author: MR. JUSTICE ENGLISH ENGLISH, J.

text:
    Della Keessen and Mary Keessen, Plaintiffs-Appellees, v. Albina Zarattini, Union National Bank of Chicago, as Trustee Under its Trust No. 115, and First National Bank of Blue Island, as Trustee Under Document No. 2161184, Defendants, Albina Zarattini, Defendant-Appellant.
    Gen. No. 52,211.
    First District, Fourth Division.
    December 17, 1969.
    Rehearing denied and supplemental opinion February 4, 1970.

      Korean Movsisian, of Chicago, for appellant.
    Slutzky & Slutzky, of Chicago (Irving Slutzky, of counsel), for appellees.
   MR. JUSTICE ENGLISH

delivered the opinion of the court,

Defendant Zarattini appeals from a decree enjoining encroachment upon an easement. Plaintiffs brought this action on November 18, 1965, to compel defendants to remove an enclosed brick stairway and other obstructions which allegedly encroached on plaintiffs’ easement over certain real estate adjoining their own premises.

A summary of plaintiffs’ amended complaint follows. Plaintiffs own and occupy the property commonly known as 11512 S. Eggleston Avenue, Chicago. Defendant Union National Bank as Trustee owns the property at the southeast corner of South Normal Avenue and West 115th Street, Chicago, and defendant First National Bank of Blue Island as Trustee is the mortgagee of the property. Defendant Zarattini is in possession of these premises. In 1923 a former owner of defendants’ premises created an easement for ingress and egress, in favor of plaintiffs’ property, over a nine-foot alleyway immediately adjoining the north and west sides of plaintiffs’ property. Plaintiffs have been the owners of their property since 1926, and “the aforesaid easement is necessary for plaintiffs’ full use and enjoyment of their property.” Defendants commenced building the offending stairway in April, 1965, and completed it the following month. The . stairway structure encroaches upon approximately five feet of the easement. Defendants have further encroached by placing boulders, rocks, blocks and bricks, and a garbage disposal box upon the easement. Defendants have failed to remove the encroachments after notice by plaintiffs at the time the stairway was built. They thereby deprive plaintiffs of the full use and enjoyment of their easement, and render their property less valuable.

Three remedies were sought by plaintiffs: (1) that defendants be required to remove the boulders, rocks, blocks, bricks, and garbage box brought upon the easement; (2) that defendants be required to remove so much of the brick stairway as encroaches upon the easement; and (3) that defendants be enjoined from maintaining or using the easement, or encroaching upon same, or depriving the plaintiffs of the full use and enjoyment thereof.

The trustee banks, who are not parties to this appeal, asserted by motion that they had no interest in the real estate except as trustee under a land trust and trustee to secure indebtedness, respectively, and were not proper parties to the suit. They also argued, in the alternative, that plaintiffs’ complaint was insufficient to set forth any cause of action, and asked to be dismissed from the suit.

Defendant Zarattini (hereinafter “defendant”), filed an answer in which she admitted that the easement existed, but alleged that it was created to give plaintiffs, as owners of their property, access to the rear of their lot, and to give other owners whose property also abutted the easement on the west, access to the rear of their lots. Defendant further alleged “that the doors to the garage located at the rear of plaintiff’s premises face north and plaintiffs have an unobstructed ingress and egress to said garage” by way of the easement on the north side; that the easement on the west side (where the stairway is located) “is not necessary for plaintiffs to have access to the rear of their premises; that as a matter of fact, they could not possibly get in and out of their garage by the use of said easement.”

Defendant admitted that she had built the stairway upon a portion of the easement as alleged, and that its construction, which was commenced in April, 1965, was completed in May, 1965. She alleged further, however, that the stairway does not interfere in .any manner whatever with the ingress and egress by the plaintiffs, nor does it render the property of the plaintiffs less valuable.

Defendant also denied that oral notice of the encroachments was given to her by plaintiffs, and alleged, alternatively, that even if notice had been given, plaintiffs are estopped from complaining now because they remained passive during the period of construction.

Plaintiffs, without filing a reply to defendant’s answer, made a motion for entry of summary judgment asking that the encroachments be removed and that defendants, their agents and employees, be permanently restrained from maintaining or using the easement, or encroaching upon same, or depriving plaintiffs of their full use and enjoyment. Defendant filed an answer to this motion asserting in part that the pleadings created factual issues which required a trial.

The trial court entered an injunction decree on the motion for summary judgment finding that defendant had encroached upon plaintiffs’ easement by “building, or causing to be built,” the brick stairway, and had also, in the past, encroached upon the easement by placing boulders, rocks, blocks and bricks and a garbage disposal box in and upon said easement. The decree required that : (1) defendant “remove so much of the brick stairway and building encroachment upon the easement”; (2) defendant “remove and . . . keep said easement free from any garbage containers, boulders or other debris whatsoever”; and (3) defendant and her “agents, and employees be restrained and enjoined from maintaining or using the aforementioned easement, or from encroaching upon same, or depriving the plaintiffs the full use and enjoyment thereof.”

Defendant submitted a motion to vacate the decree on three grounds: (1) the court’s order restraining defendant from maintaining or using the said easement deprives her of lawful use of the property, which deprivation is beyond the scope of the easement; (2) the court’s findings have no basis in fact, and fail to take into consideration defendant’s affirmative defenses which maintain that it is not necessary for plaintiffs to “get in and out of their garage by the use of said easement”; and (3) there were factual issues which could not be adjudicated by a motion for summary judgment. The court denied the motion.

In this court, defendant contends that since material facts were at issue in the pleadings, this should have prevented the trial court from entering summary judgment. Specifically, defendant raises a factual issue concerning the location of the alleged encroachment, the brick stairway, asserting that she had affirmatively alleged that plaintiffs did not have an easement where the stairway was located. We find that defendant is factually incorrect. In her answer to plaintiffs’ amended corn-plaint, she admitted that the easement existed as set out in the amended complaint, seeking to avoid the consequences thereof by stating that the purpose of the easement was not to give plaintiffs access to the entire easement, but only to as much as was necessary to give plaintiffs access to the rear of their premises. The deed creating the easement contained no such limitation of purpose. That the encroachment was built upon the easement is not at issue. On a motion for summary judgment, if there is no genuine issue as to any material fact, the court must determine if the moving party is entitled to judgment as a matter of law. See Applicolor, Inc. v. Surface Combustion Corp., 77 Ill App2d 260, 222 NE2d 168. We conclude that the court could properly find, on the basis of the pleadings, that no issue of fact raised by defendant in the instant case was genuine, and judgment could, therefore, be properly entered for plaintiffs.

Defendant also contends that the judgment was faulty because the two defendant banks, who are not parties to this appeal, filed motions to strike for failure to state a cause of action, and that these motions were still pending as to them. The decree found that one bank was the owner, under a land trust agreement, of real estate pertinent to the suit; that the other was a mortgagee of the same property; and that they were proper party defendants. We believe that the decree disposed of all the issues before the court as to all parties. The fact that neither bank appealed from the trial court’s decree has. no bearing upon defendant’s appeal.

Defendant contends that equity does not require enforcement of an easement where use by the servient estate does not deny or materially affect its use by the dominant estate, asserting that the obstruction of the easement in question does not affect plaintiff’s ingress or egress; citing Oswald v. Wolf, 129 Ill 200, 21 NE 839, and Beloit Foundry Co. v. Ryan, 28 Ill2d 379, 192 NE2d 384. Both cases are distinguishable from the instant case. In Oswald, the court found that the plaintiff had an adequate remedy at law, thereby not establishing a necessity for removal of the obstruction; that no interest was jeopardized; and that no irreparable damage was incurred. The court’s decree in the case at bar properly found that the encroachments deprive plaintiffs of the full use and enjoyment of their easement, that plaintiffs continue to suffer irreparable injury, and that there is no adequate remedy at law. The Beloit case is also distinguishable. There, the defendants, mistakenly believing themselves to be the owners of the area, had constructed an addition to a building which encroached somewhat on plaintiff’s 30-foot easement for ingress and egress. The court did not order its removal, since it found that the encroachment, unlike that in the instant case, did not deny or materially interfere with the use of the easement which was wide enough to have permitted almost daily use thereof by trucks making delivery of materials to plaintiff’s foundry over a period of many years. This cannot be compared with a 5-foot obstruction to a 9-foot easement. We find that equity does not preclude enforcement of the instant easement according to its explicit terms, specifically, the right of ingress and egress over the entire 9-foot easement.

Defendant next contends that plaintiffs, who brought suit six months after construction of the stairway, should be barred by loches. As defined in Gerstley v. Globe Wernicke Co., 340 Ill 270, 283, 172 NE 829:

Laches is such neglect or omission to assert a right as, taken in conjunction with lapse of time more or less great and other circumstances causing prejudice to an adverse party, operates as a bar in a court of equity. In an equitable proceeding it is only when by delay or neglect to assert a right the adverse party is lulled into doing that which he would not have done or into omitting to do that which he would have done in reference to the property had the right been properly asserted that the defense of loches can be considered.

The record indicates that defendant knew of the easement and wilfully violated its provisions. Under these circumstances, no prejudice has resulted to defendant by the fact that this suit was not commenced until November, after the stairway was built in April and May. In our opinion, loches does not bar this claim.

The further argument is made by defendant that the owner of the servient estate may use the easement for any purpose not inconsistent with its reasonable enjoyment by the owners of the easement. Kurz v. Blume, 407 Ill 383, 95 NE2d 338. The court’s decree specifies that defendant’s use of the easement (by construction of the stairway and the placing of other obstructions on the easement) deprived plaintiffs of the full use and enjoyment thereof and, in this light, we find such use to be unreasonable. We agree with defendant, however, that the portion of the decree which prohibits defendant, her agents and employees from “maintaining or using the aforementioned easement” is erroneously broad. Plaintiffs’ use of the easement may not preclude use by defendant, as owner of the servient estate; rather, use by both must be permitted in accordance with their individual interests. Accordingly, we remand this cause and direct the trial court to modify its decree by striking the portion which would prevent defendant, her agents and employees from “maintaining or using the aforementioned easement.”

