text:
    People of the State of Illinois, Plaintiff-Appellee, v. James Gardner (Impleaded), Defendant-Appellant.
    Gen. No. 51,051.
    First District, Fourth Division.
    July 3,1968.

      Gerald W. Getty, Public Defender of Cook County, of Chicago (Marshall J. Hartman and James J. Doherty, Assistant Public Defenders, of counsel), for appellant.
    John J. Stamos, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and James R. Truschke, Assistant State’s Attorneys, of counsel), for appellee.
   MR. PRESIDING JUSTICE McCORMICK

delivered the opinion of the court.

Charge: Unlawful sale of narcotic drugs.

Defense : Denial of the charge.

Judgment: After a jury trial defendant was found guilty and sentenced to 10 years to life in the Illinois State Penitentiary.

Points Raised on Appeal :

1) Defendant was not proved guilty beyond a reasonable doubt.

2) The jury was interrupted in its deliberations.

Evidence : On behalf of the State evidence was introduced that on March 28, 1962, at about 10:30 p. m., one Monty Blue went to police headquarters where he told Police Officers King and Kelly of the Narcotics Section that he could buy heroin that night and would lead them to the seller. He was searched thoroughly by the police, and no money or narcotics were found on him. After-wards the police gave him $12 in marked money, and he drove with Officer Kelly in a squad car to the vicinity of 39th Street and Ellis Avenue in Chicago. Officer King drove to the area in his squad car which he positioned in a gas station near Cottage Grove and Oakwood, later moving to another station near Oakwood and Ellis.

Blue testified that he left Officer Kelly’s squad car at 39th and Ellis and went to 40th Street and Oakwood, where he stood for two or three minutes, when the defendant, James Gardner, and a girl named Billie Wider-man drove up in a car. Blue asked the defendant if he could get some heroin; the defendant told him to wait, and he sent the girl down the street. Blue and the defendant then went around the corner into a hallway on Oakwood Boulevard, where he gave the defendant a $10 bill and two singles, the marked money he had received from Officer King. The defendant then gave him two packages and Blue returned to Officer Kelly’s car. The defendant went down Oakwood Boulevard. Blue testified that when he returned to Officer Kelly’s car he told him he had made the purchase; Officer Kelly radioed Officer King who told them to come to the gas station located across the street from the place Blue and the defendant had met. When they reached there Officer King came to Officer Kelly’s car and Blue gave Officer King the two packages he had purchased.

Officer Kelly testified that after Blue left his car he saw him walk to the corner and saw the defendant and the girl approach him; that the girl walked down the street and Blue and the defendant walked around the corner; that he saw Blue contact no one else, and that Blue was out of his sight for only about 45 seconds. Officer Kelly further testified that Blue got into the squad car and rode with him to contact Officer King; that when Officer King came to Officer Kelly’s car Blue handed Officer King the foil packages; that Officer King immediately tested one of them and found that it was heroin. Officer Kelly stated that after the conversation with Blue, Officer King left and arranged to meet Officer Kelly and Blue at Powers Restaurant, a short distance from where the sale was made.

Both Officer King and Officer Kelly testified to the transfer of the tinfoil packages from Blue to King. After testing the contents Officer King took the packages of heroin to the Narcotics Unit, 1121 South State Street.

Officer King testified that he saw Blue and the defendant go to the corner, but did not see them inside the hallway; that Blue returned to the squad car, and a minute later he, King, received a radio message from Officer Kelly that the sale had taken place. After Officer Kelly drove his squad car to the station where Officer King was parked, King got into Kelly’s car, performed a field test on the white powder in the packages given to him by Blue, and determined that it was heroin. Officer King testified that after a complete description given him by Blue of the people concerned he instructed Blue to enter a restaurant and observe the defendant and the girl. When they were identified by Blue pointing to their backs, Officer King arrested the two persons. They were searched, and the marked $10 bill was found in Billie Widerman’s purse, and a marked $1 bill was found on the defendant. When questioned Billie Widerman said she had received the money in payment for her work. Later, on cross-examination she said she had received the $10 from the defendant.

The defendant, James Gardner, testified that he and Billie Widerman were going home after a movie when he saw Sonny Crockett, who owed him $7 from a poolroom bet; that he parked his car and approached Crockett who was with Blue, and demanded his money; that Crockett gave him a $10 bill and Gardner got $5 change from Billie Widerman, then received $2 more in singles from Crockett as payment in full. He stated that he then left and met Billie Widerman in a nearby restaurant where they were later arrested. He testified that he did not sell narcotics to anyone.

The jury found Gardner guilty, but deadlocked as to Billie Widerman who was then discharged.

The defendant argues that the informer, Blue, should be disbelieved because he testified that after he made the purchase from Gardner, Officer King paid him $18 so that he could pay his rent. It is also argued that Blue should not be believed because he had stated on direct examination that he was not an addict and that the last time he used narcotics was nine months before; that he took the stand in the afternoon and testified that the previous statement was not true, and that he actually had used narcotics the day before the trial.

In People v. Bazemore, 25 Ill2d 74, 182 NE2d 649, cited by defendant, the court stated that where the State’s case rests solely upon the credibility of a narcotics addict, both the trial court and the reviewing court must carefully and closely scrutinize the testimony of the witness. The court further stated that it does not necessarily follow that the addict’s testimony must be disbelieved, and added that there were other circumstances which cast doubt upon the reliability of the witness. That case is not applicable to the one before us since the situations are entirely different. We might point out that in the instant case the conviction is not based solely on the credibility of Blue.

In his brief in the instant case the defendant argues that the name of Sonny Crockett had come up in the conversation between the police and Blue, and that in fact, Crockett was the man the informer intended to turn over to the police that evening. The argument in the brief continues:

Now, then, it all becomes crystal clear. Sonny Crockett arranged to meet the informer that night on the corner. They met, the exchange was made, Crockett had the money, and the informer had the narcotics. Suddenly, the defendant appeared, parked his car, seized Crockett by the arm, and demanded the $7.00 that Crockett owed him.

Crockett suddenly saw an opportunity to dump the money which could be hot. He therefore gave the money to the defendant and left. The informer now is perplexed. The fish has left the trap and is clean as a whistle. Crockett has left sans marked money and sans narcotics. What to do. But wait. Here is a man with the money. Put it on him. I’ll tell the police that he was the seller. They’ll never know, after all they can’t see this far as to make out his face.

So, therefore the informer returned to the police and described the defendant. They proceed to Powers’ restaurant, where the informer points out the defendant to the police and exits.

Thus the real seller has escaped, and the defendant is left holding the bag.

In its brief the State says:

The defendant’s story is completely unbelievable. First, the defendant testified that he was driving and saw Crockett who owed him money. That he stopped, walked over to Crockett, argued with him, took ten dollars, went back to his car to get change, came back and got an additional two dollars from Crockett, and left. (The abstract has a stronger statement concerning the meeting with Crockett, which statement does not appear in the State’s brief. There the testimony of the defendant was as follows: “I drove around the block and came back and found a parking space and I parked and I jumped out of my car and ran across the street and grabbed him. I grabbed this man, Crockett. I asked him for my money because I had been — I mean, I had been looking for him for about three weeks. Well, when I asked him for my money he told me he didn’t have it but in his hand he had some money ... I grabbed his arm and pulled his hand to let him know I see he had some money in his hand. ... He gave me the ten.”) Officer Kelly testified that he saw Blue meet the defendant and the co-defendant and that Blue and the defendant walked away and were out of sight no longer than one minute. It would be impossible for the defendant to have seen Crockett, as he testified, go over and argue with him, go back to his car, and then return to Crockett within one minute. Officer King testified that Blue and the defendant came around the corner and went into a hallway where he lost sight for no more than one minute. If, as the defendant claims, he walked into the hallway, Officer King would have seen him especially since the defendant testified that he walked into the hallway twice. Yet Officer King testified that he saw no one else.

The jury had the right to determine which witness was telling the truth, and it has been repeatedly held that the trial judge or the jury who sees and hears the witnesses is in a much better position to find the truth than the reviewing court which has before it only the printed page. The jury found the defendant guilty, and we cannot reasonably say that they were not justified in so finding.

The defendant then argues that the trial judge improperly interrupted the jury. After the jury had been out for approximately two hours, the judge instructed his bailiff to see if they were close to reaching a verdict. The bailiff reported that they were not even close. Afterwards the court discussed the matter with the defense counsel, and as far as the record appears, in the presence of the defendant. Later the jury was called out into the courtroom and the foreman was asked if they were about to reach a verdict. The foreman reported that they could reach a verdict as to one defendant only, at which point the court directed them to return to the jury room, adding: “Let the bailiff know when you are ready to come out. If you have reached a verdict on one defendant you so find, and then you let me know whether you think you can reach a verdict on the other defendant . . . get your verdict prepared, whatever it might be on one defendant.” The jury returned a verdict of guilty as far as James Gardner was concerned, but were unable to reach a verdict as to Billie Widerman.

The defendant argues that under People v. Rohwedder, 78 Ill App2d 211, 223 NE2d 1, this conference with the jury constituted reversible error. To the extent that the Rohwedder case supports this proposition we disagree with its conclusion. The key to this situation as expressed in the Supreme Court cases is the question of whether or not a communication with the jury was calculated to influence the verdict or resulted in prejudice to the defendant.

In People v. Tilley, 411 Ill 473, 104 NE2d 499, the defendant alleged as prejudicial error that the trial judge was guilty of improper conduct in communicating with the jurors after they had retired to deliberate upon their verdict. The judge went to the jury room in company with a bailiff to inquire if there was any hope of arriving at a verdict. One juror stated they wanted further information, whereupon the judge told them to read the instructions. He explained that any new instructions would have to be given in the presence of the attorneys and the defendant. The court said at page 477:

“It is insisted that any communication whatever between the judge and the jury, except in open court with the defendant present, is prejudicial error entitling defendant to a new trial. Several early decisions are cited in which the language of the court tends to support this contention. But the holdings in such cases were discussed in People v. Brothers, 347 Ill 530, wherein an exhaustive review of the authorities on the present question was made, and the rule was announced that judgments will not be reversed when it is apparent that no injury has resulted from a communication to the jury, either by the court or by third persons.”

