text:
    La Salle National Bank, etc., Plaintiff-Appellee, v. International Limited, Defendant and Third-Party Plaintiff-Appellant, v. Palatial Builders, et al., Third-Party Defendants-Appellees, and John Andermann and Marie Andermann, Plaintiffs-Appellees, v. Sterlingshire Manor Co., Inc., Defendant and Third-Party Plaintiff-Appellant, v. Palatial Builders, et al., Third-Party Defendants-Appellees, Raymond Green, Counterclaimant-Appellee, v. International Limited, and Sterlingshire Manor Co., Inc., Counterdefendants-Appellants.
    Gen. No. 69-208.
    Second District.
    September 25, 1970.
    Rehearing denied November 19, 1970.

      Nicholas T. Kitsos, of Chicago, and O’Brien, Burnell, Puckett & Barnett, of Aurora, for appellants.
    Rathje, Woodward, Dyer and Burt, of Wheaton, for appellee.
   MR. PRESIDING JUSTICE DAVIS

delivered the opinion of the court.

This is an appeal from a decree which was entered in two declaratory judgment actions, consolidated for trial, involving different, but related, parties, and parcels of real estate. In each action the plaintiff sought a determination that the defendant had improperly recorded a memorandum of sale contract, and sought an injunction restraining the defendant from claiming an interest in the land. In each action the defendant counterclaimed and filed a third-party action, claiming an interest in the land. The third-party defendants also counterclaimed and sought essentially the same relief as sought by the plaintiffs — a declaration that the defendants had no interest in the real estate.

The trial court entered a decree dismissing the original complaints, the third-party complaints, and all of the counterclaims except that of Raymond Green, a third-party defendant-counterclaimant. It found in favor of Green on his counterclaim, and by decree declared that the defendants had no interests in the real estate; that the contracts in question had been rescinded, and that the earnest money should be returned. The defendants— third-party plaintiffs — have appealed.

On April 21, 1966, three contracts were partially executed. Under the first agreement, Palatial Builders, Inc., as “Seller” agreed to sell to International Limited, as “Purchaser,” 129 subdivided lots, for a total consideration of $606,300. The LaSalle National Bank, as Trustee under Trust No. 34919, was a party to the agreement as legal titleholder to the premises. All of the parties, except the LaSalle National Bank, as Trustee, executed the agreement. Under the second agreement, the LaSalle National Bank, as Trustee under Trust No. 34924, as “Seller” agreed to sell to Sterlingshire Manor Co., as “Purchaser,” 70 unsubdivided nearby acres. This agreement was executed by Sterlingshire, but not by the Bank, as Trustee. The third agreement was between Palatial Builders and LaSalle National Bank, as Trustee of Trust No. 34924, as affiliated parties, and International and Sterlingshire, as affiliated parties. It provided, in part, that International would have the sole option of determining whether it would proceed to consummate the first transaction, but that Sterlingshire would have no option to purchase the real estate covered under the second agreement unless International consummated the first agreement. This agreement, likewise, was executed by all parties, except the Bank, as trustee.

The first agreement, which we shall call the “International Agreement,” was a twenty-five page document, which provided for the conveyance of the 129 lots in four, take-out units: the first unit to be conveyed on the “closing date,” the second within one year thereafter, the third within two years thereafter, and the fourth within three years thereafter. The “closing date” was defined as being fifteen days after the platting of all the lots and the receipt of a satisfactory preliminary report of title. The purchase price of $806,300 was to be paid as follows: $10,000 upon the execution of the agreement (which amount was paid on April 21, 1966); $163,900 upon the conveyance of the first take-out unit; and $4,700 per lot, upon the subsequent conveyances. Numerous other terms, many conditions and obligations were set forth in this contract, to which we shall refer herein when necessary.

The second agreement, which we shall call the “Sterlingshire Agreement,” provided for the conveyance of 70 acres of land, nearby the property in the first agreement: 17 acres of which was to be conveyed on the “closing date,” 17 acres on each of the first and second anniversaries of the “closing date,” and the balance on the third anniversary thereof. The “closing date” was a date in 1966, to be inserted by the parties at a later time. The purchaser, Sterlingshire, agreed to pay $5,000 per acre for this land, or a total of approximately $350,000. The purchase price was to be paid as follows: $101,500 on the “closing date”; $85,000 on the first and second anniversaries thereof, and the balance on the third anniversary.

The third agreement, as we indicated above, referred to the first two agreements. It stated that the parties intended that both such agreements were to be consummated “if at all possible.” This agreement related that International had the option, at its sole discretion, to determine whether to consummate the first agreement, but if it chose not to do so, it would lose its $10,000 earnest money payment. If International chose not to proceed, then Sterlingshire was not given the option of determining whether it wanted to consummate the Sterlingshire contract. But, if both parties to the Sterlingshire agreement determined to proceed, even though the International agreement was not consummated, then International was to have its earnest money refunded. In this manner, the third agreement spelled out the relationship between the first two agreements.

The parties to this litigation have devoted considerable space in their respective briefs with reference to the status of the legal title to the premises; to other agreements which affected the title to the various parcels of real estate, and to the question of who were the real parties in interest in the real estate. Suffice it to say that for the purpose of this opinion, the Bank held legal title to the premises, as trustee; Palatial Builders, Inc. acted as the true owner thereunder, and Raymond Green was the sole or substantial stockholder of Palatial and the ultimate interested party. Likewise, the Andermanns held legal title to the other parcel for the benefit of Raymond Green; and Sterlingshire and International were both controlled and owned by Bruno and Anthony Pasquinelli. So, in the final analysis, the plaintiffs and third-party defendants all represented the interest of Green and a close associate, and the defendants and third-party plaintiffs all represented the interests of the Pasquinellis. Each interest was acting, or contemplated acting, through corporate entities.

At the time the contracts were entered into, Palatial had commenced construction of four model homes, which, as a part of the transaction, International was to purchase at Palatial’s net cost. Some time in June of 1966, International entered on the premises and continued the construction of these homes which Palatial had started.

The meeting of April 21,1966, at which the agreements were signed, lasted from about 2:00 p. m., until about 11:00 p. m. The evidence was conflicting with reference to what transpired at this meeting, the intention of the parties relative to the purpose of the signed agreements, and what was to follow.

Witnesses for the Green, or seller interests, testified that at this meeting — which was attended by Green, the Pasquinellis, their respective attorneys and a realtor— the proposed agreements were discussed and changed throughout the nine-hour period; that a number of changes or additions were brought up late in the day, which the parties were unable to finalize; and that some of the discussed changes were: removing the sale of the houses from this transaction, and perhaps further separating the transactions so that the sellers would be assured of being able to obtain installment sale treatment for tax purposes, the grade of the roads and the costs if the roads were cut deeper, and the costs for water and sewer stubs. They further testified that Bruno Pasquinelli was leaving immediately for a Florida vacation; that he turned over his $10,000 earnest money check to his attorney and said that he wanted these agreements signed at that time so that he could enjoy his vacation, and that the lawyers could get together to firm the matters up and prepare the final agreements for signature.

The witnesses for the Pasquinellis, or purchaser interests, testified that the essential terms of the agreements were not to be altered after they were executed on April 21, 1966, and that the only changes to be made were those necessary to give the seller a more preferred tax treatment. They further testified that the sellers indicated that they could obtain the signature of the Bank, as trustee, to the agreements, the following day.

Among the changes in the subsequent contract drafts was the addition to the International Agreement of a provision which required the Purchaser to pay to the Seller a fee of $300 for a sewer tap-on for each residence at the time of the issuance of each occupancy permit, not to exceed 124 tap-ons. No such provision appeared in the first draft of the agreement, and it does not appear that this subject was discussed. The first agreement contained only a provision that no water tap-on fees would be charged, and this provision was retained in subsequent drafts.

Witnesses for the seller interests testified that the sewer tap-on fees were discussed at a meeting approximately one and one-half weeks subsequent to April 21, 1966, and that the purchasers objected at first to any sewer tap-on fee, but later, at this meeting, stated that they would pay the fee since they had to pay it to someone.

Between April 21, 1966 and July 26, 1966 — a date that later was set for closing — the parties met on several occasions to discuss and work out unresolved problems. The lawyers for the parties met at least three times a week, and worked on the agreements and redrafts. The lawyer for the purchaser testified to a total of more than forty hours spent between May 2, 1966 and July 18, 1966 at meetings, drafting more detailed instruments and in ironing out disputes concerning these transactions. In addition to the issue of the sewer tap-on fees, other questions arose, such as the responsibility for planting trees, the installation of water service, and the designation of a financial institution to hold the improvement monies in escrow. It appears that in the course of these negotiations, the attorney for the purchaser interests approved the redraft which incorporated the sewer tap-on fees.

In the early part of July, the purchaser interests sent the sellers a notice of a closing date on July 26, 1966. Bruno Pasquinelli had planned that all of the money for improvements, consisting of some $173,000, would be held in escrow by Evergreen Savings and Loan Association, the institution from which he was obtaining finances for this project. Green objected and stated that at least $100,000 of the escrow money had to be placed in the Park National Bank, but this was worked out to the satisfaction of both parties. They then proceeded to prepare for the July 26 closing by working on the necessary escrow instruments.

The July 26 closing was held at Chicago Title and Trust Company in Du Page County. Bruno Pasquinelli indicated he could not close on that date because he was concerned about his money lender’s escrow and he did not want to be forfeited out of the transaction by any hitch in the escrow arrangement. A dispute arose over the failure to close, but the sellers finally agreed to an extension to August 2.

