text:
    Dolores Glenn, Plaintiff-Appellant, v. Richard Saettone, Defendant-Appellee.
    Gen. No. 53,304.
    First District, Second Division.
    January 28, 1969.

      Oscar Wyclif Harman, of Chicago (Vincent C. Lopez, of counsel), for appellant.
    Kenneth J. Brundage, of Chicago, for appellee.
   MR. JUSTICE BURKE

delivered the opinion of the court.

On March 1, 1963, Dolores Glenn filed a three-count complaint against Richard Saettone. On February 19, 1968, a judgment on a verdict in an ex parte hearing for $25,000 was entered against the defendant. On April 24, 1968, a motion to vacate the judgment supported by an affidavit by authority of § 72 of the Civil Practice Act was filed. On April 29, 1968, the judgment was vacated. Plaintiff, appealing, asks that the judgment for $25,000 be reinstated. The issue presented for review is whether the court abused its discretion in sustaining the motion to vacate the judgment.

Counts I and II seeking relief in equity, allege that plaintiff refused to marry defendant and that defendant and a female person who impersonated the plaintiff on April 11, 1962, went through the ceremony of a pretended marriage; that the forgery on the application for the marriage license is “more perfect than the genuine handwriting” of plaintiff; that the defendant harassed, molested and unlawfully interfered with plaintiff with the intent to terrorize her; that about Sept. 3, 1962, defendant sent pornographic matter to plaintiff’s employer, friends and associates at her work; that about Sept. 12, 1962, and at other times he sent additional pornographic matter to associates and friends of plaintiff; and that the pornographic matter simulated pictures of the plaintiff which depicted her as a vulgar person “and was calculated to terrorize the plaintiff.” In Counts I and II plaintiff prayed for an injunction restraining defendant from molesting her, entering upon the premises where she resides or is employed, distributing pornographic matter referring to her, and holding himself out as her husband, and that the simulated marriage be annulled. Count III, at law, realleges the averments of Counts I and II and additionally states that on Jan. 15, 1962, she was the owner of certain clothing and personal effects stored with her brother in Gary, Indiana; that on this day defendant was allowed to be alone in her brother’s home for a short space of time and that he wilfully and maliciously slashed, cut and destroyed all of her wearing apparel and personal effects worth in excess of $1,500; that on February 8, 1963, the defendant was able by subterfuge to steal plaintiff’s keys to her apartment and on that day entered her apartment in Chicago and stole her personal effects, jewelry and clothing worth in excess of $4,500. She asked damages of $100,000.

Defendant filed an appearance and jury demand and an answer to the complaint. The answer was stricken. He filed an amended answer wherein he said that he sought the hand of plaintiff in marriage and that he was ready, willing and able to marry plaintiff; that he was married at Chicago on April 11, 1962, “to a female person, not the plaintiff”; that the marriage was contracted by the defendant and “this female person” without any desire to simulate a marriage with plaintiff and he denied that he ever used any marriage record tending to embarrass plaintiff and denied that he confessed to plaintiff that he ever claimed to be married to her. He denied that he used any false records to embarrass plaintiff at her place of employment. He denied any knowledge or information as to whether plaintiff owned clothing and personal effects in Gary, Indiana. He denied all the other material allegations of the complaint.

On May 13, 1963, the court, without resistance from defendant, entered an order awarding an injunction directing that the defendant refrain from molesting plaintiff, entering upon the premises of plaintiff or going near the plaintiff in her home or place of employment, distributing pornographic matter referring to plaintiff, holding himself out as the husband of plaintiff or in any way interfering with plaintiff. On June 4,1963, the Chancellor entered a decree disposing of Counts I and II of the complaint. The decree found and adjudged that the plaintiff did not participate in the application for the marriage license or the marriage performed on April 11, 1962; that the marriage be null and void “insofar as it may affect the plaintiff”; denied plaintiff’s motion to strike the answer, made permanent the injunction theretofore issued and transferred Count III to the common-law side of the court.

On February 16, 1968, the cause was assigned to the call of Judge Donald S. McKinlay for trial. On February 19, 1968, Attorney John L. White was given leave to withdraw as attorney for defendant. On that same day, immediately following the withdrawal of Attorney White, plaintiff made an ex parte prove up before a jury and a judgment for $25,000 was entered against the defendant. On April 24, 1968, defendant filed a motion to vacate the judgment. The affidavit supporting the motion set forth that defendant did not receive notice of the withdrawal of his attorney; that not until March 12, 1968, did he receive a handwritten memorandum from his attorney advising defendant that he had not heard from defendant for some time; that thereupon defendant communicated with his attorney, Mr. White, who then advised him for the first time that the matter was set before Judge McKinlay for Feb. 19, 1968, for trial and that he, White, had withdrawn his appearance as attorney for defendant; that Mr. White further advised defendant that Judge McKinlay had entered a judgment against him in the amount of $25,000; that until this time no notification had been received by defendant as to a trial, judgment or the withdrawal of his attorney; that he had presumed that he would be advised of the progress of the case; that thereafter he employed the services of Attorney Donald S. Frey, to have the judgment vacated; that on March 28, 1968, he was advised that attorney Frey had appeared before Judge Hermes in an effort to vacate the judgment; that Judge Hermes refused to hear the motion or denied the motion; that on March 25, 1968, defendant employed the services of Mr. Friedman, an attorney, to vacate the judgment; that prior to March 25, 1968, no effort had been made to the knowledge of the defendant by the plaintiff to notify or attempt collection of the judgment; that defendant paid the requested retainer fee of $200 to Mr. Friedman; and that he has been advised that Mr. Friedman had been too busy to attend to the motion. Thereafter defendant employed Kenneth J. Brundage as his attorney and that the only knowledge of the judgment given to him by the plaintiff was of citation proceedings filed April 2, 1968, against the Bell Savings and Loan Association and The American National Bank and Trust Company. The motion asserted that the police officers who investigated the alleged theft from plaintiff’s apartment would testify to facts contrary to allegations of the complaint and that the defendant could produce letters written to him by plaintiff which are contrary to the allegations of the complaint.

On April 29, 1968 the court ordered that the judgment of Feb. 19, 1968, be vacated and that plaintiff be given leave to file an answer to the petition within seven days. The amended answer presents a meritorious defense to the allegations of the complaint. The petition and the affidavit of the defendant also show that he exercised due diligence in opposing the entry of the judgment and in moving to vacate when he learned about it. He retained a succession of three attorneys within 38 days in an effort to vacate the judgment.

We find that the trial judge in vacating the judgment and affording the defendant his right to a trial of the issues exercised a reasonable discretion in accordance with the views of our Supreme Court in Elfman v. Evanston Bus Co., 27 Ill2d 609, 190 NE2d 348 and Ellman v. De Ruiter, 412 Ill 285, 106 NE2d 350. Therefore the order vacating the judgment is affirmed.

Order affirmed.

LYONS, P. J. and McCORMICK, J., concur.


source: Caselaw Access Project

author: PRESIDING JUSTICE GOLDENHERSH.

license: Public Domain

text:
    Melvin A. Hildebrand, Plaintiff-Appellee, v. Catherine Hildebrand, Defendant-Appellant.
    Gen. No. 66-121.
    Fifth District.
    January 30, 1969.
    Chapman, Strawn & Kinder, of Granite City, for appellant; Emerson Baetz, of Alton, for appellee.
   Opinion by

PRESIDING JUSTICE GOLDENHERSH.

Not to be published in full.


author: MR. JUSTICE SEIDENFELD

text:
    The Vendo Company, a Foreign Corporation, Plaintiff-Appellee, v. Harry B. Stoner and Stoner Investments, Inc., a Foreign Corporation, Defendants-Appelants.
    Gen. No. 68-1.
    Second Judicial District.
    January 30, 1969.
    Kehearing denied March 24,1969.

      Sidley & Austin, Boodell, Sears, Sugrue & Crowley, of Chicago (Barnabas F. Sears and Gerald M. Sheridan, Jr., of counsel), for appellants.
    Reid, Ochsenschlager, Murphy and Hupp, of Aurora (Stephen J. Mrkvicka, of counsel), for appellee.
   MR. JUSTICE SEIDENFELD

delivered the opinion of the court.

Defendants, Harry B. Stoner and Stoner Investments, Inc., appeal from judgments in a suit for breach of a sales and employment contract and for injunctive relief, heard without a jury.

Judgment was entered in favor of the plaintiff and against the defendants as follows: (1) against Harry B. Stoner in the amount of $250,000; (2) against Harry B. Stoner and Stoner Investments, Inc., in the amount of $1,100,000; (3) against Harry B. Stoner, restraining him from “engaging, directly or indirectly, in the vending machine manufacturing business, individually or as a partner, employee or agent, anywhere in the United States or in any foreign country in which the Vendo Company engaged in such business (as of June 1, 1959), until June 1, 1969; and (4) against Stoner Investments, Inc., restraining it in similar terms.”

A question is also raised on the pleadings, arising out of the court’s order striking certain defenses and counterclaims based upon the Federal and State Antitrust laws.

In April, 1959, the defendant corporation was principally engaged in the business of manufacturing and selling candy vending machines throughout the United States, and was about to license a company to sell its machines in England. This corporation will herein be referred to as Stoner Investments, its present name, notwithstanding that it was named Stoner Mfg. Corp. in 1959. The corporate shares of Stoner Investments were owned in 1959 by defendant Harry B. Stoner, his wife, his mother and his sister-in-law, Ruth Netrey. Mr. Stoner was, without dispute, the principal officer and in control of the management of the corporation.

The Vendo Company, in 1959, had been one of the leading manufacturers and sellers of vending machines for hot and cold beverages, ice cream and certain other products. The company did not manufacture or sell vending machines for candy, cigarettes, hot sandwiches and instant coffee and tea at that time, but such machines had been considered and were in various stages of research and development. Vendo machines were then being sold in 58 countries in every continent. Clearly, Vendo was a considerably larger and more diversified company than Stoner Investments.

