text:
    John Navickas, Collection Supervisor, Family Court, Cook County, and Seymour F. Simon, Cook County Commissioner, Claimants-Appellees, v. Lawrence Hall, Inc., Guardian, Respondent-Appellant.
    Gen. No. 51,782.
    First District, First Division.
    June 26, 1967.

      Notz, Craven, Penner, Maloney & Price, of Chicago (Edward U. Notz, of counsel), for appellant.
    Daniel P. Ward, State’s Attorney of Cook County, of Chicago (Edward J. Hladis, Chief of Civil Division, Ronald Butler and Donald J. Veverka, Assistant State’s Attorneys, of counsel), for appellees.
   MR. JUSTICE BURMAN

delivered the opinion of the court.

In this action the Collection Supervisor of the Family Court, Cook County, filed a petition seeking to recover from Frank Clements, Executive Director of Lawrence Hall, the sum of $461.66 received for the care of Benedict Boryszewski, a dependent. The trial judge entered an order upon Lawrence Hall, Inc., to deliver to the Clerk of the Court the sum of $461.66, “such funds being those Social Security funds which are reimbursements to the Cook County Commissioners for monies expended on Benedict Boryszewski.” Lawrence Hall appealed directly to the Supreme Court from this order alleging that public revenue was involved and that Court transferred the appeal to this court.

On January 31, 1964, Benedict Boryszewski, a minor, was adjudged a dependent ward of the Family Court, and the Cook County Commissioners were ordered to pay $70 a month to the Head of the Temporary Care Department of the Family Court, as guardian for the minor. On April 10, 1964, the guardianship was vacated and Frank L. Clements, Executive Director of Lawrence Hall (also known as Lawrence Hall Home for Boys and Lawrence Hall, Inc.), a private agency, was appointed guardian and the payments of $70 a month continued. Lawrence Hall applied to the Social Security Administration for survivor’s benefits which had accrued after the death of Mrs. Boryszewski, and in September 1964, received $563 in accrued Social Security payments.

In order to receive compensation for children placed by the Court, private agencies such as Lawrence Hall submitted a Cook County Invoice, which showed among other things the name of the child involved, the number of days care and the amount due. Attached to this invoice was an affidavit wherein an agent of the institution swore that “all sums received on behalf of children under care in the form of benefits resulting from Old Age and Survivor’s Insurance . . . have been deducted. . . .” Normally, any deductions such as Social Security benefits received on behalf of a child were shown on the face of the invoice. A case work director for Lawrence Hall testified that it was standard operating procedure to credit the Family Court with the Social Security benefits that were received. Frank L. Clements testified that the deduction of Social Security payments was done routinely without his express authority and that, “When I discovered it, I had it discontinued.”

In the latter part of September 1964, Lawrence Hall submitted an invoice to the County for reimbursement for care of several minors including the Boryszewski boy. This invoice showed a Social Security deduction for a Paul Myers but not for Boryszewski, although the Agency had received the lump sum of $563 at the time. Attached to this invoice was an affidavit by the Director of Lawrence Hall swearing that “all sums received on behalf of children under care in the form of benefits resulting from Old Age and Survivor’s Insurance . . .. have been deducted. . . .” In October the claimants became aware of the fact that Lawrence Hall had received Social Security benefits on behalf of Benedict Boryszewski and brought this action. The trial judge held that Lawrence Hall had, contrary to law, failed to reimburse the Cook County Commissioners for receipt of the Social Security funds and Lawrence Hall appeals from that judgment order and seeks to tax the petitioners with “costs including costs of appeal.”

Lawrence Hall contends that the disposition of Social Security benefits are controlled by Federal Regulations and the standards set for proper disposition were met. Further that monies received by a private institution on behalf of a child for whom the institution is providing care, support and maintenance, are cloaked with immunity from enforced payment as reimbursement for funds previously or currently provided by a public fund. It is also Hall’s position that such reimbursement is an impossibility since the specific funds no longer exist in that they have been expended and Hall should not have to reach into its own pockets to repay the County or to replenish the Boarding Fund.

The applicable statutes (Ill Rev Stats 1963, c 23, § § 2019, 2033) provided that:

2019 . . . the court may enter an order upon the County to pay such amount of money as may be necessary for the care and support of the child, not to exceed the sum of $70.00 per month . . .
Every County Board shall provide . . . payments for the care and support of dependent, neglected and delinquent children placed under the guardianship of a child placing agency, . . . ; which appropriation shall be deemed a separate fund into which shall be paid not only the monies appropriated by the County Board, but also all reimbursements by the parents, other relatives and by the State.
2033. If it shall appear, upon the hearing of the cause that the parent, parents, or any person or persons named in such petition who are in law liable for the support of such child, are able to contribute to the support of such child, the court shall enter an order requiring such parent, parents, or other persons to pay the guardian so appointed or to the institution to which such child shall be committed, a reasonable sum from time to time for the support, maintenance or education of such child. . . .

At the time Hall accepted the appointment by the court to act as the guardian of the dependent, and for the preceding two years, Hall knew it was the policy of the County that when there were other funds available the County should be reimbursed up to the amount it contributed so that these funds would be available for its responsibilities to other minors. To effectuate this policy agencies like Hall were required, when submitting their invoices, to attach affidavits stating that monies received by the agency had been deducted from the amounts requested from the County. Hall complied in this policy by routinely deducting Social Security payments from the amounts requested from the County for at least two years. In sum the County agreed to pay $70 monthly and did not apply for Social Security benefits, but permitted its guardian to do so under the general arrangement that the guardian would credit the County for any such sums received up to the amount of the County’s obligation. Under these circumstances we believe the trial judge correctly held that Hall violated its obligation to the County in the Boryszewski account.

We see no merit to the contentions that under the policy arrangement between the parties a private institution, such as Hall, is cloaked with immunity from enforced payment as reimbursement for funds currently or previously provided by a public fund, or that section 2019 does not include private institutions in the language “parents” and “other relatives.” We agree with the respondent that the primary effect of statutory construction is to ascertain and give effect to the intent of the legislature, and we believe the trial court correctly construed the entire statute with that in mind. When Hall was appointed as guardian it accepted the policy arrangement and was also obligated under section 2019 to credit Social Security payments received when it applied for funds under the Statute. Hall failed to set forth the credit in the affidavit supported invoice, which did however include Social Security credits for another dependent, and by its defense in the matter it appears that Hall deliberately withheld the information contrary to its contractual obligation.

Hall maintains that the County of Cook is precluded from recovering the Social Security funds due to controlling federal statutes and regulations. In Department of Public Welfare v. Sevcik, 18 Ill2d 449, 164 NE2d 10, the Department of Public Welfare sought to obtain payments from a conservator of an incompetent for certain accrued charges for care and maintenance of the incompetent. The conservator resisted the claim on the grounds that the only assets were funds received as proceeds of veteran’s pension checks which were exempt from the claim of any creditor under the Federal Law applicable to veteran’s benefits. The Circuit Court held against the claim with respect to cash accumulated from pension funds. The Supreme Court reversed quoting language from In re Lewis’ Estate, 287 Mich 179, 186, 283 NW 21, 24, which we think is appropriate here and controlling.

The very purpose of a pension, such as in this case, is to provide support for the beneficiary and, in this proceeding for reimbursement, the state, under the statute, is asking no more than the pension was given to provide.
We are not here concerned with actions by creditors seeking to turn the pensions to satisfaction of their demands, but only with the question of reimbursement of the State for care and maintenance. Certainly the pension protective law does not intend the fund for the welfare of the beneficiary and then, under restrictions thereof, after receipt by the beneficiary, prevent employment thereof for care and support of the pensioner. Dept. of Public Welfare v. Sevcik, 18 Ill2d 449, 452, 164 NE2d 10.

As stated in Sevcik it would be unrealistic to suppose that Congress intended that pension funds in the hands of a conservator cannot be reached for that purpose. There, as in this case, accrued expenditures for care and maintenance of a public charge were involved.

Other grounds are urged for reversal, but we consider it unnecessary to pass upon them as the grounds already considered are decisive of the issues. A reviewing court will not consider questions or contentions which we deem not essential to the determination or final disposition of the case before it. ILP, Appeal and Error, § 632.

Accordingly, the judgment of Juvenile Division of the Circuit Court is affirmed.

Judgment affirmed.

MURPHY, P. J. and ADESKO, J., concur.


source: Caselaw Access Project

author: MR. JUSTICE BURMAN

license: Public Domain

text:
    Sadie Connors Hart, Plaintiff-Appellee, v. Patrick Connors, et al., Defendants-Appellants.
    Gen. No. 51,521.
    First District, First Division.
    June 26, 1967.

      Rothbart, Stein & Moran, of Chicago (Edward Rothbart, Joseph Stein, Thomas E. Moran and Raymond Kuby, of counsel), for appellants.
    George R. Lange, of Chicago, for appellee.
   MR. JUSTICE BURMAN

delivered the opinion of the court.

This action was brought by plaintiff, Sadie Connors Hart, to construe her husband’s will which contained the power to encroach upon the corpus of a trust if required for the plaintiff’s support or maintenance in accordance with her standard of living. The matter was referred to a Master who found that plaintiff was entitled to encroach upon the corpus of the trust for approximately $3,000 a year with such difference yearly as might be required as a result of a change in her income. The Chancellor by decree confirmed the findings of fact and conclusions of law made by the Master and the defendants, who are residual beneficiaries, appeal.