The parties then decided to execute the final forms of the agreement and they returned to the office of Green’s attorney for this purpose. Bruno Pasquinelli there examined these agreements, said they had been changed from the original draft and objected to certain provisions, including the one which provided for the $300 fee for the sewer tap-on. Green’s attorney told Pasquinelli that he had agreed to the tap-on fees a number of times, but Pasquinelli refused to sign the agreements as rewritten. These agreements were never signed; at this point any cordial efforts to resolve their differences were abandoned, and the legal dispute followed.

In capsule form, the foregoing represents the genesis of these actions. The parties dispute many of the foregoing recited facts, and as to our summary of the “third agreement,” both parties contend it has a different meaning. After approximately a full month of trial and a review of the voluminous exhibits, including the lengthy basic agreements which were the crux of the matter, the trial court held that both parties had failed to perform under the International agreement, and that it had been rescinded. As to the second, or Sterlingshire, agreement, the court held that it was conditioned upon the performance of the first, and that it likewise, could not be enforced. Thus, the court ordered the parties, in effect, to be returned to their original positions. In view of the nature of the future performance required under the complicated and lengthy documents, the court further indicated that if it were to decree specific performance, constant and prolonged court supervision would be required. This, the court stated, was sufficient reason to deny the relief of specific performance.

Assuming that a contract existed, we agree with the finding of the trial court. However, we believe the decree of the trial court should be affirmed on another ground. The trial court decreed that the defendants had no interest in the real estate, and that International should have returned to it the $10,000 earnest money. The real issue on appeal is not the reasoning of the trial court nor the basis for its decree, but whether its decree was correct. Platz v. Walk, 3 Ill2d 313, 318, 121 NE2d 483 (1954); In re Estate of Lynch, 65 Ill App2d 162, 168, 212 NE2d 521 (1965).

We are compelled to the conclusion that the signing of the documents on April 21, 1966, did not give rise to binding contractual obligations. The Bank, as trustee, was a party to the International agreement, yet never signed it. More important, however, is the fact that in this complex and involved transaction which was to come into being under these agreements, there were matters not yet determined or resolved at the time of the April 21, 1966 meeting. The testimony of the attorneys for the respective parties is particularly revealing in this regard. From the end of April until the middle of July, they met on many occasions and devoted numerous hours in the preparation, drafting and redrafting of the documents, and in setting up the steps necessary to finalize the transaction. This included the preparation of final drafts of the basic agreements.

While there were a number of areas that had not been completely resolved — questions relating to the trees, water system, road frontage on the first takeout, and the legal action involving the Village of Willowbrook — a basic dispute arose relative to the question of fees for a sewer tap-on. The agreement which was partially executed on April 21, 1966, was silent on this question. The agreement did provide, however, that the seller warranted that no tap-on fees would be charged for connecting the water main. The presence of this express provision —that there would be no fees for water tap-ons — in the absence of a similar one relative to a sewer tap-on fee, might itself suggest that a sewer tap-on fee was anticipated. Suga v. Suga, 35 Ill App2d 355, 359, 182 NE2d 922 (1962); Mid-Continent Films v. Essanjay Films, 34 Ill App2d 154,159,160,180 NE2d 748 (1962).

The setting, at which the April 21, 1966 agreements were signed, seems important to us. A number of items had not yet been resolved as was manifested by the lengthy meeting on that date, at which changes were made throughout in the agreements. Bruno Pasquinelli was anxious to leave that evening for Florida and wanted to be assured before he left that he had a deal. Thus, he was willing to leave his $10,000 earnest money with his attorney, even though all of the parties to the agreement were not there and obviously could not sign the agreements, and even though it was known and understood by the parties that the proposed agreements were not final and had to be redrafted. The basic dispute was relative to the nature and extent of the redrafting.

The witnesses for the seller interests testified that at the meeting in early May the sewer tap-on fee provision was presented, and that while Bruno Pasquinelli initially objected, he subsequently consented since he would have to pay the fee to someone. The seller’s attorney testified that at the July 26, 1966 meeting he told Pasquinelli that he had agreed a number of times to pay this fee. It appears that Pasquinelli’s attorney approved the final draft of the contract, which included the provision for the payment of the sewer tap-on fee. But, Pasquinelli stated unequivocally that he never agreed to include the payment of this fee in the contract, and that the only changes in the initial contracts to which he consented were those which would have a tax effect on the seller.

In Scott v. Fowler, 130 Ill App 172 (1906), affd 227 Ill 104, 81 NE 34, it was contended that a series of correspondence constituted a complete contract between the parties. The court rejected the contention that there was a completed contract, and stated that under the facts of the case it was clear that the parties contemplated that a formal agreement should be executed by them before they became bound. On page 178, the court stated:

“In B. & O. S. W. Ry. Co. v. The People, 195 Ill 423, the court quotes with approval from the American and English Encyclopedia of Law (vol 7, 2nd ed p 140) as follows: ‘Many cases occur where parties negotiating a contract contemplate that a formal agreement shall be drawn up and signed. The question arises, does such a contemporaneous understanding and agreement make the validity of the contract depend upon its being actually reduced to writing and signed. The true rule may be stated in these words: Where the parties make the reduction of the agreement to writing, and its signature by them, a condition precedent to its completion, it will not be a contract until that is done. And this is true although all the terms of the contract have been agreed upon. But where the parties have assented to all the terms of the contract, the mere reference to a future contract in writing will not negative the existence of a present contract/ ”

In El Reno Wholesale Grocery Co. v. Stocking, 293 Ill 494, 127 NE 642 (1920), the court, in holding that the complete execution of a formal agreement was required under the facts of the case before the contract could be considered binding, stated at page 501 “that the question resolves itself into a determination of the intention of the parties as to whether or not the preliminary negotiations should be considered a contract or whether the contract should not be considered binding until formal agreement had been drawn and executed.” Also see: 17 Am Jur2d, Contracts, §§ 23-25.

In the case at bar, the parties had the benefit of a more formal document than a series of letters. They also took steps to implement the intended development, but throughout, it was intended that a final contract, to which all parties assented, would be executed to evidence the obligations of each to the other. We believe that this was intended as a condition precedent to the agreements taking effect, and to each party becoming bound to the other in the series of events that was to follow in this transaction.

As we have said before, the agreements signed on April 21, 1966, were silent as to the sewer tap-on fees although they expressed the obligation of the parties as to the water tap-on fees. The question of the sewer tap-on fees was not an insignificant part of the transaction, as is evidenced by this dispute, and the testimony of Bruno Pasquinelli that it involved approximately $40,000, and that in his opinion the seller was attempting to add this amount to the purchase price by means of the tap-on fee. As detailed as the contract provisions were on the various conditions of sale, the subdivision improvements and development, and as specific as they had to be in view of the complexities of the transaction, it is inconceivable that the parties did not intend that the obligations of each as to the sewer tap-on fees would be spelled out in their final contract.

The absence of the provision does not suggest what the obligation might be as to this fee, unless the somewhat artificial presumption is made that the purchaser was to pay this fee because of the presence of the contract provision relating to water tap-on fees. But, it is just as inconceivable that the parties, who had meticulously covered so many and varying details, would intend that this important matter should be resolved by not referring to it. Nor, does it seem likely that the purchaser would assume liability for such fees without determining their limit.

If a binding contract is to come into being— other than a contract implied in law or quasi-contract— it is essential that the parties to the agreement have a meeting of the minds, and that they truly assent to the same things in the same sense on all of its essential terms and conditions. Bailey v. Eater, 53 Ill App2d 37, 42, 202 NE2d 656 (1964); 12 ILP, Contracts, § 31.

In at least two respects, we believe that the parties failed to have a meeting of the minds on items essential to this transaction. First, under the unusual and somewhat premature manner in which these agreements were partially executed, we deem it essential to the formation of a contract, that the parties understood and agreed to the extent to which these documents could be changed, added to, and otherwise modified in their finalization. The circumstances strongly suggest that the purchaser did not assent to adding any additional terms to the instruments; and that the only changes to which he assented were those which would have tax consequences for the seller but no other effect on the contracts as they then existed. The seller, however, intended that the matters which had not been finalized should, and would, be completed in the executed documents, even if it meant including provisions and conditions not covered in the existing documents.

In the second respect, we believe that the contract, as written, did not effectively provide for the obligation of payment for the sewer tap-on fee. The seller intended that the purchaser should be responsible for this fee; and the purchaser intended the opposite. Neither had any real basis in the contract documents to support his position; it was left uncovered. We conclude from all of the circumstances that there was no meeting of the minds on this essential matter.

To summarize, there is little agreement in the record before us as to what was said and agreed upon at the various meetings between the parties. Under such circumstances, it is difficult to conclude exactly what the parties agreed to. However, it seems fair to conclude that they did intend that a subsequent document would be the one which would finalize and bind the parties. We conclude this, not only from the testimony of the parties as to what was said at the April 21, 1966 meeting, but from the nature of the meeting, its length, the numerous matters that had to be covered and changed at that time, the form of the agreements at the end of the meeting, the hour that it ended, and the apparent haste or anxiety on the part of the purchaser to get something signed before he left on vacation.

As to the tap-on provision itself, it appears from the record that the purchaser’s attorney did approve the final contract with this provision in it. The seller apparently thought from what was said at the meetings, or perhaps from what was said or done by the attorney for the purchaser, that the purchaser had assented to this fee. However, we accept the purchaser’s testimony — at least insofar as it indicates his intent — that he did not intend to do so. At the same time, we believe that the seller intended this to be a charge to the purchaser, and that the seller thought the purchaser had assented to this fee. There was basis for each to believe as he did, but there was no meeting of the minds. For these reasons, we hold that the parties did not form a binding contract. This issue was presented to the court below, and, we believe that it represents a valid, although not the assigned basis for its decree.

