author: EBERSPACHER, J.

text:
    William S. Abbott and Frances Abbott, Plaintiffs-Appellees, v. Fluid Power Pump Company, Defendant-Appellant.
    Gen. No. 68-102.
    Fifth District.
    September 9, 1969.
    Rehearing denied October 7, 1969.

      Max W. Kramer, Kramer, Chused & Kramer, of St. Louis, Missouri, for appellant.
    Emerson Baetz, of Alton, for appellees.
   EBERSPACHER, J.

This action was brought to recover rent and for damages to property under a lease of industrial property. The corporate defendant has appealed from a judgment of the court, sitting without a jury, which awarded the plaintiffs $28,450 made up of an assessment of $26,950 for delinquent rentals under the lease and $1,500 for damages to the demised property.

It appears from the record that on April 1, 1961, plaintiffs, husband and wife, owned certain industrial premises at Alton, Illinois. William S. Abbott, the husband, also owned all of the issued capital stock of an Illinois business corporation named The Piasa Tool & Die Company. This corporation was engaged in a machine shop business in the premises. William S. Abbott was its president and manager; Frances Abbott was its secretary.

On April 1, 1961, plaintiffs entered into a written lease of the premises to the Piasa corporation. Plaintiffs signed as lessors; they also executed the lease for the Piasa corporation as its president and secretary, respectively. The basic term of the lease was for five years, from April 1, 1961, to March 31, 1966; but the lessee was given the option of renewing for an additional five years after March 31, 1966, i. e., to March 31, 1971. The lease also provided that the option would be exercised and the lease term extended unless at least six months prior to the expiration of the basic or initial term the lessee gave written notice that it did not elect to take the extension.

The rent reserved for the initial term under the lease was $600 per month; the rent for the extention, if any, was provided for at $1,000 per month.

On May 13, 1961, defendant Fluid Power Pump Company, a Delaware corporation, entered into a written contract with William S. Abbott to buy from him the entirety of the outstanding Piasa Tool & Die capital stock. This agreement provided that coincident with the sale of the stock the real estate owned by the plaintiffs would be leased to Piasa for five years at $600 per month with an optional renewal for an additional five years at $1,000 per month. Thereafter Abbott’s stock was escrowed with First National Bank in Alton for ultimate delivery to Fluid Power and was, ultimately, so delivered. William S. Abbott remained as president of Piasa and Frances Abbott as secretary; but Paul Courtney and Robert C. McCarthy, officers of Fluid Power, were added to Piasa’s roster of officers, Courtney as vice president and McCarthy as assistant secretary.

Although the Abbott-Fluid Power stock purchase agreement appeared to contemplate a new lease from the Abbotts, no new lease was formally executed; instead, on November 29, 1963, a document entitled “Supplemental Lease” was entered into. The amendment was signed by plaintiffs, William S. Abbott and Frances Abbott, as owners and lessors; the lessee corporation (Piasa) signed by and through Courtney and McCarthy, the new Piasa officers from Fluid Power.

The amendment, or Supplemental Lease, brought additional land within the lease coverage and raised the rents reserved for the initial five-year term to $950 (from $600) per month and for the optional extended five-year term to $1,350 (from $1,000) per month. All other terms of the original lease were to remain in full force and effect, the amendment specifically stated.

It should be noted that subsequent to the date of the original agreement for the sale of stock executed on May 13, 1961, Mr. Abbott acted as an officer of both Piasa and Fluid Power. He was also a member of the Board of Directors of both the defendant Fluid Power as well as Piasa subsequent to the sales agreement, all in accordance with the written agreement. Mr. Abbott continued to serve as a director of Piasa until its dissolution on April 9, 1964. He continued to serve as a director of Fluid Power until October 18, 1965. It should be noted also that the latter date is five months and thirteen days before the end of the original term of the lease between the plaintiffs and Piasa and 18 days after the option to renew the said lease was automatically exercised by failure to give notice of a desire not to exercise it. The minutes of the Board of Directors’ meeting of Fluid Power entered into evidence by the defendant make no mention of the exercise of the option.

Subsequent to the lease amendment Fluid Power, having become the sole shareholder of Piasa, began steps to dissolve it. On December 2, 1963, a Statement of Intent To Dissolve by Voluntary Consent of Shareholders pursuant to section 75 of the Business Corporation Act was filed with the Secretary of State of Illinois. The Statement of Intent To Dissolve was signed by the plaintiffs as president and secretary of the corporation, respectively, at the direction of defendant’s attorney who advised plaintiffs by letter accompanying the Statement of Intent To Dissolve that the minutes of a special meeting of Directors and shareholders of Piasa were being drafted which would authorize the dissolution.

Thereafter, on April 9, 1964, Articles of Dissolution, again executed by the plaintiffs as president and secretary, were filed by the Secretary of State and on the same date the Secretary of State issued the Certificate of Dissolution, thereby dissolving Piasa.

During the interim and after the dissolution, Fluid Power continued operations at the old Piasa plant which were the premises leased from the plaintiffs but referred to the site on its letterheads and literature as “Piasa Division (Formerly Piasa Tool & Die) Fluid Power Pump Company.” Needless to say, no written notice was given to the plaintiffs to the effect that the five-year extension provided in the lease would not be desired. On April 20, 1966, the plaintiffs through their attorney informed the defendant Fluid Power, “as successor to Piasa” that the monthly rent effective April 1, 1966, would be $1,350 in accordance with the lease.

The defendant, Fluid Power, thereafter gave a Notice of Termination of Tenancy effective February 1, 1967, wherein the defendant contended after the original lease term ending March 31, 1966, it was simply a month-to-month tenancy at $950 per month.

The plaintiffs in their complaint filed November 15, 1966, alleged that since March 31, 1966, and in the future until the renewed term ends March 31, 1971, Fluid Power has been and will remain liable under the lease at $1,350 per month.

The plaintiffs at the trial also offered evidence of damages and uncorrected alterations resulting from the tenancy.

The trial court entered judgment for the plaintiffs and against the defendant for $28,450 based upon the finding of rentals due in the amount of $26,950 and damages in the amount of $1,500.

The issues presented by the defendant in their appeal are:

1. Whether or not the terms of a lease or renewal option thereunder can be enforced against the stockholder of the original corporate lessee after liquidation.

2. Whether a lease made between a corporate lessee and an officer-director-stockholder lessor, who represented both sides for the exercise of a renewal option thereunder is enforceable against the corporation.

3. Whether such a lease or renewal option is enforceable in the absence of a showing of good faith and fairness by the lessor.

4. Whether or not a judgment in excess of the amount prayed in the complaint can stand where actual amendment of said complaint has not been made.

5. Whether or not a judgment which on its face is ambiguous and in excess of the amounts supported by the evidence can stand.

The arguments shall be dealt with in the order presented by the defendant.

In regard to the first issue, the defendant urges that the terms of a lease are not binding upon the stockholders of a corporation after its dissolution. In this regard the defendant argues that the original lease, as well as the Supplemental Lease, was executed by and between the plaintiff, as owner of the premises, and the Piasa Tool & Die Company as tenant. The defendant’s argument continues that there is no evidence in the record as to any assignment of the lease agreement or of any assumption of the liabilities and contracts of Piasa by Fluid Power and that accordingly, the dissolution of the corporation terminated these obligations. The defendant misconceives the nature and effect of the dissolution of the corporation. After the defendant had acquired all of the shares of Piasa it sought to effect the dissolution of the corporation pursuant to the provisions of section 75 of the Illinois Business Corporation Act, c 32, § 75, Ill Rev Stats 1967. That section provides the manner in which a corporation may elect to dissolve voluntarily and wind up its affairs by the written consent of the holders of record of all of its outstanding shares. This was the manner chosen by the defendant as holder of all of the outstanding shares, and the plaintiffs executed the documents at the direction of defendant’s attorney merely as the necessary officers as provided by the statutes. It must be remembered that the defendant as holder of all of the outstanding shares was in complete control of the Board of Directors and accordingly, the corporate officers. Thereafter, the defendant again through its appropriate officers filed the Articles of Dissolution pursuant to section 80 of the Business Corporation Act. This section provides:

“When all debts, liabilities, and obligations of the corporation shall have been paid and discharged, or adequate provisions shall have been made therefore, and all of the remaining property and assets of the corporation shall have been distributed to its shareholders, articles of dissolution shall be executed in triplicate by the corporation by its president or a vice-president and verified by him, and the corporate seal shall be thereto affixed, attested by its secretary or an assistant secretary, which shall set forth:
“ (a) The name of the corporation.
“(b) That the corporation has theretofore filed with the Secretary of State and with the recorder of deeds of the county in which the registered office of the corporation is situated, a statement of intent to dissolve, and the date on which such statement was filed by the Secretary of State.
“(c) That all debts, obligations and liabilities of the corporation have been paid and discharged or that adequate provision has been made therefor.
“(d) That all the remaining property and assets of the corporation have been distributed among its shareholders in accordance with their respective rights and interest.
“(e) That there are no suits pending against the corporation in any court, or that adequate provision has been made for the satisfaction of any judgment, order, or decree which may be entered against it in any pending suit.”

