author: MATHERS, J.

text:
    John T. Ennis, Administrator to Collect of the Estate of Robert E. Lease, Deceased, Plaintiff-Appellant, v. Illinois State Bank of Quincy, as Executor of the Purported Last Will and Testament of Alice C. Lease, Deceased, and Successor Trustee of the Trust Created by the Purported Last Will and Testament of Alice C. Lease, Deceased, Department of Conservation of the State of Illinois, St. Joseph’s Hospital for the Chronically Ill, Holy Redeemer Church of Barry, Illinois, Alva A. Lewton, Ferne S. Hull, Mabel Lease, Lois Lewton, Individually and as Administrator of the Estate of Daisy F. Lease, Deceased, Nelson Lewton, Louis Lewton, Victor Hull, Elise Viar, Lincoln’s New Salem State Park and Akers Chapel Cemetery Association, Defendants, Illinois State Bank of Quincy, as Executor of the Purported Last Will and Testament of Alice C. Lease, Deceased, Defendant-Appellee.
    Gen. No. 10,983.
    Fourth District.
    June 12,1969.

      Pollock & Ennis, of Quincy (Henry W. Pollock, of counsel), for appellant.
    Bier & Bier, of Quincy, for appellee.
   MATHERS, J.

A complaint in equity was filed on August 28, 1965, by Robert Lease and Robert Nelson Lewton, to set aside the Last Will and Testament and a Codicil thereto of Alice C. Lease, Deceased, naming the Illinois State Bank of Quincy as principal defendant, alleging undue influence by the bank and its agents and a lack of testamentary capacity by deceased. Also named as nominal defendants were a number of heirs and Alva A. Lewton, a tenant farmer of the deceased.

For an understanding of the issues involved we summarize the salient portions of the record. Alice C. Lease died on January 10, 1965, leaving her surviving Robert E. Lease, her brother, Robert Nelson Lewton, a nephew, and her sisters, Daisy Lease, Lois Lewton and Feme Hull.

The will was drawn on August 18, 1952, and the codicil was executed on December 6,1963.

Small bequests of personal belongings were made to each of the heirs and the balance of the estate, consisting of a 210-acre farm was devised one-quarter to Alva Lewton, a tenant on the farm since 1945, and three-quarters to Daisy Lease, for their respective lives. Upon the death of either life tenant that portion was to go to the survivor. Upon the death of both life tenants, the will gave the remainder to St. Joseph’s Hospital for the Chronically 111, but the codicil changed this beneficiary to the Holy Redeemer Church of Barry, Illinois.

Before the complaint was filed Daisy Lease died, leaving Alva Lewton as the sole life tenant.

On the date of trial, November 15, 1967, plaintiffs sought to file an amendment to the complaint by making Alva Lewton the principal defendant, alleging an agency, a fiduciary relationship and undue influence by Mr. Lewton. The trial court denied this motion. During the trial the court restricted the testimony of certain witnesses and at the conclusion of plaintiffs’ evidence again refused to permit the amendment to the complaint and granted a motion for directed verdict for the defendants.

This appeal follows, seeking a reversal of the trial court’s decisions and requesting that the case be remanded for a new trial.

Amendment of pleadings is governed by section 46 of the Civil Practice Act (Ill Rev Stats 1967, c 110) which reads in part:

“(1) At any time before final judgment amendments may be allowed on just and reasonable terms, introducing any party who ought to have been joined as plaintiff or defendant, discontinuing as to any plaintiff or defendant, changing the cause of action or defense or adding new causes of action or fenses, ....
“(3) A pleading may be amended at any time, before or after judgment, to conform the pleadings to the proofs, upon terms as to costs and continuance that may be just.”

Illinois has long permitted a policy of permitting liberal amendment of pleadings. Over a century ago the Illinois Supreme Court stated that amendments should be freely allowed to preserve rights and advance justice, as long as such amendments do not work to the surprise or prejudice of the opposite party. Miller v. Metzger, 16 Ill 390, 6 Peck 390 (1855). More recently the Court stated that section 46 is to be construed liberally “to the end that controversies may be speedily and finally determined” . . . and real justice attained. Thompson v. People, 410 Ill 256,102 NE2d 315.

Despite this liberal policy, parties do not have an absolute right to amend their pleadings. Amendments are only permitted at the trial court’s discretion. This point has particular significance in deciding the appeal of the case under consideration because our courts have had two divergent policies — a policy favoring liberal amendments of pleadings and a policy against unduly restricting a trial judge in matters falling generally within his discretion. The determining factor for overruling a judge’s disallowance of a motion to amend must be found in a “clear abuse of his discretion,” considering the peculiar facts and circumstances of the case and the impact upon all the parties in permitting or not permitting the motion.

The plaintiff’s motion to amend in the instant case does not fall clearly in the express categories enumerated in section 46. He did not change his basic theory in the contest of the will, but on the date of trial made new allegations of fiduciary relationship, agency and undue influence against a party defendant who originally was a nominal party to the proceeding. The test to be applied in determining whether discretion was properly exercised in denying an amendment to the pleadings is whether it “furthers the ends of justice.” Lahman v. Gould, 82 Ill App2d 220, 226 NE2d 443 (1967). In this regard the court may determine the ultimate efficacy of a claim in passing on a motion to amend and whether plaintiff had previous opportunities to assert his claim. Bowman v. County of Lake, 29 Ill2d 268, 193 NE2d 833. See also Fleming James Jr.’s Civil Procedure, pars 5.2-5.10 (1965).

Trial courts have broad discretion in allowing or refusing amendments. Lowrey v. Malkowski, 20 Ill2d 280, 170 NE2d 147.

The facts in our case are quite similar to those in Brockob Const. Co. v. Trust Co. of Chicago, 6 Ill App2d 565, 128 NE2d 620, where appellants contended that the trial court erred in denying their motion for a continuance filed on the date of trial, in order that they might file a third-party proceeding. This motion was made orally, without prior notice to either the court or opposing parties. The purpose of the amendment was to bring in the managing trustees who had succeeded appellants. The court held that:

“In any event, a motion for leave to amend pleadings is addressed to the sound discretion of the court and a judgment will not be reversed for a refusal to allow an amendment unless there has been an abuse of discretion. This is particularly true where the proposed amendment undertakes the institution of a third party proceeding and is made on the day the case is ready for trial, so that not only the granting of the amendment is involved but the settling of pleadings in a new proceeding, with the delays and continuances that would accompany it. The court properly denied the motion.” (P 570.)

Applying the principles and criteria outlined above, let us examine the chronological events that transpired beginning with the filing of the original complaint on the 28th day of August, 1965, brought by Robert E. Lease and Robert Nelson Lewton. This complaint makes all the legatees and devisees party defendants in addition to Alva Lewton. It alleges that undue influence was exercised by the Elinois State Bank and that the deceased, Alice Lease, did not have sufficient physical and mental capacity to execute a will and codicil. There are no allegations of wrongdoing on the part of Alva Lew-ton. Some of the legatees filed answers, and some filed waivers and entries of appearance. The defendant Alva Lewton filed an answer, on October 1,1965.

On August 31, 1967 a pretrial conference was held and the case was set for trial on September 11. A stipulation and agreement was filed by counsel for the parties that “the pleadings will be deemed merged herein.” On September 11 one of the plaintiffs, Robert Lewton, made an oral motion requesting a continuance and on September 12, filed a verified written motion stating that he resided in California and that he had been in Adams County for five weeks awaiting the trial, that he was in danger of losing his job in California, that he should be back at work, and asking for a later trial date setting. This motion was granted and the case was set for trial on November 13. On October 2, 1967, a second pretrial order was filed setting the case for November 15. On October 23,1967, plaintiffs’ counsel, Mr. Schmiedeskamp, withdrew and present counsel, Mr. Pollock, was substituted. The order granting the withdrawal and substitution stated, “Jury trial setting for November 13, 1967 confirmed.” The record does not indicate that Mr. Alva Lewton or his counsel attended any of these pretrial conferences.

On Wednesday, November 15, the date of trial, appearances were made by Mr. Pollock for plaintiffs, Robert Bier for Illinois State Bank, and Keefe and Snowden for St. Joseph’s Hospital. The record shows that a motion was made by Mr. Pollock to withdraw Mr. Robert N. Lewton as a party plaintiff and for him to enter his appearance as a party defendant. Objection made by Attorney Bier was overruled, the motion allowed, and Mr. Lewton entered his appearance as a defendant.

The record discloses no valid reason why the subject matter of the amendment was not included in the original pleading, or the amendment offered sooner than the day of trial. Mr. Pollock said on the date of trial: “I did not know about this matter until I got into the case on Monday,” yet the record would show that he had been in the case over three weeks. The transcript also shows that Mr. Robert Lewton had been in Quincy “five weeks awaiting the trial,” that the case was actually called for trial on the 15th day of November when it was originally set for the 13th.

