author: MR. JUSTICE BURMAN

text:
    George McElroy, et al., Plaintiffs-Appellees, v. William E. Cahill, Reginald DuBois and Quentin J. Goodwin, Members of and Constituting the Civil Service Commission of the City of Chicago, and James V. Fitzpatrick, Commissioner, Department of Streets and Sanitation of the City of Chicago, Defendants-Appellants. Patrick Mowen and Thaddeus Koziol, Plaintiffs-Appellees, v. William E. Cahill, Reginald DuBois and Quentin J. Goodwin, Members of and Constituting the Civil Service Commission of the City of Chicago, and James V. Fitzpatrick, Commissioner, Department of Streets and Sanitation of the City of Chicago, Defendants-Appellants.
    Gen. Nos. 52,321, 52,481.
    First District, First Division.
    July 28, 1969.
    Rehearing denied September 2, 1969.

      Raymond F. Simon, Corporation Counsel of City of Chicago (Marvin E. Aspen and Ronald S. Cope, Assistant Corporation Counsel, of counsel), for appellants.
    Coghlan, McGloon, Joyce and Murphy, of Chicago (John P. Coghlan, Sr. and William J. Nellis, of counsel), for appellees.
   MR. JUSTICE BURMAN

delivered the opinion of the court.

This case is a consolidation of two actions for declaratory judgment brought by George McElroy, Marco Mancuso, Frank Prete, Patrick Pánico and James Bowler in one suit and Patrick Mowen and Thaddeus Koziol in the other, against the Civil Service Commission and the Commissioner of the Department of Streets and Sanitation of the City of Chicago. The plaintiffs requested an order declaring the examination of April 2, 1966, for Ward Superintendent, invalid and prohibiting the Civil Service Commission from making any certification or appointments pending the outcome of this cause. The court granted plaintiffs the relief they requested and the defendants appeal.

On May 26, 1967, after a bench trial, a decree was entered finding the examination given by the Civil Service Commission of the City of Chicago for Ward Superintendent, on April 2, 1966, contravened section 10-1-7 of the Illinois Municipal Code (Ill Rev Stats 1967, c 24, par 10-1-7) in the following respects:

A. Said examination was not competitive as required by the above-cited statute in that a training program and conference for ward superintendents and acting ward superintendents, was conducted by the Civil Service Commission in October and December of 1965 four to six months prior to said examination. Said program thereby gave to those acting ward superintendents and other personnel of the Department of Streets and Sanitation who attended and participated in said training program and conference, and who were candidates for said examination an unfair advantage over those other candidates taking the examination without benefit of said special training.
B. Said examination was not competitive as required by the above-cited statute in that a certain Ward Superintendent’s Conference Manual, published by the Civil Service Commission, was distributed to selected personnel of the Department of Streets and Sanitation and access thereto was denied the general public, including the other candidates for said examination who were unable to secure copies thereof. Particularly pertinent is the fact that more than fifty percent of the questions asked in said examination were derived from the text of said Manual, copies of which were distributed to each of the participants in the training program, but not distributed to other candidates for the examination.
C. Said examination contained an inordinate number of questions which were not practical in character and did not fairly test the relative abilities of the candidates to fulfill the duties and responsibilities of ward superintendent, and said questions did not bear a reasonable relationship to the duties and responsibilities of a ward superintendent.

The issues presented by the defendants for review are (1) whether the fact that temporary appointees and certain supervisory personnel participated in an in-service training program for Ward Superintendent and were issued training manuals, rendered void a civil service examination for that position; (2) whether the questions asked on the examination were arbitrary, capricious or contravened the rules of the Civil Service Commission and (3) whether the plaintiffs have standing to bring this action.

Patrick C. Mowen was the only plaintiff to testify. He stated that he had been employed by the Department of Streets and Sanitation in a clerical capacity since 1954. He became an acting superintendent of Sanitation for the 10th Ward and had been so employed since January 1, 1966. He said that on or before February 16, 1966, he learned through the newspapers that a Civil Service examination for Ward Superintendent of Sanitation would be held on April 2,1966. The newspaper article quoted the president of the Civil Service Commission as stating that the scheduling of the examination had been held up pending distribution of a new manual covering duties of a Ward Superintendent. Patrick Mowen testified that he went to the Civil Service Commission office to obtain a manual, but even after identifying himself as a Ward Superintendent he was informed that no manuals were available. He then went to the Municipal Reference Library, the Chicago Law Institute, the main branch of the Chicago Public Library and to the Bureau of Sanitation and was told in each place that a copy of the manual was not available.

Patrick Mowen further testified that seminars were held for the examination prior to his appointment as an acting superintendent and that for this reason he was unable to attend. He stated that he found 103 of the 200 questions had been given in the test from the manual. On cross-examination he said that he attended a lecture given by Supervising Ward Superintendent Frank Josemborski in March of 1966. When asked whether the Supervisor had a manual the witness stated he did not recall. Patrick Mowen said that he did not ask either Theodore Eppig, the Deputy Commissioner, or James Riley, the General Superintendent of Sanitation, for a manual.

Donald Mowen, Patrick’s brother, testified that he was a timekeeper in the Streets and Sanitation Department of the City of Chicago. He stated that he also took the examination and that prior to his taking it he inquired at the Municipal Library in City Hall, the Civil Service Commission and the Chicago Public Library for a manual, but was told in each place that they did not have one.

Robert D. Quinlivan, a witness for plaintiffs, testified that for the past twenty years he had been employed in the field of sanitation and that for the past ten years he had been a Civil Service Ward Superintendent. He stated that in October of 1965 a study group was formed which included some fifty Ward Superintendents, five Division Superintendents, and five Field Supervisors. The group met for a series of in-service training conferences or seminars and during the meetings discussed the contents of the Ward Superintendent’s Manual. Quinlivan testified that at one of the meetings Ira Podnos, Training Officer of the Civil Service Commission, held the manual over his head and said, “The basis of the next Ward Superintendent’s examination will be drawn from this book.” Mr. Quinlivan stated that substantially the same statement was made at least four or five other times during the course of the training program. The witness further testified that those who attended the in-service training conferences were given a copy of the manual. He stated that he received numerous requests from candidates for the position of Ward Superintendent who had not been asked to attend the in-service training conferences for the use of his manual and though he tried to procure additional copies he was unable to do so. Quinlivan voluntarily, without charge or profit, conducted as many as a dozen preceptor classes for candidates during March 1966, wherein he used the manual. Attendance at the classes would range from eight to twenty-five persons. Permission to conduct these classes from James F. Riley, General Superintendent of the Streets and Sanitation Department, was originally granted and eventually withdrawn.

James S. Osborne, Secretary and Chief Examiner of the Civil Service Commission, was called as a witness for plaintiffs. He testified that 541 persons took the examination and that a passing grade was 70. The mental part of the examination consisted of 200 questions. There was also an experience and education section where points were given for an individual’s experience in the sanitation field and his educational level. The mental part of the examination counted for 60% of the total grade and experience and education for 40%. Osborne stated that the manual was published in February 1965, and that 300 copies were printed. He did not know what was done with the manuals. He also stated that he had nothing to do with the selection of materials for the examination or in the preparation of the manual. The in-service training conferences and the preparation of the manuals, according to the witness, were handled by the department that conducts training for employees of the various branches of the Civil Service and is under the supervision of Mr. Willis.

Theodore C. Eppig, a Deputy Commissioner of the Bureau of Sanitation in the Department of Streets and Sanitation since 1958, testified on behalf of the defendants that a ward superintendent is responsible for collecting refuse from alleys and in assigning equipment for sundry work such as controlling snow and ice and scattering rubbish. He is also in charge of a large number of employees. Eppig said that the supervisory in-service training program for Ward Superintendents was started in 1964 with the preparation of a manual and the preparation of the in-service training program. He stated that at that time he reviewed and made suggestions in the preparation of the manual as well as reviewing and approving the schedule of classes. The Deputy Commissioner said that the in-service training program was required of all ward superintendents whether civil service or temporary or acting superintendents. He said the program was devised to upgrade all city superintendents and to broaden their knowledge of the city and other departments. Eppig said that there were no discussions relating to the use of this manual for a future examination. When asked about the content of the Ward Superintendent’s examination he stated that, in his opinion, the questions were practical and related to the duties and responsibilities of a Ward Superintendent and that the questions fairly tested the relative capacities and knowledge of the applicants taking the examination. He further testified that bulletins were issued regularly relating to the various duties and responsibilities of Ward Superintendents. He produced several of the bulletins and said that they contained answers to some of the questions given in the examination.

Dr. Charles A. Pounian, Personnel Director for the Civil Service Commission since 1960 and a witness for the City, testified that he was responsible for the examination program of the Civil Service. He said that meetings were held beginning in March of 1963 with persons from the training division staff of the Civil Service, his office, and the Department of Streets and Sanitation, to discuss the development of a general training program. Dr. Pounian said that the in-service training programs involved all of the departments in the City and that various programs had been given long before the Ward Superintendent’s in-service training conference was initiated. These in-service conferences, according to Pounian, are an integral part of the general training program.

