author: JUSTICE BARRY

text:
    EDWIN T. BULL, Plaintiff-Appellant and Counterdefendant, v. GEORGE MITCHELL et al., d/b/a Morris Harbor Service, Defendants-Appellees and Counterplaintiffs.—(Iowa Marine Repair Corporation, Plaintiff-Appellee, v. Edwin T. Bull et al., Defendants-Appellants.)
    Third District
    Nos. 82—336, 82—343 cons.
    Opinion filed April 29, 1983.

      Robert Morel Gray and Andrew J. Kleczek, both of Gray, Kleczek & Kielian, P.C., of Joliet, for appellants.
    Joseph M. Cernugel, of Cirricione, Block, Krockey & Cernugel, P.C., of Joliet, for appellee Iowa Marine Repair Corporation.
   JUSTICE BARRY

delivered the opinion of the court:

Plaintiff, Edwin T. Bull, Sr., appeals from judgment entered by the circuit court of Will County dismissing two counts of his complaint against defendant, Iowa Marine Repair Corporation, and entering judgment against him in Iowa Marine’s complaint to foreclose lien. The subject of these consolidated actions is an 80-foot fishing trawler named Bull Head, which was built by Bull in 1961. In July of 1974, Bull leased the Bull Head to George Mitchell and Ralph Hix. At that time, the Bull Head was in excellent condition, having recently been completely overhauled. The parties’ lease was an “evergreen” arrangement for an indefinite period, terminable at the election of either party.

On June 20, 1976, the lease was terminated. The Bull Head, which had been used by Hix Wrecking Company on a job in Pekin, Illinois, dismantling a bridge over the Illinois River, was towed upriver to Morris, Illinois, no longer operating on its own power. Jerry Stanton, an employee of Hix Wrecking, rode the vessel from Pekin to Morris where he was to turn it over to Les Doyle, an employee of Bull, pursuant to Bull’s instructions. Doyle was staying by a scrapyard operated by Charles Schopf on the south side of the river, just across from Iowa Marine’s offices on the north side. About 1,000 feet downriver from the scrapyard, the Bull Head was met by a harbor tug called the Maryellen. The Maryellen was owned by Iowa Marine. Bill Brown, an employee of Iowa Marine, piloted the Maryellen and switched the Bull Head, removing it from tow and moving it upriver towards the south bank where it was tied off per Stanton’s orders.

The next day, Stanton and Doyle moved the Bull Head a short distance back downstream and tied it to a barge owned by Bull named the Shaun Rue. The Bull Head remained on the south shore of the river until December of 1976, when Doyle found it grounded. Doyle hired Dennis Rapp, an independent diver and marine salvage man, to lift the vessel up to free it and move it to deeper water. Rapp did so after first clearing the deal for his services with Bull. Shortly thereafter, Iowa Marine moved the Bull Head from the south shore of the river to the north shore, where Iowa Marine maintained its regular fleeting operations.

The Bull Head has remained in the same general vicinity of the north bank of the river in Morris, in a greatly deteriorated condition, ever since. Iowa Marine sent billing statements for their services to Bull’s place of business in Joliet, and, when Bull refused to pay the amount demanded for switching, fleeting and other services rendered on behalf of the Bull Head since June 20, 1976, Iowa Marine initiated proceedings to claim a lien on the vessel and to foreclose thereon. Iowa Marine’s claim for lien on watercraft was filed in Grundy County on May 6, 1977. Its complaint to foreclose lien was also filed in Grundy County and is dated August 25, 1977.

Meanwhile, on February 22, 1977, plaintiff Bull had instituted a multicount complaint against Iowa Marine, George Mitchell and Ralph Hix claiming, inter alia, damages for conversion of the Bull Head and, in the alternative, for wrongful detention of the Bull Head. Bull’s complaint was filed in Will County. On May 27, 1977, Iowa Marine answered Bull’s complaint and filed a counterclaim praying for personal judgment against Bull for the value of services performed on behalf of the Bull Head. By order of July 25, 1980, Iowa Marine’s cause of action was transferred to Will County for consolidation with the suit initiated by Bull.

A bench trial was held March 18, 1982, through March 23, 1982. On April 13, 1982, the trial court entered an order which was subsequently modified by supplemental orders of April 22 and May 10. For the purposes of the matter presently before us, the court held: (1) that Iowa Marine had not wrongfully detained or converted the Bull Head; and (2) that Iowa Marine was entitled to a lien on the Bull Head in the amount of $31,612.50 for labor and services rendered on behalf of the vessel from June 20, 1976, to the time of trial. The court entered judgment for Iowa Marine and against Bull in the amount of $31,612.50 and “[i]n the event that Defendant *** has not paid to Plaintiff [said] sum,” judicial sale of the Bull Head was ordered together with deficiency judgment against Bull. It is from the entry of these judgments that the instant appeal arises.

With respect to Bull’s suit against Mitchell and Hix, the court generally found the issues in favor of Bull (since Ralph Hix had never been served with process, no judgment was entered against him), and entered judgment against Mitchell. Mitchell appealed from the entry of judgment against him as well. However, at oral argument the parties to that appeal (Bull and Mitchell) gave notice to this court that they were stipulating to vacatur of the trial court’s judgment insofar as it affected claims against each other and dismissal of the counts upon which that judgment was founded. We have dismissed Mitchell’s appeal accordingly and will not consider the issues raised therein.

In the appeal before us, Bull contends that the findings of the trial court were contrary to the manifest weight of the evidence. With respect to the court’s denial of the relief sought on Bull’s conversion and wrongful detention counts, Bull asserts that the court’s factual findings are unsupported by the record and that the court was “confused as to the law.” We disagree.

Both conversion and wrongful detention actions are premised on wrongful deprivation of property from the person entitled to possession. (Kunde v. Biddle (1976), 41 Ill. App. 3d 223, 353 N.E.2d 410; Mineika v. Union National Bank (1975), 30 Ill. App. 3d 277, 332 N.E.2d 504.) Proof of a valid possessory lien on the property in question may operate to defeat either action, inasmuch as it renders the defendant’s possession lawful.

The right to a lien for labor, material, or services arises upon the furnishing of such labor, material, or services and by force of a statute, an express contract, an implied contract or the usages of trade or commerce. (Deitchman v. Korach (1947), 330 Ill. App. 365, 71 N.E.2d 367.) The right to retain possession of the property to enforce a possessory lien continues until such time as the charges for such materials, labor and services are paid. Knapp, Stout & Co. v. McCaffrey (1899), 178 Ill. 107, 52 N.E. 898.

In the present case, it is unquestioned that Iowa Marine performed valuable switching services for the benefit of the Bull Head on June 20, 1976, at the request of Jerry Stanton who was at'that time in lawful possession of Bull’s property.

On appeal, Bull takes the position that Iowa Marine was required to establish its exclusive possession of the south bank property in order to prevail on its claim of lien for the period between June 20, 1976, and December 1976, when the Bull Head was moved to the north bank. Such, however, is not a correct assessment of the law of Illinois. Rather, as Iowa Marine correctly asserts, the fleeting company is properly considered in possession for purposes of creating and maintaining a lienhold interest for a period when a vessel is tied to real property leased or owned by the lienholder in the absence of evidence that the vessel’s owner had a superior interest in the real estate. Compare L & LC Trucking Co. v. Jack Freeman Trucking Co. (1976), 36 Ill. App. 3d 186, 343 N.E.2d 716 (owner of a truck established existence of an oral lease of space on a garageman’s property, thus defeating garageman’s right to lien for storage).

According to Oliver Brown, manager of Iowa Marine’s operations in Morris during the period in question, he paid $400 per month rent to Bob Biley for the use of the property on the south bank of the river where the Bull Head was docked on June 20. To Brown’s knowledge, Biley owned the leased property. As evidence of the rental agreement, Iowa Marine produced checks, one of which was admitted into evidence at trial. This check was made payable to Mr. Biley in the amount of $400 and was annotated “for April fleeting.” According to Brown, the leasing agreement between Biley and Iowa Marine was oral, rather than written. In addition, Ed Sabinske, testifying on behalf of Bull, stated that he had lived in a trailer parked on the south side of the river in 1976. To his knowledge, the land in the immediate area was owned by Bob Biley.

In contradiction to Iowa Marine’s assertion of a leasehold interest in the south bank property was testimony by Charles Schopf, a witness called by Bull. Schopf testified that he ran a scrap operation on the south bank property in question during the period when the Bull Head was docked there. Schopf stated that the land was owned by “River Enterprises” and that he had occupied it “with their consent.” There was no evidence introduced at trial to corroborate either Schopf’s property interest in the south bank or who owned River Enterprises.

The trial court found that “[t]he evidence preponderates that Iowa Marine held possession, under lease from the owner, of the area where the Bull Head was tied initially, and where the Bull Head was tied shortly thereafter.” While the evidence of Iowa Marine’s leasehold interest in the south bank property was not overwhelming and unambiguous, it was sufficient proof under the applicable preponderance-of-the-evidence standard to support Iowa Marine’s position. Testimony of Ed Sabinske tended to corroborate Iowa Marine’s assertion that the south river bank property in question was owned by Bob Biley. Although Chuck Schopf testified that River Enterprises owned the land, he failed to state that Bob Biley did not represent River Enterprises. Further evidence of Iowa Marine’s leasehold interest was the $400 cancelled check for April rent made payable to Biley. We are unable to discern any indication that Bull had a superior proprietary interest, or, indeed, any proprietary interest whatsoever in the south bank. We hold that the evidence of record supports the trial court’s conclusion that Iowa Marine had a leasehold interest in the south bank of the river where the Bull Head was tied until December of 1976.

