text:
    George Knorr, Plaintiff-Appellee, v. White Brothers Trucking Co., an Illinois Corporation, Defendant-Appellant.
    Gen. No. 66-84.
    Second District.
    February 21, 1967.
    Rehearing denied March 31, 1967.

      Redman and Shearer, of St. Charles, for appellant.
    Goldman and Jacobsen, of Rockford, for appellee.
   MR. JUSTICE SEIDENFELD

delivered the opinion of the court.

This appeal involves an interpretation of terms used in eight equipment leases entered into over a period of years between White Brothers as the truck carrier and Knorr as the owner of the augmented equipment.

The first lease was entered into on November 9, 1959, for the one tractor-truck then owned by Knorr. The lease was a standard form and there was typed in the space governing payment: “determined by trip.” Over the following three years Knorr added additional units and five new leases were entered into with identical language. A copy of the leases was kept in the respective trucks as required under Commerce Commission regulations. On June 4, 1968, after one of the trucks had been stopped by a Michigan Public Service agent who objected to the absence of specific payment terms in the lease, a new lease was entered into on the same form except that it provided, in place of “determined by trip” the language “75 % of the revenue less trailer rental, if applicable.” Thereafter, on January 1, 1964, another lease was executed with the same terms. Knorr discontinued operations for White in the early part of 1964.

Under the eight leases some 3,581 loads were hauled by Knorr to various points within Illinois and surrounding states, and payments totalling $286,776.26 were made by White to Knorr over the entire period of the leasing operations. These were by check from time to time, usually weekly, after billing shippers. The accompanying vouchers contained no breakdown as to any amounts deducted. However, there is no dispute as to any deductions except those for “unloading charges.”

The evidence shows that over the entire period in question, beginning in 1959, payment was computed on the basis of 75% of the gross revenue, with a 15% of the 75% figure being deducted only for unloading of loads to a certain Lock Joint Company.

The dispute essentially concerns an interpretation of the leases to determine whether by the terms or by reason of a latent ambiguity, White properly deducted these unloading charges. The trial court ruled that the agreement was for 75% of the gross revenues throughout and that such deductions were improperly made. He awarded Knorr the sum of $38,933.71 on that basis. A claim for a setoff of $38,636.27 for alleged overpayments to Knorr arising from erroneous application of tariffs was denied.

White argues that the agreement at all times was to deduct the unloading charges on the Lock Joint shipments ; that the acceptance of payment on that basis for some three and one-half years without objection determines the meaning of the language used in the leases by the practical construction of the parties. He further argues that if Knorr is entitled to disaffirm the acceptance of payments over the period, he must likewise account to White for any overpayment over the same period.

Knorr’s position is that the evidence sustains the trial court’s determination, particularly when interpreted with reference to provisions of the Interstate Commerce Act which he claims make it illegal to prefer a customer by not charging him for unloading.

We first consider the effect, if any, of the regulations of either the Federal or State Commerce Commission on this case. These acts (USCA, Title 49, c 8, §§ 302-304; Ill Rev Stats 1963, c 95%, § 282.1-30, and tariff rules thereunder) do not purport to apply to a lease between a carrier and his augmenting equipment owner, and as between them they were free to enter into a lease providing for any mutually satisfactory arrangements and deductions. The acts are for the protection of the public in its dealings with carriers and provide for penalties for violations which could result in discrimination as between members of the public using the services of a carrier. See 4 ILP 266; 60 CJS 266.

In fact, there is no evidence in the record to show that Lock Joint was preferred. The evidence clearly shows that the reason for the carrier unloading these shipments was for the convenience of both the carrier and his lessor, Knorr, to avoid delays which would have made the equipment unavailable for considerable periods for continuance of other paying shipments, to the disadvantage of both parties. There is no evidence that Lock Joint requested the unloading service which would be a precedent under the terms of the Commerce Commission Acts to its being either obligated or preferred.

This court will review the evidence on the issue of a latent ambiguity in the leases, applying the usual standard that the trial judge’s findings on the facts will not be reversed except for a clear abuse of discretion; or, in other words, except if the trial court’s findings are clearly and manifestly against the weight of the evidence. Stevens v. Fanning, 59 Ill App2d 285, 294, 207 NE2d 136 (1965).

Carl Edward Berquist testified for Knorr. He was the branch manager of White in South Beloit. He spoke with Knorr and signed the November 9th lease which contained the terms “determined by trip.” He had been told by his main office in Wasco that this phrase meant 75% of the revenue less trailer rental, if applicable. He had also been instructed by the main office that if there were any question of rates, the trucker should be referred to the main office. He kept daily records of the weights carried, the ticket number, the number of pieces and the identity of the commodity. He was told by the main office to change the leases of January 1, 1964, and June 4, 1963, to state “75% less trailer rental if applicable.” He did not discuss any other charges or deductions with either Knorr or White. He had heard from other drivers that there was an unloading charge but never discussed it and always referred matters of pay to the home office. A few times Knorr discussed his checks with him if he thought there was a load that he hadn’t been paid for, but Knorr never mentioned the rates or amounts he was paid. He was discharged on March 14,1964.

Howard C. Krause testified for Knorr. He audited information furnished by Knorr only to assess the mileage rates and had no knowledge of loading or unloading.

Knorr testified that he talked to Berquist “about the revenue” a number of times and was told to go down to Wasco to find the information. In the last part of October, 1963, he took a truck off and put it with Logan Trucking which paid 80% instead of 75%. He mentioned it to Berquist, who couldn’t see where the difference was. That is when he realized he wasn’t getting the full 75%. He never talked to anybody at White Brothers. Later, on cross-examination, he testified that he talked to White maybe a half-dozen times but not more than ten times. He “couldn’t remember” if in any of the conversations he asked for a breakdown. He was hauling sewer pipe for Logan which is much lighter than Lock Joint pipe and is rolled off the back of the trailer. The Lock Joint type of pressure pipe took special unloading equipment. It was to his benefit to have equipment for unloading and this would increase the loads that could be made. He would take the trailers out to Lock Joint, leave them and have the tractors available for other jobs.

He knew that White Brothers’ rates were on file and he could get them by asking, but he never did. He knew of both the intrastate and interstate tariffs. He ran approximately 3,500 trips before he checked up to see what White was paying. He was in the Wasco office maybe five times in 1961. He never asked anyone in Wasco to see a tariff, although he did ask Berquist, who told him they had them down at Wasco. He knew he could check the tariffs at any time, but didn’t.

He kept his own records at all times as to weights and mileage. He had checked the Lock Joint records as to weights against the vouchers from White Brothers.

He had been in the trucking business since 1955.

Howard Martin Hess, for Knorr, testified that he leased a truck to White in November or December of 1959 and was told by Berquist he would get 75% of the revenue less trailer rental. He continued to work for Knorr to December of 1963. Any complaints on loads were straightened out at Wasco.

Edward N. Shea, for Knorr, testified that his company was Logan Trucking, Inc. Knorr was one of his truckers on lease and Knorr paid unloading charges on Lock Joint loads and had done so for four or five years. Such charges are by agreement according to leases and do not concern the shipper. His tariff has nothing to do with the lessor of equipment; it is a matter of contract.

Leroy Melvin Schroeder, for Knorr, testified that on his leases with White in 1962 he was paid 72% but the written lease read “determined by trip.” He understood trailer rental was 15%. He checked with Wasco on rates and was referred to Berquist who said he didn’t have the information.

Kenneth Anselment testified for White Brothers as its general manager at Wasco, Illinois. He talked to Knorr more than a half-dozen times in 1961 and Knorr was told that he was getting 75% less the unloading charges. In early 1961 he had a conversation with Knorr who asked him if there wasn’t something he could do about the unloading charges. He told Knorr that there would have to be the charge if White Brothers was to unload. At other times Knorr brought this up. Schroeder was charged the same for unloading. He had conversations with Berquist early in 1963 about writing leases and told him that they were to state unloading charges. When Berquist left, the new manager included deduction for loading and unloading where applicable and this was not a change in policy.

George C. Scanlon testified for White as a transportation expert. He went through some 3,000 tickets using the receipt number, the number of pieces, type of pipe, and the diameter and calculated everything according to Commerce Commission rules and tariffs. He arrived at an overpayment to Knorr of $38,636.27. He had no idea at to whether the number of trips might be 857 trips short. His audit was based on driver-receipts and not on the original bills of lading which would show the actual amount of revenue as charged to shippers.

There is no dispute as to the applicable rule of law that a contract is to be enforced according to the sense which the parties mutually understood it at the time it was made, with greater deference given to their clear intent rather than to any particular words which they may have used to express it. Stevens v. Fanning (supra); Keefer Coal Co. v. United Elec. Coal Cos., 291 Ill App 477, 485-486, 10 NE2d 210 (1937). In ascertaining the parties’ intention, regard will be had to the practical construction the parties have given it. Weger v. Robinson Nash Motor Co., 340 Ill 81, 91, 172 NE 7 (1930); M & J Diesel Locomotive Filter Corp. v. Nettleton, 56 Ill App2d 146, 151, 205 NE2d 659 (1965). No extrinsic aid to interpretation can be more valuable. Walters v. Walters, 409 Ill 298, 304, 99 NE2d 342 (1951).

While Knorr claimed he had no knowledge of the unloading charges and deductions, this is patently unbelievable in view of the whole record. The specific conversations testified to by White and Anselment, that each discussed with him the unloading charges, were not refuted by Knorr. Although he took the stand two different times after such testimony was in the record, he did not refer to these conversations or refute them, but testified relative to various tickets and was not directed to any testimony as to his knowledge of the unloading deductions beginning in 1959. His prior testimony was that he had no conversations with White, while on cross-examination he admitted that he had a number of conversations, but he “could not remember” whether he ever asked for a breakdown of the charges. It is undisputed that in all of the payments to him beginning with his employment in 1959 and continuing to the end of his service for White in 1964, the amount paid was after the unloading deductions, whenever applicable. It is undisputed that he kept his own weight and mileage records and in fact verified the Lock Joint weights. He had access to the applicable tariffs so that he at all times could have determined whether he was being paid on the basis claimed by him as the agreement, or on the basis of the agreement testified to on behalf of White Brothers. He was an experienced trucker even prior to the arrangement with White Brothers.