We find subsections (c) and (d) applicable to the present situation. We find no evidence of record that the obligations of the lease had been discharged or that adequate provision had been made for them. Here defendant, the single stockholder, obviously considered the lease a valuable asset, keeping it in effect by the continuing occupation of the premises and performing its covenants as performance became due, thus accepting the rights and benefits provided by the lease. Under such circumstances defendant assumed and became responsible for the lessee’s obligation under the lease. That the lease was not terminated by the dissolution of the corporate lessee is made quite clear in the annotation found in 147 ALR 360-372; that annotation makes it equally clear that the successor to the dissolved corporation who accepts the lease of the dissolved corporation as a valuable asset and accepts the benefits, steps into the shoes of the corporate lessee with the same rights and liabilities in respect to the lease as attached to the original corporate lessee.

Plaintiffs have urged that since Fluid Power purchased all of Piasa’s capital stock, occupied Piasa’s premises, carried on its business and advertised that Piasa had become a division of Fluid Power, and then caused Piasa to be dissolved, remaining itself as a viable entity, that a merger of the companies was effected, with Fluid Power the surviving corporation. In support of such theory they have cited the applicable merger section of the Business Corporation Act (Ill Rev Stats, c 32, §§ 157.61 and 157.69a) and Fletcher Cyc Corp, 1961 ed, § 7082; 19 Am Jur 2d, Corporations, § 1492; Chicago, S. F. & C. R. Co. v. Ashling, 160 Ill 373, 43 NE 373, 374-376. They point out that whether there was a strict compliance with the law respecting corporate mergers is of no consequence, when the result is a de facto merger, Chicago, S. F. & C. R. Co. v. Ashling, supra; Chicago & Western Indiana R. Co. v. Heidenreich, 254 Ill 231, 98 NE 567, 569; Fletcher Cyc Corp, 1961 ed, § 7155, since Fluid Power would be estopped to deny the validity of its own acts by challenging their de jure character, Fletcher, supra, §§ 3889, 3926, even though it be a foreign corporation and the absorbed or merged entity have previously existed under Illinois law, 36 Am Jur2d, Foreign Corporations, § 394; Racine & M. R. Co. v. Farmers’ Loan & Trust Co., 49 Ill 331, 347. They then propose that by reason of such merger Fluid Power became “responsible and liable for all the obligations and liabilities” of Piasa including its obligation under Piasa’s lease with plaintiffs, under applicable statutory law, chapter 32, § 157.-69(e).

We need not here depend upon the theory of de facto merger, nor the fact that the Articles of Dissolution misrepresented the true facts, because the manner in which defendant proceeded, both before, during and subsequent to the dissolution of Piasa, leads us to the conclusion that the terms and obligations of Piasa’s leases have devolved upon the defendant, and that accordingly the defendant is liable for the terms and obligations thereof.

In regard to the second and third issues presented by the defendant, the defendant argues that the lease is not enforceable because the plaintiff was a director and officer of the lessee corporation and represented both parties to the lease. Accordingly, the defendant argues the plaintiff must prove his good faith and the fairness of the lease. In this regard the defendant cites for our consideration Pepper v. Litton, 308 US 295, and Higgens v. Lansingh, 154 Ill 301, 40 NE 362 (1895). However,, the defendant’s argument does not give due consideration to the fact that the Supplemental Lease was entered into subsequent to the acquisition of all of the Piasa shares by the defendant. Subsequent to the defendant’s acquisition of all of the shares new directors, as well as officers, were added to the Piasa Corporation and as stated before upon acquisition of all the shares the defendant was in complete control of the corporation. The Supplemental Lease which took in new property revised the rent, both for the original term and for the optional extension. It also explicitly ratified the other and remaining terms of the original lease. It is true that the original lease between the plaintiffs and the Piasa corporation bore the signatures of plaintiffs as lessors and also bore their signatures as the executing officers of the lessee corporation; but that is because at the time of execution plaintiffs were the only shareholders of the lessee corporation and its only officers. Fluid Power had no legal interest, at that time, when Abbotts leased property which they owned as individuals to themselves as a corporation; a legitimate transaction. After Fluid Power had become an interested party by contracting to purchase Abbotts’ shares, the Abbotts signed only as lessors and Courtney and McCarthy, Fluid Power men, newly placed in the Piasa corporation, signed for the lessee. Under such circumstances there was no fraud, dual representation or conflict of interest in the original lease. There is no evidence that the plaintiffs overreached the defendant, and in fact the evidence indicates very sophisticated negotiation on the part of both parties.

Neither can we say that the determination by the trial court that Mr. Abbott did not violate any fiduciary relationship while serving as an officer and member of the board of directors of defendant is against the manifest weight of the evidence. There is a conflict of testimony as to whether the members of the board discussed the lease and its renewal at an increased rental. The minutes would not be conclusive as to whether such discussion was or was not engaged in, in view of the fact that no positive action was necessary to exercise the option, and the minutes were shown to be incomplete in numerous aspects. McCarthy, who had served as Secretary of defendant for ten years at the time of trial, as well as Treasurer and director, and had served as an officer and director of the Piasa corporation and who executed on the Piasa corporation’s behalf the Supplemental Lease which referred to the renewal option and the increased rental, knew of its terms. Whatever conflict of interest Mr. Abbott might have had because of his ownership of the leased premises and becoming an officer and director of defendant during the term of the lease was known to the executives of defendant when they “appointed” him to those capacities.

The defendant’s fourth issue that the judgment is in excess of the prayer and that accordingly cannot stand where no actual amendment of the said complaint has been made is likewise without merit. The record clearly indicates that the prayer was amended to conform with the evidence and in fact the prayer as amended was endorsed with the consent of counsel for the defendant.

The defendant’s arguments in regard to the fifth issue are twofold. The first is that the written order entered by the court in regard to the delinquent rental provides for a recovery of “Twenty-site Thousand Nine Hundred Fifty Dollars ($25,950.00).” The defendant’s argument continues that even if this difference may be reconciled the evidence does not support a recovery of either figure.

The plaintiffs admit to the error in both regards and further admit that the error was due to a miscalculation of the damages at the termination of the trial. The calculation may be corrected upon the following uncontradicted evidence: The renewal term commenced April 1, 1966. The trial was completed May 6, 1968. Accordingly, there were nine rental installments due for the year 1966, 12 for 1967 and 5 for 1968, each in the amount of $1,350.00. This would total 26 rental installments due or a total of $35,100 at the close of the trial. The evidence further reveals that the defendant had paid for 9 months in 1966 at the rate of $950 per month affording the defendant a credit of $8,550, setting this credit off against the $35,100 due in gross leaves a net of $26,550 in delinquent rent. The trial court further found $1,500.00 damages to the demised premises. This produces a total judgment for delinquent rent and damages of $28,050. Supreme Court Rule 366 permits the correction of such errors by the Reviewing Court.

For the foregoing reasons the judgment of the Circuit Court of Madison County, Illinois, as corrected as to amount as set forth herein, is affirmed.

Judgment affirmed.

GOLDENHERSH and MORAN, JJ., concur.


source: Caselaw Access Project

author: MR. JUSTICE DAVIS

license: Public Domain

text:
    Morris Quick, Administrator of the Estate of Dale G. Quick, Deceased, Plaintiff-Appellee, v. Michigan Millers Mutual Insurance Company, a Corporation, Defendant-Appellant.
    Gen. No. 69-7.
    Second District.
    September 9, 1969.

      Snyder, Clarke, Dalziel, Holmquist & Johnson, of Wau-kegan, for appellant.
    Fuqua, Fuqua, Winter & Homer, of Waukegan, for ap-pellee.
   MR. JUSTICE DAVIS

delivered the opinion of the court.

Morris Quick, Administrator of the Estate of Dale G. Quick, deceased, brought this suit against the defendant seeking to recover under the terms of an insurance policy which he, individually, had with the defendant. The policy contained the following provisions:

“The company will pay all reasonable medical expense incurred within one year from date of accident for bodily injury caused by accident and sustained by
“(1) The named insured or a relative . . .
"
“ (c) through being struck by a highway vehicle;
“The company will pay all sums which the insured or his legal representative shall be legally entitled to recover as damages from the owner or operator of an uninsured highway vehicle because of bodily injury sustained by the insured, caused by accident and arising out of the ownership, maintenance or use of such uninsured highway vehicle; . . .
“Under the Uninsured Motorists Coverage, the following are insureds:
“(a) The named insured and any relative
“Under definitions:
“ ‘relative’ means a person related to the named insured by blood, marriage or adoption who is a resident of the same household, provided neither such relative nor his spouse owns a private passenger automobile; . . . .”

The coverage question before the court was whether or not, the plaintiff’s son, Dale G. Quick, who lived within the same household, was a “relative” within the meaning of the insurance policy. The question depends upon whether or not a certain car which Dale owned was a “private passenger automobile” within the terms of the policy. The trial court held that Dale was a “relative” within the meaning of the insurance policy and that the defendant was liable under the terms of the policy. The defendant has appealed to this court.

