author: CRAVEN, P. J.,

text:
    Vermilion County Production Credit Association, Plaintiff-Appellee, v. Harold Izzard, Howard Stotler, and Kenneth Stotler, Doing Business as Fithian Grain Company, Defendants-Appellants.
    Gen. No. 11,043.
    Fourth District.
    July 15,1969.

      Thomas, Mulliken & Mamer, of Champaign (Roger E. Haughey, of counsel), for appellants.
    John T. Allen, of Danville, for appellee.
   CRAVEN, P. J.,

delivered the opinion of the court.

This appeal arises from a judgment on the pleadings entered in favor of plaintiff, holder of a security agreement on corn, against the operators of a grain elevator, who had purchased the corn from the farmer who had given the security agreement and financing statement to plaintiff.

David J. Smith, tenant on a farm near Fithian, Illinois, borrowed $14,710 from plaintiff and executed a security agreement and financing statement as security for the loan. The security agreement and financing statement covered a certain corn crop of Smith’s and other personal property. The financing statement was filed in the recorder’s office of Vermilion County.

Thereafter defendants-elevator operators, on three separate dates, purchased all of this corn from Smith at a net price of $12,828.26 after deducting shelling and hauling expenses. Of such proceeds defendants credited Smith with $10,403.26 on notes and an open account due by him to them and paid him the cash balance of $2,425.

Plaintiff brought this action as lender against defendants to recover the proceeds of the corn. Defendants’ motion to dismiss the complaint was denied. Defendants answered and plaintiff filed separate motions to strike portions of the answer and for judgment on the pleadings. The trial court granted judgment on the pleadings and entered judgment for plaintiff for $12,828.26 and costs. Post-trial motion was denied.

The pleadings show that at no time after taking the security agreement did the plaintiff give specific affirmative consent to Smith’s selling the corn or release its financing statement.

The issues raised here, then, are (1) whether the security agreement and financing statement gave the farmer-borrower authority to sell the corn free of the lien of the security agreement by reason of the clauses which provided that it included products and proceeds of the crop, and (2) whether plaintiff waived its lien or gave the farmer authority to sell free of the lien by reason of a course of dealing between plaintiff and defendants or as a result of a custom or usage of trade in the area.

The financing statement contained a clause as follows:

“Products and proceeds of collateral, and after acquired property and natural increase are covered.”

The security agreement had no direct language either permitting or prohibiting sale, but did contain the following :

“4. After-acquired Property. All property similar to that described under Items 2 and 3 above which may at any time hereafter be acquired by Debtor (s) or any of them, including, but not limited to, all offspring of livestock, additions to and replacements of livestock and poultry, replacements of and additions to equipment, machinery, fixtures, and other personal property above described, wool to be clipped from sheep, and all harvested crops, feed, and seed.
“5. Products and Proceeds. All products into which the goods and property described or referred to under Items 1 to 4, inclusive, or any part thereof, have been or shall at any time hereafter be manufactured, processed, or assembled; and all cash and non-cash proceeds from the sale, exchange, collection, or other disposition of any of said goods and property, and all accounts receivable resulting from the sale or other disposition of any of said goods or property.”

Appellants contend that the above language of the financing statement and of the security agreement clearly acknowledge that the crop as the original collateral may be sold or otherwise disposed of without any requirement of approval. They insist that reading the agreement as a whole suggests full utilization of the so-called “floating or shifting” lien authorized by the Commercial Code under which new collateral is added under an after-acquired property clause and other collateral is eliminated through sale or other disposition.

A review of the law pertaining to secured transactions prior to enactment of the Uniform Commercial Code in many states of this country and in Illinois (111 Rev Stats 1967, c 26, § 9-101, et seq.), shows that while previously many statutes had been enacted to give relief to merchants in connection with business financing, virtually none of these were applicable to farm credit or loans on farm products or equipment. Certain changes wrought by the Uniform Commercial Code in Article 9, when applied to the farmer, would seem aimed to eliminate many archaic limitations on farm credit. (Coates, UCC Brief No. 6: Financing the Farmer, The Practical Lawyer (Yol 13-No. 5), May 1967, p 59.)

The Uniform Commercial Code, as enacted in Illinois, however, recognizes that the rights of the secured lender depend upon the type of collateral taken as security and not so much upon the form of the transaction. Thus, section 9-307 (1) of the Code excepts a person buying farm products from a person engaged in farming operations from its liberalization provision that a buyer in the ordinary course of business takes free of a security interest even though the security interest is perfected and even though the buyer knows of its existence. The Code, therefore, must be interpreted reasonably as to all its language, and its limitations and requirements must be followed by more valid tests than to judge it entirely as a liberalization of credit or secured requirements.

Appellants also contend that under section 9-306 of the Code which provides:

“. . . a security interest continues in collateral notwithstanding sale, exchange or other disposition thereof by the debtor unless his action was authorized by the secured party in the security agreement or otherwise, . . . .” (Sec 9-306(2).) (Emphasis added.)

waiver or estoppel by implied consent due to the language used which includes “proceeds” is clearly a bar to the continuance of the security interest under the meaning of the words “or otherwise.”

It is conceded by the parties that no express consent to sale of the corn to defendants by plaintiff was ever accorded. We believe it equally clear that a reasonable interpretation of the “After-acquired Property” clause in the Code and of the use of “proceeds” in the financing statement and the language above of the security agreement cannot extend to imply a consent by the holder of the security interest that the subject matter, i. e., corn crop, of that security agreement may be sold by the farmer. That provision can be interpreted reasonably only to mean that should a sale, exchange or other disposition occur, the proceeds or products resulting also would be covered by the security agreement. It is a clause inserted to protect the security holder as to third parties — not one of permission or consent to the borrower. Under such circumstances we deem it unconscionable to interpret a protective clause as permissive or as an estoppel or waiver. To protect himself against insolvency or bankruptcy of the farmer, the creditor must comply with the requirements of section 9-306 of the Uniform Commercial Code and add “proceeds” in his financing statement. The statute having thus forced him to include this language in his financing statement, it cannot be used to imply an estoppel or waiver of lien or a consent to sale on his part.

We find no provisions of the Uniform Commercial Code enacted in Illinois which displace the principles as known to the common law and equity. “Waiver” is the intentional abandonment or relinquishment of a known right. Certainly no such intent on the part of the lender is shown by the facts here. Nor has there been any act or conduct of the lender by executing the security agreement or financing statement which would amount to an estoppel. In fact, we deem it all to the contrary.

Hence, we cannot justify interpreting the security agreement or financing statement as implying a consent to sell free of the security interest or as a waiver or estoppel of the security interest.

As to the second issue of waiver or estoppel of the lender by a course of dealings between plaintiff and defendants, this appears as a more difficult problem. A case somewhat analogous is that of Clovis Nat. Bank v. Thomas, 77 NM 554, 425 P2d 726 (1967), involving a security interest in cattle. The security agreement had an express clause against selling without prior written consent of the secured party. The court there held that the lender-bank had followed a course of dealing with the debtor which permitted sale of the cattle and that this constituted a waiver of its security interest. There was a strong dissent to the majority opinion in that case. Since that decision the New Mexico legislature has amended its code to provide that a security interest in farm products and the proceeds thereof shall not be considered waived by any course of dealings between the parties or by any trade usage.

In enactment of the Uniform Commercial Code in Illinois, unlike in New Mexico, the Illinois legislature added section 9-306.01 (Ill Rev Stats 1967, c 26, § 9-306.01), which imposes criminal penalties and declares it unlawful for a debtor under the terms of a security agreement who has no right of sale or other disposition of the collateral, to sell or dispose of it and fail to pay the secured party the amount of the proceeds due under the security agreement. Under such a penal statute, we cannot hold that the course of dealings or usage of the trade as shown here by the pleadings could raise an estoppel or constitute a waiver by the plaintiff-lender of its rights under the security agreement and financing statement.

No course of dealings between the plaintiff-lender and the farmer-seller was shown here ever to have existed. What the lender may have done with defendants as to other borrowers would not establish a course of dealings between the security parties here involved. Likewise, neither a course of dealings nor a trade usage will be applied to contravene an established rule of law. Ozier v. Haines, 411 Ill 160, 103 NE2d 485 (1952), 21 Am Jur2d, Customs and Usages, § 16, at 691-692. Under the Uniform Commercial Code, a course of dealing between the parties or a trade usage, as therein defined, is used as a factor to determine the commercial meaning of the agreement which the parties made and not to displace or negate established rules of law. (See Uniform Code Comment, SHA, c 26, § 1-205, par 4, at 65-66).

Under the facts established by the pleadings in this case, no course of dealings or trade usage was shown, which was within the meaning of the Uniform Commercial Code, that would cause the plaintiff-lender here to waive or be estopped to assert its security interest in the crops purchased from Smith by defendants. Hence, plaintiff was entitled to recover from the defendants the amount of the crop proceeds. The trial court was correct, therefore, in its judgment.

Judgment affirmed.

SMITH and MILLS, JJ., concur.


source: Caselaw Access Project

author: CRAVEN, J.,

license: Public Domain

text:
    People of the State of Illinois, Plaintiff-Appellee, v. James Davenport, Jr., Defendant-Appellant.
    Gen. No. 11,056.
    Fourth District.
    July 15,1969.

      John Unger, of Danville, for appellant.
    John Morton Jones, State’s Attorney, of Danville, and Larry P. Carmer, Special Assistant State’s Attorney, for appellee.
   CRAVEN, J.,

delivered the opinion of the court.

On May 7, 1968, in a three-count indictment, the defendant was charged with attempted murder, aggravated battery and attempted armed robbery. On the same day a motion was filed by the state’s attorney pursuant to the provisions of § 702-7 of c 37, Ill Rev Stats 1967, for the purpose of prosecuting the defendant as an adult in the “General Division” of the Circuit Court. The defendant’s age was alleged to be sixteen years.

