author: MR. PRESIDING JUSTICE McCORMICK

text:
    Edgewood Park #2 Homeowners Association, an Illinois Not-For-Profit Corporation, and Eugene Marre and Jane Marre, His Wife, Plaintiffs-Appellants, v. Countryside Sanitary District, a Municipal Corporation, Defendant-Appellee.
    Gen. No. 51,361.
    First District, Fourth Division.
    May 29, 1968.
    Will Gierach and William Dunn, of Oak Lawn, for appellants.
    Irving Goodman, and Smietanka and Garrigan, of Chicago, for appellee.
   MR. PRESIDING JUSTICE McCORMICK

delivered the opinion of the court.

This appeal is taken from a judgment which denied plaintiffs’ motion for summary judgment and sustained defendant’s motion to dismiss the complaint. The action was originally brought requesting a declaratory judgment concerning the validity of two involuntary annexation ordinances passed by the defendant, and the rights of the parties accruing therefrom.

The amended complaint of plaintiffs was filed on January 21, 1965, and alleged that plaintiff, Edgewood Park #2 Homeowners Association, is an Illinois not-for-profit corporation; that plaintiffs Marre are residents and owners of a certain lot in said subdivision, and that said plaintiffs are representatives of all residents and owners in the aforesaid subdivision.

The complaint further alleged that by order of the County Court of Cook County [Case No. 58 Co 3965], based upon the objections of the residents and owners, the said subdivision was excluded from the boundary lines of the Countryside Sanitary District, and that the defendant district, as subsequently organized, excluded said subdivision. The complaint further alleged that on December 2, 1963, defendant passed an ordinance purporting to annex a certain portion of Brainard Avenue, and that said annexed area is not contiguous to the defendant Sanitary District.

It is further alleged that on December 2, 1963, the defendant passed an ordinance purporting to annex the above-mentioned subdivision, and that said ordinance was passed without the consent of the residents and owners of the lots in the subdivision and without statutory authority. It is alleged that the subdivision has had sanitary sewer facilities since prior to the incorporation of the defendant; that the sole purpose of the purported annexation is to impose upon the plaintiffs and all others similarly situated a portion of the indebtedness and operating costs of Countryside, and that plaintiffs cannot derive any proportionate benefit from the purported annexation.

It is further alleged that the annexations by the defendant purport to have been made in compliance with chapter 42, sections 443(a) (2) and 443(a) (3) of Illinois Revised Statutes 1961; that the street annexation is not valid because said street was not contiguous to the boundaries of defendant within the meaning of the statute ; that the subdivision purportedly annexed is bounded on the west by another Sanitary District and is not subject to an involuntary annexation; and that the purported annexation of the said subdivision is invalid.

The amended complaint asks the court to declare invalid the ordinance of Countryside, restrain defendant from asserting its jurisdiction over the real estate of these plaintiffs, and restrain the Collector of Countryside from collecting any monthly service charges from plaintiffs and all persons similarly situated; and require the defendant to refund all service charges collected from plaintiffs.

On May 11, 1965, the defendant filed its answer to the amended complaint in which it denied, among other things, that the plaintiffs Marre are representatives of all residents and owners of land in the subdivision, and that on the contrary, the answer alleged that the issues of fact are not common to all residents of the subdivision, as some residents are and have been paying their service charges without complaint or protest.

The answer further denied the allegations in the amended complaint that based upon the objections of the residents and owners, the subdivision in question was excluded from the boundary lines of the district, and stated that no testimony was heard or taken from any resident in said proceeding. The answer denied that the 50-foot strip on Brainard Avenue, which was fully annexed pursuant to statute, was not contiguous to Countryside. The answer denied that the street annexation is not valid, or that the street was not contiguous to the boundaries of Countryside Sanitary District, within the meaning of the statute.

On September 30, 1965, an agreed order was entered authorizing Countryside to collect the prevailing sanitary sewer service charges from the users in Edgewood Park Unit #2, and that moneys so collected be held in an escrow account until the further order of the court. On November 30, 1965, plaintiffs filed their motion for summary judgment.

On December 10, 1965, Countryside filed its answer to plaintiffs’ motion for summary judgment, denying that plaintiffs were entitled to a summary judgment and asking that the amended complaint be dismissed. On February 14, 1966, the court heard argument of counsel, denied plaintiffs’ motion for summary judgment, and dismissed the suit on the motion of Countryside. From that order the plaintiffs appeal.

From the record it appears that both annexation ordinances were passed on December 2, 1963, and the amended complaint filed on January 21, 1965; therefore, the annexation had been completed long before the decision by the trial court. We think the decision in the case of In re Petition to Village of Arlington Heights, 65 Ill App2d 152, 212 NE2d 507, is in point. In that opinion the court said:

“Since the filing of the petitions did not suspend the operation or the effectiveness of that order, and since the annexation by the Village of Arlington Heights had been completed long prior to a decision by the trial court, we are of the opinion that petitioners’ only remedy is by quo warranto.”

The court further said:

“The annexation had become complete before the court ruled on any of the petitions. . . . By the time the court ruled upon the petitions the village had control of the area and was exercising at least de facto jurisdiction over the same. Under these conditions, where the annexation has been completed, the proper remedy is quo warranto, ... In People v. York, 247 Ill 591, the Supreme Court held that the legality of proceedings by which additional territory is added to a municipality cannot be inquired into except upon a direct proceeding by quo warranto, and will not be determined upon a bill in equity or by objections to a tax which has been levied by the municipality upon the property in such added territory. . . . The question whether the area has been legally annexed can only be tried in a proceeding by quo warranto in the name of the people in which a judgment will be conclusive and binding upon all. People v. McKinnie, 277 Ill 342.”

In People ex rel. McCarthy v. Firek, 5 Ill2d 317, 125 NE2d 637, the court said at page 324:

“For it is still the doctrine of this court that attacks upon the proceedings by which a municipal corporation was formed, or by which territory was annexed to, or detached from it, cannot ordinarily be made in actions to collect taxes, or in suits in equity to enjoin such collection, but that such objections can only be raised by bringing an action of quo warranto.”

In Lincoln v. Village of Robbins, 15 Ill App2d 293, 146 NE2d 216, the court said, quoting from Cipowski v. City of Calumet City, 322 Ill 575, 578, 153 NE 613:

“ ‘It has long ago been determined that quo warranto is the proper remedy to test the validity of annexation proceedings.’ ”

In Lincoln the court further said:

“In our opinion an action for a declaratory judgment in the instant case is not appropriate. Under the circumstances presented by the amended complaint the plaintiffs’ remedy, if any, is by quo warranto. The quo warranto Act contains safeguards against the indiscriminate bringing of proceedings thereunder. To permit relief in the case at bar under the declaratory judgment procedure would be to circumvent the provisions of the quo warranto Act.”

The judgment of the Circuit Court is affirmed.

Affirmed.

DRUCKER and ENGLISH, JJ., concur.


source: Caselaw Access Project

author: JUSTICE LYONS.

license: Public Domain

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Albert Sanders and Foster Slaughter, Jr., Defendants-Appellants.
    Gen. Nos. 51,813, 51,814.
    First District, Second Division.
    May 28, 1968.
    Gerald W. Getty, Public Defender of Cook County, of Chicago (Theodore A. Gottfried and James J. Doherty, Assistant Public Defenders, of counsel), for appellants; John J. Stamos, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and Theodore A. Shapero, Assistant State’s Attorneys, of counsel), for appellee.
   Opinion by

JUSTICE LYONS.

Not to be published in full.


text:
    People of the State of Illinois, Plaintiff-Appellee, v. Eddie Lee Welton, Defendant-Appellant.
    Gen. No. 52,138.
    First District, Fourth Division.
    May 29, 1968.

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

delivered the opinion of the court.

The defendant, Eddie Lee Welton, was indicted for the crimes of forcible rape and armed robbery. A jury found him guilty as charged and the court sentenced him to the penitentiary for not less than eight nor more than twenty years on each count concurrently.

The complaining witness, Lucy B. Franklin, testified that on September 13, 1966, she lived with her daughter in apartment 1603 at 1119 North Cleveland Avenue, in Chicago. She stated that on that date, at about 12:05 a. m., she had returned home from work and was knocking on the door of apartment 101, where her little girl was staying with a babysitter; that she saw the defendant standing near the elevators, and he then came around the corner, grabbed her arm and said, “Okay, let’s go.” When she screamed he said, “Make another sound and I’ll kill you.” She continued her testimony as follows: The man put a gun to her head and asked how much money she had; she told him she had five or six dollars, and he made her take the money from her wallet and give it to him. He then pushed her onto the elevator which went up to the 19th floor. He walked her from the elevator at that floor to the stairway door, then up to the landing between the roof and the 19th floor. He told her to remove her clothes, and when she started to do so he pulled her dress up, pulled off her underclothing, and had intercourse with her two times, during which time he still held the gun. He suggested that they go to her apartment but she told him she lived with a boyfriend and his sister (this statement was not true), so they could not go there, and told him she should go home because they would be worrying about her. She said she would meet him on Wednesday and go wherever he wanted to. As they were walking out to the 19th floor the defendant gave her a cigarette and told her to turn around and look at him, at which time she saw a scar on the left side of his face. (She indicated about two inches or so on the left cheekbone and neck area.) They took the elevator down to the first floor, after which he put the gun in his trousers and walked away, saying that he would see her on Wednesday.

The complaining witness stated that when she got to the babysitter’s apartment she telephoned the police and reported what had occurred; that the police took her to Henrotin Hospital where she was refused attention, then took her to Wesley Memorial Hospital where she was examined. At approximately 2:30 a. m., Police Detectives McQuinn and Greiner were taking the witness home from the hospital when she saw the defendant in the building adjacent to her apartment building; she recognized the clothing as the same he was wearing earlier, and she told the police he was the man who had attacked her. The detectives immediately arrested him and found a loaded gun on his person at the inside of the pants belt.