In June of 1966, Dale bought a 1955 Chevrolet automobile for approximately $200. Title to the car issued to Dale and license plates were purchased for it. The car was not in good condition, however, and was towed to his home where he worked on it until it was operable. From the record, it is difficult to determine this date, but it was sometime in the fall of 1966, and the car was operable for perhaps five weeks. It is clear, however, that it did not run at any time after Christmas of 1966.

Dale purchased 1967 license plates, but these were never put on the car. In mid-January, he obtained a new insurance policy covering the car, but this was cancelled on January 28, 1967, since Dale could not get the car to run. Also, he and his father had decided that under these circumstances it was not wise to pay for insurance.

Dale continued to do some work on the car during the winter of 1967. However, his interest or determination to make it operative apparently dwindled, and the car remained in the same inoperable condition for at least several weeks prior to March 9, 1967. On that date Dale, while a pedestrian, was struck and killed by a hit-and-run driver.

At that time, the radiator had been removed from the car and was stored in the garage; the battery, the two rear wheels, the head, manifolds, electrical parts, and pumps, had been removed; the transmission was in the trunk of the car; the hood was in the garage; the carburetor, distributor and camshaft had been sold; the parts of the motor which remained were rusty, pitted and grooved; only the block was still in the automobile, and it could not have been repaired without being bored to a different size, which would have been an expensive procedure.

About two weeks prior to his death, Dale told his father that if he would get somebody to haul the 1955 Chevrolet away, he, Dale, would help in towing it to the junkyard. Also, shortly before his death, Dale related to a friend that the car was going to be towed to a junkyard.

The majority of the cases touching the question of the meaning of the word “automobile” as used in an automobile liability policy, deal with the insuring clause which provides that the insurance shall cover the described automobiles and, also, any newly acquired automobile if either it replaces a described automobile, or the company insures all automobiles owned by the named insureds. In a number of these cases it was found, under the particular factual situation before the court, that a particular inoperable automobile either was, or might be, an “automobile” as that word is used in an automobile liability policy. Republic Ins. Co. v. State Farm Ins. Co. (Tex), 416 SW2d 557 (1967); Green v. American Home Assur. Co. (La), 169 So2d 213 (1964); Williams v. Standard Acc. Ins. Co., 158 Cal App2d 506, 322 P2d 1026 (1958).

Other cases, under the particular facts before the courts, have held that a nonoperating automobile either was not, or might not be, considered an “automobile” under the terms of an automobile liability insurance policy. Palmer v. Sunberg, 71 Ill App2d 22, 217 NE2d 463 (1966); Iowa Nat. Mutual Ins. Co. v. McGhee, 292 F Supp 176 (WD Va 1968); Hames Ready Mix, Inc. v. Transit Cas. Co., 260 Cal App2d 173, 66 Cal Rptr 898 (1968); Glens Falls Ins. Co. v. Gray, 386 F2d 520, (CA 5th, 1967); Civil Service Employees Ins. Co. v. Wilson, 222 Cal App2d 519, 35 Cal Rptr 304 (1963).

Even though the various cited cases differ factually, the basic approach to the problem by the various courts is the same. Indicative of the approach is the language of the court in Glens Falls Ins. Co. v. Gray, supra, pages 524 and 525, where it is stated:

“The possession of an automobile needing major repairs — which was not intended to be used and was not used until after the repairs were completed during the policy year — can hardly be thought to be ownership for liability insurance purposes, since the principal purpose of such insurance is to provide coverage for an automobile which is to be driven and which may become involved in an accident or other mishap.”

In those cases where the circumstances — be they the combination of the degree of disrepair of the car, the intent of the owner, or otherwise — suggest that the non-operating condition is a mere temporary one, the courts have been inclined to find that the vehicle was an “automobile” within the terms of the policy. In those cases, where such circumstances suggest either that the inoperable condition is probably permanent, or apt to be of long duration with little reasonable possibility of restoring the car to a condition where it can be driven on the roads, the courts have then tended to find that the vehicle is not an “automobile” within the terms of the policy.

Under the circumstances of this case, we agree with the determination of the trial court. Without repeating all of the indicia here, the car was clearly in such condition that it could not have been made an operating private passenger automobile without incurring inordinate expense for parts and labor. The car was not, at the time of the accident, in such condition that it could have been driven. We question whether it was such an automobile, at that time, as might be contemplated by reasonable persons to be a private passenger automobile.

The additional facts — that Dale and his father had can-celled the liability insurance previously in force on the car, the comparatively short period of time during which the car actually did run, the length of time which had elapsed since the car last ran, the general dismantling of the car and sale of its parts, and the expressed intent that the car was to be taken to the junkyard — are all circumstances which further support the finding of the trial court.

The defendant also contends that it was error to admit the testimony of the two witnesses of the statements of Dale G. Quick evidencing his intention to haul his car to the junkyard. The trial court admitted this testimony to show the frame of mind of the deceased at that time — not for the truthfulness of what was said. The defendant contends that declarations of a deceased may be admitted to show intent, under circumstances such as in the case at bar, only when they accompany a related act.

Edward W. Cleary, in his Handbook of Illinois Evidence, 1st ed, § 13.26, pp 172-174, criticizes the emphasis, placed by some cases, on the requirement that a declaration showing intent be accompanied by a contemporaneous, or nearly so, related act. At pages 173 and 174, he states: “This unfortunate insistence upon an accompanying act is one of the progeny of res gestae, originally used as a justification for admitting declarations and other circumstances surrounding an act but later perverted into grounds for excluding declarations unless accompanying an act.”

In this case, however, the intent of Dale as to whether or not his automobile was to be restored or junked, was a distinct and material fact in a chain of circumstances. It was one of the factors — if there could be proof of intent — to be considered in determining the ultimate issue of whether the vehicle was an “automobile” within the terms of the insurance policy. A person’s state of mind can be manifested no better than by his written or oral expression evidencing this state to others. Whenever intention is itself a distinct and material fact in a chain of circumstances, it may be proved by testimony of contemporaneous oral declarations. Mutual Life Ins. Co. v. Hillmon, 145 US 285, 295 (1891); Nolan v. American Telephone & Telegraph Co., 326 Ill App 328, 349, 350, 61 NE2d 876 (1945); Cleary, Handbook of Illinois Evidence, 2nd ed, § 17.4. Also see: Illinois Bldg. Authority v. Dembinsky, 101 Ill App2d 59, 65, 242 NE2d 67 (1968).

We do not believe that it was error for the court to admit the testimony complained of, and further, that there was abundant evidence without such testimony, to support the finding of the trial court. Accordingly, the judgment of the trial court is affirmed.

Judgment affirmed.

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


text:
    Leland J. Croft, Plaintiff-Appellee, v. Robert Lamkin, Defendant-Appellant.
    Gen. No. 68-100.
    Fifth District.
    September 10, 1969.

      Harold J. Taylor, Taylor & Taylor, of Effingham, for appellant.
    Frank G. Schniederjon, of Effingham, for appellee.
   EBERSPACHER, J.

This is an appeal from a judgment for plaintiff entered after trial before the court, in an action to recover an alleged balance due under an oral contract or settlement agreement, brought under the provisions of Supreme Court Rules 281 through 288 (Ill Rev Stats 1967, c 110A, §§ 281-288) providing the procedure for actions on small claims.

In February of 1967, defendant Lamkin purchased from Badger Northland, Inc. (referred herein as Badger) certain feeding and cleaning equipment at an agreed price, under a contract which among other provisions, provided that the equipment was to be delivered to defendant’s farm without charge to defendant, and that Badger was to arrange for a dealer to install the conveyor feeding system on an hourly basis to defendant and to arrange for on the job supervision and inspection at sufficient intervals at no cost to defendant. Badger arranged for plaintiff Croft, a farmer who was also a Badger dealer, to install the equipment. The record does not disclose any details of that arrangement other than defendant testified that he was under the impression that Badger was going to install the equipment, pay the labor bill and bill defendant for the installation. Defendant testified that Badger gave him an estimate of the cost of installation which was “about half of what it turned out to be.” Defendant paid James Houck, a distributor of Badger, for the equipment.

Plaintiff with numerous employees commenced the installation of the equipment and during the course of installation requested some “operating money” from James Houck who, in turn, requested and received from defendant $500 which Houck paid over to plaintiff Croft.

According to the testimony of plaintiff, there was a conversation between plaintiff and defendant on September 5, two days before the work was finished, in which plaintiff and defendant discussed the cost of installation in which plaintiff advised that he and his employees had worked in excess of 1,200 hours; in that conversation defendant inquired as to the charge per hour and was advised that it was $3.50 per hour, and that defendant stated he would send a check for $3,700 and when the work was completed and “when we got done he would figure up the full bill.” According to defendant’s testimony, the conversation took place on September 7th, after the installation was completed, in which defendant inquired of plaintiff as to the amount owed and was advised that 1,200 hours had been spent on the installation at $3.50 per hour, making a total of $4,200, of which $500 had been paid, leaving a balance of $3,700, and that nothing was said about any other pay. Defendant further testified that on the 7th he paid the bill in full by drawing a check payable to plaintiff in the amount of $3,700.