No motion for continuance was made on behalf of any of the parties. To have proceeded to trial would undoubtedly have prejudiced Mr. Alva Lewton, whose counsel was not present on that date (November 15, 1967) and he would have had to defend these new charges of a fiduciary relationship, agency, undue influence, etc. This, likewise, might have been prejudicial to the other defendants who had filed answers before the realignment of the parties. We think the trial court was correct in denying the motion to amend.

Our Illinois Courts also have a policy permitting amendment of pleadings to conform to proof adduced at the trial but the materiality to the evidence already produced must be apparent. McCartney v. McCartney, 8 Ill2d 494,134 NE2d 789 (1956).

The trial record fails to reveal any evidence of agency, undue influence or fiduciary relationship by Alva Lewton. Therefore, the second denial of plaintiff’s motion by the court at the conclusion of plaintiff’s evidence was not “an abuse of discretion.”

Finally, we consider the propriety of the motion for a directed verdict. Such a motion in a will contest is governed by the same rules as other proceedings at law. The contestants in such an action are entitled to the benefit of the evidence considered in its most favorable light together with all reasonable inferences to be drawn therefrom, but the question on review is whether there is any evidence tending to prove either undue influence on the part of the defendant, Illinois State Bank, or lack of testamentary capacity on behalf of the deceased.

Some portions of the evidence, together with the provisions of the will and codicil seem to prove that Alice C. Lease possessed some peculiarities, but the testimony of the witnesses at the trial also establishes that she was a retired school teacher, intelligent, mentally alert and still conducting her own business affairs after the effective dates of her will and codicil. These physical and mental characteristics would seem to meet the test that the testator had sufficient mind to understand that she was making a will, comprehended what property she was disposing of and knew the natural objects of her bounty. In re Estate of Gray, 39 App2d 239, 188 NE2d 379.

It is well established that eccentricities, uncleanliness, or neglect of person do not constitute a lack of testamentary capacity. Quellmalz v. First Nat. Bank of Belleville, 16 Ill2d 546,158 NE2d 591.

We believe it unnecessary to discuss the testimony of each witness, much of which is cumulative, unrelated to the issues in the case and of no evidentiary value to show the condition of the testatrix’ mind on the dates in question. We find no evidence introduced to prove the allegations of the complaint as to lack of testamentary capacity of the deceased, or the exercise of undue influence on the part of the defendant, Illinois State Bank of Quincy. Under these conditions the court is compelled to grant a motion for the defendant for a directed verdict. (See Malone v. Malone, 26 Ill App2d 291,167 NE2d 703.)

Accordingly, the decision of the Circuit Court of Adams County is affirmed.

Affirmed.

CRAVEN, P. J. and SMITH, J., concur.


source: Caselaw Access Project

author: EBERSPACHER, J.

license: Public Domain

text:
    LeRoy Diefenbach and Norma Diefenbach, Plaintiffs-Appellees, v. Eva Pickett, Defendant-Appellant.
    Gen. No. 68-106.
    Fifth District.
    June 13,1969.

      Stringer and Carlisle, of Mt. Vernon, for appellant.
    Harris, Holbrook & Lambert, of Marion, and Hanagan & Dousman, of Mt. Vernon, for appellees.
   EBERSPACHER, J.

This is an appeal from judgments entered on the verdicts in a personal injury action resulting from a collision of automobiles in which that occupied by plaintiffs was struck by defendant’s vehicle, while the vehicle occupied by plaintiffs was in its proper lane of traffic.

At approximately midday plaintiffs in their station wagon were proceeding South in their right-hand west lane, on a straight stretch of Route 37 at a point South of Mt. Vernon, and according to their testimony, at a speed of 35 to 45 miles per hour where the posted speed limit was 50 miles per hour. At the same time, defendant was proceeding north in the east lane at approximately the same speed. She was the sole occupant of her automobile and had driven over the road many times and knew of the location of a service station on the east side of the highway. According to her testimony, as she approached the driveway to the filling station, a car driven by Harry Olson in which his wife was a passenger, pulled into the east lane of the highway and stopped. Both the Olsons and both plaintiffs testified that the Olson car was stopped two to four feet east of the east edge of the road. At some point as defendant approached the Olson car, she applied her brakes, causing the rear of her car to skid. Defendant’s right rear corner skidded into the left front side of the Olson car, and proceeded diagonally across the east half of the pavement into the west half, and struck the front of plaintiffs’ southbound station wagon.

The Olsons were not parties to the suit, and no cross-complaint was filed. The jury found in favor of plaintiffs and assessed the damages of plaintiff LeRoy Diefenbach at $2,283, and those of plaintiff Norma Diefenbach at $6,500.

Defendant has appealed praying for reversal, or in the alternative reversal and remandment for a new trial. Defendant first contends that a finding of negligence on the part of defendant is against the manifest weight of the evidence. She argues that skidding in itself unattended by prior negligence from which skidding proximately results is not negligence, citing Piggott v. Newman, 338 Ill App 198, 86 NE2d 670. (Abst opinion.) Defendant has not seen fit to present us with a copy of that opinion, and it has not been cited by an Illinois Court. The argument obviously neglects to consider that the jury might have considered the application of the brakes which commenced the skid, a negligent act; one that was not justified by the situation which presented itself. The jury may have believed the witnesses who testified the Olson car was stopped off the highway, rather than her witnesses with reference to the position of the Olson car, both before and after the collision. This is particularly true when as is stated in defendant’s brief, “the defendant and her husband and brother and mother left much to be desired in the way of . . . candor.”

In the case of Calvetti v. Seipp, 37 Ill2d 596, 227 NE2d 758, at 760, the Supreme Court of Illinois held:

“It is undisputed that the collision occurred on the plaintiff’s side of the road, and no affirmative showing was made by defendant that the skid into the opposite lane in front of the plaintiff’s car happened without negligence on her part. She made no effort to show that she was not driving too fast for road and weather conditions, or that some unavoidable event caused her to lose control. The fact that her car skidded in front of the one in which plaintiff was riding must be deemed to have arisen from some negligent act or omission, in the absence of explanation to the contrary. Sughero v. Jewel Tea Co., 66 Ill App2d 353, 214 NE2d 512; Tomlison v. Chapman, 24 Ill App2d 192, 164 NE2d 240; Murphy v. Kumler, 344 Ill App 287, 100 NE2d 660.”

Here the jury, although defendant made an effort to show she was not driving too fast for road and weather conditions, and that Olsons’ presence was the unavoidable event that caused her to lose control, did not accept that explanation. Under the circumstances here present, the unacceptable explanation is the equivalent of the absence of explanation, and the fact that her car skidded in front of plaintiffs’ must be deemed to have arisen from some negligent act or omission on her part.

In his closing argument, defendant’s counsel, in commenting on evidence that defendant had pled guilty to a traffic charge of improper lane usage, said:

“Now as far as the guilty plea is concerned, the officer gave her a ticket. She went in — the Judge told her the fine would be $15.00, so what does she do? Hire a lawyer for $150.00 to defend her (objection made but not ruled upon). She pays the fine and pled guilty.”

In his closing argument plaintiffs’ counsel responded:

“Mr. Stringer says she signed a plea of guilty to save what he termed $150.00 attorney’s fees. This —I would like to point out, that she admitted it was a plea of guilty. Is he saying his own client would perjure herself for $150.00? If that is what he is saying, he is impeaching his own client. He is saying that she would perjure herself for $150.00 — .”

At this point objection was made and sustained; no further comment concerning the matter was made. Defendant contends the response was inflammatory and reversible error, citing the last paragraph of ILP, Trial, § 92: “However, it is improper for counsel in his argument to make statements not sustained by the facts, reflecting on the character, credibility, or conduct of the opposite party, or of a witness.” Plaintiff cites the first paragraph of the same section: “Counsel in his argument to the jury may, within reasonable limits comment on those who give the evidence, the range of such comment being necessarily in the discretion of the trial court. Thus where the evidence or reasonable inferences therefrom sustain his statements, counsel may comment and reflect on the character, conduct, or credibility of a party . . . or of witnesses.” The court properly exercised his discretion by sustaining defendant’s objection, although some comment was justified by her counsel’s insinuation that she would enter a false plea to save an attorney’s fee of $150. Under such circumstances we cannot say that reversible error was committed.

A corporal of the Illinois State Police, who had investigated approximately 900 automobile collisions, testified over objection that it was his opinion based upon the location of the vehicles before they had been moved and the location of debris, the collision between the Pickett and Olson vehicles occurred approximately 3 feet east of the pavement, and that the collision between the Pickett and Diefenbach vehicles occurred in the southbound lane of traffic. Defendant contends that the evidence was inadmissible, because it required no special knowledge, but was within the knowledge of all persons of common education and experience, and the jury could have drawn its own conclusions from the simple facts; that such expert evidence put undue emphasis on defendant being at fault. Admissibility under the circumstances here presented, rested within the sound discretion of the trial judge, and was not abused. Thomas v. Cawgin, 43 Ill App2d 336, 340, 193 NE2d 233, 235, and citations therein.

