author: TRAPP, J.

text:
    Jerry Tolbird and Lora Tolbird, Plaintiffs-Appellants, v. James M. Howard and Alma R. Howard, Defendants-Appellees.
    Gen. No. 10,934.
    Fourth District.
    December 2, 1968.

      Roberts and Kepner, of Springfield (Maurice Kepner, of counsel), for appellants.
    Carlon and Carlon, of Normal (Patricia Carlon, of counsel), for appellees.
   TRAPP, J.

Judgment was entered in favor of the defendants, James M. Howard and Alma R. Howard, herein called buyers, and against the plaintiffs, Jerry Tolbird and Lora Tolbird, herein called sellers, in the Magistrates’ Division, Circuit Court of Sangamon County, in an action upon a promissory note for down payment on a real estate contract, and to recover past due installments upon such contract.

The complaint is based upon two documents which represent the terms of sale of a house and lot in Bliopolis, Blinois. Both documents are dated July 10, 1966. The defendants, buyers, signed a judgment note for $552 in favor of the plaintiffs, sellers, which note bore an indorsement that it was due January 1, 1967. The buyers and sellers signed a contract to purchase the property for the sum of $20,469.78 in monthly installments of $184, which were to include principal and interest at 6% per annum, interest to be calculated upon a direct reduction basis. The first installment was due July 15, 1966. The contract provided: “If not sooner paid, the entire amount of principal and interest shall be due and payable June 15,1986.”

The contract provided that in case of default of more than 30 days, “Sellers, at their option, may declare this contract to be null and void, and he may take repossession of said above described real estate immediately thereafter; No notice, either in writing or orally, need be given by Sellers in case of default; In such event all installment payments previously made by Buyers shall be retained by Sellers as and for rental payments and all liquidated damages under this Contract.”

The contract provided: “That Buyers agree to carry said insurance premiums hereafter until the purchase price is paid, for the protection of Sellers, in whose names said insurance shall be carried.” At the time of closing the contract with all persons present, except Lora Tolbird, the following clause was added to the end of the above quoted clause, at the buyers’ request: “Payable to all parties as their interests may appear.”

The answer of the buyers to Count II, which is the suit for past due installments on the contract, admits the signing of the contract, the making of the first installment payment of $184 on July 15, 1966, and the failure to make any additional payments. The answer denies performance by sellers, and sets up the following special defenses: (1) that sellers have repossessed the premises and retained the rentals paid as liquidated damages; (2) that sellers failed to furnish proof of ownership of the property; (3) that sellers fraudulently induced buyers to believe sellers were owners of the property; (4) that buyers cannot be in default until June 15, 1986. On the trial the additional defense was made that the insertion of the addition to the insurance clause was a material alteration which rendered the contract unenforceable.

Since there are questions of law, mixed questions of law and fact, defenses which, if sustained, are a permanent bar to the suit and a defense that bringing the suit is premature, the simple judgment that sellers take nothing by their suit leaves much to be desired.

The judgment that sellers take nothing by their suit would appear to be final and to indicate that the trial court found that the contract was unenforceable, rather than that the suit was premature. However, buyers pursue the point in their briefs in this court. Reading the contract as a whole, we cannot subscribe to the position that no recovery could be had prior to June 15, 1986. The contract, as noted, provided for monthly installments, provided a 30-day grace period on default, and provided for an election to retake possession and retain payments as liquidated damages. The position that no suit could be brought until June 15, 1986, would mean that no payments were legally due until June 15, 1986. We find this to be inconsistent with the allowance of a grace period of 30 days, “in case of default of any payment.” (Emphasis supplied.)

The defense of material alteration of the contract in reference to the addition to the insurance clause was not pleaded, and under Ill Rev Stats c 110, § 43(4), was not available as a defense. See also Parker v. Dameika, 372 Ill 235, 23 NE2d 52; Burke v. Burke, 12 Ill2d 483, 147 NE2d 373. Again, we are unable to determine whether this defense was considered. The evidence clearly shows that buyers requested the insertion of the clause and that it was for their benefit. The law does not permit the one who alters a contract to avoid it on that account, but confers the right of avoidance upon the nonconsenting party. See Alteration of Instruments, 2 ILP, 24, 31. Since there is no evidence that Lora Tolbird, a party-plaintiff seeking to enforce the contract, dissented from the provision, we cannot find that there is a proper dissenting party. Additionally, under the circumstances, we do not believe that the sellers could claim any proceeds of insurance in excess of the balance due upon the contract. Therefore, the alteration could not be a material alteration. McCrystall v. Connor, 331 Ill 107 at 123, 162 NE 375. See also, Cities Service Oil Co. v. Viering, 404 Ill 538, p 547, 89 NE2d 392.

We cannot agree with the defense that sellers elected to forfeit the contract and retain payments made as liquidated damages. The evidence shows that subsequent to a telephone conversation about August 15, 1966, when the buyer advised seller he was moving, the seller wrote the buyer that this would not void the contract, and that sale of the house would be the buyer’s responsibility. A declaration of forfeiture should be evidenced by a clear declaration of the seller. Brown v. Jurczak, 397 Ill 532, 74 NE2d 821. The form of the contract gives an election to terminate. In the absence of an election, the contract would remain in force. The evidence is that buyer, James Howard, received the letter from Jerry Tolbird, seller, advising him that the contract was not void, and the sale of the house was Howard’s responsibility. He also received a letter dated January 6, 1967, from Tolbird’s attorney, demanding payments due under the contract. On January 9, 1967, the Howard’s attorney wrote Tolbird’s attorney, stating that it was his understanding that the Tolbirds had exercised their option under Section 3 of the contract to terminate it. The letter further stated that, even considering the contract in force, there could be no default prior to June 15,1986. The complaint was filed February 3, 1967. The evidence shows that about one week after the August, 1966, letter advising Howard that the contract was not void, Howard mailed the keys to Jerry Tolbird. Tolbird went to the house and found it vacant. He closed some windows and some doors, and later had a plumber shut the water off. The next communication between the parties was the letter from Tolbird’s attorney to Howard demanding payment.

It is contended that the action of closing up the house and turning the water off, together with a failure to return the keys and a lack of communication for six months constituted the exercise of an election to forfeit.

The contract contained no acceleration clause as to the entire principal on default, and accordingly payments would accrue at $184 per month. The down payment note of $552 was due January 1, 1967. Jerry Tolbird testified that during the telephone conversation in August, Howard said he would pay the $552 in January, but would not make any more payments. Howard says the $552 note was discussed in the August, 1966, telephone conversation and he, Howard, said, if he owed it, he would pay it.

The foregoing circumstances do not constitute anything more than actions to protect a security interest in property. They do not constitute the clear election to forfeit required by the law. We do not think that the buyers’ actions show that they thought the contract was terminated by the election of the sellers, but rather that buyers did not intend to perform the contract. Since the note, if due, was not payable until January 1, 1967, and since only $184 per month accrued as a liability, we do not find that waiting until January 6, 1967, to demand payment of the note and the accrued installments was an abandonment of a position that the contract was still in force. On this issue we are concerned with the intention of the sellers. The sellers made no move to rent the house, or to resell the house, or otherwise exercise dominion over it. Their only declared intentions were that the contract was not void, and that the payments were due.

We hold that the contract was not terminated by election of the sellers. Again, we do not know the determination of the trial court on this issue.

Examining the defense that sellers fraudulently induced buyers to believe that sellers were the owners of the property, so far as the evidence shows, there is an abstract showing title in the sellers subject to a mortgage to Lincoln Douglas Savings and Loan for $21,000. Buyers do not pursue this point in their briefs in this court.

We are next presented with a difficult issue which, in fact, is never clearly stated by the parties. The defense is stated in the answer:

“That the Plaintiffs have breached said contract by their failure to offer any evidence of title and ownership in said property to the Defendants.”

This defense is stated in the defendants’ brief as follows:

“The position of the Defendants is simple and clear, the Plaintiffs may not maintain their action on the contract for non-payment of installments because they themselves are in breach under the terms of the contract for failure to deliver an abstract of title brought down to date agreed to in the contract and as implied in the conversation contemporaneous with the execution of the contract.
“The defendants have rescinded the contract for Plaintiff’s breach thereof.” (Emphasis supplied.)
The contract provision as to title is:
“8. That, Sellers herein agree to furnish Buyers with a Warranty Deed to the above described proper- ■ ty upon the completion of the terms of this Contract and the payment of the purchase price in full, plus interest; Sellers further agree that they will furnish a complete Abstract of Title to said real estate showing good and merchantable title in Sellers to date.”