The check was mailed to plaintiff, received and endorsed by plaintiff. The check, introduced into evidence, was dated September 7, 1967, drawn on the account of Lamkinland Capital Account, was signed by defendant, payable to the order of plaintiff. On the upper left-hand corner of the face appeared the following printed words “BY ENDORSEMENT THIS CHECK WHEN PAID IS ACCEPTED IN FULL PAYMENT OF THE FOLLOWING ACCOUNT” under which are printed columns, one of which is headed “DATE” and one of which is headed “AMOUNT,” and across the columns was typed, as was the date, payee’s name and the amount, “INSTALLATION OF BADGER FEEDING EQUIPMENT” followed by the printed words “IF INCORRECT PLEASE RETURN. NO RECEIPT NECESSARY.” Plaintiff admitted receipt and endorsement of the check.

Evidence was presented that approximately six months after the delivery of the check to plaintiff, plaintiff advised defendant through one of defendant’s employees that defendant owed an additional $483 and requested a check for that amount, to which defendant made no response.

On March 8, 1968, plaintiff filed his small claim complaint, claiming an indebtedness of $483 for “labor performed.” Defendant made a demand for a bill of particulars seeking to determine if the labor performed was performed by plaintiff or by his agents and employees, and if by employees, their names; the dates and hours of performance and nature of services rendered; and whether the amount claimed was part of a larger sum for labor performed, the balance of which had been paid, or for a separate undertaking apart from other labor performed. Plaintiff’s answer advised that the labor performed was that of plaintiff and 9 named employees, including James Houck, the Badger distributor whom defendant had paid for the equipment. It further advised that the services rendered were the installation of the equipment and transporting material; it set forth the dates and hours on each day, totaling 1,338 hours; and stated that the claim was a part of larger sum of labor performed, the balance of which had been paid. Plaintiff obviously proceeding on the theory that defendant owed for an additional 138 hours at $3.50 per hour.

On the day of the trial defendant with leave of court filed a motion “pursuant” to Supreme Court Rule 214 (Ill Rev Stats 1967, c 110A, § 214) for an order directing plaintiff to produce a document showing withholding tax withheld from wages of the employees, and a record of payments to employees. Defendant argued the motion on the theory that he was entitled to know the amounts paid out by plaintiff. Plaintiff proceeding on the theory that there was a contract for payment at the rate of $3.50 per hour for each hour expended on the job, including the services of Houck, and transportation of part of the equipment to defendant’s farm, and opposed the motion on the theory that the documents sought were not relevant. The court denied the motion on the grounds that “the Statute provides no discovery proceedings” in small claims.

Plaintiff was his own sole witness. On cross-examination, over objection, he testified that the hours included in his claim which James Houck worked on the installation consisted of 39½ hours for which defendant paid Houck $79, and that he knew Houck was a distributor of Badger and on one occasion testified that he did not know “what he was there for,” and on another testified that he had hired Houck just as he had the other men.

Defendant was his own sole witness. He testified to the effect that Houck was on the job in the capacity of a supervisor and inspector furnished pursuant to the terms of his agreement with Badger to furnish supervision and inspection; that although defendant was present at some time most days during which the installation took place and never saw Houck dressed in working clothes but was always wearing a tie and many times a coat.

After hearing the evidence and arguments of counsel, the court indicated that the case should have been compromised and entered judgment for the plaintiff for $350. This led appellant to here contend that the judgment of $350 was entered as a result of a compromise outside the rules of procedure and not from the evidence in the case. He further points out that if the court decided the charge for Houck’s services could not be sustained, the court could not have calculated the reduction of that $138.25 (39½ hours @ $3.50) from either the $483 sued for or the $478 plaintiff testified was due, and arrive at the figure of $350. At the same time, it is pointed out that plaintiff has admitted that some portion of the hours on which his claim is based was expended in transporting equipment which defendant had bought. Neither of the parties saw fit to inquire as to the number of hours expended in transporting equipment, nor is there a positive showing that the equipment transported was a portion of that which was to be delivered by Badger to defendant’s farm at no cost to defendant. Every reasonable inference from the evidence presented was to the effect that plaintiff was charging for transportation of equipment which the contract provided was to be delivered without cost. If so, the judgment should be further reduced.

Plaintiff, of course, was entitled to try the case on his theory — that is, that there had been a meeting of the minds and a contract to pay for services expended at the rate of $3.50 per hour. As a result, the court committed no error in sustaining the objections to evidence concerning the amount plaintiff paid his employees. We believe that there is sufficient evidence from which the court could find that such contract existed. In view of the lack of positive evidence of any dispute at the time of the delivery of defendant’s check and the equivocation of defendant’s testimony with reference to the check being issued in payment in full, we consider that there was sufficient evidence from which the court could find that there was no accord and satisfaction.

Ours is not the fact-finding function; we do not concern ourselves with resolving conflicts in evidence, its weight or with the credibility of witnesses. These are all matters for the trier of the facts who heard the witnesses give their testimony in his court. It is the trial court, when sitting without a jury, who must determine where the truth lies. Guthrie v. VanHyfte, 36 Ill2d 252, 222 NE2d 492. The presumption is that the trial judge heard sufficient evidence upon which to base his judgment and the defendant, when he appeals, has the burden of showing by the record, that the judgment is manifestly against the weight of the evidence. National Builders Bank of Chicago v. Simons, 304 Ill App 471, 26 NE2d 665; Louis v. Checker Taxi Co., 318 Ill App 71, 47 NE2d 351. We, therefore, do not conclude that the finding of liability is against the manifest weight of the evidence.

Defendant also contends that the court erred in refusing to order the plaintiff to produce his records pursuant to Supreme Court Rule 214, supra. He argues that production of records for the purpose of use in cross-examination is not barred by the rules providing the procedure for actions on small claims, Supreme Court Rules 281-288, supra, and that Supreme Court Rule 287, c 110A, § 287, Ill Rev Stats 1967, which provides, “No depositions shall be taken or interrogatories or other discovery proceeding be used prior to trial in small claims except by leave of court,” does not bar or require leave of court for the use of discovery proceedings for production of records to be used in cross-examination during trial. Rule 214 is included in Part E of the Supreme Court Rules which is captioned “Discovery, Requests for Admission and Pretrial Procedure.” We believe it can fairly be said that the production of records is a part of the discovery procedure whether they are sought for information to be used in either preparation for trial or for purposes of cross-examination during trial. As a result, the motion for production of records pursuant to Rule 214 was subject to the provisions of Supreme Court Rule 201, c 110A, § 201, Ill Rev Stats 1967, and (g) of that section provides: “Depositions and Discovery in small claims cases are subject to rule 287.” As a result, the granting of the motion to produce required leave of court, and it was in the court’s discretion to deny the motion, and we cannot say that discretion was abused, particularly in view of the late date of the request and the theory of plaintiff’s case.

In this case there was a single, simple element of damage. It is unlike the situation in which there are many and varied elements of damage to which no monetary value is assigned in the evidence. In such situations error cannot be predicated merely upon the fact that the sum of the figures in the testimony fail to equal the amount of the court’s award, because the court is permitted to take the many and varied elements into consideration. Here, having determined liability, damages should have been allowed either in the amount claimed, the amount claimed less Houck’s hours, or the amount claimed less Houck’s hours and less the amount of time engaged in transportation of equipment included in the Badger contract. Computation made under no one of those alternatives will result in the $350 judgment. We can, therefore, arrive at no other conclusion, particularly in view of the court’s pronouncement, than that the court compromised the damages, and did not base them on the evidence. The small claims procedure is intended to provide a simplified procedure, but an orderly one in which the rules of evidence are applicable, and in which the rules that damages must be supported by the evidence is also applicable. That procedure leaves no room for compromise.

We, therefore, affirm the judgment and remand the cause for a new trial on the question of damages only.

Judgment affirmed, cause remanded for a new trial on the question of damages only.

GOLDENHERSH and MORAN, JJ., concur.

       Plaintiff testified there was a $478 balance due (rather than $483, the amount claimed and indicated by the answer to the bill of particulars).


text:
    Bonnie L. Nickell, Plaintiff-Appellee, v. William L. Nickell, Defendant-Appellant.
    Gen. No. 68-197. (Abstract of Decision.)
    Second District.
    September 11, 1969.
    Kenneth D. Palmer, of Rockford, for appellant;
    Berry, Simmons & Coplan, of Rockford, for appellee.
   Opinion by PRESIDING JUSTICE MORAN. Not to be published in full.


author: PRESIDING JUSTICE THOMAS J. MORAN

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Pedro Ramos, Defendant-Appellant.
    Gen. No. 69-37.
    Second District.
    September 11, 1969.

      Knight, Ingrassia & Schirger, of Rockford, for appellant.
    Philip G. Reinhard, State’s Attorney of Winnebago County, of Rockford, for appellee.
   PRESIDING JUSTICE THOMAS J. MORAN

delivered the opinion of the court.