Defendant next contends that the verdict should be set aside and a new trial granted because it is not sustained by sufficient evidence or is contrary to the weight or preponderance of the evidence. She suggests that if defendant was negligent with reference to speed on the wet highway, then plaintiffs were guilty of contributory negligence, because both vehicles were traveling at approximately the same speed; that skidding was not negligence and was caused by no negligent act. What we have said with reference to defendant’s first contention is here applicable. These matters were all properly submitted to the jury without direction. The mere fact that the evidence is conflicting does not constitute ground for setting aside the verdict and granting a new trial. We find no evidentiary situation which would require a new trial, and no lack of proof on part of plaintiffs.

Lastly, defendant contends that the verdicts are so excessive that passion or prejudice is indicated. Plaintiff LeRoy Diefenbach proved $270 as special damages, including $130 loss of wages, his verdict was for $2,283. He sustained back and chest injuries, which resulted in his having to wear a rib belt for one and one-half months, losing work for one week and enduring pain in his back over a two-year period. His treating physician confirmed that over a long period of time, he had limitation of motion in his back, that he complained of numbness in his foot and leg and that his complaints referable to his low back and leg were due to irritation of the nerve roots in the low back and were consistent with his complaints of tenderness in the low back. Further, the doctor testified that his back could quite possibly be more vulnerable to future injury than that of a person who had not sustained such injury. On cross-examination he testified that LeRoy Diefenbach had apparently made a full recovery from injuries suffered in the collision.

Plaintiff Norma Diefenbach, who was awarded $6,500, suffered injuries to her chest and knees and a cut on her chin. Her doctor testified that she had a permanent atrophy of her right leg, both above and below the knee, to the extent of one-half inch, and that she had a permanent one inch scar on her chin. She testified that 3 years after the accident her knee still gave her pain when she worked at her household duties, and although the pain was described as being objective, the doctor described a tenderness in the knee at that time. She testified that her right foot had become smaller than her left since the injury. Her proven medical expenses were $74.

Defendant suggests that the lawsuit became a beauty and personality contest. If the jury was affected by personal appearances or candor of the parties, it would only have been proper and appropriate, since the consideration of the facial disfigurement and the extent of atrophy, as well as the pain suffered by plaintiffs and the permanency of their injuries were important issues for their evaluation. The amount of damages, particularly with reference to personal injury is within the broad discretion of the jury, and we cannot say that it was abused in this case. Kahn v. James Burton Co., 5 Ill2d 614, 623, 126 NE2d 826, 841; Dallas v. Granite City Steel Co., 64 Ill App2d 409, 427, 211 NE2d 907, 915. Pain and suffering, permanent injuries and disfigurements are compensable without any proof of special damages.

We therefore affirm the judgments of the Circuit Court of Jefferson County.

Judgments affirmed.

GOLDENHERSH and MORAN, JJ„ concur.


author: MR. JUSTICE SEIDENFELD

text:
    Kenneth J. Hansen, Plaintiff-Appellee, v. Kenneth Johnston, Defendant-Appellant.
    Gen. No. 68-153.
    Second District.
    June 16,1969.
    Rehearing denied August 1,1969.

      Nack, Richardson and Nack, of Galena, for appellant.
    Stewart R. Winstein, and Dorothea O’Dean, of Rock Island, for appellee.
   MR. JUSTICE SEIDENFELD

delivered the opinion of the court.

Defendant appeals from an adverse judgment for $30,000, arising from a breach of contract action heard by the court.

The court found for plaintiff on the theory that the defendant had made the following contract impossible of being performed:

“AGREEMENT
“This agreement dated May 22, 1963, by and between Kenneth J. Hansen, Kenneth Johnston and Chestnut Hills Resort, Inc.
“Witnesseth
“1. Kenneth J. Hansen hereby agrees to vacate the premises he now occupies at Chestnut Hills Resort, Inc., within one week from the date of this agreement.
“2. Kenneth Johnston hereby agrees that he will pay to Kenneth J. Hansen for all his right, title and interest in and to any stock that he may own in Chestnut Hills Resort, Inc. the sum of $30,000.00. This sum shall be paid as follows:
“(a) If Kenneth Johnston secures financing in the sum of $350,000 he will pay the $30,000 to Kenneth J. Hansen when the loan proceeds of $350,000 are disbursed.
“ (b) If Kenneth Johnston is unable to secure financing in the sum of $350,000 then the $30,000 will be paid after all corporate debts due of this date are repaid. It is agreed between the parties that in this instance the $30,000 will be paid from corporate profits.
“3. The parties agree that Kenneth J. Hansen shall have the right to secure a mortgage for the Corporation for $350,000 and if he succeeds he shall receive his $30,000 as hereinabove provided.
“4. Kenneth J. Hansen shall be released from all personal liability to the State Bank of Freeport and the Elizabeth State Bank. Any collateral at these banks belonging to Hansen shall likewise be released.
“5. Hansen hereby agrees to release to Johnston any and all records in his possession pertaining to Chestnut Hills Resort, Inc.
“6. Hansen hereby agrees to resign as an officer of Chestnut Hills Resort, Inc. and further agrees that he has no right, title or interest to any property of the said Chestnut Hills Resort, Inc.
“7. The Chestnut Hills Resort, Inc. hereby agrees to pay all legitimate outstanding debts of the Corporation as of this date and to relieve Hansen of all responsibility for the same.
“8. Hansen hereby agrees that he will not go into the ski business or ski resort business in any capacity or be employed by a ski lodge or ski resort in any capacity, within a radius of 50 miles from the location of Chestnut Hills Resort, Inc. for a period of 18 months. This provision shall not prohibit Hansen from selling or manufacturing ski equipment within the above defined area.
“9. Hansen and Johnston agree that if Chestnut Hills Resort, Inc. shall be sold before Hansen receives his $30,000, then Hansen and Johnston shall participate equally in the selling price, after the payment of all corporate debts and obligations. If Hansen has received the $30,000 he shall have no interest in the selling price. Johnston shall have the right to pay the $30,000 at any time after the execution of this agreement.
“In witness whereof the parties hereto have placed their hands and seals the day and date first above written.
/s/ Kenneth J. Hansen (Seal) /s/ Kenneth Johnston (Seal) Chestnut Hills Resort, Inc. By /s/ Kenneth Johnston President”

On August 3, 1964 defendant recorded a trust deed on the property in the amount of $485,000, which secured a note payable to bearer in monthly installments of $3,-474.79 with 6% interest, the entire amount being due by August 1, 1984, if not sooner paid.

It appears from the testimony that Hansen as a partner with another and later as a principal stockholder, had operated the ski lodge and resort. There were financial difficulties and lack of operating capital which threatened the continuance of the venture. Hansen pledged his stock in the corporation to Johnston to secure over $280,000 which Johnston had avanced to the corporation. Johnston also acquired other outstanding stock of the corporation.

The operation of the business was not going well, Hansen and Johnston could not agree on management — the former wanting to make a smaller winter operation, the latter to expand and upgrade the facilities and to promote a more sophisticated year-around facility.

Hansen stayed in possession of an apartment at the lodge and refused to vacate as requested by Johnston.

As of the date of the agreement the corporate debts were approximately $205,000, and Hansen was individually liable for a portion of this amount. In addition, there was the cost of a sixty room addition to the motel and furnishings in the amount of $200,000 represented by advances of Johnston. After that date a swimming pool was completed, air conditioning installed and the dining room and bar finished. The cost of these items was some $50,000.

The $485,000 note was made up of that $50,000, corporate debts, then reduced to $85,000, and the moneys advanced by Johnston both before and after the May 2 agreement.

The agreement was typed out in the office of the lodge by an attorney who was Johnston’s personal counsel as well as that of the corporation. Hansen was not represented by an attorney. After the execution of the agreement Hansen vacated the apartment on the premises.

Defendant testified that the business at the time of trial was presently losing money, possibly $20,000 the last year, and that he had not been able to secure financing or sell the property.

Defendant claims that the judgment below is erroneous because none of the contingencies expressed in the agreement have been fulfilled and that the agreement has not become impossible of performance as to any one or all of the conditions. He suggests that the agreement be found capable of being performed and that we determine a reasonable time within which performance is to occur.

The principal issue is whether the recording of the $485,000 trust deed made the agreement impossible to perform. Defendant argues that it was only sound business practice to secure himself for advances made to the corporation and that in any event the trust deed should be considered legally subordinate to the agreement, and, if not, we should consider that he expressed a willingness to subordinate the trust deed in a post-trial motion.

It is clear that when performance of an agreement is rendered impossible by the willful acts of one of the contracting parties, the agreement to pay becomes absolute. Foreman Trust & Savings Bank v. Tauber, 348 Ill 280, 286,180 NE 827 (1932).

And it seems apparent here that, unless the trust deed was subordinated to the agreement, the recording of the instrument (which included some debts contemplated to be repaid from the $350,000 financing mentioned in the agreement) would render the securing of the expressed financing, or a sale of the property, practically impossible.