Officer McQuinn testified that the complainant had described the defendant to him as wearing a white shirt, dark pants; that he was slender and had a scar on his neck. When they reached the police station the officer noticed that the defendant did have a scar or mark on the left side of his face. (He indicated to the jury where the scar was.) Officer McQuinn testified that he spoke to the babysitter who said she had not heard any screams.

In this court the defendant contends that the State failed to prove him guilty beyond a reasonable doubt, and that the testimony of the complaining witness was not clear and convincing, nor was it corroborated; and that the witness was less than positive in her identification of the defendant. The defendant did not take the stand, and it is argued here that a statement made by the prosecutor that the complainant’s testimony was uncontradicted, violates the rights of the defendant. The complainant testified that her boyfriend, John Collins, was present when the police first arrived; that she had called him and he was with her during the entire time she was with the officers. Detective McQuinn and his partner, Detective Greiner, stated that on the way back from the hospital the only persons in the squad car were the two detectives and the complaining witness.

Considerable space in the appellant’s brief in this court is devoted to an attack on the identification of the defendant by the complaining witness, and it might be further said that the attack is not only on the identification in this case but upon all identifications made by eyewitnesses. The complaining witness positively identified the defendant and informed the police officers that he had on his person a gun which was found when they arrested him. The witness also told the police that the defendant had a scar on the left side of his face, which was true. There was ample time and opportunity for observation by the complaining witness.

In People v. Lamphear, 6 Ill2d 346, 128 NE2d 892, and in People v. Martin, 62 Ill App2d 203, 210 NE2d 798 the court held that positive identification by one witness who has ample opportunity for observation is sufficient to support a conviction.

The defendant also makes a point of the fact that Officer McQuinn testified that the complaining witness told him the defendant had a scar on his neck, and that the officer testified he saw a scar on defendant’s face. However, in the opening argument the State’s Attorney made the following statement to the jury with reference to the complaining witness’ description of the defendant: “What was on his left cheek and neck? And what is on his left cheek and neck today? A scar, approximately two inches long. And you can examine it on the face of the defendant himself.” The jury had the defendant before them and could determine whether the statement of the complaining witness with reference to the scar was reasonably accurate.

The defendant also argues that the testimony of the complaining witness should be disbelieved because if she had actually been raped she would not have carried on the conversation which she had with the defendant. However, we must remember that whatever conversation occurred was during the time the defendant was holding a gun, and that he did not remove the gun until he walked away from the witness, whereupon she made immediate complaint.

In discussing the evidence the State’s Attorney stated that what the jury heard from the complaining witness and from the police officers “in sum and substance, is uncontradicted.” The defendant makes much of that statement and argues that it was made to call attention to the fact he had failed to testify, and the State refers to the fact that our Supreme Court in People v. Norman, 28 Ill2d 77, 190 NE2d 819, held that a prosecutor may comment that the State’s case is uncontradicted. The defendant argues that that decision should be reassessed in the light of the U. S. Supreme Court decisions in Griffin v. California, 380 US 609, and in Chapman v. California, 386 US 18. These cases involved instructions by the court to the jury in which the attention of the jury was directed to the fact that the defendant did not testify, as authorized by the California constitution. Neither of these cases, therefore, is controlling of our decision here, whereas we are bound by the Norman case which defendant concedes is directly in point. There the court said at page 81:

“Although the prosecutor emphasized the uncontradicted character of the People’s case, there was no evidence whatever presented by the defense, and statements pointing out the fact that the People’s case was uncontradicted are not a reference to the failure of the defendant to testify within the meaning of this statute.”

In People v. Martin, 62 Ill App2d 203, 210 NE2d 798, the State in its argument said at page 214: “Has anybody taken the stand in his [defendant’s] behalf and said that Fred Baum is lying — ” Defendant’s counsel then objected, saying that “the defendant doesn’t have to prove anything in this case.” The State then said that the jury would be properly instructed, and that the defendant didn’t have to take the stand. The court said:

“The Illinois criminal statutes provide that the neglect of the defendant to testify shall not create any presumption against him and that the court shall not permit any reference or comment to be made on such neglect (Ill Rev Stats 1963, c 38, § 734). However, where the defendant presents no evidence, it is well established that this section does not bar comment by the State that its evidence was uncontradicted. See People v. Norman, 28 Ill2d 77, 190 NE2d 819 and cases there cited.”

The cases cited by the defendant in his brief are not in point because the situations in those cases were much different from that in the instant case.

In the instant case the State’s Attorney made the following statement in his closing argument:

“Because when decent, honorable, working people in the community are going to their homes where they live and where they have a child they are trying to raise, they have to on the very threshold of the place, where they expect security so they don’t have to worry about attack by an animal such as this, with a gun — ”

This was objected to; the court overruled the objection, and said the jury was instructed to rely on the evidence which it heard.

In support of its contention the defendant cites People v. Payton, 72 Ill App2d 240, 218 NE2d 518, in which case the prosecutor repeatedly referred to the defendant as a “beast.” In People v. Caylor, 386 Ill 501, 54 NE2d 514, the State in its argument said to the jury at page 505:

“. . . the only way these kind of people are going to be put out of circulation, these morons that hang around in various-, places that we catch them at whether it is in automobiles, basements, furnace rooms of churches or any place else, the only way that they are going to be taken off the streets is by juries.”

An objection was made to this statement which was overruled by the court. In its opinion in the case the Supreme Court said:

“These remarks were not directed personally to the defendant . . . but the State’s Attorney was calling the attention of the jury, urging it to properly administer the law in cases of this character. The State’s Attorney in his argument has a right to dwell on the evil results of a crime and to urge a fearless administration of the criminal law and to comment on the conduct of the accused. [Citing cases.]”

The case before us falls within that rule.

In this court the defendant also makes an issue of the fact that in his closing argument the prosecutor calls attention to the fact that the defense counsel had said, “Where is the clothing?” and also stated, “It’s not in evidence.” The prosecutor said, “But the police have the clothing. Where is the clothing? The clothing is in the courtroom. He’s still got it. Hold up the box, Officer ? Do you want to open it?”

The State’s Attorney said he could have objected to the first statement of defendant’s counsel. Counsel for defense objected to the argument and moved for a mistrial, which motion the court denied. It would appear that the remark made by the prosecutor was improper; however, it is not so prejudicial that it would constitute reversible error.

The judgment of the Circuit Court is affirmed.

Affirmed.

DRUCKER and ENGLISH, JJ., concur.


text:
    People of the State of Illinois, Appellee, v. John T. Einoder, Appellant.
    Gen. No. 52,292.
    First District, Fourth Division.
    May 29, 1968.

      Robert K. Kelty, of Chicago, for appellant.
    John J. Stamos, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and Robert B. Rosen, Assistant State’s Attorneys, of counsel), for appellee.
   MR. PRESIDING JUSTICE McCORMICK

delivered the opinion of the court.

This appeal is taken from an order entered on March 8, 1967, revoking the probation of the defendant, sentencing him to three months in the Illinois State Farm, Vandalia, Illinois, and fining him $200 and $5 costs.

On September 12, 1966, the defendant, John Einoder, was arrested on a complaint which charged the following:

“On Monday, September 12, 1966, at 10:30 P. M., [defendant] did then drive and operate a Pontiac, Illinois license, 1966-MF 1540 upon a public highway of this State, to-wit: 95th Street, Artesian to Leavitt, 95th Street to 101st Street, situated within the Village or Town or City, County and State aforesaid, did then and there unlawfully violate Section 48 UART, State of Rlinois, by reckless driving, by improper passing at intersection on right, Stop sign, medium traffic, dark, in business and residential area.”

On December 12, 1966, the defendant pleaded guilty. The presiding magistrate entered judgment finding defendant guilty, and in his own hand entered an order on the back of the traffic ticket: “Jury waived executed P.G.F.G. nine (9) mos prob. C.C.A.P.D. and fine $150.00 and $5.00 to be pd w/n first 3 mos prob period C.B.R. per recog $1,-000.00.”

After the above order was entered the magistrate signed a draft order which provided that the defendant was released on probation according to law “for the period of 9 months from the date hereof; during which time this cause shall stand continued, . . .” The order further provided that during the period of defendant’s probation he should be under the probationary care of the Chief Probation Officer of the court, et al., and that during the period of probation the defendant should not leave the State of Illinois without the consent of the court entered of record.

The order also provided that defendant should enter into a recognizance in the sum of $1,000 “with surety or sureties to be approved by this Court, or any judge thereof, securing the due performance of the conditions imposed by the Court, which recognizance shall be in the form and with the conditions as provided by law in cases of this character and shall be duly approved by order of Court before said defendant shall be released on probation; . . .” This draft order was signed by the magistrate.

An individual recognizance release on probation was also filed in which there is the following provision: that whereas the defendant has pleaded guilty and has applied to the court to be admitted to probation in accordance with the Probation Act, “and said application having been duly considered, the court entered an order directing that said application be granted and that the above bounden John Einoder be released on probation for the period of nine (9) months on certain terms and conditions of probation as shown by the Court record in the case of People of State of Illinois v. John Einoder, General Number X686-827 of said Court which terms and conditions of probation, so imposed by said Court, are hereby consented to, adopted and made part of this recognizance, to all intents and purposes the same as if said terms, and conditions of probation were severally and fully set forth at length in this recognizance, the undersigned being fully informed as to all said terms and conditions of probation: . . .” The recognizance further provides that if the defendant will make his appearance in court as often as he may be required to do by the court during the period of probation and shall make all payments required of him, “and shall well and truly perform all the other terms and conditions of said probation, . . . then this recognizance shall be void otherwise in full force and effect.”

