text:
    BURKS DRYWALL, INC., Plaintiff-Appellee, v. WASHINGTON BANK AND TRUST COMPANY, Defendant-Appellant.-REDMAN PLUMBING, Plaintiff-Appellee, v. WASHINGTON BANK AND TRUST COMPANY, Defendant-Appellant.
    Second District
    Nos. 82—150, 82—153 cons.
    Opinion filed November 22, 1982.

      James E. Saloga, of Nadelhoffer, Hennessy, Dommermuth & Brestal, of Naperville, for appellant.
    David J. Kramer, of Yorkville, for appellees.
   JUSTICE NASH

delivered the opinion of the court:

Defendant, Washington Bank and Trust Company (Bank), appeals from orders of the circuit court of Du Page County, entered in separate actions, which denied the Bank’s motions to dismiss plaintiffs’ complaints and entered summary judgments in favor of the plaintiffs, Burks Drywall, Inc. (Burks), and Redman Plumbing (Redman), respectively. On the motion of all parties, we consolidated the two causes on appeal.

Burks and Redman each filed a three-count complaint against the Bank seeking damages pursuant to section 3 — 419 of the Uniform Commercial Code (UCC) (Ill. Rev. Stat, 1979, ch. 26, par. 3 — 419) for the Bank’s alleged conversion of certain checks of which Burks or Redman were co-payees and which were presented and cashed by the Bank over the forged endorsement of plaintiffs. Burks sought recovery for three checks made payable jointly to Burks and McNeely, Inc. (McNeely), a nonparty, having a total face value of $9,334. Similarly, Redman sought recovery for three other checks, two of which were payable jointly to Redman and McNeely, and one payable solely to Redman, having a total face value of $14,000. The Bank answered both complaints; however, upon receipt of plaintiffs’ motions for summary judgment, and without withdrawing its answers, the Bank filed motions to dismiss plaintiffs’ complaints pursuant to section 45 of the Civil Practice Act (Ill. Rev. Stat. 1979, ch. 110, par. 45) for alleged failure to state a cause of action due to insufficient factual allegations of ownership of the checks by plaintiffs. These motions were heard (apparently without objection) together with plaintiffs’ summary judgment motions. The trial court denied the Bank’s motions to dismiss and granted summary judgment for each plaintiff.

On appeal the Bank contends: (1) the trial court erred in denying its motions to dismiss the complaints; (2) the affidavits filed in support of plaintiffs’ motions for summary judgment do not conform to Supreme Court Rule 191 (73 Ill. 2d R. 191); and (3) that the entry of summary judgment was erroneous.

SECTION 45 MOTION

Each count of the two complaints dealt with a single check but contained substantially identical allegations. Each count alleged, inter alia, the identity of plaintiff and defendant; that plaintiff was one of the named payees of a specific check drawn on Reserve Savings & Loan Association of Elmhurst, Illinois (Reserve); that plaintiff was the lawful owner of the check in that the check was to be transferred from Reserve to plaintiff as payment for labor supplied and materials incorporated into certain real estate on behalf of McNeely; that McNeely was a customer and depositor of the Bank; that neither the plaintiff nor its agents endorsed or authorized the endorsement of the check at any time; that McNeely, through its agents, forged the endorsement of plaintiff and deposited the checks in McNeely’s account at the Bank; that the plaintiff’s purported endorsement on the check is a forgery; and, that defendant has refused to pay plaintiff for the amount of the check. Copies of the checks and their stub receipts were attached as exhibits to the complaints.

The Bank contends that the complaints fail to state a cause of action under section 3 — 419 of the UCC (Ill. Rev. Stat. 1979, ch. 26, par. 3 — 419) in that they fail to allege delivery of the checks to plaintiffs; sufficient facts to indicate ownership; and, the existence of any obligation between Reserve and plaintiffs.

Initially, plaintiffs contend that the Bank has waived its rights to object to the pleadings since it had answered the complaints. Generally, where a complaint substantially although imperfectly alleges a cause of action, the defendant waives any defect by answering it without objection. (Pathman Construction Co. v. Hi-Way Electric Co. (1978), 65 Ill. App. 3d 480, 486, 382 N.E.2d 453, 458; County of Winnebago v. Willsey (1970), 122 Ill. App. 2d 149, 153-54, 258 N.E.2d 138, 140.) The only exception to this rule is where the complaint wholly fails to state a cause of action. (Ording v. Springer (1980), 88 Ill. App. 3d 243, 245, 410 N.E.2d 428, 430; Pathman Construction Co. v. Hi-Way Electric Co. (1978), 65 Ill. App. 3d 480, 486, 382 N.E.2d 453, 458.) While the defendant’s objections to the pleadings do not fall within this limited exception, the plaintiffs’ failure to raise in the trial court the issue of defendant’s waiver of objections to the pleadings precludes them from raising such issue on appeal. (Spencer v. Community Hospital (1980), 87 Ill. App. 3d 214, 217-18, 408 N.E.2d 981, 985.) Thus, we will address the merits of defendant’s motions to dismiss.

In considering whether plaintiffs’ complaints state a cause of action under section 3 — 419 of the UCC we note that for the purposes of ruling on a motion to dismiss all well-pleaded facts contained in a complaint must be taken as true and all inferences therefrom must be drawn in favor of the nonmovant. (Album Graphics, Inc. v. Beatrice Foods Co. (1980), 87 Ill. App. 3d 338, 344, 408 N.E.2d 1041, 1046; McCauley v. Chicago Board of Education (1978), 66 Ill. App. 3d 676, 677, 384 N.E.2d 100, 101, appeal denied (1979), 74 Ill. 2d 586.) Additionally, as exhibits become part of a complaint for all purposes, a motion to dismiss also admits the facts contained in such exhibits. (Ill. Rev. Stat. 1979, ch. 110, par. 36; Illinois Bell Telephone Co. v. Dynaweld, Inc. (1979), 70 Ill. App. 3d 387, 391, 388 N.E.2d 157, 160; Sharkey v. Snow (1973), 13 Ill. App. 3d 448, 451, 300 N.E.2d 279, 281.) A complaint should not be dismissed for failure to state a cause of action unless it clearly appears that no set of facts could be proven under the pleadings which would entitle plaintiff to relief. (Felbinger & Co. v. Traiforos (1979), 76 Ill. App. 3d 725, 733, 394 N.E.2d 1283, 1289; J.J. Harrington & Co. v. Timmerman (1977), 50 Ill. App. 3d 404, 407, 365 N.E.2d 721, 723.) Although Illinois requires fact rather than notice pleading (Ill. Rev. Stat. 1979, ch. 110, pars. 33(3), 42(2); Pelham v. Griesheimer (1982), 92 Ill. 2d 13, 17, 440 N.E.2d 96, 98), a complaint will not be dismissed if facts essential to its claim appear by reasonable implication and it reasonably informs the defendants of a valid claim under a general class of cases. Central States, Southeast & Southwest Areas Pension Fund v. Gaylur Products, Inc. (1978), 66 Ill. App. 3d 709, 713, 384 N.E.2d 123, 126; Kramer v. McDonald’s System, Inc. (1978), 61 Ill. App. 3d 947, 956, 378 N.E.2d 522, 531, aff’d (1979), 77 Ill. 2d 323, 396 N.E.2d 504.

Section 3 — 419 of the UCC provides in pertinent part:

“(1) An instrument is converted when
* * *
(c) it is paid on a forged indorsement.
(2) In an action against a drawee under subsection (1) the measure of the drawee’s liability is the face amount of the instrument. In any other action under subsection (1) the measure of liability is presumed to be the face amount of the instrument.” (Ill. Rev. Stat. 1979, ch. 26, par. 3 — 419.)

Although there are few Illinois cases interpreting this section of the UCC, it has been noted that paragraph (l)(c) of section 3 — 419 was intended to be a codification of prior Illinois common law under the former Negotiable Instruments Act. See Ill. Ann. Stat., ch. 26, par. 3 — 419, Illinois Code Comment, at 327 (Smith-Hurd 1963); at 53 (Smith-Hurd Supp. 1981); Justus Co. v. Gary Wheaton Bank (N.D. Ill. 1981), 509 F. Supp. 103, 105.

A review of the case law reveals that the elements of a cause of action for conversion under section 3 — 419(l)(c) of the UCC and prior law are plaintiffs’ ownership of, interest in or right to possession of the check; plaintiffs’ forged or unauthorized endorsement on the check; and defendant bank’s unauthorized cashing of the check. (Justus Co. v. Gary Wheaton Bank (N.D. Ill. 1981), 509 F. Supp. 103, 105; Independent Oil Men’s Association v. Fort Dearborn National Bank (1924), 311 Ill. 278, 280-81, 142 N.E. 458, 459; Crahe v. Mercantile Trust & Savings Bank (1920), 295 Ill. 375, 377, 129 N.E. 120, 121; Smith v. General Casualty Co. (1979), 75 Ill. App. 3d 971, 974, 394 N.E.2d 804, 806; Hoffman v. First National Bank (1939), 299 Ill. App. 290, 295-96, 20 N.E.2d 121, 124; James v. Union National Bank (1925), 238 Ill. App. 159, 164; Merle v. National City Bank (1925), 236 Ill. App. 347, 348.) The right to possession of the check is sufficient and actual possession is not required. (Justus Co. v. Gary Wheaton Bank (N.D. Ill. 1981), 509 F. Supp. 103, 106; Crahe v. Mercantile Trust & Savings Bank (1920), 295 Ill. 375, 377, 129 N.E. 120, 120; Smith v. General Casualty Co. (1979), 75 Ill. App. 3d 971, 974, 394 N.E.2d 804, 806; Hoffman v. First National Bank (1939), 299 Ill. App. 290, 295-96, 20 N.E.2d 121, 123.) It has also been held under the UCC, that even if there is no enforceable obligation between the drawer and payee of a check, the drawee or collecting bank is still liable to such payee if it pays a check over that payee’s forged endorsement. (Trust Co. v. First National Bank (1978), 241 Ga. 406, 407-08, 246 S.E.2d 282, 283-84.) In cases of conversion by a bank other than the drawee, the damages are presumed to be the face amount of the check converted. Ill. Rev. Stat. 1979, ch. 26, par. 3 — 419(2).