Bull’s alternative position is that, even if the south bank were subject to Iowa Marine’s possessory interest, the evidence does not support the trial court’s conclusion that Iowa Marine was in possession of the Bull Head itself during the period from June 20, 1976, to December when it was finally moved to the north bank. Appellant’s argument is without merit. The mere fact that Jerry Stanton may have spent some time on board the vessel while it lay on the south bank will not thereby defeat Iowa Marine’s right to a possessory lien. See Nathan M. Stone Co. v. Ellerson (1923), 230 Ill. App. 593 (garage owner’s possessory lien not lost when the truck was temporarily towed out of garage to start the motor with the owner driving it).

There is no dispute that Iowa Marine retained possession of the Bull Head from December of 1976, when Iowa Marine moved the vessel to the north shore and kept it in Iowa Marine’s regular fleeting operation, until the time of trial. The evidence is in conflict as to whether or not Bull attempted to regain possession of the Bull Head in December. At trial, Bull testified that he had demanded of a “Mr. Brown” at Iowa Marine’s place of business that the Bull Head be returned to him. Oliver Brown, by contrast, testified on behalf of Iowa Marine that he had not spoken with Bull in December of 1976. The trial court found that “no effort was made to regain the possession of the Bullhead until the trial of this cause.” Issues of credibility of witnesses are properly resolved in the trial court. On the record before us, there is no basis for disturbing the trial court’s conclusion that the Bull Head was continuously in the possession of Iowa Marine from June 20,1976, to the time of trial.

There was ample testimony elicited at the trial of the instant action to support a finding that the switching and fleeting services performed by Iowa Marine on June 20, 1976, and thereafter on behalf of the Bull Head were customarily provided vessels at the instance of the person in possession thereof and on the credit of the vessel itself. While the reasons for denying Bull’s claims against Iowa Marine as stated in the trial court’s order are not entirely clear, this court will not upset a judgment entered by the trial court where the result reached is supported by the record even if the reasons provided therefor may be in error. Having found that the trial court’s conclusions respecting Iowa Marine’s assertion of lawful possession are not contrary to the manifest weight of the evidence, we affirm that portion of the trial court’s judgment denying Bull’s claims for conversion and wrongful detention and turn our attention to Bull’s arguments respecting the trial court’s award of judgment in favor of Iowa Marine on Iowa Marine’s complaint for foreclosure of lien.

Iowa Marine’s original action sought to foreclose a mechanics’ lien on watercraft (Ill. Rev. Stat. 1975, ch. 82, par. 37) for towing and switching services, maintenance, fleeting and storage provided for the benefit of the Bull Head since June 20, 1976. In addition to its request that the court order the Bull Head sold to satisfy the lien, Iowa Marine requested a personal judgment against Bull for the deficiency in the event sale of the watercraft produced less than the amount of the lien. In Iowa Marine’s countercomplaint, the fleeting company sought a personal judgment against Bull in the full amount of the lien claimed in the lien foreclosure suit, alleging that Bull’s duty to pay arose under “an oral agreement whereby [Iowa Marine] would tow [the Bull Head] to safe moorings and store or ‘fleet’ such vessel, as was the custom and practice and [Bull] would pay to [Iowa Marine] for such services, a fee as was reasonable in the trade.”

On appeal, Bull argues that the trial court’s conclusion that Iowa Marine was entitled to relief is contrary to the manifest weight of the evidence. Iowa Marine’s right to foreclosure on its lien on the Bull Head by judicial sale arose, if at all, by statute. Our first inquiry, therefore, is what statutory authority exists for the lien claimed by Iowa Marine. Iowa Marine’s initial claim for lien and its brief on appeal both refer us to “An Act relating to contractors’ and material men’s liens, known as mechanics’ liens” (Ill. Rev. Stat. 1977, ch. 82, pars. 1 through 39). This act specifically provides in section 19 for a deficiency judgment in the event the sale of the property subject to the lien is insufficient to satisfy the amount of the lien. The rule that this act must be strictly construed is by now well established (Robinette v. Servite Fathers (1977), 49 Ill. App. 3d 585, 364 N.E.2d 679); therefore, we proceed with caution in ascertaining whether Iowa Marine has brought itself within the confines of the act such that it is entitled to the extraordinary relief afforded thereby. Section 37 of the act provides in pertinent part:

“Any architect, contractor, sub-contractor, materialman, or other person furnishing services, labor or material for the purpose of or in constructing, building, altering, repairing or ornamenting a boat, barge or other water craft, shall have a lien on such boat, barge or other water craft for the value of such services, labor or material in the same manner as in this act provided for services, labor or material furnished by such parties for the purpose of building, altering, repairing or ornamenting a house or other building ***.” Ill. Rev. Stat. 1977, ch. 82, par. 37.

We are aware of no cases in which material, labor and services rendered on behalf of a vessel for the purposes of merely maintaining and storing it have been held sufficient to entitle the person or entity furnishing such material, labor and services to a mechanics’ lien under this statute. We have read the record in this case thoroughly and find that the evidence affirmatively discounts any argument that Iowa Marine undertook any duty of repairing the Bull Head. Indeed, the record discloses' that the Bull Head progressively deteriorated while in Iowa Marine’s possession to the point where it became a virtually worthless hulk; but no efforts were expended by Iowa Marine to enhance or restore its value by repairing the Bull Head in the absence of any request by Bull that the fleeting company do so. Under the circumstances, we find that the material, labor and services rendered by Iowa Marine cannot be characterized as having for their purpose anything to do with “constructing, building, altering, repairing or ornamenting” the Bull Head. Accordingly, we hold that Iowa Marine was not entitled to a mechanics’ lien on the Bull Head.

We turn next to the chattel lien act (Ill. Rev. Stat. 1977, ch. 82, pars. 40 through 46), which was suggested as authority for Iowa Marine’s right to foreclosure in the trial court’s supplemental order of May 11, 1982, and in Iowa Marine’s brief on appeal. Section 6 of “An Act for the better protection of any person, firm or corporation expending labor, skill or materials upon, or furnishing storage for, any chattel, creating a lien upon such chattel, and providing for the enforcement of such lien” provides a foreclosure remedy for the lien-holder in the form of judicial sale, or in the event the owner elects to file a bond and reclaim possession of the chattel, a personal judgment may be rendered against the principal and sureties on the bond. (Ill. Rev. Stat. 1977, ch. 82, par. 45.) Although we are aware of no reported cases in which this act has been cited as authority for a lien on watercraft, we can perceive of no reason why it should not apply to the situation herein. In our opinion, the “fleeting” services provided by Iowa Marine for the Bull Head were primarily of safe storage, analogous to the services performed for the storage of motor vehicles by garage keepers. A fishing trawler is no less a chattel for purposes of this act than is a motor vehicle. Reasonable charges for “fleeting” the Bull Head are includable in determining the amount of Iowa Marine’s lien. (See Clifford v. Merritt-Chapman & Scott Corp. (5th Cir. 1932), 57 F.2d 1021.) We hold therefore that Iowa Marine was entitled to a chattel lien on the Bull Head and the foreclosure remedy statutorily provided therefor. Unlike a mechanics’ lien, however, a chattel lien confers no remedy for a deficiency judgment against the owner in the event a judicial sale fails to result in an amount sufficient to cover the lienholder’s reasonable charges. Since Bull did not file a bond pursuant to section 6 of the act, the trial court’s entry of a personal judgment against him cannot be sustained by force or the chattel lien act.

At the time of this action, there was also in effect “An Act to revise the law in relation to attachments of boats, vessels and rafts” (Ill. Rev. Stat. 1977, ch. 12, par. 1 et seq.). Although neither the parties nor the trial court appear to have considered the applicability of this act, we have. Our research, however, has been unavailing because it is firmly established that a personal judgment against the owner of a vessel is not permitted under the watercraft attachment act unless the owner files a bond (Ill. Rev. Stat. 1977, ch. 12, par. 15), which, as aforesaid, was not done in the case before us. (See Leddo v. Hughes (1853), 15 Ill. 41; Gindele v. Corrigan (1889), 129 Ill. 582, 22 N.E. 516; and Knapp, Stout & Co. v. McCaffrey (1899), 178 Ill. 107, 52 N.E. 898.) Since the watercraft attachment act would have conferred no greater remedy than would be available to Iowa Marine under the chattel lien act, we need not consider further whether a claim might have been stated under that act.

Our analysis convinces us that the trial court’s order should be affirmed to the extent that it established a lien in favor of Iowa Marine in the amount of $31,612.50. Insofar as a deficiency judgment was awarded as an adjunct to that lien, we reverse.

On appeal, Iowa Marine resists reversal of the personal judgment award entered in its favor claiming that, as alleged in its countercomplaint, an implied contract was formed when the services were performed for the Bull Head pursuant to custom and usage in the fleeting business.

In his brief, Bull states that judgment was entered against him on both Iowa Marine’s foreclosure cause of action and its countercomplaint. This point is not argued by Iowa Marine. However, our review of the record reveals that the trial court specifically declined to enter judgment on both claims, stating for the record, “since the Counterclaim was consolidated with Cause 80 CH 535 [Iowa Marine’s suit for foreclosure of lien], and since the Counterclaim in W 77 G 460 L [Bull’s suit, inter alia, for conversion against Iowa Marine] is substantially the same as the Amended Complaint in Cause 80 CH 535, no order is entered as to the Counterclaim.”