In the argument buyer first takes the position that furnishing an abstract to date by seller is a condition precedent to performance by buyer. They cite Hayne v. Fenton, 321 Ill 442, 151 NE 877, which was a contract for sale of farmland “by warranty deed and to furnish abstracts showing good and merchantable title, and to deliver possession upon payment of the purchase price March 1, 1921.” An abstract was furnished long before March 1, 1921, but it showed a break in the chain of title and a pending partition suit. Schreiber v. Straus, 147 Ill App 581, is a case of contract for sale of Lots 29 and 31 where the abstract produced covered only part of Lot 31, and the court held such failure to furnish an abstract to all of the property sold could not be excused. In Slezak v. Fleming, 392 Ill 387, 389, 64 NE2d 734, the contract provided that the seller should, “within fifteen days, furnish a merchantable abstract of title or a Chicago Title & Trust Company guaranty policy, and further that when said title papers have been furnished, the Buyer shall close the deal within ten days if the title is merchantable.” The court held that under this contract, buyer had ten days after the furnishing of title evidence to put up the purchase price. In Carver v. Van Arsdale, 312 Ill 220, 226, 143 NE 579, the contract provided that an abstract should be furnished by January 1, 1921. On January 26, 1921, the attorney wrote advising that the title was good but subject to certain incumbrances. Carver, the seller, wrote Van Arsdale, the buyer: “You must live up to your contract; will be there March 1 with the papers.” The contract called for closing March 1, 1921. On March 1, 1921, they met but Carver did not have the deed or abstract with him. On March 2, Carver went to buyer’s house and handed buyer a deed, note and mortgage, but did not have the abstract. Prior to suit the abstract was brought down to date. The court held when vendor seeks specific performance he must be in a position at a proper time, to perform. Seller did not have abstract on March 1, or the following day, and this was enough to defeat specific performance. Brewer v. Fox, 62 Ill App 609, while referring to the custom of furnishing abstracts is in no way applicable to the issues here. In Geithman v. Eichler, 265 Ill 579, 107 NE 180, the abstract furnished had a breach in the chain from Noah C. Anderson to Noah C. Amsden. The court held the purchaser was entitled to be furnished with an abstract showing merchantable title in the seller at closing.

In all of these cases there was a clear indication in the contract that satisfactory evidence of title and, a sufficient deed were to be furnished before the payment which the seller sought from the buyer was to be made. Here the deed was to be delivered upon completion of the installments. No date is given for furnishing an abstract.

Christopher v. West, 409 Ill 131 on 136, 98 NE2d 722, holds that one who seeks performance of a contract must show that he has performed every act on his part to perform, while one who seeks to rescind a contract need only show nonperformance or inability to perform by the other.

Coney v. Rockford Life Ins. Co., 67 Ill App2d 395, 214 NE2d 1, holds that where one party understood an agreement in a particular sense and the other party knew it to be so understood, the contract will be so construed if it is compatible with the language used. See also, Geithman v. Eichler, 265 Ill 579, 584, 585, 107 NE 180.

Seller, Jerry Tolbird, states that about a week before July 10, 1966, he had a conversation with the Howards, and seller told them to see Attorney Mills or get their own attorney. A week after the first conversation, seller, Jerry Tolbird, took the contract, which his wife had signed at Jacksonville, to Illiopolis, and he and the purchasers signed it there. Seller advised Howard he would put the deed in escrow at the bank. Howard gave seller $15 for the bank’s escrow fee. Arrangement was made with the Howards to mail their payments to the Savings Association which held the mortgage. Seller had a telephone conversation with Howard about August 15th when Howard said he would be leaving Eliopolis. There was discussion about payment of the $552 note, and Howard said he would not make any more payments.

Sellers had previously had an almost identical contract with a William Lyons. Lyons had died and Mrs. Lyons could not make the payments. When sellers sold to buyers, he requested Mrs. Lyons to move. She moved and buyers took possession. There was no written cancellation of the Lyons contract, and no suit filed to cancel it.

Buyer, James Howard, without giving a date, said they discussed the furnishing of an abstract of title or title insurance. Buyer says about a week before he moved, he, James Howard, called Tolbird at a used car lot. He said: “I was disturbed because I had heard that Mrs. Lyons said she still owned the house and that I really didn’t own it. She still lived in the community and she still had a deed or something to the house.” Buyer also testified: “He had previously told me that the abstract would be furnished and deed put in escrow with the bank, and in this phone conversation he promised to come over the Saturday following whenever this conversation was.” He also testified: “On July 10th, I told Tolbird I would make one payment until I got the papers straightened out. I would then have a lawyer go over and make sure everything was all right. I couldn’t go on with the agreement until I knew I had a clear title and this is when he said he would escrow a deed at the bank.”

Buyer, James Howard, had resigned his job as school superintendent on August 6, 1966. He applied for a job in Normal and other places. Buyer looked at a house in Normal in the first or second week in August, and bought that house sometime between the 15th and 26th.

Buyer further testified that there was never a discussion using the term, abstract of title. The one produced in court was the first one he had ever seen. Neither on the day the contract was signed, nor subsequently in his conversation with seller, was the term abstract of title used. Buyer never asked seller to furnish an abstract of title in those words.

Buyer further testified that he told Tolbird he would have to furnish clear title. He testified that Tolbird told him he would furnish him evidence of clear title.

As to the August 15, 1966, telephone conversation, buyer further testified:

“The subjects of discussion were the $552.00, the subject of Mr. Tolbird coming over the following Saturday and the subject of my misgivings about clear title and the discussion of the topic of my moving. I asked why I had not received the papers clearing title, of the evidence that the deed had been put in escrow and the contract brought back from his wife having signed it where it had been changed and then I think I told him that I was going to move. . . . He said I’ll be over Saturday and we will discuss it. He did not come the following Saturday.”

Seller denies any conversation about furnishing evidence of title.

From the foregoing we find that nothing in the contract furnishes an exact date when evidence of title was to be furnished. In Illinois Law and Practice, Vendor & Purchaser, Vol 35, page 516, § 98, it is stated:

“In the absence of an agreement to the contrary, the vendor under an executory contract for the sale of real estate must have good title as called for by the contract as of the date and time when performance by him is required by the contract, and if any lack of title in the vendor or defects in such title exist it is sufficient if such lack of title or defects therein are removed at the time for conveyance. If time is of the essence of the contract, the title must be perfected at the time fixed for performance by the execution and delivery of the deed unless equities exist which excuse a strict and seasonable performance.
“Where, however, no time is fixed in the contract for performance, or where time is not of the essence of the contract, the vendor ordinarily is entitled to a reasonable time in which to perfect his title, and he must perfect his title within a reasonable time.” (Emphasis supplied.)

The foregoing is consistent with the holding in Gray v. Meek, 199 Ill 136, 139, 64 NE 1020, which is that where no time for delivery of a deed is fixed in an installment contract, it need not be ready until the last payment is made, and its unavailability is not a defense to payment of installments due. In Monsen v. Stevens, 56 Ill 335, 337, the court held that the fact that vendor did not have title at a time when he was not obligated to convey, was not a violation of a contract to sell real estate. On page 336, the court said:

“By the terms of the contract no conveyance was to be made until there was full payment. The last payment would not have matured until in October, 1872. The vendor and his grantee had, during the life of the contract, the right to acquire the title. Even upon tender of the purchase money vendee had no right to a conveyance at the time of commencement of this suit. The whole purchase money was not due. The time for performance had not arrived. The vendor, therefore, was under no legal obligation to fulfill his covenants before the time fixed by the contract.”

In Vulcan Corp. v. Cobden Mach. Works, 336 Ill App 394, 399, 84 NE2d 173, it was held that the fact that seller had only a contract for deed to the premises presented no defense to performance by the buyer for the reason that seller could acquire title at any time payment was tendered. Likewise, in Roeth v. Boehm, 331 Ill App 410, 73 NE2d 651, the existence of an unpaid mortgage did not render title unmerchantable so as to justify recission of a contract where it appeared the mortgage could be paid at any time.

If it is not required in an installment contract, in the absence of a provision to the contrary, that vendor actually have merchantable title prior to the time for conveyance, we do not see how he can be compelled to furnish an abstract showing merchantable title prior to that time.

We are not here presented with the issue of the circumstances under which a buyer under a long installment contract might obtain an examination of an abstract prior to the time for performance in order to advise himself of a potential anticipatory breach of contract because no formal demand for an abstract has been made, and there has been no refusal to furnish one. It appears that the abstract has been at the mortgage company, and that payments were to be made to the mortgage company.

Even an abstract brought to the date of the beginning of an installment contract would not absolutely assure one that the title would remain in this condition to the time of performance. It is enough, however, to say that the failure to furnish an abstract without a formal request therefor, would not, under the contract before us, be the basis for a recission by the buyer.

Considering now Count I of the suit, which is upon a $552 judgment note which has been referred to as a “down payment,” we find that the defense of failure of consideration is available. The only contract to which the “down payment” or any “payment” between these parties can have any reference is the real estate contract. This contract clearly recites:

“2. That, it is mutually agreed between the parties that the total purchase price to be paid by Buyers to Sellers shall be the sum of Twenty Thousand, Four Hundred Sixty-nine and 78/100 Dollars ($20,-469.78), with interest on the unpaid balance from this date at the rate of six percent (6%) per annum, payable in the following manner: The sum of One Hundred Eighty-Four and no/100 Dollars ($184.00) shall be paid to Sellers, or their designees, on July 15, 1966, and a like sum of One Hundred Eighty-Four and no/100 Dollars ($184.00) shall be paid on the 15th day of each month thereafter until the balance of the entire purchase price, plus interest, has been paid in full;....” (Emphasis supplied.)

We hold that the promissory note, which is not referred to in the contract for sale, could neither increase the total purchase price nor change the schedule of payments.

The judgment of the trial court should be affirmed as to Count I, and reversed as to Count H. The cause should be remanded to the Circuit Court with directions to enter judgment for the defendants as to Count I, and for the plaintiffs as to Count H. Leave should be given plaintiffs to amend Count II to include installments due up to the date of the judgment, and judgment should be entered for the installments due up to this date. In allocating the installments between principal and interest, interest should be computed to the date of actual payment.

Affirmed in part, reversed in part, and remanded with directions.