Dr. Pounian further testified that he recommended that an examination for the position of Ward Superintendent be given. In making this determination he took into consideration the number of temporary appointees in the position of Ward Superintendent and several other factors. Pounian said that he took part in the preparation of the questions and that he examined the final list. The questions were divided into subsections covering supervisory and administrative material, public relations material, basic law, technical material relating specifically to the duties of Ward Superintendent, urban problems, computational skills, the municipal code and mechanical comprehension. On cross-examination Dr. Pounian was asked the following questions and he responded as follows:

Q. Now, was the Ward Superintendent’s Manual used in the questions that were asked?
A. Yes.
Q. How many questions in your judgment were taken from the Ward Superintendent’s Manual?
A. . . . [A] pproximately a hundred and eighteen items (out of 200) could be located in the . . . Manual, but in other sources as well.

Eighty-four questions relating to technical information, he said, were from the manual. Pounian stated that about thirty or forty manuals were placed in the Municipal Library on the 10th floor of the City Hall and in the Public Library to insure that people would have access to it. Fifty Manuals were given to the aldermen and to persons in the Department of Streets and Sanitation. He said that his office referred any person who inquired about the manual to the Municipal Reference Library where he was told the manual was available. Of the 200 questions given in the examination twenty had to do with legal definitions. On redirect examination Dr. Pounian testified that the Manual was not printed for the purpose of distribution to candidates taking the examination on April 2, 1966, but rather was developed in conjunction with a training program for the Bureau of Sanitation and was to be used in the Ward Superintendent’s Training Program.

Charles Willis, Supervisor of Training for the Civil Service Commission and testifying for the defense, stated that he supervised and directed staff effort in the development and conduct of training programs for city agencies. He said that he had been connected with about 160 in-service training programs since assuming his present position in 1954. Willis said he was the overall director and supervisor for the development of the Ward Superintendent’s in-service training program and that in this capacity he consulted with the Bureau of Sanitation and other personnel. The Supervisor said that the format of the training program in question was a lecture discussion conference and that the program consisted of seven one-half day discussion periods during which twenty or so persons selected by the Bureau of Sanitation lectured. Willis said that the training program was in no way connected with or intended to be connected with the Civil Service examination given April 2, 1966. At the time the program was given in October of 1965, Willis said his office did not know that there was going to be a Ward Superintendent’s examination. The manual was prepared under his general supervision and direction. He stated that he collaborated with the heads of the Bureau of Sanitation in the preparation of the manual. He also said that he was responsible for the distribution of the manuals. Copies were given to the Conference leaders, to the Mayor, to the fifty aldermen, to the Conference participants, to the Municipal Reference Library, to the Chicago Public Library and to other officials. An exhibit was received in evidence showing where and to whom the manuals were distributed and the number distributed. Willis further testified that a bulletin was issued in April of 1965 announcing the form and content of the conference program and that the bulletin was sent to all City department heads and to all departmental training coordinators. This was done, according to Willis, as part of an informational program to acquaint City agencies with the training services available. Supervisor Willis stated that he never saw the questions contained in the examination and had nothing to do with the preparation of the examination. He denied that he stated at any time during the conferences that the manual would be a source for materials to be used in constructing the Ward Superintendent’s examination or that the materials discussed in the conference would be used in the examination.

George Marro, a defense witness, testified that he had been an acting Ward Superintendent for fifteen months and that he had not participated in the October 1965 conferences. He said that he was given a copy of the manual on March 3, 1966, in the First Ward Yard of the Bureau of Sanitation and that at the same time a copy was also given to plaintiff Patrick Mowen. On cross-examination he said that he was number eleven on the examination list.

Thomas Devine, in rebuttal for plaintiffs, testified that he was a temporary Ward Superintendent and placed 126 on the examination list. He said that he was present on March 3, 1966, and that Patrick Mowen was not there.

The principal basis of plaintiffs’ complaint is that temporary Ward Superintendent appointees and certain supervisory personnel enjoyed an unfair advantage over plaintiffs and others who took the examination making the test a closed examination, noncompetitive and, therefore, void. This contention is grounded on the fact that acting Superintendents, while taking part in an in-service training program, were given a copy of a manual containing the answers to over one-half of the questions in the examination. This manual, the plaintiffs contend, was not available to plaintiffs and others.

The October-December 1965 training program and the high percentage of questions drawn from the training manual might not have caused the Civil Service examination to be noncompetitive if these two factors were not coupled with a third factor, the scarcity of the Ward Superintendent’s manual. The trial judge found that the manual was not widely circulated and in fact was not available to the general public including those candidates for the examination who were not invited to participate in the in-service training program. This finding came after Patrick Mowen, his brother, and Robert Quinlivan testified that they could not obtain copies of the manual after the in-service training conferences were held. Dr. Pounian and others, on the other hand, testified that thirty or forty manuals had been placed in the Municipal Library and in the Chicago Public Library. Clearly the availability of the manual was a disputed question of fact which was resolved in favor of the plaintiffs.

The crux of the trial judge’s judgment is that the examination was not competitive as required by section 10-1-7 of the Illinois Municipal Code (Ill Rev Stats 1967, c 24, par 10-1-7) because the manual published by the Civil Service Commission was distributed to select personnel at conference hearings and was denied to other candidates taking the examination. The trial court found that this resulted in an unfair advantage to those having the benefit of the manuals and who also attended conferences where the manual’s contents were discussed.

We cannot say that this finding of the trial judge was manifestly against the weight of the evidence, especially when more than one-half of the questions asked in the examination were derived from the text of the manual. It is patently clear that the manual, far from being insignificant as the defendants imply, was indeed of the utmost value to any candidate who had the benefit of possessing it. We affirm, therefore, the trial court’s determination and hold that the examination in question was rendered noncompetitive and void because the Ward Superintendent’s manual was not equally accessible to all candidates for the examination.

Since we have concluded that the April 1966 Civil Service examination was rendered void because the Ward Superintendent’s manual from which over fifty percent of the questions were drawn was not available to all of the candidates for the position of Ward Superintendent, we need not decide whether particular questions asked on the examination were arbitrary, capricious or contravened the rules of the Civil Service Commission as alleged by the plaintiffs.

Finally, plaintiffs argue that the court erred in finding that the Civil Service Commission did not contravene the Sanitarian Registration Act (Ill Rev Stats 1967, c 111½, par 551 et seq.) and that the Act does not apply to the duties and responsibilities of Ward Superintendents and those working under their supervision. It is urged that the Civil Service Commission should be enjoined from placing on the eligible list persons who are not “sanitarians.” We have examined the Sanitarian Registration Act and are satisfied that the Act is not meant to be applied to Ward Superintendents and those working under them.

We further find no merit to the defendants’ contention that plaintiffs have no standing to bring this action.

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

Affirmed.

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

       The pertinent part of Ill Rev Stats 1967, c 24, par 10-1-7, provides:
      All applicants for offices or places in the classified service . . . shall be subject to examination, which shall be public, competitive, and open to all citizens of the United States, with specified limitations as to residence, age, health, habits and moral character.


source: Caselaw Access Project

license: Public Domain

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Edward Boyce, William M. Spencer, Defendants-Appellants.
    Gen. Nos. 52,853, 52,854.
    First District, First Division.
    July 28, 1969.

      Gerald W. Getty, Public Defender of Cook County, of Chicago (Harold A. Cowen, Norman W. Fishman, and James J. Doherty, Assistant Public Defenders, of counsel) , for appellants.
    Edward V. Hanrahan, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane, John R. McClory, Assistant State’s Attorneys, of counsel), for appellee.
   MR. JUSTICE BURMAN

delivered the opinion of the court.

Edward Boyce and William M. Spencer, were tried together before a jury on an indictment charging them with attempt murder, attempt robbery and aggravated battery. They were found not guilty of attempt murder, but found guilty on the other two charges. Defendant Boyce was sentenced on each charge to a term of not less than two nor more than five years in the State Penitentiary, the sentences to run concurrently. William Spencer was sentenced on each charge to a term of not less than four nor more than seven years in the State Penitentiary, the sentences to run concurrently.

The defendants filed separate appeals in this court and on motion of their counsel we consolidated the cases. The defendants contend that they were not proven guilty beyond a reasonable doubt and that they were deprived of a fair trial because of misconduct on the part of the prosecutor. The defendant Edward Boyce also contends that his sentence was excessive.

The record reveals that two Marshall High School students, Melvin Gaines and Robert McCullough, went to a school supply store near their school at 3260 West 5th Avenue during noon lunch period on October 11, 1966. McCullough handed his transistor radio to Gaines and entered the store. Gaines remained outside. Gaines testified that about 1:20 p. m. the two defendants jumped out of the side door of the store and that defendant Boyce grabbed the radio saying “we want it.” Gaines said “I pulled it from him and we tussled with the radio.” According to Gaines, defendant Spencer was standing about four feet away at this time. Gaines said that they tussled over the radio for about four minutes. He testified that then Spencer said “we are going to get the radio anyway” and that Spencer took a gun out of his pocket and shot him in the upper right part of his leg. Robert McCullough then came out of the store and took the radio from Boyce. Spencer shot McCullough in his right thigh. Gaines and McCullough then ran into the store. When they got inside the store Spencer and Boyce came up to the doorway and according to Gaines Spencer started shooting. Five shots were fired and Gaines was struck twice in the lower left part of his ankle.

