author: MR. PRESIDING JUSTICE DAVIS

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Ronald Smice, Defendant-Appellant.
    Gen. No. 66-97.
    Second District.
    February 2, 1967.

      William N. Stone, of Sterling, for appellant.
    John L. Moore, State’s Attorney, of Oregon, for appellee.
   MR. PRESIDING JUSTICE DAVIS

delivered the opinion of the court.

This appeal illustrates some of the problems presented in appellate review of sentence, as permitted under the Code of Criminal Procedure (Ill Rev Stats 1965, c 38, § 121-9 (b) (4)).

The defendant-appellant was charged by information with the offense of battery in violation of section 12-3 of the Code. The jury found him guilty and gratuitously recommended probation. Thereupon, the defendant filed his petition for probation, and purportedly waived the probation hearing and investigation by the probation officer, although the court expressed doubt as to the propriety of such waiver. Upon the court’s suggestion, the defendant testified on his own behalf relative to probation. His testimony indicated that he desired probation, would abide by its terms and stay out of trouble; that he was employed and lived at home; and that he would obey all laws.

At the conclusion of the defendant’s testimony, the court questioned him. His responses disclosed that the impulse to strike people did not come over him very often, but he did not remember how many times he had felt that way in the last two months.

Thereupon, the court denied the petition for probation and sentenced the defendant to the Illinois State Farm at Vandalia for six months. This appeal followed and the defendant’s theory is:

“1. That the punishment meted out by the court was excessive, cruel and extremely unusual;
“2. That the court’s measure of punishment was not authorized by the verdict of the jury.”

The relief sought is that the verdict, the sentence, and the denial of probation, be reversed.

The defendant was 21 years of age at the time of the offense. He had been keeping company with and was eager to marry a girl who was then a senior in high school. On the evening in question, Steven Gilbert, 19, and another young man, took this girl and another girl for a ride in Gilbert’s car. After taking the other girl home, the other young man, who was driving, parked the car in the driveway at the home of the girl in question. The defendant and another young man approached the car, and there was evidence that both of them struck Gilbert. The defendant denied that he struck Gilbert but admitted that he shoved him and told him to stay away from the girl. The evidence warranted the jury verdict that the defendant was guilty of the offense of battery. Under the facts of this case, we will not substitute our judgment for that of the jury. The People v. Malmenato, 14 Ill2d 52, 59-62,150 NE2d 806 (1958).

While we do not understand the defendant’s theory of the case, we will treat it as an inarticulate request that we reduce the punishment imposed by the trial court pursuant to section 121-9 (b) (4) of the Code of Criminal Procedure, supra. Reviewing courts consider the sentences imposed by a number of judges, and, therefore, are in a position to detect and correct the injustice of an improper sentence. However, the power to reduce a sentence cannot be exercised in a meaningful manner unless the reviewing court is in possession of an adequate record pertaining to the life and character of the defendant.

Section 1-7 (b) of the Code (Ill Rev Stats 1965, c 38, § 1-7 (b)), provides that upon conviction “the court shall determine and impose the penalty in the manner and subject to the limitations imposed in this Section.” The penalty, upon conviction of the offense of battery, is a fine of not to exceed $500 or imprisonment in a penal institution, other than the penitentiary, not to exceed 6 months, or both.

Under the provisions of section 1-7 (b), ibid., and section 117-1 (Ill Rev Stats 1965, c 38, § 117-1), this defendant was eligible to be admitted to probation. However, the defendant’s testimony pertaining to probation was of but little value to the court in determining whether he was a good probationary risk. And, due to defendant’s waiver of an investigation by the probation officer, neither the trial court nor this court have the benefit of such report.

In addition, the record reflects that no hearing was held in this case for the purpose of determining the sentence to be imposed, as provided for in section 1-7 (g) of the Code (Ill Rev Stats 1965, e 38, § 1-7 (g)), which reads:

“ (g) Mitigation and Aggravation.
“For the purpose of determining sentence to be imposed, the court shall, after conviction, consider the evidence, if any, received upon the trial and shall also hear and receive evidence, if any, as to the moral character, life, family, occupation and criminal record of the offender and may consider such evidence in aggravation or mitigation of the offense.”

Illinois Appellate Courts differ on the question of whether the aggravation and mitigation hearing is mandatory. See: People v. Carroll, 76 Ill App2d 9, 221 NE2d 528 (1966); People v. Thurman, 76 Ill App2d 41, 221 NE2d 798 (1966); People v. Spaulding, 75 Ill App2d 278, 280, 281, 220 NE2d 331 (1966); People v. Mitchell, 67 Ill App 2d 124, 128, 214 NE2d 129 (1966); People v. Smith, 62 Ill App2d 73, 80, 210 NE2d 574 (1965); and People v. Evrard, 55 Ill App2d 270, 275, 276, 204 NE2d 777 (1965).

We believe it to be the spirit and intent of section 1-7 (g) that the court hearing on aggravation and mitigation is mandatory unless understanding^ waived by the defendant and not requested by the State; and that a transcript of the inquiries of the court and the answers of the defendant, if any, pertaining to such waiver should be made, as well as a transcript of the hearing, when not so waived by the defendant or when requested by the State. This view is fortified by the provisions of section 121-9 (b) (4) of the Code. Under this construction and procedure, the trial court would have before it the required sociological information with reference to the defendant, to assist it in determining a proper sentence for the offense. In addition, reviewing courts could then meaningfully pass on the propriety of the sentence.

The imposition of proper penalties is one of the most difficult tasks which confronts both trial and reviewing courts. The judgment of the trial court in sentencing, and of the reviewing court in determining whether the sentence should be reduced, can be no better than the total facts upon which such judgment is based. The court, in People v. Evrard, ibid, at pages 274 and 275, delineated the ultimate goal of the courts in sentencing, in these words:

“The court must strive to render a judgment which will adequately punish the defendant for his misconduct, safeguard the public from further offenses, and reform and rehabilitate the offender into a useful member of society. In order to select an appropriate sentence, it is essential that the court be in possession of the fullest possible information concerning the defendant’s life and characteristics.”

Also see: People v. Carroll, supra, pages 12, 13.

In this respect it is well to note that probationary surveillance is itself an authorized mode of mild and ambulatory punishment intended as a reforming discipline. It is intended to be a means to restore offenders who are good probationary risks to society and to afford the unfortunate another opportunity by clemency. (People v. Nordstrom, 73 Ill App2d 168, 175, 219 NE2d 151 (1966).) The following expression in People v. Evrard, supra, at page 276, is appropriate relative to the circumstances of this case:

“If this defendant is of prior good record it may well be that probation would be adequate punishment and would best effect his rehabilitation. Sections 117-1 and 117-2 (Ill Rev Stats 1963, ch 38 Sections 117 — 1, 117-2), provide for probation in proper cases and the basic rules of conduct to which a probationer must conform.”

Generally, trial courts cannot properly sentence offenders without a presentence or probationary report and without a hearing on aggravation and mitigation. Absent the information furnished thereby, reviewing courts are asked to make decisions in a vacuum. There is nothing in this record from which we can determine whether the denial of the petition for probation was proper, or whether the sentence was too severe. In this posture of the record, we could affirm in all respects. The burden of presenting an adequate abstract and record rested upon the defendant and we are limited to the record of the trial court. The People ex rel. Coats v. Sain, 24 Ill2d 248, 250, 181 NE2d 179 (1962). However, with out the establishment of a precedent for future action, we believe fundamental fairness in sentencing requires that further consideration be given to the order denying probation and the sentence imposed.

Under the power vested in us by section 92(1) (e) of the Civil Practice Act (Ill Rev Stats 1965, c 110, § 92(1) (e)), we affirm the verdict finding the defendant guilty; reverse the order denying the defendant’s petition for probation and the order sentencing the defendant to the Illinois State Farm at Vandalia for six months; and, we remand this case to the trial court with directions to procure a probationary or presentence report and thereupon reconsider the petition for probation. In event the facts warrant a denial of probation, then the trial court should hold a hearing in aggravation and mitigation relative to the defendant’s moral character, life, family, occupation and criminal record, and should consider this evidence, along with the evidence received at the trial, and then pass sentence on the defendant.

Affirmed and remanded with directions.

MORAN and BURT, JJ., concur.


source: Caselaw Access Project

author: CORYN, J.

license: Public Domain

text:
    Laura Pepe Field, Plaintiff-Appellant, v. Michael Lehmann Field, Defendant-Appellee.
    Gen. No. 66-42.
    Third District.
    February 3, 1967.
    Friedman, Armstrong & Donnelly, of Chicago, for appellant.
    James D. Reynolds and Morton S. Goldfine, of Peoria, for appellee.
   CORYN, J.