On April 3, 1959, a contract was executed by which Vendo agreed to purchase Stoner Investments’ assets, excluding real estate and improvements thereon, cash on hand or on deposit, and receivables. In essence, Vendo was to pay $3,400,000 in cash, subject to certain adjustments, deliver 60,000 shares of its fully paid and non-assessable common stock, pay a portion of its profits in excess of $250,000 in any calendar year from the assets being purchased for a period of ten years, pay 25% of monies received from sales outside the United States of Stoner Investments’ products, also for a period of ten years, assume responsibility for the collection of accounts receivable, and pay all debts, obligations and liabilities of Stoner Investments. The sales agreement imposed the following restriction on the selling corporation:

“Section 15. From and after the closing, the Company [Stoner Investments] will not own, directly or indirectly, manage, operate, join, control or participate in the ownership, management, operation or control of, or be connected in any manner with, any business engaged in the manufacture and sale of vending machines under any name similar to the Company’s present name, and, for a period of ten (10) years after the closing, the Company will not in any manner, directly or indirectly, enter into or engage in the United States or any foreign country in which Vendo or any affiliate or subsidiary is so engaged, in the manufacture and sale of vending machines or any business similar to that now being conducted by the Company.”

In addition to the sales agreement, an employment contract was executed whereby Mr. Stoner would serve Vendo in an executive capacity for five years, or until June 1, 1964, at an annual salary of $50,000. This agreement also contained a noncompetition clause which reads as follows:

“5. During the term of this agreement and for a period of five (5) years following the termination of his employment hereunder, whether by lapse of time or by termination as hereinafter provided, Stoner shall not directly or indirectly, in any of the territories in which the Company or its subsidiaries or affiliates is at present conducting business and also in territories which Stoner knows the Company or its subsidiaries or affiliates intends to extend and carry on business by expansion of present activities, enter into or engage in the vending machine manufacturing business or any branch thereof, either as an individual on his own account, or as a partner or joint venturer, or as an employee, agent or salesman for any person, firm or corporation or as an officer or director of a corporation or otherwise, provided however that the Company, its subsidiaries and affiliates shall be excluded from the restrictions hereof and provided also that Stoner shall be permitted to own, hold, acquire and dispose of stocks and other securities which are traded in the investment security market whether on listed exchanges or over the counter.”

The employment contract provided that Mr. Stoner “shall regulate his own hours of employment and shall determine the amount of time and effort which he shall devote” to Vendo, and that the value of his services are not to be measured by the time and effort he devotes to the business, but by his advice, counsel, know-how and experience. The contract further provided, inter alia, that Vendo “shall have the right to terminate this agreement upon thirty (30) days’ notice in the event of the substantial violation of the terms hereof by Stoner.”

There was evidence offered to show that Mr. Stoner, after the signing of the sales agreement but before the closing of the transaction, had second thoughts about the wisdom of the sale. He made statements to this effect to the business representative of the union for the plant’s employees, intimating at the time that many of the employees would be losing their jobs and that equipment was being moved out of the plant. It does not appear that the union took any action—other than to investigate—as a result of these conversations.

Almost immediately after the take-over by Vendo, several points of friction developed between Mr. Stoner and certain of Vendo’s other executives. Essentially, Mr. Stoner complained that his services were not being utilized, that he was being treated as nothing more than a “figurehead,” and that the procedures and employees of Vendo were ineffectual.

For several years prior to the sale to Vendo, R. W. Phillips (Rod) had been the Stoner plant superintendent, and his son, William Phillips (Bill), had been assistant superintendent. Rod was liaison engineer between the engineering and production departments, and participated in design work on a day-to-day basis. Bill had a degree in aeronautical engineering and Navy training in electronics.

Bill resigned from Vendo in June or July of 1960, ostensibly because he was no longer in line to become the plant manager, and because he purportedly disagreed with Vend'o’s philosophy and attitude concerning product quality. Within two months of his resignation, Bill met with Mr. Stoner and proposed that the latter finance the development by Bill of an electronic coin detecting device which he had conceived, and which would be of considerable value in the vending machine as well as in other industries. That discussion concluded with the agreement that Stoner Investments would pay Bill a salary of $650 per month to develop such a device, and any patents thereon would belong to Stoner Investments. Bill’s father, Rod Phillips, was present at the time of this conversation.

Working primarily in his basement at home, Bill nearly completed the coin detector by the end of 1960. A patent was issued in October of 1961, and was assigned to Stoner Investments. Except for a “breadboard” model, the coin detector was never produced. Bill received a total of $3,250 as salary from Stoner Investments for his work on the coin detector, and in addition was reimbursed nearly $1,000 for expenses.

Rod Phillips also resigned from Vendo in mid-1960, at about the same time as Bill resigned. Rod’s stated reason for leaving was that he resented “spying” on the progress of another company which manufactured slugrejectors. Rod spent approximately six months after his resignation in retirement, and it was during this period of time that his son, Bill, was designing the electronic coin detector with the financial aid of Stoner Investments.

In late 1960 or early 1961, when Bill’s design of the coin detector was virtually completed, Rod approached Mr. Stoner with the request that Stoner provide sufficient funds to enable Rod to engineer and develop a particular type of vending machine. Mr. Stoner agreed to have Stoner Investments make noninterest bearing loans to Rod for that purpose. According to the testimony of defendants, neither Mr. Stoner nor Stoner Investments was to have any ownership or control in Rod’s venture, it being their position that Rod was entitled to this consideration for his many years of loyal service to Stoner Investments. During 1961 and 1962, Stoner Investments loaned Rod Phillips a total of $206,000.

In addition to making the above loans to Rod, Mr. Stoner made available to Rod and Bill in early 1961 an old milk plant building known as the Middle Avenue Building. Rod was charged no rent, but made repairs to the building with materials purchased by Mr. Stoner.

In August of 1961, two other former employees of Stoner Investments—and then employees of Vendo— resigned from Vendo and joined Rod and Bill. Their combined salaries of $1,150 per month were paid by Stoner Investments until December of 1962. One of these men had between fifteen and twenty years of design experience with Stoner Investments prior to the sale to Vendo, and the other had served as a toolmaker.

The vending machine developed by Rod and Bill Phillips was to be used for the vending of candy. There were three characteristics of this machine which contributed to its eventual popularity and acceptance, namely: (1) positive stock rotation, known as first-in first-out, or FIFO, where the first product stocked in the machine would be the first one sold, thus reducing the chance of vending or discarding stale candy; (2) continuous display through a window of the actual product next to be vended; and (3) capacity for stocking mixed products in a single conveyor, and consequent elimination of the usual necessity to sell out the product before restocking with a different product. Although machines having those features had been on the market for many years, none had incorporated all three of the above characteristics, and in fact no practical machine with all these characteristics had ever been developed previously.

It is one of Vendo’s contentions herein that Mr. Stoner’s financial participation in the development of this machine amounted to the appropriation of a trade secret of Vendo. ■

It is uncontroverted that Vendo, before the acquisition of the Stoner plant, had been taking steps with a view toward the development of a FIFO candy vending machine that incorporated a window displaying the actual product to be vended, and which would permit the stocking of mixed products in a single conveyor. The authority for an expenditure on such a project was first assigned by Vendo in December of 1958. This project led to the fabrication of two “developmental mechanisms.” Neither of these models included the vend-the-bar-you-see window, although an artist’s sketch of a complete machine, having such windows in front of each conveyor, was prepared. There was evidence to show that artist’s sketches of Vendo’s contemplated machine were shown to Mr. Stoner and Rod and Bill Phillips in early June, 1959, almost immediately after Vendo’s acquisition of the Stoner plant.

One of these models was exhibited at a products planning meeting at the Stoner plant on August 3, 1959, at which Mr. Stoner and Rod Phillips were present. At that meeting, the Stoner Division sales manager said the machine was deficient in three respects: (1) the product would have to be stocked upside down; (2) the machine could tip over during loading because all of the conveyors would have to be swung out; and (3) production of the machine would be unduly expensive. The minutes of that meeting stated that the Sales Department “feels the objectives of stock rotation and visual display are sound but the particular design in question is not acceptable because of loading and inventory problems.” These minutes went on to state that Vendo’s Research and Engineering Department “is to continue research as to how to basically improve the stock rotation idea so that it can be made practical.”

In January, 1960, Vendo’s Vice-President in charge of Research and Engineering made a handwritten notation on an interoffice memorandum, stating: “I agree on the need for rotation of stock, but not on [this] unit. I think a better one could be devised.” Neither of these models was patented, and a Vendo executive had written patent counsel that “we do not intend to commercialize” these models. In September and October of 1960, Vendo sent both models to Vendo’s “morgue” which, according to our reading of the record, is the destination for nonactive—but not necessarily abandoned—projects.

The machine developed by Rod and Bill Phillips was called the Lektro-Vend machine, and while incorporating the three characteristics of first-in first-out, a vend-the-bar-you-see window, and mixed stock in a single conveyor, it differed in many basic respects from the models developed by Vendo. For example, the Lektro-Vend machine was electrically powered while Vendo’s was to be mechanically powered; Vendo’s machine required approximately 4,000 screws for the shelving mechanism, while the Lektro-Vend machine eliminated these by using a series of L-shaped shelves interconnected with pins; the conveyor in the Lektro-Vend machine moved in a track guided by plastic wheels, while Vendo’s conveyor unitized bicycle chain affair with hooks; and the Lektro-Vend machine was loaded by tilting out the conveyor within the machine’s center of gravity, thus avoiding the objectionable swing-out loading requirement of Vendo’s machine. More significantly, the Lektro-Vend machine was functionally and economically successful, while many undesirable features of the Vendo machine rendered its production impractical.

The first prototypes of the Lektro-Vend machine were exhibited in October, 1962, at a trade show in San Francisco. This machine was accepted so well that another company took its own stock rotation (FIFO) machine off display. In fact, certain officers and directors of Vendo were so impressed with the machine that one of them approached Rod Phillips at the show and discussed the possiblity of Vendo purchasing the machine.

It appears that, prior to the show, Rod Phillips had intended to sell the Lektro-Vend design and tooling, but the industry’s response to the machine led to Rod’s and Bill’s decision to manufacture and sell the machine themselves. After returning from the show, Rod discussed the response to his machine with Mr. Stoner, and invited Stoner to join with him in his plan to manufacture and sell the Lektro-Vend machine generally.

