author: MR. JUSTICE ABRAHAMSON

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Michael J. Weeks, Defendant-Appellant.
    Gen. No. 67-24.
    Second District.
    September 20, 1967.
    Roger W. Hayes, of DeKalb, for appellant.
    James G. Boyle, State’s Attorney, of Sycamore (Rodney A. Wright, Assistant State’s Attorney, of counsel), for appellee.
   MR. JUSTICE ABRAHAMSON

delivered the opinion of the court.

A four-count indictment was brought against the defendant, Michael J. Weeks, by the Grand Jury of the County of DeKalb. Counts I and H charged Weeks with attempting to murder Omar Joel on May 12, 1966. Count IV charged him with the attempt to commit murder by making an assault with a deadly weapon upon Joel but that count was dismissed on defendant’s motion prior to trial. Count III states as follows:

“The said Grand Jurors, chosen, selected and sworn, as aforesaid, in and for the County of DeKalb, in the State of Illinois, in the name and by the authority of The People of the State of Illinois, upon their oaths do further present: that Michael J. Weeks late of said County and State aforesaid, on, to-wit: the 12th day of May in the year of our Lord One Thousand Nine Hundred and Sixty-six at and within the said County of DeKalb, in the State of Illinois, aforesaid, Michael J. Weeks committed the offense of Attempt in that he did, with intent to commit the offense of Voluntary Manslaughter, in that he, acting under a sudden and intense passion, resulting from serious provocation by Omar Joel, attempt to shoot Omar Joel with intent to kill or do great bodily harm to the said Omar Joel without lawful justification, in violation of Chapter 38, Section 8-4 of the Illinois Revised Statutes, contrary to the form of the statute in such case made and provided, and against the peace and dignity of the same People of the State of Illinois.”

The matter proceeded to trial before a jury on October 17, 1966, and at its conclusion a verdict was returned that found the defendant guilty “of attempt to commit voluntary manslaughter in the manner and form” charged in the indictment. No verdict was returned on either count that charged an attempt to commit murder. Judgment was entered on the verdict and Weeks was sentenced by the court to not less than one year nor more than five years in the Illinois State Penitentiary.

The facts disclosed by the evidence are largely undisputed. Weeks and his wife, Janet, had separated sometime in March of 1966. He made repeated efforts to effect a reconciliation and had frequent “dates” with his wife during their estrangement. On May 11, 1966, he discovered his wife in the company of another man who he subsequently learned was Omar Joel. He was apparently quite upset over this discovery and was unable to sleep that night. After working a half day on May 12, he drove to Sycamore where he purchased a .22 caliber “short” revolver. On his return from Sycamore, he stopped at a service station where he told the attendant that “he was going to the gas chamber.”

At approximately 6:45 p. m., Weeks went to the home of his wife’s parents where she resided, showed her the gun and told her either “Omar Joel is dead” or “Omar Joel will be dead.” He then went to Joel’s apartment, asked Joel “How would you like to die ?” and pointed the revolver at him. The two men began to fight, five shots were fired and one bullet lodged in Joel’s shoulder. At the sight of Joel’s blood, Weeks dropped his gun and helped Joel to his car to take him to the hospital. The police, previously alerted by Janet’s father, were outside Joel’s apartment building where they apprehended Weeks. Joel recovered within a few days although the bullet has not been removed from his body.

The failure of the jury to return a verdict on the counts that charged the attempt to commit murder amounted to an acquittal on those charges. People v. Newman, 360 Ill 226, 232 and 233, 195 NE 645 (1935); People v. McMurry, 64 Ill App2d 248, 252, 212 NE2d 7 (1965).

Section 8-4 (a) of the Criminal Code, Chapter 38, Ill Rev Stats (1965), enumerates the elements of the offense of Attempt as follows:

“A person commits an attempt when, with intent to commit a specific offense, he does any act which constitutes a substantial step toward the commission of that offense.”

Voluntary Manslaughter is described in section 9-2 (a) of the same chapter as:

“A person who kills an individual without lawful justification commits voluntary manslaughter if at the time of the killing he is acting under a sudden and intense passion resulting from serious provocation . .

The defendant argued by motion before trial, during the trial, by post-trial motion and continues to argue in this appeal that, by definition, there can be no such offense as an Attempt to commit a Voluntary Manslaughter. He contends that an Attempt must involve a specific intention to commit the crime whereas Voluntary Manslaughter can only exist where there is no such intention and that therefore an Attempt to commit Voluntary Manslaughter is a logical and legal impossibility.

While there are no Illinois cases on this precise point, the case of Moore v. People, 146 Ill 600, 35 NE 166, by analogy deals with this problem. At page 602, the court stated:

“By section 191 of the Criminal Code of this State manslaughter is defined as follows: ‘Manslaughter is the unlawful killing of a human being without malice, express or implied, and without any mixture of deliberation whatever.’ To reduce the felonious killing of a human being from murder to manslaughter there must be no implication of malice from facts and circumstances proven, and there must be no deliberation whatever. Where a deliberate intent must be found to exist to constitute the act criminal, it is impossible that it should be found to exist without reflection or premeditation. In this case the intent with which the assault was committed is a necessary fact to be shown or implied to constitute the crime. When it appears there was an intent to take life, either express or implied, where the killing would not be excusable or justifiable, and an assault is made with that intent, then it would be an assault with intent to commit murder. It would follow, therefore, that for one to assault another with intent to commit manslaughter would be a contradiction in terms. The People v. Lilly, 43 Mich 521.”

Also, this problem has been resolved in New York. Under New York law manslaughter is defined as homicide “without a design to effect death.” New York Penal Law, Consol Laws, c 40, pars 1050, 1052. In the 1964 case of People v. Brown, 21 App Div2d 738, 249 NYS 2d 922, the defendant was indicted for an attempt to commit murder. At the conclusion of the trial the jury was instructed that it could find Brown guilty of any lesser, included crime, including that of “attempted manslaughter.” The jury promptly returned a verdict that found Brown guilty of “attempted manslaughter” and judgment was rendered by the trial court on that verdict. That judgment was modified and affirmed by the reviewing court that stated, in part, as follows:

“An attempt to commit a crime consists of (1) the intent to commit the crime; (2) the performance of an act toward the commission and (3) failure to consummate. There must be an intent to commit a specific crime in order to constitute an attempt. (Citation omitted.) An attempt to commit manslaughter is apparently a contradiction because the specific crime of manslaughter involves no intent and, accordingly, an intention to commit a crime whose distinguishing element is lack of intent is logically repugnant.”

In February of 1967, New York restated its earlier decision that there could be no such crime as attempted manslaughter in the case of People v. Foster, 19 NY2d 150, 225 NE2d 200, although it refused to reverse the conviction by the trial court for the reason that the defendant had pled guilty to that charge as a compromise with the prosecution.

The logic of the Moore and the New York decisions and the contentions of the defendant are persuasive. We have previously held that the “intent” required for conviction of the offense of Attempt must be a “specific intent.” People v. Paluch, 78 Ill App2d 356, 359, 222 NE2d 508. The act that constitutes the attempt must result from some calculation on the part of the accused. Voluntary Manslaughter, on the other hand, precludes any calculation but can only result from “a sudden and intense passion” that is itself triggered by a “serious provocation.” The passion engendered by the provocation must be sufficiently intense to vitiate the normal, self-imposed controls against the criminal act. An act cannot be both the result of a “sudden and intense passion” and a calculated goal of prior deliberation. It is either one or the other but it cannot be both. Consequently, we agree that there can be no such crime as an Attempt to commit a Voluntary Manslaughter.

Since, as we have said, the failure of the jury to return any verdict amounted to an acquittal on the attempt to commit murder charges, the cause will be reversed and not remanded. It is not necessary to consider the other points raised by the defendant in this appeal.

Reversed.

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


source: Caselaw Access Project

author: MR. JUSTICE MORAN

license: Public Domain

text:
    People of the State of Illinois, Plaintiff-Appellee, v. G. D. Shoemaker, Defendant-Appellant.
    Gen. No. 66-145.
    Second District.
    September 20, 1967.
    George H. Schirmer, Jr., of Freeport, for appellant.
    Dexter A. Knowlton, State’s Attorney, of Freeport, for appellee.
   MR. JUSTICE MORAN

delivered the opinion of the court.

On February 28,1964, the defendant, G. D. Shoemaker, was charged, in a six-count information, with the offense of official misconduct. (Ill Rev Stats 1961, c 38, § 33-3(a).) On the same date the defendant, with counsel of his own choice, waived indictment by the grand jury, waived trial by jury, entered a plea of guilty after being admonished as to his rights, resigned his office of Justice of the Peace, moved the court for probation and was released upon his own recognizance.

At the time the application for probation was filed, the court referred the request for investigation and report and the defendant’s counsel stated:

“. . . We ask the Court to delay hearing the application for probation until such time as we have a chance to examine the books and records.”

The court granted the request and continued the matter without date for further consideration.

It was not until October 13, 1966, that the cause was again called before the court, with another judge presiding, at which time the following colloquy took place:

By the Court: “. . . As I understand it, the defendant has requested probation, and this hearing would be the hearing of evidence of the offense and hearing in aggravation and mittigation (sic) and a hearing on the request for probation all combined— is that correct . . .”
By the State’s Attorney: “It is, your Honor.”
By the attorney for the defendant: “That states the situation, your Honor.”

During opening statements the State informed the court that it would have no evidence to present in aggravation other than the plea of guilty and an exhibit showing an agreed upon audit of the defendant’s books. The defense then called seven prominent witnesses that attested to the good character and reputation of the defendant. The record reveals that not once throughout the hearing did the defendant offer any objection to the procedure or evidence. At the conclusion, the court granted probation for a period of five years, conditioned upon the defendant being incarcerated in the Illinois State Farm at Vandalia for the first six months thereof. No post-trial motions, either written or oral, were filed.

