author: JUSTICE PERLIN

text:
    ROY A. WITTY et al., Plaintiffs-Appellants, v. C. CASEY HOMES, INC., et al., Defendants-Appellees.
    First District (2nd Division)
    No. 80-2012
    Opinion filed December 15, 1981.

      Zipperman, Levin & Associates, Ltd., of Chicago (Edward S. Lipsky and Adrienne Zipperman Shaps, of counsel), for appellants.
    Morgan, Tuchow & Karzov, of Chicago (Martin Tuchow, Arnold J. Karzov, and Philip S. Witt, of counsel), for appellee C. Casey Homes, Inc.
   JUSTICE PERLIN

delivered the opinion of the court:

This is a breach of contract action brought by plaintiffs, Roy A. and Anne Witty, against defendants, C. Casey Homes, Inc., a home-building contractor, and Davia and Benda, Inc., a masonry subcontractor. In their complaint plaintiffs alleged that contrary to the specifications in the building contract, which called for “face brick veneer,” defendants substituted defective ordinary brick. In a bench trial defendant Davia and Benda was dismissed because it was not a party to the contract with plaintiffs. Plaintiffs have not appealed that order.

The trial court found that defendant Casey, the builder-vendor, had breached the contract but held that plaintiffs were not entitled to recover the estimated cost of correcting the defect ($50,000) because the method of correction, requiring the replacement of every brick in the home, was impractical. The court suggested that the proper measure of damages in this case was the diminution in value of the residence caused by installation of the defective brick. Since plaintiffs presented no evidence of loss of value, the court entered judgment for defendant Casey. From that judgment plaintiffs appeal contending (1) that the trial court erred in refusing to apply the cost of repair measure of damages for breach of a building contract; and (2) that the trial court should have awarded plaintiffs the cost of repair for breach of the implied warranty of habitability adopted in Petersen v. Hubschman Construction Co. (1979), 76 Ill. 2d 31, 389 N.E.2d 1154. For the reasons which follow, we affirm the judgment of the trial court.

On October 5, 1972, plaintiffs entered into a building contract with defendant Casey for the construction of a single family residence in Oak Lawn, Illinois. The contract price was $54,566. Casey agreed to provide “all the materials necessary, and to make, erect, build and complete in a good, substantial and workmanlike manner,” a home according to the specifications set forth in “Anderson Associates Plan #5631,” which was attached to the contract. Paragraph three of the specifications states:

“Exterior walls-. Face brick veneer as shown on plan. Face brick not to exceed $80.00 per thousand. Point all loose brick and joints.”

Witty paid Casey the agreed upon contract price. Sometime after the residence was completed and Witty had taken possession, he noticed a problem with the brickwork: “It’s flaking and popping, white particles from the interior of the brick [were] working their way to the exterior, popping off the surface of the brick.” Casey failed to remedy the problem after Witty brought it to his attention. Witty subsequently brought suit against Casey, the builder-vendor, and Davia and Benda, the masonry subcontractor, alleging that defendants, without Witty’s consent, had substituted defective ordinary brick in place of the face brick veneer required by the contract, and that the brick installed was deteriorating and disintegrating.

Witty testified that he did not select the brick to be used in the construction of the home. He had, however, picked out a particular color by pointing out that color on another residence built by defendant Casey on the same street on which the Witty home is situated. He also described the “flaking and popping” problem he had observed. Witty admitted that he saw the brick on the premises before it was installed but did not inspect it.

Paul E. Flood, an engineer employed by Walter H. Flood & Co., testified on behalf of the plaintiffs. After being qualified as an expert, Flood described what he had discovered in examining the brick at the Witty home:

“We found that the bricks were what would be termed common brick; they had a dark applied flashing to them; they contained lime balls that cause pop-outs in the brick that created some unsightly defects in the face of the brick, in the exterior walls of the brick; that we revealed these white particles, the lime balls, behind each pop-out that occurred.”

In court Flood identified a brick removed from the fireplace wall as “Chicago common brick” which has an applied dark facing. The sample had defects that cause pop-outs. An analysis of the sample brick revealed that the material behind the pop-outs consisted essentially of lime,

0 0 which are called in the industry ‘lime balls,’ that get in with clay sometimes, and, in the firing process of the brick, they are dehydrated, the calcium oxide. And when the brick is fired, they’re interior in the brick.
And then as it ages, as it oxidizes through atmosphere and through moisture, these lime balls will convert back to lime or calcium carbonate and ultimately, with expansion, causes the defects in this brick and more serious in some others.”

Some of the bricks in the home were “very badly warped out” more than one-quarter of an inch.

Witty’s contract specified “face brick veneer.” Flood testified that “face brick” is “brick made to a more stringent specification than common brick. It’s e * # usually made from more select clays, it has a tighter quality control as far as warpage and distortion is concerned. It usually has a tighter quality control as far as color is concerned.” “Brick veneer” indicates “a frame residence with brick applied to the outside as a facade to the wall. It’s not a structural bearing member that it would be if it were solid masonry construction.” Flood found no face brick in the structure. The defective brick did not affect the stability of the home.

Flood estimated that “it would cost $50,000 or more to replace the face brick in the residence.” This estimate was based on the number of man-hours of labor required ($14 per hour plus fringe benefits for each of two bricklayers plus the wages for a laborer), the cost of the bricks (approximately 8,000 face bricks which, at the time of trial, were priced between $120 and $160 per thousand), and the cost of the wood trim that would have to be replaced. In order to effect the repairs, every brick in the house would have to be replaced, the work “would have to be done in stages to shore up part of the building * * * to minimize any damages to the interior or exterior of the house” and all of the wood trim on the doors, windows and fascia would have to be removed before the defective bricks could be taken out. The work could result in “much damage to doors, door frames, window frames,” and “a sliding glass door * *

Plaintiffs rested without offering any evidence that the installation of the allegedly defective brick caused a diminution in the value of the premises.

In defense, Casmer Solewski, president of C. Casey Homes, Inc., the builder-contractor, testified that Witty had selected the particular type of brick which was to be used in the construction of his home from another fully constructed residence which Witty viewed in the same subdivision Casey had developed. Common brick can be used as a veneer, provided that the inner frame portion of the residence is constructed before the brick is placed on the outer wall. Solewski testified that there is a difference in price between face brick and common brick but that the brick used in the Witty home is also used for facing.

Solewski testified further that the popping of lime deposits does not weaken the brick or affect the structural stability of the residence. He was not aware of any latent defect in the brick Witty selected.

At the conclusion of the evidence, defendant Davia and Benda was dismissed from the action because it was not a party to the contract between the Wittys and Casey. Casey thereafter moved for judgment in its favor because of plaintiffs’ alleged failure to prove a proper measure of damages. The trial court found that Casey had breached the contract by not supplying the brick specified in the contract. The court, however, entered judgment in defendant’s favor because plaintiffs’ proposed measure of damages, cost of repair, was impractical and plaintiffs had introduced no evidence that the defective brick had diminished the value of the home.

I

The first issue in this case is the proper measure of damages for breach of a building contract.

“As a general rule, the measure of damages or the credit due the purchaser, when performance by the builder has been less than full performance, is the cost of correcting the defects or completing the omission, rather than the difference in value between what ought to have been done in full performance and what was actually done. But this general rule only applies where the correction or completion would not involve unreasonable destruction of the work done by the contractor and the cost thereof would not be grossly disproportionate to the results obtained. If to repair the defects or omissions would require a substantial tearing down and rebuilding of the structure, the measure of damages is the difference in value between the work if it had been performed according to the contract and that which was actually performed.” Brewer v. Custom Builders Corp. (1976), 42 Ill. App. 3d 668, 674, 356 N.E.2d 565.

