author: PRESIDING JUSTICE SEIDENFELD

text:
    JUDY K. MORGAN et al., Plaintiffs, v. KIRK BROS., INC., et al., Defendants.—(Kirk Bros., Inc., Defendant and Third-Party Plaintiff-Appellant, v. Beggs Enterprises, Inc., et al., Third-Party Defendants-Appellees.)
    Second District
    No. 82—184
    Opinion filed December 9, 1982.
    Rehearing denied February 10, 1983.

      John L. Schroeder, of Gooding & Schroeder, Ltd., of Geneva, for appellant.
    Barry L. Kroll, Nunzio C. Radogno, and C. Barry Montgomery, all of Jacobs, Williams & Montgomery, of Chicago, for appellees.
   PRESIDING JUSTICE SEIDENFELD

delivered the opinion of the court:

Whether “An Act in relation to contribution among joint tortfeasors” (hereinafter the Contribution Act) (Ill. Rev. Stat. 1981, ch. 70, par. 302) allows a cause of action for contribution against one whose liability arises from an alleged violation of the Dramshop Act (Ill. Rev. Stat. 1981, ch. 43, par. 135) is the question posed by this appeal.

Judy Morgan was injured as the result of a collision between the automobile in which she was a passenger, being driven by Bernard N. Bailey, Jr., and a truck owned by Kirk Bros., Inc. (Kirk), being driven by Paul Joyce, its employee. Kirk filed a third-party suit against Beggs Enterprises, Inc., Recreation Services, Inc., and Varsity Inn, Inc. (the Dramshops). The third-party complaint contained allegations that the dramshops sold and served alcoholic liquor to Bailey, he became intoxicated, while intoxicated collided with the Kirk vehicle, and as a direct and proximate result of the acts of Bailey while intoxicated the original plaintiffs, Judy K. Morgan and Jerry Lee Morgan, her husband, sustained injury. The third-party plaintiff states that if judgment is entered against it in the Morgans’ suit that judgment be entered against the dramshops “by virtue of the provisions of §135 of Chapter 43 of the Illinois Revised Statutes” (the Dramshop Act) and in favor of the third-party plaintiff “in such amount, by way of contribution, as would be commensurate with the Dram Shop Act.”

The Dramshops moved to dismiss the third-party complaint, contending that it did not state a cause of action either under the Dram-shop Act or under the Contribution Act. The trial court granted the motion of Recreation Services, Inc., and made final its ruling that Kirk, as a matter of law, could not obtain contribution from a party subject to potential dramshop liability.

Recreation Services (hereinafter referred to as the Dramshop) is the only dramshop defending the appeal.

The contribution statute, as material, states:

“where 2 or more persons are subject to liability in tort arising out of the same injury *** there is a right of contribution among them ***.” Ill. Rev. Stat. 1981, ch. 70, par. 302(a).

The “same injury,” that to the plaintiffs in the original suit, is undeniably involved. Whether the Dramshops are “subject to liability in tort” is the initial question raised. The Dramshop argues, and it is undisputed, that its liability is solely based on the Dramshop Act. The further refinement of that argument is that the Dramshop Act requires the Dramshop to respond in damages only to one who is injured in his person or property by an intoxicated person; and that Kirk is not claiming for its own personal injury. The Dramshop notes that a claim for pecuniary loss has been held not to constitute “property damages” under the Dramshop Act. (Eager v. Nathan (1957), 14 Ill. App. 2d 418, 423.) We agree that Kirk could not have recovered against the Dramshops under the Dramshop Act. That, however, is not contested.

Kirk concedes that it cannot sue the Dramshops directly under that statute and that prior to the enactment of the Contribution Act it could not have obtained indemnity or contribution from a Dram-shop. It contends, however, that the Dramshops are joint tortfeasors under the Contribution Act. The Dramshop contends that its liability is not based on tort but upon a purely statutory regulation of its status, which imposes liability without regard to fault, upon the sale of alcoholic liquor shown to cause the intoxication of the customer. Thus, that there is no common basis to compare the strict liability of a dramshop with the fault liability of the negligent motorist. Further, that the lawful sale of alcoholic liquor is not the proximate cause of the injuries to a passenger of an intoxicated motorist involved, as here, in a collision with a negligent motorist.

We cannot agree that the Dramshops are not statutory tortfeasors. The action under the dramshop statute and its predecessors has long been considered an action in tort. (Pisa v. Holy (1904), 114 Ill. App. 6, 7. See also Dworak v. Tempel (1959), 17 Ill. 2d 181, 191; Wanack v. Michels (1905), 215 Ill. 87, 94-95; Coffey v. ABC Liquor Stores, Inc. (1957), 13 Ill. App. 2d 510, 514.) Liability by statute is imposed on dramshops not merely because of their “status,” which is a lawful but regulated business, but because, when they are shown to have caused the intoxication of persons who as a result of the intoxication cause injury to others, they are denominated as wrongdoers. Wessel v. Carmi Elks Home, Inc. (1971), 133 Ill. App. 2d 902, 905, aff’d (1973), 54 Ill. 2d 127.

The Dramshop seeks to distinguish its liability from liability “which results from a breach of a duty imposed by statute” and argues that various statutes commonly said to impose “statutory liability” differ significantly from the Dramshop Act in that each creates a tort law duty upon certain classes of defendants and the ensuing tort liability flows from a breach of that duty. It gives as examples the Scaffold Act imposing on persons engaged in construction activity certain duties towards workmen, the Road and Bridges Act imposing upon persons engaged in road and bridge construction certain duties towards workmen and members of the public and the Public Utilities Act imposing upon persons operating certain utility services duties towards workmen and members of the public. In contrast the Dramshop argues that the Dramshop Act does not impose any duty on the tavern operator with respect to his conduct. With this we cannot agree. The Dramshop Act is but one example of legislation creating new rights founded on tortious conduct. (See Restatement (Second) of Torts Sec. 874A, Comment b, at 301 (1979).) To the extent taverns’ sale or gift of intoxicating liquors causes in fact the intoxication of persons and as the result of the intoxication causes injury to others requiring them to answer in damages, a standard of conduct is prescribed, a duty to which they are required to conform.

The Dramshop’s further argument that it cannot be considered a “joint tortfeasor” with the negligent motorist does not address the full scope of the contribution statute. Although the act is styled “An Act in relation to contribution among joint tortfeasors,” neither section 302(a) nor the published Legislative History requires that the tortfeasors be joint in the strict sense, that their tortious acts be simultaneous, or that they act in concert before contribution will lie. The only apparent requirement for contribution between co-tortfeasors is that recovery over be based on the same injury to person or property. Thus, the act permits contribution where co-tortfeasors are concurrent (Legislative History compiled by Chicago Bar Association, at 1 (12-1-81); see Comment, Comparative Contribution: The Legislative Enactment of the Skinner Doctrine, 14 J. Mar. L. Rev. 173, 182 (1980)) or successive (see Horan, Contribution In Illinois: Skinner v. Reed-Prentice and Senate Bill 308, 61 Chi. Bar Rec. 331 (1980)) as long as the same injury is involved.

We consider the further contention that no-fault liability cannot be compared with the fault liability of Kirk, a negligent tortfeasor. The Dramshop reads the supreme court’s seminal decision in Skinner v. Reed-Prentice Division Package Machinery Co. (1977), 70 Ill. 2d 1, 13, as involving a contribution claim under which the manufacturer and plaintiff’s employer downstream were subject to the same common law standard in products liability. The absence of a similar denominator in this case, it is argued, precludes the contribution claim.

In Skinner, the Illinois Supreme Court held that damages are to be equitably apportioned according to the “relative degree to which the defective product and the employer’s conduct proximately caused them.” (70 Ill. 2d 1, 14.) This language avoids applying the principles of fault based upon negligence to defendants who are strictly liable, or, we believe, to defendants whose liability is based upon a form of wrongdoing defined by a statute such as the Dramshop Act, which is not a common law tort. Appel & Michael, Contributions Among Joint Tortfeasors in Illinois: An Opportunity for Legislative and Judicial Cooperation, 10 Loy. Chi. L. J. 169, 182 (1979); see Note, A Judicial Rule of Contribution Among Tortfeasors in Illinois, 1978 U. Ill. L. F. 633, 647.

Contrary to the Dramshop’s contention, the majority in Skinner did not apply the principle of comparative causation to tortfeasors subject to a “common standard of comparison.” (See Skinner v. Reed-Prentice Division Package Machinery Co. (1977), 70 Ill. 2d 1, 19 (Ward, C. J., dissenting); 12 J. Mar. Prac. J. & Proc. 165, 173-74 (1978) .) Rather, the Skinner majority fashioned an equitable rule by which a strictly liable manufacturer may obtain contribution from a co-tortfeasor whose misuse of the defective product or assumption of an actually known risk diminishes, but does not extinguish, the strict liability of the manufacturer. Compared with the strict liability of the manufacturer, the downstream party’s misuse of the product or assumption of the known risk involves conduct more culpable than passive negligence. See Appel & Michael, 10 Loy. Chi. L. J. 169, 183 (1979) .

Thus, contribution is not prevented by the fact that, in this case, the motorist and the Dramshops are subject to a common liability to an injured party resting on different theories rather than on a common standard of wrongdoing. Only recently we held that the principles of causation of Skinner are to be read into the new Contribution Act. (Doyle v. Rhodes (1982), 109 Ill. App. 3d 590, 594.) One who is culpable in contributing to an injury in the sense that her wrongful conduct in some part caused the injury may be liable for contribution under the broad language of the statute. Doyle v. Rhodes (1982), 109 Ill. App. 3d 590, 593.