On appeal the defendant, for the first time, urges error, in that (1) the probation officer’s investigation and report was never made or filed with the clerk of the trial court and (2) the court, by delaying the sentencing of the defendant, lost jurisdiction of the cause.

A search of the record fails to disclose that either of the defendant’s questions, now raised in this court, were ever presented to the trial court for determination and, since he did not raise any of the questions sought to be advanced here, they are deemed waived. Illinois Crime Investigating Commission v. Buccieri, 36 Ill2d 556, 565, 224 NE2d 236 (1967); People v. Irwin, 32 Ill2d 441, 443, 207 NE2d 76 (1965); People v. Dell, 77 Ill App2d 318, 325-326, 222 NE2d 357 (1966); People v. Carter, 76 Ill App2d 323, 324-325, 222 NE2d 91 (1966). See also, Hon. George N. Leighton, Post-Conviction Remedies in Illinois Criminal Procedure, 3 UILF 540 (1966).

For the reason herein cited, the judgment of the Circuit Court of Stephenson County is affirmed.

Judgment affirmed.

DAVIS, P. J. and ABRAHAMSON, J., concur.


author: JUSTICE ABRAHAMSON.

text:
    Peter J. Palombi, Plaintiff-Appellant, v. Sylvia A. Kamp, et al., Defendants-Appellees.
    Gen. No. 67-21.
    Second District.
    September 20, 1967.
    Miller, Thomas, Hickey and Collins, of Rockford, for appellant;
    Cannariato, Nicolosi and Pigatti, of Rockford, for appellees.
   Opinion by

JUSTICE ABRAHAMSON.

Not to be published in fulL


author: MR. PRESIDING JUSTICE DAVIS

text:
    The First National Bank of Elgin, a National Banking Association, Conservator of the Estate of Rose D. Thies, Incompetent, Plaintiff-Appellee, v. Donald C. Dierking, Defendant-Appellant.
    Gen. No. 66-151.
    Second District.
    October 4, 1967.

      Irving Goodman, of Chicago, for appellant.
    McCarthy, McCarthy and Meyers, of Elgin, for appellee.
   MR. PRESIDING JUSTICE DAVIS

delivered the opinion of the court.

The First National Bank of Elgin brought this suit as Conservator of the Estate of Rose D. Thies, Incompetent, herein referred to as Rose, against the defendant, Donald C. Dierking, seeking to set aside two deeds, each of which named the defendant and Rose as joint tenants. The trial court held that the title conveyed by the two deeds was, in fact, held by the defendant in a resulting trust solely for the use and benefit of Rose, and directed the defendant to convey all of his title and interest in the premises to her. The defendant has prosecuted this appeal.

There was substantially no factual dispute from the evidence elicited at the trial. The defendant first met Rose in 1952. He was then in his forties, and she in her sixties. He had known her brother, with whom she lived, for about thirty years. Her brother died in 1955, and thereafter the defendant and his sister or some other person, took Rose out every Friday, Saturday and Sunday, for dinners and other outings. The defendant testified that not a weekend outing was missed from 1955 to 1964. Annually, they went to California on a vacation.

The defendant and others testified relative to the constant companionship of the defendant and Rose during this period of time. He helped care for and maintain the two properties in question: the one Rose lived in and the one she rented. The defendant collected the rentals for Rose and turned all of the money over to her. He was never paid for the services he performed.

Rose’s closest living relatives were certain nieces and nephews, whom she saw on occasion, but she was not intimate with them. It is clear that from 1955 on, the defendant and his sister afforded Rose the only real social life and activity enjoyed by her. The relationship between the defendant and Rose was platonic. On all occasions when they were out together, others accompanied them.

In November of 1959, Rose purchased certain rental property located on Wing Street for the sum of $14,000. The defendant had told her that this property was for sale and had showed it to her. She placed the title to this property in joint tenancy with the defendant. The effect of the joint tenancy was known to her. The lawyer for the seller prepared the deed. The defendant testified that Rose told him that she wanted this to be his house — apparently, after her death.

In December of 1960, Rose caused the property which had been in her family for many years and where she resided, to be deeded to herself and the defendant as joint tenants. A different lawyer prepared this deed. Again, it appears that she was advised of and was fully aware of the legal effect of joint tenancy.

It is conceded that at the time of both of these transactions, Rose was competent. There is absolutely no evidence of fraud, duress or undue influence. The defendant’s testimony, that he did not know of the second joint tenancy deed until after he was appointed conservator, is uncontested. Witnesses, other than the defendant, testified to Rose’s assertions that she wanted the defendant to have her property after her death; that she did not want to leave anything to her nephews and nieces; and that the defendant was the only one who did anything for her. The defendant also testified to an occurrence in 1958, at which Rose, who apparently had asked her family lawyer of many years standing to prepare a will for her leaving only a nominal amount to her relatives and naming the defendant as executor, announced her displeasure upon finding that the lawyer had prepared the will in such a manner that the relatives were left substantial amounts.

Reduced to the relevant essentials, we have before us a situation where Rose, who at all times was fully aware and cognizant of the legal effect of joint tenancies, knowingly purchased a piece of property and placed the title thereto in joint tenancy with the defendant; then subsequently caused the title to her own residence to be placed in joint tenancy with him. No fiduciary or confidential relationship, fraud, duress or overreaching was shown to have existed between the two parties; the defendant was unrelated, but a devoted friend and companion of his benefactor, Rose, and perhaps her sole friend of this type. The benefactor had no close relatives and none of her nieces and nephews were dependent upon her. She had expressed a desire that her relatives not receive her property upon her death, and also that the above named joint tenant, the defendant, be the recipient of her estate.

The trial court found that the defendant held title under said deeds in a resulting trust for and on behalf of Rose; and that there was no evidence to sustain a constructive trust. A constructive trust, generally, must be based upon either actual fraud, or upon a confidential or fiduciary relationship and a subsequent abuse of the confidence reposed sufficient to warrant the imposition of a trust. Cunningham v. Cunningham, 20 Ill2d 500, 504, 170 NE2d 547 (1960); 35 ILP Trusts, § 61. A constructive trust is a creation of the chancery court arising by operation of law and designed to prevent an unjust enrichment. No confidential or fiduciary relationship was alleged or shown; nor was actual fraud asserted or proven.

It appeared from the evidence that the defendant learned that the Wing Street property was for sale and apprised Rose of this fact. The evidence further indicated that Rose did not entrust the handling of her business and financial affairs to the defendant, except to the extent that she permitted him to collect the rentals. Her mental condition at the time of the transactions was good and she took it upon herself to be advised and possessed of sufficient knowledge to understand the complete nature of her transactions. The friendliness of the defendant and the advice and assistance he rendered to Rose could not be found to have deprived her of free agency and to have constituted undue influence. Gregory v. Gregory, 323 Ill 380, 386, 154 NE 149 (1926); Campbell v. Freeman, 296 Ill 536, 540, 130 NE 319 (1921); Udstuen v. Illk, 291 Ill 443, 448, 126 NE 148 (1920).

If any form of a trust existed, it had to be a resulting trust, as found by the trial court. Such trust also is a creation of the law, and it arises out of the presumed intent of the parties, distilled from their conduct. It comes into being the instant the title vests, or not at all. Its purpose is to accomplish the supposed intent of the parties at the time of the transaction. First Nat. Bank & Trust Co. of Rockford v. Illinois Nat. Bank & Trust Co. of Rockford, 19 Ill2d 385, 388, 167 NE2d 223 (1960); West v. Scott, 6 Ill2d 167, 172, 128 NE2d 734 (1955); Paluszek v. Wohlrab, 1 Ill2d 363, 366, 115 NE2d 764 (1953); 35 ILP, Trusts, § 41. The party seeking to establish such a trust must do so by evidence that is clear, convincing, unequivocal and unmistakable. If such evidence is doubtful or capable of a reasonable explanation upon any theory other than the existence of such a trust, it is insufficient. Fender v. Yagemann, 29 Ill2d 205, 208, 193 NE2d 794 (1963); West v. Scott, supra; Paluszek v. Wohlrab, supra.

Where the purchase price for property is paid for by one party and title placed in another, either solely or as a joint tenant, under Illinois law a prima facie presumption is raised in favor of a resulting trust. The presumption is that the parties intended that the latter hold title for the benefit of the former and it may be rebutted. The facts and circumstances of each case will determine when such rebuttal has been effected. The facts and circumstances which may rebut such a presumption are those which go to illustrate a contrary intent of the parties at the time of the transaction. Bowman v. Pettersen, 410 Ill 519, 524, 102 NE2d 787 (1952).

The presumption favoring the resulting trust would be applicable to the Wing Street property which was purchased by Rose, and the title to which was placed in joint tenancy at the time of purchase. This presumption would not arise relative to the other property — that held by Rose’s family for many years— which she transferred into joint tenancy with the defendant. The presumption favoring a resulting trust does not arise from a gratuitous conveyance. Byron v. Byron, 391 Ill 256, 259, 62 NE2d 790 (1945); Gregory v. Gregory, supra, 388; Mees v. Steffey, 310 Ill 161, 169, 141 NE 419 (1923); Mayfield v. Forsyth, 164 Ill 32, 36, 45 NE 403 (1896); Moore v. Horsley, 156 Ill 36, 43, 40 NE 323 (1895); 4, Scott on Trusts, 2nd Ed, § 405. Many modern decisions hold that where the owner of property transfers it without declaring any trust, the transferee does not hold the property upon a resulting trust even though the transfer is gratuitous. See: Restatement of the Law (Second) Trusts 2nd, § 405 and Appendix; Bogert Trusts & Trustees (Second Edition), § 453. The ratio decidendi is that the reasonable implication under such circumstances would be that the grant- or intended to give her property away; and that the leaving of such reservation of interest, be it life estate or otherwise, to implication is not in accord with modern concepts.