In December of 1962, immediately before the Vendo Board of Directors’ meeting, Mr. Stoner told the Board Chairman that he, Stoner, would like a release from his employment contract, for the reason that he had an opportunity to invest in the Lektro-Vend machine and to participate with Rod Phillips in its manufacture and sale. He was requested to submit his request in writing for the Board to consider. Mr. Stoner made no mention of his previous financial aid toward the development of the Lektro-Vend machine. In short, Mr. Stoner was told that with his capital and experiences, he would be a formidable competitor, and that part of the consideration for the sales and employment contracts was that Vendo would not be competing with Mr. Stoner or his company.

While his release from his contract was denied, he was requested to act on behalf of Vendo in looking into the purchase of the Lektro-Vend machine from the Phillipses. Stoner discussed the matter with Rod Phillips, and then arranged a meeting in January, 1963, which was attended by Stoner, Rod Phillips and certain of Vendo’s officers. The Lektro-Vend machine was demonstrated and explained at that time, with Stoner taking no active part. Although price was not discussed at the meeting, Stoner later reported to Vendo that Rod Phillips was asking $1,500,000. Stoner testified that the Seeburg Corporation had shown an interest in purchasing the LektroVend machine at that price.

Although Stoner recommended that Vendo purchase the machine, Vendo would not agree to pay such an amount. Instead, in March of 1963, in reply to an inquiry from Stoner, Vendo’s Vice-President in charge of operations wrote that Vendo would only pay for out-of-pocket costs, “plus a fair profit to Rod and his associates; taking into consideration the amount of time, money and ingenuity which they had expended on the project, but that it was my feeling that this wouldn’t add up to anything like $1,500,000.”

Back in December, 1962, at about the time that Stoner was asking to be released from his employment contract with Vendo, his sister-in-law, Ruth Netrey, made a loan of $350,000 to Rod Phillips on his personal note bearing 4% % interest. Defendant’s evidence is that Stoner in no way persuaded or influenced Mrs. Netrey to make this loan, which within one year was increased to $525,000. Mrs. Netrey had been one of the shareholders of Stoner Investments at the time of the sale of assets to Vendo, but had since sold her stock in that corporation, as did Mr. Stoner’s mother, leaving only Mr. Stoner and his wife as shareholders of the defendant corporation.

In March or April of 1963, Stoner Investments had completed the construction of a general purpose office and manufacturing building on Sullivan Road in Aurora, where it had owned 370 acres of vacant land. The original purpose for constructing this building was allegedly to enable Stoner to prefabricate homes in the winter and to start the development of an industrial park. Its first and only occupants, however, were Rod and Bill Phillips who used the building for the manufacture of the Lektro-Vend machine. There was evidence tending to show that Stoner and the Phillipses knew before the end of 1962 that the Sullivan Road Plant would be used by them for this purpose.

Admittedly, Mr. Stoner never advised Vendo until the Spring of 1963 as to his arrangements with Bill and Rod Phillips. He testified that while he made no attempt to conceal these arrangements, he did not regard them as being of consequence to Vendo.

The Lektro-Vend Corporation was organized on September 18, 1963, at which time its shareholders and the number of shares owned by each were as follows: Rod Phillips—2,875 shares; Glen Phillips—750 shares; Bill Phillips—1,125 shares; William Callahan (one of the former Stoner and Vendo employees who resigned from Vendo in August, 1961, and helped in the development of the Lektro-Vend machine)—250 shares; Ruth Netrey— 5,000 shares.

On March 21,1964, Stoner Investments contracted with Lektro-Vend Corporation to sell the Sullivan Road Plant to the latter. To finance the purchase, Lektro-Vend made a 100% short-term loan from a Chicago bank, which the bank would do only upon Stoner Investments’ guarantee to repurchase the property in the event of a default. The loan had since been extended on several occasions, with Lektro-Vend paying the interest thereon.

Mr. Stoner’s employment contract with Vendo terminated by lapse of time on June 1, 1964, and was not renewed although Stoner was retained on Vendo’s Board of Directors until the Spring of 1965. In that same month, Mr. Stoner’s wife was issued 5,000 shares of stock in Lektro-Vend Corporation, and in the following month Mr. Stoner himself was issued an additional 5,000 shares. On June 30,1964, Stoner made a personal loan of $100,000 to Lektro-Vend, and this was repaid in 1965 from the proceeds of a $185,000 loan to Lektro-Vend from Stoner Investments. During 1965 and 1966, a total of $402,000 was loaned to Lektro-Vend from Stoner Investments and Stoner Shopping Center, Inc., all evidenced by demand notes bearing 4% % interest.

In March, 1965, Lektro-Vend salesmen reported that Vendo’s salesmen were circulating rumors to the effect that Lektro-Vend was about to go out of business. When this was reported to Stoner, he wrote a letter on LektroVend stationery to fifty vending machine operators. This letter, referred to throughout these proceedings as the “Dear Operator” letter, stated that Stoner was “now interested in the new Lektro-Vend Corp.,” and “if LektroVend can depend on your confidence ... I guarantee that Lektro-Vend Corp. will be here for a very, very long time.”

It appears from the evidence that Mr. Stoner has never been active in the day-to-day management of LektroVend, and that he does not maintain a desk or office on the corporation’s premises. The frequency with which he comes onto the premises varies—sometimes every day for a week, and sometimes not at all for a month. He is, however, consulted on financial and other matters.

Yendo filed its complaint herein on August 10, 1965, charging that Stoner and Stoner Investments breached their respective covenants against competition, which covenants are set forth above. An amendment to the complaint was filed on January 28, 1966, alleging that both defendants stole valuable trade secrets of Vendo, including the design for certain vending machines, which they appropriated for their own use and for the use of LektroVend Corporation. The complaint, as amended, prayed for damages of $1,500,000 and for injunctive relief prohibiting defendants from engaging in the vending machine business. Neither Lektro-Vend nor either of the Phillipses was made a defendant.

At the conclusion of a bench trial, the court entered judgment against Stoner in the amount of $250,000, and against both Stoner and Stoner Investments in the amount of $1,100,000. In addition, both defendants were enjoined from engaging, directly or indirectly, in the business of manufacturing (and, in the case of Stoner Investments, selling) vending machines until June 1,1969 in the United States and in any foreign country in which Vendo was engaged in such business on June 1,1959.

In support of this appeal, defendants urge the following grounds: (1) that Vendo did not possess a trade secret; (2) that in any event there was no appropriation of such a trade secret, assuming it existed; (3) that the covenants against competition are invalid; (4) that in any event the covenants were not violated; (5) that damages were improperly assessed; (6) that the injunctive relief granted was unwarranted because of an insufficient showing of irreparable damage, and because it was vague and beyond the prayer of the complaint; and (7) that the trial court erred in striking the affirmative defenses and counterclaim based on the plaintiff’s alleged violation of the Federal and Illinois Antitrust laws.

The “Trade Secrets”

We agree that plaintiff has not proven the appropriation of a trade secret, if indeed it has been shown that plaintiff even possessed a trade secret. Plaintiff had nothing more than a goal in mind—the goal of economically producing a FIFO machine with a see-the-bar-you-vend feature. However, plaintiff had not discovered a means of achieving this goal, and without this discovery plaintiff had nothing. There was no evidence offered to show that Vendo’s goal or overall desire to produce such a machine was novel. Furthermore, the individual features which Vendo wanted to combine in a single machine were long and widely used in the industry.

If Vendo had discovered the means for achieving its goal, we might well have had a different view as to whether Vendo had a trade secret. But trade secrets evolve from the means—not the end. According to the American Law Institute Restatement, Torts, § 757, Comment b, a trade secret may consist “of any formula, pattern, device or compilation of information . . . .” Schulenberg v. Signatrol, Inc., 33 Ill2d 379, 385, 212 NE2d 865 (1965), cert den, 383 US 959, states:

“The controlling definition of a trade secret in Illinois is supplied by Victor Chemical Works v. Iliff, 299 Ill 532, 540, 132 NE 806, where this court said that it is a secret plcm or process, tool, mechanism or compound known only to its owner and those of his employees to whom it is necessary to confide it.” (Emphasis added.)

We know of no authority for the proposition that an ultimate goal or purpose, as distinguished from the means of achieving it, can be classified as a trade secret. On the contrary, the authorities teach us that the trade secret must be in the plaintiff’s “know-how,” and Yendo simply did not “know how” to construct the particular machine it desired. This is evident from the record, where we see minutes of a Vendo meeting stating that the machine design “is not acceptable because of loading and inventory problems,” and that the corporation “is to continue research as to how to basically improve the stock rotation idea so that it can be made practical.” (Emphasis added.)

Apart from our conclusion that Vendo could not claim a trade secret in its models, the vast difference between these models and the Lektro-Vend machine, in terms of technology and design, is in itself sufficient to preclude recovery on the theory of the appropriation of a trade secret. The more essential differences are set forth above, and the success and acceptance of the LektroVend machine, compared to the unacceptability of Vendo’s, speak for the materiality of these differences. And Vendo’s theory of appropriation can hardly stand in the face of its previous attempts to purchase the Lektro-Vend machine and pay some amount of money for the “ingenuity which [the Phillipses] had expended on the project.” The fact that the Phillipses worked for approximately eighteen months on the Lektro-Vend machine before their prototypes were ready is, in itself, evidence that they did not “steal” Vendo’s methodics.

A final observation should be made on the question of whether defendants appropriated a trade secret. Before such a cause of action will lie, it must be shown that the secret was disclosed to or learned by the defendant while in a position of trust and confidence. Victor Chemical Works v. Iliff, 299 Ill 532, 548, 132 NE 806 (1921). In our opinion, the record before us falls far short of showing wherein the Vendo design was disclosed to or learned by Mr. Stoner. Sometime after the acquisition of the Stoner plant, Mr. Stoner was shown pictures of a manual FIFO candy machine which did not have a stock display window. Stoner replied that this machine was similar to an Orange Crush machine which his corporation had built in 1940. While Mr. Stoner was present at the products planning meeting on August 3, 1959, where the Vendo model was shown, he was at the meeting for no longer than a few minutes. One witness, who is no longer employed by any of the parties, testified that Mr. Stoner was at that meeting for somewhere between thirty seconds and three minutes. It further appears that Mr. Stoner’s presence at the meeting was for other purposes, and that the meeting was in fact suspended during his brief appearance. In the words of a Vendo employee, it was then and there that the Vendo machine was “kind of” explained to Stoner.