On March 2, 1967, the defendant received from William D. Meyering, Chief Probation Officer, a notice that he was to appear before Magistrate James Piragine on Wednesday, March 8, 1967, at 10:00 a. m. He appeared with his attorney (a different attorney from the one who had represented him in the first case) and was presented with a petition from the Probation Department. His attorney requested a continuance; the magistrate denied the request, and gave the attorney 45 minutes to prepare for the hearing. The magistrate filed an order which stated that the defendant being brought before the court for the alleged violation of his probation heretofore granted by the court, it is ordered that the defendant show cause before the magistrate at 10:00 a. m., March 8, 1967, why the probation should not be terminated and judgment entered and sentence imposed upon the original conviction entered against the defendant.

On March 8 there was presented to the court a report from the Probation Officer that when the defendant was granted probation on December 12, 1966, he was ordered not to drive an automobile; and that since that time he had driven an automobile. The court entered the following order written in his own hand: “Probation revoked, Hr held evid hrd both sides three (3) mos 111 State Farm, Vandalia, HI. and fined $200.00 + $5.00 (Prob terminated as unsatisfactory, . . .”

On April 4, 1967, a motion for new trial was filed, setting out that the petition for rule to show cause was based solely upon the fact that the defendant was seen driving his auto and had been arrested for a traffic charge for which he was found not guilty. It was also stated that there was nothing in the orders entered by the judge at the time the probation was allowed which made abstention from driving an automobile a condition of the probation; and that the offense of reckless driving as set out in the original complaint was insufficient.

A hearing was held before Magistrate Piragine on April 4, 1967, at which time defendant’s attorney raised the point that the prohibition of driving an automobile was not a condition of the probation. The attorney representing the State was not the assistant who handled the case originally. The court pointed out that it was orally stated to the defendant at the time he was placed on probation that he was not to operate any vehicle on any highway of the State, except at his place of employment, only within the premises of Kole Pontiac proper, whether the area was fenced in or in a garage, and no other place. The court further stated that the defendant was given a copy of a mimeographed form which was not signed and was not entirely filled out. It was addressed to Mr. William D. Meyering, Chief Probation Office, and stated:

“This is to advise you that John T. Einoder of 8817 South Washtenaw, Evergreen Park, was admitted of probation by me on the 12th day of December, 1966, for a period of 9 months, after a conviction of Section 48 and in addition to the statutory condition of probation, he was (blank) House of Correction, committed to the (blank) County Jail for a period of (blank) months or to make restitution of $155.00 within the first three months at $55.00 per month for the benefit of and so forth; and no driving for his term of probation; whose address is (blank) was also ordered to (blank) the circumstances of the offense are reckless driving.”

It is not shown that this form is a part of the court record. From the order of revocation of the probation this appeal is taken.

The rules governing probation are found in the Code of Criminal Procedure (Ill Rev Stats 1965, c 38, § 117-2), as follows:

Conditions of Probation, (a) A person admitted to probation shall be subject to the following conditions :
(1) Not violate any penal statute or ordinance of any jurisdiction.
(2) Not leave the State without the consent of the court.
(3) Make a report to such person or agency and at such times as the court may direct and shall appear in person before the court at such time as the court may direct.
(4) Execute a recognizance in accordance with the provisions of Article 110 of this Code.
(b) A person admitted to probation may be subject to the following conditions:
(5) Perform or refrain from performing such other acts as may be ordered by the court.

In the case before us the draft order of the court contained no provision prohibiting the defendant from driving an automobile, nor did the recognizance executed by the defendant contain any such provision. The only indication that there was such a provision in the original probation order is the statement of the magistrate made on April 4, 1967, concerning his memory of what occurred at the original hearing on December 12, 1966. Had there been no question at all as to the accuracy of the court’s memory, nevertheless it would not have been sufficient. The rule is that the entry of the order granting probation must contain all the elements of the probation and is indispensable in order to enable the court to retain jurisdiction. People v. Molz, 415 Ill 183, 113 NE2d 314; People v. Cahill, 300 Ill 279, 133 NE 228; and People v. Penn, 302 Ill 488, 135 NE 92, in which latter case it was held that all orders granting or refusing release on probation must be entered of record.

It appears to us that there is nothing in the record before us which prohibits the defendant from driving an automobile during the period of his probation. Nor is the matter helped in any way by the fact that an unsigned document was given to the defendant which was addressed to Mr. Meyering and which did contain a provision that the defendant should not drive a car. To hold that an oral statement made by the court at the time of entering a judgment (which statement does not appear in the record) is binding, would be to change the time-honored rules of practice in the court.

In People v. Price, 24 Ill App2d 364, 164 NE2d 528, the court said at page 375:

“Our statute provides that upon proof, satisfactory to the court, of a violation by the probationer of any of the conditions of his probation, the court may revoke the probation and issue a warrant for the arrest of the probationer . . .”

At page 376 the court said:

“What our courts have held is that a defendant in every case where probation has been granted is entitled to a conscientious judicial determination according to accepted and well recognized procedural methods upon the question whether the conditions imposed upon the defendant when he was admitted to probation have been violated.”

In its brief in this court the State cites the case of People v. McDonald, 52 Ill App2d 298, 202 NE2d 100, where the defendant was placed upon probation with the condition:

“That the defendant shall make no further threatening phone calls and upon his release, present himself at the Fairview Hospital, 2828 Prairie Avenue for psychiatric therapy; subject to remain in hospital until hospital submit a report to Judge Barrett before release.”

In that case, three days after the court entered its order, the defendant entered Fairview Hospital, but did not remain there, leaving the same day, and he did not submit to psychiatric therapy there. Six days after probation was granted, a hearing was held at which the court revoked the probation and sentenced the defendant. The Appellate Court held that the trial court was acting within the scope of a proper discretion in ordering the defendant to enter the hospital. At the time the probation was granted to the defendant the court told him he should go into the Fairview Hospital immediately, and it was held that his disobedience was a violation of the condition of the probation; and further, that the fact the order did not provide he was to enter the hospital immediately could not permit him to avoid the clear meaning of the order. There was no question that the intent of the order was understood by the defendant. This case has no application to the one before us because it is the interpretation by the Appellate Court of an order which was not in any way similar to the one entered in the instant case.

Under the decision we are handing down in this case it is not necessary to consider any of the other questions raised.

The order entered by the trial court on March 8, 1967, revoking the probation and sentencing the defendant to three months at the Illinois State Farm, and the order entered April 4, 1967, denying the motion for new trial or hearing and for arrest of judgmént, were erroneous.

The order sentencing defendant is therefore reversed and the original order entered by the trial court on December 12, 1966, admitting defendant to probation, is reinstated.

Reversed.

DRUCKER and ENGLISH, JJ., concur.


author: MR. JUSTICE CRAVEN

text:
    Frank Watkins, Plaintiff-Appellee, v. William A. Lewis, Jr., Defendant-Appellant.
    Gen. No. 51,586.
    First District.
    May 29, 1968.
    Rehearing denied July 1,1968.

      George F. Barrett, of Chicago (Donald J. Duffy, of counsel), for appellant.
    Gunn, Davidson & Brantman, of Chicago (Edwin N. Gunn, of counsel), for appellee.
   MR. JUSTICE CRAVEN

delivered the opinion of the court.

The plaintiff brought suit for personal injuries sustained in an automobile accident. The trial court entered summary judgment for the plaintiff against the defendant on the issue of liability. The issue of damages was tried before a jury and a verdict returned in the amount of $10,000.

The plaintiff’s amended complaint alleged that while the plaintiff was stopped for a red light he was rear-ended by the defendant. The complaint set forth the following alleged acts of negligence: following too close, excessive speed for conditions, insufficient lookout, failure to equip with adequate brakes, failure to apply brakes, failure to keep the vehicle under control, failure to avoid collision, and a general allegation of negligent operation. The defendant denied all material allegations in the complaint relating to the issue of liability.

At the time of the plaintiff’s motion for summary judgment, the defendant’s deposition was on file. This deposition contained certain admissions of a party-opponent and admitted therein that the defendant pulled away from the curb 50 feet from the intersection where the accident occurred. At that time the plaintiff’s vehicle was stopped at the intersection for a red light. The plaintiff’s car was the only car stopped at the intersection and occupied the third lane of five lanes of northbound traffic. All other lanes of traffic were unoccupied. The defendant stated that he was traveling 8 to 10 mph when he first attempted to apply his brakes some 20 to 25 feet behind the plaintiff. The brakes did not work and the defendant stated his speed at the time of the impact was 8 to 10 mph.

The plaintiff then filed an affidavit swearing to the facts of the accident within his personal knowledge; that his car was rear-ended while stopped for a red light in the center lane of a highway containing two unoccupied lanes of traffic to his right and two unoccupied lanes of traffic to his left. These basic facts are not in dispute.

Based upon the foregoing, the plaintiff filed a motion for summary judgment. The defendant then filed a counteraffidavit which raised the defense of sudden mechanical failure. The basic facts within the defendant’s knowledge were alleged as follows:

“That when he applied his foot to the brake pedal it went all the way to the floor and the foot brake did not slow or stop his automobile. . . . That the brakes of the 1957 Ford station wagon had been adjusted on August 3, 1960 by J. J. Wright Motor Company, 242 West 55th Street and from that date until the time of the accident said brakes had performed normally while your affiant was operating that car. The first notice your affiant had of the failure of the brakes on the 1957 Ford station wagon to properly stop and hold the automobile was when he applied them 20-25 feet behind the rear of the vehicle stopped at the traffic light at 43rd and Indiana.”

At this point the defendant again reaffirmed that at that time he was only 20 to 25 feet behind the plaintiff and traveling at a speed of 8 to 10 mph.

