text:
    HERMAN L. LOEB et al., Plaintiffs-Appellants, v. WILMA GRAY et al., Defendants-Appellees.
    Fifth District
    No. 5—84—0172
    Opinion filed February 27, 1985.

      John F. Borden, of Gosnell, Benecki, Borden & Enloe, Ltd., of Lawrence-ville, for appellants.
    A. Ben Mitchell and John J. Flood, both of Musick & Mitchell, of Mt. Vernon, for appellees Wilma Gray and Leah Cornwell.
    No brief filed for appellees William R. Conyers and Sohio Supply Company.
   PRESIDING JUSTICE JONES

delivered the opinion of the court:

The plaintiffs, Herman and Betty Loeb, appeal the dismissal with prejudice of their amended complaint in an action for reformation of a contract for the sale of real estate and for specific performance of the contract as reformed. We affirm.

In their complaint, which was verified, the plaintiffs sought specific enforcement by the defendants Wilma Gray and Leah Cornwell of an alleged contract for the sale of real estate. The complaint was in four counts, in the others of which the plaintiffs sought from certain other of the defendants an accounting for oil and gas produced from the premises, from the defendants Gray and Cornwell damages in the amount of $1,000,000, and from the defendant Sohio Supply Company the impoundment of all funds representing the proceeds of the sale of oil and gas produced from the premises. Attached to the complaint as exhibit A was the “Real Estate Listing Agreement,” a form signed by the defendants Gray and Cornwell as owners and Hugh B. Miller for Curran Miller Auction and Realty, Inc., the realtor. The real estate listing agreement was entered into on October 10, 1980. Under the real estate listing agreement the owners granted to the realtor the sole and exclusive right to sell the real estate in question for a period of three months following the date of the agreement and agreed, among other things, to pay the realtor a commission of 6% of the sale price. After the printed words “Mineral Rights” on the real estate listing agreement, the following appears in handwriting: “The sellers shall reserve xk of the mineral rights to each seller for their [sic] natural lifetime.”

Attached to the complaint as exhibit B is the “Real Estate Purchase Agreement,” also a form, signed by Herman Loeb as “Purchaser.” Paragraph 12 of the real estate purchase agreement states as follows:

“Acceptance: This offer shall remain open for acceptance by the Owners, by their signatures affixed hereto, at or prior to 12:00 o’clock, noon, on the 25 day of October 1980. If accepted •within such time, this agreement shall be in full force and effect.”

The real estate purchase agreement was executed by the “Purchasers” on October 11,1980.

Paragraph 14 of the real estate purchase agreement provides “FURTHER CONDITIONS” as follows:

“Sellers, Wilma Gray and Leah Cornwell, each respectively reserves for herself, for and during the period of her natural life, an undivided interest in and to the oil, gas and other minerals, in, under and that may be produced from the above lands, subject to any rights now or hereafter existing in and to any lessee or assignee under any valid and subsisting oil and gas lease heretofore or hereafter executed. Purchaser shall have full power and authority to lease all of said lands for oil, gas and other minerals, and Sellers’ signatures shall not be required to effect said leases. 1980 taxes due and payable in 1981 shall be deducted from the purchase price to be paid by Sellers for said premises, the deduction to be estimated on the basis of 1979 taxes paid in 1980.” (Emphasis added.)

The realtor’s signature appears beneath the following words on the real estate purchase agreement:

“RECEIPT BY REALTOR:
I, hereby, acknowledge receipt of deposit of $25,000.00 in EXSM-Check.”
At the bottom of the real estate purchase agreement appear these typewritten words: “SUBJECT TO THE TERMS, CONDITIONS AND MODIFICATIONS SET FORTH IN THE ADDENDUM ATTACHED HERETO.” Beneath these typewritten words are the printed words, with the date supplied in handwriting: “ACCEPTED by Owners, this 21st day of October 1980.” Beneath appear the signatures of Leah Cornwell and Wilma Gray, each as “Owner.”
Attached to the complaint as exhibit B — 1 is the “ADDENDUM TO REAL ESTATE PURCHASE AGREEMENT.” The addendum states, “This Addendum to that certain Real Estate Purchase Agreement dated October 11, 1980, executed by Herman L. Loeb shall constitute the acceptance by the undersigned of the terms and conditions

of said Real Estate Purchase Agreement subject to the following terms, conditions and modifications,” paragraph four of which provides:

“Paragraph 14 shall be modified and clarified as follows:
Sellers Wilma Gray and Leah Cornwell each respectively reserves for herself, for and during the period of her natural life an undivided one-quarter (fk) interest each in and to the oil, gas and other minerals in, under and that may be produced from the subject property. Sellers shall each respectively be entitled to, for and during the period of her natural life, one-quarter (XU) of all proceeds received by lessor of the subject property pursuant to existing and future oil and gas leases. In the event that Purchaser produces oil or gas directly rather than under lease, Sellers shall each respectively, for and during the period of her natural life, receive one-quarter (1k) of the gross proceeds derived therefrom. All payments shall be made quarterly and Purchaser shall furnish with each of said payments an accounting for the manner in which the amount of said payment is determined. Purchaser shall have full power and authority to lease all of said lands for oil, gas and other minerals and Sellers signatures shall not be required to effect said leases. 1980 taxes due any payable in 1981 shall be deducted from the purchase price to be paid by Sellers for said premises, the deduction to be estimated on the basis of the 1979 taxes paid in 1980. In the event that the amount deducted is insufficient to pay the entire taxes due for 1980, Sellers shall pay to Purchaser the balance upon demand. In the event that the amount deducted exceeds the actual taxes due for 1980, Purchaser shall refund to Sellers the amount of the overpayment at the time of payment of the 1980 tax bill.” (Emphasis added.)

This sentence follows immediately: “That certain Real Estate Purchase Agreement dated October 11, 1980 is accepted by the undersigned on the terms, conditions, modifications, and clarifications set forth hereinabove.” The addendum is signed by Wilma Gray and Leah Cornwell beneath the words, “EXECUTED by owners this 21st day of October, 1980, at El Cajon, California.”

In their complaint the plaintiffs alleged, inter alia, “the acceptance by plaintiffs of [defendants’] offer to sell said premises upon the terms set out in said Real Estate Listing Agreement” and that the “Addendum constituted an attempt on the part of defendants, WILMA GRAY and LEAH CORNWELL, to change the terms of their offer and plaintiffs’ acceptance thereof by increasing the reservation of mineral rights beyond the V-tth each for their lifetimes proposed by them and accepted by plaintiffs.” Upon the motion of the defendants to dismiss the complaint, the trial court found “[tjhat the documents attached to the complaint do not indicate that the parties at any time entered into a written binding contract for the sale of the real estate described in the complaint” and ordered the complaint dismissed with prejudice.

Thereafter, on August 6, 1982, the plaintiffs filed a motion to vacate the order dismissing the complaint with prejudice or, in the alternative, for leave to file an amended complaint. The trial court granted the motion to vacate and granted the plaintiffs leave to file an amended complaint. An amended complaint, likewise verified, appears in the record together with the plaintiffs’ motion to vacate or for leave to file an amended complaint. However, it bears no file mark. An amended complaint, also verified, but differing from the other amended complaint in the record, was filed on December 27,1982.

In the amended complaint of December 27, 1982, the plaintiffs alleged that they

“made an oral offer to defendants through Hugh B. Miller, of Curran Miller Auction & Realty Company, sellers’ agent, to purchase [the real property in question] on the following terms: Plaintiffs to acquire said real estate by warranty deed for the sum of $110,000.00; defendants, Wilma Gray and Leah Corn-well, each to reserve an undivided one-fourth of the oil, gas, and other minerals in and under said land for their respective natural lives; the conveyance to be subject to any lease of record covering and affecting said lands; and plaintiffs to have the right to lease said lands for oil and gas purposes without defendants’ signatures.”

The plaintiffs alleged further that “[u]pon being notified of plaintiffs’ offer defendants, Wilma Gray and Leah Cornwell, both orally accepted same,” subject to modifications concerning tenants’ rights and 1980 taxes. The plaintiffs alleged that on or about October 10, 1980, they approved these modifications and “orally advised such defendants through Hugh B. Miller, their agent, of such approval and acceptance.” Thereafter, according to the plaintiffs’ allegations, Miller, as the agent of the defendants, prepared the real estate listing agreement, which “specifically authorized Curran Miller Auction & Realty to sell the described real estate on the terms plaintiffs and defendants had previously agreed upon.” On or about the same date, according to the plaintiffs’ allegations, Miller, as the agent of the defendants, pre-

pared the real estate purchase agreement, which,

“(except as noted hereafter), stated the terms of the sale and purchase previously agreed [sic] between plaintiffs and defendants, Wilma Gray and Leah Cornwell. It specifically authorized Curran Miller Auction & Realty to enter into a written contract for such sale on behalf of sellers. Plaintiff Herman L. Loeb, on behalf of purchasers, executed said agreement and paid $25,000.00 to Hugh B. Miller, as agent for sellers, who thereupon executed said contract.”

The plaintiffs alleged that the language in paragraph 12 of the real estate purchase agreement and the language concerning the receipt by the realtor, which we have already described,

“was included in the standardized preprinted real estate purchase agreement form, and because of a mutual oversight and mutual mistake of the parties and the mistake of the scrivener was not stricken or amended, although the parties had already agreed that the sellers would sell and the purchasers would purchase the real estate on the terms detailed in paragraphs 3, 4 and 5 above [of this amended complaint], and said Hugh B. Miller’s signature constituted the acceptance by the sellers.
It was the intent of the parties that paragraph 12 and the acceptance language (the last sentence with signature lines) be stricken and that the receipt paragraph be worded as follows: ‘Receipt and acceptance by owners’ agent: I, hereby, acknowledge receipt of deposit of $25,000.00 check and accept this contract.’ ”

The plaintiffs alleged that the real estate listing agreement and the real estate purchase agreement as prepared by Miller were forwarded “on or about October 10, 1980” by Miller to defendants Gray and Cornwell, who signed the real estate listing agreement and returned it to Miller. The plaintiffs sought reformation of the real estate purchase agreement “by deleting paragraph 12 and the last sentence with lines for signature [by the owners], and correcting the receipt language as indicated above, to reform and correct said contract to the actual agreement made by the parties.” In addition, the plaintiffs sought specific performance by the defendants Gray and Cornwell of the contract as reformed.