Robert McCullough testified that when he looked out of the store window he saw Boyce struggling with Gaines over the radio. He came out of the store and took the radio away from both of them. Spencer then shot him above his right knee. He and Gaines ran into the store and Spencer shot him twice again. At this point Spencer and Boyce ran away. McCullough stated that he was in the hospital for five months.

Three witnesses testified for the defense. Patricia Ann Belin, a Marshall High School student testified that she had met Boyce and Spencer for the first time at her party about four months before the occurrence. Boyce came with Oleaster Connor, her girl friend. The next time she saw Boyce was at 12:45 p. m. on the day in question when she was in the Vienna Restaurant, about 30 feet from the supply store. She said she was with Oleaster, Dianne Shumate and a boy named Alvin Harris. She said Boyce left with Oleaster to see their baby. She stated that after Boyce left the restaurant she saw him walking in the opposite direction from the supply store. She heard shots and when she got to the supply store she saw one boy lying in the store and the other in the doorway.

Oleaster Connor, a Farragut High School student, testified that at 12:45 p. m. on the day in question she was in the restaurant with the others. She said Boyce told her that their baby was not well and at 1:00 p. m. she walked with him to his home which was six or seven blocks away to see their baby. She testified that she was not married to Boyce.

Alvin Harris, a Marshall High School student, testified that about 12:30 p. m. on October 11, 1966, he met Boyce on a corner near the restaurant and that Boyce gave him a radio. He said he went into the restaurant to eat and did not see Boyce again that day.

The defendant, William Spencer, took the stand and testified that he did not commit the crime, but was at home during the period of time the crime was committed.

The defendants contend that they were not proven guilty beyond a reasonable doubt because the victims had very limited time and disadvantageous circumstances for observing the faces and other physical features of the two assailants.

We are not in accord with the defendants’ contention. Gaines testified that he saw the two defendants in front of the store before he grappled with Boyce for several minutes over the radio and before Spencer shot him. Furthermore, Gaines gave descriptions of the def end-ants to the police and was able to describe their clothing. McCullough testified on cross-examination that he was in the immediate presence of the defendants for about three minutes, that he had a clear unobstructed view, and that the sun was shining during the attempted robbery. Considering these facts and circumstances we believe that the conditions for observation of the assailants could hardly be more ideal and that the victims’ identification of the defendants was direct, clear and positive.

The defendants also contend that the in-court identification was tainted by the unnecessary suggestiveness of the prior lineup and showup. They maintain that it is impossible to say with certainty or beyond a reasonable doubt that the in-trial identifications were independent and uninfected with the lineup and showup testimony, and therefore, there is raised a reasonable doubt of the guilt of the defendants.

Several days after the shootings, Melvin Gaines viewed defendants Boyce and Spencer in a lineup at the police station with five or six other Negro men who were all about the same age. One of the men in the lineup was Alvin Harris who testified at the trial that only he and defendant Spencer had processed hair. This latter fact, the defendants maintain, rendered the lineup suggestive and unfair to the defendants.

A showup was held in Robert McCullough’s hospital room on the same day as the above-mentioned lineup. McCullough testified that a third boy, a stranger to him, was brought in alone to his hospital bed to be viewed by him before the two defendants were brought in. Alvin Harris testified that he was the third boy, and that he and the two defendants were brought in later to be viewed. The defendants argue that though wounded in the legs, there is no evidence that McCullough was diagnosed as critical, and there was no emergency which justified bringing in defendants for a showup at a time so unfavorable and under such suggestive circumstances, all making for unreliable identification.

The defendants cite People v. Blumenshine, 42 I112d 508, 250 NE2d 152, in support of their position. Mr. Justice Ward speaking for the majority in Blumenshine observed :

[T]he United States Supreme Court in Stovall v. Denno, 388 US 293, . . . recognized that where “a pretrial identification proceeding occurred on or before June 12, 1967, [the effective date of United States v. Wade, 388 US 218, . . . and Gilbert v. California, 388 US 263, . . . ] a defendant, who was without counsel, is free to establish, based on the totality of the surrounding circumstances, that the viewing of the accused was so wanting in fairness as to deprive him of due process of law. We believe that Stovall requires that a defendant so claiming must prove that ‘the confrontation conducted . . . was so unnecessarily suggestive and conducive to irreparable mistaken identification that he was denied due process of law.’ 388 US at 301-2, . . .” [citation omitted]. If an accused can support this claim the evidence of identification is rendered inadmissible and not simply affected as to credibility. [Cases omitted.]

People v. Blumenshine, 42 Ill2d 508, 250 NE2d 152.

In the case at bar, we cannot say after reviewing the record that the defendants established that the lineup deprived them of due process of law. The lineup complained of was composed of five Negro men in addition to the two defendants. All of the participants were about the same age, though only two of the men, one of which was the defendant Spencer, had processed hair. From all of the evidence adduced at the trial it would appear that the lineup in the instant case was as fair as a lineup can possibly be.

Likewise, we cannot say that the showup complained of deprived the two defendants of due process of law. Although a showup has been observed to carry with it a dangerous degree of improper suggestion, People v. Gardner, 35 Ill2d 564, 221 NE2d 232, there may be justifying or saving circumstances. In the case at bar, we think that the five months Robert McCullough was hospitalized was such a circumstance. Not only could not McCullough be moved in order to view the defendants in a lineup thus delaying identification for five months, but there was a strong possibility that he would forget some or all of the aspects of the occurrence in question. Since McCullough could not be moved to the police station we believe that the police were entirely warranted to take the two defendants to McCullough’s hospital room.

The defendants urge that we should not disregard evidence of an alibi where the only evidence contradicting it rests upon the identification of the defendants. The defendants direct our attention to the case of People v. De Suno, 354 Ill 387, 188 NE 466, in which the Supreme Court held that evidence of an alibi which is uncontroverted must be given some consideration and weight. While we are in accord that the above-mentioned case accurately reflects the state of the law in Illinois on this subject, we cannot agree with the defendants that the defendants’ alibis are uncontroverted or, as was the case in People v. Peck, 358 Ill 642, 193 NE 609, controverted only by extremely weak identification evidence. The identification of the defendants in this case was direct, clear and positive, and under the circumstances the credibility of the alibi witnesses and the weight to be given their testimony was for the jury. People v. Coulson, 13 Ill2d 290, 149 NE2d 96. This court will not substitute its judgment for that of the jury. People v. Malmenato, 14 Ill2d 52, 150 NE2d 806.

The defendants contend that the failure of the State to call any of the fifteen persons in the school supply store at the time of the occurrence as witnesses raises an inference adverse to the State’s case. In People v. DiVito, 66 Ill App2d 282, 214 NE2d 320, cited by defendants, the victim was unable to identify the defendant and the conviction was based upon circumstantial evidence. A friend of the complaining witness was in the apartment while the robbery was committed, but though this person gave his address to the police he was not called as a witness. Furthermore, there was no testimony that the victim’s friend was not available or that any effort had been made to locate him. The Appellate Court stated that since this witness was in the apartment for more than a full hour during the course of the robbery the inference might well be that he had seen the robbers and would have testified that the defendant was not one of them. In the case at bar, however, the two victims both positively identified their assailants. In addition, there was no showing that the fifteen persons in the store were known to either the victims or the police. We think that the facts and circumstances of the instant case compel the application of the holding in People v. Jones, 30 Ill2d 186, 195 NE2d 698, and we hold accordingly that the State was not obliged in the case at bar to bring in any of the fifteen people in the school supply store.

The defendants further contend that the conduct of the prosecutor during his closing argument prejudiced defendants’ case and resulted in an unfair trial. The defendants refer to the prosecuting attorney’s introduction of new evidence without being sworn as a witness in an attempt to discredit the testimony of Patricia Belin. No objection was made to this comment of the prosecutor during his argument to the jury and any error that may have occurred was waived. People v. Donald, 29 Ill2d 283, 194 NE2d 227. However, we have examined the argument of the prosecutor on this point and while certain portions appear to have been improper, in view of the clear and convincing evidence of guilt we cannot say that such remarks prejudicially influenced the jury or that the verdict could have been otherwise had the remarks not been made. People v. Hines, 30 Ill2d 152, 195 NE2d 712.

The defendant, Edward Boyce, also contends that his sentence was excessive and out of proportion to the nature of his offense. It is argued that he did not have a gun and that all he did was to try to take the radio from Gaines. Defendant Boyce’s brief recites that “it is possible that he did not even know that his friend carried a gun and it is even more likely that he never anticipated that his friend might use a gun in such a petty attempt involving only a transistor radio.” It is clear from the evidence, however, that it was Boyce who first attempted to take the radio from Gaines by force and in the resulting scuffle his friend shot both Gaines and McCullough. Boyce was the initiator. Under the circumstances we cannot say that his sentence of two to five years is excessive.

For the foregoing reasons the judgments of the Circuit Court are affirmed.

Affirmed.