The rules of law with respect to summary judgment were succinctly restated in the recent case of Harp v. Gulf, M. & O. R., 66 Ill App2d 33, 38, 213 NE2d 632, 634 (5th Dist 1966):

“The purpose of summary judgment proceedings is to determine whether there is any genuine triable issue of fact which must be passed upon. Gribben v. Interstate Motor Freight System Co., 18 Ill App2d 96, 151 NE2d 443. If the pleadings, discovery depositions and exhibits, present a genuine issue as to any material fact, summary judgment should not be granted. Halloran v. Belt Ry. Co. of Chicago, 25 Ill App2d 114, 166 NE2d 98. The right of the moving party to summary judgment must be free from doubt. Miller v. Owens-Illinois Glass Co., 48 Ill App2d 412, 199 NE2d 300. The affidavits filed in support of a motion for summary judgment will be strictly construed and must leave no question of the movant’s right to judgment, but the affidavits filed in opposition thereto will be liberally construed. Tansey v. Robinson, 24 Ill App2d 227, 164 NE2d 272.” . . .

The undisputed facts raise a single defense — sudden mechanical failure. This is a proper defense sufficient to present a question of fact to a jury. Savage v. Blancett, 47 Ill App2d 355, 198 NE2d 120, 122, 125 (4th Dist 1964). In that case the court stated:

“To hold as the plaintiff requests is to hold as a matter of law that the owner or operator of a motor vehicle is the guarantor of the mechanical integrity of his vehicle at all times. To so hold makes him an insurer as to latent defects. To so hold is to father a liability for latent defects in automobiles foreign and wholly adverse to the philosophy of our law heretofore pursued in the field of latent defects in this and other areas. We see no compelling reasons for us to embark upon such an excursion into a hitherto unexplored legalistic stratosphere. The trial Court did not err in denying plaintiff’s motion for a directed verdict on the question of liability.
“The determination of cases involving latent defects and rear end collisions predominantly present questions of fact for jury resolution. Johnson v. Coey, 237 Ill 88, 86 NE 678; Ferdinand v. Lindgren, 32 Ill App2d 133, 177 NE2d 10; Guelli v. Kraus, 145 So2d 900 (Fla 1962); Alarid v. Vanier, 50 Cal2d 617, 327 P2d 897. Such determination should not be lightly disturbed by either trial or appellate tribunals. Kahn v. James Burton Co., 5 Ill2d 614, 615, [sic] 126 NE2d 836. . . .”

In the Savage case, review was had after a trial and although the case was reversed and remanded for a new trial because of error in the giving and refusing of instructions, the court there did conclude that the conduct of the defendant was such that reasonable minds might well disagree as to what, if any, negligence was the proximate cause of the injury. The same is true here. Examining the charges of negligence in this case, we cannot say that there is no question of material fact that is raised under the pleadings, affidavits and discovery depositions on file.

The assertion that there was a sudden mechanical failure is a material question of fact which raises a defense to each of the plaintiff’s allegations of negligence. This defense introduces material questions as to proximate cause and the application of the doctrine of emergency. Budds v. Keeshin Motor Express Co., 326 Ill App 59, 66-67, 61 NE2d 579 (3rd Dist 1945).

This court will also take judicial notice that 20 to 25 feet is substantially less than two normal car lengths. Also, the only apparent alternative presented to the defendant was to coast into the intersection against a traffic signal. Perhaps a jury would decide that this was the only “reasonable choice.” Perhaps the testimony will disclose what the pleadings, discovery and affidavits do not — that there was no east or westbound traffic moving with the light. Even if these facts were alleged, verified and uncontroverted, the split-second instinctive decision required of the defendant under the procedurally admitted facts of his affidavit presents a question of material fact which must be resolved through confrontation and tests of credibility only present during trial.

Perhaps the actual testimony, viewed in light of the entire record, will not be sufficient to substantiate the defense of sudden mechanical failure. However, we cannot, with certainty, make that determination in light of this record. A motion for summary judgment is not a trial by affidavit and where factual circumstances are alleged, giving rise to a valid defense, we cannot conjecture as to what an individual should have done when allegedly confronted with a mechanical failure.

Summary judgment is a drastic method of disposing of litigation and the right of a party to invoke the remedy must be free from doubt. Brooks v. Dean Berenz Asphalt Co., 83 Ill App2d 258, 227 NE2d 100 (4th Dist 1967).

For the reasons stated, it was error for the circuit court of Cook County to grant summary judgment. We have not considered allegations of error with reference to the proceedings assessing damages since, in our view, the matter must be remanded for trial. It will be remanded for trial on the question of liability, as well as damages, and we deem it unlikely that that which is alleged as error in the damage proceeding would be an issue upon retrial.

Judgment reversed and cause remanded with directions.

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


author: STOUDER, J.

text:
    Oscar H. Wilke, Inc., a Corporation, Plaintiff-Appellee, v. Philip Vinci, et al., Defendants, and Imperial Real Estate and Insurance Agency Co., Inc., a Corporation, Defendant-Appellant.
    Gen. No. 52,273.
    First Judicial District.
    May 29, 1968.

      Kane and Kane, of Chicago (Edward E. Kane, of counsel), for appellant.
    Greenstein and Solotke, of Chicago (Harry S. Greenstein, of counsel), for appellee.
   STOUDER, J.

Oscar Wilke, Inc., Plaintiff-Appellee, brought this action in the Circuit Court of Cook County against Philip Vinci, Imperial Real Estate and Insurance, Inc. and Northwestern Savings and Loan Association, Inc., seeking to recover for lathing and plaster work. The court sitting without a jury dismissed the action as to Northwestern but entered judgments in the amount of $3,210 against each of defendants Vinci and Imperial and also entered a separate judgment in the amount of $120 against defendant Vinci. Only Imperial has appealed.

Defendant Vinci, a builder and developer, purchased a tract of vacant land in the Park Ridge area, financing such purchase with a land loan from Northwestern. Vinci was also building six houses on the property, financing each with a separate construction loan with Northwestern.' The Plaintiff, Wilke had contracted with Vinci to do the plastering work on such houses.

Vinci became in arrears on his loan payments to Northwestern and at the urging of Northwestern to remedy this situation, defendant, Vinci, in April, 1964, borrowed $20,000 from his attorney Limperis. To secure the loan Vinci conveyed all of the property including the lots upon which were located the six partially completed houses to Limperis by quitclaim deed.

At the suggestion of Northwestern that Imperial might be able to help Vinci in the sale of his houses, Vinci met with Imperial in the fall of 1964 and at that time gave Imperial a thirty-day exclusive listing contract for the sale of the houses. Several offers were secured but no sales were made because Vinci deemed the price inadequate. Commencing in November, 1964, there were meetings to explore the possibility of an “as is” sale of the property to Imperial. At this time all of Plaintiff’s lathing and plastering work had been completed. Although no written contract was ever entered into, the negotiations were successful and the transfer was concluded either at a meeting in December, 1964 or January, 1965.

The Plaintiff brought this action in June, 1965, alleging that Imperial had orally promised to pay the unpaid trades for work done on the partially completed houses. In seeking to reverse the judgment of the trial court against it Imperial argues the evidence is insufficient to support the trial court’s conclusion that it had orally promised to pay Wilke’s claim. Further, even if the evidence were sufficient to support the conclusion that an oral promise was made, such promise is unenforceable under the Statute of Frauds, chapter 59, section 1, Ill Rev Stats 1963.

The evidence as to whether an oral promise was or was not made centers around the meetings which took place in Northwestern’s offices commencing in November, 1964, and, in particular, two meetings, the first of which took place in November and the second either in December or the following January. Present at these meetings were Limperis, Roppolo and Prendergast, major shareholders and officers of Imperial, Moltz, Imperial’s attorney, and representatives of Northwestern. The evidence is conflicting as to Vinci’s presence. Neither plaintiff Wilke nor any of the other trades was present at any of the meetings.

At the meeting in November, Limperis indicated he wanted $24,000 for a quitclaim deed conveying the property to Imperial, all of the expenses of the transfer to be borne by Imperial. No written contract was contemplated. At this meeting it was determined that further study and investigation of the proposed project was required. Moltz, attorney for Imperial, was to secure a report of title. Roppolo and Prendergast wanted to consider the economic feasibility of the project and for that purpose wanted time to make appropriate investigations including the amounts needed to complete the houses, the funds available in the construction loan accounts and other related matters.

The report of title showed only one mechanic’s lien for unpaid concrete work upon the partially completed houses. An examination of the loan file indicated the various balances due, the amounts paid out and the amounts available from such loans to complete the houses. In such loan files were requests for payment by Vinci as work was completed, supported by lien waivers relating thereto, including waivers from Wilke. Wilke’s claim is based on extra work not included in the contractor’s estimates and in part upon work for which waivers were given but no payment was received. It also appears that Imperial contacted the building trades involved in the construction of the houses to verify the amounts which were due such trades.

At the second meeting, probably held in January of 1965, the transfer was consummated by delivery of quitclaim deeds from Limperis and his wife and Vinci and his wife conveying the property to a trust established for the benefit of Imperial. Limperis received his check for $24,-000. Vinci received no money. Both Vinci and Limperis testified that at this meeting Imperial orally agreed to pay the unpaid building trades. In support of their testimony they asserted that six accounting sheets previously prepared by Vinci were produced, exhibited and extensively discussed by the parties. It also appears that such accounting sheets may have been presented, discussed and copied at earlier meetings. Each of the accounting sheets relates to one of the partially constructed houses and lists names and amounts in two categories. The first, “Trades Completed and Not Paid” and the second, “Trades to Complete Building.” Wilke’s name appeared under the first category and the total of the amounts as listed on each of the six sheets is the amount which plaintiff sought in this case for which judgment was entered. According to Limperis an adding machine tape was made listing the total of the amounts for each category. Roppolo and Prendergast testified that the sheets were casually laid on the table but they did not consider them. They testified they only agreed to pay any lien claims filed and the amounts due as revealed by the loan files for which no lien waivers had been secured. The testimony of a representative of Northwestern tended to corroborate the position of defendant Imperial, but it also appears that such representative was not present during all of the conversations which took place.