Assuming that a valid contract did exist, we do not disagree with the holding of the trial court that the subsequent conduct constituted a rescission in that time was expressly of the essence, and both parties had failed in some manner in their performance. Under such circumstances, neither party would be entitled to specific performance, and a rescission, not a forfeiture, would occur. Under a rescission, the parties would be restored to their original positions. Neither specific performance nor a forfeiture may be declared until such time as the moving party has complied with all of the provisions of the contract. Horan v. Blowitz, 13 Ill2d 126, 131, 148 NE2d 445 (1958); O’Malley v. Cummings, 86 Ill App2d 446, 452, 229 NE2d 878 (1967).

The defendants also contend they were denied procedural due process by virtue of the fact that they were not afforded sufficient notice by the pleadings to apprise them of the issues which they were called upon to defend. Specifically, they argue that the issue of rescission was raised only in Green’s counterclaim, which was filed after the trial had commenced. When we view the mass of pleadings, it is apparent that the material facts essential to a finding of rescission were alleged in the answer to the third-party complaint, i. e., the failure of the third-party plaintiff to deposit the funds as required by the contract. The issue of performance was raised well in advance of trial. The legal issue of whether the failure of performance was sufficiently substantial to support rescission was raised within ample time to afford the defendants an opportunity to defend. A fundamental requisite of procedural due process is that every man shall have the protection of his day in court and the benefit of an orderly proceeding according to established rules and the general law; and that the hearing shall not be arbitrary, but rather, shall afford to him an opportunity to be heard in his defense, and shall assure to him an inquiry on the issues of the case wherein judgment is rendered only after trial. There must be an intrinsic fairness of procedure by which a judgment or decree is rendered. Pettigrew v. National Accounts System, Inc., 67 Ill App2d 344, 351, 213 NE2d 778 (1966). We believe there was such fairness in this case.

We find no merit to the defendants’ contention that they were also denied procedural due process by reason of the court’s refusal to admit certain evidence from a particular bank’s records, or the manner in which records were obtained from Mr. and Mrs. Andermann. The particular bank records were not relevant to the issues; and in any event, the bank officer was subsequently examined at length by the counsel for the defendants as to these same matters. We find no prejudice from these rulings of the court.

The defendants also contend that they were denied a jury trial to which they were entitled. They had filed a jury demand with their answers. They contend that the trial court had power to disregard the jury demand as to the original chancery proceeding, but that under Counts II, III and IV of their third party complaint, wherein money damages were sought, they were entitled to a jury trial.

On July 18, 1967, an order was entered setting the cases for trial on August 21, 1967; on August 16, 1967, an order was entered continuing the trial to September 7, 1967; on September 6, 1967, an order was entered consolidating the cases and setting them for trial on October 23, 1967; on November 3, 1967, an order was entered setting the case for trial on December 18, 1967; on the last mentioned date the case came on for trial, but the judge was ill and the case was placed on a standby basis for trial at such time as the judge returned.

On each of these occasions, the case was set for trial before a judge without a jury, without any objection. Counts II, III and IV, upon which the defendants rest their right to a jury trial, were not even filed in this case until more than two weeks after the proofs were closed. It has long been the law that the right to a trial by jury may be waived by a party proceeding to trial before the court without objection. The People v. Czaszewicz, 295 Ill 11, 15, 128 NE 739 (1920); Williams v. Frank, 85 Ill App2d 85, 86, 229 NE2d 408 (1967). The conduct of the defendants in this case constituted such waiver.

The defendants complain that it was error for the trial court to include a declaration of property rights in the decree. We find no merit to this contention. In rendering a declaratory judgment, as sought by the pleadings in this action, the trial court may grant consequential relief, and it should grant such relief as it finds necessary and proper to the determination of the controversy before it. Andrews v. City of Springfield, 56 Ill App2d 201, 216, 205 NE2d 798 (1965); Koziol v. Village of Rosemont, 32 Ill App2d 320, 329, 177 NE2d 867 (1961).

Also, the defendants claim that it was error for the trial court to dismiss Counts II, III and IV of their third-party complaints wherein money damages were sought. First of all, our holding that there were no valid, binding contracts — which requires an affirmation of the decree of the trial court to the same extent as did the trial court’s finding of rescission — supports the dismissal of the counts seeking money damages for the breach of contract, fraud, misrepresentation, conspiracy and interference with the contracts. Secondly, we further believe that the trial court properly dismissed these counts in that they raised entirely new and different issues and matters, wherein money damages were sought, and that they were not filed until two weeks following the end of the four-week trial.

The defendants also complain of the trial court’s refusal to grant them relief under section 41 of the Civil Practice Act (Ill Rev Stats 1969, c 110, par 41), which provides for the payment of fees and expenses incurred by reason of allegations of another party, made without reasonable cause, not in good faith, and found to be untrue. Both parties to this litigation had filed such motions. The trial court fully considered and denied these motions. We agree that some of the pleadings might have been more precise than they were, but we are satisfied that the trial court could correctly find that neither party acted in bad faith and without reasonable cause with reference to the allegations made in pleading their case. Accordingly, the trial court should be affirmed as

having properly exercised the discretion it possesses in this respect. Horween v. Dubner, 68 Ill App2d 309, 319, 320, 216 NE2d 288 (1965); Dean v. Kirkland, 301 Ill App 495, 509, 510, 23 NE2d 180 (1939).

For the reasons set forth above, the decree of the trial court is affirmed.

Decree affirmed.

ABRAHAMSON and SEIDENFELD, JJ., concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    People of the State of Illinois, Plaintiff-Appellee, v. James Lee Archibald, Defendant-Appellant.
    Gen. No. 70-22.
    Fifth District.
    September 30, 1970.

      Lance Callis, of Granite City, for appellant.
    William J. Scott, Attorney General of State of Illinois and Thomas J. Immel, Assistant Attorney General, of Chicago (R. W. Griffith, State’s Attorney of Madison County, of Edwardsville, of counsel), for appellee.
   PER CURIAM.

Defendant James Lee Archibald appeals from a judgment of conviction of armed robbery, and a sentence of five to ten years in the penitentiary after a jury trial.

Near midnight on November 25, 1968, Michael Duckett and Rudy Tipton, both army personnel stationed at the Granite City Army Engineer Depot were robbed at gunpoint. Duckett and Tipton went to a tavern known as the Eldorado Lounge that night in Venice, Illinois, where they met a person identified as Calvin Hall. They all left the Eldorado and went to an establishment known as Eddie’s Lounge near Madison, Illinois. After having a few drinks there, Hall asked them if they could drive a friend of his home. The whole party went outside where Duckett and Tipton were introduced to James Archibald. Duckett shook hands with him, and all four got into Duckett’s car and drove away. Archibald’s instructions led them into a residential neighborhood where he told Duckett to stop the car and produced a gun. Duckett and Tipton were then relieved of their valuables, including the car, and told to start running. They ran to the home of a Mr. Jones, where they called the police.

Later, when Duckett recovered his car, he discovered that his engraved bowling ball was missing. Mrs. Isolda Masters, the proprietress of the Tri City Pawn Shop in Madison, testified that on November 26, 1968, Archibald entered her shop and pawned a bowling ball upon which was engraved the name “Mike Duckett.” Archibald signed the pawn ticket.

When Archibald was arrested, Tipton’s driver’s license and Duckett’s military I. D. card were found in his wallet.

At the trial, both Tipton and Duckett identified James Archibald as one of their armed assailants.

Appellant first contends that the trial court erred in excluding from evidence a letter from Calvin Hall, dated January 20, 1969, which he claims contains statements exculpating him and against the penal interest of Hall.

At the close of the State’s evidence, appellant’s attorney offered into evidence on behalf of appellant, the following letter:

“Jan. 20,1969
“To the Judge of Madison County:
“I am Calvin J. Hall and I wish to state that James Archibald did not commit the offense of Armed Robbery on Dec. 2nd. This James Archibald was not in the vicinity at that time. I meet him later that night, and I meet Sgt. Norris of Madison Police Dept. He told me that Police Chief need to see me. I sold him a bowling ball that Mr. Archibald is accused of stealing.
(signed): Calvin J. Hall”

Upon objection by the State, the trial judge asked defense counsel if Hall was available and the defense attorney replied, “Not to my knowledge.” The trial judge then sustained the objection.

It is the rule in every jurisdiction that before evidence of this kind should be admitted, it must first be shown that the declarant is unavailable to testify by reason of death, illness, insanity, or that he is out of the state. Wigmore, Vol 5, § 1456, p 260. This rule has been expanded somewhat in some jurisdictions to include unavailability because of the assertion of a constitutional right. For example, in People v. Brown, 26 NY2d 88, 257 NE2d 16, the court said, “The rule in New York should be modernized to hold that an admission against penal interest will be received where material and where the person making the admission is dead, beyond the jurisdiction, and thus not available; or where he is in court and refuses to testify as to the fact of the admission on the ground of self incrimination.” Since no attempt was made to show that Hall was unavailable to testify for any of the foregoing reasons, the trial court properly sustained the objection to the Hall letter.

Appellant also urges that the State’s closing argument was so seriously prejudicial as to prevent the appellant from receiving a fair trial. He argues that the prosecution’s assertion that the State’s evidence was uncontradicted constituted an improper comment on the failure of the defendant to testify. This argument has been held proper in People v. Norman, 28 Ill2d 77, 190 NE2d 819; People v. Jones, 33 Ill2d 357, 211 NE2d 261.

