author: MORAN, J.

text:
    John Czochara, Plaintiff-Appellant, v. Howard Parlor Furniture Co., Incorporated, Defendant-Appellee.
    Gen. No. 52,556.
    First District.
    December 5, 1969.

      Leonard M. Ring, of Chicago, for appellant.
    Wildman, Harrold, Allen & Dixon, of Chicago (Thomas D. Allen and Jon R. Waltz, of counsel), for appellee.
   MORAN, J.

Plaintiff, John Czochara, was employed as a trailer mechanic by the Berman Leasing Company which leased and performed maintenance on tractor-trailer units, including a number of units leased to the defendant, Howard Parlor Furniture Company.

On November 14, 1962, Joseph Clune, one of defendant’s drivers, brought a tractor-trailer to Berman for repairs to its trailer brakes. Plaintiff was under the trailer attempting to fix the brakes when he was severely injured as a result of the tractor-trailer being moved by Clune. The jury found in favor of the defendant, and plaintiff’s post-trial motion was denied. Plaintiff appeals.

Plaintiff alleged in his complaint that on the 14th day of November, 1962, he was employed by the Berman Leasing Company as a truck mechanic and was working in that capacity on a tractor-trailer owned, controlled and operated by Howard Parlor Furniture Co., Inc., through its agent and servant, Joseph Clune; and while in the exercise of due care and caution for his own safety, he was injured through the negligence and carelessness of the defendant in one or more of the following ways;

a. Defendant operated said vehicle in a negligent and careless manner.

b. Defendant started the motor truck in motion while plaintiff was underneath it in the act of repairing it, causing the truck to run over plaintiff.

c. Defendant failed to give notice or warning to the plaintiff before moving the truck.

d. Defendant failed to keep and maintain a proper lookout for plaintiff before putting the truck in motion.

Clune, who plaintiff first called under section 60 of the Civil Practice Act, testified that on the 14th day of November, 1962, he was employed as a truck driver by the Howard Parlor Furniture Company, when he drove his tractor-trailer furniture van onto the Berman Leasing premises for the purpose of having the trailer brakes repaired. He testified that the trailer was not a tandem and had only one set of . wheels in the back.

Berman Leasing Company fronts on the west side of Oakley Avenue, which runs in a general northerly and southerly direction. It has a seven-bay repair garage, with each bay being fifteen feet in width, with a solid concrete apron running the entire length of Berman’s premises to the pavement of Oakley Avenue.' In our discussion of this case, the bays will be referred to as Bay No. 1, 2, 3, etc., running from North to South. From the exhibits it is difficult to tell where the apron ends and the Oakley Avenue pavement begins. It is thirty-six feet from the east wall of the bay to a row of three lampposts. The evidence does not disclose whether these lampposts are east or west of the westerly boundary of Oakley Avenue.

Clune testified that when he pulled in he parked on the left side of Oakley Avenue, facing north, with the front of his rig about even with the third bay of the garage. He was parked partly on the street and partly on the apron, and east of the lampposts. He also testified that the left side of his trailer was a few feet east of the line of posts.

After parking his truck, Clune went into Berman Leasing Company to see Christy Rogoni, the shop foreman. He then came out of Berman Leasing with the plaintiff, who said he was going to look at the brakes to see what was wrong. The plaintiff had his tools and creeper with him. He crawled under the trailer and Clune got into the cab and worked the valve as he had done on previous occasions. Plaintiff then came up to the cab and said, “This is a pretty old trailer. I don’t know whether we got a valve in stock, but I will go and see.” “I walked over with him to the door. He went on in the shop and I went to the telephone to call my boss.” He testified that it was not unusual for mechanics to work outside at that time and place.

Clune came out of Bay No. 2 and had to go around “a bunch of stuff” that was in the way. He had to walk around a service tractor sitting up on the apron west of the line of posts and west of his truck, so he went straight out the door and then directly south to his trailer. When he passed the service tractor there was a distance of twelve feet to his unit. Once he walked past this service tractor, he never looked to the rear of his own trailer.

On direct examination by the defense attorney, Clune testified that he came out of the garage and got into the tractor. He started the motor, let it run for about thirty seconds to build up pressure in the fuel lines, and then started for the garage, to back in. After he had rolled perhaps five, six, eight feet or so, he felt a thump and heard someone hollering. He jumped out of the truck and plaintiff was lying on the ground. He had run over plaintiff.

William Butler, on behalf of the plaintiff, testified that he worked for Berman Leasing as a parts man on the day of the accident; that just before the accident he was returning in his car with some parts that he had picked up and was headed south on Oakley. He passed the tractor-trailer while he was going south to the Berman parking lot, which was on the south side of the Berman Building. He parked his car and was getting the parts out of it when he saw someone’s feet protruding from the back of the trailer which was parked thirty or forty feet north of him.

He saw Clune come out of the Berman Building where the first stall was and start walking in a southeasterly direction toward his trailer. There were no other vehicles parked between defendant’s trailer unit and the Berman Building. Clune got to his vehicle, opened the door and seemed to glance to the south in the direction Butler had parked his car. He then got into the tractor and started the engine. Butler then turned and saw the tractor move, but the tractor hit plaintiff and dragged him forty or fifty feet.

The plaintiff, Czochara, testified that he was a trailer mechanic employed by the Berman Leasing Company at the time of the accident; that he knew Pat Clune because he had worked on his equipment before. He first saw Clune on the day of the accident talking to his foreman, Chris Rogoni. His foreman then called him over and told him to look at Pat’s brakes because he was having trouble with them. He came out of the fourth stall and picked up a creeper on his way. A creeper is a unit equipped with roller skate wheels and is used to get under cars. He told Pat to go to his cab and put the lever on his air brakes to see what was wrong. He then went under the front axle on his creeper. He testified that the trailer was a furniture van and had two axles with two sets of wheels on the back.

“I was by the front axle, in the middle of the trailer, underneath. The valve is in the middle. I crawled under the left side, the driver’s side, and I was working by the wheel. My body from the waist up was in front of the axle, and my head was facing north. Pat was in the cab. I hollered ‘O.K.’ so Pat came out of the cab to the back of the trailer and asked me what was wrong. I told him that the diaphragm was loose, and it was leaking through the diaphragm. The diaphragm is about the middle of the trailer, almost the front of the axle. It’s part of the brake. I said, ‘Well, I’ll try to tighten the bolts. If I can’t do anything with it, then I’ll have to change a new valve.’
“Then I went back to the shop and got my tools. Pat did not go with me. I left him by the trailer. I left my creeper and things alongside the trailer on the left side. I went back through the fourth door again. I went inside to my tool box and got my tools. On the way back I met the foreman and told him what was wrong and I believe he said, ‘Well, do what you can’ or something like that.
“This took place inside of the shop between the 4th and 3rd door. Then I went through No. 4 door back to the trailer. At that time I had just two wrenches. I had no parts with me. When I went back out there, Pat was not there. No one was around the trailer. My creeper was there and I picked up the creeper and crawled underneath there. I sort of rolled myself underneath, back again to the valve and started working on the valve. I started tightening the bolts on the valve.
“Then it happened so fast. I heard the engine start, so I hollered and hollered to stop. I was trying to lift myself out beyond the axle, trying to get myself out of there before it started rolling again or something. I forced myself north. I swung around to get my feet, trying to get out of the way. I got my feet out past the wheels and I saw the wheels coming at me and I threw my hands against my body. I felt something hit me and hit me again and that’s all I remember.”

On cross-examination the plaintiff denied that his foreman, Rogoni, told him that they were going to back the trailer into Stall No. 2. He had no idea where Clune was when he went back under the trailer. Most of his body was under the trailer with his head pointing north and his feet south and the axle was not high enough to clear his body. When he heard the engine start he yelled “Stop the equipment,” and then the accident happened.

Christy R. Rogoni, on behalf of the defendant, testified that he was a foreman at the Berman Leasing Company on the date in question, when Pat Clune came in with his unit because his brakes needed work. After talking with Clune he told Czochara to go outside and check the valve. He asked plaintiff whether he was going to do the work outside or inside and plaintiff said it did not make any difference to him. Rogoni then told plaintiff that he thought the trailer should be backed into the shop. He met Clune and told him that he would have to back the rig into the No. 2 door. He then went back into the office and the next thing he recalled was someone running into the office saying that there had been an accident and a man had been run over.

The trial court denied a motion made by the plaintiff at the end of all of the evidence to remove the issue of plaintiff’s contributory negligence from the jury. Plaintiff claims that this is reversible error. He argues that his presence under defendant’s rig only furnished a condition for his injury and was not a proximate cause; that Clune’s act in moving the trailer was an independent intervening cause of plaintiff’s injury and therefore un-. der the circumstances plaintiff as a matter of law could. not be contributorily negligent.

In Ney v. Yellow Cab Co., 2 Ill2d 74, 117 NE2d 74, the court said at 79:

“. . . In Neering v. Illinois Central Railroad Co., 383 Ill 366, we stated: ‘What constitutes proximate cause has been defined in numerous decisions, and there is practically no difference of opinion as to what the rule is. The injury must be the natural and probable result of the negligent act or omission and be of such a character as an ordinarily prudent person ought to have foreseen as likely to occur as a result of the negligence, although it is not essential that the person charged with negligence should have foreseen the precise injury which resulted from his act.’ In Johnston v. City of East Moline, 405 Ill 460, we declared: ‘An intervening and efficient cause is a new and independent force which breaks the causal connection between the original wrong and the injury and itself becomes the direct and immediate cause of the injury. (Citations.) The intervention of independent concurrent or intervening forces will not break causal connection if the intervention of such forces was, itself, probable or foreseeable. (Citations.) ’ ”

Plaintiff was working under the direction of Eogoni, his foreman, in performing the work on the rig in question. After having tested dune's brakes, plaintiff talked with Eogoni inside the Berman shop. Eogoni testified that he then told plaintiff that further work should be done inside the shop. Plaintiff denied this. The jury, however, were free to believe Eogoni’s testimony and disbelieve plaintiff’s denial. A jury of reasonable men and women could reasonably believe that at the time plaintiff went under the truck to work, he might reasonably anticipate that someone might move the truck and that this would pose a substantial risk of harm to him. Since Clune’s act in moving the truck was reasonably foreseeable, the jury could have found that it was not an independent, intervening cause of plaintiff’s injury.