On February 1, 1965, Vinci sent a letter to each of the unpaid trades including Wilke, indicating that the property had been sold to Imperial and that they should look to Imperial for payment. Wilke testified that he had called at the offices of Imperial on two occasions and on each occasion had been promised payment. Imperial admitted that Wilke had called at its office, denied that any promise of payment had been made and indicated that the calls were for the purpose of bidding on other plastering jobs. A tradesman (supplier of cabinets) unpaid at the time of the transfer, testified that in a telephone conversation with Roppolo of Imperial in November, 1964, the latter had told him that in connection with Imperial’s taking over of the property all subs would be paid.

It is evident from the foregoing summary of the evidence that there is conflict in the evidence. The trial court was not required to reconcile such conflicts solely on the basis of an assertion of an oral promise and a denial thereof by equally credible witnesses. Most significantly the testimony of the witnesses must be viewed in the context of the transaction in which they were involved. The court was entitled to determine the reasonableness and hence the credibility of the testimony in light of the transaction and the conduct of the parties. Under such circumstances we believe the conclusion of the trial court that an oral promise was made to pay unpaid tradesmen is amply supported by the evidence.

Defendant next argues that such an oral promise is the promise to pay the debt of another and hence unenforceable under the Statute of Frauds. We find no merit in such argument. Chapter 59, section 1, Ill Rev Stats 1963, insofar as is pertinent provides, . . no action shall be brought, . . . whereby to charge the defendant upon any special promise to answer for the debt, ... of another person, .... If an oral promise to pay the preexisting debt of another be supported by a new and valuable consideration such oral promise is not merely a promise to pay the debt of another it is regarded as an original undertaking. 20 Illinois Law & Practice, Frauds, Statute of, §§23 and 25. Where such promisor has received benefit upon the strength of such promise, such promise is and should be enforceable. Where the transferee of property promises to pay debts of the transferor, such promise is a new and adequate consideration, and the promise is enforceable. Meyer v. Hartman, 72 Ill 442. This is the rule which we deem applicable to the facts of this case. The principal cases relied upon by the defendant namely, Foremost Ins. Agency v. Pancoe, 16 Ill App2d 371, 148 NE2d 5, and Evans v. Owens, 30 Ill App2d 114, 173 NE2d 850, although correctly stating the law, are not applicable to this case since, most significantly, neither case involves any transfer of property from the debtor to the promisor or in fact any new consideration.

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

Judgment affirmed.

ALLOY, P. J. and CULBERTSON, J., concur.


author: PRESIDING JUSTICE ALLOY.

text:
    Willie Small, Plaintiff-Appellant, v. John M. Bastian, Defendant-Appellee.
    Gen. No. 51,880.
    First Judicial District.
    May 29, 1968.
    Rehearing denied July 1, 1968.
    Asher, Greenfield, Gubbins and Segall, of Chicago (Irving D. Levin, of counsel), for appellant; Herbert Zahn and Constantine Dranias, of Lombard (Zeno Middleton, of counsel), for appellee.
   Opinion by

PRESIDING JUSTICE ALLOY.

Not to be published in full.


author: SCHEINEMAN, J.

text:
    Silvio Davito, Plaintiff-Appellant, v. George Blakely, Andrea Blakely, Ryan Cawley, Walter Sale, and LaSalle National Bank, Defendants-Appellees.
    Gen. No. 67-54.
    Third District.
    May 29, 1968.

      Perona & Perona, of Spring Valley, and Hermes Kitsos, of Chicago, for appellant.
    Winston, Strawn, Smith & Patterson, of Chicago, and Hollerich & Hurley, Herbolsheimer & Lannon, and Michael J. Faletti, of LaSalle, for appellees.
   SCHEINEMAN, J.

The plaintiff, Dr. Silvio Davito, filed this suit for specific performance of an alleged contract with defendant, George Blakely, for the purchase by Davito and sale by Blakely of a farm containing more than four hundred acres. Additional parties defendant included defendant’s wife, the tenant on the farm, and a bank which held legal title in trust for Blakely. A second count added Ryan Cawley as a defendant charging him with fraud.

The principal defense was the Statute of Frauds, on the ground there was no sufficient writing signed by the parties to be charged. Copies of documents attached to the complaint were Exhibit A, a letter from Blakely to Cawley, and Exhibit B, a receipt for $5,000 signed by Cawley and given to Davito.

The letter from Blakely to Cawley dated August 27, 1964, reads as follows:

“In answer to your request for a firm price on the farm I stand firm as quoted at $240,000. I will not accept anything but cash, no trades, no contracts, etc. Hope this answers your questions.” Signed, George Blakely.

The receipt, Exhibit B, dated August 28, 1964, is as follows:

“Received of Dr. Silvio Davito Five Thousand and no/100 Dollars, Blakely acreage on Dalzell Road, subject to provisions of tentative contract provisions agreeable to George Blakely att. and Dr. Silvio Davito, att.” Signed, Ryan Cawley.

The complaint also alleged that Blakely impliedly agreed pursuant to the usual and customary practice in such sale “to provide evidence of merchantability of his title; that the closing date would be March 1, 1965; that Blakely would pay taxes for 1964 and prior years; that title would be conveyed by warranty deed signed by defendant and his wife; and that defendant would attach the required revenue stamps.” None of these “implied” provisions actually appear or were suggested in the signed document.

A subsequent paragraph in the complaint which in the first part stated the contract was oral, alleged as an alternative that Blakely made the offer to sell in writing and plaintiff accepted the offer; reference was made to Exhibits A and B attached. Other allegations stated Davito had arranged his financing, etc., and was ready, willing and able to perform.

Other facts brought out in evidence were that about the middle of July, 1964, Blakely had met Cawley and told of his desire to sell his farm located on the Dalzell Road, naming his price. Later Davito called Cawley by phone and inquired as to any farms he had for sale. He was told of the Blakely farm being on the market. Later he inspected the farm and sought to buy the wooded area. Cawley told him the farm would only be sold as a unit. From the middle of July to August 28th and for probably a couple of months thereafter it appears that Blakely and Davito had not met or even were acquainted. It is quite clear that when the letter of August 28 was executed by Blakely he had no particular purchaser in mind and did not even know of Davito as a prospect. In October or November Cawley arranged for the parties to meet in his office for the first time.

During this time other prospective buyers probably appeared. At least there was an organization known as St. Bede’s which notified Cawley it would like to buy local real estate. Cawley told of the Blakely farm and sometime later St. Bede’s made a written offer to purchase.

The evidence also disclosed that the trust which held title to the farm, had been created by Blakely’s father and the Federal Government was asserting a tax lien against it.

Cawley testified that when he told Blakely about the $5,000 down payment, Blakely expressed approval and said he was very happy with the deal. This is not admitted by the testimony of Blakely. He claims that he was constantly asserting that the sale hinged on the tax problem in the estate which had to be cleared up. He received a letter September 10, 1964, from the plaintiff’s attorneys saying that they had written St. Bede that Blakely could not sell to them because of his prior commitment. This disturbed Blakely, he called Cawley but Cawley said he knew nothing about it. Then defendant called plaintiff’s attorneys and asked why they felt they had authority to write such a letter when there never was a document presented by him which gave them authority so that they had a right to this property. It is clear that Blakely was still contending that he had not made a final contract.

The chancellor who heard this case and decided in favor of defendants, expressed his doubts that the parties had ever come to a definite agreement of any kind, oral or otherwise. And certainly there was no written contract sufficiently definite to comply with the Statute of Frauds. There are some variations in the testimony and some of it indicates that plaintiff knew there was a matter of Federal taxes to be cleared up, the total acreage of the farm was not yet determined, and the closing date was in dispute. These are all matters which should be clearly settled by a signed memorandum to comply with the statute.

As to other rules of law, the following are pertinent : a memorandum to satisfy the statute must identify both parties. Kohlbrecher v. Guettermann, 329 111 246, 160 NE 142. It also held that a subsequent receipt signed by the broker and naming the vendee did not supply the defect in the document signed by the vendor.

Plaintiff’s Exhibit A in the complaint is his Exhibit 1 in evidence. It does not name a vendee and of course was a mere listing of property with no particular buyer in mind. “To constitute a valid contract, the minds of the parties must have met on the identity of persons with whom they are dealing. Everyone has a right to select and determine with whom he will contract and another cannot be thrust upon him without his consent.” 12 Am Jur, Contracts, § 38.

Reference is made in plaintiff’s argument to the fact that a Court of Chancery sometimes refuses to apply the Statute of Frauds, where the result would be to perpetrate a fraud. Especially cited is Loeb v. Gendel, 23 Ill2d 502, 179 NE2d 7. But this doctrine applies where the defendant has contrived to defraud the plaintiff in some act other than a contract of sale. Following the quotation in appellant’s brief, the Loeb case expressly adds the following qualification:

“The moral wrong alone of refusing to be bound by an agreement because it fails to comply with the statute, does not suffice to estop a defendant from asserting the statute as a defense.” Loeb v. Gendel, 23 Ill2d 502, at 504,179 NE2d 7.

If this were not the applied rule the effect would be to nullify the statute and open the door to frauds it is intended to prevent. Moreover, the evidence in this case does not establish that there was even an oral contract between the parties.