Defendant also rightfully contests that portion of the decree which affirmatively requires that she “keep the said easement free from any garbage containers, boulders or other debris whatsoever.” Defendant’s duties do not extend so far. The trial court should modify this portion to require that defendant only be compelled to remove such items placed there by her, and be enjoined from placing other similar items on the easement in the future.

Defendant, as a beneficiary of the land trust under which this property is held, contends that the writ compelling removal of the stairway requires the beneficiaries to enter into an agreement affecting real estate, which is beyond their legal capacity. We reject this notion when applied to the instant facts. Cases limiting contractual involvement of land trust beneficiaries are those where title is a foremost consideration. See Chicago Federal Savings & Loan Ass’n v. Cacciatore, 33 Ill App2d 131, 178 NE2d 888; Liberty Nat. Bank of Chicago v. Kosterlitz, 329 Ill App 244, 67 NE2d 876; Schneider v. Pioneer Trust and Savings Bank, 26 Ill App2d 463, 168 NE2d 808. Title is not at issue here; rather, the issue is simply removal of an obstruction which, under the circumstances of this case, would not seem to require intervention of the land trust trustee. If, however, any title problem should arise in this regard, the land trust trustee is a party to the suit and the trial court has expressly retained jurisdiction to make whatever further orders “may appear necessary to effectuate its decision.”

The decree of the Circuit Court is affirmed in part and remanded in part with directions to modify the decree.

Affirmed in part, remanded in part with directions.

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

SUPPLEMENTAL OPINION ON PETITION FOR REHEARING

ENGLISH, J.

In defendant’s Petition for Rehearing, points which had been raised in her briefs have been restated. In addition, she contends that the pleadings created an issue of fact as to plaintiffs’ ownership of the dominant premises.

It is true that defendant’s answer to the amended complaint alleged insufficient knowledge to admit or deny plaintiffs’ ownership and demanded proof thereof. In defendant’s amendment to her answer, however, repeated references are made to “plaintiffs’ premises,” plaintiffs’ lack of need for access to the rear of “their premises,” etc. Some of these statements are quoted in our original opinion. From these statements in the later pleading, it appears that defendant was not challenging plaintiffs’ ownership, and in her briefs filed in this court no point was made of this contention, which is raised here for the first time on Petition for Rehearing.

For the reason stated, we believe that the point is without merit, but in any event, it comes too late for consideration. Supreme Court Rule 341 (e) (7); Ill Rev Stats 1967, c 110A, § 341(e) (7).

We adhere to our original opinion, and defendant’s Petition for Rehearing is denied.

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


source: Caselaw Access Project

author: MR. PRESIDING JUSTICE ADESKO

license: Public Domain

text:
    Betty Chamberlin, Plaintiff-Appellant, v. George L. Chamberlin, Defendant-Appellee.
    Gen. No. 53,890.
    First District, First Division.
    December 19, 1969.
    Rehearing denied January 20, 1970.

      Erwin Cohn, of Chicago, for appellant.
    Daniel A. Gallagher, of Chicago, for appellee.
   MR. PRESIDING JUSTICE ADESKO

delivered the opinion of the court.

This is an appeal by plaintiff, Betty Chamberlin, from a post-decree order of January 17, 1969, in which the trial court ordered plaintiff’s present husband, Rudy Yukich, to pay defendant the sum of $100 rent, per month, for the premises located at 9140 South Clifton Park, Evergreen Park, Illinois, and further ordered that plaintiff and her four minor children vacate the above-mentioned premises by the end of the June 1969 school year. Plaintiff contends that error was committed in that the trial court’s order affected a nonparty to the lawsuit and the vacating of the premises was in direct violation of the divorce decree.

The record consists entirely of pleadings filed in this cause. A judgment of divorce was entered on December 12, 1965, in favor of the appellant on the grounds of extreme and repeated cruelty committed by the defendant. The provisions of the decree found the equities in favor of the plaintiff, and then made the following awards which are germane to this appeal:

Custody of the minor children was given to the plaintiff with visitation rights established for the defendant; defendant was to pay $50 per week for child support and was to assume payment of all medical, dental, hospital and other expenses of the minor children; the decree then provided “that the appellant shall have the right to sole and exclusive possession of the premises located at 9140 Clifton Park, Evergreen Park, Illinois, until she abandons same or until the youngest of the minor children of the parties reaches her majority, whichever event occurs sooner”; defendant was awarded title to the premises and plaintiff was required to quitclaim all her interest to the defendant, who was obligated to maintain the premises and pay all encumbrances, taxes, repairs and other expenses in preserving the home; plaintiff was awarded all the household furnishings while defendant was allowed to remove his personal belongings from the premises; defendant was required to deliver 100 shares of stock and the family automobile to the plaintiff; and the final provision contained a complete release of present and future rights of alimony, dower, inheritance and all other right, title, claim and interest by reason of the marital relationship which had existed between the parties.

Following the divorce decree there were several post-decree matters dealing with the amount of child support and child custody problems which arose between the parties. Finally, on January 17, 1969, the order which is the subject of this appeal was entered. The defendant had filed a post-decree petition which sought the plaintiff’s removal from the premises located at 9140 Clifton Park in Evergreen Park or alternatively that plaintiff should collect rent from Rudy Yukieh and remit this rent to defendant; further, the petition sought relief from interference with defendant’s visitation rights with his minor children. In the petition, defendant alleged and plaintiff admitted that she had married Mr. Yukich sometime prior to the filing of this petition.

With regard to that part of the order requiring Eudy Yukich to pay rent to the defendant, the plaintiff argues that the court lacked power to order a non-party to perform this act. It is axiomatic that a court must have jurisdiction over the person before it can require performance under its order or decree. Therefore, we must reverse that part of the decree concerning the payment of rent by the plaintiff’s present husband to the defendant because Mr. Yukich was not a party to this lawsuit. The trial court’s order can have no effect upon this individual.

The remaining issue concerns the trial court’s order that plaintiff and her minor children vacate the premises at the end of the current school term. The plaintiff contends that the provisions of the decree concerning possession of the home were alimony in gross and were not modifiable by subsequent proceedings. Ill Rev Stats (1967), c 40, § 19. Plaintiff argues this was the intent of the parties when viewed with all the other provisions of the divorce decree and that it would be error to impose the condition of remarriage upon this provision of the decree. Defendant maintains that the trial court was correct in modifying the decree since this was a hybrid provision, providing alimony for the wife and support for the minor children, also citing chapter 40, section 19 of the Ill Rev Stats. He further maintains that because of the indefinite nature of this provision, this must be characterized as alimony which may be modified.

This case once again presents the question of whether the award was gross alimony or periodic alimony. See the case of Roberts v. Roberts, 90 Ill App2d 184, 234 NE2d 372 (1967) and the cases cited therein. Both parties rely upon the case of Walters v. Walters, 341 Ill App 561, 94 NE2d 726 (1950), affd 409 Ill 298, 99 NE2d 342 (1951). That case distinguished and defined the terms “alimony” and “alimony in gross.” The attributes of alimony were described as an indefinite amount of money paid for an indefinite period of time, based upon the ability to pay in order to maintain one’s spouse in that mode of living accustomed to during marriage. The Walters court also stated that alimony was premised upon the common-law duty of a husband to support his wife and was modifiable upon proof of changed circumstances. On the other hand, alimony in gross was characterized in terms of a definite sum payable over a definite period of time, which was not modifiable by changed circumstances. The court then stated at page 574:

“It is not the label placed by decree upon payments which constitutes them either alimony or lump-sum property settlements [alimony in gross]; it is the elements inherent in the case as a whole, the record of which the decree is a part, which determine to what category such payments belong.”

We choose to follow this recommended procedure, as stated by the Walters decision, by looking to the facts to determine the intent of the provision concerning plaintiff’s rights in these premises. For this reason, we cannot rely upon the cases cited by the parties in this case which are inapplicable due to factual differences with the instant case. Thus, we must reach our conclusion from a perusal of the divorce decree provisions.

The decree in the instant case shows that plaintiff was required to quitclaim all her interest in the premises involved, while the defendant received the title and assumed all obligation of maintaining the home. The' only thing that plaintiff received was the right to sole possession of the .premises subject to contingencies that on her voluntary relinquishment or the majority of the youngest child, the possessory rights were terminated. We would agree that a certain degree of indefiniteness as to the value and length of this award is present from this provision. However, the element of indefiniteness does not persuade us to hold that this was an alimony provision subject to modification. On the contrary, we are of the opinion that as to plaintiff this provision was a property settlement subject to conditions imposed by the parties as to the possession of these premises. We are persuaded in this view because of the waiver of alimony contained in the last provision of the decree which shows a contrary intent from that contended by the defendant. Our view of the entire decree leads us to conclude that a property settlement was intended, wherein the wife was given the household furnishings, an automobile and some corporate stock, while defendant received title to the premises free of all the plaintiff’s interest with only the possession postponed for the benefit of the wife and children.

We agree with defendant’s contention that the provision did concern the minor children’s support and to this extent was a benefit to them. Thus, defendant argues that pursuant to section 19 of the Divorce Act (Ill Rev Stats 1967, c 40, § 19), the trial court could modify the award as to the children. However, from the record it would appear that defendant has not sustained his burden in showing such a change of circumstances that would justify a court in changing the child support provisions of the decree. Kelleher v. Kelleher, 67 Ill App2d 410, 214 NE2d 139 (1966). We are not persuaded that the removal of these children from their home would benefit them in any respect.

For these reasons, the judgment of the Circuit Court of Cook County is reversed and the cause remanded for further proceedings not inconsistent with the views we have expressed.

Reversed and remanded.