At one point in the hearing Johnston was asked on the witness stand whether he would be willing to release the trust deed by payment of $350,000. Johnston’s attorney objected to the question. There is nothing in the record to indicate any later willingness to subordinate the trust deed during the course of trial. While defendant suggests that he believed that the trust deed was legally subordinate to the agreement, he cites no authority to support this position and we know of none. We agree with the trial judge that the offer made at the post-trial hearing was ineffective.

Johnston, however, argues that even assuming the trust deed made a loan impossible that there are other contingencies still available, sale or profits, which are not impossible. He refers to the quotation in the Restatement of Contracts, section 469: “Impossibility of performing one or more but less than all of a number of performances promised in the alternative in a contract discharges neither the duty of the promisor if by the terms of the contract he had the privilege of choice, nor the duty of the promisee if he had that privilege, but merely destroys or limits the possibility of choice . . . .”

Both parties are in agreement that the contract under the circumstances should be construed against the defendant whose attorney drew it. Marshall Field & Co. v. J. B. Noelle Co., 81 Ill App2d 409, 414, 226 NE2d 454 (1967). The contract was silent and ambiguous as to the substantial improvements made subsequent to the agreement and their relationship to any sale price or amount of loan required; to the effect of these items on computing net income accruing upon the improvements and impliedly computing profits; to the time for performance; and the result of non-occurrence of the contingencies.

These ambiguities, in any practical sense, prevented the alternative conditions from amounting to possible avenues of recovery.

It should be noted that the alternatives are truly under the control of Johnston whereas the securing of the finances by Hansen is the only condition which would be clearly under Hansen’s control.

The quotation in the Restatement of Contracts, supra, does not apply to the facts of this particular case. The reference to Glidden Co. v. Hellenic Lines Ltd., 275 F2d 253 (1960) makes clear that section 469, supra, refers to cases where one of two or more alternatives to completing a contract becomes impossible due to some circumstances not within the control of the parties. A duty is imposed by law upon a party not to interfere at all with the completion of the agreement by the opposite party. Levy & Hippie Motor Co. v. City Motor Cab Co., 174 Ill App 20, 25 (1912); Levy v. American Automobile Ins. Co., 31 Ill App2d 157,164-165, 175 NE2d 607 (1961); Jordan v. Busch, 285 Ill App 217, 225, 226, 1 NE2d 745 (1936).

We hold that the trial judge properly found that defendant by his own acts made it impossible for plaintiff to retain any real ability to secure the benefits of the contract, thereby making the liability absolute.

We therefore affirm.

Affirmed.

ABRAHAMSON and DAVIS, JJ., concur.


author: MR. JUSTICE ABRAHAMSON

text:
    Donald E. Walden, Plaintiff-Appellant, v. Schillmoeller & Krofl Company, Inc., a Corporation, and The Catholic Bishop of Chicago, a Corporation Sole, Defendants, Schillmoeller & Krofl Company, Inc., a Corporation, Defendant-Appellee.
    Gen. No. 68-65.
    Second District.
    June 16,1969.

      Diver, Diver, Ridge and Brydges, of Waukegan, for appellant.
    Fred B. Meyer, of Waukegan (John F. Grady, of Waukegan, of counsel), for appellee.
   MR. JUSTICE ABRAHAMSON

delivered the opinion of the court.

Plaintiff brought suit against defendant to recover for personal injuries sustained by plaintiff in falling from a scaffold erected by defendant. Action was brought pursuant to the Illinois Structural Work Act, commonly known as the Scaffold Act (Ill Rev Stats 1963, c 48, §§ 60, 69). After trial of the case, the jury returned a verdict of not guilty for defendant. Plaintiff’s post trial motions were denied and the trial court entered judgment on the verdict. It is from this judgment that plaintiff appeals.

It is plaintiff’s contention that the trial court erred in failing to grant plaintiff a judgment notwithstanding the verdict on the issue of liability alone for the reason that plaintiff established all the elements of his case as a matter of law; that the trial court erred in failing to grant plaintiff a new trial on all the issues for the reason that the verdict of the jury finding defendant was not guilty was against the manifest weight of the evidence; and that the trial court had erred in failing to strike certain affirmative matter from defendant’s answer, thereby allowing the introduction of certain evidence at trial which was prejudicial to plaintiff and confusing to the jury.

On September 17, 1964, plaintiff was employed by M & H Steel Setters, a partnership engaged in providing structural iron workers for construction jobs. Prior to September 17, 1964, defendant was acting as general contractor in the construction of a school building at 83rd and St. Louis streets in Chicago, Illinois. In pursuance of its role as general contractor, defendant contracted with M & H Steel Setters to perform certain iron work in the school construction. Defendant supplied the steel to be used. Sometime prior to September 17, 1964, carpenter employees of defendant constructed a certain wood support on the outside of the school construction at a distance of 25 to 30 feet above the ground, which was to be used to support workers as they performed their jobs. This support consisted of 2" by 12" boards each about 20 feet long, laid end to end the entire length of the steel structure. These 2" by 12" boards were nailed to 4" by 4" boards known as shorings. The shorings were fastened to the permanent structure by Ellis clamps which were designed to make a tighter grip as more weight is exerted downward on the shoring. The shorings were spaced about 15" to 20" apart. This scaffold had no guard rail.

On September 14, 1964, plaintiff was assigned for the first time to work at this site where the accident occurred. Plaintiff was engaged in setting steel beams into the south wall of the building. Each beam consists of six 20 foot steel bars, each bar weighing 100 to 125 pounds and measuring % inch in diameter. Sometime around 2:45 in the afternoon, plaintiff was engaged in assisting another employee in carrying the steel rods from the northeast corner of the third floor over to where the rods were being set into the beam. After setting the rods down, plaintiff stepped down to the scaffold. Plaintiff’s foreman and his father, a coemployee, were also on the scaffold preparing to tie in the last beam on the south side. When plaintiff got on the scaffold, he was some 35 to 40 feet from the foreman and his father. Plaintiff had walked 10 to 15 feet on the scaffold toward the other men when he felt something strike his elbow. When he turned he saw that the top portion of the beam was rolling away from the building. It was this beam which the ironworkers had just finished working on. As plaintiff was hit by the falling beam he was knocked to the ground suffering personal injuries, the nature and extent of which are immaterial for the purposes of this appeal.

Plaintiff testified that prior to this accident he had been engaged in this type of employment for eight years. Plaintiff also testified that scaffolds on similar jobs “. . . generally . . . were wider.” Plaintiff’s foreman testified that in his 18 years of experience he had done beam setting from outside scaffolds at least a dozen times and that on these jobs the scaffolds were equipped with “a guard rail or rope guard rail, if not wood.” The plaintiff during his testimony stated that he had attempted to do iron work after the accident and in September of 1966, for three days, his father and brother “carried him” in connection with the work at the job site. He stated all he was able to do was “stand up straight and tie the iron beams.” He denied he had done or attempted to do any steel work at any other time or place since the accident.

Defendant introduced into evidence motion pictures showing plaintiff engaged in normal activities of an iron worker just ten days before he testified in the trial. These motion pictures showed plaintiff lifting and carrying heavy pieces of steel without apparent difficulty.

The principle thrust of that portion of defendant’s answer which plaintiff attacks was the defense that the proximate cause of the injury suffered by plaintiff was something other than a violation of the Scaffold Act by defendant. The defendant maintained through his pleadings and the evidence presented that the proximate cause of plaintiff’s injuries was the breaking loose of a steel beam which struck the plaintiff and knocked him to the ground, and not that the scaffold was in violation of the statute.

Defendant concedes contributory negligence is not a defense to an action under the Scaffold Act and that the portion of the answer referring to such negligence should have been stricken on motion. Our attention has been called to a portion of the record of testimony offered by defendant which the plaintiff claims would be objectionable if the trial court had not so ruled. In reviewing this, it appears to us that the testimony referred to was directed to the issue of proximate cause rather than the plaintiff’s negligence. Plaintiff’s failure to object to the testimony at the time it was offered cannot now be raised for the first time on appeal. The People v. Trefonas, 9 Ill2d 92, 98, 99, 136 NE2d 817; Town of Normal v. Witham, 91 Ill App2d 262, 265, 233 NE2d 768.

Plaintiff concedes that he can find no Illinois case holding that the question of whether a given scaffold is safe or unsafe is a question to be determined as a matter of law. He concedes that the cases uniformly hold that whether a given scaffold violates the Act is a question for the jury. In Schultz v. Ericsson Co., 264 Ill 156, p 164,106 NE 236, the court stated:

“No attempt is made to define what shall be considered or shall constitute a safe, suitable and proper scaffold, which, from the very nature of things, could not well be done, for what might be a safe, suitable and proper scaffold for one kind of work under one set of conditions or circumstances would be wholly inadequate, insufficient and unsafe for doing another kind of work under other conditions or circumstances and at a different height from the ground.”

The court, at p 166, concluded:

“The statute not defining what shall constitute a safe, suitable and proper scaffold, the question then must be left to the jury for determination as one of fact.”

