author: ALLOY, J.

text:
    Bernard E. Newton, Plaintiff-Appellee, v. Mamie Lehman, Defendant-Appellant.
    Gen. No. 68-82.
    Third District.
    February 10, 1969.

      Harold Lounsberry, of Rock Island, for appellant.
    Stewart R. Winstein, of Rock Island, for appellee.
   ALLOY, J.

This action was instituted by a complaint for declaratory judgment by plaintiff, Bernard E. Newton, as against defendant, Mamie Lehman. In the complaint plaintiff prayed that the court find that the parties were not legally married. Following a default judgment, in favor of plaintiff, in such action, the cause was appealed to this Court and was thereupon remanded to the Circuit Court of Rock Island County for a hearing of the cause on the merits (Newton v. Lehman, 67 Ill App2d 302, 214 NE2d 142). The issues considered on the previous appeal are of no further significance at this time.

Defendant filed a motion for summary judgment requesting dismissal of the action for the reason that plaintiff had previously filed a divorce action in Scott County, Iowa, reciting that the parties had lived together as husband and wife. The motion was denied by the trial court. The cause was tried by the court without a jury and following a hearing in which there were certain admissions, and the testimony of the parties, the trial court entered an order finding the parties had not been legally married. On appeal in this Court, defendant, Mamie Lehman, asserts that the finding of the trial court that the parties were not legally married is contrary to the laws of the State of Iowa and contrary to the weight of the evidence.

The record in this case discloses that the parties had lived together in Iowa for a number of years. They filed income tax returns as husband and wife; a bankruptcy petition was filed by plaintiff listing plaintiff and defendant as husband and wife; loans were secured in which the parties were listed as husband and wife and a mercantile purchase or purchases were made with defendant referred to as Mrs. Newton. As indicated previously, a divorce action had been filed by plaintiff in Iowa.

Following the proceedings in the Circuit Court of Rock Island County and the order entered on December 13, 1963, in which the Circuit Court of Rock Island County declared that there was no common-law marriage between the parties, plaintiff had married one Lillie M. Kruger on December 21, 1963. That marriage has not been dissolved but is held “in abeyance” awaiting termination of this proceeding. No children were bom or adopted as a result of the association of plaintiff Bernard E. Newton and defendant Mamie Lehman.

The trial judge, following the hearing in the cause in which only the plaintiff and defendant testified, found that for some years the plaintiff and defendant had lived together but had never obtained a marriage license or participated in a marriage ceremony. The court found, however, that on the basis of the testimony in the record and despite the activities of plaintiff and defendant, there was in fact no Iowa common-law marriage established as between plaintiff and defendant.

In the case of In re Long’s Estate, 251 Iowa 1042, 102 NW2d 76, the reviewing court of the State of Iowa outlined the specific limitations relating to common-law marriages in that state. The court asserted that there must be (1) an intent and agreement at the present time as to the marriage on part of both parties together with continuous cohabitation and public declaration that they are husband and wife, (2) that the burden of proof is on the one asserting the claim of common-law marriage, (3) that all elements of their relationship as to marriage must be shown to exist, and (4) that a claim of such common-law marriage is regarded with suspicion and will be closely scrutinized. In the Long case witnesses testified that parties lived together as husband and wife. An automobile driver’s license was issued to the decedent lady in the name of Long and a number of Christmas cards were introduced directed to the parties as Mr. and Mrs. Tom Long. Health and hospitalization policies were issued under the name of Long and there was evidence from an election official that the decedent voted in Iowa in 1952, 1954 and 1956 under the name of Long. There was also specific evidence of acts of the parties in their individual names, and the court concluded that when it served their purpose, the parties had held themselves out as man and wife and when it served their purpose to be single, they ignored the claim of marriage. The court stated that while there was much evidence of the parties living together this was no evidence of an announcement of marriage to friends or relatives and consequently the court found that there was no common-law marriage.

Intention to bring about a common-law marriage is not inferred from cohabitation alone (In re Boyington’s Estate, 157 Iowa 417, 137 NW 949). In the case of Reppert v. Reppert, 214 Iowa 17, 241 NW 487, the Iowa Supreme Court concluded that there was no rational explanation why the plaintiff and defendant should be divorced, and thereafter intend to remain as husband and wife after the divorce decree was entered. Even though there was evidence that the parties stated everything is “going on just the same” this was not sufficient to establish a common-law marriage especially when statements indicating such marriage intention are denied by one of the parties.

In Pegg v. Pegg, 138 Iowa 575, 115 NW 1027, the parties had been twice arrested on the charge of illicit cohabitation. On the second of such prosecutions, an instrument was drawn up by their lawyer and signed by them in his office purporting to be a marriage contract between them by which they agreed to take each other as lawful husband and wife and live together as such during life. The court stated that this was not sufficient and that for a common-law marriage to be valid there must be a present agreement to be husband and wife followed by cohabitation as such. A mere written or oral agreement to be husband and wife, without the present intention to assume the relation in fact, does not constitute a marriage between the parties especially if the agreement is entered into for some other purpose. In State v. Grimes, 215 Iowa 1287, 247 NW 664, the Iowa Supreme Court found that a written contract reciting that the parties agreed to live as husband and wife until lawfully married, was not sufficient to establish a common-law marriage because it did not show a present intention to assume a legal marital relationship.

Although common-law marriages are not legal in Illinois, the Illinois courts have had occasion to consider Iowa common-law marriages. In the case of Jambrone v. David, 16 Ill2d 32, 156 NE2d 569, the Supreme Court of this State held that the evidence was insufficient to sustain a finding that the natural parents of a child entered into a common-law marriage in Iowa prior to the child’s birth. The Illinois court pointed out, at page 36 (16 Ill2d 32, at 36):

“To establish the existence of such a marriage there must be shown a present intent to be husband and wife, followed by cohabitation. Pegg v. Pegg, supra, at page 575 of 138 Iowa, at page 1028 of 115 NW; State v. Grimes, 215 Iowa 1287, 247 NW 664, 665. Proof of cohabitation is not in itself sufficient. In re Estate of Medford, 197 Iowa 76, 78, 196 NW 728. But such proof, as well as evidence of conduct and of general repute in the community where the parties reside is admissible as tending to strengthen a showing of a present agreement to be husband and wife, and as bearing upon the question of intent. In re Estate of Wittick, 164 Iowa 485, 493, 145 NW 913, 916. It is thus to be seen that only the contract per verba de praesenti, followed by cohabitation, need be established and that conduct and reputation are but evidential facts which tend to prove or disprove the agreement and intent of the parties.”

In the case before us, it is apparent from the record and the testimony of the parties that at the time the parties began living together in Fort Dodge, Iowa, nothing was said about a present intention of marriage. There was merely an assertion that the parties would live together. The record does not show a common understanding of the parties that they were to be husband and wife, and there was direct evidence elicited on cross-examination in which defendant testified that plaintiff never promised to marry her but that he would marry her later on, but did not tell her when that would be.

The plaintiff’s activity in listing defendant as his wife and securing loans; in filing of a divorce action in Iowa upon the advice of his lawyer and in filing bankruptcy proceedings listing defendant as his wife, is not conclusive of a voluntary intent at a present time to enter into the relationship as husband and wife, followed by cohabitation, to any greater extent than was the instrument prepared by the lawyer for the parties in the case of Pegg v. Pegg, supra, or the contract in State v. Grimes, supra.

On the basis of a review of the trial record, it is apparent that the trial court was justified in finding that neither party to the cause testified to a present intent to become husband and wife followed by cohabitation any time during the years they lived together. Apparently, they were both willing to accept the advantages that the marital status of husband and wife would give them, including filing of income tax returns, bankruptcy proceedings, etc. Bernard Newton flatly denied that he ever agreed to become the husband of defendant. The court could likewise have determined that the testimony of defendant, Mamie Lehman, did not clearly establish any present intention of the parties to become husband and wife. The trial court correctly determined that defendant has the burden of proving a common-law marriage in Iowa. We cannot state, on a review of the record, that the court’s determination that a common-law marriage was not established, was contrary to the manifest weight of the evidence.

We must, therefore, conclude that the order of the trial court finding that there was no common-law marriage between the parties was not contrary to the laws of the State of Iowa or against the manifest weight of the evidence. The order of the Circuit Court of Rock Island County will, therefore, be affirmed.

Affirmed.

STOUDER, P. J. and RYAN, J., concur.


source: Caselaw Access Project

author: MORAN, J.

license: Public Domain

text:
    Frank Luciani, Plaintiff-Appellant, v. Certified Grocers of Illinois, Inc., a Corporation, Defendant-Appellee.
    Gen. No. 52,150.
    First District.
    February 10, 1969.
    Rehearing denied March 19, 1969.

      Gatenbey, Spuller, Law & Johnson, of Chicago (Andrew W. Gatenbey and Fred H. Law, Jr., of counsel), for appellant.
    Rudnick & Wolfe, of Chicago (Harry L. Rudnick, Lewis G. Rudnick, Paul D. Rudnick, and David A. Hoffman, of counsel), for appellee.
   MORAN, J.

