author: JUSTICE McGILLICUDDY

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ALONZO LEWIS, Defendant-Appellant.
    First District (3rd Division)
    No. 80—2449
    Opinion filed June 1, 1983.

      Ralph Ruebner, Richard F. Faust, and Mick Geanopoulos, all of State Appellate Defender’s Office, of Chicago, for appellant.

      Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat, Lester M. Joseph, and Lawrence R. Stasica, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE McGILLICUDDY

delivered the opinion of the court:

Following a jury trial, defendant, Alonzo Lewis, was convicted of two counts of rape, two counts of deviate sexual assault and burglary. Defendant was sentenced to concurrent prison terms of two 25-year terms for rape, two 25-year terms for deviate sexual assault and one seven-year term for burglary. Defendant contends on appeal that: (1) the trial court erred in finding him restored to mental fitness to stand trial solely on the basis of stipulations; (2) defense counsel’s acquiescence in this regard constituted ineffective assistance of counsel; (3) he was not proved guilty beyond a reasonable doubt; (4) the trial court erred in admitting evidence of another offense allegedly committed by defendant; (5) the trial court erred in admitting into evidence a mug shot of the defendant; (6) the trial court erred in refusing to take judicial notice of the times of the setting of the moon and the rising of the sun on a given day; (7) the trial court erred in restricting the cross-examination of the arresting officer.

This appeal arises from defendant’s second trial for the charged offenses. He was originally brought to trial before Judge Gino Di Vito on November 5, 1979. As that trial progressed the court noted that defendant’s behavior was extremely passive and that defendant was frequently sleeping through the proceedings, creating a bona fide doubt as to his fitness to stand trial. A fitness hearing was held pursuant to section 5 — 2—1 of the Unified Code of Corrections (Ill. Rev. Stat. 1979, ch. 38, par. 1005 — 2—1). Dr. Eugene Stern testified that in his opinion defendant suffered from paranoid schizophrenia and was in need of medical treatment as defined by the statute. In Dr. Stern’s opinion the defendant was not fit to stand trial. Thus, the court declared a mistrial on November 9, 1979.

On June 19, 1980, proceedings were held before Judge Earl E. Strayhom regarding defendant’s restoration to fitness for trial. Counsel for each party stipulated that Dr. Gilbert Bogen had examined defendant on March 25, 1980, and if called to testify Dr. Bogen would state that the defendant was on that date mentally fit for trial. It was also stipulated that Dr. McGiven had examined defendant on February 28, 1980, and had found him sufficiently recovered to stand trial. No other evidence was presented. The court found defendant restored to fitness stating:

“Based upon these stipulations, there will be a finding that Alonzo Lewis understands the nature of the charges pending against him, is able to cooperate with counsel in his own defense; is therefore, legally fit to be tried on this criminal case and the Court so finds.”

Subsequently, the matter proceeded to trial. On July 12, 1978, the complaining witnesses, Rosie and Shirley and their husbands, Johnny and Willie (who were brothers), were living together, along with Rosie’s two-year-old child, in a second-story apartment on West Washington Street, in Chicago. During the early morning hours, the women and the child were alone in the apartment while their husbands were at work. About 1:30 a.m., Rosie got up and walked to the bathroom. Suddenly, a man with a silk stocking over his head grabbed her face from behind the bathroom door. Rosie testified that she could see his features through the mask, and that he was clean-shaven, young and black. She ran through the apartment to the dining room where Shirley was asleep on a sofa-sleeper. The intruder chased her, cutting her beneath her right eye with a knife, and pushed her onto the sofa-sleeper with Shirley. As Shirley began to turn over, the man commanded her to remain face-down. With his knife at her throat, he ordered Rosie to lie face-down and put a pillow over her head. He told her not to move or he would kill Shirley.

The man then ordered Shirley and Rosie to put, their hands behind their backs and tied Rosie’s hands together with one leg tied to her hands. Then he gagged Rosie and asked her if there was any money in the apartment. When Rosie indicated that there was none, he told her would put her baby in the oven if she were lying.

Rosie testified that the man went to Shirley’s side of the bed and she could hear Shirley crying and the man calling her obscene names while the bed moved. He returned to Rosie’s side of the bed, pulled her to the foot of the bed, cut the rope from her leg and ripped off her panties. He tried unsuccessfully to have anal intercourse with Rosie.

Thereafter he went into the kitchen and turned on the light. Rosie testified that this also created more light in the dining room. She heard the man remove the burglar bars from the backdoor and open the refrigerator. He brought some chicken from the refrigerator into the dining room and sat down at the dining room table to eat it. Rosie was able to see the intruder’s face for about two minutes as he ate. He was no longer wearing a mask. She identified defendant at trial as the same man.

When defendant finished the chicken, he returned to Rosie and turned her onto her back. He had nothing covering his face. He tore off Rosie’s nightgown and placed his penis in her vagina. At that time his face was a “couple of inches” from her and she observed him for three or four minutes. She testified that the defendant looked different at trial because he had grown a beard and mustache and had gained some weight.

Eventually defendant untied Rosie but told her not to move or he would kill Shirley. He went to Shirley’s side of the bed. The bed began moving again and Rosie could hear Shirley crying. At that point, Johnny and Willie turned the lock in the front door and the intruder fled out the back. Rosie got up to let the men in and noticed that the chain had been put on the front door and that someone had placed a chair in front of the door. The apartment had been thoroughly ransacked; things had been thrown all over and some toiletries were missing from the bathroom. Rosie testified that the bathroom window was the only window or door that had not been locked that night. Rosie testified that toothpaste, draincleaner and Comet were missing from the bathroom window sill.

Shirley’s testimony corroborated Rosie’s testimony. She stated that after the defendant had tied her hands together and one foot to her hands, he pulled her to the foot of the bed by the rope, cut her on the leg and said that she was acting stubborn. He tore her panties off and had anal intercourse with her for about five minutes. Later she heard him make an obscene remark to Rosie and then go into the kitchen. Following more obscenities to Rosie, the intruder returned and placed his penis in Shirley’s vagina for about five minutes. He stopped and fled when he heard the front door being unlocked.

The police were called immediately and three or four officers came to the apartment. Rosie testified that she could not say anything to them at that time because she was crying. The two women were taken to Loretto Hospital where they were examined and treated. Michael Zefeldt, a microanalyst for the Chicago police department, testified regarding slides (smears) taken from the vaginas of both women. The slide taken from Rosie showed the presence of spermatozoa; the one from Shirley did not. This was consistent with the women’s testimony that the defendant had told Rosie that he had ejaculated. Shirley testified that he had not ejaculated while raping her.

On September 30, 1978, the women went to the police station to view a lineup. Rosie testified that she saw five men in the lineup and that she immediately identified the defendant as the man who had raped her.

Shirley testified that she was not able to see the intruder’s face for a prolonged period of time, but that she had heard his voice throughout the episode. When she viewed the lineup, the police had requested each man to repeat words used by the rapist, and Shirley identified the voice of defendant. She also identified defendant in court as the same man she had pointed out in the lineup. Shirley testified that she and Rosie had viewed the lineup separately.

Officer Mary Lewsader of the Chicago police department testified that on July 12, 1978, she went to the apartment to investigate a rape complaint. She went into the bedroom with Rosie and Shirley and their husbands. She testified that one woman was sitting on the bed staring into space and that the other was standing by the closet crying. Both were extremely upset and unable to speak coherently. Eventually, she was able to get a composite description of the rapist from the two, but she was unable to recall which woman gave her which information. According to the composite, their assailant was six feet two inches tall and weighed 165 pounds.

Over objection by defense counsel, Diane testified that on September 14, 1978, she was living in a second-floor apartment on North Central Avenue in Chicago, on the same block as the complainants’ apartment. At 5 a.m. her husband left for work and she got up and locked the door. There were only two windows in the apartment and one was locked and the other was blocked by a window fan. The witness testified that she returned to bed but was awakened when she suddenly saw a man standing over her. He was holding a knife and his face was partially covered by a white handkerchief. She testified that there was daylight in the apartment. The man asked her for money and told her not to turn around or he would kill her. He put a pillowcase over her face and tied her hands and feet. He had vaginal intercourse with her as she lay on her back. He then pulled her out of bed to her knees and had anal intercourse with her. She heard him rummaging around the apartment, pulling out drawers. He opened the refrigerator and she heard him open and drink a can of beer. She asked him to take her to the washroom which he did. When she no longer heard him in the apartment, she freed herself and called the police. She testified that her apartment was “tore up, clothes and drawers and stuff was allover.” In addition, two chickens, sausage, hot dogs, and lunchmeat had been taken from her refrigerator. She went to Loretto Hospital for treatment.

About two weeks later, a police investigator showed Diane some photographs, including a 1977 mug shot of the defendant. He covered the bottom half of the faces with white paper. She identified the photo of the defendant as her attacker. At trial she again identified the photograph and identified the defendant. On cross-examination, Diane testified that the investigator had covered only the photograph of the defendant when she originally viewed them. However, on redirect she testified that the bottom halves of all the photographs had been covered. The investigating officer testified that he had covered all the photos from the nose down when showing them to Diane. Diane testified that she had not filed a complaint against defendant because she feared reprisals. Over objection by defendant, the 1977 mug shot of the defendant was admitted into evidence.

Two police officers testified that they investigated Rosie and Shirley’s apartment on the night of the rape. They did not notice any chicken bones, nor did they find any fingerprints other than one of Johnny, Rosie’s husband. The bathroom window was closed and there were items standing upright on the bathroom window sill.

The arresting officer testified that he apprehended the defendant on September 30, 1978, when he was spotted ducking between parked cars. On cross-examination counsel for defendant questioned the officer as to whether defendant had actually been stooping rather than ducking between cars, as though to pick something up rather than to hide. When the State objected to this line of questioning the objection was sustained.

The jury found defendant guilty of two counts of rape, two counts of deviate sexual assault and one count of burglary. Defendant was sentenced to concurrent terms of two 25-year terms for rape, two 25-year terms for sexual assault and seven years for burglary. Defendant appeals.

I

The defendant contends that the trial court erred in finding him restored to mental fitness solely on the basis of stipulations. In People v. Reeves (1952), 412 Ill. 555, 107 N.E.2d 861, the defendant had been found insane by a jury following a psychiatric examination and was committed. Subsequently a petition was filed by defense counsel to the effect that defendant had recovered from said insanity to the degree that he could now cooperate with his counsel and could enter a plea. A jury was impaneled to determine whether defendant had recovered. The court instructed the jury to make a finding of sanity on the basis of defense counsel’s stipulation. In reversing the defendant’s subsequent conviction, the supreme court stated:

“If a defendant is insane and unable to answer for himself, he certainly is in no position to authorize his counsel to stipulate, nor is counsel warranted in stipulating, to his restoration, which is the very issue the jury is sworn to try. Nor is the court warranted, on the basis of such a plea and without a full hearing, in instructing the jury as to the ultimate verdict on the ground of such stipulation, plea or assertion standing alone and without evidence to support such action.” 412 Ill. 555, 560.