SMITH, P. J. and CRAVEN, J., concur.


source: Caselaw Access Project

author: CULBERTSON, J.

license: Public Domain

text:
    Richard D. Austin, Plaintiff-Appellant, v. The House of Vision, Inc., a Corporation, et al., Defendants-Appellees.
    Gen. No. 52,164.
    First District.
    June 13, 1968.
    Rehearing denied December 2, 1968.
    Mason, Albright, Stansbury & Rose, of Chicago, for appellant.

      Lawrence J. West and Leo Spira, of Chicago, for appellees.
   CULBERTSON, J.

Appeal has been prosecuted in this case by plaintiff, Richard D. Austin, from a judgment order of the circuit court of Cook County which dismissed an amended complaint against defendants, The House of Vision, Inc., and the trustees of its Employees’ Benefit Trust, wherein plaintiff sought to recover treble damages under the provisions of the Illinois Antitrust Act (Ill Rev Stats 1965, c 38, pars 60-1 thru 60-11), for injuries allegedly suffered as the result of a conspiracy to restrain competition in interstate commerce.

Facts gathered from the pleadings reveal that The House of Vision, Inc., hereinafter referred to as defendant, engages in the optical business directly with the public from offices located in eight different States. Eighteen separate offices are situated in the Chicago metropolitan area. In March, 1956, plaintiff, then an optical technician with fifteen years’ experience, was employed by defendant and thereafter worked in offices in and around Chicago. At no time was there a written contract of employment. On the date plaintiff’s employment began there was in existence The House of Vision Employees’ Benefit Trust, a benefit program for employees funded by their contributions and those of the employer. Whether participation was compulsory or voluntary does not appear, but plaintiff did become a participant. On July 9, 1958, with the express written consent of the participating employees, including plaintiff, the trust instrument was amended retroactively to provide as follows:

“Upon the written concurrence of a majority of the TRUSTEES, any employee whose compensation is $6,500.00 per annum or more, and any former employee whose compensation immediately before termination of his employment was $6,500.00 per annum or more, who divulges any of the EMPLOYER’S trade secrets to any competitor of the EMPLOYER, or who as owner, co-partner, director, officer, servant, shareholder or otherwise becomes interested in or connected with any person, firm or corporation in direct competition with the EMPLOYER shall, regardless of the number of years he was a participant, be paid by the TRUSTEES only the aggregate of his own contributions to the Trust, plus interest thereon at the rate of 3% per annum less the amount of any charges against his account for hospitalization benefits or term life insurance, and less distributions previously made to such employee, if any.”

Plaintiff voluntarily terminated his employment with defendant on June 15, 1966, and five days later started to work as an optical technician for a competitor of defendant. As of the termination date, plaintiff’s trust account in the benefit program came to $16,288.27, such sum being the aggregate of plaintiff’s contributions of $1,189.43, employer contributions of $6,854.73, and trust income of $8,244.11; however, under a formula evidently contained in the trust instrument, defendant calculated plaintiff’s vested interest as being $6,794.48. It further appears that plaintiff was, at the time his employment ended, indebted to the trust fund for a loan which, with interest to August 31, 1966, amounted to $4,281.53. On August 17, 1966, the trustees passed a resolution that plaintiff should be paid only the aggregate of his own contributions plus 3% interest ($1,348.03); that such amount should be applied to his loan indebtedness to the trust; and that a demand should be made for the immediate payment of the balance ($2,933.50) due on such loan. Plaintiff was duly advised of the trustees’ action and his amended complaint, praying for treble damages in the amount of $48,642.12 (less the amount due on his loan), was filed the following day.

We see no beneficial purpose to be served by a detailed recital of the amended complaint. Suffice it to say it purports to be based on section 60-3 (c) (2) of the Illinois Antitrust Act which makes it a violation of the law for any person to unreasonably restrain trade or commerce by contract, combination or conspiracy with one or more other persons. (Ill Rev Stats 1965, e 38, par 60-3 (c) (2).) Generally speaking, its theory is that the defendant company and the trustees of the benefit fund have conspired “to restrain competition in Illinois commerce by preventing former employees of the defendant corporation from competing with the corporation”; that the conspiracy has been carried out by the use of restrictive employment contracts, the trust provisions and “various forms of coercive activity”; and that such conspiracy “has resulted in an actual restraint of competition in Illinois commerce by reason of defendant’s monopolization and control of the availability of optical industry employees in Illinois commerce.” To obviate the circumstance that the trust instrument had been amended with plaintiff’s consent, the complaint alleged there had been an implied threat to discharge employees who did not consent. Section 60-7 (2) of our act provides that a person must “have been injured in his person or property” by a violation in order to maintain a private antitrust action, (Ill Rev Stats 1965, c 38, par 60-7 (2)) and, while inartfully pleaded, it is apparently plaintiff’s theory that the loss of the full amount which had been credited to him in the benefit trust fund is the injury which gives him standing to sue, and which proximately resulted from the alleged conspiracy. Indeed, plaintiff has suffered no other injury since the alleged “conspiracy” and “monopoly” have not prevented him from working for a competitor. The amended complaint was stricken and the cause dismissed on motion of defendants, and this appeal has followed.

Among other things, defendants’ motion pleaded the four-year statute of limitations provided in section 60-7 (2) as follows: “Any action for damages under this subsection shall be forever barred unless commenced within four years after the cause of action accrued.” (Ill Rev Stats 1965, c 38, par 60-7(2).) That contention is renewed by defendants here. And while we believe the amended complaint may be deficient in several respects, we deem it sufficient and expedient to consider only the issue of whether plaintiff’s claim is barred by the statute of limitations.

Although the Illinois Antitrust Act and its limitation provision are comparatively new, judicial guidelines are provided by many courts which have considered the question of when the statute of limitations begins to run in a civil suit for damages for violation of antitrust acts. It has been said that “private civil antitrust actions are founded, not upon the mere existence of a conspiracy, but upon injuries which result from the commission of forbidden ‘overt acts’ by the conspirators.” (Suckow Borax Mines Consolidated v. Borax Consolidated, 9th Cir, 185 F2d 196, 208.) For this reason, the act which produced the injury is the focal point in determining when the period of limitation starts to run. Where there are a series of illegal acts, each successively causing new damage, it is held that “(T)he statute of limitations in a civil conspiracy runs from the commission of the last overt act alleged to have caused damage.” (Steiner v. 20th Century-Fox Film Corp., 9th Cir, 232 F2d 190, 198; Daly v. Columbia Broadcasting System, 7th Cir, 309 F2d 83; see also: Toulmin’s Anti-Trust Laws, Vol 6, § 16.31, pp 427-428.) But where there is but one overt act from which subsequent damages may flow, it is held that the statute begins to run on the date the defendant invaded the plaintiff’s interest and inflicted injury, and this is so despite the continuing nature of the conspiracy. (Baldwin v. Loew’s, Inc., 7th Cir, 312 F2d 387, 390; Skouras Theatres Corp. v. Radio-Keith-Orpheum Corp., DCNY 193 F Supp 401, 405; Fleischer v. A.A.P., Inc., DCNY, 180 F Supp 717, 723; Toulmin’s Anti-Trust Laws, Vol 6, § 16.29, p 425.) Or, as the proposition was stated in Steiner v. 20th Century-Fox Film Corporation, 9th Cir, 232 F2d 190, 195: “In a continuing conspiracy causing continuing damage without further overt acts, the statute of limitations runs, as we have noted, from the time the blow which caused the damage was struck. Any further internal • injury affects the problem of how much should be claimed in damages, not the problem of when the statute of limitations commences to run.” Consistent with the latter view, Illinois courts have held that an action sounding in tort accrues at, and limitations begin to run from, the date on which there is a wrongful invasion of personal or property rights, regardless of the time when the full extent of the injury or damages sustained is ascertained. Reat v. Illinois Cent. R. Co., 47 Ill App2d 267, 197 NE2d 860; 25 ILP, Limitations, § 54, p 223.

In light of these established principles it is our opinion that plaintiff’s cause of action accrued, and the four-year limitation started to run, on July 9, 1958, when the benefit trust was retroactively amended to provide that employees who entered into competition against defendant would not receive full benefits from the trust. It was on this date that plaintiff was injured and his interest invaded by the defendants, and it is only from this alleged conspiratorial act, or “blow” as the court in Steiner characterizes it, that plaintiff can claim proximate injury. At the time he had been employed by defendant, and had been a beneficiary of the trust, for a period of slightly over three years. Thus, he had a greater interest in the trust than his own contributions, and an immediate cause of action as a result of the alleged act of conspiracy which invaded his interest. The circumstance that the alleged conspiracy continued and that the full extent of his damages could not be determined until he became a competitor of defendant has no bearing on the problem of when the statute started to run.

Support for the conclusion we have reached is found in the Baldwin (312 F2d 387), Skouras (193 F Supp 401), and Fleischer (180 F Supp 717,) decisions heretofore cited. In Baldwin, where it was alleged that defendants had conspired to force the plaintiff to lease a theater to a large circuit owner on terms inferior to those that would have been obtained but for the alleged conspiracy, it was held that the period of limitations was to be measured from the date the lease was executed and the conspiracy commenced, notwithstanding the fact that options to extend the lease were subsequently executed from time to time. Comparably, in Skouras, where the alleged conspiracy involved a pooling agreement between certain theater operators, it was held that statute of limitations started to run when the agreement was made, and that "the consequent overt acts resulting from the agreement were merely damages which flowed from the orginal agreement.” (193 F Supp at 406.) Fleischer likewise involved a contract and in holding plaintiff’s action was barred, the court said (180 F Supp at 723): “The injury under the antitrust laws, if any, was inflicted when the contract was made. The period of limitations is not extended by the fact that damages from that injury may have continued to accrue.” And so it was in the present case. The injury and the alleged conspiracy, if any, commenced on July 9, 1958, when the trust amendment purported to be aimed at a restraint of commerce was adopted, and it is from this date that the four-year period of limitation is to be measured. Accordingly, the plaintiff’s complaint was not timely filed and the cause of action was properly dismissed.