This case involves a dispute over the construction of the bylaws of the defendant, Certified Grocers of Illinois, Inc., a grocery cooperative. Frank Luciani, owner of a grocery store and a former member of the defendant corporation, sued to recover patronage rebates in the amount of $23,241 allegedly due him for the fiscal year ending August 31, 1963. Defendant admits that Luciani would have been entitled to that sum had he kept the amount of money required by the rules of the cooperative in his deposit account. Defendant states that the average deficiency in plaintiff’s deposit account during the year in question was 83.6% and therefore plaintiff’s patronage rebate should be reduced in that proportion so that the amount due plaintiff would be $8,812.

Plaintiff filed a motion for summary judgment in the amount of $23,241 plus interest, which the trial court denied. Defendant filed a motion for summary judgment which the trial court allowed, except that it entered judgment for $4,422 in favor of the plaintiff which represented the amount admittedly due plaintiff, plus interest. Defendant’s motion in pertinent part reads as follows:

“1. Plaintiff Frank Luciani, doing business as Buy Wise Food Center, was a member of Defendant, Certified Grocers of Illinois, Inc., a grocery cooperative, during Defendant’s fiscal year ended August, 31,1963 and for several years prior thereto. On August 30, 1963, Plaintiff submitted his resignation from membership in Defendant effective September 3, 1963, which resignation was approved and accepted by Defendant.
“2. During Defendant’s fiscal year ended August 31, 1963, Plaintiff purchased merchandise from various divisions of defendant aggregating $315,966.70, which would have entitled plaintiff to a patronage rebate of $23,241.00 had Plaintiff been in compliance with various sections of Defendant’s By-Laws and Rules and Regulations, as hereinafter more fully described. . . .
“3. Defendant’s By-Laws and Rules and Regulations (quoted haec verba in relevant part hereinafter) require each member of Defendant to maintain a cash deposit with Defendant in an amount equal to twice the average weekly purchases of the member from Defendant. Notwithstanding such requirement, Plaintiff’s cash deposit was deficient throughout Defendant’s fiscal year ended August 31, 1963, and the average deficiency during that period was 83.6% of Plaintiff’s required cash deposit. . . .
“4. Defendant’s By-Laws and Rules and Regulations provide as follows in regard to the matters in issue in this cause (which quoted portions of the By-Laws and Rules and Regulations were in full force and effect at all times relevant to the controversy herein):
“BY-LAWS
“ARTICLE X
“PATRONAGE DIVIDENDS AND CASH DEPOSITS
“SECTION 1: Patronage rebates (also known as and sometimes referred to as ‘patronage dividends’) shall be paid to qualified participants as herein defined, in accordance with the following provisions:
“(A) A qualified participant is any member in good standing, except an associate member, who is of record as of the day fixed by the Board of Directors in order to qualify for participation in the net profits of a division. If no specific date for qualification is designated by resolution of the Board of Directors for any Division, the qualification date shall be the last day of the fiscal year for which the patronage rebate is paid.
“(B) The net profit of a division for any period shall consist of that portion of the gross income thereof remaining after deducting all expenses of the division, exclusive of any provision for Federal income taxes, and computed in accordance with the customs and practices of the corporation and sound accounting principles.
“(C) The amount of the patronage rebate for a designated period, to be paid to a qualified participant of a division, shall be based on and determined by dividing the total net sales of the division to the qualified participant during the period by the total net sales of the division during the period to all qualified participants of the division. The quotient thus obtained shall be that percentage of the total patronage rebate of the division to be paid to a qualified participant, which may be computed to the nearest $10.00.
“(D) Patronage rebates shall be determined on a divisional basis. The net profit of a division shall be rebated only to qualified participants thereof.
“The Board of Directors by resolution, shall determine that portion of the net income of a division to be rebated to the qualified participants thereof, as soon after the commencement of a fiscal year as is practical, and may at the same time or subsequently fix the period for which the patronage rebate shall be paid, the time or times of payment, the qualification date or dates, and such other provisions or conditions which may be proper or appropriate.
“(E) The patronage rebates payable to qualified participants may in the first instance be deposited in their respective deposit accounts. Immediately following such deposits in the deposit accounts, the accounting division of the corporation shall recompute the amount required to be maintained in the deposit account of each qualified participant based on average weekly purchases for a representative period and in accordance with deposit ratio as fixed by the Board of Directors. That portion of the deposit account in excess of the required amount shall be returned to the depositor thereof. If the deposit account is deficient the depositor thereof shall be immediately notified that it be paid forthwith. If the depositor shall fail to pay such deficiency within 60 days after notice, then for the period of the deficiency, which shall commence as of the last day of the fiscal year preceding the notice, the amount of the patronage rebate otherwise payable during the deficiency period shall be reduced in the proportion that the actual amount in the deposit account bears to the required amount in the deposit account.
“(F) This By-Law provision shall be and constitute a continuing obligation of the corporation to allocate and distribute to the members of the corporation at least annually and as provided herein all the corporation’s net profits over and above such reasonable retentions for reserves, debts and growth as the Board of Directors may from time to time determine.
“Section 3: To assure the corporation’s success, the corporation shall be operated in such manner as to minimize or entirely eliminate credit losses, and to that end all shareholders shall be required to maintain a cash deposit with the corporation in such ratio to average weekly purchases of each shareholder as the Board of Directors shall from time to time determine, provided, however, that the ratio to weekly purchases shall be uniform as to all shareholders, except that the Board of Directors may establish a minimum deposit applicable to all shareholders.

<(

“RULES AND REGULATIONS
“Deposit Account. Each member shall maintain a deposit account with the corporation in an amount of money equal to two times his average weekly purchases, excluding dairy and produce purchases, but in no event shall such cash deposit be less than $2,000.00. Under no circumstances may an order in excess of the deposit account be shipped to a member except (in the direction of management) on a C.O.D. basis for the amount in excess of the deposit account. No interest shall be paid on deposit accounts.
“As soon as possible after the close of the fiscal year, the company shall determine the proper amount of a deposit account on the basis of the deposit account ratio as set by the Board of Directors.
“A member who opens one or more additional stores shall deposit a minimum of $2,000.00 for each additional store, subject to such adjustments as may be required upon analysis of the account of each such store, to be made on or about 60 days after such store’s opening.
“The ratio of deposits to average weekly purchases may be increased or decreased by resolution of the Board of Directors.
“The deposit account of a member may be analyzed at any time to determine whether it is in the correct amount.

Defendant’s motion continues:

“2. Defendant’s By-Laws at issue herein (Section 1, 1(E) and 3 of Article X; hereinbefore quoted in relevant part) and the Rules and Regulations promulgated thereunder (herein specifically paragraph 2 thereof; hereinbefore quoted in full), which ByLaws and Rules and Regulations constituted a binding contract between Defendant and Plaintiff during the time that Plaintiff was a member of Defendant (Article XV of Defendant’s By-Laws; herein-before quoted in part), clearly set forth the Defendant’s long-standing policy, and the long-standing contract between Defendant and each of its members, and among the members, that to be entitled to a proportionate share of the earnings and profits of each division of Defendant from which a member buys during a fiscal year, such member must comply with the By-Laws of Defendant (Section 3 of Article X) and the Rules and Regulations promulgated thereunder (paragraph 2), which taken together required each member to maintain with Defendant at all times during the fiscal year ended August 31, 1963, a cash deposit equal to two times such member’s average weekly purchases excluding dairy and produce purchases. This policy and contract further provided that to the extent that a member failed to maintain his required cash deposit, after being given notice of such failure and 60 days to correct same, such member’s otherwise proportionate share of the earnings and profits of each division of Defendant from which it purchased during the fiscal year would be reduced by the proportion which the average deficiency bore to the average required deposit.”

Plaintiff-appellant contends that the clear and obvious meaning of Article X, Section 1, Paragraph E, of defendant’s bylaws is that the depositor is to be notified in the event that his deposit account is still deficient after there has been added thereto the patronage rebates earned by him during the fiscal year. Then, in accordance with the final sentence in that paragraph, the depositor is given 60 days after being notified in the foregoing manner within which to pay any such remaining deficiency. Such notice is authorized to be given only after the end of a particular fiscal year with regard to any deficiency determined to exist for a period commencing as of the last day of such fiscal year. He argues that the trial court should have granted his motion for summary judgment because defendant’s bylaws authorize a reduction in patronage rebates only in instances where there is still a deficiency in the member’s deposit account after the defendant has first applied the patronage rebates earned by a member during a particular fiscal year toward any deficiency in his deposit account as of the end of the year.

Defendant argues that defendant’s bylaws and rules and regulations contemplate the continuous maintenance of a cash deposit by each member of defendant; that plaintiff interprets two entirely separate provisions of X-l-E, so as to distort the meaning and intent of both; that the first provision merely grants defendant’s management authority to deposit patronage rebates in the cash deposit accounts of each member. The second directs defendant’s management to notify members whose cash deposits are deficient and to reduce the patronage rebates of members who fail or refuse, after such notice to cure such deficiency.