William J. Connors died testate on June 24, 1961, and in Section five of his Last Will and Testament he established a testamentary trust, appointing his widow, the plaintiff, trustee and further provided that:

(a) Said trustee shall pay at convenient intervals all dividends and income accruing therefrom to herself, for her own use and benefit.
(c) My said wife may use all or any part of the corpus of the trust if required for her support or maintenance in accordance with her present standard of living.

The plaintiff declined to act as trustee and the LaSalle National Bank was appointed successor trustee by court order.

The defendants contend that the manifest intention of the testator limited plaintiff’s power of encroachment for her support to only if required to maintain her then customary standard of living, and, that the evidence failed to establish by any competent evidence any right to encroach upon the trust’s corpus.

The Master found from the pleadings, exhibits and extensive evidence which included testimony by plaintiff who was 75 and eleven other witnesses, as follows:

The plaintiff and William J. Connors were married on June 30, 1911, and lived together until his death on June 24, 1961; the plaintiff was remarried on August 20, 1961, to Harry Hart; that the will did not specifically define the amount required by the plaintiff for her support and maintenance in accordance with her standard of living on April 30, 1959, (the date of the will) nor did it state that the amount required was left to the absolute determination of the plaintiff; that the stocks received as stock dividends are a part of the corpus of the trust and shall be retained by the trustee; that Sadie Connors Hart requires for her support and maintenance in accordance with her standard of living on April 30, 1959, the sum of $15,000 per year; that from this amount should be deducted the sum of $9,474.27 received by petitioner each year from the trust and $2,400 received each year as a pension from the State of Illinois and that in addition to this income the plaintiff was entitled to the sum of $3,125.73 per year from June 24, 1961, the date of her husband’s death.

The Chancellor adopted the Master’s findings and decreed that the plaintiff required a gross income of $15,-000 per year; that she was entitled to encroach upon the corpus of the trust for that amount less the total of the following: (a) income from the trust; (b) State of Illinois pension; and (c) income from all other sources owned or controlled by the plaintiff. The Chancellor also ordered the successor trustee, LaSalle National Bank, to pay to the petitioner the sum of $12,187.35 from the corpus of the trust estate which reflected the amounts that the petitioner was entitled to encroach from the trust estate for the years 1961 through 1965 and the defendants appeal.

Counsel for defendants informs us that the leading case containing a power of encroachment based upon the beneficiaries’ requirements is In re Martin’s Will, 269 NY 305, 199 NE 491. There the trustee of a trust fund was directed under the will to pay the beneficiary in addition to the net income “such part of the principal thereof as she may require for her care, support and comfort, during her natural life.” The court held that an invasion of the principal was dependent upon the needs or requirements of the beneficiary and since the will was silent as to who shall determine the amount necessary it presented a pure question of fact to be determined in a judicial proceeding. Relying on this case the defendants maintain that plaintiff must first exhaust her own resources or assets before the trustee is authorized to encroach upon the trust corpus. An examination of other cases cited by defendants for this proposition show that they involved use of income from and not the resources or assets of the beneficiaries.

As pointed out by the defendants, we recognize at the outset that testamentary dispositions vary in wording and the circumstances of the parties. Glaser v. Chicago Title & Trust Co., 393 Ill 447, 66 NE2d 410. The cardinal rule in the construction of wills is to ascertain the intention of the testator from a consideration of the whole will and to give effect to that intention. Hartwick v. Heberling, 364 Ill 523, 4 NE2d 965. In the instant case the testator who had served for many years as a State Senator in the Illinois Legislature expressed a clear intention that his widow may use all or any part of the corpus of his trust if required for her support or maintenance in accordance with her present standard of living. Nothing is said by the testator that she must first exhaust her own resources and we are not persuaded that she must do so. The testator had in mind the income from his estate and the bequests to his wife and was still uncertain that the income from the trust estate would be enough to maintain her present standard of living, as he clearly intended that it should, so he specially provided that his widow could use all or any part of the trust for that purpose. It is apparent that the testator was concerned primarily with his wife’s comfort and any residue to others was secondary.

The defendants maintain that they affirmatively established that plaintiff’s standard of living in 1959 required a maximum annual expenditure of under $10,000 and not the gross annual income of $15,000 as determined by the Master. For this purpose the defendants attached to their brief a series of charts which they say show the annual expenditures of the deceased, the private resources of the plaintiff and the plaintiff’s annual income. Noticeably absent is the testimony of the plaintiff that her husband gave her a cash allowance of $1,000 monthly to spend on herself or to do with as she saw fit.

Our examination of the record and the charts referred to above lead us to conclude that the Chancellor’s finding that the plaintiff’s standard of living is equivalent to an income of $15,000 is well within the range of the pertinent testimony. We see no useful purpose in prolonging this opinion by discussing in detail the extended evidence of the 1959 standard of living by plaintiff or to refer to other arguments of the defendants. We cannot say, as we must to reverse, that the decretal findings of fact are wholly unwarranted from the manifest weight of the evidence.

The judgment of the Chancellor is therefore affirmed.

Judgment affirmed.

MURPHY, P. J. and ADESKO, J., concur.


author: PRESIDING JUSTICE LYONS,

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Willie Waller, Otherwise Called William White, Defendant-Appellant.
    Gen. No. 50,983.
    First District, Second Division.
    June 27, 1967.
    Gerald W. Getty, Public Defender of Cook County, of Chicago (James N. Gramenos and James J. Doherty, Assistant Public Defenders, of counsel), for appellant;
    John J. Stamos, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and Eldridge Hersey, Assistant State’s Attorneys, of counsel), for appellee.
   Opinion by

PRESIDING JUSTICE LYONS,

Not to be published in full.


author: PRESIDING JUSTICE LYONS.

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Roma Glass, (Impleaded), Defendant-Appellant.
    Gen. No. 51,098.
    First District, Second Division.
    June 27, 1967.
    Gerald W. Getty, Public Defender of Cook County, of Chicago (Norman W. Fishman and James J. Doherty, Assistant Public Defenders, of counsel), for appellant;
    John J. Stamos, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and Carl M. Walsh, Assistant State’s Attorneys, of counsel), for appellee.
   Opinion by

PRESIDING JUSTICE LYONS.

Not to be published in full.


author: MR. JUSTICE BRYANT

text:
    James J. Phelan, Jr., et al., Plaintiffs-Appellees, v. University National Bank, Defendant-Appellant.
    Gen. No. 51,107.
    First District, Second Division.
    June 27, 1967.
    Rehearing denied July 31,1967.

      Philip A. Winston, of Chicago, for appellant.
    Thomas R. McMillen, of Chicago (Bell, Boyd, Lloyd, Haddad & Burns, of counsel), for appellees.
   MR. JUSTICE BRYANT

delivered the opinion of the court.

This is an appeal from a judgment of the Circuit Court of Cook County against the University National Bank in the sum of $12,277.66. Judgment was also entered against Georgia Barias in the sum of $15,694.70; she did not appeal. The basis of the judgment against the University National Bank was that the bank as a payor bank under the Uniform Commercial Code had failed to give timely notice of the dishonor of four drafts which were drawn on defendant Georgia Barias. Succinctly stated, defendant University National Bank’s theory on this appeal is that it was not a payor bank, but a collecting bank, and that it acted in conformity with the UCC and banking customs. Defendant, University National Bank, also contends that the plaintiffs were not entitled to a recovery because they had ratified and confirmed the actions of the defendant.

The transactions which gave rise to this controversy were the sale of common stock by the plaintiffs, who are stockbrokers, to defendant Georgia Barias. All of the purchases involved here were made by Mrs. Barias’ son, Kosta Barias, who had a limited agency authorization to buy, sell and trade in stocks on behalf of his mother. All purchases were of Perfect Photo Common Stock listed on the American Stock Exchange. Between May 28, 1962, and December 31, 1962, a total of 4,600 shares were purchased on behalf of Mrs. Barias by her son. Beginning on December 19,1962, plaintiffs accepted the signature of Kosta Barias alone on such delivery instruction letters without further authority or confirmation from Georgia Barias.

In January 1963 a total of 11,300 shares of Perfect Photo were purchased by Kosta Barias in the account of his mother. These shares were sent on different dates to University National Bank attached to five separate drafts, each of which represented a collective group of purchases put together by plaintiffs from time to time for delivery. Only the first four drafts are involved in this appeal.

The four drafts in this case were prepared in plaintiffs’ office and were then delivered with the stocks attached to Continental Illinois National Bank & Trust Company for collection. Continental then forwarded them to the defendant, University National Bank, for collection.

On Wednesday, February 6, 1963, Continental received a number of drafts from the plaintiffs including the first two involved in this case. These were received by defendant, University National Bank, on the following day, February 7, 1963. On the same date of receipt, defendant immediately mailed out collection notices thereof to defendant, Georgia Barias. Kosta Barias claimed that he received them for his mother.

On Thursday, February 7, 1963, Continental Bank received additional drafts from plaintiffs for collection, including the third involved in this case. That draft with stock attached was mailed that day to defendant, University National Bank, for collection. The defendant, University National Bank, received this draft on the following day and immediately mailed out a collection notice thereof to Georgia Barias dated February 8, 1963. Kosta Barias claims that he also received this one for his mother.

On Friday, February 8, 1963, Continental also received additional drafts from plaintiffs for collection including the fourth draft involved here. This draft with the stock attached was mailed to defendant, University National Bank, on the same day. While the University National Bank was open until 1:00 p. m. on Saturday, February 9, 1963 (as opposed to a normal closing time of 2:30 p. m.), Mrs. Annetta Purka, Vice President of the defendant, University National Bank, testified that the bank did not receive this draft until Monday, February 11, 1963, when it was processed. Kosta Barias likewise claims that he also received this notice for his mother.