Where a lienholder produces proof of an express or implied contract, in addition to the remedies afforded by force of the lien, he may recover a personal judgment against the other party to the contract. If the trial court’s entry of a personal judgment could be sustained on this basis, we would affirm that judgment even though the trial court may have awarded it as an incident of the lien itself.

Contracts are, by their nature, consensual agreements, legally binding on the parties thereto. (See Restatement (Second) of Contracts sec. 1 (1981).) An express contract is proved by an actual agreement or by the expressed words used by the parties. An implied contract is proved by circumstances showing that the parties intended to contract or by circumstances showing the general course of dealing between the parties. An agreement may be inferred from the acts or conduct of the parties instead of their spoken words (In re Estate of Brumshagen (1960), 27 Ill. App. 2d 14, 169 N.E.2d 112), thus giving rise to an implied contract where the evidence manifests one person’s tacit acceptance of the performance of valuable services by another. (First National Bank v. Glenn (1971), 132 Ill. App. 2d 322, 270 N.E.2d 493.) Tacit acceptance of benefits cannot be found, however, unless the evidence establishes that the person benefiting from the performance of labor and services has knowledge of such performance.

A party to a contract need not personally participate in its formation where he is represented by an agent. An agent may bind his principal contractually upon proof of the agency relationship and proof that the agent had authority to bind his principal in contract. Knowledge of the agent relative to the transaction is imputed to his principal. However, where an agent who is not so authorized enters into a contract on behalf of his principal, the principal may nonetheless be bound by ratifying the contract — accepting or retaining the benefits of it — upon proof that the principal electing to ratify had knowledge of all material facts surrounding the transaction. Restatement (Second) of Agency sec. 140 et seq. (1958).

With these principles in mind, we have reviewed the record to determine whether the trial court’s entry of a personal judgment against Bull can be sustained under a contractual theory as suggested by Iowa Marine on appeal. The record contains no evidence of an express contract, oral or written. Nor is there any evidence of a course of dealing between Iowa Marine and Bull. Nonetheless, the trial court found that “the vessel was taken into the custody of Iowa Marine on June 20, 1976. Bull had knowledge of this, either directly or through his agent, Doyle.” This factual conclusion could lend support to a finding of an implied contract if it is founded on the evidence. But it is not.

Bull admitted having observed the Bull Head while it was tied to the south bank of the river in Morris. The south bank was not posted so as to give notice of Iowa Marine’s property interest. Bull denied any knowledge of Iowa Marine’s involvement prior to late December of 1976. The record is devoid of any evidence to prove that Bull had personal knowledge that Iowa Marine had performed services for or claimed possession of the Bull Head at any time prior to December.

Les Doyle was an occasional employee of Edwin T. Bull, Sr. Doyle allegedly met the Bull Head shortly after it arrived in Morris and acted as watchman for a period prior to December of 1976. Doyle had died prior to the trial of this cause and his testimony was not available. The mere fact that Bull knew that the Bull Head was delivered to Doyle in Morris on June 20 does not, in our opinion, suffice to prove Bull’s knowledge of Iowa Marine’s performance of valuable services for purposes of establishing an implied contract.

The record indicates that Edwin T. Bull, Jr., received a telephone call from Iowa Marine on June 23, 1976, relative to the fact that the Bull Head had been made a part of Iowa Marine’s fleeting operations. Bull, Jr., allegedly said only that he’d “have to make some phone calls and *** get back.” Jerry Stanton rode the Bull Head up from Pekin and requested the switching and towing services of the Maryellen on June 20, 1976. The record lacks evidence, however, to establish that any of these individuals, if agents of Bull, had any authority to enter into contracts binding on Edwin T. Bull, Sr., such that their personal knowledge of Iowa Marine’s rendition of services for the Bull Head could be imputed to him. Although Iowa Marine mailed bills for its services, the evidence failed to establish that any of them were brought to the attention of Edwin T. Bull, Sr., prior to January of 1977.

In late December of 1976 the evidence is uncontradicted that Bull had actual knowledge that Iowa Marine was in possession of the Bull Head and was claiming charges for services. There is further evidence that on the same date Bull affirmatively rejected Iowa Marine’s offer to continue to possess or to render any services for the Bull Head. Although the evidence of Bull’s rejection was disputed by Oliver Brown, we cannot escape the conclusion that the manifest weight of the evidence indicates that, for purposes of Iowa Marine’s counter-complaint on a theory of implied contract, Edwin T. Bull, Sr., neither expressly nor impliedly consented to any of the services performed by Iowa Marine on behalf of the Bull Head. Iowa Marine failed to establish any agency relationships between Edwin T. Bull, Sr., and the individuals with whom Iowa Marine dealt prior to December of 1976 such that the actual or constructive knowledge of those individuals could be imputed to Bull and thereby bind him contractually.

It does not appear to us that Edwin T. Bull, Sr., by offering to pay for switching services and fleeting services during the period in December of 1976, when the Bull Head was tied to the north shore of the river, thereby ratified agreements that may have been entered into by individuals purporting to act in Bull’s behalf. The record is devoid of any proof that Bull had full knowledge of all material facts attending such agreements, if any. Under the circumstances here presented, we can find no basis upon which to sustain the trial court’s award of a personal judgment for Iowa Marine against Edwin T. Bull, Sr.

The appeal in cause No. 82 — 343 is dismissed.

In cause No. 82 — 336, we vacate that portion of the trial court’s judgment which grants Iowa Marine’s claim of a personal judgment against Edwin T. Bull, Sr. Judgment is hereby entered in favor of Edwin T. Bull, Sr., on Iowa Marine’s countercomplaint. In all other respects, the judgment appealed from is affirmed.

Affirmed in part; reversed in part.

STOUDER, P.J., and ALLOY, J., concur.


source: Caselaw Access Project

author: JUSTICE SCOTT

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. RONALD THIELE, Defendant-Appellant.
    Third District
    No. 82—362
    Opinion filed April 29, 1983.

      Robert Agostinelli and Sue Augustus, both of State Appellate Defender’s Office, of Ottawa, for appellant.
    Tony L. Brasel, State’s Attorney, of Watseka (Matthew M. Schneider, Assistant State’s Attorney, of counsel), for the People.
   JUSTICE SCOTT

delivered the opinion of the court;

The defendant, Ronald Thiele, appeals his convictions for burglary, theft, criminal damage to property and resisting a peace officer following a jury trial in the circuit court of Iroquois County.

On appeal the defendant contends: (1) that his convictions for burglary and criminal damage to property should be reversed because he was not proved guilty beyond a reasonable doubt; (2) that the trial court erred when it denied defendant’s motion to quash a search warrant and suppress evidence illegally seized on the ground that the search warrant failed to adequately specify the items to be seized; and finally (3) that the denial of defendant’s motion for severance of the various counts constituted error.

The facts indicate that on February 16, 1981, at approximately 10:30 p.m., Francis Focken was looking out the front door of his house which was located about 150 feet east of the Martinton Grain Company office. Visibility conditions were poor due to the presence of rain and fog. Focken noticed a car driving slowly past the grain elevator. The car was described as a full-size, light gray, two-door model. Focken was unable to determine the make of the vehicle, nor did he see the license number.

The vehicle stopped near the elevator office and two people got out and the car left the area. Focken was unable to say whether the two individuals were male or female, although he believed they were males by the manner of their walk across the street. The two individuals walked to a light pole in front of the grain company office where they shut off the outside security lights by pulling a breaker switch. Focken then observed two people in the office with a flashlight. At this point he notified the Iroquois County Sheriff’s Department to report a burglary in progress. As Focken continued to watch, the two people came out of the office and were picked up by the same car that had dropped them off earlier. The car left the area in an eastbound direction toward Donovan or Beaverville and Focken was unable to say how many people were in the car.

David Whitson, an Illinois State Trooper patrolling the area near Martinton, was the first officer to arrive at the scene, approximately 10 to 15 minutes following Focken’s call. Focken and Whitson met each other at the office and each observed a broken window and some de-icer and change scattered on the office floor. Whitson remained at the scene of the break-in for approximately an hour, after which he turned the crime scene over to other investigators and returned to patrol in an attempt to locate the silver gray vehicle described by Focken.

Approximately three miles east of the grain company and one mile west of the Donovan Grade School, Whitson saw a silver car driving slowly towards him in a westerly direction. The car was a 1976 Ford Torino and it pulled into a driveway and stopped. Whitson pulled in behind the vehicle and asked the driver for identification. Donita Thiele produced a traffic citation from the glove compartment with her name on it. Whitson observed what appeared to be two men’s wallets in the glove compartment, and when he opened one he saw that it belonged to the defendant, Ronald Thiele. Whitson also observed an open bottle of beer in the car and told the driver that he was going to issue her a citation for illegal transportation of alcohol. Whitson took Donita Thiele into custody because the car she was driving was similar to the description he received of the vehicle involved in the Martinton Grain Company burglary. Donita Thiele kept the keys to the unlocked car as Whitson left with her en route to the Donovan Grade School, where he met deputies from the Iroquois County Sheriff’s Department, investigating what appeared to be another burglary at the grade school. Whitson saw a camera, a cardboard box containing fresh meat, a record player and some other small items placed outside the school on the driveway. When Whitson returned to the driveway where the Thiele car had been left an hour earlier, it was gone. He next saw the vehicle at the Iroquois County sheriffs office at approximately 3 a.m.