It cannot seriously be contended that these brief glimpses and glance^ could be the foundation for the development of a revolutionary design that would take several skilled people eighteen months to develop. The only other evidence of disclosure relates to the Phillipses, not to Stoner. Thus, Rod and Bill Phillips were shown artists’ sketches of the machine at about the time of the acquisition, or about one year prior to the Phillipses resignations from Vendo, and fully 1% years before Rod began work on what was to become the Lektro-Vend machine. While Rod was at the products planning meeting on August 3, 1959, he was there only to help answer the question of whether such a machine could be produced at the Stoner plant. Neither the Phillipses nor the LektroVend Corporation was made party to this suit. Although that, standing alone, would be no defense to Stoner, for one may not employ others to appropriate trade secrets which he himself might not appropriate (e. g., Colgate-Palmolive Co. v. Carter Products, Inc., 230 F2d 855, 864 (4th Cir 1956), cert den, 352 US 843 (1956), reh den, 352 US 913 (1956), we simply fail to see where sufficient information was disclosed to or learned by the Phillipses to enable them to design and develop the LektroVend machine. The evidence does not indicate that they were shown measurements, tolerances, materials, and the like, nor is there evidence that they made or were given pictures or drawings of what they were briefly shown.

The Covenants Not To Compete

Defendants next contend that the covenants against competition by Stoner and Stoner Investments are invalid and unenforceable as constituting unreasonable restraints of trade, and that these covenants, even if valid, were not breached by defendants.

The general rule is that a covenant against competition, ancillary to the sale of a business or an employment contract, will be upheld if the restraint on trade is reasonable in terms of time and territory, with the question of reasonableness depending on the circumstances of each case. E. g., Storer v. Brock, 351 Ill 643, 184 NE 868 (1933); Parish v. Schwartz, 344 Ill 563, 176 NE 757 (1931); Lanyon v. Garden City Sand Co., 223 Ill 616, 79 NE 313 (1906); Andrews v. Kingsbury, 212 Ill 97, 72 NE 11 (1904); Union Strawboard Co. v. Bonfield, 193 Ill 420, 61 NE 1038 (1901); Lanzit v. J. W. Sefton Mfg. Co., 184 Ill 326, 56 NE 393 (1900); Hursen v. Gavin, 162 Ill 377, 44 NE 735 (1896). This general rule has been interpreted in Illinois by a line of cases beginning with Parish v. Schwartz (supra), to mean that any such restraint covering the entire State of Illinois is, on its face, unreasonable and therefore void. The rationale of this rule is that no person should be required to leave the state in order to pursue his regular occupation, nor should the people of the state be totally deprived of his labors. It is on this proposition which defendants rely.

However, in spite of the widespread acceptance of this general rule, the courts of this and other jurisdictions have come to recognize an exception, which we believe applicable here, where the restraint lasts during the contractual relationship of the parties. Stated differently, the territory covered by a covenant against competition, otherwise unreasonably broad, will not invalidate the covenant to the extent that it exists during the terms of the employment, lease, franchise agreement, etc.

The earliest case known to us which recognizes this exception to the general rule is Harrison v. Glucose Sugar Refining Co., 116 F 304 (7th Cir 1902). There the defendant had agreed that during the term of his employment he would not work for any glucose manufacturer other than the plaintiff within a 1,500 mile radius of Chicago, an area encompassing practically the entire United States. The court held the covenant valid and enjoined its violation. In distinguishing this inrterm covenant case from those involving post-term covenants— i. e., covenants not to compete after employment or after the sale of a business—the court said (at p 310) :

“Here the restriction is limited to the period of service engaged for. The appellant left without cause and to enter the service of a rival. There was no acquiescence by appellee .... Clearly, under such circumstances no public policy would be violated in upholding the covenant. He is not deprived of the opportunity to obtain the means of subsistence or of giving to the public the benefit of his skill in the business to which he has been accustomed. He has only to perform the duty which he engaged to perform to render himself and his family comfortable. We know of no public policy which requires us to sanction the bald violation of a contract lest the public should be deprived of the peculiar skill of the appellant because he will not exercise that skill where he has engaged to exercise it.”

The distinction between in-term and post-term covenants was similarly recognized in Saul v. Thalis, 156 F Supp 408, 411 (DCDC 1957), where the court stated:

“. . „ this case involves an agreement of employment for a fixed term containing a covenant which restricts the employee from engaging in a competing business during the term of employment fixed by the agreement. The validity of such covenant cannot be questioned so long as the employee remains in the employ of the employer.”

In Good v. Modern Globe, Inc., 346 Mich 602, 78 NW2d 199 (1956), an employment contract provided that the employee, “for the above specified period [the term of employment] . . . will not, without prior written consent of the company, become employed, directly or indirectly, by any manufacturer of knitted goods or products presently manufactured by the company. . . .” The Michigan Supreme Court sustained the validity of this covenant, even though Michigan had a sweeping statute invalidating all contracts not to engage in business. The court stated (at p 204):

“The plain language of this contract indicates that it is a contract of employment, not a contract whereby Good undertook not to engage in employment. A provision therein which forbade Good to become employed by any knitted goods manufacturer of products competitive to Globe’s, is a provision which any employer would certainly have a right to contract for from any employee for the duration of his employment. The contract in question is not void under CL 1948, § 445.761, Stat Ann 28.61.” (Emphasis supplied.)

In 1963, this court was squarely faced with the question of whether to follow or reject the “in-term—post-term” distinction, and we chose to follow it. McDonald’s Systems, Inc. v. Sandy’s, Inc., 45 Ill App2d 57, 195 NE2d 22 (1963). In McDonald’s, the individual defendants had been granted a ten-year franchise by the plaintiff to operate a single drive-in restaurant in Urbana, Illinois. Paragraph 8 of the franchise agreement provided essentially as follows:

“During the effective term of this agreement, Second Party [defendants] shall not, except with the consent of First Party [plaintiff], engage in any business the same as or similar to the business covered by this agreement at any place other than the premises heretofore described in the State in which said premises are located or at any place in a state contiguous to said State . . . .” (Emphasis added.)

Notwithstanding this covenant, the defendants, during the term of the franchise, organized a corporation to own and operate a similar drive-in restaurant in Peoria. In a suit brought by the plaintiff to enjoin the continued violation of the covenant and for damages, the trial court held that the restraint was unreasonably broad and that the covenant was therefore void. The opinion of this court reviewed the authorities discussed above (Harrison v. Glucose Sugar Refining Co. (supra); Saul v. Thalis (supra), and Good v. Modern Globe, Inc. (supra, at p 75)) and reversed the trial court, stating:

“Under these and other authorities the extent of the territorial restriction is a factor which affects the validity of a post-term covenant only. In the instant case the covenant is an in-term, not a post-term, covenant, and as long as appellees seek to avail themselves of the beneficial provisions of their franchise contract, they should not be permitted to dis regard, or refuse to abide by the several obligations they assumed. The contract was not of unlimited duration, and when the franchise term is ended, either by cancellations, or by the expiration of time, appellees are free to engage in similar business elsewhere without any franchise. There is nothing illegal in such an agreement, and the obligations of the respective parties should be respected and enforced.” (Emphasis added.)

Other Illinois decisions have recognized the distinction between in-term and post-term covenants not to compete. In Ellis Electrical Laboratory Sales Corp. v. Ellis, 269 Ill App 417 (1933), the court upheld the agreement of a supplier of goods not to sell such goods to others during the term of the agreement. In Southern Fire Brick & Clay Co. v. Garden City Sand Co., 223 Ill 616, 79 NE 313 (1906), the Illinois Supreme Court upheld a lessor’s covenant not to compete with his lessee during the term of the lease, notwithstanding that the restriction was statewide. In Match Corp. of America v. Acme Match Corp., 285 Ill App 197, 1 NE2d 867 (1936), the court enforced the defendant’s promise that it would not, during the term of the contract, sell book matches in competition with the plaintiff, with no area limitation.

Under the precedent thus established, we are constrained to hold that the covenant before us is valid and enforceable. The covenant of Mr. Stoner was unquestionably in-term during the first five years, since that was the duration of his employment contract with Vendo. It was within that period of time that he violated his covenant. During the post-employment period, or the additional five years, Stoner’s activities were simply an affirmation of his prior violation—a retention of the fruits of Ms breach—and upholding his post-employment activities would be tantamount to our sanctioning his earlier breach. That the post-term aspects of the covenant might, if standing alone, be unnecessarily broad, is therefore irrelevant to the disposition of this appeal. In any event, Stoner Investments, the corporation through which Stoner chose to exercise his breach, was his alter ego, and Stoner Investments entered into a covenant of its own which we characterize as in-term. The sale of assets to Vendo contemplated a ten-year relationship with Stoner Investments as well as with Mr. Stoner. The contract required Vendo to pay Stoner Investments, for a period of ten years from January, 1959, all profits in excess of $250,000 earned by Vendo from the assets sold. In addition, Stoner Investments was to be paid during this same ten-year period 25% of all monies Vendo was to receive from foreign production of products then under development by Stoner Investments. As we said in McDonald’s (supra at p 75), during that period of time which defendants “seek to avail themselves of the beneficial provisions of their . . . contract, they should not be permitted to disregard or refuse to abide by the several obligations they assumed.” Surely under these facts, and in view of the complete ownership of Stoner Investments by Stoner and his wife, and Stoner’s complete dominion of the corporation, we must consider the covenants of each to be coextensive to be meaningful, In short, the sale of assets to Vendo represented a transaction which the parties contemplated would take ten years to consummate. The ten year restraints are therefore “in-term” under the teaching of McDonald’s and other cases, and are valid and enforceable.

Defendants argue that the noncompetition clauses were not in fact violated by their conduct. They reason that the conduct complained of consisted only of paying salaries, making loans, furnishing sites and facilities, and holding stock, and that such activities, since not specifically prohibited, are authorized. Indeed, cases are cited for the proposition that the lending of money to plaintiff’s competitor does not violate the lender’s covenant not to compete (Battershell v. Bauer, 91 Ill App 181, 182 (1900); Sineath v. Katzis, 218 NC 740, 12 SE2d 671, 681 (1941); Gallup Elec. Light Co. v. Pacific Improvement Co., 16 NM 86, 113 P 848, 850 (1911)), that the granting of a lease to a competitor is likewise not tantamount to engaging in competition (Wineteer v. Kite (Mo App), 397 SW2d 752, 759 (1965); Ericson v. Jayette, 149 Fla 82, 5 So2d 453, 454 (1942)), and that both lending and leasing is not a violation of such a covenant (McKeighan Wachter Co. v. Swanson, 138 Wash 682, 245 P 10, 11 (1926)), affd 141 Wash 694, 250 P 353.

