author: JUSTICE O’CONNOR

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ERNIE BELTON, Defendant-Appellant.
    First District (1st Division)
    No. 81-627
    Opinion filed March 22, 1982.

      Ralph Ruebner, Steven Clark, and Bruce Mosbacher, all of State Appellate Defender’s Office, of Chicago, for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat, Kevin Sweeney, and Edward F. Cozzi, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE O’CONNOR

delivered the opinion of the court:

Defendant Ernie Belton was sentenced to five years in the penitentiary after his conviction by a jury of the offense of unlawful use of weapons in carrying a loaded firearm in a vehicle within five years of release from the penitentiary. (Ill. Rev. Stat. 1979, ch. 38, pars. 24 — 1(a) (10) and 24 — 1(b).) He appeals, contending that he was denied a fair trial (1) by the State’s exercise of its peremptory challenges so as to deny him a jury made up of members representative of the community and (2) by the prosecutor’s final argument. We affirm.

Because no contention is made that defendant was not proved guilty beyond a reasonable doubt, the evidence need not be detailed at length.

At approximately 11:30 p.m. on February 13, 1980, police officers Fitzgerald and Strombeck were driving south on Wells Street in an unmarked car. They turned west onto Schiller Street. A grey Buick was being driven west directly in front of them. Defendant was in the front passenger seat, with Keith Belton, defendant’s nephew, in the rear seat behind defendant. Leroy Mayfield was the driver. Defendant turned to look at the unmarked car.

Officer Fitzgerald observed the front passenger window go down and an arm extend from the window with a gun in his hand. When the emergency lights on the police car were activated, the person in the front passenger seat threw the gun. A loaded gun was recovered near the car. Officer Strombeck said that when he approached the car in which defendant was a passenger, the front passenger window was down and the rear window closed.

Defendant testified that he turned to look back because someone said the police were following them. While he was looking back, his nephew sitting behind him in the back seat rolled down the back window, stuck his hand out the window and pulled his hand into the car. Defendant did not see a gun thrown from the car. Defendant further testified that one of the police officers asked his nephew what he threw out the window and his nephew said, “Nothing. I didn’t throw nothing out the window.”

It was stipulated that defendant had been convicted of burglary February 6, 1978, and released from incarceration from Pontiac Correctional Center September 20, 1979.

We find this evidence sufficient to sustain the jury’s guilty verdict.

We disagree with defendant’s first contention that he was denied a fair trial by the State’s exercise of its peremptory challenges so as to deny him a jury made up of members representative of the community.

At the selection of the jury, the court reporter was excused after preliminary comments by the trial court to the prospective jurors. After nine members of the jury panel had been selected, defense counsel made the following oral motion:

“MR. GANT: I’m moving at this time that the jurors who have been selected that that entire venire be dismissed and that a new venire be brought up. I predicate my motion, Your Honor, on one very, very blatant, I feel anyway, abuse by the prosecution of its use of peremptory challenges. The prosecution has exercised, according to my records, peremptory challenges; of the 8, 7 have been used against either blacks or other minorities.”

He also noted that “[t]here is nothing in the information that we were able to garner to indicate that these 7 minorities were excused for any other reason than race.” The prosecutor argued that the State need not give any reason for the exercise of a peremptory challenge and that one black had been seated on the jury. Defense counsel countered that the fact that one black had been put on the jury did not vitiate the argument that there had been a systematic exclusion of blacks from the jury. He orally gave very brief biographic sketches of some of the challenged jurors and noted that some had backgrounds “that a prosecutor looks for in a juror.” The court denied defendant’s motion, stating that defense counsel had “not made a prima facie case that the State has systematically excluded blacks or in broader terms minorities.”

After the selection of the jury had been completed, the following discussion took place prior to the State’s opening statement:

“THE COURT: Mr. Gant, while your client is present, I wanted to make a comment regarding a motion you made regarding the systematic exclusion of minorities. I made no notes during yesterday’s selection as to the race or background of the 10 people you excluded and approximately 12,13 or 14 the Court excused. However, it did come to my mind when I brought the 9 jurors in the courtroom this morning, Jesus Quintana (phonetic spelling) who is a juror and I suppose you would catagorize him as a minority, I would, he was not excluded by the State.
MR. GANT: I got lucky that time.
THE COURT: I guess there are two minorities of the original nine. I just wanted to make that point for the record.
MR. GANT: All right.”

Defendant argues that the above proceedings show an abuse of the peremptory challenge, thus denying defendant an impartial jury made up of persons representative of the community as required by article I, section 8, of the Illinois Constitution and the sixth and fourteenth amendments to the United States Constitution.

The applicable test for the use of peremptory challenges is set out in Swain v. Alabama (1965), 380 U.S. 202, 13 L. Ed. 2d 759, 85 S. Ct. 824. Defendant argues that the test in that case is all but impossible for an individual to meet and the proper test is that set out in People v. Wheeler (1978), 22 Cal. 3d 258, 583 P.2d 748, 148 Cal. Rptr. 890, which held that where there is a showing by defendant that there is a substantial likelihood that the prosecutor exercised its peremptory challenges so as to deny defendant a jury made up of members representative of the community, it is the responsibility of the trial court to determine whether the State properly exercised its challenges and that this test should be adopted in Illinois.

In People v. Mims (1981), 103 Ill. App. 3d 673, 678, in holding that the defendant there was not denied her Federal or State constitutional rights by the State’s exercise of its peremptory challenges allegedly so as to exclude black women from the jury, the court said:

“Several Illinois cases have recently considered Wheeler, and reached somewhat different conclusions as to its merit. In People v. Smith (1980), 91 Ill. App. 3d 523, 414 N.E.2d 1117, the court appears to have followed the reasoning in Wheeler, but declined to reverse on the ground that evidence of purposeful exclusion of blacks from jury service was insufficient. (91 Ill. App. 3d 523, 530-32.) The language in Smith, in support of Wheeler, has been subsequently narrowly construed as dictum in People v. Vaughn (1981), 100 Ill. App. 3d 1082, 421 N.E.2d 840, and People v. Bracey (1981), 93 Ill. App. 3d 864, 870, 417 N.E.2d 1029. In both Bracey and Vaughn, the courts declined to decide whether Wheeler should be adopted in Illinois, because defendant failed to establish a prima facie case of purposeful discrimination.
The court in People v. Fleming (1980), 91 Ill. App. 3d 99, 105-06, 413 N.E.2d 1330, and this court in People v. Allen (1981), 96 Ill. App. 3d 871, 878, 422 N.E.2d 100, expressly refused to follow Wheeler, finding the test articulated therein vague and uncertain, and one which would severely undermine the purpose of the challenge. In light of the foregoing authorities we decline to alter the rule prevailing in Illinois, particularly where, as in this case, evidence of purposeful exclusion of black females is speculative and insufficient.”

The supreme court denied leave to appeal in Fleming. (83 Ill. 2d 571.) Fleming was followed in People v. Tucker (1981), 99 Ill. App. 3d 606, 425 N.E.2d 511.

In People v. Gaines (1981), 88 Ill. 2d 342, 358-59, 430 N.E.2d 1046, the Supreme Court of Illinois said:

“The defendant’s remaining objection to the jury goes to its racial composition. The defendant, who is black, states that the jury contained no black persons, and that that circumstance resulted from the prosecution’s having used some of its peremptory challenges to exclude veniremen who were black but were not subject to removal for cause. The defendant concedes that under Swain v. Alabama (1965), 380 U.S. 202, 13 L. Ed. 2d 759, 85 S. Ct. 824, the motives of the prosecution in exercising peremptory challenges are not subject to examination absent a showing that blacks have been systematically prevented from serving on particular juries or from jury service in the county or State, a showing not attempted here. (See 380 U.S. 202, 221-23, 13 L. Ed. 2d 759, 773-74, 85 S. Ct. 824, 836-37.) A similar position has been taken by this court in People v. Harris (1959), 17 Ill. 2d 446, 450-51, cert. denied (1960), 362 U.S. 928, 4 L. Ed. 2d 747, 80 S. Ct. 755; cf. People v. Powell (1973), 53 Ill. 2d 465, 477-78; People v. King (1973), 54 Ill. 2d 291, 298.
The defendant cites People v. Wheeler (1978), 22 Cal. 3d 258, 583 P.2d 748, 148 Cal. Rptr. 890, and Commonwealth v. Soares (1979), 377 Mass. 461, 387 N.E.2d 499, cert. denied (1979), 444 U.S. 881, 62 L. Ed. 2d 110, 100 S. Ct. 170, in which the supreme courts of California and of Massachusetts rejected Swain, and he urges that this court should follow their lead. As had been the case in Swain, the defendants in Wheeler and in Soares were black, and the victims were white. In Wheeler, the prosecution peremptorily challenged all the black veniremen, in Soares all but one. In each case the conviction was reversed, the court holding that when a defendant has made a prima facie case that the prosecution has excluded veniremen on the basis of their race, the prosecution then has the burden to show that its exclusion of the jurors was based on other grounds.
The question whether this court should depart from the principle adopted by the Supreme Court in Swain and overrule its decision in Harris is not presented in this case, however. As the State points out, the defendant did not raise this issue until all the jurors had been sworn. Moreover, he failed to make a record which would show that the veniremen who were peremptorily challenged by the State were black. Such a showing is required even under Wheeler and Soares. See People v. Wheeler (1978), 22 Cal. 3d 258, 280, 583 P.2d 748, 764, 148 Cal. Rptr. 890, 905; Commonwealth v. Soares (1979), 377 Mass. 461,_, 387 N.E.2d 499, 517.”

The record here is insufficient for this court to consider the argument advanced.

In People v. Poliquin (1981), 97 Ill. App. 3d 122, 421 N.E.2d 1362, the court held that the propriety of the State’s peremptory challenge could not be considered by it where the jury selection proceedings were not preserved by a report of proceedings, a bystander’s report or an agreed statement of facts. Statements of counsel could not be accepted in lieu of them. Here, there was neither a report of proceedings, a bystander’s report, nor an agreed statement of facts, only a statement by counsel.