We note that decisions from other jurisdictions are in accord that the liability necessary for contribution is not limited to a common tort and need not be based upon the same ground for each defendant. (See generally 1 J. Dooley, Modern Tort Law sec. 26.22 (1982).) In Farmers Insurance Exchange v. Village of Hewitt (1966), 274 Minn. 246, 143 N.W.2d 230, the Minnesota Supreme Court held that the driver of an automobile and the vendor making an illegal sale of intoxicating liquor were jointly liable to the injured parties although the liability of one rested on common law negligence and the other on the Minnesota version of the Dramshop Act. The court noted that “the parties having a common liability to the injured persons, it is no bar to contribution that their liability rests on different grounds.” (274 Minn. 246, 253, 143 N.W.2d 230, 235.) While conceding that the Wrongful Death Act under which one of the parties was liable in negligence and the Civil Damage Act under which the dramshops were regulated were wholly unrelated as to scope and purpose, the court concluded that the liability created under both statutes was a common liability. (274 Minn. 246, 251, 143 N.W.2d 230, 234. See also Federated Mutual Implement & Hardware Insurance Co. v. Dunkelberger (Iowa 1969), 172 N.W.2d 137, 142; Anderson v. Comardo (1981), 107 Misc. 2d 821, 829, 436 N.Y.S.2d 669, 674.) Applying the Skinner doctrine which compares “causation” instead of “liability” the same result in favor of allowing contribution would appear to be required.

The Dramshop finally contends that the lawful sale of alcoholic liquor, as a matter of law, is not the proximate cause of injuries sustained by the intoxicated driver’s passengers. This contention, too, seems without merit.

The Dramshop Act gives persons injured in their person, property or means of support by an intoxicated person or in consequence of intoxication a right of action “severally or jointly” against any person who causes the intoxication. (Ill. Rev. Stat. 1981, ch. 43, par. 135; see Thompson v. Tranberg (1977), 45 Ill. App. 3d 809, 812.) For this reason, the supreme court has condemned tendered instructions requiring that the jury find the sale of liquor was the proximate cause. (See Roth v. Eppy (1875), 80 Ill. 283, 288; Schroder v. Crawford (1880), 94 Ill. 357, 362.) The argument of the Dramshop, however, that the acts of the intoxicated person are the proximate cause of the original plaintiffs’ injuries while the sale of the liquor is only a remote condition (citing Miller v. Moran (1981), 96 Ill. App. 3d 596, and Cunningham v. Brown (1961), 22 Ill. 2d 23) does not support the conclusion that the third-party plaintiff, as a matter of law, may not recover contribution from the Dramshops. The intoxication resulting from the sale need not be the sole cause of the injuries. See Schroder v. Crawford (1880), 94 Ill. 357, 361; Linson v. Crow (1976), 36 Ill. App. 3d 574, 575.

In its third-party complaint, Kirk Bros., Inc., alleges in substance that the Dramshops caused the intoxication of the motorist, Bailey, whose passenger sustained injuries when his vehicle struck the rear of defendant’s semi-tractor while he was intoxicated. At this, the pleading stage, all facts well pleaded are taken as true. (Gertz v. Campbell (1973), 55 Ill. 2d 84, 87; Suvada v. White Motor Co. (1965), 32 Ill. 2d 612, 613.) Taking the above pleaded facts as true, whether Bailey’s intoxication resulting from the Dramshops’ sales of liquor was a proximate cause of injuries to Bailey’s passenger would be for the jury. Accord, Federated Mutual Implement & Hardware Insurance Co. v. Dunkelberger (Iowa 1969), 172 N.W.2d 137, 144.

We conclude that the third-party’s complaint states a cause of action for contribution based on violation of the Dramshop Act. It has been recommended that where, as here, liability is based upon a statute, rather than on common law, the public policies behind the statute must be examined in determining whether contribution will lie. (Appel & Michael, 10 Loy. Chi. L. J. 169, 185-86 (1979).) In decisions before the new Contribution Act, it was held that it is the public policy of this State that those sued under the Dramshop Act cannot diminish their responsibility by being allowed recovery over against a co-tortfeasor. (Wessel v. Cormi Elks Home, Inc. (1973), 54 Ill. 2d 127, 132 (dramshop not entitled to implied indemnity from intoxicated motorist involved in vehicular collision .causing injuries to third persons); McDonald v. Trampf (1964), 49 Ill. App. 2d 106, 120 (intoxicated motorist not entitled to contribution from Dramshops or their insurers since right to collect under Dramshop Act is limited to person injured or personal representative of deceased).) We do not believe public policy is undercut or dramshop liability diminished where a motorist sued for ordinary negligence seeks contribution from dramshops which cause the intoxication of another motorist by selling alcoholic liquor. (Cf. Dworak v. Tempel (1959), 17 Ill. 2d 181, 191-92 (allowing automobile insurer of innocently injured motorist to be subrogated in insured’s dramshop suit against dramshop and insurer effectuates purposes of Liquor Control Act by indirectly disciplining dramshops which indiscriminately sell alcoholic liquor).) If contribution were denied between the Dramshops and the motorist, the entire burden of a loss, for which each party may have been partially responsible, could be placed on the motorist alone, if the injured party did not sue the Dramshops. See McDonald v. Trampf (1964), 49 Ill. App. 2d 106, 120.

Kirk in its third-party complaint prays that if judgment is entered against it by Judy K. Morgan and Jerry Lee Morgan her husband, judgment then be entered in Kirk’s favor in such amount by way of contribution “as would be commensurate with” the Dram-shop Act. We conclude that the third-party complaint states a cause of action for contribution as prayed and that the trial court erred in dismissing the pleadings as a matter of law.

The judgment of the circuit court of Kane County is reversed and the cause is remanded with directions to vacate the order dismissing the third-party complaint and to thereafter proceed consistent with this opinion.

Reversed and remanded.

LINDBERG and UNVERZAGT, JJ., concur.

      The Dramshop Act provides as material “[e]very person who is injured in person or property by any intoxicated person, has a right of action in his own name, severally or jointly, against any person who by selling or giving alcoholic liquor, causes the intoxication of such person.” Ill. Rev. Stat. 1981, ch. 43, par. 135.

      The currently accepted definition of the term “joint tortfeasors” includes all cases where there is joint liability for a tort, whether the acts of those liable were concerted, merely concurrent, or even successive in time; and that definition has been followed under the statutes allowing contribution. (Leflar, Contribution and Indemnity Between Tortfeasors, 81 U. Pa. L. Rev. 130, 131 n.9 (1932): Comment, Comparative Causation, Indemnity, and the Allocation of Losses Between Joint Tortfeasors in Product-Liability Cases, 10 St. Mary’s L. J. 587, 588 n.5 (1979).) It has been recommended that the term be rejected in favor of the term “co-tortfeasors” (Note, Contribution and Indemnity-An Examination of the Upheaval in Minnesota Tort Law Allocation Concepts, 5 Wm. Mitchell L. Rev. 109, 110 n.1 (1979)) and courts elsewhere agree that the term “co-tortfeasors” is more precise. See Jones v. Fisher (Minn. 1981), 309 N.W.2d 726, 728; Pachowitz v. Milwaukee & Suburban Transport Corp. (1972), 56 Wis. 2d 383, 386, 202 N.W.2d 268, 270.


source: Caselaw Access Project

author: JUSTICE ALLOY

license: Public Domain

text:
    INTERNATIONAL GAMES, INC., Plaintiff-Appellant, v. WILLIAM A. SIMS, Defendant-Appellee.
    Third District
    No. 82—58
    Opinion filed December 30, 1982.

      Jonathan B. Gilbert and Sheldon Davidson, both of Pedersen & Houpt, of Chicago, and Louis Bertani and George F. Mahoney, III, both of Herschbach, Tracy, Johnson, Bertani & Wilson, of Joliet, for appellant.
    Frank R. Thienpont and Jacques M. Dulin, both of Dulin & Thienpont, Ltd., of Chicago, and John F. Wols, of Stefanich, McGarry & Wols, Ltd., of Joliet, for appellee.
   JUSTICE ALLOY

delivered the opinion of the court:

This is an appeal from a trial court order dismissing the plaintiff’s complaint under section 48(l)(c) of the Civil Practice Act (Ill. Rev. Stat. 1979, ch. 110, par. 48(l)(c)), current version at section 2—619 of the Code of Civil Procedure (Ill. Rev. Stat. 1981, ch. 110, par. 2—619).

In February 1981, the appellee in this action, Sims, filed a complaint against the appellant, International Games, Inc. (IGI), in the United States District Court for the Northern District of Illinois. An amended complaint, filed in October 1981, alleged causes of action based on section 10(b) of the Securities Exchange Act of 1934 (15 U.S.C.A. sec. 78j(b) (1981)), Securities Exchange Commission Rule 10b — 5 (17 C.F.R. sec. 240.10b — 5), the Illinois Securities Law of 1953 (Ill. Rev. Stat. 1979, ch. 121V2, par. 137.1 et seq.), Illinois common law and Delaware law. Sims’ Federal suit arose out of a series of actions allegedly perpetrated by IGI and its predominant shareholders to wrongfully remove Sims as a director of IGI and to freeze him out as a minority shareholder. Sims alleged that the director’s meeting at which he was removed was improperly noticed and illegally held by the directors.

In response to Sims’ original complaint, IGI filed this action in the Circuit Court of Will County. IGI alleged that Sims breached his fiduciary duty to the corporation when he misappropriated a corporate opportunity. Specifically, IGI claims that Sims used his position as a director to gain knowledge of a new card game that IGI was developing. Sims allegedly transmitted this information to his brother-in-law, owner of a competing game company, and became a partner in that company. Not coincidentally, Sims’ amended Federal complaint alleges that Robert Tezak — IGI's predominant shareholder, president and chairman of the board — embellished and largely fabricated this charge of misappropriation.

Sims removed IGI’s action to the Federal court and moved to consolidate it with his Federal suit. The Federal court, on IGI’s motion, remanded this case to the Circuit Court for Will County. The Federal court ruled that it did not have pendant jurisdiction over IGI’s suit. A defendant can remove a State court suit to Federal court only if the Federal court could have asserted original jurisdiction over it. IGI’s suit provides no basis for original jurisdiction in Federal court. Additionally, IGI’s suit is not pendant to Sims’ Federal claim. Pendant jurisdiction exists in Federal court only where a plaintiff’s State law claims are closely related to his Federal claims.

