author: Mr. JUSTICE ALLOY Mr. JUSTICE HEIPLE,

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. LARRY McCARTY, Defendant-Appellant.
    Third District
    No. 81-110
    Opinion filed November 5, 1981.
    HEIPLE, J., dissenting.
    Robert Agostinelli and Peter A. Carusona, both of State Appellate Defender’s Office, of Ottawa, for appellant.

      L. Patrick Power, State’s Attorney, of Kankakee (John X. Breslin and Gerry R. Arnold, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   Mr. JUSTICE ALLOY

delivered the opinion of the court:

The defendant appeals from the order of the Circuit Court of Kankakee County, revoking his probation. The defendant had been convicted of armed robbery in 1970. In 1978, he pleaded guilty to a charge of felony theft. The information charged the defendant with having knowingly obtained unauthorized control over a car battery valued at less than $150, in violation of section 16 — 1(a) of the Criminal Code of 1961 (Ill. Rev. Stat. 1977, ch. 38, par. 16 — 1(a)). The information also charged that the defendant had been previously convicted of armed robbery and, therefore, that the defendant committed the crime of felony theft since he had a prior “type of theft” conviction. Ill. Rev. Stat. 1977, ch. 38, par. 16-1 (e).

The trial court sentenced the defendant to 14 days in jail (credit given for time already spent in custody), a $300 fine, and 30 months probation. While on probation, the defendant committed the offense of attempted retail theft. He had placed a carton of cigarettes under his shirt and attempted to leave the premises of a store. At his trial for attempted retail theft, the defendant, without assistance of counsel, pleaded guilty to the charge. The court sentenced him to three days in jail (credit given for time served in custody) and fined him $50. Four days later, on October 20, 1980, the State filed a petition to revoke the defendant’s probation. At the revocation hearing, the State proved the record of defendant’s conviction for attempted retail theft. At a sentencing hearing on February 26, 1981, the court sentenced defendant to imprisonment for two years (no credit for time served on probation).

The first issue on appeal is whether the defendant was properly convicted of felony theft. The defendant contends that his 1970 conviction for armed robbery is not a conviction for a theft under section 16 — 1(e) of the Criminal Code of 1961 (Ill. Rev. Stat. 1977, ch. 38, par. 16 — 1(e)). He argues that any “type of theft” — as used in that paragraph — must be defined exclusively in terms of sections 16 — 1,16—2 or 16 — 3. He relies on legislative committee language which states that, aside from sections concerning theft of lost property or theft of services, “[a]ll other forms of theft are included in section 16 — 1.” (Ill. Ann. Stat., ch. 38, art. 16, Committee Comments, at 18 (Smith-Hurd 1977).) Armed robbery, as the defendant points out, is codified in section 18 — 2 of the Criminal Code of 1961 (Ill. Rev. Stat. 1977, ch. 38, par. 18 — 2). Therefore, concludes the defendant,, armed robbery cannot be used to enhance the penalty for his conviction of theft of an item valued less than $150.

The inquiry into whether armed robbery is a type of theft, however, does not end with an examination of the statute itself. The essential elements of robbery are the deprivation of a person’s property, in his presence, through force or intimidation. (People v. Banks (1979), 75 Ill. 2d 383, 389, 388 N.E.2d 1244, 1247.) The supreme court stated “[t]he essential difference between robbery and theft is the absence of use of force or intimidation in the latter.” People v. Patton (1978), 60 Ill. App. 3d 456, 457, aff'd (1979), 76 Ill. 2d 45, 389 N.E.2d 1174.

Robbery, therefore, is considered an aggravated form of theft. (People v. Ferrara (1969), 111 Ill. App. 2d 472, 479, 250 N.E.2d 530, cert. denied (1970), 398 U.S. 927, 26 L. Ed. 2d 89, 90 S. Ct. 1815.) Banks does not refute this proposition. That case held no more than that robbery is a general intent crime. Under the language of section 16 — 1, theft is also a general intent crime (excluding the crime of receiving stolen property). Moreover, even if theft was a specific intent crime, this court and the supreme court have focused on the elements of force or threats of force as the essential distinction from ordinary theft, not the element of intent to permanently deprive the owner of property. Therefore, the defendant was properly convicted of felony theft under section 16 — 1(e) of the Criminal Code of 1961 (Ill. Rev. Stat. 1977, ch. 38, par. 16 — 1(e)).

Even if the defendant was correct on the merits of this issue, he has waived his right to appeal it before this court. He was convicted of theft under the enhancement-of-sentence provisions of the theft statute. The trial court imposed a sentence of 14 days in prison and 30 months probation. Imposition of probation following conviction of a criminal offense is a final order and appealable. (People v. Nordstrom (1967), 37 Ill. 2d 270, 226 N.E.2d 19; People v. Lambert (1974), 23 Ill. App. 3d 615, 618, 320 N.E.2d 395.) An irregularity in the original trial or in the form of conviction must be directly appealed when sentence is imposed, unless the issues are appropriate for a post-conviction proceeding. Raising such irregularities in an appeal from a probation revocation involves a collateral attack on the conviction and the probation sentence. 23 Ill. App. 3d 615, 618.

The defendant’s argument that the court below had no jurisdiction, and, therefore, the issue is not waived, is similarly without merit. Jurisdiction over a criminal prosecution exists where a court has subject-matter jurisdiction and personal jurisdiction. (People v. Farley (1951), 408 Ill. 194, 195, 96 N.E.2d 452.) Here the defendant was before the court, a criminal offense was charged against him, and venue was properly laid. A mistake of criminal law, even if it existed, does not deprive the court of its jurisdiction over the prosecution.

A second and more important issue is whether the State may revoke probation on the basis of a subsequent uncounseled misdemeanor conviction. The defendant contends that the State may not use an uncounseled misdemeanor conviction as the basis for revocation of probation, and, also, even if such conviction can be used, the State must first show a waiver of the right to counsel. The State answers that the defendant waived his right to counsel, and that even if no waiver took place, the defendant was nevertheless convicted of a crime, in violation of probation rules. Furthermore, the State contends that such a conviction is a sufficient indication of violation of probation, regardless of presence of counsel.

In Scott v. Illinois (1979), 440 U.S. 367, 59 L. Ed. 2d 383, 99 S. Ct. 1158, the United States Supreme Court ruled that the sixth and fourteenth amendments to the Constitution “require * “ * that no indigent criminal defendant be sentenced to a term of imprisonment unless the State has afforded him the right to assistance of appointed counsel in his defense.” (440 U.S. 367, 373-74, 59 L. Ed. 2d 383, 389, 99 S. Ct. 1158, 1162.) The Supreme Court later extended that rule in Baldasar v. Illinois (1980), 446 U.S. 222, 64 L. Ed. 2d 169, 100 S. Ct. 1585. In a per curiam opinion, the court ruled that a prior uncounseled misdemeanor conviction could not be used to enhance the penalty imposed upon conviction of a subsequent offense.

The State argues here that the defendant is not being imprisoned for an uncounseled misdemeanor conviction, but for a counseled felony-theft conviction. Although this is technically correct, in fact, the State seeks to revoke the defendant’s probation solely on the basis of the record of the uncounseled misdemeanor conviction. In essence, the State seeks to increase the penalty imposed for the felony-theft conviction — 30 months probation — to two years in prison, because the defendant was convicted of a misdemeanor in which trial he was unrepresented by an attorney. The fact that the uncounseled conviction occurred after the counseled conviction is not constitutionally significant under the sixth and fourteenth amendments. Here, as in Baldasar, the State seeks to increase a penalty because of a misdemeanor conviction which was obtained without the defendant having the assistance of counsel.

Moreover, the fact that the State could revoke probation through proof of antisocial activities is immaterial to whether the defendant has a right not to be sent to prison on the basis of an uncounseled misdemeanor conviction. Therefore, we conclude that the defendant is entitled to a new probation revocation hearing, unless he waived his right to counsel in the proceedings in the attempted retail misdemeanor theft proceedings. “The basic issue 0 0 6 is whether the record shows that the defendant understood that he had a right to be represented by counsel * * * and if so, whether he knowingly and intelligently waived that right.” (People v. Hessenauer (1970), 45 Ill. 2d 63, 67, 256 N.E.2d 791.) Whether the record demonstrates a valid waiver of the right to counsel is controlled by Supreme Court Rule 401. Both sides rely on the docket entry of July 30, 1980 (the date of the defendant’s retail theft arraignment), to show the existence, or lack of, a waiver. That entry, in pertinent part, reads:

“Case called for arraignment. * * * Defendant appears personally in the custody of the Police Department of the City of Kankakee without counsel. Defendant given copy of the complaint. Same is read to him. Explanation of rights given, including right to counsel. Upon being duly arraigned, defendant pleads not guilty and waives jury.”

A waiver of the right to counsel will not be lightly found. Under Supreme Court Rule 401, the record must demonstrate that the defendant understood his right to counsel. The docket entry here does not sufficiently demonstrate that the defendant understood this right to counsel, nor that he understood that conviction of attempted retail theft could lead to revocation of his probation (also required by Rule 401). In People v. Williams (1976), 44 Ill. App. 3d 845, 358 N.E.2d 1324, this court found a waiver of the right to counsel based on a similar docket entry. In that case, however, the entry contained the critical notation that the “ [defendants advise the Court that they understand” the right to counsel. (44 Ill. App. 3d 845, 847, 358 N.E.2d 1324.) In People v. Lyons (1974), 19 Ill. App. 3d 294, 311 N.E.2d 370, the court found no sufficient waiver of the right to an attorney. In Lyons, the docket entry was very similar to that in the instant case. As here, that docket entry had no notation that would permit a reviewing court to conclude that the defendant understood his right to counsel and that he knowingly and intelligently waived that right.

The State also relies on the fact that the defendant announced he was “ready” for trial on October 16, 1980, and on the defendant’s failure to retain counsel in the 2f¿ months between arraignment and trial. However, the fact that the defendant did not retain counsel for 2% months is as much an indication that he was unable to afford a lawyer as it is a waiver of his right to one. Furthermore, announcing “ready” for trial — in which the defendant intends to plead guilty — cannot be construed as a knowing and intelligent waiver of sixth and fourteenth amendment rights.