Plaintiff also contends that the verdict in favor of the defendant was in light of the whole record, contrary to the manifest weight of the evidence. As this court stated in Brayfield v. Johnson, 62 Ill App2d 59, 210 NE2d 28, in Frozen Food Express v. Modern Truck Lines, Inc., 79 Ill App2d 84, 223 NE2d 275, and again in Cochran v. Parker, 91 Ill App2d 56, 233 NE2d 443:

“A court of review can set aside a verdict as being against the manifest weight of the evidence only when it is obvious or clearly evident that the jurors have arrived at an incorrect result. Romines v. Illinois Motor Freight, Inc., 21 Ill App2d 380, 158 NE2d 97 (1959). It is for the jury alone to determine the credibility of witnesses and the weight of the evidence on controverted questions of fact. A verdict based on conflicting evidence and approved by the trial judge should not be disturbed on appeal unless contrary to the manifest weight of the evidence; that is, an opposite conclusion must be clearly evident. Ritter v. Hatteberg, 14 Ill App2d 548, 145 NE2d 119, (1957). Manifest means clearly evident, clear, plain, indisputable. Schneiderman v. Interstate Transit Lines, Inc., 331 Ill App 143, 72 NE2d 705 (1947).”

Plaintiff argues strenuously that Clune’s testimony is so inherently improbable as to be unworthy of belief. Clune testified that there was a Berman Service tractor about twelve feet west of his tractor and that as he crossed the twelve-foot space between the two tractors, he looked to the left front but not the left rear of the trailer; that he did not enter his trailer on the driver’s side but got in on the right side, sliding across the seat to get to the steering wheel.

We agree that this was a strange way for Clune to get into the tractor, but we are unable to say that this testimony is so inherently improbable that we should overturn the finding of the jury.

In Ney v. Yellow Cab Co., supra, the court also said at page 84:

“Questions of negligence, due care and proximate cause are ordinarily questions of fact for a jury to decide. The right of trial by jury is recognized in the Magna Charta, our Declaration of Independence and both our State and Federal constitutions. It is a fundamental right in our democratic judicial system. Questions which are composed of such qualities sufficient to cause reasonable men to arrive at different results should never be determined as matters of law. The debatable quality of issues such as negligence and proximate cause, the fact that fair-minded men might reach different conclusions, emphasize the appropriateness and necessity of leaving such questions to a fact-finding body. The jury is the tribunal under our legal system to decide that type of issue. To withdraw such questions from the jury is to usurp its function. Bailey v. Central Vermont Railway Co., 319 US 350.”

In our opinion, there was an evidentiary basis for the jury to find that defendant was not negligent or that plaintiff was contributorily negligent. Under such circumstances we will not substitute our judgment for that of the jury.

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

Judgment affirmed.

GOLDENHERSH and EBERSPACHER, JJ., concur.


source: Caselaw Access Project

author: GOLDENHERSH, P. J.

license: Public Domain

text:
    Capital Equipment Enterprises, Inc., Plaintiff-Appellee, v. North Pier Terminal Company, a Corporation, Defendant-Appellant.
    Gen. No. 52,599.
    First District.
    December 5, 1969.

      Robert H. Joyce, George J. Matkov, George E. Preonas, Seyfarth, Shaw, Fairweather & Geraldson, of Chicago, for appellant.
    Harry Shriman, Shriman & Feldman, of Chicago, for appellee.
   GOLDENHERSH, P. J.

Defendant, North Pier Terminal Company, appeals from the judgment of the Circuit Court of Cook County entered upon a jury verdict in the amount of $5,416. This action arises out of a transaction in which defendant sold plaintiff a used crane, and is based on the alleged breach of express warranties as to the crane’s condition and lifting capacity.

The evidence shows that in the summer of 1961 defendant inserted the following advertisement in a publication called “Industrial Market Place”:

“CRANE—Railroad 30-ton McMyler Cummins diesel engine; 55 ft. hvy. duty boom; complete with generator for magnet work. Good condition.”

Murray Grainger, plaintiff’s president, requested additional information with respect to the crane and defendant replied by letter, which contained the following statements :

“2. This crane is a 30 ton McMyler locomotive crane equipped with a Cummins Diesel, engine, generator, and a 55 ft. boom.
• • •
“4. It was rebuilt in 1953 at which time the diesel engine was installed. Some time ago we acquired a much larger crane which is adequate for all our stevedoring activities. Therefore we find that although most serviceable the crane offered for sale is seldom being used.”

Plaintiff, a dealer in used equipment, made efforts to sell the crane. Mr. Grainger and Stanley Huggett, defendant’s vice president, arranged for a demonstration and inspection, and in July 1962, Grainger came to Chicago in the company of a representative of a prospective customer. The demonstration was • conducted by defendant’s employees; the crane, which rides on railroad tracks, was driven down the tracks, the cab was rotated, and the boom and lifting line were raised and lowered. No actual lifting was done.

Mr. Grainger testified that he asked defendant’s foreman, Mr. Rodriguez, and the crane operator, if the crane could lift 30 tons, and both answered in the affirmative. Rodriguez told him the crane was in “very good condition.”

Plaintiff’s prospective customer did not buy the crane, and in September 1962, plaintiff bought it. The purchase order upon which the sale was made provides:

“DESCRIPTION
“1-Used Locomotive Crane, Manufactured by Mc-Myler, 30 ton capacity, 55 ft. boom, complete with Cummins Diesel Engine and Generator.
“Prepared for shipment and accepted by the railroad for travel on its own wheels.
“Price, F. O. T. Chicago.................$4,000.00
“Delivery:
“The crane can be left at its present location for six months until resold. During that time we will be allowed to have it inspected in operation by our potential customers. When it is resold by us, it will then be prepared by you for rail shipment at which time we will pay you the necessary additional miscellaneous charges for preparing it for shipment not to exceed $300.00.”

In July of 1963 plaintiff requested a second demonstration of the crane for another customer, who subsequently agreed to lease it. This demonstration was essentially the same as the prior one.

In August 1963, at plaintiff’s request, defendant prepared the crane for shipment, under the direction of the Rock Island Railroad. It arrived at the lessee’s premises approximately 2 weeks later. The lessee informed plaintiff that the crane would not operate.

An expert called by plaintiff testified he had examined the crane in October 1963, and in his opinion, it was inoperable. In response to a hypothetical question he expressed the opinion that 9 months previously, assuming the machine had not been operated in the interim period, it was inoperable, because “part of the pieces were missing.” Essential parts were missing, the boom could not be raised, drums were rusty and pitted, the clutch could not be energized, and the clutch band was disintegrated due to lack of usage. He could not state how long the deteriorating conditions had been present, but the rusting and pitting were older than 9 months. He further stated that the boom could not be raised and lowered manually. He was unable to express an opinion as to why the boom operated at the demonstrations above described. There is no evidence as to what happened to the missing parts, or as to the manner in which the crane was reassembled after its arrival in New Jersey, or by whom.

Mr. Rodriguez denied making the statements to which Mr. Grainger testified. He stated that the crane was generally used to lift loads of 1 to 5 tons, and he had never seen it lift more than 10 tons. He testified that although the crane was running, he would not say it was in good condition. It was not used after the sale. He was in charge of preparing the crane for shipment and does not know if any parts were missing at that time.

Plaintiff paid shipping charges in the amount of $1,416, and the verdict is in the amount expended by plaintiff for the purchase price and shipping charges.

As grounds for reversal defendant contends that no express warranties were created; the words “30-ton McMyler Crane” are descriptive of its make and model and do not create a warranty of its capacity to lift 30 tons; defendant’s employees were without authority to make the warranties allegedly created by their statements; assuming arguendo, defendant made warranties, the evidence fails to show the crane was not in good condition at the time of sale, and no breach of warranty is proved; and plaintiff’s counsel made prejudicial statements in final argument.

Chapter 26, § 2-313, Ill Rev Stats 1967, provides:

“(1) Express warranties by the seller are created as follows:
“(a) Any affirmation of fact or promise made by the seller to the buyer which relates to the goods and becomes part of the basis of the bargain creates an express warranty that the goods shall conform to the affirmation or promise.
“(b) Any description of the goods which is made part of the basis of the bargain creates an express warranty that the goods shall conform to the description.
“(2) It is not necessary to the creation of an express warranty that the seller use formal words such as ‘warrant’ or ‘guarantee’ or that he have a specific intention to make a warranty, but an affirmation merely of the value of the goods or a statement purporting to be merely the seller’s opinion or commendation of the goods does not create a warranty.”

The comment by William B. Davenport (SmithHurd Illinois Annotated Statutes) contains the following:

“The question of whether a warranty exists under this subsection in a case not involving an integrated contract (see § 2-202) is, thus, a factual issue, as it was under the Sales Act.”

This statement is supported by the authorities cited (see page 218, Annotated Statute) and the earlier case of Thorne v. McVeagh, 75 Ill 81.