The public defender was appointed to represent the defendant. The defendant’s age was determined to be fifteen years and nine months. The record then indicates: “Motion by the St’s Atty for leave to prosecute as an adult. Objection by Mr. Unger. Sworn evidence heard. Defendant’s birthdate determined to be July 20,1952 upon inquiry by the Court. Motion allowed as tendered. Cause transferred to the General Division for further proceedings pursuant to statute. . . .” The defendant entered a plea of not guilty. In a jury trial he was found guilty on all three counts and was sentenced to the Illinois Youth Commission for a period of six to ten years. This appeal is from that proceeding.

It is urged that error intervened in the trial court proceeding in that: (1) There was a relinquishment of juvenile jurisdiction without taking evidence; (2) a challenge to the array for racial imbalance should have been allowed; (3) pretrial discovery of statements favorable to the defendant was improperly denied; (4) the court should have directed a verdict; and (5) the court erred in the giving and refusing of instructions. We shall examine the assigned errors in the order enumerated.

It is urged that the determination to “relinquish” jurisdiction of a minor by a court acting under § 702-7 of c 37, 111 Rev Stats 1967, is a judicial act and that there must be supporting evidentiary basis upon which the court can act. In this case the court ascertained the age of the defendant and then took judicial notice of other proceedings involving the defendant which were then pending in the Circuit Court of Vermilion County. The appellant seems to concede that under the cases cited by him no consent of a juvenile court is required before a minor may be prosecuted on a criminal charge. The cases cited relate to the predecessor of the present section 702-7. Those cases are: People v. Fitzgerald, 322 Ill 54, 152 NE 542 (1926); People v. Lattimore, 362 Ill 206, 199 NE 275 (1935); and People ex rel. Malec v. Lewis, 362 Ill 229,199 NE 276 (1935).

These cases were discussed in People v. Hester, 39 Ill2d 489, 237 NE2d 466 (1968). From our reading of the Hester case, we must conclude here that there was no error in the proceedings in the trial court involving the absence of objection being lodged by the juvenile court to subsequent prosecution of the defendant under the criminal laws. See People v. Eaton, 108 Ill App 2d 463, 247 NE2d 919 (4th Dist 1969) (opinion filed 5-22-69).

The second asserted error in this proceeding relates to the alleged racial imbalance of the jury. The record indicates that the defendant, a Negro, was tried by an all-white jury. The sole Negro on the jury panel was removed by the court for cause after he conceded that he had discussed the case with a police officer who was a neighbor and thereby had some familiarity with the instant proceeding.

It is settled beyond debate that a conviction cannot stand if based upon a verdict of a petit jury from which members of the Negro race were systematically excluded by reason of their race. Whitus v. State of Georgia, 385 US 545, 17 L Ed2d 599, 87 S Ct 643 (1967). In the face of an allegation of systematic exclusion the burden is upon the defendant to prove the existence of purposeful discrimination and once a primafacie case is established, then the burden shifts to the prosecution. In this case the only thing in the record relating to systematic exclusion of members of the Negro race is the assertion in the challenge to the array that members of the Negro race were systematically excluded. Appended to this is information as to the population composition of Vermilion County and the percentage of persons of the Negro race who live in that county.

In People v. Cross, 40 Ill2d 85, 237 NE2d 437, cert den, 393 US 221, 21 L Ed2d 393, 89 S Ct 468 (1968), the Illinois Supreme Court considered this specific issue as it related to this specific county. The Cross case is determinative of this issue. Here, as in Cross, there was no evidence as to the method by which the petit jurors were selected, and the allegation in the affidavit relating to the population of the county and its percentage of Negro residents was determined to be insufficient to make out a prima-facie case of systematic and deliberate exclusion of Negroes. The record in this case is less sufficient than the record indicated in Cross.

Prior to trial the defendant filed a motion for discovery. Among the many things requested, he sought a summary of all statements and information favorable to his innocence including inculpatory statements or confession of others and reports of investigators and lie-detector operators. This motion was heard after an answer and objections thereto were filed. The motion was taken under advisement on May 15,1968.

One of the statements involved, being a statement of a witness — Eonnie Love — was again demanded during his cross-examination at the time of trial. The witness’s statement was then made available to the defense counsel in the presence of the jury. The statement was used for purposes of cross-examination. In this state of the record we find no basis for examining the permissible scope of pretrial discovery as urged by the defendant. The issue here is not the desirability of the liberalization of discovery but rather whether the issue of failure to obtain pretrial discovery is preserved by this record so as to present an issue on appeal. We think it is not.

That which the defendant sought he ultimately obtained and used. That which he did not get at an earlier time could well have been delayed by reason of the motion having been taken under advisement. The record does not indicate an effort to get an earlier ruling on the motion nor does it indicate any substantial prejudice to the defendant by reason of not obtaining the statement of Love at an earlier date. As to the issue of pretrial discovery, see: People v. Tribbett, 90 Ill App 2d 296, 232 NE2d 523 (4th Dist 1967); People v. Endress, 106 Ill App2d 217, 245 NE2d 26 (4th Dist 1969).

The remaining issues relate to the refusal of the trial court to direct a verdict at the close of the People’s case for the asserted grounds that the People did not establish mental competency and further that the jury was improperly instructed on the issue of mental competency.

The People and the defendant agree on the general statement to the effect that the rule is well established that when the issue of mental competency has been raised the burden of proof is on the People, or as stated in People v. Gold, 38 Ill2d 510, 514 (232 NE2d 702, 705, cert den, 392 US 940, 20 L Ed2d 1400, 88 S Ct 2317 (1968)):

“This court has consistently held that once evidence is introduced which is sufficient to beget a reasonable doubt of sanity it becomes incumbent on the State to prove beyond a reasonable doubt that the accused had sufficient capacity at the time of the crime for its commission. (People v. Robinson, 22 Ill12d 162 [174 NE2d 820 (1961)] ; People v. Bender, 20 Ill2d 45 [169 NE2d 328 (I960)]; People v. Munroe, 15 Ill2d 91 [154 NE2d 225 (1958)] ; People v. Patlak, 363 Ill 40 [1 NE2d 228 (1936)]; People v. Krauser, 315 Ill 485 [146 NE 593 (1925)].)

In this case a witness, Geraldine Parker, testified for the People. This witness — fifteen years old— was an eighth-grade student. She testified that she did not know the defendant well but she did know him when she saw him. In response to further examination she used the expression “crazy” several times and did state, when pressed to be more specific as to her meaning of that term, that she did believe the defendant had a mental problem. Her testimony is all that is in the record upon which the defendant asserts error in denying the directed verdict and in refusal to give instructions on mental competency. We find no such error.

There must be some evidentiary basis sufficient to raise a question or to beget a reasonable doubt as to sanity as stated in Gold. We cannot say that this testimony of the witness, Geraldine Parker, is of sufficient quantity or quality to beget such a reasonable doubt. Notwithstanding the liberal rules which permit laymen to express nonexpert opinions on mental condition, certainly the expression of such an opinion must be preceded by some foundation showing that the nonexpert had an opportunity to observe and to formulate an opinion. See People v. Williams, 38 Ill2d 115, 230 NE2d 224 (1967).

The instructions that were refused on the issue of mental competency and presumption of sanity were properly refused. As succinctly stated in the Committee Comments, IPI — Criminal at 435:

“. . . if there is some evidence of insanity, the state must prove the defendant sane beyond a reasonable doubt; . . . .
“. . . the Illinois Supreme Court has long recognized that when some evidence of insanity ... is adduced, the jury should not be instructed on the presumption of the existence of the contrary state, i. e., sanity. (Citations omitted.) . . .”

See also People v. Haun, 71 Ill App2d 262, 217 NE2d 470 (4th Dist 1966).

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

Judgment affirmed.

TRAPP, P. J. and SMITH, J., concur.


author: CRAVEN, J., TRAPP, J.,

text:
    People of the State of Illinois, Plaintiff-Appellant, v. Larry Harper, Defendant-Appellee.
    Gen. No. 11,132.
    Fourth District.
    July 30,1969.
    TRAPP, P. J., dissenting.

      John Morton Jones, State’s Attorney of Vermilion County, of Danville (William J. Scott, Attorney General of State of Illinois, of Springfield, and Fred G. Leach, Assistant Attorney General, of counsel), for appellant.
    Unger and Stewart, of Danville (John Unger, Sr., of counsel), for appellee.
   CRAVEN, J.,

delivered the opinion of the court.

The defendant was indicted for the crime of rape. Prior to trial the defendant moved to suppress certain prosecution evidence relating to the use of a so-called “truth serum.” The circuit court ultimately entered an order suppressing the evidence and the State appealed directly to the Supreme Court. After briefs were filed the Supreme Court, on its own motion, transferred the appeal to this court for decision on the ground that the order suppressing the evidence was not a final judgment reviewable by the Supreme Court. People v. Lerch, 34 Ill2d 305, 215 NE2d 257 (1966). This court does have jurisdiction on appeal by virtue of Supreme Court Rule 604 (Ill Rev Stats 1967, c 110A, § 604).

The motion, answer and affidavits are summarized in the order of the trial court, and from these documents the following factual recitation seems to be uncontroverted:

One Carmen Goodwin was raped in her home in Georgetown, Illinois, on April 14, 1967. At the time of the assault and for a considerable period of time thereafter the victim maintained that she was unable to identify her assailant. The victim was living in a house owned by the parents of the defendant and he had formerly resided in the house. At the request of the sheriff of Vermilion County the victim and the defendant were examined by a “polygraph examiner” of the State Department of Public Safety, and that examiner expressed the opinion that such examination indicated that the victim was telling the truth when she stated she was unable to identify her assailant and that the defendant was telling the truth when he denied involvement in the offense. The polygraph examination was in April of 1967.