The outcome, in the case at bar, must be the same as to both properties. The presumption created by the payment of the purchase price is not sufficiently strong to withstand the uncontroverted evidence which clearly disclosed: that Rose intended that her nieces and nephews should not receive these properties upon her death; that she understood that the joint tenancies with the defendant would preclude this result; that she wanted the defendant — the one person who had shown her continued kindness, attention and assistance in her later years — to receive these properties; and that she told others of these wishes. Her then intent was further evidenced by the changes which she sought to have made in her will, which changes were consistent with her wishes as of the time of the execution of the joint tenancy deeds.

It was the intent of Rose at the time of the execution of the deeds that was crucial! All of the evidence was consistent with her then intent to make a gift of these properties to the defendant. There is no law which dictates that Rose could not dispose of her property so that her nieces and nephews would not receive it upon her death. There is nothing sinister in one person befriending another and the latter rewarding such friendship by gifts such as are before us here. Rose was not on intimate terms with the members of her family. The relatives were nieces and nephews, whom she seldom saw. Under the facts in this case, the defendant, as a constant and considerate friend, was the object of her bounty and, absent any overreaching or undue influence which plaintiff neither alleged nor established, Rose had every right to convey the title to her property in such manner that the defendant would receive it upon her death.

The fact that both the defendant and Rose recognized a right in Rose during her lifetime to use the property or receive the income therefrom was not inconsistent with Rose’s intention that a gift was intended at the time of the execution of the deeds. Rose intended to create a present legal interest in the property in the defendant at the time she executed the deeds — which would afford a means or method of automatically transferring the property to him upon her death. There is no claim that the defendant is now seeking the present income from the properties. The evidence indicates every willingness on his part that she should enjoy the use of the property during her lifetime.

It may be that taxwise he is making a gift to her each year during her lifetime, when he permits her the use and benefit of the property or its income, but this is irrelevant for our purposes and does not justify the setting aside of the deeds in question. The end result was the apparent intent of the parties and they experienced no difficulty in carrying out this intent until the filing of the suit in question.

When the testimony is contradictory in a trial without a jury, the credibility of the witnesses and the weight to be accorded their testimony, is a matter to be determined by the trial court, and its findings will not be disturbed unless manifestly against the weight of the evidence. Mortell v. Beckman, 16 Ill2d 209, 216, 157 NE2d 3 (1959); La Salle Nat. Bank v. County of Cook, 12 Ill2d 40, 48, 145 NE2d 65 (1957). However, in the case at bar, the material facts are not in dispute, and the controversy here involved is the application of the law relating to resulting trusts to such uncontroverted facts. This case presents essentially a question of law. Thus, the rule that we may set aside the factual findings of the trial court only when contrary to the manifest weight of the evidence, has no application. Gannon v. Chicago, M., St. P. & P. Ry. Co., 22 Ill2d 305, 309, 175 NE2d 785 (1961); Crittendon v. State Oil Co.,78 Ill App2d 112, 119, 222 NE2d 561 (1966).

The plaintiff herein has failed to prove the existence of a resulting trust by clear, convincing, unequivocal and unmistakable evidence. Its evidence is capable of a very real and reasonable explanation on the theory of a voluntary and gratuitous conveyance. For these reasons, the judgment of the trial court is reversed and this cause remanded with directions to enter judgment for the defendant.

Reversed and remanded with directions.

MORAN and ABRAHAMSON, JJ., concur.


text:
    State Farm Fire & Casualty Company, a Corporation, Plaintiff-Appellant, v. Bruce P. MacDonald, Defendant-Appellee.
    Gen. No. 67-16.
    Second District.
    October 4, 1967.
    Haye and Keegan, of Rockford, for appellant.
    Roszkowski and Paddock, of Rockford, for appellee.
   MR. PRESIDING JUSTICE DAVIS

delivered the opinion of the court.

State Farm Fire & Casualty Company brought suit for declaratory judgment against Bruce P. MacDonald for the construction of a certain clause in a "Homeowner’s Policy” issued by it to the defendant. The suit was brought to determine whether the plaintiff was obligated to defend MacDonald in another action then pending in the Circuit Court of Winnebago County, arising out of the accidental injury in question, and whether it was obligated to pay any judgment which might be entered against him in that litigation.

MacDonald was employed as a repairman by William Lamps, doing business as Lamps Elevator Sales & Service. On Saturday, September 5, 1964, which was not a regular work day for the defendant, his employer called and asked him to repair a freight elevator at Davis Furniture Company Warehouse in Rockford. On this occasion the defendant saw and spoke to John McNaughton, whom he had seen before at the warehouse and knew as "John.” In the course of making the repairs, the defendant went to look for a piece of wood to use as a prop for the elevator door. He found a rubber mallet on a work bench on the premises, which would serve such purpose. In walking back to the elevator with the mallet in his hand, the defendant passed in front of McNaughton, who was standing with his back against a fire door. While so doing and in an impulsive gesture, MacDonald suddenly raised the mallet and struck it against the fire door behind McNaughton’s head. Apparently, this was done as horseplay and with no intention of touching McNaughton. Unfortunately, the hammer rebounded and struck McNaughton on the head, injuring him.

McNaughton brought suit against William Lamps for damages suffered as the result of this injury. Prior to the trial, Lamps filed a third-party complaint against MacDonald for indemnification for all losses which he might incur in connection with the lawsuit initiated by McNaughton. MacDonald then gave notice to the plaintiff in this cause, State Farm Fire & Casualty Company, and demanded that the plaintiff defend him by virtue of the provisions of the “Homeowner’s Policy” issued to him by plaintiff on December 13,1963.

In the original lawsuit, the jury returned a verdict for McNaughton and against William Lamps in the sum of $50,000 and costs of suit. The plaintiff then brought this declaratory judgment action to determine its obligations to MacDonald in connection with Lamps’ third-party action against him.

Under Section II of the policy the plaintiff undertook to provide “Comprehensive Personal Liability (Bodily Injury and Property Damage)” coverage for the defendant and thereby agreed:

“. . . To pay all sums which the Insured shall become legally obligated to pay as damages because of bodily injury sustained by other persons and property damage, and the Company shall defend any suit alleging such bodily injury or property damage and seeking damages which are payable under the terms of this policy, . . . .”

The policy also provided that:

“Section II of this Policy Does Not Apply: (a) (1) to any business pursuits of an Insured, other than activities therein which are ordinarily incident to non-business pursuits, . . . .”

The plaintiff contends that the act of MacDonald in accidentally striking McNaughton with the mallet was within the exception to the exclusionary language of the policy.

At the time of the accident, MacDonald was engaged in his usual occupation — that of repairing an elevator. It must be conceded that he was generally engaged in a “business pursuit.” The question which must be resolved is whether the defendant’s impulsive act of striking the hammer against the fire door was an activity “ordinarily incident to non-business pursuits.”

Only two cases have been brought to our attention concerning the meaning of the identical insurance clause in question. In Security Nat. Ins. Co. v. Sequoyah Marina, Inc., 246 F2d 830 (CA 10th 1957), the insured, Freeman, owned a boat which he used strictly for pleasure and which was kept at a dock rented from Sequoyah Marina, Inc. He hired a repairman named Lowrance to do some work on the boat. In the course of making the repairs, Lowrance started the boat’s engine, which resulted in an explosion and damage to the property of Sequoyah Marina and others. Freeman’s insurer argued that since Lowrance was engaged in his usual occupation at the time of the explosion, the exclusionary language of the policy applied. The court pointed out, quite logically, that it was Freeman’s use of the boat, not Lowrance’s occupation, which was significant, and at page 833 held that the “activities of Lowrance in repairing the boat were ordinarily incident to the non-business use of the boat by Freeman, the owner, and were not within the exclusion.”

In Edwards v. Trahan (La App), 168 So2d 365 (1964), the insured was in the business of baling hay. He was sued for personal injuries suffered as the result of an accident which occurred at night, on a public highway, when a car collided with his unlighted, tractor-driven hay wagon. The insured had towed the wagon to a farm owned by a third party for the purpose of transporting hay back to his own home, which hay he had purchased to feed his own livestock. While en route home, the collision occurred. In that case, the court also held the clause of the policy did not exclude coverage since the insurer had not shown that the insured was engaged in a “business pursuit.”

The question in the case before us is not as readily resolved as that posed in the respective foregoing cases. We must determine whether the momentary deviation from his “business pursuits” — the horseplay with the mallet — should be classified as an activity ordinarily incident to nonbusiness pursuits, and whether the swinging of the mallet at the time, place and in the manner indicated, had any business purpose whatsoever. Apparently, there are no cases which have decided this precise question. The language of the insurance contract expressing this exception to the exclusion of coverage tends to obscure rather than elucidate the meaning of the clause. The plaintiff suggests a hypothetical situation which, in its opinion, would be covered under this particular contract clause. It suggests that of a salesman entertaining a customer on a golf course. In such event, the plaintiff contends that the salesman would be engaged in a “business pursuit,” and if, in the course of the game, he injured his customer while swinging his golf club, the injury would come within the exception to the exclusion of policy as an activity ordinarily incident to nonbusiness pursuits.

Apparently, MacDonald’s deviation from his business pursuit is without significance to the plaintiff, and the fact that the horseplay bears no relation to the business purpose or pursuit, also causes it no concern. It appears to us that the hypothetical situation suggested by the plaintiff may readily be considered as analogous to the case before us. Indeed, we find an act of horseplay at least as alien to repairing an elevator and as akin to a nonbusiness pursuit as an inadvertent and injurious golf swing, which may have business overtones. But regardless of the propriety of such analogy, it is our task to construe the policy clause in question with reference to the facts of this particular case.