Plaintiffs’ own expert testified that the cost of replacing the common brick with the face brick called for in the specifications would be at least $50,000, which approximates the original contract price for the entire residence, $54,566. The work would require taking out every brick in the home, shoring up part of the structure to minimize damage to both the exterior and the interior, and removing all of the exterior wood trim. The project could result in extensive damage to doors, door frames, window frames and a sliding glass door. Based on this testimony, we believe that the proper measure of damages was, as the trial court indicated, diminution in value attributable to the defect and not the cost of repair. Plaintiffs, however, failed to introduce any evidence of diminished value. On December 11,1979, 2)i months after trial, the trial court refused plaintiffs’ request to reopen the case “to prove damages.” The colloquy between plaintiffs’ counsel and the court, however, indicates that plaintiffs sought to reopen the case for the purpose of presenting additional evidence regarding the cost of repair and not for the purpose of proving diminished value. Since we have determined that in this instance the cost of repair was not the appropriate measure of damages, we find no prejudice to plaintiffs in the trial court’s denial of leave to reopen. Accordingly, the trial court properly entered judgment for defendant Casey on plaintiffs’ complaint for breach of contract. We note that none of the cases plaintiffs cite applied the cost of completion or correction measure of damages to facts similar to those present here.

II

The second issue presented is whether plaintiffs are entitled to recover the cost of repair for breach of the implied warranty of habitability adopted by the supreme court in Petersen v. Hubschman Construction Co. (1979), 76 Ill. 2d 31, 389 N.E.2d 1154.

Petersen was decided on May 18, 1979. Plaintiffs’ suit was tried on September 27, 1979, and judgment was entered on December 11, 1979. Plaintiffs’ post-trial motion was not denied until June 16, 1980. Plaintiffs tried their case solely on a theory of breach of an express provision of a written contract. Although their failure to seek recovery for breach of the implied warranty of habitability announced in Petersen would normally bar consideration of that theory on appeal (Kravis v. Smith Marine, Inc. (1975), 60 Ill. 2d 141, 147, 324 N.E.2d 417), defendant has not argued waiver. We therefore address the merits of plaintiffs’ argument.

In Petersen the supreme court held that “in the sale of a new house by a builder-vendor, there is an implied warranty of habitability which will support an action against the builder-vendor by the vendee for latent defects, * * (Petersen v. Hubschman Construction Co. (1979), 76 Ill. 2d 31, 39-40.) The defects must be “substantial.” (76 Ill. 2d 31, 43, 44.) The test of “habitability” is not whether the house is capable of being inhabited but whether the house is reasonably suited for its intended use as a residence. 76 Ill. 2d 31, 40-42.

The defect in the present case is essentially an aesthetic one unrelated to the structural integrity of the residence. Neither Petersen nor any opinion construing it has determined whether latent defects that ultimately render a house aesthetically unsatisfying constitute a breach of the implied warranty of habitability. Even assuming, arguendo, that the latent defects in the brick installed in plaintiffs’ home did breach that warranty, we cannot conclude, on the basis of the facts in this case, that the cost of repair was the proper measure of damages.

Petersen did not state which measure of damages — cost of repair or diminution in value — applies to breaches of the implied warranty of habitability. This was because the plaintiffs repudiated the contract and sought restitution. Nevertheless, cases decided both before and after Petersen have held that the measure of damages for breach of the implied warranty of habitability is the cost of repair. (Colsant v. Goldschmidt (1981), 97 Ill. App. 3d 53, 57-58, 421 N.E.2d 1073; Park v. Sohn (1980), 90 Ill. App. 3d 794, 799, 414 N.E.2d 1, appeal allowed, October 19, 1981, Docket 54568); Hanavan v. Dye (1972), 4 Ill. App. 3d 576, 580, 281 N.E.2d 398; Weck v. A:M Sunrise Construction Co. (1962), 36 Ill. App. 2d 383, 396, 184 N.E.2d 728.) Unlike the instant case, however, the repairs in these cases did not entail unreasonable destruction of the premises, nor was the cost of repairs grossly disproportionate to the results obtained.

No Illinois case has yet decided whether the diminution in value standard of damages should apply to breaches of the implied warranty of habitability where the cost of correction or completion standard would result in economic waste. We note, however, that other jurisdictions that have recognized the existence of an implied warranty of habitability and have adopted the cost of repair as the usual measure of damages have held that the cost of repair is not to be used where “the defects cannot be remedied without reconstruction of a substantial portion of the work.” Dobler v. Malloy (N.D. 1973), 214 N.W.2d 510, 516, 518; accord, Rogowicz v. Taylor and Gray, Inc. (Tex. Civ. App. 1973), 498 S.W.2d 352, 354; Moore v. Werner (Tex. Civ. App. 1967), 418 S.W.2d 918, 920; Bolkum v. Staab (1975), 133 Vt. 467, 346 A.2d 210, 212.

We believe the rule set forth in these cases is sound and assures symmetry in the law. Whether plaintiffs sue for breach of a building contract or for breach of the implied warranty of habitability, the measure of damages should be the same. The normal measure will be the reasonable cost of correcting the defects or completing the omission. Where, however, application of that measure of damages would require an unreasonable destruction of the work done by the contractor or would incur costs disproportionate to the results obtained, the appropriate measure of damages is the diminution in value attributable to the defects in construction. For the reasons previously set forth, we find that the proper measure of damages in the instant case for breach of the implied warranty of habitability (assuming there was a breach) was the loss of value caused by the defective brick. Since plaintiffs offered no evidence of diminished value, the trial court properly entered judgment for defendant Casey. Accordingly, the trial court’s judgment is affirmed.

Affirmed.

HARTMAN, P. J., and DOWNING, J., concur.

       In Colsant the court affirmed a $684 judgment which compensated plaintiff for his costs in drying out a carpet and replacing a carpet pad damaged by water seepage from a blocked drain tile; in Park the court found that damages of $2707 were inadequate to compensate plaintiffs and remanded the cause for a hearing on damages. Plaintiffs’ damages included water seepage-, a faulty septic system, side lot building restriction violation and a nonfunctioning sump pump and drain tile system; in Hanavan the court affirmed a $588 judgment for water damage where the purchase price of the home was $31,500; and in Week the court affirmed a $1793 judgment which included the costs of applying a waterproofing compound, repairing a leaking roof, correcting a leak in a bathroom, replastering a cracked and caved in ceiling, replacing warped kitchen cabinets, resetting and rehanging a door, installing street curbing and a driveway and filling a hole six feet deep that was the width of the lot and extended the length of the back yard.


source: Caselaw Access Project

author: JUSTICE STAMOS

license: Public Domain

text:
    AL LIASKIS, Plaintiff-Appellant, v. JEANETTE FEILING, Defendant-Appellee.
    First District (2nd Division)
    No. 80-2625
    Opinion filed December 15, 1981.
    Murges and Bowman, Ltd., of Chicago, for appellant.
    William P. Wilen and Helen Cropper, both of Legal Assistance Foundation, of Chicago, for appellee.
   JUSTICE STAMOS

delivered the opinion of the court:

AI Liaskis initiated a forcible entry and detainer action to recover possession of premises occupied by Jeanette Feiling. In response, Feiling filed four counterclaims and an affirmative defense alleging retaliatory eviction. Prior to trial, Feiling voluntarily dismissed her counterclaims and the parties agreed to judgment for possession in favor of plaintiff. The trial court subsequently denied plaintiff’s section 41 petition for costs and attorney fees. Plaintiff appeals.

Defendant was a tenant in an apartment building owned by plaintiff. On December 3, 1979, plaintiff filed a forcible entry and detainer action to recover possession of the premises. Defendant contacted the offices of the Legal Assistance Foundation of Chicago, which in turn requested Northeastern Illinois University’s Tenant Rights Center to inspect defendant’s apartment. Representatives of the Center visited the apartment on December 11, 1979, and confirmed defendant’s reports of alleged building code violations in the building. Defendant prepared an answer to the complaint, including the affirmative defense of retaliatory eviction and four counterclaims for damages totalling more than $9,000. The counterclaims were generally based on the alleged building code violations and the uninhabitable condition of the apartment. Although this pleading was verified by defendant on December 17, it was not filed on that date because the original complaint was dismissed for want of prosecution.

On December 28,1979, plaintiff’s motion to vacate the dismissal was granted and defendant filed her pleading. Plaintiff was granted leave to file responsive pleadings on or before January 17, 1980. A hearing on plaintiff’s motions pursuant to sections 41, 45, 48(i) and 57 of the Illinois Civil Practice Act (Ill. Rev. Stat. 1979, ch. 110, par. 1 et seq.) was set for January 22, and trial was set for January 24, 1980. At the January 22 hearing, defendant was given a 2-day extension, to January 24, to respond to plaintiff’s motions. On January 24, plaintiff accepted defendant’s offer to vacate the premises. Plaintiff did, however, specifically request a hearing on his section 41 petition for attorney fees and costs based on his assertion that defendant’s allegations were untrue and made without reasonable cause. The matter was continued and leave was granted defendant to withdraw her counterclaims. On February 6,1980, a writ of restitution was filed with the sheriff of Cook County because defendant failed to comply with the January 24 agreed order.