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

         The State is not obligated to produce every witness to a crime and the failure to produce a witness does not give rise to a presumption that the testimony of that witness would be unfavorable to the prosecution. People v. Jones, 30 Ill2d 186, 190, 195 NE2d 698, 700.


text:
    Allen S. Kleppinger, Plaintiff-Appellant, v. Etta Nelson, Administrator, Defendant-Appellee.
    Gen. No. 53,402. (Abstract of Decision.)
    First District, First Division.
    July 28, 1969.
    Allen S. Kleppinger, pro se, of Western Springs, appellant; Hubbard, Hubbard, O’Brien & Hall, of Chicago (Alvin G. Hubbard, Walter D. Jacobs, and Frederick W. Temple, of counsel), for appellee.
   Opinion by PRESIDING JUSTICE ADESKO. Not to be published in full.


author: MR. JUSTICE McCORMICK

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Cornelius Adams, Defendant-Appellant.
    Gen. No. 52,972.
    First District, Second Division.
    July 29, 1969.

      Earl E. Strayhorn, R. Eugene Pincham, Charles B. Evins, of Chicago, for appellant.
    Edward V. Hanrahan, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane, Assistant State’s Attorney, of counsel), for appellee.
   MR. JUSTICE McCORMICK

delivered the opinion of the court.

The defendant was indicted on four counts. Count I charged the offense of involuntary manslaughter on April 12, 1966, in that defendant, acting in a reckless manner, killed Samuel Carter with an automobile; Count II alleged that on the same date defendant committed the offense of leaving the scene of an accident; Count III charged that the defendant on the same date committed the offense of driving a motor vehicle without a license; and Count IV charged defendant with having committed the offense of reckless driving on the same date.

The case was tried before a jury which returned a verdict finding defendant guilty as charged in the indictment. At the conclusion of the trial defendant’s motion to dismiss Count IV of the indictment was allowed. He had made a pretrial motion to dismiss Counts I and IV of the indictment, which motion was denied.

The defendant was sentenced to the House of Correction for one year on Counts II and III, and to five years’ probation on Count I, upon condition that he serve the first year of the sentence in the House of Correction. The sentences were to run concurrently.

The first of three eyewitnesses for the State was Templie Murphy, who testified that she was on the southwest corner of 111th Street and Racine Avenue on the evening in question and saw the deceased step off the curb. At the same time she heard tires squeaking and saw a car speeding north on Racine. As the victim tried to step back from the car he was struck and knocked into the air. The driver did not stop, but continued driving to 110th Street where he made a right turn. The witness stated that there are stop signs posted for Racine Avenue. She further testified that in her opinion the car which struck the deceased was traveling at about 70 miles an hour.

Lucious Harris testified that he was standing by his car at a gas station at 111th and Racine at the time of the accident; that when he heard the sound of screeching wheels he looked up and saw a red 1965 Plymouth traveling north on Racine. He stated that while he did not particularly notice the deceased he did see the car “strike an object” at the intersection, and that the object went up in the air and fell on the side of the car near the windshield, then rolled into the street. The witness followed the Plymouth to 110th Street where the defendant made a right turn, parked and cut off his lights, then lay down in the car. He stated that the defendant was wearing a cap and a leather jacket. The witness made a note of the license number, then returned to the scene of the accident with the police and went with Officer Wheeler to look for defendant’s car. The defendant had been apprehended by other police officers and Harris identified him as the driver of the red Plymouth. Harris further testified that at the time of the impact the defendant was driving his car at about 65 or 70 miles an hour; that he applied his brakes and wás then driving at 55 or 60 miles an hour when he struck the deceased.

Inell Dimwiddie’s testimony was substantially the same as that of the other two State witnesses. She said she saw a speeding car strike an object which went up in the air; that she believed the ear was traveling between 75 to 80 miles an hour.

Officer Wheeler testified that he had gone with Harris to look for defendant’s car and had then gone to 109th and Racine where defendant had been apprehended. The defendant’s car was identified by Harris as the one which struck the victim. There were scratches and dents near the headlights of the car and the windshield was broken.

Officer Branche, who arrested the defendant, said that when he saw him at 109th and Throop the defendant was running south.

The defendant testified on his own behalf and admitted driving without a valid license. He stated that he was driving at about 25 to 30 miles per hour as he approached 111th Street on Racine; that he did not see the stop sign, and that he saw the victim too late to avoid striking him. He stated that he had applied his brakes midway between 111th Street and 112th, and that his wheels did not squeak or screech. He stated that after the impact he turned west on 109th and Racine, parked his car, walked across the street and saw a police car approaching. He explained his failure to stop after the accident by saying that he panicked.

The defendant appealed from the judgment of the trial court and argues that Count I should be dismissed because it is too vague and does not state a crime. Defendant also argues that Count II did not allege a crime, and that the charged offenses arose out of the same transaction or series of transactions, and therefore, separate sentences should not have been imposed on the different counts. The defendant finally argues that the evidence is not sufficient to sustain a verdict of guilty.

OPINION.

1. Was Count I sufficient to inform the defendant of the nature of the accusation against him? That count alleged that:

Cornelius Adams on April 12, 1966, committed the offense of involuntary manslaughter, in that he, acting in a reckless manner, killed Samuel Carter, with an automobile, without lawful justification, in violation of chapter 38, section 9-3 (b) of Illinois Revised Statutes of 1963.

Section 9-3 provides:

(a) A person who kills an individual without lawful justification commits involuntary manslaughter if his acts whether lawful or unlawful which cause the death are such as are likely to cause death or great bodily harm to some individual, and he performs them recklessly.

(b) If the acts which cause the death consist of the driving of a motor vehicle, the person may be prosecuted for reckless homicide or if he is prosecuted for involuntary manslaughter, he may be found guilty of the included offense of reckless homicide.

It is the rule in this State that an indictment is sufficient if it is drawn in the language of the statute. However, we must note that the courts of the State have made a distinction between common law crimes and purely statutory offenses. In People v. Garman, 411 Ill 279, 103 NE2d 636, the court, in distinguishing between the offense of reckless homicide and involuntary manslaughter, said at page 284:

“To charge manslaughter it was necessary to allege, . . . merely that plaintiff in error did unlawfully and feloniously kill and slay Bernard Bowers while defendant was in the performance of an unlawful act. . . . Involuntary manslaughter is a common-law crime, .... It is sufficient to allege a common-law crime in the language of the statute, . . . .”

The case principally relied on by the defendant is People v. Potter, 5 Ill2d 365, 125 NE2d 510; however, in that case the charge was reckless homicide and not manslaughter, and is not applicable here. The other cases cited by defendant are also inapplicable.

We must call attention to the fact that c 38, § 111-6, of Ill Rev Stats 1963, provides that if the indictment fails to specify the particulars of the offense sufficiently the court may, on written motion of defendant, require the State’s Attorney to furnish the defendant with a bill of particulars supplying whatever omissions there may have been in the indictment, in order to provide the defendant with the material necessary for the preparation of his defense. No such motion was made by the defendant in the instant case. The indictment was sufficient and the court properly refused to dismiss it.

2. The defendant argues that Count II of the indictment does not allege a crime. That count stated:

Cornelius Adams, on April 12, 1966, committed the offense of leaving the scene of an accident — in that he, unlawfully and knowingly drove a motor vehicle, to-wit: an automobile upon the public streets and highway, to-wit: on Racine Avenue at and near the intersection of said Racine Avenue with 111th Street, in the City of Chicago, County of Cook and State of Illinois, and while driving said automobile, he was involved in an accident resulting in injury to and death of one, Samuel Carter, and that is to say, further, that said Cornelius Adams failed to stop said vehicle at the scene of said accident, or as close thereto as possible, and then and there failed to return forthwith and remain at the scene of said accident, until he had reported said accident, his name and address and the registration number of the vehicle he was driving to said Samuel Carter, or to a police station or Sheriff’s office near the place where the said accident occurred in violation of chapter 95%, section 133(36) of the Illinois Revised Statutes 1965.

Chapter 95½, § 133(36) (a), Ill Rev Stats 1965, provides:

The driver of any vehicle involved in an accident resulting in injury to or death of any person shall immediately stop such vehicle at the scene of such accident, or as close thereto as possible and shall then forthwith return to, and in every event shall remain at, the scene of the accident until he has fulfilled the requirements of Section 38 [Section 135 of this chapter]. Every such stop shall be made without obstructing traffic more than is necessary.

Chapter 95½, § 133(36) (b), Ill Rev Stats 1965, provides that a person who fails to stop or comply with requirements shall, within 48 hours after the accident, make a report with reference to the accident at a police station or sheriff’s office. Violation of section 133(36) (a) is punishable as a misdemeanor and violation of Section 133 (36) (b) is a felony.

The defendant argues that since the indictment used the general section heading (36) instead of specifying whether subsection (a) or (b) was deemed violated, the indictment was insufficient under c 38, § 111-3 (a) of Ill Rev Stats 1963, which provides that a charge shall be in writing and allege the commission of an offense by citing the statutory provision alleged to have been violated.

In People v. Hampton, 105 Ill App2d 228, 245 NE2d 47, the defendant was charged in the indictment with attempt, and the indictment erroneously cited the section of the statute for theft. The argument was made that the indictment was void. The court held that the failure to cite the correct provision of the statute is not an error which vitiates the indictment; it is merely a formal defect, and under section 111-5 of the Code of Criminal Procedure an indictment may be amended on motion by the State’s Attorney or the defendant at any time because of formal defects. The court pointed out that the indictment clearly charged the crime and that the citation of the incorrect statute consequently was merely a formal defect.