In Oldham v. Kubinski, 37 Ill App2d 65, 86-87, 185 NE2d 270, the court said:

“The statute not defining what shall constitute a safe, suitable, and proper scaffold, etc., the question then must necessarily be left to the jury for determination as one of fact: Schultz v. Henry Ericsson Co. (1914) 264 Ill 156, 106 NE 236, ‘Illinois Scaffold Act Liability,’ 50 Ill Bar Jour, p 1092, Aug, 1962.”

We cannot agree with plaintiff’s contention that on the facts before us the trial court should necessarily have determined as a matter of law that the scaffold was unsafe or that the condition of the scaffold was the proximate cause of plaintiff’s injuries. We believe such questions were properly left for the determination of the jury.

Finally, plaintiff asserts that the verdict of the jury finding the defendant not guilty was against the manifest weight of the evidence. For a verdict to be held against the manifest weight of the evidence an opposite conclusion must be clearly evident. Arboit v. Gateway Transp. Co., 15 Ill App2d 500, 507, 146 NE2d 582. Manifest means: clearly evident, clear, plain or undisputable. Elgin Lumber & Supply Co., Inc. v. Malenius, 90 Ill App2d 90, 97, 232 NE2d 319. Having reviewed the record we are of the opinion that the evidence in support of plaintiff’s position does not so overwhelmingly outweigh the evidence in support of the verdict in favor of defendant that the jury’s verdict could not stand. We conclude that the trial court did not err in denying plaintiff’s post trial motions. Pedrick v. Peoria & Eastern R. R. Co., 37 Ill2d 494, 510, 511, 229 NE2d 504.

The judgment of the trial court is hereby affirmed.

Judgment affirmed.

MORAN, P. J. and DAVIS, J., concur.


text:
    The People of the State of Illinois on the Relation of Fred Stone, Plaintiff-Appellant, v. Charles Wilson, et al., Defendants-Appellees.
    Gen. No. 68-187.
    Second District.
    June 16,1969.

      John A. Strom, of Belvidere, for appellant.
    McConnell, Kennedy, McConnell & Harris, of Peoria, and Nordquist and Anderson, of Rockford, for appellees.
   MR. JUSTICE SEIDENFELD

delivered the opinion of the court.

Fred Stone appeals from the denial of his petition for Writ of Mandamus directed against the defendants as members of the board of trustees of the police pension fund of the City of Belvidere. He was denied certification for reinstatement to the police department of that city.

Stone had been a Belvidere policeman from 1934, until he left the force as its Chief on January 16, 1954. During his service he sustained an injury which became the basis for his request for a disability pension which was granted.

In 1967 relator notified the Board that his disability had ceased and he wished to be reinstated and returned to active duty and, as a consequence, was examined by a medical doctor. On March 9, 1967 the Board held a hearing and denied the request. The mandamus suit was filed in September of 1967.

Stone has argued that the Board had no discretion to refuse reinstatement upon a medical examination showing recovery from the disability, and that the court below ruled contrary to the manifest weight of the evidence. Defendants suggest that judicial review has been barred by failure to seek review in the time and in the manner provided by the Administrative Review Act (Ill Rev Stats 1967, c 110, §§ 265, 267), but that, in any event, the record supports the action of the trial court.

Defendants emphasize the failure to take action within the thirty-five days from the date of service of the decision sought to be reviewed. Relator points out that this objection was not raised in the trial court and must be considered as waived. To the extent that this argument constitutes a challenge to the court’s jurisdiction over the person of the defendants we agree that it has been waived. See Motorola, Inc. v. Illinois Fair Employment Practices Commission, 34 Ill2d 266, 272-3, 215 NE 2d 286 (1966); Leffler v. Browning, 14 Ill2d 225, 228, 151 NE2d 342 (1958).

But the more fundamental issue raised by the record is whether the court had jurisdiction of the subject matter of the mandamus action. If it did not, the jurisdictional issue cannot be waived and is fatal to the judgment when raised at any time. Sweitzer v. Industrial Commission, 394 Ill 141, 68 NE2d 290 (1946); In re Petition To Annex Certain Territory to Village of Willowbrook, 37 Ill App2d 393, 402, 185 NE2d 696 (1962); Meyer v. Meyer, 328 Ill App 408, 418-419, 66 NE2d 457 (1946).

A court may and should of its own motion dismiss the proceedings where want of jurisdiction appears. Village of Glencoe v. Industrial Commission, 354 Ill 190,188 NE 329 (1933); United States v. Storer Broadcasting Co., 351 US 192 (1956).

The statute, under which the initial proceedings were had before the Pension Board, provided expressly, that the “provisions of the Administrative Review Act . . . shall apply to and govern all proceedings for the judicial review of final administrative decisions of the retirement board ....’’

The Administrative Review Act (Ill Rev Stats 1967, c 110, § 265) includes the review of acts of administrative agencies which adopt its provisions, and expressly states that,

“In all such cases, any other statutory, equitable or common law mode of review . . . shall not be employed . . . .”

Numerous cases have held that mandamus is a common law mode of review, and that the Administrative Review Act (supra) was designed to provide a single, uniform method by which administrative decisions of a state governmental agency could be reviewed. See Moline Tool Co. v. Department of Revenue, 410 Ill 35, 37, 101 NE2d 71 (1952); Pearce Hospital v. Public Aid Commission, 15 Ill2d 301, 307, 154 NE2d 691 (1958); People ex rel. Chicago & N. W. Ry. Co. v. Hulman, 31 Ill2d 166, 169, 201 NE2d 103 (1964); The People ex rel. Carpentier v. Goers, 20 Ill2d 272, 277, 170 NE2d 159 (1960); People ex rel. Goldfarb v. White, 54 Ill App2d 483, 203 NE2d 599 (1964).

It is our opinion that the court below, although one of general jurisdiction, was required to act under the statute conferring special jurisdiction in Administrative Review cases, with jurisdiction of the subject matter limited by the language of the statute. Section 9 of the Judicial Article (Art VI, § 9) provides that “The Circuit Court shall have unlimited original jurisdiction of all justiciable matters and such powers of review of administrative action as may be provided by law.” We believe this section recognizes the continued existence of substantive rules which have denied original jurisdiction courts the power to hear a particular and limited subject matter, when a method of judicial review is offered which is constitutionally permissible and remedially adequate.

Where an applicable statute prescribes a specific and exclusive form of review, all other forms are excluded; and if a court, after acquiring jurisdiction of a subject matter, transcends the limits of the conferred jurisdiction, its judgment becomes void. Sweitzer v. Industrial Commission (supra) 147-8; City of Freeport v. Kaiser, 311 Ill App 197, 203, 35 NE2d 722 (1941) ; Freeport Motor Cas. Co. v. Madden, 354 Ill 486, 489, 188 NE 415 (1934).

Hearing what was essentially an intended review of the acts of an administrative agency by mandamus would be tantamount to allowing the parties to confer jurisdiction on the court where it does not exist, with the result that the entire question of court review of final decisions of administrative bodies would be virtually the same as if the act had never been passed.

The Illinois Administrative Review Act had two principal objectives of equal stature,

“ (T) he first, the elimination of conflicting and inadequate common law and statutory remedies for the judicial review of decisions of administrative agencies and the substitution therefor of a single, uniform, and comprehensive remedy; the second, the making available to persons aggrieved by administrative decisions a judicial review consonant with due process standards without unduly restricting the exercise of administrative judgment and discretion essential to the effective working of the administrative process.” People ex rel. Fike v. Slaughter, 31 Ill App2d 175,178 (1961).

As to the first objective the chairman of the legislative commission responsible for the act wrote;

“that the remedies heretofore available to persons affected by administrative decisions were as varied in form and scope as the number of regulatory statutes themselves .... Mandamus and injunction, though historically and traditionally not review remedies, were perverted to such purpose largely because of the apparent inadequacies of the other forms of review and a judicial disinclination to deprive the aggrieved complainant of his right to contest alleged abuse of administrative discretion.” (The Illinois Administrative Review Act, 28 Chicago Bar Record 7 (1946) ; see Comments Ill Law Rev 636 (1947).)

The legislature meant to provide a simple mode of review and eliminate the inequities and confusion of the traditional common law actions. If the legislature had meant to allow other modes of review it would not have explicitly prohibited other forms of review in section 2 of the Act.

While a number of cases have refused to rule on the jurisdictional question on the ground it was not raised in the trial court (see e. g. People ex rel. Jones v. Civil Service Commission, 17 Ill App2d 36, 43, 149 NE2d 487 (1958); People ex rel. Jacques v. Sheehan, 33 Ill App2d 14, 178 NE2d 193 (1961); People ex rel. Walker v. O’Connor, 351 Ill App 545, 549, 115 NE2d 808 (1953)), we cannot reconcile these holdings with our view that objections to jurisdiction over the subject matter may be made at any time. See Sweitzer v. Industrial Commission, supra, at p147.