On Monday, February 11, 1963, defendant, University National Bank, had not heard from Georgia Barias in response to the notices sent the previous Thursday and Friday — the first three drafts involved in this appeal. Mrs. Purka, Vice President of the University National Bank, testified that she tried to reach Mrs. Barias by telephone but was unsuccessful.

Kosta Barias came into defendant bank on Monday, February 11 and Mrs. Purka told him about the drafts and stocks for his mother; that notices were sent and that his mother could not be reached by telephone. He told Mrs. Purka that he had purchased the securities on her account and that he was trying to secure financing to take care of the drafts. Kosta Barias was unable to obtain financing to pay for the stocks, with the result that on Febuary 14, the four drafts in issue were returned by the University National Bank to the Continental Bank. Upon receipt of the stocks the plaintiffs began to sell them to mitigate its damages. Sale of the 10,300 shares of Perfect Photo Stock resulted in a loss of $15,-694.70 to the plaintiffs.

The first issue on this appeal is whether the University National Bank was acting as a payor or a collecting bank under section 4-105 of the Uniform Commercial Code. The defendant, University National Bank, contends that it was acting as a “collecting bank,” and that it was error for the trial court to have found that the defendant was a “payor bank.” Section 4-105, Uniform Commercial Code provides that:

“In this Article unless the context otherwise requires :
“(a) ‘Depositary bank’ means the first bank to which an item is transferred for collection even though it is also the payor bank;
“(b) ‘Payor bank’ means a bank by which an item is payable as drawn or accepted;
“(c) ‘Intermediary bank’ means any bank to which an item is transferred in course of collection except the depositary or payor bank;
“ (d) ‘Collecting bank’ means any bank handling the item for collection except the payor bank;
“ (e) ‘Presenting bank’ means any bank presenting an item except a payor bank;
“ (f) ‘Remitting bank’ means any payor or intermediary bank remitting for an item.”

The comments to this section of the Code make it quite clear that the function performed by the University National Bank was that of a “collecting bank.” The term “payor bank” includes a drawee bank and also a bank at which an item is payable if the item constitutes an order on the bank to pay, for it is then “payable by” the bank. If the “at” item is not an order in the particular state, then the bank is not a payor, but will be a presenting or collecting bank.

Paragraph 3 under comments states: “Items are sometimes drawn or accepted ‘payable through’ a particular bank. Under this Section and Section 3-120 the ‘payable through’ bank (if it in fact handles the item) will be a collecting (and often a presenting) bank; it is not a ‘payor bank.’ ”

Plaintiffs prepared the drafts and placed them with Continental Bank for collection which transmitted them to the defendant, University National Bank, for collection. Each of the drafts stated: “To University National Bank, 1354 E. 55th St., Chicago, III. a/c Georgia Barias.” Continental’s letters of transmittal to defendant, University National Bank, expressly stated: “We enclose for collection and remittance in Chicago funds only when actually paid.” Defendant, University National Bank, prepared and sent collection notices to Georgia Barias or Kosta Barias, her agent. And finally, the collection receipts issued for the drafts by Continental to the plaintiffs expressly stated, “Received . . . for collection.” In the light of these facts it is clear that the University National Bank was performing the functions of a “collecting bank” under the Uniform Commercial Code.

The next issue on this appeal is whether the University National Bank failed to carry out its responsibility as a collecting bank. The responsibility of a “collecting bank” is defined as follows in section 4-202, Uniform Commercial Code:

“RESPONSIBILITY FOR COLLECTION: WHEN ACTION SEASONABLE
“(1) A collecting bank must use ordinary care in
“(a) presenting an item or sending it for presentment ; and
“(b) sending notice of dishonor or nonpayment or returning an item other than a documentary draft to the bank’s transferor or directly to the depositary bank under subsection (2) of Section 4-212 after learning that the item has not been paid or accepted, as the case may be; and
“ (c) settling for an item when the bank receives final settlement; and
“(d) making or providing for any necessary protest ; and
“ (e) notifying its transferor of any loss or delay in transit within a reasonable time after discovery thereof.
“ (2) A collecting bank taking proper action before its midnight deadline following receipt of an item, notice or payment acts seasonably; taking proper action within a reasonably longer time may be seasonable but the bank has the burden of so establishing.
“(3) Subject to subsection (1) (a), a bank is not liable for the insolvency, neglect, misconduct, mistake or default of another bank or person or for loss or destruction of an item in transit or in the possession of others.”

An attempt was made by the defendant, University National Bank, to prove that there was a trade custom and usage among Chicago banks for the handling of Chicago drafts, i. e., that five full business days are allowed to receive, process, notify drawee, try to collect, notify forwarding bank and return the drafts uncollected or transmit the money if paid. Since we are of the opinion that any delay in handling the drafts in issue was ratified or confirmed by the plaintiffs, the existence or nonexistence of the alleged custom is of no consequence on this appeal.

Scott Wennerstrum was the registered representative of the plaintiffs who handled the affairs of Georgia Barlas and her son, Kosta. There is testimony from Mrs. Annetta Purka, Vice President of University National Bank that Mr. Wennerstrum made two calls to University National Bank on Monday, February 11, 1963, about the drafts. At that time Mrs. Purka testified that he told her to hold them, and that they would let her know what to do with the drafts. It was denied by the plaintiffs that they contacted the University National Bank on this date.

Again, on February 13, 1963 (or for the first time according to the plaintiffs), calls were made by Mr. Wennerstrum to the University National Bank who instructed Mrs. Purka to keep the drafts until he lets her know. James Golding, plaintiffs’ Securities Cashier, also called and told Mrs. Purka that “we would check back with them later that day.” William J. Lawlor, Jr., a general partner, also called the University National Bank and told Mrs. Purka “I will contact Continental and we will let you know.” “Hold the drafts. Do not return them yet. He will let us know.” In spite of knowledge that the four drafts in issue here were not paid, the plaintiffs went ahead and sent out a fifth draft for collection on this date.

As late as February 14, 1963, plaintiffs were still willing to accept payment, and were trying to contact either Kosta Barias or his mother to obtain payment. Finally, on February 14,1963, Continental took action to have the drafts returned.

In view of the above unequivocal evidence that both a registered representative and a general partner of the plaintiffs with knowledge of nonpayment of the drafts, instructed the University National Bank to hold and not return the drafts, we are of the opinion that any delay in handling the aforementioned items was the result of obeying the instructions of the plaintiffs. For these reasons the judgment is reversed and the cause remanded with directions to enter judgment for defendant and against plaintiffs.

Judgment reversed and cause remanded with directions.

LYONS, P. J. and BURKE, J., concur.


text:
    Humphrey Cadillac and Oldsmobile Co., Inc., PlaintiffAppellee, v. Dr. Charles A. Sinard, Defendant-Appellant. Humphrey Cadillac and Oldsmobile Co., Inc., PlaintiffAppellee, v. Edward L. S. Arkema, Defendant-Appellant.
    Gen. Nos. 51,176 and 51,177.
    First District, Second Division.
    June 27, 1967.
    Rehearing denied July 31,1967.

      Olson and Hanelin, of Chicago (J. W. Olson, of counsel), for appellants.
    Ahern and Gillogly, of Chicago (Kevin J. Gillogly, of counsel), for appellee.
   MR. JUSTICE BRYANT

delivered the opinion of the court.

This is an appeal from judgments of the Circuit Court of Cook County awarding possession of two Cadillac automobiles to the plaintiff, Humphrey Cadillac and Oldsmobile Co., Inc., hereinafter referred to as Humphrey. Defendants’ theory on this appeal is: (1) That the plaintiff, by its agent and employee, William Warhurst, placed the Cadillac automobiles in the hands of a dealer in automobiles, and, by doing so, gave that dealer power to transfer all rights of the plaintiff in the automobiles; (2) that plaintiff Humphrey is bound by the acts of its agent and employee even though such acts may have been contrary to its instructions; and (3) that defendants were buyers in the ordinary course of business and were good faith purchasers for value as defined in the Uniform Commercial Code, chapter 26, § 1-201(9).

The facts of this case are as follows: Plaintiff Humphrey Cadillac and Oldsmobile Co., Inc., is a very large automobile dealer with its main place of business in Rockford, Illinois. At the time of the transactions in question, William Warhurst was employed by plaintiff as the wholesale and fleet manager. Warhurst also had the authority to make sales at retail. Out of a work force of 96 or 97 employees Warhurst was the number four or five man. On wholesale, fleet and retail sales of Cadillacs Warhurst reported to John G. Jason, Vice President and General Manager of plaintiff.

Plaintiff, through William Warhurst, had on occasion sold automobiles to Raymond Johnson, who was known to plaintiff as an automobile dealer. Johnson had a sales lot at 103rd Street and Normal Avenue and also operated a restaurant and lounge known as Royal Coachman, located at 119th Street and Southwest Highway, Palos, Illinois. Following some difficulty in obtaining payment from Johnson, John Jason, Vice President of plaintiff, instructed William Warhurst that no further cars were to be sold to Johnson. Nevertheless, it is apparent that Warhurst continued to sell automobiles to Johnson, including the two involved in the transaction which is the subject of this appeal.