For the reason stated, the judgment of the circuit court of Cook County is affirmed.

Judgment affirmed.

ALLOY, P. J. and STOUDER, J., concur.


text:
    Geraldine P. Kuhns, Now Known as Geraldine P. Ellison, Plaintiff-Appellant, v. Donald P. Kuhns, Defendant-Appellee.
    Gen. No. 53,167. (Abstract of Decision.)
    First District, Third Division.
    August 1, 1968.
    Rosenberg & Kosin, of Chicago, for appellant; Jerome Berkson, of Chicago, for appellee.
   Opinion PER CURIAM. Not to be published in full.


author: MR. JUSTICE SULLIVAN

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Thomas Bass (Impleaded), Defendant-Appellant.
    Gen. No. 51,116.
    First District, Third Division.
    September 19, 1968.

      Allen H. Gerstein and Owen J. Murray, of Chicago, for appellant.
    John J. Stamos, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and Allen Gersh, Assistant State’s Attorneys, of counsel), for appellee.
   MR. JUSTICE SULLIVAN

delivered the opinion of the court.

This is an appeal from a conviction of robbery for which the defendant was found guilty after a jury trial and was sentenced to the penitentiary for fifteen to forty-five years.

The defendant, Thomas Bass, was tried jointly with one Cleon Robbins, and both were represented by the same appointed counsel. Both defendants were found guilty, and the appeal of Robbins was prosecuted separately and was decided by this court in People v. Robbins, 88 Ill App2d 447, 232 NE2d 302.

The defendant contends on appeal that he was denied effective assistance of counsel because counsel was confronted with a conflict of interests which was detrimental to him, and that this conflict was so apparent as to impose a duty upon the trial court to either require new counsel or a separate trial. The defendant further contends that he was denied due process of law by being subject to a pretrial confrontation of witnesses without the use of a lineup procedure and without the assistance of counsel.

On December 12,1964, two men entered the Chateau Du Eoi Hotel. The hotel house detective, Andrew King, was disarmed by one of the men, but when the other man discovered that the cashier, Estelle Williams, was calling the police, both men fled from the premises. Shortly thereafter, two police officers, having received a radio call concerning an armed robbery in the area, saw two men proceeding rapidly down the street and ordered them to stop. These two men were the codefendants, Bass and Robbins. Robbins stopped while Bass ran, whereupon Bass was shot in the hip by another police officer who had responded to the radio call. Bass was taken to the hospital for treatment of his wound and was subsequently brought to the police station, at which time he was interrogated and was viewed by Andrew King and Estelle Williams. Both witnesses positively identified the defendant as one of the men who had participated in the robbery which had occurred only a few hours earlier. The identification was made without the use of a lineup and without the presence of counsel representing the defendant.

The Public Defender was appointed to represent both defendants but subsequently withdrew from the case. Finally, counsel was appointed to represent both defendants at trial. The defendant at no time prior to the instant appeal made any objection to being jointly represented and jointly tried.

Both the defendant and Robbins pleaded not guilty to the charge of robbery. Robbins denied any participation in the crime, but near the close of the trial, the defendant, Bass, testified on direct examination that he did participate in the robbery and that Robbins was not involved in the crime but that a man named Eddie (whose last name and whereabouts were unknown to Bass) was his accomplice. Despite this testimony the jury, apparently relying on the positive identifications made by the state’s witnesses, found both defendants guilty.

The defendant now contends that his appointed counsel was enmeshed in a conflict of interests due to the denials of Robbins and the admissions by Bass, and that as a result of this conflict, counsel “martyred” Bass in an attempt to gain an acquittal for Robbins. In view of this alleged conflict, the defendant argues that the trial judge was under a duty, on its own motion, to require either new counsel or separate trials. This court fails to perceive any conflict between the interests of the codefendants. A finding of adverse interests cannot be based solely on mere assertions and unless the defendant can establish that such a conflict in fact existed at trial, this court will not indulge in speculation or conjecture to determine whether separate counsel was required. People v. McCasle, 35 Ill2d 552, 221 NE2d 227. In the instant case, it has not been demonstrated that the interests of the codefendants were conflicting or antagonistic. Neither Robbins nor Bass was attempting to establish his defense by implicating the other — a classic example of conflicting and antagonistic interests which would justify a severance. Admittedly, the incriminating testimony of the defendant Bass is unusual in a case where codefendants have pleaded not guilty, but this rarity does not affect our conclusion that there was no conflict between the codefendants.

In People v. McCasle, 35 Ill2d 552, 556, 221 NE2d 227, two defendants were tried jointly and convicted of armed robbery. One of the defendant’s contentions on appeal was that the court on its own motion should have appointed separate counsel so as to adequately defend the interests of each defendant. Both defendants had denied knowing the other and each had separate alibis. In rejecting the defendant’s argument, the court stated:

“There was no inconsistency in these defenses, and it was not improper for the same public defender to contemporaneously represent both defendants. As a general rule, jointly indicted defendants should be jointly tried unless their defenses are antagonistic, and a severance is neither required nor authorized where their defenses are not inconsistent. (Citing cases.) Additionally, there is no showing that defendant was prejudiced by counsel’s representation of both him and his codefendant, or that a different result might have obtained had separate counsel been appointed, and we ought not disturb a judgment on the basis of conjectural or speculative conflicts between the interests of codefendants which are envisioned for the first time on appeal.

It is worthy of note that in the case at bar, as in the McCasle case, the defendant made no objection to such joint representation either before or during trial. It is this significant absence of objection which renders Glasser v. United States, 315 US 60, 86 L Ed 680, inapposite to the case at bar. In Glasser, the defendant, an attorney himself, made specific objection when the trial judge appointed the defendant’s attorney, whom the defendant had personally selected, to represent a codefendant. Furthermore, counsel for Glasser expressed reluctance to represent both defendants due to several direct conflicts between the defenses of each defendant.

The defendant argues that counsel failed to vigorously cross-examine several of the state’s witnesses and refused to present certain motions requested by the defendant, and that these omissions clearly indicated an apparent conflict which dictated a severance on the part of the trial judge. We cannot agree. Counsel informed the court that the requested motions would, in his judgment, serve no legitimate purpose and would only have a dilatory effect on the proceedings. There is no indication in the record that such a judgment was unfounded. The record is replete with evidence of defense counsel’s attempts to protect the interests of both defendants during the course of the trial. At the inception of the trial, counsel made the following statement to the court:

“There is one other thing I wish to apprise the Court, and I just wish to reiterate for Mr. Robbins, Mr. Robbins’ defense will be that, and as he contended all along, he was not a participant in this particular situation and, however, he has and is willing to stand trial in this cause together with Mr. Bass and it is our belief that both Mr. Bass and Mr. Robbins wish to testify and insist on telling their story to the Court and jury.
“Is that correct?
“Mr. Bass: Right.” (Emphasis supplied.)

Counsel also stated:

“I advised both Mr. Bass and Mr. Robbins on the consequences of testimony from either one of them, possibly injuring the other in so far as their opinion, and they are fully advised.”

Prior to the defendant’s damaging admissions on direct examination, his counsel conducted the following preliminary interrogation of the defendant:

“Q. Mr. Bass, you have requested that you testify, is that correct?
“A. That’s right.
“Q. And you are willing to testify, and knowing that you have no obligation to take the stand and appear as a witness in this particular case?
“A. That is correct.
“Q. And it is upon your insistence that you have been advised by us as not having any obligation to testify, that you persist in testifying, is that correct, sir?
“A. That’s right.”

This court will not inquire into the motives for the defendant’s incriminating admissions on the witness stand or his apparent insistence on retaining a plea of not guilty. However, the record reveals that the defendant, having been fully apprised of his rights, felt compelled to admit his participation in the robbery and to exculpate Bobbins. In view of this insistence to testify, the defendant’s counsel could do very little. To require counsel to vigorously cross-examine witnesses in an attempt to discredit testimony which he knew would later be admitted to by his own client is to require the performance of a foolhardy and possibly damaging trial tactic.

The defendant makes the additional contention that such conduct on the part of his appointed counsel was so defective that he was denied his right to competent representation as guaranteed by the United States and Blinois Constitutions. Again it must be emphasized that in light of the rather unusual position in which defense counsel was placed, there is nothing to indicate that he did not act in a rational manner and had the defendant’s best interests in mind during the trial. The criteria to be used in evaluating counsel’s competency were set forth in United States ex rel. Weber v. Ragen, 176 F2d 579, at page 586:

"As to the requirement under the Fourteenth Amendment, the services of counsel meet the requirements of the due process clause when he is a member in good standing at the bar, gives his client his complete loyalty, serves him in good faith to the best of his ability, and his service is of such character as to preserve the essential integrity of the proceedings as a trial in a court of justice. He is not required to be infallible. . . . His client is entitled to a fair trial, not a perfect one.”