The jury were instructed that before plaintiff could recover, it must prove there was a warranty upon which plaintiff relied in purchasing the crane, that the warranty induced the purchase and the crane was not as warranted. They were further instructed that they could not consider any oral statements made by defendant concerning the condition of the crane unless plaintiff relied upon such oral statements and was induced thereby to enter into the purchase agreement.

The advertisement, defendant’s letter, the language of the purchase order and Rodriguez’s statement to Grainger suffice to support the verdict.

Defendant argues that plaintiff clearly did not rely on the warranty and purchased the crane after a demonstration of its operability and capacity. Plaintiff’s expert testified that a thorough examination of the crane required eight hours, and clearly plaintiff made no such inspection at the time of the demonstration. An inspection does not preclude reliance upon an express warranty if the facts are not discovered by means of the inspection. Hodgman v. State Line & Sullivan R. Co., 45 Ill App 395; City of Paragould v. International Power Mach. Co., 233 Ark 872, 349 SW2d 332. The evidence is sufficient to support a finding that plaintiff, in purchasing the crane, relied on the warranty.

Defendant contends that assuming Rodriguez made the statements attributed to him, he was without authority so to do. The evidence shows that defendant’s vice president referred inquiries to Rodriguez, and testified that the foreman (Rodriguez) knew more about the condition of the equipment than anyone else. Under these circumstances Rodriguez’s statements that the crane was in good condition were within the scope of his authority. 2 Mechem on Agencies, 2nd Ed, § 1778; Wasatch Chemical Co. v. Leon, 123 Utah 296, 259 P2d 301.

We next consider defendant’s contention that assuming, arguendo, defendant made warranties, the evidence fails to prove the crane was not in good condition at the time of the sale, and no breach of warranty was shown. Rodriguez’s testimony that although the crane was operable it was not in good condition at the time of the sale is sufficient to support the verdict.

We have reviewed the closing arguments and have carefully examined the matters with respect to which defendant complains. A review of its contentions would be of no precedential value. It suffices to say that the record reflects no abuse of discretion on the part of the trial court, and absent such abuse its rulings with respect to the arguments are upheld. City of Chicago v. Chicago Title & Trust Co., 331 Ill 322, 163 NE 17.

For the reasons stated the judgment of the Circuit Court of Cook County is affirmed.

Judgment affirmed.

MORAN and EBERSPACHER, JJ., concur.


text:
    Harrell Crabb, Plaintiff, v. Robert R. Anderson Co., an Illinois Corporation, and Hunter Construction Company, Inc., Defendants. Milroy R. Blowitz, Petitioner-Appellant, v. Robert J. Heilgeist, Respondent-Appellee.
    Gen. No. 53,066.
    First District.
    December 5, 1969.
    Rehearing denied January 14, 1970.

      Harold A. Liebenson and Edward G. Raszus, of Chicago (Harold A. Liebenson and Edward G. Raszus, of counsel), for appellant.
    Robert J. Heilgeist, of Chicago (Sidney Z. Karasik and Ellis B. Rosenzweig, of counsel), for appellee.
   GOLDENHERSH, P. J.

Petitioner, Milroy R. Blowitz, appeals from the order of the Circuit Court of Cook County awarding respondent, Robert J. Heilgeist, an attorney’s lien on certain funds presently on deposit with the Clerk of the Circuit Court of Cook County, and ordering the Clerk to pay Heilgeist the sum of $5,016.80 in satisfaction of the lien.

This proceeding arises from an action based on the Structural Work Act in which plaintiff, Harrell Crabb, was awarded damages in the amount of $50,000. This court affirmed the judgment (Crabb v. Robert R. Anderson Co., 87 Ill App2d 291, 232 NE2d 44).

Blowitz filed a petition recounting the filing of Crabb’s action, the judgment, its affirmance on appeal, that Heilgeist “caused to be served upon the attorneys for the defendant a Notice of Attorneys’ Lien,” the judgment debtor had tendered payment of the judgment but Blowitz could not accept it as tendered, and asked a hearing be held to adjudicate Heilgeist’s claim of lien.

Heilgeist filed a petition alleging matters which will be discussed to the extent necessary, and claiming a lien in the amount of one-third (i/g) of the fee payable from Crabb’s recovery.

Heilgeist, Blowitz and Crabb testified, and it appears from the testimony that Crabb employed the law firm of Ozmon & Blowitz to represent him in a claim for personal injuries; although Ozmon was the lawyer with whom he spoke, when the firm was dissolved, the file remained with Blowitz. Heilgeist tried the case, resulting in the $50,000 verdict and judgment.

Heilgeist testified his arrangement with Blowitz was that he was to be paid $200 per week and one-third (Vs) of the fee in any case he tried. There were other matters covered in their agreement and several modifications, but these are not material to the issue here.

Blowitz testified Heilgeist was to be paid $200 per week, and at the time the Crabb case was tried, there was no agreement for any additional payment.

Heilgeist testified that when Crabb, whose home was in Texas, came to Chicago shortly before the trial, he came to the offices occupied by Blowitz and Heilgeist, where Heilgeist spoke with him. He wanted to know who Heilgeist was, and told him he had retained Mr. Ozmon and not Blowitz. “I told him that Mr. Ozmon severed his relationship with Mr. Blowitz, and at that time he assented to remain with us to handle his case. Mr. Crabb inquired of me what the fee was, and he inquired of me how much he would be paid. I informed him that I was the one who was detailed to handle the case, that my fee would not be increased over %, that my remuneration would come from the settlement. On the 2nd or 3rd day of trial Mr. Crabb came to me in the courtroom and said to me that he hoped that I would be paid for my time, and I told him not to be concerned, and went over the fact that as the trial attorney I was to receive % of the proceeds of any judgment or settlement in the case.”

Mr. Crabb denied there was such a conversation with Heilgeist, stated he originally retained Blowitz & Ozmon, in their office, and did not look at the form to see what the firm name was. He agreed to pay them one-third (%) for handling his case.

Although Blowitz’s petition refers thereto, and Heilgeist identified a Notice of Attorney’s Lien as an exhibit, it does not appear of record. The contract of employment between Crabb and whomever he originally employed is not included in the record.

The court found the arrangement between Heilgeist and Blowitz was that Heilgeist was to receive “one-third (Vs) of the one-third (Vs) that was payable under the retainer agreement.” The court found that Crabb, “having signed an agreement in blank, I think that thereby he agrees that whatever arrangement may have been made between Mr. Ozmon and Mr. Blowitz and subsequently by Mr. Blowitz alone would automatically transfer whatever rights may have been transferred to the trial attorney in the case.

“I think this trial attorney, by reason of his arrangement and agreement with Mr. Blowitz, did have some type of oral understanding with Mr. Blowitz. And by reason of his actual handling of the trial of the case throughout the whole proceedings, it would seem to me that he would be entitled to an attorney’s lien for the amount I have indicated. This is the finding of the Court.”

Blowitz contends that in the absence of a contractual relationship between Heilgeist and Crabb, Heilgeist does not have a statutory attorney’s lien. Heilgeist’s contention is threefold—in his brief he contends he has a valid statutory lien on the judgment rendered in favor of Crabb, and has “valid Lien rights” on Blowitz’s one-third interest in the judgment. In support of the latter contention Heilgeist argues the facts show an attorney-client relationship between Heilgeist and Blowitz. On oral argument Heilgeist argues that by employing Heilgeist to try the case, Blowitz impliedly assigned to him the attorney’s lien on his one-third of the recovery.

In Unger v. Checker Taxi Co., 30 Ill App2d 238, 174 NE2d 219, the Appellate Court said at page 241,

“The legislative purpose of the attorney’s lien act is to assist attorneys in the collection of their attorney’s fees. Brazil v. City of Chicago, 315 Ill App 436, 43 NE2d 212. This statute was unknown to the common law and must be strictly followed. De Parcq v. Gardner, 336 Ill App 144, 83 NE2d 32. It has been said that no rule of law is better settled than that liens can be created only by agreement or by some fixed rule of law, but not by the courts. Deitchman v. Korach, 330 Ill App 365, 71 NE2d 367. A lienor who seeks to enforce a statutory lien must comply with any statutory requirement with respect to enforcement of such a lien. Cazalet v. Cazalet, 322 Ill App 105, 54 NE2d 61.”

The pertinent portion of the statute creating the lien (Chapter 13, § 14, Ill Rev Stats 1967), provides:

“Attorneys at law shall have a lien upon all claims, demands and causes of action, including all claims for unliquidated damages, which may be placed in their hands by their clients for suit or agreement, for a reasonable fee, for the services of collection, or upon which suit or action has been instituted, for the amount of any fee which may have been agreed upon by and between such attorneys and their clients, or, in the absence of such attorneys rendered or to be rendered for their clients on account of such suits, claims, demands or causes of action.”

Appellee argues that the trial court found there was an attorney-client relationship between Heilgeist and Crabb and the finding should not be disturbed unless it is manifestly against the weight of the evidence. We find no such finding in the record. The trial court specifically avoided making a finding with respect to whether Heilgeist and Crabb had ever discussed fees, there is no finding of fact with respect to an agreement between Heilgeist and Crabb, and the lien was awarded on the basis of the arrangement between Heilgeist and Blowitz for the reason set forth in the portion of the findings hereinabove quoted.

Applying the rule that the statute must be strictly construed, we hold that the evidence fails to show that Crabb placed any claim or cause of action in the hands of Heilgeist, and absent this element, essential to the creation of a valid statutory lien, no lien can be awarded.