Defendant Dr. Charles A. Sinard, is a dentist with offices at 11106 South Michigan Avenue, Chicago, and defendant Edward L. S. Arkema is an attorney. Dr. Sinard had known Raymond Johnson for at least fifteen years. Since 1950 or 1951 Sinard purchased about ten new Cadillacs from Johnson. In 1958, 1961 and 1962 he purchased Cadillacs from Johnson and obtained certificates of title to those automobiles. The certified records of title to those three cars showed that the 1958 Cadillac originated with Metropolitan Cadillac in Milwaukee, and the 1962 Cadillac with the plaintiff. Metropolitan Cadillac in Milwaukee was part of plaintiff’s organization of dealers.

The purchase by Sinard of the car replevined from him in the proceedings below was started by a telephone call from Johnson on or about December 3, 1963, when Johnson told Sinard that he had a 1964 Eldorado, Biarritz, convertible, gold colored Cadillac, at a total cost to Sinard of $5,760.70 (cash plus a trade-in). The manufacturer’s suggested retail price on this model was $7,497.15. Sinard went to Johnson’s car lot located at 103rd and Normal and completed the transaction, paying Johnson $3,328 in cash and trading in his 1962 Cadillac. Sinard did not receive a certificate of title. He made numerous telephone calls to Johnson and met with no success. Sinard also made several telephone calls to the plaintiff in Rockford to try and obtain title for his car. He was advised by William Warhurst that the car was paid for but the title certificate had been misplaced and was in the possession of Hertz Company and that he (Sinard) would receive it in a short time. All that the defendant ever received was a set of Cadillac owner’s books from Johnson, which showed Hertz Corporation as the owner.

Defendant Arkema had not dealt with Johnson before buying the Cadillac which was the subject of the replevin proceedings. On March 14, 1964 he purchased the automobile replevined from him from Johnson. This transaction took place at Johnson’s restaurant, the Royal Coachman, where Arkema was introduced to Johnson by Clifford J. Dreyer, a lecturer for the Cook County Traffic Safety Commission. Arkema paid $2,392 by check plus the trade-in of his 1964 Oldsmobile. In response to two telephone calls made to Warhurst at plaintiff’s place of business, Arkema received a set of Cadillac owner’s books, which showed the owner to be Arkema but gave his address as P. O. Box 1526, Rockford, Illinois, the P. O. Box address of plaintiff.

The basic issue, we are confronted with on this appeal is whether the defendants acquired good title to the Cadillacs which they purchased. It is our view that they did and that the decision of the trial court must be reversed.

The Uniform Commercial Code, Ill Rev Stats, chapter 26, § 2-403, provides as follows:

“(1) .... When goods have been delivered under a transaction of purchase the purchaser has such power (to transfer a good title to a good faith purchaser for value) even though
“(a) . . .
“(b) the delivery was in exchange for a check which is later dishonored, or
“(c) it was agreed that the transaction was to be a ‘cash sale,’ or
“ (d) the delivery was procured by fraud punishable as larcenous under the criminal law.
“(2) Any entrusting of possession of goods to a merchant who deals in goods of that kind gives him power to transfer all rights of the entruster to a buyer in ordinary course of business.”

There can be no question that William Warhurst was acting within the scope or apparent scope of his authority when he sold the automobiles in question to Raymond Johnson. We have already seen that Warhurst was fleet and wholesale manager for plaintiff and that he was responsible only to the Vice President and General Manager of Humphrey. There can also be no question that Raymond Johnson was known to plaintiff as an automobile dealer. Nor can there be any question that the defendants dealt with Johnson on the basis that he was an automobile dealer. Dr. Charles Sinard had been buying Cadillacs from Johnson since 1950 or 1951.

The intent and purpose of chapter 26, § 2-403, supra as stated in the comment to the section is as follows:

“This section advances the law of Illinois by extending further protection to bona fide purchasers of goods.”

William D. Warren, in his article “Cutting off Claims of Ownership Under the Uniform Commercial Code,” 30 U of Chicago Law Review 469 (1962) states, at page 472:

“In section 2-403 of the Code the bold decision is made to apply, in a limited form at least, the commercial or mercantile theory to goods. Any entrusting of possession of goods to a merchant who deals in goods of that kind gives him the power to transfer all rights of the entruster to a buyer in ordinary course of business. The buyer in ordinary course of business is one who in good faith buys goods from a person in the business of selling goods of that kind, . . .
“The effect of these provisions is that when goods are sold in an unquestionably commercial setting, they are to be given a high degree of negotiability.”

We have here a situation where the plaintiff through its agent and employee William Warhurst allowed Cadillacs to be sold to Raymond Johnson, who was in the business of selling automobiles and to whom automobiles had been sold in the past. Raymond Johnson in turn sold such automobiles to the defendants and to other parties.

A buyer in the ordinary course of business is defined in chapter 26, §1-201(9) supra, as meaning:

“a person who in good faith and without knowledge that the sale to him is in violation of the ownership rights or security interest of a third party in the goods buys in ordinary course from a person in the business of selling goods of that kind but does not include a pawnbroker.”

As we have pointed out before, Dr. Sinard had had a long course of dealing with Raymond Johnson, and had bought cars from Johnson, which Johnson had obtained from the plaintiff. Neither defendant Sinard nor defendant Arkema had knowledge nor should they have been put on notice that something was unusual about the sales involved in this case. Moreover, both defendants made attempts to obtain their titles from plaintiff and were assured that titles would be forthcoming.

In view of the facts in this case, for us to hold that the plaintiff had a right to replevy and to retain the automobiles purchased by the defendants would be neither in the spirit nor the letter of chapter 26, § 2-403, supra. For the above reasons the judgments are reversed and the causes remanded with directions to enter judgments in replevin for the defendants and against the plaintiffs and for hearing on the amounts of the judgments on the counterclaims for damages in favor of the defendants and against the plaintiffs.

The motion filed May 10, 1967 by the plaintiffs that the judgments be affirmed is denied.

Judgments reversed and causes remanded with directions.

LYONS, P. J and BURKE, J., concur.


text:
    Melissa Krakowiak, a Minor, by Edward Krakowiak, Her Father and Next Friend, and Edward Krakowiak, Individually, Plaintiffs-Appellants, v. Wendell Sampson and Fred Wubs, Individually and d/b/a Sampson and Wubs Construction Company, Esta Lee Sampson and Shirley Ann Wubs, Defendants-Appellees.
    Gen. No. 51,221.
    First District, Second Division.
    June 27, 1967.

      Maurice A. Frank and Kaplan and Kaplan, of Chicago (Marshall Kaplan, of counsel), for appellants.
    Lloyd Speer and Pretzel, Stouffer, Nolan & Rooney, of Chicago (Joseph B. Lederleitner, of counsel), for appellees.
   MR. JUSTICE BRYANT

delivered the opinion of the court.

This is an appeal from a judgment following an order of the Circuit Court of Cook County striking plaintiffs’ complaint and dismissing their cause of action. Plaintiffs contend on this appeal that the trial court erred in dismissing the complaint because the complaint on its face stated a cause of action thus making the issue one for the consideration of the jury.

Suit was brought on behalf of Melissa Ann Krakowiak, a child, by her father and next friend, Edward Krakowiak and by Edward Krakowiak, individually. The complaint alleged that the defendants negligently maintained certain vacant real estate they possessed and controlled in that they caused truckloads of earth to be dumped on this land creating mounds of earth. The complaint also alleged that the defendants failed to remove these mounds of earth and various tree stumps and overhanging tree branches and that the mounds of earth and stumps and branches amounted to an attractive nuisance which caused the minor child, Melissa Krakowiak, to come on to the land, where she ran up and down the hills of earth and was seriously injured by an overhanging tree branch.

Defendants moved to strike the complaint and dismiss the action on the grounds that the facts pleaded do not establish an attractive nuisance and there is no duty to remove such things as overhanging tree branches or tree stumps. The motion was granted. The trial court afforded plaintiffs an opportunity to replead which plaintiffs failed to do. Plaintiffs stand on their complaint.

The essence of plaintiffs’ complaint is that the defendants should have removed the overhanging tree branch and mounds of earth or should have posted a guard to prevent the use of the premises by children. Since Kahn v. James Burton Co., 5 I112d 634, 126 NE2d 836, the attractive nuisance theory has not existed in Illinois. In its place the courts have analyzed cases of injury to children in terms of whether the harm was foreseeable.

“The element of attraction is significant only in so far as it indicates that the trespass should be anticipated, the true basis of liability being the foreseeability of harm to the child.”

Kahn v. James Burton Co., supra, at page 625.

It is true that every person owes to all others a duty to exercise ordinary care to guard against injury which may naturally flow as a reasonably probable and foreseeable consequence of his actions, and a person in possession or control of premises frequented by small children has an obligation not to maintain conditions which are dangerous or hazardous to them in view of the surrounding circumstances. However, that does not make each person an insurer of their safety. The general rule is that liability must be based on some fault. The injury must be the natural and probable result of a negligent act or condition and be of such a character as an ordinarily prudent person ought to have foreseen as likely to occur as a result of the negligence.

In Landman v. M. Susan & Associates, Inc., 63 Ill App 2d 292, 211 NE2d 407, plaintiff, a minor, sought damages for an eye injury which resulted from sand thrown at him by a playmate while they were playing on a sandpile at a construction site. The trial court sustained motions to dismiss and entered judgment on the pleadings in favor of both defendants. In affirming the action of the trial court, the Appellate Court, First District, First Division, stated, at p 296:

“An essential element of liability is missing in the present case, since the injury was not the result of any hazard or danger inherent in the pile of sand, in its substance, or in its location. In the Kahn case, the injury was caused by lumber being insecurely piled. In the Smith case, the yardstick was ‘whether or not the tank and tree together . . . created a “dangerous agency.” ’ ”

In the case at bar we have a young plaintiff who was injured when she ran into a tree branch while playing on defendants’ property. The court in Landman v. M. Susan & Associates, Inc., supra, expressed concern over the holding of sand piles as a source of liability because they are so numerous. We feel the same can be said of overhanging tree branches. Moreover, we do not see how either the overhanging tree branches alone or with the mounds of earth could have been reasonably foreseen to be source of danger or harm to someone like the plaintiff, Melissa Krakowiak.

