author: JUSTICE BARRY

text:
    ALVIN WEBB, a Minor, by Barbara Johnson, his Mother and Next Friend, Plaintiff-Appellant, v. MICHAEL TONCRAY, Defendant and Cross-Plaintiff.—(PAUL MEEKS, Defendant and Cross-Defendant-Appellee.)
    Third District
    No. 81-173
    Opinion filed December 3, 1981.

      Michael J. Goldstein, of Chicago, for appellant.
    John J. McGarry, of Stefanich, McGarry & Wols, Ltd., of Joliet, for appellee.
   JUSTICE BARRY

delivered the opinion of the court:

On August 1, 1977, plaintiff Alvin Webb brought suit in the circuit court of Will County against Paul Meeks, driver of an automobile in which Webb was a passenger, and Michael Toncray, driver of another automobile, for personal injuries sustained by Webb in a collision of August 12,1975. A separate action was brought by Toncray against Meeks for Toncray’s injuries in the accident. Prior to the commencement of the jury trial, Toncray entered into a platform loan agreement with Webb, and Toncray was dismissed as a party defendant. The agreement provided that Webb would grant Toncray a covenant not to sue in exchange for Toncray’s loan of $9,000, which loan was to be repaid only to the extent that Webb’s recovery from Meeks exceeded $20,000.

With full knowledge of the agreement, the trial court ruled that no evidence relative to the loan agreement would be admitted at trial. The case proceeded to trial consolidated with the case of Toncray versus Meeks. At the completion of the trial, the jury returned a verdict in favor of Webb and awarded $6,000 in damages against Meeks. The jury further found for defendant Meeks in the case brought by Toncray. Meeks thereafter filed a motion in the trial court requesting that the $9,000 paid to Webb by Toncray pursuant to the loan agreement be set off against the $6,000 jury award. Meeks’ motion was granted, and Webb has appealed this ruling.

On appeal, Webb challenges the trial court’s ruling on two bases; first, that it is contrary to public policy, and second, that a retrial of the issue of damages should be granted so that the jury could be instructed on the existence of the loan agreement and its effect on a jury verdict.

We will first consider whether the trial court’s ruling on the motion for setoff, as applied to the facts of the case before us, is contrary to the public policy of Illinois. The Illinois Supreme Court has recently allowed setoffs in two cases involving loan agreements similar to the agreement in the instant case — Palmer v. Avco Distributing Corp. (1980), 82 Ill. 2d 211, 412 N.E.2d 959, and Popovich v. Ram Pipe & Supply Co. (1980), 82 Ill. 2d 203, 412 N.E.2d 519. In these companion cases, the court specifically reaffirmed the policy in Illinois against double recoveries. (Palmer, 82 Ill. 2d 211, 223, 412 N.E.2d 959, 965; Popovich, 82 Ill. 2d 203, 208, 412 N.E.2d 519, 521.) Against this policy, the court weighed the policy of construing agreements according to the intentions of the contracting parties. (Popovich, 82 Ill. 2d 203, 208, 412 N.E.2d 519, 520.) A third policy which the court considered is that of protecting the financial interest of nonsettling parties. (Palmer, 82 Ill. 2d 211, 224, 412 N.E.2d 959, 966.) In the instant case, plaintiff urges us to consider a fourth policy of encouraging out of court settlements. See Reese v. Chicago, Burlington & Quincy R.R. (1973), 55 Ill. 2d 356, 364, 303 N.E.2d 382, 386.

Plaintiff asserts that our consideration of these policies could result in a denial of setoff in the present case inasmuch as the supreme court in Palmer remarked in obiter dicta,

“[The court is] aware of those cases in which amounts of money received pursuant to settlements exceeded jury verdicts subsequently entered against joint tortfeasors. (See, e.g., DeLude v. Rimek (1953), 351 Ill. App. 466, 474-75, 115 N.E.2d 561; Price v. Wabash R.R. Co. (1961), 30 Ill. App. 2d 115, 117-18, 174 N.E.2d 5.) A loan agreement for an amount exceeding a jury verdict would present a question different from the one we decide today.” 82 Ill. 2d 211, 225, 412 N.E.2d 959, 966.

We are aware of no Illinois cases, decided since the supreme court first sanctioned the use of loan agreements (Reese v. Chicago, Burlington & Quincy R.R.), which have addressed the question left “unanswered” in Palmer. Nevertheless, upon due consideration of Illinois public policy, we have concluded that the mere fact that Meeks, the nonsettling defendant, has been found liable by the triers of fact and that setoff results in a zero dollar judgment against him does not dictate a result contrary to that reached in Palmer and Popovich. Initially, we note that the theory of recovery in a negligence suit, such as the personal injury cause of action in the present case, is that of compensation to the plaintiff — not punishment to the defendant. Therefore, plaintiff’s argument that setoff improperly allows defendant Meeks to “escape” paying damages is unconvincing. Next, we find that the overriding policy upon which Palmer and Popovich were decided is that double recoveries are not permitted in Illinois. The countervailing policies which plaintiff advances are secondary to the policy against double recoveries. In the present case, the jury determined that the plaintiff is entitled to recover $6,000 for his injuries. Toncray was willing to pay $9,000 to avoid further exposure that could potentially result were he to remain a party defendant in this cause. The fact that Toncray may have overestimated the amount of damages recoverable by Webb should have no effect on Meeks’ right, as a nonsettling defendant, to setoff.

Furthermore, the record on appeal, consisting merely of the common law record and a transcript of the hearing on defendant’s motion for setoff, does not support the plaintiff’s argument that the jury, in determining damages for Webb, was confused by Toncray’s participation in the trial. The jurors were properly instructed that they were to determine the amount of damages which would compensate the plaintiff once the jury found for the plaintiff on the issue of liability. The amount of damages thus determined — $6,000—appears to be clearly within the range of reasonable compensation based on evidence of plaintiff’s injuries as it appears in the record on appeal. It would be pure speculation to find, as plaintiff suggests, that the jury assumed that the damage determination should represent only that portion of total damages for which defendant Meeks was responsible.

We find no basis in law or fact for reversing the trial court’s determination that setoff is required in this case. We hold, therefore, that the trial court properly allowed defendant Meeks’ motion for setoff. As a result of our ruling, plaintiff retains Bi times the amount of damages which the jury determined was sufficient to compensate him for his injuries. Plaintiff Webb will not be heard to complain about the measure of damages recovered by him merely because Meeks is benefited by the voluntary payment of Toncray.

Having found no basis for reversing the trial court’s ruling on defendant’s motion for setoff, we briefly address the final argument raised by plaintiff on appeal. Plaintiff urges that we remand this cause for a new trial on the issue of damages. In support of this argument, plaintiff refers to the supreme court’s disposition in Palmer. In Palmer, evidence of the terms of the loan agreement was presented to the jury. This procedure is proper when such evidence is relevant to the motive or credibility of a witness, who knows of the existence of a loan agreement. See Palmer, 82 Ill. 2d 211, 226, 412 N.E.2d 959, 966 (citing Reese).

The Palmer court observed that where evidence of the terms of the agreement is admitted, then “[f]ull revelation ” 0 ° seems preferable to permitting jury speculation about an agreement’s precise terms.” (82 Ill. 2d 211, 226, 412 N.E.2d 959, 967.) Although the jury in Palmer was adequately informed of the terms of the agreement, the supreme court remanded the case for a new trial on damages because the jury was not thereafter instructed “that amounts retained pursuant to revealed settlements will be credited toward its verdict.” 82 Ill. 2d 211, 227, 412 N.E.2d 959, 967.

In Palmer, it was reasonable to find that the jury, knowledgeable of the terms of the agreement, might have believed that plaintiff’s total damages amounted to the sum previously paid in exchange for a covenant not to sue plus the sum awarded in the jury’s verdict. Failure to instruct the jury as to the effect of a setoff rendered the verdict vulnerable to attack on appeal.

Plaintiff argues that as a result of Palmer, full disclosure of loan agreements is required in every case. We do not agree. Although the record on appeal in the present case indicates that the issue as to admissibility of evidence of the loan agreement was not properly preserved for purposes of appeal, in the interest of justice we will consider it. The purpose of admitting evidence of the loan agreement at the trial is to allow the nonsettling defendant to expose the dismissed defendant’s bias against him and in favor of the plaintiff. Certainly, where the jury is informed of the existence of an agreement, full disclosure is required so as to preclude subsequent challenges to a verdict based on speculation as to what the determination of damages represents. In addition, full disclosure requires that the jury be instructed as to how offset is applied to the verdict. (Palmer, 82 Ill. 2d 211, 227, 412 N.E.2d 959, 966-67.) However, “in some cases there exists the possibility that a plaintiff will be prejudiced by the revelation of the loan-receipt agreement.” (Palmer, 82 Ill. 2d 211, 226-27, 412 N.E.2d 959, 967 (citing 1 J. Dooley, Modern Tort Law §26.16 (1977), and Palmer v. Avco Distributing Corp. (1979), 75 Ill. App. 3d 598, 609).) It is thus apparent that the Palmer court did not envision disclosure of loan agreements in every case.

Furthermore, it is improper to admit evidence of a loan agreement in a case where such evidence is not relevant. Thus, where, as in the present case, the lack of or extent of witness bias is obvious to the trier of fact, then the trial court may properly rule that the evidence of the loan agreement is inadmissible. See Harris Trust & Savings Bank v. Ali (1981), 100 Ill. App. 3d 1, 9, 425 N.E.2d 1359, 1365-66.