The defendant was found guilty by the trial court of the offense of unlawfully and knowingly possessing a narcotic drug, to wit, heroin. He was sentenced for a term of not less than two nor more than five years after being denied probation. This appeal is from the findings, judgment and sentence.

It is contended that (1) the defendant was entrapped into the commission of the offense, (2) the trial court erroneously placed the burden of proving that he was entrapped upon him instead of placing the burden on the State to prove that he was not entrapped, and (3) there was no probable cause shown by the evidence to justify the authorities in breaking into the premises of the defendant without a search warrant.

We will first discuss the third contention. Prior to trial, the defendant moved to suppress the evidence as it related to a tinfoil package of heroin. The motion was denied. The brief of the defendant, without benefit of citation of authority, devoted a single sentence to this alleged error by stating, “Further, probable cause was not shown by the evidence to justify the breaking into the premises of the defendant without a search warrant.”

The evidence referred to in the above quote consisted of the testimony of a police officer, Anthony Viola, which established that on June 12, 1968, one Rafael Yanez was arrested on the charge of possessing heroin. At the time of his arrest, he was asked if he would inform the officer of his contacts and he responded that he obtained the heroin from Ynez Ramos, brother and code-fendant of Pedro Ramos, who was living in an apartment at a certain address in Rockford. He was then asked if he would make another “buy” and he agreed to do so. Thereupon, Yanez was searched and “everything” was taken from him. He was then given a prerecorded $20 bill and driven to the address of the defendant. Upon arriving at the defendant’s residence, which was a second-floor apartment, Yanez was observed entering the front door of the building, proceeding up a flight of stairs and (there being just two apartments on the floor) going to a door believed to be the door to the apartment of the defendant. Yanez was gone about three minutes and returned downstairs where the witness and other officers were waiting. Upon his return, he handed one of the officers a tinfoil package which was opened and in the opinion of the witness, knowledgeable in narcotics, the contents were believed to be heroin.

With these circumstances as a background, the witness and another officer went to the door of defendant’s apartment, knocked upon it and identified themselves. Upon hearing a commotion from within, as if some one was running, they forced the door open and the witness observed the defendant and his brother running into the bathroom; he pursued them but they closed the door and held it shut. At the same moment, he heard the toilet flush and thereafter the defendant and his brother came out. In addition to the defendant and his brother there were four other men in the apartment at the time. The defendant was placed under arrest and, upon searching him in the kitchen, the prerecorded $20 bill was found. Also found, underneath some newspapers on a small kitchen table, was a tinfoil packet of heroin.

The defendant testified that he was the lessee of the apartment; that at the time the police forced their way into the apartment he was about to enter the bathroom as his brother was leaving it; that no one gave the police permission to enter; that the police had their guns drawn and told everyone to stay where they were; that the police did not state that they had a search warrant but, nevertheless, started searching the apartment. On cross-examination he testified that he had a $20 bill on his person when searched; that Yanez, who gave him the bill, had stated, “Here’s part of the — here’s five dollars I owe you, and I’ll take my girl, I’ll be right back, I have to take my girl to her home and come right back”; that Yanez left and it was then that all of the commotion commenced. When asked if the police took anything from the apartment, he stated, “Not to my knowledge.” The only other witness who testified on the motion to suppress was the defendant’s brother. His testimony related only to the fact that the police “barged in” and that he did not see or hear of a search warrant.

The defendant claims that the above factual situation did not support sufficient probable cause for the police to break into the premises without a search warrant. We cannot agree with such a claim. As recently as the case of People v. Macias, 39 Ill2d 208, 213, 234 NE2d 783 (1968), cert den 393 US 1066, it was stated:

“We have held that the test of probable cause is whether a reasonable and prudent man in possession of the knowledge which has come to the arresting officer would believe the person to be arrested is guilty of the crime; that it is something less than evidence that would result in conviction and may be founded on hearsay evidence; that it is based upon the factual and practical considerations of everyday life upon which reasonable and prudent men, not legal technicians, act.”

Whether probable cause existed must be governed by the totality of the facts and circumstances in each case. People v. Hanna, 42 Ill2d 323, 328, 247 NE2d 610 (1969). An uncorroborated “tip” from an unknown informer alone does not constitute probable cause for arrest without a warrant; however, when such “tip” is corroborated by other facts and circumstances it may constitute probable cause. People v. Denham, 41 Ill2d 1, 5, 241 NE2d 415 (1968).

In the instant case, the “tip” by the informant, Yanez, was not the sole basis for the authorities entering the defendant’s premises. On the contrary, rather than immediately force their way into the apartment, they first had the informant substantiate his “tip” by making another purchase and awaited the outcome before entering to make the arrest. The probable cause, therefore, was not based on just the reliability of the “tip” alone, but upon verification of the same. People v. McFadden, 32 Ill2d 101, 103, 203 NE2d 888 (1965), cert den 382 US 871. When Yanez returned from the apartment with a tinfoil package containing what was identified as heroin, the police officers had reasonable grounds to believe that an offense had been committed, People v. Boozer, 12 Ill2d 184, 188, 145 NE2d 619 (1957), and they therefore had probable cause to enter the defendant’s apartment without a search warrant.

It is argued that the defendant was entrapped into the commission of the alleged offense by the State Narcotic Bureau’s special employee, Yanez, who supplied the sine qua non of the offense. At. the time of trial, the defendant attempted to introduce into evidence a written statement, allegedly in the handwriting of and signed by Yanez. The statement related how Yanez was arrested earlier in the evening for possession of heroin; that the police found a bag of heroin in his jacket but they did not find the one in his shoe; that he was forced by the police, under the threat of being killed, to accompany them to the defendant’s residence. It went on to state that Yanez was given a marked $20 bill; that after being dropped off, “I go upstairs by myself and tell Pedro Ramos that here is the five dollars that I owe him and that I would be back for the change later. (B) ut he or no one in that house gave or sold me anything. I tell him I will be back for the change later and as I walk out the door I take the other bag of herion (sic) from my shoe and go downstairs wits (sic) it as I get downstairs they grabbed and took the other bag from me and charged me with possession.”

The trial" court refused to allow the statement into evidence and informed the defendant that Yanez himself would have to testify so that he could be cross-examined. A colloquy between the court and counsel revealed that the defendant had subpoenaed Yanez; that he sat in the courtroom throughout the trial after a motion to exclude all witnesses had been allowed; and that at this particular time the witness was not present because the defendant’s counsel had sent him home. The defendant was granted a continuance to the next day so that he might produce this witness. Upon resuming the trial, the court was informed by the defendant’s counsel that he was unable to locate Yanez; that he excused Yanez from the original subpoena for the reason that he believed the court would allow Yanez’s statement into evidence. The court stated that it was anxious to have Yanez testify regardless of the fact that he had heard all of the testimony, so the case, on motion of the defendant, was again continued. When the case was called after the second continuance, defendant’s counsel informed the court that Yanez had disappeared and, therefore, they were unable to serve the second subpoena upon him. The statement was reoffered into evidence but the offer was denied.

The trial court was correct in denying the admission of Yanez’s statement into the record on the basis that it would not be subject to cross-examination. What constitutes hearsay evidence is best explained by restating a quote from the case of People v. Carpenter, 28 Ill2d 116, 190 NE2d 738 (1963), where the Court, at page 121, said,

“ ‘Hearsay evidence is testimony in court or written evidence, of a statement made out of court, such statement being offered as an assertion to show the truth of matters asserted therein, and thus resting for its value upon the credibility of the out-of-court asserter.’ (McCormick, Law of Evidence, sec 225; see also, Cleary, Handbook of Illinois Evidence, sec 31.1 et seq.) ”

and then went on to state,

“The fundamental purpose of the hearsay rule was and is to test the real value of testimony by exposing the source of the assertion to cross-examination by the party against whom it is offered. While the administration of an oath and the right of confrontation are also spoken of as necessary elements, the essential feature, without which testimonial offerings must be rejected, is the opportunity for cross-examination of the party whose assertions are offered to prove the truth of the act asserted. (Wigmore on Evidence, 3rd ed sec 1361 et seq.; People v. Smuk, 12 Ill2d 356.)”

Based upon the premise that Yanez was an agent of the State, defendant contends that any statement made by him, either orally or in writing, which is contrary to the evidence introduced by the State, is competent. This is partially true but it lacks an essential ingredient in this case; that is, the author of the statement must be available to be cross-examined as to the veracity of matters therein asserted. This being the case, the State cannot then be charged with fault when it was the defendant who was responsible for excusing Yanez after he responded to the original subpoena.

Further, even if the statement had been admitted into evidence it would be of no avail to the defendant. As seen from the quoted section above, Yanez does not claim that he left the tinfoil package of heroin found by the police on the table in the kitchen. His statement accounts only for the package of heroin found upon him when he was originally arrested that evening and the package of heroin (which the statement asserts was in his shoe) which he turned over to the police after his visit to the defendant’s apartment. Therefore, there still remained an unexplained third package of heroin, confiscated by the police in the apartment of the defendant, upon which the indictment and prosecution was based.