Divorce litigants sometimes beget curious judicial proceedings. On October 14, 1964, plaintiff-appellant, Laura Pepe Field, was granted a divorce from defendant-appellee, Michael Lehmann Field, by decree of the Circuit Court of Peoria County in Case No. 64-D-2271. This decree awarded custody of three minor children to plaintiff, subject to certain visitation rights of defendant, and provided that defendant pay $200 per month for the support of these children. On June 1, 1965, defendant filed in the Circuit Court of Peoria County a Petition for Rule to Show Cause, alleging that plaintiff had refused to allow him to visit the children, a copy of which petition was mailed to plaintiff’s attorney of record. On June 3, 1965, plaintiff filed an original chancery complaint in the Circuit Court of Cook County, Case No. 65-CH-3013, requesting said court to enroll the Peoria divorce decree, and to enforce and modify that decree. The defendant filed a special and limited appearance in Cook County requesting the Circuit Court there to dismiss plaintiff’s complaint. On June 21, 1965, after a hearing, the Circuit Court of Cook County entered an order giving plaintiff leave to enroll the Peoria divorce decree as a decree of the Circuit Court of Cook County. Defendant’s motion to dismiss was denied, his general appearance was entered, and a hearing on the merits of plaintiff’s complaint was set for July 20, 1965. On November 2, 1965, defendant, in Cook County, filed a motion to vacate the order of the Circuit Court of Cook County. It appears that no final action was taken in Cook County, either on this motion, or the merits of plaintiff’s complaint there.

On November 10, 1965, defendant filed, in the original divorce action in Peoria County, a petition for a restraining order praying that plaintiff be restrained and enjoined from proceeding with the Cook County litigation. On November 17, 1965, plaintiff filed in Peoria County a motion to strike defendant’s petition for restraining order, which motion alleged that the Circuit Court of Cook County had assumed jurisdiction of this matter in Case No. 65-CH-3013, and that, therefore, the Circuit Court of Peoria County should refuse to grant the requested injunction. It is interesting to note that this motion also alleges that plaintiff was attempting, in Cook County, to obtain an order restraining defendant from proceeding in this matter in Peoria County.

On November 17, 1965, the Circuit Court of Peoria County, after a hearing, entered a restraining order which stated, inter alia:

1. That it “has jurisdiction of the subject matter and the parties to this proceeding; that any proceeding affecting the subject matter or the marital res must be commenced” there;

2. That plaintiff’s motion to strike was without merit and therefore denied;

3. That the defendant “has a meritorious cause of action and that unless the Writ of Injunction is issued as prayed for in the petition, the petitioner herein would suffer irreparable damage.”

The Peoria Circuit Court therefore decreed “that a Writ of Injunction issue forthwith restraining the plaintiff-respondent, Laura Pepe Field, from proceeding in the Circuit Court of Cook County, Illinois, in Cause No. 65-CH-3013 or in any other court or in any other proceedings in the State of Illinois outside the Circuit Court of the Tenth Judicial Circuit of the State of Illinois. The court further finds that sufficient cause has been shown and that said injunction is granted without bond.”

On December 30, 1965, plaintiff, in Peoria County, filed a petition requesting the Peoria court to vacate its injunction order of November 17, 1965, and to transfer the entire case to the Circuit Court of Cook County. In this petition, plaintiff alleges that the Cook County proceedings “were initiated for the convenience of all parties,” and that the “primary issue raised . . . was to obtain a modification of the divorce decree.” Plaintiff further alleges that the Peoria court “having exclusive jurisdiction over the divorce decree entered in Peoria County, should divest itself of further jurisdiction herein and transfer this entire cause to the more convenient forum of the Cook County Circuit Court for further proceedings.” Plaintiff did not allege or claim any change in facts or law since the entry of the injunctive order. Defendant, on January 13, 1966, filed a reply denying the allegations of this petition. On March 4, 1966, after a hearing, the Peoria court entered an order finding “that the restraining order of November 17, 1965, entered herein was a final order granting a permanent injunction and that said order was in no way illegal or without jurisdiction,” and that therefore plaintiff’s petition to vacate the injunction and transfer the case to Cook County is denied. This order further recited “that there is no just cause to delay the enforcement or appeal of this order.”

On April 1, 1966, plaintiff filed in Peoria, a motion to vacate the order of March 4, 1966, and to dissolve the injunction entered on November 17, 1965. The defendant resisted this motion by filing on April 19, 1966, a motion to dismiss said plaintiff’s motion, and on April 22, 1966, the Peoria court denied plaintiff’s motion to vacate the order of March 4, 1966, and to dissolve the injunction of November 17, 1965. On May 23, 1966, plaintiff filed a Notice of Appeal in Peoria specifically appealing from said order of April 22, 1966, and requesting that said order be reversed and that the “cause be remanded with directions to dissolve the restraining order of November 17, 1965.”

The propriety of the procedural and substantive aspects of the initial granting of an injunction, whether temporary or permanent, must be contested by an appeal within thirty days of the entry of the order imposing the injunction. Supreme Court Rules 303 and 307. Courts of equity, however, even after the elapse of said thirty-day appeal period, have jurisdiction to modify or vacate their own injunctions to meet changing conditions of fact or of law. 21 ILP, Injunctions, § 183. “Where the grounds and reasons for which the injunction was granted no longer exist, by reason of changed conditions, it may be necessary to alter the decree to adapt it to such changed conditions, or to set it aside altogether, as where there is a change in the controlling facts on which the injunction rests, or where the applicable law, common or statutory, has in the meantime been changed, modified, or extended. ... On application to modify the decree, the inquiry is simply whether changes since its rendition are of sufficient importance to warrant such modification. However, the injunction, whether right or wrong, cannot on such a hearing be impeached in its application to the conditions that existed on its making.” 28 Am Jur, Injunctions, § 316. See also, Material Service Corp. v. Hollingsworth, 415 Ill 284, 112 NE2d 703; Western Union Tel. Co. v. International Brotherhood, 133 F2d 955.

In Benson v. Isaacs, 22 Ill2d 606, 177 NE2d 209, our Supreme Court upheld an order of a trial court dismissing a petition to dissolve an injunction for the reason that no showing was made in the trial court of a change in the law or the facts since the entry of the order of injunction. The court stated, at 22 Ill2d 606, 609:

“An injunction such as that in the case at bar is a continuing adjudication of nontaxability, and even though subsequent decisions of this court show it was erroneously issued, it nevertheless operates to prevent assessment or collection of the tax until such time as it is modified or dissolved. ... It is also the rule that the injunction will be modified or dissolved, as to its prospective effect, where the court finds that the law has changed or that equity no longer justifies a continuance of the injunction.
“To entitle a party to such relief, however, the necessary showing must be made. . . .
“Appellants have offered no ground upon which this court would be justified in disturbing the order of the superior court.”

In the case at bar, no appeal was made by the plaintiff, within the thirty-day appeal period, from the injunctive decree of November 17, 1965. Instead, on December 30, 1965, she filed a petition in the Circuit Court of Peoria County requesting that court to vacate its injunction order of November 17, 1965, and to transfer the entire case to the Circuit Court of Cook County. The issue, then, in this case, is not whether the injunction was properly granted by the order of November 17, 1965, but whether the Peoria court, by its order of March 4, 1966, was correct in refusing to dissolve the injunction as requested by plaintiff. We regard plaintiff’s motion of April 1, 1966, to vacate the order of March 4, 1966, and the order of April 22, 1966, denying this motion, as being proceedings pursuant to Ill Rev Stats, c 110, § 68.3 so that the time for appeal of the March 4 decree did not commence until after April 22. This brings us to the primary issue in this case, that is, whether or not the Peoria court was correct, by its order of March 4, 1966, in denying plaintiff’s petition to vacate the injunction.

In its petition to vacate the injunction, plaintiff made allegations regarding the various proceedings in the Circuit Courts of Cook and Peoria County, and also recited the fact that she had been enjoined by the Peoria court from proceeding with the litigation in Cook County, or in any other jurisdiction of the State of Illinois, and that she had abided by this injunction. Plaintiff then went on to allege that the primary issue raised by the Cook County proceedings was her request to modify those portions of the original Peoria divorce decree concerning child support payments. Plaintiff further alleges that the proceedings in Cook County were initiated because it was more convenient for all parties to have the matter litigated there due to the fact that both the plaintiff and defendant were now residents of Cook County. Plaintiff then admitted in her petition that the Peoria Circuit Court had “exclusive jurisdiction over the divorce decree entered in Peoria County,” but requested that the Peoria court divest itself of further jurisdiction and transfer the entire case to Cook County, as this would be more convenient for the parties to the suit. Defendant filed a reply to plaintiff’s petition to vacate, in which he denied its material allegations, and then set out affirmative allegations in support of his claim that he was still a resident of Peoria County. No evidence was presented to the court in this matter, the parties hereto electing to present this matter to the court solely upon the motion and reply thereto, and the arguments of counsel.

It is clear to us that the plaintiff totally failed to establish that there had been a change in facts or circumstances since the time of the order granting the injunction, or that there had been a change in law, either by the legislature or by the courts, and therefore the Circuit Court of Peoria County, in its order of March 4, 1966, was correct in denying plaintiff’s petition to vacate the injunction and to transfer the case to the Circuit Court of Cook County. For the reasons hereinabove stated, the decree of the Circuit Court of Peoria County entered March 4,1966, is affirmed.

Affirmed.

STOUDER, P. J. and HOFFMAN, J., concur.


author: CRAVEN, P. J.

text:
    Richard Lee Robinson and Joanne Marie Robinson, Petitioners-Appellants, v. Melody Lynn Neubauer and Martin Eugene Neubauer, Respondents-Appellees.
    Gen. No. 10,782.
    Fourth District.
    February 9, 1967.

      Thomson, Thomson & Mirza, of Bloomington (Jerome Mirza, of counsel), for appellants.
    Fellheimer & Vicars, of Pontiac (Walter L. Stodd, of counsel), for appellees.
   CRAVEN, P. J.