Other jurisdictions are in accord with these principles. Citizens State Bank v. National Surety Corp. (Colo. 1980), 612 R2d 70 (elements of action); Trust Co. v. First National Bank (1978), 241 Ga. 406, 246 S.E.2d 282 (status as joint payee sufficient to give right of action); Barnett Bank v. Lipp (Fla. App. 1978), 364 So. 2d 28 (beneficial ownership of check in payee without possession); Equipment Distributors, Inc. v. Charter Oak Bank & Trust Co. (1977), 34 Conn. Supp. 606, 379 A.2d 682 (elements of action); Lee v. Skidmore (1976), 49 Ohio App. 2d 347, 361 N.E.2d 499 (payee has absolute right to recover on forged endorsement); Harry H. White Lumber Co. v. Crocker-Citizens National Bank (1967), 253 Cal. App. 2d 368, 61 Cal. Rptr. 381 (elements of action).

When plaintiffs’ complaints and attached exhibits are examined in light of these cases, it is clear they state a cause of action. Not only do plaintiffs allege the right to ownership of the checks but they also allege the facts which give rise to that right, viz, the labor and materials supplied. Moreover, the exhibits on their face support these allegations. The plaintiffs have also alleged that endorsements were forged and unauthorized on the checks as well as the bank’s wrongful cashing of the checks. No more is required to state a cause of action and the trial court properly denied defendant’s motions to dismiss.

SUMMARY JUDGMENT

Plaintiffs’ motions for summary judgments were supported by the affidavits of the presidents of the Burks and Redman companies. They set forth the factual allegations contained in plaintiffs’ complaints and each stated that all averments were based upon the personal knowledge of the affiant. Plaintiffs’ motions also were supported by admissions of the Bank contained in answers to interrogatories propounded by plaintiffs. The asserted admissions included that McNeely was a customer of the Bank, that the Bank cashed the subject checks and deposited the proceeds in the McNeely account, that the Bank took no actions to verify the purported endorsements of plaintiffs in accordance with its policy of cashing any check with a customer’s endorsement, and that the Bank had never previously cashed, deposited or negotiated a check for plaintiffs.

In response, the Bank filed a memorandum by its attorney which argued, inter alia, that plaintiffs’ complaints failed to state a cause of action, that plaintiffs’ affidavits were not in compliance with Supreme Court Rule 191 (73 Ill. 2d R. 191) and that the Bank’s answers to the complaints raised questions of fact. The Bank also filed the affidavit of one of its officers which essentially repeated the contents of the Bank’s answers that it had insufficient knowledge to respond to plaintiffs’ allegations. On this basis, the court granted summary judgment to plaintiffs.

Section 57 of the Civil Practice Act (Ill. Rev. Stat. 1979, ch. 110, par. 57) provides that either plaintiff or defendant may move, with or without supporting affidavits, for summary judgment and the opposite party may file counteraffidavits. If the pleadings depositions, affidavits, exhibits and admissions on file in a case then show there are no remaining genuine issues of material fact, the moving party is entitled to summary judgment as a matter of law. (Smith v. St. Therese Hospital (1982), 106 Ill. App. 3d 268, 270, 435 N.E.2d 939, 940; Carruthers v. B.C. Christopher & Co. (1974), 57 Ill. 2d 376, 313 N.E.2d 457; Heidelberger v. Jewel Companies, Inc. (1974), 57 Ill. 2d 87, 92, 312 N.E.2d 601, 604.) If the party moving for summary judgment supplies evidentiary facts which, if not contradicted, would entitle him to judgment, the opposing party cannot rely upon his complaint or answer alone to raise issues of material fact. (Smith v. St. Therese Hospital (1982), 106 Ill. App. 3d 268, 270, 435 N.E.2d 939, 940; Fooden v. Board of Governors (1971), 48 Ill. 2d 580, 587, 272 N.E.2d 497, 501, cert. denied (1972), 408 U.S. 943, 33 L. Ed. 2d 766, 92 S. Ct. 2847.) Summary judgment is a drastic remedy and is to be awarded with caution; only if the right of the movant is clear and free from doubt may it be granted. (In re Estate of Tomaso (1980), 82 Ill. App. 3d 286, 288, 402 N.E.2d 702, 704-05; Indiana Harbor Belt R.R. Co. v. Budd Co. (1980), 87 Ill. App. 3d 91, 94, 408 N.E.2d 944, 947.) Additionally, the existence of factual questions will not preclude summary judgment unless these facts are material to the litigation. Grundy County National Bank v. Westfall (1973), 13 Ill. App. 3d 839, 845, 301 N.E.2d 28, 32, appeal denied (1973), 54 Ill. 2d 597.

Initially, the Bank asserts the insufficiency of the plaintiffs’ affidavits contending they do not state that the affiant could testify to the contents competently and that the affidavits consist of mere conclusions rather than evidentiary facts.

Supreme Court Rule 191 does not require affidavits to contain the phrase “that the affiant, if sworn as a witness, can testify competently thereto” as suggested by the Bank. (Saghin v. Romash (1970), 122 Ill. App. 2d 473, 477, 258 N.E.2d 581, 583, appeal denied (1970), 44 Ill. 2d 586.) Rather, the rule is satisfied if from the document as a whole it appears that the affidavit is based upon the personal knowledge of the affiant and there is a reasonable inference that the affiant could competently testify to its contents at trial. Mount Prospect State Bank v. Forestry Recycling Sawmill (1980), 93 Ill. App. 3d 448, 459-60, 417 N.E.2d 621, 630; Tower Oil & Technology Co. v. Buckley (1981), 99 Ill. App. 3d 637, 644-45, 425 N.E.2d 1060, 1067, appeal denied (1981), 85 Ill. 2d 582.

The affidavits submitted by plaintiffs amply meet the rule. They contain evidentiary facts, which would reasonably appear to be within the personal knowledge of the affiants, of specific facts setting forth the elements necessary to impose liability on the Bank pursuant to section 3 — 419 of the UCC. The affidavits together with the Bank’s admissions establish a factual basis for plaintiffs’ right to ownership, the forged endorsement of plaintiffs’ names and the negotiation of the check by the Bank. Since damages are presumed to be the face amount of the checks converted (Ill. Rev. Stat. 1979, ch. 26, par. 3— 419(2)), plaintiffs established their right to recover. Nevertheless, the Bank contends this is insufficient to support the entry of summary judgment. We do not agree.

Once a party has established its right to recover through well-pleaded facts in an affidavit in support of a motion for summary judgment, it is incumbent upon the opposing party to contradict those facts, if possible, with material facts contained in a counteraffidavit, and absent such counteraffidavit the facts alleged in the supporting affidavit must be taken as true. (Meakens v. City of Chicago (1980), 86 Ill. App. 3d 60, 62, 407 N.E.2d 893, 896, appeal denied (1980), 81 Ill. 2d 602; Department of Law Enforcement v. Willis (1978), 61 Ill. App. 3d 495, 499-500, 378 N.E.2d 239, 243, appeal denied (1978), 71 Ill. 2d 607; Schultz v. American National Bank & Trust Co. (1976), 40 Ill. App. 3d 800, 804, 352 N.E.2d 310, 314, appeal denied (1976), 64 Ill. 2d 598.) Mere reliance upon contrary averments in the party’s answer is insufficient. (Department of Law Enforcement v. Willis (1978), 61 Ill. App. 3d 495, 499-500, 378 N.E.2d 239, 243, appeal denied (1978), 71 Ill. 2d 607; Fooden v. Board of Governors (1971), 48 Ill. 2d 580, 587, 272 N.E.2d 497, 500, cert. denied (1972), 408 U.S. 943, 33 L. Ed. 2d 766, 92 S. Ct. 2847.) Counteraffidavits which purport to contradict facts based only upon information and belief are also insufficient. (Hedrick v. Goodwin Brothers, Inc. (1975), 26 Ill. App. 3d 327, 329, 325 N.E.2d 73, 75; People ex rel. Highsmith v. County of Jefferson (1967), 87 Ill. App. 2d 145, 149-50, 230 N.E.2d 480, 482, appeal denied (1968), 37 Ill. 2d 627.) Nor is the assertion that information necessary to a valid defense may be in the possession of some other party sufficient to defeat a motion for summary judgment since there are procedures to compel the production of such information. 73 Ill. 2d R. 191(b); Wicks v. Bank of Belleville (1977), 56 Ill. App. 3d 222, 228, 371 N.E.2d 1007, 1012.

We conclude the trial court properly entered summary judgments in favor of plaintiffs. The Bank failed both in its response to plaintiffs’ motions and in its affidavits to set forth any material evidentiary facts which would raise a factual issue as to plaintiffs’ right to recovery or rebut the presumption of the damages shown in this case.

For the foregoing reasons, the judgments of the circuit court of Du Page County denying defendant’s motions to dismiss and entering summary judgments in favor of plaintiffs are affirmed.

Judgments affirmed.

REINHARD and UNVERZAGT, JJ., concur.


source: Caselaw Access Project

author: PRESIDING JUSTICE GREEN

license: Public Domain

text:
    CLYDE DORSEY et al., Petitioners-Appellants, v. RAY RYAN et al., Respondents-Appellees.
    Fourth District
    No. 4—82—0264
    Opinion filed November 30, 1982.
    Rehearing denied December 28, 1982.