Although defendant claims the defense of entrapment for a reversal of the case, it should be here noted that at no time prior to the filing of his briefs has the word “entrapment” ever been stated nor has the defense of entrapment ever been raised. It is argued for the first time in this Court. Cf., People v. Outten, 13 Ill2d 21, 23-25, 147 NE2d 284 (1958) ; People v. Van Scoyk, 20 Ill2d 232, 235, 170 NE2d 151 (1960). While entrapment need not be specially pleaded or relied upon exclusively, it must be clearly suggested in the trial court. People v. Strong, 21 Ill2d 320, 324, 172 NE2d 765 (1961).

Despite these considerations, we are of the opinion that the defendant cannot avail himself of the defense because the record discloses that he has consistently denied having any knowledge relative to the package of heroin found on the kitchen table in his apartment. In People v. Realmo, 28 Ill2d 510, 512, 192 NE2d 918 (1963), the Supreme Court held:

“. . . the defense of entrapment (is) incompatible with denial of the commission of the acts constituting the offense. (People v. Johnson, 24 Ill2d 195; People v. Van Scoyk, 20 Ill2d 232). Since defendant relied below upon a denial that he performed the alleged acts, he cannot here claim he was induced or lured into performing them under circumstances amounting to entrapment.”

See also, People v. Calcaterra, 33 Ill2d 541, 546, 213 NE 2d 270 (1965), appeal dismissed 385 US 7; People v. Banks, 103 Ill App2d 180, 188, 243 NE2d 669 (1968).

The cases on this point submitted by the defendant have been studied but we find them not to be in point with the facts as disclosed by the record herein.

For the reasons stated we find no error upon which to reverse this cause and therefore the judgment is affirmed.

Judgment affirmed.

DAVIS and SEIDENFELD, JJ., concur.


text:
    Harvey L. Downing and Ruth M. Downing, Plaintiffs-Appellees, v. Rockford District Mutual Tornado Insurance Company, a Mutual Insurance Corporation, Defendant-Appellant.
    Gen. No. 69-44.
    Second District.
    September 11, 1969.
    Smith, Penniman and McGreevy, of Rockford, for appellant.
    Eaton, Leemon and Rapp, of Mt. Carroll, for appellees.
   PRESIDING JUSTICE THOMAS J. MORAN

delivered the opinion of the Court.

In April, 1964, the defendant insurance company sold a policy of insurance to the plaintiffs (which reference herein shall be to Harvey L. Downing only), insuring, among other things, a corncrib and elevator in the amount of $7,000 against direct loss and damage by windstorm, cyclone, tornado and hail. The crib and elevator were constructed by the plaintiff and consisted of a two-story wooden building placed on a concrete foundation.

Plaintiff testified that he leased certain bins on the upper floor of the crib and that 2,500 to 3,000 bushels of soybeans were placed there by the lessee; that the soybeans weighed from 75 to 90 tons; that on the night of January 24, 1967, there was a tornado in the vicinity of his property; that the following morning he went to the crib and discovered that the door would not shut because the building had been jarred out of plumb; that the studs along the inside of the walls were five inches out of plumb at the top; that the cupola on top of the building was twisted and that there was a hole in the roof. He also testified that he concluded he would have to put the building back in shape before using it the following fall; that he did not notify his insurance company and that he planned to have his son help him jack up the building and straighten it out.

Thereafter, for a period of twenty days, plaintiff did not notify his insurance company and took no action to jack up the building, straighten the studs, or remove any of the soybeans, despite the fact that the soybeans could have been removed in a period of several hours. On the evening of February 14, 1967, the corncrib collapsed. The next day the plaintiff called his insurance man and reported the loss.

The defendant declined to pay for the entire damage and this action followed. The case was heard before a jury and the undisputed, and only, evidence as to damage was that the plaintiff’s loss was $7,342. The jury rendered a verdict in favor of the plaintiff in the amount of $3,500 and he then made what he called a “motion for additure.” That motion was allowed and the trial judge increased the damages to $7,000, entering judgment for that amount. The defendant filed a motion for a judgment notwithstanding the verdict but the motion was denied.

The issues raised on this appeal fall substantially into two categories. The first issue is whether or not the plaintiff breached the insurance contract, and the second issue is whether the trial court erred in granting the so-called “motion for additure.” In our view the plaintiff did breach the insurance contract and the case should be reversed. Therefore, we do not reach the second issue.

The insurance policy in question provided, among other things: “Requirements in case loss occurs: The insured shall give immediate written notice to this Company of any loss, protect the property from further damage, forthwith separate the damaged and undamaged personal property, put it in the best possible order. . . .” “Perils not included: This Company shall not be liable for loss by fire or other perils insured against in this policy, caused, directly or indirectly, by . . . (i) neglect of the insured to use all reasonable means to save and preserve the property at and after loss, . . . .” “Conditions suspending or restricting insurance: Unless otherwise provided in writing added hereto this Company shall not be liable for loss occurring (a) while the hazard is increased by any means within the control or knowledge of the insured, . . . .” and “. . . No suit or action on this policy for the recovery of any claim shall be sustainable in any court of law or equity unless all the requirements of this policy shall have been complied with.

It is to be seen from the first paragraph quoted above that when a loss occurred the plaintiff had four duties. First, to give immediate written notice to the company; second, to protect the property from further damage; third, to separate the damaged and undamaged property ; and fourth, to put the property in the best possible order.

The plaintiff did not comply with any of these duties. It is stipulated that he did not notify the company for a period of twenty days and, indeed, he only notified them after a further and more substantial loss had occurred. He did not protect the property from further damage. He did not remove any of the soybeans from the damaged crib so that, in fact, he did not separate the damaged from the undamaged property and he did not put anything in the best possible order.

We are faced with the fact that a jury heard all of the evidence and concluded that the plaintiff had been faithful to his contractual duties. The only evidence as to the element of damage was in the amount of $7,342, yet the jury verdict was for $3,500. There is really no basis for such a verdict other than the fact that the jury compromised liability and damage. The issue presented to this Court was well stated by the Supreme Court in the case of Pedrick v. Peoria & Eastern R. Co., 37 Ill 2d 494, 229 NE2d 504 (1967), when the Court said at pp 498-499:

“In our judgment the controlling issue herein is the troublesome, though familiar, question as to the circumstances under which the trial judge may determine that the proof presents no factual question for the jury’s consideration and that a verdict should be directed or judgment non obstante veredicto entered. While there is no unanimity as to the governing principles, it seems reasonably well settled that the same standards shall be applied in either case; and such is the law of this State.”

The Court concluded, at p 510:

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

We are naturally reluctant to interfere with the verdict of a jury and the decision of a trial court upholding that verdict. Still, when applying the foregoing rule to the evidence in this case, the result is clear and our duty requires us to reverse.

The contract between the parties clearly required the plaintiff to report the original loss to the defendant. In the early case of Knickerbocker Ins. Co. v. Gould, 80 Ill 388 (1875), the Supreme Court, at page 394, stated, “. . . But where there is no dispute in relation to the facts and circumstances bearing on the question of diligence in giving the notice, then the question may be regarded one of law for the court.” There is no dispute as to the facts herein. The plaintiff suffered a loss and did not report it until a greater loss occurred. Twenty days intervened during which the plaintiff or the defendant could have taken steps to remove the soybeans, to repair the original loss and put the building in order. None of these things occurred. Indeed, the defendant could not act to bring about such occurrence, since it had no notice of the original loss, International Harvester Co. v. Continental Gas. Co., 33 Ill App2d 467, 472, 179 NE2d 833 (1962) ; Gallagher v. American Alliance Ins. Co. of New York, 220 Ill App 476, 478 (1921).

We do not have before us, and we do not decide, whether the requirement of “immediate written notice” means that the notice should have been instantaneous or that it would have been permissible if given two or three days after the original loss. We decide only that the delay of twenty days, and the fact that the notice was only given after a second and total loss, is not a notice in compliance with the policy in this case. Likewise, we do not decide whether defendant is required to show prejudice by the failure to give notice since prejudice obviously occurred.

The plaintiff’s only explanation for failure to give notice is that he intended to make the repairs himself. This being his intent, it would still not have been inconsistent for him to notify the carrier nor would his intent operate as a unilateral modification of the insurance contract.

We conclude as a matter of law that the plaintiff has breached the terms of his insurance policy and that he is not, under the terms of that policy, entitled to recovery. The judgment is therefore reversed.

Judgment reversed.

DAVIS and SEIDENFELD, JJ., concur.


author: TRAPP, P. J.

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Thomas Edward Land, Defendant-Appellant.
    Gen. No. 11,085.
    Fourth District.
    September 22, 1969.
    Robert E. Williams, of Bloomington, for appellant.

      Paul R. Welch, State’s Attorney, of Bloomington, for appellee.
   TRAPP, P. J.

Upon revocation of his probation, defendant was sentenced to serve not less than four years nor more than seven years upon a charge of burglary. He appeals from the sentence only.

The evidence in support of such revocation was that he had joined others in committing a subsequent burglary. He was then nineteen years of age. The excerpts from the record do not show that defendant testified during the revocation proceedings.