The court then quoted from the Brothers case as follows:

“Privacy of jury deliberations should be zealously protected against invasion, but the cardinal test on a motion to set aside a verdict on that ground is whether or not the invasion was calculated to influence the verdict of a jury. If it was not so calculated it would be idle to disturb a verdict. Often it is practically impossible to prevent a juror from communicating with a trial judge, as when he approaches the judge and asks permission to telephone to his family or to say that he is sick. Surely, such harmless communications of themselves are an insufficient excuse for setting aside a verdict or reversing a judgment.”

In People v. Canada, 81 Ill App2d 220, 225 NE2d 639, the court said at page 234:

“Finally, defendant argues that prejudicial error occurred when the trial judge, some time after the jury had retired to deliberate, recalled the jury to the jury box and inquired of the foreman: ‘If the jury deliberated longer, is it possible that the jury will arrive at a verdict?’ Defendant relies on People v. Brothers, 347 Ill 530, 180 NE 442, but we find in that case nothing which would require reversal in the case at bar. The trial judge here did not, in our opinion, say or do anything which was calculated to influence the jury’s verdict.”

It should be noted that in the Rohwedder case neither defendant nor his attorney was present at the time of the conference with the jury. Here, however, defendant’s counsel was in court; he had conferred with the defendant; no objection was made to the holding of the conference, and neither in this court nor in his post-trial motion has it been suggested that defendant was not present.

We find no error in the record before us, and the judgment of the Circuit Court is affirmed.

Affirmed.

DRUCKER and ENGLISH, JJ., concur.


source: Caselaw Access Project

author: MR. JUSTICE CRAVEN

license: Public Domain

text:
    Nicholas R. Dispenza, et al., Plaintiffs-Appellants, v. George Picha, Defendant-Appellee.
    Gen. No. 51,095.
    First District.
    August 28,1968.

      Barbera & Friedlander, of Chicago (Dom J. Rizzi and Noah Walker, of counsel), for appellants.
    Neil K. Quinn, Pretzel, Stouffer, Nolan & Rooney, of Chicago (Joseph B. Lederleitner, of counsel), for appellee.
   MR. JUSTICE CRAVEN

delivered the opinion of the court.

Plaintiffs brought personal injury actions to recover damages occasioned in an automobile accident. The jury returned a verdict in favor of the defendant in each case and the plaintiffs’ motion for a new trial was denied. The plaintiffs claim the trial court committed error in failure to grant a new trial for the errors alleged in the post-trial motion.

The evidence in the case indicated that the defendant was traveling east in his car on a through highway. The plaintiffs’ car, going north, proceeded out from a stop sign in front of the defendant in such a manner that the front of the defendant’s car struck the left-hand side of the car containing the plaintiffs. The impact occurred in the eastbound lane of the road the defendant was traveling on and in the northbound lane of the highway the plaintiffs were traveling on.

The plaintiffs were unfamiliar with the route they were traveling. The accident occurred shortly after midnight following a charity event at the Butterfield Country Club in Du Page County. The plaintiffs were returning to Chicago, where they resided, and the driver of their car, Nicholas R. Dispenza, did not know the route home. They were following another car being driven by someone familiar with the road.

No question is raised on the pleadings and no contention is made that the verdict is contrary to the manifest weight of the evidence. The errors complained of relate to the admission of testimony of the investigating deputy sheriff on cross-examination by defendant’s counsel concerning statements on the sheriff’s report attributed to the defendant at the scene of the accident; the giving of certain instructions at the request of the defendant and the refusal to give certain instructions tendered by the plaintiffs; and the alleged prejudicial effect of a portion of the opening statement of defendant’s counsel to the jury.

The investigating deputy sheriff was called as a witness on behalf of the plaintiffs and was asked, on direct examination, concerning a conversation with the defendant Picha at the scene. His testimony was to the effect that he believed Picha said he did not see the (plaintiffs’) car and that is what caused the accident. The deputy had previously, at the request of plaintiffs’ counsel, referred to his report to refresh his recollection concerning occupants of the plaintiffs’ car. When cross-examined, defendant’s counsel asked him how his report was made and he indicated it was made from a freehand report in pencil that he made at the scene. He further stated that his report identified the vehicles by numbers, and No. 1 was the Ford automobile of the defendant and No. 2 was the Dispenza car. Thereafter defendant’s counsel said: “Take a look at that report and see if Car No. 1 didn’t tell you — that would be Mr. Picha, driver of Car No. 1— . . . Officer, did not Driver No. 1 state to you that Car No. 2 did not come to a complete stop and pulled in front of Car No. 1 ? . . .” This question was objected to on the ground that the statement when made would be self-serving.

Since plaintiffs’ counsel, on direct examination, had inquired about a statement attributed to the defendant at the scene in a conversation between the officer and the defendant, defendant’s counsel had the right, without question, to inquire into any further aspects of this conversation. The cross-examination related to the movement of the vehicles involved as described by the defendant at the scene, which was the same subject matter as the question asked by defense counsel. When the deputy answered the question in the affirmative and admitted that the defendant at the scene had said the plaintiffs’ car had pulled in front of him, despite the self-serving nature of the defendant’s statements, they were admissible as part of the transaction inquired into by the plaintiff.

Objection was made also that the question of defendant’s counsel was an attempt to give the sheriff’s report the status of direct evidence. The question itself is not clear. However, the trial court asked defendant’s counsel, “Are you asking him whether or not car number one said something?” and prior to the witness’ answer, defendant’s counsel indicated that was the purpose of the question.

Viewed in the context of the trial, prior use of the police report for refreshing recollection, the testimony of the witness on direct examination, and the colloquy between court and both counsel, the question asked was not objectionable and the answer given was admissible.

In a similar situation, when a court reporter was asked on direct examination to relate certain answers a defendant gave at a coroner’s inquest, the trial court, on cross-examination, allowed the witness to give all the defendant’s answers on the same subject which she had taken down at the inquest. The Appellate Court held:

“It is the contention of the plaintiff that to permit this question and answer was error, as it was a self-serving statement of the defendant. The defendant, on the other hand, urges that the trial court correctly-permitted the question as being within the scope of the direct examination, and a matter to which the door had been opened by the plaintiff on direct examination. This latter position is more tenable, as the crpss-examination permitted a full disclosure of what Short told the coroner’s jury he saw at the time of the accident. The plaintiff might well have anticipated such disclosure in calling the court reporter as a witness.

“In Chicago City Railway Co. v. Creech, 2Ó7 Ill 400, at page 402, 69 NE 919, the Court said: ‘The scope of a cross-examination is necessarily largely within the discretion of the trial court, being governed by the direct testimony of the witness and other circumstances attending the giving of his evidence, and it has been held to be erroneous for the trial court to restrict the cross-examination to the extent of preventing the party from going only into the matters connected with the examination in chief, it being his right to elicit suppressed facts which weaken or qualify the case of the party introducing the witness or supporting the case of the party cross-examining. A witness may be cross-examined as to his direct testimony in all of its bearings, and as to whatever goes to explain or modify or discredit what he has stated in his first examination/

“In this regard the following from Phares v. Barber, 61 Ill 271 is influencing. The court said at page 275 of 61 Ill: Tt is also a well settled rule that, where a witness details a conversation, the party against whom the evidence is offered is entitled to the whole of the conversation, and any action of the court which prevents its obtainment violates this rule of law.’ ”... Star Serv. & Petroleum Co. v. Short, 344 Ill App 280, 100 NE2d 664, 665-66 (3d Dist 1951).

The trial court gave, at defendant’s request, an instruction in the form of IPI 60.01 on the statutory right-of-way at a through highway. That instruction is as follows:

“There was in force in the State of Illinois at the time of the occurrence in question a certain statute which provided that:

“ ‘The driver of a vehicle shall stop as required by this Act at the entrance to a through highway and shall yield the right-of-way to other vehicles which have entered the intersection from said through highway or which are approaching so closely on said through highway as to constitute an immediate hazard, but said driver having so yielded may proceed at such time as a safe interval occurs.’

“If you decide that a party violated the statute on the occasion in question, then you may consider that fact together with all the other facts and circumstances in evidence in determining whether or not a party was contributorily negligent at or before the time of the occurrence.”

The trial court also refused to give plaintiffs’ instructions 18 and 19. Plaintiffs’ instruction 18 reads:

“If you find from the evidence that Nicholas R. Dispenza stopped the automobile he was driving in accordance with the stop sign on Midway Road, and at the time he started to cross 22nd Street, vehicle traffic on 22nd Street was at such a distance from the intersection that it would not, if driven at reasonable speed, have reached the intersection before Nichols R. Dispenza, if driving with ordinary care would have safely crossed the intersection, then you are instructed that the automobile Nicholas R. Dispenza was driving had the right of way.”

Plaintiffs’ instruction 19 reads:

“The aforesaid statute does not confer an absolute right of way regardless of all circumstances on the party traveling on a preferential highway. A person approaching a stop sign for a preferred highway is not required to remain stopped at the stop sign or at the intersection line, long enough to permit every car that he observes on the highway to pass, regardless of its distance from the intersection. The statute requires only that the motorist confronted by a stop sign may, exercising reasonable care, proceed across the intersection after he has stopped and yielded the right of way to such vehicles on the through highway as constitute an immediate hazard.

“The law does not provide a precise formula for determining whether a particular vehicle has conformed to set standards; that question must be determined by the jury and involves consideration as to relative speeds and distances of the vehicles from the intersection.”