It is true, as the dissent asserts, the United States Supreme Court has ruled that judges can be presumed to have properly performed their public duties. In this regard, they could be presumed to have given the defendant the required warnings and have determined whether he knowingly waived his right to counsel. (Bute v. Illinois (1948), 333 U.S. 640, 671-72, 92 L. Ed. 986, 1003, 68 S. Ct. 763, 779.) In Moore v. Michigan (1957), 355 U.S. 155, 2 L. Ed. 2d 167, 78 S. Ct. 191, the Supreme Court ruled that a criminal defendant can collaterally attack a conviction on the ground that he was denied his right to counsel. The court noted that the defendant has the burden of showing, “by a preponderance of the evidence, that he did not intelligently and understanding^ waive his right to counsel.” (355 U.S. 155, 161-62, 2 L. Ed. 2d 167, 172, 78 S. Ct. 191, 195.) These cases have been limited and distinguished, however, in subsequent Supreme Court decisions.

In Carnley v. Cochran (1962), 369 U.S. 506, 8 L. Ed. 2d 70, 82 S. Ct. 884, the Supreme Court ruled that where the record has no showing that the defendant has made an affirmative acquiescence in his relinquishment of his right to counsel, the State may not place the burden of showing nonwaiver on him. The court noted that Bute did not involve waiver of right to counsel, but was decided on the ground that there was no protected right to counsel. Moore was distinguished because, in that case, the record affirmatively indicated that the defendant knowingly waived his right to counsel.

Therefore, when the record is devoid of any affirmative indication that the accused has waived his right to counsel, the burden is upon the State to demonstrate the knowing and intelligent waiver of that constitutional right. “A finding of waiver [of the right to counsel] will not be made unless it appears from the record that at each critical stage of the proceeding the trial judge specifically offered, and the accused knowingly and understandingly rejected, the representation of appointed counsel.” (Emphasis added.) People v. Hessenauer (1970), 45 Ill. 2d 63, 68, 256 N.E.2d 791; People v. Dismore (1975), 33 Ill. App. 3d 495, 502, 342 N.E.2d 151; People v. McMurray (1977), 55 Ill. App. 3d 581, 582, 371 N.E.2d 46.

In the case at bar, the docket entry does not establish the affirmative acquiescence that the United States Supreme Court or our State supreme court requires for a finding of waiver of the right to counsel. The critical emphasis is upon the record of waiver, not upon any allegation of non-waiver. Therefore, the defendant has been denied his right to counsel in his trial for attempted shoplifting. The State may not now use a conviction obtained in such a manner as a basis to revoke the defendant’s probation. The judgment of the Circuit Court of Kankakee County is reversed and the cause remanded for proceedings consistent with this decision.

Reversed and remanded.

BARRY, J., concurs.

Mr. JUSTICE HEIPLE,

dissenting:

I concur with the majority’s analysis as to the alleged jurisdictional flaw, as well as the effect of defendant’s prior 1970 armed robbery conviction in these probation revocation proceedings. I cannot agree with my colleagues’ position on the waiver of counsel issue. Since such resolution controls the outcome in this cause, I respectfully dissent.

For over 30 years the United States Supreme Court has adhered to the view that a trial judge, upon arraignment of a criminal defendant, is presumed to discharge his responsibility to advise the accused of his constitutional rights. (Bute v. Illinois (1948), 333 U.S. 640, 670-72, 92 L. Ed. 986, 1002-03, 68 S. Ct. 763, 779.) I think this conclusion applies with equal force to a trial judge’s statutory obligations which are founded on such guarantees (Ill. Rev. Stat. 1979, ch. 110A, par. 401). Although this inference is subject to challenge, such an attack cannot be successful when its genesis is a silent record. Essentially, the majority holds it can.

The record reflects the defendant was, in fact, advised of his rights, “* * * including the right to counsel e ° In short, the docket entry reflects the trial judge’s actions were consistent with his constitutional and statutory responsibilities. Since the charge was only a misdemeanor, no statutory or constitutional requirements exist requiring such proceeding to be transcribed. People v. Hopping (1975), 60 Ill. 2d 246, appeal dismissed (1975), 423 U.S. 907, 46 L. Ed. 2d 136, 96 S. Ct. 209.

Moreover, nowhere in the record or the briefs does the defendant ever make an affirmative allegation that the trial judge failed to admonish him of his right to counsel. Lacking such, the inference that trial judges discharge their duties in constitutional fashion remains intact. And, when this factor is considered in light of the record evidence of the docket entry, such is sufficient to establish a waiver of the right to counsel.

Actually, the reversal here is gratuitous. The defendant has never alleged that his constitutional right to the assistance of counsel has been denied or infringed. He merely claims the record reflects that such might have occurred. The majority assumes he did not understand his rights because the record does not say he understood them. But such an argument is circuitous, since even if defendant did waive his right to counsel, the majority would still reverse. Because a distinction must be drawn between what actually transpired at the arraignment as the record reflects it, and the defendant’s unverified, naked supposition, I dissent.


source: Caselaw Access Project

author: Mr. PRESIDING JUSTICE SCOTT

license: Public Domain

text:
      In re MARRIAGE OF LeRAE M. COHENOUR, Plaintiff-Appellee, and RICHARD L. COHENOUR, Defendant-Appellant.
    Third District
    No. 81-161
    Opinion filed November 12, 1981.
    Charles R. Thomas, of Pekin, for appellant.
    Robert Morel Gray and Gerald G. Kielian, both of Gray, Kleczek & Kielian, P. C., of Joliet, for appellee.
   Mr. PRESIDING JUSTICE SCOTT

delivered the opinion of the court:

This is an appeal from a judgment of the Circuit Court of Tazewell County which denied the petition of the defendant, Richard L. Cohenour, which prayed that maintenance payments which he had been ordered to make to his ex-wife, the plaintiff, LeRae Cohenour, be terminated.

The plaintiff and the defendant were divorced on May 10,1973. The decree of divorce ordered the defendant to pay alimony to the plaintiff in the sum of $400 per month. On April 4, 1978, an order was entered increasing these payments to the sum of $510 per month. On April 8,1980, the defendant filed a petition to terminate maintenance. The petition was brought pursuant to that provision of the Illinois Marriage and Dissolution of Marriage Act which provides:

“The obligation to pay future maintenance is terminated upon the death of either party, or the remarriage of the party receiving maintenance, or if the party receiving maintenance cohabits with another person on a resident, continuing conjugal basis.” Ill. Rev. Stat. 1979, ch. 40, par. 510(b).

This appeal presents the sole question as to whether the trial court was correct in its denial of the defendant’s petition. In determining this question it is necessary that there be an examination of both the pertinent law and the evidence adduced at the hearing on the petition.

Turning our attention to the law, we concern ourselves with that portion of the statutory provision which we have cited and which reads as follows:

“The obligation to pay future maintenance is terminated “ * * or if the party receiving maintenance cohabits with another person on a resident, continuing conjugal basis." (Emphasis added.) Ill. Rev. Stat. 1979, ch. 40, par. 510(b).

The appellate court from the Fifth District specifically addressed itself as to the meaning of the above-quoted language and made the following determination:

“We believe that this statute contemplates acts of sexual intercourse as part of the full or de facto husband-wife relationship which it seeks to describe. The term ‘cohabitation’ means living together as husband and wife, but does not necessarily imply sexual intercourse. (Rasgaitis v. Rasgaitis (1952), 347 Ill. App. 477, 107 N.E.2d 273.) ‘Conjugal basis,’ however, implies the assertion of conjugal rights which have been defined both as ‘the right which husband and wife have to each other’s society, comfort and affection’ (Black’s Law Dictionary 374 (4th ed. rev. 1968)) and ‘the right of sexual intercourse between husband and wife’ (Webster’s Third New International Dictionary 480 (1971)). The statute further requires that the cohabitation be on a resident and continuing basis.” In re Support of Halford (1979), 70 Ill. App. 3d 609, 613, 388 N.E.2d 1131, 1134.

Since continuing sexual intercourse must occur between parties one of whom is receiving maintenance payments from an ex-spouse before the pertinent provision of section 510(b) is triggered, thereby eliminating the obligation to continue maintenance payments, such acts of sexual intercourse must be proved. We are aware of the fact that few couples admit to having out-of-wedlock intercourse, nor do they publicly engage in such conduct, but on the contrary, they attempt to conceal their actions. Such being the case, it has long been the rule that out-of-wedlock intercourse can be proved by circumstantial evidence. See Zimmerman v. Zimmerman (1909), 242 Ill. 552, 90 N.E. 192, and Wolfrum v. Wolfrum (1955), 5 Ill. App. 2d 471, 126 N.E.2d 34.

Having set forth the applicable law, attention will now be directed to the facts presented to the trial court by testimony and evidence depositions.

LeRae and her son, Jeff, who was 15 years old in 1975, moved into a residence at 241 S'umerset in New Lenox, Illinois. The house was a trilevel structure consisting of six rooms, two of which were bedrooms. In the latter part of 1977 A1 Escobedo moved into the plaintiff’s residence. LeRae had met Escobedo at the Worldwide Church of God. Escobedo continued to live at the plaintiff’s home up to and through the proceedings to terminate maintenance. It is uncontested:

(1) That Escobedo claimed plaintiff’s home at 241 Somerset in New Lenox as his legal residence for employment, tax, and motor vehicle registration purposes.
(2) That he paid to LeRae $25 per week to stay at the house but on occasion doubled or tripled that amount.
(3) That the payments were made in cash until February or March of 1980, being a few months prior to commencement of the termination of maintenance action. Thereafter the payments were made by check.
(4) That he (Escobedo) purchased most of the groceries for LeRae and Jeff, as well as other incidental items for the house. That on occasions he bought winter clothing for Jeff.
(5) That he permitted LeRae on occasion to use his VISA credit card.
(6) That he performed manual labor around the house such as putting up storm windows, mowing grass and tending to a garden.
(7) That he (Escobedo) on one occasion took a trip to Mexico and named LeRae as a beneficiary for a portion of the flight insurance which he had purchased.
(8) That on one occasion he (Escobedo) entered LeRae’s bedroom clad in shorts and a bathrobe and that while there he reclined on the bed while petting the dog.