In the present case, the jury was not told of the existence of the loan agreement nor of its terms. The court’s pretrial ruling precluded any reference to the agreement. There is nothing in the record on appeal to indicate that the plaintiff objected to this pretrial ruling or that, in fact, any evidence of the agreement was admitted at the trial. Accordingly, it appears that the jury had no evidence tending to confuse their determination of total damages. Without knowledge of any amount previously paid by Toncray, the jury cannot be presumed to have believed that it was to find anything less than total damages in its verdict. (See Price v. Wabash R.R. Co. (1961), 30 Ill. App. 2d 115, 117, 174 N.E.2d 5, 6.) Plaintiff, in requesting a new trial on damages, urges this court to permit the jury to hear evidence of the loan agreement solely for the purpose of determining the amount of damages recoverable. This we refuse to do. Admitting evidence of the loan agreement for this purpose is improper, and we so hold. See Casson v. Nash (1978), 74 Ill. 2d 164, 381 N.E.2d 365; Harris Trust & Savings Bank.

The practical effect of the court’s ruling in Palmer, wherein disclosure of the loan agreement was properly admitted, is to permit the jury to apply setoff in arriving at their verdict. This aspect of the Palmer ruling does not, however, change Illinois law as applied to cases wherein a loan agreement is not disclosed to the jury. With respect to covenants not to sue, the rule in Illinois is that the court — not the jury — should apply setoff once the jury has determined total damages without knowledge of the agreement between plaintiff and the dismissed defendant. (De Lude v. Rimek (1953), 351 Ill. App. 466, 115 N.E.2d 561; Haupt v. Golick (1965), 57 Ill. App. 2d 481, 206 N.E.2d 542; Schumacher v. Rosenthal (7th Cir. 1955), 226 F.2d 946.) This procedure is not vulnerable to attack on appeal merely because the amount of damages determined by the jury happens to be less than the amount paid by the dismissed defendant for a convenant not to sue. Kurth v. Amee, Inc. (1972), 3 Ill. App. 3d 506, 510, 278 N.E.2d 162, 164-65; De Lude, 351 Ill. App. 466, 474, 115 N.E.2d 561, 565.

Inasmuch as the loan agreement in the instant case is indistinguishable from a covenant not to sue with respect to amounts recovered by the plaintiff up to $20,000, we perceive of no reason to formulate a new rule which would require a new trial on damages so as to permit the jury to apply setoff in arriving at a verdict merely because a loan agreement contains a reimbursement provision which does not appear in a standard covenant not to sue. We find nothing in Palmer and Popovich to compel a different result.

For the foregoing reasons, we affirm the action of the trial court in allowing Meeks’ motion for setoff and denying plaintiff’s motion for a new trial on damages.

Affirmed.

ALLOY and STOUDER, JJ., concur.


source: Caselaw Access Project

author: PRESIDING JUSTICE SCOTT

license: Public Domain

text:
      In re MARRIAGE OF STEVE W. McBRIDE, Petitioner-Appellant, and LUCILLE D. McBRIDE, Respondent-Appellee.
    Third District
    Nos. 81-341, 81-183 cons.
    Opinion filed December 3, 1981.
    Edward C. Moehle and Susan Hickman Butler, both of Moehle, Smith & Day, Ltd., of Pekin, for appellant.
    Robert L. Metzler, of Pekin, for appellee.
   PRESIDING JUSTICE SCOTT

delivered the opinion of the court:

On February 2, 1981, Steve W. McBride filed a petition for dissolution of marriage. His wife,. Lucille D. McBride, filed an entry of appearance and waiver and a judgment of dissolution was entered on February 11, 1981. Custody of the parties’ minor child, Kelly McBride, was granted to Steve.

On March 20, 1981, Lucille, pursuant to section 72 of the Civil Practice Act (111. Rev. Stat. 1979, ch. 110, par. 72) filed a petition to set aside the judgment of dissolution of marriage. The petition alleged fraud in that Steve had falsely informed her that no medical insurance would be available for the minor child unless he was given custody and that as a result of such statement she relinquished custody. Lucille further alleged that subsequent to the entry of judgment of dissolution of the marriage she learned that Steve’s statement regarding insurance coverage was false. After hearing on the section 72 petition the trial court found “that there was a misunderstanding of the facts between the petitioner and the respondent as to the issue of child custody and other related matters.” The trial court ordered that the judgment of dissolution of marriage be set aside.

Steve filed a timely notice of appeal. Subsequently Lucille petitioned the trial court for attorney fees in the sum of $1,750 for prosecution of this appeal. She was granted an interim fee of $1,000. Further facts will be set forth as they become pertinent to the determination of the issues presented in this appeal.

The first issue to be considered is whether the trial court’s finding that there was a “misunderstanding of the facts” between the parties will support a section 72 order setting aside a judgment of dissolution of marriage.

In addressing the issue it should be noted that Lucille in her section 72 petition alleged fraud in the procurement of the dissolution of marriage and the award of the minor child’s custody to Steve. Further salient and pertinent facts to be noted are that Lucille and Steve over a period of several days discussed the terms of a separation agreement which they reduced to writing. They next met with Steve’s attorney, Mr. Kasley. During the hearing on the section 72 petition, Lucille presented only her testimony. Steve’s testimony was a denial that he made any statement to the effect that the minor child would be covered by his insurance only if he, Steve, the insured under an employer-sponsored medical insurance program, was granted custody of the child. It was Steve’s testimony that he was advised by a public relations man of his employer that reimbursement payments from the insurance company would take longer if the dependent was in the custody of the nonemployee spouse. Attorney Kasley testified that there was no conversation about medical insurance for the minor child during the conference between the parties which was held in his office. He further testified that he on three occasions advised Lucille that she had the right to have counsel represent her or at least represent her to the extent of reviewing the proposed judgment and other documents. Lucille at all times expressed a desire to proceed without counsel.

With these additional facts we will again address the issue as to whether the trial court’s action in granting relief to Lucille pursuant to her section 72 petition was correct. A case strikingly similar to the instant one is Held v. Held (1979), 73 Ill. App. 3d 561, 392 N.E.2d 169. In Held the reviewing court recognized that amicable settlements between divorcing parties are favored and that the burden to prove fraud is particularly heavy when a party seeks to modify or vacate an agreement incorporated into a marriage dissolution judgment on the ground that the agreement was induced by fraud.

The case of Held also recognizes the requirements or elements necessary to establish fraud as were set forth in the case of Roth v. Roth (1970), 45 Ill. 2d 19, 256 N.E.2d 838. In Held it was stated:

“For a misrepresentation to constitute fraud, it must consist of a material false statement which is known to be false by the party making it, made to induce the other party to act in reliance on the truth of the statement, and actually acted upon by that other party.” 73 Ill. App. 3d 561, 565, 392 N.E.2d 169, 172-73.

Lucille alleges that Steve told her that their minor child would not be covered by medical insurance unless he (Steve) had custody of the child and that she relied upon this statement and therefore agreed to relinquish custody of the child. If the above allegation had been proved, then such misrepresentation would constitute fraud; however, the record reveals that Lucille never proved the alleged misrepresentation by clear and convincing evidence. We will not again set forth a recitation of the testimony, but deem it suffice to say that Lucille’s testimony supported the alleged misrepresentation but it was countered and specifically denied by both Steve and attorney Kasley. We note that the trial court ordered the judgment of dissolution of marriage be set aside but in the order doing so the court made only one finding, to-wit, “a misunderstanding of facts” between the parties. We cannot equate a “misunderstanding of facts” with a misrepresentation which constitutes fraud, since as stated in Held the party charged with fraud must knowingly make a false statement. The evidence in this case fails to establish the fact that Steve made the complained-of statement and further certainly does not establish that the same was made by Steve knowing it to be false. We have not, however, relied solely on the trial court’s finding in determining whether or not fraud was committed by Steve, but have gone further and examined the record. Such examination reveals that Lucille, who had the burden of proving fraud, failed to sustain the burden by clear and convincing evidence. Fraud cannot be established by mere suspicion. (See Held v. Held (1979), 73 Ill. App. 3d 561, 392 N.E.2d 169.) The order of the trial court setting aside the judgment of dissolution of marriage in the instant case cannot be sustained.

We are further confronted with the issue as to whether a trial court may determine prospective attorney fees for conducting an appeal after appellate court jurisdiction has attached.

We are confronted with an issue which may well be determined by our supreme court in the not too distant future, since pending on appeal in that court is the case of In re Marriage of Wright, Docket No. 54686. In In re Marriage of Wright the appellate court (1st Dist., 2d Div.) held that the pertinent statute (Ill. Rev. Stat. 1979, ch. 40, par. 508(a)) which governs the award of attorney fees for appeal does not empower the trial court to make such awards after appellate jurisdiction has attached. (See In re Marriage of Wright (1980), 92 Ill. App. 3d 708, 415 N.E.2d 1196.) Even though the In re Marriage of Wright is on appeal, we will not presume that the issue now under consideration will be reached and determined, and therefore this court will address it.

We are aware of this court’s decision in the case of In re Sharp (1978), 65 Ill. App. 3d 945, 950, 382 N.E.2d 1279, 1283, in which it was determined that there was no statutory authority for the prospective award of attorney fees for the prosecution or defense of an appeal.

The opinion in the case of In re Sharp was filed approximately three years ago and slightly over one year subsequent to the effective date of the Illinois Marriage and Dissolution of Marriage Act. Since the filing of the Sharp opinion this court has had the benefit of the views and reasoning of other courts of review and has consequently become disenchanted with that portion of the Sharp decision pertaining to the award of attorney fees for purposes of appeal. Permitting the filing of a notice of an appeal to serve as a bar to an award of attorney fees for the purpose of defending an appeal is fraught with danger and highly undesirable results. It can be envisioned that the denial of an award of attorney fees could be tantamount to the foreclosure of a party’s right to defend an appeal. Even if such result was not so drastic, the defense of an appeal by an attorney who has no assurance as to the amount of compensation, if any, he will receive may well serve to dilute the amount of energy and enthusiasm that is expected of an attorney. Such an observation is not intended to reflect upon the character of the members of the legal profession, since the profession is noted for its representation of indigent litigants. Nevertheless, it is a well-known adage that a lawyer’s time, education and service constitutes his stock in trade, and when the same is expended on behalf of a client he can rightfully expect to be compensated.