A petition for adoption was filed in the circuit court of Livingston County by Mr. and Mrs. Richard Robinson, seeking to adopt Melody Lynn Neubauer, then aged almost four years. Martin Eugene Neubauer, her father, a named defendant, was alleged to be an unfit person by reason of abandonment of the child, desertion and other neglect, or other misconduct toward the child. The circuit court denied the petition for adoption and this appeal followed.

Melody Lynn was born on April 24, 1962. Her mother, Dorothy Neubauer, died in childbirth. Upon the release of the child from the hospital, the father placed her in the home of the Robinsons. Mrs. Robinson and Dorothy Neubauer were sisters. For a brief period of time Martin Neubauer also lived in the Robinson home. Mrs. Robinson cared for the child.

After some six to eight weeks, Martin Neubauer moved from the Robinson home to quarters of his own in the same area and continued weekly visits with the child. In the spring of 1965, he again moved, this time to Bloomington, Illinois, and his visits became less frequent, about every two or three weeks. A Social Security check that Martin, as the father of the child, received each month in the amount of $65 was distributed by the payment of $40 to the Robinsons for the support of the child and the remainder of $25 was placed in an account for the child by the father. The record indicates that there were additional expenditures by the father for the child but in negligible amounts.

In June of 1965, Martin Neubauer married Catherine Neubauer. Following the marriage, the Neubauers visited the Robinsons some thirty times. Martin ultimately requested custody of his daughter in January of 1966. The Robinsons refused custody and soon after the demand for custody, instituted this proceeding to adopt the child.

It is uncontroverted that the Robinsons are fit persons and that they supplied the child with a good and suitable home. The relationship between them and the child was indeed not unlike the relationship of parent and child. The child regarded and referred to them as parents. Martin Neubauer, the father, apparently acquiesced in this and was regarded by the child as a friend.

There is conflict in the evidence as between Mr. Neubauer and Mrs. Robinson as to whether the initial placement of the child was a permanent arrangement or was thereafter changed so as to be a permanent arrangement. Mrs. Robinson testified, in substance, that when the child and her father came to live in the Robinson home, Martin informed her that he did not know how long he was going to let the Robinsons keep the child and that he reserved the right to retake the child at any time. Later, in the spring of 1965, she believed from a conversation with him that the child would remain permanently in the Robinson household. Neubauer, on the other hand, concedes only that there was a discussion of permanent custody but that no conclusion was ever reached. He testified that his daughter was to remain with the Robinsons subject to certain conditions, apparently rights of visitation, not unlike the rights of visitation of a divorced parent when custody is with the other parent.

The adoption of children is a practice that was introduced into the law of Illinois by statute. It was derived from the civil and Roman law, and was unknown to the common law. The Adoption Statute has been the subject of much litigation and legislative revision. The most recent revision occurred in 1959. (See Historical Note, SHA ch 4, par 1.) A petition for adoption is, by statute, required to establish either that there is a consent to adoption or that a consent is not required, where the person whose consent would otherwise be required is found by the court to be an unfit person. In this case, there being no consent by the father, the petition alleged his unfitness by reason of abandonment of the child, desertion of the child, or other neglect or misconduct toward the child.

The facts in this case do not establish abandonment as that term has been used in adoption proceedings. Abandonment has been defined as any conduct on the part of the parent which evidences a settled purpose to forego all claims to the child. Thorpe v. Thorpe, 48 Ill App2d 455, 198 NE2d 743 (4th Dist 1964), and cases there cited. Desertion, as contemplated by the Adoption Act, is something less than abandonment but would necessarily require the establishment of the existence of an intention by the parent to terminate, permanently, custody over the child but not to relinquish all parental duties. In the argument of this case, the assertion of abandonment was dropped and it is essentially here urged that the circuit court erred in failing to find the existence of desertion.

In Carlson v. Oberling, 73 Ill App2d 412, 218 NE2d 820 (4th Dist 1966), we discussed the question of desertion and abandonment, adopting the definition of those terms as found in Thorpe. The facts in this case do not establish desertion, which must necessarily have a far broader meaning than physical separation.

It is clear to us that the defendant Martin Neubauer, as the father of the child, must either consent to her adoption or must have been guilty of conduct detrimental to the best interest of the child to warrant a judicial determination of unfitness so that his consent is not required by reason of that detrimental conduct. Here there has not been abandonment, there has not been desertion, and nothing is suggested to establish other neglect or misconduct toward the child.

The appellees contend that the controlling question in this case relates to the best interest of the child and urge that the granting of the petition to adopt in this case is not dependent upon a finding of unfitness. The following cases are cited in support of that proposition: Giacopelli v. Florence Crittenton Home, 16 Ill2d 556, 158 NE2d 613 (1959); Campbell v. Fisher, 28 Ill App2d 454, 171 NE2d 810 (2nd Dist 1961); Houston v. Brackett, 38 Ill App2d 463, 187 NE2d 545 (2nd Dist 1963); Huber v. Huber, 26 Ill App2d 207, 167 NE2d 431 (2nd Dist 1960); People v. Weeks, 228 Ill App 262; People v. Porter, 23 Ill App 196; Kokotekian v. Kokotekian, 23 Ill App2d 171, 161 NE2d 712 (1st Dist 1959). An examination of these cases does not show a case involving adoption without the consent of the natural parent or a finding of unfitness of the natural parent, although it is true that there is an abundance of language to the effect that the welfare of the child is to be decisive. In Giacopelli there is to be found language that there was an abandonment of the child. The concurring opinion, by three members of the Court, agreed with the result for that specified reason, concluding that the result was dictated by reason of that unfitness and not solely “for the best interests of the child.” That concurring opinion has language that it is only where the parents are proved unfit to have custody of children that a court will deprive them of it. The Campbell case quotes the majority language of Giacopelli, but in Campbell there had been a finding of unfitness by the trial court and that finding was specifically affirmed by the Appellate Court. The same is true in the case of Houston v. Brackett. Huber, Kokotekian, People v. Weeks, and People v. Porter are custody cases — not adoption — and, while possibly persuasive, custody obviously involves the best interest of the child, as does adoption, but differs in that a decree of adoption operates to deprive the natural parent of all legal rights as respect the child. (Ill Rev Stats 1965, c 4, par 9.1-17.)

The Adoption Act, as revised in 1959, is a legislative enactment subsequent to most of the cases relied upon by the appellants. We agree with the appellants that in adoption, as in custody, the best interest of the child is a proper area of studied judicial concern. A condition precedent to adoption, however, is either consent of the parent or a finding by the court that a consent is not required for the reason of unfitness. (Ill Rev Stats 1965, c 4, pars 9.1-1, 9.1-5 and 9.1-8.)

The circuit court of Livingston County properly denied the petition for adoption in this case and its action in so doing is affirmed.

Affirmed.

SMITH and TRAPP, JJ., concur.


author: HOFFMAN, J.

text:
    In the Matter of the Estate of Thomas A. Scully, Deceased. Sylvia I. Scully, et al., Plaintiffs-Appellants, v. Violet Mary Scully, Michael John Scully, and Peter Dennys Scully, Individually and as Executors and Trustees, etc., Defendants-Appellees.
    Gen. No. 10,815.
    Fourth District.
    February 9, 1967.

      James A. Dooley, of Chicago, and Harris and Harris, of Lincoln, for appellants.
    Sidley, Austin, Burgess & Smith, of Chicago (Loren E. Juhl, of counsel), for appellees.
   HOFFMAN, J.

This appeal is from an order of the Circuit Court approving the first current account of the executors in the estate of Thomas A. Scully, deceased. Although the entire order is appealed from, the appellants pray only that it be reversed insofar as it overruled appellant’s objection to the widow’s award and attorney’s fees.

Thomas A. Scully died July 12, 1961, and the executors of his will were appointed August 8, 1961. The objectors, appellants here, are children and heirs of the deceased, are adults under no disability, and were properly before the court at the time of the commencement of probate. The appraisement bill, fixing the widow’s award in the sum of $50,000, was filed and approved by the court on October 19, 1961. The executors’ first current account was filed on April 27, 1966, covering the period from the date of their appointment to and including December 31, 1965. On May 9, 1966, the appellants filed objections to the aforesaid widow’s award and to the item of attorney’s fees appearing in said current report. From an order overruling said objections and approving said items appellants appeal.

The only objection to the widow’s award is that it is excessive. We need not take up the merits of this objection. It was filed far too late.

In Hodson v. Hodson, 277 Ill 137, 115 NE 159, and In re Estate of Gersch, 43 Ill App2d 224, 193 NE2d 208, it was held that the right to review a widow’s award arises at the time the award is approved. The reason for this holding is that the purpose of a widow’s award is to provide for her urgent and immediate needs in the period immediately following her spouse’s death, and because a cautious administrator would defer any payment until the amount was finalized, the whole purpose could be defeated by permitting delay in finally fixing the amount.

In our case, the objectors were in court from the time they were notified of the hearing to probate the will and they were therefore bound to take notice of the award approved on October 19, 1961. Hodson v. Hodson, supra. Their failure to take any action toward objecting to the award prior to May 9, 1966, is far too long a delay on their part.

The objection to the attorney’s fees which were allowed is that they are not supported by any evidence in the record.