      Presney, Huffman, Kelly & Appleton, of Springfield, for appellants.
    Eddie Carpenter, of Bellatti, Fay, Bellatti & Beard, of Jacksonville, for appellees.
   PRESIDING JUSTICE GREEN

delivered the opinion of the court:

Petitioners, Clyde and Dorothy Dorsey, are the fee owners of a tract of land situated in Morgan County, whose southern boundary with respondents has been disputed for some time. Petitioners’ parcel is described in their deed as “[beginning at the Northeast corner of the West half of the Southwest quarter of said Section Seven (7), and running thence West 80 rods, thence South 44 rods, thence East 80 rods and thence North 44 rods to the place of beginning, containing 22 acres, more or less.”

On May 1, 1980, petitioners filed suit pursuant to section 2 of “An Act to provide for the permanent survey of lands” (Ill. Rev. Stat. 1979, ch. 133, par. 12) which creates a procedure whereby persons whose corners and/or boundaries are lost, destroyed, or disputed, and who are unable to reach agreement may petition the court for the appointment of a commission of surveyors to assist the court in finally resolving the boundary dispute.

Although respondents denied that the corners and boundaries were in dispute, on September 29, 1980, following hearing on the petition, the trial court found that the comers were in dispute and agreed to the appointment of a surveyor. Instead of appointing the required three surveyors, however, the court appointed only one surveyor.

The survey was completed in December 1980 and was submitted to the court on April 6, 1981. Petitioners subsequently filed written objections to the plat of survey including, inter alia, their claims that the survey was not made in accordance with the original survey of 1820, that the survey placed reliance on improper monuments, and that a deficiency in the distance between the west section comers of 71 feet less than the recorded distance was not properly apportioned along the western section line of township 13 north, range 9 west, section 7.

At the hearing on the objections to the survey, John Garrison, the surveyor who performed the survey, testified regarding his methods. The surveyor stated that the starting point for the resurvey was the original government field notes. Using these as a basis, he proceeded first to attempt to locate in the field the original points called for in the notes. According to the surveyor, evidence of the original markers called for in the 1820 field notes for section 7 was not discovered. The notes of the government survey made in 1820 indicated that the southwest comer of section 7 was 236.9 feet or 3.59 chains north of the southeast comer of section 12, lying in the township to the west, and that the northwest corner of section 7 was 4.68 chains or 308.88 feet north of the northeast section corner of section 12. Garrison began on the range line dividing the two townships, measured north and south, and located two stones along the eastern border of section 12. Relying on older surveys which had referred to these stones, he concluded that these were stone monuments placed by county surveyors in the same location as the original government posts, though the distance between these corners did not correspond to the original measure. According to Garrison, the original field notes indicated that the distance of the eastern section line of section 12 was the standard mile, but, as measured by him, the distance between the two corners was 5,208.28 feet. The surveyor opined that the discrepancy was not due to an improper setting of the stone markers, but rather resulted from an error in the original government survey. He stated that he attempted to find the missing chain by retracing the range line north and south but to no avail.

By relying on the stone markers on the eastern corners of section 12, the surveyor located the section corners for the western side of section 7. He then placed the quarter-corner 40 chains north of the southwest corner of section 7 as indicated in the original field notes. Garrison noted that the government measure for the western boundary of section 7 was 81.09 chains while on resurveying it was established that the section 7 line was 71.94 feet shorter than the original government measure. Ordinarily, according to the surveyor, standard survey procedure would require that the deficiency be distributed along the entire section line, but in this instance the surveyor made no attempt to divide the deficiency pro rata along the line.

At the conclusion of the hearing on the objections, the court accepted the survey. Petitioners then filed a motion for rehearing alleging that the survey was erroneous because the deficiency of 1.09 chains was never apportioned between the section 7 corners and that they had received an opinion from the Chief of Cadastral Survey, Bureau of Land Management of the Department of the Interior, which indicated that the 1.09-chain discrepancy on the western section line of section 7 should be apportioned along the entire length. Petitioners further objected to the survey because the surveyor did not find true north when he ran the lines described in their deed. On April 19, 1982, written final orders were entered directing petitioners to pay all surveying expenses and costs, approving the survey, and denying petitioners’ motion to reconsider.

In petitioners’ first argument on appeal, it is suggested that the trial court erred in accepting the plat of survey which established the quarter-section line of the disputed property. It is petitioners’ contention that the original corner monuments were obliterated and sufficient effort to reestablish those corners was not made. Relying on the authority of Irvin v. Rotramel (1873), 68 Ill. 11, the petitioners suggest that the disputed line was not established by reference to a known government marker, while respondents contended in reply that adequate efforts were made to establish the corners and that the resurvey properly followed the original government notes.

The importance of the ascertainment of the original monuments is clear. Since the parties’ land was conveyed with reference to the original survey of the public lands of the United States, the original monuments or the points at which they were placed control their property rights. (Irvin.) As noted in Clark, Surveying and Boundaries sec. 377, at 457 (4th ed. 1976), “[t]he lines, corners and boundaries of the survey of the public lands as returned by the chief cadastral engineer and approved by the Government are unchangeable.” Even where a resurvey shows an error in the location of the original monuments, the latter are still controlling even if inconsistent with calls for directions and course in a survey. (Ely v. Brown (1899), 183 Ill. 575, 56 N.E. 181; Clark, Surveying and Boundaries sec. 298, at 367 (4th ed. 1976).) To properly establish the quarter-section line, the resurvey was dependent upon the location of the north and south section comers of section 7. Once these corners are located or reestablished, the quarter-section line can be readily determined since the field notes of the original survey indicate that the quarter-section corner is 40 chains north of the southwest corner of section 7.

In Irvin, the supreme court held that the object of the retracement of surveys is the reestablishment of lines according to the original government notes, and that to properly establish the interior lines of sections, it is first necessary to establish the exterior lines and corners of the section according to the original survey and notes.

In dispute in Irvin was the location of the dividing line between the west and east halves of the southwest quarter of section 21, township 4 south, range 4 east. There the evidence indicated that the original government posts had been located at the southeast comer of section 21 and the southwest corner of section 20. Rather than running straight lines between these comers and dividing the distance according to the government field notes, the appointed commission of surveyors began on the disputed quarter-point along the south section line of section 21 and measured north. This was held to be error, the supreme court stating:

“It seems to us, before the commissioners could have correctly established this line, it was necessary first to establish the exterior lines and corners of the section according to the government survey and field notes, a copy of which every surveyor has or should have, and this can only be done, as the act declares, by referring to original government comers, or to stone corners or other monuments which have been in existence over twenty years, and recognized as original government corners by the adjoining proprietors.” 68 Ill. 11, 15.

At bar, the disputed corner the parties were trying to locate was the quarter-corner on the township boundary line of section 7. The testimony of the surveyor indicated that no evidence of the original monuments was found and the surveyor proceeded to locate the line by reference to the standard corners on the range line. Although the parties do not suggest what method should have been used to ascertain the quarter-section line, the rule in Irvin is in agreement with the method suggested in the Bureau of Land Management’s Manual of Instructions for the Survey of the Public Lands of the United States, which provides:

“All lost section and quarter-section corners on the township boundary lines will be restored by single proportionate measurement between the nearest identified corners on opposite sides of the missing corner, north and south on a meridional line or east and west on a latitudinal line.” (U.S. Dept, of Interior, Bureau of Land Management, Manual of Instructions for the Survey of Public Lands of the United States sec. 5 — 34, at 136 (1973).)

We need not decide if this is the proper procedure, and it suffices to say that this rule also requires measurement from an identified corner. Though we note that section 5 of “An Act to revise the law in relation to county surveyors, and the custody of the United States field notes” (Ill. Rev. Stat. 1979, ch. 133, par. 5) requires all resurveys to be made in accordance with the law of the United States governing surveys, there appears to be no specific regulation or law applicable to the reestablishment of lost corners. See 43 U.S.C. sec. 751 (1976).

As in Irvin, the surveyor seems to have placed reliance on the section corners of section 12 in the township adjacent to section 7, though the evidence clearly shows that these corners were neither original corners nor in agreement with the original field notes. While it is possible that the original measurement of the eastern boundary of section 12, township 13 north, range 10 west, was incorrect, still the presumption must be that the field notes and plats are correct until the contrary is clearly shown by the evidence. (Ogilvie v. Copeland (1893), 145 Ill. 98.) By placing reliance on the section comers of section 12 and then proceeding to ascertain the comers from there, the surveyor had concluded that an error was made originally, and not that the surveyor who placed the concrete monuments along the eastern line of section 12 improperly resurveyed the eastern boundary. This we conclude was improper.

In holding as we do, we will not be understood to mean that lost corners must be reestablished by reference to original corners, for such a burden would often be an impossibility in view of the deterioration and loss of many original government monuments. Rather, we think that the authorities differentiate between three types of corners, two of which may be relied upon to ascertain a lost corner. In the manual previously referred to, three different types of comers are noted and defined:

“An existent corner is one whose position can be identified by verifying the evidence of the monument or its accessories, by reference to the description in the field notes, or located by an acceptable supplemental survey record, some physical evidence, or testimony.
* * *
An obliterated comer is one at whose point there are no remaining traces of the monument or its accessories, but whose location has been perpetuated, or the point for which may be recovered beyond reasonable doubt by the acts and testimony of the interested landowners, competent surveyors, other qualified local authorities, or witnesses, or by some acceptable record evidence.
* * *
A lost comer is a point of a survey whose position cannot be determined, beyond reasonable doubt, either from traces of the original marks or from acceptable evidence or testimony that bears upon the original position, and whose location can be restored only by reference to one or more interdependent corners.” U.S. Dept, of Interior, Bureau of Land Management, Manual of Instructions for the Survey of the Public Lands of the United States secs. 5-5, 5-9, 5-20, at 130, 133 (1973).