In People v. Clearlee (1981), 101 Ill. App. 3d 16, 18, 427 N.E.2d 1005, the court said:

“Second, defendant contends that he was denied his right to a fair and impartial jury where the State exercised nine of its 10 peremptory challenges to exclude black jurors. However, no transcript of the voir dire is included in the record. Such a record showing the circumstances surrounding the exercise of the challenges is necessary, for without it we cannot decide whether the challenges were exercised solely because prospective jurors were black. (People v. Bracey (1981), 93 Ill. App. 3d 864, 417 N.E.2d 1029, citing People v. Fleming (1980), 91 Ill. App. 3d 99, 413 N.E.2d 1330.) In Bracey, the court under similar circumstances held that a defendant’s burden of proving a prima facie case of discrimination could not be met through the use of numbers alone. We agree with this holding and the court’s observation that the peremptory challenge system would suffer severely if defendant, after meeting so minimal a burden, could require the State to explain its reasons for striking jurors.”

The record before us is insufficient to show that those prospective jurors who were peremptorily challenged were black or members of minority groups, a showing required under Wheeler and Soares. Thus, even if Wheeler were to be adopted, the evidence here was insufficient to require a reversal.

Defendant asserts that certain arguments of the prosecutor were reversibly erroneous. We disagree.

Great latitude is allowed prosecution counsel in closing argument. Each case must be decided on its own facts. (People v. Weathers (1975), 62 Ill. 2d 114, 338 N.E.2d 880.) Arguments and statements based upon the facts in evidence or upon legitimate inferences drawn therefrom are not outside the bounds of proper argument. People v. Oliger (1975), 32 Ill. App. 3d 889, 336 N.E.2d 769.

One of defendant’s objections is directed to the following comment by the prosecutor in his closing argument:

“Our burden here is to prove the defendant guilty beyond a reasonable doubt, that is the same burden that exists in every case that is tried in Cook County whether it be a petty theft, whether it be a murder or whether it’s the offense of unlawful use of weapons. It’s not an unreasonable burden, it’s not a burden that is impossible to achieve.”

Defendant contends that this comment had the effect of lessening the importance of the State’s burden of proof by implying that reasonable doubt was merely a pro forma or minor detail.

This contention has been waived by defendant. Defendant’s motion for a new trial was oral and the State did not object to the use of the oral motion. Ordinarily this will not result in a waiver upon defendant’s part to argue any ground on appeal. (People v. Boyd (1980), 88 Ill. App. 3d 825, 852, 410 N.E.2d 931, appeal denied (1981), 82 Ill. 2d 586.) But that rule does not apply here because defense counsel stated that his oral motion was “predicated on the objections made during the course of the trial.” He made no objection at the time of the above comment, nor did he make any argument at all in support of his oral motion.

But even if the claimed error was not waived, it is without merit. In People v. Ayala (1981), 96 Ill. App. 3d 880, 422 N.E.2d 127, the court considered a similar argument directed to a similar closing argument by the prosecutor. The court there said:

“Defendant relies on People v. Martinez (1979), 76 Ill. App. 3d 280, 395 N.E.2d 86, in which the court found similar comments objectionable, as having the effect of lessening the importance of the State’s burden of proof by implying that reasonable doubt was merely a pro-forma or minor detail. In Martinez, the prosecutor said that the State had no quarrel’ about its burden of proving the defendant’s guilt beyond a reasonable doubt and added that the people ‘throughout the United States * * * are being found guilty beyond a reasonable doubt every day of the week.’ The State correctly points out that this comment, if error, may be considered to have been waived by the failure of the defendant to object at trial. In addition, defendant’s written post-trial motion made no reference to this particular comment in rebuttal. Nevertheless, we consider People v. Martinez to be distinguishable. In Martinez, the court reversed on other grounds. Although the court considered the foregoing quoted remarks to be ‘improper,’ along with other improper prosecutorial comments, it did not say that this comment, standing alone, could be considered to be reversible error. Under the facts of this case, we consider that any error was harmless beyond a reasonable doubt and did not contribute to the jury’s verdict.” 96 Ill. App. 3d 880, 883-84.

In addition to Martinez, defendant here also relies on People v. Hamilton (1980), 80 Ill. App. 3d 794, 400 N.E.2d 599. In the latter case, the court there, too, while finding the comment improper, refused to reverse on that ground because it did not contribute to the defendants’ convictions under the facts before the courts in those cases. Similarly here, while we consider the comments “improper” we do not consider them to be grounds for reversal in view of the facts in the record.

Defendant’s other objection is directed at the prosecutor’s comment on defendant’s failure to call as witnesses the other two occupants of the car. This, defendant contends, unfairly shifted the burden of proof to defendant. We disagree.

Defendant relies on People v. Popely (1976), 36 Ill. App. 3d 828, 345 N.E.2d 125, and People v. Smith (1966), 74 Ill. App. 2d 458, 221 N.E.2d 68, for the principles that a prosecutor may not comment on defendant’s failure to call specific witnesses unless there is evidence that these witnesses were unavailable to the State and that such comments tend to shift the burden of proof to the accused and may lead the jury to believe that defendant is under obligation to call witnesses.

Even accepting these principles, we find no reversible error in the comment here. In People v. Turner (1981), 93 Ill. App. 3d 61, 416 N.E.2d 1149, the court refused to reverse because the prosecutor commented on the fact that defendant had failed to call certain witnesses. The court there said:

“Defendant argues that the prosecutor’s comment constitutes reversible error as an accused has no duty to produce a witness who is equally accessible to the State. (People v. Rubin (1937), 366 Ill. 195, 7 N.E.2d 890; People v. Smith (1966), 74 Ill. App. 2d 458, 221 N.E.2d 68; People v. Pearson (1972), 2 Ill. App. 3d 861, 277 N.E.2d 544; People v. Pepper (1971), 2 Ill. App. 3d 621, 276 N.E.2d 416.) The theory behind these cases is that to permit such comment conflicts with the doctrine of the presumption of innocence and places a burden on the accused which the law does not require. The State cannot substitute the failure of a defendant to produce a witness as substantial proof of the charge. In the case at bar, the State could have proved its case without commenting on defendant’s failure to produce witnesses. It was error to make such a comment. However, .the testimony of the complaining witness was credible, clear and convincing.” (93 Ill. App. 3d 61, 67.)

Here, defendant’s testimony showed he was seated in the front passenger seat of the car and the testimony of the police officer was clear that a gun was thrown by an arm thrust out of the open window on the front passenger’s side. In view of this evidence, we find that any error in the prosecutor’s comment does not require a reversal.

Whether considered singly or in combination, we find that these remarks of the prosecutor do not constitute reversible error.

We cannot say that the verdict herein would have been otherwise had the improper remarks not been made. (People v. Jackson (1981), 84 Ill. 2d 350, 360, 418 N.E.2d 739.) Also, we cannot say that these remarks resulted in substantial prejudice to the accused. People v. Baptist (1979), 76 Ill. 2d 19, 29, 389 N.E.2d 1200; People v. Jackson (1981), 100 Ill. App. 3d 318, 321, 426 N.E.2d 1132.

The judgment of the circuit court of Cook County is affirmed.

Affirmed.

CAMPBELL, P. J., and GOLDBERG, J„ concur.


source: Caselaw Access Project

author: JUSTICE PERLIN

license: Public Domain

text:
    JOHN BURNS CONSTRUCTION COMPANY, Plaintiff-Appellee, v. INTERLAKE, INC., Defendant-Appellant.
    First District (2nd Division)
    No. 80-2112
    Opinion filed March 23, 1982.

      Wildman, Harrold, Allen & Dixon, of Chicago (Thomas D. Allen and Robert E. Kehoe, Jr., of counsel), for appellant.
    Pope, Ballard, Shepard & Fowle, of Chicago (Thomas J. Regan and Mark T. Dunn, of counsel), for appellee.
   JUSTICE PERLIN

delivered the opinion of the court:

John Burns Construction Company (Burns) sued Interlake, Inc. (Interlake), to obtain further payment for a sewer project. Although Interlake had paid Burns the stated contract price of $68,117, Burns’ three-count complaint sought an additional $149,000 for excavating problems encountered on the job. Count I alleged fraud, that Interlake had misled Burns as to the nature of the subsoil; count II alleged mutual mistake, that the parties were mistaken about the condition of the subsoil, and sought rescission of the contract and quantum meruit recovery; count III alleged contract extras, i.e., that Interlake had separately agreed to pay for Burns’ extra effort because it was outside the scope of the contract. In a bench trial the court rescinded the contract and entered judgment against Interlake in the amount of $130,406.25 on count II, mutual mistake, and in favor of Interlake on counts I and III. Interlake appeals from the judgment entered on count II, contending (1) that the trial court erred in rescinding the contract on the ground of mutual mistake, and (2) that assuming the contract was properly rescinded, the court improperly applied a quantum meruit measure of damages. For the reasons which follow we affirm the trial court’s judgment rescinding the contract, vacate the order awarding damages and remand the cause for a hearing to determine damages in accordance with the views expressed herein.

Interlake operates a pig iron plant on the south side of Chicago, adjacent to the Valley Mould and Iron Company. Servicing the site is an underground sewer network which collects waste water from a variety of points and discharges it into the Chicago sewer system. Due to increased usage in the early 1970’s, the final branch became a critical bottleneck and, because of potentially dangerous backups, Interlake needed to supplement the flow capacity with a new pipeline parallel to the existing branch.

Prior to soliciting bids Interlake knew that the subsoil in the area to be excavated might contain cinders, large chunks of iron and coal called “skulls” or “buttons,” buried railroad ties, abandoned concrete foundations and concrete-like slag. None of the bidders was apprised of these conditions. This was attributable to Interlake’s consistent policy of inviting contractors to bid for excavation on the basis of “virgin soil,” i.e., the natural condition of the subsoil assuming there had been no human tampering. Interlake explained that it adopted this policy, which it had followed in 50 to 75 instances prior to mid-1972, to insure comparable bids, given the uncertainty as to the exact subsoil conditions along the proposed route. Interlake specifically advised Burns to calculate its bid on the assumption that the work was to be done in virgin soil. Interlake did not inform Burns that there was a break in the existing sewer line between manhole No. 2 and manhole No. 1 or that periodically waste water would fill up and back out of manhole No. 2 at a rate in excess of 1500 gallons per minute.