No error was committed by the trial court in ruling on these instructions. Plaintiffs’ instructions 18 and 19 are both repugnant to the present Illinois practice on instructions. Instruction 18 emphasizes the plaintiffs’ theory of the case and argues facts in relation to the law. Instruction 19 contains less evidentiary material but more argument. Both instructions, if given, would place the judge in the position of an advocate for the plaintiffs’ side of the case. Defendant’s instruction “N” is a concise statement of the statutory standard imposed by the legislature. By its terms, it could only apply to the driver of a vehicle and by the evidence could only apply to the plaintiff-driver, Nicholas R. Dispenza. Aspland v. McMaster, 39 Ill App2d 366,188 NE2d 508 (2nd Dist 1963).

Plaintiffs’ additional contention that the IPI instruction raised a false issue by appearing to require a passenger to comply with the statute or be guilty of contributory negligence is completely without foundation in the record. The instruction makes no reference to the duty of any of the passengers and only refers to the duty of the driver.

Plaintiffs’ counsel ably argued the severability of the various plaintiffs’ claims and, in addition, the court instructed the jury that they were in fact and in law separate. Specifically, the court gave IPI 72.03 instructing the jury that if they were to find negligence on the part of the plaintiff-driver, such negligence could not be charged to the plaintiff passengers. Our review of this record reveals nothing said by the defendant’s counsel that invited the jury to determine the standard of care owed by the passengers in the Dispenza car to be the same as that of its driver. We find no error in the instructions given or refused.

With reference to the activity of the plaintiffs prior to the accident, defendant’s counsel, in his opening statement to the jury, stated that the party of six had arrived at the Butterfield Country Club to attend a charity event at about 6:00 p. m. or 6:30 p. m. In his opening statement he then continued: “I believe the evidence will show that alcoholic beverages were served at that particular — At this point plaintiffs’ counsel interposed an objection and urged that unless the defendant was prepared to prove that the plaintiff, Nicholas R. Dispenza, was drinking, he would make a motion to withdraw a juror. No such proof was ever made and the trial court, having reserved ruling on that motion, was never asked thereafter to rule prior to verdict. The jury was instructed, however, at the plaintiffs’ request, that arguments, statements and remarks of counsel were not evidence and that arguments, statements or remarks not based upon the evidence were to be disregarded.

The judgment of the Circuit Court of Cook County is affirmed.

Judgment affirmed.

SMITH, P. J. and TRAPP, J., concur.


author: HOFFMAN, J.

text:
    Village of Glenview, a Municipal Corporation, Plaintiff-Appellee, v. H. Leonard Van Dyke, Defendant-Appellant.
    Gen. No. M-51,181.
    First Judicial District.
    July 8,1968.

      Arvey, Hodes & Mantynband, and Holland F. FlaHavhan, of Chicago, for appellant.
    Robert J. Downing, of Chicago (Robert G. Lussier, Raskin, Downing & Dammann, of counsel), for appellee.
   HOFFMAN, J.

This is an appeal testing the validity of a part of the zoning ordinance of the Village of Glenview. Questioned is that section which prohibits the outdoor parking of a camping trailer more than five feet tall upon a residential lot.

It is the defendant’s theory that this section is unconstitutional and invalid because it has no relation to the public health, safety, morals or welfare, it is discriminatory, arbitrary and capricious, and prohibits a wholesome accessory use of private property which in no way injures the public. The Village, on the other hand, contends that the ordinance is presumed to be valid, and that such presumption can only be overcome by clear and convincing evidence, of which there is none.

The facts are not in dispute. It is agreed that the zoning ordinance of the Village, at the time in question, prohibited, as an accessory use of an improved residential lot, the outdoor parking of a camping trailer more than five feet tall. It is further agreed that the defendant parked a trailer in his driveway in violation of this ordinance. These facts were established at the trial by the Village. No evidence was introduced by the defendant. Instead, he relied upon his constitutional arguments and defenses. The magistrate held the ordinance valid. This appeal follows.

The main contention between the Village and the defendant in this case is whether or not evidence was necessary to overcome the validity of the ordinance. The Village contended in the trial court, and contends here, that a zoning ordinance is clothed with a presumptive validity, and one who assails it, has the burden of proving, by clear and convincing evidence, that it is arbitrary and unreasonable. Cited are: Honeck v. County of Cook, 12 Ill2d 257, 146 NE2d 35; La Salle Nat. Bank v. City of Chicago, 4 Ill2d 253, 122 NE2d 519; Jacobson v. City of Evanston, 10 Ill2d 61, 139 NE2d 205; Mundelein Estates, Inc. v. Village of Mundelein, 409 Ill 291, 99 NE2d 144; Stemwedel v. Village of Kenilworth, 14 Ill2d 470, 153 NE 2d 79; and Skrysak v. Village of Mt. Prospect, 13 Ill2d 329,148 NE2d 721. The defendant, who at the trial introduced no such evidence, argues that this ordinance is invalid for reasons appearing on its face and no evidence is needed to overcome it. He states that the ordinance attempts to fasten restrictions upon an accessory use of defendant’s lot which bear no substantial relation to the public welfare. He points out that since the ordinance permits camping trailers up to five feet in height, the barring of larger trailers is an obviously arbitrary and unreasonable act. Moreover, he argues that the capriciousness of the ordinance appears on its face because it permits the parking of boats up to ten feet in height. Cited are: Suburban Ready-Mix Corp. v. Village of Wheeling, 25 Ill2d 548, 185 NE2d 665; Federal Elec. Co. v. Zoning Board, 398 Ill 142, 75 NE2d 359; and City of Chicago v. Sachs, 1 Ill2d 342, 115 NE2d 762.

It is shown by the Village that the section of the ordinance here involved was adopted by the Village Board only after three separate public hearings, and that this ordinance represents a legislative determination that the public interest required the restrictions of which defendant complains. It is argued that the judiciary should not nullify a legislative determination by an academic analysis detached from any meaningful factual framework.

The Village points out that a court, before being asked to set aside a zoning ordinance upon the grounds defendant relies upon, should have facts concerning existing uses and zoning of nearby property, extent of diminishment of property value, hardship upon the defendant, the size of lots upon which these trailers were prohibited, the side yard sizes, storage facilities elsewhere in the community, etc. The Village argues that all of these factors were considered by the Village authorities in making the legislative determination and that the court should not overturn such legislative judgment unless it is clearly shown that there was no reasonable basis upon which the Village could rest the enactment.

The defendant answers by saying that the issue here does not involve the broad problem of classification of property, where, it is admitted such evidence might be meaningful. Instead, he points out that the Village has made a legislative determination permitting the parking of camping trailers, and has only declared trailers above a certain size unlawful. This, he argues, raises only the pure legal question as to whether the Village may lawfully discriminate between trailers of different sizes. Defendant states that where the discrimination is apparent on the face of the ordinance and the relation to the public health and safety is not apparent, the municipality cannot rest on the presumption of validity, but must explain away the discrimination.

It is well established that the zoning power of a municipality is not an unrestrained power and that zoning restrictions must bear a real and substantial relation to the public health, safety, morals or welfare. Taylor v. Village of Glencoe, 372 Ill 507, 25 NE2d 62. And, an ordinance which does not bear such a real and substantial relationship is invalid. Village of LaGrange v. Leitch, 377 Ill 99, 35 NE2d 346. Moreover, a zoning restriction may not operate arbitrarily or capriciously upon a citizen. Jacobson v. City of Evanston, supra; People ex rel. v. City of Chicago, 2 Ill2d 350, 118 NE2d 20.

The question of whether a zoning ordinance is arbitrary, unreasonable or capricious in its application to a given parcel of land, or whether it is reasonable and bears a substantial relation to the public welfare, is subject to review by the courts. Running through the multitude of zoning cases appearing in nearly every volume of the recent reports are general rules for deciding this question which are consistent in their restatement and unvarying in their application. Briefly, these rules are as follows: There is a presumption of validity in favor of a zoning ordinance adopted pursuant to a legislative grant; a person assailing such a validity has the burden of proving by clear and affirmative evidence that the ordinance is arbitrary, unreasonable or capricious, or bears no substantial relation to the public welfare; if it appears from all the facts that there is a difference of opinion concerning the reasonableness of the classification, the legislative judgment is conclusive; among the particular facts and circumstances to be taken into consideration in determining whether a zoning ordinance is so unreasonable and confiscatory as to constitute an unlawful invasion of private rights are the character of the neighborhood, the zoning classification and use of nearby properties, the extent to which property values are diminished by the particular zoning restriction involved, and the gain to the public compared to the hardship on the individual property owner. Exchange Nat. Bank of Chicago v. Cook County, 25 Ill2d 434, 185 NE2d 250; Rams-Head Co. v. City of Des Plaines, 9 Ill2d 326, 137 NE2d 259; Reitman v. Village of River Forest, 9 Ill2d 448, 137 NE2d 801; Honeck v. County of Cook, supra; Krom v. City of Elmhurst, 8 Ill2d 104, 133 NE2d 1; Stemwedel v. Village of Kenilworth, supra; Jacobson v. City of Evanston, supra; Gregory v. City of Wheaton, 23 Ill2d 402,178 NE2d 358.

Although there is no Blinois case particularly on all fours with the instant one, somewhat analogous situations have been litigated. One such analogous situation is the zoning ordinance which regulates the intensity of lot use. The authority to permit this was confirmed in Cosmopolitan Nat. Bank v. Chicago, 22 Ill2d 367,176 NE 2d 795. It must therefore be presumed that the general legislative purpose of such a requirement is valid and bears a reasonable relation to the public health, safety and welfare. See: Exchange Nat. Bank of Chicago v. Chicago, 28 Ill2d 341,192 NE2d 343. The same argument used here was made in the Cosmopolitan Bank case. There the use to which plaintiffs wished to devote their property was permissible under the applicable zoning classification. Their minimum lot area requirements, however, prevented them from an otherwise legitimate use of their property.