It was the testimony of LeRae that she was unemployed because of illness and also from injuries received from an automobile accident which.. occurred in 1970; that for a period she took birth control pills on the advice of a dermatologist who prescribed them for complexion problems, but that she ceased taking them in the year 1976; and that both she and Escobedo dropped their church membership, but not because of pressure from the church regarding Escobedo’s residing in her home. LeRae further testified that she used the master bedroom, her son Jeff the other bedroom.

Further testimony was to the effect that when Escobedo first moved into LeRae’s home he did not sleep in a bedroom but in a basement room, and that in August 1979, the son Jeff and Escobedo had a quarrel and Jeff left the home and thereafter Escobedo used Jeff’s room. Jeff, who lived in the Sumerset house while 17,18 and 19 years of age, testified that during that period of time Escobedo slept in the basement room, he never saw him other than fully clothed when in the presence of his mother.

Both LeRae and Escobedo deny that they have ever engaged in sexual intercourse. Since continuing sexual intercourse must occur between the party receiving maintenance and another party and since sexual intercourse can be proved by circumstantial evidence, we are confronted with determining whether the trial court’s decision was against the manifest weight of the evidence. We believe that the decision is not against the manifest weight of the evidence. In arguing to the contrary, the defendant relies heavily on the case of In re Support of Halford (1979) , 70 Ill. App. 3d 609, 388 N.E.2d 1131. We believe that such reliance is misplaced, for Halford is clearly distinguishable from the instant case. In Halford the parties had lived together for three years. It was admitted by Mrs. Halford that she and Mr. Green had engaged in sexual intercourse three or four times. There was additional evidence that the couple had a close and affectionate relationship and they had been seen kissing and touching each other and there was evidence to show that they shared the same bedroom. In Halford, the Fifth District Appellate Court reversed the trial court’s decision which denied the termination of maintenance payments.

In the instant case there is no direct evidence whatsoever of sexual conduct between LeRae and Escobedo. There is no evidence of any display of affection between the parties. They apparently did not dine out together or travel together. The sole party who possibly could have shed any light on their relationship was LeRae’s son Jeff. Even though he and Escobedo had a quarrel of a nature serious enough to result in Jeff leaving the home, he testified that he had never seen any improprieties between his mother and Escobedo while living in the home. The law requires either direct or circumstantial evidence of sexual conduct before maintenance payments can be terminated. See In re Marriage of McGowan (1980), 84 Ill. App. 3d 609, 405 N.E.2d 1156.

For the reasons set forth the judgment of the Circuit Court of Tazewell County is affirmed.

Affirmed.

BARRY and STOUDER, JJ., concur.


author: Mr. JUSTICE VAN DEUSEN

text:
    CONTRACT BUILDERS SERVICE CORPORATION, Plaintiff-Appellee, v. TERRY P. ELAND, et al., Defendants.—(TERRY P. ELAND, Defendant-Appellant and Cross-Appellee; EDWARD HINES LUMBER CO., Intervening Plaintiff-Appellee and Cross-Appellant; FRANK J. LAURENZANA, Plaintiff; SUSAN ELAND, Intervening Petitioner-Appellant.)
    Second District
    No. 80-425
    Opinion filed November 3, 1981.
    — Rehearing denied December 8, 1981.
    Michael Nigro, of Nigro and Westfall, of Glendale Heights, for appellants Terry P. Eland and Susan Eland.

      Edward Daugherty and T. B. Newitt, both of Brodl, Daugherty and Addison, of Chicago, for appellee Edward Hines Lumber Co.
    John Demling, of Glen Ellyn, for appellee Contract Builders Service Corporation.
   Mr. JUSTICE VAN DEUSEN

delivered the opinion of the court:

This is an appeal from an order of the circuit court of Du Page County wherein Contract Builders Service Corporation (Contract Builders) and Edward Hines Lumber Company (Hines) were granted a decree to foreclose mechanics’ liens claimed against premises owned by Susan and Terry P. Eland. In the same action, the court denied a mechanics’ lien claim filed by Frank J. Laurenzana. Susan Eland, who intervened in the action only after the mechanics’ liens had been granted, and Terry Eland appeal from the decree of foreclosure. Hines has cross-appealed, asserting that they were entitled to a lien in the sum of $10,994, therefore, the $5,972 lien granted to them was in error.

In the fall of 1976, Terry P. Eland, an attorney, retained Contract Builders to furnish the cement, steel and carpentry work for the residence Eland planned on building. In February of 1977, after some negotiations, the parties entered into a contract with a price of $23,500. Contract Builders started the carpentry work on or about February 28, 1977, and continued on the job for one month. A disagreement concerning the progress of the work arose between the parties, and the contract was terminated by Eland in late March or early April. Contract Builders’ last day on the site was Friday, April 1, 1977. All parties appear to agree that when Contract Builders left the site, the contracted work was approximately one-half completed. On April 29, 1977, Contract Builders filed a claim for a mechanics’ lien on the premises.

After Contract Builders left the site, Eland hired Frank J. Laurenzana to complete the construction. The house was substantially completed in August of 1977. On August 28, 1977, Eland moved into the residence and on September 25, 1977, Eland married Susan P. Eland. In early September, Laurenzana gave to Eland a bill for materials and labor and what purported to be a signed, final lien waiver from Laurenzana’s material supplier, Hines. Eland then made a series of payments to Laurenzana.

In October of 1977, Hines, a material supplier of Laurenzana, filed a claim for a mechanics’ lien in the amount of $10,075.45 against the Eland residence. In December of 1977, Hines filed a final claim for a mechanics’ lien against Eland and Laurenzana. At that time, the lien claimed against Eland amounted to $10,994. On February 14, 1978, Terry Eland quit-claimed an interest in the house to his wife, Susan. At that time he instructed her not to record the quitclaim deed due to pending litigation. In May of 1978, Laurenzana filed his claim for an $11,742.62 lien against the Eland premises.

On December 9, 1978, Contract Builders filed suit to foreclose its mechanics’ lien. Eland answered and counterclaimed, alleging that Contract Builders had breached the contract. Hines Lumber Company intervened and also filed its claim to foreclose its mechanics’ liens. In the same action, Hines brought suit against Laurenzana, claiming an amount due under a contract. Laurenzana filed a counterclaim to foreclose his lien on the Eland premises.

On October 30, 1979, after a trial on the various issues, the court granted a $5,609 lien plus costs and interest in favor of Contract Builders and a lien for $5,972 plus interest and costs to Hines. Hines was also granted a judgment against Laurenzana. Laurenzana’s lien claim against the Eland premises was denied.

On November 19, 1979, Eland filed a motion to reconsider. On November 27, 1979, Eland filed additional objections to the decree. At that time, he asserted that the decree of foreclosure was defective in that the parties had failed to join his wife, Susan Eland. On December 13, 1979, after filing a petition to intervene, Susan Eland was granted leave to present a written offer of proof as to what interest she asserted in the premises.

In its January 28,1980, letter to the parties, the trial court stated that the offer of proof established that Susan Eland married Terry P. Eland on September 5, 1977, after the house had been built, and after all rights pertaining thereto had ripened and attached. The court also found that on February 28, 1978, the defendant, Terry Eland, had executed and delivered a quitclaim deed to Susan Eland with the directions that it not be recorded because of pending litigation. Under the precise facts of this case, the trial court concluded that Susan Eland was not a necessary party; therefore, the motion to dismiss for failure to join her as a necessary party was denied. On February 1, 1980, after considering the various post-trial pleadings, the court entered a decree of foreclosure.

On appeal, the first issue raised by the Elands is that Susan Eland is a necessary party for the entry of decree of foreclosure and that the failure of the claimants to join her makes the decree void. The Elands also contend that the failure to join Susan Eland denied her due process of law. In view of the circumstances in this case, these contentions are without merit.

The Elands contend that Susan Eland, by virtue of her marital relationship with Terry Eland, is a necessary party. The Elands rely principally on the case of Leffers v. Hayes (1945), 327 Ill. App. 440, to support their position. We recognize that in both Anderson v. Gousset (1965), 60 Ill. App. 2d 309, and Leffers v. Hayes, the court held that even if the wife of a property owner was not a record owner of the property, she still is a necessary party for a suit to foreclose a mechanics’ lien. Anderson v. Gousset, as well as Leffers v. Hayes, can be distinguished from this case. In those cases, there is no contention that the property owner had not been married during the time that the improvements were made, nor is there any contention that the lien claimants were unaware of the marital status of the property owner. In this case, it is evident that none of the plaintiffs had any knowledge of the September 5,1978, marriage of Terry P. Eland. Eland’s contention that when the plaintiffs visited the Eland home to take slides to be introduced into evidence they should have appreciated the significance of Mrs. Eland’s presence on the premises and joined her as a party is totally without merit.

Because the plaintiffs had no knowledge of Terry Eland’s marriage, they could not have known of any interest Susan Eland may have had in the premises by virtue of marriage. Section 11 of the Mechanics’ Lien Act provides that in a mechanics’ lien foreclosure action the plaintiff must join “all parties interested, of whose interest he is notified or has knowledge.” (Ill. Rev. Stat. 1977, ch. 82, par. 11.) Because the plaintiffs had no knowledge of Eland’s marriage, we need not discuss what interest, if any, was created by virtue of the marriage.

Defendant’s contention that Susan Eland’s interest as a tenant made her a necessary party is also without merit. Obviously, at the time of the decree she was not a tenant; she was an unrecorded owner of the property. There is no doubt, however, that Susan Eland has an interest in the premises by virtue of the unrecorded quitclaim deed. Section 11 defines the necessary parties in interest to include “all persons who may have any valid claim to the whole or any part of the premises upon which a lien may be attempted to be enforced under the provisions thereof, or who are interested in the subject matter of the suit.” (Ill. Rev. Stat. 1977, ch. 82, par. 11.) We note that the quitclaim deed was not recorded, and that the record on appeal is devoid of any evidence that the plaintiffs knew of this conveyance of an interest in the premises. As stated earlier, under section 11 plaintiffs are required to join only those parties of whose interest they have knowledge.