This opinion is limited to the consideration of situations where a party is seeking judicial review of the merits of an administrative decision. In that circumstance mandamus and other remedies have been prohibited. We distinguish, however, cases such as an action to contest the constitutionality of the Administrative Review Act itself, or an action to prevent irreparable injury where it is alleged the Act does not provide an adequate remedy.

The relator has not, and cannot, urge that the judicial review provided under the Administrative Review Act is not adequate to preserve the questions which he raises. He does not seek to attack the constitutionality of the Administrative Review Act. That Act, therefore, provided the exclusive remedy for judicial review and the court was without power to act on the subject matter of a mandamus action and to take evidence beyond the record to be reviewed under the provision of the Administrative Review Act. The judgment below is of no effect.

We do not reach, therefore, the evidentiary issues raised on the merits, but dismiss plaintiff’s petition for a Writ of Mandamus, here.

Petition for writ of mandamus below, dismissed.

MORAN, P. J. and DAVIS, J., concur.


text:
    Mid-States Finance Company, Inc., Plaintiff-Appellee, v. Malcolm H. Redman and Wanda J. Redman, Defendants, W. J. Brown (Also Known as William J. Brown) and Anna Mae Brown, Defendants-Appellants.
    Gen. No. 68-56.
    Fifth District.
    June 18,1969.

      Phelps & Russell, of Carlinville, and Emerson Baetz, of Alton, for appellants.
    Ralph T. Smith and John Dale Stobbs, of Alton, for appellee.
   EBERSPACHER, J.

This is an appeal from a Final Order entered in the Circuit Court of Madison County denying a Petition To Vacate Judgment, or in the alternative, to open up the judgment and stay execution, and denying a motion to set aside an execution sale under the judgment and to toll the redemption period under the sale.

The Petition To Vacate Judgment filed by the defendants, W. J. Brown and Anna Mae Brown, alleged that the confessed judgment based upon a Complaint and Cognovit was obtained through misrepresentation and fraud by the plaintiff. The Petition was verified and was supported by affidavit. Thereafter, the Plaintiff filed a Motion To Strike Or Dismiss the Petition and likewise filed an affidavit in support thereof.

It appears from the record and the affidavits filed by the respective parties that on February 13, 1964, the plaintiff filed a Complaint and Confession seeking judgment for $9,915.44 against Malcolm H. Redman, Wanda J. Redman, W. J. Brown and Anna Mae Brown, upon a promissory note bearing their signatures. The promissory note was dated December 7, 1962, in the amount of $11,938.32 and contained a promise to pay that sum in 36 monthly installments of $331.62 each, the last on January 19, 1966. The note was signed by Malcolm H. Redman and Wanda J. Redman as makers and W. J. Brown and Anna Mae Brown, as accommodation parties. The loan was made to finance Redman’s operation of his grocery business. It appears that the Browns are the father-in-law and mother-in-law of Mr. Redman.

It further appears that in December 1963 Redman filed a petition under chapter XI of the Bankruptcy Act which sought an arrangement for the benefit of creditors. At the first meeting of creditors held on January 21, 1964, the possibility was discussed of each of Redman’s creditors reducing the amount of monthly payments required of Redman. In this regard a proration plan was proposed by Redman on January 29, 1964. It is uncertain when the proration plan was accepted by the plaintiff, the defendant asserting that it was accepted prior to the date of judgment, the plaintiff asserting that it was accepted after the judgment was entered. By any means, Redman apparently made several payments under the proration plan which were paid to the plaintiff as agent for the other creditors. Redman subsequently filed bankruptcy.

On May 23,1967, writs of execution were served on the Browns and on June 22, 1967, the defendants’ first Petition To Vacate the Judgment was filed. The basis of the first Petition To Vacate Judgment was that the judgment was void because it was entered in Madison County rather than the county where the Browns resided. This petition was denied upon a finding that the Redmans were residents of Madison County and that the notes were made in Madison County. On August 5, 1967, three days before the Sheriff’s execution sale, and 3% years after the judgment was confessed, the defendants filed their second Petition To Vacate Judgment or alternatively to Open Judgment, the denial of which is the basis of the present appeal. While the petition was verified and accompanied by an affidavit and alleged the judgment to be void, the petition was not accompanied by a verified answer which defendants proposed to file, nor did the accompanying affidavit meet the requirements of Supreme Court Rule 191 (c 110A, § 191, Ill Rev Stats 1967), failing in these respects to meet the requirements of Supreme Court Rule 276 (c 110A, § 276, Ill Rev Stats 1967) for a motion to open a judgment taken by confession. Appellees point out that a section 72 (c 110, § 72, Ill Rev Stats 1967) petition must be filed within two years of the date of the entry of the judgment, unless excused because of legal disability, duress or fraudulent concealment of the grounds of relief, Nogle v. Nogle, 53 Ill App2d 457, 202 NE2d 683, and that that two-year requirement is mandatory, Irving v. Rodreques, 27 Ill App2d 75, 169 NE2d 145. Appellants respond that they are proceeding here on the theory that the judgment is void as opposed to being voidable, and that it may be attacked at any time, directly or collaterally. Subsection (7) of section 72, supra, provides that a petition to vacate a void judgment is not affected by that section.

The brief filed by the defendants in this court makes no reference to the issues presented in their Petition To Vacate Judgment, the denial of which is the basis of this appeal. From our consideration of the record, it is our opinion that the trial court properly denied the Petition. We note that the Notice of Appeal filed by the defendants specifically states that the appeal is from the Final Order entered by the Circuit Court of Madison County on February 27, 1968, granting the motion of the plaintiff to strike or dismiss the second Petition to Vacate Judgment of the defendants. However, the defendants have apparently abandoned the issues of fraud and misrepresentation raised in that petition in favor of their new found arguments which were not presented to the trial court. Under such circumstances this Court would be justified in not considering the new issues raised by the defendants. Colletti v. Schrieffers Motor Service, Inc., 38 Ill App2d 128, 16 NE2d 659 (1962).

The first issue raised by the defendants in their brief is that the judgment is void in that the warrant of attorney in the note authorized the confession of judgment after its maturity and that the attorney that appeared and confessed judgment against the defendant exceeded his warrant inasmuch as it is argued that the note had not reached its maturity. Departure from the warrant of attorney will make the judgment confessed by the attorney void. Keen v. Bump (1918), 286 Ill 11, 121 NE 251, 252; Holmes v. Partridge (1948), 375 Ill 521, 31 NE2d 948, 949; Wolf v. Gainer (1961), 33 Ill App2d 428, 179 NE2d 466, 5 ALR2d 422, and the cases therein cited. Such a warrant should be strictly construed, Hughes v. First Acceptance Corp., 260 Ill App 176, against the party in whose favor it is given, Preisler v. Gulezynski, 264 Ill App 12, and the authority thereby conferred must be strictly pursued and cannot be extended by implication or inference beyond the limits expressed in the instrument. Holmes v. Partridge, supra. The note in question provides as follows:

“$11,938.32 Alton, Illinois December 7, 1962
(Total amount of Note)
“After Date for Value Received Undersigned Jointly and Severally Promise to Pay to Mid-States Finance Co., or Order, Eleven Thousand Nine Hundred Thirty-eight and 32/100 Dollars at the Office of Mid-States Finance Co., at Alton, Illinois, in installments as follows, viz.: 36 installments of $331.62 each, and a final installment of $-, the first install-
ment to be paid on the 19th day of January, 1963, and one installment on the 19th day of each succeeding month thereafter until the entire sum is paid, together with interest at the highest legal contract rate after maturity. Upon non-payment of an Installment at Its Maturity All Remaining Installments Shall, at the Option of the Holder, Become Immediately Due and Payable. All Makers, Signers, Endorsers, Sureties, and Guarantors, Severally Waive Notice of Dishonor, Protest, Non-Payment, Presentation for Payment and Note of Protest for Non-Payment, and Do Hereby Waive Notice of any Extension of Time.
“I, We, Do Hereby Authorize, Irrevocably, any Attomey-at-Law, Clerk of Court or Prothonotary to appear for Me, Us, after maturity hereof in any Court of Record in the United States, whether I, We, shall reside within the jurisdiction of such Court or not, in term or vacation, or before any Justice of the Peace, and to waive the issue and service of process and confess a judgment and service of process and confess a judgment against Me/Us in favor of the Holder hereof, for such amount as may appear to be unpaid hereon, together with interest after maturity, costs and 15% of the amount appearing unpaid hereon for collection expenses and attorney fees, which we agree to pay, and to release all error and waive all right of appeal. This Note is secured by Chattel Mortgage, executed by the Undersigned, bearing even date herewith negotiable and payable at the office of the legal holder hereof.
/s/ W. J. Brown (Co-Maker)
/s/ Anna Mae Brown
Signed /s/ Malcolm H. Redman
Signed /s/ Wanda Jane Redman”

The complaint and confession filed on February 13, 1964, alleged and confessed that there was due from the parties $8,622.12 on principal plus attorney fees. The note was attached as an exhibit. Compliance with its terms would have required 13 payments of $331.62 each previous to February 13,1964, or a total of $4,311.06, and would have left a balance of $7,627.26 due. It thus can be determined from the complaint that there had been an interim default, even though there was no allegation that any sum had become matured or payable. (There is authority in Illinois that the unadorned word “due” includes moneys which may become payable in the future but are not yet payable. Roth v. Kaptowsky (1948), 333 Ill App 112, 116, 76 NE2d 786, 788.) Accordingly, the acceleration clause contained in the note, i. e., “upon non-payment of an installment at its maturity, all remaining installments shall at the option of the holder become immediately due and payable,” must be construed as to its effect on the warrant of attorney which authorizes any attorney-at-law to appear “after maturity hereof.”