For the above reason we agree with the trial court’s finding that the instant complaint failed to state a good cause of action as a matter of law.

The judgment is affirmed.

Judgment affirmed.

LYONS, P. J. and BURKE, J., concur.


author: MR. JUSTICE BURKE

text:
    Florence Solmo, Plaintiff-Appellee, v. Catholic Bishop of Chicago, a Corporation Sole, Defendant-Appellant, and Dominick Ponticelli, John Guida and Joseph Shortino, Defendants. Pasquale D’Andrea, Plaintiff-Appellee, v. Catholic Bishop of Chicago, a Corporation Sole, Defendant-Appellant, and Village of Melrose Park, a Municipal Corporation, and Joseph Shortino, et al., Defendants.
    Gen. No. 51,475.
    First District, Second Division.
    June 27, 1967.

      Vogel & Vogel, of Chicago (L. H. Vogel, Robert C. Vogel, Richard A. Walkovets and David C. Holland, of counsel), for appellant.
    Fred Lambruschi and John W. Schelthoff, of Chicago (Fred Lambruschi, Herbert P. Veldenz and John W. Schelthoff, of counsel), for appellees.
   MR. JUSTICE BURKE

delivered the opinion of the court.

These actions were brought for personal injuries sustained by plaintiffs when they were burned due to an explosion in a concession stand at a church festival. The causes were consolidated for trial. All defendants except the Catholic Bishop of Chicago and Dominick Ponticelli were dismissed out of the case during the trial on motion of plaintiffs. The jury returned verdicts against both remaining defendants, in an amount of $1,800 for plaintiff Solmo and $1,500 for plaintiff D’Andrea. The Catholic Bishop of Chicago alone prosecutes this appeal.

Prior to July 19, 1959, the Catholic Bishop of Chicago, through John Cucci as a member of a parish social committee, was issued a permit by the Village of Melrose Park to celebrate an annual parish festival on property owned by the Catholic Bishop. Sam Ponticelli and Joseph Shortino obtained separate concession permits from Cucci which entitled them to sell food from booths at the festival at a rental of $225 for the four days of the festival. Cucci gave the concessionaires instructions as to where their booths were to be located and where to dispose of trash at the end of the day. The concessionaires erected and maintained their own booths and the lease agreement prohibited them from engaging in gambling, the sale of liquor or the sale of meat on Friday. Both Ponticelli and Shortino intended to sell charcoal-broiled Italian sausage and Italian beef sandwiches in their respective booths.

On July 19, 1959, Dominick Ponticelli, the brother of Sam Ponticelli, started a charcoal fire in a charcoal burner in the Ponticelli booth in the early morning to prepare food for the day’s sales. Shortly thereafter Shortino opened his booth which was adjacent to the Ponticelli booth. The Shortino booth contained three charcoal burners, one of which was situated in the front of the booth near the customer service counter. About noon of that day thundershowers put the fire out in the front charcoal burner in the Shortino booth. When the rain ended Shortino attempted to restart the fire by cleaning out the wet coals, replacing them with hot coals, and adding kindling. Shortino then requested charcoal lighter fluid from the Ponticelli booth and Dominick Ponticelli went to the Shortino booth with a two-gallon can of lighter fluid. As Dominick Ponticelli was pouring the lighter fluid into the front charcoal burner in Shortino’s booth, the fluid was ignited by the hot coals previously placed into the burner by Shortino, flamed up and burned Ponticelli. Ponticelli dropped the can of fluid onto the burning coals and the can exploded. Mrs. Solmo and Mr. D’Andrea were at the service counter of Shortino’s booth to purchase sandwiches and were burned when the explosion occurred.

Plaintiffs filed a suit, basing their actions upon the theory that the owner of land who leases the land to concessionaires for a consideration, subject to the owner’s rules and regulations, is under a duty to see that the premises are kept in a reasonably safe condition for business invitees upon the land. It was also plaintiffs’ theory that where a concessionaire maintains a charcoal fire food cooker in close proximity to a customer service counter an inherently dangerous condition is created, which condition is compounded when inflammable materials are allowed to be stored in violation of the inflammable materials statute of the State of Illinois; plaintiffs contended in their complaint that the owner of the land is liable for injuries resulting from such condition, regardless of the fact that the concessionaire may be an independent contractor.

On this appeal the Catholic Bishop of Chicago maintains that plaintiffs’ injuries resulted from unforeseeable acts of persons who were independent contractors or employees thereof, and who were not agents or employees of the Catholic Bishop of Chicago. It is also maintained that there was no proximate connection between the leasing of the space to the concessionaires and the injuries suffered by the plaintiffs.

Where a defective or hazardous condition is not apparent upon a reasonable inspection or examination of the premises and where the owner retains no control over the premises, the owner of land will not be held liable for injuries to third parties on premises leased to an independent contractor unless injuries from the latter’s acts are reasonably foreseeable. See Hawkins v. Southern Maryland Agricultural Fair Ass’n, 237 Md 90, 205 A2d 286. (See also Stickel v. Riverview Sharpshooters’ Park Co., 250 Ill 452, 95 NE 445; Babicz v. Riverview Sharpshooters’ Park Co., 256 Ill 24, 99 NE 860.) In the Hawkins case the plaintiff was injured when a concessionaire and his employee were tossing and stacking cases of empty soda-pop bottles outside of his refreshment stand. One of the cases was dropped and glass from a shattered bottle injured plaintiff’s leg. A verdict in favor of the defendant Fair Association was directed by the trial court, which action was affirmed on appeal. The court on appeal stated, at 205 A2d 288, that it is universally recognized that mere ownership or possession of land does not of itself render the owner or possessor liable for injuries sustained by business invitees for the reason that the owner or possessor is not an insurer of the business invitee while upon the land. It was further stated that if liability exists on the part of the owner or possessor, it exists only through his negligence, unless the injuries are willfully inflicted. We are of the opinion that the isolated and independent act of Dominick Ponticelli in attempting to restart a charcoal fire by pouring lighter fluid on lit coals and in dropping the can of lighter fluid on the fire was not reasonably foreseeable so as to charge the Catholic Bishop of Chicago with the duty of protecting against such an occurrence.

Dominick Ponticelli was the brother of Sam Ponticelli, the operator of one of the concessions, and had no connection whatsoever with the Catholic Bishop of Chicago either as an agent or as an employee. The extent of control of the concessionaire’s business retained by the Catholic Bishop, as evidenced by the record, amounted solely to the designation of the location of the booths, a direction of disposal of trash, and a prohibition against gambling, selling of liquor or the sale of meat on Friday. It cannot be said that the Catholic Bishop of Chicago, through its agent John Cucci, retained such control of the premises as to assume the duty of keeping the premises in a reasonably safe condition.

Contrary to plaintiff’s contention, a charcoal burner, in and of itself, is not a dangerous hazard. Rather, the danger is created by the manner in which the burner is used. The Catholic Bishop of Chicago, as the owner of the land upon which the concession booths were situated, was not required to foresee that the burners would be misused. Merely because the burner was placed near the customer service counter would not have prevented the explosion nor would it have necessarily prevented third persons from being injured by the explosion.

Plaintiffs also raise the question of the violation of the Illinois Statute pertaining to the storage, keeping, etc., of inflammable materials. Ill Rev Stats 1959, c 38, Par 351 (presently Ill Rev Stats 1965, c 127½, Par 153). The Catholic Bishop of Chicago cannot be said to have had the duty to foresee the negligent use of the lighter fluid by Dominick Ponticelli. Furthermore, the storage of the lighter fluid upon the land of the Catholic Bishop of Chicago was not the cause of the explosion; rather, the use of the lighter fluid by someone over whom the Catholic Bishop of Chicago had no control was the cause of the explosion.

The cases cited by plaintiffs in support of their position that the owner of land is liable for injuries to third parties while on land leased to independent contractors are not in point: Stickel v. Riverview Sharpshooters’ Park Co., 250 Ill 452, 95 NE 445; Babicz v. Riverview Sharpshooters’ Park Co., 256 Ill 24, 99 NE 860; Dietze v. Riverview Sharpshooters’ Park Co., 181 Ill App 357; Geraghty v. Burr Oak Lanes, Inc., 5 Ill2d 153, 125 NE2d 47; Koehler v. La Salle Turn Verein, 187 Ill App 340. In the cases cited by plaintiffs the defective or hazardous conditions on the leased premises, or the negligent acts through which the respective plaintiffs were injured, were either reasonably foreseeable to the owner of the land or could have been determined by him upon a reasonable inspection, or the owner of the land retained such control over the operation of the concession as to retain the duty of keeping the premises in safe condition for third parties. In the case at bar, however, the act of Dominick Ponticelli in attempting to restart the charcoal fire by pouring lighter fluid upon the hot coals, and in dropping the container of fluid on the lit coals after he was burned, cannot be said to have been reasonably foreseeable by the Catholic Bishop of Chicago. Furthermore, the evidence is clear that the Catholic Bishop of Chicago did not retain such control over the premises as to require him to keep the premises in a safe condition.