We do not agree with defendant’s interpretation of X-l-E of the bylaws. There is no doubt that the words “such deficiency” contained in the last sentence refer to the deficiency previously mentioned in that paragraph, since the word “such” always refers to something that has gone before. The word “such” is defined as “of the sort previously indicated or contextually implied ; before mentioned; previously characterized or specified; of the same kind or class as something mentioned.” The People v. Mobile & O. R. Co., 374 Ill 376, at 383, 29 NE2d 604. The natural import of the language would limit its application to the language previously mentioned in the paragraph. The sense of the whole paragraph is that there can be no deficiency in the deposit account unless the amount required in the deposit account exceeds the patronage rebate. The last sentence has no meaning standing alone and has meaning only to that which goes before.

In Integrity Mut. Ins. Co. v. Boys, 293 Ill 307, 127 NE 748, the court said at 313:

“Section 15 would be operative as a restriction if the words ‘such corporation’ should be held to mean such a corporation as the corporations provided for in the preceding sections. Section 15 follows the fourteen previous sections, which relate only to corporations organized under the act, and by all definitions the word ‘such’ refers to something that has gone before. It may refer to a person or thing previously mentioned or may be used for purposes of comparison as to quality or character. ‘Such corporation’ would mean a corporation similar to or of the same class or organized for a like purpose as corporations organized under the act, but the natural import of the language used would limit its application to the corporations mentioned in the preceding sections. It would require the addition of something to change the direct meaning of the language employed, and where the effect would be to change existing rights and the intention is not clearly manifested that should not be done.”

So in the present case it would require the addition of something to change the direct meaning of the words employed in order to apply the reduction provision of X-l-E as contended by the defendant. We observe that Section 3 of Article X provides that each shareholder should maintain a cash deposit based on weekly purchases as determined by the Board of Directors, but this section does not in any manner relate this requirement back to X-l-E. The words of a contract are to be understood in their plain and literal meaning although the consequences may not have been in the contemplation of the parties.

The crucial question here was the state of the deposit account after applying the credits due plaintiff on August 31, 1962. Before any reduction of plaintiff’s proportionate share of earnings and profits may be imposed, the condition of the deposit account on August 31, 1962 must be ascertained because the deficiency period in question here, as defined by X-l-E, runs from August 31, 1962, to August 31, 1963. The reduction provision may be exercised only when a deficiency results in a member’s deposit account after his patronage rebates have been deposited therein and his required deposit amount recomputed. If plaintiff is to be refused his patronage rebates, it must be because his deposit account was deficient on August 31,1962, or was determined to so be after an analysis shortly following the fiscal year ending August 31, 1962. The facts are silent as to the state of plaintiff’s deposit account after the analysis following the fiscal year ending August 31, 1962. These facts must be presented before it can be adequately decided whether the reduction may be applied.

X-l-E also provides that a member must be notified of his deficiency and given sixty days to correct it before the reduction may be imposed. A factual determination of whether this notice requirement has been met must also be resolved before it is decided whether this reduction may be applied.

Defendant also submits that its uncontroverted affidavits establish that it has interpreted and applied its bylaws in prior years to plaintiff and to other members in precisely the same manner that it interpreted and applied them to plaintiff for the fiscal year ended August 31, 1963, and therefore its construction of the bylaws should be adopted. It is true that where there is doubt as to the meaning of a contract, the courts will look to the acts of the parties for aid in construction. However, when a contract is clear and unambiguous, the conduct of the parties cannot be used to prove that it means something different than it says. 17 Am Jur2d, Contracts, § 274, page 688. In our opinion the language of X-l-E is clear and unambiguous and therefore the argument of defendant on this point is not tenable.

In the view that we take of this case, it will not be necessary to consider other contentions raised by the parties.

For the foregoing reasons the judgment of the Circuit Court of Cook County is reversed and this case is remanded to the trial court for further proceedings not inconsistent with this opinion.

Reversed and remanded.

GOLDENHERSH and EBERSPACHER, JJ., concur.


author: SCHEINEMAN, J.

text:
    Uptown Federal Savings and Loan Association, Plaintiff-Appellant, v. Howard Collins, et al., Defendants-Appellees.
    Gen. No. 52,246.
    First District.
    February 10, 1969.

      Gomberg, Levin and Rosen, of Chicago (Edward I. Rosen and Robert J. Sharfman, of counsel), for appellant.
    D. Adolphus Rivers, of Chicago, for appellees.
   SCHEINEMAN, J.

The plaintiff was the holder of a note issued in behalf of Tyre Lodge #70, a Masonic organization. It appears to be a printed form provided by the plaintiff with blank spaces filled by ink handwriting. It was signed at the lower right “Tyre Lodge #70 by Howard Collins, W. M., President, Hilton Stewart, Sec’y> Attest (embossed seal).” At the lower left appeared the signatures of Howard Collins, W. M. and Hilton Stewart, Secretary, also four other names, in all but one case there was added the word “Trustee.” Above this column of names there was typed or printed the word “individually.”

Litigation over this instrument against the six individuals, but not against the lodge, culminated in a judgment in favor of the defendants, from which the plaintiff appealed.

The defendants contended that they had signed the instrument in a representative capacity as officers and trustees of the lodge, and were not individually liable. The plaintiff admits this as to the signatures at the lower right but argues that this was sufficient to bind the lodge, so that repetition of the signatures at the lower left, plus additional names, indicate that they were to be individually liable.

The law as to the effect of adding to a signature words indicating a representative capacity was in a state of confusion for many years with the various states having different rules. Then the Negotiable Instruments Law, adopted in Illinois, specified the effect of such wording under varying states of facts. When that law was repealed in Illinois by the adoption of the Uniform Commercial Code, a similar provision appeared as section 3-403 thereof in chapter 26, Ill Rev Stats. The pertinent portion thereof is:

“(3) Except as otherwise established the name of an organization preceded or followed by the name and office of an authorized individual is a signature made in a representative capacity.”

From this it would appear that the defendants classified as signers in a representative capacity, since there is the name of an organization preceded or followed by the individuals’ names followed by their purported titles. But the plaintiff contends this is partly negated by the same names appearing again, among others, and all are under the word “individually.”

The trial judge considered there was some ambiguity and therefore admitted evidence in explanation. There is nothing in the statute about parol evidence but it was very common in many states to admit parol evidence to ascertain the capacity in which a person signed, especially if it appeared to be ambiguous.

The evidence introduced thereupon showed that at a regular meeting the lodge directed the trustees to “get heat” in their building.

Thereafter the trustees met with a Mr. Rafalson, a contractor, who proposed to install heat equipment. For this purpose he explained the required financing was to be obtained by a loan. He had previously asked who were the officers and trustees of the lodge and what was their credit standing. He was supplied with a list of the names with credit information. From this he prepared applications for credit to be signed by each trustee. He explained this was to show the bank the calibre of membership in the lodge and that the loan was duly authorized.

At the meeting with the trustees he had them sign a number of papers which he said were necessary to “get heat.” Each trustee signed his credit application, also the note and a completion certificate, although the work was not even started.

It was stated at this meeting that any document affecting the property of the lodge must be executed by five to seven trustees. The elected officers who signed as president and secretary were also trustees ex officio, so there were six trustees who signed the note.

There was some dispute as to the existence of the word “individually” at the time of signing, and some assertion that the body of the note was covered by a slip of paper so they could not read it when signing. The trial judge indicated he gave no credence to these statements. However, he regarded the requirement of five to seven signatures of trustees explained the reason for the signatures at the lower left.

It is the opinion of this court that the apparent ambiguity presented a question of fact, which justified the hearing of parol evidence in order to resolve it.

“Extrinsic evidence is admissible to show the intention of the parties, and the capacity in which they signed the instrument, and this intention is controlling in determining their liability.” 28 ILP, § 94, Tampa Investment & Securities Co. v. Taylor, 272 Ill App 541.

The appellant contends that because the body of the note indicates joint and several liability, that this is controlling. This court holds where the evidence indicates the intention to sign in a representative capacity the signers do not become individually liable by reason of the use in the body of the instrument of words indicating joint and several liability. Treager v. Totsch, 322 Ill App 75, 53 NE2d 719.

It is notable that when Mr. Rafalson was asking for credit information, he did not suggest or ask for a list of names of people of good credit standing who would sign the note individually, so as to induce some one to make the loan. He asked for the names of officers and trustees. This was a very plain indication that they were to sign in a representative capacity only. Thus, the trustees had good reason to assert they were not intending to be individually liable.

In this case the note on its face meets the legal requirement that “the name of an organization preceded or followed by the name and office of an authorized individual, is a signature made in a representative capacity.”

The parol evidence resolved any ambiguity by showing the actual intention of the parties.