Defendants, however, have done considerably more than merely make loans and leases to a competitor. They literally paid the salaries of the competitor and its employees, they furnished a building rent-free and guaranteed the loan by which the competitor could purchase another building from them, they took a sizeable amount of stock in the competing venture within days of the time they thought they could legally do so, and they made several large loans at no or low interest. Clearly, these activities show that defendants were closer than arm’s length to the development of the Lektro-Vend machine. To suggest otherwise attributes a great deal of naiveté to this court. Even the cases cited by defendants are expressly limited to those situations where the defendant lender or defendant-lessor does not encourage and has no interest in the business of the competitor. E. g., Gallup Elec. Light Co. v. Pacific Improvement Co. (supra at p 851); Sineath v. Katzis (supra); McKeighan Wachter Co. v. Swanson (supra); Wineteer v. Kite (supra).

We sustain the trial court’s finding that defendants’ activities amounted to the direct or indirect entering into or engaging in the vending machine business.

The Assessment of Damages

As noted above, the trial court entered judgment against Stoner and Stoner Investments for $1,100,000, and against Stoner alone for $250,000. The larger judgment was based upon evidence tending to show that the value of the Lektro-Vend machine was approximately $1,500,000 that Stoner himself believed this to be what the machine was fairly worth and that the approximate cost necessary to develop such a machine would be $400,000. The machine thus represented a potential profit to its developers, as it then stood, of $1,100,000. The $250,000 judgment represented a return of the entire salary Stoner received during his five years of employment by Vendo.

Although the judgment order did not specifically apply these judgments between the two theories of recovery set forth in Vendo’s complaint, as amended, the briefs and arguments of the parties in this court have treated the $1,100,000 judgment as arising out of the trade secret theory, and the $250,000 as applicable to the breach of the covenants not to compete. We agree that this appears to have been the reasoning of the trial court.

Our conclusion that Vendo has not proven a theft or appropriation of a trade secret precludes any recovery on that theory. We are thus limited to ascertaining the proper measure of damages for the breach of the covenants not to compete.

At the outset, we agree that such a breach of Stoner’s fiduciary undertaking as an employee in the instant case requires a forfeiture of salary during the period that the breach was occurring. Ely v. King-Richardson Co., 265 Ill 148, 153, 106 NE 619 (1914); National Lock Co. v. Aldeen, 271 Ill App 87, 40 (1933); Evangelista v. Queens Structure Corp., 27 Misc2d 962, 212 NYS2d 781 (1961); Harry R. Defler Corp. v. Kleeman, 19 App Div2d 396, 243 NYS2d 930, 938 (1963). In fact, none of the parties seriously question this general rule, their main dispute being to define the period of the breach. Plaintiff contends that the breach began immediately after the signing of the sales and employment agreements, but before the take-over, when Stoner spoke to the business representative of the union representing the plant employees for the alleged purpose of frustrating the sale. Plaintiff thus urges that all of Stoner’s salary during his five-year employment, or $250,000, should be recoverable. Defendants, on the other hand, contend that even if a breach existed, it cannot be traced prior to about January, 1961, the time when defendants began making loans to Rod Phillips. It is our opinion that defendants’ view is the more reasonable in this respect.

Nothing came of Stoner’s brief conversations with the union representative, even construing them in their worst light, and we attach no legal significance to them. We have more trouble justifying the events of mid-1960, when Bill Phillips began receiving financial aid from defendants to develop his electronic coin detecting device. Even here, however, we cannot conclude that Stoner’s activities were a part of his overall breach. A coin detecting device has so many uses outside the vending machine industry (slot machines, coin counters for busses and telephone companies, toll road collectors, parking meters, etc.), that its development is not necessarily a step toward “engaging” in such industry. In any event, this detector was never built or put to use, and its development, as far as the record discloses, did not contribute materially to the evolution of the Lektro-Vend machine. Defendants’ breach, therefore, originated at the end of 1960 or in the beginning of 1961, when the extensive loans to Rod Phillips started, when defendants began paying salaries to Rod Phillips’ employees, when the Middle Avenue Building was made available for the Phillips’ use, and, in short, when the first breaths were blown into the Lektro-Vend machine.

When did the breach end? Defendants say the breach, assuming it existed at all, ended in December, 1962. But defendants would have us overlook the fact that in 1963 they gave the Phillipses the use of the Sullivan Road Plant, and in 1964 they in effect guaranteed the loan which enabled the Phillipses to purchase this plant. This transaction was completed within a few weeks of the end of Stoner’s employment contract.

In view of the foregoing, we are of the opinion that the defendants’ breach lasted throughout 1961, 1962, 1963, and through May, 1984, a total of approximately three years and five months. Inasmuch as this cause will be remanded for reasons stated below, the trial court will be in a position to make a more precise determination as to the period of the breach and salary forfeiture, having this opinion in mind.

In addition to the recovery of the salary paid Stoner during the breach, Vendo would be entitled to recover any damages to its business occasioned thereby. This would be the measure of lost profits to Vendo during the period of the breach, plus the diminution of its business at the end of the period covered by the covenants. Mirkovich v. Maravich, 206 Ill App 463 (1917) (Abst). Other Illinois decisions holding that the measure of damages in such a case is the provable loss to the covenantee, and not the gain accruing to the covenantor by reason of his breach, include Henry’s Drive-In, Inc. v. Anderson, 37 Ill App2d 113, 125, 185 NE2d 103 (1962); Stewart v. Challacombe & Ramsey, 11 Ill App 379, 383 (1882); Bauwens v. Goethals, 187 Ill App 563, 567, 568 (1914). See also the annotation in 127 ALR 1152 (1940), where cases from all jurisdictions are cited in support of this general rule.

Conceding the difficulty of ascertaining such damages, we repeat what was said in Stewart v. Challacombe & Ramsey (supra, at p 382):

“This difficulty [of ascertaining damages] has long been recognized, and it is for this reason that courts of equity interfere by injunction to restrain parties from entering into trade in violation of such contracts, and for the same reason it has become usual to insert in such agreements a sum certain to be paid in case of violation, as liquidated damages. Such considerations, however, cannot authorize a change of the fundamental rules of law. As was said in Terry v. Eslora, 1 Porter, 273, such difficulties ‘are intrinsic in the subject about which the parties have chosen thus loosely to contract.'"

The foregoing language was cited favorably in Bauwens v. Goethals (supra, at p 569), where the court added:

“A party may not sell a prospect for a valuable consideration received and on breach of his contract defend on the ground that the subject-matter is of too uncertain value to permit its measurement in a court of law.55

Applying these precedents to the case before us, we see that the value of the Lektro-Vend machine, which the trial court found to be $1,100,000 after deducting estimated development costs, is neither an element nor a yardstick of damages for a breach of the noncompetition covenants. While this figure may represent the gain to Stoner and his associates, it does not necessarily reflect the damage to the plaintiff. We hold instead that Vendo should be permitted to recover an amount equal to the net profits it lost and might reasonably be expected to lose, plus the amount by which the value of its business will have been diminished as of June 1, 1969, because of defendants’ wrongful competition.

On remand, the trial court should determine the extent of these damages. To the extent that the record is wanting of proof on this issue, the court below will entertain further evidence of such damages. A similar situation developed in the appeal of Henry’s Drive-In, Inc. v. Anderson (supra, at p 128), where it was said:

“Where a material question is in controversy upon a material issue and the record discloses that all the evidence on that issue has not been produced, this court has the power to reverse the judgment and remand the cause for the taking of further evidence, on the part of either or both of the parties, upon the issues. [Citing cases.] In this case the judgment must be reversed and the cause remanded to the trial court in order that loss of net profits may be proved.”

Defendants argue that no damages whatsoever can be assessed against Mr. Stoner, even if he were found to have breached a valid noncompetition covenant, because the employment contract provided that Yendo “shall have the right to terminate this agreement upon thirty (80) days’ notice in the event of the substantial violation of the terms hereof by Stoner.” Thus, defendants maintain that this provision constitutes an implied waiver by Vendo of its right to damages in the event of a breach, and that Vendo in effect agreed that its only remedy for a substantial breach would be termination of the employment contract. We cannot accept this argument. We see nothing in the contract to suggest that Vendo intended to waive its remedial rights by expressing its right to terminate an employment contract breached by its employee, a right that it would have even without such a provision. Suppose Stoner had literally stolen a large amount of cash from Vendo; would defendants argue that Vendo’s only remedy would be to discharge Stoner, and that it would have no right to recover the stolen cash ?

The Injunctive Eelief

The injunctions granted below restrained Stoner and Stoner Investments “from engaging, directly or indirectly” in the vending machine business until June 1, 1969, in the United States or any foreign country in which Vendo engaged in such business as of the date of the acquisition of the Stoner plant.

In opposition to this injunctive relief, defendants first argue that there were no allegations or proof as to Vendo’s irreparable damage. As respects defendant Stoner, however, we believe a sufficient allegation of irreparable damage is made in paragraph 9 of the complaint, which provides:

<s9. That unless restrained by an Injunction of this Court, the defendant, Harry B. Stoner, will continue at his engagement in the foresaid enterprises and cause continuing irreparable damages to the plaintiff, The Vendo Company, and will cause the plaintiff irreparable damages in the future.”

The complaint also prays for injunctive relief against defendant Stoner.

On the other hand, Count II of the complaint, directed against Stoner Investments, is totally silent both as to an allegation of irreparable damage and as to a prayer for injunctive relief. As long as decisions of this court have been reported, it has been held that “a party . . . seeking relief by way of injunction, must specifically pray for such relief, otherwise the court will not aid him.” Willett v. Woodhams, 1 Ill App 411, 413 (1877). Inasmuch as plaintiff has made no motion to amend either the allegations or the prayer of its complaint in these respects, the court erred in ordering an injunction against the corporate defendant.