The record in the instant case discloses that Lucille was totally without funds to defend this appeal. It further reflects that a basis was established in the trial court for the award of fees. For the reasons stated, we believe that the trial court correctly relied on the case of Giammerino v. Giammerino (1981), 94 Ill. App. 3d 1058, 419 N.E.2d 598, which held that the trial court after notice of appeal has been filed retains jurisdiction to award attorney fees for the defense of an appeal. In Giammerino the reviewing court concluded that the trial court retained jurisdiction to hear matters independent of and distinct from the issues involved in the appeal and hence could entertain matters that are purely collateral and supplemental to the appeal. In Giammerino the court held that the awarding of attorney fees falls in the “collateral matters” category since such action does not interfere with an impending appeal and is not dependent in any respect upon the outcome of the appeal.

For the reasons set forth the order of the Circuit Court of Tazewell County setting aside the judgment of dissolution of marriage is reversed; however, the trial court’s order awarding attorney fees for purpose of defending this appeal is affirmed.

Reversed in part and affirmed in part.

STOUDER and HEIPLE, JJ., concur.


author: JUSTICE STOUDER

text:
      In re MARRIAGE OF GERALD R. RIMMELE, Petitioner-Appellee, and KATHLEEN A. RIMMELE, Respondent-Appellant.
    Third District
    No. 81-69
    Opinion filed December 7, 1981.

      Gray, Kleczek & Kielian, P. C., of Joliet, for appellant.
    John F. Cirricione, of Cirricione, Block, Krockey & Cernugel, P. C., of Joliet, for appellee.
   JUSTICE STOUDER

delivered the opinion of the court:

Petitioner Gerald R. Rimmele filed a petition for dissolution of his marriage to respondent Kathleen A. Rimmele. After the denial of respondent’s petition for temporary allowance, the cause proceeded to a bifurcated hearing in the circuit court of Will County. Respondent appeals from the judgment of the court regarding the disposition of marital property and the denial of maintenance and attorney’s fees.

The Rimmeles were married in 1970 and have no children. Petitioner, 37, is in good health and is employed by Arnaco Chemical Company, where he earns approximately $24,000 a year as a maintenance mechanic. Respondent, 30, is epileptic and had been employed for a short while by the International Order of Foresters, where she had earned nothing as a commission salesperson. Petitioner has been employed by Arnaco for 13 years, while respondent has only worked sporadically for minimal wages. Her most recent employment prior to separation was a $2.60-per-hour clerk at a donut shop. Additional facts will be discussed in conjunction with the issues to which they are germane.

Regarding the disposition of marital property, respondent advances two contentions. She initially contends that the trial court erred in its valuation of the property, and subsequently contends the court erred in its percentage distribution and manner of payment.

Respondent’s contention of error regarding the valuation of marital property concerns petitioner’s pension and stock option plans. Considering first the valuation of the pension plan, the trial court’s task was to determine its present value. (See In re Marriage of Hunt (1979), 78 Ill. App. 3d 653, 662, 397 N.E.2d 511, 519.) The parties stipulated to present values at discount rates ranging from 5% to 12%. The court elected to use the figure corresponding to 8%, and respondent argues 5% would produce a more accurate valuation.

Any discussion of the approaches to the selection of a discount rate for purposes of calculating present value would be unsupported by the record, as would econometric forecasts of interest rates for the relevant period. Under these circumstances, and considering the long-term secular trend of interest rates, we find no basis for characterizing the court’s decision as error.

Considering next the valuation of petitioner’s profit-sharing plan, the trial court arrived at a net value of the plan after allowing for petitioner’s incremental income tax liability. This liability was triggered when petitioner unilaterally withdrew over $28,000 from the plan which, after setting aside $10,000 for taxes, he used to gamble, take a weekend trip, and purchase a vehicle for his brother. Respondent argues that, under these circumstances, the tax liability should not have been deducted from marital property.

In re Marriage of Emken (1981), 86 Ill. 2d 164, 427 N.E.2d 125, considered the appropriateness of reducing the value of marital property by the amounts which the respondent would be required to pay in income tax on a Keogh plan if he were to terminate it, and the penalties which would be sustained in the event certificates of deposit were withdrawn before maturity. The court stated that “[t]here is no evidence in this record that either action was made necessary by reason of the judgment entered in this case.” (In re Marriage of Emken (1981), 86 Ill. 2d 164, 167, 427 N.E.2d 125.) It concluded that it was improper to reduce the valuation in anticipation of the possible losses. While the tax liability herein is an established reality, it likewise was not occasioned by the judgment in this cause; moreover, it was the result of unnecessary unilateral action. Respondent did not share in the fruits of the withdrawal, and we find, under these specific circumstances, she should not share in paying its concomitant incremental tax liability. As this cause must thus be remanded, we direct the trial court to include the entire amount of the withdrawal as marital property.

Respondent’s second contention regarding the disposition of marital property is that the trial court erred in awarding her one-third of the marital estate, payable by petitioner at the rate of $100 per week. The court further ordered that the initial 104 payments be payments of principal only, thus extending to petitioner an interest-free loan of respondent’s share of marital property.

The disposition of marital property is governed by section 503(c) of the Illinois Marriage and Dissolution of Marriage Act (hereinafter the Act) (Ill. Rev. Stat. 1979, ch. 40, par. 503(c)), which provides, inter alia, that the court “shall divide the marital property without regard to marital misconduct in just proportions considering all relevent factors, including:

(1) the contribution or dissipation of each party in the acquisition, preservation, or depreciation or appreciation in value, of the marital and non-marital property, including the contribution of a spouse as a homemaker or to the family unit;
(2) the value of the property set apart to each spouse;
(3) the duration of the marriage;
(4) the relevant economic circumstances of each spouse when the division of property is to become effective ° 0 e;
# # O
(7) the age, health, station, occupation, amount and sources of income, vocational skills, employability, estate, liabilities, and needs of each of the parties;
» # t*
(9) whether the apportionment is in lieu of or in addition to maintenance; and
(10) the reasonable opportunity of each spouse for future acquisition of capital assets and income.”

In the case at bar, the court balanced petitioner’s contributions, financial and to the family unit, with respondent’s contribution as a homemaker in a childless home. Neither party received any nonmarital property, and the duration of the marriage was 10 years. The parties’ relative economic circumstances were that respondent was to receive a stream of cash payments, while petitioner would retain almost all remaining marital assets and liabilities, including the furnished marital home and its mortgage. Respondent’s health was below average and her skills and employability marginal, while petitioner’s situation was positive in these areas. The apportionment is apparently in lieu of maintenance, and the opportunity to acquire future assets and income is good for petitioner, but poor for respondent.

It is clear the Act does not require an equal division of marital property. (In re Marriage of Aschwanden (1980), 82 Ill. 2d 31, 411 N.E.2d 238.) Based upon this fact and our review of the facts and circumstances herein, we find no abuse of discretion in an award of one-third of the marital property. We must note, however, that respondent received, not the awarded third of the property, but a seven-year-old automobile that did not run and a stream of cash. The record reveals ownership of no other assets. While a stream of payments might well be appropriate in another situation, we find the court abused its discretion in this cause. We therefore direct the court to order a lump-sum distribution to respondent, reflecting the marital property she has already received.

Respondent next contends that the trial court erred in failing to award her maintenance. The granting of maintenance is governed by section 504(a) of the Act (Ill. Rev. Stat. 1979, ch. 40, par. 504(a)), which provides, inter alia:

“In a proceeding for dissolution of marriage * * * the court may grant a maintenance order for either spouse, only if it finds that the spouse seeking maintenance:
(1) lacks sufficient property, including marital property apportioned to him, to provide for his reasonable needs, and
(2) is unable to support himself through appropriate employment 0 * * or
(3) is otherwise without sufficient income.”

While the Act does not define “reasonable needs,” one benchmark is whether an award is sufficient to maintain the spouse seeking maintenance in the standard of living established during the marriage. In re Marriage of Simmons (1980), 87 Ill. App. 3d 651, 409 N.E.2d 321; In re Marriage of Pieper (1979), 79 Ill. App. 3d 835, 398 N.E.2d 868; Shive v. Shive (1978), 57 Ill. App. 3d 754, 373 N.E.2d 557, appeal denied (1978), 71 Ill. 2d 606.

In the case at bar, the parties enjoyed a modest but comfortable standard of living. They lived in a series of homes which they owned and accumulated significant assets, considering their income. At the time of hearing, respondent had no earnings and no individual assets, income producing or otherwise. Her ability to support herself through appropriate employment is dubious for lack of skills and good health. We therefore find the court abused its discretion in denying respondent maintenance. On remand we direct the court to grant maintenance in such amount and for such a period of time as it finds equitable in light of our other holdings herein.

Respondent last contends the trial court erred denying her request for attorney’s fees. The granting of attorney’s fees is governed by section 508(a) of the Act (Ill. Rev. Stat. 1979, ch. 40, par. 508(a)), which provides, inter alia:

“The court * * * after considering the financial resources of the parties, may order either spouse to pay a reasonable amount * * * for the costs and attorney’s fees necessarily incurred by the other spouse °

For the reasons heretofore set forth in our previous discussion, we find the trial court abused its discretion in denying respondent attorney’s fees. We therefore direct the court to order said fees to be paid by petitioner, and respondent accordingly reimbursed.

Accordingly, the judgment of the circuit court of Will County is affirmed in part, reversed in part, and remanded with directions.