Other cases have upheld minimum lot area limitations. See Honeck v. County of Cook, supra; First Nat. Bank of Skokie v. Chicago, 25 Ill2d 366, 185 NE2d 181; Galpin v. Village of River Forest, 26 Ill2d 515, 187 NE2d 233; Lapkus Builders, Inc. v. Chicago, 30 Ill2d 304, 196 NE2d 682. In Stemwedel v. Village of Kenilworth, supra, a minimum rear yard depth was approved.

The cases which defendant cites are not in point nor are they persuasive. In Suburban Ready-Mix Corp., supra, under the guise of a zoning regulation, the prohibition of a legitimate business from a city was involved. In Federal Elec. Co., supra, the problem of a nonconforming use was involved and the court merely held that the additional structure complained of did not expand the original use to which the land was put. The holding was that the city could not limit a structure which was being maintained in connection with a nonconforming use. In City of Chicago v. Sachs, there obviously was no real difference upon which to vary the classifications of the schools involved.

Zoning is for the benefit and best interest of the community as a whole rather than for the benefit of an individual. Skrysak v. Village of Mt. Prospect, supra. It is the primary province of the municipal body to which the zoning function is committed to draw the line of demarcation in such cases, and where there is room for a legitimate difference of opinion concerning the reasonableness of an ordinance governing the use of private property, or where the question of reasonableness is fairly debatable, the courts will not interfere with the legislative judgment. Stemwedel v. Village of Kenilworth, supra. The establishment of a neighborhood of homes in such a way as to avoid congestion in the streets, to secure safety from fire and other dangers, to prevent overcrowding of land, to obtain adequate light, air and sunshine, which when such neighborhood is established would tend to improve and beautify the Village and would harmonize with the natural characteristics of the locality, could be materially facilitated by the regulation here in question.

The record before us is completely devoid of any evidence demonstrating that the application of the zoning regulation involved is so clearly unreasonable as to render it unconstitutional and void. The discrimination of which plaintiff complains is not apparent upon the face of the ordinance in question, nor is its lack of relationship to the public health and safety inapparent. Consequently, for the reasons set forth, and upon the record before us, we cannot say that the regulation, as applied to defendant’s property, has no reasonable relationship to the purposes of the police power.

Accordingly, the judgment appealed from is affirmed.

Affirmed.

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


author: MR. JUSTICE ENGLISH

text:
    People of the State of Illinois on the Relation of Arthur Knight, Elmer J. Homolka, Joseph R. Rochwiak, Raymond A. Snella, George (Stack) Stachacz, Ernest H. Blecic, Dolores Boslega and Adam E. Szalkowski, Individually, and as Candidates of the Voters Independent Party of the Village of Lyons, Cook County, Illinois, Plaintiffs-Appellants, v. Sidney T. Holzman, Marie H. Suthers and Francis P. Canary, as Members of and Being and Constituting the Board of Election Commissioners of the City of Chicago and Ex Officio Board of Election Commissioners of the Village of Lyons, Cook County, Illinois, and Being and Constituting the Electoral Board of the Village of Lyons, Cook County, Illinois, DefendantsAppellees.
    Gen. No. 51,141.
    First District, Fourth Division.
    August 14,1968.

      Walter C. Wellman, of Lyons, for appellants.
    Stanley T. Kusper, Jr., and William R. Ming, Jr., of Chicago, for appellees.
   MR. JUSTICE ENGLISH

delivered the opinion of the court.

Relators instituted this action on March 15, 1965, for a Writ of Mandamus to compel the Cook County Board of Election Commissioners to place the names of the relators on the ballot as candidates for various Village offices in an election to be held on April 20, 1965, in the Village of Lyons, Cook County, Illinois. Nominating petitions filed by the relators were objected to on the grounds that there were two few valid signatures and that since three candidates did not correctly designate the office for which they were running and a fourth did not give his proper address, they did not contain a complete list of candidates for all offices. After a hearing, the objections were sustained by the Board of Election Commissioners and the names of the relators were denied a place on the ballot.

On April 8, 1965, the Circuit Court denied the petition for a Writ of Mandamus. Notice of appeal from that order to the Illinois Supreme Court was filed on April 12, 1965. The election was held on April 20. Thereafter, the appeal was docketed in the Supreme Court, and subsequently the cause was transferred to this court.

We find ourselves helpless to proceed because the purpose of relators’ petition cannot possibly be accomplished. When the election took place, the case became moot. Sokolowski v. Board of Election Com’rs of City of Chicago, 89 Ill App2d 60, 232 NE2d 229, and authorities cited therein. This appeal must therefore be and is dismissed.

Appeal dismissed.

McCOEMICK, P. J. and DRUCKER, J., concur.


author: MR. PRESIDING JUSTICE McCORMICK

text:
    The People of the State of Illinois, Plaintiffs-Appellee, v. LeRoy Edwards, Defendant-Appellant.
    Gen. No. 51,251.
    First District, Fourth Division.
    July 17,1968.

      Jack L. Parrino, of Chicago, for appellant.
    John J. Stamos, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and Oliver D. Ferguson, Assistant State’s Attorneys, of counsel), for appellee.
   MR. PRESIDING JUSTICE McCORMICK

delivered the opinion of the court.

This appeal is taken by the defendant, LeRoy Edwards, from a judgment of conviction of the offense of burglary entered March 8, 1965. The defendant pleaded not guilty; the case was tried with a jury which returned a verdict of guilty of the offense charged. The court entered a judgment on the verdict and sentenced the defendant to the Illinois State Penitentiary for not less than five years nor more than eight.

On September 15, 1963, Ann Speight, the complainant, lived alone in a two-room apartment at 429 East 46th Street, Chicago, Illinois. At approximately 6:00 o’clock that morning she was awakened by a noise in her kitchen; she looked from her bed in the combination living room-bedroom and saw a shadow of a man in the kitchen with his hands in her purse; she said she could distinguish his features in a mirror which reflected into the kitchen. She ran into the front hall and yelled, rousing her neighbor; while knocking at her neighbor’s door she saw the man come into her bedroom; she was in the hall about 20 feet from him, and stood there looking at him for two or three minutes. She stated that the man then turned back into the kitchen and went out through the window. She identified LeRoy Edwards, defendant, as the man she had seen in her apartment.

The building in question has four stories and about 24 apartments. The windows in complainant’s apartment led to a fire escape. She stated that the window through which the defendant left was locked when she went to bed, and that after he had gone she observed that the window lock was broken; at the same time she saw two iron bars lying on the fire escape. She stated that nothing had been taken from her purse.

Police Officer Victor Bell testified that on September 15, 1963, in answer to a radio call at about 6:45 a. m., he went to 429 East 46th Street to investigate a burglary. He went to the second floor where he talked with the complaining witness and a Mrs. Lions; he then went to the basement apartment in search of a man who lived there and who answered the description of the burglar. He examined the kitchen window of complainant’s apartment and found that it had been pried open from the outside and the safety catch broken; he found two bars lying on the fire escape.

The complainant testified that on September 18, 1963, she saw the defendant in the backyard of the building where she lived, and that she told her landlady. She stated that the next day Officer Roy Robinson talked with her and the landlady and showed them some pictures, two of which the complainant recognized as the defendant.

Officer Robinson testified that on September 20, 1963, he talked to the complainant and Mrs. Lions; that he later returned with pictures which he showed to them, and that the complainant identified the defendant. He stated that he subsequently made several trips to the basement apartment in the building for the purpose of apprehending the defendant, but was never able to locate him there.

The complaining witness stated that she went to the Wabash Avenue Police Station on September 28, 1963, accompanied by Officer Robinson, where in a lineup with three other men she saw the man she had seen in her apartment, and identified him as the defendant. Officer Robinson also testified that the complainant had identified the defendant in a lineup held at the Wabash Avenue station.

Officer Leroy Brooks testified that on September 28, 1963, he arrested the defendant at about 3:00 a. m. in the basement apartment at 429 East 46th Street, and that the defendant was discovered in a closet under some clothing.

The defendant did not take the stand. The defense consisted of four witnesses: Travis Edwards, John Edwards, John Mahoney, and Roy Robinson (Officer Robinson was also called as a witness for the State). Travis Edwards, wife of the defendant, testified that during the early morning hours of September 15, 1963, the defendant was in their basement apartment at 429 East 46th Street; that they had guests who played cards until 4:30 a. m.; that she had an argument with her husband and went to bed at 6:30; that her husband did not leave the apartment at any time that morning. She said there were about 22 people in the apartment playing cards and that if Officer Bell knocked at her door, as he had testified, she did not hear him. She also stated that from the date of the card party until the time of her husband’s arrest, no police officer had come to the apartment looking for him.

The testimony of Officer Robinson as a defense witness does not appear in the abstract and consequently, we will disregard it.

The defendant first argues that reversible error was committed inasmuch as when Officer Bell was asked “Now after talking with the women, after talking with Mrs. Lions, did you go anywhere else in that building?” he answered, “Yes, there was supposed to be a fellow who committed burglary that answered the description that lived in the building, and we went there to look for him, and was unable to gain entrance.” The State’s Attorney then asked the officer to state where he looked for the defendant and he said he looked in the basement apartment at 429 East 46th Street; that he tried to gain entrance to the apartment but was unable to do so. The defendant argues that Officer Bell’s statement, “. . . there was supposed to be a fellow who committed burglary that answered the description that lived in the building, . . .” brought before the jury an unrelated offense which was highly improper. Of course, it is the rule that to refer to the commission of other crimes of the defendant before the jury is improper; however, we must consider that the statement made by the police officer as it appears in the record was not necessarily an accurate account of what the officer said, since the transcript in this case is probably one of the worst we have had before us in this court. The complaining witness’ couch is mentioned several times and is consistently referred to in the record as “coach”; there are many typographical errors, and in mentioning the dates the year is sometimes shown as 1963 and sometimes as 1964, when it is apparently meant to be 1963. The alleged testimony of the officer was not referred to in the argument of the defendant at the trial, nor was any objection made to it at the time. Considering the entire record, the officer’s statement was probably not accurately reported; and in any case, it was not so prejudicial as to require reversal.

