author: MR. JUSTICE LEIGHTON

text:
    Angelo Colon, a Minor, by Jose Colon, His Father and Next Friend, Plaintiff-Appellee, v. Maryanna Marzec, et al., Defendants-Appellants.
    Gen. No. 52,409.
    First District, Fourth Division.
    October 15, 1969.
    Rehearing denied November 14,1969.

      Jerome M. Brooks and Gilbert Gordon, of Chicago (Gilbert Gordon, of counsel), for appellant.
    Philip E. Howard, of Chicago (David A. Decker, Francis D. Morrissey, and Peter J. Mone, of counsel), for appellee.
   MR. JUSTICE LEIGHTON

delivered the opinion of the court.

This is an appeal from a judgment entered on a verdict for the plaintiff, Angelo Colon, a minor, and against Maryanna Marzec, Albert Spinabella and Rigolett Spinabella. Only Maryanna Marzec seeks review of the judgment.

In urging reversal, she contends that under no recognized theory of law was she liable to the plaintiff for injuries sustained on her property; and that the trial court erred in giving to the jury two of plaintiff’s instructions.

The jury heard evidence that on May 28, 1961, Angelo Colon, then five years of age, lived with his family in a four-story building owned by Albert and Rigolett Spinabella at 1437 West Chicago Avenue, in the City of Chicago. This building shared a party wall to the east with a three-story building owned by the defendant Maryanna Marzec. The roof of Mrs. Marzec’s building was level and had on it two triangular-shaped skylights. The height of the roof was approximately one foot below the sill of a third-floor window in the Spinabella building. This window was reached by a stairway from the front door that was always open. Maryanna Marzec had no control over any part of the building owned by the Spinabellas. For one or two years before the date in question, children of the neighborhood played on the Marzec roof. One or both of the Spinabellas had been told this fact by an employee. No one testified that Mrs. Marzec knew children played on the roof of her building. The fact that children did play on the roof of this 3-story building does not, under the circumstances of this case, result in a reasonable inference that Mrs. Marzec should have known of this activity.

Mrs. Marzec had a tenant, Marta Modrow, who lived on the third floor. She moved into the building in 1957. She had twin sons who were fourteen years of age in 1961. Mrs. Modrow testified that she did not hear nor see children play on the roof of the building. One of Mrs. Marzec’s sons said that neither he nor any of his brothers and sisters ever played on the roof; nor did he hear or see any children play there.

Less than one year before the day Angelo sustained his injuries, Mrs. Marzee was present when workmen installed a new roof. Neither then, nor at any other time, was there any protective device put around the skylights. On May 28, 1961, Angelo in the company of his sister, Nilda, two years older than he, used the window in the Spinabella building to go on the roof of the Marzee building and play with other children. As Angelo was running, he stumbled and fell through one of the skylights, suffering serious injuries.

Suit was filed to recover for these injuries on the theory that the owners of the two buildings, the Spinabellas and Maryanna Marzee, owed Angelo Colon a duty to take steps to make safe the roof on which he was playing so that he could not be injured. Consistent with this theory, the plaintiff tendered and the trial court gave, among others, the two instructions about which complaint is made. At the conclusion of the plaintiff’s case, defendants moved for a directed verdict. The trial court denied the motion. The jury then returned a verdict against all defendants for the sum of $53,000. Judgment was entered and post-trial motions were overruled. The question we must decide is whether any theory of liability supports the judgment entered against Maryanna Marzee, the owner of the building on whose roof Angelo Colon was injured.

Immaturity makes children incapable of appreciating the risks involved in their play; and where the owner or person in possession of land knows or should know that young children habitually frequent a vicinity that is dangerous or hazardous, he has a duty to exercise due care to remedy the condition or otherwise protect trespassing children. Kahn v. James Burton Co., 5 Ill2d 614, 126 NE2d 836; Restatement, Second, Torts, § 339 (1965).

But a possessor or owner of land cannot be required to protect trespassing children against every possibility of injury. Before an owner or possessor can be responsible for injuries sustained by a trespassing child, it must be shown that there was fault under some recognized theory of liability. The injury incurred must be the natural and probable result of a negligent or otherwise culpable act or condition, and be of such character that an ordinary, prudent person would foresee the injury as a likely result. An injury to a trespassing child is not actionable, unless it could have been foreseen, or reasonably anticipated from conditions negligently maintained on the land. Donehue v. Duvall, 41 Ill2d 377, 243 NE2d 222; Driscoll v. Rasmussen Corp., 35 Ill2d 74, 219 NE2d 483.

Unquestionably, an accessible roof in a crowded urban area is attractive to small children. Undoubtedly, small boys on the roof of a building will run and subject themselves to risk of injury. The roof of a building like the one owned by Mrs. Marzec with two skylights on it was neither inherently dangerous nor did it create unreasonable risk of death or serious bodily harm to children. There was no evidence Mrs. Marzec knew small children played on the roof of her building; nor was there evidence from which it could be inferred she should have known of these activities. It was not enough that there existed on the Marzec roof a possibility of injury to Angelo Colon. Lance v. Senior, 36 Ill2d 516, 224 NE2d 231.

Questions concerning liability of an owner or possessor of land for injuries to trespassing children are neither new nor uncommon. These questions have been before American courts in a myriad of situations. See: 145 ALR, Annotated, p 322; 16 ALR3d, Annotated, p 1; Green Landowner’s Responsibility to Children, 27 Tex L Rev 1 (1948). Recently, in Sydenstricker v. Chicago and N. W. Ry. Co., 107 Ill App2d 427, 247 NE2d 15, we passed on a variant of these recurring questions. We held that risk of a child climbing and falling from a nondefective stationary object lawfully located for an appropriate and useful purpose, was not unreasonable. Under such a circumstance, a landowner is not liable for injuries suffered by the child. The same principle controls the case before us.

Plaintiff in his brief, cites to us the Kahn case and a number of our recent decisions. It is enough to say that through these cases runs a common thread: in each, the owner or possessor of premises known to be frequented by small children negligently maintained a hazardous or dangerous condition; and the burden of eliminating the hazard or danger was slight compared with the risk to the children involved. This common thread distinguishes those cases from the one before us.

Maryanna Marzec had neither done nor failed to do anything that made the roof of her building dangerous or hazardous to trespassing children. Therefore, there is no theory under which she can be liable for the injuries sustained by Angelo Colon when he was playing on the Marzec roof.

In putting into context the two instructions about which appellant complains, we have read all of the instructions the trial court gave to the jury. These instructions were drafted in conformance with Illinois Pattern Jury Instructions for Civil Cases, IPI 20.01 and 21.02. Our disposition of this case makes unnecessary any discussion of their correctness because in our view the trial court should have sustained defendants’ motion for a directed verdict at the close of plaintiff’s case. Pedrick v. Peoria & Eastern R Co., 37 Ill2d 494, 229 NE2d 504; Clark v. Quincy Housing Authority, 86 Ill App2d 458, 229 NE2d 780.

The judgment is reversed with finding and judgment for defendant Maryanna Marzec entered in this court.

Reversed and judgment for defendant.

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

       Kahn v. James Burton Co., 5 Ill2d 614, 126 NE2d 836; Halloran v. Belt Ry. Co., 25 Ill App2d 114, 166 NE2d 98; Skaggs v. Junis, 27 Ill App2d 251, 169 NE2d 684; Smith v. Springman Lumber Co., 41 Ill App2d 403, 191 NE2d 256; Stewart v. DuPlessis, 42 Ill App2d 192, 191 NE2d 622; American Nat. Bank & Trust Co. v. Penn. R. Co., 52 Ill App2d 406, 202 NE2d 79, affd 35 Ill 2d 145, 219 NE2d 529; Dallas v. Granite City Steel Co., 64 Ill App 2d 409, 211 NE2d 907.


source: Caselaw Access Project

author: MR. JUSTICE McNAMARA

license: Public Domain

text:
    Board of Education, School District No. 90, Cook County, Illinois, for the Use and Benefit of Fenestra, Inc., Plaintiff, v. United States Fidelity & Guaranty Company, a Corporation, and Anko Construction, Inc., a Corporation, Defendants. Anko Construction, Inc., Counterplaintiff, Appellee, v. Fenestra, Inc., Counterdefendant, Appellant.
    Gen. No. 52,574.
    First District, Fourth Division.
    October 15, 1969.

      Spray, Price, Hough & Cushman, of Chicago (James T. Otis and John R. F. Baer, of counsel), for appellant.
    Howard Hoosin, of Chicago, for appellee.
   MR. JUSTICE McNAMARA

delivered the opinion of the court.

Board of Education, School District 90, Cook County, Illinois, for the use and benefit of Fenestra, Inc., brought this action against United States Fidelity and Guaranty Company and Anko Construction, Inc., on a performance bond to recover a balance due of $4,985.25 for materials and labor furnished in the construction of an addition to a school building. Anko counterclaimed against Fenestra, alleging that the latter had breached its subcontract agreement with Anko, thereby causing Anko to be relieved of its duties as general contractor on the project and to lose its expected profits. The jury returned a verdict of $4,985.25 in favor of the School District for the benefit of Fenestra on the complaint, and a verdict of $55,000 for Anko on its counterclaim against Fenestra. The trial judge entered judgments on the verdict, and denied the post-trial motions of Fenestra. Only Fenestra appeals from the judgment on the counterclaim and the denial of its post-trial motions. Fenestra raised several issues in its brief, but at oral argument its counsel stated that its only points on appeal were that the verdict was against the manifest weight of the evidence and that the damages were speculative.

Anko was the general contractor on the school addition, and Fenestra as subcontractor was to provide a standard curtain aluminum wall, aluminum windows and a steel sheet roof deck. After testimony was received concerning Fenestra’s suit against Anko, the following is a summary of the evidence received on the counterclaim.