In January of 1968, the victim voluntarily submitted herself to a psychiatric examination by a Dr. Kiersch during which she was examined both under hypnosis and while under the influence of sodium amobarbital. The hypnosis examination was not productive of any information.

A one and one-half hour interview under the influence of the drug, given intravenously, resulted first in the victim’s assertion that she did not know who it was who raped her or who came into her room, and later the interviewer stated that she asserted that it was the defendant and his report further indicates that at one point she identified another as the one who perpetrated the assault. The psychiatrist expressed the opinion that the victim suffered from hysterical amnesia subsequent to the offense and that her behavior under the drug substantiated this. He further expressed the opinion that her recall as to the occurrence events under the drug was “at least 95 %” accurate and that this patient, “under Amytal, feels that she could see her attacker and could identify him as Larry Harper . . . .” The trial court ruled that the polygraph-examination results were inadmissible, and further held “That evidence of any facts or supposed facts which the said Carmen Goodwin may have learned solely as a result of hypnosis or the use of Amytal or other so-called ‘drug serum’ is inadmissible in evidence in this case and the same is ordered suppressed in the interest of justice.” This appeal relates solely to that portion of the order suppressing the evidence as to the drugs and no issue is submitted with reference to the polygraph examination. We affirm the action of the trial court.

In People v. Myers, 35 Ill2d 811, 220 NE2d 297 (1966), cert denied, 385 US 1019, 17 L Ed2d 557, 87 S Ct 752 (1967), the Supreme Court discussed the use of a drug, sodium pentothal, and the admissibility of the responses of the defendant to the psychiatrist while under the influence of that drug. In the course of that case the court held it was not error for the trial court to exclude testimony concerning the defendant’s responses while under the influence of the drug. The issue is discussed there in the context of impeachment or whether the psychiatrist can be permitted to testify to explain the use of the drug so as to give his opinion on the patient’s (defendant’s) mental condition. It seems to us that necessarily the Supreme Court made a judgment as to the purported accuracy or scientific acceptability of narcoanalysis and rejected it.

In Lindsey v. United States, 237 F2d 893, the prosecutrix in a statutory rape case was impeached by letters admitting that her accusations were false. In an effort to rehabilitate the witness the Government introduced a recording of her subsequent interview with a psychiatrist while she was under the influence of sodium pentothal. The Court of Appeals reversed, citing an article by two law-school and two medical-school professors (62 Yale LJ 315) which concluded that narcoanalysis is by no means an infallible tool nor should it be so regarded by psychiatrists. The tape recording of the narcoanalysis was held to be inadmissible. The court did not specifically pass upon the question of whether the psychiatrist could express his own opinion as to the truthfulness or accuracy of the victim’s testimony.

In Townsend v. Sain, 372 US 293, 9 L Ed2d 770, 83 S Ct 745 (1963), it was held that a confession obtained while under the influence of drugs was inadmissible. In 23 ALR2d 1310, the use of drugs in an effort to ascertain truth is equated with the use of lie-detector tests, and we are there told that no court has as yet recognized the admissibility of the results of “truth serum tests.” The reasons for denying admission may be said to vary but the results seldom do. Thus, in some cases admissibility seems to have been denied on the grounds of inadequate foundation or inadmissibility for want of proof of reliability (Orange v. Commonwealth, 191 Va 423, 61 SE2d 267 (1950); State v. Hudson (Mo), 289 SW 920 (1926)), or that the test results would be hearsay and self-serving declarations (see People v. McNichol, 100 Cal App2d 554, 224 P2d 21 (1950); People v. Cullen, 37 Cal2d 614, 234 P2d 1 (1951)). In Henderson v. State, 94 Okla Crim 45, 230 P2d 495, 23 ALR2d 1292 (1951), the court excluded evidence of the results of such tests on the grounds that such tests had not attained scientific recognition or dependability so as to justify their use in criminal proceedings. To the same effect, see Merritt v. Commonwealth (Ky), 386 SW2d 727; State v. Levitt, 36 NJ 266, 176 A2d 465; Jones on Evidence, 5th ed, § 435.

In People v. Jones, 42 Cal2d 219, 266 P2d 38, a psychiatrist’s testimony regarding results of an examination was held to be admissible. Within the context of that case the admissibility was for the purpose of determining whether the defendant was a sexual deviate. The court recognized the inadmissibility of statements of one under the influence of a truth drug where the statements were offered for the purpose of proving truth of the matter asserted. See also State v. White, 60 Wash2d 551, 374 P2d 942. A psychiatrist was permitted to testify to statements made while patient was under sodium amytal. Lemmon v. Denver & R. G. W. R. Co., 9 Utah2d 195, 341 P2d 215.

In this case the information elicited from the prosecutrix while under the influence of the so-called “truth drug” would clearly be offered to establish the truthfulness of the matter asserted. The People assert admissibility on the grounds that the prosecutrix should be allowed to explain the reason for her failure to initially identify her attacker and cite in support thereof People v. Izzo, 14 Ill2d 203, 151 NE2d 329, 89 ALR2d 187 (1958), cert denied, 362 US 403, 4 L Ed2d 864, 80 S Ct 812 (I960) (a case involving fear — not drugs), and further urge that the case of Harding v. Maryland, 5 Md App 230, 246 A2d 302 (1968) approved the use of hypnosis to “unlock” the memory of a prosecutrix in a rape case. We see no reason to equate examination under hypnosis and examination while under the influence of a drug having the effect of a so-called “truth serum” except to note that the scientific reliability of neither is sufficient to justify the use of test results of either in the serious business of criminal prosecution. Calling a drug “truth serum” does not make it so. Nothing has been cited to us nor has our research disclosed anything that persuades us that it is so.

The Circuit Court of Vermilion County is affirmed.

Judgment affirmed.

SMITH, J., concurs.

TRAPP, P. J., dissents.

TRAPP, J.,

dissenting:

I concur in the principal opinion upon the issue of inadmissibility of the “product” of the sodium amytal interview, but I cannot agree that the order of the trial court is appealable as an order suppressing evidence under the Supreme Court Rule 604. The trial court has not yet determined from evidence in the record what are the facts or supposed facts which Carmen Goodwin may have learned solely from the amytal interview, and upon the issues presented the order does not suppress testimony upon any specific matter of fact.

The State’s Attorney answers the motion for a “protective order” with the allegation that Goodwin can now identify the defendant. It is apparent that defendant’s counsel would insist that such testimony is solely the result of the amytal interview. It will then be necessary for the trial court to hear evidence and determine whether such testimony is subject to exclusion under the ruling announced.

Under the statutory motions to suppress a confession, c 38, § 114-11, or to suppress evidence illegally seized, c 38, § 114-12, the court hears evidence as to the manner of obtaining items of evidence and then enters an order stating that specific items of evidence are to be excluded. Upon review the issue is whether the court, upon the record, erred in admitting item A or in excluding item X. Here such steps are missing. As a result, the prosecution’s brief and argument is essentially a series of ques-particular fact. Neither counsel nor this court can now state what has been suppressed.

The defendant’s motion was for a “protective order.” The court’s ruling was responsive, but it was only advisory of prospective rulings upon the admissibility of evidence. It did not, in fact, suppress, i. e., determine that specific matters of testimony would be excluded under the stated rule of admissibility.


author: MR. PRESIDING JUSTICE DAVIS

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Ronald Bauer (Impleaded), Defendant-Appellant.
    Gen. No. 68-141.
    Second District.
    July 24,1969.

      John R. Snively, of Rockford, for appellant.
    Philip G. Reinhard, State’s Attorney, of Rockford, and John C. Tower, Assistant State’s Attorney, of Rockford, for appellee.
   MR. PRESIDING JUSTICE DAVIS

delivered the opinion of the court.

The defendant appealed from a judgment of conviction of aggravated kidnapping entered upon his plea of guilty, and sentence of not less than ten nor more than twenty-five years in the penitentiary. Together with three other persons, he had been indicted in two counts for the offenses of rape and aggravated kidnapping. On arraignment, pleas of not guilty were entered to both counts; thereafter, the plea of not guilty was withdrawn to the second count of the indictment which charged aggravated kidnapping, and a plea of guilty was entered. The first count charging rape was subsequently nolle prossed.

The defendant contends that the indictment does not state an offense; that the trial court accepted the plea of guilty without adequately explaining to him the nature of the charges and the possible consequences of his plea of guilty; that the procedures followed at the hearings on probation and in aggravation and mitigation were improper; that in giving identical sentences to all of the defendants, the court did not exercise discretion; and that the punishment was excessive.

The second count of the indictment charged aggravated kidnapping in the language of section 10-2 (a) (3) of the Criminal Code. (Ill Rev Stats 1967, c 38, par 10-2 (a) (3).) The defendant contends that this count did not set forth the nature of the force or the place from and to which the victim was carried, nor did it define the element of “another felony” — which in this case was the crime of rape — , and that, therefore, the indictment was fatally defective. We find this contention without merit.

An indictment, which charges an offense in the terms of the statute, is sufficient when the words of the statute so far particularize the offense that by their use alone an accused is apprised with reasonable certainty of the precise offense with which he is charged. An indictment must adequately inform the defendant of the nature and elements of the charge made against him. The indictment here meets this test. People v. Ross, 41 Ill2d 445, 448, 449, 244 NE2d 608 (1968); People v. Patrick, 38 Ill2d 255, 258, 230 NE2d 843 (1967).

The fact that the elements of the crime of rape were not set forth in detail in the second count did not render the indictment insufficient. We find no requirement in law that the elements of “another felony” be defined in an indictment charging aggravated kidnapping; and, even if there were such a requirement, it was adequately satisfied by Count I of the indictment, which set forth the elements of the offense of rape in the words of the statute defining that offense.