The plaintiff also relies upon the rule of law that the contract may consist of several documents. While this- is the law, it is also necessary that the various writings be connected in a definite manner. As stated in Western Metals Co. v. Hartman Ingot Metal Co., 303 Ill 479, 483, 135 NE 744, “It is equally well established that the signed writing or writings must refer expressly to the other writing, or the several writings must be so connected, either physically or otherwise, as to show by internal evidence that they relate to the same contract.” (Citing cases.) The documents in the case at bar fail to comply with this rule.

As for authority on this subject, reference is made to Williston on Contracts, Vol 4 (3d ed) § 581, as follows:

“What is essential is that the signature of the parties to be charged shall authenticate the whole of the writing. It is, therefore, necessary to incorporate all of the documents included in a writing signed by him. It will not be enough to incorporate all into an unsigned writing, or include a writing signed by the plaintiff and, consequently, it is insufficient and immaterial that such a writing refers to a writing signed by the defendant.”

It follows, that the plaintiff’s Exhibit 3 cannot be considered as supplementing and completing the contract that must be signed by the parties to be changed.

Moreover, Cawley had no authority to make or execute a contract of the real estate listed for sale. “The general principle, announced many times, is that a real estate broker employed by the owner to find a purchaser for a tract of land, although the terms of sale are fully prescribed, does not have authority to execute a contract of sale which will bind the owner.” Citing Leach v. Hazel, 398 Ill 33, 74 NE2d 797; Stein v. McKinney, 313 Ill 84, 144 NE 795; Jones v. Howard, 234 Ill 404, 84 NE 1041.

The conclusion is inescapable that plaintiff failed to establish a case for specific performance in Count I of his complaint and the chancellor was correct in his decree.

As to Count II plaintiff remarks he should have his down payment refunded. Whether the down payment should be refunded was not an issue in the case. Count II named Cawley as defendant and is not a claim for any liquidated sum. It is a claim for damages alleging fraud consisting of false statements as to Cawley’s authority.

A search of the testimony fails to disclose any evidence of false statements by Cawley. When plaintiff wanted something in writing to show Cawley’s authority, it was obtained as requested. There is no testimony that Cawley ever made any statement as to the legal effect of this letter. He simply delivered the original document to the plaintiff. If plaintiff, or his attorneys, attached some legal significance to it, which it did not have, this was their own conclusion, not based on any statement by the defendant.

As for plaintiff’s Exhibit 3, there is no misstatement of fact shown concerning it. On its face, it refers to the “tentative” contract, and adds it is “subject to provisions agreeable” to the parties. This receipt clearly indicates that Cawley was not asserting there was any final contract binding on defendant.

Therefore, the finding and decree of the chancellor to the effect there was no evidence of fraud, is actually supported by plaintiff’s own evidence and exhibits.

Accordingly the decree of the Circuit Court is affirmed in all respects.

Decree affirmed.

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


author: JUSTICE SCHEINEMAN.

text:
    Byron R. Yanders, Plaintiff-Appellee, v. Lee Cline, Defendant-Appellant.
    Gen. No. 67-101.
    Third District.
    June 3, 1968.
    Rehearing denied July 16, 1968.
    Thomas C. Stifler, of Danville, for appellant; John W. Unger, of Danville, for appellee.
   Opinion by

JUSTICE SCHEINEMAN.

Not to be published in full.


author: CULBERTSON, J.

text:
    William P. Hillman, Jr., Plaintiff-Appellant, v. Hodag Chemical Corporation, an Illinois Corporation, Defendant-Appellee.
    Gen. No. 51,757.
    First Judicial District.
    June 5, 1968.

      William D. Maddux, John M. O’Connor, Jr., of Kirkland, Ellis, Hodson, Chaffetz & Masters, of Chicago, for appellant.
    Bernard Perel and Jerome H. Torshen, of Chicago (Fred J. Ginsburg and Jerome H. Torshen, of counsel), for appellee.
   CULBERTSON, J.

This action, based upon a written contract of employment, was brought in the Circuit Court of Cook County by William P. Hillman, Jr., plaintiff, against Hodag Chemical Corporation, defendant, to recover damages for wrongful discharge. A jury returned a verdict of $10,000 for plaintiff and judgment was entered thereon. Upon post-trial motion of defendant, however, the trial court set aside the verdict and judgment, and dismissed the action, on the ground that the contract was unenforceable for lack of mutuality. Relief on all other grounds advanced in defendant’s motion, including an allegation that the evidence disclosed plaintiff had been justifiably discharged for cause, was expressly denied. Consistent with its ruling of an unenforceable contract, the trial court also denied plaintiff’s motion for a new trial on the issue of damages only. Plaintiff has appealed from both post-trial orders.

The initial issue presented for determination is whether the contract between the parties is unenforceable for lack of mutuality and, in such regard, the contract sued upon is in letter form as follows:

“December 28,1961
Mr. William P. Hillman, Jr.
195 Boulevard Mountain Lakes, N. J.
Dear Mr. Hillman:
This letter will confirm my conversation with you today.
Hodag Chemical Corporation of Skokie, Illinois, will employ you to perform such functions as assigned for two years minimum and at $15,-400 per year.
This employment begins today.
Very truly yours,
Hodag Chemical Corporation /s/ Sheldon E. Kent Sheldon E. Kent, President
Agreed:
/s/ 12/28/61
/s/ William P. Hillman Jr.
William P. Hillman, Jr.”

There can be no doubt that mutuality of obligation is necessary to the establishment of a valid employment contract (Kelly v. Great Lakes Dredge & Dock Co., 203 Ill App 207), mutuality of obligation meaning that both parties are bound or neither is bound (Farmer’s Educational & Co-operative Union of America v. Langlois, 258 Ill App 522, 524), and it has long been settled that a contract must be binding upon both parties at the same time if it is to be deemed valid and enforceable as to either. (Lancaster v. Roberts, 144 Ill 213, 33 NE 27; Vogel v. Pekoc, 157 Ill 339, 42 NE 386.) Mutuality, or the lack of it, must be determined as a matter of construction from a consideration of the language employed by the parties in their contract (Butterick Pub. Co. v. Whitcomb, 225 Ill 605, 80 NE 247), and our courts are in accord that mutuality of obligation may be implied as well as expressed in the agreement of the parties. (Thebest Laundry & Cleaning Co. v. Duffy, 293 Ill App 252, 12 NE2d 235; Cook Master, Inc. v. Nicro Steel Products, Inc., 339 Ill App 519, 90 NE2d 657.)

In the present case it is defendant’s contention that the contract is unilateral in that plaintiff has no obligation to remain in the employ of defendant for two years, or any other length of time, but in fact “reserved the right to terminate his employment at any time.” Therefore, reasons defendant, since the contract cannot be enforced against plaintiff, he cannot enforce it against the defendant. We cannot concur in defendant’s construction of the contract. It is inconsistent, not only with the express language of the contract, but also, if there was a need to resort to them in order to determine the intention of the parties, with the circumstances surrounding the execution of the contract. The word “agree” is defined in Black’s Law Dictionary, 3rd ed, p 83, as meaning: “To concur; to come into harmony; to give mutual assent; to unite in mental action; to exchange promises; to make an agreement; to arrange; to settle.” (Emphasis added.) Again, while considering the effect of the word “agree” in an employment contract, the eminent Mr. Justice Cardozo stated in Moran v. Standard Oil Co. of New York, 211 NY 187, 105 NE 217, at 220: “The plaintiff ‘agrees’ to serve for five years. The defendant ‘agrees’ to pay him at certain rates. The very word ‘agreement’ connotes a mutual obligation. Benedict v. Pincus, 191 NY 377, 383, 384, 84 NE 284. There may be a ‘promise’ to serve without a promise to employ, but there can be no ‘agreement’ for service without mutuality of rights and duties.”

In the contract here the word “Agreed” preceded the plaintiff’s signature. When we accord to that word its ordinary and accepted meaning, it was the equivalent of a promise on the part of plaintiff to obligate himself for a minimum of two years’ employment with defendant. (Cf. Butterick Pub. Co. v. Whitcomb, 225 Ill 605, 80 NE 247; Illinois Life Ins. Co. v. Beifeld, 184 Ill App 582, 592; Thornton v. Kelly, 11 RI 498.) It is our opinion the contract imposed mutual obligations, and that the trial court erred in holding to the contrary.

Since the question of whether plaintiff was properly discharged for cause has not been preserved for review, there remains for consideration only the question of whether the plaintiff is entitled to a new trial on the issue of damages. Plaintiff was discharged in May, 1962, after having been paid $5,150.40, and, at the contractual rate of $15,400 per year, was thus deprived of $25,649.40. From the record it appears that his earnings for the balance of 1962 came to but $236.50, and that he did not secure steady employment until March 15, 1963, for which he had been paid a total of $8,469.86, when the two-year period of the contract with defendant would have expired. Based upon these figures, it is plaintiff’s theory that he was entitled to damages of $17,179.74, and that we should either enter judgment here for such amount, or remand the cause for a new trial on the issue of damages. For the defendant, it is urged that the verdict was an obvious compromise verdict which tainted the jury’s determination on the issue of liability, and that a new trial should be ordered upon all issues. See: Kinsell v. Hawthorne, 27 Ill App2d 314, 320, 169 NE2d 678; Paul Harris Furniture Co. v. Morse, 7 Ill App2d 452, 473-474, 130 NE2d 16.

We note, however, that the jury was instructed as follows: “The measure of plaintiff’s damages is to be determined by the salary amount stated in the contract for the period stated less actual payment received by plaintiff to the date of discharge and less any amount earned from other employment during the period covered by the contract or by reasonable diligence he could have earned in other employment subsequent to his discharge (Emphasis added.) The jury was thus not confined to the precise mathematical calculation upon which the plaintiff now relies. Plaintiff did not become employed until ten months after his discharge by defendant and, in our opinion, the state of the record is such that the jury’s verdict may be accounted for by the jurors’ conclusion that plaintiff did not exercise reasonable diligence to diminish his damages.