Defendant presented her memorandum in opposition to plaintiff’s motion for attorney fees and costs to the trial court on March 4, 1980. Plaintiff’s memorandum in support of his motion was filed on April 14, 1980. A complete hearing was held on September 29,1980, at which time the trial court denied plaintiff’s motion. It appears from the record that the denial was based on the trial court’s belief that voluntary dismissal of the forcible entry and detainer action mandated a denial.

Plaintiff contends that the trial court erred in denying, as a matter of law, plaintiff’s petition for fees pursuant to section 41 of the Illinois Civil Practice Act. Plaintiff argues that the trial judge denied the motion solely because there was a voluntary dismissal of the original forcible entry and detainer action and he asserts this was improper. Section 41 states:

“Untrue statements. Allegations and denials, made without reasonable cause and found to be untrue, shall subject the party pleading them to the payment of reasonable expenses, actually incurred by the other party by reason of the untrue pleading, together with a reasonable attorney’s fee, to be summarily taxed by the court upon motion made within 30 days of the judgment or dismissal.” Ill. Rev. Stat. 1979, ch. 110, par. 41.

The awarding of expenses and attorney fees rests entirely within the discretion of the trial court. (Voss v. Lakefront Realty Corp. (1977), 48 Ill. App. 3d 56, 72, 365 N.E.2d 347.) In Ascaridis v. Russis (1979), 78 Ill. App. 3d 376, 397 N.E.2d 14, the original action progressed only to the pleading stage before it was voluntarily dismissed. The appellate court in that case concluded that because the pleadings presented unresolved questions of fact, a trial on the merits would be required to determine if the defendant’s claims were untrue and made without reasonable cause. The court pointed out that it would have been anomalous to conduct proceedings on the merits in an action already dismissed. 78 Ill. App. 3d 376, 378.

The case at bar presents the same situation as in Ascaridis. Defendant here voluntarily dismissed her counterclaims, and there remained unresolved questions of fact (i.e., whether defendant’s allegations were in fact untrue and whether they were made without reasonable cause), resolution of which was necessary for the granting of plaintiff’s section 41 petition. As in Ascaridis, it would be anomalous for the trial court to hold a hearing on the merits of a case which has already been dismissed.

This is not to say that a section 41 petition can never be granted where there has been a voluntary dismissal of the underlying action. As this court held in Grover v. Commonwealth Plaza Condominium Association (1979), 76 Ill. App. 3d 500, 394 N.E.2d 1273, there may be instances where the pleadings and other evidence" already in the record contain sufficient facts for the court to determine if the requirements of section 41 have been met. (76 Ill. App. 3d 500, 512.) In such a case, a proceeding on the merits would be unnecessary and the trial court in its discretion can grant the petition even though the original action has been dismissed by the party charged with making the untrue allegations. It is also permissible for a trial court to make an award of fees under section 41 on its own motion. Brokaw Hospital v. Circuit Court (1972), 52 Ill. 2d 182, 185, 287 N.E.2d 472.

Plaintiff makes much of the fact that the trial court appears to have denied his section 41 petition solely because defendant’s allegations were voluntarily dismissed. The question before this court, however, is the correctness of the result reached by the trial court and not the correctness of the trial court’s reasoning. (People v. York (1963), 29 Ill. 2d 68, 71, 193 N.E.2d 773.) Since we find that the trial court did not abuse its discretion in denying plaintiff’s section 41 petition, the trial court’s denial of plaintiff’s section 41 petition is affirmed.

The decision of the trial court is affirmed.

Affirmed.

HARTMAN, P. J., and PERLIN, J., concur.


text:
    GOVIND LAKSHMAN et al., Plaintiffs-Appellants and Cross-Appellees, v. VINCENT VECCHIONE et al., Defendants-Appellees and Cross-Appellants.
    First District (2nd Division)
    No. 80-2967
    Opinion filed December 15, 1981.
    DiMonte, Baker & Lizak, of Chicago (Eugene A. DiMonte and Gary L. Goldblatt, of counsel), for appellants.
    Mass, Miller & Josephson, Ltd., of Chicago (Cary S. Fleischer, of counsel), for appellees.
   JUSTICE PERLIN

delivered the opinion of the court:

Govind Lakshman and his wife Molini Lakshman (plaintiffs) filed in the circuit court of Cook County an action for declaratory relief with respect to an alleged contract for the sale of real estate. Plaintiffs appeal from a summary judgment entered in favor of defendants Vincent Vecchione, the beneficial owner of a land trust, American National Bank and Trust Company, the trustee, and Russell G. Miller, their attorney (collectively referred to as defendants).

The following issues are presented for review: (1) whether a valid contract existed between the parties; and (2) if a contract is found to exist, whether defendants’ damages are limited to $3000 (the amount of plaintiffs’ earnest money deposits) as liquidated damages for plaintiffs’ breach of said contract.

For the reasons hereinafter set forth, we affirm in part, reverse in part and remand with directions.

On or about June 28,1979, plaintiffs, through their attorney, Eugene A. DiMonte, submitted to defendants’ attorney, Russell G. Miller, a signed offer to purchase certain real estate owned in trust by defendants and located in Lake County, Illinois. The offer, presented on a standard printed legal form, provided for closing five days after title “is shown to be good,” at which time plaintiffs would obtain possession of the property. The offer also provided in a stock paragraph printed on the back thereof that upon any breach of the agreement by plaintiffs, defendants would be entitled to all costs and attorney fees incurred as the result of such breach. The offer form granted defendants the option to retain, as liquidated damages, all payments made on the contract, or to pursue any “other remedy given by this agreement or by law or equity.”

The offer was mailed to defendants’ attorney, Miller, together with a cover letter written by plaintiffs’ attorney, DiMonte. The offer itself contained no statement limiting the manner in which it could be accepted. In a postscript to the cover letter, DiMonte requested that Miller “please forward” to DiMonte “a copy of the contract executed by the Trustee.”

On July 24, 1979, defendants’ attorney replied by letter to plaintiffs’ attorney, informing him that the contract had been accepted without change by defendants and executed by the trustee. In this letter plaintiffs’ attorney was also advised that a “payout letter” and “closing statement” were being forwarded to him and that at closing the plaintiffs would receive various documents including a copy of the executed sales contract.

On July 25,1979, plaintiffs’ attorney responded, by letter, stating that before closing could take place certain title exceptions would have to be cleared, either in the form of a waiver from the title insurance company or in the form of a written guarantee from defendants that the exceptions would be waived “within a reasonable time.”

In a letter dated July 31, 1979, defendants’ attorney replied that a certain title exception could not be waived. On August 20 plaintiffs’ attorney wrote to defendants’ attorney stating that plaintiffs “would like to withdraw from the transaction” and requesting return of the earnest money deposit. The record indicates no further negotiations, nor any further demand by plaintiffs for a copy of the executed sales contract.

On January 9, 1980, plaintiffs filed a complaint requesting a declaration that a valid contract did not exist between the parties and further that plaintiffs were entitled to a refund of their $3000 earnest money deposit. On March 17 defendants counterclaimed, seeking a declaration that a valid contract did exist and that defendants were entitled to specific performance of the contract plus costs and attorney fees, or in the alternative, actual damages for breach of contract plus costs and attorney fees.

On June 13 defendants filed a motion for summary judgment on their counterclaim. On July 10 plaintiffs filed a cross-motion for summary judgment on their complaint. On September 9,1980, the trial court denied plaintiffs’ motion for summary judgment and denied that part of defendants’ motion which requested specific performance or actual damages, costs and attorney fees. The trial court found that a valid contract existed between the parties and awarded defendants the $3000 earnest money deposit as liquidated damages for plaintiffs’ breach of such contract.