On February 17, 1981, Whitson obtained a search warrant for the defendant’s car. The search warrant commanded officers of the law to search the defendant’s vehicle and seize the following:

“Items taken from the Donovan Grade School and Martinton Grain Company, constituting evidence of BURGLARY in violation of Section 19 — la and THEFT in violation of 16 — lal of Chapter 38 of the Illinois Revised Statutes.”

The complaint for the search warrant was sworn to by Whitson and alleged that “a quantity of money was taken from the Martinton Grain Co.” and that “a search of the Donovan Grade School revealed United States currency to be missing, photographic equipment, tape recorders, and meat from the kitchen, some of which was found outside the school and the main entrance.” The search warrant itself failed to list any of the foregoing as items to be seized from the vehicle to be searched.

Whitson searched the car at approximately 11:45 a.m. on February 17, the morning after the burglaries. The defendant’s car had been immediately seized upon the defendant’s arrest in Gilman and was towed to the Iroquois County Sheriff's Department where it remained until the search was conducted.

During the search Whitson seized two vests, a windbreaker, an insulated jacket, a plastic bag containing about $36 in change, three pairs of gloves and a crescent wrench. Whitson also seized two single dollar bills, a quantity of change and a $10 quarter wrapper from the defendant’s coveralls during a search of the defendant at 3 a.m. at the sheriff’s department.

George Sterrenberg, a co-owner of Martinton Grain Company, testified that the defendant did not have permission to be on the premises on February 16, 1981. He further testified that approximately $35 in change was missing from a container kept in the office refrigerator and he identified the vests, windbreaker and jacket as having come from the grain company office.

Gerald Olson was the principal of the Donovan Grade School and testified as to the nature and extent of damage done inside the school and as to the value of the items found on the sidewalk. Olson also testified that a small amount of change and a red money bag was missing from the school office.

A criminalist with the Illinois Department of Law Enforcement testified that he took samples of broken glass from the room in which he determined the intruders made their entry into the Donovan Grade School, as well as glass standards from the cafeteria and office area where windows had been broken. The defendant’s clothing was also collected for laboratory analysis.

A forensic scientist with the Illinois Department of Law Enforcement testified he performed a glass analysis on glass standards collected from the Donovan Grade School and certain glass particles scraped from the defendant’s boots. However, the results of the comparison were inconclusive in that the glass particles could have come from the same source but they also could have come from a different source as well.

The defendant’s arrest occurred when police officers spotted a vehicle matching the description given by Focken and Whitson at 1:45 a.m. on February 17. The defendant was driving the vehicle and a co-defendant was the only passenger in the car. As the defendant was being patted down, he swung his elbow around and struck one of the arresting officers in the head. The defendant then tried to flee the scene but was captured and taken into custody. A red money bag was recovered from the pocket of the codefendant’s coveralls. A pocket knife with the words “Martinton Grain” stenciled on the handle was recovered from the defendant’s coveralls.

We first direct our attention to the circuit court’s refusal to quash the search warrant and suppress the evidence seized from the defendant’s automobile.

The United States Constitution and the Illinois Constitution both provide that no warrants shall issue without probable cause, supported by affidavit, particularly describing the place to be searched and the things to be seized. (U.S. Const., amend. IV; Ill. Const. 1970, art. I, sec. 6; see also Ill. Rev. Stat. 1979, ch. 38, pars. 108 — 3, 108— 7.) It is clear that general search warrants are prohibited by the fourth amendment. Andresen v. Maryland (1976), 427 U.S. 463, 49 L. Ed. 2d 627, 99 S. Ct. 2737; People v. Raicevich (1978), 61 Ill. App. 3d 143, 377 N.E.2d 1266.

The problem posed by the general warrant is not that of an intrusion per se but of a general exploratory rummaging in a person’s belongings. The fourth amendment addresses the problem by requiring a “particular description” of the things to be seized. Collidge v. New Hampshire (1971), 403 U.S. 443, 29 L. Ed. 2d 564, 91 S. Ct. 2022.

We believe the defendant here has successfully shown that the complaint for search warrant and the search warrant for the defendant’s vehicle did not comport with the particularity requirement of the fourth amendment, the Illinois Constitution or the Code of Criminal Procedure of 1963.

The warrant in the case at bar was clearly constitutionally inadequate. The only guidance given to the officers who conducted the search was to seize "items” taken from the Donovan Grade School and the Martinton Grain Company. There was nothing in the warrant which limited the scope of the property to be seized or to curtail the discretion of the officers in executing the warrant. People v. Raicevich (1978), 61 Ill. App. 3d 143, 377 N.E.2d 1266; see also 2 W. LaFave, Search & Seizure, a Treatise on the Fourth Amendment sec. 4.6 at 102 (1978).

In reaching our decision, we are not unmindful of the People’s argument, which properly reminds us that

“the Fourth Amendment’s commands, like all constitutional requirements, are practical and not abstract. If the teachings of the Court’s cases are to be followed and the constitutional policy served, affidavits for search warrants, such as the one involved here, must be tested and interpreted by magistrates and courts in a commonsense and realistic fashion. They are normally drafted by nonlawyers in the midst and haste of a criminal investigation. Technical requirements of elaborate specificity once exacted under common law pleadings have no proper place in this area. A grudging or negative attitude by reviewing courts toward warrants will tend to discourage police officers from submitting their evidence to a judicial officer before acting.” (United States v. Ventresca (1965), 380 U.S. 102, 108, 13 L. Ed. 2d 684, 689, 85 S. Ct. 741, 746.)

However, such “technical irregularities” as failing to even remotely describe a generic class of items to be seized make it impossible for us to uphold the validity of the search warrant here. People v. Harmon (1980), 90 Ill. App. 3d 753, 413 N.E.2d 467.

The State contends, however, that even if we should conclude that the circuit court erred in denying defendant’s motion to quash the search warrant, such an error was harmless since the items seized would have been inevitably discovered during a routine inventory search of the defendant’s car. South Dakota v. Opperman (1976), 428 U.S. 364, 49 L. Ed. 2d 1000, 96 S. Ct. 3092; People v. Ruffolo (1978), 64 Ill. App. 3d 151, 380 N.E.2d 1204; People v. Jordan (1980), 90 Ill. App. 3d 489, 413 N.E.2d 195.

In response, the defendant points out the State did not argue the inevitable discovery doctrine at the trial level and contends such an argument has therefore been waived. People v. Fuentes (1980), 91 Ill. App. 3d 71, 414 N.E.2d 876.

Also, even if there was no waiver, the defendant contends that unlike Jordan where there was an offer of proof that the routine booking procedure would have included a complete search of the defendant’s person, there was no such evidence that inventory searches were a customary procedure at the Iroquois County Sheriff’s Department or that an inventory search was necessary. People v. Jones (1981), 102 Ill. App. 3d 238, 429 N.E.2d 1094.

This is not to suggest that any inventory undertaken even in compliance with a police department regulation is lawful. “Unconstitutional searches cannot be constitutionalized by standardizing them as a part of normal police practices.” 2 W. LaFave, Search and Seizure, a Treatise on the Fourth Amendment sec. 7.4, at 577 (1978).

We conclude, therefore, that even if the inevitable discovery argument was not waived, there is no support in the record for the State’s assertion that an inventory search would have been made.

Since the warrant failed to specify the particular items to be seized and there was no evidence in the record to suggest that an inventory search was routine police practice which would have inevitably led law enforcement officers to the items seized, we conclude the circuit court’s ruling denying defendant’s motion to quash the search warrant and suppress said evidence was in error.

Finally, defendant contends that the circuit court abused its discretion when it denied his motion for a severance for trial of the various offenses filed against him.

While it is true that a defendant may not be placed on trial for separate offenses when it appears these offenses are not part of the same transaction or occurrence (People v. Pullum (1974), 57 Ill. 2d 15, 309 N.E.2d 565; People v. Fleming (1970), 121 Ill. App. 2d 97, 257 N.E.2d 271), we note that the important factors to be considered in deciding the question of severance concern the proximity of time and location of the various charges and the identity of evidence which would be presented to prove each charge. People v. Mikel (1979), 73 Ill. App. 3d 21, 391 N.E.2d 550.

In support of his contention that a severance would have been proper, the defendant contends that People v. Bricker (1974), 23 Ill. App. 3d 394, 319 N.E.2d 255 (defendant erroneously tried for the commission of two armed robberies occurring three hours apart and several miles from each other), is sufficiently analogous to the case at bar to entitle him to a new and severed trial of the burglary charges.

In response, the People contend the recent case of People v. Tate (1982), 106 Ill. App. 3d 774, 436 N.E.2d 272 (defendant properly tried for two offenses of home invasion and attempted rape and aggravated battery occurring within one hour and one mile apart), supports their position that the circuit court properly denied defendant’s motion for a severance here.

We believe that while time and place factors are certainly relevant to the determination of whether a severance should be granted in a given case, there are additional factors which must also be considered and given weight such as the similarities of the acts themselves and whether there was a common method of operation on the part of the perpetrator of the crimes, and whether the same or similar evidence would be presented to prove the elements of the offenses charged.

In the case at bar the crimes were indeed similar, if not the same offenses occurring within a short time and place of each other. The defendant and codefendant when arrested had in their possession items taken from both burglaries. We believe, therefore, that the circuit court properly denied defendant’s motion for severance.

Even though we have determined that the search of the automobile was invalid and that the evidence obtained from such search was inadmissible, and it is therefore necessary to reverse the defendant’s conviction, we are, however, of the opinion that sufficient evidence remains to support a retrial of the defendant. The defendant’s conviction for the offenses of burglary, theft, criminal damage to property and resisting a peace officer are reversed and this case is remanded to the circuit court of Iroquois County for the purpose of a retrial.