In People v. Bridges, 67 Ill App2d 236, 214 NE2d 539, the court stated at page 241:

“The requirement in the Code of Criminal Procedure of 1963 that the charge shall cite ‘the statutory provision alleged to have been violated’ (section 111-3 (a) (2)) must be distinguished from the requirement in the Code that the charge shall set forth ‘the nature and elements of the offense charged’ (section 111-3 (a) (3)). The former is not listed among the ten grounds for dismissing an indictment, information or complaint (section 114-1 (a) of the Code) and it is not a ground for arresting judgment (section 116-2 (b)); whereas the latter is a ground for dismissal (section 114-1 (a) (8)) and is also a ground for arrest of judgment (section 116-2 (b) (1)). Failure to cite a particular statutory provision cannot be equalized with failure to state the nature and elements of the offense charged. The latter is on a higher level and parallels the constitutional requirement that an accused shall have the right ‘to demand the nature and cause of the accusation.’ ”

See People v. Hill, 68 Ill App2d 369, 216 NE2d 212.

Failure to properly cite the statutory provision does not void the indictment. The court had jurisdiction in the instant case to try the defendant on the charge in Count II of the indictment.

3. The defendant argues that the charged offenses arose out of the same transaction or series of transactions, and therefore, separate sentences should not have been imposed on the different counts. Defendant argues that under the interpretation contained in the Committee Comments to § 1-7 (m) of c 38, Ill Rev Stats 1965, subsection (m) by negative implication codifies the holding in People v. Schlenger, 13 Ill2d 63, 147 NE2d 316. In that case the court held that if the offenses resulted from the same conduct the defendant may not be sentenced on both, either concurrently or consecutively. In the instant case each act was separate. Chapter 38, § 2-4, Ill Rev Stats 1965 provides that “conduct” means an act or a series of acts, and the accompanying mental state. In the case before us the only common element connecting the offenses charged is the operation of a motor vehicle.

In People v. Duszkewycz, 27 Ill2d 257, 189 NE2d 299, the defendant was charged in a 2-count indictment with forcible rape and incest, and was sentenced on both counts. On appeal the Supreme Court reversed as to the incest count, holding that only one sentence should have been imposed and that for the greater offense. The court cited People v. Stingley, 414 Ill 398, 111 NE2d 548, a case involving a 2-count indictment which charged in one count an assault with intent to rape, and in another, an assault with intent to murder. Both were based on a single series of acts committed on the same person at the same time and place.

In People v. Ritchie, 66 Ill App2d 302, 213 NE2d 651, cited by defendant, the court held that the offenses of rape and burglary with intent to commit rape were included in the same conduct and hence prohibited multiple sentences. In People v. Raby, 40 Ill2d 392, 240 NE2d 595, the Supreme Court pointed out that the offenses charged in the case, of disorderly conduct and resisting arrest, were separate offenses, and called attention to the fact that in those Supreme Court cases which reversed convictions arising from the same conduct as had been the subject of another conviction, the conduct had been based on single acts.

In People v. Mundorf, 97 Ill App2d 130, 239 NE2d 690, the defendant was sentenced to two consecutive 120-day terms at Vandalia State Farm for driving while under the influence of alcohol and operating a motor vehicle after suspension of a license. On petition for rehearing defendant argued that the offenses arose from the same act, but the court refused to so hold and said at page 137:

“We hold that the two offenses in the case at bar —driving while under the influence of intoxicating liquor and operating a motor vehicle after suspension of license — do not arise out of the same conduct. The common denominator is not the act of driving a motor vehicle. That act, considered alone, is not unlawful. To render that act unlawful, the concurrence of intoxication in the one instance, and the licensing act violation in the other, are required. The resultant offenses, therefore, arise from separate and unrelated acts of misconduct.”

In the case before us the multiple sentences imposed by the court were proper.

4. Defendant argues that the evidence introduced by the State was not sufficient to support a conviction of involuntary manslaughter under Count I of the indictment. The evidence is that the defendant drove an automobile at a rate of speed between 55 and 80 miles per hour on a street with a 30-mile per hour speed limit; that he failed to stop at the stop sign posted at 111th and Racine; that he failed to yield the right-of-way to a pedestrian in a crosswalk, and struck and killed that pedestrian; that he then left the scene of the accident without stopping.

In Ill Rev Stats 1965, c 95½, § 171(c) it is provided:

Whenever stop signs or flashing red signals are in place at an intersection or at a plainly marked crosswalk between intersections, pedestrians shall have the right-of-way over drivers of vehicles as set forth in Section 70, paragraph (d), of this Act.

People v. Bader, 372 Ill 345, 23 NE2d 691 was a case where defendant drove through an intersection between 40 and 50 miles an hour, failed to observe a stop light and struck and killed an eight-year-old boy, then fled the scene of the accident. His conviction in the trial court was affirmed. We must also consider the rule many times quoted and applied, that the judgment of the trier of fact on the evidence will not be upset. In People v. Allen, 368 Ill 368, 14 NE2d 397, the court stated at page 388:

“It is the province of the jury to determine, from a consideration of all the evidence, under correct instructions, whether defendant is guilty of culpable or criminal negligence which was the proximate cause of the resultant death. ... It is true, as defendant points out, that there are certain inconsistencies in the testimony of several witnesses for the People. The discrepancies are not, however, of such a character as to impair the effect of their testimony in essential particulars, and to justify its rejection. The law has committed to the jury the determination of the credibility of the witnesses and the weight to be accorded to their testimony.”

In the instant case the evidence in the record was sufficient to prove the defendant guilty beyond a reasonable doubt.

In the State’s brief it is pointed out that the defendant in his theory of the case raises the issue of prejudicial evidence concerning the condition of the victim at the scene of the accident. However, the defendant has failed to argue or brief the point, and points not argued or briefed are waived. People ex rel. v. Olympic Hotel Bldg. Corp., 405 Ill 440, 91 NE2d 597; People v. 123 Punch Boards, 8 Ill2d 520, 134 NE2d 763. Furthermore, where the issue is the question of the speed at which defendant was driving a car, it has been held that it is relevant to permit testimony concerning the condition of the victim in order to show the force of impact and the speed of the automobile. People v. Everist, 52 Ill App2d 73, 201 NE2d 655.

We find no error in the record, and the judgment of the Circuit Court is affirmed.

Affirmed.

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


author: CRAVEN, P. J.,

text:
    Robinhorne Construction Corporation and Red Arrow Construction, Inc., Plaintiffs-Appellants, v. Jack O. Snyder and Peoples Bank of Bloomington, Illinois, as Trustee Under McLean County Land Trust No. D-161, Defendants-Appellees. Jack O. Snyder, Counterclaimant-Appellee, v. Robinhorne Construction Corporation, Inc., Orin L. Robson, Red Arrow Construction, Inc., and United States Fidelity and Guaranty Company, Counterdefendants-Appellants.
    Gen. No. 11,058.
    Fourth District.
    July 30, 1969.
    Rehearing denied and supplemental opinion October 24, 1969.

      Summers, Watson & Kimpel, of Champaign (Robert C. Summers, of counsel), Phillips, Phebus, Tummelson & Barth, of Urbana, and Sebat, Swanson & Banks, of Danville, for appellants.
    Thomas, Mulliken & Mamer, of Champaign (Albert F. Manion and Carl J. Sinder, of counsel), and Dunn, Dunn, Brady, Goebel, Ulbrich & Hayes, of Bloomington (Merrick C. Hayes, of counsel), for appellees.
   CRAVEN, P. J.,

delivered the opinion of the court. This appeal is from judgments in two actions filed in the Circuit Court of Champaign County arising out of construction contracts for the erection of a Howard Johnson Motor Lodge in Urbana.

The first suit filed by Robinhorne Construction Corporation prayed for an accounting and damages from its join-venturer in the construction, Red Arrow Construction, Inc., and Crin L. Robson, and the owner, Jack 0. Snyder. Snyder counterclaimed against the joint-venturers and their surety, United States Fidelity & Guaranty Company (U. S. F. & G.), claiming damages for breach of contract and for the costs of suit against the surety.

The second suit filed by Robinhorne and Red Arrow Construction, Inc., sought a temporary injunction to restrain the owner, Snyder, from completing construction of the motor lodge and to enforce a mechanic’s lien against the property.

The two suits were consolidated for trial and heard by the court without a jury. After numerous hearings the trial court entered judgment against Robinhorne Construction Corporation and in favor of all defendants upon the first suit for an accounting and damages. On the counterclaim of the owner, Snyder, the court entered judgment against the contractors, Robinhorne, Red Arrow and Robson, and their surety, U. S. F. & G., in the amount of $159,832.64 with interest at six percent. Also, separate judgment on the counterclaim of the owner, Snyder, was entered against U. S. F. & G. for costs of suit including legal and accounting fees and expenses in the amount of $28,498.86 and interest. In the second suit a judgment was entered against the contractors and in favor of the owner Snyder.

The contractors and their surety appeal from the judgments on the counterclaim in the first suit and the contractors appeal from the judgment in the second suit.