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

ALLOY and BARRY, JJ., concur.


text:
    AUTO-OWNERS INSURANCE COMPANY, Plaintiff-Appellant, v. FRANK CORRIE et al., Defendants-Appellees.
    Third District
    No. 81-217
    Opinion filed December 7, 1981.
    Leo J. Schwamberger and Scott Picco, both of Leo J. Schwamberger, Ltd., of La Salle, for appellant.
    Andrew J. O’Conor and Russell R. Eggert, both of O’Conor, Karaganis & Gail, Ltd., of Ottawa, for appellees.
   JUSTICE STOUDER

delivered the opinion of the court:

This declaratory judgment action was brought by plaintiff, Auto-Owners Insurance Company, in order to determine the obligation of the defendant, Pekin Insurance Company, to provide coverage and assume the defense of its insureds, defendants Frank and Ann Corrie, under a homeowners insurance policy. The circuit court of La Salle County found that Auto-Owners was obligated to provide coverage and a defense for the Corries and that Pekin was not so obligated.

On January 23, 1978, defendant, Rosemary Gregory, fell on an allegedly snow- and ice-covered public sidewalk adjacent to the east side of the Handy Wash Self Service Laundry in Ottawa, Illinois. At the time, Mrs. Gregory was a business invitee upon the premises. Subsequent to the accident Mrs. Gregory filed a law suit to recover damages for the personal injuries she had allegedly suffered.

The laundromat building houses not only a laundromat but an apartment located on its west side. At the time of the accident, defendants, Frank and Ann Corrie, resided at this apartment rent-free in return for acting as managers and operators of the laundromat. The Corries were employed in this capacity by Dennis Connors, the owner of both the laundromat and the apartment.

The trial court concluded in its specific findings of fact that the removal of ice and snow from the sidewalk where the underlying tort had allegedly occurred was accomplished by the hiring of neighborhood boys or a neighbor with a small tractor who were paid by the owner Dennis Connors. In those instances where others were not hired, the Corries removed the snow and they too were paid for their services by the owner. In addition, the court found that the primary reason for the removal of snow and ice from the sidewalk was to facilitate entry into the laundromat. The use of a portion of the walk for access to the Corries’ private residence was incidental to its primary use as an entryway to the laundromat.

Count I of Mrs. Gregory’s complaint alleged that she fell on an unnatural accumulation of snow and ice due to several negligent acts or omissions of Frank and Ann Corrie in their capacity as managers and operators of the laundromat. In count 2, Mrs. Gregory sought damages from the owner of the laundromat, Mr. Connors, on a respondeat superior theory. She alleged that Mr. Connors was liable because of the negligent acts or omissions of his agents, employees or servants, Frank and Ann Corrie.

Dennis Connors was insured under a business liability policy with plaintiff, Auto-Owners Insurance Company, covering the Handy Wash Laundromat. Frank and Ann Corrie were insured with defendant, Pekin Insurance Company, under a homeowners insurance policy providing coverage for their apartment.

Auto-Owners assumed the defense of all defendants in the personal injury case. Pekin has consistently denied coverage. Auto-Owners began this declaratory judgment action seeking to require Pekin to provide coverage and assume the defense of the Corries.

On April 10,1981, the trial court ruled that the plaintiff, Auto-Owners Insurance Company, was obligated to defend Frank and Ann Corrie and to pay any judgment rendered against them in the underlying personal injury suit. The court further found that Pekin Insurance Company owed no duty to the Corries either to defend or indemnify them for any judgment rendered against them.

The following issues have been presented for review: (1) Whether the trial court’s findings of fact are against the manifest weight of the evidence; and (2) whether the snow and ice removal activities of the Corries fall within the “business pursuits” exclusion of their homeowners insurance policy.

Any conflict in the testimony at trial was resolved by the circuit court in its detailed findings of fact. After reviewing the record, we see no justification in reweighing the evidence and concluding otherwise. The trial court’s findings of fact are not without support, and, therefore, they are not against the manifest weight of the evidence. Ideal Plumbing Co. v. Shevlin-Manning, Inc. (1981), 96 Ill. App. 3d 207, 421 N.E.2d 562.

Pekin’s denial of coverage is premised upon an exclusion in its homeowner’s policy which states that the policy will not apply to bodily injury or property damage arising out of business pursuits except for those activities which are ordinarily incident to nonbusiness pursuits.

This type of exclusion was the subject of litigation in State Farm Fire & Casualty Co. v. Stinnett (1979), 71 Ill. App. 3d 217, 389 N.E.2d 668. In that case, the court found a farmer’s activity of mowing roadside weeds to be a business pursuit and not ordinarily incident to a nonbusiness pursuit. Therefore, the injuries resulting from that activity were excluded from coverage under his homeowners insurance policy. Mowing roadside weeds to prevent them from spreading into the fields was a firmly established business activity in the area, and the fact that this activity resulted in an aesthetic benefit to the farm did not transform it into an activity ordinarily related to a nonbusiness pursuit.

As to what activity constitutes a business pursuit, it appears as if a majority of the courts have taken a restrictive view, stating that a business pursuit denotes a regular or continuous activity for the purpose of earning a livelihood. A minority of the courts have taken a broader view, indicating that a business pursuit includes every activity which is profit motivated. Annot., 48 A.L.R.3d 1096 (1973).

The activity at issue in this case was a business pursuit in that the Corries’ laundromat management duties were continuous and for the purpose of providing at least a portion of their livelihood. As a part of their responsibilities they sometimes saw that accumulations of snow and ice were removed from the sidewalk fronting the entryways of the laundromat. Simply because this activity facilitated entry into their apartment does not mean it was an activity ordinarily related to a nonbusiness pursuit. In order for that to be the case, the primary reasoning behind the activity would have to be completely personal and not related in any way to earning a living. However, the fact is that the Corries’ were paid whenever they removed snow or ice from the sidewalks surrounding the laundromat and they never would have been involved in this activity had they not been managers and operators of the laundromat.

One subsidiary issue need be only briefly discussed. When an action is filed against an insured and coverage is a possibility, however, not necessarily a certainty, the insurance company has two alternatives. It can either defend under a reservation of rights or seek a determination of its rights by filing a declaratory judgment action. Ayres v. Bituminous Insurance Co. (1981), 100 Ill. App. 3d 33, 424 N.E.2d 1316.

A declaratory judgment action was filed in this case and therefore any requirement Pekin may have had to defend was satisfied. It is of no legal significance that Auto-Owners instituted this declaratory judgment action. The significance lies in the existence of the action itself and not in who initiated it. Ayres v. Bituminous Insurance Co. (1981), 100 Ill. App. 3d 33, 424 N.E.2d 1316.

For the foregoing reasons the judgment of the circuit court of La Salle County is affirmed.

Affirmed.

ALLOY and BARRY, JJ., concur.


author: JUSTICE ALLOY

text:
    HARRY HARTKE, Plaintiff-Appellant, v. RONALD CONN, Defendant-Appellee.
    Third District
    No. 81-292
    Opinion filed December 7, 1981.
    Ronald E. Boyer, of Fleming, Boyer & Strough, of Watseka, for appellant.

      Frank J. Simutis, of Ackman, Marek, Boyd, Simutis & Bigott, Ltd., of Watseka, for appellee.
   JUSTICE ALLOY

delivered the opinion of the court:

Plaintiff Harry Hartke appeals from the judgment of the circuit court in favor of defendant Ronald Conn in Hartke’s declaratory action against Conn. In the declaratory judgment action, Hartke had sought to have a written lifetime lease between the parties declared invalid and unenforceable. The circuit court upheld the lifetime crop-share lease. Consolidated for trial with the declaratory action was a forcible entry and detainer action, in which Hartke sought damages for an alleged breach by Conn of the written lease. Recovery was denied by the court in that action as well, with judgment entered on Conn’s counterclaim for damages under the written lease. While no appeal is taken by either party from the forcible entry and detainer judgment, that action is implicated in this appeal. On appeal, the plaintiff Hartke contends that the written lease between the parties was invalid under the Statute of Frauds and also that such defense was properly pleaded by him in the declaratory judgment action. Alternatively, Hartke argues that even if the lease is enforceable, it created only a tenancy at will.

The record discloses that in 1963, Ronald Conn began farming two tracts of farmland in Iroquois County. One of the tracts belonged to Theodore Hartke, brother of plaintiff, and the other belonged to plaintiff Harry Hartke. From 1963 until 1973, Conn farmed the land as a tenant, under an oral year-to-year crop-share lease with the Hartkes. Sometime in the early part of 1973, the parties, including Harry Hartke’s wife, Cora, who owned no interest in either of the farms, began discussing a longer term lease. The discussions included the Hartke’s attorney. After their attorney and Conn had worked out the terms of the lease, on June 23, 1973, Conn went to the Hartke’s home for the purpose of executing the written lease. The written lease, which now forms the subject of this action, was executed by Cora Hartke, Harry Hartke’s wife, on behalf of Harry and his brother Theodore. Theodore Hartke was present at the time of the signing, but could not sign due to a stroke he had previously suffered. Harry Hartke was outside, doing chores, when the lease was executed. Cora Hartke signed each brother’s name and then signed her own name to the lease. It is undisputed that she had no interest in the farmland subject of the lease. It is also undisputed that at the time she signed the lease on behalf of her husband and Theodore she had no written authority from them to act as their agent in the matter. The evidence did disclose, however, that Cora Hartke had executed checks for her husband and that she had taken an active part in the negotiations for the lease. The written lease provided for a 50-50 crop-share arrangement between the parties and was to be effective from January 1, 1973, through the lifetime of the lessee Ronald Conn.

Cora Hartke informed her husband Harry that night that she had signed the lease for him during the day. No comment and no objection was made by Harry Hartke to that procedure either that day, or for years thereafter. In fact, Conn farmed the properties under the written lifetime lease from 1973 until 1979, when a dispute arose between the Hartkes and him. Harry Hartke had inherited his brother’s tract of land in 1975. The 1979 dispute centered upon an accounting for grain between the parties. The Hartkes believed that Conn had sold some grain that belonged to them, under the lease terms. During that time, Hartke requested that his attorney prepare two cash-rent leases, with one-year terms, for the two parcels of land. The one-year leases were presented to the defendant, who refused to sign them, not wishing to affect in any way the written lease that was executed in 1973.