In the other three counts of the amended complaints, the plaintiffs sought, as they had in their complaint, an accounting, damages, and impoundment of funds. Attached to the amended complaint as exhibit A is the real estate listing agreement and, as exhibit B, the real estate purchase agreement. The copy of the real estate purchase agreement serving as exhibit B to the amended complaint, however, does not bear the owners’ signatures or in any way refer to the addendum. It does contain the “FURTHER CONDITIONS” of paragraph 14, which we have set forth above.

The defendants, Gray and Cornwell, moved to dismiss the amended complaint asserting, inter alia,

“[t]hat Plaintiffs have failed to plead a proper cause of action for reformation of a contract for the reason that there can be no reformation where there has not already been a meeting of the minds and further, this Court has already ruled that there was no meeting of the minds between the parties and that at no time did the parties enter into a binding contract for the sale of the subject property.”

In its order the trial court found that the amended complaint should be dismissed with prejudice,

“that the amended Complaint as filed, together with the prior verified Complaint, and all the documents as attached to the verified Complaints, conclusively establish that no agreement was entered into between the parties which resulted in a document evidencing the agreement being duly signed by the Defendants, Wilma Gray and Leah Cornwell, or an agent duly authorized on their behalf, and accordingly, the alleged contract is therefore unenforceable and the action barred by the Statute of Frauds, Ill. Rev. Stat., Ch. 159, sec. 2.”

From this order dismissing the amended complaint with prejudice the defendants appeal.

It is elementary that in order to constitute a contract between two parties there must be mutual assent by the contracting parties on the essential terms and conditions of the subject about which they are contracting. (Bank of Marion v. Robert “Chick” Fritz, Inc. (1973), 9 Ill. App. 3d 102, 291 N.E.2d 836, affd (1974), 57 Ill. 2d 120, 311 N.E.2d 138.) For a contract to exist there must be an offer and acceptance, and to create a binding contract the acceptance must comply strictly with the terms of the offer. (Zeller v. First National Bank & Trust Co. (1979), 79 Ill. App. 3d 170, 398 N.E.2d 148.) An acceptance requesting modification or containing terms that vary from those offered constitutes a rejection of the original offer and becomes a counterproposal that must be accepted by the original offeror before a valid contract is formed. (Zeller v. First National Bank & Trust Co. (1979), 79 Ill. App. 3d 170, 398 N.E.2d 148.) Similarly, when one accepts an offer conditionally or introduces a new term into the acceptance, no acceptance occurs; rather, there is a counterproposal

requiring acceptance by the offeror before a valid contract is formed. Arthur Rubloff & Co. v. Drovers National Bank (1980), 80 Ill. App. 3d 867, 400 N.E.2d614.

In the case at bar the plaintiffs state in their amended complaint filed on December 27, 1982, that the real estate listing agreement specifically authorized the realtor to sell the real estate in question “on the terms plaintiffs and defendants had previously agreed upon.” As we have already indicated, certain terms are set forth in the real estate listing agreement, among them the reservation by the sellers of Ulk of the mineral rights to each seller for their [sic] natural lifetime.” The real estate purchase agreement, which, according to the plaintiffs in the amended complaint “stated the terms of the sale and purchase previously agreed [sic] between plaintiffs and defendants,” provided, however, that the “[purchaser shall have full power and authority to lease all of said lands for oil, gas and other minerals, and Sellers’ signatures shall not be required to effect said leases.” Of the rights of an owner of a mineral estate, the defendants maintain in their brief, as they did in the trial court, that the owner of a mineral interest has the right not only to drill for and to produce oil and gas but also to execute leases to a third person as well as to receive bonuses, delay rentals, and royalties under any such oil and gas lease. As stated in 1 Williams & Meyers, Oil & Gas Law sec. 301, at 433 (1983), the owner of the mineral estate

“has the right to execute oil and gas leases to operators to secure the exploration and development of the minerals. Leasing is the typical arrangement between landowner and operator for the exploitation of the mineral estate. The right to lease is called here the executive right or the leasing right.”

In discussing the creation and • characteristics of the executive right the authors define that right as “the exclusive power to execute oil and gas leases.” (2 Williams & Meyers, Oil & Gas Law sec. 338, at .193 (1983).) Thus, the terms concerning “Mineral Rights” as expressed in the real estate listing agreement differ from those in paragraph 14 under “FURTHER CONDITIONS” as expressed in the real estate purchase agreement. Under the terms of the real estate listing agreement, the defendants, as sellers, would have the exclusive power to execute oil and gas leases with respect to the property in question, whereas under the terms of the real estate purchase agreement, the plaintiffs as buyers would have full power and authority to do so. As between the real estate listing agreement and the real estate purchase agreement, there is no indication of mutual assent on the part of the plaintiffs and the defendants concerning the power to execute oil and gas leases with regard to the property in question.

As we have stated, the plaintiffs do not refer in their amended complaint of December 27, 1982, to the addendum to the real estate purchase agreement. In paragraph four of the addendum, the defendants provide with regard to the power to lease in the same way as was done in the real estate purchase agreement, that is, that the “Purchaser shall have full power and authority to lease all of said lands for oil, gas and other minerals and Sellers’ signatures shall not be required to effect said leases.” Although, in effect, the matter of the power to lease is resolved in the addendum in favor of the plaintiffs, elsewhere in that same paragraph in the addendum the defendants specify that

“Sellers shall each respectively be entitled to, for and during the period of her natural life, one-quarter Q-k) of all proceeds received by lessor of the subject property pursuant to existing and future oil and gas leases. In the event that Purchaser produces oil or gas directly rather than under lease, Sellers shall each respectively, for and during the period of her natural life, receive one-quarter (xk) of the gross proceeds derived therefrom.”

Although the parties do not address the matter, we consider significant certain general rules concerning principal and income as applied to an oil and gas lease. As stated in 3A W. Summers, The Law of Oil & Gas sec. 613, at 502-04 (1958),

“Where the life tenant and remainderman or reversioner join in a lease for oil and gas purposes, or where such a lease is executed by a trustee having power to do so, it is [sic] well settled rule that the cash bonus, delay rentals, oil and gas royalties and gas well rentals are corpus of the estate and that the life tenant is entitled only to the interest thereon for the period of his life. This rule does not apply, however, if the life tenant and remainderman have agreed upon a different division of the returns from the lease, or such a lease is made by a trustee under an express power and the settlor has indicated a different division.”

In the instant case, the defendants as life tenants sought not merely the interest upon the proceeds of the lease but the proceeds themselves. Such an apportionment departs from that provided for under the generally prevailing rule. (See also sections 10 and 11 of the Principal and Income Act, which relate to trusts (Ill. Rev. Stat. 1983, ch. 30, pars. 510, 511); Central Standard Life Insurance Co. v. Gardner (1959), 17 Ill. 2d 220, 161 N.E.2d 278 (royalties and bonuses paid under oil and gas leases of the trust property were the considerations for sale of a portion of the real property belonging to the trust, represented a return of capital, and should have been credited to the trust).) As between the real estate purchase agreement and the addendum thereto, there is, then, no indication of mutual assent between the plaintiffs and the defendants concerning the disposition of the proceeds from production of oil and gas either pursuant to or in the absence of a lease.

The plaintiffs state correctly that a motion to dismiss admits all facts well pleaded and a cause of action should not be dismissed upon its pleadings unless it plainly appears that no set of facts can be proved under the pleadings that will entitle the plaintiffs to recover. (Pennington v. Jones (1977), 46 Ill. App. 3d 65, 360 N.E.2d 566.) The provisions contained in the real estate listing agreement and the real estate purchase agreement with regard to the power to execute a lease reveal that no meeting of the minds of the parties occurred concerning this essential term of the alleged contract. Hence, these two documents show that no contract was formed at that time. Although the plaintiffs do not invite us to examine the addendum to the real estate purchase agreement, if it is considered, it suggests, as we have said, that the difficulty concerning the power to lease was resolved in favor of the plaintiffs but that a new term was introduced, namely, the disposition of the proceeds of oil and gas production. That term was never accepted; hence, no contract was formed.

We conclude that the plaintiffs could not possibly prove any set of facts under the pleadings that would entitle them to recover. Therefore, the trial court was correct in dismissing the amended complaint with prejudice.

The plaintiffs contend that the trial court erred in considering the prior verified complaint and documents attached thereto. However, we see no error in the court’s having done so in view of the rule that where the original pleading is verified, as opposed to being unverified, it remains a part of the record upon the filing of an amended pleading (Yarc v. American Hospital Supply Corp. (1974), 17 Ill. App. 3d 667, 307 N.E.2d 749.) Furthermore, the result would have been no different had the trial court not considered the earlier pleading.

We are cognizant that plaintiffs seek in their amended complaint reformation of the contract alleged. However, there can be no reformation where there has not already been a meeting of the minds (Harden v. Desideri (1974), 20 Ill. App. 3d 590, 315 N.E.2d 235). Since no meeting of the minds occurred here, there is nothing to reform.

In their reply brief plaintiffs invite us to find that the defendants are bound by a concession in their brief that the amended complaint, considered in and of itself, states no cause of action. We decline the invitation, however, because, first, the concession alleged was not clearly made and, second, the issue relates to a matter of law; defendants will not be held to have conceded a point of law that, as conceded, is erroneous.

Affirmed.

KASSERMAN and EARNS, JJ., concur.


source: Caselaw Access Project

author: JUSTICE HARRISON

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. STEVEN L. JOHNSON, Defendant-Appellee.
    Fifth District
    No. 5—84—0418
    Opinion filed March 12,1985.

      Neil F. Hartigan, Attorney General, of Springfield, and John R. Clemons, State’s Attorney, of Murphysboro (Matthew M. Schneider, Assistant Attorney General, of counsel), for the People.
    John Paul Womick & Associates, of Carbondale, for appellee.
   JUSTICE HARRISON

delivered the opinion of the court:

Appeal is taken from an order of the circuit court of Jackson County dismissing felony charges against defendant Steven L. Johnson. Defendant was charged by information with 16 counts of wilful failure to file tax returns as required by the Retailers’ Occupation Tax Act (Ill. Rev. Stat. 1983, ch. 120, par. 452). Counts 1 through 3 charged Class B misdemeanors. Counts 4 through 16 charged Class 4 felonies.