The disposition of this appeal of the consolidated cases is dependent wholly upon the rights of the property owner and the contractors under the construction contract or contracts entered into by them. These rights involve determination of the basis of payment for construction and the termination provisions and completion by the owner Snyder under the applicable contract terms. The evidence is both detailed and conflicting, but so far as pertinent to the issues here on appeal, requires certain review.

The owner, Jack 0. Snyder, and his trustee, Peoples Bank of Bloomington, in April of 1965, employed a licensed architect to prepare plans and specifications for a Howard Johnson motel and restaurant on the land of the owners in Urbana.

The architect prepared the plans and specifications, using document forms recommended by the American Institute of Architects for lump-sum bid construction contracts. These were put out for bid. No lump-sum bids having been received by bid date, the owners proceeded to negotiate a cost-plus contract with Robinhorne Construction Corporation as contractor.

On July 10, 1965, the owners and Robinhorne entered into a written construction contract prepared by the owners’ attorney upon a 1951 form recommended by the American Institute of Architects for cost-plus contracts, but the general conditions, plans and specifications of the previous contract were not changed. This contract, by a rider attached to paragraph 4, provided that the owner Snyder pay the contractor the cost of construction plus a six percent fee, but that the cost-plus six percent should not exceed $1,018,700.

Thereafter, difficulties arose in the ability of the contractor Robinhorne to provide a performance bond and in the cost of such bond. It also was learned by Robinhorne that it would be unable to perform the work. Thus, a supplemental agreement was made that Red Arrow Construction, Inc., would become a joint-venturer with Robinhorne and O. L. Robson.

The supplemental agreement also provided that the performance bond to be furnished by the joint-venturer contractors be reduced to $500,000 for the general contract work; that subcontractors be obtained for the mechanical, electrical, masonry, store-front and dry-wall portions of the building, who would furnish performance bonds for their respective portions of the contract; and that a new contract be entered into by all parties.

On October 19, 1965, the final construction contract was executed and backdated to July 10, 1965. It was prepared by the owners and their attorney and was on a 1963 American Institute of Architects form for a cost-plus contract. This contract provided that the owner Snyder pay the contractors the cost of the improvements plus six percent, provided such total did not exceed $500,000, excluding the subcontracted work. This maximum of $500,000, plus the .estimated subcontracted excluded work equaled the original contract price of $1,018,700. No change was made in the original plans and specifications and general conditions prepared for the proposed original contract. A rider attached to paragraph 5 of the final contract provided that the contractors were to receive an additional fee equal to one-half of the difference between the total cost of the project (including the contractors’ six percent fee) and the previously agreed maximum price of $1,018,700, should the total costs be less than the maximum price.

Construction was undertaken and partially completed when the contractors advised the owner Snyder that the costs of construction would exceed the maximum contract price. The exact date the owner Snyder was informed of this situation is disputed. The contract had a completion date of February 1, 1966, but the construction still was incomplete in June of 1966, when meetings were had by the owner Snyder and various of the contractors. The cause of the delay also was disputed.

The contractors contend that they were substantially delayed in the work due to the failure of the owners to remove a preexisting building on a portion of the job site. Several of the contractors testified that the delay of some of the subcontractors delayed their work. Credit weakness of Robinhorne, causing delay in the delivery of materials, and the time which passed while Orin Robson was being persuaded to enter into the joint venture were additional causes asserted.

Certainly sometime during the June, 1966, meetings between the owner Snyder and the contractors it became apparent that the job was in financial difficulty. Discussions were had by the owner Snyder with representatives of the bonding company and considerable correspondence passed between the parties as to completion and cost. The representatives of Howard Johnson Company threatened cancellation of the owner’s lease and franchise agreement. During the latter days of June and the early part of July, 1966, the work proceeded at an extremely slow rate. Testimony was given that few, if any, workers remained on the job and that the construction superintendent had been taken off the job and sent back to Wichita, Kansas.

On July 11, 1966, Robinhorne filed its suit for accounting and damages against its joint-venturers and the owners. On July 18, 1966, the construction came to a standstill. On July 20, 1966, the owner Snyder delivered a copy of a notice of contract termination to Orin L. Robson and his attorney. Letters dated July 22 and 28, 1966, notified the bonding company of the contract termination.

In August, 1966, the contractors filed the second suit seeking to enjoin the owner Snyder from completing construction. This complaint later was amended for recovery from the owners of $88,148.55 as the balance due to reimburse the contractors for payments made by them, plus a fee of six percent of the cost of the work completed prior to the date of termination of the contract.

The contractors moved from the job site August 12, 1966. The owner Snyder then took over the job and completed it himself and did not rent any of the equipment from the contractors. The owner Snyder filed a counterclaim in the first suit filed for damages in the amount of the excess of the owner’s completion costs over the alleged agreed contract price of $1,018,700.

While it is no longer necessary to the validity of a judgment or for review in a case either in equity or at law tried without a jury to make special findings (Ill Rev Stats 1967, c 110, par 64), in a complicated contract or accounting case, the trial court should at least make and file a memorandum opinion setting forth the findings of fact and conclusions of law in arriving at its judgment. The trial court was requested to do so in the instant case but failed to file any such opinion. Hence, we must review the evidence and conjecture as to the basis of the judgments below.

Here sophisticated businessmen contracted for the construction of a large improvement. The changes in contract forms used as the basis of this construction with the retention of certain original plans and specifications and general conditions have resulted in most of the basic disputes of these proceedings.

It is our conclusion that the final contract entered into between the parties was a cost-plus contract with a maximum-price provision. A maximum-price provision is enforceable in Illinois. Wuellner v. Illinois Bell Tel. Co., 322 Ill App 284, 54 NE2d 853 (4th Dist 1944), affd, 390 Ill 126, 60 NE2d 867 (1945). In that case the Supreme Court referred to such a contract as “a guaranteed maximum cost contract.” Such a contract, obviously, is neither a “lump-sum” contract nor a “cost-plus” contract as these terms are customarily used.

Having thus entered into a specially designed contract for this construction, we must look to the termination provisions agreed upon between the parties. Despite the provisions of Article 16 of the final agreement, the parties retained as a part of their contractual relationship the provisions of paragraph 18 of the “General Conditions” of the contract. The owner Snyder in terminating the contract elected to terminate under the provisions of paragraph 18 of the “General Conditions” as stated in the termination notice.

Paragraph 18 provided:

“OWNER’S RIGHT TO TERMINATE CONTRACT
“If at any time the contractor fails to comply with the provisions of the Contract, or if he becomes insolvent or insolvency or bankruptcy proceedings are instituted by or against him, or if he does not act with promptness and diligence reasonably to warrant the expectation that the Contract shall be completed within the time limits as set forth in the Agreement, the Owner may immediately, without prejudice to any other right or remedy, evict the Contractor and take possession of the premises and of all materials, tools, and appliances thereon and furnish [sic] the work by whatever method he may deem expedient. In such case the contractor shall not be entitled to receive any further payment until the work is finished. If the unpaid balance of the contract price shall exceed the expense of finishing the work including, but not limited to, compensation for additional managerial and administrative service, such excess shall be paid to the contractor. If such expenses shall exceed such unpaid balance, the contractor shall pay the difference to the Owner and such other damages as the Owner may have sustained.”

Appellants contend that since Article 16 of the final agreement has a provision with reference to termination of the contract and that such provision states that it supersedes Article 22 of the “General Conditions,” except the first sentence, and that General Condition 18 of the lump-sum contract form and General Condition 22 of the cost-plus contract form are identical as to their first sentence, termination can be only under Article 16 of the final agreement because that agreement provided that it should govern if the General Conditions and said agreement were inconsistent. Appellants then conclude that the remaining provisions of Article 16 of the final agreement control in the event of termination and require that the contractor be reimbursed for all payments made by it, plus six percent.

We cannot agree with appellants’ contentions. The final agreement makes no specific reference to any superseding of or change in the termination clause under paragraph 18 of the General Conditions but only to an Article 22 of the General Conditions. To adopt the interpretation of these documents contended for by appellants would be to change the contract entered into between the parties and, in effect, write a new contract which the parties themselves did not make. This even the appellants concede cannot be done. The parties having agreed upon the contract under the documents here presented, it is not our province to make a different, better or worse one. Freeland v. Edwards, 11 Ill2d 395, 142 NE2d 701 (1957). We thus must conclude that the owner Snyder could elect to terminate the contract under the provisions of paragraph 18 of the “General Conditions” as he did and that Article 16 of the final agreement did not exclusively control. This result is all the more conclusive when the contractual arrangement is viewed not simply as a cost-plus contract but when considered with its maximum-price provision and regarded as “a guaranteed maximum cost contract.”

The evidence amply supports a failure of the contractors to comply with the contract provisions, particularly in completion date and delays, and failure to have sufficient workmen on the job. Further, the evidence is undisputed that the contractors were unable to complete the work within the maximum contract price. The owner Snyder, therefore, was justified in terminating the contract when he served the termination notice on July 20, 1966, and took over completion of the work, as the contractors had materially breached the contract.