On this state of the record, the trial court’s findings as to the real agreement of the parties and its resolution of the issue of a latent ambiguity in the leases is clearly and manifestly against the weight of the evidence. The record clearly shows that the practical construction given to the language in the leases throughout was that Knorr was to receive 75% of the revenues, less trailer rental where applicable (about which there was no dispute), and less a 15% deduction for unloading of the Lock Joint shipments.

The judgment of the trial court awarding Knorr $38,636.27 is reversed. It therefore becomes unnecessary to rule on the claim for a setoff as no cross appeal was filed.

Reversed.

MORAN and ABRAHAMSON, JJ., concur.


source: Caselaw Access Project

author: MR. PRESIDING JUSTICE DAVIS

license: Public Domain

text:
    George Pratt, as Conservator of the Estate of Gilbert Baker, an Incompetent, Plaintiff-Appellant, v. Roger Baker, Individually and as Executor of the Estate of Walter Baker, Deceased, Defendant-Appellee.
    Gen. No. 66-89.
    Second District.
    February 27, 1967.
    Rehearing denied March 15, 1967.

      MORAN, J., dissenting.

      Donald J. Hennessy, of Naperville, for appellant.
    McDermott, Will & Emery, of Chicago, for appellee.
   MR. PRESIDING JUSTICE DAVIS

delivered the opinion of the court.

The plaintiff brought this suit as Conservator of the estate of Gilbert Baker, an incompetent, asking for judgment against the defendant, Roger Baker, individually and as Executor of the estate of Walter Baker, deceased, asserting that Roger Baker, with knowledge of the incompetency of his uncle, Gilbert Baker, violated certain duties owed by him because of his knowledge and of his position as Executor of the estate.

The duties allegedly owed by the defendant, and the factual background giving rise to this case, are fully reported in two prior appeals involving the same parties. (Pratt v. Baker, 65 Ill App2d 389, 212 NE2d 503 (1965); and Pratt v. Baker, 48 Ill App2d 442, 199 NE2d 307 (1964).) We will not repeat all of the allegations or the factual background.

The present complaint as amended, contains three counts: the first count being on the executor’s bond; the second, sounding in tort; and the third being based upon fraud. All of the counts were based upon the breach of the same alleged duties which were made the basis of the second suit — reported in 65 Ill App2d 389, 212 NE2d 503. The plaintiff relies upon the same facts for recovery in this suit as he did in the second suit, with some of the allegations being more detailed. Two additional theories — the tort and fraud — were added to this suit as further grounds upon which these facts entitled plaintiff to recover. The second suit was also against the defendant in his individual capacity, as well as executor, and was based upon the executor’s bond.

The defendant moved to dismiss the present suit on the ground that it is barred under the doctrine of res judicata by the judgment in the second suit. The trial court agreed and dismissed the suit. The plaintiff contends that the second suit was not a decision on the merits and, thus, res judicata is not applicable. A major portion of plaintiff’s brief is devoted to the merits of his case. In view of our decision on the res judicata issue, we do not again consider the merits.

In the second suit, the trial court granted defendant’s motion to dismiss the amended complaint. The amended complaint in that suit, and in the present suit, contained the same allegations as to the acts and omissions which allegedly gave rise to plaintiff’s cause of action. The same trial court judge presided over both suits. As indicated in the opinion of the trial court in this case, the motion to dismiss in the second case was granted on the grounds that there was failure to state a cause of action as a matter of law. Thereafter the plaintiff failed to plead over, and elected to stand on his amended complaint.

Judgment was entered herein prior to January 1, 1967, the effective date of Supreme Court Rule 273. Under the law at the time of the judgment herein, a motion to dismiss could be based on a technical deficiency in a pleading, and in such case, a dismissal would not be a bar to another suit for the same cause. Lurie v. Rupe, 51 Ill App2d 164,176,177, 201 NE2d 158 (1964); Cheevers v. Stone, 10 Ill App2d 39, 44, 134 NE2d 32 (1956).

The law also provides that a prior judgment for the defendant on the ground of the nonexistence of some fact essential to the plaintiff’s cause of action,, does not preclude the plaintiff from maintaining an action after such fact subsequently comes into existence. Such rule excepts from the application of res judicata, the premature action where time for performance by the defendant has not arrived, or where plaintiff has not performed a condition precedent to recovery. LaSalle Nat. Bank v. 222 East Chestnut St. Corp., 267 F2d 247, 252 (CA 7th, 1959); Restatement, Judgments, § 54 (1942). In order for a dismissal to be a bar to a subsequent suit, a prior judgment must have been rendered on the merits. Life Printing & Publishing Co., Inc. v. Marshall Field, III, 327 Ill App 486, 489, 64 NE2d 383 (1946).

The motion to dismiss filed in the second suit challenged the legal sufficiency of the allegations against the defendant as a matter of law, upon the following grounds:

“(a) The amended complaint does not state a claim upon which relief can be granted;
“(b) The law does not impose upon the defendant the duties plaintiff seeks to impose upon him;
“(c) The amended complaint (supposing that defendant knew that Gilbert was incompetent, and despite that knowledge failed to take action in accordance with that knowledge) fails to allege that defendant had any experience in the matter of determining the state of one’s mental health;
“(d) The plaintiff’s claim predicated on three promissory notes, dated 1922, 1923 and 1924, is barred by the 10 year statute of limitations, Ill Rev Stats 1963, chap 83, sec 17; the claim based on farm labor performed from 1930-1949, now in effect seeks indirectly to recover on the claim for wages which is barred by the five-year statute of limitations, Ill Rev Stats 1963, chap 83, sec 16. Since neither of these claims is valid, plaintiff has no cause of action, irrespective of whether defendant had the duties plaintiff says he had.”

Such motion did not contest the facts set forth in the complaint. Rather, it disputed the plaintiff’s right, as a matter of law, to recover upon the facts stated. It was immaterial whether the facts upon which the trial court based its determination were proven by evidence upon issue joined or admitted by a motion to dismiss. In either case it was a trial on the merits. Elston-Damen Currency Exchange, Inc. v. Sheon, 46 Ill App2d 218, 222, 197 NE2d 143 (1964); Life Printing & Publishing Co., Inc. v. Marshall Field, supra, 490. Under the pleadings, plaintiff’s basis for recovery became, and was, an issue of law. Following his election to stand on his complaint, the general order of dismissal was an adjudication of all issues thereby raised. Doner v. Phoenix Joint Stock Land Bank of Kansas City, 381 Ill 106, 109, 112, 45 NE 2d 20 (1942).

In our prior opinion, it is suggested that a part of plaintiff’s pleadings consisted of legal conclusions. Were this the only ground for dismissal, then that judgment might well not have been a bar to this proceeding. It is apparent, however, that the dismissal of the complaint in the second suit by the trial court, was not based upon any technical deficiency in the pleadings, but rather, upon the determination, as a matter of law, of the absence of the duties on the part of the defendant, which plaintiff alleged and relied upon. It is also evident from the opinion of this court in the second suit, that the affirmance therein was not based upon the determination that plaintiff had plead conclusions, but rather, that the trial court was correct in holding, as a matter , of law, that the duties, which were supposedly the basis of the action, did not exist.

The fact that the plaintiff in the present suit, has added two additional theories of recovery — “common law tort” and fraud — to the bond theory upon which the second suit was based, is not material. The parties were the same in each suit, and each count or theory of the second suit, is bottomed on the same duties allegedly owed by defendant — duties which were the basis for the recovery in the second suit. The question of what rights, if any, arose from such alleged duties, was adjudicated in the prior suit. That determination is conclusive upon us. The People v. Harrison, 253 Ill 625, 628, 97 NE 1092 (1912); Godschalck v. Weber, 247 Ill 269, 274, 275, 93 NE 241 (1910); Chas. Ind Co. v. Cecil B. Wood, Inc., 56 Ill App2d 30, 36, 205 NE2d 786 (1965); Franciscy v. Jordan, 43 Ill App2d 344, 351, 357, 193 NE2d 219 (1963); Life Printing & Publishing Co., Inc. v. Marshall Field, supra, 490.

The law affords every man his day in court along with the opportunity to present his case on the issues involved; and it requires that he bring forth all grounds of recovery or defense which he may then have. “It is of first importance both in the observance of private rights and the public good that a question once adjudicated by a court of competent jurisdiction shall be considered as finally settled and conclusive upon the parties, subject only to proceedings in a court of review.” Winkelman v. Winkelman, 310 Ill 568, 573, 142 NE 173 (1924).

For the reasons stated, the order of the trial court dismissing the complaint, as amended, is affirmed.

Order affirmed.

BURT, J., concurs.

MORAN, J., dissenting.


author: PRESIDING JUSTICE MORAN.

text:
    Algonquin Manor Building Corporation, an Illinois Corporation, Plaintiff-Appellant, v. Barney Waters, d/b/a Grayslake Sand and Gravel, and Aetna Insurance Company, a Corporation, Defendants-Appellees.
    Gen. No. 66-28.
    Second District.
    February 27, 1967.
    Albert S. Salvi, of Lake Zurich, for appellant; Snyder, Clarke, Dalziel, Holmquist & Johnson, of Waukegan, and Thomas B. Nelson, of Grayslake, for appellees.
   Opinion by

PRESIDING JUSTICE MORAN.

Not to be published in full.


author: PRESIDING JUSTICE LEWE

text:
    Lois Williams, Plaintiff, v. Ralph A. Williams, Defendant-Appellee, Eugene Martin and Helen Martin, Intervening Petitioners, Appellants.
    Gen. No. 46,651.
    First District, Third Division.
    November 2, 1955.
    Released for publication December 19, 1955.