We next consider Heilgeist’s contention that the facts show an attorney-client relationship with Blowitz. The record does not support the contention, but assuming, arguendo, the relationship exists, the lien fails for the reason that the notice purporting to create the lien apparently asserts a lien against the recovery of Crabb, not that of Blowitz. Berkemeier v. Dormuralt Motor Sales, 263 Ill App 211, 218.

We have considered the contention that there was an implied assignment of a portion of Blowitz’s lien. In the absence of authority to support the argument, we hold there was no assignment which could create a statutory lien in favor of Heilgeist.

We are not here concerned with the question of whether Blowitz owes Heilgeist one-third of the Crabb fee or any other sum, nor is what we have said to be construed as expression of an opinion as to the merits of the respective contentions of the parties. The sole issue presented is whether Heilgeist has a statutory lien on the funds presently in the hands of the Circuit Court. For the reasons stated we hold there is no lien, and the order of the Circuit Court of Cook County is reversed.

Order reversed.

MORAN and EBERSPACHER, JJ., concur.


author: TRAPP, P. J.

text:
    City of Evanston, a Municipal Corporation, Plaintiff-Appellant, v. Jay Robbins, Defendant-Appellee.
    Gen. No. 53,157.
    First District.
    December 5, 1969.
    Rehearing denied January 29, 1970.

      Jack M. Siegel, Corporation Counsel of City of Evanston, for appellant.
    Robert S. Romano and Philip J. McGuire, of Evanston, for appellee.
   TRAPP, P. J.

Plaintiff, City of Evanston, appeals from a judgment of the Circuit Court, finding the defendant, Jay Robbins, not guilty on a quasi-criminal complaint for violation of the zoning ordinance by maintaining a multiple dwelling in a district zoned for single-family dwellings.

Defendant’s answer to the complaint denied the violation, alleged that the use was legally nonconforming and alleged, as affirmative defenses, facts purporting to show that plaintiff was estopped to assert a violation of the ordinance and that the ordinance, as applied to this property, was arbitrary and without relation to public health and welfare and was unconstitutional.

The record incorporates testimony directed to the issue of estoppel and to the validity of the ordinance as applied to the property concerned. Certain comments by the court are incorporated into the record, including:

“. . . On the basis of everything that I have heard here, I must be forced to discharge the complaint.”

The judgment entered was not guilty. The court’s recorded statements were directed to the fact that multiple use had existed for 25 years, that the City had inspected the residence as a multiple-family residence and had affirmatively directed defendant to make corrections based upon multiple-residence requirements. The court expressed belief that the City’s conduct fell within the doctrine of estoppel.

Estoppel may be invoked against a municipality where the action of a party is induced by the conduct of municipal officers with the result, that in the absence of relief such party would suffer substantial detriment or loss and the municipality would be permitted to stultify itself by retracting what its agents had done. Cities Service Oil Co. v. City of Des Plaines, 21 Ill2d 157, 171 NE2d 605, and the cases cited therein.

The subject property is located at the northeast corner of Ridge Ave., a north and south street, and Lake Street, an east and west street. A substantial area east and north of the subject property is either Rr-4, general residence, R-6, general residence, R-7, general residence, B-2, business, B-3, business, B-4, business, C-2, commercial, or C-3, commercial. The subject property is thus at the southwest corner of an area which is zoned for multiple-family use, apartments and business. Immediately south of the property for one and one-half blocks, the area is zoned R-l, single-family residence. Farther south the classification is R-6 and R-3. Commencing one and one-half blocks east on the south side of Lake Street, the area is again R-3, R-6 and B-2. To the west for two and one-half blocks, the classification is Rr-1 and this strip of two to three blocks wide is R-l for about one-half mile north and one-half mile south of the subject property. The foregoing general characteristics are shown by the zoning map.

The immediate block in which the subject property is located is zoned R-6 in the east half and R-l in the west half. Commencing with the subject property and proceeding east on Lake Street is a structure with two townhouse units which is legally nonconforming. Immediately east is another that is a legal nonconforming use. Immediately east, the classification in the block changes to R-6, and there is a ten-unit apartment building. Thus, on the north side of Lake Street, between Ridge Ave. and Oak Ave., the subject property is the only property which would be required to be conforming and single family. The balance of the east side of the block going north on Oak Ave. consists of three large homes used as multiple-family units and one additional ten-unit apartment building. In the west half of the block, commencing on the north at Grove Street, is a church which appears to occupy half of the block. South of the church is a two-family home; next, a single-family home occupied by the defendant, and next is the subject property.

The only testimony regarding the block immediately west of the subject property is that an Armenian Bishop uses the building and has one student roomer. The answer states:

“• • •
“(c) The block west of defendant’s block: the property immediately west of defendant’s dwelling is utilized as a home for a religious order with multiple occupancy. The northeast corner of said block is utilized for church purposes. The middle portion of the block is used for a single-family dwelling.”

The answer states as to the balance of the area:

“(d) The block northwest of defendant’s block: the Ridge Avenue frontage is occupied by institutional headquarters and a playground.
“(e) . . .
“(f) The block southeast of defendant’s block: the Lake Avenue frontage is occupied by a church and an elementary school.
“(g) The block south of defendant’s block: the Lake Avenue frontage is occupied by a municipal park and modest single-family dwellings.
“(h) The block southwest of defendant’s block: used for single-family dwellings.”

The allegations of the answer are admitted by the reply to the second affirmative defense.

The defendant testified that he had lived next door to the subject property since 1943, that the subject property has seven apartment units, that it has been so used since he first knew it, and that it was so used when he purchased the property in 1956. He testified that in 1957, three city inspectors inspected the building. He took them through it. The inspectors advised him that he needed a second access to the third-floor apartment, which required construction of a stairway, that a solid door should be changed to a glass door, that electric wiring changes should be made and that he would have to have more light in the basement apartment. Defendant made the changes at a cost of $1,200 to $1,500. Defendant sought to put a second entrance on Lake Street, but was told he could not make structural changes in a legal nonconforming use.

The defendant introduced four letters received in 1959; one from the assistant Fire Marshall stating that on reinspection all requirements of the Evanston Fire Prevention Bureau had been met in compliance with the Evanston Housing Ordinance; one from the Department of Health, stating that inspection revealed that violations had been corrected, signed “Acting Director of Housing”; one from the Department of Health stating that the reinspection disclosed that all noted violations of the Housing Code of the City of Evanston had been corrected, signed “Housing Inspector”; and one from the Director of Building referring to the unit as one in the Single-Family Dwelling District, and stating that the building violation had been corrected and the dwelling considered approved housing.

It appears that in 1964, Anthony W. Heilman, who identified himself as the Chief Conservation Inspector of the City, informed the defendant that he would have to deconvert to a single-family unit. He testified in behalf of the plaintiff in this case. The name of this witness is identical with that appearing as a signature on the letter dated in 1959 to the defendant, and executed as “Housing Inspector.” He testified that his duties consisted in:

“Enforcing the Housing and Zoning Ordinance where it pertains to existing structures.”

This witness, in answer to a question whether the original conversion of the property was made without permits, answered, “As far as I know.” He testified that he did not know why he could not find any record of such permit and that such original conversion was made about 1948. He testified that from experience a multiple dwelling in a single-family area would generally be “derogatory.”

The evidence does not establish when the premises were converted to a seven-family unit, nor under what circumstances, nor whether there were or were not building permits taken out for the conversion at that time. It was stipulated that an evidence deposition showed that the premises were used as a single-family residence after 1925, the date of the zoning ordinance.

Plaintiff asserts, (a) that zoning ordinances are presumed to be valid and the burden is upon the defendant to show that the classification bears no substantial relation to the public health, safety and welfare; (b) that mere failure of enforcement of an ordinance does not create an estoppel against a municipality, and (c) that defendant has shown no substantial change of position based upon the positive conduct of the City.

Defendant asserts, (a) that even though the trial court did not expressly find that the ordinance as applied to defendant bore no relation to public health, safety and welfare, there was sufficient basis in the evidence for so finding, and therefore the decision of the trial court should be affirmed, and (b) that the City by its conduct is estopped from enforcing the ordinance against the defendant.

This is an historic situation in which valuable property rights are involved but there is no clear evidence that its origin, some 25 years ago, was without some form of permission by authorities. Thése public authorities did in 1957 order changes consonant with treating it as a legal nonconforming use. There is negligible evidence of any public interest to be served by condemning its present existence.

We have considered authorities cited by plaintiff to illustrate that laches or lack of enforcement will not estop a municipality. Certain of them do not relate to zoning problems as such, but to matters of health regulation as in City of Chicago v. Miller, 27 Ill2d 211, 188 NE2d 694; American Baking Co. v. Wilmington, 370 Ill 400, 19 NE2d 172; or to matters of safety or fire regulation as in Kaukas v. City of Chicago, 27 Ill2d 197, 188 NE2d 700; City of Chicago v. Hadesman, 17 Ill App2d 150, 149 NE2d 425 and Meltzer v. City of Chicago, 152 Ill App 334.

Of the authorities cited by plaintiff, only Gregory v. City of Wheaton, 23 Ill2d 402, 178 NE2d 358 and People ex rel. Nat. Bank v. Cook County, 56 Ill App2d 436, 206 NE2d 441, approach the present problem. In Gregory the court found that the zoning regulation at issue was consistent with the uniform established uses in the block, and there was evidence to support the deteriorating effect of multiple-use property on values of single-family residences. In the Bank of Austin case the court expressly found that the landowner had made no change of position in reliance upon the ordinance, and implicit in the opinion is the fact that the ordinance as changed was consistent with the use established by the plaintiff himself.