Where a party has materially breached a contract, he cannot take advantage of terms of the contract which benefit him nor recover damages from the other party to the contract. Glenridge Coal Co. v. Marion County Coal Co., 205 Ill App 264 (1st Dist 1917); Consumers Mut. Oil Co. v. Western Petroleum Co., 216 Ill App 382 (1920). The contractors here clearly were not entitled to any damages or money judgment under general-contract .law nor under the terms of the contract as here provided.

The evidence supports the damages awarded the owner Snyder on his counterclaim against both the contractors and their surety. The judgment entered by the trial court against the contractors and their surety amounted to the difference between the actual construction cost incurred by the owner Snyder and the agreed maximum contract price. This was the proper measure of damages upon termination under paragraph 18 of the “General Conditions.” The judgment against the surety, based upon the terms of the surety bond which indemnified the owner Snyder as to “all and every . . . cost and fee of every description incurred in suits or otherwise against the said Obligee, . . .” is supported by the evidence as to his suit costs and expenses including litigation expenses, attorneys’ fees, and costs of accountants, photographers and architects. The judgments of the trial court are correct.

Judgments affirmed.

SMITH and MILLS, JJ., concur.

SUPPLEMENTAL OPINION ON DENIAL OF PETITION FOR REHEARING

Upon consideration of the petition for rehearing, we have reexamined this appeal, particularly with reference to the points asserted to have been misapprehended or misunderstood. Certain specifics of the contractual provisions are discussed in this supplemental opinion.

We do not deem it controlling in interpretation of terms of a contract that the contracting parties have designated or entitled their contract as being one of a certain type, as “for use when the cost of work plus a fee forms the basis of payment” in the first agreement of July 10, 1965, or “where the basis of payment is the COST OF THE WORK PLUS A FEE” in the agreement signed September 21, 1965 (dated July 10, 1965) (hereinafter referred to as the “final agreement”). The parties here used standard-form contracts of the American Institute of Architects.

As we have previously stated, while the contracts were prepared by the architect and the owners’ attorneys, the parties were sophisticated businessmen. The contractors were corporations which for some time had been actively engaged in the building and construction business. Under such circumstances, the usual rule in construction of contracts that ambiguities in a contractual provision or between provisions thereof are to be resolved against the owners who secured and prepared the contract, does not require us to set aside the determination of the trial judge as to the proper construction and interpretation of the contract.

Here the trial court’s judgments must have been concluded from finding this contract to be a cost-plus contract with a maximum-price provision, written on standard forms of the American Institute of Architects and prepared by the owners’ attorneys with specially designed and changed provisions.

We can interpret only the language of the contract as obtained from the documents signed by the parties. The rider to paragraph 4 of the first agreement and to paragraph 5 of the final agreement provided that the maximum cost price included a base-price figure of $788,000 and $269,960, respectively, plus bond cost of $5,290 and plus certain additional separate specified costs of certain specified items, and that if the actual costs of any specified items were greater or less than the specified amounts of each, the increment would be added or the difference (when less) deducted from the maximum cost price agreed upon in the contract. This provision might vary the maximum cost price to some extent, but it did not change the fact that the parties agreed to a maximum cost price. In considering the contract, we are mindful of this provision for increase or reduction of the upset price.

It is evident that the parties’ use of the standard architect form of contract by changing the usual price basis of cost, plus a fee, has rendered it necessary to construe the contractual meaning. Article 15 of the original agreement and Article 16 of the final agreement contain termination provisions. So does paragraph 18 of the General Conditions. Further, the contracts both provided that the architect’s drawings and specifications, the General Conditions and the agreement were all parts of and constituted the contract; and that if anything in the General Conditions or Supplementary General Conditions was inconsistent with the agreement, the agreement should govern.

The agreements both provided that work commence August 1, 1965, and be substantially completed by February 1,1966.

Article 16, the termination provision of the final agreement, provided that the provisions of Article 16 superseded all of paragraph 22 of the General Conditions except the first sentence. The abstract of record filed herein by appellants fails to include the entire General Conditions and their terms except as may be reflected in Plaintiff’s Exhibit 18, which purports to be a copy of paragraph 22 of the General Conditions of the standard architect form of contract for the year 1965. Since the first agreement was on a 1961 form and the final agreement on a 1963 form, Plaintiff’s Exhibit 18 assists us not at all.

Paragraph 22 is shown as a part of Plaintiff’s Exhibit 1 in the supplemental abstract of record supplied by appellees. Paragraph 22 of the General Conditions in the contract between the parties in this case applies to guaranty bonds and not to termination of the contract. We cannot conclude, however, that the trial court erred in determining that the provision of Article 16 of the final agreement superseding the first sentence of paragraph 22 of the General Conditions eliminated or modified paragraph 18 of the General Conditions, and that the terms of paragraph 18 of the General Conditions were not inconsistent with the terms of the final agreement as to termination. Hence appellee Snyder, the owner, had the right to and did terminate under the provisions of paragraph 18 of the General Conditions, and the undertakings in that paragraph control the payments to be made by the owner and contractors upon termination of the contract pursuant to that paragraph.

The owner’s letter of July 19, 1966, notifying the contractors of termination of the contract, called attention to the contract completion date of February 1, 1966, and that such date was “long since past”; the tremendous cost to the owner by the delay in completion; the lack of completion due to the contractors’ lack of coordination of the various subcontractors and their failure to have sufficient workmen on the job at all times; and that there was a substantial amount of work then yet to be done. The letter then notified the contractors of the owner’s election to terminate the contract pursuant to the provisions of “Paragraph 18 of General Conditions of the Contract.”

Under the provisions of paragraph 18 of the General Conditions, when the contractors failed to complete the contract by the contractual completion date and to have sufficient workmen on the job, certainly the owner was correct in assuming that the lack of promptness warranted expectation that the contract would not be completed within its time limit as that limit already had expired six months earlier at the time the letter of termination was sent. The contractors, under the provisions of paragraph 18, were not entitled to receive from the owner any moneys for materials, services or labor expended by them prior to termination, but only to any sum that the unpaid balance of the contract price exceeded the expenses of finishing the work. Should the expenses of completion exceed the unpaid contract balance, the owner was entitled to such difference and to such other damages as he sustained. This, to us, was the plain and clear agreement of the parties. The evidence supports the trial court’s judgment that there was an excess and other damages to the owner in the amount for which judgment was entered.

We adhere to our opinion as supplemented on denial of rehearing.


author: MR. JUSTICE ENGLISH

text:
    Veda Jakovljevich and Stanley Jakovljevich, a/k/a Stanimir Jakovljevich, Individually, and as Beneficiaries Under Cosmopolitan National Bank of Chicago, Trust No. 4450, Plaintiffs-Appellants, v. Riccardo Alvarez, Defendant-Appellee.
    Gen. No. 52,438.
    First District, Fourth Division.
    July 30, 1969.

      Richard E. Mansfield, Jr. and John J. Piccione, of Chicago (Katz, Karacic & Mansfield, of counsel), for appellants.
    Edward M. Platt, of Chicago, for appellee.
   MR. JUSTICE ENGLISH

delivered the opinion of the court.

This is an appeal from a judgment that dismissed the cause of action after finding the fourth amended complaint insufficient for the reason that plaintiffs, as beneficiaries of a land trust, had no right to maintain an action for unpaid rent. The undisputed facts are set out below, along with specific references to provisions contained in relevant written instruments.

By trust agreement in 1955, a land trust was created with Cosmopolitan National Bank of Chicago as trustee and Stanley and Veda Jakovljevich as beneficiaries. The real estate concerned in this appeal was conveyed to Cosmopolitan by the same instrument.

On August 23, 1963, plaintiff Veda Jakovljevich executed with defendant a lease of the property which contained the following clause describing the parties thereto:

THIS INDENTURE, made this 23rd day of August, A. D. One Thousand Nine Hundred and Sixty-Three between Cosmopolitan National Bank as Trustee U/T No. 4450 hereinafter called Lessor, and Riccardo Alvarez, hereinafter called Lessee.

It was signed for the lessor by “Veda Jakovljevich, Agent and Beneficiary of Trust No. 4450.” This original lease commenced on September 1, 1963, and was to expire August 31, 1964, with a yearly rental of $2,400, payable in advance in equal monthly installments of $200. It was also stated in the lease that “Lessee shall pay to Lessor, at the office of Stanley Jakovljevich” the monthly rent, and, in practice, it resulted that defendant did pay rent directly to the plaintiffs.

Executed simultaneously with the lease was a rider granting defendant an option to renew the lease for an additional three years commencing September 1, 1964, at the same rental provided defendant made certain repairs, and, if defendant was unable to make the repairs, then at a monthly rental of $325. Defendant, who conducted a retail shoe business on the premises, on May 26,1964, exercised his option under the rider by directing a letter to Stanley Jakovljevich notifying him that he would extend the lease and make the necessary repairs.

On April 16, 1965, Veda and Stanley Jakovljevich, by their attorney, directed a letter to defendant proposing a modification of the lease and rider “between yourself and the Cosmopolitan National Bank, as Trustee under Trust No. 4450, the beneficiaries of which are Stanley and Veda Jakovljevich,” to the extent that defendant would be relieved of his obligation to make repairs but would pay, instead, a monthly sum of $300 commencing January 1, 1965, for the remainder of the term. This lease modification letter (which was agreed to by defendant) was signed by the Jakovljeviches without description of their capacity in signing, other than the language in the letter itself (quoted above in this paragraph), referring to the trustee bank as the lessor.