The judgment against the Catholic Bishop of Chicago is reversed and the cause remanded with directions to enter judgment for the Catholic Bishop of Chicago and against both plaintiffs.

Judgment reversed and cause remanded with directions.

LYONS, P. J. and BRYANT, J., concur.


author: JUSTICE BRYANT.

text:
    Jerome Edelstein, Plaintiff-Appellee, v. Angelo Costelli, and Al Silverman, d/b/a Chicago Speedometer Service, Defendants-Appellants.
    Gen. No. 51,247.
    First District, Second Division.
    June 27, 1967.
    Rehearing denied September 12,1967.

      John L. Roach, of Chicago, for appellant, A1 Silverman; Unger & Unger, Dan Unger and Julian A. Levey, of Chicago (Louis P. Miller, of counsel), for appellee.
   Opinion by

JUSTICE BRYANT.

Not to be published, in full.


author: MR. JUSTICE McCORMICK

text:
    W. A. Bruce and L. H. Bruce, Individually and as Partners, d/b/a Oak Park Food Service; and Freeze Center Corporation, an Illinois Corporation, PlaintiffsAppellees, v. Leonard A. Ferrara, Individually and d/b/a Mid-America Food Service, Inc., a Corporation; Mary Eggert, Illinois Bell Telephone Company, a Corporation, and The Reuben H. Donnelley Corporation, a Corporation, Defendants-Appellants.
    Gen. No. 50,616.
    First District, Fourth Division.
    June 30, 1967.
    Frankenstein, Lewis & Feierberg, of Chicago (Paul A. Gold, of counsel), for appellants, Leonard A. Ferrara, Mid-America Food Service, Inc., and Mary Eggert.
    Sidley, Austin, Burgess & Smith, of Chicago, for appellants, Blinois Bell Telephone Company and The Reuben H. Donnelley Corporation.

      Groble & Groble, of Chicago (Raymond H. Groble, Jr., of counsel), for appellees.
   MR. JUSTICE McCORMICK

delivered the opinion of the court.

The plaintiffs, W. A. Bruce, and L. H. Bruce, individually, and d/b/a Oak Park Food Service, and Freeze Center Corporation, sued to enjoin the defendants, Leonard A. Ferrara, Mid-America Food Service, Inc., and Mary Eggert, from allegedly unfairly competing with plaintiffs in the business of selling home freezers and frozen food, and for an accounting for damages occasioned by the alleged unfair competition.

The case was referred to a master who held hearings and prepared a report with recommendations to the court and overruled all objections to the report. The objections stood as exceptions and were overruled by the trial court. On February 17, 1965, the trial court entered a judgment order permanently enjoining defendants from soliciting any of the 20,000 names contained in the nine volumes introduced in the hearing as Plaintiffs’ Exhibit 18 (names which plaintiffs had in their possession), together with other provisions imposed upon the defendants.

The judgment order provided that Ferrara and Mid-America Food Service, Inc. be required to do the following:

“. . . account and pay over to plaintiffs all the gain, profits and advantages derived by them, and each of them, from sales of frozen foods or memberships in frozen food purchase plans to any of plaintiffs’ customers whose names appear upon the exhibit received in this cause as exhibit No. 18, and further that this cause be referred to Thomas D. Nash, Jr., Master in Chancery of this Court for the purpose of taking an accounting in the manner provided by the rules of this Court; that this Court retain jurisdiction over this proceeding in order to enforce the provisions of this decree.”

The judgment order is not a final and appealable order. Ill Rev Stats 1963, c 110, § 50 (2). We are without jurisdiction to determine the appeal in spite of the fact that neither party has called attention to our lack of authority. Chicago Portrait Co. v. Chicago Crayon Co., 217 Ill 200, 202, 75 NE 473. In that case the court said: “A court finding it has no jurisdiction of a cause should dismiss it of its own motion, and the Appellate Court should have dismissed the appeal of its own motion at appellant’s cost.” See also Village of Niles v. Szczesny, 13 Ill2d 45, 145 NE2d 371; and Johnson v. City of Rockford, 26 Ill App2d 133,169 NE2d 534.

In Cook County v. Hoytt, 41 Ill App2d 122, 124, 190 NE2d 150, the court said:

“Since determination of the rights of the parties . . . disposes of less than all of the claims for relief involved in the action, the order making such disposition cannot be final and appealable without an additional ‘express finding that there is no just reason for delaying enforcement or appeal. . . .’”

By the statute piecemeal appeals are prohibited unless the trial court in the exercise of its discretion, makes the finding indicated. Ariola v. Nigro, 13 I112d 200, 148 NE2d 787; Hanley v. Hanley, 13 I112d 209, 148 NE2d 792. However, should the court below, on the application of the appellant see fit to enter an order that no just reason exists for delaying the appeal, and if the subject matter of this appeal were again to be presented to this court, the abstracts and briefs now on file could be transferred to the file of the new appeal without reprinting.

Appeal dismissed.

ENGLISH, P. J. and DRUCKER, J., concur.


author: MR. PRESIDING JUSTICE ENGLISH

text:
    George Williams, Appellant, v. George J. Frank, Appellee.
    Gen. No. 50,642.
    First District, Fourth Division.
    June 30, 1967.
    George Williams, pro se, of Chicago, appellant.
    No brief filed for appellee.
   MR. PRESIDING JUSTICE ENGLISH

delivered the opinion of the court.

Plaintiff’s complaint alleged that on February 3, 1965, he had done some painting for defendant in an apartment building in Skokie at an agreed price of $75; that a dispute arose between the parties as to whether there should have been a second coat of paint; that defendant sold the premises and turned over $75 to the new owner with directions to fight it out with plaintiff; that defendant refused plaintiff’s demand for payment of $75. The complaint, which was filed on February 16, 1965, sought a judgment for the $75 and for $25 per day for “cost and expenses incurred on account of delay.”

Defendant answered, alleging essentially that the work done by plaintiff had been performed not for defendant but for the new owner. Defendant also moved for summary judgment. This motion remained undisposed of when, as disclosed by the record, the case came on for trial in regular course, evidence was submitted to the court without a jury, and judgment was entered for plaintiff against defendant for $75 and costs.

Plaintiff, pro se, has appealed on the ground that he is entitled to “$25.00 per day for harassment and time lost,” and on the ground that he was entitled to a jury trial. Defendant has appeared but filed no brief.

The record contains no report of proceedings, so we have nothing before us which we might consider as supporting plaintiff’s claim for special damages, nor is there any indication in the record that plaintiff interposed any objection to trial without a jury.

As to a jury trial, the Clerk has certified in the record that “a complaint and Jury Demand was filed ... in words and figures following to wit”: The document which follows does not include a jury demand. In any event, plaintiff waived his jury demand by proceeding to trial before the court without a jury. Anderson v. Industrial Molasses Corp., 11 Ill App2d 210, 136 NE2d 536, citing Burgwin v. Babcock, 11 Ill 28; Harris v. Juenger, 289 Ill App 467, 471, 7 NE2d 376; Anzalone v. Johnson, 345 Ill App 410,103 NE2d 383; ILP, Juries, § 32.

The judgment of the trial court is affirmed.

Affirmed.

DRUCKER and McCORMICK, JJ., concur.


author: MR. JUSTICE DRUCKER

text:
    People of the State of Illinois, Defendant in Error, v. Robert Ellis, Plaintiff in Error.
    Gen. No. 50,933.
    First District, Fourth Division.
    June 30, 1967.
    Rehearing denied August 18, 1967.

      James N. Kosmond, of Chicago, for plaintiff in error.
    Daniel P. Ward, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and Carmen Speranza, Assistant State’s Attorneys, of counsel), for defendant in error.
   MR. JUSTICE DRUCKER

delivered the opinion of the court.

After a jury trial the defendant, Robert Ellis, was convicted of burglary and robbery and received a sentence for each crime of not less than five nor more than ten years in the penitentiary. The sentences were to run concurrently. Defendant filed a writ of error in the Supreme Court and the case was transferred to this court.

Contentions on Appeal

1. Defendant did not receive a fair trial because:

(a) Defendant’s written motion to suppress a revolver was erroneously denied;
(b) The jury was erroneously instructed on the defense of alibi;
(c) Cross-examination of the defendant by the prosecution was improper and prejudicial; and
(d) A scarf was erroneously introduced into evidence.

2. Defendant was not proven guilty beyond a reasonable doubt.

Facts

Defendant was indicted and tried for burglarizing the ground floor apartment at 1016 North La Salle Street in Chicago, Illinois. During the course of the burglary defendant allegedly, with force, took a gun from the hand of Dr. Delphine Bartosik (one of the occupants of the apartment), wherefore he was indicted and tried at the same trial for robbery. The apartment in question was leased by four female doctors, only two of whom (Dr. Bartosik and Dr. Margaret O’Neal) were present therein at the time of the crimes.

Dr. Bartosik testified that on September 14, 1962, at approximately 6:30 a. m. she was awakened by a noise and discovered the defendant standing three or four feet from her bed and holding a knife in his hand. Defendant wore a dark mesh-like material over his head. However, a lamp had remained turned on during the night and therefore, despite the face covering, Dr. Bartosik "was able to distinguish his features quite well.” Defendant warned her not to scream, directed her to lie on her stomach, and then tied her hands, placed a gag in her mouth and placed a pillow case on her head.