After this suit was remanded to the circuit court, Sims moved that court to dismiss the suit or to stay proceedings under section 48(l)(c) of the Civil Practice Act. Sims argued that IGI’s suit arises from the same events and occurrences that form the basis of his Federal suit, and can be asserted as compulsory counterclaims in the Federal suit. Sims further argued that the policy of avoiding multiplicity of litigation, as well as fairness to the litigants, necessitated a dismissal or stay of proceedings. The trial court agreed, and dismissed IGI’s complaint. IGI now appeals.

IGI initially argues that dismissal under section 48(l)(c) was improper, because the Federal action and the State action do not involve the “same parties” or the “same cause.” IGI contends that count II of the Federal suit, in which Sims complains of his wrongful dismissal from the board of directors, does not name IGI as a party. This contention is without merit. Although the Federal complaint alleges Robert Tezak instigated the removal of Sims from the board, it also alleges the IGI board of directors removed, Sims from his office. Moreover, Sims’ Federal suit, though nominally a derivative action brought on behalf of the corporation, in fact places IGI in an adverse position. Under section 48(l)(c), therefore, the parties are sufficiently identical. See also Catalano v. Aetna Casualty & Surety Co. (1982), 105 Ill. App. 3d 195, 434 N.E.2d 31 (“same parties” requires litigants to be substantially the same, not identical).

Similarly, IGI’s argument that the two suits are not the same cause must also fail. Relying upon People ex rel. Phillips Petroleum Co. v. Gitchoff (1976), 65 Ill. 2d 249, 357 N.E.2d 534, IGI argues that the two causes are not the same, for purposes of section 48(l)(c), when the issues and the proof will differ significantly. According to IGI, its State court suit examines the reasons for Sims’ removal from the board — the alleged misappropriation of a corporate opportunity. In contrast, IGI asserts, the Federal court will never consider the reasons for Sims’ removal: The Federal court will apply Illinois law, which applies Delaware law to evaluate the duty a director owes to a corporation incorporated in Delaware. (Libco Corp. v. Roland (1981), 99 Ill. App. 3d 1140, 426 N.E.2d 309.) Under Delaware law, the shareholders may remove a director at any time without cause. Del. Corp. Law Annot. sec. 141(k) (1981); Dillon v. Berg (D. Del. 1971), 326 F. Supp. 1214, aff'd (3d Cir. 1971), 453 F.2d 876.

Id’s argument must fail for several reasons. First, Sims’ Federal suit alleges the IGI board of directors — not the shareholders — wrongfully removed him from his position. Under Delaware law, only the shareholders can remove a director without cause. (Dillon v. Berg.) Second, even if the shareholders of IGI removed Sims, section 141(k) of the Delaware Corporation Laws provides for an exception to the general rule that directors may be removed without cause and also places cumulative voting restrictions on the removal of the directors. The appellate record does not include the articles of incorporation or the minutes of the meeting in which Sims was removed as a director. Without this information it is impossible to adequately assess IGI’s argument. Finally, it would be inappropriate for this court to speculate upon a Federal court’s rulings on jurisdictional or evidentiary matters in a pending Federal suit. Sims’ Federal suit alleges a bad faith embellishment and distortion of a charge of misappropriation of a corporate opportunity as the reasons for his removal. IGI utilizes that same charge as the basis for its suit. On the face of the complaints, and the record before this court, we must conclude that both causes arise from “substantially the same set of facts,” and are, therefore, the “same cause” within the meaning of section 48(l)(c). Skolnick v. Martin (1964), 32 Ill. 2d 55, 57, 203 N.E.2d 428.

The final and most important issue is whether the trial court abused its discretion when it dismissed IGI’s State court suit. Relying heavily upon A. E. Staley Manufacturing Co. v. Swift & Co. (1980), 84 Ill. 2d 245, 419 N.E.2d 23, IGI argues the trial court applied the incorrect criteria to evaluate Sims’ section 48(l)(c) motion. IGI asserts that under Staley, a trial court faced with a section 48(l)(c) motion for dismissal should evaluate the contacts between the suit and the parties to Illinois, as it would under a motion to dismiss for forum non conveniens.

In Staley, the defendant filed a breach of contract action in Iowa. On the same day, the plaintiff filed an action for breach of the same contract in Illinois. The defendant moved to dismiss the Illinois action under section 48(l)(c) and under the doctrine of forum non conveniens. The trial court dismissed the suit, but the appellate court reversed that decision. The supreme court affirmed that portion of the appellate ruling. In the instant appeal, IGI argues that Staley promulgated two separate tests for section 48(l)(c) motions. IGI relies upon Staley’s comment that, when two actions are pending in different counties in Illinois, “the court’s concern *** was for the orderly administration of justice within the same jurisdiction, Illinois. Such a matter is one over which the court understandably could and should exercise greater control and guidance, as opposed to a situation such as that presented here, in which a legitimate and substantial relationship of this litigation to Illinois has been demonstrated and in which the other action pending is in the courts of a sister State, over which this court has no say.” (A. E. Staley Manufacturing Co. v. Swift & Co. (1980), 84 Ill. 2d 245, 255.) IGI asks this court to utilize the same evaluation of the relationship of the litigation to Illinois, because Illinois courts have no control over the Federal judiciary.

Although IGI’s argument is strong, it must ultimately fail. Forum non conveniens is not a proper issue in the instant appeal, and Staley does not require a trial court to adopt the criteria of that doctrine when it rules on section 48(l)(c) motions. Although the supreme court noted that forum non conveniens and section 48(l)(c) are interrelated procedural devices, the court made those comments in the context of an appeal in which the movant made both motions. The court specifically stated that these two motions should be used together when another action is pending and when the defendant feels that one forum is inconvenient. (84 Ill. 2d 245, 251.) In the case at bar, however, Sims made no forum non conveniens motion.

More importantly, as Staley also noted, the purpose of section 48(l)(c) is to avoid duplicative litigation. Undoubtedly, IGI will now have to assert its suit as a compulsory counterclaim in the Federal court. The supreme court stated that the policy of avoiding duplicative litigation does not require forcing a litigant into the courts of another State. (84 Ill. 2d 245, 253.) The supreme court, however, did not completely prohibit that result either, even assuming the Federal judiciary should be treated as the judiciary of a sister State for purposes of section 48. In Staley, the trial court erroneously believed that it had no discretion under section 48(l)(c) to refuse to dismiss a suit when a prior action for the same cause was pending in another court. The supreme court reversed and, rather than remand the case, exercised the discretion itself to rule on the merits of the motion.

In the case at bar, the trial court considered all relevant factors, including which suit was filed first, the length, burden and expense of two trials and the potential for contradictory verdicts and appellate rulings. Although Staley did consider the relationship of the litigation to Illinois, the court did not mandate that this factor must predominate all other relevant factors. The trial court exercised its sound discretion, as Staley directed it to do, and we can find no manifest abuse in this decision to avoid a multiplicity of long, costly suits with potentially conflicting results.

IGI is properly concerned, of course, that it may find itself without any redress for its grievances if the Federal court rules that it has no jurisdiction over Sims’ State law claims. This apprehension will be present in almost all section 48(lXc) motions where the other action is pending in Federal court. Such speculation, however, cannot inhibit a court from exercising its discretion, for section 48(lXc) can be used whenever another suit for the same cause and between the same parties is pending in another county, another State or in the Federal courts. (Skolnick v. Martin (1964), 32 Ill. 2d 55, 59-60, 203 N.E.2d 428.) If the Federal court ultimately dismisses Sims’ state law claims for lack of jurisdiction, IGI can reinstitute this complaint. Dismissal under section 48(lXc) will not bar a subsequent suit in Illinois, because the ruling is not upon the merits of IGI’s claim. Presently, IGI may file this action as a compulsory counterclaim to the Federal suit and have its charges heard with that suit.

Accordingly, the order and the judgment of the Circuit Court of Will County is affirmed.

BARRY, P.J., and STOUDER, J., concur.


author:
JUSTICE STOUDER
      JUSTICE HEIPLE,

text:
    ROBERT D. ALEXANDER, Indiv. and d/b/a Peoria Scale Service, Plaintiff-Appellant, v. DIRECTOR, DEPARTMENT OF AGRICULTURE, et al., Defendants-Appellees.
    Third District
    No. 82—87
    Opinion filed January 4, 1983.

      HEIPLE, J., dissenting.
    Bradley W. Swearingen, of Moehle, Smith & Day, Ltd., of Washington, for appellant.

      Tyrone C. Fahner, Attorney General, of Springfield (Rosalyn B. Kaplan, Assistant Attorney General, of counsel), for appellees.
   JUSTICE STOUDER

delivered the opinion of the court:

Plaintiff Robert D. Alexander filed a complaint for administrative review of a decision of the Illinois Department of Agriculture (hereinafter the Department). After a hearing on the merits, the circuit court of Tazewell County reversed two portions of that decision but affirmed the denial of plaintiff’s application for a serviceman certificate of registration. Plaintiff appeals that affirmation. No cross-appeal is presented.

In 1978 and 1979, plaintiff was registered by the Department as a scale repairman pursuant to section 8.1 of the Weights and Measures Act (hereinafter the Act) (Ill. Rev. Stat. 1979, ch. 147, par. 108.1). On December 19, 1979, the Department’s Bureau of Products Inspection and Standards informed plaintiff that it had investigated eight complaints against him and the Peoria Scale Service, his registered service agency. A hearing was scheduled for January 22, 1980, to provide the opportunity to show cause why the Department should not revoke, or decline to renew, his registration.

On January 16, 1980, plaintiff requested a bill of particulars and moved for a continuance and dismissal of the administrative proceedings, arguing, inter alia, that section 8.1 of the Act (Ill. Rev. Stat. 1979, ch. 147, par. 108.1) was unconstitutionally vague and violative of the nondelegation doctrine. The motion to dismiss was denied, and the hearing was continued to February 11, 1980. The request for a bill of particulars was granted, but plaintiff received copies of the complainants’ statements rather than a formal bill. On the date of the hearing, plaintiff requested another continuance until that time when a formal bill was tendered. Finding that the statements and the statute together provided sufficient notice of the charges against him, the continuance was denied and the hearing commenced.