On June 6, 1984, a preliminary hearing was held in the circuit court. Testimony at the hearing established that defendant was president of the Johnson Donut Corporation, and that this corporation operated the Mel-O-Cream Donut Shop in Carbondale. Agent Jack Taylor of the Illinois Department of Revenue testified that he met with defendant on March 18, 1983, after Agent Taylor discovered the apparent failure of the corporation to file tax returns from April 1982 through February 1983. According to Agent Taylor, defendant stated that the corporation’s retail operation generated approximately $18,000 in sales each month, and admitted that tax returns had not been filed since April 1982. The reason purportedly given by defendant for the failure to file returns was that the corporation lacked sufficient funds to pay the tax. Agent Taylor also interviewed Mr. William Springer. Mr. Springer had prepared some retail tax returns for the corporation at different periods. Agent Taylor testified that Mr. Springer told him that he (Mr. Springer) had on numerous occasions advised defendant to file retail tax returns whether or not there were sufficient funds to pay the tax.

Mr. Michael Barthelme, an auditor for the Illinois Department of Revenue, testified that he had audited the books of the Johnson Do-nut Corporation. Mr. Barthelme stated that, although there was no record indicating the corporation had filed retail tax returns from July 1983 through January 1984, the taxable sales of the corporation resulted in a revenue obligation in excess of $300 for each of those months. Both Agent Taylor and Mr. Barthelme testified that all tax returns actually filed by Johnson Donut Corporation were signed by defendant as president of the corporation.

On June 19, 1984, a hearing was held on defendant’s motion to dismiss the charges against him. The court denied defendant’s motion with regard to counts 1 through 3 of the amended information, but granted defendant’s motion with regard to counts 4 through 16. The State appeals, contending that the court erroneously dismissed these 12 counts.

It is well established that officers, directors, or agents of a corporation may be criminally liable for acts performed by them on behalf of the corporation. (People v. Floom (1977), 52 Ill. App. 3d 971, 977, 368 N.E.2d 410.) This principle of accountability is explicitly set forth in section 5 — 5(a) of the Criminal Code of 1961 (Ill. Rev. Stat. 1983, ch. 38, par. 5 — 5(a)):

“A person is legally accountable for conduct which is an element of an offense and which, in the name of or in behalf of a corporation, he performs or causes to be performed, to the same extent as if the conduct were performed in his own name or behalf.”

The trial court ruled, however, that the language of section 13 of the Retailers’ Occupation Tax Act precluded defendant’s criminal accountability by reason of defendant’s status as a corporate officer. Following the reasoning of the trial court, defendant points to the fact that paragraphs 1 and 5 of section 13 specifically refer to corporate officers and agents, holding such individuals responsible for filing or signing fraudulent returns on the corporation’s behalf. Defendant argues that the omission in paragraph 6 of any reference to officers or agents of a corporation evinces a legislative intent to refrain from imposing criminal liability upon such individuals for failing to file returns. On this assumption, defendant asserts that he, by reason of being a corporate officer, cannot be criminally liable under paragraph 6. We find the argument unpersuasive.

Paragraph 5 of section 13 reads as follows:

“When the amount due is $300 or more, any person engaged in the business of selling tangible personal property at retail in this State who files, or causes to be filed, a fraudulent return, or any officer or agent of a corporation engaged in the business of selling tangible personal property at retail in this State who files or causes to be filed or signs or causes to be signed a fraudulent return filed on behalf of such corporation *** is guilty of a Class 4 felony.” Ill. Rev. Stat. 1983, ch. 120, par. 452.

Criminal liability for the filing or signing of fraudulent returns is imposed upon “any person engaged in the business of selling tangible personal property at retail *** or any officer or agent of a corporation engaged in the business of selling tangible personal property” who acts on the corporation’s behalf. “Person” is defined in section 1 of the Act as “any natural individual, firm, partnership, association, joint stock company, joint adventure, public or private corporation, or a receiver, executor, trustee, guardian or other representative appointed by order of any court.” (Ill. Rev. Stat. 1983, ch. 120, par. 440.) Any of these entities, then, if engaged in the selling of tangible personal property, is criminally liable if it files or signs a tax return which it knows to be fraudulent. In addition to the entities subsumed under the definition of “person,” paragraph 5 extends criminal liability to corporate officers'and agents. This extension in no sense alters the definition of “person” provided in section 1; neither does it affect the scope of liability imposed by use of the term.

Paragraph 6 of section 13 reads as follows:

“When the amount due is $300 or more, any person engaged in the business of selling tangible personal property at retail in this State who fails to file a return *** is guilty of a Class 4 felony.” Ill. Rev. Stat. 1983, ch. 120, par. 452.

Criminal liability for failing to file a return is imposed upon “any person engaged in the business of selling tangible personal property at retail.” Any of the entities subsumed under the definition of “person” provided by section 1 of the Act are, then, criminally liable if they fail to file a return. Paragraph 6 does not extend criminal liability to corporate officers and agents. The fact that the legislature did not so extend criminal liability in paragraph 6 in no sense alters the definition of “person” provided in section 1; neither does it affect the scope of liability imposed by use of the term.

Defendant in the instant case is a natural individual. In this capacity, defendant is a “person” for purposes of the Retailers’ Occupation Tax Act. The information charging defendant alleged that defendant was a person engaged in the business of selling tangible personal property at retail and that he wilfully failed to file a tax return as required by law. The testimony before the trial court indicated that defendant was the person responsible for filing these returns. Thus, even if defendant is correct in asserting that he cannot be held criminally accountable in his capacity as a corporate officer, defendant is nonetheless subject to criminal liability in his capacity as a “person engaged in the business of selling tangible personal property at retail *** who fails to file a return ***.” (Cf People v. Floom (1977), 52 Ill. App. 3d 971.) Defendant argues that, according to section 13, a natural individual who, in the ordinary course of business, is responsible for filing a corporation’s retail tax returns is criminally liable if he is an officer who files a fraudulent return, but not criminally liable if he is an officer who fails to file a return. This assertion is supported neither by reason nor the language of the Act.

Defendant also argues that section 131/2 of the Act (Ill. Rev. Stat. 1983, ch. 120, par. 4521/2), holding corporate officers and employees personally liable for unpaid revenue when the corporation is unable to pay, precludes the imposition of criminal liability upon those same officers or employees. We disagree. Section 5 of the Act specifically states that “[t]he collection of tax or penalty or interest by any means provided for herein shall not be a bar to any prosecution under this Act.” (Ill. Rev. Stat. 1983, ch. 120, par. 444.) Contrary to defendant’s assertion, the language of the Act would indicate a legislative intent that the provisions of section 13V2 not preclude criminal sanctions for corporate officers or employees pursuant to section 13.

For the foregoing reasons the order dismissing counts 4 through 16 of the State’s amended information is vacated.

Order vacated.

JONES, RJ., and WELCH, J., concur.


author: JUSTICE KARNS

text:
    MERLE C. BASSETT, Ex’r of the Estate of John David Atwood, Deceased, Plaintiff-Appellee, v. BURLINGTON NORTHERN RAILROAD COMPANY, Defendant-Appellant.
    Fifth District
    No. 5—84—0356
    Opinion filed February 28, 1985.
    Rehearing denied April 2, 1985.

      Karl D. Dexheimer, of Pope & Driemeyer, of Belleville, and Robert P. Schmidt, of St. Louis, Missouri, for appellant.
    Jerome Mirza & Associates, of Bloomington, for appellee.
   JUSTICE KARNS

delivered the opinion of the court:

A judgment of $700,000 was entered on a jury verdict in the circuit court of Madison County against defendant railroad, Burlington Northern, Inc., in a wrongful death action brought by Merle C. Bassett as executor of the estate of decedent, John David Atwood. The railroad seeks reversal of the judgment, or a new trial, asserting numerous errors for our consideration.

The defendant’s first contention is that the evidence failed to support a verdict for the plaintiff and that a directed verdict should have been granted in favor of the railroad. We have summarized the evidence for review in the light most favorable to the plaintiff in order to ascertain whether the verdict should be allowed to stand. Pedrick v. Peoria & Eastern R.R. Co. (1967), 37 Ill. 2d 494, 229 N.E.2d 504.

Atwood was killed on the morning of November 30, 1977, when his car struck the engine of a locomotive owned and operated by the defendant. Atwood was eastbound on Energy Mine Road, a gravel-surfaced county road in a rural area in Williamson County. The weather conditions on the morning of the accident caused some problems to motorists. The road was in a slushy, muddy state and a winter fog limited visibility. The extent of the fog and the visibility restrictions were disputed in the evidence, some witnesses describing the fog as patchy or hazy, others stating that the fog was dense or very heavy. Estimates of the range of visibility varied from 100 yards to three-quarters of a mile.

Defendant’s railroad tracks intersected Energy Mine Road at a 90° angle, which is described as the safest angle for a railroad crossing. Photographs taken at the scene depict the neighborhood surrounding the crossing as typically rural, devoid of residences or other buildings, and show that visibility was partially obstructed by trees, brush or embankments in three of the four quadrants at the crossing. The approach visibility in the northwest quadrant was affected by an eight-foot spoils bank. One witness estimated that the top one-third of a southbound train would be visible to an eastbound motorist. The grade of the road on which Atwood approached the tracks descended 27 inches within 50 feet of the crossing. Plaintiff’s expert testified that the downgrade exceeded desirable safety levels.

The traffic volume at the crossing was 306 vehicles per day, which included passenger cars, school buses, and heavy trucks carrying coal or explosives. There was no posted speed limit on the road, but an Illinois state trooper testified that the limit would be 55 miles per hour. Train traffic averaged five trains per day, with a daily count ranging from zero to nine trains. The railroad set the maximum speed limit for trains over the crossing at 49 miles per hour.

The county highway department had posted advance warning signs to indicate the existence of the crossing. The railroad’s warning signal was a wigwag located in the northeast quadrant of the crossing. The wigwag, which consisted of a red electric light surrounded by a black and white metal disk, was automatically activated to light up, swing back and forth, and sound a bell when a train approached the crossing. Neither crossbucks nor electronic flashers were installed at the crossing.