Defendant cites People v. Carroll, 76 Ill App2d 9, 221 NE2d 528, for the principle that an ideal sentence sufficiently punishes, adequately safeguards the public and rehabilitates the offender. This record shows that defendant had been offered rehabilitative processes since 1963 in youth camps and training schools for offenses of theft and auto theft. Granted probation for burglary in June, 1966, he resumed the practice of that art in January, 1967. Defendant cites the language of People v. Grigsby, 75 Ill App2d 184, 220 NE2d 498, as to unjust sentences. In that case the defendant was a first offender.

The record discloses that defendant is a recidivist and that he offered no evidence in mitigation. The trial court could reasonably conclude that the fourth try at rehabilitation required more than a minimal term. There is no such departure from the purpose and the spirit of the law as requires this court to alter the sentence. People v. Hicks, 35 Ill2d 390, 220 NE2d 461.

The judgment is affirmed.

Affirmed.

SMITH and CRAVEN, JJ., concur.


author: MR. JUSTICE MURPHY

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Eddie Chambers, Defendant-Appellant.
    Gen. No. 52,102.
    First District, First Division.
    June 23, 1969.

      Gerald W. Getty, Public Defender of Cook County, of Chicago (Ronald P. Katz 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 Gerald T. Rohrer, Assistant State’s Attorneys, of counsel), for ap-pellee.
   MR. JUSTICE MURPHY

delivered the opinion of the court.

In a bench trial and under consolidated indictments defendant was found guilty of murder and of robbery. He received two concurrent sentences to the penitentiary of 50 to 75 years. On appeal he contends (1) that his in-court identification “was tainted by a prior suggestive police lineup”; (2) that he was not proved guilty beyond a reasonable doubt; and (3) that the sentences imposed were excessive.

On January 24, 1966, at about 2:00 p. m., a man with a knife entered the store of the Auburn Park Cleaners at 75 East 79th Street, where Mrs. Della Fields was alone on duty as a clerk. On his demand, Mrs. Fields gave him $20 from the cash register, and then they both went to the rear of the premises looking for a “second bank” kept in a small pasteboard pin box. While they were in the rear, Henry Cullors, a 74-year-old customer, came into the store for his shirts, which defendant directed Mrs. Fields to give to him. After some colloquy, defendant stabbed Cullors twice on the face, and Cullors died while still in the store.

The testimony of Mrs. Fields as to the robbery included: The man was “trying to get Mr. Cullors behind the counter and Mr. Cullors wouldn’t come behind the counter so the man just swung and hit him with the knife, cut him with the knife. I saw the knife in the hand of this man. Mr. Cullors was cut on the left side of his face or head. After this Mr. Cullors told him, ‘Look how I am bleeding. Let her call a doctor.’ And he told him, he said, ‘If you don’t get behind the counter and lie down I will stand up here and let you bleed to death.’ Mr. Cul-lors still wouldn’t lie down and I told Mr. Cullors, ‘Lie down and I will get a doctor for you.’ He then laid down. The man went to the door and came back. He had placed the money box I had given him on the counter while he was hitting Mr. Cullors. He then started toward the door and came back and took his money. He took the money out of the box and threw the box on the counter. Mr. Cullors was still lying there at this time.”

After defendant left, Mrs. Fields called the police, who arrived in about five minutes. Mrs. Fields described the robber to the police as a male Negro, weighing about 160 pounds, and about 25 to 30 years old; he had a pockmarked face, and he was wearing a three-quarter length black leather coat and a black hat. Later that day she modified her description of the assailant by stating that he had a large bump on his cheek and was wearing a black jersey knit shirt under the coat.

On February 1, 1966, Mrs. Fields received a telephone call from the police that they had “caught a man that might be the man.” Later she was taken to the 21st District Station for a showup, where she identified defendant as the assailant.

Police Officer James Lewis, a laboratory technician for the Chicago Police, went to the cleaning store on the day of the robbery and took pictures of fingerprints found on the pin box and transported the evidence to the Police Bureau of Identification.

Officer Joseph Mortimer, a fingerprint expert with the Chicago Police for over 20 years, testified he examined the fingerprint card of the defendant made at the time of his arrest and the photographs of the fingerprints on the pin box. A comparison revealed that the prints off the box matched the right thumb and left index finger of the defendant. The officer further stated that it was normal identification procedure to make seven to twelve points of comparison for positive identification, and in the instant case there were nineteen points of comparison between the defendant’s left index finger and one of the prints lifted from the pin box. In the officer’s expert opinion the prints “were made by one and the same person.”

The defendant took the stand in his own defense. He had no recollection of the day in question and denied the robbery and the killing of Mr. Cullors.

Defendant’s witness, Mrs. Delores White, testified that she was the office manager of the Gluckman Clinic at 2407 West Warren Avenue in Chicago, and that defendant was in the waiting room of the clinic at the time the cleaning shop was robbed. A “medical history” card was presented, which showed the dates 1-24-66 and 1-26-66 as dates on which the defendant was in the clinic. The witness said she personally made the entry on the respective dates.

Officer Alford testified on rebuttal that he had seen the card on February 1, 1966, at the Gluckman Clinic, and the date 1-24-66 did not appear on the card.

Initially considered is defendant’s contention that the lineup was grossly unfair and substantially tainted the subsequent in-court identification by Mrs. Fields.

Mrs. Fields testified that the lineup of February 1, 1966, consisted of five Negro men with hats on and of different heights. She was asked if she noticed whether the person who committed this offense had a goatee, beard, mustache or was clean-shaven. Her answer was that she did not know. She further testified that at the lineup she did not notice whether the defendant had a goatee or a mustache; also, she did not observe whether any of the other men in the lineup had a pockmarked face or bumps on their face. Mrs. Fields said the robber was of dark complexion and in the lineup some of the men were darker than others. She stated that in the lineup she recognized the defendant by the green jacket he was wearing.

Police Officer O’Connell testified that at the time of the lineup defendant was a “Male Negro, six feet tall, 185 pounds, dark complexion, pockmarked face, with a prominent festered pimple on his left cheek, mustache, he had badly decayed or broken teeth in the front, he was wearing a green hat, a light green jacket, a green pullover sport shirt, dark gray trousers and black ankle-type boots.”

Defendant notes “that at the time of the robbery and at the time Mrs. Fields identified the defendant in the lineup she was unable to state whether the defendant or the robber had on a beard, mustache or goatee or was clean-shaven. She was, however, able to pick out the defendant who was wearing a mustache at the time. She was unable to describe the defendant’s nose nor the presence of his decayed teeth. If it was indeed the defendant she would have no difficulty in describing to the police the presence of a mustache or beard or goatee.” Also, defendant contends that a fair lineup would have included another prisoner in the lockup, “Thomas Cotton, whose physical characteristics (the pockmarked face), resembled that of the actual perpetrator of the crime.”

Defendant, to show that the lineup was highly suggestive and prejudicial to the defendant, enumerates the following points: (1) The defendant was the only man in the lineup with a mustache; (2) The defendant was the only man in the lineup with a pockmarked face, although the police had another suspect with a pockmarked face in custody; (3) The men in the lineup with the defendant were not all of the same height; (4) The men in the lineup were not of the same complexion; and (5) The police informed the complaining witness prior to the lineup that “they caught a man that might be the man.”

Defendant asserts that Stovall v. Denno, 388 US 293 (1967), stated that “where the in-court identification of a defendant resulted from a line-up or show-up conducted in such a manner that it is so grossly unfair it is a denial of defendant’s right to due process of law under the Fourteenth Amendment and must be excluded.”

The State asserts that the lineup was fundamentally fair and unprejudicial to defendant and states the evidence shows “the line-up was composed of five male Negroes of the same approximate age and physical description. Four of the five were approximately six feet tall and the fifth was approximately five foot eight inches tall. All were dressed similarly. They were all of approximately the same complexion. ‘Some were darker than others. There weren’t any real light ones.’ ” Also, the State points out that the record shows one week after the robbery-murder Mrs. Fields immediately and without hesitation picked the defendant out of the lineup and later made a statement in his presence.

In considering defendant’s contention that the lineup was unfair and prejudicial to defendant, we note that in Stovall v. Denno the court also stated (p 302):

“However, a claimed violation of due process of law in the conduct of a confrontation depends on the totality of the circumstances surrounding it, and the record in the present case reveals that the showing of Stovall to Mrs. Behrendt in an immediate hospital confrontation was imperative.”

After an examination of the “totality of the circumstances surrounding” the lineup identification of defendant by Mrs. Fields on February 1, 1966, we conclude that the composition of the lineup was not fundamentally unfair or prejudicial to the defendant, and defendant was not prejudiced by the manner in which the police notified the complaining witness to appear at the lineup.

Considered next is defendant’s contention that the identification of the defendant “was vague, uncertain and cannot sustain a finding of guilt beyond a reasonable doubt,” primarily because the State’s witness was uncertain as to whether the assailant at the time of the occurrence or at the lineup “had a beard, mustache, goatee or was clean-shaven.” Defendant’s authorities on this point include People v. Marshall, 74 Ill App2d 483, 221 NE2d 133 (1966), in which defendant’s conviction was reversed because the victim was not sure whether the robber had a mustache at the time of the robbery, and said (p 485):

“The fact that the defendant did not have a mustache at the trial is not important; but the fact that the witness was not sure whether he had one at the time of the robbery is very important,” and normally would not have been overlooked.