Eight complainants and seven departmental employees testified for the Department. The complainants indicated that they had scales installed by plaintiff that did not function properly or were improperly installed. One scale appeared to have homemade parts and another lacked essential parts. One complainant had paid plaintiff $4,000 and received nothing. A promised refund was never made. Several of the customers were forced to engage other agencies to rectify their scale problems. One complainant had paid $9,000 for a scale which, four years later, had yet to pass a State inspection. A number of departmental employees confirmed the complaints and the scale condemnations. Plaintiff proffered no evidence in his defense.

The first of the three issues presented for our review is whether section 8.1 of the Act (Ill. Rev. Stat. 1979, ch. 147, par. 108.1) constitutes an unconstitutional delegation of power to the Department. To avoid such a characterization, the legislature must have provided sufficient identification of the following in delegating its authority:

“(1) The persons and activities potentionally subject to regulation;
(2) the harm sought to be prevented; and
(3) the general means intended to be available to the administrator to prevent the identified harm.” Stofer v. Motor Vehicle Casualty Co. (1977), 68 Ill. 2d 361, 372, 369 N.E.2d 875, 879.

Regarding persons and activities,

“The legislature must do all that is practical to define the scope of the legislation, i.e., the persons and activities which may be subject to the administrator’s authority. This effort is necessary to put interested persons on notice of the possibility of administrative actions affecting them. [Citation.] Of course, the complexity of the subject sought to be regulated may put practical limitations upon the legislature’s ability to identify all of the forms the activity may take. [Citation.]” (Stofer v. Motor Vehicle Casualty Co. (1977), 68 Ill. 2d 361, 372-73, 369 N.E.2d 875, 879.)

Section 8.1 of the Act (Ill. Rev. Stat. 1979, ch. 147, par. 108.1) initially provides:

“All persons installing, servicing, reconditioning, or repairing weighing and measuring devices used in trade or commerce shall be registered ***”

The section later defines a “registrant,” a “commercial weighing and measuring device,” and “serviceman,” and a “service agency.” The initial statement of scope and the definitions clearly put an individual such as plaintiff on notice that his activities connected with the installation of commercial weighing devices are subject to the authority of the Department.

Regarding harm,

“the legislature may use somewhat broader, more generic language than in the first element. It is sufficient if, from the language of the statute, it is apparent what types of evil the statute is intended to prevent. [Citation.]” (Stofer v. Motor Vehicle Casualty Co. (1977), 68 Ill. 2d 361, 373, 369 N.E.2d 875, 879.)

We initially note that the predominant purpose of the State in licensing a trade or -profession is the prevention of injury to the public by assuring that the occupation will be practiced with honesty and integrity, excluding from the profession those who are incompetent or unworthy. (Coles v. Department of Registration & Education (1978), 59 Ill. App. 3d 1046, 376 N.E.2d 269; Ranquist v. Stackler (1977), 55 Ill. App. 3d 545, 370 N.E.2d 1198, cert. denied (1978), 439 U.S. 926, 58 L. Ed. 2d 318, 99 S. Ct. 309; Kaplan v. Department of Registration & Education (1977), 46 Ill. App. 3d 968, 361 N.E.2d 626.) While section 8.1 speaks of registration, it shares this aim. It requires possession or availability of appropriate equipment, the taking of an examination, the demonstration of a working knowledge of weighing and measuring devices, and the filing of a performance bond. It can thus be seen that the section, as the entire Act, has been enacted “to protect the public from false weights and measurements by compelling the use of the approved standards” (Chicago v. Kautz (1924), 313 Ill. 196, 200). The evil that the section is intended to prevent is that of professionals who fail to so protect the public.

Regarding means,

“the legislature must specifically enumerate the administrative tools (e.g., regulations, licenses, enforcement proceedings) and the particular sanctions, if any, intended to be available. If sanctions are provided, the legislature also must provide adequate standards and safeguards such as judicial review of the imposition of those sanction. [Citations.]” (Stofer v. Motor Vehicle Casualty Co. (1977), 68 Ill. 2d 361, 373, 369 N.E.2d 875, 879.)

Section 8.1 authorizes the Director of Agriculture to promulgate rules and regulations necessary to enforce its provisions, provides for the registration of individuals who meet its six qualifications, and specifically provides:

“For cause and after a hearing upon reasonable notice, the Director may deny any application for registration or any application for renewal of registration, or may revoke or suspend the registration of any registrant.”

The section also provides for judicial review of all final administrative decisions.

Plaintiff’s decisive challenge to the section’s constitutionality is directed to these administrative tools. He argues that the “for cause” standard for the denial, revocation, or suspension of registration unlawfully grants the Department the unrestrained power to revoke or suspend registration; that section 8.1 is so vague as to deny an applicant due process; and that the administrative tools unconstitutionally delegate judicial power.

Plaintiff’s challenge to the “for cause” standard is twofold. He first contends the legislature failed to establish standards for determining whether an individual met the section’s six qualifications. He then posits that no standard or criterion was set forth as cause or justification of denial, revocation or suspension of registration.

The General Assembly cannot delegate its general legislative power; however, once it has enacted a statute, it may delegate to others the power to implement the statute which it could itself execute but cannot advantageously or understanding^ effect itself. (Lombard, v. Pollution Control Board (1977), 66 Ill. 2d 503, 363 N.E.2d 814.) The preciseness of the standards it must set depends on the complexity of the subject matter and the ultimate objective of the act in question. (Hoogasian v. Regional Transportation Authority (1974), 58 Ill. 2d 117, 317 N.E.2d 534, appeal dismissed (1974), 419 U.S. 988, 42 L. Ed. 2d 261, 95 S. Ct. 298.) Where the technical complexity, the diversity of problems, and the degree of detail involved in setting specifications for standards can be better resolved by an administrative body than by the legislature itself, or where the nature of the objective to be achieved and the problems to be solved negate the usefulness of setting more particular standards by the legislature, those specifications for standards or more particular standards need not be articulated by the legislature. (Cf. Board of Education v. Page (1965), 33 Ill. 2d 372, 211 N.E.2d 361 (specifications for minimum health and safety requirements).) The statutory section at bar provides for registration of an individual who:

“1. Has possession of or available for use weights and measures standards and testing equipment appropriate in design and adequate in amount to provide the services for which such person is requesting registration.
2. Passes a qualifying examination for each (ype of weighing or measuring device he intends to install, service, recondition or repair.
3. Demonstrates a working knowledge of all weighing and measuring devices for which he intends to be registered.
4. Has a working knowledge of all appropriate weights and measures laws and their rules and regulations.
5. Files a performance bond with the Department in the amount of $1,000.
6. Pays the prescribed registration fee for the type of registration:
* * * M

While defendant argues that the General Assembly must itself set more particular standards, such as elucidating the manner in which “working knowledge” is to be demonstrated, we find this is precisely the type of task best left to an administrative body. Given the six standards provided by the legislature and the technical complexity here involved, we find no improper delegation of legislative power to the Department and no failure of the General Assembly to establish necessary standards.

Plaintiff’s second challenge to the “for cause standard” is that no standard or criterion was set forth as cause or justification of denial, revocation, or suspension of registration. As has been noted in cases of employee discharge:

“There is no statutory definition of ‘cause.’ ‘Cause’ has been judicially defined as ‘some substantial shortcoming which renders the employee’s continuance in office in some way detrimental to the discipline and efficiency of the service and which the law and sound public opinion recognize as good cause of his no longer holding the position.’ E.g., Kreiser v. Police Board (1976), 40 Ill. App. 3d 436, 441, aff'd (1977), 69 Ill. 2d 27.” (Department of Mental Health & Developmental Disabilities v. Civil Service Com. (1981), 85 Ill. 2d 547, 551, 426 N.E.2d 885, 887.)

Similarly, revocation of a license “for cause” has been said to contemplate such cause as would render the licensee unfit to engage in the licensed activity, with his fitness being judged in the light of the potential evil with which the legislature was concerned in enacting the licensing legislation. (See 51 Am. Jur. 2d Licenses and Permits sec. 58 (1970).) This being the case, and having the six qualifications as guidance, we perceive no constitutional infirmity with the section’s use of the “for cause” standard.

Plaintiff’s next challenge to the section’s administrative tools is that the section is so vague as to deny an applicant due process. A statute does not violate the due process clause of the United States or Illinois constitution on grounds of vagueness, if the duty imposed by the statute is prescribed in terms definite enough to serve as a guide to those who must comply with it. (Chastek v. Anderson (1981), 83 Ill. 2d 502, 416 N.E.2d 247.) For the reasons previously indicated, we find the section is sufficiently definite to serve as such a guide.

Plaintiff’s final challenge to the administrative tools is that they provide an unconstitutional delegation of judicial power to the Department. The granting or revocation of a license is not an exercise of judicial power (Klafter v. State Board of Examiners of Architects (1913), 259 Ill. 15), but rather the exercise of quasi-judicial power incidental to the duty of administering the law relating to the regulation of a particular business or calling and does not constitute the exercise of judicial power within the prohibition of the constitution (People ex rel. Rice v. Wilson Oil Co. (1936), 364 Ill. 406, 4 N.E.2d 847). We find no difference in the granting or revocation of the registration herein. We therefore hold that section 8.1 of the Act (Ill. Rev. Stat. 1979, ch. 147, par. 108.1) does not constitute the unlawful delegation of judicial power to the Department.

The second issue is whether the Department, having failed to promulgate rules or regulations pursuant to section 8.1 of the Act (Ill. Rev. Stat. 1979, ch. 147, par. 108.1), was limited by the standards set forth in the section and bound by the procedures it had followed in approving applications for registration. Plaintiff argues that the Department’s finding that cause existed for denial of registration was arbitrary and capricious, as having established procedures for registration, it could not unilaterally establish additional criteria by which to judge the worthiness of a registrant. Plaintiff further argues that the registrant would be denied due process in that he would be uninformed of the criteria necessary for continued registration.