The only witnesses present at the collision were the crew members on the train. Their collective testimony proved that the train involved in the accident, an extra freight train consisting of two locomotive units, six cars and a caboose, was traveling south at 40 miles per hour. As it drew near the crossing, the air whistle was continuously sounded and the wigwag signal was operating. The headlights, illuminated number boards, and classification lights were all lighted and the brakes were in good working order. The locomotive engineer first saw Atwood’s car when it was approximately 20 feet from the train, and he saw the car strike the right side of the lead locomotive and land in a ditch.

Virtually no evidence was available to explain or describe Atwood’s actions prior to the collision. He was en route to a business appointment, traveling a road which he had used many times in the past. He was not known to have any sight or hearing impairment. No witness offered an estimate of the speed at which he was traveling. The plaintiff made no attempt to rebut or discredit the railroad’s testimony concerning the various warning devices and their operation on the day in question, some of which was corroborated by an independent witness. The plaintiff theorized that the accident occurred as a result of inadequate crossing protection, alleging essentially that the circumstances present at the time of the accident necessitated a warning by electronic flashers rather than the outmoded wigwag signal provided by the railroad. To that end, plaintiff offered the testimony of Dr. John Baerwald, a qualified traffic engineering expert. He visited the crossing some six years after the accident and also reviewed information concerning the circumstances of the accident including the condition of the crossing and its protection devices. He concluded that the crossing was inadequately protected and that crossbucks and electronic flashers should have been provided. Three witnesses who were or had been employed by the railroad in supervisory positions each testified that they had recommended or would recommend the installation of electronic flasher signals at the crossing. One of those witnesses explained during cross-examination that wigwag signals were not preferred anymore because they were outmoded and impractical for the railroad in terms of maintenance and the difficulty with replacement parts. He stated that a wigwag signal adequately protected a railroad crossing. Defendant’s engineering expert was the sole witness to unequivocally state that the wigwag signal at the Energy Mine Road crossing was an adequate warning device for the protection of motorists.

A railroad has a common duty to provide adequate warning devices at its crossings. (Stromquist v. Burlington Northern, Inc. (1983), 112 Ill. App. 3d 37, 444 N.E.2d 1113; Merchants National Bank v. Elgin, Joliet & Eastern Ry. Co. (1970), 121 Ill. App. 2d 445, 257 N.E.2d 216, aff’d (1971), 49 Ill. 2d 118, 273 N.E.2d 809.) Where there is any evidence tending to show that an extra-hazardous condition existed at the crossing, it is for the jury to determine whether the railroad should have provided additional warnings. (Baker v. Norfolk & Western Ry. Co. (1970), 120 Ill. App. 2d 296, 256 N.E.2d 887; Gibson v. Nenne (1954), 2 Ill. App. 2d 158, 118 N.E.2d 788.) All railroad crossings present a danger to motorists, and not every additional peril will impose a greater duty on the railroad. Each case must be decided independently by the jury, whose task it is to determine, from the circumstances in existence at the particular crossing at the particular time the vehicle approaches, whether the crossing is extrahazardous and the amount of protection required. First National Bank v. Rlinois Central Gulf R.R. Co. (1978), 62 Ill. App. 3d 36, 378 N.E.2d 1329.

In order for the jury to assess the questions of hazard and protection, the courts have enumerated various factors to take into consideration. As listed in Baker v. Norfolk & Western Ry. Co. (1970), 120 Ill. App. 2d 296, 256 N.E.2d 887, they are physical obstructions to vision, volume and speed of vehicular and train traffic, track arrangement, intersecting driveways and roadways, angles at which roadways intersect the tracks, character of the highway, width of the crossing, track elevation, character of the surrounding neighborhood, and sight distance. In the instant case, the trial record contains sufficient evidence for the jury to evaluate the danger at the crossing, in light of the Baker factors and to conclude that special perils existed. Additionally, the expert witnesses called by the parties evaluated the Energy Mine Road crossing utilizing most of the Baker components and offered their disparate opinions as to the adequacy of the wigwag signal under the conditions existing at the time of the accident. It was within the jury’s province to accept or reject their proffered opinions, and we are constrained to accept the decision under the Pedriek rule.

Defendant also asserts that the issue of the adequacy of protection was wrested from the jury when the court gave plaintiff’s instruction No. 17, which read:

“A railroad has a duty to provide adequate protection to the traveling public at its crossings.
Where a crossing is more than ordinarily hazardous or ex-trahazardous, the railroad has a duty to provide automatic electronic flashing light signals at the crossing.”

Defendant vigorously argues that this instruction grossly misstates the railroad’s legal duty and so prejudiced its case that a new trial is warranted. We agree.

The cases cited above unambiguously hold that the amount of protection required at a crossing is strictly a jury question to be determined from the circumstances of each case. From the facts presented in the instant case, the jury could well have determined that the wigwag signal adequately protected the Energy Mine Road crossing. The instruction, however, specifically mandated that electronic flashers were required at extrahazardous crossings. That portion of the instruction is inaccurate and insupportable in law. It impermissibly accroached the jury’s function and, in effect, directed a finding against the railroad. The defendant is therefore entitled to a new trial.

The cases cited above yield principles by which the courts can be guided when instructing the jury in cases which present the issue of adequacy of protection at railroad crossings. A finding of extrahazardousness is implied in a jury decision holding a railroad liable for failure to adequately protect its crossing, and therefore a special finding of extrahazardousness is not required. (Baker v. Norfolk & Western Ry. Co. (1970), 120 Ill. App. 2d 296, 303, 256 N.E.2d 887, 892.) The better practice, however, would be to particularize the instructions in order to clarify the dual questions of hazard and protection necessary to a finding of liability. The jury should be instructed that it is their duty to determine initially whether a crossing is extrahazardous. In that regard, the Baker factors may be listed in the instructions for the jury’s assistance in their deliberations. A delineation of the factors would also prove helpful to the jury when called upon to assess the opinions which may be offered by experts who testify to crossing hazards. The jury should be instructed, secondly, that it is their duty, upon a finding of extrahazardousness, to determine whether the crossing in question was adequately protected given all the circumstances in existence at the time of the occurrence which gave rise to the litigation.

Because a new trial has been ordered, we believe it is instructive and in the best interest of both parties to comment on certain other points of error raised by defendant in order to forestall potential prejudice on remand.

Michael Collins, a brakeman for defendant railroad, had been an assistant superintendent in the region of the accident for a period of two weeks before the occurrence. He was called and examined by plaintiff’s counsel pursuant to section 2 — 1102 of the Code of Civil Procedure (Ill. Rev. Stat. 1983, ch. 110, par. 2 — 1102). Collins’ admission as an adverse witness was in derogation of the provision of section 2 — 1102 which requires that the witness must hold a supervisory position with the opposing party at the time the witness is called to testify. Mazanek v. Rockford Drop Forge Co. (1981), 98 Ill. App. 3d 956, 424 N.E.2d 1271; Kuhn v. General Parking Corp. (1981), 98 Ill. App. 3d 570, 424 N.E.2d 941; Bansch v. Donnelly (1979), 77 Ill. App. 3d 922, 396 N.E.2d 869.

The gist of the testimony elicited from Collins was a summary of isolated statements made by Collins prior to trial, read by plaintiff’s counsel from a transcript of a coroner’s inquest and from a letter written by Collins to his supervisor in 1979. It is obvious from the trial transcript that plaintiff’s counsel’s sole purpose in his adverse examination of Collins was to impart to the jury potentially damaging information which he was unable to put into evidence through legally permissible means. That the court’s favorable rulings on defendant’s objections to the improper questioning were insufficiently curative is illustrated by the following exchange:

“Q. [plaintiff’s counsel] Well, you were also asked — In fact, the very next question that somebody asked you there was:
‘So, it is not an isolated crossing then?’
And you said, ‘No, it is our main coal route between Wyoming and Southern Illinois.’
Is that true?
MR. SCHMIDT [defense counsel]: Same objection, Your Honor. He is not impeaching with that question, and it is a totally improper way to examine the witness.
THE COURT: Objection will be sustained. Rephrase the question, counselor.
MR. MIRZA [plaintiff’s counsel]: Is that true? Was that your main coal route between Wyoming and Southern Illinois?
A. Yes, it was.”

The examination of Collins was blatantly improper almost in its entirety and should not be repeated on retrial. See Karlin v. Inland Steel Co. (1979), 77 Ill. App. 3d 183, 395 N.E.2d 1038.

Joyce Stratton, an intimate friend of the decedent at the time of the accident, testified to her close relationship to Atwood. Defendant made an offer of proof by which Stratton would testify that she and Atwood were planning to be married. The marriage testimony was not admitted, despite the fact that two witnesses called by plaintiff had testified that Atwood was devoutly Catholic and would not remarry because he considered himself bound to his ex-wife under the rules of his church. Defendant argues that the issue raised by the court’s rejection of the marriage testimony became important when plaintiff’s economic expert suggested a substantial figure for estimated economic loss which was computed based on the assumption that Atwood would remain single. We agree with defendant that it should have been permitted to contradict that assumption after the court allowed the plaintiff to open up the issue. (See Martin v. Allstate Insurance Co. (1981), 92 Ill. App. 3d 829, 416 N.E.2d 347.) Moreover, we believe that the marriage testimony was admissible as an exception to the hearsay rule. It is well established that a person’s declarations as to his or her state of mind are admissible to show that state of mind and such other things as proof of a state of mind tends to establish. (City of Streator v. Industrial Com. (1982), 92 Ill. 2d 353, 365, 442 N.E.2d 497, 503.) The rule should have been applied to Stratton’s proffered testimony concerning Atwood’s marital intentions.

Defendant complains that the testimony of Dr. Charles Linke, plaintiff’s economics expert, should have been excluded and that the railroad was prejudiced by having inadequate opportunity to prepare for and rebut the expert testimony. The record shows that defendant relied on plaintiff’s representation that the expert would not be called. The court allowed a deposition of Linke in the evening during the week of the trial. We accept defendant’s counsel’s assertion that the surprise and haste caused hardship in preparation for rebuttal and trust that the court will ensure that the situation will not be repeated.

The judgment of the circuit court of Madison County is reversed and the case is remanded for a new trial.

Reversed and remanded.

JONES, P.J., and WELCH, J., concur.


author: PRESIDING JUSTICE JONES

text:
    JUDY WHITSON MADDOX, Plaintiff-Appellee, v. WILLIAMSON COUNTY BOARD OF COMMISSIONERS, Defendant-Appellant.
    Fifth District
    No. 5—83—0818
    Opinion filed February 27, 1985.