MURPHY and BURMAN, JJ., concur.


author: TEAPP, P. J. CRAVEN, J.,

text:
    Vitromar Piece Dye Works, a Corporation, Plaintiff-Appellant, v. Lawrence of London, Ltd., a Corporation, Defendant-Appellee.
    Gen. No. 53,204.
    First District.
    December 31, 1969.
    Rehearing denied February 19, 1970.
    CRAVEN, J., dissenting.
    Weiss, Weiner, Levine and Swiedler, Simon & Ingram, of Chicago (Ernest Swiedler, Robert B. Simon and John D. Ingram, of counsel), for appellant.
    McDermott, Will & Emery, of Chicago (Hamilton Smith and James E. Betke, of counsel), for appellee.
   TEAPP, P. J.

Upon trial before the court on a complaint and counterclaim concerning a contract for processing material, the court entered judgments for the defendant as to the complaint and for the plaintiff-counterdefendant upon defendant’s counterclaim. Plaintiff appeals.

The record brought to this court contains only the pleadings, the judgment of the trial court and the recorded comments of the trial court on entering judgment.

The complaint alleged that by written contract, plaintiff agreed to waterproof 13,789% yards of material furnished by defendant to plaintiff for a price of 32 cents per yard, or a total price of $4,630.70, that the goods were processed by plaintiff, returned to defendant and retained by defendant, and that payment had not been received. The answer admitted the foregoing, but alleged that by written contract plaintiff had agreed to waterproof silk cloth in accordance with sample furnished by plaintiff to defendant, that plaintiff failed to waterproof in the manner it agreed to, that plaintiff caused the silk cloth to become tacky and as a result defendant sustained damage. The reply denied the affirmative matter alleged in the answer. Defendant, by a second amended counterclaim, sought damages for additional processing costs incurred in an attempt to eliminate tackiness, additional labor costs on account of working with tacky material, losses attributable to unusable material, losses attributable to sale of coats at less than normal prices, and inability to sell some coats at all, which damages were alleged to be $15,252.20.

The trial court’s comments at the time of entry of the j udgments were:

“The court finds that the work was not done in accordance with the sample and in a good and workmanlike manner.
“The court further finds that the goods were returned to the defendant and most of it sold to regular customers and some of it for the regular price. The defendant never paid plaintiff for the work done because of the quality of the work. The counterplaintiff has failed to meet the burden of proof as to damages on the counterclaim.”

Both parties apparently agree that the matter is to be determined by the law of New York. The plaintiff asserts that the transaction is governed by Uniform Commercial Code, and cites sections 2-606, 2-709 (1) (a) and 2-607(4).

Section 2-606(1) (a) provides:

“(1) Acceptance occurs when the buyer (a) after a reasonable opportunity to inspect the goods signifies to the seller that the goods are conforming or that he will take or retain them in spite of their non-conformity;”

Section 2-607 provides, (in part) :

"(1) The buyer must pay at the contract rate for any goods accepted.
“(2) Acceptance of goods by the buyer precludes rejection of the goods accepted and if made with knowledge of a non-conformity cannot be revoked because of it unless the acceptance was on the reasonable assumption that the non-conformity would be seasonably cured but acceptance does not of itself impair any other remedy provided by this Article for non-conformity.
“(3) Where a tender has been accepted (a) the buyer must within a reasonable time after he discovers or should have discovered any breach notify the seller of breach or be barred from any remedy; and ....
“(4) The burden is on the buyer to establish any breach with respect to the goods accepted.”

The plaintiff who performed the services under the contract on property of the defendant takes two positions which he says require a reversal of the judgment as a matter of law.

First, plaintiff contends that plaintiff is a “seller” under the Uniform Commercial Code, and that under New York law a claim of breach of warranty is not a defense to an action on the contract for the price but is strictly a counterclaim, and that having lost the suit on the counterclaim after “acceptance” of the goods, defendant has no offset to the full price.

Second, plaintiff contends that the trial court found that the defendant “did not and could not prove any damages whatsoever sustained by it as a result of plaintiff’s processing of its goods.” Accordingly, having “accepted” the goods, defendant is liable for the contract price.

In support of the first contention, plaintiff cites Nash v. Weidenfeld, 41 App Div 511, 58 NYS 609 (1899). This case does not go as far as plaintiff contends. We do not think that it precludes nonconformance to contract as a defense when complaint is made in apt time. The court excluded evidence of nonconformity because it had not been pleaded in the answer. The court said, p 514:

“. . . and the rule is settled that where there is an executory contract for the sale and delivery of personal property, the remedy of the vendee to recover damages on the ground that the article furnished does not correspond with the contract does not survive the acceptance of the property after an opportunity to ascertain the defect. ... It is quite apparent in this case that the materials furnished were received by the Worcester Cycle Manufacturing Company. It does not appear that any complaint was ever made, or that any notice was ever given to the vendor of the defects, or that any offer was made to return the property. For that reason, the answer was entirely insufficient as a defense.” (Emphasis supplied.)

In Hunter v. Finnerty, 119 Misc 724, 197 NYS 215, also cited by plaintiff, the court there said on p 216:

“The evidence shows that defendants did not reject the car, and never actually rescinded the contract to purchase the same. This being so, they had the remedies provided for a breach of the warranty: viz. to recoup in diminution or extinction of the purchase price, or to maintain an action against the plaintiff for their damages.” (Emphasis supplied.)

The third case cited by plaintiff, Bond Elec. Corp. v. Gold Seal Elec. Co., 244 App Div 206, 278 NYS 969, rev 271 NY 461, 3 NE2d 594, holds that the measure of damages for breach of warranty is the difference in value of the goods received and the value of the product warranted which is set off against the purchase price. That case arose on instructions to the jury.

We do not find anything in the New York decisions cited which would prevent the assertion of a defense that the goods did not meet the warranted sample if the buyer within a reasonable time after discovery of the defect notifies the seller notwithstanding acceptance. This is consistent with Uniform Commercial Code, § 2-607(3) (a), which says that where the goods are accepted, then in the absence of notice of defect in a reasonable time buyer is barred from any remedy. The inference is that upon giving notice in a reasonable time, the buyer is not barred from his remedy.

We also agree that if it applies, § 2-607 (4) places the burden of proof of breach in such case upon the buyer.

Without a transcript of proceedings at trial, or a stipulation of facts, we do not know what the evidence showed as to prompt notice of the defects alleged, or as to the amount of damage.

The only basis for reversing the judgment upon this record would be to hold that, notwithstanding prompt notice of the defect, defendant could not assert lack of performance of the contract to furnish in accordance with sample as a defense to an action on the contract for the price. We do not so hold.

The second contention of plaintiff that the trial court found defendant suffered no damage whatsoever is not in accordance with the quoted statement of the trial court. The court said most of it (the goods) was sold to regular customers, and some of it for the regular price. It is certainly a clear inference that some of the goods were not sold to regular customers. It is certainly clear that some (with no indication of the greater or lesser part) was sold at less than the regular price. No indication is given to us from the court’s statement as to what the resulting difference was. There is nothing before us as to the regular price, the actual sale price, or the total quantities involved in each case. In any event, we do not consider this to be a finding that defendant suffered no damage whatsoever, but rather the contrary.

It is argued that by finding that defendant failed to sustain the burden of proof as to damages on the counterclaim, the trial court found no damage existed. We may concede, arguendo, that the court could not enter a judgment for money in favor of the defendant against the plaintiff unless it also found that the damage from breach of warranty exceeded the purchase price. The type of damage which might be proved on a counterclaim might be different from that used in diminution or extinction of the claim for the price. There is nothing to show that the court would not have been justified in finding that the damages from failure to meet sample equalled the price. This is not a case of a simple sale of goods. Defendant had a cost in its own goods which were processed by plaintiff and again processed as raincoats by defendant, prior to sale. We have no basis, without the evidence heard by the trial court, for saying that sale of some of the coats at less than regular price could not have equalled the contract price of waterproofing.

Defendant contends that the Uniform Commercial Code, does not apply because plaintiff did not sell defendant any property, but, in fact, processed defendant’s property. Plaintiff argues that in any event the principles of the Uniform Commercial Code should apply. We are inclined to agree in general principle with both parties. Article 2 of the Uniform Commercial Code is basically a reenactment, modification and expansion of the Uniform Sales Act. It is generally dealing with sales and not service contracts. Section 2-601 refers to rejection of the whole, acceptance of the whole or acceptance of a commercial unit. Section 2-602 (2) (a) says that any exercise of ownership by the buyer after rejection is wrongful as against the seller. Section 2-602 (2) (b) requires the buyer to hold with reasonable care subject to seller’s disposition. Other sections were framed upon the theory of a sale of property originally owned by the seller.

Here, the physical cloth belonged to the “buyer” and was then processed by the “seller.” Retention of the article by one who already owns it does not have the same significance of “acceptance” as retention of another’s property. We note, however, under Uniform Commercial Code Comment, Ill Ann Stats, c 26, § 1-102, p 10, that courts have recognized the policies embodied in the Uniform Acts as applicable in reason to subject matter which was not expressly included in the language of the Act.

The court’s denial of judgment on the counterclaim does not automatically prevent judgment for defendant on plaintiff’s claim. The defendant is not precluded by law from using damages arising from failure to perform according to contract sample in diminution or extinction of a contract price. The trial court had before it the contract’s provision:

“6. In the event that after Processing Material, it contains any defects (other than an occasional spot or two in the piece or lot) you will make no charge for your services and you will supply new goods of like quality, construction and color and process them, charging only for the processing.”

It does not appear that the defendant undertook to enforce the provision for replacement of material. In the absence of a record of the evidence considered by the trial court we have no basis upon which to question the trial court’s action where some damage has been indicated. The contract does contemplate that there will be no charge if the processing “. . . contains any defects. . . .”

The judgments of the trial court are affirmed.

Affirmed.

SMITH, J., concurs.

CRAVEN, J., dissents.

CRAVEN, J.,

dissenting.

I cannot agree with the majority opinion which decides this case on the basis of the provisions of the Uniform Commercial Code which became effective in New York September 27, 1964, and if applicable, would govern this case. Article 2 of the Uniform Commercial Code is basically a reenactment, modification and expansion of the Uniform Sales Act in New York as the majority opinion states. Section 2-105 of that Code, defining “goods/’ and section 2-106, defining a “sale,” do not in their language include work or service on an article where the sale is incidental only to the service or work product.