The defendant here does not contend that he did not understand the charge to which he pleaded guilty, but rather, takes the position that the court erred in not more fully explaining to him the offense charged and the possible consequences of a guilty plea. The same issue of inadequate admonishment was brought before this court by a codefendant, -and we there found, on the same record which is now before us, that the co-defendant was adequately admonished as to the consequences of a guilty plea, and that the court’s explanation of the nature of the charges and the possible penalties which might be imposed, was sufficient. For the reasons expressed in People v. Carter, 107 Ill App2d 474, 477, 478, 246 NE2d 320 (1969), we hold the trial court committed no reversible error in its admonishment to the defendant.

As in People v. Carter, supra, it is here argued that the court made its decision to deny probation partially on the basis of prior arrests rather than upon convictions, and that the court was thereby influenced in determining the sentence. On the facts of the record before us, we find this contention without basis and adopt the language and reasoning of People v. Carter, supra, 478 and 479, with reference to this issue.

The defendant also contends that a prior juvenile commitment was improperly considered at the hearings on probation and in aggravation and mitigation. We agree that, generally, this type of evidence may not properly be considered at such hearings. People v. Crable, 80 Ill App2d 243, 250, 225 NE2d 76 (1967). However, section 2-9(2) of the Juvenile Court Act (Ill Rev Stats 1967, c 37, par 702-(9) (2)) excepts from the general rule any one who has been adjudicated to be a delinquent minor under section 2-2 of the Act (Ill Rev Stats 1967, c 37, par 702-2)), and who is subsequently convicted of a crime in any court, and permits the court in which the conviction has been entered to have access to such records in connection with hearings on probation and in aggravation and mitigation. In this case, section 2-2 was not urged as a justification for the reference to the prior juvenile commitment contained in the probation officer’s report. However, the juvenile records were not before the court, and the record here shows that the trial court placed no reliance on such commitment in denying probation or in passing sentence. Thus, this case is unlike Crable.

The only prior record of the defendant which appears in the testimony at such hearings was that he was on probation for armed robbery. Under these circumstances, the inclusion of a juvenile commitment in the probation officer’s report, which report was in the possession of the court, is not deemed reversible error.

The remaining contentions of error with reference to sentencing are not substantial. The record does not indicate that the trial court failed to exercise discretion in sentencing each defendant to a similar term, or that the sentence was manifestly excessive. We adopt the language and reasoning of People v. Carter, supra, 479, on these issues.

Accordingly, the judgment of the trial court is affirmed.

Judgment affirmed.

ABRAHAMSON and SEIDENFELD, JJ., concur.


author: PRESIDING JUSTICE MORAN

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Phillip Thome, Defendant-Appellant.
    Gen. No. 68-113.
    Second District.
    July 28,1969.

      Michael F. O’Brien, of St. Charles, for appellant.
    William Ketcham, State’s Attorney of Kane County, of Elgin, and W. Ben Morgan, Assistant State’s Attorney, for appellee.
   PRESIDING JUSTICE MORAN

delivered the opinion of the court.

The defendant appeals from a jury’s verdict finding him guilty of aggravated battery and the court’s order sentencing him to the penitentiary for a period of from two to ten years.

As grounds for reversal he claims (1) that the evidence was insufficient to prove him guilty beyond a reasonable doubt, (2) that the trial court admitted hearsay and prejudicial testimony, (3) that the admission of other wrongdoing by the defendant was prejudicial, (4) that the trial counsel was incompetent and (5) that the failure of the record to affirmatively show that the defendant waived transcription of the voir dire examination constituted error.

The indictment charged that the defendant committed the offense of aggravated battery against Mary Thome, the complaining witness and estranged wife of the defendant. On direct examination, she testified that during the early morning hours of November 11, 1967, the defendant dragged her to a barn to the rear of the home in which she was residing with her six children. Once inside the barn he made her remove all of her clothing and then tied her hands. He then forced her to commit unnatural sex acts upon him at different times, beat her with a stick, stabbed her in the stomach with his pocket knife, stuck her tongue with the knife, pushed the blade of the knife under her fingernails and strung her up so that she was actually swinging from a rafter by means of a rope which was tied to the rope around her hands.

Following this, she was allowed to return to the house where the defendant stated that the beating had been given to her because she had reported him to the police in September for another occasion when he beat her and which ultimately resulted in his conviction and sentencing. She further testified that the November incident was not reported to the police until on or shortly before December 16, 1967, when the defendant was arrested. She claimed, at the time of trial, that she did not report the incident in question to the police because her husband had threatened her with further abuse, but the reason the incident was finally reported was that another assault and beating was made upon her by the defendant on or about December 16,1967.

On cross-examination by the defendant’s counsel, she was questioned about another beating in September, prior to the incident in question. She also was cross-examined and testified as to the beatings received in September, November and December of 1967. Although the State offerred no medical testimony concerning treatment, as corroboration for her injuries, it did offer testimony of the eleven-year-old daughter of the defendant and a next door neighbor as corroborative proof of the injuries received on the night of November 11,1967.

The defendant categorically denied that any beating, assault or any form of attack took place upon his wife on November 11,1967. In explanation of his wife’s condition and corroborated injuries, he testified that at his daughter’s birthday party on November 3, 1967, his wife had been injured when attempting to corral a horse which had broken loose on the farm.

The defendant first raises the issue that the evidence was not sufficient to remove all reasonable doubt of his guilt. Counsel for the defendant urges this Court to apply a reasonable doubt standard equatable to that of a rape case, particularly, holding the State to an “extraordinarily high standard of care in examining the evidence.” For this proposition the defendant cites the case of People v. Kazmierczyk, 357 Ill 592, 192 NE 657 (1934). The Court, in that case, was faced with the peculiar situation of most rape cases where there was little if any corroborative proof. The complaining witness made an accusation and the defendant denied same. The Court, at page 598, in considering this situation, had this to say:

“This court has repeatedly held that where a conviction of rape depends upon the testimony of the prosecuting witness and the defendant denies the charge, the evidence of the prosecuting witness should be corroborated by some other evidence, fact or circumstance in the case. (Citation omitted.) It is our duty to carefully review the evidence in a criminal case, and if it is not sufficient to remove all reasonable doubt of the defendant’s guilt and to create an abiding conviction that he is guilty the conviction will be reversed.”

We do not feel that the Court has changed the reasonable doubt standard and applied any new or extraordinarily high standard of proof. It has merely stated that an allegation without corroboration will not suffice to fulfill the reasonable doubt standard when the defendant makes a categorical denial of the charge. In the present case there is ample corroboration to support the verdict. In the first instance, we have the physical scarring of the complaining witness as well as the cuts, bruises and abrasions which were seen shortly after this incident by two witnesses. This corroborative evidence and testimony clearly distinguishes this incident from the rape situation where there is no visible physical mistreatment available for corroboration.

It is true that the testimony and evidence should be subject to close scrutiny; however, we do not see in this case, and particularly in the suggested areas of inconsistency in the testimony of the prosecuting witness, how the defendant may state that his wife’s entire testimony should be disregarded because of alleged inconsistencies as seen by defendant. The defendant cites People v. Fitzgibbons, 343 Ill 69, 72, 174 NE 848 (1931) for the proposition that . . where evidence is offered substantially impeaching the truth of her statements and the defendant denies the crime her evidence should be corroborated.” This does not have application to the facts of this case since we find no substantially impeaching evidence as to the testimony of the prosecuting witness. At best, there may have been some minor discrepancy in the testimony of the prosecuting witness and the corroborative witnesses; however, as the State pointed out in its brief in citing the case of People v. Cooper, 69 Ill App2d 18, 21, 216 NE2d 168 (1966), minor discrepancies and inconsistencies in testimony go only to the weight to be given to the testimony. Moreover, we do not feel that we need meet the problem or situation as raised in the case of People v. Kazmierczyk, supra, for the present case is not one of a prosecuting witness’s testimony standing alone against the categorical denial of the defendant. Rather, there is ample corroborative proof to substantiate the testimony of the prosecuting witness and to meet the reasonable doubt standard imposed upon the State.

The defendant next suggests that the trial court erred in allowing hearsay testimony from the two corroborating witnesses, namely, the defendant’s eleven-year-old daughter and a neighbor woman. Defendant takes particular issue with the fact that the daughter of the parties testified as to the events which took place on the evening in question when she had no immediate knowledge of it and could not remember the exact date when the incident occurred. We have carefully reviewed the record of testimony of the daughter. Although the defendant urges that there was reversible hearsay testimony presented by this witness, we are unable to find any objection by the defense counsel during the trial, nor are we able to find any hearsay testimony elicited by the prosecution which would be the foundation for reversal. The only comment by the defendant’s daughter referring to the events of the evening in question, made outside of her own knowledge in reply to a query by the State, was upon request of the defense counsel. The State asked the witness when she saw the injuries on her mother, the colloquy between the parties being as follows:

Q. “What kind of inj uries ?”
A. “After that on December somewhere, after I came home from my girl friend’s she had cuts, great big cuts on her stomach and back.”
Q. “Cuts on her stomach and back. This was after your birthday?”
Mr. Galvin: “Now, when was it ?”
Mr. Parker: “I am going to ask her.”
The Witness: “That was in December when he hung her in the barn.”
Mr. Parker: “You didn’t see him do this, did you?”
The Witness: “No.”

This Court feels that the testimony given by the young daughter of the defendant was not prejudicial hearsay and further points out that the clarification made by the State to emphasize to the court and jury that the witness did not actually see her mother hanging in the barn, certainly eliminates any question of reversible error on this point.