The plaintiff argues that this is not sufficient under the law, for it requires that the persons purporting to sign in a representative capacity must be “authorized individuals.” It is asserted that authority in general terms to do something, does not include the power to borrow money on the credit of the principal. This is true in some cases, but in this case there is uncontradicted testimony that the signatures of five to seven trustees could bind the lodge as to its property. Thus they could borrow money on a judgment note with a confession of judgment clause and the claim of lack of authority must be overruled.

We conclude that the evidence supports the finding of the trier of fact and that the law was correctly applied. The judgment is affirmed.

Affirmed.

ALLOY, P. J. and STOUDER, J., concur.


author: PRESIDING JUSTICE GOLDENHERSH.

text:
    Walter C. Otto, Jr., Executor of the Estate of Walter C. Otto, Sr., Deceased, Plaintiff-Appellee, v. Roy A. Kropp and Irene U. Kropp, Defendants-Appellants.
    Gen. No. 52,450.
    First District.
    February 10, 1969.
    Sehiff, Hardin, Waite, Dorschel, of Chicago (W. Donald McSweeney, Peter V. Fazio, Jr., and Gerald D. Chiss, of counsel), for appellants; Pratt & Warvel, of Chicago (Charles J. Pratt and William H. Warvel, of counsel), for appellee.
   Opinion by

PRESIDING JUSTICE GOLDENHERSH.

Not to be published in full.


text:
    Stan Kane, Plaintiff-Appellee, v. Nomad Mobile Homes, Inc., an Illinois Corporation, Paul Sachs, Mobile Office, Inc., an Illinois Corporation, and Joseph Neidlinger, Defendants, Paul Sachs, Defendant-Appellant.
    Gen. No. 52,476.
    First District.
    February 10, 1969.
    George E. Dolezal, of Melrose Park, and Alan S. Ganz, of Chicago, for appellant; Altheimer, Gray, Naiburg, Strasburger & Lawton, of Chicago (Samuel T. Lawton, Jr., of counsel), for appellee.
   Opinion by

PRESIDING JUSTICE GOLDENHERSH.

Not to be published in full.


author: STOUDER, P. J.

text:
    Alexander Webster and Adolph Weiss, Plaintiffs-Appellees, v. Paul P. Hochberg, Ann Hochberg, and Philip Karlin Realty, Inc., an Illinois Corporation, Also Sometimes Referred to as Karlin Realty, Inc., Defendants, Paul P. Hochberg and Ann Hochberg, Defendants-Appellants.
    Gen. No. 52,780.
    First District.
    February 10, 1969.

      Ordower & Ordower, Robert A. Sprecher and Edward W. Barrett, of Chicago, for appellants.
    Irvin J. Jacobson, Cecil E. Magid, and Grossman, Kasakoff, Magid & Silverman, of Chicago, for appellees.
   STOUDER, P. J.

Plaintiffs-Appellees, commenced this action in the Circuit Court of Cook County seeking the rescission of a contract by which they had agreed to purchase real estate and a nursing home business operated thereon, owned and operated by the Defendants-Appellants, Paul Hoehberg and Ann Hochberg. The defendants filed their answer denying the allegations of the complaint and in addition filed a counterclaim against the plaintiffs for breach of contract. Philip Karlin, the broker in the transaction filed a counterclaim against the defendants seeking to collect a real estate commission which counterclaim was denied by the defendants in a separate answer. The cause was referred to a Master in Chancery, who, after hearing extensive evidence, filed his Master’s report recommending that the complaint for rescission and the counterclaim for breach of contract be dismissed and further recommended that the $5,000 earnest money down payment paid to the real estate broker by the plaintiffs be forfeited and retained by the real estate broker as his commission. Objections to the Master’s report were filed by plaintiffs and sustained by the trial court. Thereupon the trial court decreed that the contract was rescinded and that the plaintiffs were entitled to recover $5,000 earnest money payment. Further, the trial court denied the counterclaim of defendants for damages for breach of contract and also entered judgment in favor of the real estate broker and against the defendants for $13,000, the amount of the real estate commission. Defendants have appealed these actions of the trial court.

Prior to July 11, 1962, the defendants Paul and Ann Hoehberg, owned the premises known as 1936 West Belmont Avenue, Chicago, Illinois, which premises were improved with a building used as a nursing home. The defendants owned all the shares of stock in the Belmont Rest Home, Inc., which operated the nursing home under a license duly issued by the Board of Health of the City of Chicago.

On July 11, 1962, the plaintiffs entered into a written contract with the defendants for the sale of the Belmont street property for a total consideration of $261,000. By an attachment to the contract the plaintiffs also agreed to purchase the defendants’ shares of stock in the Belmont Rest Home, Inc. for a consideration of $10,000. At the time of the execution of the contract, the plaintiffs paid Philip Karlin, the real estate broker in the transaction, $5,000 as an earnest money down payment, the contract of purchase further providing that the transfer would be completed on July 31, 1962, at which time the plaintiffs were required to make an additional payment with the balance to be payable in deferred installments. On July 81, 1962, the date set for the closing, plaintiffs notified defendants that they were rescinding the contract on account of the fraud of defendants and the failure of defendants to permit the plaintiffs to examine the books and records of the Belmont Rest Home, Inc. The defendants refused to return or authorize the return of the plaintiffs’ $5,000 earnest money down payment and these proceedings resulted.

In their complaint plaintiffs allege that they are entitled to rescind the contract because of the fraud of defendants and the failure of the defendants to permit them to examine the books and records. These allegations were denied by defendants and in their counterclaim they sought incidental damages for breach of contract, the damages sought being attorney’s fees, title costs and broker’s commission in the event they were found liable to pay such commission. The real estate broker’s counterclaim alleged that he was entitled to a broker’s commission because he was the procuring cause of the sale and that he was entitled to such commission regardless of the outcome of the litigation between the plaintiffs and defendants.

Defendants first argue that the trial court erred in reversing the recommendations of the Master in holding that they were guilty of fraud and allowing plaintiffs to rescind their purchase contract.

The charge of fraud is based on the additional agreement relating to the purchase of the shares of stock of the Belmont Rest Home, Inc. Although such agreement is referred to as a “Rider” both parties concede that the rider and agreement for purchase of land are a single contract.

The complaint alleges that the representations contained in paragraphs 1 and 2 of the rider were false and fraudulent. They provided:

“1. Sellers represent and warrant to the Purchaser:

“(a) The corporation has been duly incorporated and is in good standing under the laws of the State of Illinois and is authorized to operate the nursing home now located in Chicago, Illinois.

“(b) The corporation possesses all licenses, permits, authorizations and orders required for the operation of a nursing home under the ‘Nursing Homes, Sheltered Care Homes and Homes for the Aged Act’ of the State of Illinois, and all requirements of any and all governmental agencies having jurisdiction over nursing homes and the property upon which the same is located.

“(c) That the corporation has complied, and is in compliance with the act and with all rules and regulations issued thereunder and that there are no pending lawsuits or notices relating to fire, zoning, building or health code violations re the premises in question and the operation of the business in the within premises.

“(d) That the nursing home complies in all respects with the act and the rules and regulations issued thereunder.

“(e) . . .

“(f) That the nursing home has been certified and licensed to have bed capacity of no less than fifty-five (55) beds, ....

“(g) • • •

“(h) There is no pending legal, equitable or administrative proceeding to which the Corporation is a party or in which it is involved and that no such proceeding has been threatened or contemplated.

“(i) • • •

“2. On the closing date, Seller shall affirm as of said closing date, each of the aforesaid representations and warranties. The representations, warranties and undertakings herein shall remain in full force and effect regardless of any investigation made by Purchaser, . . . .”

The evidence presented to the Master on this issue consisted of the testimony of Ellen Cleary, an inspector for the Chicago Board of Health and Paul Hochberg one of the defendants, together with exhibits from the records of the Chicago Board of Health.

The Municipal Code of the City of Chicago and the rules and regulations of the Board of Health under which the Belmont Rest Home was licensed and operated, provide a regulatory system for the conduct of various types of nursing homes within the City of Chicago. Minimum standards are imposed dependent upon the services and facilities offered. Penalties for violation of the minimum standards have been established. Periodic inspection by personnel of the Board of Health ’ are made to assure compliance with the Code and rules and regulations.

According to Ellen Cleary, an inspector for the Board of Health, a written report is prepared after each periodic inspection, a copy being left with the nursing home operator, and such reports become part of the records of the Board of Health. If any violations of the rules and regulations are found to exist, the operator of the nursing home may be afforded an opportunity to abate such violations.