Further, Illinois courts have held that an initial adjudication of unfitness creates a presumption that the defendant remains unfit which continues until there has been a valid subsequent hearing adjudicating him fit. (People v. Greene (1981), 102 Ill. App. 3d 639, 430 N.E.2d 219; People v. Williams (1980), 92 Ill. App. 3d 608, 415 N.E.2d 1192; People v. Johnson (1973), 15 Ill. App. 3d 680, 304 N.E.2d 688.) The procedural requirements of a restoration hearing are equally as stringent as those of an initial competency hearing and the trial record must affirmatively show the exercise of judicial discretion where a finding of fitness is made. People v. Greene.

The relevant facts of the Greene case are nearly identical to those of the case at bar. In Greene, after defendant had been adjudicated unfit to stand trial because of paranoid schizophrenia in December 1975, no testimony was given at defendant’s restoration hearing in December 1976. Instead, the written reports of two doctors who had examined Greene were stipulated to by counsel. On this basis, the trial court found defendant fit to stand trial. Greene was subsequently tried and convicted. In holding that Greene had not received an adequate hearing, this court stated that since the trial court’s decision was based solely on unsworn psychiatric testimony, the trial court had not exercised its judgment or discretion. This court held that a judicial finding of fitness cannot be based solely on stipulation to the existence of psychiatric conclusions, because the case law of Illinois requires an adversarial hearing. Since there was no affirmative showing in the record that the trial court had exercised any discretion in finding Greene fit to stand trial, there had been in effect “no fitness hearing at all” and this court was compelled to reverse. 102 Ill. App. 3d 639, 643.

Similarly, in the case at bar, defendant was found restored to fitness solely on the basis of stipulations to unsworn psychiatric testimony. As was stated by the supreme court in People v. Reeves (1952), 412 Ill. 555, 107 N.E.2d 861, defendant was in no position to authorize such a stipulation nor was his counsel justified in doing so on defendant’s behalf. Since we can find no showing in the record that the trial court exercised discretion in finding defendant restored to fitness, we are compelled to reverse and remand for a proper fitness hearing. Thus we need not reach the issue of ineffective assistance of counsel. We will, however, address the other issues raised by defendant, since thejf are likely to reoccur should defendant subsequently be found restored to fitness.

II

Defendant’s next contention on appeal is that he was not proved guilty beyond a reasonable doubt. However, although courts of review have a duty to review the evidence, we are neither required nor permitted to substitute our judgment regarding the weight or credibility of the evidence for that of the jury. In rape cases, a jury verdict will not be set aside unless that decision is so unreasonable and palpably contrary to the manifest weight of the evidence as to raise a reasonable doubt as to defendant’s guilt. People v. Reese (1973), 54 Ill. 2d 51, 294 N.E.2d 288; People v. Utinans (1977), 55 Ill. App. 3d 306, 370 N.E.2d 1080.

In the instant matter, Rosie made an immediate and positive identification of the defendant at the lineup in September 1978 and again at trial. Her testimony established that she had the opportunity to observe her attacker. Even through the stocking mask she was able to discern his features. Furthermore she later observed him unmasked, first as he sat at the table eating chicken and again as he had vaginal intercourse with her.

It is well established in Illinois that the identification of a single eyewitness is enough to sustain a conviction, provided that the witness is credible and that she viewed the accused under circumstances permitting a positive identification. People v. Manion (1977), 67 Ill. 2d 564, 367 N.E.2d 1313, cert. denied (1978), 435 U.S. 937, 55 L. Ed. 2d 533, 98 S. Ct. 1513; People v. Novotny (1968), 41 Ill. 2d 401, 244 N.E.2d 182.

Further, Shirley positively identified defendant’s voice as that of her attacker. Identification by voice alone may establish a defendant’s guilt beyond a reasonable doubt. This manner of identification goes to the weight of the evidence which is to be evaluated by the trier of fact. People v. Nunn (1981), 101 Ill. App. 3d 983, 428 N.E.2d 1113; People v. Finney (1967), 88 Ill. App. 2d 204, 232 N.E.2d 247, cert. denied (1968), 392 U.S. 936, 20 L. Ed. 2d 1394, 88 S. Ct. 2304.

Defendant contends that the women’s identification was rendered incredible by the two-month interim between the offense and the lineup. Defendant relies on People v. Reese (1973), 14 Ill. App. 3d 1049, 303 N.E.2d 814. In Reese, the reviewing court found the prosecutrix’ testimony to be less than clear and convincing. We have not reached such a conclusion in the instant matter. Thus, we believe the two-month interim was not sufficient to render the witnesses’ identification incredible.

We also reject defendant’s contention that the failure of the husbands to testify in corroboration of-their wives’ story creates a reasonable doubt as to defendant’s guilt. The husbands were not eyewitnesses to the acts committed by the defendant. The State is not required to produce every witness to a crime, and the failure to call a witness does not create a presumption that the testimony of that witness would be unfavorable to the prosecution. (People v. Reese (1973), 14 Ill. App. 3d 1049, 303 N.E.2d 814.) The case of People v. Qualls (1961), 21 Ill. 2d 252, 171 N.E.2d 612, where the court stated that it was noteworthy that the complainant’s husband had not been called to testify on her behalf, is distinguishable. Unlike the case at bar, in Qualls the defendant raised the issues of force and consent, and the complainant’s husband had witnessed events relevant to these issues. In addition, the Qualls court noted that the testimony of the witness lacked “verisimilitude” and that “[i]n such instance the evidence of the prosecutrix should be corroborated by some other testimony, fact or circumstance.” (21 Ill. 2d 252, 257.) Our review of the record in the instant matter satisfies us that the complainants’ testimony was convincing. Even assuming there was some question in this regard, their testimony was corroborated by both police and hospital personnel.

Nor can we agree with defendant that a reasonable doubt was created by discrepancies between the composite description obtained immediately following the attack — that defendant was six feet two inches tall and weighed 165 — and defendant’s actual height, five feet eight inches, and weight, 150 pounds. In People v. Utinans (1977), 55 Ill. App. 3d 306, 314-15, this court stated: In the instant matter the evidence established that both women were visibly upset, crying and initially unable to speak about the attacks, Officer Lewsader testified that she pieced together a composite and did not recall which woman supplied the information. As in Utinans, this investigation was carried on in the middle of the night following a harrowing ordeal. Thus, discrepancies in the defendant’s description, as opposed to his actual appearance were matters for the jury to resolve in weighing the credibility of the sisters’ testimony. Since they saw and heard the witnesses, we will not substitute our judgment for theirs.

“The failure of the victim, within a matter of a few hours of traumatic sexual assaults, to recall infallibly and relate to the police every detail, description and observation does not render her later recollection of a more complete version of the events implausible. Because of the nature of the assaults and the lack of sleep, discrepancies which exist between her original statements to the authorities and her trial testimony are understandable. Such differences as exist between the two versions go only to the weight given the testimony by the triers of fact. [Citation.]”

Defendant additionally argues that a reasonable doubt remains as to his guilt because the State failed to prove that he entered the apartment through the bathroom window; because the State failed to introduce any evidence that chicken bones were found by the investigating officers; and because the women failed to return to Loretto Hospital for follow-up examinations for venereal disease or pregnancy six weeks after they were raped. We reject all of these arguments. Having conceded that consent was not an issue in this matter, the manner of entry into the apartment is irrelevant, as is the failure of the women to return to the hospital for further treatment. Regarding the absence of evidence of chicken bones, we point out that unless an investigating officer were alerted to look for chicken bones at the scene of an alleged rape, he would be most unlikely to note their presence or to preserve them as evidence. Thus, this is not, in our opinion, probative of the credibility of the complaining witnesses.

Finally, defendant asserts that the failure of the State to find his fingerprints in the apartment creates a reasonable doubt as to his guilt. This would merely be corroboration. As we noted earlier, the clear and convincing testimony of the two women is enough to sustain his conviction. Only when an identification is vague and uncertain is additional corroboration necessary. People v. Morrow (1971), 132 Ill. App. 2d 293, 170 N.E.2d 487.

Ill

Defendant’s next argument is that the trial court erred in allowing Diane to testify regarding her alleged rape by defendant. As a rule, evidence of other crimes is inadmissible. (People v. McDonald (1975), 62 Ill. 2d 448, 343 N.E.2d 489; People v. Gregory (1961), 22 Ill. 2d 601, 177 N.E.2d 120.) However, there is an exception to this rule where the evidence places the defendant in proximity to time or place, aids or establishes identity, or tends to prove design, intent, motive, or modus operandi. People v. McDonald; People v. Tranowski (1960), 20 Ill. 2d 11, 169 N.E.2d 347, cert. denied (1960), 364 U.S. 923, 5 L. Ed. 2d 262, 81 S. Ct. 290.

Modus operandi has been recognized as circumstantial evidence of identity, on the rationale that crimes committed in a similar manner suggest a common author. (People v. Watson (1981), 98 Ill. App. 3d 296, 298, 424 N.E.2d 329, 331.) While the crimes need not be identical, they should share features that are highly distinctive or peculiar. (People v. Lehman (1955), 5 Ill. 2d 337, 125 N.E.2d 506.) Even though these common features may be insufficient to raise the inference of modus operandi individually, they may reveal a distinctive combination when considered together, so as to earmark both crimes as the work of the accused. (People v. Pavic (1982), 104 Ill. App. 3d 436, 432 N.E.2d 1074; People v. Osborn (1977), 53 Ill. App. 3d 312, 368 N.E.2d 608; People v. Emmett (1975), 34 Ill. App. 3d 167, 340 N.E.2d 235.) Although the similarities need not be unique only to the two offenses being compared, they must possess some distinctive features that are not common to most offenses of that nature in order to convincingly demonstrate modus operandi. People v. Tate (1981), 87 Ill. 2d 134, 429 N.E.2d 470; People v. Barbour (1982), 106 Ill. App. 3d 993, 436 N.E.2d 667.