      J. Lawrence Sanders, of James W. Sanders & Associates, of Marion, for appellant.
    William R Novick, of Fowler and Novick, of Marion, for appellee.
   PRESIDING JUSTICE JONES

delivered the opinion of the court:

The plaintiff, Judy Whitson Maddox, brought the instant action for review of a decision by the Williamson County Board of Commissioners (board) to terminate her appointment as supervisor of assessments of Williamson County. The trial court, finding that the record was insufficient to sustain the board’s dismissal of the plaintiff, reversed the board’s decision and entered judgment for the plaintiff. On appeal the board contends, first, that the trial court lacked subject-matter jurisdiction to review its decision dismissing the plaintiff and, second, that the court erred in reversing that decision when it was not against the manifest weight of the evidence. We affirm.

The plaintiff was appointed by the board as supervisor of assessments of Williamson County in November 1977 and was reappointed to that position in December 1981. On March 23, 1983, following a dispute over the firing of an employee in the assessor’s office, the board notified the plaintiff in writing of the termination of her employment as supervisor of assessments. The board listed the following actions by the plaintiff as reasons for her dismissal:

“1. Initiating Board of Review action without prior approval, in that she directed employees to reduce assessments on all pole barns. In addition, she directed employees not to inform a Board of Review member of the changes.
2. Practicing a discriminatory policy of arbitrarily setting dates for the owner-occupied exemptions without applying the intent of the legislature and the law.
3. Not performing quadrennial reassessments [sic] as required by law.
4. For [sic] not assessing property at the mandated one-third level of market value.
5. For [sic] terminating, without just cause, an employee of the office of the Supervisor of Assessments, thereby exposing the County to liability for monetary judgment.”

Pursuant to the plaintiff’s request, the board held a hearing regarding the plaintiff’s termination on May 11, 17, and 18, 1983. The plaintiff was present and was represented by counsel. At the hearing the plaintiff presented evidence as to the first reason listed in the notice of termination, that she had received the verbal approval of two of the board members to lower the assessments on pole barns before making such changes. She had been unable to discuss the pole barn changes with the third board member but had written letters to the individual members prior to her dismissal requesting their review of these structures and had received no response. The plaintiff stated further that her employees had been instructed not to make final changes to the property record cards on pole barns and to direct all inquiries regarding these and other valuation estimates to herself.

The plaintiff testified regarding the second reason listed in the board’s notice of termination, that, although the statute in question contained a cut-off date for filing owner-occupied exemption certificates (Ill. Rev. Stat. 1983, ch. 120, par. 500), the board had at various times in the past adopted a policy extending the time for filing such certificates, with which the plaintiff had complied. This testimony was corroborated by testimony of the county clerk and a former board commissioner who had served with the plaintiff and by a newspaper article stating such a board policy for tax year 1981, which was offered into evidence by the plaintiff.

Regarding the plaintiff’s failure to perform quadrennial assessments, listed in the board’s notice as the third reason for her dismissal as supervisor of assessments, the plaintiff stated that she had requested funds from the board for that purpose in February 1981, August 1981, August 1982 and February 1983 but that the board had failed or refused to provide such funds. Two letters to the board and two annual budgets to that effect were offered into evidence by the plaintiff. The plaintiff stated further that when she had begun her job as supervisor of assessments in 1977, the board was encountering problems implementing a newly enacted “farm bill” and had made a decision to forego the quadrennial assessment for 1979 because of the prohibitive cost involved and the lack of manpower and time necessary to accomplish a complete reassessment. While it was undisputed that no funds had been appropriated by the board for a quadrennial assessment during the plaintiff’s tenure as supervisor of assessments, there was testimony by one of the commissioners that a quadrennial assessment could have been initiated “at least in some piecemeal fashion” with surplus funds in the plaintiff’s budget.

The plaintiff testified regarding the failure to assess property at the mandated one-third level of market value, the fourth reason listed in the board’s notice of termination, that it was practically impossible to so assess property without first performing a quadrennial assessment. Rather, she had been instructed in courses and seminars on proper assessment procedures that it was more important to strive for equalization within the county and then apply the State multiplier county-wide to bring the assessment up to the required level. In addition, the board had directed the plaintiff not to “chase sales” since it would be unfair to assess new or recently sold properties at one-third of their sales price and then apply the State multiplier without considering the values of other properties in the area. It had been the procedure in the plaintiff’s office to take 35% of the value arrived at by using a 1974 cost manual, which had resulted in an average countywide assessment level of 18% before the State multiplier was applied. The plaintiff had specifically advised the board in requesting funds for a quadrennial assessment that such an assessment was necessary to achieve equalization within the county.

Regarding the fifth reason stated for the plaintiff’s dismissal, the termination of an employee in her office without just cause, the plaintiff cited instances of the lack of cooperation, general insubordination, failure “to want to follow” instructions, and the releasing of information without authority that were given as reasons for the employee’s dismissal in a letter to that employee on March 16, 1983. Specifically, the plaintiff testified that the employee in question had “[taken] it upon herself” to explain the changes in the pole barn assessments to a member of the board before the plaintiff had had an opportunity to discuss these changes with that member herself and had made final changes to the property record cards on pole barns in violation of the plaintiff’s instructions to the contrary.

At the close of the hearing the board, by a vote of two of the three commissioners, reaffirmed its decision terminating the plaintiff’s employment. The plaintiff then filed a complaint in the circuit court of Williamson County for review of the board’s decision under the Administrative Review Law (Ill. Rev. Stat. 1983, ch. 110, par. 3— 101 et seq.).

Following arguments by the parties, the trial court entered judgment for the plaintiff in an extensive and well-reasoned memorandum of judgment. Noting that, by statute (Ill. Rev. Stat. 1983, ch. 120, par. 484a) amended effective November 12, 1981, the plaintiff could be removed from office by a two-thirds vote of the county board for “misfeasance, malfeasance or nonfeasance in the performance of the duties of [her] office,” the court found that the record of the administrative hearing failed to show such conduct that would warrant the plaintiff’s dismissal. The court stated specifically:

“Under the facts before the Court, none of the five reasons could legally be construed to be malfeasance in office. If proven, reasons one, two and five could be legally construed as misfeasance in office. If proven, reasons three and four could be legally construed as nonfeasance in office. Whether or not the reasons, based upon the record, are legally misfeasance or nonfeasance in office is the critical question before this Court.”

Observing that the board had made no findings of fact as to any of the five reasons listed for the plaintiff’s termination, the court continued:

“IT IS *** THE FINDING OF THIS COURT that reasons one, two and five are conclusions of two members of the Williamson County Board which are not supported by any evidence produced at the hearing. Secondly, in view of the fact that the Williamson County Board of Review had the final responsibility for points one and two and that JUDY WHITSON MADDOX had full authority to act as she did in point number five, these points should be dismissed.
There is no question but that quadriannual [sic] assessments as required by law have not been done in Williamson County, Illinois, during the term of office of JUDY WHITSON MADDOX. Neither is there any question that Williamson County is not assessing property at a level of one-third of market value as mandated by the General Assembly of Illinois. There is a serious question, however, whether this noncompliance can be laid at the doorstep of JUDY WHITSON MADDOX.
Throughout the entire period, the Williamson County Board, acting as the Williamson County Board of Review, had the final determination on both of those matters. Secondly, until the Notice of Termination, the Williamson County Board of Review at no time questioned the fact that JUDY WHITSON MADDOX had not performed those functions. On the contrary, the evidence is clear that JUDY WHITSON MADDOX, on several occasions, requested the Williamson County Board to appropriate money so that both of these functions could be accomplished. The Williamson County Board chose to deny or to ignore those requests.
IT IS THE FURTHER FINDING OF THIS COURT that the Williamson County Board cannot terminate an Officer of Williamson County for nonfeasance of office when the Board has refused to appropriate funds necessary to accomplish the required function.
It is clear from the Statute of the State of Illinois that the County Board, in a commission form of county government, has the duty and the responsibility to provide the Supervisor of Assessments with funds to hire sufficient deputy assessors to perform the acts required by the Legislature of the State of Illinois. Real estate taxation in a county the size of Williamson is a difficult task at best. Real estate taxation in a county the size of Williamson is an impossible task when the County Board refuses to provide the personnel and money necessary to perform that function.”

The court concluded, therefore, that the decision of the board to terminate the plaintiff’s employment as supervisor of assessments “based upon the notice of termination and the evidence produced at the hearing” should be reversed. The board subsequently filed the instant appeal from that judgment.

On appeal the board contends initially that the plaintiff’s complaint for administrative review was ineffective to vest the trial court with subject-matter jurisdiction to review its decision because there was no provision for such review in the statute for removal of a supervisor of assessments under which the board acted. Thus, the board asserts, review was available to the plaintiff only by means of common law certiorari, and, since the plaintiff failed to follow such procedure, the trial court was without jurisdiction to review the board’s decision terminating the plaintiff’s appointment as supervisor of assessments.

We find no merit in this argument by the board, as the supreme court has held under similar circumstances that “the substantial differences that at one time existed between common law and statutory certiorari have been all but obliterated.” (Smith v. Department of Public Aid (1977), 67 Ill. 2d 529, 541, 367 N.E.2d 1286, 1293; Home-finders, Inc. v. City of Evanston (1976), 65 Ill. 2d 115, 357 N.E.2d 785; Nowicki v. Evanston Fair Housing Review Board (1975), 62 Ill. 2d 11, 338 N.E.2d 186; see also Quinlan & Tyson, Inc.,v. City of Evanston (1975), 25 Ill. App. 3d 879, 324 N.E.2d 65.) In those cases, as in the instant case, even though the administrative agencies’ decisions were not reviewable under the Administrative Review Law, they were nonetheless reviewable by common law certiorari. Despite the inapplicability of the Administrative Review Law, the complaints purportedly filed under the Law in Nowicki, Homefinders and Quinlan were held to be sufficient to authorize review under common law certiorari. (Smith v. Department of Public Aid (1977), 67 Ill. 2d 529, 367 N.E.2d 1286; cf. Homefinders, Inc. v. City of Evanston (1976), 65 Ill. 2d 115, 357 N.E.2d 785 (complaint, though entitled “Complaint for Administrative Review” and including a prayer for review under the Administrative Review Law, was sufficient to warrant treatment as a common law writ of certiorari instead of solely an action under the Administrative Review Law).) Since, as detailed by the Quinlan court, the procedure for judicial review of administrative decisions by way of certiorari closely resembles that for review under the Administrative Review Law and since “[ljabels have long since lost their significance in determining the legal sufficiency of a complaint in [actions] at law and in equity and *** should [not] retain significance in actions to review the determinations of administrative agencies” (Nowicki v. Evanston Fair Housing Review Board (1975), 62 Ill. 2d 11, 15, 338 N.E.2d 186, 188), we hold that the plaintiff’s complaint in the instant case, though filed under the Administrative Review Law, was sufficient to vest the trial court with jurisdiction to review the board’s decision.