The direction in Irvin to establish lost corners by reference to known government corners requires, at a minimum, reference to an obliterated corner which is one whose location may be recovered beyond a reasonable doubt by the testimony of landowners, witnesses, or acceptable record evidence.

The testimony of the surveyor is silent on efforts to take the testimony of knowledgeable landowners. The record measure of the distance between the northeast and southeast section comers of section 12 is one chain longer than the distance between the stone corners. The record is also ambiguous as to the congruity between other calls in the field notes and the actual location of the section comers for section 12. While it is tme the surveyor testified he attempted to locate this chain deficiency by proceeding north and south along the range line, the extent of his efforts was confined to one or two sections along the range line. In view of the importance of the reliance on these corners, we believe that a more diligent search is necessary either to find an original corner or to reestablish an obliterated corner with more certainty than was done here.

The parties have also raised two other issues in connection with the surveyor’s methods which merit some consideration. As a result of the reliance by the surveyor on the section corners of section 12, the lost chain was carried over into the western boundary of section 7, making section 7 short 1.09 chains as compared to the original field notes. In view of our holding that the surveyor failed to locate the lost quarter-corner by reference to a well-known government marker, we need not decide whether the surveyor was required to apportion the loss along the section line. We do note that this rule is followed both in Illinois case law and by other authorities. See Martz v. Williams (1873), 67 Ill. 306; Nilson Brothers v. Kahn (1924), 314 Ill. 275, 145 N.E. 340; Littlejohn v. Fink (1922), 109 Neb. 282, 190 N.W. 1020; Clark, Surveying and Boundaries sec. 233, at 273 (4th ed. 1976).

Petitioners have also included two sentences of argument in their brief complaining that the surveyor, in retracing the boundaries of the subject property, failed to establish true direction in locating the metes and bounds description. Not only have petitioners failed to present any elucidating discussion on this point, but no authorities are cited in their brief. We do not believe such practice adequately complies with Supreme Court Rule 341(e)(7) (87 Ill. 2d R. 341(e)(7)), and we treat the issue as waived. (See Nicholl v. Scaletta (1982), 104 Ill. App. 3d 642, 432 N.E.2d 1267.) We would note, in any event, that merely because a deed gives a call for north does not require the line to be run true north or astronomically north as petitioners seem to suggest. (Brown v. McCaffrey (1948), 143 Me. 221, 60 A.2d 792.) The surveyor explained that the lines of the tract were drawn to conform with the bearings of the section and quarter-section lines which were within a few minutes of true north, and we have been cited no authority nor discovered any which convinces us that the surveyor erred in this regard.

As an additional issue, the respondents have argued that the trial court should not have allowed the surveyor to be examined by the petitioners pursuant to section 60 of the Civil Practice Act (Ill. Rev. Stat. 1979, ch. 110, par. 60) and that his testimony should not be considered by this court. This issue is, however, not properly before this court, as the respondents did not file a notice of cross-appeal. It is well settled that where the appellee does not file a notice of cross-appeal, the appellate court is confined to the issues raised by the appellant. Bean v. Norfolk & Western Ry. Co. (1980), 84 Ill. App. 3d 395, 405 N.E.2d 418.

On April 19, 1982, the trial court entered an order directing that all statements of expenses of the surveyor were to be paid by petitioners. These expenses, including interest, now amount to approximately $11,552.79 as of April 1982. Petitioners have appealed this order and contend that the trial court erroneously directed that they bear all costs and expenses of the survey.

The statute governing the payment of the costs and expenses of the survey and suit provides, in part:

“The expenses and costs of the surveys and suit shall be apportioned among all the parties, according to their respective interests.” Ill. Rev. Stat. 1979, ch. 133, par. 14.

There have been but three cases to interpret the phrase at issue: Stevens v. Allman (1873), 68 Ill. 245; Faucher v. Tutewiller (1875), 76 Ill. 194; send McNeil v. Allen (1917), 205 Ill. App. 199.

In Stevens, a petition was filed under the act as it existed in 1869 to establish the corners and boundaries between one Stevens and Allman and other parties. The first report was objected to by Stevens and Allman, and a resurvey was ordered. The second survey was accepted by the trial court and the court assessed the costs of the first survey against the objectors Stevens and Allman and ordered that Stevens pay the full cost of the second. A direct appeal was taken to the supreme court which reversed the apportionment of costs by the trial court. The opinion gave no clear guidance on the manner of determining the parties’ respective interests, but noted:

“We perceive no reason why the letter of the statute should not be adhered to. The mode of apportionment is clearly expressed, and it seems to be entirely equitable.
The order of the circuit court, in relation to the payment of costs, is reversed, and the cause remanded, with directions to that court to apportion the costs among all the parties, according to their respective interests.” (68 Ill. 245, 246.)

We believe that the holding of Stevens does not require an equal division of costs. Otherwise, we would think that the supreme court would have directed the trial court to equally divide the costs among all landowners. Rather, the instruction to the trial court was to divide the costs among the parties, according to their respective interests and not equally among all.

The second case to interpret the statute was Faucher. In Faucher, a petition was brought to ascertain the township line which divided one Tutewiller’s land from land to the south owned by Nehemiah Faucher and Walter Ruffner. A third defendant, H. Faucher, was alleged to own land to the south but the opinion does not indicate whether in fact he owned land which was along the disputed area. Objections to the report were submitted by N. Faucher but they were overruled and the report accepted. The trial court assessed costs only against N. Faucher and W. Ruffner and, on appeal to the supreme court, the order assessing costs was affirmed. Objection was made that the court did not properly divide the expenses since only two of the three defendants were required to pay. There the court noted:

“The court found, upon the hearing, that of the defendants in the court below, Nehemiah Faucher and Walter Ruffner alone were interested in the line, therefore it was proper to enter judgment against them alone.” (76 Ill. 194, 197.)

It would seem clear from this decision that ownership of land is not paramount. If ownership of land was the interest referred to by the statute, then it would seem that both plaintiff and H. Faucher would have been required to pay since they apparently owned land adjacent to the disputed quarter. Rather, the supreme court indicated that the manner of allocating the costs depends upon a determination by the trial court of who is interested in the location of the line.

Finally, McNeil is the last reported decision considering the statute. There a petition for the appointment of a commission of surveyors was brought by McNeil against Allen to establish their common boundary. Allen did not appear, and a commission was appointed. Allen then filed objections to the commission’s report but the objections were stricken and the report confirmed. The trial court assessed costs equally against both parties, and the appellate court affirmed. The opinion does not discuss the statute or give reasons for its conclusion.

By the very nature of the proceedings, all parties are benefited by the ascertainment of their disputed, destroyed, or lost boundaries by fixing their property rights and putting to an end potentially infinite disputes between them. While these considerations would seem to indicate that the parties have equal interests in the proceedings and should equally bear the costs, the evidence at bar indicates that petitioners have hired several surveyors to fix a boundary suitable to them and had previously brought an unsuccessful suit in ejectment against the respondents, while all along the respondents were willing to abide by the boundaries established in a survey made by one Oglesby who had been hired by petitioners to survey the area. In view of this evidence, we cannot say that the trial court erred in requiring petitioners to bear the costs of the survey. The evidence seems to us to indicate that petitioners alone were interested in the establishment of the disputed boundary.

Accordingly, for the foregoing reasons, the order of the trial court approving the survey is reversed, and the cause is remanded for proceedings not inconsistent with this opinion. The order of the trial court assessing the costs of the survey and the suit against petitioners is affirmed.

Affirmed in part; reversed in part; and remanded with directions.

WEBBER and TRAPP, JJ., concur.


author: JUSTICE ROMITI

text:
    KATHLEEN D. BARRETT, Plaintiff-Appellant, v. WALTER LAWRENCE et al., Defendants-Appellees.
    First District (4th Division)
    No. 82—1434
    Opinion filed November 12, 1982.

      David J. Letvin and Kerry L. Kessler, of Chicago (Rosenthal and Schanfield, of counsel), for appellant.
    Brian G. Hubka, of Chicago, for appellees.
   JUSTICE ROMITI

delivered the opinion of the court:

Plaintiff entered into a contract to purchase a condominium. While several payments were made, title has not yet passed to plaintiff. She filed suit to force defendants to put the monies paid in escrow, as required by section 24 of the Condominium Property Act (Ill. Rev. Stat. 1979, ch. 30, par. 324). The trial court denied the petition, ruling (1) that the statute was not applicable and (2) that plaintiff unduly delayed in asserting her demand for the escrow account. We reverse the judgment of the trial court, holding that: (1) since title under the original contract was to pass within a year, the fact that the contract was later amended to provide for passage within a year of the amendment but more than a year after the date of the original contract did not take the contract out of the scope of the statute; (2) plaintiff had no duty to require defendants to comply with the statute, especially since defendants failed to show plaintiff was aware of defendants’ violation of the statute until shortly before suit was filed; and (3) an injunction is the proper remedy where a seller refuses or fails to establish the escrow account required by statute.

Plaintiff entered into a contract with the defendant on March 18, 1981, to purchase a condominium. Plaintiff was to pay $1,000 upon execution of the contract, and $7,000 on April 1, 1981, both sums to be held by the broker and paid to the sellers on the date possession was delivered. She was to pay $3,850 upon the date possession was delivered, and the principal balance of $79,650 with 13% interest was to be paid in installments, with the final payment due on December 1, 1981, at which time title would be conveyed to plaintiff. All of the earnest money was to be deposited in an interest-bearing escrow account, the interest to be paid to plaintiff. There was no provision in the contract stating that defendants did not intend to comply with the statutory requirement that all payments on the purchase price be placed in escrow.