It is beyond dispute that the meaning of the phrase, “other than activities therein which are ordinarily incident to non-business pursuits” is unclear, ambiguous, and it has long been recognized that an insurance contract is unlike most contracts. In an insurance contract, absent statutory requirements, the company determines and drafts its policy provisions. The insured takes the contract as he finds it. Any lack of clearness in the meaning of such contract is the responsibility of the insurer. That construction of the policy will be adopted which favors the insured and resolves the uncertainty in his favor. Midwest Dairy Products Corp. v. Ohio Cas. Ins. Co. of Hamilton, Ohio, 356 Ill 389, 392, 393, 190 NE 702 (1934); Iowa Nat. Mut. Ins. Co. v. Fidelity & Casualty Co., 62 Ill App2d 297, 303, 210 NE2d 622 (1965); Country Mut. Ins. Co. v. Bergman, 38 Ill App2d 268, 277, 278, 185 NE2d 513 (1962).

A construction of the clause of the policy in question which resolves the uncertainty in favor of the insured can be made without perverting the ordinary meaning of the exclusionary clause. Under the language of the clause, it is definite and clear that certain types of activities which occur as a part of “business pursuits” were meant to be covered by the contract and included within the protection afforded by the policy. The incident under consideration occurred during a business pursuit, and it is at least as logical to conclude that the defendant’s impulsive action, which caused the injury, was the type ordinarily incident to a nonbusiness pursuit, as it would be to reach an opposite determination. Equivocal expressions in an insurance contract whereby an insurer seeks to narrow the range of its liability are properly construed most strongly against the insurer. Country Mut. Ins. Co. v. Bergman, supra. Under the circumstances of this case and the pertinent provisions of the policy, we believe that further inquiry into the enigma of the meaning of the exception to the exclusionary clause would be fruitless.

We are of the opinion that the trial court was correct in holding that the defendant is entitled to the benefits of the provisions of his “Homeowner’s Policy,” and that the plaintiff is obligated to defend the defendant in the pending third party action and to pay any judgment entered therein against the defendant and in favor of Lamps, to the extent of the policy limits.

Judgment affirmed.

MORAN and BAUER, JJ., concur.


text:
    Ronald W. Smith, Plaintiff-Appellee, v. Dolores J. Smith, Defendant-Appellant.
    Gen. No. 67-56.
    Second District.
    October 4, 1967.

      Lasswell and Sodergren, of Geneva, for appellant.
    Charles H. Atwell, of Aurora, for appellee.
   MR. PRESIDING JUSTICE DAVIS

delivered the opinion of the court.

This appeal grew out of an uncontested divorce action wherein Roland W. Smith was plaintiff-appellee and Dolores J. Smith was defendant-appellant. A default decree for divorce was entered on March 12, 1965, against the defendant on the ground of adultery. It found the defendant an unfit mother and awarded to the plaintiff the permanent custody of two minor children of the parties — Debra and Daniel, then about two and four years of age.

The marital difficulties leading to the divorce were unsavory in nature and caused the plaintiff to remove the children from the marital home on August 28, 1964. He concealed the presence of the children from the defendant, but prior to the service of summons on her, she learned of their whereabouts and took custody of them.

After service of summons, the defendant retained counsel and filed an answer and counterclaim on September 21, 1964. Henceforth, she pursued a bizarre course of conduct with reference to this proceeding. On September 24, 1964, the plaintiff served defendant’s counsel with a copy of his petition for temporary custody of the children, with notice indicating that the petition was set for hearing the next morning. The notice was not served in adequate time to comply with the court rules for hearing at such time, but the court waived the rule because of the emergency nature of the matter, heard the petition in the absence of the defendant and her attorney, and awarded the plaintiff the temporary custody of the children.

The defendant failed to comply with this order and refused to respond to a rule to show cause for contempt entered by the court pursuant to plaintiff’s petitions, notice of which were served upon her counsel. Even though she was aware that the court had awarded temporary custody of the children to the plaintiff and that rule to show cause why she should not be held in contempt of court for failure to comply with the court’s custody order had been entered against her, she surreptitiously concealed the whereabouts of the children from the plaintiff and the court for a period of two years.

On November 4, 1966, the plaintiff located the children and secured their custody with the aid of a writ of attachment, which was served by the sheriff of Kankakee County. On November 15, 1966, the defendant filed her petitions for change of venue and for modification of the divorce decree which awarded custody of the children to the plaintiff.

The trial court denied the petition for change of venue on November 19, 1966, and, after an extensive hearing, entered an order denying the petition for change of custody on February 8,1967.

At the conclusion of the custody hearing, the trial judge, on his own motion, directed the defendant to show cause, if any she had, why she should not be held in contempt of court. Upon failure to show cause, the court found the defendant in direct contempt of court, sentenced her to serve 7 days in the Kane County jail— which she served — and no appeal has been taken from such judgment and sentence. The appeal herein is from the orders denying the change of venue and the modification of the decree pertaining to custody.

We will first consider the propriety of the trial court’s denial of the defendant’s petition for change of venue. It is conceded that the petition was in proper form. It was based on the prejudice of the trial judge against the defendant. On November 4, 1966, the plaintiff obtained custody of the children through a writ of attachment as aforesaid, and on November 15, 1966, the defendant filed her petitions for change of venue and for modification of the custody provisions of the divorce decree.

The decree for divorce, which was entered March 12, 1965, dissolved the bonds of matrimony existing between the parties, awarded the real estate jointly owned by the parties, to the plaintiff, awarded complete custody of the children to the plaintiff, ordered the defendant to forthwith surrender the children to the plaintiff, and ordered that the defendant be held in contempt of court for failure to do so. The decree further ordered that attachment proceedings issue against defendant’s body for failure to comply with previous orders of the court, and that the plaintiff have access to such other writs or remedies, to be issued by the clerk, as may be required to implement and enforce the custody provisions of the decree.

It has long been the law that the Venue Act (Ill Rev Stats 1965, c 146) applies to any proceeding in any court in which the petitioner is seeking a remedy which the law affords. McPike v. McPike, 10 Ill App 332, 333, 334 (1882). In McPike, the court entered a divorce decree in 1878, and subsequent custody and alimony petitions were filed in 1880 and in 1881. When the petition last filed came on for hearing, the appellant filed her petition for change of venue based upon prejudice of the trial judge, which the trial court denied. The Supreme Court treated the custody and alimony petition as an independent action and, at pages 334 and 335, stated:

“As we have said, the proceeding grows out of the suit for a divorce, and the decree therein rendered; yet it is none the less the demand of a right expressly awarded and given by the statute. It is a supplemental question, and we have no doubt but what appellant had a right to have that question determined by a judge who was not, as she believed, prejudiced against her. In civil cases, the granting of a change of venue is not discretionary. It is an absolute right, given the party making the application, if the papers are in compliance with the provisions of the statute.”

McPike determined that a petition seeking post-decree relief in a divorce action is a suit within the Venue Act and such rule has been followed to this date. Minster v. Minster, 53 Ill App2d 428, 203 NE2d 446 (1964); Gates v. Gates, 38 Ill App2d 446, 448, 187 NE 2d 460 (1963); Des Chatelets v. Des Chatelets, 292 Ill App 357, 362, 11 NE2d 13 (1937).

The defendant’s petition to modify the provisions of the divorce decree relative to the custody of the children was founded on her statutory right under section 18 of the Divorce Act (Ill Rev Stats 1965, c 40, par 19). The petition pertains to a supplemental question ; namely, whether there has been a change in circumstances since the divorce decree, affecting the welfare of the child or children, which would warrant a modification of the custody provisions of such decree. Eggemeyer v. Eggemeyer, 86 Ill App2d 224, 229 NE2d 144 (1967). Such petition, for the purpose of the Venue Act, was a new suit or proceeding.

In the light of the circumstances heretofore related, it would require the utmost in judicial restraint, understanding, compassion and forgiveness to withstand the prejudicial effect of the defendant’s conduct. Undoubtedly, she realized that in her zeal to retain the custody of the children, she had transgressed all bounds of propriety in her relationship with the court, and particularly with the presiding trial judge. And, even though her conduct was reprehensible, the defendant had the right to have the custody issue, presented by her petition, heard and determined by a judge who was not, according to her belief, prejudiced against her.

The petitions for modification of the divorce decree and for change of venue were filed on the same day. The venue petition was timely and notice thereof was served on the plaintiff who filed an answer thereto. The petition alleged that the prejudice of the trial judge came to defendant’s knowledge on November 4, 1966, the day the custody of the children was obtained by the plaintiff through the writ of attachment.

In Minster v. Minster, supra, at page 431, the court stated:

“The venue statute gives an absolute right of change of venue to the petitioner, when his petition asserting the prejudice of the trial judge is duly made, verified, and filed in accordance with the statute. A change of venue is a substantial right of a litigant. The timeliness of a motion for a change of venue depends upon the state of the proceedings in which it is presented. The petition must be offered at the earliest practical moment and if filed after a hearing has commenced on the merits of the case, it will be denied on the ground that it is filed too late. The purpose of this is to prevent a party from ascertaining the attitude of a judge on the issues of his motion and then asserting prejudice of a judge if his views are not in accord with those of the party. (Miller v. Miller, 43 Ill App2d 214, 215, 216, 193 NE2d 105 (1963).) Although a criminal case, we believe pertinent here the statement made in People v. Dieckman, 404 Ill 161, 164, 88 NE 2d 433 (1949), that venue provisions ‘should receive a liberal, and not a strict, construction. Such statutes should be construed to promote rather than to defeat the right to a change of venue, especially where prejudice on the part of the judge is charged.’ ”

In the case at bar, the petitioner had not appeared before the trial judge in connection with her custody petition at the time she filed her petition for change of venue. She had made no effort to ascertain his attitude on the issues of said petition, but rather, filed her petition asserting the prejudice of the judge, contemporaneously with the filing of her petition for change of custody of the children. Her request was made at the earliest possible moment. See: Swanson v. Randall, 30 Ill2d 194, 198, 195 NE2d 656 (1964); Stahelin v. Board of Education, 87 Ill App2d 28, 230 NE2d 465 (1967).