Anthony Antoniou, secretary of Anko, testified on behalf of Anko that he had formed the company with George Kouros in 1954. Originally engaged in design work, the company became involved in commercial construction, and by 1958, had built several schools. In January, 1958, he wrote to the architects, Cone and Dornbusch, requesting an opportunity to bid on a proposed addition to Roosevelt Junior High School. Anko signed a contract in May, 1958, and after approval by the architects, the contract was accepted by the Board of Education District 90 in June, 1958. Anko was to be paid about $240,000. Estimates of the total costs were $196,000, and the estimated profit to Anko was to be $44,000. Anko was to finish the job in 175 working days. After signing the contract, Anko selected the critical contracts, those which had to be let immediately. Fenestra was such a subcontractor, and this was the first contract let by Anko. The architects, in their plans, specified Fenestra as a subcontractor; Anko did not have a choice as to this subcontract. Immediately after the contract had been accepted by the School District, the witness contacted agents of Fenestra, and discussed delivery dates. Fenestra was to deliver the wall and windows September 1, 1958 and erect them by October 1. Fenestra officials said there would be no problem in delivering the wall in September. This was a critical part of the contract. The Fenestra curtain wall consisted of at least two-thirds of the outside of the building. The wall should have been delivered and erected in 70 working days. After the site had been established, Anko broke ground about June 10 or 15; the excavation and foundation proceeded normally. Within 70 working days Anko had the roof steel up, and was ready to receive the wall and deck from Fenestra.

During this period, Antoniou complained to Fenestra’s agents by phone that he had not received shop drawings, and he did not receive the drawings until late September. In November, 1958, along with a representative of the architects, he went to Fenestra’s offices in Philadelphia, where the curtain wall was to be constructed. He was told that Fenestra was so overwhelmed with orders that the curtain wall would not go into construction until the latter part of January, 1959, and would not be ready until February. Efforts to get an earlier construction failed. The curtain wall was delivered on 3 dates; mid-January, February and March or April. Because of a defect in the first delivery of curtain wall delivered in January, the glazing cracked. After the defect was discovered, new parts of the wall had to be obtained, and the wall was reerected in late March or April. Fenestra’s promise to deliver the windows in January was not kept. There were 3 deliveries of windows; one in January, one in March, and the final one in August, 1959. The roof decking for the main building was not delivered until late November, and was erected in December, 1958. The roof decking for the corridor was delivered in the summer of 1959. Anko started to receive complaints in late 1958; prior to that, its relations with the school board and the architects were good. In January, 1959, Anko received complaints from the school board that the building was too cold. Anko had enclosed it as best it could in order to work inside, but the roofing could not go on because of the lack of metal decking. The project was to be completed in January, 1959; it was not completed until the fall because of the late delivery of the windows and curtain wall. Anko completed about 90 to 95 percent of the work. There was no penalty clause in the contract between Anko and Fenestra. The witness was unable to explain why the roofing could not be put up for lack of the curtain wall unless he could see the detailed blueprints. As of October, 1958 the structure was ready to receive the curtain wall and decking. Anko spent $9,000 to temporarily enclose the building in December. The school board was not charged for this extra cost, because Anko expected to sue Fenestra for that cost. There was some delay prior to September, but it was not substantial. There was also some delay caused by other subcontractors.

George Kouros testified in behalf of Anko that he ran' the office for Anko until June, 1959, at which time he took over as field supervisor of the project in question. The reason for the delay in completing construction was Fenestra’s delay in delivery, which was a minimum of four or five months. The contract price was approximately $240,900, and Anko’s anticipated profit was about 15 percent of that price. That would be $36,000. In addition to that amount, Anko expected a profit of $6,000 to $7,000 for subcontract work it did on the job. Thus the total expected profit was $42,000 to $44,000.

Loss of profits began in November, 1958, and was caused by delays, damage by the elements, and length of time for completion. Because of extras, Anko’s final bill to the school board was $265,000. Anko was paid $207,-000 by the board. When Anko left the job in October, 1959, it had an out-of-pocket loss of about $60,000 caused by Fenestra. After this job, Anko could not get bonded, and went out of business in 1959 or 1960. During this job, Anko had to sandblast and repaint the corroded wall, caused by exposure to the elements. This was due to the Fenestra delay, and cost between $4,000 and $6,000. Anko had difficulty with all the subcontractors, because they were all experiencing losses. There was an extensive amount of rain in the summer of 1959. Anko did everything in its power to run the job efficiently. The witness did not recall if Anko ever alleged that the faulty work of the masonry contractor caused the delay; nor did he remember if Anko alleged that other subcontractors caused delays. The school board had extended the date of completion several times. At the end of July, 80 percent of Fenestra’s work was completed. In 1957, Anko made a profit of $40,000; in 1958, it had a loss of $16,000; and in 1959, it lost about $12,000. During this job, it had an overhead of $30,000 to $45,000 attributable to this project. Anko’s books and records were turned over to the Goettsche accounting firm.

Kermit Medlock testified in behalf of Anko that he was presently employed by Anvan Corp., owned wholly or partially by Antoniou. He was construction superintendent for Anko at the time of the job in question. He supervised personnel and trades. There was no major delay on the job prior to October, 1958. At that time, they were waiting for the roof deck and curtain wall. Men were idle, and material was damaged because of the delay. Steel had to be sandblasted and repainted. The plastic sheathing erected for protection did not do much good. The curtain wall was finally completed in March, 1959. In June, 1959, about 75 percent to 80 percent of the job was done, and the remainder should have been completed in two months.

Wallace Sugden testified in behalf of Fenestra that he was superintendent of the River Forest Public Schools during the years 1958 and 1959. The original contract between the school board and Anko called for a completion date of 175 working days. This would have meant completion in January, 1959. It was not completed at that time, and Anko was granted several extensions, one until March, another until June, and a third until August. Anko never completed the construction, and the job was completed by Weigert Company. When Anko left the job, between $40,000 and $50,000 was due from the school board. Anko did not work regularly on the job during the summer of 1959, and did not try to complete the job that summer.

Carlyle Joye testified for Fenestra that he was in charge of the erection of Fenestra materials during 1958 and 1959. He saw the final approved shop drawings pertaining to this job in September, 1958. The schedule for the manufacture of this curtain wall was sixteen weeks after receipt of the drawings. The roof decking took four to six weeks to manufacture. Before either could be erected, the structural steel had to be in place. The job site was ready for the curtain wall in January, 1959, and the wall was installed in January, February and March. The roof decking was installed in February, and the windows were installed in July. The job site was not ready for the erection of the curtain wall until January because the structural steel was not in place. However, after looking at a list of invoices, the witness testified that, according to the invoices, all the structural steel had been delivered by October 7. When he testified that the site was not ready to receive the wall and decking until January, he meant that it was necessary to sandblast and repaint the steel which had been erected. There were some defects in the horizontal members of the aluminum, and it was corrected by Fenestra in February. Anko complained about the delay in delivery of the curtain wall and decking.

Spencer Cone, a partner of Cone and Dornbusch, architects on the job, testified for Fenestra that Anko was the low bidder, and received the contract. School construction is competitive, and the profit margins are low. His opinion as to the usual profit margin was that it would be 6 or 7 percent. The original completion date on the job was January or February, 1959, and was extended several times. The job did not progress normally from the time ground was broken in June, 1958. The contract was finally terminated because of Anko’s general incompetence and disregard of the specifications, culminating in close to a year’s delay. Anko was incompetent in providing a temporary enclosure and in leaving dangerous conditions unguarded. There was a substantial delay in excavation, and almost all materials arrived late. There was a delay in pouring the foundation, and part of it had to be redone. Total delay was caused by Anko. Although Fenestra was late in its delivery, the structural steel was probably two or three months behind schedule. Anko did not have a choice in hiring Fenestra as a subcontractor. Under its contract, Anko could request a substitution of subcontractor from the school board and architect. Anko made such a request with respect to Fenestra, but it was denied.

Dale Floyd, president of a steel erecting company, testified that his company erected steel on this job, and in 1959 sued Anko for nonpayment.

Roger Goettsche, a member of a firm of certified public accountants, testified that his firm had never had in its possession the books and records of Anko.

Fenestra first contends that the verdict was against the manifest weight of the evidence.

A verdict which is based upon conflicting evidence and approved by the trial court can be set aside only when it is against the manifest weight of the evidence. Thus a verdict and judgment will be set aside only where it is clearly evident that the jury has arrived at an incorrect result. Frozen Food Express v. Modern Truck Lines, Inc., 79 Ill App2d 84, 223 NE2d 275 (1967); Cochran v. Parker, 91 Ill App2d 56, 233 NE2d 443 (1968). As stated in Whitman v. Prescott, 80 Ill App2d 49, 225 NE2d 384 (1967) atp58,

“The law is well settled in Illinois that a reviewing court cannot substitute its judgment for that of a jury in passing on the weight of the evidence. The trial judge who saw and heard the witnesses may, in his sound discretion, grant a new trial if the jury’s verdict is contrary to the preponderance or weight of the evidence. ... A reviewing court may overturn a jury’s verdict only if it is contrary to the manifest weight of the evidence. By manifest weight is meant the clearly evident, plain and indisputable weight. Black v. DeWitt, 55 Ill App2d 220, 204 NE2d 820.”

In applying these general rules of law to the facts in the instant case, we find that the verdict was not against the manifest weight of the evidence.

Fenestra argues that the evidence clearly demonstrated that it caused no delay; that if it did cause a delay, Anko contributed to that delay, thereby barring recovery; that Anko waived any delay by urging performance from Fenestra; and that termination of the contract was not caused by Fenestra’s delay, but by the general incompetence of Anko. However, there was conflicting testimony presented at trial regarding those issues, and we cannot say that the finding by the jury in favor of Anko was against the manifest weight of evidence.

According to the contract, Fenestra was to deliver the curtain wall upon completion of the structural steel without delays, and the evidence reveals that this was not done. Anko presented evidence that there were no substantial delays during the initial stages of construction, that the job proceeded normally until time for Fenestra’s performance of its contractual obligations, and that it was ready to receive the curtain wall by October. Even the architect, who testified for Fenestra, conceded that Fenestra was probably late in its delivery of the curtain wall.