We think the present situation is more analogous to that found in Westfield v. City of Chicago, 26 Ill2d 526, 187 NE2d 208. There a single-family dwelling was converted prior to plaintiff’s ownership to four apartments. This was done after the zoning ordinance. As in this case, the block including the subject property was divided. The south half of the block was R-4 as were two blocks south and some to the east. The subject property was on the north half, and it, together with several blocks to the north were zoned R-l. There were several institutional uses in the neighborhood. The court, in the Westfield case, pointed out that although the property had been used as multifamily for ten years, there was no evidence of decrease in value of surrounding property. Here the property had been so used for 25 years, and there is no specific testimony whatsoever as to a tendency to deteriorate this neighborhood.

While the testimony of defendant lacks detail in this respect, it is clear that defendant’s compliance with the City orders of 1957 induced detriment, and the record shows that the deconversion sought by the City would require at least the removal from the building of six of the seven present kitchens. Future detriment may be considered for purposes of the doctrine of estoppel. New-Mark Builders, Inc. v. City of Aurora, 90 Ill App2d 98, 233 NE2d 44. It is clear that the City indulged in positive acts of enforcement which required improvements by defendant consistent with multifamily use. This is a case, as in Westfield, where detriment to the defendant is established with no apparent benefit resulting to the public.

While a city may not be estopped by mere inaction and may never be estopped when matters of public health and safety are concerned, nevertheless, it is said:

“Municipal corporations, as well as private corporations and individuals, are bound by the principles of fair dealing.”

New-Mark Builders, Inc. v. City of Aurora, 90 Ill App2d 98, 233 NE2d 44. If, under all of the circumstances, the affirmative acts of the City have created a situation where it would be unjust or inequitable to permit it to deny what it has done or permit it to be done, the doctrine of estoppel may be applied against it. Stahelin v. Board of Education, School Dist. No. 4, DuPage County, 87 Ill App2d 28, 230 NE2d 465; People ex rel. Beverly Bank v. Hill, 75 Ill App2d 69, 221 NE2d 40.

In zoning cases the doctrine of estoppel may be applied where the record suggests that the detriment to the public is negligible, Cities Service Oil Co. v. City of Des Plaines, 21 Ill2d 157, 171 NE2d 605, or the record shows that public welfare does not require the restricted use. Under such circumstances it is said that the presumption of the validity of the ordinance is “dissipated.” Village of Oak Park v. Gordon, 32 Ill2d 295, 205 NE2d 464.

In this action plaintiff is required to prove the violation by a clear preponderance of the evidence. While the court did not directly pass upon the issue of whether the zoning was arbitrary and unreasonable, the doctrine of estoppel when applied against a municipality considers such factors. Upon this record it cannot be said that the court erred in applying the doctrine of estoppel, or that the evidence of the present zoning classification and the existence of a present nonconforming use is sufficient to establish a violation of the ordinance.

The judgment of the court below is affirmed.

Affirmed.

SMITH and CRAVEN, JJ., concur.


author: EBERSPACHER, J.

text:
    Brown Bag Company, a Corporation, Plaintiff-Appellee, v. Bituminous Casualty Corporation, a Corporation, Defendant-Appellant.
    Gen. No. 53,367.
    First District.
    December 5, 1969.

      Doyle, Berdelle and Tarpey, of Chicago (Edward Wolfe, of counsel), for appellant.

      Sturman, Sang & Carney, of Chicago (Vincent J. Carney, of counsel), for appellee.
   EBERSPACHER, J.

This is an appeal from a judgment of the Circuit Court of Cook County wherein the plaintiff prevailed in its suit for declaratory judgment. The judgment found the defendant insurance company to be obligated under its policy of insurance to defend the plaintiff in a personal injury suit that resulted from alleged negligent acts of the plaintiff’s servant. The judgment further ordered the defendant to pay to the plaintiff $1,200 for services rendered in defending the personal injury suit and for the prosecution of the suit from which this appeal arises.

The facts surrounding the case are as follows:

On August 5, 1961, Violet Corner allegedly sustained injury as a result of the negligent acts of an employee of the plaintiff, Brown Bag Company. The alleged injury took place at Hillman’s Produce Center, Inc. which was located within a Sears Roebuck Store. The plaintiff, Brown Bag Company, had, at that time and all times herein pertinent, issued to it by the defendant, Bituminous Casualty Corp., a policy of liability insurance.

Mrs. Violet Corner filed suit in July 1963 against the plaintiff. Hillman’s and Sears Roebuck were named as codefendants. Upon receipt of the complaint and summons the plaintiff forwarded them to its insurer, this defendant. On July 24, 1963, this defendant notified the plaintiff by certified mail that this defendant was denying coverage for failure of the plaintiff to comply with the following conditions of the policy:

“No. 10—Notice of Accident: When an accident occurs written notice shall be given by or on behalf of the insured to the company or any of its authorized agents as soon as practicable. Such notice shall contain particulars sufficient to identify the insured and also reasonably obtainable information respecting the time, place and circumstances of the accident, the names and addresses of the injured and of the available witnesses.
“No. 11—Notice of Claim or Suit: If claim is made or suit is brought against the insured, the insured shall immediately forward to the company every demand, notice, summons or other process received by him or his representative.”

In May of 1964 this suit was filed asking for a declaratory judgment on the coverage of the policy and for an award of attorney fees for defense of the Corner suit, as well as attorney fees for the present suit. The cause was tried before the court sitting without a jury. At the conclusion of that hearing the trial court announced its decision in favor of the plaintiff and continued the matter to a day certain. On the latter date the court heard evidence bearing on attorney fees to be assessed against the defendant and entered its order. Judgment was entered for plaintiff and attorney fees were assessed against the defendant in an amount of $1,200 in favor of the plaintiff for the defense of the Corner suit and the prosecution of the present action.

The evidence showed without dispute that at all pertinent times that there was in full force and effect an insurance policy issued by the defendant to the plaintiff that would provide coverage to the plaintiff for claims that might arise out of injuries as allegedly suffered by Violet Corner in August of 1961; that the plaintiff did, in July 1963, promptly, upon receipt, forward to the defendant the service of process as required under condition 11 above, of the said policy; that Mr. Peter Tifsky was the vice president and principal operating officer of the plaintiff at the plaintiff’s principal place of business; that the plaintiff’s principal place of business is located at 1447 Blue Island Avenue, Chicago, Illinois; and that all correspondence received in evidence was addressed to the corporation at that address. Further, that the accident allegedly suffered by Mrs. Corner occurred at a location remote from plaintiff’s business and that there were codefendants with the present plaintiff in the suit filed by Mrs. Comer; that plaintiff’s allegedly negligent employee, Goode, had never reported the alleged occurrence to his employer; and that plaintiff had no employee by the name of P. W. Jaky.

The burden of proving notice is on the person charging it. Reed v. Eastin, 379 Ill 586, 41 NE2d 765. And, whether one has notice of a certain fact is a question of fact and not of law. Paine v. Sheridan Trust and Savings Bank, 342 Ill 342, 174 NE 368. It is obvious from this record that defendant did not satisfy the trier of the facts that plaintiff had such knowledge as to require plaintiff to give defendant the notice required by condition 10, and defendant therefore asserts that the judgment is against the manifest weight of the evidence. Defendant contends that the evidence of mailing of certain letters by a non-party, Safety and Claims Service, Inc., favored by presumptions of receipt, is so strong, that this Court should not hesitate to set aside findings which under defendant’s interpretation of the evidence are in fact against the manifest weight of the evidence. We are not here dealing with the giving of notice as specified by Rules of the Supreme Court or provided by our Practice Act, nor the notice provided for by any Illinois statute. Evidence of mailing registered mail raises a presumption of receipt, sufficient to make a prima facie case on notice and a return receipt signed by a party is prima facie evidence of receipt, Ladd v. Cochran & McCluer Co., 274 Ill App 427. The Federal Statute, 39 USCA 5010, provides that registered or certified return receipts “shall be received in the Courts as prima facie evidence of delivery.” We therefore approach the factual situation here presented, on the theory that the presumptions involved are rebuttable ones and note that defendant presented no evidence other than the receipt itself, that plaintiff’s agent signed the return receipt presented in evidence.

Plaintiff’s witness Tifsky, whom defendant contended was the recipient of notice of the alleged Corner occurrence, testified that the first time he had knowledge of the occurrence was in July 1963 when he was served with summons and complaint which he promptly caused to be forwarded to defendant in compliance with the terms of the policy. In addition to the policy, and the Corner complaint, plaintiff placed into evidence defendant’s letter of July 24, 1963, returning the summons and advising plaintiff that it was denying coverage since no accident report or notice of the accident was received by it prior to receipt of the summons, and directed plaintiff’s attention to failure to comply with conditions No. 9 and No. 10, purportedly setting out verbatim those conditions. The letter went on to say that plaintiff was put on notice by one, Maitland, of Hillman’s insurance carriers (Safety and Claims Service, Inc.), by a letter dated August 8, 1961 with a return receipt dated August 9, 1961, signed by Mr. P. W. Jaky, and a followup of the first letter dated August 25, 1961. Mr. Tifsky testified that he had never received either of the letters referred to and that plaintiff had no employee, J. H. Jaky.