On December 7, 1981, this contract was amended. The amendment provided that the final date for payment and thus the date for the conveyance of title was to be extended to January 1, 1982, and thereafter without further action of the parties to April 1, 1982. In return it was agreed that the sums paid each month after the date of the amendment were to be treated as payment of interest, not prineipal, and defendants were to have the right to mortgage the property.

In January 1982, plaintiff filed suit for rescission of the contract. On January 22 her attorneys wrote defendants’ attorney asking the identity of the escrow agent and the current balance and its amount of interest in the account. The record does not disclose whether the letter was answered, but plaintiff apparently discovered that no escrow account had been established, despite the fact it was required by statute. Accordingly on April 15, 1982, plaintiff filed a motion to compel the establishment of the escrow account required by statute. Defendants in their response contended: (1) because of the amendment extending the date for conveyance of title, the contract did not fall within the scope of the statute; (2) an order compelling them to establish an escrow account would cause them undue hardship because they had paid brokerage commissions, attorney fees, title, transfer taxes and other costs relating to the sale; (3) plaintiff was barred by laches because she never requested that an escrow account be established; in fact, defendants contended that plaintiff knew there was no escrow account although there was absolutely no proof to this effect; and (4) plaintiff had an adequate remedy at law. The trial court denied the motion on the grounds that (1) the statute was not intended to apply to the facts here and (2) there was undue delay by plaintiff in asserting the demand to establish the escrow account.

Section 24 of the Condominium Property Act (Ill. Rev. Stat. 1979, ch. 30, par. 324) provides:

“Any deposit, payment or advance in the payment of the purchase price for a unit, received by the developer or his agent other than a payment made for extra work ordered in writing by the purchaser of a unit, shall be held in an escrow account until title is conveyed to the purchaser. The escrow funds shall be segregated in a separate account designated for this purpose. For all contracts entered into after the effective date of this amendatory Act of 1979, the escrow account shall bear interest at 5% per year, all such interest to be credited to the purchaser on the purchase price of the unit. Where the deposits are being held by a real estate broker duly licensed under the laws of Illinois, the funds may be placed in the broker’s regular escrow account. Escrow funds shall not be subject to attachment by any creditor of a purchaser or of the developer or by the holder of a lien against any portion of the property.
The provisions of this Section shall not apply to any payment received on account for the purchase of a completed condominium unit under articles of agreement for deed, installment agreement for deed, or lease with option to purchase, if the agreement provides for conveyance of title more than one year after the date of execution of the agreement.”

The agreement of March 18, 1981, provided for the transfer of ti-. tie on December 1, 1981, less than a year after the execution of the agreement. The agreement of December 7, 1981, provided for the transfer of title at the latest by April 1, 1982, less than one year after the execution of that agreement.

I

Defendants contend that the amendment did not create a new agreement but simply extended the time of the old agreement. Therefore, since the date of the only contract made, according to defendants, was March 18, 1981, the final agreed date for transfer of title was more than one year after the date of execution of the contract and the statute is inapplicable. (Both sides appear to assume that the condominium was completed when the contract was executed since it is clear that the statute is applicable to all uncompleted units regardless of the delay before passage of title.) However, the law is to the contrary. An agreement when changed by the mutual consent of the parties becomes a new agreement which takes the place of the old. (Mahaffey v. Wisconsin Central Ry. Co. (1909), 147 Ill. App. 43; Beacon Terminal Corp. v. Chemprene, Inc. (1980), 75 A.D.2d 350, 429 N.Y.S.2d 715, appeal denied (1980), 51 N.Y.2d 706, 433 N.Y.S.2d 1026; 17A C.J.S. Contracts sec. 379 (1963); 17 Am. Jur. 2d Contracts sec. 470 (1964); and see Folstad v. Farmers Insurance Exchange (1973), 297 Minn. 496, 210 N.W.2d 238; La Canin v. Automobile Insurance Co. (E.D. N.Y. 1941), 41 E Supp. 1021 (both holding that while it is axiomatic that a newly enacted statute does not control and alter a preexisting contract, it is applicable where the contract is modified after the statute’s enactment).) As the court in Mahaffey stated:

“It is contended by defendant with reference to the addition to the Wisconsin bill of lading made in Chicago: ‘These words do not make a new contract. They simply change the old one. A new agreement is not established by them, but an existing agreement is “changed at Chicago.” ’ We understand that an agreement when changed, by the mutual consent of the parties, becomes a new agreement. An agreement changed is not the old or prior agreement but a new one. When there is a change the minds of the parties have met again and by the fact of the change a new agreement arises. The minds of the parties may thus meet upon the terms of the old agreement with but the slightest change, yet the agreement then made is a new one. If the parties to a Wisconsin contract, partially performed, come together in Illinois, make some changes in their contract and then reaffirm it the new contract is an Illinois contract.” (147 Ill. App. 43, 46.)

It follows, therefore, that at no time was the agreed-upon date for transfer of title more than a year after the execution of the pertinent contract.

Accordingly, we hold that the statute is clearly applicable and defendants are required by the statute to put “any deposit, payment or advance in the payment of the purchase price” in an escrow account bearing interest at 5%, such interest to be credited to the purchaser on the purchase price of the unit. For this reason we need not address the question whether, since the sellers were obligated to put the funds in escrow before December 7, 1981, if the amendment on that date had extended the time for transfer to a date more than one year after the making of the contract, the amendment would have absolved the sellers from their preexisting duty.

II

The trial court also based its refusal to grant the injunction on the basis that plaintiff had unduly delayed in making a demand for an escrow account. However, since the statute imposes the duty upon the defendants to establish the escrow account, it was not necessary for plaintiff also to make a demand. Furthermore, before laches can be found it must be proved that the plaintiff knew that no escrow account was created. (Ballard v. Granby (1980), 90 Ill. App. 3d 13, 412 N.E.2d 1067; Mitchell v. Simms (1979), 79 Ill. App. 3d 215, 398 N.E.2d 211, appeal denied (1980), 79 Ill. 2d 631; Harden v. Desideri (1974), 20 Ill. App. 3d 590, 315 N.E.2d 235, appeal denied (1974), 57 Ill. 2d 604.) Defendants have failed to produce any evidence at all tending to prove that plaintiff either knew or ought to have known that no escrow had been created until sometime after the letter was written on January 22, 1982. Of course, the letter put defendants on notice that plaintiff was relying on her statutory rights. Thus, even if the delay between the writing of the letter and the filing of the suit was unreasonable, and there is no evidence that it was, defendants could not have been prejudiced by the delay and laches cannot be found absent prejudice. DeBruyn v. Elrod (1981), 84 Ill. 2d 128, 418 N.E.2d 413; People ex rel. Casey v. Health & Hospitals Governing Com. (1977), 69 Ill1. 2d 108, 370 N.E.2d 499.

Ill

Defendants next contend that the injunction was properly denied because the motion seeking the injunction was not verified. However, the defendants have cited no statute requiring verification where, as here, notice and hearing are provided, and in fact there is no such requirement. Furthermore, since the issue was never raised below, any defect would have been waived. Ill. Rev. Stat. 1981, ch. 110, par. 42(3).

IV

Defendants next contend that the trial courts are invested with a broad discretion in the issuance or denial of injunctive relief and that the issuance or denial of an injunction will not be disturbed on appeal unless the trial court’s findings are against the manifest weight of the evidence, citing Illinois Housing Development Authority v. Arbor Trails Development (1980), 84 Ill. App. 3d 97, 404 N.E.2d 1097. However, the trial court’s refusal was based on two grounds only: (1) the statute was inapplicable and (2) plaintiff’s demand was untimely. As we have already held, the first finding is contrary to law and the second unsupported by any evidence in the record.

V

Finally, defendants contend that the plaintiff is seeking a temporary injunction and thus must prove that (1) there is a clearly ascertained right which needs protection, (2) there will be irreparable injury, (3) there is no adequate remedy at law, (4) there is substantial likelihood of success on the merits, and (5) in the absence of preliminary relief plaintiff will suffer a greater injury than would defendants if relief is granted (Dock Club, Inc. v. Illinois Liquor Control Com. (1980), 83 Ill. App. 3d 1034, 404 N.E.2d 1050). Defendants further contend that a preliminary injunction can only be granted to preserve the status quo (John Deere Co. v. Hinrichs (1962), 36 Ill. App. 2d 255, 183 N.E.2d 309), and an injunction here would disturb the status quo.

As we have already stated, plaintiff has a clearly ascertained right to have an escrow account drawing 5% interest from March 18, 1981, established. Defendants, however, contend that there is no proof there was an inadequate remedy at law because plaintiff has not shown defendants are insolvent. This argument is not persuasive in light of the fact that defendants also argue it would be a grave hardship for them to have to put the money in escrow because they have already spent it. This is immaterial, however, since the legislature has already found that the remedy at law is inadequate and this court will not sit as a superlegislature to overrule its determination. It is evident from the legislative history of the Act (80th Ill. Gen. Ass’y, Senate Debates, May 25, 1977, at 64-66) that the legislature enacted this statute because it did not consider the buyer’s remedy of seeking to recover the funds paid to be adequate, but determined that it was necessary for a security fund to be created to protect a condominium purchaser when title is not to be conveyed immediately.

For the same reason it is clear that the injury is irreparable. The absence of the security fund required by statute is that species of injury that ought not to be submitted to on the one hand or inflicted on the other. (Cross Wood Products, Inc. v. Suter (1981), 97 Ill. App. 3d 282, 422 N.E.2d 953; Edelman Brothers v. Baikoff (1934), 277 Ill. App. 432.) Moreover, the only adequate remedy and recompense for the absence of required security is to provide the security; damages at law, while satisfying the original debt, do not atone for the period of time the creditor had an unsecured rather than secured debt.