By virtue of our determination on the venue issue, we do not reach the question of the trial court’s ruling on the custody petition. For the reasons stated, the order denying the change of venue is reversed; and the cause is remanded with directions to grant the change of venue, and to vacate the order denying the petition for change of custody entered February 8, 1967; and that thereafter, a hearing be held on said petition, or such amended petition as the defendant may seek to file herein, relative to the custody of said children.

Reversed and remanded with directions.

MORAN and ABRAHAMSON, JJ., concur.


text:
    Leland Stahelin, Plaintiff-Appellee, v. Board of Education, School District No. 4, DuPage County, Illinois, Defendant-Appellant.
    Gen. No. 66-25.
    Second District.
    October 4, 1967.

      Ross, Hardies, O’Keefe, Babcock, McDugald & Parsons, of Chicago, for appellant.
    John Demling, of Glen Ellyn, for appellee.
   MR. PRESIDING JUSTICE DAVIS

delivered the opinion of the court.

This is a suit by the plaintiff, Leland Stahelin, against the Board of Education, School District No. 4, DuPage County, for a declaratory judgment that he had fully performed his contract to construct a new junior high school, and for a determination by the court of the balance which he claimed to be due him as general contractor on this project. The amount claimed included the balance due on the contract price and an additional sum for extra labor and materials furnished. The defendant claimed that a number of credits were due it under the construction contract. The trial court entered judgment for the plaintiff in the sum of $188,843.10, from which the defendant appealed.

This unfortunate incident began in the fall of 1962 when the defendant school board approved the plans of its architect, M. K. Young, for a new junior high school. All of the bids which were submitted on these plans were too high, and the architect was then authorized to alter the plans in an attempt to reduce the cost to between $1,-000,000 and $1,100,000. The plaintiff, whose original bid was $1,413,800 then made a bid of $1,181,500, which was low and was accepted. The construction contract was entered into on March 25,1963. One portion of the school building which was to be occupied November 1, 1963, was completed December 1, 1963; the other to be occupied February 1,1964, was completed March 1,1964.

The record in this case is voluminous and the greater part of the evidence pertains to the extras claimed by the plaintiff contractor, and the credits claimed by the defendant school board. Without elaboration relative to the numerous exhibits and the substantial testimony offered in behalf of both parties, which supports our conclusion, it is abundantly clear that the present dispute, in a large part, was the result of the acts of the architect. There were some errors in the plans, which was not an unusual circumstance. These errors were the basis of some of the plaintiff's claim for extras.

However, the architect assumed an arbitrary and unreasonable attitude in his dealings with the contractor; and, it must be said, under the evidence, that the architect had the support and approval of a majority of the defendant board in this respect. This undoubtedly caused much of the trouble which ultimately led to this litigation.

The defendant, through its architect, claimed credits were due it under the contract for things either not done by the contractor or for alterations in the contract, in the sum of $73,312. However, the defendant’s own expert on direct examination eliminated $61,644.20 of these putative credits, leaving a balance of $11,667.80. On cross-examination, it further appeared that defendant’s experts, testifying from hearsay, assumed some items to be missing from the completed structure which, in fact, where incorporated therein. Ultimately, the trial court allowed the defendant’s credits to the extent of $5,557.03 and itemized those items for which a credit was given. After a long and exhaustive examination of the record, we find that the determination of the trial court in this respect is adequately supported by the evidence and it will not be overturned or modified by us.

The most serious legal dispute arises with reference to the question of the extras claimed by the contractor, in the sum of $60,000. It is conceded that no evidence was presented relative to certain of these claimed extras. Such extras, and certain other of the claimed extras, which the plaintiff’s evidence failed to sustain, including interest in the sum of $10,000, were disallowed. The court ultimately allowed the plaintiff’s claim for extras in the sum of $44,196.34. The defendant presented no evidence relative to the values placed on the extras. It did not dispute that these extras were incorporated in the building. It claimed, however, that the plaintiff was not entitled to be reimbursed for the extras because of the manner in which they were authorized.

The defendant contends that sections 10-6 and 10-7 of the School Code (Ill Rev Stats 1965, c 122, pars 10-6, 10-7), preclude the plaintiff from recovering for the extras. Section 10-6 provides that no official business shall be transacted by the school board except at a regular or special meeting, and section 10-7 specifies that: “On all questions involving the expenditure of money, the yeas and nays shall be taken and entered on the records of the proceedings of the board.” It is conceded that the expenditure for extras was not authorized by the school board by the taking of yea and nay votes nor was the payment of the claim for extras, as finally submitted, authorized in any manner.

The defendant also contends that the construction contract itself, bars the plaintiff from the right to recover for extras. The relevant portions of the contract are found in the General Conditions, and they are:

“Al-7 ARCHITECT’S SUPERVISION: The entire work shall be under the control and supervision of the Architect, M. K.
YOUNG & ASSOCIATES. The Architect shall, in connection with his duties, give such interpretation, verbally or by writing or drawing, as in his judgment the nature of the work may require; in deciding on the quality of all workmanship and materials; in giving any certificate that the Contractor may be entitled to and in setting (sic) all deuctions (sic) from or additions to the contract price, which may result from any alteration of the design or changes of plans, or extra work, after the contracts have been let; also in determining the amount of damages which may accrue from any cause . . .
“(d) MODIFICATIONS: The Owner reserves the right to alter or modify the drawings and specifications in any particular, and the Architect shall be at liberty to make any reasonable amount of deviation in the construction, detail or execution without in either case, invalidating or rendering void the Contract. In case any such alteration or deviation shall increase or diminish the cost of doing the work the amount to be allowed to the Contractor or Owner shall be such as may be equitably and justly determined by the Architect.”
and
“Al-17 EXTRAS: It is distinctly understood that no extra of any kind will be allowed, except such extra or extras as ordered by the Architect in Writing . . .
“(b) EXTRAS: Whereever (sic) in any protion (sic) of the specifications, authority is vested in the Architect or Engineer to approve extra work or changes or adjustment in the cost of the work, for whatever reason, or to approve extensions of time, it is understood that such authority is conditioned on prior approval, specifically and in each case, by the Owner and that the Contractor, if he so elects, shall be justified in requesting proof of such approval.”

The defendant contends that paragraph Al-17 required that extras be ordered by the architect in writing and with the specific prior approval of the board; and that the extras were not ordered “in writing” and were ordered without the prior specific approval of the board.

Soon after the inception of the work, there were changes made in the plans. The architect advised the plaintiff to keep a record of all such “extras and credits” and that there would be an adjudication at the end of the job. Lester Przewlocki, the school board superintendent and ex officio member of the board, was the board representative most often at the construction site. It seems fair to conclude that, in addition to the architect, he was, or assumed the role of, the representative of the board at the construction site. He was not authorized to give instructions or directions to the contractor, but he kept informed on matters relating to the construction and reported to the board.

Several other members of the board also went to the construction site at the beginning of the construction period and attempted to give the plaintiff instructions. As to the latter persons, the school board president wrote to the contractor, in June of 1963, advising the plaintiff, “Your instructions will be received from the architect’s office only. Should you choose to follow instructions of anyone other than the architect, or member of his staff, you do so at your own risk and peril.”

With rare exception, all of the modifications and alterations in the plans and specifications were made at the request of the architect. However, only a few requests were made in writing. The defendant board contends that not only did it not authorize the extras, but also, that it was not even aware, until after the entire job was completed, that any claim for extras was to be made. Such contention, however, is contradicted by Przewlocki’s testimony. He testified that he was present when the architect said that the items of extras and credits would be negotiated at the end of the job and that he so advised the board. Copies of correspondence between the architect and contractor, containing references to claims for extras, were also sent to the board. It is unbelievable that the board was not aware that the contractor was called upon from time to time throughout the construction to do work not called for in the contract and for which he would claim an extra charge.

The board, in its letter to the plaintiff, told the plaintiff that he was to take his orders and directions from the architect. Paragraph Al-7 of the contract provided that the entire work should be under the control and supervision of the architect. He was authorized to give instructions verbally to settle deductions from and additions to the contract price, which might result from alterations in the plans, or extra work. He was given the discretion of making any reasonable deviations in the construction, with an allowance to be made to the contractor or the owner, as the case might be. This is exactly what he did! From time to time he made modifications in the plans, many of which were absolutely necessary because of errors made in the plans; and both owner and the contractor were advised of such changes, were aware and acquiesced in the fact that an adjudication of the extras and credits resulting from the changes would be made at the end of the job.

Much is made of the meaning of the word “extras” as used by the parties and as employed in the contract. It appears that paragraphs Al-7 and Al-17 may be inconsistent with reference to the authority given the architect over “extras” unless the provisions of each paragraph relate to different types of changes or modifications. Similar contracts have been interpreted in such manner. Paragraphs similar to Al-7 have been viewed as referring to minor alterations and changes, while paragraphs similar to Al-17 have been held to refer to material departures in the plans which result in a new and substantially different undertaking. Roemheld v. City of Chicago, 231 Ill 467, 470-472 inch, 83 NE 291 (1907); Roemheld v. City of Chicago, 131 Ill App 76, 84, 85 (1907), revd on other grounds, 227 Ill 160, 81 NE 45 (1907); City of Elgin v. Joslyn, 36 Ill App 301, 307 (1889). Here, however, paragraph Al-17, which might be construed to relate only to additions or changes in the plans which substantially change the nature of the undertaking, purports to apply to all changes or adjustments in the cost of the work for whatever reason. This would include “extras” resulting from minor modifications in the plans.