      John T. Jones, and Kimball Smith, both of Chicago, for appellants.
    Charles M. O’Brien, of Chicago, for appellee.
   PRESIDING JUSTICE LEWE

delivered the opinion of the court.

February 20, 1952, plaintiff Lois Williams obtained a decree of divorce from defendant Ralph Williams on the ground of extreme and repeated cruelty. The decree provided among other things that defendant pay to plaintiff “as and for the support of their minor child forty dollars a month payable semi-monthly.” The parties stipulated that the custody of the minor child, Ralph Williams, Jr., born November 22, 1951, be awarded to plaintiff. Several days after the divorce decree was entered plaintiff remarried and went to Puerto Rico where she continues to reside. When the minor child was five days old he was left by plaintiff with her sister Mrs. Eugene Martin in whose custody he remained until the decree here appealed from was entered.

September 13, 1954 defendant filed a petition praying that the divorce decree be amended by awarding the custody of the minor to him. Mrs. Martin filed an answer. Subsequently upon leave of court Mrs. Martin and her husband filed an intervening petition asking that the custody of the minor be awarded to them. After a full hearing the trial judge denied the relief prayed for by the intervening petitioners and awarded the custody of the minor to defendant. The intervening petitioners appeal.

The record shows that on October 14, 1954 the trial judge entered an order referring the “matter” to the Cook County Bureau of Public Welfare to make an investigation of the respective homes of defendant and the Martins. The cause was heard on November 26, 1954. After the proofs were closed defendant’s counsel called the attention of the trial judge to the fact that the matter had been previously referred to the Bureau of Public Welfare for investigation. Then counsel for intervening petitioners stated, “I assume that such a report has been made for the court and the court has read it. Has the court any objection to permitting the respective counsel for the parties to see the report?” The trial judge replied, “Well, it is a confidential report. It is only for the purpose of the court. I -will tell you substantially what it is. They are both good people and they are both good homes. The environments are practically the same in both homes and I have to decide on a purely legal proposition.” The order here appealed from awarding the custody of the child to defendant found that “Balph A. Williams and the petitioners Eugene and Helen Martin are all good Christian people” and that “all of them are fully satisfactory to this court.”

The question presented at the outset is whether the trial judge erred in referring the matter to the Cook County Bureau of Public Welfare for investigation and in considering its confidential report in modifying the decree.

In Scott v. Cohn, 134 Ill. App. 195, involving the custody of a minor child after a divorce, counsel for both parties agreed that the chancellor investigate for himself for the purpose of deciding whether the custody of a minor child be transferred from the mother to the father. There counsel for appellant argued that the trial judge determined the issues not only by the evidence heard in open court but by an investigation which he caused to be made. The court said, at page 202:

“If the chancellor might decide partly on an investigation made out of court, such as it is claimed was made in this cause, then he might decide wholly on such investigation, the only difference between the two cases being not in kind, but in degree. No agreement between counsel, such as is claimed to have been made, can bind the minor, whose interest is the main question to be considered.”

In affirming that case our Supreme Court held (231 Ill. 556):

“While a very large discretion must be permitted the chancellor hearing these cases, yet it must be a judicial discretion and subject to review on the evidence heard in open court. The agreement of counsel cannot bind as to the interests of the minor, which is the paramount question in this proceeding. If the chancellor could decide partly on investigation made out of court, then the whole decision might rest upon such an investigation and could not be reviewed.”

Under similar circumstances the same question was presented in Des Chatelets v. Des Chatelets, 292 Ill. App. 357, where the trial judge based his findings on a confidential report from the Social Service Department. The court, in referring to the confidential report said, at page 359:

“Whatever this may have been, does not appear from the record, and of course, we are unable to consider it. However, the record indicates that the court did consider it, and stated that he based his finding upon it. We are of the opinion that he was in error in so doing.”

In Albert v. Albert, 340 Ill. App. 582, a divorce suit in which the husband was charged with extreme cruelty, it appears that toward the end of the trial the attorney for the plaintiff stated that he would like to offer corroborative testimony by the twelve-year-old daughter of the parties, Arlene Albert, but that he hesitated to call her to the stand. Her attorney suggested that the trial judge take the child into chambers out of the presence of both lawyers and interrogators. The record shows that the witness was taken into chambers ont of the presence of the parties and their counsel. What was said in the chambers does not appear in the record. The attorney for the plaintiff some weeks after the trial of the cause offered a written motion that the trial judge supply a written statement of the interrogation in chambers or that in the alternative the plaintiff be allowed to attach to the record an affidavit of the daughter purporting to record the proceedings which took place in the chambers between the child and the judge. The court made no ruling as to the competency of the affidavit but acceded to the attorney’s request to allow it to be physically incorporated in the record. This court said, at page 585:

“We have given no consideration whatsoever to this document as on no theory can it properly be a part of the trial proceedings.

“We are concerned, however, with the action of the trial judge, then sitting as a trier of the facts, in receiving testimony bearing upon the issues of the trial then in progress, out of the presence of the attorneys and off the record. We have no possible way of knowing what was stated in chambers by the trial judge or Arlene Albert. What effect the child’s statements had upon the trial court’s decision in this case we cannot ascertain. The fact that this procedure was induced by the suggestion of the plaintiff and as a result of an agreement between the attorneys in no wise reaches the fundamental objection, which is that except for those matters of which the court may take judicial notice the deliberations of the trial judge are limited to the record made before him.”

In the recent case of Callan v. Callan, 5 Ill.App.2d 480, also involving a petition to modify a divorce decree with respect to the custody of children, the court held that the trial court erred in considering the report of a probation officer regarding the mother’s care of the child for the reason that the probation officer was not before the court for examination.

During the pendency of a motion for a new trial in a murder case in People v. Cooper, 398 Ill. 468, the trial judge after finding the defendant guilty made a private investigation by viewing the scene of the crime and also exploring the background of certain character witnesses. The court said, at page 472:

“Exclusive of certain matters of which the court may take judicial notice, the deliberations of the trial judge are limited to the record made before him in open court. In short any private investigation by a court pending a motion for a new trial constitutes a denial to the defendant of the constitutional guarantee of due process of law.”

Outside investigation through a specially appointed bailiff to ascertain the credibility of certain alibi witnesses at their place of residence in another State was disapproved in People v. McGeoghegan, 325 Ill. 337.

In the early case of Crabtree v. Hagenbaugh, 23 Ill. 349, the court held that:

“The policy of law requires, that all the proceedings of the court should be open and notorious, and in the presence of the party, so that if he is not satisfied with it, he may take exceptions to it, in the mode pointed out by the law, and not be put to extraneous proof to show that an error has been committed in a secret proceeding, and, in fact, out of court.”

Defendant says that the trial judge did not base his finding on the confidential report. Even so, the error is not remedied thereby, for in Crabtree v. Hagenbaugh, where the trial judge spoke to the jury in a jury room, our Supreme Court, speaking through Chief Justice Catón, said:

“We choose to assume, that what was said and done by the judge while in the jury room, did not influence the jury in their deliberations, for we think that, independent of its effect upon the jury, the judgment should be reversed, for the simple reason that such an interview did take place. If, in this case, no harm was actually done, and for that reason the verdict is allowed to stand, we open the door to the inquiry in all such cases, as to whether the party has been injured by the interview. Such an inquiry should not be tolerated.”

From a reading of the record in the instant case it is manifest that the trial judge in directing the Cook County Bureau of Welfare to make an investigation of the respective homes of defendant and the Martins was motivated only by a desire to place the minor child in a suitable home. But, in our view under the authorities cited this practice is clearly in violation of the declared policy of the law in this State. Here the confidential report was not available to counsel for either party nor were the sources of information contained in the report identifiable. So far as the record shows the anonymous author of this report was not sworn nor was he available for cross-examination.

We are not unmindful of the rule defendant suggests that in a trial by the court without a jury it will be presumed that the trial judge did not consider immaterial or improper evidence in reaching his decision. In our opinion that rule is not applicable in the present case for the reason that the use of outside investigations and confidential reports contravenes the American ideal of due process of law (cf. Peters v. Hobby, 349 U. S. 331 [concurring opinion of Mr. Justice Douglas, p. 350]).

We rest our decision in this case on the sole ground that the use of the so-called “confidential report” is reversible error.

For the reasons stated, the order appealed from is reversed and the canse remanded for further, proceedings.

Reversed and remanded.

FEINBERCG and KILEY, JJ., concur.


author: JUDGE KILEY

text:
    Fred Kantoff, Appellee, v. Sedlak Motor Sales, Inc., and Milton R. Sedlak, Appellants.
    Gen. No. 46,613.
    First District, Third Division.
    November 2, 1955.
    Rehearing denied December 19, 1955.
    Released for publication December 19, 1955.

      Herbert M. Wetzel, and Arthur Frankel, of Chicago, for appellants; Demetri M. Spiro, of Chicago, of counsel.
    Louis W. Eeinecker, of Chicago, for appellee; C. E. McElhaney, Jr., of Chicago, of counsel.
   JUDGE KILEY

delivered the opinion of the court.

This is an action to recover the sum of $1,529 which plaintiff alleges he advanced, on behalf of defendants, for the first year’s premium on a $50,000 life insurance policy. The court, without a jury, found for plaintiff and entered judgment for $1,000. Defendants have appealed and plaintiff has assigned cross error with respect to the amount of the judgment.

Plaintiff alleged that he delivered the policy, that he demanded payment of the premium by defendants, that he paid the premium February 27, 1951 and that the policy was not returned by defendants and that they refused to reimburse him though they had the benefit of the policy. Defendants admitted delivery of the policy, but denied their acceptance of it or plaintiff’s demand for the premium, and they admitted the policy was not returned and state that its return was not requested. They alleged no knowledge of payment by plaintiff and that plaintiff was the insurer’s agent, not the defendants’.