While it is true that an agency may be bound by its own established custom (Olin Corp. v. Pollution Control Board (1977), 54 Ill. App. 3d 480, 370 N.E.2d 3, appeal denied (1978), 71 Ill. 2d 599) or an informal practice (Gatica v. Department of Public Aid (1981), 98 Ill. App. 3d 101, 423 N.E.2d 1292), we fail to see how the Department could be so bound as this is the first nonrenewal action initiated by it. Plaintiff essentially maintains that as he followed the same procedures in applying for registration as in past years, the Department was bound to register him again and was barred from considering the complaints against him. The section itself rebuts this position. As previously indicated, the denial, revocation, or suspension of registration occurs “for cause” and after a hearing upon reasonable notice. (Ill. Rev. Stat. 1979, ch. 147, par. 108.1.) Thus on the face of the statute, this procedure differs from that of registration. As for the alleged imposition of criteria in addition to the statutory standards, we note the relevant findings of the Department:

“4. That, according to the evidence, Respondent has consistently demonstrated an inability to provide and install, on a timely basis, scales which the recipient can reasonably expect to operate accurately, possess appropriate design features, or in some cases, to function at all.
5. That, according to the evidence, Respondent failed to demonstrate an acceptable level of knowledge of the appropriate weights and measures laws by failing to advise, ill-advising, or simply failing to perform the procedures required to achieve statutory compliance.
6. That, in no case, did Respondent follow the required procedure of filing a ‘Placed In Service Report’ for those scales which Respondent had indicated to recipient were ready for commercial use. Would or could, be ready for commercial use.
7. That Respondent is therefore, according to the evidence, found to be in violation of the Illinois Weights and Measures Act in that Respondent has failed to demonstrate compliance with section 108.1 of the Act requiring ‘...a working knowledge of all weighing and measuring devices for which he intends to be registered,’ ‘...a working knowledge of weights and measures laws...,’ and that ‘each registered service company and serviceman shall file the “Placed in Service Report.” ’ ”

It can be seen that these findings directly correspond to specific statutory standards. This being the case, we need not reach the question of whether additional criteria may be considered in determinations under the “for cause” standard.

As to plaintiff’s contention that a registrant would be denied due process in that he would be uninformed of the criteria necessary for continued registration, we have previously concluded the “for cause” standard withstands constitutional scrutiny and no additional criteria were here involved.

The final issue presented is whether the hearing officer abused his discretion in failing to grant a continuance until the Department complied with plaintiff’s motion for a bill of particulars. As this issue was not presented to the trial court, and an appellate court will only consider such questions as were raised and preserved in the lower court (Leffler v. Browning (1958), 14 Ill. 2d 225, 151 N.E.2d 342), we find the issue has been waived.

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

Affirmed.

BARRY, P.J., concurs.

JUSTICE HEIPLE,

dissenting:

Plaintiff, Robert D. Alexander, registered as a scale repairman pursuant to section 8.1 of the Weights and Measures Act, suffered a revocation of that registration. (Ill. Rev. Stat. 1979, ch. 147, par. 108.1.) He brought suit for administrative review in circuit court but was again rebuffed. He now appeals that affirmation of the revocation of his registration. I would reverse.

Section 8.1 of the Act authorizes the Director of Agriculture to promulgate rules and regulations necessary to enforce its provisions and further provides that the Director may revoke a registration “for cause.”

No rules or regulations were ever promulgated. “For cause” was never defined. Notwithstanding this lack, a hearing was held before the Department of Agriculture to provide Alexander with the opportunity to show cause why the Department should not revoke, or decline to renew, his registration. As noted, Alexander was unsuccessful and his registration was revoked.

At the outset, it must be conceded that the Department proved Alexander to be an unreliable scale repairman. As is correctly noted in the majority opinion, scales that he worked on were improperly installed and did not work properly. He collected fees in advance and failed to perform at all. He neglected to make a promised refund. Complaints against him were unrebutted. Alexander offered no evidence in defense.

I would further concede that the public would be better served if Alexander were not registered as a scale repairman. Where I part with the majority is on their conclusion that there was any legal basis to revoke his registration. There was none. The Department had never promulgated any rules or regulations as authorized by statute. Although the statute contemplates that registrations may be revoked “for cause,” those words do not stand alone as authority for revocation. The statute must be read as a whole. Yes, a registration may be revoked for cause but only after suitable rules and regulations have been promulgated. Reading the statute as a whole, that is what it says.

If the Director of the Department of Agriculture were to follow the statute and promulgate proper rules and regulations pertaining to the registration and revocation of registration for scale repairmen, he would then have a legal basis to seek a revocation in a proper case. The faults, defaults and deficiencies in Alexander’s case are such as could easily be categorized in such rules and regulations.

Since, however, the Director of Agriculture failed to promulgate rules as authorized by statute, he has no basis on which to proceed with revocation proceedings against Alexander. The proceedings in this case, not being based on law, not only violated Alexander’s rights under the statute in question but violated as well his right to procedural due process under our State and Federal constitutions.

Accordingly, I dissent.


author: PRESIDING JUSTICE BARRY

text:
    J. L. WATTS CO., Plaintiff-Appellant, v. CLARENCE MESSING, Defendant-Appellee.
    Third District
    No. 82—151
    Opinion filed December 30, 1982.
    Rehearing denied February 8, 1983.
    Marvin L. Schrager and Frank L. Nowinski, both of East Moline, for appellant.

      John G. Ames, of Ames & Manecke, of Coal Valley, for appellee.
   PRESIDING JUSTICE BARRY

delivered the opinion of the court:

This is an appeal by plaintiff, J. L. Watts Co., of a judgment entered by the circuit court of Rock Island County in favor of. defendant, Clarence Messing, in a suit for specific performance of a real estate sale/purchase contract.

Messing is the owner of business property located at 819 East First Avenue in Coal Valley, Illinois. In July of 1981, Messing listed the property for sale with Charles Heriford, an agent of the Lohman Brothers real estate firm.

Plaintiff, who had previously inquired of Heriford about the availability of business property in the Coal Valley area, was informed by Heriford of the property and arranged to have his employee, Tom Clark, inspect it.

After the inspection, Messing offered to sell for $160,000. This was promptly refused by James Watts, president of J. L. Watts Co. However, still interested, Watts personally inspected the property and authorized Heriford to present his counteroffer for $100,000. Watts made out a check for $14,000 payable to Lohman Brothers representing earnest money to be applied as a down payment on the purchase price. The counteroffer was presented to Messing by Heriford and accepted on July 22, 1981, when Messing signed a printed form sale/ purchase contract with the blanks completed by Heriford.

Among the terms of the sale/purchase contract, was a provision that Watts would assume Messing’s loan on the property at the Coal Valley Bank, the balance of which was $21,000, and Watts would pay the remaining $65,000 on a contract for deed. This arrangement turned out to be unacceptable to the Bank, and a second sale/purchase contract was thereafter drawn to eliminate the loan assumption references. This contract specified merely that the full $86,000 balance due Messing would be “carried on contract for deed payable $977.48, or more, per month for 180 months, said payment to include interest at the rate of 11% per annum, computed monthly, on the unpaid balance.” This agreement was signed by both parties on July 29, 1981. Heriford secured the abstract for the property and delivered it to Watts’ attorney, who thereafter proceeded to schedule a closing. Messing resisted and, ultimately, on September 3, 1981, Watts instituted this suit for specific performance of the July 29 contract.

The trial court, after receiving testimony, documentary evidence and briefs and arguments of counsel, denied the relief sought by plaintiff on the basis that “the terms of a ‘contract for deed’ are too indefinite.” Watts filed a timely notice of appeal in which he raises a single issue: are the price, terms and conditions of sale as contained in the July 29 agreement so indefinite as to render the contract unenforceable? We find that they are not.

Clearly the sale/purchase contract in question anticipated the preparation of another formal contract for deed. This fact, standing alone, does not, however, render the real estate agent’s form contract unenforceable. (Callaghan v. Miller (1959), 17 Ill. 2d 595, 162 N.E.2d 422.) The instrument in this case bears a declaration in its heading in large bold type “This is a binding contract.” The names of seller and purchaser and their respective addresses, the purchase price, the location of the property, the amount of the downpayment and terms of paying the balance, including interest, are clearly and unambiguously set forth. (See Callaghan.) Details as to payment of taxes and proration of other expenses are also provided, as is the broker’s commission and the date as of which the purchaser was to take possession. The conditions and terms, agreed to as evidenced by the parties’ signatures, are sufficient, we believe, to render the document specifically enforceable at the option of either party. McDaniel v. Silvernail (1976), 37 Ill. App. 3d 884, 346 N.E.2d 382.

The trial court’s determination turned on the expressions “contract for deed” and “formal contract for deed,” both of which were mentioned in the sale/purchase contract with reference to the final contract for financing the transaction. On appeal, the defendant relies on Lencioni v. Brill (1977), 50 Ill. App. 3d 802, 365 N.E.2d 1169, and urges that we uphold the trial court’s finding that these expressions are too indefinite. In support of his position, defendant speculates that the parties and their respective attorneys might need to negotiate a wide range of collateral matters related to the conveyance which could have been specified in the formal contract for deed. We find defendant’s argument unconvincing.

Initially, we find defendant’s reliance on Lencioni is misplaced. In Lencioni, the parties contracted for the sale of certain unimproved real estate. The contract for sale provided that the defendants were to furnish a “standard form mortgage” which would be executed at the closing. Defendants forwarded a trust deed form to plaintiff in an apparent attempt to comply with the provision. When the trust deed was rejected, defendants sent a “statutory form mortgage.” Plaintiffs either misplaced or never received this document, and plaintiffs then furnished defendants a different statutory form and a separate group of mortgage provision inserts. Upon defendants’ refusal to accept the additional provisions and refusal to honor the contract for sale, plaintiffs instituted suit for specific performance. The trial court found that the parties had “different understandings of the terms of [a standard form] mortgage and the court cannot properly resolve such differences by supplying the disputed terms.” (50 Ill. App. 3d 802, 805, 365 N.E.2d 1169, 1171.) On appeal, the court affirmed, finding that the trial court’s decision could not be said to be “clearly against the manifest weight of evidence.” (50 Ill. App. 3d 802, 806, 365 N.E.2d 1169, 1172.) Several mortgage provisions had not, in fact, been agreed upon by the parties, but were later suggested and rejected, including the mortgagor’s right of prepayment, if any, foreclosure procedures, assessment of attorneys’ fees and the grace period, if any, allowed to the mortgagors upon default.