Fenestra’s argument that Anko contributed to the delay by failing to deliver the approved shop drawings in time is not supported by the record. Fenestra was obligated to ship the curtain wall whenever Anko was ready for it. Nothing in the evidence indicated that Anko was to forward the drawings by a certain date. Nor was Anko made aware that Fenestra could not make delivery of the curtain wall without receipt of the drawings. The jury could reasonably conclude that it was Fenestra’s responsibility to obtain the necessary specifications to fulfill its contract. Moreover, Antoniou testified that he complained of Fenestra’s delay in furnishing him the preliminary shop drawings, that he did not receive the drawings until late September, and that when he personally visited the Fenestra plant in November, he was informed that the curtain wall was not yet in construction because Fenestra was overwhelmed with orders.

Fenestra also argues that Anko waived any delay by continuing to urge completion of the curtain wall and performance of the contract. It is true that delays in performance of a contract may be waived by conduct indicating an intention to regard the contract as still in force and effect. Peterson Steels v. Seidmon, 188 F2d 193 (7th Cir 1951). However, as stated in Snell v. Cottingham, 72 Ill 161 (1874), at p 171:

“Appellants, with great propriety and consistency, could urge the contractors to finish the work under the contract, and afterwards accept it. All they would waive in such case would be the performance on a fixed day, but nothing else. The contractors might recover for the work done on a quantum meruit, but appellants would have the clear right to insist upon and recoup such damages as they may have sustained by reason of the non-compliance with the contract, if the delay was not caused by their default.”

Accord, Felt v. Smith, 62 Ill App 637 (1895).

In the instant case, Anko continually complained of Fenestra’s delay. By contract with the school board, it was compelled to accept Fenestra as a subcontractor. It sought permission from the board and architects to replace Fenestra. That request was denied. Thus, it had little choice but to accept Fenestra’s delayed performance. Assuming, without so finding, that there was a waiver as to the time of performance, Anko’s right to sue for damages was not waived.

In arguing that the total delay was caused by Anko’s inefficiency and incompetence, Fenestra relies on the testimony of its witnesses, particularly the architect, that there were delays in the initial stages of he job; that Anko was inefficient; that it could not secure cooperation of the subcontractors; that it did not attempt to complete the job in the summer of 1959; and that the total delay was Anko’s fault. However, Anko’s witnesses testified that everything proceeded normally until Fenestra failed to perform. There was a direct conflict in the evidence as to whether total delay was caused by Anko’s incompetency or Fenestra’s failure to perform on time, and we cannot say that the jury’s determination of that conflict was against the manifest weight of the evidence.

Cases cited by Fenestra are not controlling. In Ahmer v. Peters, 17 Ill App2d 113, 149 NE2d 503 (1958), the delays complained of were at the request of the plaintiffs, whereas in the instant case there is no evidence of Anko requesting any delays. In Guaranty Iron and Steel Co. v. Leydon, 235 Ill App 191 (1924), the trier of facts found that the general contractor breached his duty in failing to have the building ready to receive further work, whereas in the case at bar, an opposite conclusion was reached by the jury.

Fenestra’s second contention is that Anko failed to offer any competent evidence of damages, and that therefore damages were speculative. We do not agree.

Profits are not recoverable without some evidence as to amount, and must be proved with a reasonable degree of certainty. Falejczyk v. Meo, 31 Ill App 2d 372, 176 NE2d 10 (1961). One willing to perform a contract but prevented from doing so may show his loss of anticipated profits, unless they are too remote and speculative. Gist v. Wyoming Land and Irrigation Co., 208 Ill App 202 (1917); ILP, Damages, § 241.

In Meyer v. Buckman, 7 Ill App2d 385, 129 NE2d 603 (1955), the court, in holding that anticipated profits had been sufficiently proved, stated at p 403:

“A recovery may be had, in a proper case, for prospective profits when there are any criteria by which the probable profits can be estimated with reasonable certainty; absolute certainty as to the amount of loss or damages in such cases may not, ordinarily, be attainable, but that is not required to justify recovery; all the law requires is that it be approximated by competent proof; that proof of the exact amount of loss may be impossible does not justify refusing compensation; in cases of this character all the law requires is that the evidence shall, with a fair degree of probability, tend to establish a basis for the assessment of damages: Barnett v. Caldwell Furniture Co. (1917), 277 Ill 286.”

In the instant case, the verdict and judgment of $55,000 against Fenestra was based upon adequate evidence. Anko offered testimony that as general contractor it expected a 15 percent profit on its bid of $240,-900 on the project, or about $36,000. In addition, it expected a profit of $6,000 to $7,000 as a subcontractor for work performed on the job itself. This would constitute a total profit of $42,000 to $43,000. Fenestra concedes that the contract price is accurate, but argues that Anko’s expected 15 percent profit was unrealistic. At trial it presented the architect’s testimony that a 6 percent profit would be proper in such a construction contract. This testimony presented a factual conflict as to the anticipated profits, and the conflict was properly resolved by the jury.

Fenestra cites the case of Salaban v. East St. Louis and Interurban Water Co., 284 Ill App 358, 1 NE2d 731 (1936), for the proposition that an estimate of profits by interested winesses, such as the officers of Anko, does not constitute such evidence as will support a judgment for damages. In the Salaban case, a restaurant and rooming housekeeper had a dispute with a public utility which supplied water. As a result of the dispute the utility refused to furnish the plaintiff water for a few months. The plaintiff claimed his business was damaged because of this refusal. The court said that he had laid no foundation upon which damages could be based, since the only evidence was his own testimony that he sometimes made as much as $350 a month from his business, and that such proof was inadequate. However, in Meyer v. Buckman, supra, the court upheld the proof of damages, where the plaintiff was the only witness to testify as to his prospective profits. And in Capitol Paper Box, Inc. v. Belding Hosiery Mills, Inc., 350 Ill App 68, 111 NE2d 858 (1953), the court held that the testimony of the president of plaintiff corporation was sufficient to sustain a recovery for loss of profits. In the instant case the testimony of Anko’s corporate officers afforded a sufficient basis by which the probable profits could be estimated with reasonable certainty.

Over and above the loss of profits, Anko presented evidence that, because of Fenestra’s delay, it was compelled to expend $9,000 to temporarily enclose the structure and to pay $4,000 to $6,000 to sandblast and repaint the structure. While contending that these expenses were not due to its delay, but to Anko’s incompetency, Fenestra did not dispute these expenditures, and in fact, presented evidence that the steel had been sanded and repainted. These additional expenditures were proper elements of damages to be considered by the jury, along with the loss of profits. Taken together they amounted to between $55,000 and $58,000. There was also testimony on behalf of Anko that there was a difference of $58,000 between Anko’s final bill and the amount paid by the School Board. Fenestra’s witness, the school superintendent, also stated that between $40,000 and $50,000 was due Anko. On the evidence we find that there was a proper basis for the amount of the verdict, and that damages were not speculative.

The judgment of the Circuit Court is affirmed.

Judgment affirmed.

DBUCKEB, P. J. and STAMOS, J., concur.


text:
    People of the State of Illinois, Plaintiff-Appellee, v. Ernest Ramey, Defendant-Appellant.
    Gen. No. 52,844.
    First District, Fourth Division.
    October 15, 1969.

      Gerald W. Getty, Public Defender of Cook County, of Chicago (Theodore A. Gottfried, Norman W. Fishman, and James J. Doherty, Assistant Public Defenders, of counsel), for appellant.
    Edward V. Hanrahan, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane, James Haddad, and Martin Friedman, Assistant State’s Attorneys, of counsel), for appellee.
   MR. JUSTICE LEIGHTON

delivered the opinion of the court.

Ernest Ramey, and a codefendant, James Carter, were charged with armed robbery, attempted rape and aggravated battery. After a jury trial, both were convicted. Post-trial motions were made and overruled. They were sentenced to serve concurrent penitentiary terms of twenty to forty years for the armed robbery, five to ten years for the attempted rape, and eight to ten years for the aggravated battery.

Only Ramey prosecutes this appeal. He contends that (1) thé trial court erroneously denied his motion to suppress and admitted illegally seized evidence; (2) he was deprived of a fair trial when the court denied his motions for a mistrial and for severance; and (3) the twenty-year minimum sentence given him for the offense of armed robbery was excessive and should be reduced.

The evidence discloses that on March 11, 1967, Mrs. Florence Malone and her daughter Rita were in their home in the City of Chicago. With them was another daughter, Mrs. Marie DiVito. At about 6:15 p. m., a man dressed in a police uniform came to the door and inquired about a hit and run accident. After receiving answers, the man left.

During the evening of March 14, while Mrs. Malone and Rita were watching television, the doorbell rang. It was the same man. This time he said he saw the sign announcing the house was for sale. He wanted the interior shown to him. Rita Malone complied; and as she was showing some of the rooms, the doorbell rang again. The man said that it was his brother who was also interested in the house. The second man was let in. A short time later, one drew a gun and announced it was a “stick-up.” Both women were beaten; and the second man tore off Miss Malone’s clothes in an attempt to rape her. The house was ransacked. The two men left taking some money, pieces of costume jewelry, a Zenith 25-inch color television set, and a Grundig-Majestic stereo record player. Neighbors came; and the police were called. The two women were taken to a hospital where they remained in an intensive care ward for three and a half weeks.

The next day two detectives interviewed them. As a result of investigation, a photograph of the defendant was obtained and shown to the women on March 19. On seeing the photograph, both positively identified defendant as the man who was in their home on March 11 and who returned on March. 14. As a result of this identification, defendant was arrested. In his room were found a uniform which resembled that of a police officer, a hat, a nylon jacket, a pair of trousers with white stripes, a name plate, star, revolver, holster, handcuffs, and two pieces of white costume jewelry in the pocket of the jacket. The costume jewelry was later identified as that taken from the Malone home on March 14.

From defendant, the police learned the name and address of James Carter. They went to the Carter home; and in a living room found the Zenith 25-inch color television set and the Grundig-Majestic stereo record player taken from the Malone residence. James Carter was arrested a short time later, not far from his home.

Carter was represented by private counsel; and defendant by the Public Defender of Cook County. On the day the case was called, Carter moved to suppress the evidence taken from his home: the television set and the stereo record player. At the hearing on the motion, the prosecuting attorney said that the State intended to use as evidence the uniform, gun, and the costume jewelry taken from defendant when he was arrested. His counsel asked permission to join in the motion to suppress, saying he based his request on the representation concerning the evidence taken from defendant. This permission was granted on the statement of counsel that a written motion would be filed. No written motion was ever filed. No statement was made to the court by defendant, or by his counsel, that he was joining in the motion in order to suppress evidence taken from Carter’s home.