Defendant contends that the plaintiff was put on such notice in August 1961, by the two letters referred to in its letter, as to require plaintiff to give the notice required by condition 10 of the policy. To support this contention, defendant placed into evidence a copy of the letter of Maitland dated August 8, 1961 to which was attached a printed form (POD Form 3800) of a receipt for certified mail on which had been typed plaintiff’s name and address and on which the blank space for “Postmark or Date” was blank, and on which none of the boxes to be checked if the sender wanted a return receipt, were checked. Defendant also placed into evidence a form of return receipt (POD Form 3811) on the front of which Maitland’s employer was shown as the name and address of the sender, and a postmark of August 9, 1961, and the back of which contained 2 boxes for instructions for delivery, neither of which had been filled out, and two blank spaces for signature of the recipient, one of which was designated “Signature or Name of Addressee (Must always be filled out) ” and which contained a signature which defendant interpreted as being that of “J. H. Jaky”; the other blank bore the designation “Signature of Addressee’s Agent, H Any,” and was left blank. In the “Date Delivered” blank, also on the back of the receipt, was written “8-9-61.” Quantities of both POD Form 3800 and form POD Form 3811 are furnished to mailers by the Post Office, and the senders fill out Form 3800 and the front of Form 3811, and place the number on the front of Form 3811 which has been placed on Form 3800 before those forms are furnished to mailers. Here the only evidence of any connection between the two forms in evidence is the number 951047 and typewritten indications appearing on Form 3800 and the front of Form 3811, to the effect that Violet Corner and Hillman’s were involved in the mailing, obviously made for the purpose of filing in Safety and Claims Service, Inc.’s office.

The second Maitland letter, a copy of which was placed into evidence, was also addressed to plaintiff from Safety and Claims Service, Inc., was dated August 25, 1961, and was allegedly mailed by regular mail.

The content of both letters was such as to advise the recipient that Mrs. Corner was making a claim for alleged injuries sustained as a result of the conduct of some unnamed employee of plaintiff although neither letter indicated that she was making a claim against plaintiff, but rather that she had made a claim against Hillman’s for her injury, which was minimized to soreness of the elbow and shoulders. Both asked for cooperation of plaintiff and the first asked that plaintiff acknowledge receipt.

Maitland, the writer, testified that both letters were dictated and signed by him and offered evidence that both were mailed in the regular course of business, although he had no knowledge of the details of mailing; he also testified that the Form 3811 “came back” to the office of Safety and Claims Service, Inc. but that he did not personally receive it, and that no acknowledgment of receipt, as requested, was ever received from plaintiff. On cross-examination, Tifsky denied ever seeing any of defendant’s exhibits before.

Although two of defendant’s employees were called to testify as to investigative steps taken when they received the Corner complaint, they were positively impeached by their discovery depositions, which caused the court to comment that they recalled nothing that was in their depositions, but when defendant’s attorney took them over they had a vivid memory of anything and everything.

Here for the first time defendant asks that a comparison of the signature of Peter Tifsky on the jurat of plaintiff’s complaint be made with a signature appearing on the back of Form 3811, and suggests in its brief that it is established that the signature on Form 3811 is the signature of “P. Tifsky”; and in the brief attempts to analyze the characters and strokes to point out allegedly common characteristics between the two. No evidence of such similarity was presented, nor can we find in either the abstract or record where such alleged similarities were even suggested to the trial court. We make no claim to being handwriting experts and cannot say that the trial court was in error when he found that he did not know whose name was on Form 3811.

Here the testimony of Maitland was not corroborated, although if entitled to the credence which defendant now urges it demands, it could easily have been, in many ways. Neither was the testimony of Tifsky impeached and the testimony of both could have been readily fabricated. The question of which of them the trial judge deemed most worthy of belief was peculiarly a matter for him to determine. He saw and heard them testify and had an opportunity to observe their conduct and demeanor while testifying. We cannot say that his decision that plaintiff had no knowledge in 1961 is clearly wrong and will not overturn his factual determination; it is not manifestly contrary to the weight of the evidence. Country Mutual Insurance Co. v. Murray, 97 Ill App2d 61, 239 NE2d 498.

The appellant urges that the court erred in its award of attorney fees.

There having been no showing or contention that the insurer’s actions were vexatious, the trial court did err in awarding $1,200 fees for defense of the Corner suit and the prosecution of this matter. The matter is controlled by the contract. The defendant is contractually liable for only those fees incurred by the defendant in defending the Corner suit. The amount of attorney fees is therefore reduced to that figure stated by the plaintiff as and for defense of the Corner suit and agreed to by the defendants. The award for attorney fees is thereby reduced from $1,200 to $265. Country Mutual Insurance Co. v. Murray, supra.

Accordingly, the judgment of the Circuit Court of Cook County is affirmed except as modified as to the amount of attorney fees as set forth herein.

Judgment affirmed as modified.

GOLDENHERSH and MORAN, JJ., concur.

       No. 9 in the letter was identical to No. 10 of the policy except that No. 10 provided “On the occurrence of an accident” instead of “when an accident occurs.” No. 10 in the letter is identical to No. 11 of the policy.

       Hillman’s was a self insurer; Safety and Claims Service, Inc. was an investigative and claims service employed by them.


author: PER CURIAM.

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Ronald Cooke, Defendant-Appellant.
    Gen. No. 68-121.
    Fifth District.
    December 5, 1969.

      Robert F. Godfrey, of East St. Louis, for appellant.
    Robert H. Rice, State’s Attorney of St. Clair County, of Belleville (Joseph B. McDonnell, Assistant State’s Attorney, of counsel), for appellee.
   PER CURIAM.

Defendant, after being tried and found guilty by a jury of the crime of murder, was sentenced to a term of not less than fourteen nor more than twenty years. On appeal from that conviction and sentence, this Court reduced the degree of the offense from murder to voluntary manslaughter, under the authority of Supreme Court Rule 615(b), and remanded the case to the Circuit Court with instructions “to enter a finding of guilty of voluntary manslaughter and to impose a sentence for that crime appropriate to the facts and circumstances of this cause and to whatever other matters in aggravation or mitigation may be made available to the trial court.” See People v. Cooke, 93 Ill App2d 376, 236 NE2d 97.

Subsequently, defendant applied for probation and a hearing was held in aggravation and mitigation. It was stipulated that the evidence heard at the previous murder trial, as well as the testimony taken at the hearing in support of defendant’s motion for probation, would be submitted to the trial judge for consideration in aggravation and mitigation of the offense.

The trial court denied probation and sentenced defendant, on his manslaughter conviction, to a term of not less than fourteen nor more than twenty years, observing as he did so that he had imposed the same penalty following the murder conviction and that it “could constitute a manslaughter sentence,” and that he had imposed such a sentence initially because he had felt “there were a great many mitigating circumstances.” Defendant appeals.

At the hearing on his application for probation, the defendant testified that he had been in the custody of either the Sheriff of St. Clair County or the prison authorities at Menard Penitentiary since July of 1966. At the time he went to Menard he was a high school graduate, but received another high school diploma at Menard in order to take college courses relating to mathematics and to political economy. He also received registration as a medical technologist, which represents a year’s training and laboratory work in the general hospital at the penitentiary. This certificate would entitle him to work in any hospital as a laboratory assistant and that of the 2,000 inmates, only the defendant and one other inmate received the medical technologist registration certificate. Defendant also took a heavy equipment course in the operation of bulldozers and cranes for which he received a certificate. He also produced a letter guaranteeing him employment with the Clark Paint Company of St. Louis, Missouri, if he was granted probation.

Dr. Groves Smith, Consulting Psychiatrist to the Menard Penitentiary Department of Public Safety since 1943, testified that throughout the defendant’s stay at Menard he had made a real effort to better himself. In a mathematics course from S. I. U., he received a B, and in a college extension course in political economy, he received a B. He also took a nurse’s training course and a medical technologist training course.

Dr. Smith described defendant as a very intelligent person, capable of making a satisfactory adjustment to institutional life and that he is one of the very few people who came to the institution under what the witness felt were grave difficulties and did not become embittered. According to Dr. Smith, the defendant realized it was up to him to prove to the world and society that he had the ability to rise above the occasion of the incident that brought him there, and that he is a proper subject for probation. The doctor had a forty-five minute discussion with the defendant before he testified and stated that the results of that interview confirmed his original psychiatric evaluation of the defendant. The doctor also testified that the defendant had made outstanding adjustments in institutional work and his prognosis for the future is excellent.

The record also contains a letter from John J. Twomey, Supervising Sociologist of the Division of Criminology of the Department of Public Safety, addressed to the defendant’s attorney, which reads as follows:

“Rev. Robert Foppe has referred to our office your request for information regarding the above-named.
“Subject was seen for psychiatric evaluation on only one occasion and this was a routine contact resulting from the violent nature of the committing offense. Our Staff Psychiatrist’s report dated October 25, 1966, contains the impression that subject is without need for mental treatment and not mentally retarded. Psychometric testing by our psychological staff discloses Very Superior Intelligence.
“As you no doubt know, his primary assignment during his incarceration has been as a nurse in the prison hospital and from all indications he has performed at a high level of efficiency. Insight into his difficulties has always been very good and from our knowledge of him, there are no contraindications to a satisfactory community adjustment. Throughout his incarceration he has been regarded as an improvable offender for whom the prognosis is favorable.
“We trust this provides an appropriate response to your inquiry.”

There is no question but that under the powers granted to the reviewing court pursuant to Rule 615(b), we have authority to reduce the sentence in a proper case. People v. Sanders, 75 Ill App2d 422, 220 NE2d 487; People v. Novack, 83 Ill App2d 391, 221 NE2d 780. Sentence should be reduced, however, only upon a showing of substantial reasons for so doing and it should not be changed because a reviewing court would have imposed a different penalty or for mere judicial clemency. People v. Stevens, 68 Ill App2d 265, 215 NE2d 147; People v. Johnson, 68 Ill App2d 275, 215 NE2d 144; People v. Harpole, 97 Ill App2d 28, 239 NE2d 471.