Reversed and remanded.

HEIPLE and BARRY, JJ., concur.


author: PRESIDING JUSTICE STOUDER

text:
    JACK CALLAN et al., Plaintiffs-Appellees, v. JAMES J. NORDLAND, M.D., Defendant-Appellant.
    Third District
    No. 82—429
    Opinion filed April 29, 1983.

      Thomas Feehan, of Thomas, Wallace, Feehan, Baron and Kaplan, Ltd., of Joliet, for appellant.
    Joseph E. Duffy, of Schenk, Duffy, Quinn, McNamara, Phelan & Carey, of Joliet, for appellees.
   PRESIDING JUSTICE STOUDER

delivered the opinion of the court:

Plaintiffs Jack Callan and Angela Callan filed a complaint for damages for personal injuries allegedly occasioned by the negligence of defendant James J. Nordland, M.D. After trial in the circuit court of Will County, the jury returned verdicts of $15,000 and $250,000.

Angela Callan (hereinafter plaintiff) has suffered from intestinal colitis for over 35 years, and defendant, a board-certified internist, began treating her in 1966. In early 1978, plaintiff was being primarily treated with Azulfidine and was suffering from a number of negative side effects. In June 1978, she was admitted to Silver Cross Hospital and, upon her discharge, was diagnosed by defendant as suffering from acute exacerbated ulcerative colitis, diabetes, and chronic anxiety syndrome. Among the drugs prescribed at this time was Neomycin Sulfate (Eli Lilly’s brand name for generic neomycin sulfate), which defendant substituted for Azulfidene due to the side effects of the latter drug.

The Neomycin Sulfate prescription was phoned in to an Oseo pharmacy which referred it to Spartan pharmacy. There it was filled with Mycifradin, Upjohn’s brand of neomycin sulfate. Richard J. Holly, a registered pharmacist at Spartan pharmacy, testified that it was the standard of practice in the Romeoville area that when a doctor ordered a drug under a chemical or generic name, the pharmacist is allowed to fill the prescription with a brand or trademark name. All subsequent prescriptions were filled with Neomycin Sulfate manufactured by Eli Lilly.

Four months after her July 1978 hospital discharge, plaintiff began to experience dizziness and something happening in her ears. Four months after this, her husband noticed she was having some difficulty hearing. In July 1979, plaintiff first complained of buzzing and shimmering in her head to defendant, who recommended she see a specialist. Later that month she did so and, after an audiogram, was diagnosed as having progressive hearing loss from old age. When plaintiff next saw defendant in September 1979, she was wearing the hearing aid recommended by the specialist and expressed concern that the drug Sinequan might be causing her hearing loss. Defendant then discontinued the drug. In October 1979, defendant substituted Azulfidine for Neomycin Sulfate as he thought the buzzing and shimmering in plaintiff’s head might be caused by the latter drug.

After reading certain warnings, to which we shall return, in the Physician’s Desk Reference, plaintiff terminated her professional relationship with defendant. In May 1980, she became a patient of John Ponsiglione, M.D., a gastroenterologist. Ponsiglione testified that based on the standard of medical care for a board-certified internist as defendant in the Joliet area, treatment with Neomycin Sulfate for a prolonged period of time was not an appropriate treatment for plaintiff’s ulcerative colitis. He attributed her hearing loss to the 14 months of treatment with the drug. In July 1980, plaintiff was examined by Robert H. Ossoff, a board-certified otolaryngalogist. He determined that she had no useful hearing and testified that, based on a reasonable degree of medical certainty there was a relationship between the neurosensary hearing loss and the fact that plaintiff had taken neomycin sulfate for 14 months.

« The sole question presented for our review is whether the trial court erred in the admission of one of plaintiff’s exhibits when the evidence allegedly showed that it was neither relevant nor material, and committed further error in quoting from the exhibit in the instructions to the jury. The exhibit in question is a warning contained in the Physician’s Desk Reference’s listing for Mycifradin:

“WARNING BECAUSE OF REPORTED CASES OF DEAFNESS FOLLOWING THE ORAL USE OF NEOMYCIN AND THE POTENTIAL NEPHROTOXIC EFFECTS, PATIENTS SHOULD BE UNDER CLOSE CLINICAL OBSERVATION INCLUDING AUDIOMETRIC TESTING BEFORE AND DURING LONG TERM THERAPY. Patients with renal insufficiency may develop toxic blood levels of the drug unless doses are properly regulated. If renal insufficiency develops during treatment, the dosage should be reduced or the antibiotic discontinued. Urine and blood examinations and audiometric tests should be given prior to and during extended therapy in individuals with hepatic and/or renal disease to avoid nephrotoxicity and eighth-nerve damage from improper dosage.”

The motivation for this assignment of error can be seen when the Mycifradin warning is compared to that for Neomycin Sulfate manufactured by Eli Lilly:

“Patients treated with oral neomycin should be under close clinical observation because of the potential nephrotoxic and ototoxic effects. Patients with renal insufficiency may develop toxic blood levels of the drug unless doses are properly regulated. If renal insufficiency develops during treatment, the dosage should be reduced or the antibiotic discontinued. Urine and blood examinations and audiometric tests should be given prior to and during extended therapy in individuals with hepatic and/ or renal diseases to avoid nephrotoxicity and eighth-nerve damage from improper dosage.”

Defendant contends that as he allegedly only prescribed the Eli Lilly drug, any reference to the Upjohn warning was improper.

Defendant bases this contention on a holding of Ohligschlager v. Proctor Community Hospital (1973), 55 Ill. 2d 411, 418, 303 N.E.2d 392, 396:

“Under the circumstances shown, the explicit instructions furnished by the manufacturer for the proper manner of intravenous injection of the Sparine and the warning of the hazards accompanying its improper administration provide the proof of the proper professional standards which would ordinarily be shown by expert medical testimony. In Mulder v. Parke Davis & Co. (1970), 288 Minn. 332, 339-340, 181 N.W.2d 882, 887, the Supreme Court of Minnesota said: ‘Where a drug manufacturer recommends to the medical profession (1) the conditions under which its drug should be prescribed; (2) the disorders it is designed to relieve; (3) the precautionary measures which should be observed; and (4) warns of the dangers which are inherent in its use, a doctor’s deviation from such recommendations is prima facie evidence of negligence ***’ and we agree.”

Defendant argues that, under Ohligschlager, he was not required to be aware of the warnings of other drug manufacturers as to a drug he did not prescribe.

During the trial of this cause, defendant testified that in designating Neomycin Sulfate, he expected and intended the druggist to fill the prescription with Neomycin Sulfate manufactured by Eli Lilly. This testimony contradicted his deposition testimony that he intended the prescription to be filled with neomycin sulfate manufactured by any company. Holly testified that his records showed no mention of a manufacturer when the prescription was phoned in; thus it was filled with Mycifradin as it was the only brand of neomycin sulfate in stock at the time. The original prescription was refillable without further direction from defendant for six months. When plaintiff’s initial month’s supply was exhausted, the prescription was refilled with Neomycin Sulfate manufactured by Eli Lilly not because such was requested, but rather because the druggist found it less expensive. Thus, the only nexus between defendant and the use of the Eli Lilly product were, if believed by the jury, defendant’s expectations and intentions.

Under the particular circumstances of this cause, we find no error in the trial court’s admitting the exhibit and allowing a phrase from it to be used in the issue instruction. At best there is a factual dispute whether defendant at any time communicated his expectation and intention that the prescriptions be filled with Neomycin Sulfate manufactured by Eli Lilly. When the prescription was phoned in, there was no way a pharmacist, without such a communication, could distinguish between Neomycin Sulfate and neomycin sulfate. Because of this, the prescription was initially filled with Mycifradin. We therefore hold that where a brand and generic name cannot be distinguished by a pharmacist, and another brand of a generically equivalent drug is used to fill a prescription, the manufacturer’s warning for the drug actually used may be admitted into evidence. In so holding, we express no opinion as to any issue not raised by the particular circumstances of this cause.

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

Affirmed.

ALLOY and BARRY, JJ., concur.


text:
    LESLIE E. BIRKMEIER, Plaintiff-Appellant, v. THE HERGET NATIONAL BANK OF PEKIN, Adm’r of the Estate of Amos E. Fornoff, Deceased, et al., Defendants-Appellees.
    Third District
    No. 82—629
    Opinion filed April 29, 1983.
    William H. Knuppel, of Lemmer, Boggs, Knuppel & Krebaum, P.C., of Havana, for appellant.
    David B. Radley, of Baymiller, Christison & Radley, of Peoria, for appellees.
   JUSTICE SCOTT

delivered the opinion of the court:

This appeal stems from a suit for specific performance of an option agreement. The plaintiff Berkmeier attempted to purchase an option (consideration $1,000) to buy farmland owned by Amos - Fornoff. A first draft of an option was prepared by Fornoff s attorney in February 1978. The plaintiff since 1971 had farmed as a tenant as much as 255 acres for Fornoff. The option provided that Berkmeier would pay $400 per acre for the land and that his indebtedness would bear interest at 6% per annum. A copy of the first draft of the option was sent to plaintiff’s attorney. Subsequently the option was revised and the revised document was executed by Fornoff and the plaintiff in the office of Fornoff’s attorney on March 3, 1978. A copy of the revised option was not sent to the plaintiff’s attorney.