We think that the court was justified in finding that in August 1950 Sedlak applied to plaintiff, a licensed broker, for a $20,000 individual policy; that plaintiff placed this application with the Mutual Benefit Life Insurance Company of Newark, New Jersey; that Sedlak passed the required physical examination and the policy was issued; that Sedlak returned this policy within a reasonable time as unsatisfactory; that then Sedlak, with the defendant corporation which cooperated by showing their insurable interest in Sedlak, applied through plaintiff in January 1952 for a $50,000 corporate form policy; that this policy was issued on the 24th of the month upon the life of Sedlak with the corporation as beneficiary; that the policy was delivered by plaintiff to, and accepted by, Sedlak; that by its terms the policy required payment of an annual premium of $1,529 on delivery; that several times during the grace period for the first premium plaintiff attempted to induce Sedlak to pay the premium; that upon Sedlak’s failure to do so plaintiff paid the premium, without Sedlak’s authority; that Sedlak retained the policy for more than a year with knowledge that plaintiff had paid the premium; and that he refused to reimburse plaintiff.

The questions before us are whether plaintiff was agent for defendants; and whether as principals defendants became liable to plaintiff for reimbursement of the amount which he paid for the first annual premium. We need not determine whether plaintiff was a general or special agent for the insurance company; he was a licensed broker free to place defendants’ application with any company he chose.

Defendants urge that plaintiff could not be their agent since he was also the agent for the insurance company, and this they claim violated the rule of law that an agent’s duty of loyalty prevents him from acting for adverse parties without the consent of both. We think, however, that this rule is not applicable because, as the court properly found, defendants, with knowledge of plaintiff’s agency with the insurance company, authorized him to represent them in obtaining insurance. Adams v. Larson, 279 Ill. 268, 277-8.

We think, further, that, even if we assume that payment of the premium was beyond the scope of the authorized agency, defendants ratified this act and thereby incurred liability for the amount paid on their behalf. The reasons for this conclusion are as follows: Sedlak’s acceptance of the policy made him liable for the premium. Equitable Life Assurance Society v. Mueller, 99 Ill. App. 460. After several unsuccessful attempts to see Sedlak with respect to the premium, plaintiff paid the premium during the grace period in order to protect his principal by preventing the policy from lapsing. Defendants knew plaintiff paid the premium because they received no premium notice from the company but they did receive a bill from plaintiff on his own stationery. With this knowledge they retained the policy even until the trial. They therefore had the protection of the policy (Nalty v. Federal Casualty Co., 245 Ill. App. 180, 183) and the inference is they intended to have that benefit, for the earlier policy which Sedlak rejected was returned at once. Furthermore, they at no time disclaimed plaintiff’s authority to pay the premium. Under these circumstances we conclude that payment, even if unauthorized, was ratified and bound defendants, who accepted the benefits, to reimburse. Cobb v. Sparr, 153 Ill. App. 92, 99. As between principal and agent the conduct of the principal will be liberally interpreted in favor of ratification. Holmes v. Morris, 341 Ill. 351, 358.

Although the trial court was correct in finding for plaintiff, the judgment was erroneous. The record does not support a judgment for $1,000. It shows that plaintiff paid the premium in the amount of $1,529 and this is the amount for which the judgment should have been entered. Plaintiff paid the premium in full and has a right to the full amount of the premium with no reduction for the agent’s commission. O’Reilly v. Miller, 148 Wash. 277, 268 Pac. 869. We think that the merit in plaintiff’s cross error is obvious.

Having decided the case on the agency theory, we need not pass on the subrogation issues.

For these reasons judgment is reversed and judgment will be rendered here in plaintiff’s favor for $1,529.

Judgment reversed and judgment here.

LEWE, P. J. and FEINBERG, J., concur.


author: JUSTICE EOVALDI

text:
    People of State of Illinois, Defendant in Error, v. Charles Sleezer et al., Taylor E. Wilhelm, Respondent-Plaintiff in Error.
    Gen. No. 10,883.
    Second District.
    November 3, 1955.
    Rehearing denied December 20, 1955.
    Released for publication December 22, 1955.

      L. H. Vogel, of Chicago, for plaintiff in error; Taylor Wilhelm, of Mendota, pro se, respondent-plaintiff in error, of counsel.
    Harland D. Warren, of Ottawa, for defendant in error; Wendell Thompson, Assistant State’s Attorney, of Ottawa, of counsel.
   JUSTICE EOVALDI

delivered the opinion of the court.

This is a contempt action against respondent, a member of the Illinois Bar, who had practiced law 33 years, in which, after rule to show cause, and answer thereto, and after a full hearing, he was found in contempt of court by the presiding judge of the Circuit Court of La Salle County, Illinois, and sentenced to 30 days in the county jail for criminal contempt, for deliberately falsifying to the court, while an officer of said court, his status as attorney in a criminal case, No. 50373, entitled The People of the State of Illinois vs. Charles Sleezer, et al., grand larceny — then pending before that court. The rule to show cause charged that respondent did commit contempt by falsely advising the court, on the day the criminal case was scheduled to go to trial, that he did not represent the defendant in the criminal case at said time, or prior thereto; that he had not been paid anything by said defendant; and, by making it appear that said Sleezer was without counsel, the respondent did prevent the criminal case from then going to trial; and that the respondent did thereby impede, obstruct, delay, prevent and hinder the trial of said criminal case.

Respondent contends that no contract of employment existed between defendant Sleezer and respondent; that the record, as shown by the original docket sheet in the criminal case, did not contain the name of respondent as defendant’s attorney; and that as Sleezer had not paid respondent to represent him, respondent did not falsely represent to the court that he was not Sleezer’s attorney. Respondent argues that the only persons who could possibly know whether he had been retained to represent defendant were respondent and said Sleezer; and that, as both of said persons testified that respondent had not been employed, there was no contract of employment; and, without a contract of employment, the lower court erred in finding that respondent was in truth and in fact the attorney for Sleezer.

It appears that Charles Sleezer was arrested on January 16,1955, on a charge of grand larceny and incarcerated in the common jail of said La Salle County. On the same day, respondent consulted with said prisoner concerning the making of bail, and as a result of said consultation, respondent had conversations or consultations with the state’s attorney concerning the making of bail, resulting in Sleezer’s release on bail three days after his arrest.

On March 18, 1955, an indictment was returned by the grand jury of said county charging Sleezer with grand larceny, and a second indictment, with attempted bribery. Sleezer was brought into court on March 23 and was furnished with a copy of the indictment, list of witnesses and jurors. As no counsel appeared in court with him, the court properly inquired as to whether he had counsel to represent him and defendant stated that respondent was his attorney, and it wasn’t possible for him to be in court that day.

There is a dispute in the evidence as to the reason respondent was not in court on the date set for the arraignment. The state’s attorney testified that on March 23 respondent called him on the telephone in his office and talked with him regarding the arraignment, service of copy of indictment, lists of witnesses and jurors, and respondent in substance stated — “he wasn’t going to give me any trouble in this case, that he was busy on other matters and it would not be necessary for him to be present on arraignment.” Respondent denies or does not remember these statements.

Following this date, respondent in company with defendant Sleezer, interviewed at their homes Robert Conness, Kasper Webber and Lawrence Gr. Ryan, encouraging them to contact one of the complaining witnesses on Sleezer’s behalf; and respondent and Sleezer further contacted one of the complaining witnesses, Gustav Engelhaupt, soliciting Mm to intervene in Sleezer’s behalf by giving Ms approval to the state’s attorney for a recommendation of probation on a plea of guilty.

In accordance with the rules of court, the state’s attorney on March 31,1955, in the presence of Herman Eitter, deputy clerk, posted in the Circuit Court room a list of criminal cases for trial commencing May 2, 1955, in which the case against Sleezer charging grand larceny was placed first on the list, the case against Sleezer charging attempted bribery being second, and a case against one Eugene Eeetz, who was represented by respondent, being third on the list. The rules of court: (Eule 4) provided: “CONTINUANCES No cause placed upon the trial list will be passed except for good cause shown.” (Eule 6) provided: “CEIM-INAL TEIALS At least five days before the date fixed by the Court for the trial of criminal cases the State’s Attorney shall post in the court room a criminal trial calendar placing thereon all criminal cases for trial and in such order as the State’s Attorney may elect, which shall be called and tried in the order so adopted, unless the Court shall otherwise direct.”

On Tuesday, April 26,1955, the state’s attorney sent to defendant by United States mail a notice, with the title of the cause, stating “. . . since you have not as yet entered a plea, please be advised that we would appreciate your appearing in the Circuit Court room, in the Court House, Ottawa, Illinois, on April 29, 1955 at ten o’clock A.M.”

On several occasions the respondent contacted the state’s attorney attempting to induce him to recommend probation for Sleezer on a plea of guilty, and on said April 29, again talked to the state’s attorney concerning probation for Sleezer, or, in the alternative, to pass the Sleezer cases and try the Eeetz case on May 2. On one of these occasions, respondent made the comment to the state’s attorney that he was going to see the judge to see if he could withdraw from the case. Respondent denies this testimony of the state’s attorney.

On April 29, respondent had a conference with the presiding judge of the court in his chambers discussing Charles Sleezer making a plea in the case, and made the inquiry of the judge as to what he would do if the respondent ^should ask to withdraw his appearance. Upon the court’s advising him that he would not allow him to do it, respondent stated that he thought so. Respondent denies these statements by the court.

On Monday, May 2, the Sleezer case was called for a plea of guilty or not guilty, and in the event of a plea of not guilty, for trial. A jury was present in open court, having been duly empaneled for the trial of pending cases. Respondent advised the court that he did not represent defendant at that time, and had not represented him prior thereto in the cause. The Sleezer case was then continued to May 3, at which time respondent again stated that he did not represent defendant. On defendant’s motion for change of venue from the judge and for a continuance, the cause was continued, and later the motion for change of venue from the judge was granted, and trial by jury had before another judge.