The defendant further argues that the following argument by the State’s Attorney to the jury was improper:

Do the guilty resort to lying to a jury? What do you gain by it? You are as smart as we are, probably smarter, undoubtedly smarter. How do they try to persuade you? By the truth? There was no burglary. Twenty-two whist players. Twelve cans of beer. And we didn’t know a policeman came. That was the defendant’s wife’s testimony. She has an interest, and I suppose that sort of excerpts the perjury rule, and not going to try the wife, she has an interest in the case.

But she testified that no policeman came on the morning of September 15th and Officer Robinson never came from the 15th to the 28th. Didn’t she? Well, Officer Robinson testified he was there several times. Officer Bell testified he went down, knocked on the door the morning of the burglary.

The defendant further argues that the State’s Attorney said, “Our American system of juries is presently on its way to trying the victims of crimes rather than the perpetrators of crimes. And it is about time that it stopped. And the easiest and best way to stop it is to by your verdict tell them.” In the defendant’s brief he argues that the reference by the State’s Attorney to the defendant as the perpetrator is reversible error; however, the defendant does not point out that prior to the last remark of the State’s Attorney, defense counsel in his argument had said:

She said she didn’t know him and she had never seen him before. She said she could identify him positively because he stood there for two minutes and looked right at me. Is this true or did she know him before? She is a single woman, maybe she did know him before. But she said she didn’t, but somebody sent Officer Victor Bell to Leroy Edwards apartment right after a complaint was made. Who sent Officer Bell there? I don’t know and from the evidence you don’t know. Just think about it. Nobody told you how he happened to go there that morning. Did Mrs. Speight know Leroy Edwards before? Did Leroy Edwards break into her apartment? They said they found a burglary tool outside, but nobody ever saw it in this man’s hands.

The innuendo contained in the argument is an attack on the morality of the complaining witness. The prosecutor answered by making the statement that we try the victims rather than the perpetrators of crime. Under the circumstances, and in answer to the insinuation of counsel for the defendant, we can find no fault in the argument of the State.

It has been repeatedly held that whenever the argument of defense counsel invites or provokes a response on the part of a prosecutor the defendant cannot complain he has been prejudiced by such response. People v. Lewis, 25 Ill2d 442, 185 NE2d 254, citing People v. Wheeler, 5 Ill2d 474,126 NE2d 228.

The defendant further contends that in his closing argument the defense counsel had stated, “Did you hear anyone say the defendant at any time admitted that he had done this? No. The defendant has never admitted this crime.” The State’s Attorney objected for the reason “. . . no evidence to that. No such evidence in this record.” In answer to the objection the court said the jury had heard the witnesses. The State’s Attorney’s remark could not reasonably be construed by anyone as an improper comment on defendant’s failure to testify.

The complaining witness’ identification of the defendant was sufficient and was based upon sufficient observation. She testified that she had seen the reflection of the defendant in the mirror adjacent to the door to the kitchen. She further testified that when she was in the hall, screaming and knocking at her neighbor’s door, the man came into her bedroom and she looked at him for two or three minutes. When she observed his reflection in the mirror while he was in the kitchen he had his hands in her purse. This evidence is sufficient to prove intent to commit burglary.

A careful examination of the record convinces us that the defendant was proved guilty beyond a reasonable doubt. In People v. Setzke, 22 Ill2d 582, 177 NE2d 168, the court said at page 586:

“There is no obligation on a trial court to believe alibi testimony over positive identification of the accused, even though the alibi testimony may be given by a greater number of witnesses. [Citing cases.]”

The judgment of the Circuit Court is affirmed.

Affirmed.

DRUCKER and ENGLISH, JJ., concur.


author: JUSTICE LYONS.

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Clarence Williams and A. J. Whitney, Defendants-Appellants.
    Gen. Nos. 51,351, 51,352. (Abstract of Decision.)
    First District, Second Division.
    July 23, 1968.
    Gerald W. Getty, Public Defender of Cook County, of Chicago (Norman W. Fishman and James J. Doherty, Assistant Public Defenders, of counsel), for appellants; John J. Stamos, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and Robert B. Rosen, Assistant State’s Attorneys, of counsel), for appellee.
   Opinion by

JUSTICE LYONS.

Not to be published in full.


author: EBERSPACHER, P. J.

text:
    John A. Wright and Joseph T. Wright, Individually, and Doing Business as Princeton Company, Plaintiffs-Appellees, v. Douglas Furniture Corporation, a Corporation, Defendant-Appellant.
    Gen. No. 51,291.
    First District.
    June 24,1968.
    Rehearing denied August 14,1968.
    Freeman, Freeman & Haas, of Chicago (Kernal Freeman and Marvin G. Freeman, of counsel), for appellant.

      Frank J. Wiedner and John P. McAuliffe, of Chicago (William J. Harte, of counsel), for appellees.
   EBERSPACHER, P. J.

This action was brought by the plaintiffs to recover rentals allegedly due by virtue of a vehicle lease agreement wherein the plaintiffs leased three trucks to the defendant. The case was heard without a jury which culminated in the court entering a judgment against the defendant and assessing damages in the sum of $12,854. The defendant appeals from this judgment.

The salient facts are undisputed. On December 28, 1960, the plaintiffs, John A. Wright and Joseph T. Wright, doing business as Princeton Company, and the defendant, Douglas Furniture Corporation, entered into a vehicle lease agreement. Joseph T. Wright signed the agreement in behalf of the plaintiffs. Under the terms of the agreement the plaintiffs were to provide the defendant with three 1961 Ford Vans at a monthly rental rate of $222 per van for a period of six years, from December 28,1960, to December 28,1966.

Paragraph 1 (b) and 3 (b), (c) of the agreement provide as follows:

1. Lessor agrees with respect to each leased motor vehicle, to:

(a) . . . .
(b) . Pay for all service, repairs and replacements
for which Lessee is not required to pay by any other term or provision of this agreement.

3. It is further mutually agreed as follows:

(a) . . . .
(b) . With respect to each said motor vehicle:
(i) Lessee shall pay for any lubrication and oil changes not less frequently than every 2,000 miles.
(ii) Lessee shall pay for gasoline, oil added between changes and permanent antifreeze required for the operation and protection of the automobile.
(iii) Lessee shall pay for tire repairs.
(iv) Lessor shall pay all taxes, license, regisstration and other fees as may be required by any governmental authority.
(c). Any and all service, repairs, replacements and supplies shall be performed or supplied by such person as Lessor shall determine and Lessee shall pay for any and all service, repairs, replacements and supplies performed or supplied by other persons.

According to evidence offered by the defendant, the plaintiffs designated the J. J. Wright Motor Co., another company owned and operated by the plaintiffs, as the garage to provide the maintenance of the vehicles. In rebuttal to this testimony Joseph T. Wright, one of the plaintiffs, testified that he might have suggested to the defendant that they have their trucks repaired at J. J. Wright Motor Co. in that he would ultimately benefit because he was a shareholder in that corporation but he further testified that he was not authorized to direct the defendant as to a specific place to maintain their trucks.

By any means the defendant had the trucks serviced at the J. J. Wright Motor Co. from the inception of the contract until August of 1963. Also, from the inception of the contract on December 28, 1960 until August of 1963, the defendant paid the full rental as provided in the contract. Then by letter dated August 29, 1963, the defendant advised the plaintiffs that they wished to discuss certain “contract violations” including “your failure to provide full maintenance of the vehicles as provided in paragraph 1(b) and 3(c). . . .” Later by a check dated September 5, 1963, the defendant paid the August rent. The check was in the amount of $82.56 which equalled the balance of the $666 rental minus four repair bills which totaled $583.44. Invoices evidencing those repairs were attached to the check. The first is dated 10-18-61 in the amount of $18.13; the second is dated 11-14-61 in the amount of $35.98; the third is dated 6-21-63 in the amount of $219.06; and the fourth is dated 2-25-63 in the amount of $310.27. All of the invoices were from the J. J. Wright Motor Co.

Upon receipt of the check and invoices, the plaintiffs advised the defendant that they would not pay for any repairs to the trucks. The plaintiffs’ attorney by letter dated October 2, 1963, advised the defendant to the same effect, and directed that all repairs were to be made by the J. J. Wright Motor Company.

On October 30, 1963, the defendant informed the plaintiffs by letter of termination of the lease agreement “by reason of your failure to honor our deductions for payments made to J. J. Wright Motor Company.” According to plaintiffs’ testimony the parties had been at an impasse with reference to who was to pay for repairs during August and September.

The defendant then sought to return the trucks but the plaintiffs advised the defendant that they would not accept them. In response to this, the defendant drained the radiators of the trucks, parked them on their parking lot and advised the plaintiffs that they were holding the keys for their convenience. Thereafter the defendant entered into another leasing agreement with a different truck leasing organization.

The plaintiffs brought suit for damages for the rental due from August 1963. During the pendency of this action at the suggestion of the court and by agreement of the parties, the trucks were sold in July 1964, “the purpose being in aid to possible mitigation of damages.” The court found in favor of the plaintiffs and entered judgment against the defendant in the amount of $12,854. The court arrived at this amount by multiplying the rental ($666) by 29 months, which equalled $19,314. From this figure the court deducted the initial rental deposit of $666, the value of the three truck chassis of $4,200 and the value of the two truck bodies which were sold for $1,600.' Even assuming plaintiffs were entitled to recover damages, we are unable to follow the court’s determination of damages in view of the fact that the vehicles were sold in July 1964, which terminated lessors’ obligations for taxes, licenses, insurance and replacement of the chassis after 36 months on each of the 3 vehicles.