The record shows that Thomas A. Scully left a will disposing of an estate valued at about $7,500,000. The appellants have filed an action to set aside this will and to set aside certain trusts created by the decedent during his lifetime. The executors, who also are the trustees of the trusts under attack, have hired an attorney to defend these actions. For his work up to and including December 31, 1965, this attorney submitted a bill in the sum of $72,507.42 for legal services and cash advances. Of this sum, $3,260.88 was charged to the estate. The approval of this latter amount is objected to by appellants. The record shows that said attorney has made court appearanees, attended the taking of depositions, filed motions attacking the pleadings, filed memoranda of law, and filed and responded to interrogatories. The record further shows that the appellants’ attorney, at the hearing, admitted that “almost all the work which has been done involves the estate” and that “they should have paid more [of said attorney’s fees] out of the estate.”

The statute (Ill Rev Stats, c 3, § 93) provides that it is the duty of an executor to defend a suit to contest a will. The employment of counsel is indispensable to the proper discharge of that duty, and the reasonable fees of such counsel are a proper charge against the assets of the estate. Shaw v. Camp, 56 Ill App 23; Ill Rev Stats, c 3, § 337. The authorities hold that the amount of an attorney’s fee for representing an executor is peculiarly within the province of the sitting judge, that each case must rest upon its own facts or circumstances, that no general rules can be laid down as to what particular amount may be held to be reasonable, and that the fee fixed will not be interfered with on review unless the record discloses that there has been a manifest abuse of discretion or unless it is palpably erroneous. In re Estate of Jaysas, 33 Ill App2d 287, 179 NE2d 411; In re Estate of James, 10 Ill App2d 232, 134 NE2d 638; In re Estate of Duke, 43 Ill App2d 68,192 NE2d 711.

Clearly, in this case, the allowance of the sum of $3,260.88 to the attorney who is defending this will, for work extending over approximately four years and of the nature detailed by the record, is proper. Especially is this true when the record discloses no reason for believing that the fee is unreasonable or erroneous, and when the objecting attorney himself states that more should have been paid by the estate.

The order appealed from is affirmed.

CRAVEN, P. J. and SMITH, J., concur.


author: MR. JUSTICE ABRAHAMSON

text:
    Fallon Fischer and Newton Fischer, Plaintiffs-Appellants, v. Stuart Ross and Peter Kleinpaste, DefendantsAppellees.
    Gen. No. 66-62.
    Second District.
    February 10, 1967.

      Thomas L. Ruth, of Barrington, for appellants.
    Bert P. Snow, of Freeport, for appellees.
   MR. JUSTICE ABRAHAMSON

delivered the opinion of the court.

This is an appeal from the Circuit Court of Carroll County. The action was brought to recover damages for personal injuries suffered by Fallon Fischer in an automobile accident wherein the defendant, Stuart Ross, was driving an automobile owned by the defendant Peter Kleinpaste. The jury rendered a verdict in favor of the defendants, upon which the trial court entered judgment. The accident occurred on May 9, 1959, in Carroll County on a highway connecting Mt. Carroll and Savanna, Illinois.

Fallon Fischer, a minor at the time of the accident, was an Assistant Scoutmaster. The defendant, Stuart Ross, was an Assistant Scout Advisor. Both were volunteer Scouts having charge of Mt. Carroll Boy Scout Troop No. 51 at a Camporee being held on May 9, 1959, at Savanna Palisades State Park. Defendant Peter Kleinpaste was employed as a professional Scouter by the U. S. Grant Council of the Boy Scouts and had general charge of the Camporee. The Scoutmasters and their assistants were in charge of their troops. Defendant Kleinpaste used his auto in Scout activities and was reimbursed for such auto expenses.

At the Camporee some pancake batter was left after a competition event and Fallon Fischer and Stuart Ross decided to use the batter for the evening meal. There is a conflict in the evidence as to whether the batter was to be used for all of the boys in their troop or only for the individual use of Fischer and Ross. As Fischer and Ross had no syrup or butter for the pancakes, it was decided they would go to Savanna to get these materials. Ross, in the presence of Fischer, asked Kleinpaste for the use of his car. Kleinpaste granted the request. He then requested that Ross and Fischer purchase some cigarettes for him. A Mr. Palmer, an associate of Kleinpaste, requested that they purchase some chicken for his and Kleinpaste’s dinner.

Fischer and Ross proceeded to Savanna in Kleinpaste’s automobile, Ross doing the driving, and made some purchases. Fischer and Ross then proceeded to Mt. Carroll, Illinois. Again, the evidence is conflicting. Ross testified Fischer requested him to drive to Mt. Carroll solely to pick up Fischer’s shaving gear. Fischer testified the trip was mutually determined to pick up some troop equipment and only incidentally was his shaving gear picked up in Mt. Carroll.

From Mt. Carroll, with Ross still driving, the boys headed back to the Savanna Palisades State Park. Savanna is situated between Mt. Carroll and the park. The accident occurred on the road between Mt. Carroll and Savanna.

There is conflicting testimony as to whether, at the time of the accident, Ross was driving at 60 miles an hour or at speeds ranging from over 70 miles per hour up to 90 miles per hour.

Ross claimed Fischer asked him to see how fast the car would go. Fischer testified he asked Ross to drive more slowly than he was driving.

Plaintiff’s complaint alleges in various Counts that he, Fischer, was a passenger and that Ross, as agent of Kleinpaste, was guilty of negligent conduct and was also guilty of wilful and wanton conduct. In addition to filing answers denying plaintiffs’ allegations, the defendants filed affirmative defenses asserting that Fischer was either a guest or was engaged in a joint enterprise within the meaning of the Illinois Guest Statute (c 95y%, § 9-201, Ill Rev Stats 1965) and, therefore, plaintiff could recover only if Ross was guilty of wilful and wanton conduct. Before the trial commenced, counsel for the defendants withdrew the so-called affirmative defenses as being “unnecessary” and to “simplify the drafting of the issue instruction.”

At the time of the instruction conference, defendants tendered instructions relating to joint enterprise. Plaintiff objected on the grounds that this was a matter of affirmative defense and could not be given as said defense had been withdrawn prior to the trial. The court permitted the defendant to file a new affirmative defense. Plaintiff asserts this constituted surprise and raised an issue he had no opportunity to meet at the trial.

The primary issue before us is whether or not the defense of “joint enterprise” must be raised as an affirmative defense in the defendants’ pleadings. The so-called Guest Statute denies recovery to a party who is a guest passenger or who is engaged on a joint enterprise, unless the conduct of the offending party is wilful and wanton. The burden of proof has been held to be on the plaintiff to prove he was not a guest within the meaning of the Statute at the time of the accident before he may prevail. Weinrob v. Heintz, 346 Ill App 30, 37, 104 NE2d 534; Burns v. Storchak, 331 Ill App 347, 351, 73 NE2d 168. In Leonard v. Stone, 381 Ill 343 at 346, 45 NE2d 620, the court said: “It is incumbent on Appellee, as plaintiff, to show that he was a passenger and not a

guest.” Again, in Miller v. Miller, 395 Ill 273, 69 NE2d 878, the plaintiff elected to sue the defendant driver, charging negligence only. The court at page 282 stated: “The principal issue made by the pleadings is whether the plaintiff was a guest in the truck under the Guest Act or a passenger for hire. It was therefore incumbent upon him to show that he was a passenger and not a guest.”

Since it is incumbent upon a plaintiff to prove he is a passenger and not a guest under the Guest Statute, it would also follow that his burden would require him to prove that he was not engaged in a joint enterprise with the defendant at the time of the accident. A special interrogatory was submitted to the jury as to whether Fischer was either a guest or on a joint enterprise with the defendant Ross at the time of the accident. It was proper to submit this interrogatory. Leonard v. Stone, supra. This interrogatory the jury answered in the affirmative. The jury also answered a written interrogatory that they did not find Stuart Ross guilty of wilful and wanton conduct.

The record before us contains ample evidence to support the findings of the jury. The burden to prove that the plaintiff did not occupy the status of a guest or one engaged in a joint enterprise was upon him and was not an affirmative defense to be pleaded by the defendants.

The plaintiff contends that the instruction relative to joint enterprise was erroneous. The objection to this instruction was bottomed on the principle that this was an affirmative defense and not having been pled was improper. We in this opinion express a contrary opinion. The form and content of the instruction was not objected to in the trial court conference on instructions and therefore is not subject to review. Stewart v. DuPlessis, 42 Ill App2d 192, 201, 191 NE2d 622; Greenlee v. John G. Shedd Aquarium, 31 Ill App2d 402, 411, 176 NE2d 684.

Finally, plaintiff contends that the failure of the court to give the plaintiff’s instructions on deviation of an agent was reversible error. We note that in IPI 50.09 no instruction was prepared on the issue of deviation. There is a comment by the committee that IPI 50.06 is recommended. This instruction was given by the trial court. We are of the opinion that the failure to give the plaintiff’s instruction on deviation was not prejudicial error when viewed in conjunction with the committee’s comments suggesting the use of IPI 50.06, and the jury’s finding, in answering the special interrogatory, that the parties were engaged in a joint venture.

For the reasons above stated the judgment of the trial court is affirmed.

Judgment affirmed.