Accordingly, and for the reasons stated, the order of the Circuit Court of Cook County denying plaintiff a new trial on the issue of damages is affirmed; however, the order of the court setting aside the verdict and judgment for plaintiff is reversed, and the cause is remanded with directions that judgment be entered for plaintiff in the amount of the verdict.

Affirmed in part; reversed in part and remanded with directions.

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


text:
    The People of the State of Illinois, Appellee, v. James Barnes, Appellant.
    Gen. No. 50,896.
    First District, Fourth Division.
    June 5, 1968.
    Gerald W. Getty, Public Defender of Cook County, of Chicago (James J. Doherty, Assistant Public Defender, of counsel), for appellant.
    John J. Stamos, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and Howard Levine, Assistant State’s Attorneys, of counsel), for appellee.

       Ill Rev Stats 1963, c 38, § 18-1. Robbery, (a) A person commits robbery when he takes property from the person or presence of another by the use of force or by threatening the imminent use of force.
      (b) Penalty. A person convicted of robbery shall be imprisoned in the penitentiary from one to 20 years.
      Ill Rev Stats 1963, c 38, § 8-4. Attempt, (a) Elements of the Offense. A person commits an attempt when, with intent to commit a specific offense, he does any act which constitutes a substantial step toward the commission of that offense.

        (c) Penalty. A person convicted of an attempt may be fined or imprisoned or both not to exceed the maximum provided for the offense attempted: . . .

       See Callaghan’s Illinois Digest, same topic and section number.

   MR. PRESIDING JUSTICE McCORMICK

delivered the opinion of the court.

Charge : Attempted robbery.

Defense at Trial : Alibi.

Judgment : After a bench trial the court found the defendant guilty and sentenced him to a term of 1 to 8 years in the Illinois State Penitentiary.

Point Raised on Appeal : The defendant was not proved guilty beyond a reasonable doubt.

Evidence for State : Patrick Edward O’Shea testified that he was 17 years old, a high school student, and was employed during the summer by a retail store as a stock boy and sales clerk. He stated that on October 28, 1964, he had worked from 3:00 to 5:30 p. m., after which he and his brother met and started to walk to their home at 4132 West Van Burén Street. When they reached the corner of Van Burén and Keeler, where a tavern is located, the defendant, James Barnes, came off the street between two parked cars, and walked toward the witness, grabbed his arm and asked if he had any money or valuables; when the witness said he did not, the defendant told him to give him his leather jacket, and the witness refused. The defendant then pulled a small steel automatic gun from his pocket and again demanded the jacket, saying that he would “burn” him. Both the witness and his brother ran, at which time the defendant started shooting, hitting the witness once, causing him to fall, with a bullet in his spine where it still remained at time of the trial. The jacket with the bullet hole in the back was introduced in evidence.

The witness stated that after he was taken to the hospital the police brought in three suspects all of the same height, shape and size, and that he positively identified one of them (the defendant) as the boy who shot him. He told the police that the defendant on the night of October 28, was wearing “something black with an emblem, an eagle emblem on it.” The police brought the defendant into the hospital room, then later brought in a sweater which had a red emblem on the breast and a big eagle emblem on the back. The witness identified the sweater as the one the defendant was wearing at the time of the shooting.

On cross-examination Patrick O’Shea testified that he never recalled having seen the defendant before; that on the night in question the defendant was wearing the black sweater and something over it which was partially buttoned; that he saw the small emblem on the front of the sweater. He stated that the conversation with the defendant took close to two minutes, and that the lighting of the place where the defendant accosted him was bright; that he identified the defendant by his face and by the way he talked.

The witness was then cross-examined as to statements made by him at the preliminary hearing where he said the entire matter between him and the defendant happened in less than a minute. At that hearing he also stated that the defendant was wearing the sweater when he was at the hospital.

Michael O’Shea testified that he was 15 years old, and was employed by St. Mel’s School as a janitor and telephone receptionist. His testimony with reference to the incident in question was much the same as that of his brother; he said the defendant was wearing a black sweater about which there “was nothing noticeable.” He testified as to the brightness of the lights at the place of the encounter.

Carol Bowman testified for the State that she was 23 years old, lived at 304 South Kildare, and worked at Goazer Print and Lithographer Company. She identified the defendant in court, stating that she had spoken to him before that time about joining a civil rights organization, A. C. T., but that he was not a member. She had know him from July until November of 1964 when he had come into the record shop where she worked with boys and girls; that she tried to help keep them out of trouble, but that she did not date any of the boys. She testified that on the night in question the defendant came to her home, told her he had been in a fight at Van Burén and Keeler, where a boy had been shot, and asked her if he could leave his sweater there, saying he would come back for it. She said he did not leave a gun with her; he said he had gotten rid of it. She put the sweater in a drawer where it remained until October 30, when she went to the police with it because she had learned that one of the boys in the group (“Top Cat”) had been arrested and that a girl named Irene was going to be arrested. She stated that she did not want them to go to jail for something she knew they had not done.

Defense Witnesses : Henrice Allen testified that she lived next door to the defendant; that on October 28 she saw him in his backyard about 5:00 p. m.; that in response to her request he had come to her apartment between 5:30 and 6:00 p. m., and cut her baby’s hair, staying there about 30 minutes. She stated that he later went to the first floor to her sister’s apartment where she knew he stayed until well after 6:00, and that he was wearing a maroon sweater with two stripes; that she had seen him wear a black sweater, but that People’s Exhibit 2 was not it. On cross-examination she stated that the defendant had not cut her child’s hair at any other time, but that she did not know exactly what day it was when he had cut it, only that it was in October. She testified that she did not see the color of the sweater, People’s Exhibit 2; that the defendant had a black one, and that she saw him wearing it and a maroon sweater with gray and white stripes, but that she had not seen People’s Exhibit 2 hanging in the backyard.

Sally Allen testified that she knew the defendant; that he lived next door to her; that on October 28, 1964, he had come to her place about 5:00 p. m., where her two sons and a sister were with her; that he had been asked to cut her sister’s baby’s hair, and had stopped to see if the child was there or in the apartment upstairs. She stated that she went with him to her sister’s apartment, but did not stay, and that the defendant returned to her place about 6:00 p. m., and trimmed her hair, then her sister’s, after which he watched television for a time and left her place about 6:30 p. m. She stated that minutes after he left his sisters came in and said the police were in their backyard. She said she did not see the defendant again that night.

The witness testified that she was acquainted with the lounge at Keeler and Van Burén, and that it was no lighter than the usual lounge. She testified that the defendant was wearing a short-sleeved sweater, maroon with gray stripes down the front; that she could not tell if People’s Exhibit 2 was the sweater he wore, but she remembered that he had one similar to it; and that she did not know what happened to that sweater. She stated that the defendant had cut her hair before the 28th of October, but she could not say what date it was. She testified that after she heard of his arrest she later heard information concerning the sweater, that it was supposed to have been a black one with a design on it.

Bessie Barnes testified that she was the mother of the defendant, and that her son had a black sweater with certain symbols on it, “something in the back like an eagle.” She did not know whether or not People’s Exhibit 2 was the one, but she thought her son’s sweater was “red all over in the back.” She said that about a week and a half before his arrest the defendant had washed the sweater and hung it on the line and she had not seen it since. She said, “I really did see the black sweater, the exhibit, hanging on the line,” and that she saw the defendant hang it there; that it was there a couple of days and she did not know when it was taken down. She testified she did not mean the sweater hanging on the line was the one which was People’s Exhibit 2 in court; that the defendant had two sweaters, one of which was like the exhibit. She further testified that her son had been requested by one of the children to cut the baby’s hair, and that he was then wearing a wine-colored sweater with gray figures down the front and sides.

The defendant took the stand on his own behalf and testified that he was 18 years old and was a student at John Marshall; that he left school at 2:45 p. m., and started to work at 4:00 p. m., at the Market Basket on West Madison Street, usually working until 9:00 p. m. He stated that on October 28, 1964, he left school early and went to some car lots before he went to the store, arriving there about 4:15, at which time he was told he was not needed that day, and he left about 4:20, reaching his home about 4:30. At his home he met Irma Marshall, a sister of Sally and Henrice Allen. He was then asked to cut the hair of Henrice’s baby, which he did, then returned to Sally’s apartment about 6:00 p. m. He knew the time because of the television programs. He then cut Sally’s hair and Irma’s. About 20 minutes before 7:00 p. m., he went to the corner of Kildare and Van Burén, had a conversation with another boy, then went to Keeler where the police had just driven away with a boy in the patrol wagon. He denied that he saw either Patrick or Michael O’Shea that night and denied the incident to which they both testified. He said he was wearing a brown hat and a maroon jersey with a gray streak on either side. He testified that he knew Carol Bowman, but that she was not a good friend; that he never dated her and had a girl friend of his own. He knew that Carol and Top Cat were friends and he thought Top Cat was about 21 years old. He said he owned a sweater similar to People’s Exhibit 2, but that it was not his sweater; that his was black with red and white on the front and red and yellow on the back; that he last saw it ten months before when he had washed it and hung it outside, about a week before October 28, 1964. He knew of no reason why Carol Bowman would testify that he went to her home and gave her a sweater; that he was not a member of A. C. T.; that he had been asked to join and had refused. He said he had never owned a gun. In answer to questions of the court he said that on October 28 he was glad he didn’t have to work because he didn’t feel well and felt dizzy. He was asked if he had a dizzy spell while he was cutting the hair and he answered: “The dizzy spell wasn’t, I should have used another phrase because it was just, well a confused. I was a confused man.”

Patrick O’Shea was recalled by the State as witness and testified that on October 28,1964, at about 6:15 p. m., he saw the defendant; that he was in front of him, grabbed his arm, and asked where he was going; he then pulled a gun and demanded that the witness give him his jacket and whatever he had in his pocket. He stated that when he identified the defendant at the hospital he was wearing a black sweater, and that there was no doubt in his mind as to the identity of the defendant.