Some months later the plaintiff decided to exercise the option. He advised his attorney of this decision, who prepared a notice of exercise of option based on the terms contained in the first draft which was in his file. Notice to exercise the option was sent to Fornoff on September 11, 1978. Fornoff died on December 2, 1978, and the defendant Herget National Bank became the representative of his estate. The option period expired and the defendant bank refused to honor the exercise of the option, contending that the notice of exercise contained different terms from the option finally entered into on March 3, 1978, and it therefore constituted a counteroffer and not an acceptance. The complained of differences in the plaintiff’s notice of acceptance were as follows:

(1) A discrepancy involving the legal description of the land. The plaintiff’s “notice of exercise” described 40 acres not contained in the final option agreement. A 40-acre tract not owned by Fornoff.
(2) A discrepancy involving a life estate. The option reserved a life estate in the residence only while plaintiff’s purported exercise of option reserved to Fornoff a life estate in the entire 160 acres.
(3) A discrepancy as to down payment which was to accompany the exercise of option. The option agreement contemplated a down payment of $6,300. Tendered by the plaintiff by his purported exercise of option was a down payment of $7,900.

The circuit court of Tazewell County after bench trial entered an order on August 25, 1982, which found that the notice of exercise of option was not a valid acceptance or exercise of the option as it varied materially from the option and judgment was entered in favor of the defendants.

The sole issue presented in this appeal is whether a contract was formed by plaintiff’s notice of exercise of option and whether specific performance of that contract should have been granted.

Defendants, arguing in support of the trial court’s decision, rely heavily on the case of Morris v. Goldthorp (1945), 390 Ill. 186, 60 N.E.2d 857, and the following language cited therein:

“It is elementary that where one party gives an option to another, the acceptance, to be valid so as to conclude an agreement or contract between the parties, must, in every respect, meet and correspond with the offer, neither falling short of, nor going beyond, the terms proposed, but exactly meeting them at all points and closing with them just as they stand.” 390 Ill. 186, 195, 60 N.E.2d 857, 861.

The foregoing language is strong and imposes strict requirements upon an optionee. We first make the observation that we are not impressed with the result reached in Morris in that the optionee was held to have submitted an erroneous acceptance preventing the creation of a contract because in his acceptance a request was made for a warranty deed when the option provided that he was only entitled to a fee simple title. We recognize the distinction between a warranty deed and the slightly lesser conveyance of a fee simple title; however, it appears that in Morris the supreme court adhered to niceties and technicalities of the law rather than to the substance of the option and the intent of the parties. We are impressed with the strong dissent in the case. The law in Morris is still viable. It has never been reversed, nor do we disregard it, but we do recognize that the strict requirements pertaining to acceptance have been diluted during the almost four decades since the decision in Morris was rendered. See In re Estate of Girga (1973), 15 Ill. App. 3d 916, 305 N.E.2d 565; Farley v. Roosevelt Memorial Hospital (1978), 67 Ill. App. 3d 700, 384 N.E.2d 1352; In re Estate of Frayser (1948), 401 Ill. 364, 82 N.E.2d 633.

The defendants further attempt to support their position by citing the case of Seaberg v. American National Bank & Trust Co. (1976), 35 Ill. App. 3d 1065, 342 N.E.2d 751. In Seaberg the option described the subject property as “2207 North Lincoln Avenue.” The notice of acceptance stated that the optionees would exercise their option to purchase the 2201-2207 North Lincoln Avenue property including adjacent vacant property. The reviewing court held that the acceptance was faulty in that it far exceeded the scope of the offer. In the instant case defendants assert that the facts in Seaberg closely parallel the factual situation which we are now confronting. At first blush there is a striking similarity; however, on examination it is apparent that unlike the plaintiff Birkmeier, the plaintiff in Seaberg wanted something extra and they wanted it free from any extra consideration. True, in the instant case the plaintiff’s acceptance described an additional 40-acre tract of land, a tract which was not owned by Fornoff; however, the plaintiff did in his acceptance offer consideration in the sum of $16,000 for the additional 40-acre tract of land.

The inclusion in the plaintiff’s acceptance of the additional 40 acres was a discrepancy, as was the extent of the life estate and the incorrect amount of the tendered down payment. As to the latter two discrepancies, it should be noted that the plaintiff once again is not seeking more or additional benefits than that which he would be entitled to by the March 3, 1978, option agreement. This agreement provided that Fornoff would have only a life estate in the residence, not the entire acreage as set forth in plaintiff’s acceptance. Also, the plaintiff was tendering a larger down payment than that contemplated by the March 3, 1978, option. In this case we do not have a situation as was present in Morris and Seaberg, where in the former case the optionee was requesting a stronger document of conveyance and in the latter the optionees wanted additional real estate without the concomitant offer of additional compensation.

The plaintiff’s acceptance expressed his intention to exercise the option of March 3, 1978. Our Illinois courts have held that the initial sentence stating that a certain option is exercised without any subsequent conditional provisions is a valid exercise of the option. (Peoples Bank Building, Inc. v. Pixley & Ehlers, Inc. (1972), 9 Ill. App. 3d 364, 292 N.E.2d 180; Kadansky v. Fickett (1973), 54 Ill. 2d 14, 294 N.E.2d 262.) It is unrefuted that the defendant Bank was aware of the provisions of the March 3 document and that plaintiff’s acceptance referred to that document, but subsequent provisions in acceptance contained discrepancies, none to the detriment of Fornoff or the representative of his estate. The defendants argue that the discrepancies would be detrimental to Fornoff’s estate regarding tax liability. How or in what manner or amount is not set forth, but even if such was the case, Fornoff was not concerned with this aspect. He wanted the plaintiff to have the farmland in question and initiated the procedure to fulfill this desire. Equity, and the trial court in this case was sitting as a court of equity, is not required to apply standards so rigid as to ignore facts surrounding an exercise of option which ignore the state of mind of the parties. Macy v. Brown (1927), 326 Ill. 556, 158 N.E. 216; In re Estate of Frayser (1948), 401 Ill. 364, 82 N.E.2d 633.

This court is aware of the fact that the plaintiff did have in his possession the correct March 3, 1978, option agreement, but the same was not provided to the plaintiff’s attorney by Fornoff’s attorney, even though there was knowledge and awareness of the fact that plaintiff was represented by counsel. The fact that this case is before this court illustrates that a controversy arose as to the option agreement; however, that controversy would not have arisen had counsel who prepared the March 3 agreement provided a copy of the same to plaintiff’s attorney.

The plaintiff signed the correct option agreement on March 3, 1978. When he attempted to exercise the option ambiguities arose between the attempted exercise of the option and the option itself. Extrinsic evidence was properly admitted to interpret the contract between the parties. (See 30 Am. Jur. 2d Evidence sec. 1061 (1967), and R. Hunter, Trial Handbook for Illinois Lawyers sec. 73:18, at 760 (4th ed. 1972).) Such evidence discloses the intent of the parties and discloses that any discrepancies in the plaintiff’s notice of acceptance from the March 3,1978, agreement were not detrimental to Fomoff or his estate.

While not raised as an issue in this case, the evidence indicates that the option agreement agreed to by Fomoff provided that the plaintiff would be able to procure farmland for a consideration less than the prevailing price for such land. The record, however, discloses that Fomoff advised his attorney that he was satisfied with the value placed on the land and that the price agreed upon was all the plaintiff could pay. It is clear that Fomoff wanted the plaintiff to have the land. It may well be that this desire could be thwarted by the application of legal technicalities, but to do so would be an inequitable result and certainly would not enhance the reputation of the legal profession.

For the reasons set forth this court concludes that a valid contract was formed by notice of exercise of option executed by the plaintiff and that the defendants should and are hereby ordered to specifically perform said contract in accordance with the terms of the option agreement of March 3, 1978. The judgment of the circuit court of Tazewell County is reversed and this case is remanded with directions to enter the order of specific performance.

Reversed and remanded.

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


author: PRESIDING JUSTICE BARRY JUSTICE STOUDER,

text:
    JESSE E. McCORMICK, Plaintiff-Appellant, v. LOUIS JOLIET BANK & TRUST COMPANY, Defendant-Appellee.
    Third District
    No. 82-179
    Opinion filed April 14, 1983.
    Rehearing denied May 25, 1983.

      STOUDER, J., dissenting.
    Timothy J. Rathbun, of McKeown, Fitzgerald, Zollner, Buck, Sangmeister & Hutchison, of Joliet, for appellant.
    J. M. Nunes, of Kroeseh & Kavanagh Law Offices, Ltd., of Joliet, for appellee.
   PRESIDING JUSTICE BARRY

delivered the opinion of the court:

Jesse E. McCormick appeals from judgment entered by the circuit court of Will County granting a motion filed by Louis Joliet Bank & Trust Company for fees and expenses pursuant to section 41 of the Civil Practice Act. (Ill. Rev. Stat. 1979, ch. 110, par. 41.) On appeal, McCormick contends that the bank failed to establish either an untrue pleading or that any allegedly untrue pleading was made without reasonable cause. In the alternative, McCormick contends that the amount of fees and expenses awarded were excessive.