MORAN, P. J. and SEIDENFELD, J., concur.


author: EBERSPACHER, J.

text:
    Watson Lumber Company, a Corporation, Plaintiff-Appellee, v. William F. Guennewig and Mary E. Guennewig, Defendants-Appellants.
    Gen. No. 66-8.
    Fifth District.
    February 13, 1967.
    Rehearing denied March 31, 1967.

      Morris B. Chapman and Roy W. Strawn, of Granite City, for appellants.
    Gordon Burroughs of Burroughs, Simpson and Burroughs, of Edwardsville, and Emerson Baetz, of Alton, for appellee.
   EBERSPACHER, J.

The corporate plaintiff, Watson Lumber Company, the building contractor, obtained a judgment for $22,500 in a suit to recover the unpaid balance due under the terms of a written building contract, and additional compensation for extras, against the defendants William and Mary Guennewig. Plaintiff is engaged in the retail lumber business, and is managed by its president and principal stockholder, Leeds Watson. It had been building several houses each year in the course of its lumber business.

The contract language and specifications which were prepared by plaintiff and signed in its office on December 3, 1962, contemplated the construction of a 4-bedroom, 2-bath, air-conditioned home on the defendant’s lot at a contract price of $28,206. The plans from which Watson prepared the plaintiff’s bid and specifications were put in his hands by the defendants, and became part of the contract along with the specifications. The construction was apparently commenced in December 1962, and by August 1963, the contractor was claiming the house was complete, and requesting payment of the contract balance; it had been doing so for about 30 days. The defendants had withheld payment contending dissatisfaction with the performance and failure to complete in accordance with the terms of the contract.

The parties agreed that the defendants have paid the sum of $11,407.20 on the contract price, thus leaving a balance of $16,798.89. The trial judge who heard the case, without a jury, stated that his award included the balance of the “agreed basic price” together with interest for two years from the date of the defendants’ last payment, being July 1963, at the statutory rate of 5%. He also obviously included an amount for “extras,” and states that from the amount of the award “the allowance for defective items” have been deducted in response to defendants’ claim for setoff.

The contractor claimed a right to extra compensation with respect to no less than 48 different and varied items of labor and/or materials. These items range all the way from $1.06 for extra plumbing pieces to $429 for an air-conditioner larger than plaintiff’s evidence showed to be necessary, and $630 for extra brick work. The evidence, in support of each of these items and circumstances surrounding each being added, is pertinent to the items individually, and the evidence supporting recovery for one, does not necessarily support recovery for another.

When we total the elements that the trial judge set out in the judgment order, and which plaintiff contends are included, we do not reach the total of $22,500, for which judgment was given to the plaintiff. Thus the whole appears here to be greater than the sum of all its parts, even before any of the parts are subjected to examination. The plaintiff, in his explanation of the judgment contained in his brief, tells us that the “extras” charged and apparently awarded in his recovery, total $3,840.09. While it was disputed whether or not the contract balance was due, it was not disputed that the amount of the balance was $16,798.89. Interest as described by the judge, was 5% per year for two years on this balance, thus making the maximum interest, apparently included, $1,679.88. The total of these three; the contract balance, the interest and the extras charged amount to $22,318.77. This appears to us to be the total of every part which the plaintiff claims is included in the judgment under his own view of the matter; yet this leaves us still $181.23 short of reaching the amount of the judgment entered. This leaves us completely at a loss to find any deductions or setoffs of any kind allowed to the defendants for “omissions or defects.” While the order recites “that claims for omission or defects” were considered, it also recites “but allowed nothing for claims for defects which appeared to have been brought on by the defendants or which are trivial,” but it also recites that there has been an allowance made for defective items (“less the allowance for defective items”). The plaintiff’s brief says that the trial judge reduced the claim “by an undisclosed sum” as “allowances for defects and omissions in the work.” We find the sum not merely undisclosed, we find it undiscoverable.

The defendants contend that the plaintiff failed to complete performance under the contract, and that the work was faulty in several respects. The evidence clearly shows this to be the case. It warrants giving defendants the benefit of a setoff substantial enough to be found without the aid of searching calculations. Principal claims of error in the trial court are: (A) That the plaintiff was not held to the burden of proof which the law assigns to one making a claim for extras under these circumstances; that the evidence is not adequate to support the award for extras which the judgment of the court below contains, and, (B), That the written contract provided that changes and additions in work or material were to be agreed to in writing; that this requirement was not complied with by the plaintiff nor was it waived by the defendants and that the evidence in the record fails to establish either compliance or waiver. The case thus involves reference to the written agreement which contained the following:

“Drawings and specifications are intended to cooperate. Anything shown on the drawings but not mentioned in the specifications or vice versa or anything not expressly set forth in either but which is reasonably implied shall be furnished as though specifically shown and mentioned in both without extra charge. Changes in work or material from that specified shall be stipulated in writing and attached to and made a part of the contract.”

Contract language is to be given its clear meaning if clarity is present, but ambiguities or uncertainties are to be resolved against the party creating them. Spitz v. Brickhouse, 3 Ill App2d 536, 123 NE2d 117. Here, the contractor is the author of the language.

The trial judge states in the order that there are ambiguities present in the contract, but the record indicates no resolving of any of the ambiguities in favor of the defendants as the law requires. Indeed, it does not show that the contract language was given any effect or operation in the trial. It cannot be ignored for that would, in effect, be writing a new agreement different than the one the parties made. There is no basis for ignoring their agreement. Deviations by the parties from contract terms do not produce a legal cancellation. Booher v. Williams, supra.

Watson, over objection, was allowed to testify that the finished house was what the defendants wanted, although not what the plans and specifications called for. Preliminary negotiations of the parties leading up to a written contract are mentioned in the written agreement and the oral negotiations may not be shown for the purpose of contradicting the written agreement when it is acknowledged as it was here, that this written contract, which included the plans and specifications, constituted the full agreement between the parties, and at the outset was accepted by both as such. The parol evidence rule in essence, is a rule of contract law rather than a rule of evidence. It requires that the terms of the written contract will not be altered by oral testimony; and evidence cannot be permitted, that the parties did not in fact agree to what was written or agreed to something else. Corbin on Contracts, § 573; Anson on Contracts, Patterson Edition, § 366. Parol evidence cannot be used to vary or contradict the plain unambiguous terms of a building contract. 13 Am Jur2d 114, “Building & Construction Contracts,” § 124.

Neither does the record contain any evidence to support or warrant the finding of the trial judge expressed in his order:

“The house was built under mail order plans not meant for the location in question. . . .”

There is no evidence in the record that the plans weren’t suited to the lot. There is evidence that plaintiff had a complete knowledge of them; that its specifications and contract price were prepared with reference to them, and that they were made a part of the contract. Their origin is irrelevant; their quality or the degree of skill they may reflect does not legally handicap either party. The plaintiff found them usable throughout. There is no evidence that the defendants warranted the plans or represented them to be anything that they were not. They did not enlarge the contractor’s burdens or risks. Indeed, he made them a part of his promise. When they became part of the contract they represented what was agreed to.

If there was any lack of foresight reflected in the contractor’s bid and contract price, it did not result in extra cost to the owner. This had been agreed on by the parties in the following language in the specifications, which became a part of their written contract:

“Before submitting his bid, contractor shall examine the building site. No allowance will be made for lack of full knowledge of all conditions except such underground conditions as are indeterminable before the beginning of the work.”

This language, like the other quoted terms of the contract, was the plaintiff’s own, and should therefore be taken most strongly against it. Dailey v. Meredith, 56 Ill App2d 230, 205 NE2d 640; Spitz v. Brickhouse, 3 Ill App2d 536, 123 NE2d 117. Any ambiguity should be resolved against the party who chose the words. In this case, we cannot find that the language was given any effect, or in any way applied to the case.

■ Most of the extras claimed by the contractor were not stipulated in writing as required by the contract. The contractor claims that the requirement was waived. Prior to considering whether the parties, by agreement or

conduct dispensed with the requirement that extras must be agreed to in writing, it should first be determined whether the extras claimed are genuine “extras.” We believe this is an important area of dispute between these parties. Once it is determined that the work is an “extra” and its performance is justified, the cases frequently state that a presumption arises that it is to be paid for. Adams v. Tri-City Amusement Co., 124 Va 473, 98 SE 647. No such presumption arises, however, where the contractor proceeds voluntarily; nor does such a presumption arise in cases like this one, where the contract makes requirements which any claim for extras must meet. Buckingham Routh Co. v. Wuesterfeld Co., 114 Conn 720, 157 A 414. In 17A CJS, §371(4), Contracts, it is stated:

“Where the contract provides that there shall be no charge for extra work unless a written agreement is made therefor, the builder cannot recover compensation as for extra work on account of alterations made at the oral request or consent of the owner but for which no agreement to pay additional compensation is made.”

and,

“Where at the request of the owner, the builder makes alterations from the original contract which are such that the owner is justified in thinking that there will be no extra cost, therefore, he should notify the owner that there will be extra cost if such is the case, otherwise, he will be precluded from claiming extra compensation.”