Plaintiffs filed a motion for reconsideration of the trial court’s decision, which motion was denied on October 16, 1980. They appeal from both the trial court’s September 9, 1980, decision and the trial court’s order of October 16 denying reconsideration of that decision. Defendants cross-appeal from that part of the trial court’s decision denying them specific performance on the contract, or actual damages for breach of contract, costs and attorney fees.

I

The first issue we consider is whether a valid contract existed prior to plaintiffs’ attempt to revoke their offer to purchase defendants’ property. Plaintiffs argue that it was the intent of the parties that neither would be bound until acceptance, execution and actual delivery of the formal agreement.

It is elementary that for a contract to exist there must be an offer and an acceptance. (Zeller v. First National Bank & Trust Co. (1979), 79 Ill. App. 3d 170, 172, 398 N.E.2d 148; O’Keefe v. Lee Calan Imports, Inc. (1970), 128 Ill. App. 2d 410, 262 N.E.2d 758.) The general rule is that the acceptance of the offer may be made in any reasonable manner, provided that such acceptance is communicated to the offeror. 12 Ill. L. & Prac. Contracts §38 (1955); 17 Am. Jur. 2d Contracts §44 (1964).

In the instant case the record indicates that plaintiffs’ offer was accepted by defendants, and the fact of such acceptance was communicated by letter to plaintiffs’ attorney. A copy of the executed agreement was not physically returned to plaintiffs.

Plaintiffs argue that delivery of a written contract is “indispensible” to its binding effect. In support of this proposition they cite the case of Jordan v. Davis (1883), 108 Ill. 336. In Jordan the narrow issue was whether a writing, purporting to be a lease from one party to another, was “delivered” so as to become binding on the parties. The Illinois Supreme Court held that “[djelivery is a question of intent, and it depends whether the parties at the time meant it to be a delivery to take effect presently.” (Emphasis added.) 108 Ill. 336, 341.

The intent of the parties is crucial to the determination of whether a contract came into existence. In Chicago Title & Trust Co. v. Ceco Corp. (1980), 92 Ill. App. 3d 58, 415 N.E.2d 668, the court stated:

* * it has been held that the parties, upon agreeing to all of the essential terms of a contract, have entered into a binding and enforceable contract though no formal contract was signed or delivered by one of the parties. [Citations.] However, if the clear intent of the parties is that neither will be legally bound until the execution and delivery of a formal agreement, then no contract comes into existence until such execution and delivery. [Citations.]” (Emphasis added.)

In the case at bar plaintiffs’ attorney transmitted to defendants’ attorney a signed offer to purchase defendants’ property. A letter was enclosed with the offer requesting in a postscript: “Please forward a copy of the contract executed by the Trustee.” This statement does not, in our opinion, limit the manner in which defendants could accept plaintiffs’ offer. Reasonably construed, the words “please forward” do not require defendants to actually physically deliver the formal agreement to plaintiffs as a condition precedent to the formation of a valid contract.

Based on the record we conclude that the trial court was correct in determining that once the fact of defendants’ acceptance was communicated to plaintiffs by defendants’ attorney, a valid contract existed. Since it appears that no material issues of fact were presented as to the contract formation, we hold that the trial court did not err in granting summary judgment on this issue in favor of defendants.

II

The second issue presented is whether defendants are limited to $3000 as liquidated damages for plaintiffs’ breach of contract. Defendants argue that by the terms of the contract they are entitled to specific performance of the contract, or, in the alternative, to actual money damages, as well as costs and attorney’s fees incurred as a result of their attempt to enforce the contract.

The contract contained the following stock provisions relating to defendants’ remedies in case of any default by plaintiffs:

“11. In case of the failure of Purchaser to make any of the payments, or any part thereof, or perform any of Purchasers covenants hereunder, this agreement shall, at the option of Seller, be forfeited and determined, and Purchaser shall forfeit all payments made on this agreement, and such payments shall be retained by Seller in full satisfaction and as liquidated damages by Seller sustained, and in such event Seller shall have the right to re-enter and take possession of the premises aforesaid.
12. In the event this agreement shall be declared null and void by Seller on account of any default, breach or violation by Purchaser in any of the provisions hereof, this agreement shall be null and void and be so conclusively determined by the filing by Seller of a written declaration of forfeiture hereof in the Recorder’s office of said County.
« « «
14. Purchaser shall pay to Seller all costs and expenses, including attorneys fees, incurred by Seller in any action or proceeding to which Seller may be made a party by reason of being a party to this agreement, and Purchaser will pay to Seller all costs and expenses, including attorney s fees, incurred by Seller in enforcing any of the covenants and provisions of this agreement and incurred in any action brought by Seller against Purchaser on account of the provisions hereof, and all such costs, expenses and attorney’s fees may be included in and form a part of any judgment entered in any proceeding brought by Seller against Purchaser on or under this agreement.
15. The remedy of forfeiture herein given to Seller shall not be exclusive of any other remedy, but Seller shall, in case of default or breach, or for any other reason herein contained, have every other remedy given by this agreement or by law or equity, and shall have the right to maintain and prosecute any and every such remedy, contemporaneously or otherwise, with the exercise of the right of forefeiture, or any other right herein given.” (Emphasis added.)

It is clear from the terms of paragraph 11 of the contract that it is defendants’ option to retain the $3000 earnest money deposit or to pursue any other legal or equitable remedy for breach of contract.

Where, as in the instant case, a contract provides for retention of the earnest money by the seller, at his option, in the event of a breach by the purchaser, the seller is not entitled to additional recovery if he exercises the option. (Gryb v. Benson (1980), 84 Ill. App. 3d 710, 712, 406 N.E.2d 124; Kohenn v. Plantation Baking Co. (1975), 32 Ill. App. 3d 231, 236, 336 N.E.2d 491.) This rule, however, does not apply when the sellers have such an option and choose not to exercise it. 84 Ill. App. 3d 710, 712.

In the instant case defendants opted not to retain the earnest money as liquidated damages but instead sought specific performance of the contract, or in the alternative, actual damages for breach of contract. Defendants also sought costs and attorney fees pursuant to paragraph 14 of the agreement. The trial court restricted defendants’ recovery to the $3000 earnest money deposit as liquidated damages.

Based on the record we must conclude that the trial court erred in limiting Sellers’ award to the $3000 earnest money deposit as liquidated damages.

Under the clear language of the contract, it was defendants’ prerogative to sue for actual damages, or to seek any other remedy, including specific performance. A grant of specific performance, however, is not a matter of absolute right and is within the discretion of the trial court. (Bissett v. Gooch (1980), 87 Ill. App. 3d 1132, 409 N.E.2d 515; Bliss v. Rhodes (1978), 66 Ill. App. 3d 895, 384 N.E.2d 512.) As a general rule specific performance will not be granted where there is an adequate remedy at law. In re Estate of Johnson (1976), 39 Ill. App. 3d 246, 253, 350 N.E.2d 310.

In the instant case actual damages would be an adequate remedy at law. An award of actual damages amounting to any deficiency between the fair market value of the real estate on the date of the breach and the sales price contracted for by plaintiffs, including reasonable costs and attorney fees, will serve to place defendants in the position in which they would have been had the contract been performed. (See Gryb v. Benson (1980), 84 Ill. App. 3d 710, 712, 406 N.E.2d 124; Kemp v. Gannett (1977), 50 Ill. App. 3d 429, 431, 365 N.E.2d 1112; Wanderer v. Plainfield Carton Corp. (1976), 40 Ill. App. 3d 552, 556, 351 N.E.2d 630; Genslinger v. New Illinois Athletic Club (1930), 339 Ill. 426, 443, 171 N.E. 514.) We therefore concur with the trial court’s refusal to decree specific performance.

For the foregoing reasons we affirm that part of the trial court’s judgment which declared that a valid contract existed between the parties. We affirm also the trial court’s denial to defendants of specific performance. We reverse that part of the judgment which limited defendants to $3000 as liquidated damages, and we reverse also the trial court’s denial to defendants of attorney fees and costs.

The case is remanded with directions to determine the amount of actual damages and reasonable attorney fees and costs incurred by defendants as a result of plaintiffs’ breach of the contract.

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

STAMOS and DOWNING, JJ., concur.

       The title exception concerned the location of the subject property in a State designated flood plain and the necessity of obtaining a permit prior to beginning any construction in the area.