In People v. Ashley, 34 Ill2d 402, 411, 216 NE2d 126, the court said:

“. . . it is well settled that in order to establish incompetency of counsel, actual incompetent representation and substantial prejudice to the defendant as a result thereof must be established. (Citing cases.) Nor can charges of incompetency be based solely upon assertions.”

It is impossible to understand how the conduct of the defendant’s counsel in the case at bar could have substantially prejudiced the interests of a defendant who was determined to confess his guilt at trial. There is no reason to assume that the defendant would have acted any differently had he been represented by different counsel or had he been tried separately.

The defendant further alleges that he was denied the protection of the due process clause in that he was identified by the two witnesses without the use of a lineup and without the assistance of counsel at this stage. It has been well established in Illinois that the fact that an accused is not placed among a group when presented to the witness for identification does not fatally weaken such evidence but only relates to the weight and credibility to be given to such evidence. People v. Lamphear, 6 Ill2d 346, 128 NE2d 892; People v. Gardner, 35 Ill2d 564, 221 NE2d 232. The issue of the credibility of the identifiction by the state’s witnesses was within the province of the jury and it will not be disturbed by this court on appeal.

The United States Supreme Court decisions of United States v. Wade, 388 US 218, 18 L Ed2d 1149, and Gilbert v. California, 388 US 263, 18 L Ed2d 1178, have held that during a lineup or other identification procedure, a defendant is entitled to be represented by counsel. However, in a companion case, the United States Supreme Court made it clear that such a requirement was to have prospective application only. Stovall v. Denno, 388 US 293 (June 12, 1967). The court’s rationale for prospective application read in pertinent part:

“The law enforcement officials of the Federal Government and of all 50 States have heretofore proceeded on the premise that the Constitution did not require the presence of counsel at pretrial confrontations for identification. . . . The overwhelming majority of courts have treated the evidence question not as one of admissibility but as one of credibility for the jury. ... It is, therefore, very clear that retroactive application of Wade and Gilbert ‘would seriously disrupt the administration of our criminal laws.’ ”

Since the defendant was convicted prior to the Stovall decision, the Wade and Gilbert holdings are not applicable. We have found no Illinois authority prior to Stovall to indicate that the pretrial confrontation for identification should be deemed a “critical stage” of the criminal process thereby requiring the presence of counsel. However, the court in Stovall recognized that, independent of any right to counsel claim, an accused can be deprived of due process of law if the manner of confrontation “. . . was so unnecessarily suggestive and conducive to irreparable mistaken identification. . . .” Such a determination must be made from viewing the totality of the circumstances surrounding the confrontation. In the case at bar, we do not believe that the totality of circumstances was so wanting in fairness as to deprive the defendant of due process of law.

For the foregoing reasons the judgment is affirmed.

Affirmed.

DEMPSEY, P. J. and SCHWARTZ, J., concur.


author: MR. JUSTICE SEIDENFELD

text:
    Eleanor Traylor, Plaintiff-Appellee, v. The Fair, a Corporation, and Warren A. Miller, Inc., a Corporation, Defendants-Appellants.
    Gen. No. 51,995.
    First District.
    October 7, 1968.
    Rehearing denied November 26, 1968.

      Valukas & Depke, and Andrew J. Farrell, of Chicago, for appellants.

      Harry S. Posner and Jack Z. Cole, of Chicago (Fred S. Posner, of counsel), for appellee.
   MR. JUSTICE SEIDENFELD

delivered the opinion of the court.

The defendants, The Fair, a corporation, and Warren A. Miller, Inc., a corporation, appeal from the jury verdict and judgment entered in the First Municipal District of the Circuit Court of Cook County for the plaintiff, Eleanor Traylor, in the amount of Six Thousand Dollars ($6,000), and against both defendants, seeking judgment n. o. v. or, in the alternative, a new trial.

Plaintiff’s complaint charged the defendants “undertook to wave and set the hair of the plaintiff but did so in a careless and negligent manner.” No specific charge of negligence was pleaded. The defendants denied the material allegations of the complaint.

Plaintiff, age 42, a medical secretary, on April 11,1959, went to the defendant’s store for a permanent. She had been patronizing the establishment for a year. An operator identified by the plaintiff as “Gerry,” who had never worked on her hair before or since, washed the hair and combed it out. Then the hair was rolled and a “solution” was applied which remained on the hair for about half an hour during which time the operator was not present. On past occasions, the plaintiff testified the “solution” remained on for ten or fifteen minutes. She noticed a “burning” as the solution was being applied, called the operator’s attention to it, and a “salve” was put on her forehead and hairline. While the solution was on the hair, the plaintiff noticed a “tingling, burning sensation.” The rest of the procedure was uneventful.

That night the plaintiff noticed a seepage from her scalp into her eyes and onto her pillow. Two days following the occurrence she was seen by Dr. Albert G. Weiss, one of her employers. During the course of treatment, she noticed that her hair was falling out, and her hair remains thin to the present time. She testified to her prior excellent health and denied any prior history of hair or scalp disease. She also saw Dr. Zakon, a dermatologist, who did not testify at trial.

Dr. Weiss, although not a dermatologist, did testify. He said that when he first saw the plaintiff, she related a history of a permanent two days before and he “treated her for chemical burn.” Treatment continued through September of 1959, at which time he expressed the opinion that the condition of reddened and tender skin was permanent. He was not asked a direct question as to causal relationship between the application of the solution and the condition of ill-being.

On cross-examination, the doctor admitted he did not take any patch tests to determine sensitivity because he did not know what the solution was that had been used and could not tell whether it was capable of burning without knowing what it was. He testified, without objection, that other patients had told him of permanent waves causing burns. Additionally, the following appears in the record:

Mr. Skryd:
Q. “Your diagnosis seems to be based on what the patient tells you. It could be an allergic reaction, as far as you know, if you don’t know the chemical makeup of the product?”
A. “When the patient relates that while a cold permanent solution was being applied to her she noticed, at that time, a burning in her scalp — to me this is sufficient information to conclude that the solution created a chemical burn of scalp.”

Leonard Weber, M.D., a dermatologist, testified for the defendants. He examined the plaintiff and found evidence of seborrheic dermatitis, but no evidence of burn. He said permanent wave solution could not cause seborrheic dermatitis, that he was generally familiar with permanent wave solutions and that they contained no irritants. On cross-examination, however, he admitted that such solution could cause some transient redness of the skin in some patients. He could not testify as to the particular solution applied to the plaintiff’s hair and scalp.

Defendants offered no testimony as to the facts of the occurrence, but did offer an investigator who testified as to his efforts to locate the former employee.

The defendants urge three principal points in their appeal : First, the court erred in failing to direct a verdict because of the total failure of the plaintiff to prove actionable negligence. Second, the court improperly permitted the plaintiff to apply the doctrine of res ipsa loquitur and instructed the jury thereon. And thirdly the verdict of the jury was against the manifest weight of the evidence.

As to the first point, they argue that plaintiff’s proof was fatally defective in that she offered no evidence that the permanent wave solution produced the injury complained of. In support of this proposition, they cite Gibbs v. Procter & Gamble Mfg. Co., 51 Ill App2d 469, 201 NE2d 473 (1964); Tiffin v. Great Atlantic & Pacific Tea Co., 18 Ill2d 48, 162 NE2d 406 (1959); Bowman v. Woodway Stores, 345 Ill 110, 177 NE 127 (1931); Watts v. Bacon & Van Buskirk Glass Co., 18 Ill2d 226, 163 NE2d 425 (1960). A review of these authorities indicate that they are distinguishable from the present case on their facts and issues.

In Gibbs, supra, plaintiff alleged contact dermatitis, its onset coming four years after starting to use defendant’s product, “Cheer.” The evidence indicated that she was exposed to many products besides “Cheer” and that it was equally inferable that any one of many substances or products could have caused her injury. In Tiffin, supra, plaintiffs claimed injury as the result of eating tainted ham. They failed to establish, however, that the ham was tainted when it left defendant’s control and, indeed, the evidence tended to show that it was equally inferable, if not more likely, that the ham became tainted after it left defendant’s control. In Bowman, supra, plaintiff claimed injury as the result of drinking contaminated evaporated milk. Evidence produced by both sides showed it to be equally inferable that the injury could have been produced by the water with which the product was mixed. In Watts, supra, plaintiff sought recovery from a supplier of a plate glass door. However, the door was not within the control of the defendants at the time of the occurrence and, further, plaintiff pleaded specific negligence which he failed to prove. None of the four cases went to the jury on a res ipsa theory. Applying the rule announced in Pedrick v. Peoria & Eastern R. Co., 37 Ill2d 494, 229 NE2d 504 (1967), we cannot say on the state of this record that all of the evidence, discussed more particularly below, when viewed in its aspect most favorable to plaintiff so overwhelmingly favors the defendant that no contrary verdict based on that evidence could ever stand.

Defendants next contend that the doctrine of res ipsa loquitur was inapplicable to the case at bar. As a corollary, therefore, they argue that the court erred in giving jury plaintiff’s instruction No. 5, (IPI 22.02 and 22.01), the res ipsa instruction and, accordingly, erred in refusing defendants’ tendered instruction No. 12, (IPI 21.02), the instruction dealing with burden of proof in specific negligence cases.