He also urges that the State committed reversible error when the prosecutor told the jury that the defendant was a very identifiable person. Defense counsel had argued that the State’s identification evidence was inadequate. By way of answer the prosecutor asked the jury to look at defendant and said, “He is a very identifiable person.” We see nothing improper in this statement.

We wish to thank appointed counsel for writing an excellent brief on all aspects of this case.

For the foregoing reasons the judgment of the Circuit Court of Madison County is affirmed.

Judgment affirmed.


author: MR. JUSTICE ABRAHAMSON

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Forthune Humphrey and James Grashen, Defendants-Appellants.
    Gen. No. 68-177.
    Second District.
    October 2, 1970.

      John T. Beynon and Alvin Liebling, of Rockford, for appellants. '
    Philip G. Reinhard, State’s Attorney of Winnebago County, of Rockford, for appellee.
   MR. JUSTICE ABRAHAMSON

delivered the opinion of the court.

The defendants, Forthune Humphrey and James Grashen, were tried in the Circuit Court of Winnebago County for the offense of armed robbery which occurred on November 15, 1967, in the City of Rockford. They were tried jointly and filed certain pretrial motions — for severance, change of venue, to suppress evidence illegally seized, and to suppress an alleged confession by defendant Grashen, all of which were denied. However, before trial, the defendants and the court were advised by the State’s Attorney that the confession would not be offered into evidence and it was not. A jury found them guilty as charged in the indictment and each was sentenced to a term of not less than 5 nor more than 15 years in the Illinois State Penitentiary, whereupon the defendants filed motions for a new trial, which were also denied.

Defendants appeal from the guilty verdict and from the judgment and order of the court on July 27, 1968. They contend (1) the guilty verdict of the jury and the judgment and order of the court are not supported by the evidence beyond a reasonable doubt and to a moral certainty; (2) it was reversible error against defendant Humphrey not to sever the trials of the defendants inasmuch as their defenses were antagonistic to one another, contrary to federal constitutional guarantees and provisions of the law; (3) it was reversible error not to heed the direct prohibition against admitting into evidence pretrial hearsay statements of certain witnesses; and (4) it was reversible error to admit into evidence the prosecution exhibits which were the fruits of illegal searches and seizures.

Because of defendants’ allegations, it is necessary to detail the evidence. Forthune Humphrey and James Grashen, of Milwaukee, Wisconsin, drove Grashen’s mother’s automobile from Detroit to Rockford accompanied by two girls, Tonie Thomas and Patricia Brad. The automobile was described as a 1959 dirty white Pontiac bearing Wisconsin license plates, with a loud muffler, primer spots and four bars on the rear fender. They shopped that evening and Humphrey rented a room at the Faust Hotel under an assumed name, which he used because of his civil rights activities. The night desk clerk testified that the time was about 11 p. m. on November 14, 1967. The defendants testified they went to a friend’s home, Hollis Callier, who told them that the Noble Grocery Store was open where they could purchase food and soft drinks. They went to the store, the girls going in first for cokes, and the two men entering shortly thereafter to buy soda crackers. They returned to Hollis’ home where they drank whiskey they had with them, ate and talked until after midnight. They arrived at the Faust Hotel again about 1:30 a. m. on November 15 and the night desk clerk checked them into a second room at that time. Grashen also used an alias when he rented the room. At 4:00 a. m. that morning they were arrested by several members of the Rockford Police Department.

Betty Kelly, the clerk in Noble’s grocery, testified that she was robbed by the two defendants about 1:30 a. m. on November 15, 1967. The taller man, Humphrey, held a gun while Grashen took a stack of $1 bills, some fives and one or two tens from the cash register. She stated that at the time of the robbery Humphrey was wearing blue glasses, a hat, a scarf and a light colored, regular length trench coat with a torn lining. She said he looked the same in court as at the time of the robbery except that his beard was longer. She also stated that Grashen, who was the shorter of the two, looked the same in court as at the time of the robbery except that his hair was different and he appeared thinner. She said he resembled another person of her acquaintance.

While the robbery was in progress a customer, Don Ingram, entered the store. At the trial, Ingram testified that he was the only customer in the store when the defendants entered and that Humphrey had the gun and Grashen took the money from the register. He made a positive in-court identification of the two defendants.

A John Sanders notified the Winnebago County Sheriff’s Office of two suspicious looking individuals being in Noble’s store prior to the robbery and described the individuals as one being about 21 years of age, 6 feet tall, wearing a full length tan coat, black hat and blue granny glasses, and the other as about 19 years of age, 5 feet 5 inches tall, wearing a brown jacket with a pompadour hair style. Sanders was not subpoenaed to testify because he was serving in the army in Missouri at the time of the trial.

Another witness, Mrs. Kreger, testified that she notified the police of a suspicious looking vehicle which she described as a dirty white or beige car with double fins and four silver bars on the back fender parked across the street from her home between 1 and 2 a. m. on November 15. Her home is located about 2 blocks north and a quarter block east of Noble’s Grocery Store. The automobile first parked headed east with the motor running and then left. Five or ten minutes later, the car returned and parked headed west. Two men got out, one wearing a fingertip length coat and the other wore a shorter jacket. They walked in the direction of Noble’s store. About ten to fifteen minutes later she heard a piercing whistle and the car left.

One of the Rockford police officers testified that while responding to the call concerning the robbery of Noble’s store they saw a white 1959 Pontiac automobile with Wisconsin license plates No. U 44 458, a loud muffler, and bars on the side of the fender. He stated that the automobile was occupied by two Negro males and two Negro females. Upon identifying the automobile when he saw it parked in the Faust Hotel parking lot about 4 a. m. on November 15, he and three other officers entered the hotel and talked with the desk clerk, a Mr. Phelan, who told them two Negro couples were occupying rooms on the 6th floor. The police officers proceeded to Room 623 where they found Grashen and one of the girls. They took a .32 automatic from Grashen and found $109 in $1 and $5 bills, a .22 pistol, and the keys to the automobile. Other officers went to Humphrey’s room and found him with the other girl. Humphrey reached for a .38 revolver which was under his mattress. Humphrey’s wallet containing $56 in $1 and $5 bills and $31 in $1 bills was found under a mattress. Ammunition for the weapons was also found in the rooms and walkie talkie equipment. When the automobile was searched at the police station the next morning, a receipt for $.39 dated November 14 from Noble’s store was found.

Phelan identified the registration cards signed by the defendants and the time stamps which indicated that Marvin Brown (Humphrey) had checked in at the hotel at 11:37 p. m. on November 14 and Thomas Moore (Grashen) had checked in at 1:56 a. m. on November 15, 1967. A police officer stated that when they approached Phelan and asked him about the two Negro couples who had checked in and received a description that matched the description given by Betty Kelly, he said that they had last checked in about 1:50 a. m. on November 15, although Phelan’s own testimony was that they checked in about 1:30 or 1:40 a. m.

Tonie Thomas and Patricia Brad, the friends of the defendants, were called by the State and made court’s witnesses upon motion. Thomas recalled being at the Faust Hotel about 1:40 and denied the contents of a statement made by her to the police and stated that she signed the statement because she was afraid of policemen. Patricia Brad denied the contents of a statement given by her, but admitted signing it. The police officers who took the statements testified that they advised both Thomas and Brad of their constitutional rights and that they made no threats or promises. Brad’s statement was that defendants had planned to rob a store; they looked at different stores and then decided on Noble’s and that they then robbed it. Thomas’ statement was that the two defendants were to enter the store while they, the girls, were to wait a few blocks away.

In claiming that they were not proven guilty beyond a reasonable doubt, the defendants stated that the presumption of innocence is not overcome by the two unreliable and conflicting identifying witnesses, and that the total testimony is incomplete, biased and doubtful. It is stated that the testimony of the State indicates there were five persons who could identify the defendants; that identification of the defendants was a key to this action, and that the testimony of the identifying witnesses was incomplete because of the absence of certain of such witnesses. It is stated that a presumption must arise because three of these five witnesses did not testify; that if they did testify, their testimony would be detrimental to the State. It is clear that only Ingram and Betty Kelly were in the store at the time of the robbery, and that the other three witnesses were not present at the time of the robbery but were present in the store prior to the robbery. The absence at the trial of one of them was explained but the absence of the other two was not. In any event, they were not eyewitnesses to the robbery. It has been said that the testimony of a single witness, if positive and credible, is sufficient to convict even though contradicted by the accused. The People v. Guido, 25 Ill2d 204, 209, 184 NE2d 858. Here there were two witnesses, Betty Kelly and Ingram, who positively identified the defendants as being the robbers. They were unshaken in their in-court identifications of the defendants and both testified that they each had a good opportunity to view the defendants. Their testimony is corroborated by the testimony of other witnesses, the circumstances of the arrest later, and the physical evidence obtained from the defendants. The defendants’ auto was placed near the scene of the robbery and was noticed being driven in the area by police officers shortly after the robbery. Defendants themselves admitted having been at the Noble store that evening and having been on the street where the police observed their vehicle. Also to be considered are the circumstantial evidence and the physical evidence such as the weapons and currency which was found in the possession of the defendants after their arrest.

The defendants, aside from claiming that their identification as the robbers was vague and doubtful, served notice of an intent to prove an alibi during the trial and claimed that they did prove an alibi, which placed them at the Faust Hotel rather than the Noble grocery, some two miles away, at the time of the alleged offense. It appears that the offense happened about 1:30 a. m. and the defendants argue that Mr. Phelan’s testimony supports their alibi. The jury heard Mr. Phelan’s testimony and apparently determined that his testimony supported the State, rather than the defendants.