       At no time did the plaintiffs argue that the terms of the contract were unconscionable, or that they were deprived of an opportunity to change any of the terms before submitting their offer.

       The court’s order provided:
      “1. Plaintiffs motion for summary judgment is denied;
      2. Court enters declaratory judgment that a good and valid contract exists between the parties;
      3. Judgment is entered in favor of American National Bank, as trustee against plaintiffs-counterdefendants in the sum of $3000, as liquidated damages, said sum being satisfied instanter from earnest money deposit of $3000;
      4. Defendants motion for summary judgment is denied as to specific performance, attorney’s fees and costs and is granted only as to relief stated in paragraphs 2 and 3 above.”

       The resale price, if within a reasonable time and at the highest price obtainable after the breach, is evidence of the market value on the date of the breach. (Gryb v. Benson (1980), 84 Ill. App. 3d 710, 712.) As a general rule the damages recoverable in any action for breach of contract “are limited to those which were reasonably foreseeable and were within the contemplation of the parties at the time the contract was executed.” Kalal v. Goldblatt Brothers, Inc. (1977), 53 Ill. App. 3d 109, 113, 368 N.E.2d 671.


text:
    LUKE W. BROOKS, Plaintiff-Appellant, v. RORY K. CARTER, Defendant-Appellee.
    First District (2nd Division)
    No. 80-2991
    Opinion filed December 15, 1981.

      Michael D. Gerstein, of Chicago, for appellant.
    Querrey, Harrow, Gulanick & Kennedy, Ltd., of Chicago (Victor J. Piekarski and Glen E. Amundsen, of counsel), for appellee.
   JUSTICE PERLIN

delivered the opinion of the court:

This is an appeal from an order granting defendant’s motion to dismiss on the ground that plaintiff’s cause of action was barred by the Workmen’s Compensation Act (Ill. Rev. Stat. 1977, ch. 48, par. 138.1 et seq.). The issue presented for review is whether an employee who is accidentally injured between workshifts by a co-employee in a parking lot owned and operated by the employer and provided for the use of employees may maintain a common law action for personal injuries against his co-employee. For the reasons which follow, we affirm the order of the trial court dismissing with prejudice plaintiff’s cause of action.

On the date of the accident, December 14,1979, both plaintiff, Luke W. Brooks, and defendant, Rory K. Carter, were employed by Elkay Manufacturing Company. Between workshifts on that date, defendant’s car collided with plaintiff’s car in a parking lot owned and operated by Elkay. At the time of the accident, defendant was pulling his car into the parking lot prior to the beginning of his workshift and plaintiff was leaving the parking lot after completing his workshift.

Plaintiff filed a common law action against defendant alleging that defendant’s negligent operation of his vehicle caused an accident resulting in personal injuries to plaintiff. In his answer defendant asserted as an affirmative defense that plaintiff’s remedy fell within the scope of the Workmen’s Compensation Act, which bars any common law action by an employee against a negligent co-employee if the injuries were accidental and arose out of and in the course of employment (Ill. Rev. Stat. 1977, ch. 48, pars. 138.2, 138.5(a)). In his reply plaintiff admitted that the accident occurred on a private parking lot owned by the employer of both plaintiff and defendant. Defendant thereafter filed a motion to dismiss on the ground that plaintiff’s common law action was barred by the provisions of the Workmen’s Compensation Act. Defendant’s motion was fully briefed and, after a hearing, the trial court granted the motion and dismissed with prejudice plaintiffs cause of action. Plaintiff’s oral motion for rehearing was denied instanter.

Plaintiff initially maintains that the trial court improperly granted defendant’s motion to dismiss because defendant failed to prove that Elkay Manufacturing Company was an employer covered under either section 2 or section 3 of the Illinois Workmen’s Compensation Act (Ill. Rev. Stat. 1977, ch. 48, pars. 138.2,138.3). In the absence of such coverage plaintiff would have no remedy against defendant under the Act and, therefore, his common law negligence action would not be barred. (Ill. Rev. Stat. 1977, ch. 48, par. 138.5(a); Washington v. Draper & Kramer, Inc. (1973), 11 Ill. App. 3d 952, 955, 298 N.E.2d 270.) Plaintiff, however, did not question Elkay’s status as a covered employer in the trial court, and we find that this issue has been waived. Kravis v. Smith Marine, Inc. (1975), 60 Ill. 2d 141, 147, 324 N.E.2d 417.

A common law action by an employee against a negligent co-employee is barred if the injuries were accidental and arose out of and in the course of the employment. (Ill. Rev. Stat. 1977, ch. 48, pars. 138.2, 138.5(a); Rylander v. Chicago Short Line Ry. Co. (1959), 17 Ill. 2d 618, 628, 161 N.E.2d 812.) The words “arising out of” refer to the origin or cause of the accident and presuppose a causal connection between the employment and the accidental injury. In order for an injury to come within the Act, it must have had an origin in some risk connected with, or incidental to, the employment, so that there is a causal connection between the employment and the injury. The injury need not have been foreseen or expected, but after the event it must appear to have had its origin in a risk connected with the employment and to have flowed from that source as a natural consequence. Chmelik v. Vana (1964), 31 Ill. 2d 272, 277, 201 N.E.2d 434.

In Chmelik the plaintiff was injured in a parking lot provided by his employer. At the end of his workday, as plaintiff was walking across the lot to his vehicle, he was struck by a vehicle driven by a co-employee who was also leaving work. Defendant pleaded that the accident on the employer’s premises was covered by the Workmen’s Compensation Act because it had arisen out of and in the course of the employment of both plaintiff and defendant. In affirming the trial court’s order entering judgment for the defendant on the pleadings, the supreme court addressed the question of whether the accident arose out of the employment:

“* ° 0 it is more than clear that the parking lot was provided and used as an incident of the employment. The lot was used as an adjunct of the employer’s plant, it was furnished and maintained by the employer to facilitate arrival and departure from work, and it was contemplated that employees would use the lot in going to and from their employment.” 31 Ill. 2d 272, 279-80.

Here the plaintiff was injured in the employer’s parking lot while in the process of leaving work. Defendant’s vehicle struck plaintiff’s while defendant was pulling into the lot shortly before he was scheduled to begin work. In these circumstances the accidental injuries sustained by plaintiff arose out of and in the course of employment.

Plaintiff contends that an injury does not arise out of the employment unless the danger causing the injury is peculiar to the work and the risk is not one to which the public generally is subjected. (See, e.g., Lagomarcino-Grupe Co. v. Industrial Com. (1943), 383 Ill. 95, 99, 48 N.E.2d 412.) However, in Chmelik, the court stated that if an employee is exposed to a risk common to the general public, but to a greater degree than other persons by reason of his employment, the accidental injury is said to arise out of his employment. 31 Ill. 2d 272, 278. See also Deal v. Industrial Com. (1976), 65 Ill. 2d 234, 239, 357 N.E.2d 541.

This same issue was addressed in Chmelik. The court held that even if it had been shown that the public used the parking lot or was exposed to its perils, the regular and continual use of the parking lot by employees, especially at quitting time when there is typically a mass and speedy exodus of the vehicles in the lot, would result in a degree of exposure to the common risk beyond that to which the general public would be subjected. (31 Ill. 2d 272,280.) Accordingly we find that the accident was one “arising out of * * * the employment.”

Plaintiff contends further that defendant’s motion to dismiss was improperly granted because there was no evidence that the accident occurred while “in the course of the employment.” An accidental injury is received in the course of employment when it occurs within the period of employment at a place where the employee may reasonably be in the performance of his duties and while he is fulfilling those duties or engaged in something incidental thereto. (Chmelik v. Vana (1964), 31 Ill. 2d 272, 278.) Contrary to plaintiff’s assertion, employment is not limited to the exact moment when the employee begins or ceases his duties. Employment contemplates an employee’s entry upon and departure from the employer’s premises as much as it contemplates his working there and necessarily includes a reasonable time before commencing and after concluding actual employment. Chmelik v. Vana (1964), 31 Ill. 2d 272, 278.