The terms “extras” and “credits” as used by the parties seemingly were used in the common parlance of the trade. As one of the defendant’s witnesses stated, an extra is something the owner should pay for and a credit is something that the owner should receive an allowance for. If there is an authorized change or addition resulting in added cost to the contractor, it is an extra; if it results in a savings, it is a credit to the owner.

As to the provisions of paragraph Al-17 requiring that all extras ordered by the architect must be in writing and that they must have the prior approval, “specifically and in each case” by the owner, these provisions are for the benefit of the owner and may be waived by it. City of Elgin v. Joslyn, supra, 307; County of Cook v. Harms, 108 Ill 151, 164 (1833). The architect required many changes and modifications, but only a few were made in writing. He did not feel obligated to obtain the prior approval of the board as to these changes. The board was aware that changes were being made for which extra compensation would be sought. It understood and consented to the procedure which was followed by its agent, the architect, in ordering certain changes, with the adjustment for extras and credits to be made at the end of the job. In its letter of June 12, 1963, the defendant directed the plaintiff, in writing, to take his instructions from the architect.

To be sure, paragraph Al-17 gave the contractor the election, if he so chose, to request proof of the owner’s-approval of each change, but he was not obligated to do so. A large number of the changes were of such nature and made at such time that if the contractor had halted construction and waited for the next defendant board meeting for approval, the building might not yet be completed. He was not obligated to wait and seek out such specific approval, and had he chosen to do so, it seems likely he would have been subject to severe criticism. The conduct of the architect and the board did not suggest to the plaintiff that such proof of approval was necessary. If it can be said that paragraph Al-17 required the directions of the architect to be in writing and the prior approval of the board to be a condition precedent to the plaintiff’s right to collect for the extras he furnished, then it must also be said that defendant waived these requirements by its conduct.

The defendant is in the unenviable position of also asserting that it is entitled to a number of credits which were to be adjudicated upon completion of the job, but that it is not obligated for any of the extras to be adjudicated in the same manner because it did not vote by yeas and nays on the expenditures for these extras, and that this was required by statute. We find this contention untenable. The board had authorized the execution of the contract on which the construction was based. The contract specifically permitted, and contemplated, changes and modifications in the construction for which there would be extras charged and credits given. This was a valid contract; the extras for which the plaintiff sought compensation and the modifications and omissions for which the defendant requested a credit on its account, were all based on the provisions of this contract.

At the time of the litigation stage of the dispute, it was too late in the day for the defendant to assert that it could not be estopped, under appropriate circumstances, from asserting a position inconsistent with its actions. Gregory v. City of Wheaton, 23 Ill2d 402, 407, 408, 178 NE2d 358 (1961). Estoppel may even be applied against the State when acting in its governmental capacity. The City of Quincy v. Sturhahn, 18 Ill2d 604, 614, 165 NE2d 271 (1960).

The doctrine of estoppel may be applied against school boards or districts. Seely v. Board of Education, 315 Ill 186, 197, 146 NE 187 (1925); Webster v. Toulon Tp. School Dist. No. 4, 313 Ill 541, 547, 145 NE 118 (1924); Sebastian v. School Directors, 306 Ill App 282, 28 NE2d 340 (1940). Whether the doctrine of estoppel may be applied against a municipal corporation in a given case will be determined from a consideration of all the circumstances of the case. If under all of the circumstances, the affirmative acts of the public body have created a situation where it would be inequitable and unjust to permit it to deny what it has done or permitted to be done, the doctrine of estoppel may be applied against it. Gregory v. City of Wheaton, supra; The City of Quincy v. Sturhahn, supra; 28 Am Jur2d, Estoppel and Waiver, §§ 122, 123; 18 ILP, Estoppel, §§33 and 34.

In Allen v. Treat, 72 Ill App2d 466, 218 NE2d 250 (1966), the court reviewed a number of cases relating to contracts or transactions supposedly entered into by a public body which were void because of a complete want of power to act on the part of the governing body. In such cases the governmental body could not later be estopped from asserting its want of power and the invalidity of its contract.

In Allen, the court further considered a number of cases wherein the governing body did have the power to contract for what was done, but thereafter did something pursuant to this contract which was either irregular or invalid. On page 474, it referred to the case of County of Coles v. Goehring, 209 Ill 142, 70 NE 610, wherein a contract for the construction of a courthouse provided that it should be paid for in interest bearing county orders. In County of Coles, the court held that the fact that the provision for payment by county orders was invalid did not relieve the county of its obligation to pay, and at pages 474 and 475, the court stated:

“In Hitchcock v. Galveston, 96 US 341 where a city agreed to pay for sidewalks in city bonds and the bonds were held to be invalid, it was decided that the city was liable upon its contract, and that, although it had agreed to pay in a way in which it had no power to pay, yet, having received the property, it was estopped to deny its power to contract; and it was there said by the Supreme Court of the United States: Tt is enough for them (the plaintiffs) that the city council have power to enter into a contract for the improvement of the sidewalks; that such a contract was made with them; that under it they have proceeded to furnish materials and do work, as well as to assume liabilities; that the city has received and now enjoys the benefit of what they have done and furnished; that for these things the city promised to pay, and that, after having received the benefit of the contract, the city has broken it.’
“It makes no difference that the contract in the case at bar provided for payment in county orders, and that these county orders are invalid. In Hitchcock v. Galveston, supra, it was said: Tf payments cannot be made in bonds because their issue is ultra vires, it would be sanctioning rank injustice to hold that payment need not be made at all. Such is not the law. The contract between the parties is in force, so far as it is lawful.’ ”

In Allen, the court also quoted from Westbrook v. Middlecoff, 99 Ill App 327, 330, as follows:

“Where the statute authorizes a municipal corporation to exercise a certain power, but specifically regulates the mode in which it may be exercised, an attempt on the part of the municipal officers to override the regulations and exercise it in another manner will be restrained; but when the officers have so acted, and the municipality has received the benefits of a contract thus irregularly entered into, it is estopped from setting up the irregular exercise of the power when called upon to pay for what it has received.”

Contracts entered into by a municipality which are expressly prohibited by law, and which under no circumstances can be entered into, are void and ultra vires. They may not be rendered valid thereafter by estoppel or ratification on the part of the municipality. However, there is another class of municipal contracts, distinct from the void type heretofore referred to, wherein the municipality has the power to enter into the contract, but where a portion thereof may be beyond its power, or its power may have been irregularly exercised. As to this class of contracts, a municipality may not assert its want of authority or power, or the irregular exercise thereof, where to do so would give it an unconscionable advantage over the other party. Municipal corporations, as well as private corporations and individuals, are bound by principles of common honesty and fair dealing. McGovern v. City of Chicago, 281 Ill 264, 283, 284, 118 NE 3 (1917); The People v. Spring Lake Drainage & Levee Dist., 253 Ill 479, 500, 97 NE 1042 (1912); Allen v. Treat, supra, 475, 476.

In the present case the defendant had the general power to contract as it did. Apart from this it had the power to authorize expenditure of funds for the extras. It permitted the plaintiff to incorporate these extras into its building. The evidence established that the defendant had knowledge that it was intended that the amount of the extras and credits was to be adjudicated upon the completion of the work. It accepted the benefits resulting from this work and it cannot now be permitted to deny its obligation to pay for these items on the ground that there was no yea and nay vote taken to authorize the expenditure. Under the circumstances of this case and the contract provisions in question, the trial court was correct in holding that the defendant was liable for the extras.

The defendant also contended that the plaintiff was not entitled to payment because he refused to complete the project. Many items were listed on the punch list which the plaintiff was supposed to take care of to complete the building to the architect’s satisfaction. The defendant contended at the trial, and still contends, that these items were not completed and, therefore, the plaintiff was not entitled to his money.

However, the defendant’s own expert narrowed the punch list down to two items — cracks in certain walls and a claimed defect in a portion of the parking lot. The trial court accepted the testimony of plaintiff’s expert that the cracks in the masonry were minimal and that this work was of high quality.

As to the portion of the parking lot or drive where the defendant claimed the blacktop was not of the thickness called for in the specifications, the evidence showed that after the plaintiff had installed the bitumen surface in question, a piece of heavy equipment, not related to plaintiff’s work, traveled over a portion of the lot and damaged the blacktop. The portion thus damaged was the area complained of. The plaintiff, without extra charge, repaired this area. While the repair job was not of the same thickness as that called for in the specifications, it was apparently adequate and the trial court so found. Consequently, the trial court found that the contractor had completed his contract.

There was ample evidence to support all of the trial court’s findings with reference to the extras claimed, the credits due, the completion of the work, and as to the knowledge of the board relative to the fact that charges were to be made for extras and credits allowed for any omissions. The trial was reputed to be the longest in the history of the county. The trial judge properly determined many technical matters relative to the issues of extras and credits. As there was competent evidence to support the findings made by the trial court, they will not be overturned by this court. In re Estate of Heyder v. Toms, 62 Ill App2d 318, 323, 210 NE2d 619 (1965).

The defendant also contends that the trial court erred in denying its motion for change of venue and in denying it leave to file a third party complaint against the architect.

As to the change of venue, defendant’s right thereto, if based upon the alleged prejudice of the judge, is absolute, if the request for a change is made at the earliest practical moment. Roherty v. Green, 57 Ill App2d 362, 366, 206 NE2d 756 (1965); Howarth v. Howarth, 47 Ill App2d 177, 181, 197 NE2d 736 (1964). Once a court has considered a substantive issue in the cause, a party may not thereafter obtain a change of venue. The right to a change does not exist after a party has determined the court’s attitude on some portion of the merits of a case. Swanson v. Randall, 30 Ill2d 194, 198, 195 NE2d 656 (1964); Johnson v. Schuberth, 40 Ill App2d 467, 480, 189 NE2d 768 (1963); Roselawn Memorial Park v. DeWall, 11 Ill App2d 66, 69, 136 NE2d 702 (1956).