As against the individual defendant, Mr. Stoner, we conclude that the injunctive relief was justified. The evidence showing that Lektro-Vend machine’s impact on the vending machine industry, coupled with the proof of Stoner’s influence in the development of that machine, is ample to warrant the finding, implicit in the issuance of the injunction, that Vendo suffers actual or threatened irreparable injury from Stoner’s wrongful activities. Further, we are of the opinion that the scope of the injunction granted is reasonable in light of the evidence adduced at the trial, and is consistent with the allegations and prayer of the complaint. The restraint imposed by the injunction is no more broad than the restraint imposed by Stoner’s employment contract, and since we have already concluded that the latter is reasonable in view of the facts before us, we must conclude that the injunction is equally reasonable.

In any event, the injunction is not now in force by reason of the failure to file a bond, and by its terms is to terminate on June 1, 1969. In these circumstances, further comment on this aspect of the appeal is at best gratuitous.

The Antitrust Defenses and Counterclaim

By way of affirmative defense, it was alleged that the contracts sued upon violated the Illinois and Federal Antitrust laws and were therefore invalid and unenforceable. Defendants also counterclaimed under the Illinois Antitrust laws for treble damages. The trial court, reasoning that a state court has no jurisdiction to hear a federal antitrust defense, struck the defense founded on the federal statutes. The defense and counterclaim based on the Illinois Antitrust law of 1891, which was in force at the time of the contract between the parties, was stricken on the theory that the statute related only to agreements to fix prices and production, neither of which was alleged in these proceedings, and also because the commerce involved was interstate rather than intrastate. The 1965 Illinois Antitrust law was held inapplicable for the additional reason that it had not been enacted until after execution of the agreements sued upon.

In our review of the striking of these pleadings, we shall consider first the defense asserting the federal laws, and thereafter the defense and counterclaim based on the Illinois statutes.

The Federal Antitrust Defense

It was held below that the Illinois courts are without jurisdiction to consider a defense created by the federal antitrust statutes. We are aware of no Illinois precedent which would support this holding. On the contrary, it appears that the Illinois courts have on more than one occasion passed upon the merits of a defense based on the federal antitrust laws.

In Corn Products Refining Co. v. Oriental Candy Co., 168 Ill App 585 (1912), a contract provided that the plaintiff would, on December 31, deliver a price rebate to the defendant if the latter purchased all of its annual requirements of unmixed corn syrup from the plaintiff. On December 24, the defendant unilaterally deducted the amount of such rebate from a payment due plaintiff. The plaintiff brought suit for the amount of the deduction, alleging that the defendant had purchased certain of its syrup requirements from others, and that in any event the rebate was not earned until December 31. As a defense, defendant alleged that the plaintiff was a monopoly in restraint of trade in violation of federal and Illinois law. Although affirming a decision in favor of the plaintiff, the court observed at page 589:

“. .. if it be a fact that defendant in error was and is an unlawful combination and had violated the Federal Anti-Trust Laws, as charged by plaintiff in error, such fact would not defeat the defendant in error in its suit for the recovery of the purchase price of property sold by it under a contract collateral to such wrong committed by it. In order for such a defense to prevail, the contract sought to be enforced must have been made to further the objects of the illegal combination. This was the rule under the common law, and it is also the rule under The Federal Anti-Trust Law, as declared by the Federal Courts, and by those decisions the courts of this state are bound.”

The holding of the Corn Products case is that where the contractual provision sued upon is itself a violation of the federal statutes, the Illinois courts will entertain such a defense, but that the antitrust defense does not afford a defense where it is collateral to the provision sued upon. In any event, the mere fact that the defense is predicated on the federal statutes does not in itself deprive the state court of jurisdiction to hear and pass upon it.

Merchants Service Corp. v. Libby, McNeill & Libby, 314 Ill App 121, 40 NE2d 835 (1942), is another case supporting our view that the court below erred in striking the federal antitrust defense on the pleadings. There, in a suit for unpaid brokerage commissions, the defense asserted that the payment of the commissions would violate the Eobinson-Patman Act, the federal law prohibiting certain pricing discriminations. While the contract between the parties predated the federal act, the sales giving rise to the disputed commissions were made after the legislation. The court stated that the principal question was the applicability of the statute where the sales contracts were initiated before and the sales completed after the effective date of the act. After holding that Congress intended to cover such transactions, and that this would not violate the Constitutional prohibition against the impairment of contracts, the court reversed the trial court and entered judgment in favor of the defendant, saying at page 129: See also, Cummings-Landau Laundry Mach. Co. v. Koplin, 316 Ill App 306, 44 NE2d 613 (1942) (Abst), affd in part and revd in part on other grounds, 386 Ill 368, 54 NE2d 462 (1944).

“. . . defendant could not pay and plaintiff could not receive or accept the commissions or price discounts for which this action is brought without violating the plain provisions of the Eobinson-Patman Act.”

On the strength of the foregoing Illinois authorities, in opposition to which the plaintiff has not cited a single Illinois case, we hold that the trial court erred in striking the federal antitrust defense without a hearing. Plaintiff’s reliance on Bruce’s Juices, Inc. v. American Can Co., 330 US 743 (1947), is misplaced, since that decision in no way considered a state court’s jurisdiction to hear and adjudicate a federal antitrust defense to a contract action. Instead, that case dealt only with the specific remedies afforded by the Robinson-Patman Act, and in no way distinguished between the jurisdiction of the federal and state courts.

The Illinois Antitrust Defenses and Counterclaim

The principal question here is not whether the Illinois Antitrust laws have been violated, but instead whether the interstate nature of the parties’ businesses renders these state laws inapplicable under the doctrine of federal preemption. If the question be resolved in the negative, it would be necessary to consider the merits of the defenses and counterclaim based thereon.

We believe that Kosuga v. Kelly, 257 F2d 48 (7th Cir 1958), affd 358 US 516 (1959), rehearing den, 359 US 962, is dispositive of this question in favor of plaintiff. In Kosuga, the plaintiff brought suit for the purchase price of onions sold by it to the defendant. The allegation that the contract violated the Illinois Antitrust laws was pleaded as an affirmative defense. The District Court struck this as well as other defenses, and entered judgment in favor of the plaintiff. In affirming the striking of this defense, the Court of Appeals announced at page 55:

“The Illinois Act as the substantive law of the Staie is applicable only to intrastate commerce. Defendant apparently so recognizes and argues that such commerce was involved inasmuch as the contract of sale was made and was to be performed in the State of Illinois. Defendant makes this argument in spite of the frequent allegations in Ms pleadings that 'said onions which were the subject of said agreement and contract were a part of interstate commerce.’ In 15 CJS Commerce § 133(b), it is stated that ‘state anti-trust laws do not apply to transactions involving interstate commerce . . . It is hardly open to doubt but that the transaction in issue involved interstate commerce. It is, therefore, our view that the Illinois Act is without application (Emphasis added.)

Nowhere have defendants pleaded or argued that the commerce involved here is anything but interstate. Indeed, the business covered by the contracts before us is not only interstate, it is international. It follows, under the doctrine announced in Kosuga, that the trial court properly struck the affirmative defenses and counterclaim founded on alleged violations of the Illinois Antitrust laws.

It should be noted that defendants attempted without success to distinguish Kosuga by arguing in their brief that “the only reason the Seventh Circuit held the Illinois Anti-Trust Act inapplicable was because it was not pleaded as a defense to the action.” (Emphasis in original.) Not so. The opinion of that court specifically states in at least two passages that the defendant’s reliance on the Illinois Antitrust laws was before the court by way of “affirmative defense.” (See pages 50, 55.) We read nothing in the opinion to suggest that this defense was not pleaded, contrary to defendants’ assertion without citation.

Our conclusion that the Illinois Antitrust laws are inapplicable renders unnecessary any discussion as to the interpretation of these laws and the remedies which they provide either by way of counterclaim or affirmative defense.

For the above reasons, the judgment of the trial court is affirmed in part, reversed in part, and remanded for further proceedings consistent with the views expressed herein.

Affirmed in part, reversed in part, and remanded.

MORAN, P. J. and ABRAHAMSON, J., concur.

       Mich Stats Ann § 28.61 (1948): “All agreements and contracts by which any person, co-partnership or corporation promises or agrees not to engage in any avocation, employment, pursuit, trade, profession or business, whether reasonable or unreasonable, partial or general, limited or unlimited, are hereby declared to be against public policy and illegal and void.” (Emphasis added.)


author: GOLDENHEESH, P. J.

text:
    American Device Manufacturing Company, a Missouri Corporation, Plaintiff-Appellee, v. International Association of Machinists, District No. 9, an Unincorporated Labor Organization, Local 673, International Association of Machinists, an Unincorporated Labor Organization, Roy B. Hawkins, et al., Defendants-Appellants.
    Gen. No. 68-24.
    Fifth District.
    January 30, 1969.

      Strubinger, Burke, Keller & Davis, of Belleville, for appellants.
    Stephen W. Skrainka, Huseh, Eppenberger, Donohue, Elson & Cornfeld, of St. Louis, Missouri, and David B. Stutsman and Walker & Williams, of East St. Louis, for appellee.
   GOLDENHEESH, P. J.

Defendants, Paul Castens, Adolph Heitman, Paul Zimmer, Eonald Jones, Claude White, Louis Karr, and Martin Wolters “individually and as representatives of the class consisting of all of the members of District 9 as to whom there was a common question of law or fact affecting the several rights of plaintiff and common relief was sought by plaintiff” appeal from the judgment of the Circuit Court of Eandolph County. The judgment order provides:

“On motion of plaintiff, the controversy herein having become moot by virtue of the settlement of the strike, the restraining order herein having been properly issued, and defendants having suffered no costs or damages by its issuance, it is hereby
“OEDEEED, ADJUDGED AND DECEEED:
“1. Plaintiff’s complaint is hereby dismissed without prejudice at plaintiff’s costs.
“2. The temporary restraining order heretofore issued in the above action on August 25, 1966 is hereby dissolved.
“8. The bond heretofore filed in this action on August 25, 1966 is hereby cancelled and the principal and surety thereon are hereby discharged and released in full.
“4. The motion of certain defendants to dissolve the temporary restraining order and the suggestion of damages are hereby denied.”