The board asserts, in the alternative, that even if the trial court properly had jurisdiction to review its decision terminating the plaintiff’s employment, the court erred in reversing that decision when it was not against the manifest weight of the evidence. The standard to be applied in reviewing agency findings under common law certiorari, as in statutory certiorari proceedings, is whether the record contains any evidency which fairly tends to support the agency’s findings. (S & F Corp. v. Daley (1978), 59 Ill. App. 3d 1024, 376 N.E.2d 699.) A reviewing court thus will not reweigh the evidence and may set aside the agency’s findings only if they are palpably or manifestly against the weight of the evidence. (S & F Corp. v. Daley (1978), 59 Ill. App. 3d 1024, 376 N.E.2d 699; Quinlan & Tyson, Inc. v. City of Evanston (1975), 25 Ill. App. 3d 879, 324 N.E.2d 65.) Review of an agency’s decision regarding discharge of an employee, however, requires a further determination that the agency’s findings of fact are sufficient to warrant discharge under the applicable standard of conduct. (Batley v. Kendall County Sheriff’s Department Merit Com. (1981), 99 Ill. App. 3d 622, 425 N.E.2d 1201; see Johnson v. Macon County Board (1982), 104 Ill. App. 3d 885, 433 N.E.2d 707.) This is necessarily a question of the legal sufficiency of the conduct charged, and, despite the substantial deference given an agency’s determination in this regard, its decision to discharge will be overturned where found to be arbitrary and unreasonable. See Batley v. Kendall County Sheriff’s Department Merit Com. (1981), 99 Ill. App. 3d 622, 425 N.E.2d 1201; Johnson v. Macon County Board (1982), 104 Ill. App. 3d 885, 433 N.E.2d 707.

The statute at issue in the instant case governing removal of a supervisor of assessments during his or her term in office provides in pertinent part:

“[T]he county board, by a vote of 2k of its members, may dismiss a supervisor of assessments prior to the expiration of his term for misfeasance, malfeasance or nonfeasance in the performance of the duties of his office.” (Emphasis added.) (Ill. Rev. Stat. 1983, ch. 120, par. 484a.)

The statute contains no definition of “misfeasance,” “malfeasance” or “nonfeasance,” and we are aware of no authority construing this provision, added by amendment to the statute in 1981. (See generally Macaluso v. West (1976), 40 Ill. App. 3d 392, 352 N.E.2d 382 (prior to amendment, county board had no power to remove supervisor of assessments, who was subject to removal only under sections 322 through 344 of the Revenue Act of 1939 (Ill. Rev. Stat. 1983, ch. 120, pars. 803 through 805), following an adjudication of knowing neglect or evasion of duty).) Moreover, while the propriety of the plaintiff’s removal from office depends upon the meaning given the terms “misfeasance,” “malfeasance” and “nonfeasance,” we have found little Illinois authority defining these terms in other contexts.

In dealing with a statutory provision for removal of a public official for “neglect of duty” or “malfeasance in office” (see Ill. Rev. Stat. 1979, ch. 121, par. 5 — 203), the court in Johnson v. Macon County Board noted the dictionary definition of “malfeasance” as “[t]he doing of an act which a person ought not to do; *** an illegal deed” (Johnson v. Macon County Board (1982), 104 Ill. App. 3d 885, 891, 433 N.E.2d 707, 711), and stated:

“[M]alfeasance, as a ground for removal of a public officer, generally must have reference to evil conduct or an illegal deed or the performance of an act by an officer in his official capacity that is wholly illegal or wrongful.” 104 Ill. App. 3d 885, 891, 433 N.E.2d 707, 711.

The court found the definition of “neglect of duty,” which it equated with “nonfeasance,” to be more troublesome, but expressly declared that this concept was a narrower or more specific standard than that of “cause,” commonly set forth as the standard for removal of public officials (see also Holliday v. Civil Service Com. (1984), 121 Ill. App. 3d 763, 460 N.E.2d 358). The court held, therefore, that to constitute “neglect of duty” sufficient to warrant removal from office, the conduct complained of must have been a substantial failure to perform the official duties of the office. Since, in Johnson, there was no indication that the complaint was anything but an isolated incident and the county board had failed even to consider the dismissed officer’s prior record, the court found the board’s order of dismissal to be in error.

As in Johnson, the plaintiff’s conduct here must be considered in light of the commonly accepted meanings of the terms “misfeasance,” “malfeasance” and “nonfeasance,” with the proviso that conduct coming within the scope of these terms be substantial or without sufficient excuse (see 67 C.J.S. Officers sec. 122, at 492 (1978)) in order to warrant removal from office. As noted by the Johnson court, “malfeasance,” as a ground for removal of a public officer, is the performance of an act in one’s official capacity that is wholly wrong or unlawful, while “nonfeasance” is the neglect or failure to perform duties of an office that are required by law. “Misfeasance,” on the other hand, has reference to the performance by an officer in his official capacity of a lawful act in an improper or illegal manner. See Ballentine’s Law Dictionary 767, 806, 858 (3d ed. 1969); 63A Am. Jur. 2d Public Officers & Employees secs. 246, 250 (1984); 67 C.J.S. Officers secs. 122, 123 (1978); see also Holmes v. Osborn (1941), 57 Ariz. 522, 115 P.2d 775.

In the instant case the trial court determined, from the facts before it on review of the board’s order of dismissal, that none of the five reasons stated for the plaintiff’s dismissal could be legally construed to be malfeasance in office. We agree with this assessment since the plaintiff’s conduct did not in any way involve evil wrongdoing or illegal activity in connection with the duties of her office. Cf Johnson v. Macon County Board (1982), 104 Ill. App. 3d 885, 433 N.E.2d 707 (officer’s intoxication while on duty not illegal or wrongful so as to constitute malfeasance in office).

While the trial court agreed with the board’s further assertion that reasons one, two and five of the board’s order — lowering pole barn assessments without board approval, arbitrarily setting cut-off dates for the owner-occupied exemptions, and dismissing an employee of the assessor’s office without just cause — could be characterized as misfeasance in office, the court specifically found that these charges were not supported by evidence produced at the hearing. Our review of the record leads to the same conclusion. There was no showing that the plaintiff’s actions in lowering pole barn assessments were improper since, in addition to having statutory authority herself to make such changes (111. Rev. Stat. 1983, ch 120, par. 527), she sought and obtained the seeming approval of two of the board members before instituting this procedure and instructed her employees not to make final changes to the property record cards on pole barns pending her discussion of the matter with the third board member. We find no basis, moreover, for the additional claim that the plaintiff “directed [her] employees not to inform a [board] member of the changes [on pole barn assessments].” While the evidence showed that it was the plaintiff’s policy to have all valuation questions referred to herself personally, there was no indication that she sought to conceal information from the board by this or other means.

The record likewise fails to support the board’s charge that the plaintiff acted improperly in setting dates for the owner-occupied exemptions, as the evidence showed that the application dates for these exemptions had been set by board policy. The board’s further claim, that the plaintiff terminated an employee of her office without just cause and thereby exposed the county to liability for monetary judgment, similarly states a conclusion unsupported by facts. The record before us contains no showing that the employee’s dismissal was unwarranted or that such dismissal resulted in liability to the county, and we thus find no basis for this charge.

The remaining reasons stated for the plaintiff’s dismissal-failure to perform quadrennial assessments and failure to assess property at the mandated one-third level of market value — could, as the trial court observed, be construed as nonfeasance in office. There is no question, moreover, as to the factual basis for these charges, as the plaintiff stipulated that quadrennial assessments had not been performed for the years 1978 and 1982 and that property had been assessed below the mandated level of SSbWo of market value. The record shows, however, that the plaintiff’s failure to perform these duties of her office resulted, not from unwillingness on her part, but from the board’s own failure to appropriate the funds necessary to perform the quadrennial assessments. While the board calls attention to the surplus funds remaining in the plaintiff’s budget from year to year, it is not contended that these amounts were in any way adequate to accomplish the required assessments. Under these circumstances, the plaintiff’s failure in the duties of her office cannot be deemed sufficient to warrant her discharge on the grounds of nonfeasance, and we, accordingly, agree with the trial court’s finding to this effect.

For the reasons stated in this opinion, the judgment of the circuit court of Williamson County is affirmed.

Affirmed.

KASSERMAN and WELCH, JJ., concur.


author: JUSTICE KASSERMAN

text:
    DOWNEN ENTERPRISES et al., Plaintiff-Appellee, v. GEM OIL & GAS COMPANY, INC., et al., Defendants-Appellants.
    Fifth District
    No. 5—83—0559
    Opinion filed February 28, 1985.
    Wendy B. Porter and John A. Clark, both of Croegaert & McLaughlin, Ltd., of Olney, for appellants.
    Terry R. Black and Carl L. Favreau, both of Campbell, Furnall, Moore & Jacobsen, P.C., of Mt. Vernon, for appellee.
   JUSTICE KASSERMAN

delivered the opinion of the court:

This is an appeal from a judgment of the circuit court of White County which construed an oil and gas lease.

Plaintiff, Downen Enterprises, a partnership consisting of five brothers, filed a complaint seeking construction or reformation of an oil and gas lease. The complaint alleged, inter alia, that plaintiff owned the surface and an undivided interest in the minerals lying under a certain piece of real estate. On November 11, 1980, plaintiff executed and delivered to Geneva Oil and Gas Company an oil and gas lease to the real estate. This lease was subsequently assigned to defendant Gem Oil and Gas Company. Defendant Bi-Petro, Inc., is the crude oil purchaser of the oil produced from the real estate and was joined merely as a stakeholder in this action.