Relative to the defendant’s position that the eleven-year-old witness could not set forth the exact date, we would point out that her testimony adequately supports the position that the incident referred to and subject of the present trial, took place after her birthday on November 3, 1967, and before Christmas of the same year. Although the question was put to her by both the State and the defendant on numerous occasions, requesting that she particularize the date of this occurrence, she stated that she was not able to do this and, as she stated, the event was “up towards Christmas time.” We feel that the objection raised goes only to the weight to be given this witness’s testimony and certainly does not require reversal based upon her inability to specify the exact date of the incident.

It is next suggested that there was prejudicial error in the admission of other wrongdoing by the defendant. The defendant specifically contends that the testimony given during the trial concerning the assaults made by the defendant upon his wife in September and December was wholly improper and was independent and disconnected from the event of November 11, 1967. It should be pointed out that defendant has admitted that during the trial of the case, the other events referred to were brought out, not merely by the prosecution, but also by the defendant. In those instances, where the two other events were referred to by the prosecuting attorney, the defense counsel failed to make objection thereto. The defendant nonetheless raises the insertion of these other events as prejudicial error. He cites the case of People v. Weinstein, 35 Ill2d 467, 471, 220 NE2d 432 (1968) as his authority for raising this issue, in its first instance, in this Court. The case provides that even though defense counsel failed to object in certain instances, if the error in question deprived an accused of his constitutional rights, the reviewing court would nonetheless consider the issue.

During the trial of the present case, the fact of other assaults which took place in September and December was actually raised by the defendant on cross-examination of the complaining witness. The issue in the present case is not merely one where the defendant fails to object but rather one where the defendant raises the issue originally and then objects because it is raised. Therefore, defendant’s position is not well taken by this Court, but because of the possible constitutional issue which could be raised, we will nonetheless reply to it. People v. McKinstray, 30 Ill2d 611, 615-616, 198 NE2d 829 (1964).

In the case of People v. Lehman, 5 I112d 337, 342-343, 125 NE2d 506 (1955) the Court set out the following rule concerning the introduction of evidence of the commission of other crimes:

“The law distrusts the inference that because a man has committed other crimes he is more likely to have committed the current crime. And so, as a matter of policy, where the testimony has no value beyond that inference, it is excluded. But where the evidence is independently relevant it is admissible as, for example, where it shows motive or intent, identity, absence of mistake or accident, or the existence of a common scheme or design.”

We feel that the evidence of the first assault which occurred September, 1967 is amply supported by the above rule as it clearly shows the motive for the defendant’s attack upon his wife on November 11, 1967. In the record of the trial, and particularly the testimony given by the prosecuting witness, she testified the defendant told her that the events of September were the cause for her beating in November. As an additional reason to those already stated, the introduction of the incident which took place in December of 1967 may be supported from the standpoint that it also included those “peculiar and distinctive features common” to the assault which took place on the evening of November 11, 1967. People v. Lehman, supra, 343. We, therefore, do not feel there is reversible error to be found in the unobjected introduction of the prior or subsequent incidents and assaults.

The defendant was represented by a court appointed public defender. The defendant now raises the issue that he was deprived of his constitutional rights because his court appointed attorney incompetently and ineffectually conducted his defense during the course of the trial. He cites People v. Gardiner, 303 111 204, 206-207,135 NE 422 (1922), which holds that where a record of proceedings discloses a great deal of irrelevant evidence and improper argument had been admitted to the record without objection, counsel who tried the case may be presumed to be unfamiliar with the rules of evidence or the rules of criminal practice, and that in such instance, if the prosecuting attorney takes advantage of the situation knowing that the defendant is poorly represented, then error may be claimed. As defendant states in his brief, the case provides a dual test to be applied in order to determine whether the competency of counsel has affected the accused’s constitutional rights. First, if the defendant’s guilt is reasonably supported by the evidence, then the mere fact that he is poorly defended will not justify reversal. Second, where the evidence is close and it is clear that the prosecuting attorney has taken advantage of the fact that the defendant was poorly represented, the court will rule that the defendant’s constitutional rights have not been sustained.

In People v. Odom, 71 Ill App2d 480, 487, 218 NE2d 116 (1966), a case specifically viewing the question of competency of court appointed counsel, it is stated that a public defender is expected to be zealous in defending the rights of those he is assigned to defend and further adds that “the aid of counsel is not satisfied by mere formality of appointment of an attorney by the court but requires effective representation throughout all stages of the trial.” This latter case emphasizes that the law anticipates a fair representation of the defendent by his court appointed attorney and that when the representation reaches such a “low caliber” as to deprive the defendant of a fair trial then his constitutional right of due process is violated.

We have carefully reviewed the record of the lower court. Although we may not agree with the particular tactical defense as presented by the counsel, we do not feel that the record is replete with errors or that the defense, as presented, was of such a “low caliber” to deprive the defendant of his constitutional rights of due process. The question of a poor defense at the trial level is one of degrees and therefore it is open to varying opinion as to what is good, what is bad, what is adequate and what is inadequate. The cases cited by the defendant are clear issues of gross inadequacy on the part of the defendant’s trial attorney. The present case does not evidence such gross inadequacy. Therefore, we cannot agree with defendant that he was inadequately defended at the time of the trial.

Defendant urges that his rights were denied when the voir dire examination was not transcribed. Particularly, it is emphasized that the record does not affirmatively indicate that the defendant waived the transcription of voir dire examination. He has failed to cite any authority requiring either that the record affirmatively indicate waiver by the defendant of transcription of voir dire examination or that the failure to transcribe voir dire examination has caused prejudicial error. As this Court knows of no such requirement under the existing law it finds no merit in this contention.

This Court, finding no reversible error, does hereby affirm the judgment of the lower court.

Judgment affirmed.

ABRAHAMSON and SEIDENFELD, JJ., concur.


text:
    People of the State of Illinois, Plaintiff-Appellee, v. Marvin Earl Miller, Defendant-Appellant.
    Gen. No. 11,072. (Abstract of Decision.)
    Fourth District.
    July 15,1969.
    Norbert J. Goetten, of Jerseyville, for appellant; Alvin H. Petitt, State’s Attorney of Jersey County, of Jerseyville, for appellee.
   Opinion by PRESIDING JUSTICE TRAPP. Not to be published in full.


author: MR. JUSTICE ABRAHAMSON

text:
    Henry J. Ehard and Jean Ehard, His Wife, PlaintiffsAppellees, v. Pistakee Builders, Inc., a Delaware Corporation, Defendant-Appellant.
    Gen. No. 68-165.
    Second District.
    July 28,1969.

      Franz & Franz, and Perry L. Weed, of Crystal Lake, for appellant.
    Stephen R. Yost, Henley & Yost, of Cary, for appellees.
   MR. JUSTICE ABRAHAMSON

delivered the opinion of the court.

On March 6, 1967, the plaintiffs brought suit against the defendant in the Circuit Court of McHenry County for an alleged breach of a written contract executed by them on May 10, 1965. Paragraph one of the complaint alleged that by the terms of the contract the defendant agreed to “furnish” a subdivided lot and “all the materials and perform all the labor necessary for the complete construction of a Park Regent Model Home ... in a substantial and workmanlike manner . . . .” The complaint further alleged that the defendant, in disregard of the contract, furnished “defective and unsuitable work, labor and materials . . .” in various particulars and asked judgment in the amount of $4,500. The defendant’s answer admitted the allegations of paragraph one of the complaint, denied the allegations that the work was improperly performed and, as an affirmative defense, raised a document signed by the plaintiffs on August 28, 1965, wherein it is stated that the plaintiffs had inspected the premises and “find it fully completed in a first class workmanship-like manner.”

The written contract does not contain the express provision that the construction would be done in “a substantial and workmanlike manner” as alleged in the complaint but does state that it included “. . . all labor, material and services of every kind necessary for the proper performance of the work in accordance with the plans and specifications. . . .” The contract also provided that the construction would be completed by August 15, 1965, and that the plaintiffs would not be entitled to possession of the home until they indicated “acceptance of the work by the execution of an appropriate receipt” and complete payment.

The matter proceeded to trial, with a jury waived. Henry J. Ehard testified that construction commenced in June, 1965, and that he visited the site weekly thereafter. The original plans specified that the heating would be forced warm air “. . . of sufficient capacity to heat (the) home” but the parties subsequently agreed to use a hot water system in place of hot air. In late August, Ehard went to the home with a salesman employed by the defendant and advised him that it was necessary that he obtain possession immediately although construction was not completed. Although, Ehard wanted to hold back $1,500 from the purchase price to insure completion, it was agreed that he would release all of the funds and that the defendant would complete the construction and repair any defects. Accordingly, on August 28, Ehard signed a direction to his mortgage lender to disburse the balance of the loan proceeds to the defendant. That direction was in a form apparently prepared by the defendant and included the following:

“This is to certify that we have inspected the above-captioned building and find it fully completed in a first class workmanship-like manner, everything is in perfect working order and all work and materials are acceptable.
“We herewith accept the above building and authorize you to make complete disbursement to the builder from our loan proceeds.
“We understand labor and materials are guaranteed only for a period of one year (1 year) from this date; . . . .”

Ehard testified that he signed the direction with the verbal agreement with the defendant that all defects would be repaired. David Ladd, the secretary of Pistakee Builders testified that although he was not personally present at the conversation on August 28, such an arrangement was not unusual.

In November, 1965, Ehard first discovered that he could not adequately heat the house, that some rooms were too cold and others too hot and he complained to the defendant. Since the heating subcontractor who had installed the system was out of business, the defendant directed James Althoff, a heating subcontractor, to inspect the system and make all necessary corrections. Althoff found that the boiler was of insufficient size and on December 5, 1965, installed a new, larger boiler, additional radiators and three zone valves. Ehard was still dissatisfied and in a conversation with Althoff lost his temper and threw a pencil and pad at a wall. Althoff returned in the spring of 1966 and added more radiation pipes along the baseboard to transmit the hot water throughout the home. Ehard and his wife testified that despite these additions the heating was still defective, some rooms were much colder than others, and a cold area existed in the center of the recreation room. Both Ladd and Althoff returned to the home but advised Ehard that nothing further could be done to balance the heat distribution until the following winter.