While at first blush, it might appear that the instant .case is analogous to Lencioni, careful analysis of the facts of both cases convinces us otherwise. The critical difference lies in the evidence of ambiguity in the phrases chosen in each case to describe the anticipated contracts. Whereas in Lencioni the parties’ evidence demonstrated an actual difference in their understanding of “standard form mortgages,” such cannot be said of the expressions “contract for deed” and “formal contract for deed” in the present case. Indeed, mere speculation by defendant of various areas of potential disagreement is the only “evidence” of ambiguity to be found in the record before us.

The record reveals that the reason for Messing’s refusal to perform lay in Messing’s belated dissatisfaction with the 11% rate of interest that he would receive on the $86,000 balance due. The record indicates that the source of Messing’s dissatisfaction with the interest rate can be traced to a discussion between Messing and his banker to the effect that 11% was a bad deal for Messing. This discussion apparently took place some time between the signing of the sale/purchase contract on July 29, 1981, and the anticipated closing date, August 5,1981.

Certainly if defendant had established that his signature appeared on the sale/purchase agreement containing the allegedly low interest figure as a result of some fraud or oppression, we would not hesitate to affirm the court’s denial of specific performance on these facts. Such, however, is not the case. In fact, the trial court found no evidence of fraud or oppressive conduct by either Watts Co. or Heriford. Nor does Messing dispute this finding on appeal. Under the circumstances, it appears that defendant’s arguments concerning ambiguities in the expressions “contract for deed” and “formal contract for deed” are simply a smokescreen or, at best, an afterthought to avoid the legal consequences of a validly-executed contract. The record does not affirmatively demonstrate the existence of actual differences in the parties’ understandings of “contract for deed” and “formal contract for deed,” and we see no reason to presume them. Cf. Lencioni.

On these facts, we hold that the phrases “contract for deed” and “formal contract for deed,” as used in the sale/purchase contract here, are no more ambiguous than the term “mortgage,” as it was used in Callaghan v. Miller, wherein our supreme court approved a grant of specific performance on substantially similar facts.

Having found that there was demonstrated neither actual nor inherent ambiguity in the terms of the sale/purchase contract here, we are of the opinion that plaintiff is entitled to the relief requested. Inasmuch as the sole reason recited by the trial court for denying specific performance in the present case was its apparent belief that the later case, Lencioni v. Brill, mandated a finding of inherent ambiguity in the phrases “contract for deed” and “formal contract for deed,” we must reverse and remand this cause for further proceedings consistent with this opinion.

Reversed and remanded.

ALLOY and SCOTT, JJ., concur.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DEBRA K. JOHNIGK, Defendant-Appellant.
    Third District
    No. 82—72
    Opinion filed December 30, 1982.

      Ronald L. Hamm, of Hamm & Hanna, Ltd., of Peoria, for appellant.
    Bruce W. Black, State’s Attorney, of Pekin (John X. Breslin and Gary F. Gnidovec, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   PRESIDING JUSTICE BARRY

delivered the opinion of the court:

At about 9:25 p.m. on the night of August 12, 1981, Debra Johnigk was driving her van westbound in the center lane of a three lane roadway in East Peoria, Illinois, when she collided with an eastbound motorcycle operated by Milan M. Gnehm. At the place where the collision occurred, two lanes of the highway were designated eastbound and only one lane was westbound; thus, the eastbound motorcycle had the right-of-way in the center lane. As a result of the accident, Gnehm died, and Johnigk was subsequently indicted by a Tazewell County grand jury upon charges of reckless homicide, driving under the influence of intoxicating liquor, and improper lane usage. Following a jury trial, defendant was found guilty on all charges. The trial court entered judgment on the offenses of reckless homicide and driving while under the influence of intoxicating liquor. Defendant was sentenced to six months in the county jail and 30 months’ probation on the reckless homicide conviction along with a concurrent sentence of one year probation on the driving while under the influence of intoxicating liquor conviction. She was also fined $2,000 and costs and ordered to pay the medical and funeral expenses of the victim. Defendant has appealed from both convictions. We affirm.

According to evidence presented by the State, the first two officers at the scene of the accident were of the opinion that defendant was intoxicated after observing her and smelling alcohol on her breath. She was given a breathalyzer test at about 11 p.m. and then was taken to St. Francis Hospital in Peoria where she consented to a blood test for alcohol content in the blood. The blood sample was drawn at 12:05 a.m. on August 13, 1981, and was tested by Dr. Richard Meyers, director of clinical biochemistry and toxicology at the hospital. He testified that the blood alcohol level was .18% and that at that level approximately 86% of the people tested would suffer from “frank intoxication.” He also testified as to the rate of dissipation of alcohol in the body and then, in answer to a hypothetical question, indicated that on the basis of the test, in his opinion defendant’s blood alcohol level would have been .217% at 9:30 p.m. Defendant objected that there was not a sufficient foundation for his hypothetical answer, and the trial court overruled the objection.

On appeal defendant insists that there should have been a foundation based upon the number of drinks consumed by defendant before the hypothetical question was allowed. We have reviewed the record, and we conclude, first, that Dr. Meyers’ expertise as a specialist in testing blood alcohol levels was well-established and, second, that he was merely asked to give an opinion based upon his scientific knowledge and the results of the blood test. The question and answer were proper. Additional facts relating to the number of drinks consumed by defendant would go to the weight of his opinion evidence, not to its admissibility. Under section 11 — 501(c) of the Illinois Vehicle Code (Ill. Rev. Stat. 1981, ch. 951/2, par. 11—501(c)), evidence of the amount of alcohol in the blood “at the time of the act alleged as shown by a chemical analysis” of the blood is admissible if the test is performed according to specified uniform standards. Since it is unlikely that a blood sample would be drawn at the exact time of an accident, by implication the statute permits the kind of testimony which was received here — estimating the blood alcohol level at a time earlier than the sample was drawn.

In an effort to impeach Dr. Meyers’ testimony, defendant attempted to cross-examine him concerning the results of two breathalyzer tests taken at 10:15 and 11:17 p.m. which indicated that defendant’s blood alcohol level was .14 and .16, respectively. These levels were inconsistent with Dr. Meyers’ testimony that in his opinion defendant’s level would have declined from .217 at 9:30 p.m. to .18 at 12:05 a.m. After Dr. Meyers indicated that he was not an expert as to breathalyzers and that he could not say how those tests compare with the blood tests, the trial court sustained the State’s objection to further questions. Defendant argues upon appeal that she should have been allowed to cross-examine Dr. Meyers more extensively as to the breathalyzer tests and that as a result of the improper curtailment on cross, she was forced to introduce the results of those tests as a part of her defense.

Generally the scope of cross-examination rests within the discretion of the trial court. Although we acknowledge that it is proper to test the accuracy, skill and learning of an expert witness, we find that defendant did that here. We do not see how defendant was harmed by the rulings of the trial court since the results of both tests showed that she was intoxicated in any event. Dr. Meyers stated on rebuttal that the test of a blood sample is more accurate than the breath test. It was the task of the jury to weigh the scientific evidence along with defendant’s own testimony that she had consumed two beers and three rum-and-coke drinks between 8 and 9 p.m. prior to the accident.

Defendant also contends that the evidence was insufficient to prove her guilt beyond a reasonable doubt as to both convictions. It was undisputed that the motorcycle operated by the victim had the right-of-way in the center lane of the highway where the collision occurred and that the motorcycle headlight was on prior to the accident. Thus the most reasonable inference is that defendant failed to keep a proper lookout and failed to yield the right-of-way.

It has been held that a person acts recklessly when he consciously disregards a substantial and unjustifiable risk that his acts are likely to cause death or great bodily harm and when such disregard is a gross deviation from the standard of care which a reasonable person would use. (People v. Bonzi (1978), 65 Ill. App. 3d 927, 382 N.E.2d 1300.) Under that standard, we believe the jury was correct in finding that defendant’s conduct here was reckless beyond a reasonable doubt and, therefore, that she was guilty of reckless homicide.

As to the conviction for operating a motor vehicle while under the influence of intoxicating liquor, we think the evidence of intoxication indicates that the conviction should be sustained. In addition to the expert testimony of Dr. Meyers, the police officers at the scene testified as to their opinion that defendant was intoxicated. That testimony alone was sufficient to support the conviction. (People v. Winfield (1975), 30 Ill. App. 3d 668, 332 N.E.2d 634.) Furthermore, defendant herself testified that she had consumed drinks containing at least five ounces of alcohol shortly before the accident, and she introduced the breathalyzer tests showing her alcohol level to be above .10, thereby invoking the statutory presumption of intoxication. (Ill. Rev. Stat. 1981, ch. 95V2, par. 11— 501(cX3).) On the basis of this evidence, it would have been a miscarriage of justice to have reached any verdict other than “Guilty.”

Accordingly, we affirm the judgment of the circuit court of Tazewell County.

Affirmed.

STOUDER and SCOTT, JJ., concur.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DONALD REAGAN, Defendant-Appellant.
    Third District
    No. 82—92
    Opinion filed December 30, 1982.

      Robert Agostinelli and Peter A. Carusona, both of State Appellate Defender’s Office, of Ottawa, for appellant.
    Gary L. Peterlin, State’s Attorney, of Ottawa (John X. Breslin and Terry A. Mertel, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE ALLOY

delivered the opinion of the court:

The defendant was charged with three counts of attempted murder and three counts of armed violence based on the underlying offenses of attempted murder. A jury convicted the defendant of attempted voluntary manslaughter and armed violence. The trial court sentenced the defendant to eight years in prison for the convictions of armed violence. The defendant now appeals.

According to the State’s evidence, the State Police were keeping the defendant and his automobile under surveillance on July 27, 1980. At 6 p.m., Officer Lawrence Stalter, driving an unmarked police car, was following the defendant. The defendant, at some point, made two turns without using his turn signals. Stalter turned on his flashing red light and followed the defendant. The defendant, however, continued to drive at a normal speed and continued to obey all stop signs. At one stop sign, Officer Robert Current, driving a marked police car, drove past the defendant without attempting to stop him. Current’s lights were not turned on. Stalter continued to follow the defendant as he made another turn. Suddenly, the defendant accelerated his car and Stalter began a high speed chase. Officer Patrick O’Connor driving a marked squad car, joined Stalter in the pursuit.