In the case at bar, the evidence of the other crime tended to establish the identity of the offender as defendant, due to the following similarities: both attacks occurred on the same block; both occurred within an approximately two-month time frame; both occurred while the victims’ husbands were at work and the victims were sleeping; the hands and feet of the victims were bound; the attacker was armed with a knife and threatened harm; the attacker attempted to conceal his identity to some extent; both attacks included both anal and vaginal assaults; the attacker consumed food or drink from the victims’ refrigerators; both apartments were thoroughly ransacked; and in each instance the rapist stole small items, food in one and toiletries in the other.

Although certain elements might be common to many rapes, we believe the crimes shared peculiar and distinctive features, not common in sex offenses, most notably pausing to eat and drink, the binding of both hands and feet, the subsequent ransacking of the apartments, and the theft of fungible goods. When viewed in conjunction with the other similarities we believe that these features earmark both offenses as the work of one man. Thus, in our opinion, the trial court did not err in admitting this evidence under the modus operandi exception.

The defendant correctly notes that evidence of other offenses is not admissible to bolster the credibility of the complaining witness. (People v. Romero (1977), 66 Ill. 2d 325, 362 N.E.2d 288; People v. Barbour (1982), 106 Ill. App. 3d 993, 436 N.E.2d 667.) It is true that the State argued before the trial court, but out of the presence of the jury, that they wished to offer Diane’s testimony for this purpose. However, the jury was properly instructed that they should consider the evidence of other offenses solely on the issues of identification, intent and design. Thus, any error that might have occurred in this regard was harmless.

IV

Defendant argues that the trial court erred in admitting the mug shot with a 1977 arrest date, by which Diane originally identified him, into evidence. We agree with defendant that the mug shot was evidence of a prior arrest and not relevant to any matter in issue. Thus, it should not have been made available to the jury. People v. Warmack (1980), 83 Ill. 2d 112, 413 N.E.2d 1254.

The State argues that photographs not used to show a prior offense, but rather to demonstrate how a defendant was identified by a witness, may be admitted on the basis of People v. Maffioli (1950), 406 Ill. 315, 94 N.E.2d 191, People v. Dean (1981), 99 Ill. App. 3d 999, 426 N.E.2d 279, and People v. Hawthorne (1978), 60 Ill. App. 3d 776, 377 N.E.2d 335. However, in our opinion, those cases can be distinguished since the photograph in each was used by the complaining witnesses in identifying the defendant. In the instant case the photograph was used by Diane, not by Rosie or Shirley, the complaining witnesses, who identified defendant from a lineup.

Although we recognize that the photo may have had some probative value regarding the defendant’s appearance in 1978 when all three of the women were attacked, we believe this must be balanced against the prejudicial effect of revealing another arrest to the jury. (See People v. Hudson (1972), 7 Ill. App. 3d 333, 287 N.E.2d 297; People v. Hawkins (1972), 4 Ill. App. 3d 471, 281 N.E.2d 72.) However, considering the substantial competent evidence of guilt in the case at bar, we believe this error was harmless. People v. Warmack (1980), 83 Ill. 2d 112, 413 N.E.2d 1254; People v. Nicholson (1978), 61 Ill. App. 3d 621, 377 N.E.2d 1063.

V

Defendant asserts that the trial court’s refusal to take judicial notice of the times of moonset and sunrise on the day of Diane’s rape constituted an abuse of discretion. At the close of defendant’s case in chief, defense counsel attempted to introduce this evidence in the form of photostatic copies of the Chicago Tribune.

We do not agree that this was error. Although it is well established that courts in this jurisdiction may take judicial notice of “that which everyone knows to be true” (People v. Tassone (1968), 41 Ill. 2d 7, 12, 241 N.E.2d 419, 422; People v. Cain (1973), 14 Ill. App. 3d 1003, 1006, 303 N.E.2d 756, 758), it is our opinion that the precise times of moonset and sunrise do not fall within this category.

In Cook County Department of Environmental Control v. Tomar Industries (1975), 29 Ill. App. 3d 751, 754, 331 N.E.2d 196, 199, this court stated:

“[Sjcientific facts which have been well established by authoritative scientists and which are generally accepted as irrefutable by living scientists may be judicially noticed.”

While everyone knows that the moon will set and the sun will rise on a given day, we believe that data regarding the exact times of these phenomena, as recorded in the daily newspaper, is something less than irrefutable, scientific fact. Thus, there was no error in this regard.

VI

Finally, defendant contends that the trial court erred in sustaining the State’s objection to the cross-examination of the arresting officer regarding whether defendant was “ducking” or “stooping” between parked cars when apprehended. A review of the record shows, however, that at the time of the State’s objection this question had been asked and answered by the witness and defense counsel was inquiring as to the witness’ subjective belief as to whether there was a substantive difference between the two terms. Thus, there was no error in the trial court’s ruling, since this was clearly not relevant to the issues before the court.

Accordingly, this case is reversed and remanded for a proper fitness hearing.

Reversed and remanded.

McNAMARA, P.J., and WHITE, J., concur.

      ‘Defense counsel agreed at oral argument that consent was not an issue on appeal in the instant case.

      Defendant asserts that this implies that the women were acquainted with their assailant.


source: Caselaw Access Project

author: JUSTICE SULLIVAN

license: Public Domain

text:
    FIRST ARLINGTON NATIONAL BANK, Plaintiff-Appellant and Cross-Appellee, v. GUS STATHIS, Defendant-Appellee and Cross-Appellant—(Denis J. Rintz et al., Defendants).
    First District (5th Division)
    No. 82—1940
    Opinion filed May 27, 1983.

      Vincent F. Lucchese and Vihon, Fuchs, Temple & Berman, Ltd., both of Chicago (Vincent F. Lucchese and Robert F. Fuchs, of counsel), for appellant.
    Jerome H. Torshen, Ltd., of Chicago (Jerome H. Torshen and Abigail K. Spreyer, of counsel), for appellee.
   JUSTICE SULLIVAN

delivered the opinion of the court:

This appeal is from the entry of summary judgment for Gus Stathis (defendant) in an action for declaratory judgment brought to determine the rights and obligations of the parties under a letter of credit issued by the plaintiff bank. Plaintiff contends that the trial court erred in ruling that (1) none of the exceptions contained in section 5 — 114(2) of the Uniform Commercial Code (the Code) (Ill. Rev. Stat. 1979, ch. 26, par. 5 — 114(2)) excused plaintiff’s duty to honor the letter of credit; (2) defendant did not breach any warranties made by him pursuant to section 5 — 111(1) of the Code (Ill. Rev. Stat. 1979, ch. 26, par. 5 — 111(1)); (3) none of the other warranty sections of the Code were applicable to the transaction in question; and (4) defendant was entitled to prejudgment interest pursuant to section 2 of “An Act in relation to the rate of interest and other charges in connection with sales on credit and the lending of money” (the Interest Act) (Ill. Rev. Stat. 1979, ch. 74, par. 2) from the date of his demand for payment. In his cross-appeal, defendant maintains that the trial court erred in limiting its award of prejudgment interest to 5%.

In a prior appeal in this case, First Arlington National Bank v. Stathis (1980), 90 Ill. App. 3d 802, 413 N.E.2d 1288, we reversed the trial court’s entry of summary judgment for plaintiff and remanded for further consideration of defendant’s cross-motion for summary judgment. The facts of the transaction in question are set forth in detail in that opinion, and the parties presented no additional evidence after remand; therefore, we shall repeat only such facts as are relevant to the issues herein.

In 1973, defendant agreed to sell certain real estate to Ralph Edgar, Denis Rintz, and Phillip Granidnetti, Jr., and as partial consideration therefor received a promissory note dated March 30, 1973 (the March note), executed by the three purchasers and their wives in the principal amount of $575,000 with an interest rate of 8% on the outstanding principal. The debt was to be secured by a letter of credit in the amount of $575,000 which was to be replaced each year at least 30 days before its expiration date. If the letter of credit was not renewed, or if the purchasers defaulted in the payment of either interest or principal, the balance due was immediately payable without notice.

Plaintiff issued the required letter of credit, to expire May 5, 1974, in exchange for a note executed by Rintz, Edgar, and Grandinetti in the principal amount of $575,000 at 10% interest, secured by certain property, and the pledge of collateral, i.e., a certificate of deposit in the amount of $187,000 owned by Grandinetti and real estate owned by Rintz and Edgar. The letter of credit guaranteed payment of $575,000 to defendant upon default of the March note, provided that his demand was accompanied by the March note, endorsed by him without recourse to the order of plaintiff; any documents securing the note; defendant’s notarized statement that the note was due by reason of acceleration and a detailed statement of the nature of the default; defendant’s notarized statement that demand had been made on the makers, and the demand was not complied with for a period of at least 10 days following the demand; and copies of the demand letters.

The makers defaulted on the first payment of interest, due on March 30, 1974, and failed to provide a timely renewal of the letter of credit. On April 23, 1974, Grandinetti, desirous of avoiding litigation concerning the interest due, entered into an agreement with defendant (the Grandinetti agreement). Pursuant thereto, Grandinetti executed a note for one-third of the first interest installment, due June 5, 1974, and a second note for the remaining two-thirds, payable on demand. Defendant agreed to attempt to collect the remaining two-thirds of the interest from the Edgars and Rintzes (Grandinetti’s wife was not mentioned) and, if successful, cancel the second note.

On April 25, 1974, defendant sought payment on the letter of credit and presented to plaintiff the documents required by the terms thereof. Plaintiff refused to pay, claiming that, among other defects, the March note did not comply with the letter of credit in that the Grandinetti agreement effectively released Grandinetti’s wife from liability on the March note and, as a result, released the other comakers as well by application of section 3 — 606 of the Code. (Ill. Rev. Stat. 1979, ch. 26, par. 3 — 606.) It filed a complaint for declaratory judgment and, in granting plaintiff’s motion for summary judgment therein and denying defendant’s cross-motion, the trial court ruled that plaintiff was not required to honor the letter of credit as a result of the Grandinetti agreement. On appeal, we held that plaintiff could not look beyond the documents presented to the underlying agreement in determining whether to honor the letter of credit. (First Arlington National Bank v. Stathis (1980), 90 Ill. App. 3d 802, 809, 413 N.E.2d 1288, 1295.) Since the documents presented complied on their face with the letter of credit (90 Ill. App. 3d 802, 816, 413 N.E.2d 1288, 1299) and there was no fraud arising from the Grandinetti agreement which would justify dishonoring the letter of credit (90 Ill. App. 3d 802, 811, 413 N.E.2d 1288, 1295), plaintiff was required to honor the demand pursuant to section 5 — 114 of the Code (Ill. Rev. Stat. 1979, ch. 26, par. 5 — 114), and we reversed the order granting summary judgment to plaintiff and denying it to defendant. However, because plaintiff had raised other arguments in opposition to defendant’s motion for summary judgment which were not considered by the trial court in ruling thereon, we remanded the matter for further consideration.