The law assigns to the contractor, seeking to recover for “extras,” the burden of proving the essential elements. Leafgreen v. Yablonsky, 178 Ill App 19. That is, he must establish by the evidence that (a) the work was outside the scope of his contract promises; (b) the extra items were ordered by the owner, Cerny-Pickas & Co. v. Dallach, 249 Ill App 424. Dickinson v. Prince, 61 Ill App 335, Edward Edinger Co. v. Willis, 260 Ill App 106; (c) the owner agreed to pay extra, either by his words or conduct, Snead & Co. Iron Works v. Merchants Loan & Trust Co., 225 Ill 442, 80 NE 237; (d) the extras were not furnished by the contractor as his voluntary act, and (e) the extra items were not rendered necessary by any fault of the contractor. McKay Engineering & Construction Co. v. Chicago Sanitary Dist., 348 Ill App 89, 108 NE2d 39; Salomon-Waterton Co. v. Union Asbestos & Rubber Co., 263 Ill App 583.

The proof that the items are extra, that the defendant ordered it as such, agreed to pay for it, and waived the necessity of a written stipulation, must be by clear and convincing evidence. The burden of establishing these matters is properly the plaintiff’s. Evidence of general discussion cannot be said to supply all of these elements.

The evidence is clear that many of the items claimed as extras were not claimed as extras in advance of their being supplied. Indeed, there is little to refute the evidence that many of the extras were not the subject of any claim until after the contractor requested the balance of the contract price, and claimed the house was complete. This makes the evidence even less susceptible to the view that the owner knew ahead of time that he had ordered these as extra items and less likely that any general conversation resulted in the contractor rightly believing extras had been ordered.

In a building and construction situation, both the owner and the contractor have interests that must be kept in mind and protected. The contractor should not be required to furnish items that were clearly beyond and outside of what the parties originally agreed that he would furnish. The owner has a right to full and good faith performance of the contractor’s promise, but has no right to expand the nature and extent of the contractor’s obligation. On the other hand, the owner has a right to know the nature and extent of his promise, and a right to know the extent of his liabilities before they are incurred. Thus, he has a right to be protected against the contractor voluntarily going ahead with extra work at his expense. He also has a right to control his own liabilities. Therefore, the law required his consent be evidenced before he can be charged for an extra. Booher v. Williams, 341 Ill App 504, 95 NE2d 518; and here the contract provided his consent be evidenced in writing.

The amount of the judgment forces us to conclude that the plaintiff contractor was awarded most of the extra compensation he claims. We have examined the record concerning the evidence in support of each of these many items and are unable to find support for any “extras” approaching the $3,840.09 which plaintiff claims to have been awarded. In many instances the character of the item as an “extra” is assumed rather than established. In order to recover for items as “extras,” they must be shown to be items not required to be furnished under plaintiff’s original promise as stated in the contract, including the items that the plans and specifications reasonably implied even though not mentioned. A promise to do or furnish that which the promisor is already bound to do or furnish, is not consideration for even an implied promise to pay additional for such performance or the furnishing of materials. The character of the item is one of the basic circumstances under which the owner’s conduct and the contractor’s conduct must be judged in determining whether or not that conduct amounts to an order for the extra.

The award obviously includes items which Watson plainly admits “there was no specific conversation.” In other instances, the only evidence, to supply even by inference, the essential element that the item was furnished pursuant to the owner’s request, and agreement to pay is Mr. Watson’s statement that Mrs. Guennewig “wanted that.” No specific conversation is testified to, or fixed in time or place. Thus it cannot be said from such testimony whether she expressed this desire before or after the particular item was furnished. If she said so afterward, the item wasn’t furnished on her orders. Nor can such an expression of desire imply an agreement to pay extra. The fact that Mrs. Guennewig may have “wanted” an item and said so to the contractor falls far short of proving that the contractor has a right to extra compensation. See, 17A Corpus Juris Secundum, 401, § 371 (1), where the rule is expressed thus:

“. . . he (the owner) is not rendered libel [sic] by the mere fact that he has knowledge that the builder is doing extra work if he does not know that the builder expects additional pay. . . .
“. . . as a general rule, a builder or contractor is not entitled to additional compensation for extra work or material voluntarily furnished by him without the owner’s request, or knowledge that he expects to be paid for it.”

Many items seem to be included as “extras” merely because plaintiff had not figured them in the original cost figures.

It is clear that the contractor does not have the right to extra compensation for every deviation from the original specification on items that may cost more than originally estimated. The written contract fixes the scope of his undertaking. It fixed the price he is to be paid for carrying it out. The hazards of the undertaking are ordinarily his. McKay Engineering & Construction Co. v. Chicago Sanitary Dist., supra.

“If the construction of an entire work is called for at a fixed compensation, the hazards of the undertaking are assumed by the builder, and he cannot recover for increased cost as extra work in discovering he has made a mistake on the estimate of the cost, or that the work is more difficult and expensive than he anticipated.” 17A Corpus Juris Secundum, 413, “Contracts,” § 371(6).

Some so called “extras” were furnished, and thereafter the owner’s agreement was sought. Such an agreement has been held to be too late. Leaf green v. Yablonsky, supra.

The judge, by his remarks at the time of awarding judgment, shows that the definition of extras applied in this case was, indeed, broad. He said,

“substantial deviations from the drawings or specifications were made — some deviations in writing signed by the parties, some in writing delivered but not signed, but nevertheless utilized and accepted, some delivered and not signed, utilized and not accepted, some made orally and accepted, some made orally but not accepted, and some in the trade practice accepted or not accepted.”

While the court does not state that he grants recovery for all extras claimed, he does not tell us which ones were and were not allowed. The amount of the judgment requires us to assume that most were part of the recovery. It can be said with certainty that the extras allowed exceeded those for which there is evidence in the record to establish the requirements pointed out.

Mere acceptance of the work by the owner as referred to by the court does not create liability for an extra. Mueller v. Rosen, 179 Ill 130, 53 NE 625. In 13 Am Jur2d, 60, “Building & Const Cont,” § 56, it is stated, that: “The position taken by most courts considering the question is that the mere occupancy and use do not constitute an acceptance of the work as complying with the contract or amount to a waiver of defects therein.” Conversation and conduct showing agreement for extra work or acquiescence in its performance after it has been furnished will not create liability. Greenleaf v. Yablonsky, supra. More than mere acceptance is required even in cases where there is no doubt that the item is an “extra.” Great Lakes Dredge & Dock Co. v. City of Chicago, 353 Ill 614, 188 NE 196.

The contractor must make his position clear at the time the owner has to decide whether or not he shall incur extra liability. Fairness requires that the owner should have the chance to make such a decision. He was not given that chance in this case in connection with all of these extras. Liability for extras, like all contract liability, is essentially a matter of consent; of promise based on consideration. Marcus v. S. S. Kresge Co., 283 Ill App 556, 17A Corpus Juris Secundum, “Contracts,” §371(1).

The Illinois cases allow recovery for extra compensation only when the contractor has made his claim for an extra, clear and certain, before furnishing the item, not after. They are in accord with the comments to be found in 31 Ill Law Rev 791 (1937). There the author, after reviewing the cases, makes the following analysis:

“The real issue in these cases is whether or not the contractor has, at the time the question of extra work arises, made his position clear to the owner or his agents and that would seem to be the true test in situations where a written order clause is sought to be disregarded. If he does expressly contend that work demanded is extra, the owner certainly cannot be said to be taken unawares, and if orders are given to go ahead it is with full knowledge of the possible consequences.”

The contractor claims that the requirement of written stipulation covering extras was waived by the owner’s conduct. The defendants quite agree that such a waiver is possible and common but claim this evidence fails to support a waiver of the requirement. There are many cases in which the owner’s conduct has waived such a requirement. City of Elgin v. Joslyn, 136 Ill 525, 26 NE 1090; Sexton v. Chicago, 107 Ill 323; Kirk v. Wolf Mfg. Co., 118 Ill 567, 8 NE 815; Snead & Co. Iron Works v. Merchants Loan & Trust Co., 225 Ill 442, 80 NE 237; W. H. Stubbings Co. v. World’s Columbian Exposition Co., 110 Ill App 210. In all the cases finding that such a provision had been waived thus allowing a contractor to collect for extras, the nature and character of the item clearly showed it to be extra. Also, in most cases the owner’s verbal consent of request for the item was clear beyond question and was proven to have been made at the time the question first arose while the work was still to be finished. The defendants’ refusal to give a written order has in itself been held to negative the idea of a waiver of the contract requirement for a written order. F. W. Carlin Const. Co. v. New York & Brooklyn Brewing Co., 149 App Div 919, 134 NYS 493. We think the waiver of such a provision must be proved by clear and convincing evidence and the task of so proving rests upon the party relying upon the waiver. Atwell Printing & Binding Co. v. Prairie Farmer Pub. Co., 246 Ill App 100. See Annotation 2 ALR3d, “Effect of Stipulation in Private Building or Construction Contract,” etc., p 620 et seq.

From the amount of the judgment, it is plain that it includes an award of the full contract balance. This cannot be justified. The undisputed evidence in the record shows that performance of the builder’s obligations under the contract are less than full performance. For the judgment to have included the contract balance in full, the evidence should have shown full performance of the contract by the plaintiff. Yet the undisputed evidence here clearly shows the contrary. The plaintiff’s President, Leeds Watson, testified to a number of items yet to be furnished that had not been furnished and that there was yet work to be done, which he was willing to do. His recognition of things which he is willing to furnish makes it clear that the plaintiff has not fully performed its undertaking. Likewise, substantial items of performance are yet due under the contract which he did not mention, such as earth moving agreed upon and specified, which remains to be done.