On July 11, 1972, Burns submitted a bid of $108,000 for the sewer project together with other unrelated work which was not performed because of Burns’ later disputes with Interlake. At Interlake’s direction, the bid was expressly based on the assumption that “all ground shall be virgin.” The bid also stated that “[i]t is understood that this proposal, upon acceptance thereof, will become a contract; 6 * ° .” In late August or early September 1972 Interlake accepted Burns’ low bid. The written document evidencing this offer and acceptance was dated September 6, 1972, but was not signed by both parties until November 25,1972,19 days after work had commenced.

On September 4, 1972, Burns sent to Interlake a schedule of “price lists for labor, equipment and unit work that will be a supplement to our quotation of July 11, 1972 [which was based on the assumption of virgin soil], for any additional work that may occur.” This schedule was eventually made part of the contract itself, and paragraphs “THIRD” and “FOURTH” of the contract provide an arrangement for time and material charges for work not covered by the scope of the original contract.

Burns obtained construction permits from the Metropolitan Sanitary District, the Environmental Protection Agency and the City of Chicago, and began moving materials and equipment onto the job site on November 6,1972.

Prior to the actual commencement of work, the parties met at the job site and discussed the possibility of nonvirgin subsoil conditions. They agreed to tabulate all nonvirgin work on Burns’ own time and material sheets, all of which were put in evidence. Richard Thompson, Burns’ executive vice-president and secretary, testified that he was advised by James Bitner, Interlake’s plant engineer, that Burns might encounter slag underneath the ground. Thompson agreed that any extra work required because of the presence of that slag and “all non-virgin problems of whatever nature” would be covered by the written time and material sheets. Interlake signed all time and material sheets Burns submitted. Their total value was $41,299.91. At the same meeting Interlake’s project engineer, Richard Draus, advised Burns that Bitner would be Interlake’s representative at the job site. Draus said that Bitner had authority to approve any additional payments for Burns.

Before the contract was signed on November 25,1972, Burns had dug test pits to locate existing underground utilities and had begun to install well points to dewater the subsurface along the path of the new sewer. Burns found congealed slag which had to be broken up by “hard digging,” i.e., digging using backhoes, pneumatic air tools, jackhammers and other equipment. Interlake agreed to pay for this extra work and gave Burns approximately $6,000 for it.

On November 25, 1972, Burns signed the written contract. Although Burns had estimated the cost of the sewer work in question at $77,800 (at Interlake’s request, Burns submitted a total bid which did not isolate Burns’ costs for the sewer project alone), Interlake’s contract assigned a figure of $68,117 to that work for internal budgeting reasons. Burns had no objection to this allocation so long as it was understood that when all the work contemplated was completed, Burns would receive the total contract price, including the $77,800 Burns estimated for the sewer project.

Near both ends of the new sewer route were railroad tracks which could not be interrupted because they were vital to Interlake’s operations. Thus, while the middle portion of this 465-foot run could be dug by open trenching, the end portions required underground tunneling using an auger to bore a hole, followed simultaneously by a steel casing to serve as a permanent shell. Burns subcontracted the tunneling operation to Armco Steel Company.

In the course of boring westward on the second tunnel run, Armco’s auger chopped through an intersecting eight-inch sewer line from Valley Mould and Iron which Burns was supposed to have sealed as part of its contract with Interlake. This occurred on December 29, 1972. The water from that break flowed first into the 42-inch casing and then into the “push pit” where the boring equipment and hydraulic rams operated. The water was pumped out of the push pit and off the premises. Witnesses for both Burns and Interlake testified that this break was sealed within a day and a half, after which Armco immediately resumed boring.

After January 1, 1973, Armco continued to push its 42-inch casing west some distance beyond the Valley Mould and Iron sewer line without difficulty. Thereafter, due to loose cinders in the soil, the casing began to rise off the grade as the soil collapsed around it. To overcome this new and unknown soil condition Armco was required to “swallow” the newly installed 42-inch casing with a 48-inch casing, withdraw and scrap the original 42-inch casing and replace it with a new 42-inch casing realigned at the proper elevation. Bitner observed this work, which took approximately a week to complete, on a daily basis but did not instruct Burns or Armco to stop working. Burns did not submit any time and material sheets for this corrective work. Drilling was resumed and continued without incident for approximately 100 feet.

On January 19,1973, the work again came to a halt because excessive water was running into the Armco casing causing it to seize. Henry Fisher of Armco testified that there was a stream of warm running water six inches wide and one-half to three-quarters of an inch deep. The water and cinders were voiding the soil above the casing so that Fisher could see the top of the casing 10 to 12 feet below the surface. The parties explored for its source and patched manhole No. 2 but observed no change in the amount of excess water. Because of this problem, another meeting was held at the job site on January 18 or 19. Among those present were John Hayes, vice-president of operations for Burns, Bitner, Interlake’s plant engineer, and Henry Fisher from Armco.

Hayes testified that at this meeting Bitner asked whether Burns and Armco were going to be able to finish the job. Hayes said that the excessive water was the problem in continuing, and Armco stated that if the water flow could be stemmed then the work probably could be completed. Bitner said that Interlake was willing to do whatever was necessary to install the sewer. Interlake rejected Burns’ request to place the entire project on a time and material basis, but Bitner instructed Burns to “keep track of all our costs on the job.” Bitner assured Burns that they “would be compensated fairly for the work done in conjunction with what we [Burns] felt was over and above the work called for in the contract.” Fisher testified that Bitner also told Armco that it should move off the job and that it would be reimbursed for its additional costs. Bitner later told Hayes that Burns would be compensated for its extra cost and told Hayes that this situation was very typical for Interlake. Bitner, however, was never informed of any extra charges beyond that which were represented in the time and material sheets.

Bitner testified that the volume of water running into the Armco casing was a “non-virgin” condition and that he agreed to pay for a second dewatering system. This system was installed during a two-week period beginning about January 23, 1973. About the same time Burns, with Bitner’s approval, installed an additional manhole (designated manhole No. IB) which was not included in the contract specifications.

Early in February 1973 Armco, which had moved off the job at Bitner’s direction, returned, reset its equipment and pushed another 30 to 35 feet west where Armco again encountered a great amount of warm water flowing into big streams coupled with slag and cinders immediately under the railroad tracks. Another job site meeting was held. Armco’s Fisher told Bitner that Armco’s auger could not dig through the soil. Bitner told Fisher and Hayes (Burns’ vice-president) that the railroad tracks could not be taken out of service and that Armco should stay on the job. Bitner promised Fisher and Hayes that “regardless” of cost Interlake would “settle at the end of the job.” Following these assurances, Armco brought in a special four-foot hydraulic ram and succeeded in forcing the casing an additional 20 feet west to a point just past the railroad tracks. Because of the increasing resistance of the soil, which made further underground tunneling impossible, it was decided to install an additional manhole (manhole No. 2B) at that point and continue the rest of the route by open trench digging to manhole No. 2. Because of the soil condition this trench had to be sheeted with special tongue and groove sheeting which was not part of the job specifications. The same method was used to install the sewer line between manholes No. 2 and No. 2A. Time and material sheets were prepared for this work.

As the sewer work neared completion, Burns began to enlarge the existing manhole No. 2 (to which the new sewer line would connect) and it was then discovered that one of Burns’ original well points had pierced one of the entering sewer lines. The parties dispute whether this caused the water problems experienced at the west end of the project.

About the middle of March 1973, several weeks before the job was finished, Richard Thompson, Burns’ executive vice-president, gave Inter-lake’s Eric Gross an accounting of the costs Burns had incurred to date and projections of its costs to complete the construction. Gross said that Interlake was very happy to receive them and that they were exactly what Interlake was looking for. Bitner acknowledged that he also received Burns’ estimates about March 20,1973, and knew that Burns was incurring costs of nearly $217,000. Even though he had the authority to do so, Bitner did not stop the work which continued for another month.

On May 4, 1973, Burns presented Interlake with an itemized statement in the amount of $217,647.82. Burns had previously submitted time and materials sheets for $41,299.91. Interlake agreed to pay the stated contract price of $68,117 plus an additional $6,085.77 for hard digging. Interlake refused to pay the costs of patching manhole No. 2, a second dewatering system, an extra manhole, trenching from manhole No. 2B to manhole No. 2A or from No. 2A to No. 2. Interlake’s position was that these costs were either unrelated to nonvirgin soil conditions or were incurred because of Burns’ own errors. Burns brought suit.

The trial court found that there was a mutual mistake as to the soil conditions, rescinded the contract and awarded Burns $130,406.25. This figure included all of Burns’ costs on its itemized bill except overhead and handling charges, less what Interlake had already paid Burns. The court also entered judgment in Interlake’s favor on counts I (fraud) and III (contract extras) of Burns’ complaint. This appeal follows.

I

To rescind a contract because of mutual mistake four elements must be proved by clear and positive proof: (1) that the mistake relate to a material feature of the contract; (2) that the mistake is of such grave consequence that enforcement of the contract would be unconscionable; (3) that the mistake occurred notwithstanding the exercise of reasonable care; and (4) that the other party can be placed in statu quo. (Santucci Construction Co. v. County of Cook (1974), 21 Ill. App. 3d 527, 531, 315 N.E.2d 565; People ex rel. Department of Public Works & Buildings v. South East National Bank (1971), 131 Ill. App. 2d 238, 241, 266 N.E.2d 778.) Interlake does not dispute that the condition of the subsoil was a material feature of the contract. In its first argument, however, Interlake maintains that there was no unconscionable situation and that Burns failed to exercise due care.

With respect to the element of unconscionability, Interlake contends that the parties contemplated and expressly provided for the existence of nonvirgin soil conditions. Based upon the contract documents and the statements of Burns’ own representative, Richard Thompson, Interlake argues that the parties agreed that the compensation for extra work necessitated by the presence of underground slag and “all non-virgin problems of whatever nature” would be requested on Burns’ written time and material sheets and would be paid according to a predetermined schedule of prices. It appears, however, that the parties abandoned the time and material concept as unrealistic in mid-January 1973 after they began to realize the complexity and magnitude of the problems that actually existed.