Thereafter, on November 2,1979, plaintiff Hartke caused a notice to quit to be served upon the defendant Conn. The notice to quit stated that Conn was in default on the lease by his failure to account for the crops harvested. It informed Conn that Theodore Hartke, Harry Hartke and Cora Hartke were terminating the lease with Conn. It was signed by Alexander Edgar, attorney for Harry and Cora Hartke.

On May 27, 1980, a forcible entry and detainer action was filed by Harry Hartke against Ronald Conn, requesting possession of the farmland. Subsequently, on October 29, 1980, Hartke filed his declaratory judgment action, seeking a declaration of the parties’ rights under the written instrument of June 1973. In the complaint, Hartke alleges that the written lease was not signed by him or by his brother, Theodore. The complaint further alleges that Cora Hartke was not the agent of either of the brothers when she signed the lease for them in 1973. Harry Hartke sought in the action to have the written lease declared invalid and unenforceable, and to enforce allegedly existing year-to-year oral leases. Plaintiff Hartke, on December 8,1980, filed an amended complaint in the forcible entry and detainer action. In it Hartke alleged the existence of the written lease, though signed only by Conn. Further, Hartke alleged that the defendant violated the written lease in specified particulars and that the violations constituted a breach of the lease. It is also alleged in the amended complaint that a notice of forfeiture and demand were served upon the defendant Conn on or about November 2, 1979, and that the defendant refused to give up possession. Attached to the amended complaint was the written 1973 lifetime lease and a copy of the notice to quit. While the record is not before us from the forcible entry and detainer action, the above facts relating to that action were set forth in the record of the declaratory judgment action, either in the evidence or as part of the court’s findings of fact.

Ronald Conn filed an answer to the declaratory judgment action, admitting the execution and existence of the lease, but denying the matters as to unenforcibility. He also counterclaimed for damages, being the landlord’s share of expenses he had incurred. The counterclaim was met by an answer of Hartke, containing general denials only. The forcible entry and detainer action, along with the declaratory judgment action, were consolidated for trial.

After the trial, at which a number of witnesses testified, the court entered its judgment order. In the declaratory judgment action, the court found that there was a valid lifetime lease of the property, as per the written lease agreement of June 1973. The court found that Cora Hartke was acting as the agent for Harry Hartke and Theodore Hartke at the time she signed the lease agreement on their behalf. The court further found that Harry Hartke had, by his subsequent conduct, ratified the act of Cora Hartke in executing the written lease as his agent. As to the effect of the Statute of Frauds upon the lease agreement, the court found that the Statute of Frauds has not been properly pleaded by the plaintiff Hartke in his complaint. In the forcible entry and detainer action, the court concluded that there had been no breach of the written lease by defendant Conn and that Conn was entitled to a judgment on his counterclaim, being a claim for expenses incurred by him on Hartke’s account, totaling $6,039.36. The judgment order in the declaratory judgment action incorporated by reference the findings of fact and conclusions of law in the court’s memorandum opinion, issued earlier. From the judgment in the declaratory judgment action, the plaintiff files the instant appeal. He raises several questions with respect to the applicability of the Statute of Frauds, as well as an issue with respect to the nature of the lifetime lease.

We need not reach the various issues raised by plaintiff concerning the Statute of Frauds, for we find that the statute was satisfied. It provides:

“No action shall be brought to charge any person upon any contract for the sale of lands, tenements or hereditaments or any interest in or concerning them, for a longer term than one year, unless such contract or some memorandum or note thereof shall be in writing, and signed by the party to be charged therewith, or some other person thereunto by him lawfully authorized in writing, signed by such party. This section shall not apply to sales upon execution or by any officer or person pursuant to a judgment or order of any court in this state.” (Ill. Rev. Stat. 1979, ch. 59, par. 2.)

It has long been established that no particular form of memorandum is necessary to satisfy the statute. As noted by the Illinois Supreme Court in Kohlbrecher v. Guettermann (1928), 329 Ill. 246, 250, 160 N.E. 142:

“It is sufficient if there be a memorandum or note of the contract in writing, signed by the party to be charged or by someone by him duly authorized. Any kind of writing is sufficient to satisfy the statute, including hasty notes, memoranda in books, papers, letters and telegrams, if they contain on their face or by reference to other writings the names of the vendor and vendee, a sufficient description of the property to render it capable of identification, and the terms and conditions of the contract. [Citations.]”

It is also firmly established that:

“[T]he contract need not be on a single piece of paper, but the writings taken together must contain all the essential elements to show a contract between the parties so that there is no need of parol proof of any of the terms or conditions of the sale or the intention of the parties. [Citation.] It is necessary that where various writings are involved, they be connected in some definite manner. [Citation.] 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. [Citation.]” (MidTown Petroleum, Inc. v. Dine (1979), 72 Ill. App. 3d 296, 303-04, 390 N.E.2d 428.)

The question in that case was the enforceability of a real estate sales contract not signed by seller. However, there was a separate document, a direction to convey, which contained a legal description of the real estate and which was signed by the seller. In the direction to convey there was also reference to a deed of a specified date. Neither the deed nor the direction to convey contained the essential elements of price, terms, and conditions of sale. Those terms were contained in the real estate contract concerning the property, which contract was not signed by the seller. The court noted that all elements were present to satisfy the Statute of Frauds, if the three documents were taken together. It then stated the problem:

“The problem is whether the unsigned real estate sale contract is so connected with the signed writings to show by internal evidence that they relate to the same contract.
Commenting on such a situation, and citing Western Metals Co. v. Hartman Ingot Metal Co., Williston writes:
‘It is essential to examine specifically the papers not signed by the parties to be charged, which it is sought to incorporate with the paper or papers that are so signed, and determine whether the unsigned papers have been adopted by the signed papers.’ (4 Williston on Contracts §583, at 142 (3d ed. 1961).)
And Corbin, in commenting on the situation, writes:
‘All that is required is that these writings shall so clearly evidence the fact that a contract was made, and what are its terms, that there is no serious possibility that the assertion of the contract is false.’ 2 Corbin on Contracts §512, at 744-45 (1950).
The section entitled ‘Basic Contract Provisions’ of the real estate sale contract stated that ‘Seller agrees to sell and convey said premises by stamped trustee’s deed.’ It was pursuant to the real estate contract that defendant Dine’s attorney prepared all documents necessary to close the transaction which included the trustee’s deed made in accordance with defendant Dine’s prealtered ‘Direction to Convey.’ Based upon the record in this case, it could reasonably be inferred that the ‘Direction to Convey’ at the time of Dine’s original signature was based on the adoption of the then existing real estate sale contract.” (72 Ill. App. 3d 296, 304-05.)

The court then concluded from an examination of the documents and the established facts that the documents were connected, so as to together satisfy the Statute of Frauds. The court added:

“There is nothing in the record before us, nor have defendants made any allegations to indicate the contrary or to suggest that a fraud is being perpetrated.
To decide otherwise would be to undermine the very purpose for which the Statute of Frauds was enacted, i.e., the prevention of fraud. In Loeb v. Gendel (1961), 23 Ill. 2d 502, 505, 179 N.E.2d 7, the supreme court stated: ‘This court has long recognized the inequity of allowing one to utilize the Statute of Frauds to work an injustice or fraud, and has refused in such cases to permit its assertion as a defense.’ To allow defendants to successfully assert the Statute of Frauds as a defense in the present case would create such an injustice.” 72 Ill. App. 3d 296, 305.

In the present case, the two documents which together form a sufficient basis to satisfy the Statute of Frauds are the notice to quit, served on Conn in 1979, and the written lease, executed in 1973. The notice to quit is the signed writing, while the written lease sets forth the essential and necessary terms and conditions of the agreement. The former is signed by the attorney for Harry Hartke, on his behalf. There can be no question as to the attorney’s agency in executing the notice, as agent on behalf of Harry Hartke, for Hartke admitted it in his testimony at trial. Under cross-examination, Hartke unequivocally stated that Alexander Edgar was his attorney at the time Edgar signed and served the notice to quit. Hartke also testified that he wanted the document prepared and that he wished the written lease to be terminated. Such testimony, admitting the fact of agency, is a judicial admission. As noted in Bishop v. Crowther (1980), 92 Ill. App. 3d 1, 12, 415 N.E.2d 599:

“Judicial admissions are conclusive and may not be contradicted. They may be: (1) those made in pleadings or other documents, or " (2) testimonial. [Citation.] A testimonial judicial admission is one within the particular knowledge of the witness [citation] and, if the testimony is deliberate, clear and unequivocal as to facts within the party’s peculiar knowledge, he will be held to such testimony as a judicial admission. [Citation.]” (See also Vincent v. Wesolowski (1967), 87 Ill. App. 2d 477, 480, 232 N.E.2d 120.)

Judicial admissions are binding and conclusive and have the effect of withdrawing a fact or facts from issue and dispensing wholly with the need for proof of the admitted facts. (Gagne v. Village of LaGrange (1976), 36 Ill. App. 3d 864, 869, 345 N.E.2d 108; Vincent v. Wesolowski (1967), 87 Ill. App. 2d 477, 480.) Thus, through his admissions in open court, Harry Hartke established that Edgar, at the time he signed and served the notice to quit with respect to the farmland, was acting as his agent. He also established that he intended that the document be prepared in order to terminate the written lease. While under the statute an agent’s authority is required to be in writing (Ill. Rev. Stat. 1979, ch. 59, par. 2), where the fact of agency is admitted in open court by the person to be charged, the matter is established conclusively and the statute is satisfied.