Ellen Cleary identified Board of Health reports of inspection for the period February, 1962 through July, 1962. These reports, seven in number, were admitted as exhibits for the plaintiffs. The first report dated February 5, 1962, notes under the Summary of Home Inspection, two violations. First, lack of LPN (licensed practical nurse) on night tour and second, although home licensed for fifty-five beds the number thereof had been voluntarily reduced to fifty-one. The reports of inspection for the dates of February 28, 1962, March 26, 1962 and May 31, 1962, either do not indicate any violations (report of March 26, 1962) or violations not material to this proceeding. The next report of June 12, 1962, notes as a violation, the failure to have an LPN on the night tour and indicates that the violations of May 31, 1962, were abated. Violations noted on the report of July 18, 1962, are that there was no LPN either on afternoon tour or night tour as well as other violations not material to this proceeding. The report also indicates a visit was to be made by Dr. Starcevich and an inspector. The report of July 25, 1962, does not appear to be a regular inspection report but refers to a revisit of the home by Dr. Starcevich and an inspector from the Board of Health. This report indicated that the violations observed on July 18, 1962, were in the process of correction and indicated that discussion took place concerning signing and dating labels on medicine bottles, physical examination admission records and capacity of the home, “permission granted to remain at 49 for 10 days at which time a decision must be made regarding licensure—personnel adequate for census of 49.” On the bottom of the report there is a notation of a telephone call received from Dr. Hochberg indicating that he has required personnel for a census of fifty-five and wishes to remain at fifty-five. Each of the reports indicated the number of patients residing on the premises (ranging from forty-nine to fifty) and most of the reports list the capacity of the home at fifty-one (apparently referring to the number of beds standing).

According to the testimony of Ellen Cleary, a nursing home with a licensed capacity of fifty to ninety-nine residents is required to employ a registered nurse 40 hours per week and to employ licensed practical nurses on the afternoon and night tours at all times. If the license capacity is forty-nine residents or less the nursing home is required to employ a licensed practical nurse 40 hours per week.

In support of their argument that the evidence supports the Master’s conclusion that rescission was not warranted on account of fraud, defendants have called our attention to Bennett v. Hodges, 374 Ill 326, 29 NE2d 524, Krankowski v. Knapp, 268 Ill 188, 108 NE 1006 and Prout v. Hoy Oil Co., 263 Ill 54, 105 NE 26. Such cases involve oral representations allegedly made for the purpose of inducing the execution of a document and hence they are not referred to as being decisive of the issues involved herein. Such cases do set forth the well established elements of fraud which we do not believe require repetition herein. So far as pertinent to our decision in this case, the parties agree that fraud includes the requirement that a representation must be both false and material.

Defendants insist that the representations in the contract were not untrue in any material respect, that the Master’s conclusions to such effect are supported by the evidence and the trial court erred in holding to the contrary.

In examining the report of the Master it appears that he considered the violations noted in the Board of Health reports as minor and therefore immaterial. Such view may well have affected his determination that the representations were true.

In our view the conclusions of the Master were not supported by the evidence and we are satisfied that the trial court did not err in rescinding the contract on account of fraud.

The Board of Health reports as heretofore described in some detail, constitute the principal evidence of false representations. The gist of plaintiffs’ claim is that the nursing home did not comply with applicable rules and regulations of the Board of Health because of inadequate personnel. Each of the Board of Health records of June 12, July 18 and July 25, reveal violations because of inadequate personnel namely lack of licensed practical nurses. Such failure jeopardized the continued operation of the nursing home at its licensed capacity of fifty-five residents. As revealed by the report of July 25 and as admitted by Hochberg, the nursing home was given ten days to indicate its intention to remain at the fifty-five resident capacity, clearly inferring that if no change took place in the prevailing conditions the capacity of the home would be reduced. We regard the adequacy of personnel as an important and material fact in determining whether the nursing home is in compliance with the Act.

That the nursing home did not have adequate personnel on June 12, July 18 and July 25 and that Hochberg had notice of such violations is undisputed by the evidence. In holding as the Master did that on July 11 (the date of the contract) and July 31 (the date of the closing), the nursing home was in compliance with the rules, it appears that the Master relied principally on the testimony of Hochberg to the effect that on such dates there were no pending notices of violations and that the home complied with the applicable rules and regulations on those dates. With respect to his testimony concerning absence of pending notices of violations the records of the Board of Health are to the contrary. According to their reports the violation of June 12 was still pending on July 11. Also according to their records the notices of violations of July 18 and July 25 were still pending on July 31. Although Hochberg offered some testimony to the effect that the violations had been abated in part, it is clear that the notices were still pending on the dates referred to. Likewise his statement that the nursing home complied with the rules on July 11 and July 31 is contrary to the undisputed inferences which may be drawn from the reports. Although adequacy of personnel was the principal issue in the case, Hochberg did not testify that on either of said dates the nursing home employed adequate personnel. Not even the statement on the report of July 25 to the effect that Hochberg had called the Board of Health and indicated that he had adequate personnel and desired to continue at a capacity of fifty-five residents supports this contention. Hochberg when called as an adverse witness under section 60, testified that he did not recall when such telephone call was made and could not recall whether it was made before or after the contract was rescinded. Later, when he testified in his own behalf, his memory improved and, although he could not recall the date, he thought it was a day or two after July 25. Under the circumstances we believe the evidence is wholly inadequate to support the conclusion of the Master.

Since we hold that the trial court properly rescinded the contract on account of fraud it is unnecessary to consider whether rescission was also justified for the alleged failure of the defendants to permit inspection of their books and records. If the trial court was correct in rescinding the contract it would also follow it did not err in dismissing defendants’ counterclaim for breach of contract.

Defendants next argue the trial court erred in entering judgment against them for the real estate broker’s commission ($13,000). In addition to the $5,000 down payment (which was made) the contract provided that the transaction would be closed (possession transferred) on July 31, 1962, at which time plaintiffs were required to make an additional payment of $25,000 and execute and deliver to defendants their promissory note in the amount of $13,000, the balance of the purchase price being payable in monthly installments. Another provision of the purchase contract provided, “The seller agrees to pay a broker’s commission to Karlin Realty, Inc. in the amount of $13,000.00 by assigning to it without recourse the $13,000 note herein described, this being in full for all commission.” As indicated earlier plaintiffs notified defendants on July 31, 1962, of their intention to rescind the contract and as a consequence, the $13,000 note was never executed and delivered by the plaintiffs.

Defendants argue that the broker’s right to a commission depends solely on the contract provision. Such provision, according to defendants, provides that the commission is payable from the proceeds of the sale and only if there are such proceeds. There being no proceeds, it follows that they are not personally liable for any commission. Such argument assumes, and it is this assumption which the broker contends is fallacious, that the cause of the failure of the contingency is immaterial. In other words, so long as the seller received no proceeds from the sale, no commission is payable regardless of the fact that the conduct of the seller may have prevented any proceeds being available.

Although there do not appear to be any Illinois authorities dealing directly with this issue we believe the cases cited by the parties lay the foundation for its resolution.

The basic principles relating to brokers’ commissions are set forth in the leading case of Fox v. Ryan, 240 Ill 391, 88 NE 974, and such case has been discussed by both parties in their briefs. Where the terms of employment between owner and broker provide that the broker’s compensation is dependent upon a sale of the property the broker will be deemed entitled to his compensation if he secures a purchaser ready, willing and able to purchase the property on terms acceptable to the seller. If such a purchaser is secured by the broker he is entitled to his compensation and the owner may not defeat such right to compensation by declining or refusing to make the sale. If a sale’s contract is entered into, it has the effect of establishing in the absence of fraud or misrepresentation by the purchaser, that the broker has secured a ready, willing and able buyer on terms acceptable to the seller. Whether or not the seller thereafter abandons such contract is immaterial. If no sale’s contract is entered into, the broker will be required to prove that his prospective purchaser is ready, willing and able to buy on terms specified by the owner.

In the Fox case, which is the basis for the foregoing observations, a broker was employed to sell shares of stock for a specified price, his commission to be five percent of the selling price. After unsuccessful negotiations with prospective purchasers suggested by the owner, the owner indicated that he would continue the negotiations himself and if a deal was made he promised to pay the broker $4,000 which compensation was acceptable to the broker. Thereafter a sale was made by the owner to the purchasers with whom the broker had been negotiating, the contract providing for a down payment and payment of the balance in deferred installments. The purchaser made the down payment but defaulted in the deferred payments and the contract was abandoned by the seller. Based on the reasoning set forth in the foregoing paragraph the broker was held to be entitled to his commission of $4,000.

Although not an issue in the Fox case, one aspect of the general principles requires further consideration, namely the purchaser must be willing to purchase on terms acceptable to the owner. This means that the prospective purchaser is willing to undertake and perform all of the obligations as proposed by the owner. The amount and terms of payment of the broker’s compensation is a matter of the employment contract between the owner and broker. In the absence of any contrary provision, the payment of such compensation is the responsibility of the owner. The employment contract like any other contract may be modified by agreement of the parties. Where the broker has secured a buyer ready, willing and able to purchase on terms proposed by the seller and such terms do not include assumption of the obligation to pay the real estate commission by such prospective buyer, the owner’s refusal to consummate the sale may not defeat the broker’s claim to compensation even though the time for payment thereof might have been determined with reference to some future event such as closing. The owner’s refusal to do one act i. e. make the sale, cannot relieve him of a responsibility, the time for performance of which is dependent thereon.