The “motion of plaintiff” referred to in the order was made orally at the time the court heard argument on defendant’s Motion to Dissolve Temporary Injunction and Suggestion of Damages.

Defendants contend (a) that under the provisions of chapter 48, section 2a, 111 Rev Stats, the trial court was without jurisdiction to issue the restraining order enjoining the strike and picketing, because they grew out of a dispute concerning terms or conditions of employment; (b) under the doctrine of preemption as developed under the Norris-LaGuardia Act (29 USCA 101, et seq.) and the Labor Management Act of 1947 (29 USCA 141, et seq.), Federal substantive law is here applicable, and Federal substantive law does not permit issuance of a restraining order prohibiting a strike and picketing, even though a breach of a “no-strike” provision of a labor management contract is alleged; (c) the court erred In finding the issues to be moot and in denying defendants relief upon their Suggestion of Damages.

Plaintiff contends (a) that regardless of its jurisdiction. to issue the restraining order, the trial court did not err In denying defendants’ Suggestion of Damages; (b) chapter 48, section 2a, Ill Rev Stats does not deprive the circuit court of jurisdiction to grant a temporary restraining order; (c) the Norris-LaGuardia Act has no application to this case.

Plaintiff’s verified complaint, filed August 25, 1966, alleges its engagement in interstate commerce, defendant’s existence as a labor union, and its selection and designation as exclusive representative of plaintiff’s production and maintenance employees; certain defendants have participated in and encouraged an unlawful strike; the execution of a collective bargaining agreement presently in force and effect; the grievance procedure therein contained is the sole and exclusive method of determination of grievances; a dispute between the parties with respect to the method of handling grievances was submitted to arbitration, the arbitrator sustained the position of plaintiff, and denied the contentions of defendants; the calling of an “illegal and wildcat strike” in violation of the “no-strike” provision in the collective bargaining agreement; the commencement of, and persistence in “intensive picketing” with harassment of delivery personnel and applicants for employment, for the purpose of forcing plaintiff to reinstate a discharged employee (defendant, Martin Wolters), without resort to the grievance procedure provided in the agreement; plaintiff is unable to manufacture and deliver its products and cannot fulfill its existing contracts; its goodwill, competitive position and volume are being permanently and irreparably damaged; it is without an adequate remedy at law. It contains a sufficient allegation under chapter 69, section 3, Ill Rev Stats and prays the issuance of a temporary restraining order, an injunction, and further equitable relief. It states further that no monetary damages are sought.

On the same day the court, without notice, and upon presentment and approval of a bond in the amount of $1,000, issued a restraining order. In the order the court directed the defendants to appear on September 2, 1966, and show cause why a temporary injunction should not be issued.

Defendants-appellants filed a motion to dismiss the complaint, and an answer. No pleadings were filed for any of the other defendants. Approximately one year later, defendants-appellants filed a “Motion to Dissolve Temporary Injunction and Suggestion of Damages.”

Recent decisions of the Supreme Court hold clearly and unequivocally that an action for violation of a contract between an employer and a labor organization may be brought in either state or federal courts. Humphrey v. Moore, 375 US 335, 84 S Ct 363; Smith v. Evening News Ass’n, 371 US 195, 83 S Ct 267. It appears equally clear that the anti-injunction provisions of Norris-LaGuardia (29 USCA 104) apply to federal, but not to state courts. Ford v. Boeger, 362 F2d 999; American Dredging Co. v. Local 25, Marine Division, International Union Operating Engineers, 338 F2d 837. The parties agree that Federal substantive law applies, and the issues remaining for determination are whether, because of section 2a of chapter 48, the circuit court was without jurisdiction to issue the restraining order, and whether it correctly denied defendants’ Suggestion of Damages.

Article VI, section 9 of the Constitution of Illinois confers upon the circuit courts “unlimited original jurisdiction of all justiciable matters.” Statutory provisions contained in the Injunction Act (c 69, Ill Rev Stats) and section 2a of chapter 48 limit the powers of the circuit court to issue injunctions, but do not deprive it of jurisdiction so to do. In contract, Norris-LaGuardia (section 104) provides “No court of the United States shall have jurisdiction . . . .”

We have examined the authorities (see Ossey v. Retail Clerks’ Union, 326 Ill 405, 158 NE 162; Fenske Bros., Inc. v. Upholsterers’ International Union of North America, 358 Ill 239, 193 NE 112) and conclude that section 2a does not prohibit the enjoining of an illegal act, or an act which gives rise to a liability. (Fenske Bros., at p 258.) That this was its intent is further demonstrated by the fact that in Preble v. Architectural Iron Workers’ Union of Chicago, 260 Ill App 435, decided subsequent to the enactment of section 2a, the Appellate Court affirmed a decree which enjoined the calling of a strike in violation of a “no-strike” clause in a collective bargaining agreement.

Under Local 174, Teamsters, Chauffeurs, Warehousemen and Helpers of America v. Lucas Flour Co., 369 US 95, 82 S Ct 571, it was held that a strike called by a labor union to settle a dispute involving the discharge of an employee, which the collective bargaining agreement provided should be settled exclusively and finally by compulsory arbitration, constituted a violation of the agreement, rendering the union liable for business losses caused by the strike, even though the agreement did not contain a “no-strike” clause covering the subject of the dispute. Here, the complaint alleges that the contract, in addition to providing that the grievance procedure is the sole and exclusive method of settling disputes, contains a “no-strike” clause.

Applying Federal substantive law, as we are required to do, we hold that the complaint states a cause of action for breach of the collective bargaining agreement. The allegations of the verified complaint are sufficient to support a decree enjoining the acts complained of, and the provisions of section 2a are not applicable.

In Terminal R. Ass’n of St. Louis v. International Ass’n of Machinists, 338 Ill App 288, 77 NE2d 448, the court said: “As to whether an injunction shall issue without notice in any case depends upon the particular facts in any such case, and is within the sound discretion of the chancellor, which discretion courts of review will not interfere with unless the record shows an abuse of such discretion.”

The complaint, as verified, makes a showing sufficient under chapter 69, section 3, Ill Rev Stats that the rights of the plaintiff will be unduly prejudiced if the restraining order were not to issue, immediately, without notice.

The record shows that only the individuals named here as appellants appeared and filed pleadings. The motion to dissolve the temporary injunction was not filed for more than a year after the injunction was issued. Defendants’ motion to dismiss lay dormant and was not argued. The docket orders show that no action was taken from September 1966, until the motion to dissolve was filed in September 1967. Under the circumstances, we cannot say that the circuit court abused its discretion either in granting the injunction, or in refusing to dissolve it. Under the circumstances, there is no basis for assessment of damages (c 69, § 12, Ill Rev Stats).

For the reasons set forth the judgment is affirmed.

Judgment affirmed.

MORAN and EBERSPACHER, JJ., concur.


author: MR. JUSTICE DEMPSEY

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Coylee Harris, Defendant-Appellant.
    Gen. No. 50,867.
    First District, Third Division.
    January 30, 1969.

      Anthony F. Mannina and Sam Adam, of Chicago, for appellant.
    John J. Stamos, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and E. James Gildea, Assistant State’s Attorneys, of counsel), for appellee.
   MR. JUSTICE DEMPSEY

delivered the opinion of the court.

About midnight on Thanksgiving eve, November 26, 1963, Mabel Hines, Lolita Davis, David Clifton, Thomas Scott and the defendant, Coylee Harris, left one Chicago tavern and started to walk to another one known as Pepper’s Lounge. After walking part way Scott hailed a cab. On the way, Scott told the driver he had a stop to make. The cab stopped under a viaduct at 44th and Calumet and, when it did, Scott pulled out a gun and said, “Hand it over.” Hines, Davis and Clifton jumped out of the cab and ran the rest of the way to Pepper’s Lounge. Fifteen minutes later Scott and Harris entered the tavern.

In the early morning of November 27th police officers, responding to a radio call, came upon the cab in the middle of the street under the viaduct. They found the driver, James Arline, Jr., in the front seat. Blood was running from a bullet wound in the back of his head. He appeared to be dead and this was confirmed upon taking him to a hospital.

A few days later police officers arrested David Clifton. After talking to him they arrested his cousin, Coylee Harris. The arrest was made without a warrant at 6:15 a. m. at Ms home. About 10:35 that night he signed a statement in wMeh he said that he and Scott had planned, the night before the shooting, to rob a cabdriver. The plan became concrete when they whispered together on the fatal ride. Scott asked, “how about it?” and Harris replied that he “was game.” He said that when the cab stopped Clifton and the two women got out and he told them to run. Scott put a gun to the driver’s head and instructed him to be still. Scott then reached over and went through the driver’s pockets. As he did, Harris warned that the driver was moving his hand. Scott said “run” and Harris fled. Eventually he went to Pepper’s Lounge and there joined Scott, Clifton and the two women. Scott told them not to say anything because they were all in the clear.

The five occupants of the cab were indicted for the murder. Harris’ motion for a severence was allowed and he was tried alone. He was found guilty and sentenced to the penitentiary for a term of fourteen to twenty years.

At his trial he admitted giving a statement to the police but disclaimed making some of the answers attributed to him. He denied participating in the robbery or murder. He said he had no agreement with Scott to commit a robbery and had no conversation with Mm in the cab about robbing the driver, but learned of it at the same time as everyone else when Scott drew the gun. He said he fled with the others and that Scott did not warn him to keep quiet when they met later at the tavern. Mabel Hines and Lolita Davis testified for the State. They said that Harris did not flee but stayed in the cab with Scott and came to the tavern with Mm.

Five days after Harris’ conviction, the State moved to nolle prosequi the indictments against Hines and Davis because of their cooperation with the State. The motion was allowed. In this appeal Harris contends that he was prejudiced by the failure of the State to reveal its intention to nolle prosequi the indictments, by the court’s refusal to suppress his confession and by the court’s refusal to submit an instruction on his theory of the case.

The defendant went outside the record in showing what took place five days after the conclusion of his trial. The State suggested in its brief that a proceeding under the Post-Conviction Act would be the appropriate way for the defendant to advance his contention that the State knowingly permitted Hines and Davis to testify falsely that no promise had been made to them in exchange for their testimony. In his reply brief the defendant said he would adopt the suggestion and, at his request, oral argument in the present case was postponed pending the disposition of his post-conviction petition. Upon inquiry we learned that the petition was denied and we set this case for argument. The defendant then informed us that the denial of the petition is being appealed and he suggested further postponement until the appeal is decided. Inasmuch as the post-conviction proceeding had caused a delay of nineteen months in this court, we refused further postponement.