In Perlmutter v. Beth David Hosp., 308 NY 100, 123 NE2d 792 (1954), in construing the Uniform Sales Act, plainly held that “sale” and “transfer” are not synonymous and not every transfer of personal property constitutes a sale, citing Halsted v. Globe Indemnity Co., 258 NY 176, 179 NE 376, 377. That case pointed out that when service predominates and the transfer of personal property is but an incidental feature of the transaction, the transaction is not a sale within the Sales Act.

This interpretation has been followed in the only cases thus far decided under these sections of the Uniform Commercial Code. In the case of Lovett v. Emory University, Inc., 116 Ga App 277, 156 SE2d 923 (1967), the Court of Appeals of Georgia held that the furnishing of blood by a hospital for transfusion to a patient is incidental to the service provided in the course of treatment and is not a sales transaction covered by the provisions of the Code as to breach of implied warranty. Likewise, in Newton v. Allen, 220 Ga 681, 141 SE2d 417 (1965), a lease of workable timber for turpentine was held not a sale of the turpentine itself so as to be the subject of the provisions of the Uniform Commercial Code, but was a sale of real estate.

If a contract to paint a picture is a contract for work, labor and services rather than a sale, even though the title to the canvas is transferred to the customer (Racklin-Fagin Const. Corp. v. Villar, 156 Misc 220, 281 NYS 426), the work done in the instant case on the plaintiff’s material could not have been a sale within the meaning of the Uniform Commercial Code.

For the reason that the provisions of the Uniform Commercial Code are improperly applied to this case by the majority opinion, I am of the opinion that the majority is in error and that the cause should be reversed and remanded with directions to enter judgment in favor of the plaintiff on the original complaint.

The defendant cross-appealed but has not elected to pursue its appeal. There is thus no reason to discuss the apparent inconsistencies in the findings.


author: MR. JUSTICE LYONS

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Lewis Spaulding, Defendant-Appellant.
    Gen. No. 53,210.
    First District, Second Division.
    January 6, 1970.
    Gerald W. Getty, Public Defender of Cook County, of Chicago (John E. Hughes, 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 and Robert Zulkey, Assistant State’s Attorneys, of counsel), for appellee.
   MR. JUSTICE LYONS

delivered the opinion of the court.

The defendant, age seventeen, was indicted for aggravated battery (Ill Rev Stats (1965), c 38, § 12-4(a)) in that he had committed a battery on Edward McCabe, causing him great bodily harm. The accused pleaded not guilty at his arraignment but later withdrew this plea and pleaded guilty. After informing him of the consequences of this plea and the maximum penalty provided by law, the court accepted his plea of guilty. The defendant was found guilty and placed on probation for five years. Approximately five months later, he was returned to court on a rule to show cause why his probation should not be terminated in that he had, during his period of probation, been found guilty of criminal trespass to vehicle (Ill Rev Stats (1967), c 38, § 21-2), and sentenced to six months at the Illinois State Farm. After a hearing on the rule, the court ordered probation terminated and imposed a sentence of four to ten years on the original conviction for aggravated battery to which the defendant had pleaded guilty earlier. The defendant now appeals seeking a reduction of the minimum sentence.

The stipulated facts show that the defendant took a rifle from his companion and shot McCabe once in the stomach. This happened in an alley at 10 p. m. as the victim was walking with his friend. McCabe remained in the hospital for nine days. The alleged reason for the shooting was that some youths had earlier thrown bricks at the defendant and at his home. He shot the victim because he thought McCabe was one of these youths and that he was returning to do more damage. In fact, McCabe had never thrown bricks at the defendant or his home. After the shooting, the defendant fled to Detroit but within a month, he waived extradition and was returned to Illinois. Before placing the defendant on probation, the trial court warned him that should his probation be terminated, he could be sent to the penitentiary for a minimum of one and a maximum of ten years. At the later hearing on the rule to show cause, the court reminded the defendant of its earlier warning which he had disregarded and. sentenced him to four to ten years in the penitentiary. The defendant, a minor, was represented by appointed counsel at all stages of these proceedings beginning with his arraignment.

In this appeal, the defendant contends that: (1) the minimum sentence is too severe and should be reduced because it is not commensurate with the crime and it defeats the effectiveness of the parole system by making mandatory the defendant’s incarceration long after rehabilitation has been accomplished; and (2) since the defendant was seventeen at the time of sentencing and had no substantial record of violations, the court should have imposed a minimum sentence closer to the statutory minimum of one year.

It is readily apparent from the stipulated facts that the defendant did not shoot his victim during the heat of a struggle nor did the weapon discharge accidentally. The shooting was done intentionally or knowingly. The accused fled to Detroit and was returned one month later. The defendant’s blameless victim was shot in the stomach and remained hospitalized for nine days. The accused was indeed fortunate that the wound was not fatal. Only fortuity kept him from possibly being indicted for murder.

The defendant pleaded guilty to the offense of aggravated battery and sought probation which he received. The court did not require, as a condition of probatian, that the defendant be imprisoned in the County Jail for any period of time not to exceed one year although it could have. Ill Rev Stats (1967), c 38, § 117-2 (b) (1). He was allowed to return to society immediately. Within five months after this conditional release, the defendant was returned to court and his probation was terminated, not for a technical violation of probation, but because he had been convicted of violating an Illinois penal statute while on probation. (This charge was criminal trespass to vehicle.) By his voluntary actions, the defendant has forfeited his opportunity for rehabilitation and has shown his lack of contriteness for his past crime. The interests of society must also be protected when the court is faced with sentencing a defendant for violation of his probation.

The sentence for aggravated battery, if punished as a felony under Ill Rev Stats (1965), c 38, § 12-4(a), is one to ten years. The sentence imposed by the court is within these statutory limits. Within the facts of this case, we hold that the minimum sentence of four years is commensurate with the crime in that the defendant intentionally used a deadly weapon and shot an unarmed man because the accused was angry at some other people. The defendant’s confinement for a possible period of four years is required for the protection of society as reflected by the facts in this record.

We are not persuaded by the defendant’s contention that because of his youth and no prior criminal convictions exclusive of aggravated battery and criminal trespass to vehicle, the trial court erred in not imposing a minimum sentence closer to the statutory minimum of one year. The minimum sentence of four years is not excessive and is a proper punishment for the offense of aggravated battery as reflected by the stipulated facts in this record. Within the facts of this case, such a minimum sentence does not constitute a departure from the fundamental law, its spirit and purpose, nor is it not proportioned to the nature of the offense. People v. Smith, 14 Ill2d 95, 97, 150 NE2d 815, 817 (1958); People v. Hicks, 35 Ill2d 390, 397-98, 220 NE2d 461, 465 (1966). In this case the trial court did not abuse its discretion in entering such a minimum sentence.

The judgment is affirmed.

Judgment affirmed.

McCORMICK, P. J. and BURKE, J., concur.


author: MR. PRESIDING JUSTICE McCORMICK

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Walter F. Carroll, Defendant-Appellant.
    Gen. No. 53,808.
    First District, Second Division.
    January 6, 1970.

      Gerald W. Getty, Public Defender of Cook County, of Chicago (George L. Lincoln 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, Assistant State’s Attorney, and Robert Kelty, Special Assistant State’s Attorney, of counsel), for appellee.
   MR. PRESIDING JUSTICE McCORMICK

delivered the opinion of the court.

On August 14, 1967, Walter F. Carroll, defendant, was indicted by the Grand Jury for the crime of armed robbery. On October 6,1967, he was tried without a jury, found guilty, and sentenced to a term of one to three years in the Illinois State Penitentiary. This appeal is taken from the judgment of the Circuit Court.

From the record it appears that on July 8, 1967, at about 1:30 a. m., four men entered the I & H Lounge at 2829 West Lake Street in Chicago. The first two stayed near the front bar (one of these was identified as the defendant); the other two went to the rear of the lounge. After drinking and dancing for a time, one of the four announced that there was a stickup; the men ordered all the patrons to the front of the lounge, then took their wallets.

At the trial the defendant was identified as the “second man” by two people — the owner of the lounge, Isaac Nelson, and his sister, Lydia Williams, who was acting as bartender on the night in question. Before this court the defendant argues that the discrepancies in the descriptions of the “second man” given by Mr. Nelson and Mrs. Williams would create a substantial doubt that the defendant was adequately identified. Both witnesses described the defendant as wearing a straw hat and sunglasses. That fact alone would not necessarily affect the identification; in many cases a semimasked criminal could be properly identified providing the rest of the description was authentic.

Hr. Nelson testified that the defendant was standing near the front of the bar, about four feet from him, and that he had a gun, but Nelson could not describe it. He said: “No, I wasn’t noticing him. I was noticing the man who had the gun on me.” (The witness here was not referring to the defendant, or “second man.”) By his own admission he had not paid much attention to the “second man” (the defendant). He said there had been about ten or twelve people in the tavern before the four men entered, and that the four were there for about thirty minutes before the stickup. We should point out that the opportunity to observe is quite different from actual observation. No particular reason is offered why Nelson would have paid any special attention to any of the four men before the stickup, and he never claimed that he did; he admitted that after the robbery started he did not pay much attention to the “second man.” In his testimony he said: “When Mr. Carroll (defendant) was taking the wallets, I’d say I was three or four feet from him. I was facing south, and the people turning over their wallets was facing the north.” Questioning continued as follows:

Q. “Facing the north. Now, Mr. Carroll had to be between you and these people, is that correct, sir?”
A. “No, sir. The people was in between me and Mr. Carroll.”
Q. “Then Mr. Carroll was on the other side of the people, is that correct?”
A. “I’d say so.”
Q. “And the people were standing between you and him, is that correct?”
A. “More or less. Most of them was.”