On remand, the parties agreed that the only remaining issue with regard to defendant’s motion for summary judgment was whether he breached any warranties on presentment of his draft for payment under the letter of credit. Plaintiff argued that the Grandinetti agreement, which allegedly released Grandinetti’s comakers from liability on the March note, and defendant’s failure to deliver to it the personal judgment notes executed by Grandinetti under the agreement, breached warranties made by defendant under sections 5 — 111, 3— 417, 4 — 207, 7 — 507, and 8 — 306 of the Code. (Ill. Rev. Stat. 1979, ch. 26, pars. 5 — 111, 3 — 417, 4 — 207, 7 — 507, 8 — 306.) The trial court concluded that our prior opinion barred any consideration of the Grandinetti agreement as grounds for dishonoring the letter of credit. However, it went on to rule that the only applicable warranty was section 5 — 111(1), and that defendant warranted thereunder merely that the tendered documents complied on their face with the terms of the letter of credit; that this warranty was not breached; and that, in any event, the Grandinetti agreement did not release any of the comakers, contrary to plaintiff’s assertion. It further ruled that defendant was entitled to prejudgment interest from April 25, 1974, the date of his demand for payment, at the rate of 5%, “although a greater rate of interest would be more equitable in the present situation.” These cross-appeals followed.

Opinion

Plaintiff first contends that the trial court erred in ruling that none of the exceptions to an issuer’s duty to honor a demand which complies on its face with the terms of the letter of credit excused plaintiff’s duty to honor. It relies on section 5 — 114(2)(b) of the Code (Ill. Rev. Stat. 1979, ch. 26, par. 5 — 114(2)(b)), which provides in relevant part:

“(2) Unless otherwise agreed when documents appear on their face to comply with the terms of a credit but a required document does not in fact conform to the warranties made on negotiation or transfer of a document of title (Section 7 — 507) or of a security (Section 8 — 306) or is forged or fraudulent or there is fraud in the transaction
* * *
(b) *** as against its customer, an issuer acting in good faith may honor the draft or demand for payment despite notification from the customer of fraud, forgery or other defect not apparent on the face of the documents but a court of appropriate jurisdiction may enjoin such honor.”

The trial court held that the warranties under sections 7 — 507 and 8— 306 (Ill. Rev. Stat. 1979, ch. 26, pars. 7 — 507, 8 — 306) are inapplicable to the transaction in question and that plaintiff could not relitigate the question of fraud in the transaction, which was decided adversely to it in our prior opinion. Plaintiff apparently concedes the inapplicability of sections 7 — 507 and 8 — 306 but maintains that the trial court read section 5 — 114(2)(b) too restrictively, and that the intent of the drafters was clearly to include not only the warranties arising thereunder but also those arising under sections 3 — 417 and 4 — 207 (Ill. Rev. Stat. 1979, ch. 26, pars. 3 — 417, 4 — 207). It further argues that because defendant did not disclose the Grandinetti agreement when making presentment, the fraud contemplated by section 5 — 114(2)(b) was present.

With regard to its first argument, plaintiff cites as its sole authority the official comment to the Code. (Ill. Ann. Stat., ch. 26, par. 5— 114, Uniform Commercial Code Comment, at 600 (Smith-Hurd 1963).) However, a careful reading of that commentary in its entirety discloses no such intention to include warranties other than those specifically mentioned in the statute. Therefore, we must look to the general rules of statutory construction to determine the intention of the drafters. The statutory language itself is the best indicator of that intention (Coryn v. City of Moline (1978), 71 Ill. 2d 194, 374 N.E.2d 211), and where that language is certain and unambiguous, it must be enforced as enacted (People ex rel. Gibson v. Cannon (1976), 65 Ill. 2d 366, 357 N.E.2d 1180) without resort to judicial interpretation or construction (Rushton v. O'Malley (1980), 89 Ill. App. 3d 103, 411 N.E.2d 528).

In the instant case, the language used by the legislature is unambiguous and leaves no room for expansion by the interpretation. Two code sections are specifically set forth, and had the legislature wished to include others, it could have done so easily, as it did in section 5— 111(1) of the Code (Ill. Rev. Stat. 1979, ch. 26, par. 5 — 111(1)). Moreover, even if we were to resort to rules of construction, the most pertinent in the instant situation is that the enumeration of certain exceptions in a statute implies the exclusion of all others. (People ex rel. Difanis v. Barr (1980), 83 Ill. 2d 191, 414 N.E.2d 731.) Thus, express inclusion of sections 7 — 507 and 8 — 306 here would imply that the legislature intended to exclude all other warranty provisions.

Plaintiff further argues that it was excused from honoring the letter of credit under section 5 — 114(2)(b) by virtue of alleged fraud in the transaction. However, as plaintiff is well aware, we decided this precise issue adversely to it in our prior opinion. (90 Ill. App. 3d 802, 810-11, 413 N.E.2d 1288, 1295-96.) Therefore, the trial court correctly ruled that it was bound by all questions decided, and the issue of fraud in the transaction was no longer open to consideration, at least insofar as section 5 — 114(2)(b) is concerned. (Schulenburg v. Signatrol, Inc. (1967), 37 Ill. 2d 352, 226 N.E.2d 624.) Furthermore, on appeal of a case previously before us, we are not at liberty to reexamine issues raised and determined in the former appeal (Government Employees Insurance Co. v. Dennis (1967), 90 Ill. App. 2d 356, 232 N.E.2d 750), and plaintiff may not relitigate the merits of this issue (Turner v. Commonwealth Edison Co. (1978), 63 Ill. App. 3d 693, 380 N.E.2d 477)

Plaintiff next contends that the trial court erred in ruling that defendant did not breach any warranties made by him under section 5 — 111(1) of the Code (Ill. Rev. Stat. 1979, ch. 26, par. 5 — 111(1)). It argues that the trial court construed this warranty too narrowly in holding that defendant warranted thereunder merely that the documents submitted complied on their face with the terms of the credit. Plaintiff theorizes that this warranty provision also “protects both the issuer of a letter of credit and its customers from the harsh and limiting effects of the rule that an issuer must honor a demand for payment if the documents appear on their face to conform to the terms of the credit.” Therefore, it posits, section 5 — 111(1) permits it to do what section 5 — 114 forbids; that is, look to the underlying contract between defendant and its customers in determining whether it has a duty to honor the letter of credit.

Section 5 — 111(1) provides in relevant part that “*** the beneficiary by transferring or presenting a documentary draft or demand for payment warrants to all interested parties that the necessary conditions of the credit have been complied with ***.” (Ill. Rev. Stat. 1979, ch. 26, par. 5 — 111(1).) The parties have not cited, nor has our own research discovered, any cases delineating the scope of the phrase “the necessary conditions of the credit.” Neither the Illinois nor the official commentary to the Code defines the phrase in question. The official comment states that “[t]he purpose of this section is to state the peculiar warranty of performance made by a beneficiary ***.” (Ill. Ann. Stat., ch. 26, par. 5 — 111, Uniform Commercial Code Comment, at 590 (Smith-Hurd 1963).) The Illinois comment appears to acknowledge an ambiguity in the phrase by stating that “[t]he term ‘necessary conditions of the credit’ is not a defined one. It presumably includes the genuineness of the documents. Beyond that the cases are not clear.” (Ill. Ann. Stat., ch. 26, par. 5 — 111, Illinois Code Comment, at 590 (Smith-Hurd 1963).) However, two recent decisions in other States imply that section 5 — 111(1) is at least coextensive with section 5 — 114.

In Werner v. A. L. Grootemaat & Sons (1977), 80 Wis. 2d 513, 259 N.W.2d 310, the court stated, in dictum, that an issuer who wrongfully honors may have a remedy against the beneficiary under section 5-111(1). (80 Wis. 2d 513, 524-25 n.22, 259 N.W.2d 310, 315-16 n.22.) Since an issuer wrongfully honors only when it pays on presentation of documents which do not conform on their face to the terms of the credit, a beneficiary warrants under section 5 — 111(1) that the documents do conform. Werner further indicates that a customer would have a breach of warranty action under section 5 — 111(1) if the issuer were to honor a letter of credit despite the existence of one of the exceptions set forth in 5 — 114(2)(b), as it is permitted to do under that section without jeopardizing its right to reimbursement. (80 Wis. 2d 513, 524, 259 N.W.2d 310, 315.) The latter interpretation is also evident, although unstated, in Boucher & Slack Contractors, Inc. v. McLean (La. App. 1980), 382 So. 2d 1030, 1034, and supported by the official commentary to section 5 — 114, which states in relevant part:

“When *** no innocent third parties * * * are involved the issuer is no longer under a duty to honor; but *** the issuer if he acts in good faith is given the privilege of honoring the draft as against its customer, that is to say, with a right of reimbursement against him. *** In the event of honor, an action by the customer against the beneficiary will lie by virtue of either the underlying contract or Section 5 — 111(1) of this Article.” Ill. Ann. Stat., ch. 26, par. 5 — 114, Uniform Commercial Code Comment, at 601 (Smith-Hurd 1963).

It appears, then, that the warranties of section 5 — 111(1) are at least as broad as the circumstances encompassed by section 5 — 114. Even this interpretation, however, is too narrow to justify denial of summary judgment for defendant, since we have already determined that the documents in question comply on their face with the terms of the letter of credit, and none of the exceptions set forth in section 5— 114 are applicable to this transaction. For this reason plaintiff asserts, as noted above, that the warranties of section 5 — 111(1) are broader in scope and allow the court to go beyond the face of the documents and consider the facts and circumstances of the underlying contract between defendant and its customers. In effect, plaintiff asserts it is not enough that it is protected by its right of reimbursement under section 5 — 114(3) if it rightfully honors the letter of credit, and by the beneficiary’s warranty under section 5 — 111(1) if it wrongfully honors. It would have us hold that under section 5 — 111(1) it may also take advantage of any defenses its customers might have to the underlying contract, even where those defenses fall short of the defenses contemplated by section 5 — 114(2)(b).

The obvious flaw in plaintiff’s position is that, if adopted, it would convert the letter of credit into a contract of guaranty or suretyship, for it destroys the sole distinguishing feature between them. As our supreme court stated in Pastor v. National Republic Bank (1979), 76 Ill. 2d 139,147, 390 N.E.2d 894, 897:

“Although the use of letters of credit is often referred to as being in the nature of a guaranty or a suretyship arrangement, it does not assume the legal significance of either. Under the letter of credit the issuer is bound in the first instance to pay the beneficiary. It is an individual undertaking of the issuer to pay the beneficiary, and the obligation is not subject to the various defenses available to a guaranty or a surety undertaking.”