On May 9, Judge Larkin entered a rule on respondent to show cause why he should not be held in criminal contempt, for falsely stating and representing in open court on May 2 and May 3 that he was not the attorney for Sleezer on said dates, and for further falsely stating and representing in open court on May 2 that he was not attorney for Sleezer on said May 2, or prior thereto, in the matter then before the court; that the respondent thereby wilfully and fraudulently deceived the court for the purpose of impeding, obstructing, delaying, preventing and hindering the trial of said cause, and obstructing the administration of justice.

An answer was filed denying the charge, and praying that the rule, be quashed.

It is urged by respondent that he had not been paid by Sleezer to represent him, and therefore he did not misrepresent his status to the court. An examination of the record in this case, however, shows payments of $270 by Sleezer to respondent. It appears that after the arrest of Sleezer and his admission to bail, and before the return of the indictment, respondent was given a check on the 28th of February, 1955, by Sleezer for the sum of $150, which said check was later endorsed by the respondent, and canceled by the bank.

Attorney Joseph Guerrini testified for the people that in the office of the court reporter or in the adjoining room, on a Friday during April of this year, he had a conversation with respondent in regard to indictment 50373, People of the State of Illinois versus Charles Sleezer, and that respondent said he received $270. He further testified “I don’t know that he mentioned a retainer or what case at all.” Respondent testified as to the receipt of the $270 as follows: “Sleezer paid me a couple of hundred dollars on an old account with a cousin, James Sleezer, but nothing on this account at all. I could have had a conversation with attorney Joseph Guerrini in rooms adjoining the chambers and have said I received $270 from Sleezer, but I didn’t say I had been retained in this case. I do not know the exact amount, I know it was a few hundred dollars, it could have been $270.00.”

The following was testified to by the state’s, attorney as to a conversation with respondent concerning Charles Sleezer on about April 29: “You told me you had accepted a retainer of $270.00.”

Respondent introduced into evidence the original docket sheet in cause No. 50373 for the purpose of showing that it did not appear of record that he represented the defendant during any of the proceedings in said cause. From this, he argues that the court had no jurisdiction over him as the record made by the clerk of the court imports absolute verity. Reliance is placed on People v. Wilcox, 5 Ill.2d 222, 125 N.E.2d 453, in which the Supreme Court reversed the cause wherein a fine had been imposed on a lawyer’s wife for contempt of court. The facts in that case are quite different from the facts in our case. There the attorney was ill and he asked his wife to present motions for one of his clients for a continuance due to his illness. The wife tried to fulfil her husband’s request. The court stated that he would not entertain the motions and instructed her not to file them. She denied that the court said she could not file them. She admitted that she filed the motions, and the court stated, “The fact that you are not a lawyer will help you out. You are fined $25.00 for contempt.” Another case relied on by respondent is Gardner v. The People, 100 Ill. App. 254. In that case the Appellate Court properly held that “In criminal proceedings and those involving rules for contempt, nunc pro tunc orders cannot operate to modify orders previously made or to take the place of orders intended to be made, but which were not made.” That is not our case at all. Many times in criminal cases, there is no motion or other pleading on which defendant’s counsel’s name would appear, to whom notices should be sent or given by the clerk. It would indeed be a harsh rule of law that would deny to this defendant the right to have counsel of his own choosing represent him at the trial simply because counsel’s name did not appear on the original docket sheet, or in the files of the case!

Kasper Webber testified, for the people, that on April 23, 1955, he saw respondent and Charles Sleezer at his place in the forenoon; Sleezer was driving; and he sold Sleezer some calves. “We talked, after I tied the calves and loaded them in the trunk of the car, about 15 minutes. They asked me if I thought it would do any good to talk to Mr. Engelhaupt. I thought it would. Mr. Eng’elhaupt had been good to me.” He further testified that he saw respondent twice; that “he left to see Mr. Engelhaupt. Saw him and came back. Taylor E. Wilhelm told me he thought I had enough influence to be helpful. The only question was whether I as a friend could get Mr. Engelhaupt to see the state’s attorney on the question of clemency.”

Lawrence G. Ryan testified on behalf of the people that he met respondent at his place about 11:00 a.m., on April 23,1955. “I laid down on the couch and talked to Charles Sleezer and Taylor E. Wilhelm. Mr. Wilhelm said I hope you can do me a little good. Go up to see and soften up Howard Ryan a little bit.” Howard Ryan, the county judge of La Salle County, is a cousin of the witness, Ryan.

Robert Conness testified: “He (Mr. Wilhelm) said he was going to try and get Mr. Sleezer out of it.”

Gustav Engelhaupt, one of the complaining witnesses called by the people, testified that he had a conversation with respondent and Mr. Sleezer in the month of May, 1955, and that he didn’t know the exact date. “Mr. Wilhelm did not say he had any conversations with witnesses, in regard to the case. He said he talked to farmers around here. He told me to go see those people. I suppose for probation for Sleezer. He told me he represented Sleezer. He asked me to see Judge Larkin.” On cross-examination by respondent, witness testified that the conversation was in his store at Lostant, Illinois. “It could be that Taylor E. Wilhelm said he came there as a friend of Sleezer to help him and that he couldn’t do anything unless the state’s attorney approved it. Mr. Wilhelm said Mr. Sleezer was willing to see you were put in status quo. You would be paid any damages, but it couldn’t be done unless it was done through the state’s attorney’s office.”

The authority of an attorney to appear for a client whom he holds himself out as representing is presumed. The People, etc. v. Parker, 231 Ill. 478, at p. 480; City of Winchester v. Ring, 312 Ill. 544. It seems that while respondent denies he was Sleezer’s attorney, he was actually, from the time of Sleezer’s arrest and throughout all the proceedings mentioned herein, actively engaged as his attorney. Can it successfully be contended by respondent that he was not employed by defendant and that he was not paid to represent him, and yet, all of the witnesses who testified for the people, including the state’s attorney, could be mistaken as to the conversations or conferences with respondent? Could an attorney ask of the court permission to withdraw as attorney for a defendant if he had not actually been representing said defendant? This request as stated by the presiding judge presupposes that respondent had been previously acting as defendant’s attorney. Respondent under oath on May 2,1955, when the case was first called for trial, denied the statement of the judge and stated, “I have not entered my appearance and the record will so show. I am ready to defend him when he tenders the retainer, but I will have to prepare his case, inasmuch as I have been spending my entire time in preparing the Reetz case with Kevin Kelly and anything here at this time would be a gross miscarriage of justice, so I suggest that the public defender be appointed as there is no counsel for Sleezer. Sleezer told me he was going to be in court this morning — his failure to appear is a surprise to me.” It is apparent that respondent’s actions, conversations and conduct resulted in delays in the trial of the case against Sleezer. On the date the case against Charles Sleezer was called for trial on May 2, 1955, defendant made application for change of venue from the judge, which motion was denied, but the cause was continued to the following day. On that day, May 3, 1955, the court appointed the public defender to represent defendant and the case was again continued for trial — to May 9, 1955. On the latter date, the motion for change of venue from Judge Larkin was granted by said judge, respondent was substituted as attorney for defendant, and on motion of defendant, the cause was again continued. The case was set for trial for June 13, 1955, at which time jury trial was had before another judge, with said defendant being represented by respondent. A motion by defendant for change of venue from the judge, unless made before the date the case is called for jury trial, too often results in a delay in the trial of the case, placing the county to needless expense. Here, it appears from the testimony of the deputy clerk, Herman Bitter, that the county, by reason of these acts of respondent, was put to the expense of $1,080 for court attendance of jury for the May 2, 1955, court. Did not respondent owe a duty to the court, as an officer of that court, to make reasonable efforts in apt time to avoid this expense? Was he fair to the court when on Friday before the trial on Monday, he was still seeking to get the state’s attorney’s recommendation of probation on a plea of guilty? Can it be said that in all these conversations with respondent testified to by the witnesses for the people that respondent was acting only as a friend of defendant? His actions, his conduct and his statements bear out that he was actually representing the defendant on a serious charge soon to be brought to trial.

Attorneys are under a duty as officers of the court to make a full and frank disclosure of all matters and facts which the court ought to know. The People v. Burr, 316 Ill. 166. As stated on page 182:

“An attorney’s zeal to serve his client should never be carried to the extent of causing him to seek to accomplish his purpose by a disregard of the authority of the court or by seeking to secure from a court an order or judgment without a full and frank disclosure of all matters and facts which the court ought to know. Unless lawyers, who are officers of the court, show respect to its orders and judgments how can it be expected that laymen will do so ?”

Eespondent further complains that when the case was called for trial on May 2, the docket showed two pertinent facts: “The defendant had not pleaded, and was not represented by counsel,” and he charges this failure to the state’s attorney. Eespondent in this proceeding is not in position to urge this as a bar to the rule entered against him. Defendant Sleezer is not on trial in this contempt proceeding. His rights were not violated, but on the contrary, they were fully protected by the continuances and by the granting of the change of venue by the judge against whom the motion for change of venue was directed. Here, we are concerned with the actions, the conduct and the statements of respondent. Can it be said that respondent owed no duty to the court and to the state’s attorney when he stated to the state’s attorney on March 23, 1955, that arraignment of defendant Sleezer should proceed even though he were not in court, and then later seek to take advantage of this situation? Courts are hesitant to enter pleas for defendants unless counsel are present. With this statement by respondent, the state’s attorney was justified in assuming that a plea would be entered in apt time by the defendant when counsel would appear with him in court. If the administration of justice is to be effectively and properly carried on, such practices and such conduct as we have in this case cannot be tolerated. With the volume of work constantly being pressed on our busy courts, and with the attendant expense involved in jury trials, counsel must realize that while he has a duty to perform for his client, which the courts respect, he also has a duty as an officer of the court to assist that court in the proper and prompt disposition of its business. The actions of the respondent were such that they constituted acts in disrespect of the court which obstructed the administration of justice. People v. Gard, 259 Ill. 238 at pp. 242-243; Dahnke v. People, 168 Ill. 102; Beattie v. The People, 33 Ill. App. 651, 661.