Moreover, her interest was conveyed to her subsequent to the filing of the notice of a claim for a lien by both Contract Builders and Hines. Because Susan Eland acquired her interest after the claims had been filed, she had constructive notice of the lien claim. Additionally, in her own affidavit she admits knowledge of the pending litigation. Therefore, she acquired the property subject to the lien claims.

The Elands’ contention that the failure to join Susan Eland deprives her of an opportunity to defend and thereby deprives her of a right to due process of law is without merit. Under the circumstances in this case, Susan Eland was not denied any of her due process rights. She was well aware of the pending litigation and under section 11 of the Mechanics’ Lien Act any interested person “may, on application to the court wherein the suit is pending, be made or become parties at any time before final judgment.” (Ill. Rev. Stat. 1979, ch. 82, par. 11.) Both she and Terry P. Eland deliberately delayed raising the issue of her interest in the property until after the trial and after the court had rendered an unfavorable decision. The trial judge properly denied the petition of Susan Eland to intervene in the cause after the decree was entered, and properly denied the motion to dismiss.

The Elands also contend that the trial court’s finding that Eland, without justification, terminated his contract with Contract Builders is against the manifest weight of the evidence. We disagree. While Eland admits that he terminated the contract between himself and Contract Builders, he contends that at the time the contract was terminated Contract Builders was :n breach of the contract. Therefore, the termination of the contract by Eland was justified. Eland concludes that because the termination was justified, Contract Builders is not entitled to a lien.

Eland asserts that Contract Builders breached their contract in that (1) they failed to work continuously at the site and (2) they failed to order the windows and siding for the home.

According to the testimony at trial, one of the conditions of the contract was that Contract Builders would continuously work on the Eland home. Contract Builders was not required, however, to work on the weekends or during inclement weather. The architect, Jeffrey Farrell, testified that in late March he visited the site and noted that, despite the clear weather, Contract Builders was not on the site. At trial, George Gross, president of Contract Builders, admitted that they missed working at the site on several days in March, including the day Farrell visited the site. He further testified that they missed working on those days because of inclement weather.

Eland contends that on five days in March, Contract Builders did not show up even though the weather was permitting. Those days were: March 3, 4, 7, 18 and 29. He argues that the certified weather reports for O’Hare and Du Page County Airports indicate that on those days the weather was amenable to outdoor work. We note, however, that these weather reports, which were admitted into evidence, do not totally support Eland’s contentions. These reports indicate that on both March 3 and 4 there was intermittent rain, drizzle and fog all day. Although the total precipitation was low, it is obvious that the weather was not suited for outdoor work. Similarly, the weather on the 18th was not suitable for outdoor work. Rain started to fall in the early evening hours of the 17th. Precipitation continued until 8 a.m. on the 18th. In the early hours of the 18th the rain turned to snow. Temperatures remained in the mid-thirties.

On only two of those days, the 7th and 29th, was the weather somewhat suitable for outdoor work. The reports indicated that on the 29th there was only a trace of rain and that temperatures were in the high 50’s. The reports also show, that there was continuous rain, fog, drizzle and an occasional thunderstorm from 8:50 a.m. March 27 until the early hours of the 29th. It is a fair assumption that on the 29th the ground conditions were, as Gross stated on his time sheet, “miserable” and unsuitable for carpentry work.

The weather reports, however, do indicate that the weather was clear on the 7th of March. On that day, Contract Builders did work a half a day. Thus, it appears that Contract Builders missed working on only one-half of a good weather day. The evidence also indicates that Contract Builders worked on at least one Saturday, even though it was not required to do so. We also note that Eland’s architect and friend, Jeffrey Farrell, testified that the carpentry work was proceeding at a normal pace. Under these facts, Eland was not justified in terminating the contract.

Eland also contends that Contract Builders breached the contract by not timely ordering the windows and siding. No evidence was introduced at trial to indicate that the contract contained any terms regarding when the windows and siding should be ordered or even when the carpentry work was to be completed.

Farrell testified, however, that generally the windows are ordered at the time the carpentry work begins. This is done so that the windows will be on hand when they are needed. Eland contends that because Contract Builders had been on the site a month and had not yet ordered the windows, timely performance of the contract was impossible.

Gross, on the other hand, testified that his “game-plan” was not to order the windows until he had finished the framing for the windows. He stated that the windows to be used in the Eland home were not the type usually installed in a home. Although quite a few windows were to be installed, only three of them were operable. He also testified that due to the need for extensive grading and cement work on the exterior, lower levels of the structure, these windows had to be tight in their frames or else problems would develop. He also testified that he obtained price quotes on the glass and that if he ordered the windows, he could definitely have them delivered in one or two weeks. There is sufficient evidence to infer that Gross’ failure to order the windows did not amount to a breach of the contract.

Finally, Eland contends that he was justified in terminating the contract because Gross planned to “walk-off” the job and work full-time on another job. Eland contends that Gross failed to introduce any evidence to rebut Eland’s testimony that Gross was going to “walk-off” the job. Although Gross did not directly refute this testimony of Eland, Gross’ testimony, when read as a whole, indicates that he intended to continue working on the Eland home, and that he “packed-up his tools” only after receiving oral and written orders to leave the site.

Overall, the testimony of Gross and Eland is contradictory, and when the evidence is contradictory, a judgment will not be overturned merely because the court could have reached a different conclusion. (Wm. Aupperle & Sons, Inc. v. American National Bank & Trust Co. (1975), 28 Ill. App. 3d 573, 579.) Because the trial court’s determination that Eland unjustifiably terminated the contract is supported by the evidence, it will not be overturned by this court.

Section 4 of the Mechanics’ Lien Act (Ill. Rev. Stat. 1977, ch. 82, par. 4) provides that a contractor who is prevented from performing his contract by default of the owner shall be entitled to enforce his lien for the value of what has been done. (Miller v. Reed (1973), 13 Ill. App. 3d 1074, 1077.) In this case, because the trial court found that Eland had terminated the contract without just cause, Contract Builders is entitled to a mechanics’ lien for the value of the work performed. The trial court’s finding that the work done by Contract Builders was worth $5,609 was amply supported by the evidence and is, therefore, affirmed.

Eland next contends that because Hines gave Laurenzana an executed final lien waiver, Hines is barred from claiming a mechanics’ lien on the Eland premises.

It is undisputed that on September 2, 1977, Hines issued a final lien waiver on the Eland premises. This waiver recited that Hines had received $6,990.40 as final payment on materials supplied to Laurenzana for use on the Eland home, and that for this consideration Hines agreed to waive all liens on the Eland premises. The waiver was signed and notarized. Furthermore, there was no indication on the face of the waiver that Laurenzana had not yet paid for the waiver, nor did Hines give Eland any other notice that Laurenzana had not yet paid for the waiver. Eland retained the waiver of the lien for approximately 20 days. During that 20-day period he paid approximately $9,500 to Laurenzana. At the end of the 20 days, Eland gave the waiver back to Laurenzana, who returned it to Hines. Hines voided the waiver.

In Edward Hines Lumber Co. v. Dell Corp. (1977), 49 Ill. App. 3d 873, the court discussed Hines’ practice of issuing unpaid lien waivers. In that case, the court held that in light of the industry custom of issuing lien waivers before payment, and in light of the defendant’s knowledge and use of the aforesaid custom, Hines could repudiate its lien waiver. (See also Chicago Bridge & Iron Co. v. Reliance Insurance Co. (1970), 46 Ill. 2d 522.) Neither Hines nor Chicago Bridge & Iron Co. addresses the problem of an owner who is unaware of the custom, and who, in reliance on the lien waiver, paid out funds.

If Eland believed that the waiver was what it purported to be, and he relied on that waiver when he paid out the $9,500, it is clear that he was. deceived and prejudiced by Hines’ practice of issuing lien waivers before payment is received. Here, Eland testified that Laurenzana told him that Hines had confused the Eland invoices and orders with those from other carpentry projects and that Laurenzana had, therefore, agreed to pay the Hines bill out of his own account. When Laurenzana gave the final waiver to Eland, Laurenzana stated that the waiver was proof of payment. Eland testified that after he paid Laurenzana, he returned the waiver to Laurenzana, as he had done earlier with all other lien waivers, and instructed Laurenzana to deliver it to Eland’s mortgagee. Laurenzana, on the other hand, testified that he told Eland that the waiver was unpaid. Other than this testimony by Laurenzana, there is no other evidence that Eland knew the final waiver was unpaid. Because the trial court expressly stated that Laurenzana’s testimony would not be accepted as proof of any fact, Hines failed to introduce any credible evidence to refute Eland’s testimony. Additionally, there is no evidence that Eland was aware of Hines’ practice of issuing lien waivers before payment.

The manifest weight of the credible evidence establishes that Eland innocently relied on the representations set out on the lien waiver. An innocent party has a right to rely on a signed lien waiver. Richard’s Lumber & Supply Co. v. National Bank of Joliet (1975), 32 Ill. App. 3d 835.

Under the circumstances in this case, Hines will not be permitted to come to court and attack its own, freely-issued document. As against a party unaware of Hines’ practice, Hines will not be able to assert that a document which in essence, said “for value received we hereby waive” should have been construed to have read “for value, which we may or may not have received, we waive or do not waive, as the case may be, our lien rights.” That part of the judgment granting Hines a mechanics’ lien of $5,972.72 is hereby reversed.

Affirmed in part; reversed in part.

HOPE and UNVERZAGT, JJ„ concur.


author: Mr. JUSTICE HEIPLE Mr. JUSTICE STOUDER,

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. MOSE CHILDS, Defendant-Appellant.
    Third District
    No. 80-627
    Opinion filed November 12, 1981.
    STOUDER, J., dissenting.

      Robert Agostinelli and Michael Filipovic, both of State Appellate Defender’s Office, of Ottawa, for appellant.
    John A. Barra, State’s Attorney, of Peoria (John X. Breslin and Gary F. Gnidovec, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   Mr. JUSTICE HEIPLE

delivered the opinion of the court:

The defendant Mose Childs was indicted on three counts of attempt (murder) and one count of armed violence. Following a jury trial, Childs was convicted on all four counts. He was sentenced to two consecutive 15-year terms of imprisonment for attempt (murder), and a concurrent 10-year term for attempt (murder) with no sentence being imposed for the armed violence conviction.