Again, Nelson admitted that his power to observe the man he describes as Mr. Carroll was under far less than ideal conditions. Many people were between them, and this fact alone would have substantially lessened his opportunity to view the man closely. When questioned about hair on the face of the “second man” he said: “If I am not mistaken he had a little goatee.” He was further questioned as follows:

Q. “How big a goatee was it ?”
A. “Ordinary, like the average guy would wear, I’d say.”
Q. “Well, can you describe on what portions of his face the goatee was ?”
A. “Have to be somewhere on his mouth.”
Q. “Well, was it immediately underneath his lip or was it on his cheeks?”
A. “It was under his lip.”
Q. “Did he have anything on his jaw underneath his lip?”
A. “If I am not mistaken, he had something on there. I don’t know what it was. I wasn’t paying that much attention.”

Mrs. Lydia Williams testified that the defendant was in the middle of the tavern, not at the front, as claimed by Nelson. She said the defendant was about 5' 3" or 4" tall and weighed about 130 pounds. Carroll, in fact, is 5' 10" or 11" tall and weighed 168 pounds. Mrs. Williams was asked if he had a mustache and she replied that he had. When asked if that was all she noticed about his face she said: “Mustache, sunglasses, had a straw hat on, and he was dark brownskinned.” The Assistant State’s Attorney says the defendant admitted he had just started to grow his goatee at that time and would have had only a small stubble. The State argues that Mrs. Williams’ testimony should not be rejected simply because she failed to notice a small growth of beard. This line of reasoning fails to take into account the fact that Isaac Nelson testified he did see a goatee on Carroll. Thus, Carroll either did or did not have a beard at the time— not both — and yet Mrs. Williams stated only that he had a mustache.

One week after the incident the defendant walked into the tavern and ordered a beer. Nelson said he noticed him, but “studied” him for a few minutes before calling the police. He said: “I noticed him, and he kept watching me, you know, he knew that I was watching him I guess. I went over and made the telephone call and he turned, he watched me talk on the telephone to the police. I had never seen Mr. Carroll prior to July 8th, 1967.” The arresting officer said the defendant offered no resistance; he had been in the tavern for 30 or 40 minutes, and was sitting at the bar drinking beer. We feel it is worthy of note that a guilty party who returns to the scene of the crime is not likely to remain seated when it appears he has been spotted and closely observed, and it is evident that a telephone call has been made as a result of that observation.

Mrs. Williams does not describe the defendant accurately. She was taken to the court by her brother after he had made his identification of the defendant as the robber. The defendant was brought into the courtroom by a bailiff, and he was the only black person in the area except the bailiff. It has been repeatedly recognized that a showup, as distinguished from a lineup, is an unreliable technique for obtaining identifications because of the strong suggestion that the sole person being produced is the criminal. In this case, the inclination to adopt this suggestion was all the more compelling since Nelson had already concluded that the defendant was the man who committed the crime; therefore, when the defendant was brought out, Mrs. Williams knew she was looking at the man already identified by her brother as the criminal.

It is not necessary to hold that such a method of identification of itself would require reversal, since we have concluded that regardless of the showup technique, the in-court testimony of the identification witnesses was not sufficient to prove beyond a reasonable doubt that Carroll was the criminal. The identification at the trial was inconsistent; however, that fact standing alone might not be sufficient to reverse a conviction. Nelson’s version is substantially impaired through his repeated admissions that he was not paying much attention to the second man since another man had a gun on him. He further admitted that patrons were standing between them, making it all the more difficult for him to have adequately observed the man he now maintains was Carroll.

It then appears that the witness in the best position to identify the man said to have been the defendant was Mrs. Williams, yet her description varies considerably from the actual features of the defendant. The identification testimony is made to appear even weaker in view of the circumstances of defendant’s arrest. The State argues that in cases where reviewing courts have reversed convictions for failure to adequately identify defendants there have been two conditions present; weak identification testimony and a strong alibi by the defendant. The State further argues that in this case the identification testimony is not weak, a conclusion which must be rejected; and that the defendant offered no alibi. In fact, the State says the defendant does not even recall where he was at the time of the robbery. In reply to that argument it could be said that the defendant in his testimony stated that on July 8 he was on vacation from his job, and was on Madison Street at about 1:30 p. m., but could not point out definitely where he was. He said:

“I was by myself on the morning of July 8th. After picking up my check at noon, I walks from Bell to this currency exchange, and that’s where I cashed the check. I drunk a beer around 1:00. I had a beer and went to the movie. I don’t know exactly the picture I went to the Four Star. To be honest, I really don’t know the movie. The movie was around 1:15. They always show two movies. I left the show around 5:00. I went home. I know I didn’t drive home, because I don’t have no car. I may have caught a bus. I guess I got home around 5:00 or 6:00. I did not meet anybody. I did not stay home. • • •
“When I left my hotel about 7:30 I wasn’t going nowhere special. I went to a neighborhood lounge. I think the name is Doll House or something. I socialized. I talked. I don’t recall who I socialized with. I don’t know when I left there. I didn’t stay there all night. I can’t pinpoint no place I went.”

The crime was committed on July 8,1967, and the trial was not held until October 6, 1967. The defendant was asked to account for his whereabouts on a date some 90 days earlier. We do not believe that anyone could have been any more accurate under the circumstances. In any case, criminal convictions are obtained on the strength of the State’s case and not on the weakness of the defendant’s. The State must obtain a conviction on the basis of proving beyond a reasonable doubt that the defendant committed the crime charged, and it does not accomplish that by pointing out the defendant’s failure to provide an airtight defense. In its brief the State says: “The testimony of the identifying witnesses was sufficient to convict in light of the naked denial by the defendant. People v. Donald, 29 Ill2d 283; People v. Cox, 22 Ill2d 534.” (Emphasis supplied.)

The cited cases do not support the State’s argument; they only hold that when the identification testimony is positive and the witness is credible, that testimony is sufficient to convict even in the event the defendant denies committing the crime. It is for the trier of fact to resolve such disputes and to determine who is telling the truth. We agree with the conclusions in Donald and Cox, but we disagree with the State’s interpretation of what those cases held.

One’s denial of participation in a crime certainly does not entitle defendant to an acquittal, and his denial must be taken into consideration together with the State’s evidence of guilt. The trier of fact should resolve the conflict between the two versions; however, in the present case, we must conclude that no choice was necessary since the State’s evidence was not sufficient to sustain a conviction. The function of choosing between two versions arises only when the State presents what would otherwise be an adequate case, and thus the trier of fact must determine whether the defense has adequately rebutted the State’s presentation.

In the case before us the evidence presented by the State was not sufficient to sustain a conviction. Isaac Nelson’s testimony was vague and varied from that of his sister, Mrs. Williams, whose testimony included a description of estimated height and weight, both of which differed substantially from the facts. We cannot say that this is the kind of “clear and positive” identification referred to in many cases which have sustained convictions. On the contrary, there were too many inconsistencies and variances in the testimony presented. Accordingly, the judgment of the Circuit Court finding the defendant guilty is reversed.

Reversed.

BURKE and LYONS, JJ., concur.


author: MR. JUSTICE LEIGHTON

text:
    Mary Carlstedt, Individually, and as Administratrix of the Estate of Raymond Carlstedt, Deceased, Plaintiff-Appellee, v. Charles L. Kaufmann, Eugene B. Kaufmann, Lester M. Kaufmann and The Kaufmann Building Corporation, an Illinois Corporation, Defendants-Appellants.
    Gen. No. 52,247.
    First District, Fourth Division.
    January 7, 1970.

      Andrew J. Farrell, of Chicago, for appellants.
    Charles Pressman, Pressman & Hartunian, of Chicago, for appellee.
   MR. JUSTICE LEIGHTON

delivered the opinion of the court.

This is an appeal from an order that denied defendants’ motion to strike and granted plaintiff’s petition to vacate a dismissal for want of prosecution. Although defendants have fragmentized its presentation, the issue is whether plaintiff’s petition satisfied the requirements of section 72 of the Civil Practice Act, Ill Rev Stats 1965, c 110, § 72.

The petition, sworn to and supported by exhibits, alleged that on August 22,1961, plaintiff filed suit against defendants to recover for the wrongful death of her husband, Raymond Carlstedt. Defendants appeared and answered the complaint. Discovery proceedings and pretrial motions followed. On March 31, 1965, the case was called for pretrial conference. Plaintiff alleged there was an agreement between counsel that the pretrial be continued to April 14, 1965. On April 9, 1965, defendants served plaintiff with a notice that on April 14, 1965, they were going before a motion judge in the circuit court and ask leave to file a motion for summary judgment. Plaintiff’s counsel called counsel for defendants and discussed hearing of the motion and the possibility of settlement. “ [M] r. Farrell (defendant’s counsel) thereupon informed . . . Charles Pressman (plaintiff’s counsel), . . . that there was no possibility of settlement. It was therefore agreed that plaintiff’s counsel should thereupon inform Judge Wham (the pretrial judge) that there was no possibility of settlement at least until the Motion for Summary Judgment was disposed of, and that in view of these circumstances, it would be best to place the case on the trial call.”

On April 14, 1965, and because of the agreement, only plaintiff’s counsel appeared in the courtroom of the pretrial judge. He spoke with the clerk, told him of the agreement and asked that the judge be advised of the parties’ desire that the cause be placed on the trial calendar. The clerk told plaintiff’s counsel that if the pretrial judge wanted counsel to be present, he, the clerk, would so advise by telephone. No call was received from the clerk; so plaintiff’s counsel assumed the case was placed on the trial call. However, on April 19, 1965, the cause was dismissed for want of prosecution. Plaintiff alleged that “No postcard informing plaintiff or her counsel of the dismissal order was ever sent by the clerk of the court, nor did he ever inform counsel for the plaintiff that disposition was other than as stipulated to by the parties.”

Plaintiff further alleged that on April 15, 1965, the day after the cause appeared for pretrial, the parties were before the motion judge in accordance with their agreement that a dismissal order was not to be entered. The motion for summary judgment was filed and assigned for hearing. On April 23, four days after the cause was dismissed for want of prosecution, the parties proceeded with further discovery. Letters were exchanged between counsel concerning dates for depositions. Hearing on the motion was continued to May 29, 1965, then to July 12, 1965; and finally by agreement of the parties, continued generally. The petition alleged that on December 6, 1966, when the court file was checked by plaintiff’s counsel, the dismissal for want of prosecution of April 19, 1965, was discovered. The petition under section 72 was filed December 20,1966.