Six witnesses testified at the hearing on the motion. They were Gloria Carter, Catherine Carter, Robert Cozzi, Daniel Centracchio, Irene Ramey, and the defendant. When Gloria and Catherine Carter testified concerning the presence of officers in their home, direct examination was conducted by Carter’s attorney. Defendant’s counsel did not cross-examine them. When Irene Ramey and the defendant testified, his counsel conducted the direct examination. Carter’s counsel did not cross-examine them. When Officers Robert Cozzi and Daniel Centracchio testified, Carter’s counsel conducted the examination concerning the search of Carter’s home; and defendant’s counsel conducted the examination concerning the search of the Ramey home. When the motion to suppress was summarized and argued at the conclusion of all the evidence, only Carter’s attorney argued. He centered on the search of Carter’s home. Defendant’s counsel made no argument. When the trial judge made his ruling, he first commented on the search of defendant’s home and overruled his motion. He then commented on the search of Carter’s home and overruled his motion. At no time did defendant claim he was seeking suppression of evidence taken from Carter’s home.

In the trial that followed, the items taken from both homes were admitted in evidence. After the State rested its case, Gloria Carter, sister of James, was called as a witness. She testified that three or four days before police officers came to her home, her brother and the defendant brought in the television set and stereo recorder. Counsel for defendant moved for a mistrial claiming he did not know Carter was going to interpose a defense implicating defendant. The court heard arguments and overruled the motion.

James Carter then testified that on the Thursday before he was arrested, defendant and two of his friends sold him the television set and the stereo recorder for $300. Defendant’s counsel renewed the motion for mistrial. The court denied it. Defendant’s counsel did not cross-examine Gloria Carter or James Carter. No evidence was offered to contradict their testimony. After receiving instructions, the jury returned its verdicts against both defendants.

Defendant’s first contention is that the trial court erred in denying the motion to suppress and admitting in evidence the Zenith 25-inch color television set and the Grundig-Maj estic stereo recorder taken from the home of James Carter. Argument supporting this contention assumes that defendant moved to suppress the evidence taken from the Carter home. Our reading of the record, however, compels us to conclude that the claim defendant makes in this court was not made below. Therefore, the contention and the argument are refuted by the established principle that we will not consider questions concerning a search and seizure unless they are raised in the trial court. People v. Green, 36 Ill2d 349, 223 NE2d 101; People v. Harris, 33 Ill2d 389, 211 NE2d 693; People v. Beoh, 78 Ill App2d 98, 223 NE2d 424; People v. Hiller, 76 Ill App2d 261, 222 NE2d 153.

Defendant’s second contention is that he was deprived of a fair trial when the court denied his motions for mistrial and for severance. The motions were informal, made after the jury was sworn, and while it heard the defense, the State having already put in its case. They were made because defendant’s counsel thought the testimony of Gloria Carter and James Carter was injurious to the defendant.

It is settled in our criminal jurisprudence that jointly indicted defendants are ordinarily tried together. Whether the trial of jointly indicted defendants shall be separate is left to sound judicial discretion. People v. Ross (Pawlak), 41 Ill2d 445, 244 NE2d 608; People v. Barbaro, 395 Ill 264, 69 NE2d 692. A motion that has as its purpose the separation of defendants for trial must be made before the jury is sworn. People v. Fox, 319 Ill 606, 150 NE 347; People v. Anderson, 239 Ill 168, 87 NE 917. It is incumbent on a defendant moving for a separate trial to show how he will be prejudiced by a joint trial; and, if he fails to make the showing required, he may not, on review, complain of the denial of his objections to a joint trial. People v. Heisenhelter, 317 Ill App 511, 47 NE2d 108. The paramount inquiry or test is, are the defenses of such an antagonistic nature that a severance is imperative to insure a fair trial. People v. Grilec, 2 Ill2d 538, 119 NE2d 232. It is our judgment that when tested by these standards, the trial court did not abuse its discretion nor deprive defendant of any fundamental right by denying the informal motions for a mistrial and for severance made after the jury was sworn and while the case was being heard.

Defendant’s third contention is that the twenty-year minimum sentence given him by the court for the offense of armed robbery is excessive and should be reduced. He argues that this court’s power (Ill Rev Stats (1967), c 110A, § 615) to reduce the punishment imposed by the trial court should be exercised, and a shorter sentence imposed that will aid his rehabilitation.

The power to reduce the punishment imposed by a trial court should be exercised with caution and circumspection. People v. Caldwell, 39 Ill2d 346, 236 NE2d 706; People v. Brown, 107 Ill App2d 406, 246 NE2d 61. The primary purpose of this power is to prevent arbitrary or oppressive treatment of offenders and to provide penalties which are both proportionate to the circumstances of the case, and which recognize differences in rehabilitation potential of offenders. People v. Drewniak, 105 Ill App2d 37, 245 NE2d 102. When a sentence is imposed within the limits prescribed by statute, it will not be disturbed on review unless it clearly appears the punishment is a departure from fundamental law, its spirit and purpose; or, that the punishment is manifestly in excess of the provisions of Section 11 of Article II of the Hlinois Constitution requiring that all penalties be proportioned to the nature of the offense. People v. Juve, 106 Ill App2d 421, 245 NE2d 293.

Defendant was convicted by the jury of three serious offenses. Few crimes are as heinous as the invasion of a home and the infliction of terror on two defenseless women. The punishment imposed is consistent with sound judicial discretion.

The judgment is affirmed.

Judgment affirmed.

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

       In this opinion Ernest Ramey will be referred to as the defendant. James Carter, who was a codefendant, but who does not join in this appeal, will be referred to by name.


author: MR. PRESIDING JUSTICE DRUCKER

text:
    People of the State of Illinois, Plaintiff-Appellee, v. William R. Tackett (Impleaded), Defendant-Appellant.
    Gen. Nos. 53,314, 53,316,53,318.
    First District, Fourth Division.
    October 15, 1969.
    Gerald W. Getty, Public Defender of Cook County, of Chicago (Harold A. Cowen, Norman W. Fishman, and James J. Doherty, Assistant Public Defenders, of counsel), for appellant.

      Edward V. Hanrahan, State’s Attorney of Cook County, of Chicago (Francis X. Riley, Special Assistant State’s Attorney, and Elmer C. Kissane, Assistant State’s Attorney, of counsel), for appellee.
   MR. PRESIDING JUSTICE DRUCKER

delivered the opinion of the court.

The defendant pleaded guilty to three indictments charging him with burglary and theft. He was sentenced to a term of two to five years on each charge, all sentences to run concurrently. The defendant raises three points on appeal: (1) the trial court was under an obligation to order a hearing upon its own motion on the question of defendant’s sanity; (2) defendant did not knowingly, understandingly and voluntarily enter a plea of guilty; and (3) the trial judge did not adequately indicate to defendant the consequences of his guilty pleas as to all three charges.

On the day of the trial, defendant’s retained counsel on theft indictment No. 67-276 indicated to the court that the defendant did not wish to follow his independent recommendation and requested a continuance. This request was denied. The State then answered ready to indictment No. 67-3259 which charged the defendant with burglary. The court held the case until the assistant public defender could appear as counsel for defendant on this charge. When court reconvened, the public defender stated that defendant had authorized him to stand in the place and stead of his other two lawyers on the theft indictments. The defendant, by his attorney, then withdrew his pleas of not guilty and entered pleas of guilty to the three indictments.

Prior to the date of trial, the trial judge had ordered an examination of the defendant by the Behavior Clinic. The diagnosis of Dr. Haines was “Sociopathic Personality Disturbance. He knows the nature of the charge and is able to cooperate with his counsel.”

The defendant contends that the trial court erred in not ordering a sanity hearing based upon Dr. Haines’ finding that defendant had a “sociopathic personality disturbance.” We find no such error. In People v. Pridgen, 37 Ill2d 295, 298, 226 NE2d 598, the court stated:

It is clear that the defendant is entitled to a sanity hearing on the issue of his competency to stand trial if facts have been presented to the court which raise a bona fide doubt of defendant’s sanity. (Pate v. Robinson, 383 US 375, 15 L Ed2d 815; McDowell v. People, 33 Ill2d 121; People v. Burson, 11 Ill2d 360; Brown v. People, 8 Ill2d 540.) Nevertheless, it is within the discretion of the trial judge to decide whether the facts and circumstances raise a bona fide doubt of the defendant’s sanity so as to require a hearing. People v. Milligan, 28 Ill2d 203; People v. Baker, 26 Ill2d 484.

In the instant case no request for a sanity hearing was made by the defendant or his counsel and no facts or circumstances appear in the record which establish a bona fide doubt of defendant’s sanity so as to require the court to cause a sanity hearing to be held. The only evidence relied upon by the defendant to show his lack of mental capacity is the report of the Behavior Clinic. However, since the report itself found that the defendant understood the nature of the charge and could cooperate with counsel, it clearly did not establish a bona fide doubt of defendant’s sanity.

The defendant also argues that he did not knowingly, understandingly and voluntarily enter a plea of guilty. We do not agree. At the trial the following colloquy took place:

MR. MALONEY: “The other two lawyers, Your Honor, and I, and Mr. Tackett have discussed these indictments together and as a result of those discussions Mr. Tackett has authorized me, and the other two lawyers have authorized me to act on their behalf, and on his behalf”—
THE COURT: “All right, sir.”
MR. MALONEY: “And it is Mr. Tackett’s desire this morning, Your Honor, to withdraw his pleas of not guilty, which are now of record, and to enter pleas of guilty to the three indictments.”
THE COURT: “Mr. Tackett, before accepting your plea of guilty to these three indictments, 67-276, 67-1620, and 67-3259,1 inform you that when you plead guilty you are giving up your right to a trial by jury. Do you understand that?”
DEFENDANT TACKETT: “Yes, I do, Your Honor.”
THE COURT: “When you plead guilty to the crime of burglary you subject yourself to a sentence by this Court of not less than a year and as much as the rest of your life.
“Do you understand that?”
DEFENDANT TACKETT: “Yes, I do, Your Honor.”
THE COURT: “I inform you that if any promises have been made to you to induce you to plead guilty instead of not guilty the Court is not bound by any such promises that may have been made and the Court would sentence you in accordance with the facts presented before it.
“Knowing these things do you persist in pleading guilty, Mr. Tackett?”
DEFENDANT TACKETT: “Yes, I do, Your Honor.”
THE COURT: “There will be a finding of guilty to all three indictments.”