Thus, under a guaranty, the courts must look to the rights and obligations of the parties to the underlying contract in determining the rights and obligations of the guarantor, for a true guaranty is a secondary obligation (Republic National Bank v. Northwest National Bank (Tex. 1979), 578 S.W.2d 109, 114); whereas, a letter of credit is a primary obligation independent of the underlying transaction (Professional Modular Surface, Inc. v. Uniroyal, Inc. (1982), 108 Ill. App. 3d 1046, 440 N.E.2d 177). Therefore, even an agreement among beneficiaries and customers releasing or cancelling the underlying obligation will not affect a beneficiary’s right to demand payment on an irrevocable letter of credit. (See Housing Securities, Inc. v. Maine National Bank (Me. 1978), 391 A.2d 311.) If we were to accept plaintiff’s argument, the stringent duty to honor contained in section 5— 114(1) would be completely abrogated, destroying the basic purpose of a letter of credit “to eliminate the risk to the beneficiary that the customer will refuse or halt payment because of alleged deficiencies in the beneficiary’s performance.” O’Grady v. First Union National Bank (1978), 296 N.C. 212, 232, 250 S.E.2d 587, 600.

For these reasons, we believe that the basic warranties under section 5 — 111(1) are that the documents comply on their face with the terms of the letter of credit, and that none of the exceptions set forth in section 5 — 114(2)(b) are present. The warranty provisions do not authorize the issuer to assert defenses which its customer might have to the underlying contract. We need not determine under the facts before us whether other warranties are encompassed by the provision that “the necessary conditions of the credit have been complied with.”

We turn next to defendant’s assertion of error in the trial court’s ruling that defendant did not breach any other warranties under the Code. Section 5 — 111(1) provides that the warranties contained therein are “in addition to any warranties arising under Articles 3, 4, 7 and 8.” (Ill. Rev. Stat. 1979, ch. 26, par. 5 — 111(1).) Plaintiff contends that the warranties arising under sections 3 — 417 and 4 — 207 (Ill. Rev. Stat. 1979, ch. 26, pars. 3 — 417, 4 — 207) relating to the presentment and transfer of negotiable instruments are applicable to the present situation because defendant was required to transfer the March note to it. It argues that defendant has breached thereunder his warranties that he has good title to the instrument, that the transfer is otherwise rightful, and that no defense of any party is good against him.

Initially, we note that the warranties made under sections 3 — 417 and 4 — 207 are identical in their terms, except that section 3 — 417 is applicable to one who obtains payment or transfers an instrument and receives consideration therefor, while section 4 — 207 applies to customers and collecting banks that obtain payment or transfer for consideration. It is unclear to us why plaintiff persists in its argument that both are applicable here, since it admits that the warranties are the same. Nevertheless, it is our view that section 4 — 207 is obviously inapplicable to the present situation, since defendant is neither a collecting bank as defined in section 4 — 105(d) of the Code (Ill. Rev. Stat. 1979, ch. 26, par. 4 — 105(d)) nor a customer as defined in section 4— 104(e) (Ill. Rev. Stat. 1979, ch. 26, par. 4 — 104(e)).

With regard to section 3 — 417, we note that it is applicable to “[ajny person who transfers an instrument and receives consideration.” (Ill. Rev. Stat. 1979, ch. 26, par. 3 — 417(2).) It is established that these warranties are not made by one who does not receive consideration. (Oak Park Currency Exchange, Inc. v. Maropoulos (1977), 48 Ill. App. 3d 437, 363 N.E.2d 54.) Plaintiff posits that if it were to pay defendant’s demand, he would receive consideration for the March note. However, plaintiff’s obligation to pay is unrelated to the March note; it is obligated to pay under the letter of credit, and will pay on the draft presented as provided in the letter of credit. If section 3 — 417 has any application at all in this situation, it is to that draft, not to the underlying note, and plaintiff has not pointed to any warranties breached by defendant’s presentment of the draft for payment.

Furthermore, it is our view that plaintiff is not injured in any way by the alleged inability to recover on the March note. Since we have determined that it must honor the letter of credit, plaintiff has a right of reimbursement reinforced by a secured note at 10% interest. Surely that means of recovery is preferable to an unsecured, defaulted note bearing 8% interest. In addition, even assuming arguendo that defendant made the warranty asserted under section 3— 417, we do not believe that there are any defenses good against him. Plaintiff argues that defendant’s alleged release of Mrs. Grandinetti from liability for the accrued interest released Mrs. Rintz and Mrs. Edgar from liability on the March note pursuant to section 3 — 606 of the Code. (Ill. Rev. Stat. 1979, ch. 26, par. 3 — 606.) However, that section provides in relevant part that “[t]he holder discharges any party to the instrument to the extent that *** the holder *** releases or agrees not to sue any person against whom the party has *** a right of recourse ***.” (Emphasis added.) The phrase “to the extent that” indicates that a release may be pro tanto, and courts considering the phrase have so held, whether the release was the result of impairment of the right of recourse (Provident Bank v. Gast (1979), 57 Ohio St. 2d 102, 386 N.E.2d 1357) or impairment of collateral (Farmers State Bank v. Cooper (1980), 227 Kan. 547, 608 P.2d 929). Thus, it appears that when the person against whom a right of recourse is held is partially discharged, others who are only secondarily liable are also discharged, but only to the extent that their rights have been impaired.

In the instant case, the alleged release of Mrs. Grandinetti arises from the omission of her name from the following paragraph of the Grandinetti agreement:

“4. That said judgment note for $32,515.11 is being executed and delivered by GRANDINETTI for the purpose of indemnifying STATHIS with regard to the aforesaid balance of interest due him and STATHIS hereby agrees as follows:
(a) That he shall pursue *** RALPH EDGAR, JUDY EDGAR *** DENIS J. RINTZ and MARILYN RINTZ *** for the collection of said balance of interest in the sum of $32,515.11 * * * M

Such a release, however, would only relieve Mrs. Grandinetti of liability for the $32,515.11 in interest. It follows that the other accommodation makers would be released only to the extent that their right of recourse against Mrs. Grandinetti is impaired; that is, on two-thirds of the first interest installment. Since the paragraph in question does not purport to release Mrs. Grandinetti from liability on the note, it could not release Mrs. Rintz or Mrs. Edgar thereon.

Plaintiff has made herein a number of assertions unsupported by pertinent citations to authority or argument as required by Supreme Court Rule 341(e)(7) (73 Ill. 2d R. 341(e)(7)). First, in arguing that it was excused from honoring by virtue of defendant’s breach of warranties under section 5 — 111, plaintiff maintained that defendant was obliged to transfer to it “the whole note,” including the accrued interest which was the subject matter of the Grandinetti agreement. It cited four cases in support of its proposition that it, rather than defendant, was entitled to that interest — all of which were totally inapplicable and, if they had any value, supported defendant’s position. Moreover, plaintiff failed to cite authority for its contention that the interest was unpaid when it received the March note, although defendant admittedly took two notes as payment of accrued interest before transferring the March note to plaintiff. Next, plaintiff states that defendant breached three warranties under section 3 — 417; i.e., that no defense was good against him, that he had good title to the March note, and that the transfer was otherwise rightful. Despite this assertion, plaintiff has neither cited authority nor presented arguments with regard to the latter two warranties. Finally, plaintiff makes the conclusory statement, unsupported by argument or citation, that the Grandinetti agreement, which concerned solely the payment of accrued interest, constituted an extension of time for payment of the March note. It argues that this alleged extension of time released the accommodation makers under section 3 — 606, thus breaching defendant’s warranties under section 3 — 417, but apparently expects us to take the underlying premise on faith. It is unnecessary for us to address any of these arguments, since the first is disposed of by our determination that plaintiff may not look to the underlying agreement in deciding whether to honor the letter of credit, and the latter two are irrelevant since we have ruled that section 3 — 417 is inapplicable to the present transaction. However, even if those arguments were not so disposed of, we would be justified in deeming them waived (Department of Transportation v. Association of Franciscan Fathers (1981), 93 Ill. App. 3d 1141, 418 N.E.2d 36) for, as one court aptly stated, “a reviewing court is entitled to have the issues clearly defined with pertinent authority cited and is not simply a depository in which the appealing party may dump the burden of argument and research” (Williamson v. Opsahl (1981), 92 Ill. App. 3d 1087, 1089, 416 N.E.2d 783, 784).

Finally, plaintiff contends that the trial court erred in awarding defendant prejudgment interest. It correctly notes that such interest is recoverable only on the basis of contract or statute. (Neubert v. Foxworthy (1979), 71 Ill. App. 3d 438, 389 N.E.2d 898.) The letter of credit in the instant action did not provide for interest, but section 2 of the Interest Act provides in part that “[creditors shall be allowed to receive at the rate of five (5) per centum per annum for all moneys after they become due on any bond, bill, promissory note, or other instrument of writing; *** and on money withheld by an unreasonable and vexatious delay of payment.” (Ill. Rev. Stat. 1979, ch. 74, par. 2.) It is plaintiff’s position that because there was a “good faith dispute” over its liability, it could not be said that the money was due until that dispute was resolved. Plaintiff argues that the earliest date from which an award would be proper is May 1, 1981, the date our mandate issued in the prior opinion, and not April 25, 1974, the date defendant made demand for payment. It is established that the existence of a good faith defense affects only that portion of the statute which relates to unreasonable or vexatious delay (KFK Corp. v. American Continental Homes, Inc. (1979), 71 Ill. App. 3d 304, 389 N.E.2d 232, cert. denied (1980), 445 U.S. 904, 63 L. Ed. 2d 320, 100 S. Ct. 1081) and has no applicability to money due under an instrument of writing if the amount due thereunder is fixed or readily ascertainable (Cushman & Wakefield of Illinois, Inc. v. Northbrook 500 Limited Partnership (1983), 112 Ill. App. 3d 951, 445 N.E.2d 1313; Technical Representatives, Inc. v. Richardson-Merrell, Inc. (1982), 107 Ill. App. 3d 830, 438 N.E.2d 599; Central National Chicago Corp. v. Lumbermens Mutual Casualty Co. (1977), 45 Ill. App. 3d 401, 359 N.E.2d 797; John Kubinski & Sons, Inc. v. Dockside Development Corp. (1975), 33 Ill. App. 3d 1015, 339 N.E.2d 529).