It is therefore clear that the plaintiff’s recovery cannot be based on its full performance of the contract. The contractor’s right to recover rests on the law of “Substantial Performance” and its propriety must be shown by that law. Recovery for “Substantial Performance” must, by definition be something less than full contract price.

“It has been decided that he who relies upon substantial as contrasted with complete performance must prove the expense of supplying the omissions or he fails in his proof, for he cannot recover for full performance where a part of the contract is still unperformed.” 13 Am Jur2d, p 112, “Building & Const Cont,” § 121.

Under the common law, one seeking recovery on a contract, had to prove literal performance of his promises in order to hold the opposite party to his promise to pay. This was particularly harsh in building and construction cases because literal performance in every detail is unlikely. Moreover, labor and materials expended upon an owner’s land could not be returned to the contractor if the owner avoided the contract. It was therefore held, and became the rule in Equity, that if the owner got substantially the thing for which he bargained, he must pay for it, but he was allowed a credit as compensation for the deficiencies existing in what he got as compared to what strict performance would have given him. In such cases, the burden is on the builder to show the elements of “Substantial Performance” and show the amount he should recover. Page on Contracts, § 2778. Illinois holds that in contract cases the burden is on the plaintiff to establish the elements measuring the amount of his recovery. Supergear Drive Corp. v. Hollister-Whitney Co., 327 Ill App 414, 64 NE2d 672. Thus, in “Substantial Performance” recovery there should be deductions from the contract price by an amount necessary to account for the difference between what the owner got by the actual performance as compared to what he bargained for. Keeler v. Herr, 157 Ill 57, 41 NE 750. Bloomington Hotel Co. v. Garthwait, 227 Ill 613, 81 NE 714, and it is not proper to fix the amount of recovery at the value of the building to the owner. Booher v. Williams, 341 Ill App 504, 95 NE2d 518. We are unable to find any such reduction of the contract price here. Indeed the judgment appears to include the full contract price. The interest awarded, according to our calculations, could be based on nothing less.

The interest awarded as part of the judgment which the trial judge describes as 5% interest on the contract balance for 2 years, that being the period since the last payment, seems to us to be without foundation in our interest statute, and the cases construing it. C 74, Ill Rev Stats 1965, § 2. This statute, by its terms, limits the award of interest on contracts for money that is due. Booher v. Williams, supra. Interest is not awarded on money that may be found due, if the person withholding payment has done so in good faith, because of a genuine and reasonable dispute. In other words, interest would be a proper element of recovery only if it could be said relationship of debtor and creditor existed between the parties. Mariner v. Gilchrist, 280 Ill 544, 117 NE 695.

Interest can be awarded on money payable under building contracts, even when the amount payable may be uncertain until legally resolved; In re Morrison, 261 F 355, Downey v. O’Donnell, 92 Ill 559, but it has been held error to allow interest on an amount due when, as here, that amount depends largely upon the construction placed on the terms of a contract, and upon questions of fact about which there is room for a difference of opinion. O’Heron v. American Bridge Co. of New York, 177 Ill App 405. The dispute here was genuine, substantial, and we believe in good faith on the part of both parties; there was nothing unreasonable or vexatious about the defendant’s delay in paying. Here, under any theory for recovery of interest, interest could only be charged on 40% of the contract price provided to be paid when the structure was under roof, since 40% had been paid, and the remaining 20 % was only due when the contract was completed. Putting a roof on a structure, that does not meet the specifications of the one contracted for, would not make the 40 % payment due, so that interest could be allowed on that payment.

An inspection of the premises by the court was made pursuant to agreement of the parties but the defendant claims that the agreement was not complied with. The record shows the following words of the trial judge stated in open court on July 21, 1965, “Let the record show that by agreement of both parties through counsel, the court will view the premises at approximately 11:00 o’clock A. M., Friday, and at that time both parties may be present, and both counsel with the court. Counsel may confer with clients in the hearing of the court, and counsel may point out certain items claimed as defects and state their position regarding these items. This is in the nature of an agreement by the parties, and no one may testify or comment, since that would be in the nature of testimony.” No words of assent or of disapproval appear in the record. The inspection apparently took place at the time agreed, because the record shows that on the following Monday in open court, the judge stated, “whereupon let the record show inspection of the premises as per agreement of parties.”

The defendant contends the inspection or visit to the scene went beyond what was agreed, because the plaintiff at the visit was represented by its president, his wife, and two of its carpenters, employees of the plaintiff’s corporation, and witnesses in this case. We can see no justification for the court not limiting those present to those described in the court’s pronouncement of the order.

The effect of this judgment is to order the defendants to pay more than they promised to pay for a house that falls short of the house that was promised them. Moreover, it leaves them to bear alone, the future costs involved in correcting the substantial defects that admittedly exist.

In summary then, we believe the award to the plaintiff for extras should be limited to those items for which the proof establishes the requirements set forth. The award for the balance of the contract price should reflect by way of credit given the owners, that there are still costly items to be performed and supplied. This portion of the award should reflect the things that remain to be done to the house to make it conform to the promises made and the items of faulty performance to be remedied. The contract language must be given effect; any waiver of its provisions must be established by clear and convincing evidence, and parol evidence should not be the basis for determining that the contract language did not mean what it said. Parol evidence must be accepted only for the purposes allowed by the authorities and not accepted to alter the terms of the regular contract or to resurrect early negotiations. Interest should not be charged on what is found to be due. The plaintiff is entitled to recover within the confines of the above stated requirements. For that purpose, the judgment is reversed, and the cause remanded for a new trial.

Reversed and remanded.

MORAN and GOLDENHERSH, JJ., concur.

       We cite as some examples: An extra charge was made for kitchen and bathroom ceilings, concerning which Watson testified that he was going to give these as gifts “if she had paid her bill.” According to the testimony, the ceilings were lowered to cover the duct work. We consider it unlikely that the parties intended to build a house without duct work or with duct work exposed. Likewise an “extra” charge was made for grading, although the contract clearly specifies that grading is the contractor’s duty. An “extra” charge is sought for enclosing the basement stairs, although the plans show the basement stairs enclosed. An extra charge is sought for painting, apparently on the basis that more coats than were provided in the contract were necessary.

       The drain tile around the foundation of the house, according to the evidence, was already in place when it was disclosed to the owner that it was more expensive material. It was only then that the contractor secured the owner’s consent to pay for one-half the cost of the more expensive material.

       This practice has been approved in Illinois cases, viz.: Springer v. City of Chicago, 135 Ill 552, 26 NE 514; Eizerman v. Behn, 9 Ill App2d 263, 132 NE2d 788 (Court had discretion to disallow motion pictures of operation of machines); Equitable Powder Mfg. Co. v. Cleveland, C., C. & St. L. R. Co., 155 Ill App 265; Wise v. Potomac Nat. Bank, 393 Ill 357, 364, 65 NE2d 767. The practice is discussed in Wigmore on Evidence, 3rd Ed, §§ 1169 and 1805.


author: GOLDENHERSH, J.

text:
    H. E. Prowell, Plaintiff-Appellee, v. Twin Mills Lumber Corporation, Defendant-Appellant.
    Gen. No. 66-99.
    Fifth District.
    February 14, 1967.

      Fowler & Novick, of Marion, and Hart & Hart, of Benton, for appellant.
    Elmer Jenkins, of Benton, for appellee.
   GOLDENHERSH, J.

Defendant appeals from the judgment of the Circuit Court of Franklin County entered upon a jury verdict in the amount of $15,000.

As grounds for reversal, defendant argues that the verdict is not supported by the evidence, the verdict is against the manifest weight of the evidence, the court erred in giving an instruction offered by plaintiff, and erred further in refusing to give an instruction tendered by defendant.

The testimony shows that on the morning of November 5, 1963, plaintiff had left Mt. Vernon at approximately 11:00 a. m., and was driving south on Route 37. Route 37 is a two-lane highway extending in a general northerly and southerly direction. The road was wet and slippery. At about 11:15 a. m., a short distance north of Bonnie, his car ran off the east side of the road, his car turned end-over-end three times, and plaintiff was injured.

Plaintiff testified that about 4 miles north of Bonnie, he came up behind a truck and followed it 3 or 4 miles. The truck was traveling at a speed of 45 to 50 miles per hour, and plaintiff followed at a distance of approximately 50 to 60 feet from the rear of the truck. He described the truck as being a two-ton, or ton and a half flatbed truck, with a faded red cab, and two plates that extended across the rear of the cab, so mounted that they did not obstruct the rear window. The truck was not loaded, but there were some load chains on the bed.

A short distance north of Bonnie, plaintiff “got a clear passing lane,” honked his horn and pulled off into the left or northbound lane; when he was 3 to 5 feet to the rear of the truck, the truck, without signal or warning, pulled into the northbound lane, plaintiff applied his brakes to avoid running under the truck, his car started sliding, and he went off the road.

Charles Bell, employed by defendant as a truck driver, was driving a 1958 Chevrolet two-ton flat bottom truck owned by defendant, south on Route 37. He described the truck as having a red cab, and a flat steel bed. There were vertical iron pipes welded to the bed of the truck, several inches to the rear of the cab. A steel plate, which extended across the width of the cab, was mounted on the pipes, approximately 18 inches below the rear window. A board, also extending the entire width of the cab, was bolted to the pipes, at a height even with the top of the cab.