The defendant personally, clearly and articulately answered the court’s several inquiries, and with the same directness knowingly and voluntarily pleaded guilty, all of which is affirmatively shown by the record before us. See Boykin v. Alabama, 395 US 238; People v. Mims, 42 Ill2d 441, 248 NE2d 92.

The defendant next contends that the trial court did not sufficiently indicate the consequences of a plea of guilty as to all three charges. The trial judge stated that for the crime of burglary the defendant could receive a sentence “of not less than a year and as much as the rest of your life.” He did not advise the defendant as to the possible sentences for theft. The defendant stated that he understood he could be sentenced to life imprisonment, and yet he persisted in his pleas of guilty. We find that this error was harmless since the maximum sentence for burglary is any indeterminate term while the sentence for theft is a maximum of ten years.

For the reasons herein set forth the judgment and sentence of the Circuit Court are affirmed.

Affirmed.

ENGLISH and LEIGHTON, JJ., concur.


text:
    People of the State of Illinois, Appellee, v. Thomas McGraw and Jerry Robertson, Appellants.
    Gen. No. 53,347.
    First District, Fourth Division.
    October 15, 1969.
    Rehearing denied November 18,1969.
    David B. Kahn, of Chicago, for appellants.
    Edward V. Hanrahan, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane, Assistant State’s Attorney, and Robert Kelty, Special Assistant State’s Attorney, of counsel), for appellee.
   MR. PRESIDING JUSTICE DRUCKER

delivered the opinion of the court.

After a bench trial, the defendants were found guilty of battery and were sentenced to six months in the Illinois State Farm at Vandalia. The cases were consolidated on appeal. The defendants’ sole contention is that they did not knowingly and understandingly waive their right to a jury trial.

The defendants were initially charged with robbery. At the preliminary hearing the State’s witnesses testified to the alleged criminal conduct and subsequent arrest of the defendants. After presenting its case the State asked leave to nolle prosse the felonies and file reduced charges of battery. Defense counsel, an Assistant Public Defender, then asked leave to withdraw from the case and have private counsel appointed to represent one of the defendants. He stated that based upon the evidence introduced by the State, the defendants’ stories conflicted as to who actually beat the complaining witness and he therefore could not represent two people with conflicting stories being tried together. The following colloquy then took place:

THE COURT: “Do you want to represent one?”
MR. SCHEFFLER: “Unless both want me to represent them.”
THE COURT: “Do you boys want the Public Defender to represent you?”
MR. ROBERTSON: “Yes, but what he said about us blaming each other is not right.”
MR. McGRAW: “Yes, we want the Public Defender.”
THE COURT: “Then you talk with the Public Defender and straighten it out.”
(Discussion off the record between the Public Defender and the defendants.)
MR. SCHEFFLER: “They have decided they want to be represented by me today.”
THE CLERK: “The charge is battery. What is the plea?”
THE COURT: “Nolle prosse the felony.”
MR. SCHEFFLER: “Not guilty, jury waived.”
(Witnesses sworn.)
THE COURT: “Were they arraigned ?”
THE CLERK: “Yes. The charge is battery, and the plea is not guilty, jury waived.”
MR. KARA VIDAS: “Will you stipulate that the evidence heard on the preliminary hearing would be the same as on the present charge of battery?”
MR. SCHEFFLER: “So stipulated.”
THE COURT: “So stipulated, so ordered. Proceed.”

Defendants contend that they did not knowingly and understandingly waive their right to a jury trial. In People v. Brownlow, 114 Ill App2d 458, 252 NE2d 685, the court said, “The requirement that a jury waiver by defendant must be knowingly made, has been held to impose a duty on the trial judge to ascertain to his satisfaction that the waiver was understandingly made. People v. Turner, 80 Ill App2d 146.” In the instant case neither defendant signed a written jury waiver and their counsel waived the right to a jury trial for them. The court made no attempt to explain the effects of such a waiver but immediately proceeded with the trial.

In Boykin v. Alabama, 395 US 238, 242, the United States Supreme Court stated, “It was error, plain on the face of the record, for the trial judge to accept petitioner’s guilty plea without an affirmative showing that it was intelligent and voluntary.” By analogy the same standard may be applied to determine whether or not a jury waiver was understandingly and intelligently made. In the case before us the record is silent as to any affirmative showing that the defendants knew or understood the effects of a jury waiver. Therefore, the trial court failed to fulfill its obligation to ascertain to its satisfaction that a jury waiver was understandingly made.

The State argues that the principle of silent acquiescence should be applied to the conduct of the defendants when their attorney waived the right to a jury trial. People v. Novotny, 41 Ill2d 401, 244 NE2d 182; People v. Sykes, 110 Ill App2d 91, 249 NE2d 121. We do not agree. In People v. Brownlow, supra, the court said:

The State urges that defendants’ silence before the court should be construed as an acquiescence to their counsel’s statement that a jury was waived, citing People v. Melero, 99 Ill App2d 208. We recognize that whether a jury waiver has been knowingly and understandingly made, depends upon the facts and circumstances of each case, and there can be no precise formula for determining the issue. People v. Palmer, 27 Ill2d 311; Richardson, supra. We must, however, disagree with the Melero opinion to the extent that it stands for the proposition there stated (pages 211-212) that “the trial court was entitled to rely on the professional responsibility of defendant’s attorney that when he informed the court that his client waived a jury, it was knowingly and understandingly consented to by his client.” We believe that the court cannot, in that way, delegate its responsibility to assure to a defendant his understanding of so basic a right as that of trial by jury.

For the reasons herein presented, the judgments of the Circuit Court are reversed and remanded for a new trial.

Reversed and remanded.

ENGLISH and LEIGHTON, JJ., concur.


author: TRAPP, P. J.

text:
    Pilgrim Holiness Church-Illinois District, an Illinois Corporation, and Orville M. Awe, L. A. Williams and Elmer L. Waltrip, Trustees of the First Pilgrim Holiness Church, Decatur, Illinois, Plaintiffs-Appellees, v. First Pilgrim Holiness Church, Decatur, Illinois, a Corporation, and Kennes K. Karnes, Dean Wood and Kenneth Roller, Trustees, James Southerland, et al., Defendants-Appellants.
    Gen. No. 11,099.
    Fourth District.
    October 16, 1969.
    Rehearing denied November 14,1969.

      Ferguson and Ferguson, of Decatur, for appellants.

      Denz, Lowe, Limerick & Moore, of Decatur (Daniel M. Moore, Jr. and Dennis B. Rodgers of counsel), for appellees.
   TRAPP, P. J.

Defendants, First Pilgrim Holiness Church, Decatur, Illinois, a corporation, and Kennes K. Karnes, Dean Wood, Kenneth Roller, Trustees, James Southerland, Bessie Taylor, Chester Wood, Howard Beecher, Jr., and Eleanor McAnelly, appeal from a decree of the circuit court in favor of Pilgrim Holiness Chureh-Illinois District, a corporation, Orville M. Awe, L. A. Williams and Elmer Waltrip, Trustees of the First Pilgrim Holiness Church, Decatur, Illinois, plaintiffs, ordering defendants to transfer moneys, personal property and possession of real estate of First Pilgrim Holiness Church, Decatur, Rlinois, to plaintiffs and enjoining defendants from the use of the name, First Pilgrim Holiness Church, or any other name incorporating the words Pilgrim Holiness or substantially similar words.

The origin of the dispute between plaintiffs, representing the district Pilgrim Holiness Church, and also the general, national and international Pilgrim Holiness Church, and the defendants representing the local church, was the adoption of a merger plan between the conference of the general Pilgrim Holiness Church and the conference of the Wesleyan Methodist Church wherein the merger was to be effective under the denominational name Wesleyan. Defendants assert that the merger resulted in the general Pilgrim Holiness Church abandoning established tenets, doctrines and practices.

The trial court determined that the property of the local church was held in trust for the general church under the rules of the Pilgrim Holiness Church, and that the court could not inquire into the doctrines of the church.

Defendants contend (1) that title to local church property vested in the First Pilgrim Holiness Church, Decatur, Illinois, an Illinois not-for-profit corporation upon its incorporation, (2) that under the church manual, the Pilgrim Holiness Church, Illinois District, had no authority to bring suit, (3) that appointment of new trustees for the local church was beyond the authority of the district church, (4) that the court erred in excluding evidence that neither the general church nor the district church contributed in the acquisition of local church property, (5) that the court erred in excluding evidence that the general church and the district church abandoned the ancient church denomination and doctrines, (6) that by the law of Illinois property received by a local church corporation belongs to the trustees of that church, (7) that by conveyances by the trustees to individuals free of the trust restrictions, the parsonage property was freed from an express trust in the original deed, and (8) that the trial court erred in denying defendants’ motion for change of venue based upon bias of the trial judge.

We will consider the last contention first. At the close of the plaintiffs’ evidence, the defendants made a motion to dismiss for want of equity. Plaintiffs made a motion for a decree for plaintiffs. Both motions were denied. In the course of the denial of the defendants’ motion, the trial court remarked that he was convinced that the answer did not present a meritorious defense but he would give defendants their day in court. Defendants moved for a change of venue. Defendants state that until the court made the foregoing statement, defendants were not advised of the bias of the trial judge. We think that both the denial of plaintiffs’ motion for a decree and the denial of defendants’ motion to dismiss for want of equity after plaintiff had rested were rulings on matters of substance. The Supreme Court of Illinois has consistently held that a motion for change of venue presented after the court has ruled on matters going to the merits comes too late. The People v. McDonald, 26 Ill2d 325, 330, 186 NE2d 303. The rule is designed to preclude counsel from first ascertaining the attitude of the trial judge on a hearing relating to some issue of the cause and then, if the court’s judgment is not in harmony with counsel’s theory, to assert prejudice as a ground for allowing a change of venue. The People v. Chambers, 9 Ill2d 83 on 89,136 NE2d 812.