Defendant then proceeded into the kitchen, where he made noises which awakened Dr. O’Neal. The latter sat up in bed and turned on her light. She described the burglar, who then entered her room, as being approximately five feet six inches tall and thin; he had a knife in his hand and a thin material over his face which did not distort his features. He was in her room only momentarily and Dr. O’Neal could not identify him.

In the meantime, Dr. Bartosik worked free of her bonds, grabbed a pistol (which her father had given her) from underneath the bed and pointed it at defendant as he again entered her room. A struggle for the gun ensued, it discharged and was subsequently taken from her by defendant. Dr. Bartosik later noticed that defendant apparently gained entry to the apartment through a sliding glass door which faces La Salle Street.

Eight days after the incident, on September 22, Dr. Bartosik positively identified the defendant from a lineup of five men at the police station. She also identified a sheer black scarf (People’s Exhibit 1), which had allegedly been discarded by defendant just prior to his arrest, as being very much like that worn by the burglar. Additionally, Dr. Bartosik identified her gun, which had been taken by defendant and discarded by him just prior to his apprehension. The gun had various distinctive features which corroborated her identification.

Glennis Willis, a newspaper delivery boy, testified that he observed the defendant at approximately 6:30 a. m. on September 14 sitting on the steps of the building in which Dr. Bartosik lived and that subsequently he saw defendant looking into the apartment which he was accused of burglarizing. While Willis described the man as heavy set, he estimated the man’s weight at 140 to 150 pounds.

Defendant was arrested in the early morning hours of September 22, 1962, after a chase which began when the police spotted him sitting with two other persons in a car which was parked in a dark alley. Shortly before the culmination of the chase defendant discarded a gun, which he had been carrying in his hand, into a garbage can. The gun was recovered immediately thereafter by one of the pursuing police officers. When confronted with the gun defendant denied ever possessing it. Defendant also discarded an object which landed on the bumper of an abandoned automobile. Approximately thirty-five minutes after defendant’s capture, one of the police officers who had pursued him and observed defendant discard that object, returned to the scene and found a black scarf (People’s Exhibit 1) on the car bumper.

At the trial defendant testified and denied burglarizing the apartment in question. He offered the alibi that at 6:30 a. m. on the day in question he was at the home of Mr. and Mrs. Jones on North Larrabee Street in Chicago, Illinois, where he resided. He testified that he was awakened by Mrs. Jones at approximately 6:30 a. m., left at about 7:00 a. m. and went to the home of his aunt where he arrived between 7:45 and 8:00 a. m. Defendant’s aunt and Mrs. Jones corroborated the defendant’s alibi testimony.

Opinion

Defendant contends that he did not receive a fair trial.

(a) In support thereof defendant first argues that his motion to suppress the revolver which he allegedly discarded into a garbage can was erroneously denied.

With regard to that motion the Supreme Court, in its transfer order, stated :

The record shows that the defendant threw the gun in a trash can while he was being pursued by the police. There is no substantial question of an unlawful search and seizure in this case.

Therefore, we find that the trial court was correct in denying defendant’s motion to suppress the revolver.

(b) Defendant next argues that the jury was given an erroneous and prejudicial alibi instruction. That instruction was as follows :

The Court instructs the jury, as a matter of law, that before a defendant can avail himself of the defense of an alibi, the proof must cover the whole of the time of the commission of the crime and be supported by such facts and circumstances in evidence as are sufficient (when considered in connection with all the other evidence in the case) to create in the minds of the jury a reasonable doubt of the truth of the charge or charges against the defendant.

We believe that any impropriety in that instruction was cured by the giving of the following instruction:

If a person on trial for a crime shows that he was in another place at the time when the act was committed, he is said to prove an alibi. Such defense is proper and all evidence bearing on that point should be carefully considered by the jury. If in view of all the evidence, the jury believe the defendant was in some other place other than where the crime was committed at the time the crime was committed, or if the jury have a reasonable doubt of his presence when and where the crime was committed, they should give the defendant the benefit of the doubt, and find him not guilty.
As regards the defense of the alibi, the jurors are instructed that the defendant is not required to prove that defense beyond a reasonable doubt to entitle him to an acquittal. It is sufficient, if the defense upon that point raises a reasonable doubt of his presence at the time and place of the commission of the crime charged, and if it does, it is your sworn duty under the law to give the benefit of the doubt to the defendant and to find him not guilty.

It is of no relevant significance that the instruction objected to was given to the jury subsequent to the curative instruction since the jury was also instructed that the instructions “should be considered together as one entire series, and each instruction should be considered in connection with all instructions bearing upon the same subject.” Therefore, we find no merit in defendant’s argument.

(c) Defendant also argues that testimony elicited from him on cross-examination, over objection, that he had previously been in the penitentiary was prejudicial error.

After an examination of the record, it appears that the prosecution did not intentionally attempt to elicit from defendant the fact that he had a criminal record. On direct examination, defendant testified that he was with a person named Chris just prior to his arrest, in the car which the police discovered in an alley. On cross-examination, the prosecution attempted to discover the identity of Chris and his relationship to the defendant. The prosecutor asked defendant where he knew Chris from, and defendant replied: “I know him from the penitentiary.” Defense counsel did not ask the remark to be stricken, but moved only for a mistrial. (The motion was denied.) Subsequently, the prosecution introduced the defendant’s criminal record into evidence. There is no evidence apparent from the record on appeal that the prosecutor was aware that defendant knew Chris from the penitentiary. Defendant opened the door for cross-examination as to the identity of Chris and their relationship by his direct testimony that he was innocently sitting in a car with Chris and another man in a dark alley in the middle of the night.

Moreover, since the defendant’s criminal record was formally introduced into evidence, any error which may have been committed was cured. People v. Squires, 27 Ill2d 518, 190 NE2d 361. In People v. Smith, 63 Ill App2d 369, 381-382, 211 NE2d 456, the court stated:

. . . Our Supreme Court formerly held that the effect of the defendant disclosing from his own lips the fact of his prior convictions was so damaging that the only manner in which a prior conviction could properly be established was by the record or an authenticated copy of the conviction. Under this view, if the defendant were also examined regarding his prior conviction, it would be reversible error.
Recently, however, our Supreme Court has modified this view and has held that the cross-examination of a defendant as to a prior conviction is not reversible error if the record is also admitted as proof of the conviction.
While the manner of proving the prior conviction of the defendant in this case did not constitute error, we are not condoning the practice of examining a defendant as to such convictions any more than we believe the Supreme Court in Squires or Neukom [referring to People v. Squires, supra, and People v. Neukom, 16 I112d 340] was indicating its approval of such practice. We merely hold that in the case at bar, it was not error. It is conceivable that the examination of a defendant as to his prior conviction, in extremely close cases or in those in which the nature of the offense elicited is revolting or heinous, may result in more than merely discrediting his testimony, and that the examination in such cases may constitute prejudicial error and grounds for reversal. In such event, the error could not be cured by subsequently proving the conviction in the proper manner.

We therefore find that no prejudicial error was committed in the instant case by allowing the cross-examination in question.

(d) Defendant also argues that People’s Exhibit 1, a black scarf which he allegedly discarded while being pursued by the police, was erroneously admitted into evidence. Dr. Bartosik and Dr. O’Neal both testified that the scarf resembled that worn by the intruder over his face. Defendant appears to assert that the lapse of time prior to the recovery of the scarf gave rise to some intervening agency, wholly unassociated with defendant, by which the scarf may have come to rest on the automobile where it was found by the police. A police officer testified that he saw defendant discard an object which landed on the bumper of an abandoned automobile; that he recovered that object, a black scarf, some thirty to forty-five minutes later from the bumper of that same automobile. In urging that the scarf was erroneously admitted into evidence defendant relies on People v. Reno, 324 111 484, 155 NE 329. In that case a bullet was found at least twelve hours after a murder by a witness who had previously inspected the room and found nothing. The court decided it was error to admit the bullet, stating at page 487:

There is no evidence as to how long the bullet had been there or that it was in any way connected with Reno or the murder. To render this bullet competent as evidence it should have been connected in some way with Reno or shown to have had some connection with the killing of deceased or her husband.

In the instant case, the scarf was connected to the defendant and we find no error in its admission into evidence.

2. In contending that he was not proven guilty beyond a reasonable doubt, defendant argues that the identifications of him by Glennis Willis and Dr. Bartosik were not credible. However, we find no merit in defendant’s contention. Dr. Bartosik was twice confronted by the defendant in close quarters; a light was turned on in her bedroom; and the intruder’s features were discernible through the thin facial covering worn by him. Furthermore, Dr. Bartosik positively identified the defendant from a lineup of five men and again identified him at trial. Additionally, Dr. Bartosik identified the gun taken from her as the same one discarded by defendant prior to his arrest and she also identified the scarf discarded by defendant as being similar to that worn by the intruder. Glennis Willis, who identified the defendant at the police station and again at trial as the man he saw peering into the apartment, looked directly at the man while the latter sat on the steps in front of the apartment. The conflict in the identification testimony of Willis and Dr. Bartosik was that the latter testified the intruder was wearing a grayish-green or olive-green type of sweater jacket, while Willis testified that the man he observed peering into the apartment was wearing a blue jacket. We would point out that the observations were not made under the same lighting conditions, as one was made inside the house and the other outdoors. Both testified that the intruder wore dark pants; Dr. Bartosik testified that the intruder was five feet five to seven inches tall and slender and, while Willis described the man he saw as heavy set, he estimated the man’s weight at 140 to 150 pounds. While the identification by Willis was not made from a lineup, this fact affects only the weight and not the competency of the identification. People v. Napper, 78 Ill App2d 451, 223 NE2d 194. In that case an identification of an alleged rapist by the victim was held to be competent even though it was made as he lay in a hospital, and immediately prior to the identification in that case the victim was informed that they had the man who attacked her.