The chase ended when the defendant drove into a ditch. He got out of his car holding a rifle and shot at Stalter. O’Connor arrived at the scene a moment later and fired back at the defendant. Tónica police officer Dennis Appelbee, driving a marked squad car, came to the scene to help O’Connor and Stalter. The defendant shot at Applebee as he was arriving at the scene of the gun battle. The three officers surrounded the defendant and exchanged shots with him for several minutes. The gun battle ended after the defendant was seriously wounded. Officer Applebee was injured. The defendant received several gunshot wounds.

The defendant testified that he knew a car was following him, but did not know it was a police car. He claimed that he did not see a flashing red light nor did he hear any siren. The defendant also claimed he tried to evade the car that was following him, because he believes he has been repeatedly followed since 1978. The defendant also testified that he has been shot at several times over the past few years. The defendant also stated that he thought someone had shot at him before the chase that led to his arrest began. The defendant denied seeing any marked police cars other than Officer Current’s car. The defendant testified that Current appeared to be chasing another car at the moment Current passed him. The defendant also stated that the police opened fire at him after his car ran into the ditch and that he returned the shots only in self-defense.

The trial court instructed the jury on the elements of an attempted murder and of an attempted voluntary manslaughter based on an unreasonable belief in the need for self-defense. The jury acquitted the defendant of attempted murder, but convicted him of three counts of attempted voluntary manslaughter and three counts of armed violence. The trial court sentenced him to three concurrent terms of eight years in prison on the armed violence convictions.

The defendant urges this court to reverse his convictions because, he contends, attempted voluntary manslaughter based on an imperfect self-defense is not a crime. Voluntary manslaughter based on an imperfect self-defense is defined in section 9 — 2 of the Criminal Code of 1961 (Ill. Rev. Stat. 1979, ch. 38, par. 9—2(b)):

“A person who intentionally or knowingly kills an individual commits voluntary manslaughter if at the time of the killing he believes the circumstances to be such that, if they existed, would justify or exonerate the killing under the principles stated in Article 7 of this Code, but his belief is unreasonable.”

An attempt to commit a crime is also an offense:

“A person commits an attempt when, with intent to commit a specific offense, he does any act which constitutes a substantial step toward the commission of that offense.” (Ill. Rev. Stat. 1979, ch. 38, par. 8—4.)

An attempt to commit an offense requires a specific intent, regardless of whether the completed crime itself requires a general intent or a specific intent. In an attempted rape, for example, the defendant must intend to accomplish intercourse with a female by force and against her will. (People v. Hanley (1977), 50 Ill. App. 3d 651, 365 N.E.2d 676.) In an attempted armed robbery, the defendant must intend to take property from a person by force or threat of force while armed with a dangerous weapon. (People v. Robinson (1981), 92 Ill. App. 3d 397, 416 N.E.2d 65.) In the case at bar, the essence of the defendant’s argument focuses on the need for a specific intent to commit a crime. He claims that he intended to kill in self-defense, and however unreasonable his belief may have been, he still intended to commit no crime.

The State argues that all that it would have to show is an intent to kill, in a prosecution for attempted voluntary manslaughter under section 9 — 2(b) of the Criminal Code of 1961. Relying upon People v. Harris (1978), 72 Ill. 2d 16, 377 N.E.2d 28, the State argues that in an attempted murder case, the prosecution need prove only that the defendant intended to kill, not that he intended to murder. By analogy, the State argues that it must only prove an intent to bring about the prohibited end result — a death — in an attempted voluntary manslaughter case. According to the State’s argument, the intent to kill, which can exist even in the context of self-defense, is the only specific intent necessary in a prosecution for attempted voluntary manslaughter.

Whether the crime of attempted voluntary manslaughter based on an imperfect self-defense exists in this State is a question of first impression. In People ex rel. Bassin v. Isreal (1975), 31 Ill. App. 3d 744, 335 N.E.2d 53, the defendant sought to withdraw a guilty plea to attempted voluntary manslaughter based on an imperfect self-defense. The defendant argued no such crime existed, but the court refused to address this question, noting that the defendant — originally indicted for attempted murder — negotiated a plea of attempted voluntary manslaughter. The court ruled that the defendant received the benefit of his bargain and should not be permitted to renounce it. In dicta the court suggested there was no logical inconsistency in holding that one can attempt a voluntary manslaughter. (People ex rel. Bassin v. Isreal (1975), 31 Ill. App. 3d 744, 747.) Similarly, in People v. Perez (1977), 50 Ill. App. 3d 959, 366 N.E.2d 1, the State argued the trial court erred when it released the defendant on the mistaken belief that there was no crime of attempted voluntary manslaughter under section 9 — 2(b). The appellate court declined to rule on the merits of the argument, finding that the trial court acquitted the defendant of the charges. The State could not appeal a judgment of acquittal.

One appellate court has ruled that there is no such crime of attempted voluntary manslaughter under section 9 — 2(a)—the “intense and sudden passion” voluntary manslaughter. (People v. Weeks (1967), 86 Ill. App. 2d 480, 230 N.E.2d 12.) The court, relying on People v. Moore (1893), 146 Ill. 600, 35 N.E. 166, ruled that the “intense passion” of a voluntary manslaughter under section 9 — 2(a) precludes any element of calculation. Since a person cannot specifically intend a sudden and intense passion, the court ruled that there is no crime of attempted voluntary manslaughter. In Moore, our supreme court ruled there was no crime of “assault with intent to commit voluntary manslaughter.'” In 1893, voluntary manslaughter was defined as “the unlawful killing of a human being without malice, express or implied, and without any mixture of deliberation whatever.” (Hurd’s Rev. Stat. 1891, ch. 38, par. 143.) The court noted that attempt requires a specific intent, yet the crime requires no act of deliberation as an element of the offense. A defendant could not intend to commit a crime which requires no deliberation as an element of the offense.

These cases are only tangentially relevant to determining whether attempted voluntary manslaughter under section 9 — 2(b) is a crime. Moore deals with a voluntary manslaughter statute that is much different than it is today. Weeks concerns a type of voluntary manslaughter wholly apart from the definition of an imperfect self-defense. The elements of each crime are very different. More significantly, section 9 — 2(b), unlike section 9 — 2(a), does define an intent to kill as an element of voluntary manslaughter. Of course, it is possible to intend to kill, even during self-defense.

The language of section 9 — 2(b) seems to support the State's argument that the only specific intent necessary is an intent to kill. Section 9 — 2(b) defines voluntary manslaughter as an intentional or knowing killing, then defines the circumstances of the killing as an unreasonable belief in the need for deadly force in self-defense. Thus, a specific intent to kill would seem to be sufficient to constitute at attempted voluntary manslaughter.

A comparison of section 9 — 2(b) with section 9 — 1(a), the murder statute, exposes a flaw in the State’s argument. In section 9 — 1(a) (Ill. Rev. Stat. 1981, ch. 38, par. 9—1(a)), the language defines the circumstances which constitute a murder — a killing without lawful justification — and then defines one of the states of mind necessary to commit the offense — an intent to kill. If the State’s argument is correct, by analogy, the only intent necessary to constitute an attempted murder is a specific intent to achieve a prohibited end result: A killing. The circumstances of the incident — the lack of lawful justification — merely classify the attempted homicide as an attempted murder rather than as an attempted voluntary manslaughter.

The supreme court, in People v. Barker (1980), 83 Ill. 2d 319, 415 N.E.2d 404, implicitly rejected the underpinnings of the State’s argument. In Barker, the court ruled that an attempted murder indictment which charged the defendant with committing certain acts “with the intent to commit the offense of murder” was not fatally defective. The defendant contended that an essential element of the offense, an intent to kill, was lacking in the indictment. The court disagreed, noting that a recitation of an “intent to kill” would have been redundant. In reaching its conclusion, the court stated that:

“If the indictment had only charged the defendant with the intent to kill and did not include the allegation that the defendant acted with the intent to commit murder, it would have been defective under section 8 — 4(a) of the Criminal Code, *** in that it would not have charged the defendant with an intent to commit a specific offense. The act of killing, or even intending to kill, is not necessarily a criminal offense (self-defense, for example).” (Emphasis added.) (People v. Barker (1980), 83 Ill. 2d 319, 327.)

The specific intent necessary to commit the crime of attempted murder is more than an intent to kill: The intent must be a specific intent to kill without lawful justification.

The confusion we see here is the result of two different intent requirements: The intent necessary to commit a completed offense differs from the specific intent necessary to commit the inchoate offense of attempt. As Barker indicates, section 8 — 4 of the Criminal Code can require more than the intent necessary for the substantive offense. There must be a specific intent to commit a crime, not just an end result.

Applying this analysis to the case at bar, we must conclude there is no crime of attempted voluntary manslaughter under section 9 — 2(b). To commit an attempted voluntary manslaughter, the defendant could not merely have an intent to kill, for that is not a crime. (Barker.) The defendant would have to specifically intend to kill with an unreasonable belief in the need to use deadly force in self-defense. As the State concedes, it is impossible to intend an unreasonable belief. If a defendant intended to kill with the knowledge that such action was unwarranted, he has intended to kill without lawful justification and could be prosecuted for attempted murder. In the case at bar, the defendant intended to defend himself. Although his belief in the need to defend himself or in the need to use deadly force was unreasonable, his intent was not to commit a crime. His intent was to engage in self-defense, which is not a criminal offense.

The State complains that this result leaves the prosecution with only minor charges of aggravated assault or aggravated battery with which to prosecute a defendant such as Reagan. Since voluntary manslaughter is a compromise between murder and exoneration, the State contends that attempted voluntary manslaughter also should be a compromise between attempted murder and exoneration. Aggravated assault and aggravated battery would not sufficiently punish a defendant who intended to kill.