The notice to quit, signed by Hartke’s agent, states his intention to terminate “the lease.” It also specifically describes the property as “Approximately 105 acres (Section 1) in Onarga Township belonging to Theodore Hartke and approximately 114 acres (Section 11) in Artesia Township belonging to Harry and Cora Hartke.” This property description, which was factually incorrect at the time of the notice (for Theodore was dead and Cora had no ownership interest), is identical in every respect with the property description set forth in the 1973 written lease. This absolute identity in the language of the property description, absolute down to the errors, indicates that the notice had reference to the prior written lease. Furthermore, the connection is indicated again in the fact that the notice is signed by Edgar, as attorney, on behalf of Theodore, Harry and Cora Hartke. This is another reference to the written lease, for it contained the names of those three persons as landlords. It is obvious from an examination of the two documents that the notice refers to the written lease of 1973. The notice is signed by an agent for Hartke, and the lease contains the essential terms and conditions. The notice acknowledges and relies upon the written lease. The two, taken together, satisfy the statutory requirement of a signed memorandum indicating the contract. Mid-Town Petroleum, Inc. v. Dine (1979), 72 Ill. App. 3d 296, 390 N.E.2d 428.

That conclusion is further confirmed when the subsequent litigation by Hartke is taken into consideration. The original forcible entry and detainer complaint was filed to recover possession from Conn, and the notice to quit, with its reference to the written lease, was an obvious predicate to that action. No issue of the Statute of Frauds was raised when the action was first filed. From the filing of the initial forcible entry and detainer complaint it could be concluded that the Statute of Frauds was satisfied. (Jones v. Lloyd (1886), 117 Ill. 597, 601, 7 N.E. 119; 73 Am. Jur. 2d Statute of Frauds §596 (1974).) As to the connection between the notice to quit and the written lease, the connection is expressly admitted by the plaintiff Hartke in his amended complaint in the forcible entry and detainer action. In the amended complaint it is specifically alleged that the notice to quit has reference to the written lease. The two are attached to the complaint as exhibits. These subsequent judicial admissions of the connection underscore the correctness of our conclusion that the two documents can be read together for purposes of meeting the Statute of Frauds.

It is clear that long before Harry Hartke sought to avoid his written contract under the Statute of Frauds, by way of the declaratory judgment action, he had in fact acknowledged, in writing, and relied upon and sought enforcement of that very same written contract. This, all in addition to the fact that he and Conn had operated under the written lease from 1973 onward. Under all the circumstances, to allow Hartke to avoid the contract under the Statute of Frauds would be to allow him to utilize the Statute to work an injustice, a use to which the Statute, if it can be avoided, will not be put.

Nor does any assertion of alternative pleading alter this result. Clearly, it is permissible to make such alternative pleadings, without waiving a defense under the Statute of Frauds. (Jones v. Lloyd (1886), 117 Ill. 597, 601; 73 Am. Jur. 2d Statute of Frauds §596 (1974).) However, in the instant case, long before any assertion of the Statute, the plaintiff, through the notice to quit and the written lease, satisfied the writing requirements of the Statute. Furthermore, it can reasonably be inferred that the original forcible entry and detainer action was premised upon the notice to quit, which had reference to the written lease agreement. That original action was filed without interposing the Statute of Frauds, alternatively. It was filed months before the pleadings which first raised the Statute of Frauds issue. By the time the issue was raised, it was too late. The plaintiff had satisfied the Statute. No avoidance of the written lease was available on that basis in the subsequent declaratory judgment action.

The only other issue is whether the written lease is to be construed as creating a lease for the lifetime of Conn, as it states in the lease, or whether it merely created a tenancy at will. Plaintiff relies upon the established rule of law that a lease for years must have a definite and certain time at which it begins and ends, and if such time is not set, the agreement does not create a valid and legal lease for a term of years, but only a tenancy at will. (Stanmeyer v. Davis (1944), 321 Ill. App. 227, 53 N.E.2d 22; Moran v. Commonwealth Edison Co. (1979), 74 Ill. App. 3d 964, 393 N.E.2d 1269.) The problem with that argument as applied here is that the lease between the parties is not a lease for a term of years. Rather it is a lifetime lease. Such an estate was recognized at common law, as is evident in Blackstone’s Commentaries. (2 Blackstone, Commentaries 120, 121; see also Chemical Petroleum Exchange, Inc. v. Metropolitan Sanitary District (1980), 81 Ill. App. 3d 1005, 1009, 401 N.E.2d 1203.) The essential characteristic is present enjoyment and possession, which Conn, as tenant under the lifetime lease, possessed. The parties clearly and unequivocally contracted and agreed upon a lifetime lease to Conn. We find no basis to strike down that agreement.

For the reasons stated, the decision of the Circuit Court of Iroquois County is affirmed.

Affirmed.

STOUDER and BARRY, JJ., concur.


text:
      In re ESTATE OF RAYMOND SWANSON, Deceased.—(PAUL SWANSON, Appellant, v. GLEN SWANSON et al., Appellees.)
    Third District
    No. 81-322
    Opinion filed December 7, 1981.

      Matthew A. Maloney, of Princeton, for appellant.
    Daniel K. Russell, of Johnson, Martin & Russell, of Princeton, for appellees.
   JUSTICE ALLOY

delivered the opinion of the court

This is an appeal by Paul Swanson, son of the decedent, from the trial court’s denial of his motion to set aside final report and order of discharge in the Raymond Swanson estate proceeding. Paul Swanson argues that the special administrator of the estate did not fully complete his duties in that certain items of personal property were not included in the distribution of the estate. He argues that the court erred in denying his motion without holding a hearing on his objections to the final report. We affirm.

The pertinent facts on this appeal are that Raymond Swanson died in 1979, leaving two sons (Paul and Glen) and a widow, Martha. By Raymond Swanson’s will, his entire estate, consisting of approximately $50,000, was left equally to his two sons. Honoring her husband’s expressed wishes, Martha Swanson refused to renounce the will and take her statutory share. Paul Swanson was appointed executor of the estate of his father. During the course of administration, certain disputes over personal property and reimbursements to Martha developed between the survivors. Due to these disputes, the settlement and closing of the estate was postponed. Finally, in an effort to resolve the disputes, a special administrator was appointed by the court, with the approval of all parties.

Attorney Richard Hornbaker was the person appointed special administrator; and he investigated the disputes, making recommendations to the court and preparing a final account and report. His proposed final accounting was filed with the court on January 8, 1981, with notice and copies sent to the parties. A hearing on the proposed final account was held on January 21,1981. The parties were all present that day, personally and with their attorneys. Special administrator Hornbaker was also present, and he orally reported on the disputes, his analysis of the law and his conclusions and recommendations. After his presentation, counsel for Paul Swanson indicated his client’s objections to the final distribution set forth in the special administrator’s report. The trial judge then indicated his willingness to hear testimony on the objections, unless they could be settled by stipulation among the parties. Paul Swanson, through his attorney, then indicated that he was specially interested in three items of personalty, for sentimental reasons. Those items were a ring with a red stone, a writing desk, and a rifle. The total value of the items was approximately $75. In response, the attorney for Martha and Glen Swanson stated that he had conferred with them and they were willing to allow Paul Swanson to have those items, provided that he pick them up before 3 p.m. at Martha’s on that day, and provided:

* * there are no other objections to the current account by Paul and that this thing can be resolved as is. That the reimbursements and recommendations that were made by Mr. Hornbaker will go as they are written.”

This settlement offer made by the attorney for Martha and Glen Swanson was immediately accepted by Paul Swanson, through his attorney.

“Rayfield: Thats acceptable to Mr. Swanson, Your Honor. We would waive all objections that we have to the account of Mr. Hornbaker if those three items were made available for pickup to 3:00 o’clock today.
Court: Alright. You prepare an order for those three items only and I’ll approve the report.”

An order reciting the settlement agreement of the parties and approving the final account, as presented, was entered by the trial judge on that same date, being January 21,1981. It was initialed by the attorneys for the parties. Subsequent thereto, special administrator Hornbaker presented his final report to the court, showing a distribution of the estate assets, as per the January 21 settlement agreement and report. The following day, being March 18,1981, the court entered an order of discharge as to special administrator Hornbaker.

On April 8,1981, Paul Swanson, through a different attorney, filed his motion to set aside final report and order of discharge, in which he alleged that all matters in controversy had not been resolved. A hearing on that motion was held and the motion was denied on April 22,1981. From the denial of that motion, Paul Swanson now appeals.

On appeal, he argues that the court erred in denying his motion, and he argues that he should have been allowed to present evidence, at a hearing, concerning his objections to the final report. We disagree.

The matters in controversy, concerning the final report and distribution, had been settled by the parties on January 21, 1981. Appellant’s motion to set aside makes no allegation that the distribution was not carried out pursuant to the settlement agreement and order of that date. Paul Swanson, prior to January 21,1981, was given notice that the special administrator’s account would be called for hearing. All parties, with their attorneys, were present in court on the day of hearing. Furthermore, on that date Paul Swanson, Martha Swanson, and Glen Swanson entered into a settlement agreement in open court with respect to their disagreements as to the estate distribution. By the terms of the agreement, fully assented to by Paul Swanson, he waived all objections to the final report of the special administrator, as submitted. In return for his waiver of objections, he was permitted to obtain three items of personal property which he had indicated that he wanted. In summary, there was a settlement, by agreement of the parties, of matters in controversy concerning the final report. An order reciting the settlement was entered and the final report, as submitted, was approved, pursuant to that settlement agreement. Paul Swanson’s subsequent attempt to set aside the final report, which indicated distribution pursuant to the January 21 order and agreement, is binding on the parties.