In People v. Donald, 29 Ill2d 283, 286-287, 194 NE2d 227, the Supreme Court stated:

In weighing evidence of identification, the attendant circumstances, along with the probability or improbability of an adequate opportunity for a definite identification, must be considered .... However, the positive identification by one witness who had ample opportunity for observation may be sufficient to support a conviction even though such testimony is contradicted by the accused .... Although there was proof of alibi, in the last analysis this became a question of the witness’ credibility which was for the jury to decide, and such determination not being so unreasonable, improbable, or unsatisfactory as to raise a reasonable doubt of the defendant’s guilt, the verdict will not be disturbed on review.

In the instant case, we find that the identification of defendant was sufficient to support a conviction.

Holding on Appeal

We find that the defendant received a fair trial and that he was proven guilty beyond a reasonable doubt. Therefore the judgment of the trial court is affirmed.

Affirmed.

ENGLISH, P. J. and McCORMICK, J., concur.

       There is no indication that the other two persons were implicated in any criminal behavior. They disappeared while defendant was being chased by the police.


author: JUSTICE McGORMICK.

text:
    People of the State of Illinois, Appellee, v. Fred Smith, Appellant.
    Gen. No. 51,120.
    First District, Fourth Division.
    June 30, 1967.
    Gerald W. Getty, Public Defender of Cook County, of Chicago (James J. Doherty, Assistant Public Defender, of counsel), for appellant;
    John J. Stamos, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and Thomas M. Burnham, Assistant State’s Attorneys, of counsel), for appellee.
   Opinion by

JUSTICE McGORMICK.

Not to be published in full.


author: MR. JUSTICE ADESKO

text:
    Helen Jewell Berg, Plaintiff-Appellee, v. Jacob Oscar Berg, Defendant-Appellant.
    Gen. Nos. 50,909 and 51,386.
    First District, First Division.
    June 30, 1967.
    Rehearing denied September 5, 1967.

      Emmet J. Cleary, of Chicago, for appellant.
    Sam Burnes, of Chicago (Maurice A. Winkler, of counsel), for appellee.
   MR. JUSTICE ADESKO

delivered the opinion of the court.

Defendant appeals in case No. 50,909 from an order of the Circuit Court of Cook County, Divorce Division, requiring him to pay one-half of a medical bill and his wife’s attorney’s fees. In case No. 51,386, he appeals from the Circuit Court’s subsequent order requiring him to pay his wife’s attorney’s fees and costs of defending the appeal in case No. 50,909.

The parties were divorced in 1957, one child having been bom of the marriage. In June, 1964, the defendant (husband) filed a petition claiming that the child, who was in his mother’s custody, was not receiving proper medical attention, nor had defendant been informed of the child’s progress in school. Plaintiff (wife) answered the petition and although the record indicates she filed a cross petition, no such document was made a part of the record on this appeal.

On July 6, 1964, an order was entered pursuant to “Defendant’s petition and the plaintiff having filed an Answer thereto in open court and also a cross petition.” Under the original divorce decree plaintiff was responsible for all medical expenses. The order modified the original divorce decree, the relevant part of which states:

“The Plaintiff shall advise and submit medical expense bills and reports for medical care for Charles Berg considered by her as extraordinary medical expenses. Said bills to be agreed upon by the parties, and if no agreement is reached, then to be determined by this court.”

In February, 1965, plaintiff filed a petition alleging, inter alia, that she had incurred certain extraordinary medical expenses and defendant had refused to pay such expenses. Pursuant to this petition the court, on June 28, 1965, ordered defendant to pay one-half of a medical bill incurred in 1963, and plaintiff’s attorney’s fees for the filing of the petition. It is from this order that the appeal in case No. 50,909 was taken.

The order clearly shows that the medical bill was for services in 1963. This was prior to the modification of the divorce decree requiring defendant to pay medical bills. Plaintiff’s petition did not seek a further modification of defendant’s child support obligation and the medical bill was not presented for the purpose of showing a change in circumstances.

We conclude that the order of July 6,1964, applied only to medical expenses which would be incurred in the future. Consequently the June 28, 1965, order was incorrect in assessing defendant for one-half of a 1963 medical bill.

As to the portion of the June, 1965, order allowing attorney’s fees to plaintiff, the trial court was in error. No findings of fact are contained in the order. Attorney’s fees are only justified when the court finds that one spouse is financially unable to pay the fees and the other spouse is able to do so. Jones v. Jones, 48 Ill App2d 232, 198 NE2d 195 (1964).

After the appeal (50,909) was taken from the June, 1964, order, plaintiff filed a petition with the trial court for attorney’s fees and costs for defending the appeal. She alleged that she was without funds and defendant was able to pay. Defendant’s answer denied the allegations of the petition. An order was entered February 21, 1966, requiring defendant to pay plaintiff’s attorney $450 in fees and $50 costs. From this order the second appeal (51,386) was filed.

We are aware of the rule that allowance of attorney’s fees is a discretionary matter. However, as stated above, it can only be justified if plaintiff is financially unable to pay and defendant is able to do so. Although the order found that plaintiff was unemployed and has no income of her own, the record discloses that she held with her second husband, two joint bank accounts with funds totalling $2,700. They also owned a home in joint tenancy. Furthermore, the order makes no finding as to the defendant’s ability to pay, nor was any evidence adduced on that subject.

For the above reasons we conclude that the order of February 21, 1966, was in error and must be reversed.

Case No. 50,909 — Order reversed. Case No. 51,386— Order reversed.

MURPHY, P. J. and BURMAN, J., concur.


text:
    Margaret M. Serio, Plaintiff-Appellee, v. Frank J. Serio, Defendant-Appellee, Albert H. Werner, Appellant.
    Gen. No. 51,355.
    First District, First Division.
    June 30, 1967.
    Crowley, Sprecher, Barrett & Karaba, of Chicago (Robert A. Sprecher, of counsel), for appellant.

      Meyer Weinberg, of Chicago (Meyer Weinberg and Harry G. Fins, of counsel), for appellee.
    No brief filed for appellee, Frank J. Serio.
   MR. JUSTICE ADESKO

delivered the opinion of the court.

Albert H. Werner, (Werner) the first attorney for Margaret M. Serio, plaintiff in the trial court, brings this appeal from an order of the Circuit Court of Cook County allowing him $200 in attorney’s fees from the $2,500 attorney’s fees the defendant, Frank J. Serio, was required to pay his wife’s three attorneys.

In January, 1965, Werner filed a complaint for separate maintenance for plaintiff. Defendant counterclaimed for divorce and filed a petition to partition certain realty. Werner negotiated, on his client’s behalf, with defendant’s attorney for a property settlement. An oral agreement was reached, but upon being reduced to writing, it was rejected by Mrs. Serio. Part of the property settlement called for Mr. Serio to pay Werner $1,700 in attorney’s fees.

Mrs. Serio discharged Werner and retained the services of two other attorneys. They were substituted as attorneys of record and pursued the litigation. A second property settlement was negotiated and this time the parties executed the agreement. One of the provisions of this second property settlement was:

“That the husband shall pay to-and-(wife’s second attorneys) the sum of $2,500; however they shall secure a satisfaction of any debt due to Albert Werner, prior attorney for the wife.”

After an uncontested hearing Mrs. Serio was granted a divorce. The decree stated “that the said amount ($2,500) represents the entire obligation of the defendant for any and all attorney’s fees incurred on behalf of the plaintiff.”

Werner’s motion for fees was heard on January 31, 1966, and on February 7, 1966, an order was entered allowing him the sum of $200 for legal services rendered on behalf of Mrs. Serio. His verified motion showed that he had spent over 80 hours on the matter and had received only $300 in fees. This amount clearly was not sufficient to pay Werner the reasonable value of his services, nor would the $500 have been sufficient.

Initially we note that this court does have jurisdiction of this cause even though the appeal is taken by a nonparty. Such appeals are governed by section 74(1) of the Civil Practice Act (Ill Rev Stats 1965, c 110, § 74). Werner has a sufficient interest to prosecute the appeal. Nott v. Wolff, 18 Ill2d 362,163 NE2d 809 (1960); Stone v. Baldwin, 331 Ill App 421, 73 NE2d 635 (1947); Doggett v. Deauville Corp., 148 F2d 881 (5th Cir 1945).

Werner filed the record and his abstract and brief. Mrs. Serio filed a brief but it had already determined that the attorneys’ fees would be paid by Mr. Serio. The court indicated that the $2,500 was all that Mr. Serio would be required to pay and that sum would be distributed among Mrs. Serio’s attorneys. It was for the court to determine how the fund would be allocated among the lawyers.

Mr. Serio did not file a brief in this court, nor did any of the attorneys who were involved in the cause, other than Werner. We therefore consider this appeal as if no brief has been filed to support the order of February 7,1966, setting Werner’s fee at $200.

We reverse the order of the Circuit Court of Cook County and remand the cause for a rehearing as to what portion of the $2,500 paid by Mr. Serio shall be paid to Werner for the reasonable value of his services in accordance with the views expressed in this opinion. C.I.T. Corp. v. Blackwell, 281 Ill App 504 (1935); Basinski v. Basinski, 20 Ill App2d 336, 156 NE2d 225 (1959).

Judgment reversed and cause remanded.

MURPHY, P. J. and BURMAN, J., concur.