Likewise, in the instant case even though a contract had been entered into, we do not believe that the owners’ conduct which prevented the occurrence of the event which determined the time of payment of the commission may relieve the owner of the responsibility for paying the broker’s commission. While it is true that the broker had agreed to accept the personal obligation of the buyer, the note payable to seller endorsed without recourse, when the conduct of the seller prevents the obligation from coming into being, the seller is not thereby excused from liability for the commission.

Defendants have relied heavily on the case of Consolidated Trading Corp. v. Roth, 345 Ill App 551, 102 NE2d 551, which in turn relies on the case of Burnett v. Potts, 236 Ill 499, 86 NE 258. While these cases might be distinguished on the grounds that the employment contract provided for a net amount to be received by seller, broker’s commission to be the excess over such amount, we also believe that such cases are of doubtful authority for the proposition that the seller’s conduct is immaterial if it prevents the occurrence of an event upon which the payment of a broker’s commission is contingent. In the Burnett case the issue is not discussed and is dismissed with the observation that the Appellate Court found that the seller was not at fault. An examination of the Appellate Court opinion, Burnett v. Potts, 143 Ill App 160, reveals that the Appellate Court did not consider the issue and made no such finding. In the Consolidated Trading ease the court held that the failure of the buyer to perform was not due to fraudulent representations to him by the seller and inferentially at least, it might be suggested that if fraud had existed the decision might have been different. Further the court appears to have held in Consolidated that the contract upon which the broker’s claim for commission was based was not a sale of all of the shoes as claimed by broker.

We believe Crane v. Eddy, 191 Ill 645, 61 NE 431, a case cited by the broker, supports our views although the precise issue presented by this case was not therein involved. In the Crane case the defendant owner sold the property on a deferred payment basis by transferring title thereto and taking back a trust deed securing notes representing the deferred balance. At the same time, the owner executed a note to the real estate broker in the amount of and for his commission, which provided that the payments thereon would be made in proportion to the amounts which the owner received from his buyer. The buyer defaulted, the trust deed was foreclosed and the owner purchased the property at the foreclosure sale. The precise issue decided by the court was that under the circumstances the owner had received the proceeds of the sale. It might be suggested, although we do not so hold, that if repossession of the property by the owner is equivalent to receipt of proceeds, the retention of the property by the owner might also be so considered. However, there is another aspect of the Thomas case which although dicta, we believe is of some significance. When the buyer made partial payments the owner made partial releases of the real estate from the lien of the trust deed which was not required by its terms. The court observed that the partial release of the trust deed without the assent of the broker could have affected the owner’s receipt of the proceeds of the sale and if so the owner might be liable as a consequence thereof.

Accordingly we find that the trial court did not err in awarding judgment against the defendants for the real estate commission.

During the pendency of this appeal the defendants filed their motion requesting that the cause so far as it related to their liability for the broker’s commission, be remanded to the trial court on the grounds that newly discovered evidence had been found. Although we have some question concerning the propriety of seeking such relief at this late date it is our view that no reason exists for remandment in view of our decision and the reasons therefore as set forth in this opinion. After the contract of July 11, 1962, was executed it was modified by providing that if the plaintiffs failed to sell a certain described property which they owned prior to July 31st, the date of the closing, the plaintiffs if they so elected, could transfer such property to the defendants at an agreed valuation of $15,000 to be accepted as part payment of the $25,000 required on July 31. The newly discovered evidence is a letter from the broker to the defendants in which the broker outlines alternative methods of payment of his commission if such property were to be transferred to the defendants in lieu of the payment required. It is apparent that the conduct of defendants was equally responsible for the failure of the event to occur and therefore such letter would have no bearing on the propriety of the trial court’s judgment.

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

Judgments affirmed.

ALLOY and SCHEINEMAN, JJ., concur.


author: TRAPP, P. J.

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Bill Pat Kelley, Defendant-Appellant.
    Gen. No. 10,975.
    Fourth District.
    February 13, 1969.

      Lewis M. Grigsby, of Pittsfield, for appellant.
    Cecil J. Burrows, State’s Attorney, of Pittsfield, for appellee.
   TRAPP, P. J.

Defendant appeals from a judgment of conviction following a jury trial upon his indictment for burglary. He was sentenced to the custody of the Attorney General of the United States for a term of not less than ten nor more than twenty years to run concurrently with a sentence of ten years imposed by the United States District Court for Colorado. Ill Rev Stats 1965, c 38, § 119-2 (e).

Upon this appeal it is urged that defendant was denied his constitutional right to a speedy trial.

Defendant was indicted on July 20, 1964, and arraigned on August 11th. The record does not show expressly the giving of bond, but does indicate that he was not incarcerated. On September 4th, trial date was set for October 13th. On this date defendant appeared and advised that his counsel had withdrawn. At his request the case was continued until October 26th. On October 16th, defendant advised the court that he had obtained counsel, but on the trial date, October 26th, neither the defendant nor his counsel appeared. Bond was forfeited, and a bench warrant issued.

The defendant testified that he was restrained in a Denver jail from May, 1965, until January, 1966, whereupon he was imprisoned in the Federal penitentiary at Leavenworth. The State’s Attorney agrees that a detainer was placed on defendant on April 15, 1966, at Leavenworth. By letter dated August 26,1966, addressed to the “District Court Clerk,” defendant stated that he was ready for trial, . . and available through writ of Habeas corpus ad prosequendum.”

On September 19, 1966, such writ was ordered to issue to return defendant for trial on October 19th. On September 28th, the writ was vacated, and a writ was ordered for defendant’s return on October 25th, for trial. On the latter date, defendant appeared in court, he requested appointment of counsel, and the continuance of the case. On November 7, 1966, counsel for defendant was appointed. At the latter’s request for a continuance to prepare for trial, the case was set for November 28th.

It is defendant’s argument that the constitutional right to a speedy trial should be measured in time from the placing of the “detainer” on April 15, 1966. This record shows no motion or application for discharge for failure to provide a speedy trial prior to trial or conviction. The right to speedy trial as a constitutional right is personal to the accused and is deemed waived unless application for discharge is made prior to conviction. People v. Kuczynski, 33 Ill2d 412, 211 NE2d 687; People v. Stahl, 26 Ill2d 403, 186 NE2d 349.

Again, the provisions of chapter 38, § 103-5, Ill Rev Stats 1965, which provide for trial within 120 days from the date the defendant is taken into custody, is not the precise equivalent of the constitutional right to a speedy trial. People v. Stuckey, 34 Ill2d 521, 216 NE2d 785. Such statute requiring trial within 120 days is applicable to persons imprisoned in Illinois. People v. Terlikowski, 83 Ill App2d 307, 227 NE2d 521 (Third Dist 1967). The defendant, who had been released on bond, was returned for trial within 60 days of his letter demanding trial. The writ of habeas corpus for defendant’s return was issued 146 days after the detainer was filed and he was returned for trial within 182 days following such detainer. He then asked for a continuance to prepare for trial.

In People v. Moriarity, 33 Ill2d 606, 213 NE2d 516, it was held that a delay of ten months in bringing the defendant to trial after he was located in another state was not so oppressive as to amount to a denial of speedy-trial. In Terlikowski, a delay of seven months was found not to be a constitutional denial of speedy trial.

The case is readily distinguished from People v. Bryarly, 23 Ill2d 313, 178 NE2d 326, where eight years intervened between the indictment and trial, and four and a half years intervened between placing the “detainer” in another state and the return of that defendant for trial in Illinois.

The record shows no evasion of prosecution by the State as in People v. Fosdick, 36 Ill2d 524, 224 NE2d 242, or People v. Patheal, 27 Ill2d 269, 189 NE2d 309, and no refusal to prosecute as in People v. Swartz, 21 Ill2d 277, 171 NE2d 784. The record shows that the case was set for trial on April 19, 1965, and on February 14, 1966, with notice to the surety on defendant’s bond.

An essential fact is that defendant was provided with a prompt trial setting following his arraignment. So far as the record shows his failure to appear was voluntary. The delay between the placing of the “detainer” and the return of defendant for trial is not so oppressive or arbitrary as to constitute denial of his right to a speedy trial.

Defendant asserts error in the giving of an instruction defining the offense of burglary in the language of the statute without further instructions as to the nature and elements of burglary, and without defining the term “felony.”

The supplemental record discloses that the instruction to which objection is made was tendered by the defendant. The record does not include a report of proceedings, it does not show an instruction conference, or any instruction which was tendered by defendant and refused by the court. The record before us does not show any of the instructions given or refused except the single given instruction tendered by defendant.

Illinois has long followed the rule that defects in instructions are waived if no objection is made in the trial court. People v. Cavaness, 21 Ill2d 46, 171 NE2d 56; People v. Lyons, 36 Ill2d 336, 223 NE2d 99. It has been held that where defendant has tendered substantially the same instruction as that objected to, the objection is waived. People v. Watts, 81 Ill App2d 283, 225 NE2d 147 (Third Dist 1967). It seems reasonable to conclude that defendant cannot on appeal object to an instruction given at his own request. Bianchi v. United States, 219 F2d 182, cert denied 99 L Ed 1249. Instructions given at defendant’s request and not objected to by him cannot be challenged under the plain error provision of Rule 52 (b), Federal Rules of Criminal Procedure. United States v. Aulet, 339 F2d 934, cert denied 14 L Ed2d 269. Cf. c 110A, § 615(a), Ill Rev Stats 1967.