The complaint, upon which the instant action is founded, was filed by McCormick in March of 1981 against the bank in its capacity as administrator of the estate of his deceased son, LeRoy E. McCormick. Relevant allegations of the complaint serve to detail the background of the parties’ dispute:

“2. On or about Spring, 1978, Plaintiff made a loan of $6,000.00 to the said LeRoy E. McCormick, for the purpose of assisting LeRoy McCormick in making the down payment on the purchase of a house.
3. On or about August 20, 1978, LeRoy E. McCormick died.
* * *
7. At all times relevant hereto, John Sternisha was employed by the Defendant as the Trust Officer and was acting within the course and scope of his employment.
8. On or about October, 1978, Plaintiff had a conversation with John Sternisha regarding the $6,000.00 loan to LeRoy E. McCormick.
9. That, Plaintiff informed the said John Sternisha that he had loaned LeRoy E. McCormick the $6,000.00 and desired to present a claim for the money against the Estate.
10. That, Plaintiff handed to Mr. Sternisha copies of checks which represented the loan to LeRoy E. McCormick, one of the checks bearing the notation ‘Loan’.
11. That, the said John Sternisha told Plaintiff that the $6,000.00 would be paid as a claim against the Estate, and that it was not necessary for Plaintiff to final [sic] a formal claim therefor, including the statement ‘Don’t bother to file a claim— I’ll take care of it.’
12. That, the Estate was inventoried on December 5,1978.
13. That, on or about September, 1979, after six months from the date of the issuance of the letters of administration had been filed, Plaintiff again spoke with John Sternisha.
* >}c *
15. That, during said meeting John Sternisha informed Plaintiff that the claim for the $6,000.00 would not be honored.”

Further attempts by McCormick to recover the $6,000 out of court proved unsuccessful, so he filed a claim in probate court on December 7, 1979, explaining therein “that in October of 1978 the Executors [sic] Agent stated that it would not be necessary to file this claim, that this claim would be paid.” On motion of the administrator, the probate court dismissed the claim for failure to file timely and noted that the doctrine of estoppel, as a matter of law, “cannot *** operate to extend the proscribed [sic] period for filing *** pursuant to Article 28 of the Probate Act.”

Following this defeat, McCormick resorted to filing the aforementioned complaint against the administrator for “improper conduct *** ■within [the meaning of] Section 12 — 15 of the Probate Act.”

On November 2, 1981, the trial court heard the matter. McCormick testified that the only evidence he had to prove that he had, in fact, loaned $6,000 to his son consisted of two checks dated April 17, 1978, and June 12, 1978, for $5,000 and $1,000, respectively, payable to “Lee McCormick” and drawn on the account of Jesse McCormick and Suvasini McCormick.

During direct examination about McCormick’s claim against the estate, the following colloquy took place between counsel and McCormick:

“Q. Did you have occasion to tender any documentation regarding this supposed six thousand dollar loan to Mr. Sternisha at this time?
A. Just the checks.
Q. Okay. What checks are you referring to, Mr. McCormick?
A. The two checks I had given to my son, one for five thousand and one for one thousand.
Q. Are those the two checks in front of you?
A. Yes.
Q. Did you deliver copies of the checks to Mr. Sternisha?
A. I don’t recall if I delivered copies or took the originals in to him and made copies. I’m not sure.”

The two checks offered into evidence by McCormick each bore notations — the one for $1,000 showed “Loan-Closing Cost,” and the one for $5,000 showed “Down Payment on House.” When asked at trial whether his son knew of the “loan” notation appearing on the one check, he replied, “Sure.”

Sternisha testified that he neither promised to pay on the two checks nor told McCormick not to file a claim on them. Ernestine Thompson, an employee responsible for microfilming checks at Louis Joliet Bank, brought microfilm copies of the two checks in question which were admitted into evidence. She testified that the microfilms depicted the checks as they appeared upon negotiation. Neither bore any notation.

At the conclusion of all testimony and arguments of counsel, the trial court entered judgment “in favor of the defendant, and against plaintiff at plaintiff’s cost.”

Thereafter, on December 7, 1981, Louis Joliet Bank filed its motion for expenses and attorney fees under section 41 of the Civil Practice Act. The motion recited that McCormick’s complaint contained untrue allegations made without reasonable cause with respect to the notations on the checks used as evidence of the purported loans. The motion recited that McCormick’s complaint contained untrue allegations made without reasonable cause with respect to the notations on the checks used as evidence of the purported loans. The motion recited an expenditure of $107.18 in costs, and an affidavit by defendant’s counsel established that attorney fees amounted to $2,303. The matter was heard by the trial court and judgment was granted in favor of Louis Joliet Bank in the sum of $2,410.10. A timely notice of appeal was filed, thereby conferring jurisdiction in this court.

During the pendency of the appeal, the bank filed a motion in this court for attorney fees in the amount of $1,670 incurred in the defense of this appeal. That motion and McCormick’s objections were taken with the case.

Section 41 is penal in nature and may be invoked only in eases falling strictly within its terms, which include two elements — -that the allegations in question be made without reasonable cause and that they be found to be untrue. (Grover v. Commonwealth Plaza Condominium Association (1979), 76 Ill. App. 3d 500, 512, 394 N.E.2d 1273, 1282.) The burden of proof is on the party seeking the imposition of sanctions to prove that both elements are met. (Demos v. Ericson (1982), 104 Ill. App. 3d 403, 405, 432 N.E.2d 1035, 1037.) The award of sanctions under section 41 is a matter within the sound discretion of the trial court (Brandenberry Park East Apartments v. Zale (1978), 63 Ill. App. 3d 253, 262-63, 379 N.E.2d 674, 681), and will not be reversed on appeal lacking a clear showing of abuse of discretion.

In the present case, McCormick argues that the bank’s evidence failed to prove either untruth of his allegations concerning a loan or that the allegations were made without reasonable cause. The record before us contains a transcript of the underlying trial, but we have no verbatim transcript or comparable record of the hearing on the section 41 motion. It is well established that the party claiming error in the trial court has the burden of presenting an adequate record for our review. In the absence of such a record we will presume the sufficiency of evidence to support the trial court’s judgment. Flynn v. Vancil (1968), 41 Ill. 2d 236, 242 N.E.2d 237.

In the present case, our review of the common law record and the trial transcript convinces us that the evidence would support a finding that the complaint contained untrue allegations with respect to the $6,000 “loan.” We presume, in the absence of clear evidence to the contrary, that the court’s additional finding — that the allegations were made without reasonable cause — was not an abuse of discretion. In re Marriage of Van Fleet (1981), 99 Ill. App. 3d 225, 229, 425 N.E.2d 69, 72.

McCormick next argues that the trial court erred in awarding attorney fees and costs in an amount equal to the total sum expended by the bank in defending this action. Since only one untrue allegation was specified in the section 41 motion, McCormick argues he should not have been assessed with the total bill.

The bank argues that the cornerstone of McCormick’s complaint was that the check bearing the “loan” notation proved his right to relief. In the absence of this documentary “evidence,” no legal expenses at all would have been incurred by the bank.

The amount of fees and expenses, like the decision whether to award them as a sanction under section 41, is a matter within the trial court’s sound discretion. We have reviewed the entire record before us, and fail to find any abuse of that discretion in the court’s determination to award the full amount of costs and fees incurred by the bank.

Finally, because we find that this appeal was a needless extension of a baseless lawsuit, we hold that the bank is entitled to reimbursement of reasonable attorney fees and expenses incurred in defending itself on this appeal. (Manchester Insurance & Indemnity Co. v. Strom (1970), 122 Ill. App. 2d 183, 187, 258 N.E.2d 150, 153.) Accordingly, we remand this cause to the trial court for a hearing to determine and to award reasonable attorney fees and expenses incurred by the bank in connection with this appeal.

Affirmed and remanded for further proceedings consistent with the views expressed herein.

ALLOY, J., concurs.

JUSTICE STOUDER,

dissenting:

I disagree with my colleagues as to their conclusion that the Louis Joliet Bank and Trust Company was entitled to payment from Jesse McCormick of reasonable expenses and attorney fees pursuant to section 41 of the Civil Practice Act (Ill. Rev. Stat. 1979, ch. 110, par. 41).

Section 41 of the Civil Practice Act (Ill. Rev. Stat. 1979, ch. 110, par. 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 ***.”

This statute is quite explicit in requiring the untrue allegation be made specially in a pleading before the right of a trial court to award costs and expenses can arise. The majority opinion purports to summarize this section of the statute but fails to note it is an untrue allegation in a pleading which triggers the application of the statute and it is this failure of the trial court, the defendant and the majority to restrict their arguments and observations to the pleadings which permeates this case and permits reliance on a false premise to lead to a wrong result. In Johnson v. La Grange State Bank (1978), 73 Ill. 2d 342, 366, 383 N.E.2d 185, the court states “it will be assumed that the attorneys, in filing pleadings, have due regard for their duties and responsibilities as officers of the court, and they are permitted to exercise broad discretion based upon an honest judgment from the facts presented to them.” The failure of a party to sustain his or her burden of proof does not necessarily establish that allegations in a pleading are untrue and made without reasonable cause.

Perhaps the starting point of my analysis is best presented by reviewing the defendant’s motion for the allowance of expenses and attorney fees. This motion in pertinent part provides:

“1. That on March 5, 1981, Plaintiff filed a Complaint against Defendant for the recovery of $6,000.00.
2. That said Complaint was based on allegations of a loan to LeRoy McCormick, a deceased son of the Plaintiff.
3. That the only indicia of said loan presented by Plaintiff were copies of checks, one of which bore the word ‘loan.’
4. That Plaintiff testified at the trial that said word ‘loan’ was inscribed on the check at the time he delivered said check to his son.
5. That any and all allegations regarding the word ‘loan’ on the check could not have been made in good faith.
6. That the Plaintiff introduced copies of said checks at the trial in this cause.
7. That the Defendant introduced copies of the microfilm of said checks taken after the same were cashed at the National Bank of Joliet.
8. That at the time said checks were cashed by LeRoy McCormick, said checks were devoid of the word ‘loan’ or any other of the subsequently added notations.
9. That the allegations pertaining to the word ‘loan’ as evidence of a loan were found to be untrue and made without reasonable cause.
10. That Defendant had to incur the expenses and attorneys fees defending this lawsuit, and that said expenses and attorneys fees were totally attributable to the bad faith allegations of the Plaintiff which were untrue. ***”

Paragraphs 11 thru 14 detailed the expenses and attorney fees incurred by the defendant.