Defendant also states that Mrs. Fields testified that she recognized the defendant in the lineup because a green jacket he was wearing was similar to the one worn by the robber. Defendant notes that “Mrs. Fields initially gave her description of the robber to the police and later when she amended her description to include among other things, a black jersey knit shirt, she failed to mention this now very prominent green jacket. She stated she recognized the defendant in the lineup from his green jacket.”

Defendant cites People v. Kincy, 72 Ill App2d 419, 219 NE2d 662 (1966), where, in reversing a robbery conviction because the plaintiff identified clothing and not facial characteristics, the court said (p 427):

“Where the conviction of a defendant rests upon identification which is doubtful, vague and uncertain, and which does not produce an abiding conviction of guilt, it will be reversed.”

The State maintains that the foregoing authorities are factually distinguishable from the instant case. The state asserts that the record contains nothing vague, doubtful or uncertain about the identification of defendant by Mrs. Fields. The State points out that the original observation was made under favorable conditions for identification — the lighting was excellent (2:00 p. m.), she saw him at close range at the store for about ten to fifteen minutes, and the description given by her to the police was very similar to the lineup description of defendant as given by Officer O’Connell.

We agree that the failure to observe defendant’s mustache and the failure to mention initially the green jacket are factors to be used in assessing the credibility of Mrs. Fields, but we do not agree that they are determinative here. The testimony of Mrs. Fields included, “The man that I am talking about I had an opportunity to look at him during this incident. I had a chance to look at him while I was waiting on Mr. Cullors and I saw him during the time when he was fighting with Mr. Cullors. I hardly taken my eyes off of him, maybe once or twice, but I saw him and I saw most of everything that went on. This man saw me face to face while we were in the store.”

In sum, we find that the identification evidence was sufficient to support the defendant’s conviction beyond a reasonable doubt. The identification by Mrs. Fields of the defendant as the assailant on January 24, 1966, was clear and convincing and unshaken on cross-examination. Precise accuracy in describing facial characteristics is unnecessary where an identification is positive. The testimony of one witness alone, if positive and the witness credible, is sufficient to convict, even though the testimony is contradicted by the accused. People v. Miller, 30 Ill2d 110, 113, 195 NE2d 694 (1964).

Also, the identification testimony of Mrs. Fields was corroborated by the fingerprint testimony. Mrs. Fields testified she saw the defendant pick up the pasteboard pin box on two occasions while in the store. Officer Lewis found fingerprints on the box and preserved them for identification. It was the professional opinion of the fingerprint expert that the two prints taken from the pin box were identical to the right thumb and index finger of the defendant, and that both sets of prints were made by one and the same person.

Finally, defendant contends that the sentence imposed upon defendant is excessive and should be reduced. Defendant states that the hearing in aggravation and mitigation showed that defendant had only one prior conviction, and that he was 26 years of age. Four psychiatrists, who examined the defendant prior to trial, found him to be mentally retarded. Defendant argues that the imposition of the sentence of 50 to 75 years shows that the trial judge in no way took into consideration the various psychiatric factors, and the minimum sentence “destroys all hope of rehabilitation and eventual release.”

The State maintains that the defendant was proved guilty of “a brutal and senseless taking of a human life while in the act of committing a felony,” and that his sentence should not be reduced. The State notes that, although the four psychiatrists found him to be “mentally retarded,” “a schizoid personality,” “slow and retarded,” and “garbled and confused,” nevertheless it was the opinion of the psychiatrists that the defendant “knew the nature of the charges against him and was able to cooperate with counsel.”

After considering the nature of the crime and the attending circumstances, including the pretrial findings of the four psychiatrists, we find the sentence was within the statutory limits, and a reduction of the punishment imposed by the trial court is not justified by any reasonable view which might be taken of the instant case. See People v. Hobbs, 56 Ill App2d 93, 205 NE2d 503 (1965).

For the reasons given, the judgments of the Circuit Court of Cook County are affirmed.

Affirmed.

ADESKO, P. J. and BURMAN, J., concur.


author: MR. PRESIDING JUSTICE ADESKO

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Horace Louis, Defendant-Appellant.
    Gen. No. 52,408.
    First District, First Division.
    June 23, 1969.

      Gerald W. Getty, Public Defender of Cook County, of Chicago (John E. Hughes and James J. Doherty, Assistant Public Defenders, of counsel), for appellant.
    John J. Stamos, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and Oliver Ferguson, Assistant State’s Attorneys, of counsel), for appellee.
   MR. PRESIDING JUSTICE ADESKO

delivered the opinion of the court.

Defendant, Horace Louis, aged 29, was found guilty in a bench trial of the crime of burglary and attempt to commit rape. He was sentenced to the Illinois State Penitentiary for a term of three to ten years for burglary and seven to fourteen years for attempted rape, the sentences to run concurrently. Defendant contends on appeal that the State failed to prove him guilty beyond all reasonable doubt and that this cause be remanded to the trial court for a hearing on mitigation.

On February 5, 1965, at 1:00 a. m., the complaining witness, Ruth Vincent, aged 79, was asleep in the bedroom of her apartment on the third floor of 1333 W. Jackson Blvd., Chicago, Illinois. Appellant, after smashing the door and breaking the chain on the lock, came to her bed, took his shoes and pants off and got into the bed. He told her he was going to have sexual intercourse with her and asked her to perform an act of oral copulation which she refused. After he fell asleep, she slipped out of bed and went across the street to call the police. The defendant was asleep when arrested and appeared to be intoxicated. He was indicted, found guilty and sentenced.

Defendant maintains that on February 5, 1965, he was incapable of possessing the intent to commit the crimes for the commission of which he was found guilty. We agree that if the defendant were wholly incapable of forming the intent charged because of intoxication, he would not be guilty. The facts involved herein clearly indicate the opposite. He did break the lock and chain thereon, he undressed and told the complaining witness that he would have sexual intercourse with her. Under these facts and circumstances, the question of whether he was so intoxicated as to not know what he was doing and lacked a mind sufficient to form an intent, was a question for the trial judge as trier of the facts to determine. The trial judge was in a better position to judge the extent of the defendant’s intoxication than we are. We will not substitute our judgment for that of the trial court.

We agree with defendant’s contention that there was no hearing on mitigation. We are mindful of defense counsel’s answer to the trial judge’s question about the appellant’s criminal record which was: “This defendant has never been, prior to today, convicted of any crime . . . ."

Chapter 38, § l-7(g) of the Ill Rev Stats (1965), provides:

“ (g) Mitigation and Aggravation
“For the purpose of determining sentence to be imposed, the court shall, after conviction, consider the evidence, if any, received upon the trial and shall also hear and receive evidence, if any, as to the moral character, life, family, occupation and criminal record of the offender and may consider such evidence in aggravation or mitigation of the offense.”

There had been some question in the past whether a hearing on aggravation and mitigation was mandatory. There appears no doubt today that such a hearing must be held. It can be helpful to the trial court in reaching a proper decision in sentencing a defendant. It can likewise be helpful to the reviewing court in deciding whether a sentence be reduced. It can be of assistance in post-trial hearings and in hearings before the Parole and Pardon Board. This court has already decided that such a hearing is mandatory. In People v. Smice, 79 Ill App2d 348, 223 NE2d 548 (1967), the Illinois Appellate Court said:

“We believe it to be the spirit and intent of section 1-7 (g) that the court hearing on aggravation and mitigation is mandatory unless understandingly waived by the defendant and not requested by the State; and that a transcript of the inquiries of the court and the answers of the defendant, if any, pertaining to such waiver should be made, as well as a transcript of the hearing, when not so waived by the defendant or when requested by the State. This view is fortified by the provisions of section 121-9 (b) (4) of the Code. Under this construction and procedure, the trial court would have before it the required sociological information with reference to the defendant, to assist in determining a proper sentence for the offense. In addition, reviewing courts could then meaningfully pass on the propriety of the sentence.”

The judgment of conviction is affirmed. The sentence is vacated. This cause is remanded to the Circuit Court of Cook County, Criminal Division, to conduct a hearing in aggravation and mitigation, and then for imposition of an appropriate sentence after such hearing.

Conviction affirmed; sentence vacated and cause remanded.

Affirmed.

MURPHY and BURMAN, JJ., concur.


text:
    Sharon Orsi and Donna Orsi, a Minor, by Regina Orsi, Mother and Next Friend, Plaintiffs-Appellants, v. Frances P. Young, Defendant-Appellee.
    Gen. No. 53,584. (Abstract of Decision.)
    First District, First Division.
    June 23, 1969.
    Jones, Clark & Huszagh, of Chicago (Richard W. Huszagh, of counsel), for appellants;
    no brief filed for appellee.
   Opinion by JUSTICE BURMAN. Not to be published in full.