James Bitner, Interlake’s representative at the job site, testified that the subsoil conditions encountered were never contemplated by the contract, and the evidence amply supports the trial court’s finding that the contractual arrangement “had become totally irresponsive to the needs of the January, February and March work that was being done by the Burns Construction Company.” Bitner, who had the authority to approve additional payments, told both Burns and Armco to continue with their work and keep track of their costs because they would be paid. He assured them that everyone would be compensated. By its express words and its conduct, Interlake waived the requirement that all extra work was to be paid for on the basis of the written time and material sheets. (See Joray Mason Contractors, Inc. v. Four J’s Construction Corp. (1978), 61 Ill. App. 3d 410, 411, 378 N.E.2d 328.) Given the facts of this case we believe that the element of unconscionability was established by clear and positive proof. People ex rel. Department of Public Works & Buildings v. South East National Bank (1971), 131 Ill. App. 2d 238, 241, 266 N.E.2d 778; Wil-Fred’s v. Metropolitan Sanitary District (1978), 57 Ill. App. 3d 16, 372 N.E.2d 946.

Interlake contends further that Burns failed to exercise reasonable care. Interlake asks us to measure Burns’ degree of care as of November 25, 1972, the day the written contract was signed, and asserts that by that time Burns was “aware of non-virgin conditions by virtue of actually working on the job as well as what was openly discussed at the pre-job meeting.” The predicate for Interlake’s contention is that the parties were not contractually bound until November 25, 1972.

Burns’ bid, submitted on July 11, 1972, stated that “[i]t is understood that this proposal, upon acceptance thereof, will become a contract,

* ° In late August or early September 1972 Interlake accepted this bid without qualification. It was at that time, therefore, that the parties became contractually obligated. Even if we accept Interlake’s date of November 25,1972, it is apparent that most of the construction difficulties Burns eventually encountered had not yet been discovered.

As of November 25, Burns had resorted to some “hard digging” in locating underground utilities and installing well points. The cost of this digging was only a fraction of the costs Burns later incurred. More significantly, hard digging was only the first in a series of various excavating problems Burns faced. On November 25,1972, Burns did not have actual knowledge of any other subsoil conditions including loose cinders, sand, a broken sewer line, and the backing up of waste water discharges.

Interlake argues further that under paragraph 17 of the contract Burns was responsible for checking the job site and disclaimed any complaints about the conditions that existed. Neither of the authorities on which Interlake relies, however, involved any misleading representations by the owner or withholding of relevant information.

Paragraph 17 provides in part that “any drawings furnished by [Interlake] have been carefully examined and are clearly understood 999 and of the specifications heretofore attached.” Interlake, however, did not advise Burns that the subsoil might contain cinders, large chunks of iron and coal, buried railroad ties, abandoned concrete foundations and concrete-like slag. It also knew that there was a break in the existing sewer line between manhole No. 2 and manhole No. 1 and that periodically waste water would fill up and back out of manhole No. 2 at a rate in excess of 1500 gallons per minute. None of the bidders was apprised of these conditions. Despite the knowledge that these conditions might exist, Interlake specifically instructed Burns to bid the project on the assumption that the soil was virgin and provided Burns with soil test borings from an area that was several hundred feet removed from the intended route of the new sewer line. Interlake did not share with Burns any information that would have indicated the true nature of the subsoil. As the trial court stated, “Interlake certainly had much more information to divulge if they wanted a clean, trouble-free job to have been accomplished.” We believe that the mistake in this case occurred despite Burns’ exercise of reasonable care.

The fourth element required in rescinding a contract because of mutual mistake is that the other party (Interlake) can be placed in the status quo existing at the time the contract was made. Where, as here, however, a party has received a benefit and restoration of the status quo has been rendered impossible by reason of circumstances not the fault of the party seeking to rescind, restoration or an offer to restore need not be made. (12 Ill. L. & Prac. Contracts §349 (1955); Hakala v. Illinois Dodge City Corp. (1978), 64 Ill. App. 3d 114, 120, 380 N.E.2d 1177.) Interlake appears to agree that the impossibility of restoring the status quo does not, in and of itself, bar rescission and quantum meruit recovery — “Since Interlake cannot give back either the manhours or thé installed materials, Burns must alternatively be given the dollar value of what Interlake received on this project.”

Upon our examination of the record we do not believe that the trial court erred in rescinding Burns’ contract with Interlake on the grounds of mutual mistake.

II

In its second argument Interlake maintains that even if the contract was properly rescinded the trial court improperly applied a quantum meruit measure of damages. We agree.

In Edens View Realty & Investment, Inc. v. Heritage Enterprises, Inc. (1980), 87 Ill. App. 3d 480, 486, 408 N.E.2d 1069, the court defined the nature of quantum meruit recovery:

“In the law, ‘quantum meruit’ means literally ‘as much as he deserves.’ (Nardi & Co. v. Allabastro (1974), 20 Ill. App. 3d 323, 314 N.E.2d 367.) It is an expression that describes the extent of liability on a contract implied by law, and is predicated on the reasonable value of services performed. (Nardi.) The basis for recovery under this theory is receipt by a defendant from a plaintiff of a benefit which is unjust for him to retain without paying for it. Arthur Rubloff & Co. v. Drovers National Bank (1980), 80 Ill. App. 3d 867, 400 N.E.2d 614.”

The trial court awarded Burns $130,406.25, which included all of Burns’ costs on its itemized statement except overhead and handling charges, less what Interlake had already paid. This figure, however, did not take into account what amount of Burns’ costs were attributable to Burns’ own construction errors. The trial court apparently concluded that some of these costs were occasioned by Burns’ own negligence. The trial judge stated, “Certainly I am satisfied that Burns did some things in the completion of this job which complicated the water, soil condition.” Despite this conclusion the court did not determine how much of Burns’ costs, as reflected in its statement, was caused by its own negligence in failing to seal the Valley Mould and Iron line and in piercing an existing sewer line with one of its well points. The court merely deleted Burns’ handling and overhead charges and declined to add prejudgment interest.

We believe that the award of damages must be vacated and the cause remanded for a hearing to ascertain the value of Burns’ work. The value of that work should not include the costs, if any, necessitated by Burns’ own negligent acts or omissions.

For the foregoing reasons we affirm the trial court’s judgment rescinding the parties’ contract on the ground of mutual mistake, vacate the award of damages and remand the cause for a hearing on damages not inconsistent with the views expressed herein.

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

STAMOS, P. J., and HARTMAN, J., concur.


author: JUSTICE HARTMAN

text:
    ANTHONY R. MARTIN-TRIGONA, Plaintiff-Appellant, v. NICHOLAS GOULETAS et al., Defendants-Appellees.
    First District (2nd Division)
    No. 80-2300
    Opinion filed March 23, 1982.

      D. L. Bertelle, of Chicago, for appellant.
    William E. Rattner and Norman G. Plotkin, both of Levy and Erens, of Chicago, for appellees.
   JUSTICE HARTMAN

delivered the opinion of the court:

Plaintiff, Anthony Martin-Trigona (Trigona), as represented by a trustee in bankruptcy, appeals from an order entered pursuant to section 48(1) (d) of the Civil Practice Act (Ill. Rev. Stat. 1979, ch. 110, par. 48(l)(d)) finding his cause of action barred by a prior federal judgment and dismissing his amended complaint. The sole issue raised on appeal is whether section 24 of the Limitations Act (Ill. Rev. Stat. 1977, ch. 83, par. 24a) authorizes the filing of the same cause of action that was previously dismissed for want of prosecution by a Federal district court. For the reasons below, we affirm.

In the fall of 1976, Trígona entered into five real estate contracts with defendants, Bellevue Limited Partnership and Bellevue, Inc., allegedly agents of the other named defendants, Nicholas Gouletas, Evangeline Gouletas, Victor Goulet and American Invsco Realty (collectively Gouletas) to purchase five condominium units in a building located on East Bellevue Place, Chicago. In November 1976, Gouletas returned Trigona’s earnest money, stating that the above contracts had been terminated for cause. On November 26, 1976, Trígona, appearing pro se, filed a complaint against Gouletas and almost 50 other defendants, containing nine counts. Count VIII, the only part of the complaint relevant here, alleged that defendants breached the aforementioned, real estate contracts. That count was dismissed on the merits for want of prosecution on November 14, 1977; and, no appeal was taken therefrom. Under Rule 41(b) of the Federal Rules of Civil Procedure the order dismissing Trigona’s action operated as an adjudication on the merits. Harrelson v. United States (5th Cir. 1980), 613 F.2d 114, 115; LaSociete Anonymedes Parfums LeGalion v. Jean Patou, Inc. (2d Cir. 1974), 495 F.2d 1265, 1275; Walter E. Heller & Co. v. Cox (S.D. N.Y. 1972), 343 F. Supp. 519, 524.

On September 26, 1979, Trígona, appearing pro se, commenced an action in the circuit court of Cook County, alleging, inter alia, breach of the five real estate contracts against some of the named defendants in the prior Federal action. Although Trígona concedes that the instant action alleges the same cause of action asserted in his Federal complaint, he contends that the prior Federal adjudication does not operate as a bar under well-established principles of res judicata, because of his purported compliance with section 24 of the Limitations Act (Ill. Rev. Stat. 1977, ch. 83, par. 24a). We disagree.

The relevant part of that section provides that if an “8 8 8 ‘action is dismissed for want of prosecution then, whether or not the time limitation for bringing such action expires during the pendency of such suit, the plaintiff 080 may commence a new action within one year or within the remaining period of limitation, whichever is greater, after 8 8 8 the action is dismissed for want of prosecution.’ ” A plaintiff who qualifies under this provision has an absolute right to refile his complaint at anytime within “one year or remaining period of limitations.” (Aranda v. Hobart Manufacturing Corp. (1977), 66 Ill. 2d 616, 620, 363 N.E.2d 796; Franzese v. Trinko (1977), 66 Ill. 2d 136, 139-40, 361 N.E.2d 585.) Clearly, had Trigona’s original action been brought in State court, section 24 would have permitted the commencement of the instant action, since there would have been no adjudication on the merits under Supreme Court Rule 273 (Ill. Rev. Stat. 1977, ch. 110A, par. 273) barring a subsequent suit on the same issues. (O’Reilly v. Gerber (1981), 95 Ill. App. 3d 947, 950, 420 N.E.2d 425.) Rule 273 provides:

“Unless the order of dismissal or a statute of this State otherwise specifies, an involuntary dismissal of an action, other than a dismissal for lack of jurisdiction, for improper venue, or for failure to join an indispensable party, operates as an adjudication upon the merits.”