This argument fails for several reasons. The existence of the crimes of aggravated assault and aggravated battery demonstrates that there already is a compromise between attempted murder and exoneration. Moreover, at the time the defendant here committed his acts, voluntary manslaughter was a Class 2 felony. (Ill. Rev. Stat. 1979, ch. 38, par. 9—2(c).) Therefore, an attempted voluntary manslaughter, even if it existed, is a Class 3 felony. (Ill. Rev. Stat. 1979, ch. 38, par. 8—4(c)(4).) This is the same penalty provided for aggravated battery. (Ill. Rev. Stat. 1979, ch. 38, par. 12—4(e).) Today, voluntary manslaughter is a Class 1 felony. (Ill. Rev. Stat. 1981, ch. 38, par. 9—2(c).) Aggravated battery is still a Class 3 felony, so the difference in potential sentences for voluntary manslaughter and aggravated battery is not extreme.

Moreover, any potential disparity between the sentences for attempted voluntary manslaughter and aggravated battery is irrelevant to the issue of whether an attempted voluntary manslaughter is a crime. Similarly, the fact that aggravated assault is a Class A misdemeanor (Ill. Rev. Stat. 1981, ch. 38, par. 12 — 2(b)) is no argument for creating a crime where none can logically exist. The defendant here could have been charged with aggravated assault and aggravated battery, because his belief in the need to defend himself would not excuse or mitigate the offense. If the legislature views these sentences as insufficient punishment to meet the crime, it may change the penalties for these crimes.

We hold, therefore, that there is no crime of attempted voluntary manslaughter under section 9 — 2(b) of the Criminal Code. The question we must now decide is how to dispose of this case.

The defendant was acquitted of attempted murder, so he cannot be retried on that charge. Although the defendant’s acts evidence guilt of an aggravated assault and an aggravated battery, this court has no power to find the defendant guilty of that offense. Furthermore, while an appellate court may reduce the degree of the offense of which a defendant is convicted (87 Ill. 2d R. 615(b)(3)), this power is available only when lesser included offenses are involved in the convicted offense. (People v. Towers (1974), 17 Ill. App. 3d 467, 308 N.E.2d 223.) The defendant here was not convicted of any offense, so this court cannot substitute its judgment of the defendant’s acts. Finally, even though aggravated assault can be a lesser included offense of attempted murder (People v. Chatman (1981), 102 Ill. App. 3d 692, 430 N.E.2d 257 (aggravated battery is a lesser included offense of attempted murder)), the defendant cannot be retried on that charge. When a defendant is indicted for, and tried on, the greater offense, and the trier of fact acquits him of that offense while remaining silent as to all lesser included offenses, the acquittal operates as a bar to subsequent prosecution of any of the lesser offenses. (Ill. Rev. Stat. 1981, ch. 38, par. 3—4(b)(1); People v. Jenkins (1976), 41 Ill. App. 3d 392, 354 N.E.2d 139.) In summary, this court cannot enter a judgment of guilty of aggravated assault and it cannot order a new trial on that charge.

We recognize that reasonable people can disagree over the result in this case. Some commentators have argued that there is a crime of attempted voluntary manslaughter based on an unreasonable self-defense. (Sachs, Is Attempt to Commit Voluntary Manslaughter a Possible Crime? 71 Ill. B. J. 166 (1982).) We believe, however, that the relevant precedents, including Barker and Moore, lead to the conclusion we enunciate today. Certainly, the issue the defendant raises in this appeal is worthy of supreme court review. Finally, our holding in this case makes it unnecessary to decide any of the other issues the parties raised in their arguments.

The judgment and sentence of the circuit court of La Salle County is reversed.

SCOTT and STOUDER, JJ., concur.


author: JUSTICE STOUDER

text:
    FIRST NATIONAL BANK OF OTTAWA, Plaintiff and Counterdefendant-Appellee, v. CLIFFORD H. LARKINS et al., Defendants and Counterplaintiffs and Third-Party Plaintiffs-Appellants.—(Ottawa Service Corporation, Third-Party Defendant-Appellee.)
    Third District
    No. 82—209
    Opinion filed January 4, 1983.
    Rehearing denied February 10, 1983.
    Edwin R. McCullough, of Chicago, for appellants.
    William N. Twohey and John F. Vickers, both of Ottawa, and James A. McPhedron and Cynthia M. Raccuglia, both of Anthony C. Raccuglia & Associates, of Peru, for appellee.
   JUSTICE STOUDER

delivered the opinion of the court:

Plaintiff First National Bank of Ottawa (hereinafter First National) filed a complaint for damages allegedly occasioned by defendants Clifford H. Larkins’ and Vietta Larkins’ failure to make required payments as provided in a retail installment contract. The Larkins filed a counterclaim against First National and a third-party complaint against Ottawa Service Corporation (hereinafter Ottawa Service) alleging an usurious rate of interest in the contract. After a hearing on the merits of the latter pleadings, the circuit court of La Salle County entered summary judgment against the Larkins.

The facts are undisputed. On October 23, 1976, the Larkins executed a retail installment contract with Ottawa Service. The subject matter of the contract was a mobile home which was purchased by the Larkins for use by C. Lavina’s Way, a not-for-profit corporation. C. Lavina’s Way was organized to operate a home for mentally and physically handicapped children, partially at the suggestion of the president of Ottawa Service, an incorporator. Shortly after its execution, Ottawa Service sold the contract to First National. It provided a cash price of $15,000 with $12,750 being the amount financed at an annual percentage rate of 12.1%. This resulted in a finance charge of $11,475.12 and a total deferred payment price of $24,225.12. The Larkins were required to submit 144 monthly payments of $168.23 beginning on December 1, 1976. Presented for our review is the sole question of whether the trial court erred in entering the summary judgments.

Both in this court and in the court below, the parties have extensively argued the various statutory provisions and methods of finance charge computation they believe applicable to the contract. While the factual framework of this cause would make a discussion of these theories interesting, such a dissertation is unnecessary to the disposition of the issue at bar.

The rule governing this situation was stated in Clemens v. Crane (1908), 234 Ill. 215, 229-30:

“Usury is defined to be an illegal profit required and received by a lender of a sum of money from the borrower. [Citations.] To constitute usury, in contemplation of law, the following essential elements must be present: (1) There must be a loan or forbearance; (2) the loan must be of money or something circulating as money; (3) it must be re-payable absolutely and at all events; (4) something must be exacted for the use of the money in excess of and in addition to the interest allowed by law. Some decisions appear to imply that a fifth element should be added, consisting of the intent of the parties or at least of the lender, but it seems to us quite as accurate to say that the intention of the parties as the same appears from the facts and circumstances of the case may be considered, in connection with the other evidence, in determining whether the essential elements of usury are present in the particular case under investigation. The form of the contract is not conclusive of the question. The desire of lenders to exact more than the law permits and the willingness of borrowers to concede whatever may be demanded to obtain temporary relief from financial embarrassment have resulted in a variety of shifts and cunning devices designed to evade the law. The character of a transaction is not to be judged by the mere verbal raiment in which the parties have clothed it, but by its true character as disclosed by the whole evidence. If, when so judged, it appears to be a loan or forbearance of money for a greater rate of interest than that allowed by law, the statute is violated and its penalties incurred, no matter what device the parties may have employed to conceal the real character of their dealings.”

There can thus be no usury when there is “in no sense a loaning of money.” (Manufacturers Finance Trust v. Stone (1929), 251 Ill. App. 414, 420.) On a sale of property, the parties can make such a bargain as they can agree upon and there is no usury charge simply because “the price is fixed at one sum if paid at one time, and at another sum if paid at another.” (Primley v. Shirk (1895), 60 Ill. App. 312, 314, aff’d (1896), 163 Ill. 389, 45 N.E. 247.) This is in keeping with the general rule that a bona fide sale of property is not a loan or forbearance of money within the usury laws (see 35 Ill. L. & Prac. Usury sec. 3 (1958); 45 Am. Jur. 2d Interest & Usury sec. 122 (1969)), at least where both a cash and credit price are quoted (see Annot., 14 A.L.R.3d 1065, 1077 (1967)).

Additional support for the general rules is found in the decisions of this State regarding finance charges. In Rose v. Sears, Roebuck & Co. (1973), 12 Ill. App. 3d 929, 932, 299 N.E.2d 95, 97, appeal denied (1973) , 54 Ill. 2d 596, the court noted:

“Before proceeding to examine the plaintiffs’ arguments, we note that plaintiffs’ attempt to brand the finance charge here as usurious interest is irrelevant since we are dealing with finance charges, which are not subject to the general interest provisions. (Ill. Rev. Stat. 1971, ch. 121V2, par. 528.)”

Citing Rose and other cases, the court in Johnson v. Sears, Roebuck & Co. (1973), 14 Ill. App. 3d 838, 851, 303 N.E.2d 627, 637, appeal denied (1974), 55 Ill. 2d 602, explained:

“Thus, Illinois recognizes that a seller may sell his property for the immediate payment of a certain amount (‘cash price’) or permit payment over a period of time for a greater total price (‘time price’). Such a transaction is not a loan, and the additional amount charged, the time price differential, is not subject to the usury laws.”

This rule has also applied in cases of alleged criminal usury. (See Gecht v. Suson (1971), 3 Ill. App. 3d 183, 188, appeal denied (1972), 49 Ill. 2d 577.) It has not been applied in a pre-existing tripartite credit relationship (see Harris Trust & Savings Bank v. McCray (1974) , 21 Ill. App. 3d 605, 609-10), where a real estate installment contract was deemed a business loan (see Huss v. Moras (1979), 77 Ill. App. 3d 554, 556-57), and it has not escaped criticism (see Smith v. Sears, Roebuck & Co. (1981), 95 Ill. App. 3d 174, 179-80 (dissenting opinion), appeal denied (1981), 85 Ill. 2d 575).

The retail installment contract at bar quoted both a cash price of $15,000 and a deferred payment price of $24,225.12. No money was ever loaned to the Larkins. Nothing in the record reflects this was anything but a bona fide sale of property. Under these circumstances, we find no violation of section 4 of “An Act in relation to the rate of interest ***” (Ill. Rev. Stat. 1975, ch. 74, par. 4, currently codified at Ill. Rev. Stat. 1981, ch. 17, par. 6404).

Accordingly, the summary judgment of the circuit court of La Salle County is affirmed.

Affirmed.

BARRY, P.J., and ALLOY, J., concur.