The defendant’s petition for change of venue was filed on August 19, 1965. More than one-half year earlier, the court had entered an order finding that the plaintiff was entitled to $110,000 on the contract price that was not in dispute, and on December 30, 1964, ordered the defendant to pay this sum to plaintiff. On February 23, 1965, the court entered an order — pursuant to agreement that the issues be determined by arbitration by two building construction experts and the court — that the court rule on the questions of law and fact and the construction experts advise the court on questions of fact. At the time the petition for change of venue was filed, this order was in force and had been followed and partially carried out by the court, the experts and the parties.

On June 30, 1965, the court ordered an additional $80,000 to be paid to plaintiff. Without giving consideration to the claims for extras, the court at that time found that the contract balance approximated $103,000; that only minor punch list items remained; that the defendant no longer claimed a reserve of $25,000 for the punch list items; and that the contractor had substantially performed the contract according to its terms. Accordingly, on said date, it ordered an additional $80,000 to be paid to the plaintiff. The record indicates that this order was later vacated, in an obvious effort to expedite matters, by agreement of counsel and after a notice of appeal therefrom was filed, at which time it was represented to the court that the deposition of the architect could be obtained and that the litigants had substantial hopes that the case could be settled. The fact that this order was vacated did not detract from the circumstance that the court had considered substantive issues in the cause, and that the defendant had determined the court’s attitude on such issues.

The defendant seeks to equate all that was done by the court to pretrial conferences. It argues that these were all informal hearings and thus not a bar to a subsequent petition for change of venue. Roherty v. Green, supra, 368-370, inch; Steiner v. Steiner, 44 Ill App2d 355, 194 NE2d 508 (1903).

The two orders entered by the court relative to the payment of monies were not informal directions. They were formal orders on substantive matters; the latter reciting that it was based on evidence before it and representations of counsel. The order relative to the matter of determining the dispute by quasi-arbitration procedures with two experts advising the court, was a formal order as to the manner the issues were to be resolved. Subsequent proceedings based upon this order also were not akin to pretrial conferences. It appears to us that by the time the defendant’s petition for change of venue was filed, the court had ruled on a number of matters of substance in the case. It was then too late for the defendant to seek out another judge.

As to the petition for leave to file a third party complaint against the architect: This request came a year after the suit had been filed. A number of determinations had already been made, some of which were later vacated but all of which the court had every reason to believe were to remain final and binding. The matter had been continued on occasions at the defendant’s request. It is true that the defendant changed counsel just prior to the time that it sought leave to file the third party complaint, and that its theory and approach to the case appeared to have changed at that time. However, this does not alter the fact that the filing of such a complaint would undoubtedly have further delayed litigation which had already imposed a hardship on the plaintiff. The defendant’s petition to file a third party complaint against its own architect, whose acts and conduct it had sustained throughout the construction and during the litigation up to the time of filing such request, was characterized by procrastination and was dilatory in nature. The petition sought to inject new issues and theories into a lawsuit which was then already litigated in a substantial part. In the light of these circumstances, the trial court did not abuse its discretion in denying defendant leave to file its third party complaint.

For the reasons set forth herein, the judgment of the trial court is affirmed.

Judgment affirmed.

MORAN and ABRAHAMSON, JJ., concur.


author: JUSTICE ABRAHAMSON JUSTICE ABRAHAMSON

text:
    Marjorie V. Donahue, as Administrator of the Estate of Joseph A. Donahue, Deceased, Plaintiff-Appellant, v. Rockford Showcase & Fixture Co., Defendant-Appellee.
    Gen. No. 66-54.
    Second District.
    January 13, 1967.

      Brown, Connolly and Oliver, of Rockford, for appellant.
    Cannariato, Nicolosi & Pigatti, of Rockford, for appellee.
   JUSTICE ABRAHAMSON

delivered the opinion of the court.

This is an appeal from a Declaratory Judgment entered February 18, 1966, by the Circuit Court of the 17th Judicial Circuit, Winnebago County, that found that the parties to the suit had entered into a “valid written contract” of employment that was, however, for an indefinite period of time and hence terminable at will. It also found that the plaintiff was entitled to damages in the amount of $5,087.92 for commissions earned under the terms of the contract prior to its termination.

Joseph A. Donahue, the original plaintiff, died subsequent to the trial, and his widow, as Administrator of his Estate, has been substituted as party plaintiff and appellant. For the sake of clarity we will refer only to the actions of Donahue and describe him simply as the plaintiff.

In July, 1962, the plaintiff was employed by the defendant, Rockford Showcase & Fixture Co. and given the title of “Executive Vice-President.” His functions as an employee were to represent the defendant within a certain specified area and to sell its products, principally wooden displays and related items. The plaintiff continued to work for the defendant in that capacity through December of 1963 and was to receive by mutual agreement, a salary of $850 per month.

Sometime in December, 1963, the plaintiff discussed a modification of the association with an officer of the defendant corporation. In accordance with that discussion, the plaintiff, on January 19, 1964, wrote a letter to Mr. W. G. Michaelsen, as president of Rockford Showcase. The letter indicates that the parties agreed that subsequent to January 1, 1964, the plaintiff would receive a commission of 8% on all shipments of defendant’s products to customers “contacted and developed” by him in place of the monthly salary under the former, oral agreement. The letter specified in considerable detail those activities that the plaintiff would continue to perform on behalf of Showcase. It also provided that “Due to my contributions of abnormally high expenses, relying on reorders for actual net compensation above expenses, the agreement to run until cancelled by mutual consent of both parties or changed by mutual consent.” The letter was signed by Michaelsen, as president, under the signature of the plaintiff, on January 27,1964.

On February 4, 1964, the plaintiff wrote a second letter to Michaelsen that stated “Your fairness in dealing with me relative to the commission agreement of January 19, 1964, has prompted the suggestions that the two items below be made an addition to that agreement.” The first of the “items” provided that the plaintiff would be entitled to his commission on all reorders from his customers for a period of 30 months after the initial shipment. The second item was stated as follows:

“In order to protect you relatively to my aggressively contacting prospective customers and obtaining orders from them and not relying on reorders to return a minor amount of commission, I suggest that if my shipments, in any twelve month period, fall below twenty five thousand, neither gasoline and oil mileage nor commissions would be justified and as a result our agreement would be automatically can-celled. This would protect you and myself.
Sincerely,
/s/ Joseph A. Donahue”

This letter was also cosigned by Michaelsen as president.

Thereafter, some dispute arose between the parties in regard to back salary due the plaintiff for his services prior to January 1, 1964. On March 20, 1964, the defendant notified plaintiff by mail “that effective March 19, 1964, your association with Rockford Showcase & Fixture Co.” is terminated. Plaintiff returned a key, as requested by the defendant, by mail on April 5, 1964.

During trial, and in this appeal, the plaintiff contends (1) that the letters of January 19 and February 4, 1964, constituted a valid, binding contract of employment between the parties; (2) that by its terms the contract was to terminate only if the commissions of the plaintiff were to fall below $25,000 in any one year; and (3) that therefore the unilateral termination of the employment by the defendant on March 19, 1964, was a breach of that contract since there was no lawful basis to discharge him.

The defendant urged, at the trial, that the letters did not constitute a contract but inasmuch as the trial court, correctly in our opinion, determined that they did, and neither party has appealed from that portion of the judgment order, we will not concern ourselves with that point. Likewise, we will not consider the dispute as to whether the alleged misconduct of the plaintiff established sufficient cause to discharge him prior to the expiration of the duration of the agreement.

The plaintiff would have us hold that the agreement clearly established the intention of the parties and that it is not, therefore, subject to the construction of the court. It is, of course, true that the court will not resort to rules of construction where the agreement itself is clear and unambiguous. Herlihy Mid-Continent Co. v. Sanitary Dist. of Chicago, 390 Ill 160, 166, 60 NE2d 882; Illinois State Toll Highway Commission ex rel. Patten Tractor & Equipment Co. v. M. J. Boyle & Co., 38 Ill App2d 38, 51, 186 NE2d 390. It is significant, however, that it was the plaintiff who brought the Declaratory Judgment action to have the court declare the rights and duties of the parties under the agreement and it is our opinion that, under the circumstances, construction is necessary.

A contract, under certain circumstances, will be construed by the court to give effect to the intention of the parties where the terms of the agreement itself are not clear or are ambiguous. The intention of the parties to the agreement will be ascertained by an examination of all the facts and circumstances manifested by the evidence, including the relationship of the parties, the subject matter of the contract, and the purpose or object for which it was created. Kleinhans v. Reasor, 345 Ill App 467, 472, 473, 103 NE2d 655; Meeks v. George A. Fuller Co., 40 Ill App2d 172, 177, 189 NE2d 387. The agreement will be construed as a whole to give meaning to all the provisions that are contained in it. De Tienne v. S. N. Nielsen Co., 45 Ill App2d 231, 234, 195 NE2d 240; Belanger v. Seay & Thomas, Inc., 28 Ill App2d 266, 271, 171 NE2d 418. The contract will be construed most strongly against the party who prepared it for the reason that he chose the words to be used and is therefore more responsible for the existence of the ambiguity. Gothberg v. Nemerovski, 58 Ill App2d 372, 382, 208 NE2d 12; Dixon v. Montgomery Ward & Co., Inc., 351 Ill App 75, 89, 114 NE2d 44. The court will also consider the practical construction that the parties themselves have applied to the contract by their contemporaneous or subsequent conduct. Cedar Park Cemetery Ass’n v. Village of Calumet Park, 398 Ill 324, 335, 75 NE2d 874; Weger v. Robinson Nash Motor Co., 340 Ill 81, 91, 172 NE 7.