In People v. Cooke, supra, we held that the evidence at defendant’s trial disclosed that defendant at the time of the killing was acting under a sudden and intense passion resulting from serious provocation. Thus, the crime of which he was convicted was not premeditated. He had no criminal record and all of the signals point to the probability that he will live a good, productive life when discharged from prison. He holds no malice toward society or toward any individual as a result of his conviction.

The purpose of modern-day penology is the rehabilitation of the offender. That sentence which has the greatest potential of restoring the offender to a useful and productive place in society, while at the same time adequately punishing the offender for his misconduct and safeguarding the public from further offenses, is the one which should be imposed. See People v. Carroll, 76 Ill App2d 9, 221 NE2d 528; People v. Brown, 60 Ill App2d 447, 208 NE2d 629; People v. Harpole, supra.

We feel that the circumstances portrayed by this record warrant the exercise by this court of the power to reduce the punishment imposed by the trial court. Accordingly, the trial court’s sentence of fourteen to twenty years in the penitentiary is reduced to three to six years in the penitentiary.

Judgment modified, and affirmed as modified.


author: ALLOY, J.

text:
    Donald L. Stroh, et al., Plaintiffs-Appellees, v. Blackhawk Holding Corporation, an Illinois Corporation, Ronald C. Vorhies, et al., and Mondo Corporation, an Illinois Corporation, Defendants-Appellants.
    Gen. No. 69-35.
    Third District.
    December 5, 1969.

      Mitchell and Russell, of Chicago (Thomas J. Russell, William H. Kelly, Jr., Gerald W. Shea, of Chicago, Mills & Roncone, of Lincoln, and Richard C. Ripple, of Carthage, of counsel), for appellants.
    J. Stephen Crawford, Bishop and Crawford, of Chicago, and Froehling & Taylor, of Canton, for appellees.
   ALLOY, J.

This is an appeal from a decree of the Circuit Court of Hancock County finding that the issue of 500,000 “Class B Shares” of defendant Blackhawk Holding Corporation, an Illinois corporation, do not constitute shares of stock and that the purported issuance thereof was an invalid and an ultra vires act of the defendant corporation and null and void ab initio. The basis for the finding of invalidity was a provision in the charter of the corporation with respect to the Class B stock which provided that such shares were not entitled to any dividends “upon voluntary or involuntary liquidation or otherwise.” Defendant holders of the Class B stock have appealed to this Court.

The record discloses that Blackhawk Holding Corporation was organized under the Illinois Business Corporation Act in November of 1963. The preorganization subscription agreements for stock provided that certain promoters (21 in number) would purchase 87,868 Class A shares of stock at $3.40 per share (a total of $298,751.20) and 500,000 shares of Class B stock were all to be purchased by certain of said promoters for per share (being a total for said stock of $1,250). The promoters were designated specifically in the Prospectus of the corporation.

The Blackhawk Corporation was authorized to invest in real estate and to finance business ventures by the terms of its charter. The Articles of Incorporation provided for authorization to issue two classes of stock, i. e., Class A stock authorization of three million shares having a par value of $1 per share and Class B authorization for 500,000 shares with no par value. The Articles of Incorporation further provided specifically “none of the shares of Class B stock shall be entitled to dividends either upon voluntary or involuntary liquidation or otherwise. No holder of any of the Glass A or Class B shares shall, as such holder, have any right to purchase or subscribe for any stock of any class which the corporation may hereafter issue or sell.”

The corporation applied to the Securities Division of the Office of the Secretary of State of Illinois to register the Class A shares for sale to the general public. The plan of the corporation was to sell 500,000 Class A shares to the general public for $4 per share. A prospectus was mailed out which described the Class A and Class B stock and quoted verbatim the restrictions placed on the Class B stock. The prospectus contained the following statement:

“ORGANIZATION AND DEVELOPMENT
“Subscriptions for a total of $800,001.20 were sold to twenty-one persons, representing 87,868 Class A shares, the class now being offered, at the price of $3.40 per share ($298,751.20) and 500,000 Class B shares, at the price of one-fourth of a cent per share ($1,250.00); thus, said subscribers by virtue of a $300,001.20 investment, have control of the corporation having an initial capitalization of $2,000,000.00 after this offering.”

In August 1964 at a shareholders meeting there was approval of a 2 for 1 split of the Class A stock and this increased Class A outstanding stock from 587,868 shares to 1,178,736 shares. The Class B stock was not changed. The corporation sold additional Class A shares to the public in 1965 for $4 a share.

The original board of directors which was elected in November of 1963 was reelected in April of 1964 and April of 1965 where the Class B shares represented 35.06% of the stock voted. There was no contest at either of such elections. The seven directors were elected without opposition at the 1966 meeting where the Class B shares represented 49.35% of the votes cast. There was no 1967 meeting and the 1968 meeting was the contested meeting that was held shortly after the present lawsuit was begun. Prior to the June 10, 1968 meeting a group of Class A shareholders (plaintiffs in the instant case) formed a shareholders’ protective association and solicited proxies. The plaintiffs also, attempted by court action to enjoin the voting of the Class B stock at the June 10, 1968 meeting, but the trial court refused to grant such injunction prior to the meeting. The protective association voted 508,269 Class A shares at the 1968 meeting and the management voted 380,916 Class A shares. The management voted 427,831 Class B shares and the shareholders association voted 51,549 Class B shares. The Class B stock represented 35.47% of the stock voted at such June 10, 1968 meeting. As of June 10, 1968, there were 500,000 Class B shares and 1,237,681 Class A shares outstanding and the Class B shares represented 28.78% of the total voting shares of the company.

Edwin C. Mills, Jr., a former director and attorney for the Blackhawk Company since it was formed, became president of Blackhawk in March of 1967 and Mr. Boncone, a law partner of Mr. Mills became secretary of Blackhawk. Mr. Mills, Mr. Boncone, Mr. Boncone’s brother, and Mr. Shea formed a new Blinois corporation known as Mondo Corp., and in 1967 Mondo began buying Class B and Class A stock of the former president of Blackhawk, Mr. Vorhies. Mondo contracted to purchase 52,138 Class A shares and 221,645 Class B shares of Blackhawk from Vorhies for a total consideration of $92,500. The book value of the Class A stock at the time of the purchase was 89^ a share, making such 52,138 shares worth a book price of $46,402.82. Mondo also purchased Class B stock from other owners, paying the owners about 20 times the original purchase price of the Class B stock.

The Class B stock was first questioned in a letter from one of the plaintiffs to Mr. Mills, then president of Blackhawk in November 1967. On May 28, 1968, plaintiffs filed their complaint in which they sought to enjoin the voting of Class B stock at the June 10, 1968 meeting of Blackhawk Corporation. In the complaint, the allegations recited the history of the organization of the corporation and contended that the Class B shares do not in fact represent any interest in the assets, earnings, or surplus of the defendant corporation and that they were not entitled to receive any dividends or a distribution of any of the assets of the corporation. It is recited in the complaint that for many years until 1961, the Illinois Business Corporation Act defined a share of stock of a business corporation in section 2(f) as “shares are the units into which the shareholders rights to participate in the control of the corporation, in its surplus or profits, or in a distribution of its assets, are divided.” It is also alleged that since August 19, 1961, section 2.6 of the current statute provides a definition for shares as meaning “the unit into which proprietary interest of a corporation are divided.” It is recited also that since 1947, the Illinois Business Corporation Act has permitted the right to vote to be separated from the ownership of a share of stock through a voting trust agreement but limited such trust agreement to ten year periods and that the Class B shares could not qualify under such provision. It is contended that the Class B shares amount to a permanent proxy in the hands of the holders. Plaintiffs prayed for a decree cancelling all such stock certificates and restraining defendants from voting them at any meeting of the shareholders.

In Count III of the complaint reference was made to an escrow arrangement of the proceeds of the sale of Class A stock to be completed before December 1, 1964, and a contended violation of such escrow arrangements by use of a $300,000 loan of corporate funds and certain other activities. The Count prayed that the court appoint a committee of Class A stockholders to take control of the corporation. Following the motion for summary judgment by plaintiffs, the trial court in a written opinion said:

“Now, as to Count 3. I am not prepared on the pleadings before me to grant any present motion in respect to this count. Certainly, I am not prepared on this date of the record to grant the relief requested by the Plaintiff.”

Thereafter, a decree was entered which did not dispose of issues raised in Count III but found the Class B shares invalid and found that plaintiffs were not barred by estoppel or laches to raise such issues. The court certified that there was no just reason for delaying enforcement or appeal from the decree. As indicated heretofore, the only issue before us is the action of the trial court as specified in such decree.

A motion to strike certain portions of plaintiffs’ brief and abstract and other documents has been filed in this Court which was taken with the case for consideration. In view of our determination of this cause, it is not necessary that we act on such motion to strike. Following the entry of the decree the defendants filed a motion for leave to amend their answer to assert an affirmative defense based upon the Uniform Commercial Code, 1967 Ill Rev Stats, chapter 26, § 8-202 (2a), but such motion was denied. This section of the Commercial Code relates to the purchase of stock which has some defect, by a person who has no notice of such defect.

In determining the validity of the issuance of the Class B shares we must first look to the Illinois Business Corporation Act and the Constitution of the State of Illinois. In both the Illinois Business Corporation Act (1967 Ill Rev Stats, c 32, § 157.14) and the Constitution of the State of Illinois, Article XI, § 3, it is specifically provided that articles of incorporation may not limit or deny the voting power of the shares of any class in any Illinois corporation. In Chicago Title & Trust Co. v. Central Republic Trust Co., 299 Ill App 483, 492, 20 NE2d 351, the court observed:

“A corporation is a legal entity. It owes its existence to the fiat of law. Its being and its powers are from the sovereign state as its will is made known through legislative enactment. In the absence of legislative authority neither the corporation itself nor capital stock can exist and any attempt to create these is void.”