Childs advances two issues for review: (1) whether he was deprived of a fair trial by the closing arguments of the prosecutors; (2) whether the trial court erred by considering as an aggravating factor that Childs’ conduct caused serious harm to the victims.

Childs asserts that various comments made by the prosecution during closing and rebuttal arguments were improper. During the closing argument the State made the following comments:

“Ladies and gentlemen, I think the thing that jumps out in this case probably above anything else is that this is a case that’s going to be decided by you on the basis of credibility of witnesses. You heard quite a bit of testimony from that witness stand. I think the one thing that should jump out to you immediately is that someone was not entirely honest with you from the stand. In fact, someone lied to you from the witness stand, and the evidence, other testimony, showed who, and I think as you’ll find out as I talk further, show what, that is, untruths were spoken.
<* <* #
Now, the evidence shows, ladies and gentlemen, very simply, the defendant lied to you on the stand. But why? Well, the self defense, intoxication, those are ideas not necessarily legal only in nature. They are as far back as cowboy shows that you see on T.V.”

During defense counsel’s closing argument, he responded to the State’s improper claims by stating:

“Now, I was somewhat troubled — am somewhat troubled by the use of Mr. Holman’s — liberal use of the word ‘lie’. A lie is something crystal clear, and Mr. Holman’s attempt or suggestion to anybody, based upon the conflicting testimony that we heard here, was positively lying, I think is consistent with his attempt to bring some sort of false focus upon what actually happened on this date. It’s impossible, it’s out of place. It’s not proper. I don’t say to anyone, and I don’t say about anyone, ‘You’re lying,’ or ‘He’s lying,’ or ‘I’m lying.’ Strong words unless you know for a fact that they’re lying, unless you can say without a doubt, ‘You’re lying, I’m lying, he’s lying.’ What was there in the evidence that we heard over the last couple of days that allows Mr. Holman to say that Mose Childs lied about virtually everything? The only thing that he can tie it to, the only thing he can base that assertion on, I think, is the testimony of the other witnesses.”

In rebuttal argument the State further remarked:

“Now, Mr. Piel for the defense objected to our use of the term that when someone took the stand, someone being several people, I would suggest to you during trial, that they lied to you. Ladies and gentlemen, I don’t know of any other term that appropriately fits. I submit to you that unfortunately in all too many criminal cases the people take the stand and perjure themselves, and I submit to you that’s what occurred in this case.
DEFENSE ATTORNEY: Judge, I’m going to object to the use of the term ‘perjure.’
THE COURT: Objection’s overruled.
ATTORNEY FOR THE STATE: Ladies and gentlemen, it will be for you to decide if somebody lied and who, but in making that decision consider the points of contradiction in this testimony that Mr. Holman mentioned in his opening part of the closing argument. Consider these additional points and then you tell us whether or not somebody lied to you when they took the stand and testified in this case. Consider the contradictions, if you will, in the defendant’s own witnesses’ testimony.
a a a
Consider some other points of contradiction and then you tell us if somebody lied in this trial.
a a a
Just one more example, we submit to you, that why we feel someone definitely took the stand and lied to you in this case. It’s now your job to, we submit, determine who.
a # #
What it comes down to, ladies and gentlemen, is, is the defendant lying to you or does the evidence show that Genice Brown and Henry Moore and O. B. Carpenter and Uncle Bob Hulbert and Officer Cannon and Officer Hlavacek and Mr. Roberts and Officer Pollard and Officer Ganda and Officer Esslinger, are they, all lying to you? That’s what you are going to have to decide from the evidence, physical and testimonial and circumstantial.”

Initially, we note that most of these comments were not objected to at trial; none were cited as error in the defendant’s post-trial motion. The State contends that Childs has waived any error in these statements by failing to raise timely objection. We agree.

The failure to make a timely objection to allegedly improper remarks by the prosecutor effects a waiver of the objection. (People v. Skorusa (1973), 55 Ill. 2d 577.) The alleged error must be brought to the attention of the trial court so that the trial court has an opportunity to correct itself or to correct the error. (People v. Guynn (1975), 33 Ill. App. 3d 736.) Before plain error may be considered as a means of circumventing the general waiver rule, it must be plainly apparent from the record that an error affecting substantial rights was committed. 58 Ill. 2d R. 615(a).

No such error is apparent from the record in the instant cause. In our examination of the allegedly prejudicial remarks taken in the context of the entire record, including the evidence of Childs’ guilt introduced by the State, we find that if any of the State’s comments were improper, and we do not find that they are, they did not affect the defendant’s right to a fair trial nor any other substantial rights. Many of the prosecutor’s comments are general statements that someone lied. These statements were based on the evidence which demonstrated contradictions in the witnesses’ stories. They simply all could not be true. The prosecutor may discuss the credibility of the defendant and the witnesses when it is based on the evidence or reasonable inferences therefrom. People v. Wirth (1979), 77 Ill. App. 3d 253.

The defendant also complains that the prosecutor misstated the law with respect to the intent element of murder in the closing argument. In making his closing argument, the prosecutor recited the intent instruction to be given the jury as follows: “A person intends an act or intends consequences when basically his conscious objective is to accomplish that result.” The prosecutor continued with the following explanation which the defendant claims is improper:

“Now, the question then to pose to yourselves is, did the defendant, through a conscious objective, intend to accomplish the result of shooting at these people? I submit to you the only answer that could come from the evidence that you’ve heard in this case, all the evidence, is yes. What elements could the defendant have been intending when he, at Wade’s Inn, shot at a person three times, not once, not twice, but three times? What else could he have been intending in that alley when he jumped out from behind the garage and shot at Officer Cannon two times? What else could the defendant have been intending when over in Carver Park he shot at Officer Pollard at least two times, by Officer Pollard’s testimony, and by his possibly admitting three or four times? Ask yourselves, ladies and gentlemen, concerning this intent requirement, what else could he have been intending?”

Again, no objection to this statement was made at trial nor was it cited in defendant’s post-trial motion. Accordingly, we consider that any error has been waived. We find, however, no error.

It is unquestioned that the prosecution must show that the defendant had the specific intent to kill. The defendant argues that when the prosecutor spoke of the defendant “intending to accomplish the result of shooting at these people” he misled the jury because the result was mere bodily harm. We agree that intent to accomplish great bodily harm is insufficient for the offense of attempt (murder). (People v. Harris (1978), 72 Ill. 2d 16.) However, we find that the complained-of passage, when taken in context with the entire rebuttal argument, does not misstate the law. Reading the selected passages in the context of the entire closing, we do not find that the complained-of passages either obscured the standard of proof (see United States v. Vargas (7th Cir. 1978), 583 F. 2d 380) nor denied the defendant a fair trial. Specific intent to kill, a state of mind, may be inferred from circumstances surrounding the defendant’s acts, including the use of a deadly weapon. (People v. Jones (1977), 55 Ill. App. 3d 446.) It is reasonable to infer that the firing of a deadly weapon at another human being constitutes a substantial step toward the commission of murder. (People v. Seats (1979), 68 Ill. App. 3d 889.) Furthermore, we find the jury instructions used, to which no objection has been raised, clearly informed the jury of the requisite intent elements.

Finally, the defendant claims that the trial judge erred in considering as an aggravating factor in sentencing the fact that defendant’s conduct caused serious harm to another. By definition, a person commits the crime of attempt (murder) by performing a substantial step toward the offense of murder with the specific intent to kill. (Ill. Rev. Stat. 1979, ch. 38, par. 8 — 4; People v. Harris (1978), 72 Ill. 2d 16.) The defendant argues that implicit in every attempt (murder) is the causation or threat of serious physical harm. The defendant assumes that in setting the penalty for attempt (murder) the legislature must have taken into account the fact that the offense involved harm or threat. Therefore, such factor should not be used to aggravate the length of the defendant’s sentence. We do not agree with the premise nor the conclusion.

It is well established that the proper sentence in a case must be based upon the particular circumstances of each case. (People v. Perruquet (1977), 68 Ill. 2d 149.) A number of factors are to be taken into consideration by the trial court when sentencing, and these include that “the defendant’s conduct caused or threatened serious harm.” (Ill. Rev. Stat. 1979, ch. 38, par. 1005 — 5—3.2.) Thus, the legislature has indicated clearly and unequivocally that a trial court should take such fact into account as an aggravating factor when deciding the severity of the sentence for a defendant. The commission of any offense, regardless of whether the offense itself deals with harm, can have varying degrees of harm or threatened harm. The legislature intended that this varying quantum of harm constitutes an aggravating factor. While the classification of a crime determines the sentencing range, severity of the sentence depends upon the degree of harm and as such may be considered as an aggravating factor in determining the exact length of a particular sentence. That is precisely what the trial judge did in the instant case.

For the foregoing reasons, we affirm the judgment entered in the Circuit Court of Peoria County.

Affirmed.

SCOTT, P. J., concurs.

Mr. JUSTICE STOUDER,

dissenting:

I respectfully disagree with the conclusion reached by my colleagues on the issue of whether certain comments made by the prosecutor during closing arguments deprived the defendant of a fair trial. It is my opinion that the comments made relating to the veracity of the defendant and his witnesses were improper and highly prejudicial and, therefore, constituted reversible error.

Comments by prosecutors that a defendant or defense witness is either lying or committing perjury have been consistently condemned as highly improper (People v. Baptist (1979), 76 Ill. 2d 19, 389 N.E.2d 1200; People v. Valdery (1978), 65 Ill. App. 3d 375, 381 N.E.2d 1217) unless such comments are founded on the evidence. (People v. Cole (1980), 80 Ill. App. 3d 1105, 400 N.E.2d 931.) If, however, the comments are found to be improper, théy will not constitute reversible error unless they result in substantial prejudice to the defendant. People v. Baptist (1979), 76 Ill. 2d 19, 389 N.E.2d 1200.