In reaching the decision the court stated that when the plaintiffs proved their vehicle lease agreement and the discontinuance of rent by the defendant in September of 1963 the plaintiffs established a prima facie case. The court further stated that it was of the opinion that the defendant had failed to sustain the burden of coming forward with evidence of a substantial nature which showed a failure of consideration on the part of the plaintiffs to provide the type of services that the defendant contended it was entitled to.

The issues as we see them are which party to the Vehicle Lease Agreement was obligated to pay for the maintenance of the trucks and that if it were the plaintiffs’ obligation did refusal constitute a material breach of the contract.

In our opinion it is evident that the lessor had the obligation to pay for service, repairs, replacements and supplies so long as the lessee defendant brought the trucks to such person as the plaintiffs designated. Paragraph (b) of the agreement provides that the lessor (plaintiffs) shall pay for all service, repairs and replacements unless otherwise provided by other provisions of the agreement. Paragraph 3 (b) and particularly (i), (ii) and (iii) of paragraph 3 (b) obligate the lessee to pay for for specific costs and repairs and is in harmony with the last phrase of paragraph 1 (b). By the same token there is nothing inconsistent with paragraph 3 (b) of the agreement. This paragraph merely provides that the lessor shall have the prerogative of choosing who shall provide the maintenance of the vehicles and that if the lessee does not abide by this determination the lessee shall become obligated to pay the costs of maintenance.

By the provisions of Paragraph 3(i) of the Vehicle Lease Agreement, the lessee defendant is barred from maintaining a suit for damages against the lessors in view of the exculpatory clause relieving the lessors of liability for failure to furnish or authorize repairs. To avoid the liability of providing for the service, repairs and replacements for the leased vehicles all lessors had to do was withhold the authorization or making of repairs. It follows that if defendant could not maintain an action for damages, defendant’s only recourse was to terminate the contract, which was done in this case.

The evidence further establishes that the plaintiffs designated the J. J. Wright Motor Co. as the authorized garage to provide maintenance. The evidence of the defendant was that Joseph T. Wright, a partner of the plaintiffs, made the designation. Mr. Wright did not deny the testimony but testified that he did not have the authority to make the designation. It seems anomalous that Mr. Wright, as a partner in Princeton Company, could enter into the agreement on behalf of the Princeton Company but as such partner could not make a designation as provided by one of the terms of the agreement. We also note that the reason given by the plaintiffs in their correspondence of October 2, 1963 to defendant, in refusing the deductions from the rental check was not that defendant had failed to take the trucks to the designated garage but that they were not obligated to pay for them under the terms of the agreement.

Thus, having resolved the first issue in favor of the defendant, we reach the second issue of whether the breach of the plaintiffs was of such a nature as to warrant the subsequent action of the defendant.

It is established that a party may terminate a contract because of substantial nonperformance or breach by the other party. Sampson v. Mano, 343 Ill App 245, 98 NE2d 523(1951), 17 CJS, § 422; Atwell Printing & Binding Co. v. Prairie Farmer Pub. Co., 246 Ill App 100. The issue to be determined is whether the breach of the contract is so substantial and fundamental as to defeat the objects of the parties in making the agreement, or whether failure to perform renders performance of the rest of the contract different in substance from the original agreement. Unique Watch Crystal Co., Inc. v. Kotler, 344 Ill App 54, 99 NE2d 728 (1951), and cases cited therein.

The fact that the bills presented with the check dated September 5, 1963 were the only bills presented, and that defendant had on prior occasions paid some bills amounting to less that $200 which it did not attempt to get plaintiffs to pay, we consider of no evidentiary value. The Agreement, as to who was to pay for repairs made by the authorized garage, is clear and concise, and furthermore the contract specifically provided, by Paragraph 3 (m), that such failures to present bills would not operate as a waiver.

In the instant case it is the opinion of this Court that the obligation of the plaintiffs to pay for services, repairs and replacements of the leased trucks constituted a material part of the lease agreement and that the plaintiffs’ breach of that obligation was a substantial breach. A considerable portion of the agreement was devoted to the obligation of repairs and the exceptions. The prime obligation was assumed by the plaintiffs as lessor. The exceptions of gasoline, oil, lubrication and tire repairs were assumed by the defendant lessee. The agreement was for a period of 6 years.

Since the leased vehicles were new at the execution of the agreement, the cost of repairs would be minor in the early months of the agreement, but increase substantially during the last half of the six-year lease; as to who would furnish them would be one of the major considerations of the agreement. This is particularly true since the agreement specifically provided that there was no limitation on mileage; by plaintiffs’ testimony the motor needed to be replaced on one of the vehicles in less than one-half the lease period. That both parties anticipated hard usage is evidenced by the provisions of the schedules for replacement of each of the chassis after 36 months’ use. Defendant had chosen to lease rather than buy in the first instance, and the parties were seeking a profitable and economical venture, respectively. In determining whether the lease agreement would be profitable to the plaintiffs and economical to the defendant, a prime consideration for each party would be the question of who would bear the expense of repairs. Obviously, plaintiffs’ failure to make repairs would render the performance of the remainder of the agreement different in substance than that which defendant contracted for; plaintiffs’ failure to perform defeats the object of the contract. Under such circumstances, defendant may terminate the contract. After plaintiffs’ numerous refusals to honor the repair bills and repeated statements that they would not pay for future repairs, and since defendant could not recover damages for plaintiffs’ nonperformance by virtue of the exculpatory clause in the agreement, defendant was justified in termination of the agreement.

“It may seem hard to hold that the plaintiff failed, and that the defendant was within its legal rights, when it cancelled the contract, but in business matters when the parties have seen fit to prescribe their relations in writing, the Court is bound by the law to apply to their conduct the rules which they themselves have formulated.” Atwell Printing Co. v. Prairie Farmer Pub. Co., supra.

We are reminded by the plaintiffs that in order to reach the decision that we do we must hold that the trial court’s findings are palpably wrong or manifestly erroneous. Inter-Insurance Exchange of Chicago Motor Club v. Travelers Indemnity Co., 57 Ill App2d 17, 206 NE2d 518 (1965). However, as set forth above, the contract in question is clear and unambiguous. From the uncontroverted evidence it is our opinion that the plaintiffs have breached the contract and that their breach was substantial. It is our further opinion and holding that the judgment of the trial court was manifestly erroneous.

For these reasons the judgment of the court below is reversed.

Reversed.

GOLDENHERSH and MORAN, JJ., concur.

       Under the trial court’s theory the judgment should have been for $12,848.

       Which is as follows: “Lessor shall not be liable for any loss, expense or damage on account of Lessor’s failure or delay in furnishing any vehicle or substituted vehicle hereunder, or in furnishing or authorizing any service or repairs thereto, or by reason of defect or breakdown of any vehicle leased hereunder.”

       Paragraph 3(m) states: “Neither failure nor delay on the part of Lessor and or Lessee in exercising any right, power or privilege hereunder . . . shall operate as a waiver thereof. . . .”


author: MR. PRESIDING JUSTICE DEMPSEY

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Tony Parker, Defendant-Appellant.
    Gen. No. 51,312.
    First District, Third Division.
    June 27,1968.

      James F. Slager and Robert P. Cummins, of Chicago, for appellant.
    John J. Stamos, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and Francis J. Carey, Assistant State’s Attorneys, of counsel), for appellee.
   MR. PRESIDING JUSTICE DEMPSEY

delivered the opinion of the court.

A jury found the defendant, Tony Parker, guilty of theft of property valued in excess of $150. After a hearing in aggravation and mitigation he received a sentence of from five to ten years in the penitentiary.

Three contentions are raised on appeal. First, that the stolen automobile was not proved to be over $150 in value; second, that the defendant was not identified beyond a reasonable doubt as the perpetrator of the offense, and third, that the indictment was defective.

In the early morning of June 11, 1964, Officer Thomas of the Chicago Police Department was driving east on a one-way street in a squad car when he noticed an auto approaching from the wrong direction. Thomas flashed the light atop the squad car and the driver of the auto stopped when the vehicles were almost parallel. The officer turned the squad car’s spotlight on the auto and its driver half opened the auto’s door and inquired what the trouble was. He was informed that he was on a one-way street and was asked to pull to the curb. He pulled over, hesitated for a moment and then sped away. Thomas turned the squad car around, gave chase and radioed to the police communication center for assistance.

During the chase the cars attained speeds of up to 95 miles per hour and at least six other police vehicles were involved in the attempt to intercept the fleeing auto.

At one point Thomas attempted to curb the auto and pulled alongside of it. However, the other driver veered into Thomas causing him to lose control of his car and go over an embankment. The squad car sustained a blowout in the process. After changing the tire the officer proceeded for a block or two until he came upon the car he had been pursuing. It had struck a tree and its driver had vanished. Thomas then received word over the two-way radio that a man was being held in custody about three blocks away.

The defendant had been apprehended in a steel storage yard by officers of the Canine Corps of the Chicago Police Department at approximately 4:30 a. m. Police dogs on long leashes had run to a 15-foot high pile of girders and started barking. A flashlight revealed the defendant on top of it. After a little delay he came down and when asked what he was doing in the yard replied that he had “hoboed” from St. Louis on a coal car. He was attired in a well-pressed, blue suit and a clean, white shirt. Officer Thomas then arrived at the yard and identified the defendant as the driver of the auto he had been chasing.

The ownership of the auto was traced and the owner came to the scene of the crash and identified it. He testified that he had last seen the auto parked alongside of his apartment about 2:00 a. m. on the morning of the 11th. He said that he had paid $1,300 for it some six months before the theft and that he had expended $225 repairing it between the purchase and the theft. He described the damage to the auto and stated that the cost of repairing it would be $200.