In Kutnick v. Grant (1976), 65 Ill. 2d 177, 180-81, 357 N.E.2d 480, the court found that section 24 was a statute which “otherwise specifies” within the meaning of Rule 273 in holding that a prior dismissal qualifying under section 24 does not operate as a final judgment on the merits. See O’Reilly v. Gerber (1981), 95 Ill. App. 3d 947, 950; Bruer v. Livingston County Board of Zoning Appeals (1978), 66 Ill. App. 3d 938, 940, 383 N.E.2d 1016.

In contrast, since Rule 41(b) of the Federal Rules of Civil Procedure provides no exemption for statutes which “otherwise specify,” a Federal dismissal for want of prosecution under that Rule operates as an adjudication on the merits. This distinction is fundamental, since under the doctrine of res judicata, a final judgment rendered by a court of competent jurisdiction on the merits is conclusive as to all rights of the parties and operates as an absolute bar to a subsequent action involving the same claim or cause of action. Towns v. Yellow Cab Co. (1978), 73 Ill. 2d 113, 122, 382 N.E.2d 1217; Raymond Construction Co. v. Midwest America Development, Inc. (1978), 67 Ill. App. 3d 332, 384 N.E.2d 907; Glick v. Ballentine Produce, Inc. (8th Cir. 1968), 397 F.2d 590, 593.

The cases Trígona cites in support of his position, Factor v. Carson, Pirie Scott & Co. (7th Cir. 1968), 393 F.2d 141, and Sachs v. Ohio Nat. Life Ins. Co. (7th Cir. 1942), 131 F.2d 134, are inapposite because both involve earlier dismissals for lack of jurisdiction, dismissals by definition not on the merits. A judgment on the merits under Rule 41(b) by Federal court with proper jurisdiction is not subject to collateral attack. Roth v. Northern Assurance Co. (1964), 32 Ill. 2d 40, 45, 203 N.E.2d 415; Kern v. Hettinger (2d Cir. 1962), 303 F.2d 333, 340; but see Aronson v. North Park College (1981), 94 Ill. App. 3d 211, 418 N.E.2d 776.

In view of the foregoing, we conclude that section 24 cannot be reasonably construed to apply to dismissals on the merits by Federal courts of competent jurisdiction.

Affirmed.

DOWNING and PERLIN, JJ., concur.


text:
    PALATINE SAVINGS AND LOAN ASSOCIATION, Plaintiff-Appellee, v. RALPH EDGAR et al., Defendants-Appellants.
    First District (2nd Division)
    No. 81-351
    Opinion filed March 23, 1982.
    Kenart M. Rahn, of Chicago, for appellants.
    Hinshaw, Culbertson, Moelmann, Hoban & Fuller, of Chicago (D. Kendall Griffith and Lawrence R. Moelmann, of counsel), for appellee.
   JUSTICE HARTMAN

delivered the opinion of the court:

Defendants appeal from an order of the circuit court denying their motion to vacate a judgment entered by confession, heard upon defendants’ special and limited appearance. The issues raised on appeal are whether: the judgment by confession was void for want of jurisdiction over defendants; and the trial court abused its discretion in denying defendants the opportunity to plead to the merits of this cause.

For reasons which follow, we reverse and remand.

On September 23, 1972, the National Bank & Trust Company of Sycamore, as trustee under trust No. 1367, executed a note for value received and mortgage payable to plaintiff for $652,400 at 8% interest, 9% if defaulted: Provisions authorizing confession of judgment were crossed out on the note. On the same date, the defendants, Ralph L. Edgar and Investment Development, Inc. executed a “PERSONAL UNDERTAKING on land trust loan,” containing a confession of judgment clause.

On September 2, 1974, plaintiff filed a complaint to foreclose the mortgage in the circuit court of De Kalb County, alleging that payment had not been made pursuant to the terms of the note. Named as defendants were the National Bank & Trust Company of Sycamore, as trustee under trust No. 1367, Ralph Edgar as beneficiary under the trust, Investment Development, Inc., and certain alleged mechanic’s liens claimants. The complaint prayed that the Sycamore Bank, as trustee, be found liable for the indebtedness and that the mortgaged property be sold to satisfy the balance due on the loan. The prayer for relief also sought a deficiency judgment if the proceeds of the sale were insufficient to satisfy the amounts due “against such of the defendants as may be found personally liable to pay the same.” The “Personal Undertaking” was not an exhibit, and was not incorporated in the foreclosure complaint, but was attached thereto.

Defendants were personally served with summonses in the foreclosure suit but did not appear or file an answer. An order of default was entered against them on June 30,1976. After the property encumbered by the mortgage was sold, a deficiency judgment was entered in De Kalb County against defendants on September 1, 1976, in the amount of $50,000. Defendants Edgar and Investment were not served with notice after the sale that a deficiency decree was being sought against them. On January 21,1980, the Second District Appellate Court (Palatine Savings & Loan Association v. National Bank & Trust Co. (1980), 80 Ill. App. 3d 437, 399 N.E.2d 1015) reversed an order denying defendants’ section 72 petition to vacate the deficiency judgment, finding that: since the “personal undertaking” was not an exhibit to the foreclosure complaint or incorporated by reference thereby, plaintiff’s complaint did not identify persons claimed to be personally liable for a deficiency judgment as required by sections 7 and 7.4 of the Illinois Mortgage and Foreclosure Act (Ill. Rev. Stat. 1977, ch. 95, pars. 23.6(3)(m), 23.6 — 4); the deficiency judgment against defendants thus exceeded relief asked for in the complaint; and, defendants were not notified thereof as required by Supreme Court Rule 105 (Ill. Rev. Stat. 1977, ch. 110A, par. 105). The reviewing court granted defendants leave to plead within such time as fixed by the trial court, and remanded for such other and further proceedings as might be appropriate.

Without pursuing the remandment order, plaintiff subsequently filed a complaint for confession of judgment in the circuit court of Cook County for the amount of $64,705.48. The complaint, inter alia, attached as exhibits the “Personal Undertaking,” note, mortgage, and the judicial report of sale. The complaint also attached as an exhibit an affidavit by an officer of plaintiff (William Heise) setting forth the circumstances of the foreclosure and deficiency judgment and its subsequent vacatur by the appellate court, and stating: “* * * However, the vacating of said deficiency judgment in no way effects [sic] the confession now sought * * *. Plaintiff has not sought to exercise the confession clause in the Personal Undertaking until the instant action commenced.” On April 15, 1980, judgment was confessed in Cook County against defendants in the amount of $64,705.48.

On June 23, 1980, plaintiff filed a summons to confirm judgment by confession, requiring defendants to file an answer or appearance. Defendants filed a special and limited appearance on August 6, 1980, a motion to vacate judgment by confession for want of jurisdiction and an affidavit in support of that motion. The motion stated that the defendants were “appearing specially and, for the sole purpose of attacking the jurisdiction of this court,” and sought a vacatur of the confession judgment because “the warrant of attorney was * * * legally insufficient to confer jurisdiction over defendants * e ” and * * * the judgment 0 0 0 [was therefore] null and void.” The affidavit, executed by Edgar, set forth, inter alia, that: the personal undertaking was a separate document from the note; the warrant of attorney was not clear and explicit, and the extent of liability not ascertainable from the face of the instrument in which the warrant was granted; any liquidated amount due and owing pursuant to the warrant was only ascertainable by reference to a document dehors the instrument; and, the authorization to confess judgment was deleted from the note.

On February 3, 1981, the matter came on for hearing on defendants’ special appearance and motion to vacate for want of jurisdiction. That motion was denied and an order was entered on that date confirming the judgment of confession of April 15, 1980, in favor of plaintiff against defendants in the amount of $63,705.48, from which defendants appeal.

It is apparent that precisely the same relief sought in the circuit court of Cook County by plaintiff could have been sought in the pending action in De Kalb County following remandment of the litigation by the Second District Appellate Court. The litigation concerned the same subject matter and parties to the action. The circuit court of Cook County was so advised and, under such circumstances, should have declined jurisdiction and transferred the cause to De Kalb County where pending litigation was awaiting further action by plaintiff following reversal on appeal. (People ex rel. East Side Levee & Sanitary District v. Madison County Levee & Sanitary District (1973), 54 Ill. 2d 442, 445, 298 N.E.2d 177; People ex rel. Lehman v. Lehman (1966), 34 Ill. 2d 286, 292, 215 N.E.2d 806; Zimmerman Equipment Co. v. F. R. Orr Grain Co. (1975), 29 Ill. App. 3d 921, 330 N.E.2d 881.) In Zimmerman plaintiff filed suit to collect on a note in Montgomery County and while that cause was pending obtained judgment by confession on the same note against defendants in Kankakee County. Defendants there filed a motion to vacate the confessed judgment in Kankakee County on jurisdictional grounds, and that relief was granted by the trial court and affirmed by the appellate court.

The circuit court of Cook County in the instant case should have declined jurisdiction in the confession action in the interests of the orderly and efficient administration of justice (People ex rel. East Side Levee & Sanitary District v. Madison County Levee & Sanitary District (1973), 54 Ill. 2d 442, 445), whether the motion to dismiss for want of jurisdiction was based upon section 48(1) (c) of the Civil Practice Act (Ill. Rev. Stat. 1979, ch. 110, par. 48(1) (c)) or not. People ex rel. Phillips Petroleum Co. v. Gitchoff (1976), 65 Ill. 2d 249, 255, 357 N.E.2d 534.

For the foregoing reasons, other issues raised in the appeal need not be considered, and the cause must be reversed and remanded with directions to vacate the confirmation order of February 3, 1981, and the confession of judgment order of April 15, 1980, and to transfer the cause to De Kalb County.

Reversed and remanded.

STAMOS, P. J., and PERLIN, J., concur.

       This amount was computed in the complaint as follows: principal of $541,836.17 less $491,836.17 rebate resulting in a balance of $50,000. Added to that is interest at 5% per annum from July 29,1976, of $11,705.48, and attorney’s fees of $3,000.


author: JUSTICE RIZZI

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ELVIS HINES, Defendant-Appellant.
    First District (3rd Division)
    No. 79-2485
    Opinion filed March 24, 1982.
    Cyriac D. Kappil, of Chicago (Richard E. Steck, of counsel), for appellant.
    Bernard Carey, State’s Attorney, of Chicago (Marcia B. Orr, Richard F. Burke, and Frank Castiglione, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE RIZZI

delivered the opinion of the court:

In a jury trial, defendant, Elvis Hines, was found guilty of deviate sexual assault and indecent liberties with a child and was sentenced to concurrent terms of 30 to 50 years. Defendant argues that (1) the State failed to prove the force or threat of force required to establish deviate sexual assault, and (2) the trial court erred in entering judgment and sentencing him for two offenses based on a single act. We affirm the judgment of conviction for deviate sexual assault and vacate the judgment of conviction for indecent liberties with a child.