The power to punish an offender for contempt of court is inherent in a circuit court. People v. Andalman, 346 Ill. 149; People v. Wilson, 64 Ill. 195; Clark v. People, Breese, 340. Upon the commission of a contempt in open court, it is competent for the judge to proceed upon his personal knowledge of the facts and to punish the offender summarily without entering any rule against him and without hearing any evidence. Ex Parte Terry, 128 U. S. 289, 32 L. Ed. 405; People v. Sherwin, 354 Ill. 371; People v. Andalman, supra; People v. Gard, supra.

In the instant case the judge did not proceed summarily with the knowledge of the facts which he had. He entered a rule to show cause, allowed respondent to file answer, set a date for the hearing, and accorded respondent a full hearing. The trial court was in the best position to judge the magnitude of the offense. Conduct which tends to embarrass or obstruct the court in the administration of justice or which tends to bring the administration of the law into disrespect or disregard constitutes a direct contempt and is punishable as such. People v. Gard, supra; Dahnke v. People, supra. Respondent was afforded an orderly trial. He was given ample opportunity to purge himself of the contempt. He failed to do so. We do not feel that we should disturb the judgment of the court. Finding nothing in the record that would justify a reversal of the judgment, it is, therefore, affirmed.

Judgment affirmed.

DOVE, P. J., concurs.


author: JUDGE FEINBEBG

text:
    Jack Behn, Appellee, v. Solomon Shapiro, also Known as Sol Shapiro, Appellant.
    Gen. No. 46,692.
    First District, Third Division.
    November 16, 1955.
    Released for publication December 19, 1955.

      Hirsch. E. Soble, and Maurice A. Barancik, both of Chicago, for defendant-appellant.
    Mural J. Wihstin, of Chicago, and Sidney Usow, of Milwaukee, Wisconsin, for appellee.
   JUDGE FEINBEBG

delivered the opinion of the court.

Plaintiff’s complaint is for injunction, accounting and reformation of a partnership dissolution agreement. After issues joined, a general reference was had to a master, who heard evidence and recommended the issuance of an injunction, reserving further hearings as to the accounting for damages. Neither the master’s report nor the decree made any mention of the reformation of the contract. Obviously, plaintiff has abandoned that portion of the relief prayed for in the complaint. A decree was entered confirming the master’s report and re-referring the cause to the master for the purpose of hearing evidence as to the accounting and damages, from which decree defendant appeals.

The decree provided: “That defendant, Solomon Shapiro, also known as Sol Shapiro, his agents, employees, and servants are hereby permanently restrained and enjoined, directly or indirectly from soliciting or attempting to solicit the produce business of or from any of the following persons, firms, partnerships, or corporations,” following which is a list in the decree of sixty names of persons, firms, partnerships or corporations. The injunction is limited to the sixty named.

The record of testimony and exhibits is voluminous. In view of the contentions raised upon this appeal, it becomes necessary, for a better understanding of them, to outline briefly the facts appearing in the record, out of which the controversy arose.

For approximately seventeen years the parties were partners in the produce business, which was terminated by a partnership dissolution agreement, the one involved in this controversy. The agreement was drafted by attorney Seidenfeld, representing both parties, who had a personal interest in some of the real estate owned by the partnership and retained it with plaintiff since the dissolution. It is admitted that the first draft of the dissolution agreement, prepared by Seidenfeld, contained the provision that “Shapiro agrees that he will not interfere directly or indirectly in the operation of the said Skokie Produce Co.” When this draft was presented for execution, defendant, not represented by other counsel, objected to the above quoted provision, and declined to sign it. Plaintiff’s witness, Seidenfeld, testified that he redrafted the agreement, deleting the provision objected to. The agreement, as redrafted, was executed by the parties on July 10,1953, though the agreement was dated back to June 1,1953.

Attorney Seidenfeld did not suggest to the defendant that the deletion of the noninterference provision from the agreement would not permit him to solicit previous customers of the partnership, nor did he explain to the defendant or to plaintiff that the sale of “good will” in itself would bar defendant from soliciting previous customers. However, he did tell defendant that he was free to go into a competitive produce business.

The agreement provided, among other things, that “Shapiro sells, transfers and sets over to Behn all of Shapiro’s right, title and interest in and to the property, assets, business and ‘good will’ of said partnership, subject to all partnership debts outstanding and unpaid,” which Behn assumed and agreed to pay, and that “Behn shall have the sole right to use the name, style and description of ‘Skokie Produce Co.’ in all future business dealings and Shapiro shall not use or carry on a business under said name directly or indirectly.” Except as to the obligations imposed by the dissolution agreement, the parties executed mutual releases. The agreement provided for the payment of $10,000 in cash and the balance of $40,000 in installments of $500 or more per month, beginning August 1, 1953, evidenced by a promissory note signed by plaintiff and secured by a mortgage on real estate owned by the partnership.

The partnership books and records, as well as financial statements furnished by the partnership to the banks and others, contained no entry or valuation of “good will.” The master found that the partnership did not carry good will as an asset upon its records or books of account.

Shortly after signing the dissolution agreement, defendant, together with Lirtzman, a former employee of the partnership, who was discharged by plaintiff on July 17, 1953, engaged in the produce business on the South Water Market under the name of Courtesy Produce Company, and was selling produce in the open market to some of the customers of the former partnership. Plaintiff was aware of defendant’s competition as early as July 22, 1953. He testified:

“The next time I seen Mr. Shapiro was a week after July 15th, on a Saturday morning, about seven o’clock at the potato track. I walked up to him and I says, ‘Sol, you are wrong.’ I says, ‘You sold- — Julius sold Campbell’s some potatoes. They called me first — that is Campbell’s Soup Company, and I told them to buy three cars of potatoes from you, because it was way below market price.’ I told the buyer of Campbell’s Soup to buy from them, from Mr. Lirtzman, if they want to buy below cost. I told that to Sol; and he was on the track.”

It further appears from the evidence that substantially all of the items sold by the partnership, and by plaintiff following the dissolution, were cabbages, onions, potatoes, bananas, whatever of these items they could buy and sell. They were brought in on trains in Chicago at 27th Street and Ashland Avenue, where the open market was located. If they could not make a sale at that price they would leave them on the track and abandon them to the railroad for the freight charges, or else lower the price at which to sell. Plaintiff many times abandoned produce to the railroad for freight charges, when he could not get a buyer. During that period there were more than one hundred sellers of produce in that market.

It is clear to us in reading this record, and there is no substantial evidence to the contrary, that the fresh produce of the partnership business was either bought or sold at the track; was what is termed “spot” business; that the sale would depend upon quality, quantity and price; and it was generally not known in advance who the buyers would be, even though former buyers of the produce sold by the partnership would have representatives at the track to examine what was offered for sale. In other words, unlike the sale of nationally known brands, or sales of merchandise made by description or sample, as is present in so much of our commerce, fresh produce dealt in by the partnership was nearly always bought and sold upon inspection at the tracks in the market. We find no showing by plaintiff in the record as to how much business the partnership did with any of the sixty names listed in the decree, or to what extent, if any, sales were made to them in any other way except by inspection and purchase at the tracks. It was stipulated by the parties upon the hearing that none of those listed among the sixty names in the decree bought exclusively from the partnership.

The master concluded, among other things, that there is no evidence of any kind in the record to show that the parties intended to eliminate from the meaning of the phrase “good will” the right to solicitation of partnership accounts. Thus it will be seen that the master recognized it was important to determine what was intended by “good will.” He also concluded:

“This good will included the probability that persons, firms and corporations who had purchased merchandise from said partnership would continue their patronage.”

The master also stated:

“In the opinion of the Master, the legal conclusions above set forth are clearly justified by the case of Ranft v. Reimers, 200 Ill. 386.”

To sustain the decree, plaintiff argues that the sale of “good will” contained in the dissolution agreement imposes upon defendant the duty not to solicit in any competing business the former customers of the partnership, and that this duty exists, though there is no restrictive covenant in the dissolution agreement not to engage in any competitive business or not to solicit the customers of the partnership. Plaintiff relies chiefly upon Ranft v. Reimers, 200 Ill. 386, as controlling, and Unique Watch Crystal Co. v. Kotler, 344 Ill. App. 54. These cases and other cases cited by plaintiff from other jurisdictions, which approved the view expressed in Ranft v. Reimers, supra, will be presently discussed.

Defendant’s principal contentions are that since the dissolution agreement contains no negative covenant against solicitation of customers of the partnership, or against engaging in competitive business, the mere inclusion of the sale of “good will” does not, in and of itself, bar the right of the retiring partner to solicit the customers in a competing business; that there is no evidence in the record that the partnership had any “good will,” and none was carried on the books and records of the partnership as an asset; and that the deletion from the final draft of the dissolution agreement of the “noninterference clause” clearly established that the parties understood and intended that defendant could engage in a competing business and would not be barred from soliciting the former customers of the partnership. We shall discuss these contentions in the order stated.

The extraordinary remedy of injunction will not be entertained by equity unless substantial damage to a property right is clearly shown. Elder v. Mall, 350 Ill. 538, 541; Nichols v. City of Rock Island, 3 Ill.2d 531, 538; Parkin v. Damen-Eidge Apts., Inc., 344 Ill. App. 301.

“Good will,” in the instant case, must be shown to have a substantial value, an asset to the partnership and therefore a property right which requires protection by injunctive relief.

As was said by this court in Altschuler v. Altschuler, 340 Ill. App. 220 (Abst.), reversed (upon other grounds) in 410 Ill. 169:

“Good will is not a tangible asset and not all businesses possess good will. (In re Brown, 242 N. Y. 1, 150 N. E. 581; Securities Realization Co. v. Peabody & Co., 300 Ill. App. 156.)”

The business, in the case cited, had a small office and junk yard. Its product was iron and scrap metal, which was bought and sold. There, too, as in the instant case, good will was not carried upon the books and records of the partnership as an asset and was not included in the partnership statement of account rendered. It was there further said:

“There was nothing in the trade name of the dissolved partnership, the site of its business, or its product which could be said to represent good will.”