It is argued by the defendants that the final installment was not due under its terms until January 19, 1966, and that accordingly, the attorney that appeared for the defendant exceeded his warrant. On the other hand, the plaintiff argues that the note was accelerated to maturity by the defendants’ default in making installment payments. Appellants point out that the note did not provide for automatic acceleration upon default in the payment of an installment, but instead gave the holder the option to declare the unpaid balance payable and contend that this distinction is fatal to any contention that maturity was brought about by any default in making the payments. In the complaint confessed there was no allegation that presentment or demand had ever been made. They cite 5 ALR2d 977 (Annotated § 6) where it is stated:

“Presentment and demand for payment are not necessary in order to charge the maker or acceptor of a negotiable instrument generally; the holder may nevertheless maintain an action thereon. The situation, however, is different where the holder of a negotiable instrument containing an optional acceleration clause wants to exercise his option. He must as a condition precedent to the exercise of his option present the instrument and make a formal demand upon the payor to pay the instrument due.”

Illinois cases to support the general rule stated are not cited; appellants contend that the Commercial Code requires presentment and demand as a condition precedent to the exercise of the option to accelerate accomplished by the filing of the suit. Here, however, all signers of the note have waived presentation for payment, so we need not determine whether the Commercial Code requires an allegation of presentment or demand before the option to accelerate could be exercised. It is our opinion that the acceleration of the promissory note which occurred upon the default in making the monthly installments accelerated the note to its maturity. Sweeney v. Kaufman, 168 Ill 233, 48 NE 144 (1897); Fischer v. Jackson, 239 Ill App 322 (1925). Since the note was due and matured and the holder could sue for the entire amount, it follows that the warrant of attorney authorizing a confession of judgment after maturity was operative.

The second argument raised by the defendants is that they were discharged of their liability under the note as a consequence of the agreement by the plaintiff as holder of the note to extend the time of payment and to change the terms of the note with the Redmans without the consent and without express reservation of rights of the defendants. The theory of the defendants, of course, is based upon the premise that the proration agreement was accepted by the plaintiff prior to the date of the judgment. As set forth above, it is unclear from the record on what date the proration plan was accepted. The defendants have presented no evidence as to the date of the acceptance of the proration plan by affidavit or otherwise, but place their reliance upon the ambiguity found in the affidavit filed by the plaintiff. The affidavit filed by the plaintiff, of course, was to meet the issues presented in the defendants’ Petition To Vacate Judgment, rather than the new issues raised by the defendant for the first time during the appeal. Under such circumstances such ambiguities will be resolved against the appellant; in other words, the defendants have failed to meet the burden of establishing such facts as are necessary to present the issue here involved.

Accordingly, the judgment shall be affirmed.

Judgment affirmed.

GOLDENHERSH and MORAN, JJ., concur.

       C 26, § 3-503(1) (d), Ill Rev Stats 1967, wherein it is provided that “where an instrument is accelerated presentment of payment is due within a reasonable time after the acceleration.”


text:
    Frances Spenner, Administratrix of the Estate of Robert G. Spenner, Deceased, and Frances Spenner, Plaintiffs-Appellants, v. Jenkins Party Liquors, Inc., a Corporation, Defendant-Appellee.
    Gen. No. 68-85.
    Fifth District.
    June 19,1969.
    Crain & Hall, of Centralia, and C. E. Heiligenstein, of Belleville, for appellants.
    Jones, Ottesen & Fleming, of Belleville (Ralph J. Derange, Jr., of counsel), for appellee.
   EBERSPACHER, J.

This action was brought in the Circuit Court of Marion County, Illinois, by Frances Spenner, as Administrator of the Estate of Robert G. Spenner, deceased, and Frances Spenner individually for herself and minor children for the alleged loss of means of support pursuant to the Dram Shop Act. The corporate defendant, Jenkins Party Liquors, Inc., is the owner and operator of a tavern. The plaintiff has appealed from a judgment upon a jury verdict for the defendant. The plaintiff in its appeal raises three principal issues, i. e., (1) that the Court erred in its admission of certain evidence offered by the defendant and erroneously refused to admit certain evidence offered by the plaintiff; (2) that the defendant’s counsel was guilty of impropriety that constituted prejudicial error; and (3) that the verdict of the jury was against the manifest weight of the evidence.

In our opinion the appeal may be disposed of by confining our opinion to the first issue. The objectionable testimony concerns the purported impeachment of a witness called to testify in behalf of the plaintiff.

One of the witnesses testifying in behalf of the plaintiff, Officer Jerry Edmundson, of the Centraba Police Department, testified that he investigated the accident which caused the death of the plaintiff’s decedent, along with Sergeant Simon Franklin. On direct examination he stated that upon arrival he went to the truck of the decedent who at the time was still alive; that there was a strong odor of liquor in the truck. The officer went to the hospital where decedent had been transported and that at the hospital the decedent still had the presence of the small of alcohol.

The defendant’s counsel then cross-examined the witness, a portion of which is as follows:

“Q. Did you testify before the coroner’s jury?
“A. Yes.
“Q. Did you tell the coroner’s jury anything about an odor of alcohol?
“A. I believe I did, as I recall.
“Q. You say you did?
“A. I believe so, yes.
“Q. Would you read this? Just read this and see if you see anything in it about the odor of alcohol. Did you make any report in which you indicated that there had been drinking?
“A. I, myself, never. It should have been on the accident report.
“Qi In here you didn’t indicate at the coroner’s inquest, you didn’t indicate about all this odor of alcohol.
“A. Well now, they asked if there was anything I could add to Sgt. Franklin’s testimony—
“Q. Did you (sic) testify about the odor of alcohol ?
“A. I believe so.
“Q. He testified right before you did, didn’t he?
“A. I’m not sure on that.
“Q. Then your testimony is that he testified about the alcohol at the coroner’s inquest and, therefore, you didn’t ?
“A. Yes, or they asked if I could add anything to it and I said that he had pretty well covered it.
“Q. But what if he didn’t testify to any odor of alcohol?
“A. I never said specifically he did. I said I think he did. I’m pretty sure he did.
“Q. Actually, what would you say if I told you he didn’t detect any odor of alcohol?”

Objections to the latter question were sustained by the Court. After the plaintiff had rested its case and the defendant had presented several witnesses, the following offer was made by the defendant’s counsel which led to the reading to the jury by defense counsel, the testimony of Sgt. Simon Franklin given at the coroner’s inquest:

“Your Honor, since a reference was made to Sgt. Franklin’s testimony by Officer Edmundson, at this time we would like to offer into evidence a certified transcript of the testimony of Sgt. Franklin given at the coroner’s inquest; and this offer is being made for the purpose of impeaching Officer Edmundson who has testified as to what Sgt. Franklin testified to at that inquest and in lieu I would accept the stipulation that Officer Franklin did not testify to any odor of alcohol at the scene or at the hospital.”

Defendant made no showing of Officer Franklin not being able to appear and testify as to whether he had testified in the coroner’s inquest with reference to his detection of any odor of alcohol. Defendant’s counsel offered, and the trial court suggested, that the matter should be covered by stipulation. When none was forthcoming, with permission of the court and over the strenuous objection of the plaintiff, the defendant’s counsel read to the jury the entire transcript of testimony of Officer Simon Franklin at the coroner’s inquest. Two questions and answers in it dealt with the finding of liquor in the truck and automobile; both were answered in the negative; it contained no reference to the use of alcohol by plaintiff’s decedent or defendant.

The defendant urges that the purported impeachment was proper and in this regard argues that in order to avoid the effect of the impeachment, Officer Edmund-son attempted to give the jury the impression that his reason for omitting this testimony was that Officer Franklin had covered it at the inquest and that he had nothing to add to Officer Franklin’s testimony. The argument continues that when the testimony of Officer Franklin at the coroner’s inquest was offered it was offered specifically for the purpose of impeaching Officer Edmundson, that is, to show that Officer Edmundson did not hear Officer Franklin testify at the coroner’s inquest as to any odor of alcohol. No authority or precedent is offered in support of the defendant’s position.

In our opinion the admission of the transcript of testimony of the police officer at the coroner’s inquest requires the reversal of the judgment. We can conceive of no theory under which such admission could be sustained. Impeachment under present Illinois law may follow two alternatives, the first being impeachment by proof of prior inconsistent statement. Podenkirk v. State Farm Mut. Automobile Ins. Co., 325 Ill App 421, 60 NE2d 269 (1945); Vancil v. Fletcher, 90 Ill App2d 277, 232 NE2d 789 (1967).