After both sides had rested, the prosecution asked leave of court to reopen its case for the purpose of introducing further evidence of the auto’s value. Permission was granted over the defendant’s objection and the sales manager of the automobile agency which was repairing the auto, a man who had fourteen years’ experience in the automobile business, was called as a witness. He described the auto belonging to the complainant and stated that, in his opinion, its fair cash market value when it was taken was between $1,400 and $1,500.

The defendant argues that the testimony of the owner was not competent to establish the car’s value, that the trial court erred in permitting the State to reopen its case and that the testimony of the sales manager was not connected to the stolen auto.

That value which makes the offense of theft a felony rather than a misdemeanor is the fair cash market value of the article at the time and place of its taking. People v. Kurtz, 69 Ill App2d 282, 216 NE2d 524 (1966). The testimony of the auto’s owner as to its cost some six months prior to the theft was, therefore, not satisfactorily probative of its value on the date of the theft. Nor was his testimony as to the cost of repairs evidence of such value. People v. Kelly, 66 Ill App2d 204, 214 NE2d 290 (1965). The sales manager’s testimony, however, provided adequate proof of the auto’s value when it was stolen and justified the jury’s finding that its fair market value was in excess of $150.

It is within the trial court’s discretion to reopen a case and a court of review will not interfere with the exercise of this discretion unless it is clearly shown to have been abused. People v. Simpson, 76 Ill App2d 441, 222 NE2d 102 (1966); People v. Moore, 74 Ill App2d 24, 220 NE2d 105 (1966). It is apparent from the record that the Assistant State’s Attorney was apprehensive of the evidence he had introduced to prove value. Immediately upon the close of the defense testimony he sought permission to call a more qualified witness. The defendant has not shown that the testimony was unfair or that he was prejudiced by its being received out of sequence and he made no attempt to rebut it by introducing evidence of contrary value. The trial court did not abuse its discretion by allowing the State to reopen the case.

It is further argued that the expert testimony as to market value was insufficient because it was never shown that the auto the sales manager was referring to and the car owned by the complaining witness were one and the same. We have examined the manager’s testimony and conclude that the vehicle was properly identified.

The sufficiency of Officer Thomas’ identification is next attacked. The defendant notes that the confrontation between Thomas and the driver of the auto took place in the early morning hours while it was still dark and that it lasted but a short time. He points out that Thomas was unable to recall whether the defendant had a hat on; that Thomas testified that a set of keys, found by him in the auto after it crashed, had been in his exclusive possession but that another officer stated the keys were in his possession for a period of time during the investigation of the case; and that Thomas testified that, after the squad car had the blow-out, he was disabled for ten minutes while some citizens and himself put on a spare tire, but did not tell what his partner was doing at this time.

The sufficiency of an identification is ordinarily a question of fact for the jury’s determination and its finding will not be upset on review unless the testimony is so unsatisfactory as to create a reasonable doubt of the accused’s guilt. People v. Brown, 86 Ill App2d 163, 229 NE2d 922 (1967). Minor discrepancies in the testimony of a witness go only to the weight to be given the testimony. People v. Cooper, 69 Ill App2d 18, 216 NE2d 168 (1966).

Thomas had an opportunity to view the driver on not one, but two occasions: once when he talked to him as the autos were nearly parallel, and again when he attempted to curb the fleeing auto. Although it was dark at the time of the first encounter, the squad car’s spotlight was focused on the auto and that vehicle’s interior light came on when its driver half opened the door and inquired as to what was wrong. Thus, there was ample illumination to enable the officer to observe the driver.

The fact that Thomas could not recall whether the driver wore a hat diminishes in importance when it is considered that the witness qualified his testimony as to the driver’s attire by stating that he remembered how the driver was partially dressed. The contradiction by the officer as to the exclusive possession of the set of keys was peripheral to the main issue and went only to the weight to be accorded the witness’ testimony.

Finally, the assertion that Thomas did not refer to the activity of his partner is unimportant when placed in proper perspective. On direct examination Thomas testified that he had been accompanied by a partner on the morning of the 11th, but explained that his partner would be unable to testify because he was “on the medical at home.” In answer to a preliminary question concerning what he had observed on the morning in question Thomas replied that: “On patrol we observed the car coming . . . .” At this juncture he was admonished by the prosecutor to: “Just tell what you observed, not ‘we,’ you, just you.” After this, the witness spoke only in the singular and did not refer to his partner during the remainder of his testimony. When viewed in this context Thomas’ failure to account for his partner’s activity while the tire was being changed is understandable and cannot be considered to reflect adversely upon his credibility.

The final contention is that the indictment is defective and should be dismissed because both the time and place of the offense were not stated therein as definitely as could have been. The indictment stated that the offense was committed within Cook County on June 11, 1964, and this is all that is required. People v. Scott, 82 Ill App2d 109, 227 NE2d 72 (1967); People v. Blanchett, 33 Ill2d 527, 212 NE2d 97 (1965).

The judgment of the trial court is affirmed.

Affirmed.

SCHWARTZ and SULLIVAN, JJ., concur.


text:
    Manuel Beltran and Anna Beltran, Appellees, v. Frank Kostka, Appellant.
    Gen. No. 51,397.
    First District, Fourth Division.
    July 17,1968.

      Julius Lucius Echeles, of Chicago, for appellant.
    Leonard S. Whitcup and Edward M. Fiala, Jr., of Chicago, for appellees.
   MR. JUSTICE ENGLISH

delivered the opinion of the court.

Defendant appeals from that part of a Circuit Court order which directs him to execute and deliver to plaintiffs a release of a trust deed securing plaintiffs’ note to defendant in the amount of $6,310.

The record in this court consists of the pleadings and order only, there being no report of proceedings.

Plaintiffs’ complaint recites a transaction between the parties whereby plaintiffs purchased certain real estate from defendant. The consummation of the sale included delivery to defendant of plaintiffs’ note secured by the trust deed referred to above. Plaintiffs claim that over the years they have now paid $1,880 more than they should have on this note. The complaint therefore prays that the note be cancelled (though it does not ask for release of the trust deed), and that plaintiffs have judgment for the amount of the overpayment.

Defendant’s answer denies the essential parts of plaintiffs’ complaint. He also filed a counterclaim in which he alleges that plaintiffs still owe $2,694 plus interest on the note, and prays judgment therefor. Plaintiffs answered the counterclaim with denials.

After a full hearing, the trial court entered an order which dismissed for want of equity both the complaint and the counterclaim. In addition, the court ordered defendant to release the trust deed, and it is only from this part of the order that appeal has been taken. No cross-appeal was filed.

Defendant contends that the order on him to release the trust deed is inconsistent with the dismissal of plaintiffs’ complaint for want of equity, which it is. It is also argued that when the complaint was disposed of by dismissal, there remained no pleading to support the order in question. With this we also agree, and therefore conclude that the part of the order which is the subject of this appeal must be reversed.

Plaintiffs argue that the order directing release of the trust deed should be affirmed since it is consistent with the order dismissing defendant’s counterclaim, which it is. If the entire order were here on appeal (and with a complete record), we would be disposed to modify this confused and confusing result, or remand the cause to the trial court for such purpose. Under the circumstances, however, we are unable to do so because the two orders of dismissal have become final and are not before us.

That part of the Circuit Court’s order directing release of the trust deed in question is reversed.

Reversed.

McCORMICK, P. J. and DRUCKER, J., concur.

       We note that by dismissing the complaint for want of equity, the court in effect denied plaintiffs’ prayer for cancellation of the note. Thus, the result of the trial court’s order would be not to extinguish the debt as evidenced by the note, but only to release the security.


author: STOUDER, J.

text:
    Margaret Moehling, Plaintiff-Appellee, v. Joseph M. Brickman, Individually, and d/b/a Joseph M. Brickman Investment Co., Defendant-Appellant.
    Gen. No. 51,410.
    First District.
    June 24,1968.
    Rehearing denied September 18,1968.

      Bloch, Birndorf & Silverman, of Chicago (Allan R. Bloch, of counsel), for appellant.
    A. Bradley Eben, of Chicago, for appellee.
   STOUDER, J.

Margaret Moehling, Plaintiff-Appellee, brought this action in the Circuit Court of Cook County against Brick-man Investment Company and Joseph M. Brickman, seeking to recover real estate brokerage commissions. The court sitting without a jury, found the issues in favor of plaintiff and entered a judgment for $29,682.60 as commission and $6,428.25 as interest against defendant, from which this appeal follows.

Plaintiff testified that she was a real estate broker duly licensed by the State of Illinois. She lived and had her real estate office in Prairie View, Ela Township, Lake County, Illinois. During 1960 and 1961 the defendant had by written agreement, listed with her for sale, some fifteen parcels of land located in Ela Township. The listings were nonexclusive, the properties having been listed with other brokers including Henry Kyatt. During the period of approximately two years following the listing of such properties, the plaintiff, in her endeavors to sell the properties, had posted twelve of her signs thereon, had advertised the properties in area newspapers and had discussed the prospective sale of such properties with nearly two hundred fifty prospects.