It is well settled in Rlinois that to apply the doctrine of res ipsa loquitur, plaintiff must establish that the injury was caused by an agent or instrumentality within the control or management of the defendant, that plaintiff is free from contributory negligence and that the result is one normally not occurring without negligence in the control or management of the agency or instrumentality. Metz v. Central Illinois Electric & Gas Co., 32 Ill2d 446, 207 NE2d 305 (1965); Erckman v. Northern Illinois Gas Co., 61 Ill App2d 137, 145, 146, 210 NE2d 42 (1965); Cobb v. Marshall Field & Co., 22 Ill App2d 143, 159 NE2d 520 (1959); Oakdale Bldg. Corp. v. Smithereen Co., 322 Ill App 222, 54 NE2d 231 (1944). Defendants contend that plaintiff did not establish the instrumentality which caused her injury, and thus, the doctrine of res ipsa is inapplicable. True, Dr. Weiss was not asked the specific question as to whether, in his medical opinion, the injury was related to the application of the solution. However, a reading of his entire testimony clearly demonstrates that his diagnosis was that of a chemical burn. The patient’s history of the onset of injury afforded the basis for the Doctor’s expressed conclusion that this burn resulted from the application of permanent cold wave solution. A treating physician is permitted to consider the history given to him by the plaintiff in arriving at his medical opinion. We feel the instrumentality in this case was sufficiently identified to meet the requirement necessary for the application of the doctrine of res ipsa loquitur.

Counsel for both sides have cited many cases accepting and rejecting the application of the doctrine in beauty shop injuries. Defendants rely on Kraus v. Becker, Ryan & Co., 265 Ill App 525 (1932), a case involving injury sustained by plaintiff while under an electric hair dryer. The court held the doctrine of res ipsa inapplicable because “if there were any evidence in the record to sustain the contention that the electric device was not properly administered, that fact would afford a basis for explaining the cause of plaintiff’s injury and would amount to negligence. . . .” (Page 534.) (See Higgins v. Byrnes, 274 Ill App 440, 443 (1934).) Indeed, in Kraus, if there were evidence in the record to sustain the contention that the electric device was not properly administered, that evidence would afford the basis for a specific charge of negligence and plaintiff would not be required to utilize res ipsa in making out a case.

In this case the application of the permanent wave lotion was under the management of the defendants through their agent. The plaintiff took no part. Immediately after the application, plaintiff sustained injury, which, in the ordinary course of events, would not have happened if defendants were in the exercise of due care. Under these circumstances the doctrine of res ipsa loquitur applied and was properly before the jury on the pleading of general negligence.

We do not view the doctrine of res ipsa as an evidentiary short cut to excuse plaintiff’s inability or unwillingness to go to the trouble of making out a prima facie case. Since the doctrine first evolved, the scope of pretrial discovery has been greatly expanded so that one of the reasons giving rise to the doctrine, i. e., superior knowledge on the part of defendant as to the cause of the injury has, in some measure, diminished. We are not prepared to say, however, that such circumstance tends to render the doctrine inapplicable. Rather, our view is that the doctrine raises a permissive inference of the defendant’s negligence. Metz v. Central Illinois Electric & Gas Co., supra; Erkman v. Northern Illinois Gas Co., supra. Consequently, in such case, the defendant’s motion for a directed verdict, at the close of the plaintiff’s case, cannot be granted. While the burden of proof remains always with the plaintiff, the burden of refuting the evidence then falls to the defendant.

We deem it important to note that the defendants in this case offered no evidence to establish that the solution applied to the plaintiff’s hair and scalp was incapable of producing her injury, nor that it was used in conformity with manufacturer’s directions, nor that it was administered according to sound beauty shop practice. The defendants’ evidence was insufficient to rebut the possible inference of negligence as a matter of law.

Defendants also call to our attention Ravo v. Lido, 17 App Div2d 476, 236 NYS2d 135, a New York case in which plaintiff claimed injury as the result of cold wave permanent solution being applied to her head. There the court held the doctrine of res ipsa inapplicable, and in its reasoning distinguishes the chemical action of a cold wave solution from injury resulting from the application of an electrical device, as the chemical solution was not within the exclusive control of the operator. However, the court went on to say, “In the absence of proof which eliminates all other possible agencies for which the defendant would not be responsible, the rule of res ipsa loquitur is not applicable to establish that the cause was chemical toxicity.” We do not view the Illinois law as requiring elimination of all possible agencies by the plaintiff in order to establish a prima facie case. Heimsoth v. Falstaff Brewing Corp., 1 Ill App2d 28, at 35, 116 NE2d 193 (1954); Foster v. Union Starch & Refining Co., 11 Ill App2d 346 at 352, 137 NE2d 499 (1956). Defendants may introduce evidence of other possible causes and argue that evidence to the jury. We do not feel that the burden falls on the plaintiff to do so once the plaintiff has made out a prima facie case on the requirements above. We, therefore, hold the facts in this case warranted submitting the case to the jury on a res ipsa theory and, therefore, no error was committed in giving plaintiff’s instruction No. 5 and refusing defendants’ instruction No. 12.

Defendants’ third point is that the verdict is against the manifest weight of the evidence. In order for us to so hold, an opposite conclusion from the verdict of the jury must be clearly evidenced. Carter v. Winter, 50 Ill App2d 467, 200 NE2d 528 (1964), affd 32 Ill2d 275, 204 NE2d 755 (1965). Much of what we have said above is applicable to this point. Plaintiff made out a prima facie case under the doctrine of res ipsa. Defendants offered no testimony about the occurrence, and while the testimony of their medical witness regarding the nature of plaintiff’s condition conflicted with the testimony of Dr. Weiss, we believe this conflict in the evidence was properly an issue fact to be submitted to the jury. Defendants rely on Mabee v. Sutliff & Case Co., Inc., 335 Ill App 353, 82 NE2d 63 (1948), affd 404 Ill 27, 88 NE2d 12 (1949). This was a res ipsa case, reversed because the verdict was against the manifest weight of the evidence. However, this case is clearly distinguishable inasmuch as in that instance the instrumentality producing the injury was in plaintiff’s control at the time of the occurrence. We do not find it persuasive on the facts of this case.

Defendants claim further error in submitting as an element of damage plaintiff’s purchase of a wig, allowing plaintiff’s condition to be exhibited to the jury, and improper cross-examination of defendants’ investigator by plaintiff’s counsel. We find no prejudicial error in the trial court’s rulings on these questions.

For the foregoing reasons, the judgment of the trial court is affirmed.

Affirmed.

ABRAHAMSON, and DAVIS, JJ., concur.


author: MR. JUSTICE DRUCKER

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Cordell J. Cassell, Defendant-Appellant.
    Gen. Nos. 52,771, 52,772, 52,773. (Consolidated.)
    First District, Fourth Division.
    October 9, 1968.
    Rehearing denied December 4, 1968.

      Kenneth E. Wilson, of Chicago, for appellant.
    John J. Stamos, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and James R. Kavanaugh, Assistant State’s Attorneys, of counsel), for appellee.
   MR. JUSTICE DRUCKER

delivered the opinion of the court.

Defendant appeals his conviction, after a bench trial, of the crimes of deceptive practices (Case No. 52,773), unlawful use of a weapon (Case No. 52,772) and resisting arrest (Case No. 52,771). He received concurrent one-year sentences in the County Jail for each of the first two crimes, and was fined $100 for violation of the resisting arrest ordinance. On appeal he contends that he was prejudiced by the court’s failure to exclude certain evidence and that his guilt was not proved beyond a reasonable doubt. We will discuss defendant’s contentions as they apply to each individual case.

Case No. 52,773 — Deceptive Practices

Mary Kovacit testified that she was a cashier in the Polk Brothers Store at 8530 South Cottage Grove Avenue on April 10, 1967; that defendant and a Mr. Wiseman were together in the store some time after 9:00 p. m. buying records; that it was “close to closing”; that Wise-man gave her the credit card (introduced as People’s Exhibit 1) and signed the bill; and that while she was marking down the records they had purchased, defendant inquired about the price of a can of cleaner and requested that it be added to the bill.

Jacob Loefflel testified that he was an investigator for Continental Illinois Bank; that the credit card which had been marked as Exhibit 1 was owned by the Continental Illinois Bank; that it had been issued to one Thomas Harland; that it was turned in by Harland and returned to the bank on April 7 (three days before it was presented to Mary Kovacit at Polk Brothers); that he did not know what happened to the credit card; and that he saw it at the Kensington Police Station after he had been called by the police.

Police Officer George Howard testified that he and his partner, Officer Charles Arrington, observed three men sitting in an automobile parked in front of the Polk Brothers Store at about 9:00 p. m. on the day in question; that after he and Arrington had been watching about ten minutes, two men (later identified as defendant and Wiseman) got out of the car and went into the store; that neither he nor Arrington was wearing a uniform, nor was their car marked; that he and Arrington waited another ten or fifteen minutes and then approached the car. He said that Maurice Cassell was sitting alone in the car, that he observed that the back seat was loaded with groceries and other merchandise, and that he was told by Maurice Cassell that he had come with his brother who was in the store buying furniture. Howard testified that he saw defendant and Wiseman purchase merchandise with a credit card, that there had been a problem with the illegal use of credit cards in the district, and that the car had contained groceries from the only grocery store honoring credit cards. He stated that he asked them about the credit card; that Wiseman admitted the illegal use of the credit card; that defendant admitted coming to the store with Wiseman; that defendant asked, “How did you get wise to us ?”; and that he then advised defendant and Wiseman that they were under arrest.