In addition, a statement by a prosecutor that in order to believe the defendant and his witnesses, all of the State’s witnesses must be disbelieved, distorts the burden of proof and can constitute plain error. United States v. Vargas (7th Cir. 1978), 583 F.2d 380; People v. Cole (1980), 80 Ill. App. 3d 1105, 400 N.E.2d 931.

In the case at hand, the prosecutor not only labeled the defendant and his witnesses liars and perjurers, but he stated, in effect, that the jury would have to disbelieve all of the State’s witnesses in order to believe the defendant.

The issue of credibility was a major factor in the defendant’s case. Both defenses of intoxication and self defense were premised upon the credibility of the defendant and his witnesses. There was no evidence of perjury. The jury could have believed that the opinions of the State’s witnesses as to the defendant’s sobriety were sincerely given and yet concluded the defendant was truly intoxicated.

Liberal comments and even exaggeration about the evidence are permissible during final arguments. However, the substitution of inflammatory rhetoric for fair comment is impermissible. An overzealous prosecutor can exceed the bounds of proper commentary on the evidence and so prejudice the defendant’s rights that no further objection or ruling can remove the taint. Under these circumstances the waiver rule can hardly be applicable, and the prejudicial remarks made during final arguments would constitute plain error.

I would conclude in this case that the prosecutor’s comments on the veracity of the defendant and his witnesses were improper, prejudicial and substantially impaired the defendant’s right to a fair trial. The judgment should, therefore, be reversed, and the case should be remanded for a new trial.


text:
    JEFFREY STEPHENSON, Plaintiff-Appellant, v. DREIS & KRUMP MANUFACTURING COMPANY, Defendant-Appellee.
    Third District
    No. 81-92
    Opinion filed November 12, 1981.

      James Canfield, of The Canfield Law Offices, of Rockford, for appellant.
    Robert J. Noe, of Bozeman, Neighbour, Patton & Noe, of Moline, for appellee.
   Mr. PRESIDING JUSTICE SCOTT

delivered the opinion of the court:

Jeffrey Stephenson, the plaintiff, was employed at Drive’s, Inc., as a press operator. He was injured while operating a press manufactured by Dreis & Krump Manufacturing Company on August 9, 1977, his second day on the job.

Prior to obtaining this employment, the plaintiff had worked on a press at another plant for approximately 4-5 months. Upon being hired by Drive’s, Stephenson was furnished a booklet of safety material including instructions specifically directed to press operators. There was a section in the material spelling out the steps an operator was to take when clearing an obstruction in the machine.

The plaintiff testified that he had read the safety material and understood it prior to reporting for work. He also received on-the-job training and instruction from Larry Bell, operator of the press in question, and Robert Banse, group leader.

Among the instructions given to the plaintiff was the procedure to be followed when clearing the press or when a portion of the operator’s body was to be placed under the ram, to-wit:

1. Depress stop button for motor.
2. Stop flywheel with brake or wait for it to stop.
3. Depress safety switch on right side.
4. Pull interlocked safety block from plug.
5. Insert safety block under ram.
6. Open safety gate.
7. Use clearing tools.

The plaintiff admitted that he was aware of the danger in placing a portion of his body under the ram without taking these precautions but voluntarily proceeded to put his arm in the machine while attempting to clear it, even though he had not depressed the stop button for the motor, stopped the flywheel or waited for it to stop or used the safety block.

The ram descended on the plaintiff’s right arm resulting in the injury (amputation) giving rise to an action for personal injury based upon strict tort products liability. There was testimony that this could have occurred only if the plaintiff had his foot on the foot switch and that he also came into contact with the switch on the safety gate when reaching into the machine.

There was no malfunction in the press when it was checked after the incident, and it has been used every day since without problem.

The straight side press was multifunctional and was manufactured without a point of operation.

After its arrival at the plant the press was wired by Drive’s personnel and an automatic side feeding mechanism was added. In later years additional safety devices were added including an electrically interlocked safety block, a safety gate or barrier guard which was also electrically interlocked and a block upon which the foot switch was mounted to lessen the possibility of it being inadvertently depressed.

At trial, Stanley Sedivy of Safety and Forensic Engineering, Chicago, Illinois, testified on behalf of the plaintiff. He said the press was unreasonably dangerous because of the nature of the stop button and clutch control circuitry. This was a theory developed after he had issued his initial report. He also cited the point of operation protection.

On the other hand, Donald Wandling, a consulting engineer from Ames, Iowa, testified on behalf of the defendant. He was of the opinion that the press was not unreasonably dangerous because it complied with industry and American National Standards Institute (ANSI) standards which were in effect on the date of the incident. Mr. Wandling further stated that the point of operation protection which had been provided on the press was adequate. This testimony was buttressed by the opinion of Emmet McCarthy, vice president of Dreis & Krump.

The jury returned a verdict in favor of the defendant, and this appeal followed.

The appellant contends on appeal that the verdict is against the manifest weight of the evidence; that the trial court erred in allowing defense counsel to reopen its case to permit certain statements in plaintiff’s discovery deposition to be read to the jury; that the trial court erred in allowing defendant’s affirmative defense of assumption of the risk to go to the jury and alternatively, if no error occurred in allowing the jury to consider the defense of assumption of the risk, in failing to give plaintiff’s tendered instruction regarding this affirmative defense.

Our review of the evidence and the issues raised on appeal leads us to conclude that the evidence presented contains ample support for the verdict of the jury.

Questions of fact are to be resolved by the jury, and the jury determination is not to be disturbed on appeal unless it is clearly and palpably against the manifest weight of the evidence.

It is basic to our system that fact questions are to be decided by the jury. (Belmar Drive-In Theatre Co. v. Illinois State Toll Highway Com. (1966), 34 Ill. 2d 544, 216 N.E.2d 788.) The jury verdict should not be disturbed on appeal unless it is clearly and palpably contrary to the manifest weight of the evidence. Ostendorf v. Brewer (1977), 51 Ill. App. 3d 1009, 367 N.E.2d 214.

A fact question was presented by conflicting expert testimony concerning whether or not the press, as it left the control of the defendant, was or was not defective and unreasonably dangerous. Further, there was evidence in the record upon which the jury could conclude the plaintiff was not operating the machine in a reasonably foreseeable manner.

Pursuant to the theory contained in the plaintiff’s complaint, the plaintiff attacked the press as being unreasonably dangerous by virtue of the fact that it contained separate electrical circuits for the clutch and the motor and because it lacked adequate point of operation protection. The record contains extensive expert testimony on these points and detailed description of the safety appliances on the machine at the time of the incident.

The jury heard all of this evidence, some of which was conflicting, and had a basis for concluding that the press was not defective or unreasonably dangerous and/or that the plaintiff was not operating it in a manner reasonably foreseeable by the defendant.

Mr. Wandling and Mr. McCarthy, both of whom had inspected the press and were familiar with applicable industry standards, testified that the press was wired in a manner consistent with the state of the art in 1959, the year of manufacture, and that there was nothing defective or unreasonably defective about the way it was wired. They further testified that a multifunctional machine, such as the one in question, does not have a point of operation when it leaves the control of the manufacturer; this depends on the use to which the press is put by the owner. Accordingly, the furnishing of point of operation protection is commonly performed by the user. This was done in the present case with the addition of two electrically interlocked devices — the safety block and the safety gate (barrier guard). Of course, once a safety device is attached to the machine by the employer, even if an unreasonably dangerous condition existed when the machine left the control of the manufacturer, it was fully corrected and thus nonactionable. (Rios v. Niagara Machine & Tool Works (1974), 59 Ill. 2d 79, 319 N.E.2d 232; Flores v. U.S. Industries, Inc. (1980), 81 Ill. App. 3d 944, 401 N.E.2d 979.) The defendant presented expert testimony that such devices afforded reasonable protection for operators.

While the plaintiff produced some contrary expert testimony by Mr, Sedivy, at best it can be said this created a fact question which was resolved by the jury. It should be noted that Mr. Wandling testified that none of the point of operation devices suggested by the plaintiff’s expert would have been feasible as this machine was being used.

In addition, there was nothing presented to refute the testimony of Mr. McCarthy for the defendant that a press manufacturer anticipates the operator will follow proper procedure and use available safety equipment. It was undisputed that the plaintiff did not follow the procedures established by his employer or use the safety equipment which was provided. Thus there is ample support for a jury determination that the plaintiff failed to sustain the burden of proving that the product was being used in a reasonably foreseeable manner. Williams v. Brown Manufacturing Co. (1970), 45 Ill. 2d 418, 261 N.E.2d 305; Winnett v. Winnett (1974), 57 Ill. 2d 7, 310 N.E.2d 1.

The contention of the plaintiff that the verdict is contrary to the manifest weight of the evidence is without merit.

We note that with respect to appellant’s second issue presented for review, one of the purposes for which discovery deposition testimony may be used at trial is being read into evidence as an admission. The trial court has discretion in deciding whether or not to allow a party to reopen its case.

The plaintiff contends that the trial court erred in allowing the defendant leave to reopen its case for the purpose of reading into evidence a portion of the Stephenson deposition as an admission. This pertained to the prior experience of the plaintiff as a press operator.

The decision of the trial judge to allow the case to be reopened is clearly discretionary. (Continental Illinois National Bank & Trust Co. v. Village of Park Forest (1972), 4 Ill. App. 3d 811, 282 N.E.2d 167.) In fact, the plaintiff also was allowed to reopen his case. It is argued, however, that the material read to the jury is irrelevant because of alleged differences in the two presses and that the material should not have been used both for impeachment purposes and as an admission.

An admission is an out-of-court statement made by a party which is admissible in evidence against that party. (Card, Illinois Evidence Manual R. 15:01 (2d ed. 1979).) Certainly the sworn testimony of the plaintiff concerning his prior experience in the operation of presses is relevant in a case where the state of his knowledge is in issue and the material read into evidence fits the textbook definition.

If there were differences in the presses it was proper for the plaintiff to explain this fact, and he did so. (Hudson v. Augustine’s, Inc. (1966), 72 Ill. App. 2d 225, 218 N.E.2d 510.) However, this testimony goes to the weight, not the admissibility of the admission. Haskell v. Siegmund (1960), 28 Ill. App. 2d 1,170 N.E.2d 393.