She testified that early in May, 1961, she received a telephone call at her office from Hyman Pierce, attorney for the Central Standard Insurance Company, ultimately the purchaser of the properties. Pierce indicated that he had seen her sign and asked whether she was the owner of the properties. Plaintiff indicated that she was not the owner but could put Pierce in touch with the owner. A brief discussion ensued concerning the properties available in the area. On the following day plaintiff called on Pierce at his office with a plat of the properties. Plaintiff talked with Pierce at least eight times during the month of May. During one of the visits to Pierce’s office she was introduced to Alfred McArthur, President of Central Standard Insurance Company as being the young lady with whom Pierce had been having conversations concerning the real estate. During the same period of time, plaintiff talked with defendant nearly every other day. Pursuant to arrangements made by plaintiff, a meeting was held on June 6th in Pierce’s office at which meeting plaintiff, defendant, Pierce and McArthur were present. The properties were discussed, but no decisions were made. At the conclusion of the meeting Pierce indicated that he and McArthur desired to consider the matter privately. Plaintiff returned to Pierce’s office two days later and was informed that no decision had been made, but she was requested to return the following day which she did. An oral offer of $700 per acre was made which plaintiff communicated to defendant. In reporting the state of affairs to defendant, the latter indicated that perhaps if another meeting were held he could get the price up to $800 per acre. Accordingly, plaintiff arranged another meeting which was held on June 12th. Again no final decision was reached. After this meeting defendant told plaintiff that he would take Pierce’s deal but that he would handle the details thereafter. An agreement was reached between defendant and Central Standard Insurance Company for the sale of nearly one thousand acres at $750 per acre with the defendant having an option to repurchase the properties at $950 per acre. The option was never exercised. When the plaintiff returned from her vacation on July 10th, she called defendant to ascertain whether the transaction was ready to go into escrow and whether her real estate commission could be included in the escrow agreement. On this occasion she was informed by defendant that the transaction was a loan and that all she was entitled to was a finder’s fee for a loan. (One-half or one percent is the usual loan finder’s fee as contrasted to the four percent real estate broker’s commission provided in the listing agreement.)

Pierce testified that Henry Kyatt, a real estate broker, called at his office in the latter part of April, 1961, and discussed with him the possible purchase by Central Standard of properties in Ela Township. Pierce had a report of title made and in the middle of May he, together with McArthur and Kyatt, made an inspection of the properties. He observed one of plaintiff’s signs, wrote her name and telephone number down and called her the next day from his office. Pierce gave as his reason for calling plaintiff his uncertainty as to whether her sign was on the property mentioned by Kyatt. Pierce’s testimony substantially corroborates the testimony of plaintiff concerning the nature of the phone call and the succeeding events.

Defendant in his testimony generally corroborated the incidents to which he was a party as testified to by plaintiff. Defendant also testified that prior to the middle of May, Kyatt had told him of a possible prospect for the sale of the properties. Kyatt did not mention the name of the prospective purchaser or indicate that any offer of purchase had been made. Defendant testified that he had paid Kyatt a real estate commission for the sale.

Henry Kyatt was neither a witness at the proceeding nor a party to the suit.

Plaintiff’s claim is based on her allegation in the complaint that she secured a buyer ready, willing and able to purchase the properties on terms acceptable to the seller. The principal issue presented by the facts and argued by the parties is which agent is entitled to the real estate commission, plaintiff or Kyatt.

Defendant first argues the trial court erred in rulings on evidence. The first error urged is the exclusion of the contract between defendant and Central Standard Insurance Company, the transaction upon which the claim for commission is based. However the record reveals the contract was admitted into evidence and it was only the repurchase option which was excluded. We believe the trial court properly excluded such proposed exhibit as being immaterial. It had no bearing on the issue which the court was required to reconcile, namely whether plaintiff or Kyatt was entitled to the commission. Furthermore, defendant in his own testimony, described the repurchase option and it appears he may have retained some lingering idea that the transaction was a loan and not a sale. During the trial, defendant’s counsel conceded that the transaction was a sale and not a mortgage since defendant was under no obligation to repurchase the properties.

Defendant also argues the trial court erred in sustaining plaintiff’s objections to certain questions asked of Pierce regarding his state of mind and the influence exerted by plaintiff on the decision to purchase the properties. It appears that questions of similar import have been held proper and hence the trial court would not have erred in permitting the questions to be answered. McGuire v. Carlson, 61 Ill App 295. We do not believe that any prejudicial error resulted since the nature and extent of the conduct of both brokers is fully disclosed by other evidence. Plaintiff’s claim was based on the circumstances relating to the bringing together of the parties and not on Pierce’s state of mind.

Defendant next argues that only one broker’s conduct can be the procuring cause of a particular sale and that where the seller has determined in good faith that one broker’s conduct was the procuring cause of the sale and has paid such broker therefore, another broker is precluded from claiming a commission on the same sale. As applied to the issue in this case we believe that either plaintiff or Kyatt is entitled to the commission, but not both. Noble v. Carruthers, 235 Ill App 1. However, we believe that the evidence fails to establish as a matter of law that the defendant determined in good faith that Kyatt was entitled to the broker’s commission and that he paid him. In fact there is ample evidence from which the contrary conclusion can be reached.

Defendant testified that he had paid Kyatt a real estate broker’s commission on the sale. On further questioning it appeared that the defendant had a running account with Kyatt and that Kyatt’s fee had been included in a check for $50,000 payable to and delivered to one Basil, an associate of Kyatt. Defendant was unable to state the amount of any fee which might have been included in such check for Kyatt’s commission, did not testify to receiving any bill or request for payment of any real estate commission from Kyatt and that he assumed Kyatt received his commission from such check. Furthermore the record reveals from the defendant’s own testimony that he declined to pay plaintiff a real estate broker’s commission because all she was entitled to was a loan finder’s fee. Also in defendant’s testimony appears the admission that he considered Kyatt had rendered no services in connection with the sale. On this state of the evidence we find no merit to defendant’s contention the trial court was required to find that the defendant in good faith paid a real estate broker’s commission to Kyatt.

Defendant next argues the trial court erred in determining that plaintiff’s conduct was the procuring cause of the sale. The issue before us is whether, considering all the evidence and the inferences that could be reasonably drawn from it most favorable to the plaintiff, there was a total failure to prove the necessary elements of plaintiff’s claim. Chiagouris v. Continental Trailways, 50 Ill App2d 196, 200 NE2d 399. The question of whether one broker or another is entitled to the commission for a sale depends upon which of the broker’s efforts may be deemed the procuring cause of the sale. Such determination is primarily a question of fact with the trial court being required to consider the relative significance of each broker’s conduct to the sale as consummated. Undoubtedly where more than one broker has discussed property with the same prospective purchaser each broker has affected the interest of such purchaser to some extent. White v. Sellmeyer, 157 Ill App 435. In determining whether a broker’s conduct is the procuring cause of a sale, we agree with the proposition that if a broker introduces property to a buyer who thereafter purchases the property, the broker is entitled to a commission in the absence of any intervening instrumentality which may be regarded as the effective or efficient cause of the sale. Doss v. Kirk, 8 Ill App2d 536, 132 NE2d 49; Faber v. Vaughan, 108 Ill App 553, and First Nat. Bank in Champaign v. Pace, 35 Ill App2d 390, 183 NE2d 35. Where there is an intervening effective agency such as successful negotiations by another broker it follows that a broker will not be entitled to a commission merely because of his initial introduction of the property to a purchaser.

Defendant insists that all plaintiff did was to introduce a buyer already interested in the purchase of the property to a seller whom the buyer already knew. Such characterization of plaintiff’s conduct or participation in the transaction is based upon a consideration of only that evidence favorable to defendant’s position and ignores all contrary evidence. We believe there is ample evidence from which the trial court could have properly concluded Pierce did not know that the defendant was the owner of the properties until such fact was revealed by plaintiff to Pierce. It is undisputed that defendant did not know of the prospective purchaser until revealed by plaintiff. That the purchaser knew defendant was the owner of the property depends primarily upon the testimony of Pierce which is at best on this issue contradictory. Although Pierce asserted that he knew Brickman to be the owner prior to his contact with plaintiff, Pierce at one point in his testimony indicated that Kyatt had told him of the defendant’s ownership. Later he indicated that Kyatt’s knowledge of the properties was vague and indefinite and that in fact Kyatt had refused to reveal the name of the owner of the property. Nor does the report of title reveal the name of the owner of the property. However of utmost significance is Pierce’s own conduct in calling plaintiff, particularly in view of his insistence that he would deal only with the owner.

If, as we believe, the evidence is sufficient to show neither of the parties knew one another before their introduction by plaintiff and that negotiations leading to the sale would not have taken place in the absence of such introduction, such conduct by plaintiff together with her efforts to promote the negotiations between the parties did constitute an intervening instrumentality which could be deemed the procuring cause of the sale. This conclusion is supported by defendant’s own testimony namely that plaintiff was entitled only to a loan finder’s fee, i. e., an admission that she did make the original contact and his assertion that Kyatt did not render any services in connection with the sale.

Lastly defendant argues that plaintiff cannot recover a real estate commission because she did not secure a real estate broker’s license from the City of Chicago as required by city ordinance. We believe it is sufficient to say that the listing agreement was not void as in Usher v. McGowan, 20 Ill App2d 201, 155 NE2d 830 and Winston v. Kasper American State Bank, 36 Ill App 2d 423, 184 NE2d 725, and that the ordinance is not applicable with respect to a real estate broker whose residence and principal place of business is outside the city of Chicago even though he makes an isolated solicitation within the city. First Nat. Bank of Millstadt v. Freant, 7 Ill App2d 204, 129 NE2d 276, and Federated Petroleum Services, Inc. v. Daniels, 56 Ill App2d 236, 205 NE2d 741.

For the foregoing reasons the judgment of the Circuit Court of Cook County is affirmed.

Judgment affirmed.

ALLOY, P. J. and HOFFMAN, J., concur.


author: JUSTICE MORAN.

text:
    Carl H. Pinkerman, Plaintiff-Appellant, v. Eagle Food Stores, Inc., Defendant-Appellee.
    Gen. No. 51,433. (Abstract of Decision.)
    First Judicial District.
    July 3,1968.
    Frank Ferlic and Horace Lund, of Chicago, for appellant; Doyle, Berdelle & Tarpey, of Chicago (Leo M. Tarpey, Jr., of counsel), for appellee.
   Opinion by

JUSTICE MORAN.

Not to be published in full.