An instrument of writing has been defined as a writing which itself creates an indebtedness and is similar in effect to a bond, bill, or promissory note (Hamilton v. American Gage & Machine Corp. (1976), 35 Ill. App. 3d 845, 342 N.E.2d 758), and plaintiff has not contended here that a letter of credit is not such a writing, nor does it argue that the amount due thereunder is not fixed or readily ascertainable. Therefore, the existence of any good faith dispute is immaterial, and the trial court properly awarded interest from the date of demand.

In his cross-appeal, defendant maintains that the trial court erred in awarding him only 5% interest, and asks that we increase that award to 8%. He asserts that the rate of interest here is governed not by section 2 of the Interest Act, the basis on which the court granted interest, but by section 5 — 115 of the Code, which provides that upon wrongful dishonor the person entitled to honor may recover from the issuer the face amount of the draft or demand and interest. (Ill. Rev. Stat. 1979, ch. 26, par. 5 — 115.) Defendant acknowledges that section 5 — 115 does not state the rate of interest to be paid, but argues that section 1 — 106 of the Code (Ill. Rev. Stat. 1979, ch. 26, par. 1 — 106), which mandates that he “be put in as good a position as if the other party had fully performed,” requires that he receive “fair compensation.”

Defendant cites no authority in support of his position, and we note that while a number of courts have awarded prejudgment interest in cases involving the wrongful dishonor of a letter of credit, most either fail to state the rate of interest allowable (New York Life Insurance Co. v. Hartford National Bank & Trust Co. (1977), 173 Conn. 492, 378 A.2d 562) or fail to explain how the amount allowed was arrived at (Toyota Industrial Trucks USA, Inc. v. Citizens National Bank (3d Cir. 1979), 611 F.2d 465; Board of County Commissioners v. Colorado National Bank (Colo. App. 1979), 607 P.2d 1010, aff'd in part, rev’d in part on other grounds (Colo. 1981), 634 P.2d 32). The only cases which have set forth the basis for recovery of interest have referred to either the “legal” rate of interest (Housing Securities, Inc. v. Maine National Bank (Me. 1978), 391 A.2d 311) or a general interest statute similar to section 2 of the Interest Act (Republic National Bank v. Northwest National Bank (Tex. 1978), 578 S.W.2d 109). Defendant argues that this rate is “inequitable”; i.e., that it does not “put him in as good a position as if the other party had performed.” However, since 8% as an equitable amount could only have been arrived at on this record by pure speculation, it appears that the trial court’s only recourse was to apply the rate provided in the Interest Act. Cf. Sanders v. John Nuveen & Co. (7th Cir. 1975), 524 F.2d 1064, vacated on other grounds (1976), 425 U.S. 929, 48 L. Ed. 2d 172, 96 S. Ct. 1659.

For the foregoing reasons, the orders of the trial court are affirmed.

Affirmed.

WILSON, P.J., and LORENZ, J., concur.

      Now codified at Ill. Rev. Stat. 1981, ch. 17, par. 6402.

      This unpaid interest was the subject matter of defendant’s counterclaim against the Grandinettis, Edgars, and Rintzes, which is not before us in this appeal.

      Plaintiff’s brief raises two issues devoted to a contention that the trial court misconstrued our prior opinion and “unduly restricted the scope of the issues remanded,” pointing to this conclusion in support of its argument. However, it is apparent from the record that the trial court placed no restrictions on the arguments of counsel, and both sides extensively briefed and argued the warranty issues as they related to the Grandinetti agreement. Moreover, despite its initial statement, the trial court considered fully all arguments raised by plaintiff with regard to the warranties asserted as discharging its duty to honor the letter of credit and issued a ruling thereon. Therefore, we believe that even if we were to find that the statement in question constituted a misunderstanding of our prior opinion, such error would not be grounds for reversal, since plaintiff has failed to demonstrate any error which “was substantially prejudicial and affected the outcome [in] the trial court.” (Canales v. Dominick’s Finer Foods, Inc. (1981), 92 Ill. App. 3d 773, 778, 416 N.E.2d 303, 308.) Portions of plaintiff’s arguments in these two issues are relevant in later issues and will be addressed herein where pertinent.

      We note that for the first time in the lengthy history of this litigation, plaintiff raises in its reply brief the question of whether defendant has waived or is estopped from asserting any claim under the letter of credit. We will not consider different theories or new questions not presented at trial. Estes Co. v. Employers Mutual Casualty Co. (1980), 79 Ill. 2d 228, 402 N.E.2d 613; Frisch Contracting Service Corp. v. Northern Illinois Gas Co. (1981), 93 Ill. App. 3d 799, 417 N.E.2d 1070.

      This is not to imply any view that an issuer who in good faith honors under circumstances where section 5 — 114(2)(b) would justify dishonor may thereafter assert its customer’s warranty rights against the beneficiary in lieu of its reimbursement rights against the customer upon discovering that the customer is insolvent. That question is not before us, and we express no opinion thereon.

      Grandinetti, Rintz, and Edgar, as comakers, are not protected by this provision. (Wohlhuter v. St. Charles Lumber & Fuel Co. (1975), 62 Ill. 2d 16, 338 N.E.2d 179.) The parties apparently agree that the three wives are accommodation makers; as such, they are protected by section 3 — 606 if it is otherwise applicable. See Godfrey State Bank v. Mundy (1980), 90 Ill. App. 3d 142, 412 N.E.2d 1131.

      Applicable to letters of credit pursuant to section 5 — 103(4) (Ill. Rev. Stat. 1979, ch. 26, par. 5 — 103(4)).


author: JUSTICE GOLDBERG

text:
    PATRICIA A. WATKINS, Plaintiff-Appellee, v. HENRY D. MARTIN, Defendant-Appellant.
    First District (1st Division)
    No. 82—2630
    Opinion filed May 31, 1983.
    Rehearing denied July 5, 1983.

      Goldstein, Simon, Briskman & Briskman, of Chicago (Charles Simon, of counsel), for appellant.
    Benson, Goldstein & Stengel, of Chicago (Richard M. Goldstein, of counsel), for appellee.
   JUSTICE GOLDBERG

delivered the opinion of the court:

Patricia A. Watkins (plaintiff) brought this paternity action against Henry D. Martin (defendant). After hearings, the trial court entered a judgment finding paternity. After a subsequent hearing, the trial court ordered defendant to pay monthly child support payments of $300. Defendant appeals.

Plaintiff filed a motion to dismiss this appeal on the ground that the order appealed from, entered October 6, 1982, is not a final order because it does not contain the special finding required by Supreme Court Rule 304(a) (87 Ill. 2d R. 304(a)). The record shows plaintiff’s petitions for allowance of attorney fees and costs and also retroactive support during pregnancy remain pending. Defendant has filed objections to the motion to dismiss. Defendant cites and depends primarily upon Deckard v. Joiner (1970), 44 Ill. 2d 412, 255 N.E.2d 900, cert. denied (1970), 400 U.S. 941, 27 L. Ed. 2d 244, 91 S. Ct. 232. There, the supreme court held that when the trial court had decided the issue of paternity, and had fixed the amount of support money defendant was to pay, “[t]his was the final determination of the ultimate rights of the parties put in issue by the complaint.” (44 Ill. 2d 412, 417.) Thus the time for filing the notice of appeal commenced to run from the date of the order fixing the amount of support. We took this motion to dismiss with the ease.

Upon due consideration, the motion to dismiss is denied for these reasons:

(1) In our opinion, Deckard is in point and decides the issue.

(2) The first order entered by the trial court disposing of the issue of paternity also set the cause for hearing to determine “support and related matters.” The able trial judge also found that the order in question was neither final nor appealable pending such a hearing. No such finding appears in the order of October 6 fixing support. This may well be construed as a finding that the order entered after the hearing to fix support would be final and appealable.

(3) The order entered October 6, 1982, fixed the amount of support money. This order is final in the sense that the other matters reserved therein by the trial court were simply collateral such as the fixing of attorney fees and costs and determination of a request for retroactive child support expenses during pregnancy.

(4) The pertinent statute provides that if the trial court finds defendant is the father of the child, then, at the time such judgment is entered and again at the time of entry of an order with respect to support, the trial court shall:

“advise the defendant of his right to appeal, of his right to request the clerk to prepare and file a notice of appeal, and of his right, if indigent, to be furnished, without cost to him with a transcript of the proceedings at his trial and with counsel of appeal.” (Ill. Rev. Stat. 1981, ch. 40, par. 1366.)

In our opinion, by this declaration the legislature indicated that defendant should have the right to appeal after the issues of paternity and amount of support have been settled.

(5) In Virzint v. Beranek (1980), 85 Ill. App. 3d 919, 407 N.E.2d 701, this court held that a determination of paternity is not in itself a final and appealable order and does not become final and appealable until an order for support is entered.

(6) In our opinion, the entry of the order of paternity and the determination of support are the two basic orders actually required for virtual completion of the case. The entry of these orders assures that the child will not lack for support. Additional matters such as attorney fees and costs and expenses, if any, during pregnancy may be determined in due course at a later date without interfering with the basic rights of the parties. In other words, a final order does not become interlocutory simply because it reserves “power over incidental matters not affecting the ultimate rights that have been determined by that order.” Slavick v. Michael Reese Hospital & Medical Center (1980), 92 Ill. App. 3d 161, 166, 415 N.E.2d 1060, and cases there cited.

The motion of plaintiff to dismiss the appeal is therefore denied.

Before trial plaintiff filed a motion in limine to exclude three blood tests. The first test indicated a 100% “relative chance of non-paternity, or a 0% “relative chance of paternity.” The second test found the probability of paternity would be very high. The third test indicated “the likelihood of Henry Martin [defendant] being the father” at 99.764%. The judge then presiding ruled that all tests were inadmissible. Defendant’s motion to reconsider was denied. The trial judge also ruled the test results not admissible and sustained an objection by plaintiff to testimony from one of the testing experts.

This problem has been solved by the legislature. The pertinent statute (Ill. Rev. Stat. 1981, ch. 40, par. 1404(a)) provides:

“If the court finds, as disclosed by the evidence based upon the tests, that the alleged father is not the father of the child, the question of paternity shall be resolved accordingly. If the experts disagree in their findings, such findings shall not be admissible, and the question of paternity shall be submitted upon all the evidence.”

In the case before us, in view of the fact that the various blood tests are in complete disagreement, the trial court had, and this court has, no alternative but to follow the specific direction of the statute and to hold the results of all of the tests were not admissible.