Officer Charles Arrington testified that his testimony would be substantially the same as that of Officer Howard and added that he spoke to the cashier with whom Wiseman and Cassell had dealt to find out if a credit card had been used.

Defendant testified that he did not know Wiseman had a credit card not belonging to him; that he considered the records purchased Wiseman’s; that Wiseman paid for the records and that he had purchased nothing that day.

Defendant contends that there was insufficient evidence to establish his guilt beyond a reasonable doubt of deceptive practices. He argues that the prosecution failed to establish his complicity in the unlawful use of the credit card because there was no evidence showing that he was either connected with the purchases or that he knew of the credit card’s illegality. However, there was evidence that defendant was with Wiseman, that he selected a can of cleaner and had it added to the bill, and that he asked the police, “How did you get wise to us ?” Under these circumstances we are unable to disturb the conclusion of the trier of fact that defendant participated in the illegal use of the credit card.

Defendant also contends that the credit card should have been suppressed because it was taken from Wiseman in an illegal search and seizure. However, at the trial defendant made no objection to the admissibility of the card on that ground and made no motion to suppress this evidence. His failure to do so prevents consideration of this argument. People v. King, 26 Ill2d 586, 188 NE2d 11.

The judgment in Case No. 52,773 is affirmed.

Case No. 52,772 — Unlawful Use of a Weapon

Defendant first contends that the tear gas pencil introduced in evidence as State’s Exhibit 2 was the product of an illegal search and seizure and that his motion to suppress it should have been sustained. Defendant’s testimony was the sole evidence submitted on the motion to suppress. He testified that at the time and place in question he was merely browsing about the record department; that he had inquired about a defective needle he had previously bought in the store; that a police officer, after stopping defendant and identifying himself, asked him about a credit card; and that the police officer showed no warrant. He said that, at the time, no one had complained about him; that he had neither created any disturbance nor committed any crimes; that the police officer told him to go outside; that the officer looked inside defendant’s car and asked defendant to open the trunk and that he also searched defendant’s person where the tear gas pencil was found. On cross-examination the prosecution sought to establish that no force was used by the officer and that defendant complied with the officer’s requests voluntarily.

The State now argues that defendant produced the tear gas pencil voluntarily and it is, therefore, not the product of a search and seizure. However, we believe what the court said of similar circumstances in People v. Harr, 93 Ill App2d 146, at page 151, 235 NE2d 1, is appropriate here:

The facts do not justify the conclusion that defendant consented except as the consent was secured by the officer’s demand and the authority of his office.

The State also argues that even if this was a search and seizure, defendant had the burden of proving its illegality and he failed of that burden. A search without a warrant is legal if incidental to a lawful arrest. An arrest without a warrant is lawful if the police have probable cause to believe that the person arrested has or is committing a crime. People v. Erickson, 31 Ill2d 230, 201 NE2d 422. We agree that defendant bore the burden of proving that the tear gas pencil was taken in a search not incidental to a lawful arrest. Ill Rev Stats 1965, c 38, § 114-12. At the hearing on the motion the trial judge denied the motion to suppress saying that all that had been presented were defendant’s “. . . statements that he didn’t do anything.” However, under the rule enunciated in People v. Ezell, 61 Ill App2d 326, 210 NE2d 331 (abst), defendant’s evidence that the police officer had no warrant and that defendant was doing nothing unusual when stopped, made a prima facie case that the police lacked probable cause. The burden of going forward with evidence to negate it shifted to the State. Although the State offered evidence bearing on this issue in the trial itself, it failed to offer evidence to establish probable cause at the hearing. The tear gas pencil should have been suppressed. The trial court’s failure to do so constituted reversible error and, accordingly, the decision of the trial court in Case No. 52,772 is reversed and the cause remanded for a new trial.

Case No. 52,771 — Resisting Arrest

Defendant contends that his conviction of resisting arrest under chapter 11, section 33 of the Municipal Code of Chicago, was not proved beyond a reasonable doubt. However, the State concedes that in Landry v. Daley, 280 F Supp 968 (1968), the court held that this ordinance was unconstitutional in that it violated the First and Fifth amendments of the Constitution of the United States. Subsequently the city council repealed the ordinance. Thus we find it unnecessary to discuss the sufficiency of the evidence under this point and will reverse this judgment.

Because of what we have said above, the conviction of deceptive practices (No. 52,773) is affirmed; the conviction of unlawful use of a weapon (No. 52,772) is reversed and remanded; the conviction of resisting arrest (No. 52,771) is reversed.

Affirmed in part, reversed and remanded in part, and reversed in part.

MCCORMICK, P. J. and ENGLISH, J., concur.

       The three individual indictments were consolidated at trial and on appeal.

       Section 17-1 of the Code of Criminal Law and Procedure, section 17-1, c 38, Ill Rev Stats 1965, provides in part:
      17-1. § 17-1. Deceptive Practices.) A person commits a deceptive practice when, with intent to defraud:
      (e) He obtains, or attempts to obtain property, labor or services by any of the following means:
      1. he uses a credit card which was issued to another, without the other’s consent.


text:
    The City of Chicago, a Municipal Corporation, Plaintiff-Appellee, v. Jo Ann Williams, Defendant-Appellant.
    Gen. Nos. M-52,281, M-52,282. (Abstract of Decision.)
    First District, First Division.
    October 14, 1968.
    Rehearing denied November 27, 1968.
    Ward P. Fisher and Raymond E. Harth, of Chicago (Ward P. Fisher, of counsel), for appellant; Raymond F. Simon, Corporation Counsel, of Chicago (Marvin E. Aspen and RocLyne E. LaPorte, Assistant Corporation Counsel, of counsel), for appellee.
   Opinion by JUSTICE MURPHY. Not to be published in full.


author: MR. PRESIDING JUSTICE McCORMICK

text:
    Eleanor B. Roth, Counterplaintiff-Appellant, v. G. Wallace Roth, Counterdefendant-Appellee.
    Gen. No. 51,326.
    First District, Fourth Division.
    October 16, 1968.
    Rehearing denied and opinion modified January 8, 1969.

      Joseph I. Bulger, of Chicago, for appellant.
    Charles F. Short, Jr., of Chicago, for appellee.
   MR. PRESIDING JUSTICE McCORMICK

delivered the opinion of the court.

This is an appeal from an “order and modification of a decree” entered February 8, 1966, nunc pro tunc as of February 3, 1966. The order denied Eleanor B. Roth’s motion to strike and dismiss the counterpetition filed by G. Wallace Roth, and allowed the prayer of the said counterpetition in part by relieving G. Wallace Roth from the obligation of complying with certain settlement provisions embodied in a decree of divorce entered on July 25,1963.

On January 9, 1963, G. Wallace Roth (hereafter referred to as appellee) filed a complaint for divorce in which he charged Eleanor B. Roth (hereafter referred to as appellant) with desertion. On February 5, 1963, the appellant filed her answer to the complaint and a counterclaim for separate maintenance. The appellee filed his answer to the said counterclaim on February 25, 1963.

On July 23, 1963, the appellant filed an amended counterclaim for divorce. The divorce decree was entered on July 25, 1963. On November 4, 1964, appellant filed a petition alleging that the appellee had wilfully failed and refused to pay her the sum of $100 per month due on a note of $3,000, as provided by paragraph 2 of a property settlement agreement entered into by the parties. The agreement also contained the following paragraphs:

5. Wallace acknowledges that there is presently pending in the Probate Court of Cook County a certain cause #60 P 4473, Docket 616, Page 540 entitled In the Matter of the Estate of Norbert William Jeran and that the will, which has been duly admitted to probate, establishes a testamentary trust, described in said will as Trust B. Wallace further acknowledges that the res of said Trust B consists of assets having a present market value of approximately Ninety Thousand Dollars ($90,000.00) and further that under the terms of said testamentary trust, he and his brother, Robert R. Roth, will each receive Fifty Percent (50%) of said Trust B upon the death of their mother, Lydia J. Roth, who has a life interest in the income therefrom.
Wallace agrees to execute an irrevocable assignment in favor of Eleanor directing the Harris Trust and Savings Bank (or its successor in trust) as trustee of the aforesaid trust to pay to Eleanor, upon the death of Wallace’s mother, Lydia J. Roth, an amount equal to Fifty Per Cent (50 %) of his then interest in Trust B aforesaid. Wallace further agrees to obtain from his brother, Robert R. Roth, a release of any and all claims which Robert may have or hereafter claim to have as a contingent remainderman with respect to said trust. In the event of Wallace’s remarriage (if the parties hereto are divorced and Wallace thereafter remarries), he further agrees to enter into an antenuptial agreement containing a waiver and release by any such subsequent spouse to any and all right, title, claim, demand or interest in and to the foregoing assignment by Wallace of Fifty Per Cent (50%) of his aforesaid vested remainder.
In the event Wallace’s brother, the aforesaid Robert R. Roth, predeceases his mother, Lydia J. Roth, leaving no spouse or issue him surviving, thereby enhancing Wallace’s inheritance, Eleanor acknowledges that she has no claim to such additional increment and agrees not to assert any right, title, claim, demand or interest with respect thereto.
6. Wallace agrees to maintain insurance on his life in the sum of Twenty Five Thousand Dollars ($25,000.00) and to nominate and maintain Eleanor as the beneficiary thereof until the death of Wallace’s mother, Lydia J. Roth.