Patrick O’Shea was then called in rebuttal, and his testimony was the same as when he originally testified.

Opinion: In this court the defendant directs his argument principally to the matter of identification. He not only attacks the identification in the case before us but makes an attack upon the validity of all identification evidence. People v. Bailey, 90 Ill App2d 121, 234 NE2d 332, was a case very similar to the one before us. The defendant was represented by the same attorneys and made the same argument with reference to identification. In his opinion in the case Justice Schwartz said at page 124:

“The testimony of the three witnesses who identified the defendant clearly supports the trial court’s finding unless we adopt the view being urged upon us by the Public Defender with respect to the innate weakness of a conviction based on identification. This is presented at length in his brief. While not saying so specifically, he would have us ignore the rule that the credibility of a witness is for the trier of fact to determine and that only in exceptional cases should a reviewing court disturb the jury or the trial court’s decision.
“The conclusion the defendant would have us reach is that such evidence is not trustworthy because certain cases have revealed erroneous identifications. What percentage such cases bear to the whole is unknown and in all probability unknowable.
“Nearly all evidence is produced through human beings and, as such, the weight to be accorded it is a matter of credibility to be determined by the jury. 1 Wigmore, Evidence §26 (3rd ed (1940)).”

In the instant case defense counsel in his brief also objects to the fact that there were several minor discrepancies in the evidence of Patrick and Michael O’Shea. The boys were 17 and 15 years old, respectively. In People v. Tolliver, 48 Ill App2d 402, 199 NE2d 68, (abst.), a case involving the testimony of two boys aged 12 and 14, it was argued as here that there were several discrepancies in their testimony. The court said: “It is our opinion that these lend credibility to their testimony. Two boys on an exciting occasion like this could hardly be expected to recall in complete detail all the events in question.”

In People v. Scott, 38 Ill2d 302, 231 NE2d 441, the court said at page 305:

“Where, as here, the corpus delicti has been established and only a question of identification remains, the positive and unequivocal identification by a credible witness, who had a favorable opportunity for observation, can be sufficient to support a conviction. (People v. Ashley, 18 Ill2d 272; see also People v. Jordan, 38 Ill2d 83.)
“It was the function of the trial court as the trier of fact here to determine the credibility of the witness and its finding of guilty will be disturbed only where the evidence is so unreasonable, improbable or unsatisfactory as to leave a reasonable doubt as to the defendant’s guilt. (People v. Washington, 27 Ill2d 104.) Here, no such doubt is raised.”

In the instant case the evidence of identification was sufficient.

The defendant also attacks the testimony of Carol Bowman with reference to his giving her his sweater to keep for him. The black sweater with the unique emblem was turned over to the police by Carol Bowman and was introduced in the trial as People’s Exhibit 2. This sweater keeps emerging constantly to the disadvantage of the defendant. It is admitted that he had such a sweater. His alibi witnesses admit it, but all of them denied that People’s Exhibit 2 is the sweater which was owned by the defendant.

There appears to be nothing in the record to indicate that Carol Bowman would want to testify falsely against the defendant. Her explanation for the reason she testified was that she knew two other people had been accused of the offense and that she did not want them to go to jail when she knew who had committed the crime. Her explanation is believable.

The testimony of the alibi witnesses for the defendant was disbelieved by the trial court, and we think properly so. The judgment of the Circuit Court is affirmed.

Affirmed.

DRUCKER and ENGLISH, JJ., concur.


text:
    People of the State of Illinois, Plaintiff-Appellee, v. John J. Fultz, Defendant-Appellant.
    Gen. No. 51,313.
    First District, Fourth Division.
    June 5, 1968.

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

delivered the opinion of the court.

Charge: Armed robbery.

Defense at Trial : Plea of not guilty.

Judgment : After a trial before the court, defendant was found guilty and sentenced to one to four years in the Illinois State Penitentiary.

Points Raised on Appeal :

1) Defendant was not proved guilty beyond a reasonable doubt;
2) State’s evidence failed to prove the offense of armed robbery;
3) The State erred in questioning the defendant on his failure to produce defense witnesses.

Evidence : The complaining witness, Jackson Gilbert, testified that on October 18, 1965, at about 1:30 p. m., he was in a tavern near 67th Street and Cottage Grove Avenue; he ordered a bottle of beer and paid for it out of a dollar bill; he had $26 in his pocket. At this time the defendant came near his seat in the bar and began talking about a television set; he asked the witness if he would be interested in buying a color set for around $100. When the witness said he would want to see the set, the defendant said if the witness had a car and would drive him home he could see it.

■ The witness said he would not have the money until after 3:00 p. m.; the defendant said they could go and look at it anyway, so the witness drove them to 71st Street and an alley, as the defendant directed, to a two-flat building which the defendant said he owned. The defendant told the witness to give him the car keys so he could unlock the trunk to put the television set in it; the witness got out of the car, then the defendant said it wouldn’t be necessary, so they returned to the car, and the defendant said, “Give me the money.” The witness hesitated, and the defendant went to the driver’s side of the car, put his hand in his pocket on the right side, and said, “Give me the money.” (The witness indicated that the hand in the pocket formed a point.) The witness then gave the defendant a $20 bill and five singles, and the defendant ran.

The witness then drove around to find a policeman and saw a squad car at 67th Street and Cottage Grove; he told the police what had happened, and they said they would follow him in the squad car back to the alley. As they were driving south, the witness noticed a person hiding his head in a cab; the police stopped the cab and found the defendant on the floor with his head covered. When they took him out of the cab he offered to give back the money he had taken and asked the witness not to press charges. The officer searched the defendant and took a long yellow knife from his person. The police asked the defendant at the police station if he took the money and he said he did.

Officer Alan Schuman testified that on October 18, 1965, he was in his squad car when the complaining witness approached him and told him of the robbery; that he followed the complainant’s car in his vehicle, and the complainant pointed out a cab in which the defendant was riding; they stopped the cab and he placed the defendant under arrest. When he searched the defendant he found a knife which was introduced by the State as Exhibit No. 2. Outside the cab the defendant tried to return to the complainant the money he admitted having taken from him — a $20 bill and five ones. The officer testified that the complaining witness told him he believed the defendant had a gun at the time; that he did not see it, but was under the impression that there was a gun held in defendant’s pocket.

The defendant testified in his own behalf that he lived in Morgan Park; that he was in the tavern in question when the complaining witness was there; that he was talking to someone else about the television and the complainant said he wanted it. The defendant said he told the complainant he would charge him $50 for the set and Gilbert said he did not have that much with him, but would give him $25 then and $25 when his wife came from work. He said the complainant gave him $25 and they drove to 71st Street and Maryland Avenue; he told the complainant that he had to get the television set from his cousin who lived about seven blocks away, and that when he caught the cab he told the complainant to wait there for him. In response to questioning by his counsel the defendant testified that in “approximately” 1947 he was convicted for auto theft and spent time in the penitentiary. He said on direct examination that the complainant didn’t know he had a knife “or nothing else, my hand was in my pocket, . . .” On cross-examination he said, “I never had my hand in my coat pocket.”

Opinion : The first question to be discussed is whether or not the evidence introduced is sufficient to prove the defendant guilty beyond a reasonable doubt. The defendant cites People v. Coulson, 13 Ill2d 290, 149 NE2d 96, on the basis that the evidence of the complaining witness was improbable and should not have been believed. In fact, analyzing the evidence in the instant case, it would seem it is the testimony of the defendant which should be regarded as unbelievable. To quote from Coulson, this testimony “taxes the gullibility of the credulous.” The defendant testified that the complaining witness had given him the money in the tavern, and that he then went with the complainant in his car to look at the television set; however, instead of going to the place where the set was supposed to be, he went to 71st and Maryland. He then took a cab to 68th and Evans to pick up the set, instead of having the complaining witness drive him there, and was later arrested while in the cab. The evidence of the complaining witness is believable and, in our opinion, was properly accepted by the court. The evidence in the record is sufficient to prove the defendant guilty beyond a reasonable doubt.

The defendant also argues that the complaining witness failed to prove that there actually was an armed robbery (as distinguished from a robbery) inasmuch as there was no evidence that Gilbert saw any weapon at the time of the robbery. The police officer, however, testified that when defendant was arrested a search of his pockets produced a yellow-handled knife, and at that time the defendant admitted, in the officer’s presence, that he had taken the money and offered to give it back to the complainant, and asked him not to prosecute.

In support of his contention the defendant cites People v. Binion, 80 Ill App2d 130, 225 NE2d 485, which is not at all in point.

The defendant argues that the prosecutor erred in asking the defendant if a Mr. Green (the bartender who defendant testified had served the complaining witness) or the tavern owners (who were present when Gilbert allegedly gave defendant $25) were in court, to both of which questions the defendant answered no. No objection was made to the questions, and we do not believe, even if an objection had been made, that the evidence was so prejudicial as to require a reversal.

The case of People v. Smith, 74 Ill App2d 458, 221 NE 2d 68, cited by the defendant, goes far beyond the situation before us and is not applicable.

Finding no error in the record, the judgment of the Circuit Court is affirmed.

Affirmed.

DRUCKER and ENGLISH, JJ., concur.

       Ill Rev Stats 1965, c 38, § 18-l(a). A person commits robbery when he takes property from the person or presence of another by the use of force or by threatening the imminent use of force.
      Ill Rev Stats 1965, c 38, §18-2(a). A person commits armed robbery when he violates Section 18-1 while armed with a dangerous weapon, (b) Penalty. A person convicted of armed robbery shall be imprisoned in the penitentiary for any indeterminate term with a minimum of not less than one year.