The cases cited by defendant are not in point:

(1) Daubach v. Ishihara (1981), 103 Ill. App. 3d 750, 431 N.E.2d 1183. There, two blood tests were involved which were “not in disagreement.” (103 Ill. App. 3d 750, 754.) Consequently the trial court there was correct in admitting the results of the tests into evidence.

(2) People ex rel. Yarn v. Yarn (1979), 73 Ill. App. 3d 454, 392 N.E.2d 606. There, only one test was taken. Based thereon the trial court dismissed the complaint. This court reversed on the theory that, since there was one test, plaintiff should have the right to cross-examine the expert before dismissing the complaint. The case did not involve two or more tests with diametrically opposed results.

(3) People ex rel. De Vos v. Laurin (1979), 73 Ill. App. 3d 219, 391 N.E.2d 164. The first test excluded paternity. The trial court denied leave to obtain a second blood test. Actually the issue there was the question of reinstatement of the case to the trial calendar. This court dismissed the appeal on the ground that the order appealed from was not final. (73 Ill. App. 3d 219, 222.) The pertinent section of the statute was not involved in the decision.

It follows that in the case before us admission of the blood tests was properly denied. In addition the trial court acted properly in refusing to hear the testimony of one of the expert witnesses. Although defendant made no offer of proof, this testimony would necessarily have been confined to the making of the test and the subsequent result.

At trial, plaintiff called defendant as an adverse witness. (Ill. Rev. Stat. 1981, ch. 110, par. 2 — 1102.) Defendant denied ever visiting the plaintiff at the hospital, and stated he first knew of the birth of plaintiff’s child through the court summons he received. Later, however, defendant “remembered” visiting plaintiff at the hospital on the day she delivered. Defendant acknowledged his name appeared on a document entitled “Consent for Name of Father to be Entered on Certificate of Birth.” However, defendant testified he did not sign the document and the signature was not his. Defendant did not remember visiting plaintiff at her home. Defendant denied ever having sexual intercourse with plaintiff.

Resitacion SanVincente testified she is a nurse at the hospital where plaintiff’s child was born. There is a hospital procedure for executing the document described above, after the birth of a child to an unmarried mother. The putative father must show proper identification to the attending nurse before he is permitted to sign. The witness signed her name as witness to the putative father’s signature. Although the witness did not specifically remember the parties or the signing of this particular document, she testified she would never sign as a witness unless she had been presented with proper identification by the putative father.

Plaintiff testified she met defendant in 1968. They began a sexual relationship in 1969. She estimated that between 1969 and 1978 she had intercourse with defendant approximately 100 times.

Plaintiff identified several photographs of defendant in her apartment. They were taken at various times between 1969 and 1978. One of the photographs was of defendant holding her child. She identified one photograph of defendant’s mother holding the child. Defendant bought her child a crib. He also brought her money, diapers, and milk. Defendant had a key to her apartment. She saw defendant sign the consent form described above.

Sara Henderson, plaintiff’s aunt, testified she saw defendant at plaintiff’s home a month after the birth of plaintiff’s child. Defendant and another man came in bringing a gallon jug of distilled baby drinking water, and a carton of juice. Defendant began to talk to the other man about the baby. The witness “teased [defendant] about being a proud father.” Defendant smiled. He did not deny being the father. The court found defendant is the father of plaintiffs child.

Defendant contends the finding of paternity is against the manifest weight of the evidence. We see here simply a conflict between the testimony of plaintiff and defendant. The resolution of such conflicting testimony is determined by the trier of fact. (People ex rel. Martin v. Presswood (1980), 85 Ill. App. 3d 975, 407 N.E.2d 770.) In a paternity case the question of the credibility of witnesses and the weight to be afforded their testimony is for the trier of fact, and its findings will not be reversed unless they are clearly erroneous. (People ex rel. Gomez v. Wedech (1978), 58 Ill. App. 3d 518, 520, 374 N.E.2d 849, appeal denied (1978), 71 Ill. 2d 605.) In a bench trial the findings of fact by the trial judge are to be afforded the same deference as those of a jury. See Greene v. City of Chicago (1978), 73 Ill. 2d 100, 110, 382 N.E.2d 1205.

In the case at bar the evidence adduced at trial is clearly sufficient to establish paternity. Not only was defendant’s testimony completely rebutted and thoroughly discredited by other witnesses, it was itself inconsistent. We conclude that the finding of paternity is completely supported by the record before us.

Finally, defendant contends the trial court erred in assessing child support payments of $300 per month. At the support hearing, plaintiff filed an affidavit specifying net monthly income of $974 and expenses of $1,320. However, only $240 of those expenses were attributed directly to the child. Defendant filed an affidavit specifying net monthly income of $2,838.72 and monthly expenses of $2,833. Included in those expenses was a $567 payment for a $28,000 automobile purchased between the time of the finding of paternity and the support hearing. The trial court ordered defendant to pay $300 monthly child support. The disparity between the income of the mother and father should be considered in assessing child support payments. (People ex rel. Holland v. DeMichael (1979), 79 Ill. App. 3d 974, 980, 398 N.E.2d 1138.) In Holland, we upheld a support judgment of $220 which represented approximately 20% of the father’s net income. The $300 monthly payment in the case at bar represents approximately 11% of defendant’s net income. We find the judgment for support equitable and it will be affirmed.

For these reasons the judgment appealed from is affirmed.

BUCKLEY, P.J., and CAMPBELL, J., concur.


author: JUSTICE RIZZI

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. KAREN PERKINS, Defendant-Appellant.
    First District (3rd Division)
    No. 82—162
    Opinion filed May 25, 1983.
    Patrick A. Tuite and David S. Mejia, both of Law Officers of Patrick A. Tuite, Ltd., of Chicago, for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat, Bruce A. Cardello, and Denise O’Malley, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE RIZZI

delivered the opinion of the court:

Following a bench trial, defendant, Karen Perkins, was convicted of two counts of theft for receipt of stolen property (Ill. Rev. Stat. 1981, ch. 38, par. 16 — 1(d)(1)), and sentenced to a term of one year of probation with the first 150 days to be served in the Cook County Department of Corrections. On appeal defendant contends that the State’s evidence was not sufficient to prove her guilty beyond a reasonable doubt. We reverse.

Defendant was arrested on November 3, 1981, at approximately 1:30 p.m., while she was sitting in the driver’s seat of an automobile which was stalled in the east lot of the South Holland Trust and Savings Bank. The key was in the ignition. At her side was a baby whom she acknowledged was her child. At trial, police officer R. Johnson testified that he came to the scene in response to a call about a person “passing a bad check.” He saw several bank officials standing around the car, observed defendant and the baby in the front of the car, and observed “clothing in the back floor of the car stacked up past the seat with tags on it.” He noted that the tags were store price tags, and he asked defendant where the clothes came from. She responded that she did not know. The officer further testified that the clothing consisted of a black leather jacket, four dresses and a blouse. He asked defendant for identification, but she could not produce any. He then took her to the police station, and after reading the Miranda warnings to her, proceeded to question her. When he asked defendant whose car she was in, defendant said that the car belonged to her boyfriend, Jenkins. The officer confiscated the clothing and investigated some stolen checks involved in the matter. He then called two stores, Evans and Gantos, because their price tags were on the clothing.

On cross-examination, the officer said that the clothing was not in a bag, but was in view on the floor of the car. He further testified that he tried to learn the name of the lady who allegedly attempted to pass a bad check and who had fled the scene, but that defendant did not disclose her identity.

Police officer James Melby testified that he was with Officer Johnson and heard the conversation between Johnson and defendant. He corroborated Johnson’s testimony, and further testified that when defendant was first asked to whom the merchandise belonged, she replied that she did not know. The second time she was asked, she said that the goods were in the car when she was picked up earlier in the day. The officer said that defendant gave different names of the party who picked her up. The officer admitted that he signed the complaints against defendant.

Paul Peltier testified that he was a corporate executive and store manager of Evans retail clothiers. When advised that the South Holland police had some merchandise with his store tags on it, he contacted the other Evans stores and learned through their computer system that a coat had been stolen from the Woodfield store. He went to the station and saw a black leather coat on which the store label was intact, indicating that it had not been sold. The coat had been put on sale in September or October 1981, but he did not know the specific date it was taken from the store.

Kim Legner testified that she worked for Gantos at the Woodfield Mall in Schaumburg. She stated that the store tags on five items of the clothing merchandise were intact, indicating that they had not been sold. One of the dresses was on the store hanger and store hangers were never sold or given to a customer. She added that she did not know the precise date that the garments were taken.

Defendant contends that all the elements of theft by possession were not proved beyond a reasonable doubt. She points out that the evidence does not show that she received the clothing from another, or that she was in possession of the clothing knowing it to have been stolen by another. She also contends that the evidence fails to show that the merchandise was stolen and that it was the property of the Evans and Gan tos stores.

Under section 16 — 1(d) of the Criminal Code of 1961 (Ill. Rev. Stat. 1981, ch. 38, par. 16 — 1(d)), the State must plead and prove that the property was stolen by another and that at the time defendant received the property, she knew or reasonably should have known that the property was stolen. (People v. Baxa (1971), 50 Ill. 2d 111, 114-15, 277 N.E.2d 876, 878; People v. Tribett (1977), 54 Ill. App. 3d 777, 782, 370 N.E.2d 115, 118-19.) It is not enough for the prosecution merely to show that the property in question was stolen and that the defendant was in possession of that property. (People v. Dickerson (1974), 21 Ill. App. 3d 977, 981, 316 N.E.2d 519, 523 (Guild, J., specially concurring).) Proof that the subject property was stolen by a person other than the defendant is an indispensable condition precedent for a conviction of theft based on receipt of stolen goods. People v. Weiss (1976), 34 Ill. App. 3d 840, 842-43, 341 N.E.2d 79, 82.

Here, the evidence shows that defendant was in an automobile which did not belong to her, but in which there was clothing that had been stolen at an unspecified time. Officer Melby testified that defendant said the clothing was in the car when she entered it. Although the State’s evidence indicates that the goods may have been stolen by another, it fails to show that defendant received the goods from that person knowing, or under conditions where she would have known, that the clothing was stolen, since the car was not hers or under her exclusive control. We therefore find that the evidence does not sustain a conviction for theft under section 16 — 1(d).

Accordingly, the judgment is reversed.

Reversed.