There has been no showing that the defendants will suffer great harm and the plaintiff only little benefit if the escrow account required by law is established. (Biggs v. Health & Hospitals Governing Com. (1977), 55 Ill. App. 3d 501, 370 N.E.2d 1150.) In any event it has been recognized that there will be no balancing of equities where the violation is wilful (Moore v. McDaniel (1977), 48 Ill. App. 3d 152, 362 N.E.2d 382, appeal denied (1977), 66 Ill. 2d 631), where, as here, the existence of a private right and violation thereof are clear (Rosehill Cemetery Co. v. City of Chicago (1933), 352 Ill. 11, 185 N.E. 170), or where the act complained of is tortious in itself (42 Am. Jur. 2d Injunctions sec. 60 (1969)).

“An injunction should be granted to restrain a wilful, wanton, or unprovoked wrong although the loss to the defendant will be greater than the injury to his adversary from its refusal, for no balancing of the inconveniences of private parties will be indulged when the act complained of is tortious in itself as well as in its incidents, and the preservation of a clear right is involved. In such cases, the wrongdoer is not entitled to the benefit of any consideration in a court of equity, nor can it be said that injury would result from the injunction, for no man can complain that he is injured by being prevented from doing, to the hurt of another, and which he has no right to do.” (42 Am. Jur. 2d Injunctions sec. 60 (1969).)

Here, to paraphrase, defendants cannot complain that they are injured by being prevented from using the money (to plaintiff’s injury) when, because of the statute, they have no right to use it. Likewise, they cannot complain that they are forced to establish the escrow account when they are required by statute to establish one.

As to the likelihood of plaintiff’s success on the merits, the question is not whether plaintiff can recover in the rescission action but whether she is entitled to the establishment of the escrow account.

Finally, defendants argue that since the injunction sought is a temporary injunction, it would be improper since a temporary injunction must maintain the status quo and cannot be used to transfer property from one party to another. (John Deere Co. v. Hinrichs (1962), 36 Ill. App. 2d 255, 183 N.E.2d 309.) As plaintiff points out, however, equity deems done that which should have been done (Shay v. Penrose (1962), 25 Ill. 2d 447, 185 N.E.2d 218; Ward v. Sampson (1946), 395 Ill. 353, 70 N.E.2d 324; Crawford v. Wyant (1936), 284 Ill. App. 336, 1 N.E.2d 766; Mackey v. Sherman (1931), 263 Ill. App. 109), and the statute clearly required the establishment of the escrow account. Furthermore, it has been recognized that the rule does not prohibit the issuance of a preliminary injunction transferring possession from a litigant to the court. (State ex rel. Donley v. Baker (1932), 112 W.Va. 263, 164 S.E. 154; Annot., 15 A.L.R.2d 213, 277 (1951); 42 Am. Jur. 2d Injunctions sec. 79 (1969).) Similarly, here the funds are not being transferred from one litigant to another but to escrow.

More importantly this court is not persuaded that defendants’ major premise that the injunction sought is only a preliminary injunction is accurate. A preliminary or interlocutory injunction is issued before any hearing on the merits. It is not issued to determine any controverted right but merely to prevent a threatened wrong and to protect the property or rights involved from further injury until the equities can be determined after a full examination or hearing and its provisions are merged in the decree for the permanent or final injunction. (City of Chicago v. Airline Canteen Service, Inc. (1978), 64 Ill. App. 3d 417, 380 N.E.2d 1106, appeal denied (1979), 72 Ill. 2d 581; 42 Am. Jur. 2d Injunctions sec. 13 (1969).) It is an injunction issued pendente lite and is an ancillary remedy; it cannot be maintained as the sole relief sought. P.S.L. Realty Co. v. Granite Investment Co. (1976), 42 Ill. App. 3d 697, 356 N.E.2d 605.

The injunction sought here is not a preliminary injunction but rather a permanent or more accurately final injunction, since not all final injunctions last permanently. (See Bauer v. Sawyer (1956), 8 Ill. 2d 351, 134 N.E.2d 329.) It is not an ancillary remedy dependent on another action. While the plaintiff filed an action for rescission, the action to compel the establishment of the escrow account was in no way dependent on it. The plaintiff would still be entitled to escrow if the parties settled the rescission action and agreed on a conveyance of title a few months after the settlement agreement. Likewise, the injunction is not being mandated before a hearing on the merits; the sole issue here is whether the plaintiff is entitled to the establishment of the escrow account and that issue has already been determined.

In short, we hold that since plaintiff was entitled to the establishment of an escrow account with 5% interest running from the date when the separate payments were made, the trial court erred in refusing to order the establishment of the escrow account. Accordingly, we reverse the judgment with instructions that the trial court order defendants to establish the escrow account.

Reversed and remanded with instructions.

JOHNSON, P.J., and LINN, J., concur.


author: JUSTICE LONDRIGAN JUSTICE WEBBER,

text:
    JOHNSTOWNE CENTRE PARTNERSHIP, Plaintiff and Counterdefendant-Appellant and Cross-Appellee, v. GEORGE CHIN, JR. et al., Defendants and Counterplaintiffs-Appellees and Cross-Appellants.
    Fourth District
    No. 17693
    Opinion filed November 30, 1982.
    Rehearing denied December 28, 1982.

      WEBBER, J., concurring in part and dissenting in part.
    Pelini, Crewell & Sheffler, of Urbana, for appellant.
    Meyer, Capel, Hirschfeld, Muncy, Jahn & Aldeen, of Champaign, for appellees.
   JUSTICE LONDRIGAN

delivered the opinion of the court:

The plaintiff, Johnstowne Centre Partnership, developed a shopping block in Champaign and leased a site there to the defendants, George Chin, Jr. and Eddie Moy Chin, for operation of a restaurant. The Chins later repudiated their lease, and the Partnership sued: the trial court found the repudiation unjustified and awarded damages. On appeal the Partnership seeks additional damages; on cross-appeal the Chins argue that their own performance was excused by the Partnership’s two breaches of the lease and that the trial should have been reopened for the testimony of another witness. We conclude that the Partnership is entitled to additional damages but affirm the trial court’s decision in all other respects.

On February 25, 1976, the parties executed a 10-year lease beginning November 15, 1977, for a site in Johnstowne Centre, the new shopping area. The defendants formally repudiated the lease June 10, 1977. To mitigate damages the Partnership obtained a substitute tenant, the Parthenon Restaurant, who left about 20 months later; after an 8-month period of vacancy, the premises were rented to Giordano’s Restaurant. The Partnership appeals the trial court’s decision denying damages for the period between substitute tenants.

At trial the Chins asserted as counterclaims and affirmative defenses the Partnership’s failure to provide a promised cathedral or extra-high ceiling in their site and the Partnership’s decision to rent space elsewhere in the Centre to another restaurant, in violation of a restrictive covenant in their lease. To support the first counterclaim and affirmative defense, about the ceiling, the Chins moved to have the trial reopened to present the testimony of an architect who had helped design the premises; this witness was not located until after the end of the trial. The court found against the Chins on the counterclaims and affirmative defenses and denied their motion to reopen. The Chins raise these issues in their cross-appeal.

I

The Chins’ obligations under the lease began November 15, 1977. The lease requires monthly payments of rent and of fees; the fees are for maintenance of the Centre’s common areas and for membership in an association of the Centre’s merchants. The 10-year lease of the first substitute tenant, the Parthenon, began March 15, 1978, and the Parthenon made payments through November 30, 1979; effective July 1, 1979, the Centre’s merchants decided to increase the monthly fees for dues for membership in their association. The second substitute tenant, Giordano’s, began payments under a 10-year lease August 1, 1980, and was still a tenant at the time of the trial a year later. The trial court awarded damages — rents, fees, and interest — for the four months preceding the start of the Parthenon’s lease but denied recovery of rents and fees lost during the eight-month gap between the substitute tenants. The trial court gave two reasons for denying these damages. In an oral decision, the judge said that the Parthenon’s failure should not be assessable to the Chins; in a later written order he relied on an agreement between the Partnership and the Parthenon settling or terminating the Parthenon’s liability under its 10-year lease. The court awarded the Partnership other damages too and credited the Chins with their downpayment and deposit and interest on those amounts; these calculations produced a net award of $16,252.07 to the Partnership.

As support for the claim to damages for the eight-month period between substitute tenants, the Partnership relies on paragraph 14 of the Chins’ lease, which says:

“If Lessee’s right to the possession of the Premises shall be terminated in any way, the Premises, or any part thereof, may, but need not, be relet by Lessor *** but Lessor shall not be required to accept or receive any tenant offered by Lessee, nor to do any act whatsoever or exercise any diligence whatsoever, in or about the procuring of another occupant or tenant to mitigate the damages of Lessee or otherwise, Lessee hereby waiving the use of any care or diligence by Lessor in the reletting thereof; and if a sufficient sum shall not be received from such reletting to satisfy the rent hereby reserved, after paying the expenses of reletting and collection, *** Lessee agrees to pay and satisfy all deficiency; but the acceptance of a tenant by Lessor, in place of Lessee, shall not operate as a cancellation hereof, nor to release Lessee from the performance of any covenant, promise or agreement herein contained, and performance by any substituted tenant by the payment of rent, or otherwise, shall constitute only satisfaction pro tanto of the obligations of Lessee arising hereunder.”

The Partnership argues that it has done nothing that could be construed as releasing the Chins from their obligations.

We conclude that paragraph 14 of the lease entitled the Partnership to damages accruing in the period between substitute tenants: it expressly provides that reletting the premises does not cancel the Chins’ lease and that their obligations under it will be satisfied only to the extent of a substitute tenant’s payments. Paragraph 14 applies throughout the life of the Chins’ lease, 10 years.