The second alternative permits the admission of evidence of the omission of a witness to state particular facts, or fact, under circumstances rendering it incumbent upon him to or likely that he would state such fact if true. The first such mode of impeachment consists of evidence that the witness on a prior occasion made an inconsistent statement. The second mode is that the witness on a prior occasion omitted to testify as to an important fact or circumstance. Esderts v. Chicago, R. I. & P. R. Co., 76 Ill App2d 210, 222 NE2d 117; Carroll v. Krause, 295 Ill App 552, 15 NE2d 323. Both modes of impeachment are permissible to cast doubt on the credibility of the witness.

The purported impeachment in the present case fits into neither of these two modes, but to the contrary is a transcript of testimony of an individual that has never been called to testify; the reading of it was error. The transcript was prejudicial since it contained irrelevant statements and opinion of parties, witnesses and jurors and primary evidence and matters of substance rather than a limited attack on the explanation offered to excuse the impeachment of the witness. Accordingly, the cause must be reversed and remanded for a new trial.

Reversed and remanded.

GOLDENHERSH and MORAN, JJ., concur.


text:
    People of the State of Illinois, Plaintiff-Appellee, v. Robert Gabler, Defendlant-Appellant.
    Gen. No. 68-116.
    Second District.
    June 20,1969.

      Thomas C. Kelleghan, of Wheaton, for appellant.
    William V. Hopf, State’s Attorney of DuPage County, of Wheaton (Helen C. Kinney and Joseph M. Laraia, Assistant State’s Attorneys, of counsel), for appellee.
   MR. JUSTICE ABRAHAMSON

delivered the opinion of the court.

The defendant was tried on a two-count indictment for the crimes of rape and aggravated battery. Count I of the indictment charged Gabler with the offense of rape in that he had sexual intercourse with "... Nancy G. Stephenson, a female person, not his wife, by force and against her will. . . .” Count H charged him with the offense of aggravated battery in that he “did strike and hit Nancy G. Stephenson about the face and body with his fists with great force and violence causing great bodily harm. . . .” The jury returned verdicts that found Gabler guilty of the crime of rape and not guilty of the crime of aggravated battery “in the manner and form as charged in the indictment.” Judgment was entered on those verdicts and this appeal followed.

Nancy Stephenson testified that she first met Gabler in a tavern called “May’s Hideout” at approximately 1:45 p. m. on April 29, 1967. Gabler left the tavern shortly thereafter but returned at 4:00 p. m. and agreed to drive Mrs. Stephenson to the Manor Lounge in North-lake where she was seeking employment as a singer. After a few drinks, they left May’s and stopped at a farm where Gabler showed her a horse that he owned. They also stopped at another tavern called “Mr. Dukes” to visit a waitress they knew where they had a few more drinks and played billiards. They left Mr. Dukes and arrived at the Manor Lounge at approximately 9:45 p. m., where Nancy was introduced by the bandleader and had one or two more drinks. They left the Manor so that Mrs. Stephenson could return to May’s for a party at 11:00 p. m., but on the way back Gabler drove to a secluded side road and stopped his car. She told him to start the car and go back to May’s but he grabbed her and tried to push her to the seat. She was pushed down but hit the car handle, opened the door and fell to the ground. Gabler fell on top of her, ripped her slacks and slapped her a few times. She was screaming and biting Gabler in her effort to free herself and was able to get up and run about 20 feet from him. Gabler caught her, knocked her to the ground again, and struck her with his fists. Her head fell back and “hit something hard.” The next thing she remembered was that Gabler was sitting in his car and she was still on the ground with her clothes “ripped.” She got up, went to the car for her purse, and ran down the road where she stopped a police car that happened to be patrolling in the area. The police picked her up but she was unable to recall clearly what happened thereafter except that the police drove down and arrested Gabler at the end of the road.

Gabler testified that he had an argument with his wife and went to May’s at around 6:00 p. m. on April 29. He met Nancy Stephenson and after a few drinks left with her. He also testified as to the various stops made by them but added that throughout the evening there was passionate kissing, fondling and other lewd behaviour. When he stopped his car, he continued to kiss her and was on top of her in the car when she “just went nuts” and began to scream, scratch, bite and hit him. He “cracked her back” and she ran from the car. He caught up with her, grabbed her from behind and he fell on top of her. He then noticed, for the first time, that her slacks were ripped. Gabler was asked if he then had intercourse with Nancy Stephenson to which he replied:

“She kept hitting and scratching, and I hit her back. I never used a closed fist. I hit her with just the back of my hand, or the other way, because she was hitting me and I just hit her back because she was hitting me, more or less.
“And as far as having intercourse with her, I can’t remember. I could have, but I’m not sure. I wouldn’t say, because I don’t know, the way I was feeling.”

The police testified that they came upon Mrs. Stephenson at around 11:45 p. m. running down the road, screaming incoherently with her slacks almost completely torn from her body. She told the police officers she had just been beaten and raped by a man down the road and when they drove to the end of the road they found Gabler seated in his car with his pants open. On the way to the hospital, Mrs. Stephenson lost consciousness in the police car. Her face was bruised and bleeding and her eyes were swollen. A subsequent medical examination disclosed that her thighs were bruised and that she had recently engaged in an act of intercourse.

On appeal, the defendant contends that it was incumbent on the State to prove by competent evidence that he had committed a battery upon the person of Nancy Stephenson in order to convict him of rape. He further urges that when the jury found him not guilty of aggravated battery, they, by operation of law, also found him not guilty of battery as a lesser included offense, and that the State therefore was necessarily precluded from proving a necessary element to sustain the conviction of rape.

The crime of rape is defined in the Criminal Code (Ill Rev Stats 1967, c 38, § 11-1 (a) and (b)) as follows:

“11-1. Rape.
“(a) A male person of the age of 14 years and upwards who has sexual intercourse with a female, not his wife, by force and against her will, commits rape. Intercourse by force and against her will includes, but is not limited to, any intercourse which occurs in the following situations:
“ (1) Where the female is unconscious; or
“(2) Where the female is so mentally deranged or deficient that she cannot give effective consent to intercourse.
“(b) Sexual intercourse occurs when there is any penetration of the female sex organ by the male sex organ.”

The defendant cites a number of cases from other jurisdictions that appear to hold that a battery is an indispensable element to the crime of rape. People v. Mendoza, 55 Cal App2d 625, 131 P2d 622; Territory v. Silva, 27 Haw 271. There are no Illinois cases on this precise point but we have recently held that a “Battery is neither the same nor is it an includable offense in the crime of attempted rape.” People v. Thompson, 87 Ill App2d 426, 430, 230 NE2d 889. We conclude that the statutory definition of rape does not require as one of the elements of the crime a battery.

Count II of the indictment charged Gabler with aggravated battery in that he struck Nancy Stephenson “about the face and body” with his fists, an offense entirely separate from the charge of rape. The defendant argued to the jury, correctly, that in order to prove aggravated battery it was necessary to establish that the girl suffered “great bodily harm.” It was not necessary to show either that Gabler struck the girl or used any particular force if she was unconscious in order to prove the rape. Therefore, the verdict that Gabler was not guilty of aggravated battery “as charged in the indictment” was not inconsistent with the verdict that he was guilty of rape.

The next point urged by the defendant is that he was placed in double jeopardy by the method of prosecution. This argument also appears to be based on the contention that the same proof was necessary to convict Gabler of either charge. We repeat that these were separate offenses based on separate acts and did not necessarily have to be tried together. In any event, they were prosecuted simultaneously and the concept of double jeopardy has application only in cases of subsequent prosecutions.

The defendant also argues that the evidence was insufficient to show that he had intercourse with the prosecutrix by force and against her will. Although he never admits that intercourse did in fact occur, he contends that if it did occur it was with the consent of Mrs. Stephenson. The testimony of the defendant himself overwhelmingly refutes any possibility of consent. He did not testify that she had agreed to intercourse but, on the contrary, that “. . . She never said okay to anything.” His description of her behavior indicates the absolute antithesis of consent. She bit, scratched, kicked and hit him and tried, futilely, to run away. Her slacks were torn off, she screamed “Help!” and only succumbed after she lost consciousness. If this conduct is indicative of consent, we cannot conceive of what proof is necessary to show resistance.

For these same reasons, the trial court properly denied any testimony relative to the prosecutrix’ reputation for chastity. The reputation for chastity in a rape case is only material where the defense is consent. People v. Cox, 383 Ill 617, 622, 50 NE2d 758. Although counsel for the defendant in his opening argument and before us has raised the question of consent, it was not raised as a defense during the trial. At the time of his arrest, the defendant denied intercourse had occurred and at the trial he could not remember. "Under the circumstances, the prosecutrix’ reputation for chastity was not material.

For the reasons given, the verdict and judgment of the trial court was proper and should be affirmed.

Judgment affirmed.

MORAN, P. J. and DAVIS, J., concur.