The second proposition is that the district church had no authority to bring suit, and the third contention is that the district church had no authority to appoint new trustees. A review of the pleadings and of the documents admitted in the pleadings and jointly agreed upon in the presentation of the evidence clearly discloses the nature of the structure of the Pilgrim Holiness Church, the line of authority within the church from local to district to general church, and the clear submission of the local church to these documents and lines of authority in its charter.

By the complaint and answer it is established that plaintiff, Pilgrim Holiness Church — Illinois District, an Illinois not-for-profit corporation, is the legal entity in Illinois for The Pilgrim Holiness Church corporation, a not-for-profit corporation organized under the laws of Indiana, which latter corporation is the legal entity of the Pilgrim Holiness Church, a religious denomination in the United States and Canada, having a presbyterial form of church government. It is established that defendant First Pilgrim Holiness Church, Decatur, Illinois, began on April 26, 1938, as an unincorporated religious body first known as “The Pilgrim Holiness Church of Decatur, Illinois,” and since May 15, 1962, has been an Illinois not-for-profit corporation with a charter, a copy of which is attached to the complaint. The corporate name in said charter is “First Pilgrim Holiness Church, Decatur, Illinois.”

The complaint alleges also:

“4. Defendant First Pilgrim Holiness Church, Decatur, Illinois, is governed by, is a subsidiary of and is subject to the Manual of The Pilgrim Holiness Church Corporation, an Indiana Corporation, with General Headquarters at 230 East Ohio Street, Indianapolis, Indiana, and District Headquarters at Charleston, Illinois, in the entity of Pilgrim Holiness Church — Illinois District, an Elinois corporation, as will more fully appear from Paragraph No. 5 of said Exhibit A.”

The answer denies the allegations of Paragraph 4, except that it admits that defendants accede to such provisions of the Manual of Pilgrim Holiness Church “as do not conflict with the statutory and case law of Illinois and their rights thereunder.”

The answer admits that on January 4, 1967, the official board of the defendant church severed relationship with the plaintiff, Pilgrim Holiness Church — Elinois District and The Pilgrim Holiness Church Corporation, an Indiana corporation.

On or about January 16, 1967, plaintiff, Pilgrim Holiness Church — Elinois District, in District Council assembled, did as a result of said severance, declare defendant church to be below the status of an organized church and did appoint new trustees and a new pastor. The answer admits the foregoing action, but alleges the action was in violation of the church manual, section 51, paragraphs 3 and 5, section 53, paragraphs 7 and 9, section 102, paragraph 18, and Ill Rev Stats, e 32, § 169.

Notwithstanding the denial of portions of paragraph 4 of the complaint hereinbefore set forth, the charter of the defendant church, which is admitted to be correctly set forth, provides in paragraph 5, subparagraph 5 as follows:

“5. The Corporation shall be a subsidiary of, and subject to the Manual, rules and regulations of the Pilgrim Holiness Church, an Indiana corporation, with General Headquarters at 230 East Ohio St., Indianapolis, Indiana, and District headquarters at Charleston, Illinois.”

The Manual of the Pilgrim Holiness Church Revised by the General Conference of 1962 is joint exhibit No. 1 in the cause. Section 25, paragraph 1, requires a membership of seven persons for an organized local church. Section 51, paragraph 1, provides that local trustees shall attend to all legal matters pertaining to the church. It also provides that they shall hold in trust for Pilgrim Holiness Church all property committed to them. Section 51, paragraph 3, provides;

“When a local church membership drops below the status of an organized church, the district council is empowered to appoint trustees. Said trustees may. or may not be members of the local church, but must be members of the Pilgrim Holiness Church. In the event of sale of such property, said sale must be authorized by the district council and all proceeds shall be placed at the disposition of said district council.”

Section 51, paragraph 4, provides that no board of trustees may divert property from the Pilgrim Holiness Church. Section 60, paragraph 5, provides that no local congregation shall buy property or erect a building for worship without approval of the district council for its location. Section 60, paragraph 6, provides that before incorporating, the proposed articles of incorporation shall be approved by the district superintendent. Section 60, paragraph 7, provides:

“Each local church shall carefully regard its relation and duty to the district organization in which it is located and shall cooperate with and be subject to the advice of its district superintendent.”

Section 102 provides:

“The duties of the council within the district shall be similar to the duties of the General Board over the whole church, except that its oversight shall be more particularly with reference to the individual churches, ministers, deaconesses and licentiates within its jurisdiction.”

Section 102, paragraph 10, provides that before any local Pilgrim Holiness Church is incorporated, it must be authorized by the district council. Section 102, paragraph 20, provides:

“It shall be the duty of the district council, where a local church becomes disorganized, to take possession of the property of such church on behalf of the district, and to direct any remaining trustees or board members of such disorganized church in the sale or transfer of such property.”

Section 132 provides that the General Board is the chief governing body of the church in the interim of the International Conferences, and as such is empowered to perfect all plans necessary for the performance of its duties. Part V of the Manual provides for a judicial system, and for various types of original jurisdiction in the local board, the district council and the general board, and also provides for appeals from local boards to district councils and to the general board.

The documents create a clearly defined situation in which a local church from its inception and by its charter submits itself to the rules and line of authority defined in the rules of the general church. Those rules clearly make the district church the representative of the general church in the district.

Defendants cite certain sections of the Church Manual (section 51, paragraphs 3 and 5, section 53, paragraphs 7 and 9, section 102, paragraph 18) which provide certain rules for removing a trustee or a pastor. It would appear that by its action severing relationship with the general church, the local church declared that it was no longer part of the general church. This would clearly bring into play the provision that the local church had fallen below the status of an organized church because an organized church would have to mean a church organized within the clearly stated rules. Rule 102, paragraph 20, clearly authorizes the newly appointed trustees and the district church to take possession of the property when the local church becomes disorganized, and to bring suit to protect such.

Under the contention of defendants that title to local church property vested in the local church corporation, it would be necessary to find that the defendant trustees are, in fact, the trustees of the corporation. Under the documents submitted, it also would be necessary to find that the local corporation is a subsidiary of the general church subject to the district church under the very terms of its charter. Since its charter is specifically subject to the Manual which states that local trustees hold property in trust for the general church (Manual Section 51, paragraph 1), the property of the local church is held in an express trust for the general church by contract.

The defendants’ fourth contention that neither the general church, nor the district church, contributed to the acquisition of local church property is without merit. The rules provide that the local church holds all property committed to it in trust for the general church.

The defendants argue that the general church has abandoned the ancient doctrines of the true church and the local church has adhered to them, and is, therefore, in effect the true church. In Presbyterian Church v. Hull Church, 393 US 440, 21 L Ed2d 658, 89 S Ct 601 (1968), the United States Supreme Court declared that the restraints of the First Amendment to the Constitution of the United States do not permit a civil court to award church property on the basis of the interpretation and significance the civil court assigns to aspects of church doctrine. On page 665, the court, after declaring the above principle, said:

“Hence, States, religious organizations and individuals must structure relationships involving church property so as not to require the civil courts to resolve ecclesiastical questions.”

In this case the corporate charter and the church manual to which it specifically refers clearly structured the relationship to place ultimate control of the church property in the general church so that a local church withdrawing from the general church relinquished any claim to control of the church property.

It is urged that by the law of Illinois, property received by the local church corporation belongs to the trustees of that corporation. Defendants contend that where there is no express trust in the deed in favor of the general church, legal title is in the local church, and cite Glader v. Schwinge, 336 Ill 551, 168 NE 658. The court said:

“Where a deed to trustees for the benefit of a church society contains no express declaration of trust for the general body of any church denomination or for the teaching or practice of any particular religious principles or doctrines of faith, the right to the possession, control and use of the property is solely in the members of the church society. In Calkins v. Cheney, 92 Ill 463, the deed was to the trustees of Christ Church, with no express declaration of trust. It was held that the property belonged to the society or congregation in its corporate capacity — not in trust for the benefit of the Protestant Episcopal Church as a religious denomination, but independent of it and not subject to the control of any ecclesiastical judicatory; that notwithstanding the fact that the rector of Christ Church may have been deposed from the ministry of the Protestant Episcopal Church under competent ecclesiastical authority and the members of the parish or congregation still chose to attend upon his ministrations in their house of worship, this could not operate to divest the parish or congregation of the title to their property and of the right to occupy and use it in such manner and for such purpose as they might deem proper.”

This is answered by the fact that plaintiffs are the new trustees. There are two additional factors. One deed to Lot 13 of Eastlake except the East 42 feet was “in trust for the use and benefit of the Ministry and membership of The Pilgrim Holiness Church, in the United States of America, subject to the Manual and usage of said Church, as from time to time revised.” An attempt was made to eliminate this trust by conveyance from the trustees to individuals, and a reconveyance to the trustees without the restrictive language. By defendants’ seventh contention, the property was thus freed from the trust. No citation of authority is necessary to demonstrate that these transactions were wholly ineffective to destroy the trust. The balance of Lot 13 was conveyed to the Trustees of First Pilgrim Holiness Church of Decatur, Illinois, and their successors in office. The corporate charter, as previously stated, limits the powers to the Manual of the Church and the Manual of the Church provides that all property is held in trust for Pilgrim Holiness Church.

It is urged that the court below erred in enjoining defendants from the use of the name, “First Pilgrim Holiness Church,” or any other name incorporating the words “Pilgrim Holiness” or substantially similar words. The trial court’s memorandum opinion in December, 1967, finds the merger of the national and district churches with the Wesleyan Church, and that after such merger plaintiffs ceased to exist as a viable entity. In ruling on post-trial motions in 1968, the court stated:

“The Pilgrim Holiness Church as such has merged in the Wesleyan Methodist, and consequently has ceased its independent existence. . . .”

Such determination is inconsistent with the principle that if there is no possibility that the corporate names will tend to confuse the public or mislead them in any way, there is no reason for protection. International Committee of Young Women’s Christian Ass’ns v. Young Women’s Christian Ass’n of Chicago, 194 Ill 194, 62 NE 551, 27 ALR2d 959. There is nothing in the record which suggests that the plaintiffs retain or continue to use the name. The court’s findings support the conclusion of abandonment of such name.