It is true, as plaintiff points out, that not all parking lot injuries under whatever circumstances are compensable. It is only when the injury is incidental to the anticipated normal use of the parking lot that it arises in the course of employment. (Aaron v. Industrial Com. (1974), 59 Ill. 2d 267, 269, 319 N.E.2d 820.) A personal deviation can break the causal link with the employment. (Aaron v. Industrial Com. (1974), 59 Ill. 2d 267, 269; Fisher Body Division v. Industrial Com. (1968), 40 Ill. 2d 514, 516-17, 240 N.E.2d 694.) There is nothing in this record, however, to suggest that either plaintiff or defendant had engaged in any personal deviations from activities incident to their employment. Plaintiff’s injuries were sustained in an accident the risk of which was clearly contemplated by plaintiff and defendant’s employment. Chmelik.

Plaintiff admitted in his reply that the accident occurred “in a private parking lot owned by the employer * * Whether the employees were compelled to park in the lot, its use by them was certainly contemplated. An accident occurring between workshifts as plaintiff was leaving work and defendant was going to work unquestionably falls within the scope of the Chmelik opinion.

Based on the pleadings, we conclude that plaintiff’s injuries were incidental to the anticipated normal use of the parking lot provided for the employees by the employer and therefore arose out of and in the course of employment. Plaintiff’s exclusive remedy was under the Workmen’s Compensation Act, and his common law negligence action against defendant, a co-employee, was barred. Accordingly we affirm the order of the trial court dismissing plaintiff’s cause of action.

Affirmed.

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


author: JUSTICE WHITE

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. THOMAS GREENE, Defendant-Appellant.
    First District (3rd Division)
    No. 79-1696
    Opinion filed December 16, 1981.

      Steven N. Levin, of Chicago, for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Marcia B. Orr and Adrienne Noble Nacev, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE WHITE

delivered the opinion of the court:

Defendant, Thomas Greene, was charged by indictment with rape, indecent liberties with a child, burglary, aggravated battery and attempted murder. Following a bench trial defendant was found guilty of rape and aggravated battery (Ill. Rev. Stat. 1973, ch. 38, pars. 11 — 1 and 12 — 4), and received concurrent sentences of 25 to 35 years and 3 to 9 years respectively. In view of our disposition of the case, we find it necessary to address only the first issue raised by defendant on appeal, namely, whether defendant, having been previously adjudged unfit to stand trial, received a fitness hearing that was statutorily and constitutionally sufficient to base a valid finding of fitness before being tried on these serious charges. Ill. Rev. Stat. 1977, ch. 38, par. 1005 — 2—1 et seq.

The indictment against Greene alleged in essence that he, on October 6, 1975, after entering a dwelling, beat and raped a 14-year-old girl. Greene’s attorney filed a petition for psychiatric examination and a pretrial hearing to determine his client’s fitness to stand trial. Defendant was examined on December 30, 1975, by Dr. Reifman of the Psychiatric Institute of the circuit court of Cook County, who found Greene unable to cooperate with counsel in his own defense and unfit to stand trial because of schizophrenia, paranoid type. On January 20, 1976, in a hearing in the criminal division of the circuit court of Cook County, defendant was found unfit to stand trial. Shortly thereafter, in a civil proceeding under the Mental Health Act, he was found in need of mental treatment and committed to the Department of Mental Health.

Eleven months later defendant was again examined by Dr. Reifman who, in a letter dated December 22, 1976, to the presiding judge of the criminal division, reported that the “previously adjudicated, not-mentally-fit-for-trial defendant, is now mentally fit to stand trial. He understands the nature of the charge and the purpose of the proceedings, and is able to cooperate with counsel in his own defense.” Dr. Mary Joan McCabe, an independent psychiatrist appointed by the court to examine Greene, also filed a report that defendant was ready to stand trial. Greene’s counsel moved for a hearing on his fitness which the court set for May 27, 1977. On that date there was no formal introduction of evidence. The assistant State’s attorney read into the record the December 22,1976, letter of Dr. Reifman. Greene’s counsel agreed on the record with the prosecutor that the report of Dr. McCabe had been filed and that it also stated that Greene was fit to stand trial. Then, this colloquy followed:

“MR. ROBBINS [prosecutor]: Your Honor, on behalf of the people of the State of Illinois, we would be willing to stipulate to the findings of the two psychiatrists as contained in the reports and stipulate to the fact that the defendant is fit for trial.
MR. LANGE [defense counsel]: Will you also stipulate to the qualifications of Dr. McCabe?
MR. ROBBINS: Yes. We will stipulate that they are duly certified and qualified psychiatrists and that they have examined the defendant and we would stipulate to their findings that the defendant is fit to stand trial.
MR. LANGE: We will stipulate to same matter, your Honor.
THE COURT: Very well, fine. Where do we go from here, gentlemen?” (Emphasis added.)

This was the sum total of the proceedings at the hearing held to determine whether defendant previously adjudged unfit was now fit to stand trial. There was no draft order following this truncated hearing. A minute order reads, “Stipulated testimony heard. Order of Court. Finding defendant fit to stand trial. Judgment is entered on the finding.” On August 17, 1977, defendant filed a “Motion to Vacate the Agreed Findings of Competency.” No disposition of this motion appears in the record. In due course, the case came on for trial and, contrary to repeated advisement of his counsel given in open court, defendant waived trial by jury, and was tried as set forth above.

On appeal, defendant contends that it was error for the court to place him on trial without a judicial determination of his fitness to stand trial. We agree. Defendant’s prior adjudication of unfitness raises the presumption that the condition of unfitness remains. (People v. Williams (1980), 92 Ill. App. 3d 608, 612, 415 N.E.2d 1192; People v. Lang (1975), 26 Ill. App. 3d 648, 653, 325 N.E.2d 305; People v. Santoro (1973), 13 Ill. App. 3d 426, 301 N.E.2d 175 (abstract).) This presumption continues until there has been a valid subsequent hearing adjudicating him fit. People v. Williams (1980), 92 Ill. App. 3d 608, 612; People v. Johnson (1973), 15 Ill. App. 3d 680, 685, 687, 304 N.E.2d 688; People v. McKinstray (1964), 30 Ill. 2d 611, 617, 198 N.E.2d 829.

The defendant contends that the May 27, 1977, pretrial hearing accorded him was not a valid or sufficient fitness hearing. While it is true that a trial court’s fitness determination must be given great weight on review (People v. Davis (1978), 65 Ill. App. 3d 580, 589, 382 N.E.2d 594), the issue of fitness to stand trial is one of constitutional dimension, and the trial record must affirmatively show the exercise of judicial discretion and judgment insofar as a finding of fitness is concerned. (People v. Santoro (1973), 13 Ill. App. 3d 426, 301 N.E.2d 174 (abstract).) The procedural requirements of a hearing “restoring” a defendant to fitness are no less stringent than those required in an initial competency hearing. (Ill. Rev. Stat. 1977, ch. 91½, pars. 10—7,9-4; People v. Coppersmith (1977), 47 Ill. App. 3d 67, 70, 71, 361 N.E.2d 773.) “It would be absurd to impose formal evidentiary and procedural requirements and safeguards upon the initial judicial determination that a defendant is or is not fit to stand trial or be sentenced and then (assuming the defendant has been found to be unfit at such a formal proceeding) permit an informal determination that the defendant has been ‘restored’ to fitness to stand trial or be sentenced.” People v. Davis (1975), 25 Ill. App. 3d 1007, 1014, 324 N.E.2d 58.

The procedures employed at Greene’s restoration hearing fall far short of what the law requires. At this hearing no testimony was given. Instead, two written reports of doctors who had examined Greene were produced. Following stipulations by counsel to the existence of these reports, the trial court made a finding that Greene was now fit to stand trial.

People v. Johnson, cited above, involved facts which are strikingly similar to those in the case at bar. In Johnson, the appellate court reversed a conviction and addressed the specific question of whether counsel for a legally incompetent person can stipulate on behalf of said person as to the crucial expert testimony on competency to stand trial. There, defendant was adjudicated unfit to stand trial following his indictment for armed robbery and remanded to the Department of Mental Health. At his restoration hearing defendant’s attorney and assistant State’s attorney stipulated to a psychiatric report by Dr. Reifman which concluded that defendant was fit to stand trial. This court found that defendant Johnson had not been afforded a valid restoration hearing. The court stated: “[T]o accept defendant’s opinion, and that of his counsel by stipulation, that he was able to cooperate with counsel in his defense, when the purpose of a competency hearing in defendant’s behalf was to determine that very fact, would be to make a sham out of the restoration hearing.” 15 Ill. App. 3d 680, 686.