We cannot agree with plaintiff’s position that the mere inclusion of “good will” in the sale of the partnership interest, without any further showing, ipso facto bars the retiring partner from soliciting former customers of the partnership in a'competing business.

We think that Ranft v. Reimers and Unique Watch Crystal Co. v. Kotler, supra, chiefly relied upon by plaintiff, do not support plaintiff’s position and are distinguishable from the instant case.

In the Ranft case, it appears that the partnership was engaged in bottling and selling soft drinks. One of the partners sold his interest and good will of the business to the other. The vendor “covenanted to warrant and defend the property sold to complainants, together with this good will.” The vendor immediately set up a competing business and began canvassing old customers of the firm, and endeavored to persuade them from continuing to deal with the business of the partnership, and attempted to appropriate the telephone number of the partnership, which had been used in the business and by which “a large part of the orders had been accustomed to come,” all for the purpose of destroying and preventing complainants from having the benefit and advantage of what was sold.

It will thus be seen that there was an express covenant to warrant and defend the good will sold. Such a covenant recognizes and presupposes “good will” to exist as part of the partnership assets, and imposes a duty to defend it against any damage, all of which is absent in the instant case. The court held that the breach of such a warranty could be properly enjoined.

On the other hand, it would be difficult to find a more parallel case than Ginsburg v. Warczak, 330 Ill. App. 89. There the parties were partners for sixteen years in the planograph business. This partnership was incorporated with the same partnership interests represented by stock. A dispute arose, and an agreement was entered into for the sale of defendant’s stock to plaintiff. The original draft was prepared by the attorney for the vendee. The vendor was not represented by counsel. It provided for the sale by defendant of his stock interest in the business together with the “good will.” It further provided that the vendor “would not interfere with the good will of the corporation, and would not, for one year, solicit the business of customers of the corporation; . . . and that defendant would not employ any of the present employees of the corporation, or engage in business competitive to that of the corporation.” The vendor refused to sign the agreement with the quoted provisions, and on the face of the agreement the quoted provision was marked “deleted” and initialed by both parties. The vendor, shortly thereafter, engaged in a competing business, hired some former employees of the corporation and solicited its customers and those of the former partnership. It was there sought by injunction to restrain the vendor from soliciting these customers or engaging in a competitive business, and further to reform the dissolution agreement so as to include the deleted provisions, as well as an accounting for damages. There, too, “good will” was not carried on the books and records of the business as an asset. That cause was referred to a master, who recommended the issuance of an injunction, and upon exceptions to the master’s report the chancellor overruled the master’s conclusions and dismissed the complaint for want of equity. This court, in affirming, said:

“The record shows that the two paragraphs deleted from the written agreement were intended by them to be deleted. To restore these paragraphs would not be a reformation, but the making of a new contract. On the record presented plaintiff did not show any right to a reformation of the contract. ... We agree with defendant that the record shows no relationship of trust and confidence between the parties. In making the agreement they dealt at arm’s length. Plaintiff was represented by an attorney. There was a full and frank discussion of the transaction. The parties knew what they were doing. The fact that defendant insisted on deleting the two paragraphs and that they were deleted, shows that he did not wish to be bound by such paragraphs.”

It will thus be seen that in the cited case the mere sale of “good will” did not of itself bar the vendor’s right to solicit the customers.

In the instant case had the deletion not been made and the deleted provision that defendant “will not interfere directly or indirectly in the operation of the said Skokie Produce Co.” remained in the agreement, it would have had a very material bearing upon the intention of the parties as to soliciting customers of the partnership. It occurs to us that the solicitation of customers by a former partner would certainly constitute important interference with a going business, within the meaning of the deleted clause. If the deletion in Grinsburg v. Warczak, supra, would permit such solicitation, then the broader deleted language in the instant case should be attended with the same result.

In this connection, plaintiff’s witness Seidenfeld testified that during the course of the meeting with reference to the signing of the contract with the interference language out of it, plaintiff said that “he was not worried about any competition, at least from Shapiro. ... He said, T am not afraid of competition from Sol Shapiro.’ ”

Unique Watch Crystal Co. v. Kotler, supra, relied upon by plaintiff, involved the sale of a watch crystal business. The sale included “good will.” The court there held that the principal question was what was meant by “good will.” It followed tbe reasoning in Ginsburg v. Warczak, supra.

The construction urged by plaintiff upon the term “good will” of necessity involves a form of restraint of trade. The law does not favor restraint of trade, and when a covenant not to solicit customers or not to engage in a competing business is included in a contract, the courts will only sustain it if it is reasonable with respect to time and territory. Wiggins Ferry Co. v. Ohio & M. Ry. Co., 72 Ill. 360; Parish v. Schwartz, 344 Ill. 563, followed with approval in Storer v. Brock, 351 Ill. 643, 647.

We are therefore confronted with the ultimate question: Was there, in the instant case, good will attached to the partnership business, and was this good will an asset and a property right, which should be protected by injunctive relief?

The burden of proving that the “good will” in question was an asset and a valuable property right, and that the business was reasonably profitable, was upon the plaintiff.

In William E. Dee Co. v. Proviso Coal Co., 290 Ill. 252, the court, in considering what constituted “good will,” held:

“Although the good will of a business may be of very great value in the probability that old customers of a firm will continue their custom and recommend it to others, the good will has no value merely because the partnership is a going concern unless the business is operated at a profit.”

To the same effect, Ahlenius v. Bunn & Humphreys, Inc., 358 Ill. 155, 168; McIlvaine v. City Nat. Bank & Trust Co., 314 Ill. App. 496, 525.

Since the decree lists sixty names whom the defendant is restrained from soliciting, it was incumbent upon plaintiff to prove how many sales, if any, were made to the customers listed, in what amount, over what period of time, and whether they were constant customers, frequent customers or merely promiscuous, so that a court could determine whether good will represented a substantial asset and property right. Plaintiff has not met this burden of proof.

In Elder v. Mall, supra, where injunctive relief was sought, the court said (p. 541) :

“The subject matter of the jurisdiction of the court of chancery is civil property. The court is conversant only with questions of property and the maintenance of civil rights. Injury to property, whether actual or prospective, is the foundation on which the jurisdiction rests.”

In Parkin v. Damen-Ridge Apts., Inc., supra, we held (p. 305):

“There is no such showing of a substantial property right as would entitle a court of equity to interfere by injunction.”

It further appears in the record that the court entered an order directing that plaintiff deposit with the clerk of the court, to be held by him until the final disposition of the cause, the installment payments due to defendant upon the note of plaintiff secured by the mortgage. The fund is still held by the clerk. Defendant’s petition for an order on the clerk to turn over the fund to defendant was denied.

It follows from what we have said the court erred in entering the decree appealed from. The decree is reversed and the cause remanded with directions to enter an order directing the clerk to turn over to defendant the fund in his possession in this cause, and to dismiss the complaint for want of equity at plaintiff’s costs.

Reversed and remanded with directions.

LEWE, P. J. and KILEY, J., concur.


text:
    Margaret Mary Ward and Wilmer W. Foster, Appellees, v. Village of Elmwood Park, Appellant.
    Gen. No. 46,664.
    First District, Third Division.
    November 16, 1955.
    Released for publication December 19, 1955.
    Leslie J. Smith, of Forest Park, and Howard B. Bryant, of Chicago, for defendant-appellant.
    Lonis Dennen, of Chicago, for plaintiffs-appellees; Daniel P. G-lecier, of Chicago, of counsel.
   JUDGE KILEY

delivered the opinion of the court.

This is a declaratory judgment action (Ill. Rev. Stat. 1953, Chap. 110, Sec. 181.1 [Jones Ill. Stats. Ann. 104.057(1)]) seeking a judicial declaration that an ordinance of defendant village, as applied to plaintiffs’ property, is void. Plaintiffs also seek mandamus to compel the approval of plans and issuance of a building permit. Defendant’s answer was stricken on plaintiffs’ motion. Defendant stood on its answer and judgment was entered granting the relief sought. Defendant has appealed.

The case is here on the pleadings and we therefore set forth the facts admitted by plaintiffs’ motion. The property involved is located at the northwest corner of 76th and North Avenues in Elmwood Park. North Avenue is a major artery for automobile traffic, it was zoned when suit was filed for “specialty shops” and it has many stores of various kinds in the vicinity of plaintiffs’ property.

At the time suit was filed village zoning regulations, which as applied to plaintiffs’ property, prohibited filling station use if within 200 feet of:

“any building used ... , in whole or in part, as a church, hospital, library, community or parish house, public or private school or kindergarten, or . . . residence . . . .”

After suit was filed an amended 1954 ordinance was passed, which as applied to plaintiffs’ property, precluded its use under any circumstances for filling station purposes. Plaintiff referred to the original ordinance as paragraph 317.04, but defendant in its amended answer termed this same ordinance section 1402.04. Regardless of the proper designation of this ordinance, we shall refer to it as the “prior” ordinance, and thereby distinguish it from the later (1954) ordinance.

Plaintiffs alleged that they were owners in fee of the property; had prepared plans for the filling station in accordance with the building code; and had applied for, and been denied, the prescribed license and permit. They alleged the restrictions imposed on their property were the result of an unauthorized exercise of power and asked the eonrt to declare the prior ordinance void as applied to this property.

Defendant in answering denied plaintiffs had applied for a permit and demanded strict proof that plaintiffs were owners in fee of the property, making the requisite affidavit in support of the demand. Ill. Rev. Stat. 1953, Chap. 110, Sec. 164 [Jones Ill. Stats. Ann. 104.040]. The answer also alleged that an amended ordinance had been passed since suit was filed and that the prior ordinance was therefore immaterial. In an amended answer defendant affirmatively alleged that even by the prior ordinance the proposed use was not permissible since it was within 200 feet of a church and of a partially residential building.

The court decided that the prior ordinance was void and that the 1954 ordinance was inapplicable. It declared plaintiffs had a clear right to use the premises for a filling station and ordered approval of the application for the permit.