The record reflects that there is at least one other religious entity known as the Pilgrim Holiness Church of New York. Simulation of names is restrained to prevent fraud and deception in dealing, or obtaining a benefit from the confusion of identity, and not because there is a property right in the name. American Gold Star Mothers, Inc. v. National Gold Star Mothers, 191 F2d 488, 27 ALR2d 948 at 952.

So much of the decree as enjoins the individual defendants from using a name for a religious society which incorporates the words “Pilgrim Holiness” or similar words is reversed, and the decree is otherwise affirmed.

Affirmed in part, reversed in part.

SMITH and CRAVEN, JJ., concur.


author: MR. PRESIDING JUSTICE DEMPSEY

text:
    Theodore C. Brewton, Jr., Plaintiff-Appellant, v. Civil Service Commission of the City of Chicago and the Chicago Public Library, Defendants-Appellees.
    Gen. No. 52,855.
    First District, Third Division.
    October 16, 1969.

      Kleinian, Cornfield & Feldman, of Chicago (Linzey D. Jones, of counsel), for appellant.
    Raymond F. Simon, Corporation Counsel of City of Chicago (Marvin E. Aspen, Head of Appeals and Review Division, Assistant Corporation Counsel, Robert J. Collins, Special Assistant Corporation Counsel, and Edmund Hatfield, Assistant Corporation Counsel, of counsel), for appellees.
   MR. PRESIDING JUSTICE DEMPSEY

delivered the opinion of the court.

The Civil Service Commission of the City of Chicago ordered the plaintiff discharged from his position as a janitor for the Chicago Public Library. He appealed under the Administrative Review Act (Ill Rev Stats 1965, c 110, § 264, et seq.) and the Circuit Court affirmed the commission’s order. In this further appeal his contentions are that the commission did not have jurisdiction to discharge him and that its findings were against the manifest weight of the evidence.

The plaintiff was employed by the library in April 1965. During the early part of 1966 his work became unsatisfactory and on July 1st he was warned that he might be suspended. He did not appear for work from July 1 to July 18 and on the latter date he was suspended for thirty days. On August 18 charges were filed against him with the Civil Service Commission. He was charged with conduct unbecoming a City employee, neglect of duty, excessive absenteeism and tardiness, and failure to pay his just debts within a reasonable time. The specifications were that he repeatedly refused to do any work and was asleep on numerous occasions, that he was absent 49 days and reported one-half to two hours late for work on 16 occasions, and that he had six debts which were long overdue.

The commission’s hearing was held early in September and its decision was filed October 11, 1966. At the hearing, the specification that he refused to work was withdrawn and the specification that he was asleep on numerous occasions was altered to charge that he was found asleep two times.

The commission paid no attention to the amendments and little to the evidence. It made factual findings which repeated verbatim the original specifications, including the one that had been withdrawn. In some instances its findings of fact did not comport with the evidence. Despite this carelessness, the record contains substantial evidence supporting the charges of absenteeism, tardiness and sleeping on the job. The findings of an administrative agency on questions of fact are to be held prima facie true (Ill Rev Stats 1965, c 110, § 274) and its decision will not be set aside unless it is against the manifest weight of the evidence. Avent v. Police Board of City of Chicago, 49 Ill App2d 228, 199 NE2d 637 (1964). Although the commission’s detailed findings were inaccurate in several respects, its decision was not contrary to the manifest weight of the evidence.

The plaintiff was suspended for thirty days on July 18 and the charges against him were filed on August 18, 1966 — an interval of thirty-one days. Because the charges were not filed within thirty days of his suspension he contends that the commission was without jurisdiction to dismiss him. Alternatively, he contends that he is entitled to back pay for the period between the expiration of his suspension and his final discharge.

The issue of jurisdiction rests on the construction of the Illinois Municipal Code, Ill Rev Stats 1965, c 24, § 10-1-18, which provides in pertinent part:

“Except as hereinafter provided in this section, no „ . . employee in the classified civil service of any municipality . . . shall be removed or discharged, or suspended for a period of more than 30 days, except for cause upon written charges and after an opportunity to be heard in his own defense. . . . Nothing in this Division 1 shall limit the power of any officer to suspend a subordinate for a reasonable period, not exceeding 30 days. . . .”

Under this statute a municipality may suspend a civil service employee for a reasonable period of time not exceeding thirty days. It cannot suspend him for a greater length of time, remove or discharge him without preferring written charges with the Civil Service Commission. A hearing must then be held to determine if there is just cause for a longer suspension or for the termination of his employment. The statute is designed to protect municipal employees from discharge for political or arbitrary reasons by providing requirements and procedures for their dismissal.

The plaintiff’s position is that the statute must be interpreted as implying that charges have to be filed within the period of suspension. He argues that the purpose of the statute is to provide a speedy hearing for the suspended employee, that the failure to file charges until after the expiration of the suspension defeats this purpose and results in the employee being suspended for more than the designated period, and that if a municipality does not invoke the commission’s power to discharge an employee within the period of his suspension the commission is without jurisdiction to order his dismissal.

The Appellate Court had occasion to consider an issue closely related to the present case in Foreman v. Civil Service Commission of City of Chicago, 7 Ill App2d 122, 129 NE2d 245 (1955). In Foreman the court rejected the analogous contention that charges against a civil service employee had to be tried within the period of his suspension. Charges were filed against a police officer within the thirty-day period during which he was suspended, but the hearing was held after the period. The officer argued on appeal that the statute limited suspensions to thirty days; that a hearing on charges must be held within the thirty-day period; that the period having expired without a hearing, his suspension had terminated and he had been automatically reinstated to his position at the end of the thirty-day period, and that, therefore, the commission had no jurisdiction to try him. The court held the commission had not lost jurisdiction by conducting the hearing after the expiration of the suspension. The court stated:

“The statute, it is true, limits the length of this suspension. There is, however, no express language that charges must be filed, witnesses heard and the report of the Commission disposing of the charges filed within the 30-day period. We conclude that it would be unreasonable to find that it is the statutory intent to impose a fixed period of such short duration within which the Commission must hear and determine a cause or else lose jurisdiction thereof.”

The Foreman case was decided under the 1953 statute which is almost identical with that of 1965. What was decided in Foreman is applicable to the present case. The 1965 statute (§ 10-1-18 of c 24) does not require, directly or by implication, that charges leading to dismissal must be filed within the period of suspension. The commission did not lose jurisdiction over the plaintiff’s case because the charges were filed after the thirty-day suspension came to an end.

Permitting the filing of charges for dismissal after expiration of a thirty-day suspension rather than during the suspension results in no great prejudice to an employee; he loses no right of review and loses no pay for he is entitled to compensation from the time his suspension ends until the time he is discharged. We thus sustain the plaintiff’s alternative contention that he should be paid for the period between the termination of his suspension and the date of his discharge by the commission. The plaintiff remained an employee of the library during his suspension. When his suspension ended he was still an employee and was entitled to reinstatement to active duty. If it were otherwise it would result in his being suspended without pay for more than the permitted thirty days. The belated filing of charges did not change his status. He was not under suspension at the time the charges were filed and he was no different than any other employee who may have charges preferred against him while still occupying his position. An unsuspended employee continues to work and continues to receive his salary until the charges are decided. If he is exonerated his salary is not interrupted; if he is found guilty and discharged his salary is terminated. As an unsuspended and undischarged employee the plaintiff was entitled to compensation until his employment came to an end.

There remain in dispute two issues: Whether the plaintiff can be reimbursed through the present litigation and whether his suspension commenced on July 1, or on July 18,1966.

The trial court decided that it had no jurisdiction to rule on the back pay issue. This issue had not been raised in the hearing before the commission, and since the scope of review under the Administrative Review Act is limited to the questions of fact and law presented by the record (Ill Rev Stats 1967, c 110, § 274; River Forest State Bank & Trust Co. v. Zoning Board of Appeals, 34 Ill App2d 412, 181 NE2d 1 (1961)), the decision of the trial court was correct.

The plaintiff contended that he was actually suspended on July 1 rather than on July 18, 1966. Although the commission made no specific finding as to when the suspension commenced, it is not necessary to remand this case for referral to the commission for a finding on this issue because — if the plaintiff is serious in contending that he was suspended prior to receiving the official, written notice of that fact — the issue can be resolved in any action he may take to recover his unpaid salary.

The judgment is affirmed.

Affirmed.

SCHWARTZ and McNAMARA, JJ., concur.


text:
    Ethel Haffa, Plaintiff-Appellant, v. Pauline Haffa, Dora Haffa, Mae Haffa, and American National Bank and Trust Company, as Trustee Under Its Trust No. 25191, Defendants-Appellees.
    Gen. No. 53,219.
    First District, Third Division.
    October 16, 1969.

      Samuel S. Cohon and Wexler & Wexler, of Chicago, for appellant.

      Donald J. O’Brien, A. Edmund Peterson, Sheldon Rubin, Leonard Higley, and Robert W. Woodward, of Chicago (Leonard Higley, of counsel), for appellees.
   MR. JUSTICE McNAMARA

delivered the opinion of the court.

This was an action brought by plaintiff, Ethel Haffa, for a declaratory judgment declaring that her signature was forged on a certain deed and that said deed was void insofar as it purported to convey her interest in the subject property. The action also sought a declaration that all subsequent conveyances by the grantees of said deed, Pauline, Dora and Mae Haffa, were of no effect, including their conveyance to defendant, American National Bank and Trust Company, as Trustee. The defendant bank counterclaimed, asking the court to declare that it was the owner in fee simple of the subject property, and that plaintiff had no interest in said property. At the conclusion of its case, the bank obtained leave to amend its answer and counterclaim to include additional defenses and for general equitable relief.