Similarly, the court in People v. Davis (1975), 25 Ill. App. 3d 1007, 1013, 324 N.E.2d 58, observed that once there was a judicial determination that defendant was unfit to stand trial, that determination could be overruled solely by the court’s acknowledgement of psychiatric opinions that indicated otherwise.

It does not appear that a true court hearing was conducted in connection with the restoration of Greene. The trial court’s decision rested solely upon stipulations to unsworn psychiatric testimony. Under these circumstances, it is difficult to conceive that the trial judge exercised any discretion in determining Greene fit for trial. Indeed, the evidence produced was so minimal that the trial court had little before it upon which to exercise its discretion.

A judicial determination of fitness cannot be based upon mere stipulation to the existence of psychiatric conclusions. People v. Santoro (1973), 13 Ill. App. 3d 426 (abstract); People v. Davis (1975), 25 Ill. App. 3d 1007, 324 N.E.2d 58.) Rather, the cases require “an adversarial hearing and have disapproved of verdicts of fitness based solely upon unsupported stipulations, agreements pleas made by the accused or his counsel.” (People v. Williams (1980), 92 Ill. App. 3d 608, 612.) Since we find no affirmative showing in the record below that the trial court exercised discretion in finding Greene fit to stand trial, there was in effect no fitness hearing at all, and we are compelled to reverse.

For the aforementioned reasons, the cause is reversed and remanded for a new hearing.

Reversed and remanded.

McNAMARA and McGILLICUDDY, JJ., concur.


text:
      In re ESTATE OF CHESTER DAVISON, Deceased.—(ANN DAVISON, Appellant, v. BYRON DAVISON, Appellee.)
    First District (3rd Division)
    No. 80-499
    Opinion filed December 16, 1981.
    Seaberry & McDowell, of Chicago (James J. Seaberry, of counsel), for appellant.
    Gail W. Boyd, of Chicago, for appellee.
   JUSTICE WHITE

delivered the opinion of the court:

On November 21,1976, Chester Davison executed a codicil to his will leaving all of his estate to his son, Byron Davison. Chester Davison died on March 6, 1978, and on December 11, 1978, the codicil to the will of Chester Davison was admitted to probate over the objections of his surviving spouse, Ann Davison. At the close of the December 11 hearing, counsel for Ann Davison announced his client’s intention to renounce the codicil.

At a subsequent hearing, counsel for appellee represented to the trial court that the renunciation of Ann Davison found in the court file was not filed within the statutory period of 7 months from the entry of the will into probate, and moved to vacate the renunciation. The motion was granted and Ann Davison, spouse of Chester Davison, deceased, appeals.

The sole issue on appeal is whether the trial court erred in holding that the renunciation of Ann Davison did not meet the requirements of section 2 — 8 of the Probate Act of 1975. That section provides:

“In order to renounce a will, the testator’s surviving spouse must file in the court in which the will was admitted to probate a written instrument signed by the surviving spouse ^and declaring the renunciation. The time of filing the instrument is: (1) within 7 months after the admission of the will to probate or (2) within such further time as may be allowed by the court if, within 7 months after the admission of the will to probate or before the expiration of any extended period, * * (Ill. Rev. Stat. 1977, ch. 110%, par. 2 — 8(b).)

No extension of time for filing a renunciation is claimed here. Therefore, to comply with the statute, appellant’s renunciation must have been filed within 7 months after the admission of the codicil to probate. A document is legally filed when it is delivered to the proper officer and receives proper endorsement; the person filing has the duty of delivery of the paper, and the officer has the duty of making the appropriate endorsement on the paper. (Edwin Pratt’s Sons’ Co. v. Schafer (1937), 290 Ill. App. 80, 85, 7 N.E.2d 901.) Delivery alone has been held to constitute filing since the person filing has no control over the officer who receives documents. (Dowie v. Chicago, Waukegan & North Shore Ry. Co. (1905), 214 Ill. 49, 73 N.E. 354.) Subsequent ministerial tasks of the clerk evidence the filing of a document but are not essential to its perfection. McGregor v. Village of Lovington (1892), 48 Ill. App. 202, 207.

In support of her contention that appellant’s renunciation was not filed in time, counsel for appellee called as a witness Anthony G. Girolami, the chief deputy clerk of the circuit court of Cook County in charge of the probate division. Mr, Girolami testified that the proper procedure for filing a renunciation with the clerk in the probate division of the circuit court of Cook County is to hand the document to a clerk at the claim counter. The clerk then time stamps the document, enters it into the minute book, and sends the document to a microfilming station where a microfilm copy is made. Mr. Girolami further testified that the stamp on the face of the renunciation itself, which stated, “Filed, March 13,1979,” was not used at any of the counters in the probate division. Rather, it was a stamp used in the courtrooms of the probate division. Furthermore, Mr, Girolami testified that appellant’s renunciation was neither entered into the minute book, nor sent to microfilming until October 3,1979.

At this point, in response to a question by the court, counsel for appellant represented that he had given the renunciation to the clerk at the cashier (fee) counter. Mr. Girolami then testified that the clerk at that counter, if acting in accord with established office procedure, would not have used the stamp that appeared on appellant’s renunciation. Mr. Girolami concluded his testimony by stating that if a clerk at the fee counter in the probate division discovers a document has been misfiled at his counter, the proper procedure is for him to notify counsel to file the document at the right counter.

At this hearing, counsel for appellant represented that he had handed Ann Davison’s renunciation to a clerk in the probate division. Counsel for appellant further represented to the court that after counsel for appellee notified him that she could not find appellant’s renunciation in the files of the probate court, he too looked for the renunciation and failed to find it. He continued to check and the document was ultimately found and sent to microfilming on October 3, 1979. This was the extent of the evidence adduced below.

The trial court concluded that appellant’s renunciation had not been timely filed. The court reviewed the evidence supporting this conclusion: (1) the stamp on appellant’s renunciation which stated, “Filed, March 13, 1979,” was not a stamp used on the 12th floor where renunciations are filed, but a stamp available to lawyers in all of the courtrooms on the 18th floor; (2) although the renunciation had the date March 13,1979, stamped on it, for some unknown reason, it was not entered into the minute book or sent to microfilming until October 1979; (3) testimony of the chief deputy clerk revealed that if the renunciation had been handed to a clerk at the fee counter, the clerk would have directed appellant to the proper section of the counter for filing the document.

Counsel for appellant represented that he handed Ann Davison’s renunciation to a clerk in the probate division. This representation was not contradicted by any direct evidence. Although appellee did produce evidence to rebut appellant’s counsel’s representations, this evidence was circumstantial and did not necessarily contradict the representations of appellant’s counsel. Indeed, such evidence was also consistent with possible clerical error in following prescribed routines.

We may reverse when it appears that the decision of the trial court was contrary to the manifest weight of the evidence. (Shelby Loan and Trust Co. v. Milligan (1939), 372 Ill. 397, 24 N.E.2d 157.) Here we have the undisputed notice of a forthcoming renunciation given in open court coupled with the representation of the attorney, an officer of the court, that the renunciation was filed March 13, 1979, as the stamp thereon indicates. On the other hand, we have only circumstantial evidence which, if accepted as prevailing, would completely deprive a widow of any inheritance from her spouse’s estate.

We find the decision of the trial court contrary to the manifest weight of the evidence and, accordingly, we reverse that decision.

Reversed.

RIZZI, P. J., and McGILLICUDDY, J., concur.


author: JUSTICE McNAMARA

text:
    COLONY CORPORATION OF AMERICA, Plaintiff-Appellant, v. CROWN GLASS CORP. et al., Defendants-Appellees.
    First District (3rd Division)
    No. 81-485
    Opinion filed December 16, 1981.
    Marvin N. Benn & Assoc. Ltd. and James E. O’Neal & Assoc., Ltd., both of Chicago (Marvin N. Benn, Wayne H. Michaels, and James E. O’Neal, of counsel), for appellant.
    Terrance Hutton, of Jenner & Block, of Chicago, for appellee Brockway Glass Company, Inc.
    Arvey, Hodes, Costello & Burman and Kantor & Apter, Ltd., both of Chicago (Joel S. Siegel and David Apter, of counsel), for other appellees.
   JUSTICE McNAMARA

delivered the opinion of the court:

Plaintiff Colony Corporation of America brought this action against defendants Crown Glass Corporation, Candle Corporation of America, and Brockway Glass Company, Inc., for misappropriation of plaintiff’s trade secrets. The trial court denied plaintiff’s motion for a preliminary injunction against all defendants. The court also dismissed Brockway as a party defendant. Plaintiff appeals both orders.