Defendants first questioned the jurisdiction of the trial court by a motion to vacate an order of December 8 which allowed plaintiff to file her section 72 petition on or before December 20, 1966. The motion was denied. On January 4, 1967, defendants filed a special and limited appearance to object to the jurisdiction of the court over them and to request a stay of plaintiff’s petition. Hearing was set for February 27, 1967. On January 30, defendants filed a motion to strike and dismiss plaintiff’s petition.

It is an elementary rule of pleading that defendants’ motion to strike admitted as true all well-pleaded facts in plaintiff’s petition. Pierce v. Carpentier, 20 Ill2d 526, 169 NE2d 747; Washington Mfg. Co. v. American Uniform Rental Co., 73 Ill App2d 49, 218 NE2d 499. The question, therefore, is whether these well-pleaded facts were sufficient to justify vacatur of the dismissal. Esczuk v. Chicago Transit Authority, 39 Ill2d 464, 236 NE2d 719. The petition was the filing of a new suit; and it was necessary, as in any civil case, for petitioner to allege a cause of action. The burden was on petitioner to show by adequate allegations that she was entitled to the relief requested. Fennema v. Vander Aa, 42 Ill2d 309, 247 NE2d 409.

Defendants contend that plaintiff did not allege facts which entitled her to vacation of the dismissal. However, there are three factual allegations in plaintiff’s petition which, in our judgment, dispose of this contention: (1) on March 31, 1965, counsel agreed that the cause be placed on the trial call to await disposition of defendants’ summary judgment motion; (2) plaintiff’s counsel went to the clerk of the pretrial judge and requested the cause be returned to the trial calendar; and (3) the clerk did not send notice of the dismissal for want of prosecution. We observe that defendants by their motion not only admitted the truth of these allegations, but when counsel for plaintiff, in court and in the presence of defendants’ counsel stated these facts, there was no denial. Defendants have never contradicted these allegations, either by oral assertion of their counsel, by affidavit, counteraffidavit, or answer.

Section 50.1 of the Civil Practice Act, Ill Rev Stats 1965, c 110, § 50.1 provides that “[t]he failure of the clerk to give the notice does not impair the force, validity or effect of the order.” This section has a purpose not expressed in its terms. It is that each party who has appeared, or his attorney of record, be notified that an order of dismissal or default has been entered against him. It is to alert a party so that he can act within the time provided for by law and move to set aside a dismissal or default. Ill Rev Stats 1965, c 110, § 50(5). Its more obvious purpose is to alleviate the injustice which would result if a default or dismissal is entered without notice to a party who has appeared. Nagel v. Wagner, 46 Ill App2d 2, 196 NE2d 728. Fundamental fairness requires that notice of a default or a dismissal be given a party of record. Washington Mfg. Co. v. American Uniform Rental Co., supra. Reliance on statutory provisions is not culpability. Maierhofer v. Gerhardt, 29 Ill App2d 45, 172 NE2d 201.

Defendants’ contention that the trial court erred in overruling their motion to strike completely overlooks plaintiff’s allegations that counsel agreed to have the case returned to the trial calendar and that neither party appear at the pretrial conference. The truth of these allegations is borne out by the fact that defendants’ counsel never was in the pretrial court after March 31, 1965. An agreement between counsel for litigants is a very important fact. The thrust of plaintiff’s allegations was that if this agreement was known by the pretrial judge, he would not have ordered the dismissal for want of prosecution. This is the classical ground for grant of a section 72 petition.

Recently, in Smith v. Pappas, 112 Ill App2d 129, 251 NE2d 390, a section 72 petition was filed to vacate a dismissal for want of prosecution because plaintiff failed to answer defendants’ interrogatories. The petition alleged that counsel agreed to answer each other’s interrogatories and not appear at a scheduled hearing of defendant’s motion to dismiss for failure to answer. The petition alleged that notwithstanding the agreement, counsel for defendant appeared and obtained an order of dismissal. The trial court granted the section 72 petition. We affirmed. We said, “Here the fact asserted to exist which, if known to the. court, would have prevented rendition of the judgment, was an alleged agreement between counsel that neither would appear at the hearing on defendant’s motion to dismiss and that each would answer the other’s interrogatories. Allegations of fact in support of that ultimate fact, as well as diligence and lack of negligence on the part of plaintiffs-appellants are contained in the petition.” 112 Ill App2d 129, at 133, 251 NE2d 390.

We assume that when the pretrial judge overruled defendants’ motion to strike and vacated the dismissal, he saw the incongruity of one judge dismissing for want of prosecution a case pending before another judge of the same court on the motion of the party resisting the vaeature. Under these circumstances, denial of plaintiff’s petition would have been an injustice. Ellman v. DeRuiter, 412 Ill 285, 106 NE2d 350. Judgment is affirmed.

Judgment affirmed.

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

       There is a dispute concerning the exact date on which the parties were before the motion judge. Plaintiff has moved for leave to make page 18 of the motion judge’s minute book a part of the record on appeal. Defendants filed objections. We took the motion with the case. We deny the motion.
      It is of no significance on what particular day defendants’ motion for summary judgment was before the motion judge. It is significant that the motion for summary judgment filed by defendants was pending when the cause was dismissed for want of prosecution by a pretrial judge of the same court.


author: MR. JUSTICE DRUCKER

text:
    Mobile Construction Co., an Illinois Corporation, Albert F. Stroka, and Commercial National Bank of Chicago, for the Use of Said Mobile Construction Co. and Albert F. Stroka, Plaintiffs-Appellees, v. The Phoenix Insurance Company, a Capital Stock Company, United States Fidelity and Guaranty Company, a Capital Stock Company, and The Home Insurance Company, a Capital Stock Company, Defendants-Appellants.
    Gen. No. 52,624.
    First District, Fourth Division.
    January 7, 1970.
    Rehearing denied February 24, 1970.

      Epton, McCarthy, Bohling & Druth, of Chicago (Bernard E. Epton, Edward A. McCarthy, and Alan R. Miller, of counsel), for appellants.
    No brief for appellee.
   MR. JUSTICE DRUCKER

delivered the opinion of the court.

Defendants appeal from a summary judgment in favor of plaintiffs in the sum of $4,512.60 and from an order denying defendants’ motion for summary judgment. The defendants contend that the plaintiffs did not have a valid claim to the proceeds of three fire insurance policies as subrogee of the Commercial National Bank of Chicago (hereafter called “Bank”) since the Bank’s insurable interest had terminated two months prior to the fire loss.

On May 28, 1963, Mr. and Mrs. Conrad Barnett borrowed $5,830 from the Bank in order to purchase a tavern known as the Lemon Twist West. They executed a promissory note to the Bank secured by a chattel mortgage on the contents of the tavern. Albert Stroka, a relative of the Barnetts, executed a written guaranty of the loan and assigned his savings account to the Bank as further security for payment.

At the time the loan was made, the Bank requested that the Barnetts obtain fire insurance policies on the tavern with lender’s loss payable clauses attached naming the Bank as. beneficiary. The defendants executed and delivered the policies to the Barnetts on August 9, 1963, after the first year’s premium was paid by the Barnetts. The lender’s loss payable clause was attached to each policy on November 18, 1963, naming the Bank as beneficiary.

Almost immediately the Barnetts became delinquent on their loan. Payments were made by Stroka and the Mobile Construction Company (hereinafter called “Mobile”) to keep the loan current. The Mobile Construction Company was a corporation owned solely by Albert Stroka.

The Barnetts continued to be delinquent on the loan and on March 7,1964, Stroka, at the demand of the Bank, paid the balance of $1,888.12 then due on the loan. Thereupon the Bank assigned the promissory note of the Barnetts and their chattel mortgage on the contents of the tavern to Mobile. Mobile, as assignee of the note, obtained a judgment against the Barnetts pursuant to the confession clause in the note in the amount of $4,512.20. The judgment remains unpaid.

On May 6, 1964, while Mobile was in the process of foreclosing the chattel mortgage, a fire occurred at the Lemon Twist West Tavern destroying the mortgaged chattels. No claim was made by the Bank nor did it file proof of loss. Subsequently the present proceeding was brought by Mobile claiming the proceeds of the insurance policies as subrogee of the Bank. Stroka was later added as a party plaintiff. The Barnetts also filed a suit, as beneficiaries of the same policies, against the defendant insurers which is still pending in the circuit court.

Both plaintiffs, Stroka and Mobile, and the defendant insurance companies moved for summary judgment. The court denied the defendants’ motion and granted the plaintiffs’. Judgment was entered in favor of the plaintiffs in the amount of $4,512.60, being $1,504.20 against each of the insurers.

Defendants’ petition for summary judgment stated that the lender’s loss payable endorsement which was attached to and formed part of the Barnetts’ insurance policies created an obligation to pay the Bank in case of fire loss to the tavern. The endorsement was attached to the policies to protect the lender Bank from destruction of the security given for the loan. The lender’s loss payable clauses provided:

Loss, if any, under this policy shall be payable to Commercial National Bank of Chicago whose address is 4806 North Western Avenue, Chicago, Illinois as lender, mortgagee, or trustee, as interest may appear.

Defendants contend “that the only obligation of defendants was to the Commercial National Bank of Chicago and then only to the extent of the loan interest of the Commercial National Bank of Chicago, which at the time of the fire was nonexistent. Therefore, it had no interest under the terms of the lenders’ loss payable endorsement and further had no insurable interest in the premises at the time of the fire.”