The oil and gas lease contained a lesser interest clause which stated, in part:

“*** if Lessor owns an interest in the oil and gas and like minerals underlying said land less than the entire fee simple estate, then the royalties and rentals to be paid Lessor shall be reduced proportionately.”

The oil and gas lease also contained a supplement entitled “Attachment ‘A.’ ” This portion of the lease stated, inter alia: “Lessors will receive a Vsth of 8/sths Overriding Royalty Interest.”

The trial court, after hearing evidence, denied plaintiff’s request for a reformation of the lease; however, judgment was entered in favor of plaintiff. The judgment stated in part:

“10. The basic issue is one of construction and is whether or not the overriding royalty reservation is subject to the ‘lesser-interest’ clause in the lease. The ‘lesser-interest’ provision in an Oil and Gas Lease concerns the customary Vs owners royalty. This clause is inserted in an Oil and Gas Lease to protect the Lessee from double liability, and unless there is specific language in the overriding royalty reservation making it subject to the ‘lesser-interest’ provision, it should not be subject to the ‘lesser-interest’ provision. An overriding royalty reservation is contractual. The language controls and in this case the language does not restrict the reservation.
11. Judgment should be entered herein in favor of Plaintiffs and against Defendant, Gem Oil & Gas Co., Inc., on the construction theory and Plaintiffs are entitled to a full Vs x 8/s overriding royalty, which interest should not be reduced proportionately by the ‘lesser-interest’ provision of said Oil and Gas Lease.”

Gem Oil and Gas Company has brought this appeal and maintains that the overriding royalty granted to plaintiff should have been reduced by the lesser interest clause of the lease.

Plaintiff contends that the case of Williams v. Sohio Petroleum Co. (1958), 18 Ill. App. 2d 194, 151 N.E.2d 645, is controlling and the trial court’s judgment was correct. We agree.

In Williams the court considered the application of a lesser interest clause to an overriding royalty interest reserved in the lease. There the court said:

“We agree that the wording of the whole lease is properly considered when the court is called upon to construe its legal effect. But much of the argument about the lesser interest clause is beside the point, and we do not propose to hold that any overriding royalty reserved in the lease, regardless of
wording, is automatically reduced by that clause.
* * *
*** However, the extent of the overriding royalty may be, and often is, limited by the extent of the mineral interest of the owner. It depends upon the wording of the reservation. The majority of the decisions hold this wording controls, without reference to a lesser interest clause, and the same method of construction is applied both to leases, and to deeds, even though the latter have no similar lesser interest clause.” (18 Ill. App. 2d 194, 198-99,151 N.E.2d 645, 647-48.)

The Williams court then stated that it agreed with the majority of the decisions and proceeded to determine the intention of the parties as indicated by the express wording of the reservation. A number of authorities in the area of oil and gas law have recognized that Williams sets forth the applicable Illinois law regarding any conflict between an overriding royalty and a lesser interest clause. See 3A W. Summers, Law of Oil & Gas sec. 609.2 (1984 Supp.); 4 H. Williams, Oil & Gas Law sec. 686.7 (1981).

As stated in Williams, the extent of the overriding royalty interest reserved by plaintiff in the case at bar depends on the wording of the reservation without reference to the lesser interest clause. In this regard, with at least constructive knowledge of plaintiff’s interest, defendant’s predecessor in interest accepted plaintiff’s lease containing a reservation of a one-eighth of eight-eighths overriding royalty interest, a one-eighth of the total mineral interest and not a one-eighth of only plaintiff’s interest in the minerals. As the successor in interest to the original lessee, defendant is bound by the same reservation. Therefore, we find that the trial court correctly applied the law in the instant case and we will not disturb its judgment.

For the foregoing reasons, the judgment of the circuit court of White County is affirmed.

Affirmed.

JONES, P.J., and WELCH, J., concur.


text:
    SALISBURY PLUMBING & HEATING COMPANY, Plaintiff and Counter-defendant-Appellant and Third-Party Plaintiff-Appellee, v. KENNETH C. CARPENTER et al., Defendants and Counterplaintiffs-Appellees (Fred McGilvray, Inc., Third-Party Defendant-Appellant).
    Fifth District
    No. 5—83—0557
    Opinion filed February 26, 1985.
    Rehearing denied April 2, 1985.

      John F. Schlafly, of Alton, for appellant Fred McGilvray, Inc.
    R. Edward Veltman, Jr.,, of Crain, Cooksey, Veltman & Pursell, Ltd., of Centraba, for appellee Salisbury Plumbing & Heating Co.
    Richard A. Cary, of Wham & Wham, of Centraba, for other appellees.
   JUSTICE KASSERMAN

delivered the opinion of the court:

This suit involves a disputed construction contract involving three parties: Kenneth C. and Barbara Carpenter (Carpenter); Salisbury Plumbing and Heating Company (Salisbury), an Illinois corporation; and Fred McGilvray, Inc. (McGilvray), a Florida corporation.

On May 5, 1977, Carpenter entered into a contract with Salisbury in which Salisbury agreed to install a fire sprinkler system in a commercial building owned by Carpenter in Salem. On the same day, Salisbury entered into a separate contract with McGilvray in which McGilvray agreed to provide a fire protection system to fill Salisbury’s obligation to Carpenter. The construction of the sprinkler system was completed in June 1977, but the system proved unacceptable to Carpenter. After an initial payment was made to Salisbury and McGilvray, Carpenter refused to make further payments.

On August 7, 1978, Salisbury filed suit against Carpenter in Marion County, and on July 20, 1981, McGilvray filed suit against Salisbury in Dade County, Florida. Subsequently, on September 27, 1982, Salisbury filed a third-party complaint against McGilvray ih Marion County in response to a counterclaim filed by Carpenter against Salisbury in its suit against Carpenter in Marion County.

Salisbury retained a Florida law firm to appear and represent it in the Dade County litigation. Salisbury was served with process, filed an answer, and participated in pretrial proceedings in Florida.

The Florida case proceeded to trial before a jury in January 1983, and on February 4, 1983, judgment was entered on the verdict rendered in favor of McGilvray.

On February 14, 1983, McGilvray moved to file a supplemental answer in Marion County, pursuant to section 2 — 609 of the Civil Practice Law (Ill. Rev. Stat. 1983, ch. 110, par. 2 — 609). The proposed supplemental answer pleaded the Florida judgment as both an affirmative defense to Salisbury’s third-party complaint and as a counterclaim against Salisbury for the amount of the judgment. On February 25, 1983, the trial court heard McGilvray’s motion to file its supplemental answer and further considered McGilvray’s motion for judgment on the pleadings. The trial court allowed McGilvray’s counterclaim based on the Florida judgment but refused McGilvray’s request that the Florida judgment be pleaded as an affirmative defense to Salisbury’s third-party complaint. The trial court also denied McGilvray’s request for judgment on the pleadings.

After the trial court denied McGilvray’s motion to plead the Florida judgment as a defense against Salisbury’s third-party action, the cause proceeded to trial. A bench trial was conducted and the trial court made the following rulings: (1) it denied Salisbury’s action against Carpenter; (2) it granted judgment on Carpenter’s counterclaim against Salisbury; (3) it granted judgment on Salisbury’s third-party complaint against McGilvray; and (4) it denied McGilvray’s counterclaim based on the Florida judgment against Salisbury.

The trial court’s order included the following finding:

“24. Third Party Plaintiff, Salisbury, defendant in Case No. 81 — 12096 CA 02 in the Circuit Court of the Eleventh Judicial Circuit In And For Dade County, Florida, did not receive notice of the Florida proceedings in sufficient time to enable it to defend based on the following facts:
(a) This court entered an Order for Issuance For Writ of
Injunction on January 14, 1983, restraining further proceedings in said Case No. 81 — 12096 CA 02 in the Circuit Court of the 11th Judicial Circuit, Dade County, Florida.
(b) Said Injunction Writ was issued by the Clerk of this Court on January 14, 1983.
(c) This Court on January 17, 1983, denied [McGilvray’s] Motions to Dissolve Injunction and For Stay Pending Appeal.
(d) On January 18, 1983, [McGilvray] filed in the Appellate Court of Illinois, Fifth District, a Motion For Stay of Injunction pending appeal.
(e) [McGilvray] notified Salisbury’s Attorney and Carpenter’s Attorney of the filing, but did not notify said Attorneys that [McGilvray’s] Attorney would ask the Clerk of the Appellate Court to present the Motion to the Court on that date. [McGilvray’s] Attorney did so request the Clerk of said Court.
(f) [McGilvray’s] Attorney learned at 5:00 p.m. on January 18, 1983, that the Appellate Court granted his motion for a stay, but [McGilvray’s] attorney did not notify Carpenter or Salisbury’s respective attorneys.
(g) Appellate Court’s early action surprised [McGilvray’s] attorney who did not expect his motion to be granted on January 18,1983.
(h) Salisbury’s attorney did not learn of Appellate Court’s action until the morning of January 19, 1983, at approximately 8:30 a.m., when he received a copy of the Appellate Court’s order. Salisbury’s attorneys then called local counsel for Salisbury in Florida who advised the matter on Case No. 81 — 12096 CA 02 had been set for jury trial at 11:00 a.m. (Florida time) on January 19, 1983, in Florida. A motion was filed in the Appellate Court on January 19, 1983, to reconsider its stay of the injunction, but this was denied on that date.
(i) Salisbury upon learning of the Florida trial setting immediately attempted to travel to Florida to assist in the defense of the case, but Salisbury did not in fact arrive in Florida until the second and last day of the Florida trial on January 20, 1983.
(j) Carpenter, at Salisbury’s request, also attempted to travel to Florida to testify at the trial but arrived after the jury had started deliberations; and Carpenter was not allowed to testify on behalf of Salisbury.
(k) Salisbury was denied an opportunity to assist in the total
defense of his trial in Florida and was prevented from offering a key witness, Carpenter, through no lack of due diligence on the part of Salisbury.”

On appeal, McGilvray maintains that the trial court erred by failing to give full faith and credit to the Florida judgment. McGilvray further requests that we reverse the judgment of the circuit court of Marion County regarding Salisbury’s third-party complaint and enter judgment in favor of McGilvray and against Salisbury on McGilvray’s counterclaim. McGilvray, as the brief filed by Carpenter points out, does not challenge the judgment insofar as it establishes Salisbury’s liability to Carpenter.