On June 6,1977, at approximately 8:15 a.m., the victim, a 10-year-old boy, was walking to school in Chicago, Illinois. He noticed a parked car with an open door. Defendant, who was seated in the car, told the victim he was a policeman and instructed him to get in the car.

When the victim entered the car, he noticed handcuffs on the gearshift. Defendant said that he had heard that the victim was breaking windows and knocking over tombstones. Defendant then told the victim that he was taking him to the police station. The victim insisted that he had not done anything and started crying.

After driving a short distance, defendant stopped the car at a cemetery and told the victim to get out of the car. Defendant said that he was going to show the victim the tombstones he had knocked down. Pursuant to defendant’s directions, the victim walked into the cemetery. When inside the cemetery, defendant grabbed the victim and put his left arm on the victim’s left hip. As they were walking, defendant broke a three-foot twig off a tree.

When they arrived at a tombstone, defendant told the victim to pull down his pants. After the victim complied with defendant’s demand, defendant told him to lay down. Defendant applied vaseline to the victim’s anus and engaged in anal intercourse with the victim. After 10 to 15 minutes, defendant twisted the twig around the victim’s neck and hit him on the arms, legs and chest. The victim pretended he was dead, and defendant walked away. Later, the victim walked to his grandmother’s house and reported the incident.

Defendant was arrested on November 2,1977. On that date, defendant told a police officer that a few months earlier he had picked up a 10-year-old boy and had anal sex with him. Later that day, he indicated to an assistant State’s Attorney that this incident took place in a cemetery and that he used branches. Defendant was identified in a lineup by the victim.

At trial, defendant presented an alibi defense, introducing testimony that he was in West Virginia on the date of the occurrence. The jury found defendant guilty of deviate sexual assault and indecent liberties with a child, and the court entered judgment on both verdicts.

Defendant first contends that the State failed to prove the force or threat of force required to establish deviate sexual assault. He asserts that the State showed nothing more than an abuse of the victim’s immaturity, which is insufficient in itself to support such a conviction.

To prove a charge of deviate sexual assault, there must be evidence that defendant, by force or threat of force, compelled another to perform or submit to any act of deviate sexual conduct. (Ill. Rev. Stat. 1975, ch. 38, par. 11 — 3; People v. Cornes (1980), 80 Ill. App. 3d 166, 172, 399 N.E.2d 1346, 1350.) Therefore, force or threat of force is a material element of the offense. The nature of the force or threat of force necessary for proof of deviate sexual assault is the same as that required for rape. (People v. Cukojevic (1981), 103 Ill. App. 3d 711, 716; People v. Sweeney (1977), 46 Ill. App. 3d 858, 865, 361 N.E.2d 344, 349.) In rape cases, there is no fixed standard for determining the amount of force required, and each case must be considered on its own facts. (People v. Cukojevic (1981), 103 Ill. App. 3d 711, 716-17; People v. Walsh (1980), 80 Ill. App. 3d 754, 764, 400 N.E.2d 587, 594.) In weighing the evidence of force, it is proper to consider the disparity in size and strength of the parties and the place and conditions under which the incident took place. (People v. Walsh (1980), 80 Ill. App. 3d 754, 764, 400 N.E.2d 587, 594-95.) Useless or foolhardy acts of resistance are not necessary. People v. Walsh (1980), 80 Ill. App. 3d 754, 764, 400 N.E.2d 587, 594; People v. Jones (1976), 40 Ill. App. 3d 850, 856, 353 N.E.2d 375, 382; see People v. Green (1976), 38 Ill. App. 3d 289, 292, 347 N.E.2d 224, 227.

In the present case, we believe that there is sufficient evidence to establish force or threat of force. Contrary to defendant’s assertion, the differences in size and age of defendant and the victim were not the only factors present. Here, the victim was a young boy who was led to the scene of the incident based on defendant’s representation that he was a policeman. Defendant grabbed the victim when they entered the cemetery. As they were walking, defendant broke off a three-foot twig and carried it to the scene of the incident. The victim followed defendant’s directions, and they arrived at a tombstone where the act of anal intercourse occurred. Under the circumstances, we believe that the requisite force or threat of force was present, especially in view of defendant’s overall conduct coupled with his open possession of a three-foot twig in the presence of a 10-year-old boy. The fact that defendant later choked the victim with the twig manifests the reality of the threat posed by defendant’s possession of the twig. Furthermore, in this remote setting, any attempt by the victim to resist would have been both futile and foolhardy. We conclude that the State proved force or threat of force, and therefore, defendant’s conviction for deviate sexual assault was proper.

Defendant next contends that the trial court erred in entering judgment and sentencing him for both deviate sexual assault and indecent liberties with a child because both convictions arose from a single act. We agree. Where two counts of an information are founded on a single act, there can only be one conviction. (People v. Lilly (1974), 56 Ill. 2d 493, 495, 309 N.E.2d 1, 2; see People v. Sherman (1980), 87 Ill. App. 3d 937, 941, 409 N.E.2d 486, 490; People v. Slavin (1978), 66 Ill. App. 3d 525, 532, 383 N.E.2d 1303, 1309.) Here, both counts of the information specified that they were based on the single act of anal intercourse. (See People v. Smith (1976), 44 Ill. App. 3d 663, 664, 358 N.E.2d 736, 736.) The State argues that two separate acts were proved by the evidence, i.e., anal intercourse and the placing of the vaseline in the victim’s anus. The State relies on People v. Schultz (1979), 73 Ill. App. 3d 379, 387, 392 N.E.2d 322, 328, where the court upheld two convictions for indecent liberties arising out of the same incident. However, in Schultz, one count charging indecent liberties was designated as being based on “oral copulation,” while the other count charging indecent liberties was designated as being based on “finger in vagina.” In the present case, both counts were designated as being based on the single act of “anal intercourse,” and therefore, both convictions cannot stand. (People v. Smith (1976), 44 Ill. App. 3d 663, 664, 358 N.E.2d 736; People v. Smith (1980), 86 Ill. App. 3d 302, 305-06, 408 N.E.2d 101, 104; see also People v. Austin (1981), 93 Ill. App. 3d 495, 497, 417 N.E.2d 671, 673.) Accordingly, we vacate the conviction for indecent liberties with a child.

Defendant further argues that if his conviction for indecent liberties is vacated, then the case should be remanded for resentencing on the deviate sexual assault conviction. However, where there is no indication that a vacated conviction was considered in sentencing defendant for a second conviction, it is not necessary to remand the case for resentencing. (People v. Wilson (1981), 93 Ill. App. 3d 395, 397, 417 N.E.2d 146, 147.) Here, the trial court sentenced defendant separately on each conviction, and there is no indication in the record that the trial court considered the indecent liberties conviction when imposing sentence on the deviate sexual assault conviction. Therefore, we do not find it necessary to remand for resentencing on the deviate sexual assault conviction. See People v. Wilson, (1981), 93 Ill. App. 3d 395, 397, 417 N.E.2d 146, 147; People v. Malaszenko (1979), 76 Ill. App. 3d 1, 8, 393 N.E.2d 1350, 1355; People v. Kosanovich (1979), 69 Ill. App. 3d 748, 750, 387 N.E.2d 1061, 1063.

Accordingly, the judgment of conviction for deviate sexual assault is affirmed, and the judgment of conviction for indecent liberties with a child is vacated.

Affirmed in part, vacated in part.

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


author: JUSTICE McNAMARA

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. HENRY BODEMAN, Defendant-Appellant.
    First District (3rd Division)
    No. 80-1716
    Opinion filed March 24, 1982.

      Frederick F. Cohn, of Chicago, for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat and Casimir J. Bartnik, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE McNAMARA

delivered the opinion of the court:

A jury found defendant, Henry Bodeman, guilty of armed violence and of two counts of aggravated battery. The court sentenced him to terms of six years for armed violence and three years for each count of aggravated battery, all the sentences to run concurrently. On appeal defendant contends that prejudicial hearsay statements were improperly admitted into evidence; that the trial court permitted the State to impeach defense witnesses with prior inconsistent statements and then failed to advise the jury that these statements could not be considered substantively; that the trial court improperly limited defense counsel’s cross-examination of the complaining witness; that the prosecutor made improper comments during closing argument; that there is no valid count upon which the conviction for armed violence can stand; that defendant could not be convicted for both armed violence and aggravated battery since both offenses were based upon the same act; that the armed violence statute is unconstitutional; and that the evidence adduced was insufficient to support the convictions for aggravated battery.

Bernd Harrer, Louis Pocasangre, Sergio Cortez, and Alfred McCalla, all friends, testified for the State that they arrived at a tavern at about 1:30 a.m. on December 16, 1978. Shortly after 4 a.m., Mr. Hall, employed by the tavern as a bouncer, announced that the tavern was closing. As they were leaving, the four men exchanged insults with defendant, also a patron, and then entered Pocasangre’s automobile which was parked outside. Harrer and Cortez sat in the back of the vehicle, while McCalla sat in front next to Pocasangre. Cortez returned to the tavern to use the washroom and was accompanied by McCalla who was refused service at the bar. Defendant and Hall followed McCalla to the vehicle. Hall stood at the driver’s side while defendant knocked on the passenger’s side window with a gun. Both men were yelling threats. When Pocasangre lowered the power-operated window, defendant tried to hit McCalla in the face with a gun. The gun fired, striking Pocasangre in the hand.

Dana White and Erol Sengellu, the tavern bartenders, testified for defendant that a gun found in a tavern drawer had been given to White by defendant after he arrived and that at closing defendant left without the gun and did not return. Both witnesses stated it was not the gun used in the shooting.

We first consider defendant’s contention that several hearsay statements were improperly admitted into evidence. During cross-examination, White and Sengellu denied telling police officers that the gun in the tavern drawer was the one used in the shooting. A police officer testified that White advised him that the gun in the drawer was the one used in the shooting. Since defendant offered no objection to any of the foregoing questions or answers, he has waived his right to claim error on review. People v. Trefonas (1956), 9 Ill. 2d 92, 136 N.E.2d 817.