Considering all of the testimony, it appears that the testimony of the defendants and Callier is contradictory to much of the State’s testimony and the physical evidence introduced, and therefore, it was up to the jury to determine the credibility of all of the witnesses. We believe that the jury was warranted in returning a verdict of guilty and that the verdict is reasonable and justified. The evidence established the defendants’ identities and the fact that they committed the armed robbery as charged beyond a reasonable doubt.

A court of review will not disturb a finding of guilty unless the evidence is so unreasonable, improbable or unsatisfactory as to justify a reasonable doubt of defendants’ guilt. The People v. Crews, 38 Ill2d 331, 335, 231 NE2d 451; The People v. Washington, 27 Ill2d 104, 110,187 NE2d 739.

Next, it is contended that the failure of the court to sever the trials of the defendants was reversible error inasmuch as their defenses were antagonistic to one another, and, in particular, that the constitutional guarantees of the defendant Humphrey were violated. It is stated that the antagonism developed by the State placing in evidence a record of a felony conviction against Grashen. This, it is said, resulted in the impeachment of Grashen, akin to that of a confessed defendant, and therefore tended to impeach and be contrary to Humphrey’s testimony. It is further contended that the introduction of Grashen’s record compelled Humphrey to testify and thereby he lost his right of control over his defense and over his right not to be compelled to give testimony and to remain silent. This is a novel defense and no case has been cited directly in point, although there are cases dealing with the prejudicial effect of impeachment of a defendant by the introduction of a prior conviction when that defendant takes the stand in his own defense. Burgett v. Texas, 389 US 109 (1967); Luck v. United States, 348 F2d 763 (DC Cir 1965); Gordon v. United States, 383 F2d 938 (DC Cir 1967); Evans v. United States, 397 F2d 675 (DC Cir 1968); United States v. Palumbo, 401 F2d 270 (Second Cir 1968); United States v. Hildreth, 387 F2d 328 (4th Cir 1967); United States v. Sternback, 402 F2d 353 (7th Cir 1968). (Also see Schaefer, The Suspect and Society, p 68 (NWU Press, 1967).) Generally speaking, the right to severance depends upon whether a severance is imperative to insure a fair trial. The People v. Wilson, 29 Ill2d 82, 91, 193 NE2d 449; The People v. Grilec, 2 Ill2d 538, 546, 119 NE2d 232. Here the defendants’ alibis were the same and under the circumstances here present, we do not perceive how there was any antagonism one to the other so far as their defenses are concerned. Each defendant has the right to testify or not as he chooses but if he testifies, he is subject to impeachment like any other defendant. Brown v. United States, 356 US 148. We do not believe that because one defendant can be impeached, the other defendant has an unqualified right for a severance. If such a right of severance did exist, the State would be forced to try many, many different defendants to the same crime separately and the law thus far has placed no such burden upon the State. The mere possibility of impeachment of codefendants with compatible defenses does not, under the law, prevent them from being tried together. Although not directly in joint, the case of The People v. Kozlowski, 368 Ill 124, 126, 13 NE2d 174, decided that a defendant can be tried with other defendants who were charged with being habitual criminals.

Grashen contends that the introduction of the record of his prior felony conviction was reversible error as to himself. The introduction of a certified copy of a prior felony conviction for an infamous crime, in this case burglary, is a proper form of impeachment of a defendant and no error was committed in introducing the record into evidence. The People v. Bennett, 413 Ill 601, 605,110 NE2d 175.

It is also contended by defendants that the out of court pretrial statements made by Thomas and Brad, girl friends of the defendants, were hearsay and therefore not admissible directly or indirectly into evidence against the defendants. The statements of Thomas and Brad have hereinbefore been recited. Before they took the stand to testify, the State’s Attorney had requested that they be made court’s witnesses and thereby subject to cross-examination and impeachment. The trial judge previously heard a motion to suppress evidence and knew that the girls were, if not eyewitnesses, at least material witnesses to the crime involved. From the record, the State’s Attorney could not be certain as to what these witnesses would testify to prior to taking the stand. As a general rule, where the State’s Attorney doubts the veracity or integrity of a witness and makes that known to the trial judge, he will not be required to call the party as a witness for the People and vouch for his testimony, but he may request the court to make such witness a court’s witness. The People v. Robinson, 14 Ill 2d 325, 334, 153 NE2d 165. The judge’s decision is discretionary and unless such discretion is abused, it is not a reversible error. People v. Stoudt, 90 Ill App2d 140, 145, 232 NE2d 800.

We do not feel that the court abused its discretion here. Furthermore, the defendants made no objection to the State’s motion to make Tonie Thomas a court’s witness and, therefore, such objection is considered as waived and cannot be urged on appeal. The People v. Trefonas, 9 Ill2d 92, 98, 136 NE2d 817. An objection was made to calling Patricia Brad as a court’s witness, but nevertheless, we feel that the court did not abuse its discretion. Both girls’ testimony was contradictory to their prior statements, thus substantiating the reasonableness of the State’s Attorney’s request. The jury was advised, and the court properly instructed the jury, that the prior statements were offered and admitted into evidence only for the purpose of impeachment and were not to be given any substantive or independent testimonial value. Were we to hold that the court abused its discretion in allowing these witnesses to be called as court’s witnesses, impeachment may have been prevented and the jury would not be able to weigh the credibility of these witnesses. Such a result would not accomplish the ends of justice.

Finally, it is argued by the defendants that all of the prosecution exhibits were the products of illegal searches and seizures and thus their admission into evidence was reversible error. Here the arresting officers were investigating a particular crime, had a detailed description of the offenders and of the vehicle before locating and identifying the vehicle near the Faust Hotel. It was determined that two Negro males matching the description of the robbers had entered the hotel shortly after the robbery and were occupying two rooms with their female companions. These circumstances certainly established probable cause for the arrest of the defendants and the search of their rooms. No objection was made to any of the State’s exhibits pursuant to a search of the rooms, except one exhibit which was the $109 seized from the defendant, Grashen. That objection was not well taken. Since the other exhibits were not objected to upon introduction into evidence or upon motion for a new trial, those objections are considered waived and not preserved for this appeal. All the items seized in the hotel rooms were incident to the defendants’ arrest and were lawfully seized.

The search of the vehicle at 8:30 a, m. after the defendants were placed in custody at about 4:15 earlier that morning presents a different problem. A search of an automobile cannot be justified as a search incident to an arrest where the automobile has been taken to the police station at the time of the arrest and searched at the station some time after the arrest when the accused is safely in custody at the stationhouse, although there may be alternative grounds arguably justifying the search of a car. Chambers v. Maroney, 399 US 42, 26 L Ed2d 419, 90 S Ct 1975. The only item found in the search of the automobile which was admitted into evidence at the trial was a 39 receipt dated November 14, 1967, from Noble's grocery. No objection was made to the admissibility of this exhibit on the basis that it had been illegally seized or by motion for a new trial. Although we can consider that this objection cannot be raised for the first time on appeal, we do not see how its admission prejudiced the defendants. Both defendants testified that they were in Noble's earlier the evening in question and had purchased a box of crackers and indicated that the exhibit was their receipt. They used the receipt to substantiate their own defense. Betty Kelly had stated that she had never seen the defendants prior to the robbery and they used the receipt to attempt to discredit Kelly’s testimony, claiming that they could not have committed the robbery because they were in the store before the robbery, secured the receipt, and her testimony that she had never seen them before the robbery would mean that they could not have been the robbers, but that there were two unidentified Negroes.

For the reasons above stated, the judgment of the Circuit Court of Winnebago County is affirmed.

Judgment affirmed.

DAVIS, P. J. and MORAN, J., concur.


author: MILLS, J.

text:
    Corrine Schouten, Plaintiff-Appellee, v. Warren Schouten, Defendant-Appellant.
    Gen. No. 69-41.
    Fifth District.
    October 2, 1970.

      William W. Schooley, of Granite City (Dennis J. Hogan, of counsel), for appellant.
    No brief for appellee.
   MILLS, J.

The 27 years of marriage in this case would hardly be characterized by Milton as “throned on highest bliss.” The Schoutens, the record tells us, were apparently strong-willed and rigid parties to the marital contract, for the union was marked by stormy periods of mutual harassment, vindictive and reciprocal verbal characterizations, a separate maintenance proceeding, and reports to the police. Abusive and derisive exchanges added to their domestic discussions a certain unpleasant spice. It would be difficult, indeed, after examining all of the mundane factual trivia in the record, to determine who was the winner in this marital bout. Each, at least, came in a good second.

But the connubial typhoon reached its zenith at last, and Mr. Schouten came home from work one evening to find the house stripped. Mrs. S had wiped him out. Furniture for three bedrooms, a living room, and kitchen, as well as sundry tools and other items of personal property, were gone. All she left was one bed, a desk and some “odds and ends.” Two days later, she had the remaining bed hauled out, as well. Out of four twin beds and one double, Mr. S emerged from the fray with none. The trial transcript reads as follows:

THE COURT: “And when you moved the equipment out you say you had four twin beds and one double bed?”
MRS. SCHOUTEN: “Yes.”
THE COURT: “Did you and your son need all these beds ? Was there any reason why you wouldn’t leave one bed for him ?”
MRS. SCHOUTEN: “No, I guess that was a mistake to do that.”

The harried judge patiently listened to all the evidence, the claims, the counterclaims and ultimately entered findings of fact and a decree granting the divorce to the husband on his counterclaim based on desertion by the wife. The custody of a 17-year-old minor son was given to the mother. And the court, in its decree, opined:

“Further, although it was wrong for her to do so, Plaintiff, Corrine Schouten, took all of the household goods with her when she deserted and the court finds that said property should remain and be the property of Plaintiff, Corrine Schouten, such items being necessary for the proper care of the child, Thomas Warren Schouten.”