According to the docket judgment of January 13, 1982, from which this appeal is taken the trial court found:

“*** Court considering evidence heard and taken and arguments of counsel, finds that Sanction on plaintiff should be entered as to actual expenses and reasonable attorney fees in that certain allegations and denials by plaintiff having been made without reasonable cause and further to be untrue, and it is therefore ordered that plaintiff be and is hereby assessed and judgment entered accordingly in favor of the defendant. ***”

The only allegation of the complaint mentioning a check is paragraph 10, which provides:

“10. That, Plaintiff handed to Mr. Sternisha copies of checks which represented the loan to LeRoy E. McCormick, one of the checks bearing the notation ‘loan.’ ”

In its answer the defendant admits paragraph 10 of the complaint.

Defendant devotes a considerable portion of its brief describing plaintiff’s conduct with such vituperative epithets as “forger” and “perjurer” but neglects to cite any cases either supporting any characterizations or supporting its claim the conditions of section 41 were met entitling it to expenses and attorney fees. As can be seen from the defendant’s motion, no allegation in the pleading is set forth which is untrue. Rather the motion reveals that because of a deficiency in the evidence the plaintiff was not entitled to recover and did not recover. It should be emphasized at this juncture section 41 deals only with untrue allegations in pleadings and is not concerned with evidence whose probative value may have been impeached or destroyed during a trial.

By introducing evidence at the trial by the microfilm the defendant was able to prove the legend “loan” was not on one of the checks at the time it was presented for payment and paid by the bank. Reasoning from this fact, the defendant seems to argue by reverse inference that somehow or other this must mean somewhere in the complaint and in particular in paragraph 10, there was an allegation in the complaint alleging that the legend was on the check at the time it was given to the plaintiff’s son. Of course there is no such allegation, and the only allegation regarding the check is that it contained the legend at the time it was exhibited to the bank officer, an allegation which the evidence not only shows to be true but is also shown to be true by defendant’s response in his answer admitting the allegation to be true as a judicial admission.

Granted that paragraphs 4, 5, 6, 7, 8 and 9 of the defendant’s motion to assess expenses and attorney fees are true, nevertheless they fail to demonstrate that any allegation of the complaint is untrue. Paragraph 3 of the motion asserts “That the only indicia of said loan presented by Plaintiff were copies of checks, one of which bore the word ‘loan.’ ” This assertion is at best ambiguous and at worst misleading. The checks were indicia of a loan in that they were evidence that money had been delivered from father to son and the checks had this effect whether or not there were any legends on them at the time. Both the testimony of the father and mother indicate at the time the checks were delivered on two different occasions they were delivered with the understanding that the money was a loan and would be repaid. If the money had been delivered to a third party not related to the plaintiff the testimony might well have been sufficient to establish a loan where it was insufficient to do so in the face of the generally accepted presumption that a transfer to a child is a gift. Indeed, the defendant suggests that even where a loan is intended its terms may be sufficiently vague that under IRS interpretations it will be considered a gift when made to a child. Whether the legend “loan” was or was not on one of the checks at the time they were delivered to the son is of little significance. Even had the legend been present it would have had little if any probative value. Although the father considered the amounts represented by each check a loan, the legend appeared only on one.

Finally, I believe the allowance of attorney fees for the entire trial to the defendant merely compounds and emphasizes the basic error. What material untrue allegation of the complaint made without reasonable cause required disproval by allowing defendant attorney fees for all aspects of the defense of the case?


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. GREGORY J. TISLER, Defendant-Appellant.
    Third District
    No. 82—660
    Opinion filed April 27, 1983.
    Rehearing denied May 25, 1983.
    Robert Agostinelli and Sue Augustus, both of State Appellate Defender’s Officer, of Ottawa, for appellant.
    Gary L. Peterlin, State’s Attorney, of Ottawa (John X. Breslin and Vicki R. Wright, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE SCOTT

delivered the opinion of the court:

The defendant, Gregory J. Tisler, appeals his conviction for unlawful possession of a controlled substance, less than 30 grams of LSD, following a trial without a jury in the circuit court of La Salle County.

The sole issue on appeal is whether the trial court properly denied the defendant’s motion to quash his arrest and suppress the evidence obtained as a result of his apprehension.

The facts indicate that on January 9, 1982, Officer James Hollenbeck of the Marseilles Police Department received a telephone call from a known informant. The informant told Hollenbeck that at 3:40 p.m. (approximately one hour from the time of the call) a green two-door Chevy Camaro with license plates bearing JAT would cross the River Bridge enroute from Streator to Marseilles. The informant stated that the automobile would be driven by the defendant with Jerry Cox accompanying him as a passenger in the vehicle. The informant stated the Camaro would proceed across the River Bridge to the Number Nine Game Room. The informant revealed that the defendant intended to deliver several “hits” of LSD, which had been purchased in Streator, to the Number Nine Game Room. The informant related that the LSD would be contained in small and easily disposable packages on the defendant’s person. The informant said that the defendant should not be apprehended until after he had parked the car and left the vehicle.

Hollenbeck knew the Number Nine Game Room to be a local “hangout” frequented by teenagers to play pool, video games and pinball machines. Marseilles is a small community and Hollenbeck knew many of the residents and their vehicles by sight, including the defendant and Cox and the green Camaro.

After the informant’s telephone call, Hollenbeck tried to procure a search warrant but was unsuccessful due to the fact that it was a weekend and apparently neither a judge nor the State’s Attorney could be located. Hollenbeck decided to proceed without a warrant due to the fact that the informant had given reliable information to him on previous occasions.

Officers Hollenbeck and Stevenson drove to a location near the River Bridge in Marseilles and at approximately 3:45 p.m. observed the defendant and Cox and an unidentified male in the back seat approaching Marseilles in the green Camaro. The defendant drove directly to the game room and parked the vehicle in the street.

When the officers approached the defendant after he got out of his car they observed the end of a plastic bag protruding from the defendant’s left hand. When questioned about the bag and its contents, the defendant replied that he had “nothing” and put his hand behind his back. Hollenbeck grabbed the defendant’s hand and opened it and found a small plastic bag containing several pills. The defendant was arrested, and a subsequent test of the pills indicated the presence of LSD.

The defendant’s father later spoke to Officer Hollenbeck at the police station and was told that his son had been arrested for possession of illegal drugs on a tip from “an anonymous caller.”

On appeal, the defendant contends the circuit court erred in denying his motion to quash his arrest and suppress the evidence seized because the informant’s tip did not reveal the informant’s “basis of knowledge” as required by the first prong of the test announced in Aguilar v. Texas (1964), 378 U.S. 108, 12 L. Ed. 2d 723, 84 S. Ct. 1509. The defendant claims the informant’s statement was unreliable because it failed to indicate the source of the informant’s information. In addition, the defendant asserts the subsequent corroboration of the informant’s statement was insufficient to establish probable cause for his arrest.

The People respond by contending that the requirements of Aguilar were satisfied by the “self-verifying” details of the informant’s tip and that the subsequent corroboration of the informant’s information established sufficient probable cause to place the defendant under arrest.

Both sides acknowledge that the Aguilar test measures the reliability of both the informant’s information and the reliability of the informant himself. The first prong of the test is known as the “basis of knowledge” prong and requires that the informant demonstrate his basis of knowledge by revealing the source of his information. In our opinion, the evidence indicates that this was not done here. Nothing in the record indicates how the informant came by the information he was conveying to the authorities. (Stanley v. State (1974), 19 Md. App. 507, 313 A.2d 847.) Statements containing mere conclusions of criminal activity without a statement regarding independent facts and personal observations do not provide a sufficient basis for a neutral magistrate to decide to issue a search warrant or to support a warrantless arrest. People v. Gates (1981), 85 Ill. 2d 376, 423 N.E.2d 887.

The defendant concedes that the second prong of the Aguilar test, the “veracity” prong, was met when Hollenbeck testified that he recognized the name and voice of the informant and that the individual had given reliable information to him on prior occasions. However, the information given to the officer failed to describe the basis of the defendant’s alleged criminal activity. The informant did not indicate that he saw the defendant purchase the LSD or that he was familiar with such substances and could recognize and identify them. (People v. Odom (1980), 83 Ill. App. 3d 1022, 404 N.E.2d 997.) In fact, the informant told Hollenbeck that the defendant and Cox were on their way to Streator to pick up the LSD when the call was made so it would have been impossible for the informant to relate what had not yet occurred. Whether the informant was told by the defendant or a third party of the intended transaction or whether the informant supplied the LSD to the defendant himself, we are left to speculate. Hollenbeck did not testify that either the defendant or Cox were known drug dealers.

For the foregoing reasons we conclude that the arrest of the defendant was without probable cause and all evidence obtained as fruits thereof must be suppressed. Beck v. Ohio (1964), 379 U.S. 89, 13 L. Ed. 2d 142, 85 S. Ct. 223.

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

Judgment reversed.

ALLOY and HEIPLE, JJ., concur.