The testimony of the police officers that White had advised them that defendant left the bar for a short time and then returned with the gun and asked the bartenders to hide it was not inadmissible hearsay. The statement was inconsistent with White’s prior testimony and was admissible for impeachment purposes. It was error to allow a police officer to testify that White told him it was normal procedure, when police officers were coming, for patrons to give their weapons to the bartenders. This was hearsay, but its admission was not prejudicial to defendant. Defendant also argues that in his closing argument the prosecutor relied on these statements by the police officers for substantive rather than impeachment purposes. We have read the closing argument carefully, and it appears that the prosecutor’s comments were properly made for the purpose of attacking the credibility of the bartenders. The prosecutor’s reference to the tavern’s custom of having patrons turn in weapons was error, but was not prejudicial to defendant.

Defendant further maintains that the trial court erred by failing sua sponte to instruct the jury specifically that these prior inconsistent statements could not be considered as substantive evidence. He correctly asserts that Illinois Pattern Instructions, Criminal, No. 3.11 (1968), given for that purpose, was insufficient. (People v. Riley (1978), 63 Ill. App. 3d 176, 379 N.E.2d 746.) Defendant, however, failed to either object to the instruction or to tender a more appropriate one. The general rule is that failure to object at trial to an error in jury instructions waives the issue on appeal. People v. Roberts (1979), 75 Ill. 2d 1, 387 N.E.2d 331.

An exception to the general rule is provided where there were “substantial defects” in the instructions “if the interests of justice require.” (Ill. Rev. Stat. 1979, ch. 110A, par. 451(c).) This exception has been narrowly construed to apply only to the correction of grave errors (People v. Jenkins (1977), 69 Ill. 2d 61, 370 N.E.2d 532), or where the case was so close factually that fundamental fairness required the jury to be instructed properly. (People v. Joyner (1972), 50 Ill. 2d 302, 278 N.E.2d 756.) Thus reversal has been required for failure to instruct the jury where a prior inconsistent statement was extraordinarily long and repetitious and where the conviction was based upon such statement (People v. Paradise (1964), 30 Ill. 2d 381,196 N.E.2d 689; People v. Fields (1975), 31 Ill. App. 3d 458, 334 N.E.2d 752; People v. Bacon (1971), 2 Ill. App. 3d 324, 276 N.E.2d 782), and in the particularly damaging situation where an incriminating statement was made by a co-defendant. (People v. Tate (1964), 30 Ill. 2d 400, 197 N.E.2d 26; People v. Tunstall (1959), 17 Ill. 2d 160, 161 N.E.2d 300.) In the present case there is no reason to depart from the general rule. The statements were not long and repetitious, and this is not a close case factually.

Defendant also maintains that he was denied a fair trial when the police officer was permitted to testify that Hall had identified defendant as the person who did the shooting. We reject the State’s position that the statement was offered merely to show why the police officers conducted their investigation as they did. When Hall’s testimony is considered as a whole it is apparent that his identification of defendant as the person who did the shooting was offered for its truth, and its admission was error. Nevertheless, since three other eyewitnesses positively identified defendant, the hearsay testimony was merely cumulative and its admission does not require reversal. People v. Canale (1972), 52 Ill. 2d 107, 285 N.E.2d 133.

Defendant also contends that the trial court committed reversible error when it denied him the right to confront a State’s witness with a prior inconsistent statement. After Pocasangre testified that he did not recall telling anyone that the man who shot him was bald, defense counsel sought to impeach him by asking if he recalled talking to defense counsel’s investigator. The basis of the State’s objection and the court’s reason for sustaining the objection was that a negative answer would require the calling of the investigator as a witness. In exchange for the investigator’s exemption from a witness exclusion order, defense counsel had assured the court that the investigator would not testify.

Exclusion of witnesses from the courtroom is a time honored practice. Nevertheless, it is within the sound discretion of the trial court to permit a witness to testify even though he has violated an order excluding witnesses. (People v. Farnsley (1973), 53 Ill. 2d 537, 293 N.E.2d 600.) The exercise of that discretion will not be disturbed on review unless it can be shown that the party offering the witness was deprived of material testimony without his fault. People v. Bridgeforth (1972), 51 Ill. 2d 52, 281 N.E.2d 617.

While defendant made no offer of proof as to what the investigator’s testimony would have been, even if we were to assume that he would have testified that Pocasangre described his assailant as bald, defendant was not prejudiced by the exclusion of that testimony. Pocasangre did not describe or identify defendant at trial, and the prior statement would not have impeached Pocasangre. Nor could the statement serve to impeach the testimony of the three eyewitnesses who identified defendant as the assailant.

We next consider defendant’s contention that various comments of the prosecutor during closing argument deprived him of a fair trial. Defendant argues that the prosecutor made improper references to his failure to testify, and that the prosecutor improperly accused defense counsel of conducting an odious cross-examination and of presenting a sham defense.

A prosecutor has wide latitude during closing argument and the trial court’s determination as to the propriety of the argument will not be overturned on appeal absent a clear abuse of discretion. (People v. Weatherspoon (1978), 63 Ill. App. 3d 315, 379 N.E.2d 847.) Even where prosecutorial comments are improper the defendant must show a reasonable possibility that the questionable language, in light of all the evidence, was a material factor in his conviction. (People v. Nicholls (1969), 42 Ill. 2d 91, 245 N.E.2d 771; People v. Shorter (1978), 59 Ill. App. 3d 468, 375 N.E.2d 513.) The appropriate test for determining whether a prosecutorial remark violated defendant’s right to remain silent is whether the reference was intended or calculated to direct the attention of the jury to defendant’s failure to testify. People v. Mills (1968), 40 Ill. 2d 4, 237 N.E.2d 697.

In the present case, defendant complains that the prosecutor, in stating that the three eyewitnesses testified and were cross-examined, was commenting on defendant’s failure to testify. The prosecutor actually was responding to defense counsel’s remark that the three witnesses had something to hide because they refused to speak to him or his investigator prior to the trial. Defendant complains of another similar remark by the prosecutor that McCalla took the stand to be questioned and cross-examined. Shortly thereafter, the prosecutor asked, “Where is Mr. Hall?” Apparently he was drawing the jury’s attention to defendant’s failure to call a key witness. Defendant was not the only one to whom the comment could have referred. (People v. Mills.) Defendant also complains of the prosecutor’s frequent use of the terms “uncontradicted” and “undisputed,” with regard to certain factual evidence. A mere reference to the uncontradicted nature of the State’s case is permissible, however, even where the only person who could have contradicted the State’s case was defendant (People v. Mills), so long as it was not intended or calculated to direct the jury’s attention to defendant’s failure to testify. (People v. Connors (1980), 82 Ill. App. 3d 312, 402 N.E.2d 773.) We do not believe that these comments were so intended.

The prosecutor’s characterization of trial counsel’s manner of cross-examination was merely a response to the defense statements that the State’s witnesses had refused to talk to defense counsel. The characterization was not so inflammatory as to prejudice the jury. Similarly, the prosecutor’s comment about defense counsel’s trial tactics, unlike the lengthy attack made by the prosecutor in People v. Polenik (1950), 407 Ill. 337, 95 N.E.2d 414, was not so derogatory as to antagonize the jury against defendant and his attorney. In sum, the prosecutor’s closing argument did not deprive defendant of a fair trial.

We next consider defendant’s attacks on his conviction for armed violence. Relying on the trial court decision in People v. Haron (1981), 85 Ill. 2d 261, 422 N.E.2d 627, he maintains that the armed violence statute is unconstitutional as overreaching and punishing too severely acts not justifying such punishment. Although the supreme court in Harón found it unnecessary to reach this issue on review, this court recently has upheld the constitutionality of the penalty provisions of the armed violence statute. (People v. Pace (1981), 100 Ill. App. 3d 213, 426 N.E.2d 983; People v. Lynom (1981), 97 Ill. App. 3d 1113, 423 N.E.2d 1281.) We find no reason to depart from that conclusion.

Defendant also argues that the armed violence conviction is invalid because the complaint failed to allege the essential elements of the crime. Armed violence is defined as the commission of any felony while armed with a dangerous weapon. (Ill. Rev. Stat. 1979, ch. 38, par. 33A — 2.) Count 5 charges that defendant, while armed with a dangerous weapon, committed a battery on Pocasangre and intentionally caused him great bodily harm. The commission of a simple battery while armed with a dangerous weapon would not constitute armed violence because battery is a misdemeanor, but the additional charge that defendant thereby caused great bodily harm serves to charge defendant with aggravated battery which is a felony. Count 5 adequately advised defendant of the nature of the charge so that he could prepare a defense and was sufficiently specific to serve as a bar to future prosecution for the same conduct. People v. Harvey (1973), 53 Ill. 2d 585, 294 N.E.2d 269.

We next address defendant’s contention that he was improperly sentenced for both aggravated battery and armed violence since both convictions arose from the same act. He correctly asserts that where a defendant is charged with multiple offenses arising from a single act he can be convicted and sentenced only on the more serious offense. (People v. King (1977), 66 Ill. 2d 551, 363 N.E.2d 838, cert. denied (1977), 434 U.S. 894, 54 L. Ed. 2d 181, 98 S. Ct. 273.) In the present case the single act of shooting Pocasangre in the hand was the basis of both the armed violence and the aggravated battery convictions. (People v. Johnson (1981), 101 Ill. App. 3d 1060, 428 N.E.2d 1133.) Thus both convictions cannot stand, and we vacate the convictions for aggravated battery. In so holding, we recognize that this court has held that multiple convictions are proper for armed violence and the underlying offense when the latter may be committed without possession of a dangerous weapon. (E.g., People v. Best (1981), 97 Ill. App. 3d 1083, 424 N.E.2d 29.) We adhere, however, to our holding in People v. Johnson.

We next consider defendant’s contention that the evidence was insufficient to sustain a conviction for either count of aggravated battery because the State failed to prove that he intentionally fired the shot which struck Pocasangre. Although we have vacated the aggravated battery convictions, this issue must be resolved since the armed violence conviction was based on the commission of aggravated battery. While intent is an essential element in a conviction for aggravated battery, intent may be inferred from the acts and circumstances surrounding defendant’s conduct. (People v. Barrington (1973), 15 Ill. App. 3d 445, 304 N.E.2d 525.) In the present case witnesses for the State testified to words and actions by defendant from which the jury could have concluded that defendant had the requisite mental state.