In October, 1966, Ehard employed C. E. Ellison to inspect the heating system and make the necessary corrections to adequately heat the home. Ellison made a chart of the home, computed the necessary BTUs to heat each room and installed an additional 55 feet of baseboard radiation pipe, an increase of almost 50% of the pipe previously installed. Ehard paid Ellison’s bill in the amount of $674.48 and testified that the home was properly heated thereafter.

The presiding magistrate at the trial prepared and filed a memorandum opinion on May 21, 1968, that found that the plaintiffs had not waived their rights to have any defects repaired by their direction of August 28, 1965; that the heating system as installed by the defendant was in fact defective; that the defendant had the obligation to repair the defects and failed to do so; and that as a result the plaintiffs were damaged in the amount of $693.11, being the bill paid to Ellison and an additional $18.63 for some other expenditures by them. The memorandum also added that the action was one brought for “breach of implied warranty of fitness.” Judgment was entered in favor of the plaintiffs in the amount of $693.11 on June 21, 1968, and after post-trial motions were denied this appeal was filed.

The defendant contends that (1) the contract contained no express warranties in regard to the construction of the home and that Illinois does not recognize the existence of implied warranties in real estate sales contracts; (2) the plaintiffs were estopped from claiming any defects in the construction of the home by reason of their execution of the direction to the mortgage lender on August 28,1965, and the terms of the contract; (3) the plaintiffs themselves prevented the completion of the contract by the defendant; (4) the determination of the trial court that the heating system was defective was against the manifest weight of the evidence; and (5) the trial court erroneously excluded evidence of an accord and satisfaction between the parties.

An exception to the general rule of caveat emptor in the sale of real estate has gained recognition in a number of jurisdictions in cases of new construction. In those jurisdictions, the courts have found an implied warranty by the builder-vendor that the house will be constructed in a substantial or workmanlike manner or will be habitable when completed. A useful discussion of the doctrine and review of the decisions is contained in 25 ALR3d 383. We agree with the defendant that some clarification on the point is needed in Illinois. In Week v. A:M Sunrise Const. Co., 36 Ill App2d 383, 184 NE2d 728, the court found an implied warranty by a builder-vendor that a newly constructed house is fit for habitation. However, in Coutrakon v. Adams, 39 Ill App2d 290, 188 NE2d 780, the court appears to reject the doctrine despite a tortured effort to distinguish the case from Week. The Supreme Court in Coutrakon v. Adams, 31 Ill2d 189, 201 NE2d 100, recognized the conflict and need for explication but reversed the case on other grounds. Although we agree that the point should be clarified, there is no reason to decide this case on the theory of implied warranty.

It is undisputed that the parties agreed on August 28, 1965, that the plaintiffs would take possession of the house prior to completion and that the defendant would correct all defects thereafter if the plaintiffs would pay the balance of the agreed consideration regardless of the provisions contained in the written contract. The document signed by the plaintiffs on that date did not purport to be written evidence of that agreement but merely a direction to their mortgage lender to disburse the balance of the funds from the construction loan. Although this subsequent agreement was a modification of their written contract the defendant admitted that such a procedure was not unusual. The subsequent conduct of both parties was consistent with the agreement of August 28. The defendant did correct and complete a number of other items and made repeated, if unsuccessful, efforts to correct the heating system. It is clear, therefore, that the case involves an express agreement to correct defects and not the doctrine of implied warranty.

It is true that a party to a contract may not complain of the nonperformance of the other party where that performance is prevented by his own actions. Eggan v. Simonds, 34 Ill App2d 316, 320, 181 NE2d 354; Levy v. American Automobile Ins. Co., 31 Ill App2d 157, 164, 175 NE2d 607; Foreman-State Trust & Savings Bank v. Tauber, 348 Ill 280, 286, 180 NE 827. Henry Ehard admitted that in early December, 1965, he threw a pencil and pad at a wall during a conversation with Althoff and that he may have told him on another occasion not to come back to the home. However, both Althoff and Ladd did return on a number of occasions and Althoff worked in the house as late as May of 1966. The plaintiffs did not engage Ellison until after the defendant advised them that the system could not be balanced until the following winter. Thus, the evidence does not support the argument that the plaintiffs themselves prevented the defendant from the performance of his agreement.

We further find that the determination of the trial court that the heating system was defective is amply supported by the record. The radical variations in room temperatures described by the plaintiffs are neither vague nor contradictory as contended by the defendant but an obvious result of the lack of sufficient radiation pipes in some of the rooms. According to Ehard, on at least one occasion, the temperature in the bathroom was so low that the water lines to the tub and sink froze. As we have seen, Ellison added approximately 50% more radiation pipe to the original installation. It is true that the law does not require perfection in the performance of construction contracts but only that it be completed in a substantial and workmanlike manner. Watson Lumber Co. v. Guennewig, 79 Ill App2d 377, 397, 226 NE2d 270; Surety Development Corp. v. Grevas, 42 Ill App2d 268, 270, 192 NE2d 245; T. W. Merryman Plumbing & Heating Service, Inc. v. Goodman, 10 Ill App2d 65, 134 NE2d 121. However, the defects disclosed do not appear to be trivial or unimportant.

Finally, the defendant complains that the trial court excluded evidence of an accord and satisfaction. During the testimony of Ehard and Ladd, the attorney for the defendant questioned them relative to a meeting in the spring of 1966 between the parties and their respective attorneys. Objections were sustained that the conversation at the meetings was privileged as an attempt to compromise the dispute. No offer of proof was made by the defendant so we are unable to consider the validity of the contention. People v. Dorsey, 66 Ill App2d 441, 444, 214 NE2d 503.

We conclude that the decision of the trial court was in all respects correct and should be affirmed.

Judgment affirmed.

MORAN, P. J. and SEIDENFELD, J., concur.


author: MR. JUSTICE STAMOS

text:
    Lee Shell Company, Inc., Plaintiff-Appellee, v. Model Food Center, Inc., Theodore Weigley, et al., Defendants-Appellants.
    Gen. No. 51,869.
    First District, Fourth Division.
    August 27,1969.

      Abrams, Linn, Mix & Carey, of Chicago (B. John Mix, Jr., of counsel), Hodgson, Patke & Stitt, of Chicago (Dom J. Rizzi, of counsel), for appellants.

      Arvey, Hodes & Mantynband, of Chicago (Sidney R. Zatz, Howard Arvey, and Irwin I. Zatz, of counsel), for appellee.
   As Modified on Petition on Rehearing.

MR. JUSTICE STAMOS

delivered the opinion of the court.

Plaintiff’s complaint alleged an oral contract whereby all defendants agreed to purchase $326,000 worth of store fixtures and equipment in exchange for plaintiff’s promise to supply store fixtures and equipment and draw a layout for the equipment. Plaintiff alleged breach of the oral contract and claimed loss of profits in the amount of $85,000. In the alternative to the loss of profits, the plaintiff alleged in Count II that in reliance upon the assertion of all five defendants to purchase the said equipment, plaintiff did not accept business which it otherwise would have accepted and suffered $85,000 in damages for lost business. (This presumably was abandoned as the jury was not instructed on this count.) In Count III of the Complaint, plaintiff alleged that the five defendants “wrongfully appropriated” layout plans owned by plaintiff and sought damages in the sum of $25,000 for the value of the plans. This Count was not pleaded as an alternative to any other count. In Count IV, plaintiff alleged that it expended services in the preparation of the layout plans and asked damages in the value of $30,000. Count IV was not pleaded in the alternative to any other Count. Defendants’ answer denied substantially all the material allegations in plaintiff’s complaint. Defendants did admit however, that they requested plaintiff to furnish plumbing and electrical plans to defendants’ architect for the purpose of completing the architectural plans. Instructions to the jury covered breach of express contract, implied contract, and “wrongful appropriation.” The jury returned two verdicts in favor of plaintiff, each giving plaintiff full recovery under all 3 Counts, one verdict in the sum of $140,000 against the four specifically named individual defendants, and one verdict awarding the plaintiff $140,000 in damages against all defendants. The court entered judgment in favor of plaintiff with respect to only one of the jury’s verdicts, the one awarding plaintiff $140,000 against all of defendants.

Although defendants urge a myriad of issues for review, not all of them need be discussed in resolving this appeal. A principal issue, is whether the record supports the existence of an oral agreement as alleged by plaintiff.

Plaintiff was a corporation engaged in the business of manufacturing and distributing counters, shelving and refrigerated display cases for the merchandising requirements of supermarkets, shopping centers, drugstores, restaurants, liquor stores and other retail establishments. In the furtherance of its business, plaintiff also provided design and planning services for its customers and employed engineers and experts.

Defendant, Model Food Center, Inc., had as its principal and controlling directors, officers and shareholders, the individual defendants in this litigation.

I. W. SHELL, for the plaintiff, testified as follows:

He was president of plaintiff. He first met the defendants in 1950. In November, 1957, Weigley telephoned him and related that his family purchased a tremendous piece of land and were contemplating building a large supermarket to capture all the retail business in the neighborhood. Pursuant to this telephone conversation Weigley, Marshall and the Nemeths arrived the next morning at plaintiff’s place of business and met with Shell. Weigley said he wanted to put in a diversity of departments so that he could do a $6,000,000 volume of business a year. Shell said, “This is fine, I would love it, but I can’t do this kind of work for you, I can’t — it will take months to develop a dream of this nature, and I would be very much interested provided, of course, that you will agree to buy the equipment, that is my business, and when I get through with the plans, if you accept my plans subject to normal revisions, why, you will buy the equipment.” Mr. Weigley and Mr. and Mrs. Nemeth said “of course.” After this conversation the defendants and Shell visited various floors of the warehouse, factory and showrooms and viewed plaintiff’s products. They discussed in detail many subjects relating to the problems, methods and vicissitudes of operating the type of venture proposed by the defendants.