When he was approximately a mile north of Bonnie, he approached, and followed 300 to 400 feet behind, a red truck with solid sides on the bed; he thought they were “coal sides.” The cab of this truck was red. As he came over a crest in the road he saw an automobile which he later learned was plaintiff’s, lying in the ditch east of the highway. Bell testified further that he drove a short distance beyond the point where plaintiff’s car was lying, turned around in a private driveway, and drove back to the scene. While he was in the driveway, the other truck, which had turned around in the Bonnie Camp Ground* Road, just south of where Bell had turned, passed him, and he followed the truck to the point where he had seen plaintiff’s car. Both he and the other truck driver pulled off the road, onto the shoulder, and parked. He specifically denied ever having driven in front of plaintiff’s car, and further denied that at any time that morning, he had driven onto the east half of the pavement.

Harry Mullinix, a resident of Hot Springs, Arkansas, testified by deposition, that on the morning in question he had been visiting his parents in Johnston City, and was driving to Mt. Vernon, where he had formerly resided, to visit some friends. Just north of Bonnie, at a distance of a quarter of a mile, he saw a red truck traveling south. A car came out from behind the truck, ran off the road on the left-hand side, went into the ditch and turned over “approximately twice.” The truck came south to a road marked “Bonnie Camp Ground Road,” pulled into the road, backed out, drove north to where the car was off the road, pulled off onto the east shoulder and parked. Mullinix stopped behind the truck, decided there was nothing he could do, and drove on. He described the truck as a red, straight, flatbed, one and a half-ton truck. He saw no other trucks at the scene at anytime.

On cross-examination he stated that as the truck approached him, he noticed nothing unusual about its movements. When he saw what had happened, he slowed his car, pulled off the pavement onto the shoulder “momentarily,” and then proceeded northward. It was during this brief stop that he saw the truck complete its turn and start north. He was unable to say whether the plaintiff’s automobile had pulled even with the truck prior to running off the road. He stated the truck had sides. He did not see the truck come across the center line, and the truck, when he saw it, was in its lane of travel.

A police officer, called to the scene,“stated that there were a number of automobiles gathered when he arrived there, but only one pickup truck, and one straight bed truck.

A witness who lived in the immediate vicinity testified that he came to the scene immediately after the occurrence, and saw only one truck there.

Defendant argues that the jury’s verdict is unsupported by the evidence, and is against the manifest weight of the evidence, in that plaintiff did not make a positive identification of the truck that allegedly caused his injury, and that inconsistencies in his testimony, and discrepancies between his discovery deposition and his testimony at the trial, show that defendant’s truck was not the vehicle involved in the occurrence.

An understandable presentation of defendant’s contentions requires a review of certain portions of plaintiff’s testimony. Plaintiff’s exhibit 7 is a photograph of a truck, which was identified by Lawrence Finazzo, president of defendant, as being a truck owned by defendant. Upon being asked by his attorney whether he could identify the vehicle shown in the photograph, plaintiff answered, “I would definitely say this is the vehicle that run me off the road, exactly one like it.” In response to a later question, plaintiff again referring to the exhibit, answered, “This truck, as I said before, is the truck that run me off the road or is exactly like the one that run me off the road.” In answer to a third question propounded by his counsel, he gave a similar answer. On cross-examination, counsel for the defendant, asked the following question:

“Q. I believe you told Mr. Jenkins that plaintiff’s exhibit 7 is the truck that ran you off the road, as you say, or one like it, and you don’t honestly know whether it’s the one that ran you off the road or not, do you ?”

to which plaintiff replied:

“It sure looks like the one that ran me off the road.”

To a later question, he answered:

“Well, I’d almost stake my life on it. No sir, I don’t honestly know. I’ll give you a direct answer.”

Defendant contends that the testimony of Mullinix, because of the many differences between the truck portrayed in plaintiff’s exhibit 7 and the truck described by Mullinix, shows clearly that defendant’s truck was not involved. Defendant also argues that plaintiff’s testimony with respect to the cause of his injury is contradicted by that of Mullinix, because the latter did not see the truck cross the center line, and at all times saw it in its own lane.

In support of its contention that the evidence failed sufficiently to identify its truck, defendant cites the cases of Southwestern Transp. Co. v. Chambliss, 197 Ark 865, 125 SW2d 123 (1939); Wright v. Gordon’s Transport, 162 F2d 590 (CCA 5th, 1947); and Lambert v. Travelers Indemnity Co. (La App 1949), 42 So2d 146.

We have examined these opinions and with respect to Southwestern Transp. Co. v. Chambliss, point out that in Auto Transports v. May (Sup Ct of Ark, 1955), 275 SW2d 767, a case in which the facts are more nearly like those in this case, the Supreme Court of Arkansas distinguished the cases, and affirmed a judgment for the plaintiff. Under the circumstances, we do not find the Chambliss case to be persuasive.

We do not consider Lambert v. Travelers Indemnity Co. as authority for defendant’s contention, for the reason that the Louisiana rule is different from that of Illinois as hereinafter discussed, since in Louisiana the plaintiff was required to establish indentity of the vehicle “to a reasonable certainty by a fair preponderance of the evidence.” See Gregoire v. Ohio Cas. Ins. Co. (La App), 158 So2d 379, 386.

Wright v. Gordon’s Transport is so clearly distinguishable on the facts as to require no further comment.

“. . . reasonable inferences may be drawn by a jury from established facts, and a verdict may not be set aside merely because the jury could have drawn different inferences from the evidence; it is one of the jury’s duties to settle the dispute by choosing what seems to them to be the most reasonable inference; . . . Stowers v. Carp, 29 Ill App2d 52, 63, 172 NE2d 370.

“A court of review can set aside a verdict as being against the manifest weight of the evidence only when it is obvious or clearly evident that the jurors have arrived at an incorrect result. Homines v. Illinois Motor Freight, Inc., 21 111 App2d 380, 158 NE2d 97 (1959). It is for the jury alone to determine the credibility of witnesses and the weight of the evidence on controverted questions of fact. A verdict based on conflicting evidence and approved by the trial judge should not be disturbed on appeal unless contrary to the manifest weight of the evidence; that is, an opposite conclusion must be clearly evident. Ritter v. Hatteberg, 14 111 App2d 548, 145 NE2d 119, (1957). Manifest means clearly evident, clear, plain, indisputable. Schneiderman v. Interstate Transit Lines, Inc., 331 111 App 143, 72 NE2d 705 (1947).” Brayfield v. Johnson, 62 111 App2d 59, 63, 210 NE2d 28.

Applying these rules to the evidence in this record, we cannot say that the verdict is against the manifest weight of the evidence. The discrepancies in the testimony relative to the description of the vehicle are no greater than those frequently found when witnesses are called upon to describe a vehicle involved in an occurrence two years prior to the date of trial. Nor does the fact that plaintiff qualified his testimony as to the identity of the vehicle in the manner above set out preclude the jury’s finding that this was, in fact, the truck involved in the occurrence.

With respect to the alleged discrepancies and inconsistencies between plaintiff’s testimony and his discovery deposition, the applicable rule is stated in Guthrie v. Van Hyfte, 36 Ill2d 252, 222 NE2d 492, wherein the Supreme Court, at page 258, said: “The fact that a witness, be he a party or otherwise, has made out-of-court statements inconsistent with his sworn testimony does not per se destroy the probative value of his testimony, and it ordinarily remains for the trier of fact to determine where the truth lies. (Citing cases.) Defendant argues that the contradictory statements here were those of plaintiff, himself, and cites numerous law review articles, textwriters and decisions to the effect that such statements constitute substantive evidence against him of the facts stated. Such is, of course, the rule, and proof of such statements was here admitted. It then became the duty of the trier of fact — the jury— to evaluate the sworn testimony, the prior inconsistent statements and the explanations thereof, giving to the various witnesses such credence as the jurors determined proper. (Citing cases.) ”

Defendant contends that the testimony of Mullinix contradicts that of plaintiff, in that he stated he did not notice anything unusual about the movements of the truck and did not, at any time, see it cross the center line. An examination of the questions and answers to which defendant refers shows the testimony is not contradictory to that of the plaintiff. Assuming, arguendo, a direct contradiction in the testimony, the jury were not precluded from finding plaintiff’s version of the occurrence to be true. Wisniewski v. Shimashus, 22 Ill2d 451, 176 NE2d 781; Highley v. American Exchange Nat. Bank, 185 Ill 565, 57 NE 436; Rindskoph, Stern, Lauer & Co. v. Kuder, 145 Ill 607, 34 NE 484.

In the conference on instructions, defendant objected to the giving of plaintiff’s instruction No. 12 (IPI 21.01), and urges here that it invites the jury to “indulge in speculation, guess and conjecture.” Supreme Court Rule 239 (formerly Rule 25-1) directs that an instruction contained in IPI, when applicable, shall be used unless it does not accurately state the law. In our opinion, the instruction accurately states the law and the court did not err in giving it.

Defendant contends that the court erred in refusing to give its instruction No. 8 which reads: “When I say that a party has the burden of proof on any proposition, I mean that such party must prove such proposition by the greater weight of the evidence.”

This instruction is not in IPI, the subject is adequately covered in IPI 21.01 given as plaintiff’s No. 12, and the court’s ruling was not error.

For the reasons herein set forth, the judgment of the Circuit Court of Franklin County is affirmed.

Judgment affirmed.

MORAN and EBERSPACHER, JJ., concur.