McNAMARA, P.J., and McGILLICUDDY, J., concur.


author: PRESIDING JUSTICE McNAMARA

text:
    FEDERAL SAVINGS & LOAN INSURANCE CORPORATION, etc., Plaintiff and Counterdefendant-Appellee, v. AMERICAN NATIONAL BANK AND TRUST COMPANY OF CHICAGO, Trustee, et al., Defendants—(John Rendina Construction Corporation, Defendant and Counterplaintiff-Appellant).
    First District (3rd Division)
    Nos. 82—171 through 82—175 cons.
    Opinion filed May 25, 1983.

      DiMonte & Lizak, of Chicago (Alan L. Stefaniak and Eugene A. Di-Monte, of counsel), for appellant.
    Stanley M. Cahn and Susan E. Woods, both of Chicago, for appellee.
   PRESIDING JUSTICE McNAMARA

delivered the opinion of the court:

This consolidated appeal arises from orders of the trial court granting the motions of plaintiff Federal Savings and Loan Insurance Corporation for judgment on the pleadings and summary judgment against defendant John Rendina Construction Corporation and denying Rendina’s motion to reconsideration.

On July 28, 1980, plaintiff initiated this action by filing separate mortgage foreclosure suits on five residential lots located in Bartlett, Illinois, against American National Bank and Trust Company of Chicago, as trustee for the Bergson Company, the beneficiary and developer-builder of the subdivision. Rendina was named as a defendant because of a single mechanics’ lien claim filed on January 14, 1980, relating to these lots. In this lien claim Rendina stated that on September 14, 1979, it entered into a contract with Bergson to furnish materials and services for the maintenance and repair of sewer and water facilities, that it completed the work on September 26, 1979, and that it was still owed $6,687.56.

On October 27, 1980, Rendina filed an amended claim stating that in June 1979, it had entered into a contract with the trustee to furnish labor and materials for the maintenance and repair of sewer and water facilities “which are appurtenances to the SUBJECT PREMISES, connected therewith and located under the street adjoining the SUBJECT PREMISES,” that it completed the work on January 10, 1980, and that it was still owed $9,941.36. Rendina filed an answer to plaintiff’s complaint and also filed a counterclaim seeking a declaration that its mechanics’ lien claim have priority over plaintiff’s mortgage based upon Rendina’s amended claim for lien.

Plaintiff filed identical motions for judgment on the pleadings on its complaint to foreclose and for summary judgment against Rendina on the latter’s counterclaim. Plaintiff claimed priority and superiority of its mortgage over Rendina’s lien claim on the ground that Rendina’s amended lien claim which superseded the original lien claim set forth a completion date of January 10, 1980, but this claim was not filed until October 27, 1980, well after the statutory filing period had expired and was therefore untimely. Plaintiff also maintained that Rendina, in both its original and amended claims, filed a single claim against multiple properties without allocating the date of completion and the amount attributable to each lot as required by the Mechanics’ Liens Act (Ill. Rev. Stat. 1979, ch. 82, par. 1 et seq.). At the same time that the trial court granted plaintiff’s motion for judgment, it denied Rendina’s motion for summary judgment.

On appeal Rendina contends that its amended claim for a mechanics’ lien relates back to the filing of its original claim and therefore was timely, that it was not required to allocate costs attributable to each lot to preserve its lien under the Act, and that allocation was either impossible or impracticable.

We first address Rendina’s contention that its original mechanics’ lien claim can be amended by an amended claim filed after the statutory filing period has expired and that such amendment relates back to the date of filing the original lien claim, thereby complying with the filing period requirement.

Section 7 of the Act sets forth the prerequisites necessary to enforce one’s lien against third parties and owners. As against a third party, within four months after completion of the work the contractor must either file a claim for lien with the recorder of deeds or bring an enforcement suit against the third party. The lien claim must be verified and contain a brief statement of the contract, the balance due and a description of the property upon which the lien is asserted. As to the owner, the lien claim must be filed within two years of completion of the contract and the claim for lien “as to such owner may be amended at any time before the final judgment.” Ill. Rev. Stat. 1979, ch. 82, par. 7.

Although the express amendment provision in section 7 relates to owners, Rendina argues that it may be extended so as to permit amendment to a party such as plaintiff, a construction lender encumbrancer. We do not agree. By explicitly providing for amendments to lien claims against owners, under the traditional rule of statutory construction the statute implicitly precludes amendments as to all other parties. Thus, Rendina’s attempted amendment to its lien claim against and to the prejudice of plaintiff, an undisputed third-party encumbrancer, is not permitted under the Act. Richardson v. Central Lumber Co. (1904), 112 Ill. App. 160.

Moreover, were we to accept Rendina’s argument that mechanics’ lien claims may be amended as to all parties despite the apparent legislative intent to the contrary, Rendina’s lien claim fails nonetheless because its amendment was filed after the statutory period expired. The purpose of the four-month filing requirement is to give third parties dealing with the property notice of the existence, nature and character of a lien and thus enable third parties to determine from the claim itself whether the lien is enforceable. (Schmidt v. Anderson (1911), 253 Ill. 29, 97 N.E. 291; First Federal Savings & Loan Association v. Connelly (1982), 107 Ill. App. 3d 298, 437 N.E.2d 742.) In the present case, one of the errors Rendina attempted to correct in its amended lien claim was the contract purpose. Rendina originally stated that the purpose of the contract was to provide material and services for a sewer and water system. In its amended claim, Rendina asserted that this sewer and water system is an appurtenance to each lot described and is connected with and located under the street adjoining each lot. As the claim originally recited, Rendina did not qualify as a contractor pursuant to section 1 of the Act because the work provided was wholly disconnected from the buildings on the lots against which it asserted its lien, and Rendina therefore was not entitled to a lien. (Cronin v. Tatge (1917), 281 Ill. 336.) Consequently, Rendina’s original lien claim was technically unenforceable. Even though this defect went unnoticed by plaintiff until Rendina amended its claim, a ruling allowing the untimely amended claim to relate back to the date of filing the original claim to cure the defective claim would serve only to undermine the purpose of the filing requirement, that of giving notice of the nature and extent of the lien to third parties. The enforceability of a lien could no longer be ascertained from statements made in the lien claim itself, for such statements would always be subject to amendment or, as in this case, subject to subsequent validation, to the prejudice of third parties. Hence, the trial court’s rulings are supported by both the express language of the Act and the purpose of mechanics’ lien enforcement prerequisites as to third parties contained therein.

Rendina argues that if the amended claim is not allowed to relate back, it is being penalized for being honest. Rendina maintains that had it pleaded its claim as originally filed and subsequently proved its claim as set forth in its amended claim, it would have asked and have been granted leave to amend its pleadings to conform to the proof. This contention has been rejected by our supreme court. (May, Purington & Bonner Brick Co. v. General Engineering Co. (1899), 180 Ill. 535.) The May court held that a pleading based on a lien claim could not be amended to remedy a defective claim, stating that “[njothing could cure the error in the claim filed *** within the time prescribed by the statute.” (180 Ill. 535, 542.) While our result effectively denies Rendina any rights in the property foreclosed by plaintiff, it is the result of Rendina’s failure to comply with the statutory requirement that the claim it seeks to enforce be filed within four months of the work completion date.

The decisions in Douglas Lumber Co. v. Chicago Home for Incurables (1942), 380 Ill. 87, 43 N.E.2d 535, and Moser Lumber, Inc. v. Morgan (1969), 106 Ill. App. 2d 339, 245 N.E.2d 310, relied upon by Rendina, are distinguishable from the present case. Neither involved an attempted amendment of a lien claim, nor was a third party prejudiced.

In light of our holding we need not address Rendina’s contention that allocation of its mechanics’ lien claim was not required. Nevertheless, we agree with the trial court’s ruling to the contrary.

Section 1 of the Act grants a contractor whose contract relates to several buildings on separate lots a lien upon “all such lots” for the amount due. (Ill. Rev. Stat. 1979, ch. 82, par. 1.) Section 7 allows this contractor to include all of these buildings and lots in a single lien claim, a blanket lien claim. When a contractor files a blanket lien claim, however, in addition to complying with the express third-party lien enforcement requirements enunciated earlier in this decision, to preserve and enforce this lien against third parties, the contractor must specify in this claim the proportionate amount of the lien claimed for each lot and the work completion date for each lot. Schmidt v. Anderson; First Federal Savings & Loan Association v. Connelly; Dougherty-Janssen Co. v. Danage Enterprises, Inc. (1980), 80 Ill. App. 3d 1112, 400 N.E.2d 1023; In re Phillips Construction Co. (N.D. Ill. 1977), 434 F. Supp. 26, rev’d on other grounds (7th Cir. 1978), 583 F.2d 290.

These additional enforcement requirements are imposed to effectuate the purpose of section 7’s third party filing requirements, for without apportionment third parties could not determine whether and to what extent a particular building is encumbered and without specification of the date of completion for each parcel of property, the four month filing limitation period is useless. Schmidt v. Anderson; In re Phillips Construction Co.; First Federal Savings & Loan Association v. Connelly.

Rendina argues that the cases imposing the allocation requirement are factually distinguishable because in those cases material or labor was furnished for the construction of several buildings on different, specific parcels of property. Rendina claims that here it did not furnish material and labor to specific lots, but rather that it furnished material and labor to repair an integrated sewer and water system “that services an entire subdivision, is an appurtenance to all lots, benefits all lots and is underneath all of the streets of the subdivision.” Rendina maintains therefore that it need not allocate. We do not agree. If, as Rendina claims, the integrated system is an appurtenance to and benefits every lot in the subdivision, then it necessarily follows that Rendina in servicing the system furnished material and labor to and for the benefit of each and every lot in the subdivision. Hence, we fail to see any valid distinction between Rendina’s blanket lien claim and those cases cited above in which the courts required allocation prior to the enforcement of the blanket lien claims against third parties.

Rendina also seeks to distinguish the decisions requiring allocation on the ground that they were decided under section 7 while its contract falls within the express provisions of section 1 which it argues gives Rendina a lien upon each of the lots involved for the full amount. Section 1 grants a contractor such as Rendina a lien upon “all lots” included in the contract for the amount due and not upon any of the lots as urged by Rendina. Moreover, to enforce this lien against third parties such as plaintiff, Rendina must comply with the express and judicially imposed requirements of section 7. Rendina could have allocated by dividing its total claim by the total number of lots in the subdivision, by apportioning its claim based on front lot footage measurements of the homes in the subdivision or by choosing any other suitable method. Instead, Rendina chose to charge fewer than all the lots benefited by Rendina’s work with the total contract price to the prejudice of third-party encumbrancers of such lots. Allocation was required and possible.

For the reasons stated, the judgment of the circuit court of Cook County is affirmed.

Judgment affirmed.

RIZZI and WHITE, JJ., concur.