In its motion for summary judgment plaintiffs contended that as a guarantor they were entitled to become subrogated to the rights of the creditor-guarantee Bank when the debt of the principal debtor was paid. In London & Lancashire Indemnity Co. of America v. Tindall, 377 Ill 308, 313, 36 NE2d 334, the court stated:

Subrogation is an equitable remedy, which, in effect, makes an assignment of securities held by the creditor available to the estate or subrogee. (Bishop v. O’Conner, 69 Ill 431.) Subrogation means the placing of one in the shoes of another, invested with all the rights of that other, in regard to certain obligations paid by him, who is thus subrogated. It is the substitution of another person in the place of a creditor or claimant, to whose rights he succeeds in relation to the debt or claim asserted, and which has been paid by him, involuntarily. Dunlap v. Peirce, 336 Ill 178.

In In re Freeman & Brooks, 1 F2d 430, 434, the court, in discussing the doctrine of subrogation, stated:

The right of subrogation is not a matter of contract, but is an equitable right accruing to one obligee as surety or otherwise to make payments, whereby, upon the making of the payments, the one so obligated succeeds to all of the rights of the person to whom he made the payment.

Freeman, supra, cites Aetna Life Ins. Co. v. Middleport, 124 US 534, 548, where the court quoted with approval from the Law of Subrogation by Henry N. Sheldon:

The doctrine of subrogation is derived from the civil law, and “it is said to be a legal fiction, by force of which an obligation extinguished by a payment made by a third person is treated as still subsisting for the benefit of this third person, so that by means of it one creditor is substituted to the rights, remedies, and securities of another . . . .”

A further examination of Sheldon’s monograph discloses at page 3 of his work:

The party who is subrogated is regarded as constituting one and the same person with the creditor whom he succeeds.

At page 10 Sheldon discusses the general doctrine of subrogation:

In short, the doctrine of subrogation is that when one has been compelled to pay a debt which ought to have been paid by another, he is entitled to a cession of all the remedies which the creditor possessed against that other. To the creditor they may have been equally liable; but if, as between themselves, there is a superior obligation resting upon one to pay the debt, the other, after paying it, may use the creditor’s securities to obtain reimbursement. . . . Although, as between debtor and creditor, the debt may be extinguished, yet, as between the person Who has paid the debt and the other parties, the debt is kept alive, so far as may be necessary to preserve the securities. When the money due upon a debt is paid, this will operate as a discharge of the indebtedness, or in the nature of an assignment of it, subrogating him who pays it to the place of the creditor, as may best serve the purposes of justice and the just intent of the parties.

Finally, in the .recent case of National Shawmut Bank of Boston v. New Amsterdam Cas. Co., 411 F2d 843, 844, (1969) the court stated:

Subrogation is an old term, rooted in equity, and semantically stemming from words meaning “ask under.” Today we use the parallel phrase, “stand in the shoes of.”

Therefore, we cannot agree with the defendants’ contention that the plaintiffs did not become subrogated to all of the rights of the Bank, including the right to collect under the lender’s loss endorsement. As of March 7, 1964, (when Stroka paid the Bank) the plaintiffs and the Bank became “one person,” and by operation of law plaintiffs were subrogated to the Bank’s insurable interest in the policies and were entitled to collect under the lender’s loss endorsement for a loss occurring after that date while the policies were still in force.

In the alternative the defendants contend that the plaintiffs cannot collect the insurance proceeds because of the Barnetts’ alleged misconduct which violated the terms of the insurance policies. In their answer to the complaint as amended, and again in their answer as twice amended, the defendants assert that the Barnetts increased the hazards to the insured property by means within their knowledge and control, failed to produce their records as required under the terms of the policies, and unlawfully and intentionally submitted an excessive and exaggerated claim for loss which constituted fraud, thereby voiding the policies. In their motion for summary judgment they argue that the Barnetts’ misconduct bars plaintiffs’ claim. However, since the plaintiffs stand in the place of the Bank, this defense cannot succeed. The plaintiffs were subrogated to all the rights and remedies of the Bank and their claim is properly based on the lender’s loss payable clauses which contained the provision that:

This insurance, solely as to the interest therein of the lender, mortgagee or trustee, shall not be impaired or invalidated by any act or neglect of the borrower, mortgagor or owner of the within described property ....

The defendants also contend that if they are required to pay the plaintiffs for the insurance loss they would be entitled to subrogation and could therefore recover from Stroka on the guaranty. Defendants argue that this would be patently circuitous. Payment by plaintiffs of the amount due the Bank on the Barnetts’ loan terminated the guaranty and extinguished their liability. Therefore, payment by the defendants for the fire loss would not entitle them to recover back from the guarantor.

For the reasons herein presented, the court’s rulings granting plaintiffs’ motion for summary judgment and denying defendants’ motion for summary judgment are affirmed.

Affirmed.

STAMOS, P. J. and LEIGHTON, J., concur.


text:
    Princess Maya Nicte-Ha, Plaintiff-Appellee, v. Hanns R. Teichert and Gloria Teichert, Defendants-Appellants.
    Gen. No. 52,949.
    First District, Fourth Division.
    January 7, 1970.
    Rehearing denied February 11, 1970.

      McCarthy, Scheurich, Duffy & McCarthy, of Chicago (John M. Duffy, Emmett D. McCarthy, Terrance E. Leonard, of counsel), for appellants.
    Brown, Dashow, Langeluttig, Joseph & Arons, of Chicago (Jack Joseph and Harvey Berman, of counsel), for appellee.
   MR. JUSTICE DRUCKER

delivered the opinion of the court.

Defendants appeal from a judgment of $11,000 after a jury trial on plaintiff’s claim that defendants unlawfully detained and withheld plaintiff’s goods and chattels.

On appeal defendants contend that the trial court erred in (1) refusing to instruct the jury that the defendants’ liability must be predicated upon their gross negligence; (2) permitting plaintiff’s expert testimony as to the value of the detained goods; and (3) denying defendants’ motion for judgment n. o„ v.

In her complaint plaintiff alleged that she was the owner of certain goods and chattels which included various paintings, sculptures, costumes and jewelry; that the defendants became possessed of the costumes, jewelry and sculptures in January 1958 when she was a guest in their house; that the defendants became possessed of the paintings in April 1960 when they were forwarded to them by the plaintiff from Cuba; and that she has made repeated demands for the return of these items but defendants have unlawfully detained and withheld them from her.

Defendants’ answer denied that they became possessed of any of the plaintiff’s goods on the dates alleged, or at any time whatsoever; denied that the plaintiff was a houseguest but was rather a tenant; and denied that they ever detained or withheld any property belonging to the plaintiff.

EVIDENCE

Testimony of plaintiff on her own behalf:

She was a citizen and resident of Mexico. She bought and sold paintings, costumes, jewelry and sculptures and operated an art gallery in Mexico for seven years. She is still engaged in the buying and selling of these items. Mr. Teichert operated an art gallery in Chicago when she first met him and she became close friends with the defendants. She was invited to spend Christmas with them in 1957. When she arrived she brought with her costumes, jewelry and sculptures which she used in her work. She was called home to Mexico in early February 1958 because her mother was near death. The costumes, jewelry and sculptures remained in the defendants’ home.

Forty-five paintings were sent from Cuba to the defendants by her. Mr. Teichert then sent the following reply letter:

“HANS R. TEICHERT COMPANY AN EYE FOR COLOR.
1311 North Wells Street,
Chicago 10, Illinois.
April 29,1960
“Dear Princess:
“We finally are in possession of your paintings which are stored in our studio. Gloria will show them and if possible sell them as soon as you let us have the prices.
“When they finally called me to pick up the paintings I found them in terrible shape. They were packed tightly in three crates. When the custom officials pulled them out of the crates, all the frames were broken and since they were packed so tightly, it was impossible to repack them, and we had to pick them up in the condition they are in. Items i0 to US are missing. They were not packed in the three crates nor are they missing out of these crates because it would have been impossible to pack any more into them. This means there must have been another crate, and since the shipment only called for three crates, I accepted the paintings.
“I would advise that you get in touch with your shipper from Cuba. He might have shipped by mistake only three crates, and one crate might still be in Cuba.
“The frames that are all broken are of course only cheap moldings held together by one nail and they are of no value.
“We would like to hear from you as soon as possible as to how much you have to receive for these individual items so that we can either sell them if possible or return them to you.
Kindest regards,
Hanns & Gloria Teichert
“Princess Maya Nicte Ha
Box 10584
“DECORATORS"

The “missing” items, Nos. 40 to 43, referred to in the letter, are not paintings but books and prints.

The defendants never exhibited the paintings because she did not send them a power of attorney.

She was the owner of the thirteen missing paintings as well as the various pieces of sculpture, costumes and jewelry which she described. The defendants returned thirty-one of the paintings and one costume dress to her. Mrs. Teichert had told her that all the other items were stolen. Mr. Teichert knew nothing about this theft.

She gave her opinion as to the value, in American dollars and in Chicago, of each missing article. She changed the Mexican peso into the dollar to arrive at the correct value. She based her opinion upon her experience as an art dealer and the price she paid for each item.

She had a gallery in Mexico City but did not have a business establishment in Chicago, and she never bought or sold any paintings or costumes in Chicago. The artist who painted the picture put the value on it, but from her experience she knew what value each particular painting should have.

Testimony of Leonard Handmacher, called by the defendants :

He is an attorney of record for the defendants. After plaintiff’s complaint was filed, he called Mr. Joseph, one of the attorneys for plaintiff, and asked him to help inventory some boxes of clothes which were stored at defendants’ place of business. These articles belonged to the plaintiff. After the inventory, Mr. Joseph signed for the boxes and they were sealed. (The offer of this inventory list into evidence was refused by the court since the list did not show any of the items which were not returned to plaintiff.)

Testimony of Hanns Teichert, one of the defendants, in his own behalf:

He bought, appraised and exhibited paintings but never sold them. He did not consider himself an art dealer. He knows very little about Mexican art except for the great masters. He helped the plaintiff get her paintings out of Cuba because she was a friend. One year after the paintings had arrived, he received a letter from the customs office notifying him that the paintings would be sold at auction unless they were picked up. He paid approximately $150 to have them released to him. They were stored in six or eight boxes when he picked them up. They were broken and damaged. He then wrote the letter dated April 29, 1960, stating that he had received the paintings.