As to the argument that the deposition should not have been read as an admission after having been used for impeachment purposes, it should be noted that only a portion of the material was used when impeaching the plaintiff and that Supreme Court Rule 212 permits a discovery deposition to be used for both impeachment and as an admission. (Ill. Rev. Stat. 1977, ch. 110A, par. 212.) There is no prohibition against using the same deposition for both purposes where appropriate.

We believe that no reversible error was committed in allowing the defendant to reopen its case and read the admission into evidence.

We further believe that the trial court was correct in denying the motion for directed verdict filed by the plaintiff concerning the issue of assumption of risk.

The issue of assumption of risk was interjected in the case upon the filing of an answer containing this affirmative defense on January 3,1978. The plaintiff at no time moved to strike this defense, even though an answer to affirmative defenses was not filed until approximately one month prior to trial, on November 6,1980. Substantial discovery had been completed by that date. However, at trial, upon the conclusion of all evidence the plaintiff moved for a directed verdict on the issue of assumption of risk. The trial court was thus required to apply the well-known Pedrick rule:

“In our judgment verdicts ought to be directed and judgments n.o.v. entered only in those cases in which all of the evidence, when viewed in its aspect most favorable to the opponent, so overwhelmingly favors movant that no contrary verdict based on that evidence could ever stand.” Pedrick v. Peoria & Eastern R.R. Co. (1967), 37 Ill. 2d 494, 510, 229 N.E.2d 504, 513-14.

The record in this case not only supports the decision of the trial judge in denying the motion for directed verdict, but also provides a basis for supporting the ultimate jury verdict in favor of the defendant.

An individual assumes a risk when that person recognizes and understands the dangerous condition of a product and yet voluntarily proceeds to use the product in disregard of this known danger. Assumption of risk is a well-recognized defense in the field of products liability law. Liberty Mutual Insurance Co. v. Williams Machine & Tool Co. (1975), 62 Ill. 2d 77, 338 N.E.2d 857; Restatement (Second) of Torts §402A, comment n (1965).

In Ralston v. Illinois Power Company (1973), 13 Ill. App. 3d 95, 98, 299 N.E.2d 497, 499, the court pointed out:

“Essentially, an individual assumes a risk when that person recognizes and understands the dangerous condition of a product and yet voluntarily and unreasonably proceeds to use the product ‘in disregard of this known danger.’ (Sweeney v. Matthews & Co., 46 Ill. 2d 64, 66, 264 N.E.2d 170, 171.) In other words, the party expressly or implicitly consents to taking his chances of harm from a particular risk known to him and created by a manufacturer. Denton v. Bachtold Bros., Inc., 8 Ill. App. 3d 1038, 291 N.E.2d 229.”

It should be noted that in all these cases the courts held the plaintiff barred by virtue of assumed risk as a matter of law. Accordingly, in the present case there is ample support for a jury verdict in favor of the defendant.

Finally, the plaintiff argues that the giving of defendant’s tendered instruction which defined assumption of the risk constitutes reversible error. This was the burden of proof instruction.

The record reveals that initially each of the parties tendered a burden of proof instruction. The plaintiff’s instruction failed to state that the plaintiff must show that the press was being operated in a manner reasonably foreseeable by the manufacturer and did not include reference to the second affirmative defense (failure to mitigate damages). This instruction was refused because it was incomplete. The plaintiff stated certain objections to defendant’s instruction, none of which are now being asserted. Defendant’s initial instruction was refused, and an amended instruction was tendered by the defendant which eliminated all portions of the former instruction to which objection had been voiced. The plaintiff made no further objection to the instruction and tendered no further instruction pertaining to the burden of proof.

The purpose of the conference on instructions is to give counsel an opportunity to object to any proposed instruction. (Smelcer v. Sanders (1963), 39 Ill. App. 2d 164, 188 N.E.2d 391; Johnston v. Basic (1973), 16 Ill. App. 3d 453, 306 N.E.2d 610.) Given such an opportunity, a party cannot allow the jury to receive an instruction without specific objection and then for the first time in a post-trial motion or an appeal claim that error was committed. (Lewis v. Hull House Association (1975), 25 Ill. App. 3d 617, 323 N.E.2d 600.) This is what the plaintiff is attempting to do in this case, since the objection was made for the first time in the post-trial motion. The point has been waived.

For the foregoing reasons, the judgment of the Circuit Court of Whiteside County is affirmed.

Affirmed.

BARRY and ALLOY, JJ., concur.


author: Mr. JUSTICE ALLOY

text:
    JERALD DAVIS, a/k/a Jerry Davis, Plaintiff-Appellee, v. WILLIAM BUCHHOLZ, et al., Defendants-Appellants.
    Third District
    No. 81-169
    Opinion filed November 12, 1981.

      Thomas W. Dye, of Macomb, for appellants.
    Bisbee & Nagan, of Macomb, for appellee.
   Mr. JUSTICE ALLOY

delivered the opinion of the court:

Defendants William Buchholz and William Heap appeal from the judgment of the Circuit Court of McDonough County in favor of plaintiff Jerald Davis. Davis had brought suit against Buchholz and Heap for recovery on three promissory notes given by them to him in 1975 in connection with a business arrangement. The court, after a bench trial, granted recovery on the notes. On appeal, the defendants argue the court erred in excluding certain evidence concerning the intentions of the parties as related to the validity of the notes and concerning plaintiff’s performance under the agreement between the parties.

Plaintiff Davis’ complaint alleged that during 1974 and 1975 he had performed for defendants various management services in connection with rental apartments owned by defendants in Macomb. The complaint alleged further that three promissory notes (attached to the complaint) were paid “in compensation for portions of said management services.” The demand notes, all executed in 1975, totaled $3,555.25, being 10% of the total rental receipts for specified periods of time during which plaintiff managed the apartments. The complaint alleged that the notes were due and payable, demand having been made, and it requested judgment for the value of the notes, plus interest and attorneys fees. The notes are demand notes executed by both defendants in favor of plaintiff Davis.

In pertinent part of the defendants’ answer, they admitted they employed plaintiff as a manager for certain rental apartments. They also asserted, by way of admission, that their agreement with him was that he would receive 10% of the rentals received from the apartments when the business was on a profit-making basis. They denied, however, that plaintiff performed substantial management services. They admitted that the notes were executed and delivered, alleging, however, that such was done with the understanding that they would be valid and payable only when the rental business at the apartments was on a profit-making basis.

At trial, plaintiff’s counsel called defendant Heap, under section 60, and through him established that plaintiff Davis was hired by defendants in September 1974 to serve as manager of the apartments. Heap also testified that he signed the notes, the principals of which represented 10% of rental moneys received on the apartments, during various periods when Davis managed the apartments. He admitted that no payments had been made on the notes, despite demands. Plaintiff then rested his case.

Defendants then recalled Heap, as their first witness for the defense. After establishing that he and Buchholz had owned the apartments, defense counsel sought to inquire into the substance of conversations between plaintiff and defendants which occurred on or about September 1, 1974. This was the date on which defendants had first hired plaintiff Davis as manager for the apartments in question.

Plaintiff’s counsel then interposed an objection based upon the parol evidence rule. He argued that defense counsel was seeking to inquire into matters occurring prior to the execution of the notes for the purpose of changing or contradicting the written notes and that such evidence was inadmissible. In the ensuing colloquy, defense counsel argued that plaintiff’s complaint alleged the existence of the prior oral agreement under which the notes had been executed. He argued that the underlying basis for the action was the oral agreement, the existence of which was admitted by the plaintiff. Defense counsel further argued that the evidence would not alter or vary the terms of the notes, but that it would show that they were intended by the parties to take effect only upon compliance with certain conditions not stated in the contract. In essence, counsel stated that he wished to show conditional delivery of the notes. The trial court sustained plaintiff’s parol evidence objection to the evidence, relying upon an apparently applicable section in Hunter’s Trial Handbook.

Defense counsel was permitted to make his offer of proof. In the offer of proof, Heap testified that under the oral agreement plaintiff’s compensation was conditioned upon the business making a profit. He testified that the notes were part of the accounting procedure, to keep track of how much would be owing after the five-year term of the agreement was concluded. He further testified that the business did not make a profit.

After the offer of proof concerning the conditional nature of the delivery of the notes, defense counsel (back on the record) inquired of Heap concerning plaintiff Davis’ performance under the management contract. Objection was made to any inquiry into plaintiff’s performance, counsel arguing that no allegation of breach of the contract was set forth in the defense answer. Defense counsel rejoined that he was merely trying to show a failure of consideration under the agreement, and that while not expressly stated, such contention was implied in their answer. The court sustained the objection, and another offer of proof was made. In it, Heap presented testimony that Davis’ management services were unsatisfactory and that the apartments he managed did not make a profit. The defense also called William Buchholz, the other defendant, as part of the offer of proof. Buchholz testified that if asked the same questions as Heap, he would respond in substantially the same way. At the conclusion of the evidence, the court indicated that it would enter judgment on each of the three notes in favor of plaintiff. Judgment was thereafter entered in the amount of $6,175.51, which included the face amounts on the notes, with specified interest and attorneys fees. From that judgment the defendants appeal. They raise issues as to the propriety of excluding defense evidence (1) on the conditional nature of the notes and (2) on plaintiff’s performance of his duties as manager. We reverse and remand.

The parol evidence rule, in general, operates to exclude evidence which would change or alter the expressed meaning of a written document, when such evidence concerns dealings between the parties before or at the time of making the written contract. It is applied to bills and notes, as well. (Scholbe v. Schuchardt (1920), 292 Ill. 529, 534, 127 N.E. 169.) There are a number of exceptions to the rule, however. The foremost exception is where parol evidence is offered to explain or supplement the ambiguous meaning of the written contract. (Scholbe v. Schuchardt (1920), 292 Ill. 529, 534; Althoff Industries, Inc. v. Elgin Medical Center, Inc. (1981), 95 Ill. App. 3d 517, 520-21, 420 N.E.2d 800; 12 Am. Jur. 2d Bills and Notes §1241 (1964).) Another recognized exception to application of the parol evidence rule, and the one applicable here, is that of conditional delivery. As we stated in Haas v. Cohen (1973), 10 Ill. App. 3d 896, 898-99, 295 N.E.2d 28:

“Ordinarily, parol evidence is not admissible to vary, alter or contradict the terms of a written contract, which also would include a situation where a condition which is not provided for in the contract is imposed by parol. [Citation.] If, however, parol evidence is offered to show that a contract was intended to take effect only upon compliance with a certain condition it is admissible. [Citation.]”