Spear v. Haggarty (1912), 168 Ill. App. 559, reached the same result under similar circumstances. In that case Spear rented to Haggarty a residence for one year, from May 1, 1908, to April 30, 1909; the lease provided that if the lessee abandoned, deserted, or vacated the premises and the premises were vacant for five consecutive days, the lessor could re-enter and relet, and apply all the proceeds toward the rent accruing under the indenture. Haggarty moved out in August 1908, surrendering the keys, but did not try to find a substitute tenant. Later that year Spear found one, who paid some rent and who left in February 1909. The premises were then vacant until the expiration of Haggarty’s term. Spear sued for $145 in rent due under the lease, and the court affirmed a judgment in that amount in Spear’s favor:

“The sum of $145 is the balance due for rent from Haggarty for the entire term, less the sums received by Spear from said third party.” (168 Ill. App. 559, 560.)

Haggarty, the original tenant, therefore was liable for lost rents accruing after the departure as well as before the arrival of the substitute tenant.

The termination agreement between the Partnership and the Parthenon does not prevent recovery, for it concerned only the Parthenon’s past and not future obligations. The agreement was not introduced into evidence; Harold Halpern, one of the partners, testified that the agreement essentially provided that the Parthenon would repay in part' its notes that the Partnership held. Halpern explained that at some point during the tenancy the Parthenon ran short of money and gave the Partnership notes to offset reductions in its rent; the Parthenon was in or near bankruptcy at the end of its tenancy.

No evidence supports the Chins’ argument that the settlement agreement pertained to rents and fees accruing after the Parthenon vacated the premises. Even if the agreement did include such payments, they would be credited against the Chins’ liability and would not release them from their obligations under the lease.

The Chins argue that if the Partnership recovers for the eight-month period between substitute tenants, they should be credited with the difference between what Giordano’s will pay in rent and what their own lease requires.

Recovery for breach of a lease is limited, however, to amounts due at the time of trial. (People ex rel. Nelson v. West Town State Bank (1940), 373 Ill. 106, 25 N.E.2d 509 (bank receiver disaffirms lease; unless lease provides otherwise, the bank’s lessor may not recover rents accruing after the disaffirmance, for the receiver is liable only for claims on which a right of action exists at the time of his appointment, and the payment of future rents is not a current obligation); Dorris v. Center (1936), 284 Ill. App. 344, 1 N.E.2d 794 (lessor may sue for installments of rent as they come due, for several accrued installments, or for the entire amount at the end of the term).) In support of their argument the Chins cite Wanderer v. Plainfield Carton Corp. (1976), 40 Ill. App. 3d 552, 351 N.E.2d 630. In that case Plain-field Carton signed a five-year lease for a building but moved out before the end of its term; a substitute tenant was finally obtained, and that tenant paid more rent than Plainfield Carton’s lease required. In the lessor’s suit for damages accrued before the arrival of the substitute tenant, the court held that Plainfield Carton was entitled to credit for the excess amount of rent received by the lessor. The Chins correctly point out that Plainfield Carton was seeking credit for excess amounts that the lessor stood to receive under the substitute tenant’s lease.

“On appeal in this court, defendant Plainfield contends that the trial court should have credited defendant (as an offset to its liability for delinquent rent) with rental received and to be received by the landlord, Wanderer, from a new tenant during the balance of the original lease term, to the extent that those rentals exceeded the rent called for in the original lease.” (Emphasis added.) (40 Ill. App. 3d 552, 553-54, 351 N.E.2d 630, 632.)

The court allowed credits through the end of Plainfield Carton’s term.

We decline to follow Wanderer on this question. We note that the original or underlying lease was for only five years and that it expired some six weeks before the appellate court filed its opinion. Also, the court did not discuss the timeliness of the claim for credits; apparently the lessor did not raise this issue.

Crediting the Chins with the greater rent that Giordano’s is obligated to pay would be speculative, given the length of time remaining on the Chins’ lease. We therefore see no reason in this case to depart from the rule of West Town State Bank and Dorris that actions for rent — and lessees’ credits — should be based on accrued rather than future payments and obligations.

II

The Chins argue that the Partnership violated a restrictive covenant in their lease by renting space elsewhere in the Centre to another restaurant, Lox, Stock, and Bagel (LS&B). LS&B signed its lease a month after the Chins signed theirs. Paragraph 32 of the Chins' lease says:

“RESTRICTIVE COVENANT. Lessor agrees that it will not permit any other tenant within JOHNSTOWNE CENTRE to operate restaurant facilities, except that Lessor may rent for purposes of a coffee shop or other snack shop operation premises not to exceed 1,500 square feet of interior space, plus outside seating area immediately adjacent to such premises. Said coffee shop or snack shop will have a limited menu and will not sell complete meals. Lessor will not permit any other tenant of JOHNSTOWNE CENTRE to obtain a liquor license for consumption of beverages on the premises within JOHNSTOWNE CENTRE. Notwithstanding the foregoing, any tenant within JOHNSTOWNE CENTRE shall be permitted to sell, as incidental to its operation, ice cream, candy, soft drinks, milk, packaged liquors, cheeses, grocery items and ‘carry-out’ snacks. This restriction also applies to the sixty-four front feet of property immediately East of Johnstowne Centre.”

The Chins argue that LS&B is a restaurant, not a coffee or snack shop, and that its menu is a complete one.

Three witnesses testified about this issue: John Kiser, part owner and manager of LS&B, who described LS&B’s menu and operations, and defendant George Chin, Jr. and Harold Halpem, one of the partners, who explained what their expectations were when they negotiated the covenant. The trial judge called LS&B “a restaurant with a limited menu” and held that it conformed to the covenant.

A lessor’s violation of a restrictive covenant like the one here is a breach of the lease. (University Club v. Deakin (1914), 265 Ill. 257, 106 N.E. 790.) We conclude, however, that the Partnership has complied with the covenant.

Kiser testified that LS&B’s menu remains the same throughout the business day, 11 a.m. to 9 p.m., and consists of sandwiches, soups, a salad bar, beverages, and desserts. Service is informal: customers line up at a counter, place their orders, wait as the food is prepared, and then slide trays on a cafeteria rail to a cashier. Customers also clear their tables when they are done eating; the baskets in which the food is served and the trays are the only items that LS&B reuses. Almost all the kitchen equipment is machinery for making bagels.

Each party presented, without objection from the other, parol evidence on the meaning of the covenant. Defendant George Chin, Jr., testified that during negotiation of the lease in autumn 1975, Harold Halpem referred to a similar project in Bloomington, Indiana, containing a store called the Nutcracker Sweet that sold yogurt and cookies and other desserts. Halpem showed Chin a photograph of the store and told him that a similar one was planned for the site that LS&B occupies.

In rebuttal, Halpern contradicted Chin’s recollection. Halpem confirmed showing Chin a photograph of the Nutcracker Sweet but testified that it served sandwiches, soup, salad, and egg dishes in addition to yogurt and desserts; Halpern testified that he “described the operation quite fully” to Chin.

The trial court’s decision on this question is not against the manifest weight of the evidence. LS&B serves a limited variety of food in an informal manner. Although the covenant does not define what it prohibits — restaurants and complete meals — and what it permits — limited menus and snack and coffee shops — its tenor is broad enough to include LS&B. This finds support in Halpern’s testimony. The Nutcracker Sweet’s menu, as he described it, is no more limited than LS&B’s, and the parties used the Nutcracker Sweet as an example of what the covenant would permit.

Ill

The Chins argue that the initial plans and specifications that were attached to and made a part of their lease showed a cathedral or extra-high ceiling for their site, that the.final plans did not provide the type of ceiling, and that clause (b) of rider B of the lease required that all changes in plans be approved by both lessor and lessee. That clause says in part:

“All items to be provided by lessor as set forth above will be installed in accordance with plans mutually approved.”

The items that the lessor promised to provide included “[ejnclosed area for Lessee’s occupancy” and “[e]xterior design of Premises in accordance with preliminary plans submitted by Lessee.”

George Chin, Jr. testified that in negotiating the lease he asked for a cathedral ceiling, 25 to 40 feet high, with skylights and room for a balcony and trees; Chin wanted the restaurant to be roomy and dramatic. The initial plans provided the desired ceiling, according to Chin, as did some drawn in August 1976, but the final plans, which he saw late in 1976 — construction started in March 1977 — gave much less interior space.

Neil Strack, an architect, testified for the Chins; he was not involved in designing or constructing the Centre. Examining at trial the initial plans that were attached to the lease, Strack said that they show an extra-high ceiling over more than half the Chins’ floor area but do not specify the height of the ceiling. The final plans provide a high ceiling over a smaller part of the floor area, and the ceiling varies in height from 28 to 14 to 10 feet. The initial plans are not detailed and do not show what type of roof — cathedral or shed — was intended.

Delbert Smith, the Chins’ architect in 1976, also said that the initial plans do not show which type of roof was intended; drawings that were circulated among the parties in late spring or early summer 1976 showed a cathedral roof. Later that summer Smith saw drawings with a shed roof and told George Chin, Jr., of the change.

Three letters from Halpern to the Chins were introduced into evidence. The first, dated September 17, 1976, instructed the Chins and their architect to work with the Partnership’s architect. The second letter, dated October 21, 1976, said that the Centre’s plans were complete, that the Chins’ plans for the interior of their site had not been received, and that the Centre was assuming that the kitchen would be a certain size. The third letter, dated November 2, 1976, said that construction was about to start, that assumptions had been made in the absence of the Chins’ plans, and that any changes would be made at their expense.

Halpern testified that before the lease was signed he and the Chins talked about ceiling heights — the ceilings in all the other first-floor sites of the Centre are 10 feet. The Chins did not specify a desired height but did say that they wanted a high ceiling with room for plants. Halpern also testified that the Chins did not respond to his first two letters; he sent the third by certified mail. Halpern telephoned them several times in September and October 1976 to talk about the plans, but the Chins were never in and did not return the calls. During that period Halpern spoke to George Chin, Jr., four or five times in person, telling him to review the plans. By the end óf November 1976, however, the Chins said that they were unhappy with the final plans.