It is from this singular action of the court that this appeal is taken. The towering question of jurisprudence here posed is whether a divorce court, may divest a husband of his property interest in household goods because the items are found to be necessary for the “proper care of the child?”

The Illinois rule clearly is that jurisdiction of divorce matters is not grounded upon general powers of equity, but rather finds its unique and total existence in the statute. Cross v. Cross, 2 Ill2d 104, 116 NE2d 892, 895. Therefore, absent specific legislated authority, a chancery court is devoid of jurisdiction to adjudicate, allot, dispense or otherwise dabble with the separate property of the parties. The only pronouncement of the Divorce Act by which such property disposition can be made is section 17, and it provides: “Whenever a divorce is granted, if it shall appear to the court that either party holds the title to property equitably belonging to the other, the court may compel conveyance thereof to be made to the party entitled to the same, upon such terms as it shall deem equitable.”

This section of the Divorce Act has remained intact since 1874. And an avalanche of case law has developed over the past century to enunciate the controlling cardinal rule: Courts in divorce actions may adjudicate property rights between parties, regardless of fault or the grounds for divorce, upon the basis of special circumstances, equitable ownership and other equities. Particularly is this general rule to be followed where the property involved is acquired as the result of joint efforts by the parties to the marital contract. Furthermore, it is established that the circumstances and equities relied upon must be both alleged in the pleadings and supported by the evidence. Stevens v. Stevens, 14 Ill2d 99, 150 NE 2d 799, 804; Ylonen v. Ylonen, 2 I112d Ill, 117 NE2d 98, 102; Persico v. Persico, 409 Ill 608, 100 NE2d 904, 905; Rardin v. Rardin, 339 Ill App 68, 89 NE2d 67, 69; Chmiel v. Chmiel, 399 Ill 91, 77 NE2d 162, 164.

Although the myriad of cases interpreting section 17 of the Divorce Act deal primarily with real estate, it is clear that the principles here set forth are equally applicable to personal property and household goods — we can perceive no distinction whatever between realty and personalty in this context. Rardin v. Rardin, supra; Bissett v. Bissett, 375 Ill 551, 31 NE2d 955, 958.

In the case on review, Mrs. S did not allege, nor did she adduce by proof, any equitable ownership, special circumstances or existing equities relative to the household goods. In fact, the court specifically found that she erred and was wrong in taking all of the priceless plunder “with her when she deserted.” Consequently, under the authority of section 17 of the Divorce Act, the court had no power to invest her with the property rights of her consort.

But the court specifically found that the items of personal property were “necessary for the proper care of the child.” Is this sufficient to divest the husband of his interests therein ? We think not. The same principles apply here, and it would seem to us that there must be a factual basis and equitable merit demonstrated of record to warrant the court to divest a spouse of particular personal property for the care of a child. And then, only in unusual and uncommon circumstances, where the welfare and well-being of the minor uniquely requires specific items of personalty. Such circumstances are not reflected in the case on review. There is neither such a finding, nor evidence to support one. In addition, the decree granted title to the property to Mrs. Schouten, and not for the child’s sole use during his minority. And it would seem manifest that a minor son would not require the total of four twin beds and a double, nor the medley of odds and ends.

Accordingly, the circuit court erred in the disposition of the household goods. That portion of the decree is reversed and the cause is remanded with directions to the trial court to readjudicate the husband’s interest in the household goods consistent with the views expressed herein. In all other respects, the decree is affirmed.

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

EBERSPACHER, P. J. and GOLDENHERSH, J., concur.


author: TRAPP, J.

text:
    Johnie R. Kern, for the Use of Lillian A. Russell, as Conservator, Plaintiff, v. Michigan Mutual Liability Company, Defendant-Appellant, and Illinois National Insurance Company, Defendant-Appellee.
    Gen. No. 11,156.
    Fourth District.
    October 8, 1970.

      Pope & Driemeyer, of East St. Louis (Karl D. Dexheimer, of counsel), for appellant.
    Reed, Armstrong, Gorman & Coffey, of Edwardsville (James L. Reed, of counsel), for appellee.
   TRAPP, J.

This is an appeal from an order of the circuit court granting a summary judgment in favor of Illinois National Insurance Company (Elinois National) against Michigan Mutual Liability Company (Michigan Mutual), and denying a motion of Michigan Mutual for summary judgment against Illinois National. The appeal presents the question whether Michigan Mutual is alone required to satisfy a $50,000 personal injury judgment recovered by Lillian Russell as Conservator of the Estate and Person of Harold Russell against Johnie R. Kern, as determined by the trial court, or is entitled to pro rata contribution from Illinois National. Kern, an employee of Hoover Brothers, a partnership, was driving a truck owned by Hoover Brothers, Inc., and loaned to the partnership at the time of the motor vehicle accident which injured Harold Russell. Kern brought suit in garnishment against Michigan Mutual, who insured Hoover Brothers, Inc., and Illinois National, who insured Hoover Brothers, a partnership.

In a prior declaratory judgment action in the Circuit Court of Cook County, Elinois, it was determined that both Michigan Mutual and Illinois National policies covered the risk. That judgment was appealed to the Appellate Court of Elinois, First District, and was there affirmed. No determination was made as to the priority of payment by the companies of any judgment in the suit of Lillian Russell as Conservator of Harold Russell against Johnie Kern. That Court held that by reason of correspondence with the insurance company prior to the issuance of the policy to Hoover Brothers, Inc., an implement dealership, concerning occasional cartage work done by the insured, the loss was covered under the Michigan Mutual policy on trucks owned by Hoover Brothers, Inc. It also held that the Elinois National policy issued to Hoover Brothers, a partnership, engaged in livestock and general hauling, covered the accident by virtue of its Truckmen’s endorsement which made it responsible for use of a “hired” vehicle in its business by an employee. That Court decided that the vehicle was a “hired” vehicle. Michigan Mut. Liability Co. v. Hoover Brothers, Inc., 96 Ill App2d 238,237 NE2d 754.

The Illinois National policy also contained the required endorsement of the Illinois Commerce Commission required of certificated carriers which provided in part, as follows:

“In consideration of the premium stated in the policy to which this endorsement is attached and regardless of anything stated in the policy or elsewhere to the contrary, . . . the Company hereby agrees to pay, within the limits of liability hereinafter provided, any final judgment rendered and recovered against the insured for bodily injury to or death of any person, or loss of or damage to property of others . . . resulting from the operation, maintenance or use of motor vehicles by virtue of a certificate of public convenience and necessity or a permit issued to the insured by the Illinois Commerce Commission. „ . . regardless of whether such motor vehicles are specifically described in the policy or not.”

The Appellate Court did not then pass upon the effect of the required Illinois Commerce Commission endorsement, but we think it is material in reference to public policy contentions made by Illinois National.

The portion of the Illinois National Policy which the First District, Appellate Court, held covered the accident in question is as follows:

“TRUCKMEN
“ (Interests Covered)
“Such insurance as is afforded by the policy for an owned automobile or a hired automobile shall apply to the named insured and to any other person including any person or organization legally responsible for the use thereof, provided the actual use of the automobile is by the named insured or with his permission, and with respect to the use of a non-owned automobile shall apply to the named insured and to any executive officer of the named insured.
“Definitions
“‘Owned Automobile’ means an automobile owned by the name insured.
“ ‘Hired Automobile’ means an automobile used under contract in behalf of, or loaned to, the named insured except (1) an automobile owned by or registered in the name of the named insured or (2) an automobile classified and rated as a private passenger automobile owned by or registered in the name of an agent or employee of the named insured or a member of the same household as such named insured, agent or employee.
“ ‘Nonowned Automobile’ means any other automobile.
“ ‘Automobile’ includes trailer.
“OTHER INSURANCE — If the insured has other insurance against a loss covered by the policy the company shall not be liable for a greater proportion of such loss than the applicable limit of liability stated in the declarations bears to the total applicable limit of all valid and collectible insurance against such loss; provided, however, the insurance with respect to (1) any automobile of the commercial type while leased or loaned to another motor carrier, (2) any hired private passenger automobile if not written on the specified car basis, and (3) any nonowned automobile, shall be excess insurance over any other valid and collectible insurance available to the insured.”

Illinois National contends that the truck owned by Hoover Brothers, Inc., and loaned to Hoover Brothers, a partnership, Illinois National’s named insured, was a “nonowned automobile” under its Truckmen’s endorsement, and therefore, the insurance with respect to the accident caused by Johnie Kern while driving the truck on the partnership business was “excess” insurance and could not be reached until the limits of liability of the Michigan Mutual policy on its named insured, Hoover Brothers, Inc., the owner of the truck, were exhausted.

Michigan Mutual contends that under the Illinois National Truckmen’s endorsement vehicles are classified in three classes, to wit: owned, hired and any other.

We think that the controlling principle to be found in the cases involving the respective liability of two or more automobile liability carriers is that the question is to be determined from a construction of the language employed by the insurers in their respective policies. Jensen v. New Amsterdam Ins. Co., 65 Ill App2d 407, 213 NE2d 141,143; Iowa Nat. Mut. Ins. Co. v. Fidelity and Casualty Co., 62 Ill App2d 297, 301, 210 NE2d 622, 624; Continental Cas. Co. v. American Fidelity Co., 275 F2d 381, 384; McFarland v. Chicago Express, 200 F2d 5, 7.