When we apply these principles to the letters of January 19 and February 4, we agree with the construction given to them by the trial court. The letters were written by the plaintiff, who was also a Law School graduate, and must be construed most strongly against him. The parties had, prior to January 1,1964, been associated by an uncomplicated arrangement — the plaintiff was to be paid $850 a month to represent the defendant and sell its products. Thereafter, this relationship was modified by mutual agreement. The plaintiff was to continue his former activities on behalf of the defendant but was to receive a commission on sales to his customers rather than a regular salary. This new relationship was defined in the first letter which stated, in part, that the agreement was to continue until “cancelled by mutual consent.”

The second letter expanded the written agreement by the provision that the plaintiff would continue to receive his commission on all reorders from his customers for a period of 30 months. The second letter also stated that “Naturally, we can agree to discontinue the agreement at any time. . . .” The second “item” of the letter of February 4, was designed to “protect” the defendant from a misuse of the advantages afforded to the plaintiff by the first “item,” i. e. that he would not rely on commissions on reorders for his income and neglect an aggressive pursuit of further sales. Therefore, it was agreed that the employment would cease automatically if the plaintiff’s “shipments” were less than $25,000 in any one year, and that in such an event the plaintiff would not receive his 8% on reorders. Any other construction of this provision would be meaningless as a “protection” to the defendant. Read as a whole, and in consideration of these circumstances, we can only conclude that the second letter did not change the first in regard to the duration of the employment. In both, the agreement was to be terminated only with “mutual consent.”

In addition, the conduct of both parties subsequent to the second letter clearly indicates that they interpreted the contract to be for no definite duration. The letter from the defendant dated March 20, 1964, stated the “association” was terminated. On April 5,1964, the plaintiff, by letter “acknowledged” receipt of the termination letter, stated that all samples and stationery were destroyed as requested, and included his final expenses for gasoline and a key to the defendant’s office. In no way did the plaintiff protest the action of the defendant in its decision to terminate his employment or attempt to affix a different interpretation on their agreement.

The determination of the trial court that, under the circumstances, the agreement did not provide a definite term or duration was correct. It is well settled that an employment contract that does not specify a definite duration is terminable at will by either party. Stein v. Isse Koch & Co., Chicago, Inc., 350 Ill App 171, 176, 112 NE2d 491; White v. American Elec. Fusion Corp., 328 Ill App 128, 65 NE2d 234.

For the reasons given, the decision of the trial court will be affirmed.

Judgment affirmed.

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

Opinion on Rehearing

August 1,1967.

JUSTICE ABRAHAMSON

delivered the opinion on rehearing.

Having reconsidered the briefs and having studied the petition for rehearing and the pertinent authorities, we have decided to depart from our opinion.

The second letter, upon reflection, added a condition of termination which was not present in the first letter. The added contingency was that the agreement of the parties as represented by both letters “would be automatically cancelled” if shipments to plaintiff’s customers did not total $25,000 in any year. Unless both parties agreed, neither could terminate, absent cause, unless the contingency were met.

While both letters provided for termination by mutual consent, the contract would have been for an indefinite duration and thus terminable at will absent the condition added in the second letter. However, the additional provision did amount to the setting of a condition, upon the happening of which, the contract would have been terminated. The contract was not ambiguous in its expression of duration and, therefore, not subject to construction. No sufficient cause was proved for termination, nor was there an agreement to terminate.

In legal effect, the contract specified a definite duration which prevented the defendant from terminating at will. Liberty Industrial Sales, Inc. v. Marshall Steel Co., 272 F2d 605 (CA 7th, 1959); Stein v. Isse Koch & Co., Chicago, Inc., 350 Ill App 171, 112 NE2d 491.

On rehearing, the judgment for the plaintiff in the sum of $5,087.92 is affirmed and the cause is remanded to the trial court for further proceedings in keeping with the views herein expressed.

On rehearing: affirmed in part, reversed in part and remanded.

MORAN and SEIDENFELD, JJ., concur.


author: JUDGE BAUER

text:
    Louise S. Van Nortwick, Plaintiff-Appellee, v. John Van Nortwick, Defendant-Appellant.
    Gen. Nos. 67-3, 67-9.
    Second District.
    September 5, 1967.

      Reid, Ochsenschlager, Murphy and Hupp, of Aurora, for appellant.
    O’Brien, Burnell, Puckett and Barnett, of Aurora, for appellee.
   JUDGE BAUER

delivered the opinion of the court.

This is an appeal from a ruling of the Circuit Court on a petition for directions filed by the plaintiff-appellee to effectuate a decree of divorce and, in addition, an appeal from a ruling on a cross petition to modify the decree of divorce. The plaintiff’s petition asked for directions from the Court with reference to the education of the minor sons of the parties, and the defendant prayed for a reduction of the payments under the decree on grounds of financial inability to comply with the decree.

The record in this case shows that the decree of divorce was entered on behalf of the appellee here in March of 1956, which decree incorporated an agreement between the parties with reference to future education of their minor sons. Pursuant to this provision of the decree, an agreement was reached, after discussion between the parties, with reference to the attendance of the older son at Kent preparatory school.

In 1962 the appellant herein no longer agreed to Kent as an acceptable school. The plaintiff, nevertheless, enrolled the boy in Kent and filed a petition for an order requiring the defendant to pay the expenses at Kent and also to pay the plaintiff attorney’s fees. Both requests were granted by the trial court.

On appeal, this court reversed and stated that the plaintiff could not, under terms of decree, unilaterally select a school for the sons and at pages 238 and 239 stated:

“The provision of the original decree concerning the right of the defendant to participate in the choice of schools for the children could be changed only if there had been a relevant change in circumstances since the entry of the original decree. Taylor vs. Taylor, 32 Ill App2d 45, 48, 176 NE2d 640 (1st Dist 1961). In view of what we have stated above, we hold that there had been no such change in circumstances to support a change in the decree.” Van Nortwick vs. Van Nortwick, 52 Ill App2d 229.

In event the parties were unable to reach a new agreement, the proper remedy was to seek direction and relief from the court which entered the decree.

Under both the decree and the opinion in the original appeal, we believe it obvious that an attempt to select a school by mutual agreement was necessary (and, originally, such attempts met with success) before either party could request relief.

In the instant appeal, the record discloses that the same problem has arisen, this time concerning both the older son, as to a choice of a college, and the younger son, now a student at Kent.

Taking the problem in reverse order, let us review the record relative to the enrollment of the younger son at Kent:

In November, 1965, the plaintiff began the necessary steps to enroll her son at Kent. In February, 1966, the son was accepted for the fall term, 1966, as a student at Kent. About August 1st, the plaintiff paid one-half of the tuition for the 1966-1967 year. On August 22, 1966, the plaintiff filed her petition in the trial court for directions and her request that the defendant be ordered to pay the expenses for her son at Kent.

The testimony of the plaintiff clearly shows that she never discussed the matter with the boy’s father prior to the filing of the petition, by which time, of course, the boy was enrolled in Kent and half the tuition was already paid. The only communication relative to the selection of the preparatory school seems to have occurred in an exchange between the young boy and his father in which the boy expressed a desire to attend Kent and the father expressed a contrary view. All of this is, of course, not particularly relevant since the decree — and common sense — required a joint decision of the parents. It does not contemplate that one parent select a school, enroll the child, pay the tuition, and then present both the court and the other parent with a fait accompli and a request to impose the financial burden on the one who was not consulted. If the plaintiff here seeks to have the sole voice in the selection of the schools her sons shall attend, then she must also accept the burden that goes with such a decision.

The order of the Circuit Court insofar as it requires the defendant to pay the expenses of William Van Nortwick at Kent is reversed.

Now we come to the problem of the older son and the selection of a college for his continuing education. In September 1965, when Thomas was about to enter Stanford University, the parties hereto and their attorneys negotiated an agreement whereby Stanford was agreed upon as an appropriate college for a period of one academic year with two important provisions: the contribution of the father was set at $1,800 and the agreement required another discussion between the parties in June of 1966. No such discussion took place and the petition of August 22, 1966, recites a prayer that the court select Stanford for Thomas. As a matter of fact, the young man was already preenrolled for the year 1966-1967 at that institution.

The plaintiff seems to assume that the obligation is upon the defendant to initiate discussions relative to the education of the minor children, and, if he does not, the plaintiff is free to make a unilateral decision and the respondent is then required to pay the expenses and tuition as set forth in the decree. The decree and logic dictate otherwise: The mother has the custody of the boys and is responsible for guiding their care and education, subject only to working towards an agreement with the father of the boys on the place of such education. It is her place, not his, to initiate such discussions.

For the same reasons heretofore stated the order with reference to William Van Nortwick’s expenses at Stanford is reversed. And for the reasons well stated by this court in Van Nortwick v. Van Nortwick, 52 Ill App2d 229, 201 NE2d 857, the order with reference to the award of attorney’s fees for the presentation of the plaintiff’s petition is also reversed.

As to the petition of the defendant to modify the original decree because of his financial problems, the chancellor below denied such petition after careful consideration of the total financial condition of the defendant. It is obvious to this court, as it was to the trial court, that the defendant is still well off financially, whatever his net income for Federal Tax purposes might be.

The portion of the order of the trial court which denied the defendant’s petition to modify is therefore affirmed. As an incident to this finding, the order awarding the plaintiff attorney’s fees in the defense of the petition is also affirmed. Since the order lumped the award of attorney’s fees both for the presentation of the plaintiff’s petition and the defense of the defendant’s petition, this cause is remanded to the trial court with directions to allow and set that portion of the fees reasonably incurred in connection with the defense of the defendant’s petition.

Reversed in part, affirmed in part and remanded for further order with directions.

DAVIS, P. J. and ABRAHAMSON, J., concur.