We need not address defendant’s contention that the evidence was insufficient to support the count of aggravated battery which was based on permanent disfigurement. We have vacated the convictions for aggravated battery and the trial court’s finding of great bodily harm was sufficient to support a conviction for armed violence.

For the reasons stated, the judgment of the circuit court of Cook County as to armed violence is affirmed. The judgments as to aggravated battery are vacated.

Affirmed in part, vacated in part.

WHITE, P. J., and RIZZI, J., concur.


text:
    ELECTRIC SUPPLY CORPORATION, Plaintiff-Appellee, v. MARTIN OSHER, Defendant-Appellant.
    First District (3rd Division)
    No. 81-1389
    Opinion filed March 24, 1982.

      Robert M. Birndorf, of Law Offices of BERYL A. BIRNDORF, of Chicago, for appellant.
    Stone, Pogrund & Korey, of Chicago (James P. Ziegler, of counsel), for appellee.
   JUSTICE McNAMARA

delivered the opinion of the court:

Defendant, Martin Osher, appeals from a judgment for $9,293.43 entered in favor of plaintiff, Electric Supply Corporation, after a trial without a jury. Defendant, sued as a personal guarantor of a trust receipt, maintained in the trial court that his liability had been discharged by payment of $10,116 on September 5, 1978, and that plaintiff misapplied this payment to an antecedent debt of the principal, Knox Electrical Construction Company. On appeal defendant contends that the court erred in admitting evidence in violation of the best evidence rule, and that the trial court erroneously applied the equitable principle of application of payments.

Defendant is president of Knox, which received supplies from plaintiff in connection with construction of a project known as Lincoln Towers. During the course of the project, Knox, through defendant, requested waivers of lien from plaintiff in a specified monetary amount. In exchange for the waiver, Knox would execute a trust receipt in a corresponding amount for payment of supplies. Defendant would then present the waiver to Lincoln Towers, which would make a payout to defendant, and defendant would pay plaintiff in discharge of the trust receipt.

Plaintiff brought this action against defendant as guarantor of a trust receipt executed on September 5,1978, for the balance due in the amount of $9,293.43. Defendant set forth in his answer an affirmative defense that the obligation had been discharged by payment of $10,116 on that same day. On the morning of trial, plaintiff was granted leave to file a reply to the affirmative defense. The reply was a general denial.

In his opening statement, plaintiff’s counsel stated that he was going to surprise defense counsel and, for the first time, alluded to the existence of a prior trust receipt in the amount of $10,116. Examining defendant as an adverse witness, plaintiff showed defendant the unexecuted copies of the earlier trust receipt and waiver and elicited from him a denial that he had seen or executed them. Defendant also stated that he had not guaranteed any trust receipt other than the one of September 5. Plaintiff’s witnesses then testified that when defendant requested a waiver of lien on September 5, he was told that he first must pay the antecedent debt of a trust receipt executed on August 29, 1978, in the amount of $10,116. No evidence was offered that this earlier trust receipt had been personally guaranteed.

Over defendant’s best evidence objection, unexecuted copies of the earlier receipt and waiver of lien were received in evidence. Defendant unsuccessfully argued that no notice had been given of plaintiff’s intention to use these documents, that no effort had been made to secure the originals, that there was an improper foundation for their introduction in evidence, and that they were hearsay. Plaintiff countered that defendant’s denial at trial of the existence of the originals excused the requirement of requesting production at trial and that, in any event, the requirement had been met by a discovery request made in a chancery proceeding in which defendant had been named but from which defendant had been dismissed. Plaintiff agreed that the original waiver of lien would be in Lincoln Towers’ possession.

Plaintiff’s witnesses also testified that defendant agreed to pay off the prior trust receipt. They stated that defendant went to plaintiff’s office on September 5, 1978, and handed an employee a check for $10,116. She voided the August trust receipt and handed it to defendant. He then executed and guaranteed the subject trust receipt, received a waiver, and left the office.

Defendant testified that on September 5 he made payment by check in the amount of $10,116 to plaintiff’s employee. Moments later, defendant signed and personally guaranteed the subject trust receipt. In exchange, plaintiff’s employee signed a waiver of lien and gave it to defendant. Defendant directed the employee to apply the payment to the subject trust receipt. That same day, defendant presented the waiver to Lincoln Towers and received a payment of $31,000 which he deposited in the bank. Defendant stated that he “covered” the $10,116 check that same day.

The best evidence rule requires that the original writing be introduced into evidence unless the original is shown to be lost, destroyed or unavailable. (People v. Baptist (1979), 76 Ill. 2d 19, 389 N.E.2d 1200.) In such a case, the proponent must prove the prior existence of the original, its unavailability, the authenticity of the substitute and the proponent’s own diligence in attempting to procure the original. (Gillson v. Gulf, Mobile & Ohio R.R. Co. (1969), 42 Ill. 2d 193, 246 N.E.2d 269.) The sufficiency of the evidence showing that it is not within the offering party’s power to produce the original depends upon the circumstances of each case and is, to some degree, within the discretion of the trial court. (People v. Baptist.) Detention of the original by the opposing party is a basis for an unavailability finding provided that the proponent shows the opponent’s possession or control of the original, transmittal of notice to the opponent that the particular document will be needed at trial, and the opponent’s refusal or failure to produce the original at trial. (4 Wigmore, Evidence §1199, at 462 (Chadbourn rev. 1972).) Where the original is in the hands of a third party within the court’s subpoena powers, a subpoena duces tecum should be served on the party. See McCormick on Evidence §202, at 414 (1954); 4 Wigmore, Evidence §1212(3)(a)(3), at 487 (Chadbourn rev. 1972); cf. McDonald v. Erbes (1907), 231 Ill. 295.

We believe that the trial court erred in admitting unexecuted copies of the trust receipt and waiver of August 29 into evidence. The original waiver of lien, if it existed, would be in the hands of Lincoln Towers. Plaintiff apparently made no attempt to recover the original from this third party. Since plaintiff totally failed to meet its burden of showing unavailability of the waiver of lien, the court abused its discretion in accepting the unexecuted copy of the purported original.

Unlike the waiver of lien, the original trust receipt, if it existed, would have been in defendant’s possession. Nevertheless, we do not believe that under these circumstances a request to produce the original is excused because defendant denied the execution and existence of the August trust receipt at trial. Where the pleadings and the nature of the proceedings place a party on notice that a particular document in his possession will be the subject of proof at trial, and other evidence corroborates the existence of the original, secondary evidence of the terms of the document is admissible. (612 North Michigan Avenue Building Corp. v. Factsystem, Inc. (1977), 54 Ill. App. 3d 749, 370 N.E.2d 236; Soft Water Service, Inc. v. M. Suson Enterprises, Inc. (1976), 39 Ill. App. 3d 1035, 351 N.E.2d 264.) In the present case, however, the existence of the trust receipt and waiver was asserted for the first time at the trial. Moreover, the only evidence tending to prove the existence of an original, executed trust receipt was the testimony of plaintiff’s witnesses describing its execution and terms, testimony which itself falls within the best evidence rule. (See E. Cleary and M. Graham, Handbook of Illinois Evidence §1002.1, at 510 (3d ed. 1979).) In this regard, plaintiff’s failure to attempt to recover the original waiver of lien from the third parties renders the secondary evidence of the trust receipt defective. Proof of the existence of the waiver in the amount of $10,116 would have been highly probative of the existence of an executed trust receipt in that amount, since the record shows the parties’ practice was to execute the waiver in exchange for the trust receipt. Nor do we believe that a discovery request of defendant in a prior action from which defendant was promptly dismissed obviated the need for a diligent search for the originals in the present action.

Finally, we disagree with plaintiff’s contention that these exhibits were merely collateral to the issues in this case. A major issue is defendant’s direction to plaintiff’s agent when making payment. Evidence that the payment of $10,116 corresponds precisely to a prior indebtedness is probative of that direction.

We also must address another contention of defendant in which, relying on Alexander Lumber Co. v. Aetna Accident & Liability Co. (1921), 296 Ill. 500, 129 N.E. 871, he maintains that the trial court erroneously applied the equitable principle of application of payments.

A debtor has the right to direct the creditor to apply payment to any combination of outstanding debts he chooses. (15 Williston on Contracts §1795, at 388-92 (3d ed. 1972).) Where the debtor fails to direct payment the creditor may apply the money as he chooses, unless special circumstances exist giving rise to a special equity in the funds in favor of a surety or guarantor. (Alexander Lumber Co. v. Aetna Accident & Liability Co.) In Alexander, the debtor silently made payment with money obtained from a performance of a contract which had been guaranteed by a surety. The creditor applied the payment to an antecedent debt of the debtor. When the debtor defaulted on the subsequent debt, the creditor attempted to hold the surety liable. The court held that the surety possessed a special equity in the funds obtained vis-a-vis the contract it had guaranteed and that, despite the debtor’s silence, the creditor had a duty to apply such funds so as to discharge the surety’s obligation. The court further stated that the creditor’s lack of knowledge of the source of the funds was not dispositive since the creditor could have easily learned the source through inquiry and since, under the facts, the creditor should have known the source.

While we agree with defendant that Alexander has application to the present case, we do not believe that its holding mandates entry of judgment for defendant at this time. The principles enunciated in Alexander turn on the equitable consideration that a guarantor’s rights should not be defeated by a creditor, rather than on a technicality such as the precise moment of payment. We therefore hold that a guarantor’s special equity in the funds obtained vis-a-vis a contract which he guarantees arises at the inception of the guarantee and may be imposed on any such funds not yet applied by the creditor.

Applying these principles, the trial court on remand should determine whether defendant agreed, as plaintiff maintains, to apply payment to an antecedent debt and, if he did not, whether plaintiff should have known that the waiver of September 5 was to be the source of the payment of $10,116 on that day. In the former case, under Alexander defendant could not complain that the creditor had defeated his rights as guarantor, and in the latter case Alexander would require that plaintiff apply the $10,116 payment to discharge defendant’s personal liability on the trust receipt of September 5, if the funds are traceable to the waiver of September 5.

For the foregoing reasons, the judgment of the circuit court of Cook County is reversed and the cause is remanded for a new trial.

Reversed and remanded.

WHITE, P. J., and RIZZI, J„ concur.