Two days later the same parties met again and Shell told them he had calculated that the cost of installing the fixtures and equipment for a store of 44,000 square feet, they wanted to build, would be approximately $480,000. Weigley told Shell to start work as soon as possible, because defendants decided Shell’s proposition would be acceptable and he also said that if the defendants accepted plaintiff’s plans there would be no question about who was going to install the equipment.

Shell drew a plan for various departments (e. g. liquor, meat, bakery, jewelry, dry goods, restaurant, etc.) and in January, 1958, these plans were substantially completed. He and Weigley met and examined the plan, which was a layout of the store showing the various departments, locations, fixtures and equipment. Weigley “wanted to know what the price was then.” The following then ensued:

Shell:
“By the time I had actual figures, and I gave him (Weigley)
the figure of--I gave him
a proposal of $326,000.00, this was the final figure, which he accepted.”
“I object to that, ‘he accepted.’ ” Defendant’s counsel:
“What did he say?” Plaintiff’s counsel:
“What did he say, he accepted what?” The Court:
“He accepted the blueprints.” Shell:
“No, what did he say?” Plaintiff’s counsel:
“He said that the blueprints are now satisfactory, ‘and now I will sign the contract, make it ready.’ ”... Shell:

Shell subsequently prepared a contract and a week later went to see Weigley.

Plaintiff’s counsel asked Shell:

Q. “You prepared an agreement as well ?”
A. “Yes.”
Q. “Did you send that to him ?”
A. “Yes.”

At this point in the trial, plaintiff placed in evidence an artist’s renderings of the delicatessen, frozen food department, snack shop, dry goods, drugstore, jewelry, grocery, etc., and Shell testified to the function and description of the fixtures and equipment to the court and jury. After this phase of the trial, the following ensued:

Plaintiff’s counsel: “All right. Did you give this plan to Mr. Weigley?”
Shell: “To Mr. Weigley, yes, sir.”
Plaintiff’s counsel: “He received it from you?”
Shell: “He received it from me, yes, sir.”
Plaintiff’s counsel: “What did he say about this plan?”
Shell: “He said it was terrific, just the way he wanted the store, that is the day I asked for the order, and he said he hadn’t got his financing.” (Emphasis supplied.)

After this meeting in January he gave the final plan, after all revisions, to Weigley in March, 1958. In March, 1958, Weigley asked Shell to make up some electrical and plumbing plans. After these plans were delivered Shell again asked for the order and Weigley said he hadn’t made arrangements for financing the store. Shell testified that Weigley told him:

“Well, if you come around in a week or so, I will probably have this all cleaned up, and I will give you the order, and you can get going.”

A week later Shell met Weigley again. Weigley said that he still was not ready to sign, that Shell would have to wait a week since the financing didn’t come through. A week later Shell again met Weigley and he said to Weigley:

“The order isn’t in yet, and you are already getting ready to construct the building, and he (Weigley) said, ‘Well, what is the use of arguing with you, Mrs. Nemeth doesn’t like your plan, she doesn’t like your fixtures’ ”. . . .

Shell related his inability to find Mrs. Nemeth either in person or by telephone. The record is devoid of evidence regarding Marshall or Mr. Nemeth’s attitude.

Cross-examination of Shell was as follows:

Defendant’s counsel: “. . . I understand you said you had an oral agreement with these defendants, is that right?”
Shell: “Well, it was a contract subject to their acceptance of my plans, and they couldn’t sign a contract at the moment, because I couldn’t tell them exactly what the cost was until I finished — (Emphasis supplied.)
Defendant’s counsel: “Well, did you enter into any type of oral agreement with these defendants?”
Shell: “Yes.”
Defendant’s counsel: “. . . what was the date of that agreement?”
Shell: “The date of the completion of my plans and their acceptance of my plans subject to several
Defendant’s counsel: “. . . Tell us the date . . . .”
Shell: ■ “Well, the latter part of January is one date I asked for an order. I was supposed to get it and didn’t get it.”

The first time he discussed price was at the second meeting in November, 1957, when he gave defendants a figure of approximately $380,000. He said the next time he discussed price was in the latter part of January, 1958, when the plans were finished except for minor revisions, at which time the final price was given to the defendants “in writing in the usual form.” (This document was never produced at the trial.) Shell said there was no place for a signature on the document and he called it a prospectus or proposal showing each item of equipment that was going into the store. Shell said the proposal was furnished to defendants so they could analyze carefully and make sure every item on the proposal was desirable. The crux of the existence or non-existence of an oral agreement is illuminated by the following colloquy:

Defendant’s counsel: “Now, this amount of $326,-000.00--"
Shell: “Yes.”
Defendant’s counsel: . when were you supposed to get that?”
The Court: “$326,111.00; let’s be exact.”
Shell: “That is correct, they were supposed to sign my contract when they accepted my plan, and when they were supposed to accept my plan they put me off a week, then another week, then another . . . .” (Emphasis supplied.)

OPINION

Defendants argue that plaintiff failed to prove the existence of a valid contract because (1) there was no acceptance of a contract; and (2) the material terms and conditions were too indefinite to create an enforceable contract.

The only testimony concerning an acceptance was Shell’s testimony of his meetings with Weigley. The strongest of the testimony concerning the alleged acceptance was as follows:

Shell: “. . . this was the final figure, which he (Weigley) accepted. tc “He (Weigley) accepted the blueprints. « “(Weigley) said the blueprints are now satisfactory, and now
I will sign the contract, make it ready . . .

The most that can be said for this testimony is that it was an acceptance of the blueprints, but surely not an acceptance of a contract.

The record does not support a theory that Weigley had authority to bind the other defendants. In fact, Shell’s testimony reveals that Mrs. Nemeth expressed an utter disdain for the plan and a refusal to accept the plan. The record is silent as to manifestations of Marshall and Mr. Nemeth regarding their attitude as to an acceptance.

In order to create an enforceable contract, acceptance must be unequivocal. Milani v. Proesel, 15 I112d 423, 155 NE2d 38 (1959). The alleged acceptance or approval of the blueprints by Weigley cannot be said to be tantamount to the acceptance of an offer to sell equipment. Since there was no acceptance on the part of Weigley and since none of the other individual defendants accepted neither can there be an acceptance by the corporation, Model Food Center, Inc.

It is basic contract law that the terms of a contract must be reasonably certain; and when the material terms and conditions are not ascertainable no enforceable contract is created. A. S. & W. Club of Waukegan v. Drobnick, 26 Ill2d 521, 187 NE2d 247 (1963). Plaintiff in its complaint alleged:

... in consideration of Lee Shell Company’s designing the plans for the aforesaid store and engineering the design and development of the store generally, the Lee Shell Company would receive the defendants’ order for the installation of equipment as specified in and needed for those plans. (Emphasis supplied.)

During plaintiff’s presentation of the case it introduced into evidence the plan created by plaintiff and several artist’s renderings projecting what a given area of the store would look like. Plaintiff’s plan was drawn to scale and depicted the general layout of the equipment. The various pieces of equipment indicated in the plan are too numerous to enumerate in toto. The plan indicates that there will be grocery gondolas, automatic checkout counters, frozen food cases, various refrigerators, display cases, various tables, a snack shop counter and various shelving units to name but a few of the various types of the equipment indicated by the plan. The plan, however, does not describe the equipment with any specificity: there is no indication (with exception of one refrigerator display case) of the manufacture, of the quality or the type of material to be used, or the style of the equipment. The plan, although it has dimensions as to length and width of some of the equipment, does not indicate the height of the equipment. No specifications were introduced to show what the defendants were to receive for the $326,111 which the plaintiff claimed as the contract price. The artist’s renderings, like the plaintiff’s plan, do not describe the equipment with any specificity. Plaintiff at no time during the course of the trial introduced evidence of what equipment would be needed to equip defendants’ store “as specified in and needed for” plaintiff’s plan as alleged in the complaint.

Defendants’ contention that the trial court erred in denying their motion for a directed verdict must be reviewed in the context of Pedrick v. Peoria & Eastern R. Co., 37 Ill2d 494, 229 NE2d 504 (1967) at page 510:

In our judgment verdicts ought to be directed and judgments n. o. v. entered only in those cases in which all of the evidence, when viewed in its aspects most favorable to the opponent, so overwhelmingly favors movant that no contrary verdict based on that evidence could ever stand.

We hold that the trial court should have granted defendants’ motion for a directed verdict on Count I, the breach of contract claim. All of the evidence viewed most favorably to the plaintiff failed to establish the existence of a valid contract.

As to Count IV the jury was instructed that if they believed that plaintiff performed labor and services for defendants the law implies a promise to pay for such labor and services. (Plaintiff’s Instruction No. 2.) The only evidence at the trial as to the alleged damages suffered by plaintiff was testimony as to the damages on the express contract and on the “wrongful appropriation” counts; no evidence was adduced as to the damages alleged under Count IV, the implied contract count. Besides failing to prove damages under Count IV counsel for plaintiff in his closing argument told the jury that he was asking them to return a guilty verdict for the breach of the contract and for the “wrongful appropriation”; there was no mention of Count IV thereby abandoning it.