The record discloses no substantial error capable of resulting in a miscarriage of justice. The judgment of the trial court is affirmed.

SMITH and CRAVEN, JJ., concur.


author: EBERSPACHER, J.

text:
    The People of the State of Illinois, Plaintiffs-Appellees v. Clarence Rohwedder, Defendant-Appellant.
    Gen. No. 67-116.
    Fifth District.
    January 30, 1969.
    Rehearing denied March 10, 1969.

      Cohn, Cohn & Korein, Saul E. Cohn, and Joel A. Kunin, of East St. Louis, for appellant.
    John M. Earns, Jr., State’s Attorney of St. Clair County, of Belleville (Joseph B. McDonnell, Assistant State’s Attorney, of counsel), for appellee.
   EBERSPACHER, J.

The defendant, Clarence Rohwedder, together with two codefendants, was indicted by the Grand Jury of St. Clair County for the offense of burglary in violation of c 38, § 19-1, Ill Rev Stats 1967. The trial of the defendant and one of the codefendants commenced on May 22, 1967. After the jury had been selected and sworn the codefendant entered a plea of guilty. The trial of the defendant resulted in the jury returning a verdict finding the defendant guilty. The defendant has appealed from the judgment upon that verdict.

The defendant raises three issues in his appeal. The first is whether the trial court erred in dismissing a juror after that juror had been accepted by both the State and the defendant. The second issue is whether the trial court correctly denied the defendant’s request for additional peremptory challenges, and the third issue is whether the trial court ruled correctly as to the admission of certain evidence.

From the record it appears that during the voir dire examination of the first panel of four veniremen, one of the veniremen was asked, among other things, whether she was acquainted with the two defendants being tried. The venireman stated that she was not and was subsequently accepted together with three other veniremen. In choosing the first panel of four, the defendants exercised three peremptory challenges.

The parties then proceeded to the selection of the next panel of four jurors. In selecting the second panel the defendants exercised eleven of their peremptory challenges and accordingly had used fourteen of their allotted 20 peremptory challenges in accepting their first eight jurors. The court then recessed for the day.

At the beginning of the second day of trial a conference was held between the court and counsel at which time the court stated:

“At approximately 4:30 p. m., May 22, 1967, a juror by the name of Mrs. Golee (a juror in the first panel of four), after the Court had recessed for the day, counsel and defendants were no longer before this Court, Mrs. Golee stated to the Court that after observing one of the defendants, not naming which defendant it was, she realized that she knew this defendant by reason of the fact that he either worked or she had seen him in one of the places of her employment and that the reason that she did not recognize him after having observed said defendant from approximately 9:30 a. m. to approximately 3:00 p. m. in the afternoon was that he was clothed differently than she generally saw him clothed.”

The court then indicated that it was going to discharge the juror after the selection of the entire jury. Defense counsel for both the defendants objected to this procedure and moved for a mistrial. The State’s Attorney thereafter suggested that the juror be discharged immediately. Again defendants moved for a mistrial and the court denied their motion. Mrs. Golee was placed in the jury box and questioned in open court. She stated that she knew one of the defendants and had not spoken to any prospective jurors concerning the fact that she knew one of the defendants. The court thereupon dismissed her. After her dismissal, defense counsel objected and renewed his motion for a mistrial. Again, the motion was denied.

In selecting a replacement for Mrs. Golee, defense counsel asserted four of their peremptory challenges.

The court thereafter began the process of selecting the final four jurors to fill the panel. After the State accepted and tendered four veniremen, the defense counsel exercised their last two peremptory challenges. At this juncture, they moved for additional peremptory challenges for the purposes of completing the panel. The court denied defendant’s motion. Thereafter, the final two jurors were selected without challenge.

After the selecting of the jury, the codefendant withdrew his plea of not guilty to the indictment and entered a plea of guilty.

The defendant here, as in the court below, argues that he was denied a fair and impartial trial by the court’s action of excusing on its own initiative a juror after she had been accepted by both parties.

It is apparent that the trial court was confronted with an unusual situation calling for the exercise of sound judicial discretion. It should be noted that the subject was first initiated by the trial judge in an obvious effort to acquaint counsel with a fact that a juror previously accepted by both sides had communicated to him information different from that given by the juror under oath prior to her acceptance. Clearly there were no grounds upon which a mistrial could have been declared as insisted by the defendant and no suggestion was made that any prejudice was made against either the People or the defendants. The juror had not indicated which defendant was known to her or whether the fact of that acquaintance would affect her ability to impartially decide the case. She later confirmed that she had not spoken to any other juror concerning the fact that she knew one of the defendants.

It is clear from the record that the Court was endeavoring to reach a satisfactory solution to a unique problem. Certainly the defendant cannot reasonably contend that the trial judge should have adopted the simple expediency of declaring a mistrial for no cause appeared in the record for such action.

In the present case the trial court sought to deal with an accepted juror who informed the court that she had made certain misrepresentations, although apparently unintentional, to the court and counsel during the voir dire examination. These circumstances are clearly distinguishable from the ease cited to us by the defendant where the court arbitrarily discharged jurors accepted by the defendant where they had stated that they had a preconceived notion as to the guilt or innocence of the defendant as in Van Blaricum v. People, 16 Ill 364 (1855). Here the record does not reflect what, if any, prejudice was held- by the excused juror and the action of the trial court, as disclosed by the record, was arbitrary; but the record does not reflect that defendant was prejudiced by the procedure followed. A proper approach would have been for the court to allow the parties to reexamine the juror and then to have considered any challenges for cause or the use of peremptory challenges by either party. Although the defendants, after 10 jurors were selected, had exhausted all of their peremptory challenges, there is no showing that any objectionable juror was forced upon the defendants. For the same reason the court correctly denied the defendant’s request for additional challenges. People v. West, 80 Ill App2d 59, 225 NE2d 397 (1967).

We turn next to the defendant’s contention that certain testimony was improperly admitted. The first evidence complained of by the defendant concerns the testimony of the arresting officer as to the arrest of the codefendants as well as the defendant.

It appears from the record that three police officers of the East St. Louis Police Department went to an appliance store in East St. Louis, Illinois, during the early morning hours of October 2, 1966, which was the scene of the alleged burglary. They testified that they had observed a hole in the wall of the building of the appliance store; that they saw practically all of the television sets and other appliances had been moved into a vacant office adjacent to the appliance store; and that they further saw an Avis Rental truck-van parked adjacent to the door of the vacant building. They further testified that they searched the building and that during their search observed an unidentified individual going up some stairs. The remainder of their testimony dealt with their search of the premises and the adjoining buildings in which three individuals, including the defendant, were apprehended. The portion of the testimony objected to by the defendant was the testimony concerning the description of the individuals other than the defendant. The basis of the objection of the defendant was that the description given in the testimony fit the description of the defendant’s codefendant, who initially was being tried with the defendant but had entered a plea of guilty after the jurors had been sworn. The defendant urges that this testimony was immaterial and highly prejudicial to the defendant.

The evidence was prejudicial to defendant in that it was designed to induce a verdict of guilty, but was material and relevant. The jurors hearing the case were entitled to hear the totality of the circumstances surrounding the alleged offense and the apprehension and arrest of the parties in the premises. The fact that the defendant’s codefendant was arrested at the same time as the defendant and pled guilty during the course of the trial does not make the circumstances surrounding his arrest immaterial as to the trial of the defendant. The fact that one of the codefendants pleads guilty certainly does not change the facts of the case.

The defendant also objected to the evidence introduced that the rented truck parked adjacent to the building was not connected to the offense. The truck rental agent testified that he rented this particular truck on the evening of the offense to a male Negro and that this was the same truck that was found parked adjacent to the burglarized building, although there was no evidence that any of the persons arrested were the ones that had rented the truck other than that one of the codefendants was a Negro male. We believe that the evidence was properly received as another circumstance in showing an intent to commit the offense of burglary. The very fact that a rented truck is found standing at the scene of a burglary in our opinion is relevant as a circumstance to show such an intent, at least on the part of someone, to commit that offense.

It is not necessary that each link in the chain of circumstantial evidence be proved beyond a reasonable doubt, if the evidence as a whole leaves no reasonable doubt as to the defendant’s guilt. People v. Darr, 262 Ill 202, 104 NE 389 (1914).

In our opinion the jury was fairly and impartially constituted and that the evidence produced at trial overwhelmingly proved the defendant guilty beyond a reasonable doubt of the offense for which he was charged and that the conviction should be affirmed.

Judgment affirmed.