The Truckmen’s endorsement provides three classifications of automobiles with reference to the named assured which are (1) an automobile owned by the named assured, (2) an automobile hired on behalf of the named assured, with two exceptions, and (3) a nonowned automobile which is defined as “any other automobile.”

It should be obvious that it would have been a simple matter to have specifically provided that liability in respect to a “hired” automobile was excess insurance, as was the case in Continental Cas. Co. v. American Fidelity Co., 275 F2d 381. It is also plain that Illinois National’s definition of “hired automobile” contains two exceptions, and therefore the two exceptions would fall in the classification of “any other automobile” and would be “non-owned.” To adopt the interpretation given by Illinois National would render the exceptions to the definition of “hired” meaningless.

Additionally, under the paragraph entitled “Other Insurance” and after the word “provided,” first, one form of “owned” vehicle, i. e., a commercial type loaned to another carrier is covered as excess only, and second, “any hired private passenger automobile if not written on a specified car basis” is covered only as excess.

If it was intended that all “hired” vehicles were to be covered as excess would it be stated that a hired private passenger car, if not written on a specified car basis, should be excess ? Certainly, in construing the language of a contract it must be assumed that language is inserted for a purpose. It reasonably appears that placing one type of “owned” vehicle and one type of “hired” vehicle in the class of “nonowned” vehicles was the intent of the endorsement.

If it were intended to use the simple classification of “owned” and “nonowned” for excess it would hardly have been necessary to define the terms. We are cognizant of the fact that this classification by definition has other uses in the policy. We cannot regard owned and non-owned as the sole classification for excess because even an “owned” vehicle is excess if the vehicle is commercial and is loaned out.

The California Court of Appeals in Wilshire Ins. Co. v. Transit Cas. Co., 248 Cal App2d 719, 56 Cal Rptr 861 (1967), had practically the identical situation as that here presented. The court said, p 864:

“It is obvious, therefore, that the quoted clause was not intended to define automobiles, but to classify them into three groups, by defining owned automobiles and hired automobiles and putting all others into a classification called ‘nonowned automobiles/ ”

and again, p 864:

“If the automobile is hired it is not one of the others. If Transit, in its policy, chooses to give the term ‘nonowned automobile’ a restricted meaning, it should not be heard to say that it did not do so.”

The California court found that no public policy was violated if the owner’s policy was held to be primary. We note here that this is not the ordinary case of a casual nonowner driver, but is a case in which the very cartage business which Illinois National insured and was required by the Illinois Commerce Commission endorsement to insure was the business engaged in at the time of the accident. Johnie Kern, Hoover Brothers partnership’s employee, was driving a load of livestock in the borrowed truck when Harold Russell, the pedestrian, was struck. We find no public policy which requires us to favor the insurer of the lessee, but even such a policy would not override the language of the policy.

Illinois National cites Manufacturer’s Casualty Ins. Co. v. Great American Indemnity Co., 91 F Supp 18 (ED Penn 1950), as reaching a different result from that obtained in Wilshire Ins. Co. v. Transit Cas. Co., 248 Cal App2d 719, 56 Cal Rptr 861. In that case the court did not say that hired and nonowned were equivalents, but rather that definitions similar to those here involved were related to the issue of the “named insured.” The court said that since a doubt existed as to whether the “hired” vehicle was loaned to the “named insured” corporation’s president in his official capacity or loaned to the president in his individual capacity the issue could not be resolved without evidence. The effect of the decision was to distinguish between being loaned to the “named insured” and loaned otherwise.

The Michigan Mutual policy provides that it shall share pro rata with other valid collectible insurance covering the risk. We find that the applicable portion of Elinois National’s “other insurance” clause provides substantially the same.

We hold, therefore, that the policies of both companies provide for liability in respect to the judgment in favor of Lillian Russell, Conservator of Harold Russell, against Johnie Kern on a pro rata basis in proportion to the applicable limits of their policies.

The cause is reversed and remanded to the Circuit Court with directions to enter judgment against each company for its pro rata share of the judgment and interest.

Reversed and remanded with directions.

CRAVEN, P. J. and EOVALDI, J., concur.


author: CRAVEN, P. J.,

text:
    Naomi K. Williams and Lloyd R. Williams, Plaintiffs-Appellants, v. City of Gibson, a Municipal Corporation, Defendant-Appellee.
    Gen. No. 11,216.
    Fourth District.
    October 8, 1970.

      T. G. Knappenberger, Jr., of Champaign, for appellants.
    French L. Fraker, Dobbins, Fraker & Tennant, of Champaign, for appellee.
   CRAVEN, P. J.,

delivered the opinion of the court.

The plaintiffs filed a two-count complaint against the City of Gibson. Count I was for personal injuries to Naomi K. Williams and Count II was for loss of consortium and expenses of her husband. Both counts alleged the date of the personal injuries to have been April 25, 1965, and further alleged that the plaintiffs properly served the six-month statutory notice on the City as required by section 1-4-2 of chapter 24, Ill Rev Stats 1963. The defendant filed an answer. It was subsequently ascertained that the date of the injuries was April 24, 1965, and not April 25, as alleged.

The trial court denied the plaintiffs leave to amend their complaint and the notice to reflect the change in date. Ultimately, it granted the motion of the defendant to dismiss the complaint and entered judgment for the defendant and against the plaintiffs for want of compliance with the statutory notice. This appeal follows.

The plaintiff Lloyd R. Williams first contends that the defective notice, or even the absence of a notice, does not preclude his action since notice of his claim was not required by the statute. Our review of the record does not indicate that contention was made in the trial court. Rather, the proceedings below were clearly on the theory that the notice requirement was applicable to both counts. This is made clear by the motion to amend. It is well established that issues, points, questions or contentions which were not presented to the trial court will not be considered on appeal, nor can a party-litigant change his theory upon which a case is tried in the lower court upon reaching a court of review. ILP, Appeal and Error, § 181; Benson v. Isaacs, 22 Ill2d 606, 177 NE2d 209 (1961).

Thus, as we see it, the sole issue in this case is the sufficiency of the notice, defective as to date of injury, to comply with the statutory notice requirement which provides that within six months from the date of injury any person who is about to commence any civil action in any court against any municipality shall file in the office of the city attorney, if there is one, and also in the office of the municipal clerk a statement, in writing, giving certain information including the date and the approximate hour of the accident. It is argued here that the defendant-municipality was not misled or prejudiced by the incorrect date, that there was substantial compliance, and that the reason for the notice requirement was fully satisfied in that the purpose of the statute is to give notice to the municipality from which it can ascertain the facts through its investigative machinery. Bryant v. City of Chicago, 319 Ill App 524, 49 NE2d 654 (1st Dist 1943) (Abst).

Notwithstanding the persuasive argument of the plaintiffs as to substantial compliance, the case of Ouimette v. City of Chicago, 242 Ill 501, 90 NE 300 (1909), is, as we read it, determinative of the issue here. In that case, under the six-month notice requirement, the notice was defective in that it stated the date of the injury to have been November 10 when, in fact, the injury was on October 10. In Ouimette the court held the notice to be defective, that substantial compliance was not sufficient, and that a notice setting out a date other than the actual date was insufficient. In discussing the point of view urged, that such a statute should be liberally construed and substantial compliance should be held sufficient, the court there observed that such was a question within the legislative control. Cases to the same effect are: Frowner v. Chicago Transit Authority, 25 Ill App2d 312, 167 NE2d 26 (1st Dist 1960); Riddle v. City of Marion, 44 Ill App2d 11,193 NE2d 877 (4th Dist 1963).

The action of the trial court was in accord with Ouimette and that decision is likewise controlling here. The judgment of the Circuit Court of Ford County is affirmed.

Judgment affirmed.

SMITH and TRAPP, JJ., concur.


author: CRAVEN, PRESIDING JUSTICE,

text:
    Helen Mederacke, Plaintiff-Appellant, v. William J. Becker, Dorothy P. Becker, Lina Hauschild, Arthur Hauschild and Cletus German, Administrator with the Will Annexed of the Estate of Richard Mederacke, Deceased, and Elda Naggi, Defendants, William J. Becker and Dorothy P. Becker, Defendants-Appellees.
    Gen. No. 11,235.
    Fourth District.
    October 8, 1970.

      Sprague, Sprague & LeChien, of Belleville (Thomas A. LeChien, of counsel), for appellant.
    McGrady, Madden & Watson, of Gillespie (D. A. McGrady, of counsel), for appellees.
   CRAVEN, PRESIDING JUSTICE,

delivered the opinion of the court.

We are again called upon to review part of a continuing controversy between these parties litigant. Actually, this litigation had its inception in 1947 and has been tenaciously pursued in various manners since that time. We had occasion to consider this matter, and the opinion is to be found at 56 Ill App2d 128, 205 NE2d 519 (4th Dist 1965).

The current controversy relates to a decree entered in May of 1963, which was in the form of a net judgment in favor of the plaintiff, Helen Mederacke, and against the defendants in the amount of $33,409.42. That judgment was affirmed by this court in the cited opinion. Following that affirmance, a proceeding initiated by a citation to discover assets was instituted, and after various and sundry hearings and apparent ascertainment by the plaintiff that the defendants had insufficient assets to satisfy the judgment, and after various efforts for contempt citation and the issuance of orders restraining the transfer of property, the parties entered into a settlement agreement. An order was entered in the circuit court approving that agreement and dismissing the citation proceedings. That agreement provided that the parties desired to settle the judgment and to that end agreed that the defendants would pay to the plaintiff the sum of $15,000, that the plaintiff would enter a partial satisfaction of judgment acknowledging the receipt of the $15,000, and that the defendants would execute a quitclaim deed to certain real estate and pay the sum of $1,784.64 to plaintiff’s attorney, $1,000 on or before May 1, 1969, and the remaining sum of $784.64 on or before May 1, 1970. Certain proceedings in the Circuit Court of St. Louis, Missouri, were to be dismissed without prejudice, and the agreement recited that time was of the essence.