He later wrote plaintiff another letter stating that the paintings would sell for little value as they were all unknown artists. He advised her to take them back to Mexico where they would be worth more money. The value he placed on these paintings was based upon his experience in Chicago; however, he could not identify the paintings in his possession as he never looked at them very carefully.

After the plaintiff requested the return of her costumes, sculptures and jewelry which had been left at his house, they were sent to her. He sent as much as he could find. Neither he nor his wife had any of the items listed in plaintiff’s complaint in their possession.

On cross-examination he stated that there were additional articles of plaintiff remaining after he had shipped her the costumes and other items. The plaintiff never asked him to return any of the remaining articles. A woman came with a letter from the plaintiff and he let her take whatever remaining items he had belonging to plaintiff. He did not obtain a receipt from this woman.

He knew nothing about his wife’s conversation with the plaintiff in which she said that plaintiff’s property had been stolen. He did not count the paintings when he picked them up at the customs office and could not recall writing the letter dated April 29, 1960, until it was shown to him to refresh his recollection. He could not remember having a conversation with the plaintiff concerning items 40 to 43. He only knew that they were missing. (These items are not involved in this suit.)

OPINION

Defendants first contend that the trial court erred in refusing to give defendants’ Instructions 2, 3 and 4:

DEFENDANTS’ INSTRUCTION NO. 2—
A gratuitous bailee is not liable to the bailor for loss or damage to the goods in the absence of gross negligence.
DEFENDANTS’ INSTRUCTION NO. 3—
The term “gross negligence” means a course of action which shows an utter indifference or conscious disregard for the property of another.
DEFENDANTS’ INSTRUCTION NO. 4—
If you find from the evidence that the defendants are guilty of gross negligence in the keeping of the property which the plaintiff claims that she gave into their possession, then you must find on behalf of the plaintiff.
If, however, on the other hand, you find that the defendants were not guilty of gross negligence in the maintaining and keeping of the property which the plaintiff claims she gave into their possession, then you must find on behalf of the defendants.

The court did give defendants’ Instruction No. 9:

DEFENDANTS’ INSTRUCTION NO. 9—
The plaintiff has the burden of proving each of the following propositions:
First, that she is the owner of or entitled to the possession of certain goods and chattels set forth in her complaint.
Second, that the defendants became possessed of the goods and chattels of the plaintiff.
Third, that the plaintiff made repeated demands for the return of the property claimed by her and that the defendants unlawfully detained and withheld said property from the plaintiff.
Fourth, that the plaintiff sustained damages.
If you find from your consideration of all the evidence that each of these propositions has been proved, then your verdict should be for the plaintiff, but, if, on the other hand, you find from your consideration of all the evidence that any of these propositions has not been proved, then your verdict should be for the defendants.

The court also gave defendants’ Instruction No. 1 defining a gratuitous bailment. Defendants argue that since this instruction was given, it was incumbent upon the court to give their instructions Nos. 2, 3 and 4 on the degree of care required of such bailee. However, defendants’ instructions do not accurately define the duty of a gratuitous bailee.

In Miles v. International Hotel Co., 289 Ill 320, 327, 124 NE 599, the court stated:

A gratuitous bailee of property is bound to take reasonable care to protect it from loss or damage. As bailee the defendant in error was bound to exercise such care and diligence in the preservation of the property intrusted to it as every prudent man takes of his own goods of like character. Ordinary diligence means that degree of care, attention or exertion which under the circumstances a man of ordinary prudence and discretion would use in reference to the particular thing were it his own property. (Schaefer v. Safety Deposit Co. 281 Ill 43.)

In Skelley v. Kahn, 17 Ill 169, 170, the term “gross negligence” was defined as an omission of that degree of care which a gratuitous bailee is required to use and that such care is that which “men of common sense and common prudence, however inattentive, ordinarily take of their own affairs, . . . .”

We find no error in the refusal of defendants’ instructions.

Defendants concede that a bailor establishes a prima facie case by showing delivery of property and a failure to return it and that this presumption must be rebutted by bailee by showing his exercise of the appropriate degree of care in the protection of the property. Sampson v. Birkeland, 63 Ill App2d 178, 211 NE2d 139. The evidence showed delivery to defendants and a failure to return. Defendants’ explanations were presented to the jury which found for the plaintiff. We believe the evidence supports this finding.

The defendants next contend that the trial court erred in refusing to strike plaintiff’s testimony as to the value of the withheld items. They argue that the measure of damages for the loss of personal property is determined by the value of the property at the time and place of the loss. When the plaintiff was asked to give her opinion as to the value of the missing articles, it was based upon their individual worth in Chicago in 1962. Furthermore, these articles would have an international worth thereby causing the value in Mexico and Chicago to be approximately the same. If any variation did exist, the defendants could have rebutted the plaintiff’s opinion testimony; however, her testimony as to value remained unchallenged.

Defendants also argue that plaintiff’s valuation testimony is incompetent and inadmissible because it was not based upon developed expertise. To sustain this contention, the defendants must show a clear abuse of discretion by the trial court in permitting the expert testimony. Only then will we review the trial court’s ruling. Bonato v. Peabody Coal Co., 248 Ill 422, 94 NE 69; Moren v. Samuel M. Langston Co., 96 Ill App2d 133, 237 NE2d 759; and Taylor v. The Carborundum Co., 107 Ill App2d 12, 246 NE2d 898. The defendants have failed to prove that the trial court clearly abused its discretion. In Taylor v. The Carborundum Co., supra, 18, the court stated:

The test of competency for an expert is whether or not he exhibits sufficient knowledge of the subject matter to entitle his opinion to go to the jury. Piacentini v. Bonnefil, 69 Ill App2d 433, 217 NE2d 507 (1966). A trial court has broad discretion in determining if a witness has been qualified as an expert. Northern Illinois Gas Co. v. Wienrank, 66 Ill App2d 60, 213 NE2d 411, (1965).

Since the items in question were rather unique in character and could not be exhibited due to their disappearance, their worth had to be determined by a person with special knowledge. The plaintiff was engaged in the business of buying and selling paintings, costumes, sculptures and jewelry for approximately seventeen years. For seven of those years she operated an art gallery dealing in these items. She is still regularly engaged in this type of work. She knew the artist who worked on each painting and from her own experience, in conjunction with the worth each artist placed on his work, she could then establish a value for each painting. She used the costumes and jewelry in giving concerts at schools and universities with the value being determined by the overall cost of each item.

While the plaintiff did not buy and sell paintings, costumes, sculptures and jewelry in Chicago, this only affects the weight that her testimony should be given and not its admissibility. In Buckler v. Sinclair Refining Co., 68 Ill App2d 283, 293, 216 NE2d 14, the court said:

To render an opinion an expert need only possess special skill or knowledge beyond that of the average layman, and the determination of his qualifications rests within the sound discretion of the trial judge. People v. Jennings, 252 Ill 534, 550, 96 NE 1077. The weight to be attached to such an opinion is a question for the jury in light of the expert’s credentials, the facts upon which he bases his opinion and any limitations placed thereon during cross-examination.

Therefore, we find that the trial court did not abuse its discretion in permitting the plaintiff to testify as to her opinion of the value of each missing item.

The defendants also argue that plaintiff’s testimony as to value was partly based upon the hearsay testimony of the artists. In testifying, the plaintiff stated that she based the value of each painting on her experience from working with each artist and on the date the particular picture was painted, the older the painting the higher the value. It was her business to know whether the value placed on each painting by the artist was its true worth. In Forest Preserve Dist. of Du Page County v. Harris Trust and Sav. Bank, 108 Ill App 2d 65, 73, 247 NE2d 188, the court, in discussing the admissibility of testimony as to value based upon partial hearsay knowledge, stated:

In Department of Public Works and Buildings v. Hufeld, 68 Ill App2d 120, 129, 215 NE2d 312 (1966), the court, while paying homage to use of hearsay as a part of the general knowledge and experience only, recognized that valuation opinions based, in part, on hearsay knowledge of other sales are still proper. Also see: Vol 5, Nichols on Eminent Domain, 3rd ed, §§ 18.4,18.41 and 18.42.
We do suggest that an otherwise competent valuation witness is not rendered incompetent merely because he bases his opinion, in part, on hearsay knowledge of other sales.

We find that the testimony of the plaintiff was properly admitted.

Defendants’ final contention is that the court erred in refusing to grant its motion for judgment n. o. v. since the plaintiff did not sustain the burden of proving that the paintings were delivered to them. Plaintiff testifled that she sent thirty-nine paintings to the defendants and that thirty-one were ultimately returned to her. Mr. Teichert testified that the plaintiff had the paintings consigned to him so that they could be shipped to him in Chicago. The paintings subsequently arrived and he picked them up one year later from the customs office. He then wrote a letter dated April 29, 1960, stating that he was in possession of the paintings. He also stated that he “must have seen the list” sent by the plaintiff describing the items shipped from Cuba. When asked if he had received “everything on this list that was within numbers one to 39,” he answered, “Obviously.” Defendants assert that the complaint only lists eight paintings; however, one of the items listed is “6 Yucatacan Themes” and plaintiff testified to “Six Yucatacan Themes” each valued at $200. The complaint therefore listed thirteen paintings and the proof related to thirteen paintings. The plaintiff sustained the burden of proving the delivery of the paintings to the defendants. The trial court did not err in refusing to grant defendants’ motion for judgment n. o. v.

The judgment is affirmed.

Affirmed.

STAMOS, P. J. and LEIGHTON, J., concur.

       In “Preparing and Trying Cases in Illinois” edited and sponsored by the Illinois Bar Association, we find the following statement in section 2023:

        The standard of care of a bailee was formerly established with reference to the type of bailment. In a bailment for the mutual benefit of the parties, the bailee was required to exercise an ordinary degree of care; in bailments for the sole benefit of the bailor, a slight degree of care was required; and in bailments for the sole benefit of the bailee the courts imposed a high degree of care upon the bailee. Under the modem rule, however, the bailee in any type of bailment is required to exercise that degree of care which a reasonably prudent man would exercise under the same circumstances.