To the petition the appellee filed an answer and counterpetition on January 18, 1965, in paragraphs 2, 3 and 4 of which he seeks modification of the decree insofar as it provides that he pay the appellant the amount due on the note and that he pay her the sum of $25,000 out of an inheritance from his uncle’s estate. The reason assigned for the modification of the decree was that the appellant made “fraudulent, deceitful misrepresentations” for the purpose of having the provisions referred to incorporated in the decree. In his counterpetition appellee alleges that he agreed to the provisions in question because of certain representations allegedly made by the appellant as follows: a) What would she do in her old age? b) She might not be able to work forever, c) She had no marriage plans for the future, d) She felt insecure financially and needed some immediate supplemental income plus something for her future.

The counterpetition also stated that appellant had married a man of considerable means which eliminated the basis on which appellee had agreed to the certain provisions in the decree. On October 26, 1965, the appellee filed an amended petition in which he alleged that the appellant had voluntarily made misrepresentations on various dates on or about July 23, 1963, during pretrial conferences before the judge, including “a denial of marriage plans for the future,” and that as a direct result of such representation “the Court prevailed upon Petitioner, through suggestions and admonitions, in reliance upon said misrepresentations, to enter into said property settlement agreement, particularly Paragraphs 2, 5 and 6 thereof, . . .”

In support of the counterpetition appellee filed an affidavit setting forth the representations heretofore mentioned, also appellant’s statement, “It is ridiculous to think that I have any marriage plans. I do not have any marriage plans.”

Appellant filed a motion to strike and dismiss the petitions. Later, appellant also filed a motion and amended petition for rule to show cause, in which amendment she asked, among other things, for attorney’s fees for the prosecution of her petition.

On February 3, 1966, the court held a hearing and heard witnesses. The appellant at first objected to the hearing, but participated in it through her attorney and introduced documentary evidence. In McKinney v. Nathan, 1 Ill App2d 536, 117 NE2d 886, the court said at page 543:

“The parties may, by the introduction of evidence or their conduct in the trial, waive formal pleadings or form their own issues on the evidence introduced, and they may voluntarily present under the evidence issues not presented by the pleadings. An objection that a certain matter is not an issue under the pleadings or that it is not denied or properly denied may be waived by a party where he introduces or brings out evidence bearing on the subject, or tries the case as if the matter were not [sic] in issue.”

This rule goes back to the rule prevailing under the common law pleading practice in Illinois. Puterbaugh, Common Law Pleading and Practice, 10th edition, section 120; Unity Co. v. Equitable Trust Co., 204 Ill 595, 599, 68 NE 654; Head v. Wood, 20 Ill App2d 97, 103, 155 NE2d 348; Mooney v. Underwriters at Lloyd’s, London, 33 Ill2d 566, 570, 213 NE2d 283.

In the instant case the appellee’s former attorney was one of the witnesses at the hearing, and he testified that during the conference prior to the entering of the original decree, Mrs. Roth had stated, among other things, that “she had no plans and intentions of remarrying, and requested that a substantial settlement be afforded for her for the foregoing reasons. She denied that she had any marriage plans.”

The attorney-witness then testified that the court had stated that since Mrs. Roth had denied any intention of remarrying, the attorney for appellee had no basis for relying on an argument that the settlement was inequitable by reason of the likelihood of a remarriage. The judge of the court then said he wished to give his recollection of what transpired at the conferences, and this was objected to by the attorney for appellant. The attorney further testified that the judge stated that in his judgment, unless those matters or provisions were included there was no likelihood or possibility of settling the matter.

It is worthy of note that the decree of divorce was entered on July 25, 1963, and that in December of 1963 the appellee remarried. Thirty-one days after the decree of divorce the appellant married George V. Brown. The appellee testified that he had known Brown since 1947 and had introduced him to the appellant in 1948 or 1949; that he had worked with Brown as an attorney.

The court stated: “. . . within a period of 31 days from the date of the entry of this decree, Mrs. Roth married a mutual friend whom they had both known and with whom Mr. Roth had worked, and from the testimony here of Mr. Roth now, evidently she knew him from 1948 on.” The court further stated that had the appellant intimated or advised the court that she intended to marry Mr. Brown he would certainly not have induced the appellee to sign the property agreement.

The order was then entered modifying the decree, and recited, among other things, the alleged misrepresentations of the appellant, the most important of which was that “she did not have any marriage plans,” and that “in reliance upon said representations, the said G. Wallace Roth was induced to enter into a property settlement agreement dated July 23, 1963.” The order further set out that “likewise in reliance upon said representations, the Court approved said property settlement agreement; that said representations were false in that the said Eleanor B. Roth had prior to and during said pre-trial conferences made plans to marry one George V. Brown of Cleveland, Ohio,” and that she married him 31 days after the entry of the decree of divorce. The order stated that “said misrepresentations were a fraud on this Court and likewise fraudulent inducements to G. Wallace Roth resulting in his signing of the aforedescribed property settlement agreement.”

The decree provided that the appellee pay to the appellant the sum of money demanded in her petition, and that the motions to strike and dismiss the counter-petition and amended petition be denied; that the decree of divorce and the property settlement incorporated therein be modified by vacating and setting aside paragraphs 5 and 6 of the said property settlement agreement, and that the motion of the appellant for attorney’s fees be denied.

In Walters v. Walters, 341 Ill App 561, 94 NE2d 726, there is a full discussion of the distinction between alimony payable in installments and a gross amount awarded as alimony and incorporated in the decree. The court cites many cases, among them Plaster v. Plaster, 47 Ill 290, in which case the court said at page 294:

“. . . where a gross sum is decreed and received for, or in lieu of, alimony, it must be held to be in full discharge and satisfaction for all claim for future support of the wife. . . .”

The Walters case went to the Supreme Court on a certificate of importance and was there affirmed (409 Ill 298, 99 NE2d 342).

In Buck v. Buck, 60 Ill 241, the court held:

“Whether the alimony is too high ... it is not now necessary for us to express an opinion. It was competent for the plaintiff in error to consent to such a decree and having done so, it must remain forever binding on him.”

Many other cases are cited in the Walters opinion, all to the same effect, including Plotke v. Plotke, 177 Ill App 344, and Maginnis v. Maginnis, 323 Ill 113, 153 NE 654. On page 571 the court in Walters stated:

“That the award may be payable in installments is not determinative of the question as to whether it is gross alimony or periodic alimony. Gross alimony may be payable in installments — whether all cash or all or partly on credit does not affect the essential nature of the transaction. The principle involved is that gross alimony becomes a vested right from the date of the rendition of the judgment, and the manner of its payment in no wise affects its nature or effect.” (Emphasis in original opinion.)

Also see Kohler v. Kohler, 31 Ill App2d 151, 175 NE2d 603.

In the instant case, from the property settlement incorporated in the decree there is no question that the award was one of alimony in gross. However, another question is raised by the appellee who contends that even where there has been an agreement between the parties incorporating the money and property which are to be given to the appellant by the appellee, such agreement, even if incorporated in the decree, can be held to be void after it is entered into because of fraud and misrepresentation on the part of the appellant. In this case the charge is made that the appellant made false statements which induced the action of the appellee in entering into the oral agreement and also induced the court to incorporate the oral agreement in the decree of divorce.

In Plavec v. Plavec, 30 Ill App2d 345, 174 NE2d 578, the court held that upon proper grounds, relief from a final divorce decree, after 30 days from the entry thereof, may be had upon petition, as provided in section 72 of the Civil Practice Act. The court lays down the rule that generally, a misrepresentation to constitute fraud must relate to a past or existing fact, and not to the future. However, it is noted that in some cases “some promises, not misrepresentations of existing facts, wrongfully entered into with the intention to deceive and for the purpose of obtaining an advantage, may be the basis of equitable relief from a judgment or decree obtained by fraud.”

Under this rule, the petitions of the appellee in the instant case could properly be brought under section 72, and the court’s ruling denying appellant’s motion to dismiss on that ground was correct. In Van Dam v. Van Dam, 21 Ill2d 212, 171 NE2d 594 (cited in Plavec), the court held that a petition under section 72 of the Civil Practice Act is applicable, and said at page 215:

“At the outset, therefore, the question arises whether the relief sought by defendant’s petition in this cause would have been obtainable under a former bill of review, or bill in the nature of a bill of review. Those bills were, for practical purposes, divided into three general classes: (1) bills for error apparent on the face of the record, (2) bills to review a decree on account of new matter or newly discovered evidence, and (3) bills to impeach a decree for fraud. (Taylor v. Wright, 400 Ill 179.) ”

As we have pointed out, the court found that the representations made by the appellant that she did not have any marriage plans were false, and that at the time and prior to the pretrial conferences the appellant had made plans to marry one George V. Brown, whom she subsequently married. There is no evidence in the record to support the finding of the court. There is evidence that the appellant had been acquainted with Brown for a considerable period of time, but there is nothing in the record to show any communication or contact with Brown during the period in question. In order to vacate a decree of this character, embodying a voluntary agreement between parties, it is necessary that the evidence showing false representations must be clear and convincing. No such evidence appears in this case. Neither by the allegations of fact set up in the pleadings, nor by the matters brought out in the hearing was there any ground for modifying the original decree.

The judgment of the Circuit Court is reversed and the original decree entered on July 25, 1963, is reinstated in full.

Reversed.

DRUCKER and ENGLISH, JJ., concur.

       While it does not clearly appear from the record, it is certainly evident that the settlement conferences also covered the question of an amendment of appellant’s bill for separate maintenance, making it a bill of divorce, which would be heard without contest.