Thereafter, and predictably in view of the history of this litigation, a petition was filed asking that the defendants be found in contempt in that there was an alleged failure to comply with the terms and conditions of the payment of the $1,784.64. Subsequently, a further petition was filed reciting that the sum had not been paid as agreed and seeking to revive in full the net judgment as set out in the decree of May 2,1963.

It appears that the $15,000 payment was made as agreed. It further appears that the $1,784.64 payment was not made in exact conformity with the time schedule but that it was, in fact, paid in full and accepted prior to May 1, 1970. Thus, apparently part of the payment was late and part of it was early.

It is the essence of the plaintiff’s contention in this court that the nonpayment in accordance with the terms and conditions of the agreement required that the trial court reinstate the full judgment. The trial court refused, observing that this litigation, like all litigation, had to end sometime and someplace and that the performance in full of the settlement agreement was now complete and the case would be considered to be concluded. This appeal is from that order.

Plaintiff relies upon the case of Wright v. Federal Wrecking Co. (Appeal of Goldman), 331 Ill App 231, 73 NE2d 16 (1st Dist 1947). In that case, a judgment based upon an award of the Industrial Commission in an amount in excess of $4,000 was sought to be compromised or satisfied. Upon the payment of some $350 there was a controversy between the parties as to whether the $350 was a part payment or in full satisfaction. The court refused to hold the judgment to be satisfied and stated (73 NE2d at 19):

“. . . The general rule is that in the absence of a statute providing otherwise, a judgment is not discharged by a part payment under a parol agreement that such payment shall be accepted in full satisfaction, or by a part payment and an ordinary written receipt in full, and that the release of a judgment for less than the amount due is without consideration as to the balance and should be set aside pro tanto. 49 CJS, Judgments, . . . [sec] 563, page 1038. It was held in Weber v. Couch, 134 Mass 26, 45 Am Rep 274, that an agreement (endorsed upon an execution) by which a creditor acknowledged satisfaction of the judgment in consideration of the payment of a smaller sum than the amount due thereof, was invalid. This case was followed in Smith v. Johnson, 224 Mass 50, 112 NE 644. In Ostrander v. Scott, 161 Ill 339, our Supreme Court said at page 845, 43 NE 1089, 1090: ‘The authorities are numerous and uniform that a payment of a part of a fixed and certain demand, which is due, and not in dispute, is no satisfaction of the whole debt, even where the creditor agrees to receive a part for the whole, and gives a receipt for the whole demand. Bish Con . . . [sec] 50; 2 Pars Con (5th ed) 618; Curtiss v. Martin, 20 Ill 557; Morrill v. Baggott, 157 Ill 240, 41 NE 639; Titsworth v. Hyde, 54 Ill 386. This doctrine rests upon the ground that the agreement for a discharge of the entire debt is without consideration. But it is limited to cases where the debt is of the character stated. It has no application to the honest settlement of unliquidated or disputed demands. Hayes v. [Massachusetts Mut. Life] Ins. Co., 125 Ill 626, 18 NE 322 [1 LEA 303]. The rule disregards the actual intention of the parties. And if the balance due is disputed, and the subject of an honest settlement and adjustment by the parties, such settlement will bar a recovery.’ . . . .”

The Wright case and the authorities cited therein are not determinative of the issue here. Here the parties sought to compromise and settle various and sundry diverse claims, a course of conduct that is generally to be encouraged and here to be applauded. There was full compliance with the agreement, save for the date of one payment of costs. To now undo that which has been done and reinstate in full the original judgment would be lacking in equity and unwise. It would reopen wounds and animosities that have taken more than twenty-two years to cure. A court has inherent power to protect itself and litigants against harassing and vexatious litigation. It not only has the power, but it has the duty to do so. Patterson v. Northern Trust Co., 286 Ill 564, 122 NE 55 (1919). There is no suggestion here that the settlement agreement was other than fair or equitable under the facts and circumstances. There is no suggestion that the tardiness demonstrated by the record was in any way prejudicial to the real interests of any of the parties. The action of the trial court was not an abuse of discretion, but on the contrary, was an exercise of sound discretion, and that action is affirmed.

Judgment affirmed.

SMITH and TRAPP, JJ., concur.


text:
    Dorothy Hoffman and Kurt Hoffman, Plaintiffs-Appellants, v. Edward Evans and Lincoln Rural Fire Protection District, a Municipal Corporation, Defendants-Appellees.
    Gen. No. 11,285.
    Fourth District.
    October 8, 1970.

      Woods & Thompson, of Lincoln (Roger Thompson, of counsel), for appellants.
    Livingston, Barger, Brandt, Slater & Schroeder, of Bloomington (Ralph Schroeder, of counsel), for appellees.
   CRAVEN, P. J.,

delivered the opinion of the court.

This action was brought to recover damages alleged to have been sustained as a result of a rear-end collision when a fire truck driven by the defendant Evans in the course of his employment for the Lincoln Rural Fire Protection District struck the rear of an automobile operated by the plaintiff Dorothy Hoffman. The four-count complaint sought damages from the defendant Evans and the municipality for personal injuries to Dorothy Hoffman and for loss of services and consortium by reason of those injuries. The complaint did not allege compliance with the notice provisions of section 8-102 of chapter 85, Ill Rev Stats 1965. The parties stipulated in this case as follows:

“It is stipulated by and between the plaintiffs and the defendants that on November 10, 1966 an accident occurred being the accident out of which these causes of action arose, in which an automobile operated by the plaintiff Dorothy Hoffman was involved in an accident with a fire truck belonging to the Lincoln Rural Fire Protection District, a municipal corporation, and which said truck was being operated at the time of the incident in question by one Edward Evans who was at the time and place in question an employee of said fire protection district and who v/as at the time and place in question operating within the scope of his employment.
“It is further stipulated that notice of injury pursuant to Chapter 85, Section 8-102, Illinois Revised Statutes, 1965, was not given to said municipal corporation in writing.”

On motion of the plaintiffs, the original complaint was amended to include an allegation to the effect that the municipality was insured under a policy of liability insurance which provided insurance coverage, and that the defendants in fact had notice of the injuries and full opportunity to investigate the same.

In addition, counsel for plaintiffs filed an affidavit stating that the defendant Evans made a report on the day of the injuries (November 10, 1966) to the municipality’s insurance agent who, in turn, forwarded the report to the insurance carrier, and that as a consequence thereof the insurance carrier made provision for investigation of the claims and entered into negotiations with reference to a possible settlement of the claims. The affidavit further sets forth that through this process all information that would be supplied by the notice was in fact supplied.

On motion of the defendants, the trial court dismissed the complaint and entered judgment for the defendants.

Initially, this appeal was taken to the Supreme Court in that the plaintiffs sought to raise constitutional issues. That court transferred the case to this court and in its order of transfer stated:

“The record fails to show that the constitutional question argued on this appeal was presented to and decided by the trial court. On the Court’s own motion, the cause is transferred to the Appellate Court, Fourth District. . . .”

Under this order of transfer the sole issue presented to us for decision is whether the action of the trial court was correct in holding that the failure to give notice as required by the applicable statute barred the action, and whether the existence of liability insurance operated to remove the necessity to give notice. We must affirm.

The notice requirement contained in the statute is a condition precedent to the cause of action. There must be strict compliance, and noncompliance necessitates the order here entered. Fannon v. City of Aurora, 106 Ill App2d 408, 245 NE2d 286 (2nd Dist 1969). We have, this date, filed an opinion sustaining the dismissal of an action wherein a notice was filed but was defective in that the date of the injuries was misstated by one day (Williams v. City of Gibson, 129 Ill App2d 431, 263 NE2d 138). It was our view that compelling authority was existent requiring that result. If such a result is compelled when an inadequate notice is filed, it is clearly mandated where no notice is filed.

Section 9-103 of chapter 85, HI Rev Stats 1965, provides, in substance, that local governmental entities may contract for liability insurance and that policies of insurance for such liability coverage issued to a local public entity shall provide that the issuing company waives any right to refuse payment or to deny liability within the policy limits by reason of the defenses and immunities provided in the referred to statute. The inquiry, then, must be — is the notice requirement of section 8-102 a defense or immunity as is referred to in this statute, and thereby waived? The answer is that it is not. In Schear v. City of Highland Park, 104 Ill App2d 285, 244 NE2d 72 (2nd Dist 1968), the court held that the one-year statute of limitations and the six-month notice provision were not within the contemplation of defenses and immunities as used in section 9-103. We agree with the reasoning of Schear and hold that the language of section 9-103 has no application to the six-month notice requirement.

It is the contention of plaintiffs that when the purpose of the notice is satisfied and the interests of the defendants are fully protected without literal compliance, the notice requirement should fall because the reason for it no longer exists. In Sappington v. Sparta Municipal Hospital Dist., 106 Ill App2d 255, 245 NE2d 262 (5th Dist 1969), the court had a case wherein the injured person was taken immediately after the accident to the hospital as a patient. The defendant-hospital obtained the basic information required in the notice, and obviously the giving of a notice thereafter would only duplicate the already-obtained information. The court held the notice to be required. A long line of cases is to like effect. We must affirm.

Judgment affirmed.

SMITH and TRAPP, JJ., concur.