As noted in In re Estate of Moss (1969), 109 Ill. App. 2d 185, 192, 248 N.E.2d 513:

“The reviewing courts of this state have consistently held that stipulations by parties or their attorneys affecting the conduct of suits will be enforced, unless there is proper showing that any stipulation is unreasonable, violative of public morals or the result of fraud. * * *. Stipulations are looked upon with favor by the courts, since they tend to promote disposition of cases, simplification of issues and the saving of expense'to litigants. The ends of justice are furthered by stipulations of settlement and the reluctance of courts to vitiate such agreements is well founded in fundamental logic.”

This court also noted, in Ham v. Marshall (1964), 46 Ill. App. 2d 92, 96, 196 N.E.2d 377:

“Settlements are favored by the courts as a means of discouraging needless litigation. And family settlements are especially favored on grounds of public policy upholding the honor and peace of families.”

Such settlement agreements are enforced by the courts and act as a bar to subsequent attempts to litigate matter covered by such agreements. In re Estate of Moss (1969), 109 Ill. App. 2d 185, 248 N.E.2d 513; Ham v. Marshall (1964), 46 Ill. App. 2d 92, 196 N.E.2d 377.

In the case at bar there was no allegation by Paul Swanson that the agreement settling controversies and approving the final report was unreasonable or fraudulent. Neither is their allegation that the settlement agreement was not complied with by the other parties. His motion to set aside the final report was an attempt to resurrect controversies which had been settled by the parties, with court approval, on January 21,1981. Nor does the subsequent court action affect this conclusion. It is from the approval of the report that appellant sought relief in this motion to set aside the final report. While it is true that the final report showing distribution was not filed until March 18,1981, the distribution shown was fully consistent with the approved, and agreed to, final report of January 21, 1981. The basis of the motion to set aside the final report was the allegation that all matters in controversy had not been resolved. Yet, by settlement agreement of January 21,1981, those matters were resolved, as stipulated to and as approved.

The decision of the Circuit Court of Bureau County, denying appellant’s motion to set aside the final report and order of discharge, is affirmed.

Affirmed.

HEIPLE and BARRY, JJ., concur.


text:
    SHELDON C. BELL et al., Plaintiffs and Counterdefendants-Appellants, v. YALE DEVELOPMENT COMPANY, Defendant and Counterplaintiff-Appellee.
    Third District
    No. 80-598
    Opinion filed December 9, 1981.
    Bruce L. Zumstein, of Codo, Bonds & Zumstein, P. C., of Joliet, for appellants.
    Joseph M. Cernugel, of Cirricione, Block, Krockey & Cernugel, of Joliet, for appellee.
   JUSTICE BARRY

delivered the opinion of the court:

In 1973 Emerson Hacker and Anna Mae Hacker contracted to sell a two-acre parcel of real estate in Bolingbrook, Illinois, to Yale Development Company, with the contract closing to be contingent upon Yale obtaining a rezoning of the property for its proposed use. Yale never completed performance of the contract, and in 1978 the Hackers entered into a contract with Sheldon Bell for sale of the same property. The Hackers assigned their interest in the Yale contract to Bell, and he filed suit to rescind the 1973 Hacker-Yale agreement. Yale counterclaimed for specific performance of the original contract. After Bell and Yale filed cross motions for summary judgment, thereby conceding that there were no questions of material fact in dispute, the trial court entered judgment for Yale and ordered specific performance of the original Hacker-Yale contract. This appeal followed.

Because the resolution of this dispute turns upon factual matters, it is necessary to explain the details of the dealings between the parties. The property involved in this case has approximately 208 feet of highway frontage and was improved with a single-family residence from which the Hackers had moved several years before they agreed to sell the property. Negotiations with Yale took place over an extended period, and finally, on July 31,1973, they signed a contract which had been prepared for Yale, to sell the property for $150,000. The contract provided for an earnest money payment of $1,000, and closing was contingent upon the buyer obtaining “successful zoning of the subject property for the purchaser’s use.” The terms of the contract gave Yale 120 days to accomplish the rezoning, plus 60 additional days in the event an appeal should be necessary. The contract also provided that in the event the closing was not completed within seven months, the purchase price would be increased by $5,000.

On August 10, 1973, the Will County zoning officer denied Yale’s application for rezoning the premises from farm use to B-2 commercial which would have permitted the use of the premises as a restaurant serving beer and alcoholic beverages. Yale, then, on November 10, 1973, appealed to the Will County Zoning Board of Appeals, and upon the zoning board’s denial, Yale submitted its request to the Will County Board of Supervisors, where, on April 24, 1974, it was again denied. On July 16, 1974, Yale filed suit in the circuit court of Will County to challenge that action. In February of 1975 an additional complication to the zoning situation occurred when the village of Bolingbrook annexed the property in question. In February of 1976, Yale filed a quo warranto action to contest the annexation. That cause has yet to be tried, and according to the docket sheet appearing in the record, no activity has occurred since December 21, 1976.

Between June 11,1974, and June 1,1976, the Hackers called the Yale Development Company office a total of 39 times to check on the progress of the rezoning application and to press for either closing or cancellation of the transaction. In addition there are six letters in the record from the Hackers to Yale, beginning in October of 1973, with a letter inquiring, “What’s wrong?” and ending with a letter dated April 20, 1977, asking if Yale would like to cancel the contract. On January 30, 1976, the Hackers sent Yale a title policy commitment which Yale had requested. The record also contains 15 letters from Yale to the Hackers, almost all of which reassured the Hackers that a court hearing would be set “soon” or “in a few weeks.” The correspondence also dealt with tax assessment matters, an arrangement to lease the house to the village of Bolingbrook, and the complication caused by the annexation of the parcel by the village while a zoning action was pending against the county.

The record also indicates that Yale began efforts to market the property for commercial use in November of 1976, which continued without success until April of 1977. In December of 1977, the zoning case had been placed upon the Will County jury list, but upon motion of Yale, the county’s jury demand was stricken and the cause thereby removed from the ready trial list.

In August of 1978, the Hackers executed a contract selling the premises to Sheldon Bell for $150,000 cash, subject to Yale’s interest. The Hackers also assigned Bell their interest in the Yale contract. According to Mrs. Hacker, she tried to call Yale’s officers to notify them of the pending sale, but a secretary told her the men she was trying to reach did not want to talk to her anymore. The president of Yale denied that any agent of the company was ever instructed to say that he did not want to talk with the Hackers.

After the Hackers conveyed the property to Bell, he placed his interest in a land trust. On April 26,1979, Bell gave Yale formal notice that Bell and the land trust had acquired the Hackers’ rights to the property and that unless Yale waived the zoning contingency in its contract and completed performance within 30 days, Yale would be considered not to have proceeded with due diligence. Bell also advised Yale that he had a title commitment issued by Chicago Title Insurance Company which indicated proper evidence of marketable title. The letter went on:

“We have met all of our obligations under the contract and are prepared to sit down with you and convey proper title upon your paying us the sum specified by the contract. However, if more than thirty (30) days lapse from the date of this letter without your indicating a date within the thirty (30) day period in which you agree to close the transaction we shall treat the contract as being rescinded due to your failure to meet a condition precedent to the consummation of the contract.”

Yale responded with a letter dated May 7,1979, saying that it believed it had kept its rights alive under the Hacker contract, and with a second letter dated May 21 inquiring about some work that was being done on the premises. Bell did not answer either letter, and on May 25 Yale sent a letter informing Bell that Yale was ready to proceed with the closing without having the property rezoned and stating that “if you will comply with the obligations of the Seller under the contract, we shall be ready to close in due course.” Bell did not regard any of the Yale letters as an appropriate response to his 30-day notice, and on June 7, 1979, he filed this action for rescission of the Hacker-Yale contract. Yale filed a counterclaim for specific performance, and the trial court entered summary judgment on behalf of Yale. Bell has appealed from that order.

Both parties virtually concede that the Hackers’ conduct amounted to acquiescence in Yale’s long delay in closing the transaction and that as a consequence, the Hackers waived their right to strict performance of the terms of the contract. Bell has argued in this court that Yale’s conduct indicated an intent to abandon the contract. In view of the lengthy record of correspondence between Yale and the Hackers and between Yale and potential buyers of the property, we cannot say that an intent to abandon was clearly and unequivocally shown.

What is more significant, however, is the evidence of Bell’s intention to rescind the contract if Yale did not complete performance within 30 days of Bell’s letter. It has been held that, after delays in performance of a contract have been waived, the contract cannot be rescinded for failure to perform without giving the other party notice and a reasonable opportunity to perform. Gamm Construction Co. v. Townsend (1975), 32 Ill. App. 3d 848, 336 N.E.2d 592; Schmahl v. Aurora National Bank (1941), 311 Ill. App. 228, 35 N.E.2d 689.

This rule is much like the rule applying to forfeitures of real estate contracts: where the conduct of the vendor has amounted to a suspension of the right of forfeiture, such right can be resumed only by giving definite and specific notice of an intention to require performance of the contract within a reasonable time. (Hockenbury v. Lorentz (1976), 35 Ill. App. 3d 983, 343 N.E.2d 90.) With respect to the required notice in forfeiture cases it has been said:

“The notice must be a reasonable one and a definite and specific notice of a changed intention. [Citations.] No comprehensive rule as to what constitutes a reasonable length of time to be given in a notice of such changed intention with reference to declaring a forfeiture of the contract can be laid down for the reason that each case is to be determined on its own particular facts. What is reasonable notice in one case may not be such in another.” (Forest Preserve Real Estate Improvement Corp. v. Miller (1942), 379 Ill. 375, 382, 41 N.E.2d 526, 529.)

We believe the same is true of the notice of intent to rescind. In other words, to be effective the notice must contain a definite and specific intent to require full compliance with the terms of the contract within a reasonable time.