Plaintiff manufactures and sells glass candle jars for use in restaurants and cocktail lounges. Candle is in the same business and is a competitor of plaintiff. Crown is a glass supplier. Brockway is a manufacturer of glass products.

In 1976 plaintiff obtained blueprints and designs for various glass candle jars, and that same year contracted with Crown for the production of various designs including two named by plaintiff as “Eastex” and “Weston.” Plaintiff delivered certain blueprints to Crown and participated with Crown in the development by Brockway of certain molds to be used in the production of the two glassware designs. Plaintiff directed and Crown agreed that the blueprints and molds were confidential between plaintiff and Crown and not to be utilized for manufacturing glassware for anyone other than Colony. The molds were built and production ensued.

Subsequently, contractual disputes arose between plaintiff and Crown. Each maintained that the other breached its contractual obligations. Incident to this dispute, in November 1978, Crown had on hand a supply of glasses produced for plaintiff but which plaintiff refused to accept. Crown thereafter sold the glassware to Candle, and subsequently contracted with Candle to produce another run for it. In October 1979, Crown used the same molds to produce these candle jars for sale to Candle.

In October 1978, Crown sued plaintiff to collect the balance due for merchandise sold and delivered, and for the merchandise on hand. In that suit, still pending, plaintiff asserted a counterclaim for damages against Crown for the November 1978 sale to Candle.

On December 31, 1979, plaintiff brought the present action against Crown and Candle. In October 1980, when the matter came up on plaintiff’s motion for a preliminary injunction, plaintiff was granted a continuance to add Brock way as a party defendant. On February 10, 1981, the trial court granted Brockway’s motion to dismiss the complaint. In denying plaintiff’s motion to amend its complaint against Brockway, the court stated that it did not believe plaintiff could ever establish a confidential relationship between plaintiff and Brockway. On the same date, the court, having received legal memoranda, conducted a hearing on plaintiff’s motion for a preliminary injunction. The court denied the motion, and this appeal follows.

Plaintiff contends that the trial court erred in denying its request for a preliminary injunction against all the defendants. We need only decide whether the court abused its discretion in denying such a request, and we emphasize that we do not reach the issue of plaintiff’s suit for a permanent injunction.

A trade secret is a plan, process, tool, mechanism or compound known only to its owners and those employees to whom of necessity the secret is confided. (Bimba Manufacturing Co. v. Starz Cylinder Co. (1970), 119 Ill. App. 2d 251, 256 N.E.2d 357.) In that case, the court listed the relevant factors in assessing the existence of a trade secret:

“(1) the extent to which the information is known outside of the business; (2) the extent to which it is known by employees and others involved in the business; (3) the extent of measures taken by the owner to guard the secrecy of the information; (4) the value of the information to the owner and to his competitor; (5) the amount of effort or money expended in developing the information; and (6) the ease or difficulty with which the information can be properly acquired or duplicated by others. [Citation.!” (119 Ill. App. 2d 251, 264.)

Where a product is out on the market, and the secret is readily disclosed by the product itself there is no trade secret. (ILG Industries, Inc. v. Scott (1971), 49 Ill. 2d 88, 273 N.E.2d 393.) If the secret is not easily ascertainable from the product itself, however, the sale of the products may be enjoined in order to protect the secret despite the fact that the products are not themselves trade secrets but are only the fruits of the use of a trade secret. (Schulenburg v. Signatrol, Inc. (1965), 33 Ill. 2d 379, 212 N.E.2d 865.) In Schulenburg, it was held that the secrecy of blueprints which could not be duplicated absent time consuming and expensive analyses of products in the public domain could be protected by enjoining sale of the products. The injunction in such a case is limited in scope to the time interval required for another to copy legally the secret from the goods on the market. Schulenburg v. Signatrol, Inc. See also Northern Petrochemical Co. v. Tomlinson (7th Cir. 1973), 484 F.2d 1057.

Applying these principles to the present case, we believe that the trial court properly denied the preliminary injunction. Plaintiff did not show that the blueprints and molds are trade secrets. Plaintiff introduced the candle glasses into the public domain as early as 1977, two years priqr to Crown’s use of the molds and jars to fulfill its contract with Candle. Once those fruits of the use of the trade secrets were placed on the market, it became incumbent upon plaintiff to show that the prints or molds could not be duplicated from examination of the glasses. (ILG Industries, Inc. v. Scott.) This, plaintiff failed to do in its request for a preliminary injunction.

Furthermore, plaintiff did not show that, even if the blueprints and molds were trade secrets, it would be entitled to a preliminary injunction at this point in time. Crown did not use the molds as its own until it produced the glassware for Candle in 1979. Since the alleged misappropriation occurred at least two years after the merchandise reached the market, plaintiff had to show that another could not legally copy the secrets from the goods in a period of two years. Plaintiff offered nothing to demonstrate that an examination of the glassware would not reveal the secret within a period of two years. Consequently, plaintiff did not show entitlement to an injunction exceeding two years in scope.

We turn now to consider the propriety of the trial court’s dismissal of the complaint against Brockway. In its complaint against Brockway, plaintiff charged that there was a confidential relationship between Crown and Brockway and that it was a third-party beneficiary of the relationship between Crown and Brockway.

Equity will enjoin the unauthorized use of a trade secret by a third person not in a confidential relationship with the secret’s owner if the third person acquired knowledge of or access to the secret by virtue of another’s breach of confidence. (See Victor Chemical Works v. Iliff (1921), 299 Ill. 532, 132 N.E. 806; Arwell Division of Orkin Exterminating Co. v. Kendrick (1971), 131 Ill. App. 2d 632, 267 N.E.2d 352; Atlantic Wool Combing Co. v. Norfolk Mills, Inc. (1st Cir. 1966), 357 F.2d 866; Colgate-Palmolive Co. v. Carter Products, Inc. (4th Cir. 1956), 230 F.2d 855; Ferroline Corp. v. General Aniline & Film Corp. (7th Cir. 1953), 207 F.2d 912.) If the third person knows of the breach of the confidential relationship when he acquires use of the trade secret, he is liable to the secret’s owner to the same extent as the one who breached the owner’s confidence. (Arwell Division of Orkin Exterminating Co. v. Kendrick; Atlantic Wool Combing Co. v. Norfolk Mills, Inc. See also Wallace v. Malooly (1954), 4 Ill. 2d 86, 122 N.E.2d 275; Bogert, Trusts & Trustees §471, at 5-6 (2d ed. 1978).) Where the third person initially lacks knowledge of the breach of confidence he is not liable to the secret’s owner for the unauthorized use but the continued use will be enjoined upon receipt of notice of the breach, provided that he has not in good faith paid value for the secret. Restatement of Torts §758 (1939) (not recodified in Restatement (Second) of Torts for reasons not pertinent here). See generally Restatement (Second) of Torts, Introductory Notes to Division 9, at 1-3 (1979).

Under the foregoing criteria, we believe that the trial court erred in dismissing the complaint against Brockway. The complaint alleged that plaintiff participated with Crown “in the development by Brockway, a subcontractor of Crown, of certain molds 0 ” that plaintiff directed Crown that the blueprints and molds were confidential and that, in violation of plaintiff’s right to exclusive use of the molds, Crown “in conjunction with Brockway” used the molds for production of candle jars for sale to Candle. The complaint stated a cause of action against Brock way. Any issue as to Brockway’s payment of consideration for use of the secret was not raised in the trial court and is not before us.

For the reasons stated, the order of the circuit court of Cook County denying plaintiff’s request for a preliminary injunction against the three defendants is affirmed. The order dismissing the complaint against Brockway is reversed and the cause is remanded for further proceedings consistent with the holdings of this opinion.

Affirmed in part; reversed and remanded in part.

RIZZI, P. J., and McGILLICUDDY, J., concur.