Defendant paid the $300 monthly sum directly to the Jakovljeviches from January to December, 1965. During the latter month, defendant abandoned the premises and moved his business to a new location. Since that time, no rent has been paid by defendant.

Plaintiffs, as beneficiaries of the trust, have attempted to sue defendant, as tenant, for the unpaid rent, and defendant questions their authority to bring the action in that capacity since the trustee was designated as lessor in the lease. So far as we know, this specific issue has not previously been presented for review in this state, althoúgh Illinois courts have decided many cases relating to the rights of beneficiaries under a land trust. Thus, it was held in Chicago Title & Trust Co. v. Mercantile Trust & Savings Bank, 300 Ill App 329, 20 NE2d 992, that a judgment against a land trust beneficiary did not constitute a lien against the real estate, since the interest of such a beneficiary is a personal property interest. In Schneider v. Pioneer Trust & Savings Bank, 26 Ill App2d 463, 168 NE2d 808, the court held that a beneficiary did not have the authority to accept an offer to purchase the real estate, since only the trustee had power to deal with the title. It has been stated that the trustee under a land trust, and not the beneficiary, is the proper party to bring a forcible detainer action. Liberty Nat. Bank of Chicago v. Kosterlitz, 329 Ill App 244, 67 NE2d 876. It has been recognized that the trustee has full title to the real estate, both legal and equitable, and that a federal tax lien against a beneficiary did not attach to the real estate of a land trust. Chicago Federal Savings & Loan Ass’n v. Cacciatore, 33 Ill App2d 131, 178 NE2d 888, affirmed 25 Ill2d 535, 185 NE2d 670. See, also, Seno v. Franke, 20 Ill2d 70, 169 NE2d 335; Chicago Title & Trust Co. v. Mercantile Trust & Savings Bank, 300 Ill App 329, 20 NE2d 992; and Robinson v. Chicago Nat. Bank, 32 Ill App2d 55, 176 NE2d 659.

Plaintiffs, as beneficiaries, ask this court to allow them to sue defendant for rents due under a lease agreement signed by one of them as “Agent and Beneficiary of Trust No. 4450.” They advance the arguments that they had leased the property to defendant in their own behalf; and, further, that the specific designation (in the lease agreement) of the trustee bank as lessor, and the execution by one of the plaintiffs as agent, should not be controlling. Both contentions must be rejected.

There is nothing of substance to support plaintiffs’ theory that Veda Jakovljevich executed the lease agreement on behalf of the beneficiaries. Plaintiffs contend that when she signed the lease, “Agent and Beneficiary of Trust No. 4450,” she was acting as agent of the other beneficiary, Stanley Jakovljevich, and in her own behalf as beneficiary, and not as agent of the trustee, Cosmopolitan. Such a construction becomes unacceptable when the lease agreement is read in its entirety, as it must be. The introductory clause of the indenture states that the parties to the lease are Cosmopolitan, as lessor, and defendant, as lessee. Therefore, we are persuaded that the agency recited in Veda Jakovljevich’s execution of the lease must be considered as that relationship which she thereby claimed existed between her as beneficiary and the lessor under the lease, the latter being very carefully described as the bank “as Trustee U/T No. 4450.” Furthermore, the lease agreement does not mention the beneficiaries by name nor refer to them as beneficiaries of the trust, except in two instances. One such instance is in the execution clause to which we have just made reference. The other is in regard to the payment of rent, providing that it should be paid “to Lessor at the office of Stanley Jakovljevich.” (Emphasis supplied.) Thus, plaintiffs’ contention that their capacity as lessors was evidenced by the fact that defendant attorned to them through his payment of rent, is without merit since they were expressly designated in the lease as agents for the collection of rent on behalf of the lessor. We conclude that this lease agreement is a contract between two parties, the lessor, Cosmopolitan, and the lessee, defendant.

The basic issue whether a beneficiary can maintain an action for rent is therefore limited in the instant case to the situation where the beneficiary is not a party to the lease. It may well be that when a landlord-tenant relationship is established between a beneficiary as landlord and a tenant, the beneficiary may then sue for unpaid rent, since this result would be “more in line with the principles of land trusts as established by the decisions of the Illinois Courts and, by implication, contrary to the OPA cases (Liberty Nat. Bank, supra) . . . .” Land Trusts, ed Henry W. Kenoe, Chicago Bar Association, 1967. Since, however, we have found that that situation does not exist in the case before us, we do not consider ourselves bound by the Illinois cases which have upheld the right of a beneficiary-lessor to maintain an action for rent. E. G., Bellows v. Ziv, 38 Ill App2d 342, 187 NE2d 265.

We conclude that the trustee bank, as lessor, is the only party entitled to bring an action for unpaid rent in this case.

Plaintiffs maintain that the letter dated April 16, 1965, written by plaintiffs’ attorney and accepted by plaintiffs in their own behalf and also by defendant, constituted a valid contract establishing the plaintiffs’ right to sue defendant for rent. This document, however, was not intended to supplant the lease agreement, but merely to modify one of its terms. In so doing, it specifically referred to the trustee bank as a party to the lease, and said nothing from which it could reasonably be understood that the letter constituted a novation, which, in any event, would have required the consent of the original lessor. Becker v. Dvorson, 28 Ill App2d 174, 171 NE2d 86; Karraker v. Eddleman, 101 Ill App 23. Nor has it been established that defendant, in accepting the modification, regarded the Jakovljevich.es as anything but continuing agents for the original lessor. In our opinion, the letter agreement of April 16, 1965, did not restructure the composition of the parties to the lease.

Defendant also raises the issue that because the trust agreement referred to an assignment of plaintiffs’ beneficial interest to the bank, plaintiffs had assigned to the bank, as pledgee, any right they might have had to maintain an action for rent. While we think that the instrument is not clear as to the significance of this reference, it is of no consequence to our decision, as the proper plaintiff in this action is determined by the lease and not by the trust agreement.

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

Affirmed.

DRUCKER, P. J. and STAMOS, J., concur.

       The trust agreement contains many provisions, most of which have been customarily employed for many decades in the creation of an Illinois land trust. The parties to this appeal have directed our attention to the following parts of the agreement:

        The following named persons shall be entitled to the earnings, avails and proceeds of said real estate according to the respective interests herein set forth, to-wit:
      STANIMIR JAKOVLJEVICH and VEDA JAKOVLJEVICH, his wife, not as Tenants in Common but as Joint Tenants, with right of survivorship. Subject to an outstanding Assignment of Beneficial interest to the COSMOPOLITAN NATIONAL BANK OF CHICAGO.
      RESULTING FROM ASSIGNMENTS.
      IT IS UNDERSTOOD AND AGREED between the parties hereto, and by any person or persons who may become entitled to any interest under this trust, that the interest of any beneficiary hereunder shall consist solely of a power of direction to deal with the title to said real estate and to manage and control said real estate as hereinafter provided, and the right to receive the proceeds from rentals and from mortgages, sales or other disposition of said real estate, and that such right in the avails of said real estate shall be deemed to be personal property, and may be assigned and transferred as such; that in case of the death of any beneficiary hereunder during the existence of this trust, his or her right and interest hereunder shall, except as herein otherwise specifically provided, pass to his or her executor or administrator, and not to his or her heirs at law; and that no beneficiary now has, and that no beneficiary hereunder at any time shall have any right, title or interest in or to any portion of said real estate as such, either legal or equitable, but only an interest in the earnings, avails and proceeds as aforesaid. . . .
      The beneficiary or beneficiaries hereunder shall in his, her or their own right have the full management of said property and control of the selling, renting and handling thereof, and any beneficiary or his or her agent shall collect and handle the rents, earnings, avails and proceeds thereof, and said Trustee shall have no duty in respect to the management or control of said property or in respect to the payment of taxes or assessments, or in respect to insurance, litigation or otherwise, except on written direction as hereinabove provided, and after the payment to it all moneys necessary to carry out said instructions. No beneficiary hereunder shall have any authority to contract for or in the name of the Trustee or to hind the Trustee personally.
      It is understood and agreed by the parties hereto ánd by any person who may hereafter become a party hereto, or a beneficiary hereunder, that said Cosmopolitan National Bank of Chicago will (subject to the rights of the Trustee as aforesaid) deal with said property only when authorized to do so in writing and that it will (notwithstanding any change in the beneficiary or beneficiaries hereunder, unless otherwise directed in writing by the beneficiaries) on the written direction of
      Stanimir Jakovljevich, Veda Jakovljevich, and the Cosmopolitan National Bank of Chicago.
      Resulting from Assignments.

       Continuing, the article states at page 26:
      If a lease is made by and in the name of the trustee as lessor, then the trustee is the proper party to sue for the rent.

       The letter states in pertinent part:

        “2. That said store lease and rider attached thereto is modified to the extent that you are under no obligation to make any repairs whatsoever on the premises as set forth in said lease in consideration for which you will pay the rental of Three Hundred Dollars ($300.00) per month commencing January 1, 1965, to the balance of the time under the lease.”

       See the first and last paragraphs of the trust agreement quoted in footnote 1, above.