It is argued strenuously by the plaintiff that corporate stock must represent a share of the assets of a company and that the shareholder must have the right in addition to voting, to participate in dividends, or share in the distributions on liquidation, etc. While it is true that these rights are shared by most shareholders in a corporation, we find nowhere under Illinois statutes or elsewhere any absolute requirement other than that a shareholder be given the right to vote. Under the Illinois statutes and the Illinois Constitution, the rights of shareholders can be limited in every way except with respect to voting. We have found no satisfactory precedent which construes the meaning of section 157.14 of the Business Corporation Act with respect to shares of a corporation. Plaintiffs point out that in section 157.2-6, the Business Corporation Act provides “ ‘Shares’ means the units into which the proprietary interest in the corporation are divided.” It is also pointed out that for many years prior to 1963, shares were defined as “shares are the units into which the shareholder’s right to participate in the control of the corporation, in its surplus or profits or in the distribution of its assets are divided.” The definition of shares referred to does not specifically establish a requirement that all shares must have all or substantially all of the particular rights. The only limiting language in the Illinois statutes which relates to shares of corporate stock provides specifically that only the right of the shareholder to vote must be guaranteed.

Nor do we believe the discussion in Bowman v. Armour & Co., 17 Ill2d 43, 51, 160 NE2d 753, where the court was considering the situation in which the corporation attempted to force the owners of cumulative preferred stock to take debenture bonds in exchange for their stock, is authority for saying that all shares of stock issued by an Illinois corporation must provide that holders of shares participate in the profits or distributions of the company. The court in Bowman v. Armour & Co., supra, at 47, specifically pointed out that the charter of an Illinois corporation is operative as between the corporation and the State and creates certain rights and duties as between the corporation and the shareholders as well as between the shareholders themselves. Similarly, Western Foundry Co. v. Wicker, 403 Ill 260, at 267, 85 NE2d 722, reiterated the same principle.

The articles of incorporation of Blackhawk Company in the cause before us recited that Class B shares were not to receive dividends “either upon voluntary or involuntary liquidation or otherwise.” The Class B shares were issued in conformity with this provision. While there may be some ambiguity in the recital itself by what is meant by the words “or otherwise,” for our purposes we have considered that this phrase refers back to dividends and in effect means that Class B shareholders are to receive no dividends of any kind. Defendants, in this Court, have contended that they are in fact entitled to current dividends and that the words “or otherwise” refer to liquidation, either voluntary or involuntary. Defendants contend, however, that irrespective of whether Class B shareholders are to receive dividends, it still does not affect the validity of the Class B stock. No authority has been presented to us nor have we been able to discover any authority which requires that all shareholders be entitled to dividends. The case of Tennant v. Epstein, 356 Ill 26, 189 NE 864, in effect, stands for the principle that the right of shareholders to share in dividends of any kind must be spelled out in the articles of incorporation. A corollary to this conclusion would be that nothing in the Illinois Corporation Act prevents a limitation that certain shareholders are to receive no dividends. Section 157.41(h) of the Act provides:

“No dividend shall be declared or paid contrary to any restrictions contained in the articles of incorporation.”

We cannot agree with the contention of plaintiffs that the provisions of section 157.41(h) should be read with the implied understanding that it does not authorize the elimination of dividends entirely on any classes of stock.

It was the apparent purpose of Class B stock to give the owners of such stock voting control. The question is whether this invalidates the Class B stock. Plaintiffs have relied heavily upon Luthy v. Ream, 270 Ill 170, 110 NE 273 (a 1915 case), where the owners of 2,001 shares out of 4,000 voluntarily entered into a voting trust agreement. The court in that case held that since the voting power of the stock was separated from ownership of such stock, the real owners of the corporation did not have control of its management and, thus, such agreement was invalid. Since the case of Luthy v. Beam, supra, the Illinois Business Corporation Act was amended in 1947 to permit voting trusts to be established for periods of not to exceed 10 years. In the Luthy case, the shareholders, who had the responsibility to elect directors for the purpose of running the corporation agreed to dispense with this right to vote and vest it in some other party. In the case before us, this is not the situation. The shareholders are entitled to vote their shares and have not voluntarily entered into any agreement for the voting of their shares. If officers of the Blackhawk Company are guilty of acts contrary to corporate interest or violative of stockholders’ interest, then Class A shareholders have remedies either in this proceeding or otherwise to compel them to act prudently or to reimburse the corporation for damages or for other appropriate relief. This would not, however, be the basis for determining the Class B stock to be invalid in the first instance, particularly since the other shareholders knew of the nature of the Class B stock prior to acquisition of plaintiffs’ shares.

Plaintiffs also contend that the Class B stock amounts to “buying” votes and that such action is illegal in Illinois under Brady v. Bean, 221 Ill App 279. In that case the agreement between two shareholders by which one shareholder agreed to pay a certain sum to the other shareholders if he would vote his stock a certain way was found to be invalid. This is not the situation in the present case. No agreement was established whereby anyone was to be paid for voting in a particular way. A premium may have been paid for the Class B stock. Many times, in case a person desires to acquire a controlling interest in a corporation, such buyer will pay a premium for the purpose of acquiring enough stock to gain a controlling interest in the corporation. We find no case or precedent which has concluded that such purchase would be illegal in this State.

In addition to the foregoing considerations, we have been most concerned with the question as to whether the State of Illinois, through approval of various articles of incorporation for Illinois corporations, as shown by the record, and approval of prospectuses of various corporate stock sales has, in fact, established a policy favoring stock of the type of the Class B issue in the instant case. The articles of incorporation of the Black-hawk Company were filed with the Secretary of the State of Illinois. Other articles of incorporation filed by Illinois corporations have contained similar provisions. The Securities Division of the office of the Secretary of State prohibits the sale of stock which would tend to defraud purchasers. The office has a rule that stocks, such as the Class B stock in the instant case, must be less than % of the total number of shares outstanding after the public offering. Other regulations require that the promoters of the corporation have at least a 15% equity interest of their own funds in the corporation. The policy, therefore, of the State of Illinois with respect to stocks, such as the Class B stock in the instant case, has been to permit it to be issued but to restrict the amount of such stock in order to protect investors.

It is argued that corporations such as Black-hawk which are formed with stocks similar to the Class B stock in the case before us are wrong and against public policy. The court in Schumann-Heink v. Folsom, 328 Ill 321, at page 330, 159 NE 250, stated:

“In considering whether any contract is against public policy it should be remembered that it is to the interests of the public that persons should not be unnecessarily restricted in their freedom to make their own contracts. Agreements are not held to be void, as being contrary to public policy, unless they be clearly contrary to what the constitution, the statutes or the decisions of the courts have declared to be the public policy or unless they be manifestly injurious to the public welfare.”

Another applicable principle is recited in People v. Fidelity & Casualty Co., 153 Ill 25, at 39, 38 NE 752, where the court stated:

“Where the execution of statutes is confided to a particular department of the government the court will regard, and in doubtful cases adopt, the construction acted on by such department.”

Similarly, the declared public policy of the State as expressed in the Act should not be lightly set aside as stated in Wall v. Pfanschmidt, 265 Ill 180, at page 192, 106 NE 785, where the court said:

“ ‘When the sovereign power of' the State has by written constitution declared the public policy of the State on a particular subject, the legislative and judicial departments of the government must accept such declaration as final. When the legislature has declared, by law, the public policy of the State, the judicial department must remain silent, and if a modification or change in such policy is desired the lawmaking department must be applied to and not the judiciary, whose function it is to declare the law but not to make it.’ ”

If issuance of shares of Class B type stock should be prohibited, then such prohibition should come from the legislature, and the legislature could make provision by statute for regulation or protection of corporations which already have had such Class B type stock issued and outstanding, and make appropriate limitations or regulations with respect to such issue in the future. It is not the province of the courts to act to destroy the rights of shareholders whose shares have been issued pursuant to authorization of the State unless it has a clear duty and obligation to do so. We, therefore, must conclude that the trial court was in error in finding that the issuance of the Class B stock was ultra vires or invalid.

In view of our determination of the validity of the Class B shares of stock, it is not necessary that we consider the defenses of laches or estoppel which were raised by defendants in this cause (State Bank of Blue Island v. Benzing, 383 Ill 40, 54, 48 NE2d 333). Similarly, we do not believe it is necessary for us to determine whether or not the court was correct in refusing to allow defendants to interpose a new defense based upon the Illinois Uniform Commercial Code after the decree had been entered by the court. In connection with the latter contention, the section referred to was based on the assumption that the shares were for some reason found to be invalid.

Nothing which we have said in this opinion should be taken as affecting in any manner the issues raised under Count III of the complaint but are solely restricted to matters determined specifically by the terms of the decree. To the extent that such issues are raised, it is our conclusion that the Class B shares are valid and, also, that plaintiffs were not estopped or guilty of laches in such manner as to prevent them from raising the issue of such validity.

This cause will, therefore, be reversed and remanded to the Circuit Court of Hancock County with directions to such court to vacate the final decree entered in this cause finding the issuance of the Class B shares of Blackhawk Holding Corporation to be invalid and to proceed with the determination of this cause in accordance with the views expressed in this opinion.

Reversed and remanded with directions.

STOUDER, P. J. and RYAN, J., concur.