The trial court entered a decree finding that Ethel Haffa had no interest of any nature in the said real estate and that the bank was the owner in fee simple of said property. The court also found that the deed, dated July 5, 1958, conveying title from Titus and Ethel Haffa to the Haffa sisters, was not a forgery, but a valid instrument which was executed by plaintiff’s husband, Titus Haffa, on behalf of himself and his wife in accordance with the practice condoned and tacitly approved by plaintiff over many years. The court further found that plaintiff knew of the transfer of legal title and acquiesced in, adopted, ratified and acknowledged such transfer by numerous actions, and that the bank and its predecessors in title have been in adverse possession of said property under color of title acquired in good faith, and during more than a seven-year period have paid taxes on said property. The court also found that, based on its observation and upon the inconsistencies of plaintiff’s testimony, she was not a credible witness.

Plaintiff appeals, contending that certain documentary evidence was erroneously admitted without a showing of genuineness or valid execution; that defendants did not establish a course of conduct by plaintiff which would estop her from asserting the forgery; that the court abused its discretion in permitting the bank to amend its pleadings at the conclusion of the case; that defendants failed to prove their affirmative defenses; that adverse possession is not a defense against forgery; and that before possession of one cotenant can be adverse to a co-tenant in common, there must be a disseizin ‘or ouster.

The subject property, located at 1240 Lake Shore Drive, Chicago, was purchased by Titus and Ethel Haifa, husband and wife, as joint tenants on February 8, 1955. On June 9, 1958, a deed purportedly signed by Titus and Ethel Haifa and acknowledged by Charlotte Brostow, a notary public, conveyed the property to Pauline, Dora and Mae Haifa, sisters of Titus. Title was held by LaSalle National Bank as trustee for the sisters. The sisters lived in the building from 1957 until the time of this suit; Titus and plaintiff lived next door. Titus and plaintiff used space in the basement of the subject property for storage. On July 10, 1967, American National Bank and Trust Company, as trustee, purchased the property from the sisters. After the purchase by the bank, the sisters continued to live in the property by virtue of a lease.

Plaintiff testified that she did not sign the deed in question, and that she did not authorize anyone to sign it for her. An expert examiner of questioned documents testified that in his opinion the signature on the deed in question was not that of plaintiff.

Plaintiff testified that she paid $150,000 for the property. It was brought out at trial that the purchase price actually was $80,000. She testified that she gave the money to her husband for the purpose of the purchase; she had stated at her deposition that she gave the money directly to the seller. Plaintiff also testified that she customarily signed documents herself, and had never given anyone authority to sign her name.

Defendant then introduced into evidence some 100 documents to establish that for more than 20 years someone had been signing plaintiff’s name on legal documents. The evidence established that plaintiff never objected to having her name signed in any of these transactions, and that the deed in question was the only one she disputed. It was shown that she was the owner of a one-fourth interest in a racetrack, but that she did not sign or authorize anyone to sign the document accepting that interest. Certain credit guarantees purportedly bearing her signature were not signed by her, although she knew that credit was obtained for the purpose of remodeling the racetrack. The signature as a comaker of a certain note was not hers, but she later signed a letter to the lender pertaining to that note. Plaintiff had also disposed of certain property which she owned by eight deeds, some of which were not in her handwriting. However, she claimed none of that property as hers, and conceded that she was no longer in title. Someone had also signed plaintiff’s name on an industrial lease in 1960, and she had accepted the benefits of that lease.

Plaintiff’s federal income tax returns were introduced to show that she did not declare any rental income or tax deductions on the subject property. The sisters, on the other hand, did claim federal income tax deductions for real estate taxes on the property. In addition several of plaintiff’s statements of financial assets were introduced and in these she did not claim to own the subject property.

Charlotte Brostow testified that she did not recall notarizing the deed in question, although it bore her signature as notary. She had been Titus Haifa’s secretary for 20 years. About six months prior to trial, she had a telephone conversation with plaintiff, in which the latter said that she thought that the property in question was too expensive for the sisters to maintain, and that they ought to sell it.

Henry Pollenz, an attorney, testified that he had represented Titus Haifa for more than 25 years. He had seen Titus sign plaintiff’s name to legal documents several times. Specifically, he had seen him sign plaintiff’s name to a deed regarding certain Wisconsin realty. He also testified that plaintiff and the sisters had abided by all business decisions made by Titus without questioning them.

Pauline Haifa testified that the sisters paid no consideration for the property in question.

We need only consider whether the evidence supported the trial court’s finding that plaintiff failed to meet her burden of proving that her signature on the deed was forged, and whether she approved and impliedly consented to the deed in question.

The essential elements of a forgery are a false writing or alteration of some instrument in writing, the instrument as made must be apparently capable of defrauding, and there must be an intent to defraud. The false signing of another’s name to a document without an intent to defraud or deceive someone does not constitute forgery. People v. Fore, 384 Ill 455, 51 NE2d 548 (1943); Spellbrink v. Continental Illinois Nat. Bank & Trust Co., 328 Ill App 331, 66 NE2d 98 (1946).

While one of the necessary elements of a conveyance of real estate is that the deed be signed by the grantor, Chicago Land Clearance Commission v. Yablong, 20 Ill2d 204, 170 NE2d 145 (1960), the signature need not be in the grantor’s handwriting, Koepke v. Schumacher, 406 Ill 93, 92 NE2d 152 (1950). And he may authorize a third party to sign it for him, Witt v. Panek, 408 Ill 328, 97 NE2d 283 (1951). The court, in O’Donnell v. Kelliher, 62 Ill App 641 (1895), in finding a trust deed valid, stated at p 656:

“All know that a person may sign by another, and, so signed, the signature becomes his by adoption; and even though his signature were placed upon the deed without his authority, if he subsequently acknowledged the deed to be his, the deed would be effectual against him.”

Miller v. Swanson, 66 Ill App2d 179, 213 NE2d 294 (1965), involved a suit to foreclose a trust deed. In that case, the wife signed her husband’s name on the deed. The court, in holding the deed valid, stated at p 192:

“. . . although the signature of J. Walter Swanson to the note and deed of 1955 appears not to have been his handwriting, that fact does not establish forgery. A person may sign an instrument by another and adopt the signature as his own.”

The finding by the trial court that plaintiff failed to prove that her signature was forged was not against the manifest weight of the evidence, and was in fact supported by ample evidence. There was evidence presented that the husband had signed several legal documents for plaintiff, and that she approved and consented to all his business decisions. Multitudinous documents, some later expressly acknowledged by plaintiff, were also introduced into evidence. Many of these documents bore plaintiff’s name, but were not in her handwriting. The signatures on some deeds to property which she had sold were not in her writing, but she subsequently treated the properties as sold and asserted no claims against those properties. Certain guarantees, although not signed by her, were subsequently honored and acknowledged by plaintiff. As to the subject property, her income tax returns and statements of assets did not treat the subject property as hers, and her conversation with her husband’s secretary that the sisters should sell, impliedly assumed that it was their property, not hers. It is apparent that there was no intent on the part of the party placing plaintiff’s name on the deed to defraud or deceive her, and consequently, there was no forgery. Rather, the evidence indicates that she knew that the property had been transferred to the sisters, that she treated the property as theirs, and that she ratified the deed by her subsequent conduct.

Since we have found that there was sufficient evidence to support the trial court’s determination that plaintiff failed to prove forgery, we deem it unnecessary to consider plaintiff’s contentions that the court erred in finding that she was estopped from attacking the validity of the deed, or that the court erred in finding that defendants had proved adverse possession.

Plaintiff also assigns as error certain rulings by the trial court which would require remandment of the cause. Under this heading, she first contends that the trial court erred in admitting into evidence certain documents without a showing of genuineness or valid execution. Plaintiff argues that since many of the documents introduced were not signed by her, they were inadmissible, because their execution was not established. We do not agree.

Each party is entitled to present evidence which is relevant and material to his theories of the case. Schneider v. Kirk, 83 Ill App2d 170, 226 NE2d 655 (1967). The test for relevancy is whether the evidence offered tends to prove an issue in dispute. Phillips v. Lawrence, 87 Ill App2d 60, 230 NE2d 505 (1967). Moreover, evidence tending to show conduct inconsistent with an opponent’s theory is admissible. Vacker v. Yeager, 151 Ill App 144 (1909).

In the instant case, defendants advanced the theory that plaintiff on many occasions allowed and consented to someone else signing her name on various documents. Evidence tending to show such a course of conduct was unquestionably relevant and material. Consequently, documents which plaintiff did not sign, but which, by subsequent acts, were treated as valid by her, would tend to show such a course of conduct, and would be admissible.

While documents must be properly authenticated, or must be shown to be what they purport , to be, recognition of the disputed document has been held sufficient for its authentication. Gold v. Rousso, 238 Ill App 427 (1925).

In the case at bar, plaintiff, by her subsequent actions, recognized many of the documents which were introduced into evidence. She conceded that certain deeds which she had not signed were sufficient to pass title; she accepted rent pursuant to an industrial lease which she had not signed; and she claimed part ownership of a racetrack by virtue of an acceptance which she had not signed.

A case cited by plaintiff in support of her contention, Barker v. Barker, 342 Ill App 46, 95 NE2d 135 (1950), is not in point. In that case, a letter was improperly authenticated, since no proof of signature was made. However, the letter was sought to be admitted for the purpose of proving whát it said, whereas in the instant case the documents were introduced for the purpose of showing that plaintiff did not sign them but subsequently acknowledged their legal effect. Moreover, in the Barker case, the court found that the improper introduction of the letter was harmless error.

Plaintiff next contends that the trial court abused its discretion in permitting the defendant bank to file an amendment to the answer and counterclaim at the conclusion of defendant’s case.

The Civil Practice Act, Ill Rev Stats 1967, c 110, § 46(1) provides that at any time before final judgment amendments may be allowed on just and reasonable terms changing the defense or adding defenses. The amendment in the instant case added the defenses of estoppel, a resulting trust, and adverse possession. Plaintiff did not object to the filing of the amendment at the time of trial, and we do not see how plaintiff was prejudiced by the amendation.

For the first time, in her reply brief, plaintiff contends that, because of the bias of the trial judge against her, she did not receive a fair trial. We will not consider any issue raised for the first time in a reply brief. Ill Rev Stats 1967, e 110A, § 341(g); Nielsen v. Duyvejonck, 94 Ill App2d 224, 236 NE2d 743 (1968).

Accordingly, the decree of the Circuit Court is affirmed.

Decree affirmed.

DEMPSEY, P. J. and LEIGHTON, J., concur.