Count III of plaintiff’s complaint alleged that the defendants “wrongfully appropriated” plaintiff’s plans and designs. Defendants answer denied that they “wrongfully appropriated” plaintiff’s plan. At the trial I. W. Shell testified that after he was told that he was not going to receive the order he made several trips to the construction site of defendants’ shopping center. On one occasion while he was at the construction site he noticed a copy of the plan that he had drawn on the floor which he picked up and brought back to his office. On cross-examination Shell stated that he picked up the copy of his plan from a counter and that the plan was partially opened; that he did not see any of the workmen using the plan. Shell testified that the shopping center as constructed resembled his plan although there were some changes. Defendants denied that they “wrongfully appropriated” plaintiff’s plan; they contend that the plan for the layout of the shopping center was conceived by Marshall and Weigley. Defendants argue that they acquired the land for the construction of the shopping center some six months before they had their first meeting with plaintiff, that at this first meeting with I. W. Shell, Weigley brought along with him the latest plan that he and Marshall had created, and that Shell’s plan was similar to their plan.

While there may be some evidence to substantiate plaintiff’s allegation that his plan was “wrongfully appropriated” through its use in construction of defendant corporation’s building, there is no evidence that it was “wrongfully appropriated” by the individual defendants. I. W. Shell testified that his first meeting was with all four of the individual defendants, that he had a second meeting with all four defendants two days later, the remainder of Shell’s testimony concerns meetings that he had with Weigley, none of the subsequent meetings testified to by Shell were attended by any of the other defendants. The plan was not however, completed until some time after the second meeting. The verdict of the jury and the judgment entered pursuant thereto found that all the defendants had “wrongfully appropriated” plaintiff’s plan. We therefore reverse as to the individual defendants on all counts.

We cannot affirm the $55,000 judgment entered against the corporate defendant on Count III. Plaintiff’s complaint alleged that it had suffered $25,000 damages as a result of defendants’ “wrongful appropriation.” At the trial I. W. Shell testified that the plaintiff suffered $55,000 damages as a result of defendants’ “wrongful appropriation.” Defendants made no objection throughout the course of the trial to the variance between the pleading and the proof of damages. After oral argument and submission of this case for decision in this court the plaintiff filed a motion to amend its pleading to conform the allegation of damages to the proof. The filing of the motion was untimely, Supreme Court Rule 362 (e). Ill Rev Stats c 110A § 362 (e) (1967).

We cannot enter a remittitur to $25,000 because there was no definite proof of damages. The measure of damages for conversion is the market value of the property at the time of conversion. Sturges v. Keith, 57 Ill 451 (1870). The only evidence adduced by plaintiff was Shell’s opinion of the reasonable value of the plans. In Austin v. Millspaugh & Co., 90 Miss 354, 43 So 305, 306 (1907), the court in discussing proof of value of drawings, plans and specifications which had no market value quoted from Southern Exp. Co. v. Owens, 146 Ala 412, 41 So 752 (1906):

“Where the article lost has no market value, the rule of damages seems then to be its value to the plaintiff; and in ascertaining this value inquiry may be made into constituent elements of the cost to the plaintiff in producing it.” [Citing cases.]

This principle was adopted in Flynn v. Zimmerman, 23 Ill App2d 467, 163 NE2d 568 (1960). The court there held that where stocks had no market value “[i]t was, therefore, proper for the court in arriving at its value for the purpose of ascertaining damages to consider all the circumstances of the corporation, its finances and business. The fact that personal property has no market value does not restrict the recovery to nominal damages only, its value or the plaintiff’s damages must be ascertained in some other rational way, and from such elements as are attainable.”

In the instant case the following testimony was presented:

Shell: “I had six or seven men on it all of the time. Their weekly salaries were about $250.00 a week. My overhead amounted to about $25,000.00 a month.”
Mr. Zatz: “What would be a fair and reasonable charge for these plans and drawings and the work you did in designing this store?”
Mr. Mix: “I will object to that, if the Court please.”
The Court: “Well, yes, there is a Count on that.”
Mr. Zatz: “Yes, there is.”
Mr. Mix: “I think that the witness hasn’t testified that he ever charged anybody a price for a plan in his life; if he does charge, I would like to know. Then I wouldn’t object.”
The Court: “I know, but it wouldn’t make any difference, it is a Count in his complaint that he is asking for, the reasonable value of the plan; whether he ever charged anybody else doesn’t make any difference. Your objection is overruled. You may answer.”
The Witness: “They are worth $55,000.”
The Court: “Is that the fair and reasonable charge for the creation and design of these plans ?”
The Witness: “Yes, sir.”
The Court: “ — in the City of Chicago on that date in 1958 ?”
The Witness: “That is right.”
The Court: “All right.”
The Witness: “That is a reasonable figure.”

The figures as to overhead and salaries did not specifically demonstrate what time and effort was expended in the production of the plans, nor the relationship, if any, between his cost of production and the value of the plans. There was no foundation laid for Shell’s opinion as to reasonable value. The evidence was therefore insufficient to establish damages. We therefore reverse the judgment against Model Food Center, Inc. and remand for a new trial on Count III of the complaint.

The judgment entered in the trial court is reversed and the cause is remanded for a new trial on Count III as to the corporate defendant only.

Reversed and remanded.

DRUCKER, P. J. and ENGLISH, J., concur.


text:
    Gary D. Sheller, Plaintiff-Appellee, v. Nancy Lee Joyce, Defendant-Appellant.
    Gen. No. 68-198. (Abstract of Decision.)
    Second District.
    July 28,1969.
    Thomas E. Joyce, of Chicago, for appellant; Alschuler, Putnam, MeWethy, Weiss & Weiler, of Aurora, for appellee.
   Opinion by JUSTICE ABRAHAMSON. Not to be published in full.


author: JUDGE BAUER

text:
    In the Matter of the Estate of Martha S. Benson, Deceased. Mary Jane Benson Mahon, Petitioner-Appellee, v. Raymond Harkrider, Successor Executor of Will of Martha S. Benson, Deceased, Respondent-Appellant, and Sue Benson, Executor of Will of Justus A. Benson, Deceased, Respondent-Appellant.
    Gen. No. 68-191.
    Second District.
    June 20,1969.
    Rehearing denied August 20,1969.
    Raymond Harkrider, pro se, of Chicago, appellant.
    Hall, Meyer, Fisher, Holmberg, Snook & May, of Waukegan, for appellee.
   JUDGE BAUER

delivered the opinion of the court.

This is an appeal from an order of the Circuit Court of Lake County. Since the matters leading up to the order in dispute have a bearing on the order itself, a brief summary of those events would seem appropriate.

On September 10, 1962, a petition was filed by one Justus Benson for letter testamentary in the Estate of Martha Benson, deceased. On April 16, 1963, attorney Homer Dodge filed his appearance on behalf of Mary Jane Mahon, an heir of Martha Benson.

On August 1, 1963, the court allowed a claim of $15,-243.25 against the estate of Martha Benson and on behalf of the Chicago Cartage Company.

On August 9, 1963, Mary Jane Mahon filed a suit in equity against, among others, Justus Benson, individually and as executor and trustee under the will of Martha Benson, and the Chicago Cartage Company, in case #63-1764.

On August 12,1963, Justus Benson petitioned the court for leave to sell real estate to pay debts of Martha Benson’s estate. Mary Jane Mahon filed an answer to this petition on October 10, 1963 and on January 21, 1964, the court entered an order approving the sale.

On January 16, 1964, Mary Jane Benson filed an amended complaint in case #63-1764 against Justus Benson, et al. On December 22, 1964, Raymond Harkrider filed his appearance as attorney for both Justus Benson and the Chicago Cartage Company, and filed, on behalf of those two clients, a counterclaim against the heirs at law of Martha Benson, seeking, among other things, to reach the assets of the Estate of Martha Benson, deceased.

Various other complications then appear in the pleadings in the estate of Martha Benson and in the action instituted by Mary Jane Mahon. The most serious complication involved the death of Justus Benson because this led to: (a) The appointment of Sue Benson as Executor of the Estate of Justus Benson in which matter Sue Benson was represented by Raymond Harkrider; (b) Sue Benson, as Executor of the Estate of Justus Benson, substituted as party defendant in the equity action in which she was also represented by Raymond Harkrider, and, (c) the appointment, on March 29, 1969, of Raymond Harkrider as successor-executor of the Estate of Martha Benson, deceased.

Things now remained relatively quiet until February 27, 1968, when Mary Jane Mahon petitioned the court to appoint an administrator to defend the Estate of Martha Benson, deceased, in the counterclaims filed in the equity action, case #63-1764. On March 12, after a hearing the court below entered an order which:

1) Appointed Michael Roach as Administrator to defend the Estate of Martha Benson, deceased, such administrator to serve without fee.
2) Appointed the attorneys representing Mary Jane Mahon to represent Roach in the defense of the counterclaim in case #63-1764.
3) Ordered that the fees and expenses of such defense be payable from the Estate of Martha Benson “in such amounts as this court shall determine to be proper at the time of the final disposition of said counterclaim.”

It is from this order of March 12,1968, that this appeal is taken.

It is a matter of interest to note that, after notice of appeal had been filed, the counterclaim in question was dismissed on motion of the counterplaintiff and that no fees or expenses were requested or allowed on behalf of the administrator to defend or his counsel; indeed, they have affirmatively denied having incurred either expenses or fees. Nevertheless, the appeal has been prosecuted.

Authority for the order of March 12, 1968, is found in c 3, §§ 200 and 276, of the Ill Rev Stats. It is obvious that the trial court concluded that the position of successor-executor of the estate was not consistent with the position of attorney for certain claimants who sought to reach the assets of the estate. With this position we completely agree. Since the court had the right and duty to make such appointment, it is also appropriate that the court make suitable allowance for the payment of fees and expenses incurred in defense of the counterclaim.

The order of the Circuit Court of Lake County is, therefore, affirmed in all respects.

Judgment affirmed.

DAVIS, P. J. and ABRAHAMSON, J., concur.