Salisbury asserts that the trial court correctly found, pursuant to section 12 — 621(b)(1) of the Uniform Foreign Money-Judgments Recognition Act (Ill. Rev. Stat. 1983, ch. 110, par. 12 — 621(b)(1)), that the Florida judgment need not be recognized because Salisbury did not receive notice of the Florida proceedings in sufficient time to enable it to defend. Salisbury further suggests that the Florida judgment rendered against it is not res judicata and that it is not collaterally estopped from contesting it.

It is noteworthy that the trial court found that Salisbury did not receive adequate notice of the Florida proceeding because Salisbury did not receive notice that this court had granted McGilvray’s motion for a stay of injunction until trial was about to begin in Florida. Essentially, the trial court applied section 12 — 621(b)(1) of the Uniform Foreign Money-Judgments Recognition Act because of this court’s action in staying the injunction. We find this application of the statute by the trial court to be erroneous. While there is a dearth of case law regarding section 12 — 621(b)(1), we think that it is obvious that the notice mentioned in the statute refers to the notice required by the foreign jurisdiction which rendered the judgment, not notice of a ruling by an Illinois appellate court on a motion.

In the instant case, for purposes of determining the application of section 12 — 621(b)(1), it is irrelevant when Salisbury was notified of this court’s ruling on McGilvray’s motion for a stay of injunction. The fact remains that Salisbury was well aware of the fact that a suit against it was pending in Florida. Salisbury had retained Florida counsel and participated in pretrial proceedings. Merely because Salisbury was not notified of this court’s action on a pending motion until just prior to the date set for trial in Florida does not amount to untimely notice under section 12 — 621(b)(1).

Salisbury alternatively urges, relying on Case Prestressing Corp. v. Chicago College of Osteopathic Medicine (1983), 118 Ill. App. 3d 782, 455 N.E.2d 811, that the doctrine of res judicata does not apply in the present case. Salisbury maintains that McGilvray’s suit against Salisbury in Florida was based on a different cause of action because Carpenter was not a party to the Florida litigation. We do not agree.

The contractual liability as between Salisbury and McGilvray was established in the Florida proceeding. This is subject matter that Salisbury sought to relitigate in Illinois through its third-party complaint against McGilvray. We are required under the full faith and credit clause of the United States Constitution to give res judicata effect to the judgments of courts of a sister State. (Grant, Schon, Wise & Grant, P.C. v. R.W. Borrowdale Co. (1983), 114 Ill. App. 3d 89, 91-92, 448 N.E.2d 574, 576; Fender v. St. Louis Southwestern Ry. Co. (1979), 73 Ill. App. 3d 522, 525-26, 392 N.E.2d 82, 85.) We reject Salisbury’s contention that because the contractual liability of Salisbury and Carpenter was not litigated in Florida, such fact should alter the res judicata effect of the Florida judgment.

Salisbury’s reliance on Case Prestressing Corp. is misplaced. In that case, the court held that where the parties agree to withdraw a particular claim from litigation, the doctrine of res judicata would not bar subsequent litigation concerning that claim in a different forum. No similar circumstance is presented in the present case.

For the reasons stated, the judgment in favor of Salisbury and against McGilvray on Salisbury’s third-party complaint is reversed. We cannot comply with McGilvray’s request that we enter judgment in favor of McGilvray and against Salisbury on McGilvray’s counterclaim which is based upon the Florida judgment. If McGilvray wishes to enforce the Florida judgment in Illinois, it should petition to register the Florida judgment under the Uniform Enforcement of Foreign Judgments Act (Ill. Rev. Stat. 1983, ch. 110, par. 12 — 601 et seq.), pursuant to section 12 — 620 of the Uniform Foreign Money-Judgments Recognition Act (Ill. Rev. Stat. 1983, ch. 110, par. 12 — 620).

Since the parties do not question the judgment rendered against Salisbury in favor of Carpenter, the judgment in this regard is affirmed.

For the foregoing reasons, the judgment of the circuit court of Marion County is reversed in part and affirmed in part.

Reversed in part; affirmed in part.

JONES, P.J., and EARNS, J., concur.


author: JUSTICE WELCH

text:
    CHRISTIAN COUNTY FARMERS SUPPLY COMPANY, Plaintiff-Appellee, v. GEORGE RIVARD, Defendant-Appellant.
    Fifth District
    No. 5—84—0149
    Opinion filed March 25, 1985.
    Frank B. Schweitzer, of Taylorville, for appellant.
    Rocci L. Romano, of Hershey, Bliss, Beavers, Periard & Romano, of Taylorville, for appellee.
   JUSTICE WELCH

delivered the opinion of the court:

Plaintiff, Christian County Farmers Supply Company (Farmers Supply), a corporation organized pursuant to the Agricultural Co-Operative Act (Ill. Rev. Stat. 1983, ch. 32, par. 440 et seq.) (the Act), filed its January 13, 1983, complaint for damages in the amount of sums due and owing from defendant George Rivard for goods, merchandise and services received. After a bench trial, the circuit court of Christian County awarded substantially all the relief sought by Farmers Supply. The sole issue in this appeal is whether the trial court erred in refusing Rivard a setoff in the amount of preferred stock in Farmers Supply owned by Rivard.

There is no dispute as to the essential facts. Upon becoming a member in Farmers Supply, Rivard became the owner of one share of common stock. During the parties’ business relationship, Rivard acquired various shares of Class “D” and Class “E” preferred stock, as well as stock credit as to both classes. Among the “provisions” listed on each stock certificate of record is the following: “The association may and it hereby reserves the right to redeem or purchase any and all of the then outstanding *** Class ‘D’ *** or Class ‘E’ Preferred Stock of the association ***, in such amounts and from time to time as the Board of Directors may determine.” Paragraph 9(h) of the amended articles of incorporation is essentially similar to the above-quoted provision. Under the amended articles of incorporation, the common stockholders of Farmers Supply are its members; common stock may only be issued to and owned by producers of agricultural products who are also patrons of Farmers Supply; common stock is nontransferrable; preferred stock may be transferred with the consent of Farmers Supply, and no restriction is stated regarding ownership of preferred stock by nonmembers. The Act provides that preferred stock may be sold to any person and that transfer of common stock to persons not engaged in production of agricultural products is prohibited. (Ill. Rev. Stat. 1983, ch. 32, par. 454.6.) Farmers Supply’s bylaws provide that any common stockholder who ceases to be a producer of agricultural products or who fails to patronize Farmers Supply for one year shall forfeit his membership upon passage of a resolution by the board of directors finding such facts. Rivard is no longer engaged in farming and has not patronized Farmers Supply since 1981. So far as the record reveals, the board of directors has passed no resolution terminating Rivard’s membership.

Section 10 of the Act, which sets forth various matters which an agricultural co-operative may provide for in its bylaws, states in pertinent part:

“*** In case of the withdrawal or expulsion of a member, unless otherwise limited or restricted in the articles of incorporation or any amendment thereto, the board of directors shall equitably and conclusively appraise his membership and/or common stock interests in the association and shall fix the amount thereof in money, which shall be paid to him within one year after such expulsion or withdrawal.” (Ill. Rev. Stat. 1983, ch. 32, par. 449(i).)

“Member” is defined in the Act as including actual members of associations without capital stock (not the case here), and holders of common stock in associations (such as Farmers Supply) organized with capital stock. Ill. Rev. Stat. 1983, ch. 32, par. 441(b).

Rivard contends that he has in effect withdrawn as a member of Farmers Supply and is therefore entitled to redeem his preferred stock and preferred stock credits under section 10 of the Act. In general, absent contractual or statutory requirements to the contrary, a shareholder may not force a corporation to redeem or repurchase shares of stock. (See Thompson v. Fairleigh (1945), 300 Ky. 144, 147-48, 187 S.W.2d 812, 814; cf. Meadows v. Bradshaw-Diehl Co. (1954), 139 W. Va. 569, 581, 81 S.E.2d 63, 70; 18 Am. Jur. 2d Corporations sec. 284 (1965) (the directors of a corporation generally have discretion as to when the corporation’s power to retire certain classes of stock should be exercised).) Rivard does not contend that Farmers Supply was contractually obligated to repurchase his stock. Thus, the issue presented is whether section 10 of the Act evidences our legislature’s intent that an agricultural cooperative be required to redeem the shares of preferred stock of one who no. longer qualifies as a member.

We believe the answer is no. Leaving aside the fact that Rivard’s membership in Farmers Supply was never formally terminated, the failure of the legislature to provide in section 10 for redemption of preferred stock, as such, or “stock” or “all stock,” renders Rivard’s contention without merit. Instead, section 10 refers to repurchase of “membership” and “common stock” interests. Given the Act’s explicit differentiations between common stock and preferred stock, e.g. in respective provisions governing transfer of the two classes, we cannot view the legislature’s reference to “membership” and “common stock” in section 10 as of the same import as a reference to “stock” or “all stock.” A statute should be so construed, if possible, that no word, clause or sentence is rendered meaningless or superfluous. (City of East Peoria v. Group Five Development Co. (1981), 87 Ill. 2d 42, 47, 429 N.E.2d 492, 494.) We conclude that the legislature did not intend the portion of section 10 relied upon by Rivard to apply to preferred stock. Parenthetically, the trial court did not expressly rely upon this distinction in his written order; however, the judgment may be sustained upon any ground warranted, regardless of whether it was relied on by the trial court. Material Service Corp. v. Department of Revenue (1983), 98 Ill. 2d 382, 387, 457 N.E.2d 9, 12.

Rivard urges that we should look to the “evil sought to be remedied” by section 10 of the Act, i.e. (we are told), that a board of directors would otherwise have unbridled discretion as to when redemption shall be allowed. However, in general, this “evil” is inherent in any capital stock issue absent statute or agreement to the contrary. Also, this “evil” is not so great in the case of preferred stock, which may be freely transferred, as in the case of the instant agricultural cooperative common stock, which may not be transferred, as in the latter case no one else may buy the stock if the cooperative will not redeem it. Consistently, the Act provides for redemption in the latter case and not in the former.

Deciding, as we do, that section 10 of the Act insofar as relied on by Rivard does not apply to preferred stock, we need not consider Rivard’s contention that the one-year valuation period set forth in section 10 may not be lengthened by agreement.

For the foregoing reasons, the judgment of the circuit court of Christian County is affirmed.

Affirmed.

JONES, RJ., and EARNS, J., concur.