Halpern testified that the only difference between the initial and final plans was the substitution of beams for trusses to support the roof, which made a balcony possible. Copies of the final plans were sent to Smith.

The trial judge, in his oral decision, said that the Chins waived any right under clause (b) of rider B to disapprove plans; he emphasized the Chins’ failure to act after receiving Halpern’s letters. This decision is not against the manifest weight of the evidence. Even if the Partnership materially altered the plans, it did not attempt to make a secret of that. The record shows that plans were sent regularly to the Chins or their architect; Halpern’s letters warned them that construction would proceed without their plans. Alternatively, the extent of the change in plans is in dispute. According to Halpern, the only change was a minor one. The witnesses also disagreed on exactly what the initial plans provided in the way of a ceiling and roof, though all thought that they were somewhat ambiguous.

IV

The Chins also argue that the trial court should have granted their motion to reopen the case to hear the testimony of Daniel Czekanski, the Partnership’s architect. In the motion the Chins asserted that Czekanski was a material witness and was not found until July 30, 1981, which was a month after the end of the trial, practicing architecture in Danville. In an affidavit accompanying the motion Czekanski said, in substance, that Halpern instructed him to save money by lowering much of the ceiling provided in the initial plans and hoped that the Chins and their architect, Smith, would not notice the change. Czekanski also said that he could easily have told Smith of the change but did not.

The parties have correctly construed the motion as one for a new trial to hear newly discovered evidence. (See Stocker v. Scherer (1953), 1 Ill. 2d 405, 115 N.E.2d 614.) A party requesting such relief must show that the evidence is likely to cause a different result and could not, with diligence, have been produced during trial. (People ex rel. Cizek v. Azzarello (1980), 81 Ill. App. 3d 1102, 401 N.E.2d 1177.) The Chins have not shown why Czekanski could not have been discovered sooner. In a discovery motion they asked for Czekanski’s location, but the Partnership did not know. The Chins did not request a continuance during trial so that they might have time to find their witness.

Czekanski’s affidavit supports the Chins’ counterclaim and affirmative defense that the Partnership unilaterally changed an important part of the initial plans. This does not, however, overcome the trial court’s main reason for denying relief under that theory: the Chins waived their right of approval by failing to respond to Halpern’s calls and letters.

The decision on the motion was reserved to the trial court’s discretion (In re Estate of Goodman (1976), 36 Ill. App. 3d 773, 344 N.E.2d 718), and we cannot say, under the circumstances here, that that discretion was abused.

Affirmed in part, reversed in part, and remanded.

GREEN, P.J., concurs.

JUSTICE WEBBER,

concurring in part and dissenting in part:

Although I am less than totally convinced that a proper disposition has been made of the issues raised by Chins in their cross-appeal, especially with reference to another restaurant in the Centre, yet I will defer to the trial court on these matters and concur in the majority’s holding on these. I cannot concur in their disposition of the question of Chins’ liability for rent during the interim period between tenants and dissent on that point.

The majority speaks of the Parthenon and Giordano as “substitute tenants” and places great reliance on paragraph 14 of the Chin lease. In my judgment the operative word in paragraph 14 is “reletting.” The principal question to be determined is the intention of the Centre in “reletting” to the Parthenon and Giordano. It is undisputed that new leases were made with each of these entities, longer in time than the term of the Chin lease, and in Giordano’s case, at a greater rental.

It seems to me that there is a qualitative difference between substituting a tenant under an existing lease and making an entirely new lease with the new tenant. In the former case, it would appear prima facie that the landlord was attempting to mitigate the damages; in the latter case, it becomes acceptance of the surrender of the former tenant and releases him from his obligations under the lease. Paragraph 14 of the Chin lease renounces any duty to mitigate and in a broad sense this holds the key to what the Centre was in fact doing.

The courts of Illinois have not pursued any consistent theory on mitigation. In Reget v. Dempsey-Tegeler & Co. (1968), 96 Ill. App. 2d 278, 280-81, 238 N.E.2d 418, the following general statement appears:

“The majority rule in the United States is that the landlord has no duty whatsoever to mitigate damages in a case of this kind, even to the extent that he can arbitrarily refuse a suitable subtenant offered by the lessee. 31 ALR2d, p 831; 51 CJS, Landlord and Tenant, p 550, § 36; 32 Am Jur, Landlord and Tenant, § 412, p 338. The rationale is that the tenant cannot by his own wrong in abandoning the premises impose a duty upon the landlord. 32 Am Jur, § 519, p 423.
Illinois does not follow the majority rule completely. There is a conflict in Illinois as to whether the landlord has a general duty to mitigate or a duty to mitigate only in those instances where the tenant has tendered a suitable subtenant. In West Side Auction House Co. v. Connecticut Mut. Life Ins. Co., 186 Ill 156, 57 NE 839, the court said: ‘Upon abandonment of the leased premises by the tenant it was the right and the duty of the landlord to take charge of the premises, preserve them from injury, and if it could, re-rent them, thus reducing the damage for which the lessee was liable.’ Id. at 161. See also Contratto v. Star Brewery Co., 165 Ill App 507; Hinde v. Madansky, 161 Ill. App. 216. However, later, and in our opinion, better-reasoned opinions have extended the duty to mitigate only to those instances where the tenant has tendered a suitable subtenant. Wohl v. Yelen, 22 Ill. App2d 455, 161 NE2d 339; Scheinfeld v. Muntz TV Inc., 67 Ill App2d 8, 214 NE2d 506. In Wohl, the court reviewed the law relating to whether a general duty to mitigate damages on abandonment exists.
‘The same conflict exists in other jurisdictions. The majority favor the rule against requiring the lessor to re-enter and use diligence in re-renting .... A minority apply a rule of mitigation similar to that used in other contracts ....
‘Virtually all cases refusing to accept the rule of mitigation involve landlords who have not re-entered and have not been presented with acceptable tenants by the defaulting tenant. These cases therefore may be said to hold that a landlord need not seek out new tenants after the defaulting tenant abandons.’ Id. at 463-464.’ ”

See the general discussion of the problem: Bulkeley, Does a Landlord Have a Duty to Mitigate Damages When a Tenant Abandons During the Lease? 68 Ill. B.J. 588 (1980).

It is interesting to note that the language in paragraph 14 of the Chin lease is with miniscule variations identical with the language found in Hirsch v. Home Appliances, Inc., (1926), 242 Ill. App. 418, 420. In Hirsch the court found no duty to mitigate.

In the instant case, then, the lease itself renounces the duty to mitigate and Hirsch, almost on all fours so far as language is concerned (mirabile dictul), states that as a matter of law there is no such duty. What, therefore, was the Centre doing? It made no demand on Chins for the payment of rent; it served no notice that it was seeking a substitute tenant; it never communicated to the Chins that it would hold them responsible for any deficiency in rent. What it did do, not once but twice, was to make a new lease with a different tenant. That was its choice and in my judgment was an abnegation of any intent to mitigate, notwithstanding it had no duty to do so.

The execution of the new leases was tantamount to an acceptance of Chins’ surrender. The general rule is stated in 51c C.J.S. Landlord & Tenant sec. 125(8) (1968) as follows:

“Ordinarily the execution of a new lease for a term extending beyond that fixed in the original lease, with the tenant’s consent, is an indication of an intent to accept the surrender, even if the original lease authorizes the landlord to relet on the tenant’s account without thereby terminating the lease; but it is not conclusive of such intent.
A reletting by the landlord on his own account constitutes an acceptance of the surrender. So an unqualified taking of possession by the lessor and reletting of the premises by him, if done pursuant to the tenant’s surrender, constitute an acceptance of the surrender and release the tenant; and where nothing is said as to the reletting, and the original lessee is not notified and does not consent, and there is no provision in the lease with regard thereto, the general rule is that the reletting shows an acceptance of the surrender, although the contrary rule seems to prevail in some states, and the tenant is not thereby released from liability on the lease.”

A similar statement is found in 49 Am. Jur. 2d Landlord and Tenant sec. 625 (1970):

“Consent to a surrender terminating liability for rent should not be implied from the mere fact of a reletting, in a jurisdiction which follows the view that the landlord is bound to reduce the damages resulting from a wrongful abandonment by the tenant by reletting the premises if possible. Conversely, in a jurisdiction which adheres to the general rule that a landlord is not required to attempt to relet the premises for the benefit of a tenant who has abandoned the premises wrongfully, the act of a landlord in reletting the premises, following an abandonment thereof, is not to be considered as indicating by itself an attempt on the part of the landlord to mitigate the damages for the benefit of the abandoning tenant, rather than as an acceptance of a surrender of the premises. On the other hand, the landlord’s act in reletting for the purpose of minimizing the damages from a wrongful abandonment is undoubtedly proper, although not required, and does not necessarily constitute an acceptance of a surrender.”

Clearly the rules on acceptance of surrender are no more hard- and-fast than those pertaining to mitigation, but under all the circumstances of this case the actions of the Centre indicate to me the former. Those actions, because of a dearth, even a total lack, of hard evidence of intent, are ambiguous, but they fit more closely into the mold of acceptance of surrender than into the pattern of mitigation. Although not specifically articulated by the trial court, I feel that this was the basis of its decision in denying to the Centre rentals for the interim period and it should be affirmed on that basis.

Since I feel that no calculation of rentals is required under the theory of acceptance, I need not reach the question of larger rent from Giordano, but I also dissent vigorously from the majority’s cavalier rejection of Wanderer v. Plainfield (1976), 40 Ill. App. 3d 552. Mitigation, if it exists, must be fair and is a two-way street.