Bell’s letter to Yale was certainly definite and specific. He requested that Yale pay the sum due within 30 days of the date of the letter, and stated that he had a title policy commitment so that he was prepared to convey “proper title.” There is nothing in the record to indicate that Bell could not furnish merchantable title. As to whether 30 days for performance was a reasonable time, we think it clearly was. Six years had elapsed since Yale undertook to purchase this property. The parties quite obviously contemplated a closing within less than one year. Considering all the circumstances, we conclude that 30 days was reasonable.

Bell also contends that he has a right of forfeiture, but in fact his complaint sought rescission of the contract, not forfeiture, and he cannot upon appeal request a new remedy for the first time. Having elected the remedy of rescission, Bell is entitled to nothing greater, and must, of course, refund the earnest money of $1,000 to Yale.

In defense of the trial court’s decision to deny Bell’s request for rescission of the contract, Yale argues that Bell had to furnish a current title commitment before Yale would be obligated to pay the balance of the purchase price. According to the record, the Hackers had furnished a title policy to Yale when requested to do so in 1976, and furthermore, in his letter to Yale, Bell stated that he had a title commitment and he was ready to “convey proper title.” Under these circumstances, we do not see that more was required.

We conclude that the judgment of the trial court must be reversed and this cause remanded for entry of a judgment rescinding the contract and refunding to Yale the $1,000 earnest money.

Reversed and remanded with directions.

ALLOY and HEIPLE, JJ., concur.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. LUIS ROSAS, Defendant-Appellant.
    Third District
    No. 81-135
    Opinion filed December 9,1981.
    Robert Agostinelli and G. Joseph Weller, both of State Appellate Defender’s Office, of Ottawa, for appellant.
    John A. Barra, State’s Attorney, of Peoria (John X. Breslin and Kenneth A. Wilhelm, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE STOUDER

delivered the opinion of the court:

Defendant Luis Rosas was indicted for the offenses of armed robbery and robbery. After a jury trial in the circuit court of Peoria County, he was found guilty of armed robbery and sentenced to six years in the Department of Corrections.

The incident from which the conviction obtained occurred on November 13, 1980. Defendant borrowed an automobile and drove to a filling station for some gasoline. The station attendant was in the process of closing and refused to sell him any. Defendant then produced a handgun and repeated his request. The attendant complied, and defendant drove away. It is uncontroverted that defendant was intoxicated.

The sole issue presented for our review concerns two jury instructions, one given and one refused. Given was People’s No. 13:

“You are instructed that voluntary intoxication is not a defense to the crime of armed robbery.”

Refused was Defendant’s No. 2:

“An intoxicated person is criminally responsible for his conduct unless his intoxication renders him incapable of acting knowingly or intentionally.”

Presented for our review is the question of whether a defendant can present his voluntary intoxication as a defense to a charge of armed robbery.

Section 6 — 3 of the Criminal Code of 1961 (hereinafter the Code) (Ill. Rev. Stat. 1979, ch. 38, par. 6 — 3) addresses the effect of a defendant being in an intoxicated or drugged condition during the commission of an alleged criminal offense:

“A person who is in an intoxicated or drugged condition is criminally responsible for conduct unless such condition * * *
(a) Negatives the existence of a mental state which is an element of the offense; * *

The offense here alleged is armed robbery. Section 18 — 2(a) of the Code (Ill. Rev. Stat. 1979, ch. 38, par. 18 — 2(a)) provides that the offense is committed when a person commits robbery while carrying “on or about his or her person, or is otherwise armed with a dangerous weapon.” Section 18 — 1(a) of the Code (Ill. Rev. Stat. 1979, ch. 38, par. 18 — 1(a)) provides that robbery is committed when a person “takes property from the person or presence of another by the use of force or by threatening the imminent use of force.” It can readily be seen that no mental state is presented as an element of the charged offense by the language of these provisions.

With the exception of the period of time between 1874 and 1919, this has always been the case in this State (see People v. White (1977), 67 Ill. 2d 107, 122-23, 365 N.E.2d 337, 345 (concurring opinion)); yet, decisions rendered after 1919 were mixed as to whether intent was an element of the crime (see People v. White (1977), 67 Ill. 2d 107, 109, 365 N.E.2d 337, 338). The reasons for this were analyzed in White, which held intent was such an element, and in People v. Banks (1979), 75 Ill. 2d 383, 388 N.E.2d 1244, which overruled White and held that robbery does not require specific intent.

During the pendency of the Banks appeal, the issue at bar was raised, on the basis of White, in People v. Baker (1979), 72 Ill. App. 3d 682, 391 N.E.2d 91. Before oral argument, the opinion in Banks was filed. We note the court’s discussion:

“Defendants first contend that the trial court erred in giving the non-IPI instruction tendered by the State that ‘intoxication is not a defense to the crime of armed robbery.’ In support of this argument, defendants rely on People v. White (1977), 67 Ill. 2d 107, 365 N.E.2d 377, which held that specific intent is an element of robbery and armed robbery and that voluntary intoxication could be a defense, if defendant could demonstrate that he was so intoxicated as to negate the specific intent needed to commit the crime. At oral argument, however, defense counsel conceded this issue in light of the recent pronouncement by the Illinois Supreme Court in People v. Banks (1979), 75 Ill. 2d 383, 388 N.E.2d 1244, where the court specifically overruled White in holding that specific intent is not an element of robbery and armed robbery. As such defendants cannot avail themselves of the intoxication defense and we find that the trial court was proper in giving the instruction.” People v. Baker (1979), 72 Ill. App. 3d 682, 686-87, 391 N.E.2d 91, 94.

Aware of these precedents and of the long-standing Illinois rule that voluntary intoxication is only a defense to specific intent crimes (McIntyre v. People (1865), 38 Ill. 514), defendant argues that logic dictates modifying the rule to allow the defense to be interposed in all but absolute liability prosecutions. Positing that section 6 — 3 of the Code (Ill. Rev. Stat. 1979, ch. 38, par. 6 — 3) makes no distinction between general and specific intent, but rather deals with the negation of an elemental mental state, he concludes that one of the mental states delineated in sections 4 — 4 (intent), 4 — 5 (knowledge), or 4 — 6 (recklessness) (Ill. Rev. Stat. 1979, ch. 38, pars. 4 — 4, 4 — 5, 4 — 6) must be an element of the crime (see Ill. Rev. Stat. 1979, ch. 38, par. 4 — 3(b)). If so, he reasons, such a mental state can be negated by intoxication.

The logic of this argument has been noted before:

“It is sometime stated that intoxication can negative a ‘specific intent’ ” ” ” but it cannot negative a crime’s ‘general intent’ ” ” ” ” ° But this is wrong on principle, for if intoxication does in fact negative an intention ” ” ” (whether it be called specific intent or general intent), the crime has not been committed.” W. LaFave and A. Scott, Handbook on Criminal Law 343-44 (1972).

There is even some indication the legislature intended, at least regarding recklessness, to eliminate the present distinction:

“It is interesting to compare the language of the Illinois statute with that of the Model Penal Code. The Illinois code section provides that an intoxicated person is responsible unless such condition, ‘negatives the existence of a mental state which is an element of the offense * * *.’ This provision is not unlike the first subsection of the Model Penal Code section on intoxication: ‘(1) Except as provided ” 0 ”, intoxication of the actor is not a defense unless it negatives an element of the offense.’ The potential for change which this subsection, standing alone, might possess was not overlooked when it was presented to the American Law Institute in May of 1959. Consequently, a second subsection was also proposed: ‘(2) When recklessness establishes an element of the offense, if the actor, due to self-induced intoxication, is unaware of a risk of which he would have been aware had he been sober, such unawareness is immaterial.’
The addition of this subsection represented a conscious choice by the ALI to retain the American practice of recognizing only a limited defense of intoxication, rather than adopting the English rule of treating intoxication as one aspect of the overall determination of mens rea, as advocated by at least one of the ALI Advisory Committee members. No language similar to subsection 2 is found in the Illinois code, even though the Illinois section was proposed after the ALI debate.” Norton, Criminal Law Codification: Three Hazards, 10 Loy. U. Chi. L.J. 61, 70 (1978).

Regardless of the logic of eliminating the distinction between interposing the defense in specific and general intent prosecutions and the possibility of such a legislative intent, we must note that no court has ever dissented from the distinction, except to bar the defense even on the issue of specific intent. (See Annot., 8 A.L.R.3d 1236 (1966 and Supp. 1981).) Early authority even suggested that intoxication should be regarded as an aggravation of an offense. (See Annot., 8 A.L.R.3d 1236 (1966).) The rationale of the rule has been presented in several fashions. It has been explained that one who voluntarily casts off the restraints of reason and conscience is not wronged by being held responsible for the consequences, that those consequences were intended by becoming intoxicated, that the intent to become intoxicated can take the place of criminal intent, and that criminal intent can simply be presumed from the doing of criminal acts. (See 21 Am. Jur. 2d Criminal Law §155 (1981).) Other explanations are that the defense could be too easily simulated, and that the abolition of the rule would lead to widespread subversion of the criminal law. See Annot., 8 A.L.R.3d 1236 (1966).

It may be that “[t]he reasoning supporting the rules * * * is difficult to explicate” (Annot., 8 A.L.R.3d 1236, 1239 (1966)) and that logic fails to support the present distinction between specific and general intent prosecutions. Perhaps the explanation of the rules’ existence is to avoid allowing a criminal to commit a crime with a revolver in one hand to commit the deed, and a quart of intoxicating liquor in the other hand with which to create his defense. (See Annot., 8 A.L.R.3d 1236 (1966), citing State v. Arsenault (1956), 152 Me. 121, 124 A.2d 741.) We believe that there is a distinction between general and specific intent offenses, and voluntary intoxication may be a defense to the latter but not the former. Consequently the trial court did not commit any error in its rulings on instructions.

Accordingly, the judgment of the circuit court of Peoria County is affirmed.

Affirmed.

ALLOY and HEIPLE, JJ., concur.