of the corporate affairs. Accordingly, the decree of the trial court is affirmed and this cause is remanded to that court with the directions to implement by appropriate proceedings its original decree, by allowing to the parties a reasonable additional time in which to resolve their differences by common agreement or consent, or to voluntarily liquidate the corporation and in default of either to liquidate the assets of the corporation under the supervision of the court and distribute its assets as equity shall require.

Affirmed and remanded with directions.

TRAPP, P. J. and CRAVEN, J., concur.