However, in deciding this appeal, we will consider the defendant’s claim pertaining to the alleged false testimony only to the extent that it can be done within the present record. What took place after the trial was over will be left to the post-conviction proceeding. People v. Macias, 39 Ill2d 208, 234 NE2d 783 (1968); People v. Hoskins, 25 Ill2d 333, 185 NE2d 214 (1962).

The two witnesses testified that they were not promised leniency or immunity in exchange for their testimony. The State also denied making such a promise. In his closing argument, the prosecutor said:

“. . . Mabel Hines and Lolita Davis may walk out of this courtroom, they may walk out scott free, but it is not because of any deal I made ... or anybody in the State’s Attorney’s office [made] as far as any of us know here.
“They got on the stand because they were willing to testify and we felt it would be of some value for you to listen to them.”

The defendant admits that there is no proof that the State promised the witnessed leniency or consideration. His speculation that there was a commitment, which if known to the jury might have affected the weight to be given the witnesses’ testimony, is based almost entirely upon the dismissal of their indictments. This, as we have noted, is de hors the record.

In all the authorities cited by the defendant the prosecution either stated falsely that no promises had been made or permitted a witness to testify falsely that none had been made. See Napue v. Illinois, 360 US 264, 3 L Ed2d 1217, 79 S Ct 1173 (1959); People v. Coddington, 31 Ill2d 468, 202 NE2d 509 (1964); People v. McKinney, 31 Ill2d 246, 201 NE2d 431 (1964); People v. Lueck, 24 Ill2d 554, 182 NE2d 733 (1962). In the present case the prosecutor informed the jurors that the two witnesses (who had been released on their own recognizance prior to the trial) might go free. He was under no obligation to tell them more if there was in fact no understanding with them which might have influenced their testimony. Further, there is nothing to substantiate the defendant’s speculation that the witnesses testified falsely when they said they were not promised immunity. If the State intended not to prosecute them— even if this intention were finalized before they testified—it would have had no bearing on their credibility if the intention was not communicated to them before they testified. We do not know what evidence was presented at the post-eonvietion hearing, but in the record before us there is no evidence whatsoever that the testimony of the witnesses was false or that the State knowingly permitted perjured testimony to remain uncorrected.

The defendant next contends that his confession was the fruit of an illegal arrest and therefore should have been excluded. He relies on the following as authority: Wong Sun v. United States, 371 US 471, 9 L Ed2d 441, 83 S Ct 407 (1963); Traub v. Connecticut, 374 US 493, 10 L Ed2d 1048, 83 S Ct 1899 (1963) and People v. DeLuca, 343 Ill 269, 175 NE 370 (1931). In DeLuca the court excluded an admission which grew out of an illegal search under the Fourth Amendment to the Constitution of the United States and under section 6 of Article II of the Constitution of Illinois; in Wong Sun and Traub the court excluded a declaration and a confession which were a product of an illegal arrest under the Fourth and Fourteenth Amendments of the Federal Constitution.

To exclude a confession under the Fourth and Fourteenth Amendments (and the similar provision of the Illinois Constitution) a defendant must make a motion to suppress evidence. The issue is whether the search or the arrest was illegal and the burden of proof is on the defendant. Ill Rev Stats 1963, c 38, § 114-12. But in the instant case, the defendant never made a motion under these amendments to suppress the evidence as the product of an illegal arrest.

The only motion made by the defendant was to suppress his confession. This motion was specifically brought under the Fifth and Fourteenth Amendments of the United States Constitution and section 10 of Article II of the Illinois Constitution. The motion challenged the confession on the ground that it was involuntary. It alleged that the defendant was illegally detained, refused the use of a telephone, and was deprived of counsel and the right to talk to his family. In addition to these allegations the defendant testified at the hearing on the motion that he was beaten and threatened. The motion was denied.

The motion also alleged that he was arrested without a warrant and that the police officers did not have reasonable grounds for believing that he had committed a criminal offense. In addition to this, the motion’s final all-inclusive “wherefore” clause urged the court to declare “unlawful the arrest . . . and [to suppress] all evidence . . . obtained as a result. . . .” The allegation and prayer lend semblance but not substance to the defendant’s position that the motion was also one to suppress his confession as the product of an illegal arrest because the thrust of the motion and all the testimony under it were directed to suppressing the confession as involuntary. The trial court did not err in treating the motion as a Fifth Amendment motion to suppress the confession rather than a Fourth Amendment motion to suppress evidence.

The burden of going forward with the evidence and the burden of proving that a confession is voluntary is on the State. Ill Rev Stats 1963, c 38, § 114-11. Because no evidence was adduced by the State in reference to his arrest, the defendant argues that his claim that the arrest was illegal remains unrebutted. This is true, but the illegality of an arrest is only a factor in determining the issue of voluntariness and does not of itself make the confession inadmissible. People v. Hudson, 38 Ill2d 616, 233 NE2d 403 (1968); People v. Miller, 13 Ill2d 84, 148 NE2d 455 (1958); People v. Klyczek, 307 Ill 150, 138 NE 275 (1923). Therefore, the State’s failure to furnish proof as to the legality of the arrest did not require the court to rule that the confession was involuntary.

The defendant further contends that the testimony at the trial raised the issue of the illegality of his arrest. At the trial, Harris’ mother testified that at the time of his arrest the officers told her that he had been implicated by Clifton in the cabdriver’s murder. The defendant now contends—for the first time—that the court, upon hearing this testimony, had a duty to inquire into the circumstances surrounding the arrest to ascertain whether it was legal.

The court had no such duty in this case. First, the defendant’s failure to bring a motion under the Fourth Amendment to suppress his confession waived the issue. See People v. Gant, 84 Ill App2d 208, 228 NE2d 582 (1967); People v. Irish, 77 Ill App2d 67, 222 NE2d 114 (1966) . Second, no new facts came to light at the trial which necessitated either further inquiry by the court or the setting aside of its previous ruling. Clifton was in custody and had been questioned by the police before they arrested Harris. It was a logical inference that they received information from him implicating Harris. Harris’ mother revealed nothing that the court did not already know. See People v. Hudson, 38 Ill2d 616, 233 NE2d 403 (1968); People v. Holick, 337 Ill 333, 169 NE 169 (1929); People v. Rodriquez, 79 Ill App2d 26, 223 NE2d 414 (1967) .

The Code of Criminal Procedure provides that a police officer may arrest a person without a warrant when he has reasonable grounds to believe that the person has committed an offense. Ill Rev Stats 1963, c 38, par 107-2(c). This condition prevailed in the present case. A cabdriver had been murdered. The police had a young man in custody who had been a passenger in the driver’s cab shortly before he was killed. He gave them information which incriminated Harris. This information was not received from an anonymous informer; it was received from an ostensible accomplice who was present at the scene. The information was not about a stranger; it was about the accomplice’s own relative. Harris’ arrest was not made on a secret tip, rumor or vague suspicion; it was made on definite information from a source that could reasonably be regarded as reliable. The police had cause to believe that Harris participated in the murder and had reasonable grounds to arrest him—indeed, they would have been negligent not to have done so. They were justified in proceeding without a warrant. Immediate action was advisable so that Harris would have no opportunity to flee if word reached him that his cousin was under arrest.

The final contention is that the court erred in refusing to instruct the jury on the defendant’s theory of the case—that of being an innocent bystander. The refused instruction was as follows:

“The Court instructs the jury that the mere presence of one at the time a crime has been committed or is being committed does not constitute him an accessory; that before you can find a man guilty of being an accessory to a crime, you must be satisfied beyond all reasonable doubt that he actively assisted in the commission of the crime by aiding, abetting or assisting in its commission, and unless these elements are proven beyond a reasonable doubt, it is your duty to return a verdict of not guilty as to the defendant.”

The words “actively assisted in the commission of the crime” were misleading. While mere presence or negative acquiescence is not sufficient to make a person a principal to a crime, one may aid and abet without actively participating in the offense; circumstances may show that there was a common design to commit an offense and if this is so one may be guilty of the offense without actively assisting in its commission. Also, a person who is present when a crime takes place and does not oppose it may be guilty even though he is not an active participant. His presence and lack of opposition may be considered together with other facts and circumstances in determining whether he approved the crime and abetted its commission. People v. Bracken, 68 Ill App2d 466, 216 NE2d 176 (1966); People v. Valentine, 60 Ill App2d 339, 208 NE2d 595 (1965). The court correctly refused the tendered instruction.

The judgment is affirmed.

Affirmed.

SULLIVAN, P. J. and SCHWARTZ, J., concur.


author: PRESIDING JUSTICE SULLIVAN.

text:
    Harrison C. Baker, Jr., Plaintiff-Appellant, v. State of Illinois Department of Labor, Division of Unemployment Compensation, John E. Cullerton, Director of Labor, Samuel C. Bernstein, Employment Security Administrator, and J. R. Cohen, Unemployment Compensation Commissioners, Defendants-Appellees.
    Gen. No. 52,405.
    First District, Third Division.
    January 30, 1969.
    George W. Lawrence, of Chicago (James B. Lock-hart, of counsel), for appellant; William G. Clark, Attorney General of State of Illinois, of Chicago (John J. O’Toole, A. Zola Groves, and Bernard Genis, Assistant Attorneys General, of counsel), for appellees.
   Opinion by

PRESIDING JUSTICE SULLIVAN.

Not to be published1 in full.


author: JUSTICE SEIDENFELD.

text:
    Thomas G. McCann, Plaintiff-Appellee, v. Civil Service Board of the Metropolitan Sanitary District of Greater Chicago, and Chester Kopec, Director of Personnel of the Metropolitan Sanitary District of Greater Chicago, Defendants-Appellants.
    Gen. No. 52,114.
    First District.
    February 3, 1969.
    Allen S. Lavin, of Chicago (Julius H. Grubman, of counsel), for appellants; Richard F. McPartlin, of Chicago, for appellee.
   Opinion by

JUSTICE SEIDENFELD.

Not to be published in. full.