GOLDENHERSH and MORAN, JJ., concur.


author: MR. PRESIDING JUSTICE DRUCKER

text:
    Edna Gaines, Plaintiff-Appellant, v. Harry Gaines, Defendant-Appellee.
    Gen. No. 52,309.
    First District, Fourth Division.
    February 5, 1969.

      D. Adolphus Rivers, of Chicago, for appellant.
    Marshall E. Winokur, of Chicago, for appellee.
   MR. PRESIDING JUSTICE DRUCKER

delivered the opinion of the court.

This is an appeal by plaintiff from an order entered on December 23, 1966, reducing the amount of child support which the defendant was required to pay. The court found that defendant had experienced a substantial change in his financial circumstances so as to necessitate the reduction. The court also denied fees to plaintiff’s attorney.

Plaintiff makes three contentions on appeal: (1) the petition of defendant for a reduction in child support does not allege any facts which constitute a change in circumstances sufficient to sustain a reduction in child support requirements; (2) defendant did not prove by the manifest weight of the evidence that he had experienced a substantial change in circumstances; and (3) attorney’s fees should have been granted for services rendered in the enforcement of the decretal order of April 29, 1966, for child support and in the defense of defendant’s petition for reduction of child support.

A decree of divorce was entered in behalf of plaintiff on November 22, 1960, awarding her custody of the parties’ minor son. Defendant was ordered to pay $20 per week for child support.

On April 29, 1966, pursuant to a petition of plaintiff for a rule to show cause and for an increase in child support, an order was entered modifying the divorce decree to require defendant to pay increased child support of $56 twice a month. There was a finding that defendant was $220 in arrears in his child support payments, and he was ordered to pay that amount at the rate of $10 twice a month.

On August 4, 1966, plaintiff filed a petition for a rule to show cause alleging that defendant had failed to pay any part of the $220 arrearage and that as of July 15, 1966, defendant owed $316. Plaintiff prayed for a rule to issue and for a reasonable allowance for attorney’s fees. On September 14, 1966, defendant filed his answer stating that he is regularly employed by the Chicago Police Department but denying that he is well able to pay increased child support or a fee for plaintiff’s attorney. He further alleged that the decretal order of April 29, 1966, was entered without a full and complete hearing as to his financial status, and he prayed that the rule to show cause be denied and that a hearing to determine his financial status be held.

On October 26,1966, defendant filed a petition to reduce child support payments in which he alleged that at the time of the divorce decree he was working at three jobs (for the Chicago Police Department, for the United States Post Office and for the Antioch Baptist Church); that he lost his job at the Post Office on November 26, 1965; that he was adjudicated a bankrupt in 1965; that he owes a mortician $612 for his father’s funeral; that he owes a doctor $145 for recent hospitalization; that he was suspended from the police force for five days in May 1966. He prayed that the child support payments be reduced from $56 every two weeks to $10 per week, plus the continued payment of hospitalization insurance for the child.

On the same day plaintiff filed an answer to defendant’s petition alleging that defendant’s loss of job was taken into consideration at the April 29, 1966, hearing; that the loss of job is not a change in circumstances subsequent to the April 29 order; that the adjudication of bankruptcy (which also preceded the April 29 order) puts defendant in a better position to pay support by eliminating some debts; that defendant is not the sole support of his mother who receives Old Age Pension; that defendant’s suspension for five days from the police force has no bearing on his ability to pay support in the future; and that defendant received a full hearing before the order of April 29 was entered.

On December 21, 1966, defendant filed an amended petition to reduce child support alleging that subsequent to the order of April 29, 1966, he was suspended from the police force for five days without pay; that a judgment was entered against him for $143.65; that an internal revenue assessment of $141.49 was levied against him; that he is paying off the balance of a $612 bill for the funeral of his father even though this obligation was discharged in bankruptcy; that he had incurred a doctor bill of $145 which is now being collected by a collection agency; that he had to contribute to the support of his aged mother; that he had to obtain an attorney to defend him in a lawsuit where he is being sued for $1,000; and that he has terminated his job with the Post Office.

On December 23, 1966, the Circuit Court ordered that the payments of child support be reduced to $20 per week; that defendant pay $2.50 per week on the arrearage until it is fully paid off; and that the petition for a rule to show cause be dismissed. The court also found that defendant “was not in a position to pay plaintiff’s attorney’s fees.” Plaintiff appealed from the finding regarding the attorney fees and from the judgment fixing the amount of child support at $20 per week.

Opinion

We would first point out that although the order recited that a full hearing had been held on all the issues there is no record of any evidence of any kind having been adduced or considered. The report of proceedings contains only the statements and comments of the attorneys. These discussions dealt with the pleadings and references to pretrial conferences in chambers.

The plaintiff contends that the petition and amended petition for reduction of support payments do not state a sufficient change in circumstances to sustain a reduction in such payments. Any change in support payments is left to the discretion of the court, but it is well established that the petitioning party must demonstrate a sufficient change in circumstances since the previous decree. Eggemeyer v. Eggemeyer, 86 Ill App 2d 224, 230, 229 NE2d 144; Goodman v. Goodman, 329 Ill App 444, 69 NE2d 26 (abst); Schilling v. Schilling, 341 Ill App 477, 94 NE2d 610 (abst). In the instant case defendant must show that his ability to contribute to the needs of the child had diminished since the entry of the April 29, 1966, decree. See Zug v. Zug, 81 Ill App2d 298, 225 NE2d 146 (abst).

In his petition defendant alleges that he lost his job with the Post Office on November 26, 1965. Since this occurred before the April 29 order it is not a change in circumstances during the relevant period. He also alleges that he was adjudicated a bankrupt in 1965; but this also occurred before the entry of the April 29 order. Furthermore, the discharge in bankruptcy does not diminish defendant’s ability to make support payments since the discharge relieves him of debts and thereby strengthens his financial position. He also alleges that he owes a mortician $612 for the funeral of his father; but this debt was discharged in bankruptcy and later revived by defendant. As such, not only did the debt arise before the April 29 order but it is of such a nature that it cannot be fairly used as a demonstration of a change in circumstances. Having been relieved of the debt, defendant chose to revive it to the potential harm of his child.

Defendant further alleges that he was suspended from the police force for five days; however, this is not a permanent change in his circumstances and thus would not be a valid basis for permanent reduction in support payments. He also asserts various other debts including a judgment against him for $143.65, an internal revenue assessment of $141.49, a doctor bill of $145 and attorney’s fees for his defense in another lawsuit. It is uncontradicted that defendant’s net income was $490.36 per month. Under those circumstances, we cannot find that these minor debts are a basis for reducing the child support payments from $56 twice a month to $20 per week.

Defendant, however, claims that the decree of April 29, 1966, which set the payments at $56 semimonthly, was invalid and therefore it was unnecessary for him to show a change in circumstances. He argues that since the April 29 decree is void he is only obligated to pay $20 per week as originally ordered in the divorce decree, and that the court’s order of December 23 merely reinstates the original order. However, his argument urging invalidity is not convincing. He concedes that a court which grants a decree of divorce retains jurisdiction over the parties to make such alterations in support of children as shall appear reasonable and proper (Ill Rev Stats 1965, c 40, § 19) but urges that the court was without jurisdiction because the petition for an increase in support payments did not allege any change in plaintiff’s or defendant’s circumstances. Thus the sufficiency of the petition and not the jurisdiction of the court is the target. In Eggemeyer v. Eggemeyer, 86 Ill App2d 224, 229 NE2d 144, and Smith v. Smith, 334 Ill 370, 166 NE 85, cited by defendant, the trial court found petitions to be insufficient but there were no findings that the court lacked jurisdiction or that the proceedings were void. In the instant case there was a full hearing on plaintiff’s petition on April 29. We cannot conclude that the alleged failure of plaintiff’s petition to specifically set out a change in circumstance voided the order entered on that petition. The order of April 29, not being void, defendant could properly have sought relief from its terms only by the timely filing of a motion to vacate, a section 72 petition or an appeal, none of which he did.

Plaintiff also contends that she is entitled to attorney’s fees. In Gregory v. Gregory, 52 Ill App2d 262, 269, 202 NE2d 139, the court stated:

When it becomes necessary that a party employ counsel to come into court to enforce her rights under a decree of that court, she is entitled to be allowed her reasonable attorneys’ fees. Riddlesbarger v. Riddlesbarger, 341 Ill App 107, 93 NE2d 380; Shuff v. Fulte, 344 Ill App 157, 100 NE2d 502.

The trial court may consider the circumstances of the defendant in setting the amount of attorney fees and the method of payment but should not excuse the allowance of fees on the ground that defendant is “not in position” to pay them.

The judgment of December 23, 1966, ordering defendant to pay $20 per week for child support is reversed (the judgment of April 29, 1966, ordering defendant to pay $56 every two weeks is thereby reinstated) and the finding that defendant is in no position to pay attorney fees to plaintiff is also reversed and the cause remanded for a determination of attorney fees to be paid by defendant to plaintiff.

Reversed in part; reversed and remanded in part.

ENGLISH and STAMOS, JJ., concur.