The decisive question is whether the court correctly declared the 1954 ordinance inapplicable to plaintiffs’ property.

We need not consider the ordinance in effect when the suit was filed. That ordinance was superseded by the ordinance of March 8, 1954 which was effective to regulate the use of plaintiffs’ property. Plaintiffs had no vested right in the continuance of the earlier ordinance. Fallon v. Ilinois Commerce Commission, 402 Ill. 516, 526. And there were no admitted facts in the pleadings which would protect plaintiffs, by substantial change in position, in their proposed use against the revised ordinance of 1954. The only allegations pertinent to any degree on this point were that a permit had been applied for and that plaintiffs had prepared plans and a plot. These were denied by defendant. There was no evidence to justify findings with respect to these issues. Under the circumstances we think the pleadings do not show the 1954 ordinance was inapplicable to plaintiffs’ property because there is neither a showing of substantial construction, nor substantial liabilities incurred by plaintiffs. Deer Park Civic Ass’n v. City of Chicago, 347 Ill. App. 346, appeal denied, 351 Ill. App. xiv. The decree in ordering the ordinance inapplicable was erroneous and must be reversed.

The court, though it declared the 1954 ordinance inapplicable, did not declare it void. It did find, however, that neither ordinance was related to the public health, safety, comfort, morals or welfare. We think it necessary to discuss this finding.

It is conceded that gasoline filling stations are not nuisances per se, are public necessities, must not be suppressed, but their locations may be reasonably regulated by municipalities. In our opinion the pleadings do not make that requisite “clear and strong” showing (Troy v. Village of Forest Park, 318 Ill. 340, 343) which was needed for a finding that the 1954 ordinance is unreasonable.

The original complaint attacked the prior ordinance and does not pertain to the 1954 ordinance. The prior ordinance is out of the case as superseded by the 1954 ordinance introduced into the case by the answer. No reply was filed setting forth any facts which might tend to show that ordinance was unreasonable and void as applied to plaintiffs’ property. The ground for the motion to strike the answer was that the 1954 ordinance was not applicable because it was not in effect at the time suit was filed. Thus no facts were before the court upon which it could determine that the 1954 ordinance was unrelated to the public health, safety, comfort, morals and welfare. For the reasons herein set out the decree is reversed and the cause remanded for further proceedings consistent with this opinion.

Reversed and remanded.

LEWE, P. J. and FEINBERG, J., concur.


author: PRESIDING JUSTICE McCORMICK

text:
    In the Matter of Estate of Alice Garner, Deceased. Lucille Pumphrey, a/k/a Lucille Humphrey, Appellee, v. Cornelia Jackson et al., Appellants.
    Gen. No. 46,619.
    First District, Second Division.
    November 22, 1955.
    Released for publication December 14, 1955.

      Levi H. Morris, and Moore, Ming & Leighton, all of Chicago, for appellants; William E. Ming, Jr., and George N. Leighton, both of Chicago, of counsel.
    Rnfns Sampson, of Chicago, for appellees.
   PRESIDING JUSTICE McCORMICK

delivered the opinion of the court.

The Probate Court of Cook County refused to admit to probate an instrument dated March 17, 1953 purporting to be the last will and testament of Alice Garner, deceased. An appeal was taken to the Circuit Court, and on a hearing de novo an order was entered remanding the cause to the Probate Court with directions to admit the instrument to probate as the last will and testament of Alice Garner. Prom that order this appeal is taken, the contestants in the Circuit Court, the appellants here, contending that the trial court erred in acting without sufficient evidence to prove that the document had been executed in accordance with the statute.

On September 28, 1953 Horace E. Galloway, an attorney, filed a petition in the Probate Court of Cook County to admit to probate a document propounded as the last will and testament of Alice Garner, deceased. The attesting witnesses were Horace E. Galloway and Margaret J. Pinch, who at the time of the hearing in the Probate Court was the wife of Horace E. Galloway. Both testified at the hearing. The Probate Court refused to admit the document to probate.

Prom the evidence taken on the hearing in the Circuit Court it appeared that on November 4, 1952 Horace E. Galloway, at the request of Alice Garner, prepared a will for her, and he and Cornelia Jackson, a sister of Alice Garner, witnessed its execution. Sometime later, someone other than Alice Garner deleted the signature of Cornelia Jackson. On March 17, 1953, at the home of Alice Garner, Horace E. Galloway and Margaret J. Pinch were present. On that date Mr. Galloway changed the date on the instrument from November 4,1952, to March 17,1953, and Alice Garner and Mr. Galloway retraced their signatures. Alice Garner, who was of testamentary capacity, acknowledged that she had signed the instrument and requested Miss Pinch to sign as a witness, which she did. Five days later Miss Pinch, who at the time was the secretary of Mr. Galloway, was married to him. In the original will as drawn there was incorporated a request that Mr. Galloway be retained as attorney for the estate. Mr. Galloway appeared as the attorney for the proponents of the will before the Probate Court, but withdrew as attorney, and the proponents were represented by other counsel before the Circuit Court.

Under the statute, in an appeal to the Circuit Court from an order of the Probate Court refusing- to admit a purported will to probate, there is a trial de novo, and it is competent for the proponent to support the will by evidence other than the testimony of the subscribing witnesses; and if the proponent establishes the will by sufficient competent evidence it is further provided in the statute that “it shall be admitted to probate unless there is proof of fraud, forgery, compulsion, or other improper conduct which in the opinion of the court is deemed sufficient to invalidate or destroy the will” (Ill. Rev. Stat. chap. 3, par. 223 [Jones Ill. Stats. Ann. 110.320]). It has further been held that the right given to the contestant to offer evidence of fraud, forgery, compulsion, or other improper conduct (the only evidence which the contestant is permitted to offer) was limited to proof of some trick or device by which a person may be induced to sign a paper under the impression that it is something else, or to the alteration of the will after it was signed, or the substitution of another paper for part of the will after it had been signed, and matters of like character. Bley v. Luebeck, 377 Ill. 50; Swirski v. Darlington, 369 Ill. 188; Buerger v. Buerger, 317 Ill. 401; Oliver v. Oliver, 313 Ill. 612; Stuke v. Glaser, 223 Ill. 316.

It is contended by the defendants that the testimony of Horace E. Galloway and Mrs. Galloway was conflicting. Mr. Galloway testified that on March 17,1953, both he and Alice Garner retraced their signatures and afterward he handed the document to Miss Finch to sign. Miss Finch stated that she did not see either Mr. Galloway or Alice G-arner sign the instrument. An examination of the record does not indicate such discrepancy as to any material matter which might cause the court to reject the evidence of either of the witnesses. The will in the instant case contained a full and formal attestation clause. There was no dispute as to the genuineness of the signature of the testator. In Rupp v. Jones, 289 Ill. 596, it was held that under such circumstances the fact that the witnesses did not remember seeing the testator sign the will nor recollect that he acknowledged it to be his act and deed does not preclude the probate of the will. In In re Estate of Elkerton, 380 Ill. 394, the court says: “It is not unusual for attesting witnesses, when called to testify as to the execution of a will, not to be able to remember all that occurred at the time of the execution or as to what they saw of the will or of the signature of the testator or testatrix thereto.” Here the testimony of the subscribing witnesses is not inherently improbable nor conflicting; nor was their conduct of such a nature as would discredit their whole testimony. The attesting witnesses testified that the testatrix did acknowledge that she had signed the instrument which they were then signing as witnesses. The judge in the trial court who heard the testimony of the witnesses was in a better position than is this court to determine whether or not the testimony of the witnesses before him was true. He heard and saw the witnesses. From the record before us the trial court was not in error in accepting their testimony. Under our law there is no requirement that the attesting witnesses should witness the will in the presence of each other. Flinn v. Owen, 58 Ill. 111.

Mr. Galloway, one of the attesting witnesses, was by the terms of the will designated as attorney for the executor, and he appeared as attorney for the proponents of the will in the Probate Court. The defendants insist that he therefore should be disqualified as a witness. Mr. Galloway did not appear as attorney for the proponents of the will before the Circuit Court, and under the law he would not be disqualified as an attesting witness, but he would not be permitted to receive any financial remuneration by reason of the will. In re Estate of Cohen, 279 Ill. App. 605.

The defendants argue that they were prevented by the trial court from showing fraud. It appears from the record that the defendants before the trial court called as witnesses Cornelia Jackson and James Hutchinson, a sister and brother of the testatrix. Questions were asked them concerning the events of November 4, 1952, which, on objection, were excluded by the trial court. At the time, counsel for the defendants stated that he wished to show fraud. The court asked him what the fraud was, and counsel stated that he did not wish to say. Since no offer of proof was made, the matter is not properly before us. Grosh v. Acom, 325 Ill. 474, 490; Chicago City Ry. Co. v. Carroll, 206 Ill. 318.

The defendants also contend that the testimony of Horace Galloway in the Circuit Court differed from his testimony before the Probate Court. On examination he explained the discrepancies and his explanation was accepted by the trial court. In so doing the trial court did not err.

The defendants attempted to impeach the testimony of Miss Pinch by calling her attention to certain alleged contradictory statements made by her in her testimony before the Probate Court. She stated that she did not remember whether or not she made such statements. It is not apparent from the record that the transcript of the testimony taken before the Probate Court was introduced in evidence, and it is not included in the record before us. There is no question that the testimony of a subscribing witness to a will may be impeached the same as the testimony of other witnesses, by showing contradictory statements made at another time (Craig v. Wismar, 310 Ill. 262), but in order to perfect such impeachment the contradictory statements must be introduced, and unless they are, there is no impeachment. Here they are not in evidence. The statute relating to the manner of the execution of wills is mandatory and must be complied with. The only inquiry before the Circuit Court was the proper execution of the will under the statute. The Circuit Court found that the will had been established by a preponderance of the evidence. We find no error in the record. The order of the Circuit Court of Cook County is sustained.

Affirmed.

ROBSON and SCHWARTZ, JJ., concur.