(See also Althoff Industries, Inc. v. Elgin Medical Center, Inc. (1981), 95 Ill. App. 3d 517, 521-22; Passanante v. Callier (1978), 61 Ill. App. 3d 360, 363-64, 377 N.E.2d 1304; 12 Am. Jur. 2d Bills & Notes §1248 (1964); Ill. Ann. Stat., ch. 26, par. 3 — 119, Code Comments, at 84-86 (Smith-Hurd 1963).) The condition alleged must be to the formation of the contract, and not merely to payment or performance. (95 Ill. App. 3d 517, 522.) As clearly stated in 12 Am. Jur. 2d Bills and Notes §1248 (1964):

“If the condition of the delivery is a condition precedent to the going into effect of the writing as a valid instrument, then parol evidence is admissible to show such condition; and delivery is upon a condition precedent if the parties agree that the contract shall not be a binding obligation until some event occurs. To render parol evidence admissible, the condition precedent must be a condition precedent to the contract’s becoming a valid obligation and not merely precedent to its payment.”

In the instant case the answer of the defendants essentially stated that execution and delivery of the promissory notes was conditional, the condition being that the apartments made a profit. While the answer is somewhat ambiguous on the issue, the evidence advanced in the offer of proof indicated that the delivery of the notes and their validity as binding obligations were conditional upon the business making a profit. Plaintiff argues that only conditional payment is shown in the evidence, and, therefore, parol evidence was properly excluded. However, the thrust of defense counsel’s argument during trial and the substance of the evidence in the offer of proof was to the effect that the entire obligation, not merely payment, was conditioned upon the business showing a profit. We hold that the defendants should have been permitted to present their parol evidence concerning the conditional nature of their execution and delivery of the promissory notes. The court erred in excluding that testimony.

The next issue raised concerns the defense testimony with respect to the adequacy of the plaintiff’s performance of his management duties. The court refused to permit defense counsel to inquire into this area. The testimony in the defense offer of proof was to the effect that plaintiff had not properly performed his management duties and also that the business had not made a profit during his tenure as manager. The plaintiff alleges that such evidence was properly excluded as going beyond the issues framed by the pleadings. We note, initially, that the plaintiff alleged in his complaint that he had performed certain management services for the defendant and also that the notes were compensation for those services. The defendants denied the allegation of performance in their answer. An issue as to performance was thereby joined. Plaintiff Davis had affirmatively alleged that his performance of management services was consideration given for the promissory notes. While there is a presumption that consideration was given for validly executed negotiable instruments (Gustafson v. Lindquist (1976), 40 Ill. App. 3d 152, 155, 351 N.E.2d 280), the presumption is rebuttable, though evidence to rebut must be of a very clear and cogent nature (H. Watson Development Co. v. Bank & Trust Co. (1978), 58 Ill. App. 3d 423, 374 N.E.2d 767). Furthermore, failure of consideration may be shown by parol evidence. (Houck v. Martin (1980), 82 Ill. App. 3d 205, 211, 402 N.E.2d 421.) Clearly, evidence indicating a lack of consideration was admissible, despite the parol evidence rule, if that issue was properly in dispute.

The plaintiff argues that the issue was beyond the pleadings. However, as noted, plaintiff alleged performance of management services as consideration, and defendants, in their answer, denied that allegation. It is true that the defense did not expressly raise a defense of failure of consideration in their answer. However, the denial of plaintiff’s allegation on the question sufficiently raised the issue (Horst v. Morand Brothers Beverage Co. (1968), 96 Ill. App. 2d 68, 80, 237 N.E.2d 732), and the plaintiff should not have been surprised when the defense wished to offer evidence on the question. The plaintiff, having alleged the prior oral agreement, under which the notes were intended as consideration for management services, and having in the complaint alleged performance of the services (which was denied in the answer), cannot legitimately object to defense testimony concerning those matters. The issue was brought forth by plaintiff initially. We find, under the circumstances, that the - court erred in excluding the evidence with regard to plaintiff’s performance of the management services.

The judgment of the Circuit Court of McDonough County is reversed and cause remanded. Since credibility questions will ultimately decide this lawsuit, we make no determination on the cause based upon the record before us. The case is remanded for retrial in the circuit court, such trial to proceed in accordance with the views expressed in this opinion as to the issues in this case.

Reversed and remanded for retrial in accordance with views expressed in this opinion.

SCOTT, P. J., and HEIPLE, J., concur.


author: Mr. JUSTICE MEJDA

text:
    NICK HAREAS, Plaintiff-Appellee, v. BILL G. KYRIAKOPOULOS et al., Defendants-Appellants.
    First District (5th Division)
    No. 80-2424
    Opinion filed August 14, 1981.
    — Rehearing denied November 19, 1981.

      Axelrood, Axelrood & Axelrood, of Chicago (Seymour C. Axelrood and Paul Ben Axelrood, of counsel), for appellants.
    Fisch, Lansky & Greenberg, of Chicago, for appellee.
   Mr. JUSTICE MEJDA

delivered the opinion of the court:

Plaintiff (lessor) brought an action for forcible entry and detainer of commercial property pursuant to “An Act in regard to forcible entry and detainer” (Ill. Rev. Stat. 1979, ch. 57, par. 1 et seq.) against defendants (lessees) for nonpayment of rent. Following a bench trial the court entered judgment for possession in favor of the plaintiff. The execution was stayed pending defendants’ appeal of the trial court’s order.

The issues presented for review are: (1) whether the trial court erred in finding that plaintiff was entitled to possession; and (2) whether the alleged equitable defense asserted by defendants was applicable. The following facts are undisputed.

Defendants have owned and operated a restaurant business located at 48 North Wells Street, Chicago, since April 26, 1968, which they have occupied pursuant to a written lease. The lease waives notice and will expire December 31,1982. Defendants testified that over the last 21* years they have made approximately $17,000 in improvements to the property.

Plaintiff purchased the building in 1978. At trial, he testified that he did not receive the August rent check on August 1,1980; that when he had not received it by August 7, he instructed his lawyer to file an action seeking possession of the premises. A complaint was filed on August 7, 1980. No answer nor counterclaim of defendants is included in the record.

Plaintiff further testified that on August 12 he received a check in the mail from the defendants but that the check was dated August 30, 1980. Plaintiff identified an envelope postmarked August 12 as that in which the check arrived.

Tom Kyriakopoulos, called by defendants, identified the check as the one he sent but denied that the envelope bearing the August 12 postmark was the one in which the check was sent. He claimed the writing on the envelope was not his. He further testified that he made out a check for the August rent on July 30,1980, in the amount of $1000 inadvertently dating the check 8/30/80, rather than 7/30/80. He testified that he mailed the check on July 30,1980, properly addressed and stamped to the plaintiff at plaintiff’s address, 80 East Randolph Street, Chicago. Kyriakopoulos testified that he discovered the error four or five days later but did not mail plaintiff another check.

Kyriakopoulos produced his checkbook from his restaurant. Upon inspection of the check register the court noted for the record that the check in question, No. 587, was preceded by No. 586, a voided check also made out to plaintiff, and check No. 585, which bore the date July 28.

The court concluded that the check register belied that Kyriakopoulos made a mistake in postdating the check but rather did so intentionally. The check register was never entered into evidence and thus is not part of the record.

The court then found for plaintiff after considering all of the testimony and evidence presented.

Opinion

Both defendants and plaintiff agree that intent is not an element mentioned in the forcible entry and detainer act and therefore need not be proved to establish such an action. Defendants assert, however, that since the court considered intent when ruling it should also have “implied” that defendants’ payment was not intentionally late but was the result of a mistake. Plaintiff counters that if intent is an unnecessary element to be proved, mistake is an irrelevant defense. Further, that even if relevant the court found that the postdating of the check in question was not a mistake, but an intentional act.

The purpose of the forcible entry and detainer act is to provide a “summary statutory proceeding to adjudicate rights to possession * 6 ° unhampered and unimpeded by questions of title and other collateral matters not directly connected with the question of possession.” (Bleck v. Cosgrove (1961), 32 Ill. App. 2d 267, 177 N.E.2d 647.) Furthermore, in those cases where the right to possession is asserted solely by reason of nonpayment of rent, whether rent is due and owing is the crucial and decisive issue for determination. Jack Spring, Inc. v. Little (1972), 50 Ill. 2d 351, 280 N.E.2d 208.

In the instant case plaintiff asserted his right to possession by reason of defendants’ failure to pay the rent due August 1 in accordance with the terms of the lease. Although the evidence was contradicted as to when the August check was received, in that Tom Kyriakopoulos denied that the envelope postmarked August 12 received by plaintiff bore his handwriting, there was no dispute that the check received by plaintiff was postdated August 30, 1980. Therefore, the check was not payable until that date. (Ill. Rev. Stat. 1979, eh. 26, par. 3 — 114(2).) Clearly, the receipt of a check which is not payable until August 30, 1980, could not be considered timely payment of a rental due August 1,1980. Therefore, the “crucial decisive issue” — whether rent is due and owing — can in the instant case be only answered in the affirmative. The question of intent is beyond the scope of inquiry under the facts of this case and therefore need not be considered. Accordingly, plaintiff’s right to possession was established.

However, defendants assert as an equitable defense that it would be a gross injustice to force them to cease operation of their business “due to no fault on their part” considering the 12 years they have been in operation and the substantial material improvements at great financial cost they have made to the leased premises.

A defendant may under a general denial of the allegation of the complaint give into evidence any matter in defense of an action. However, no matter not germane to the purpose of the proceeding shall be introduced by way of joinder, counterclaim or otherwise. (Ill. Rev. Stat. 1979, ch. 57, par. 5.) Thus, equitable defenses germane to the purpose of the proceeding may be raised. (Jack Spring, Inc. v. Little (1972), 50 Ill. 2d 351, 280 N.E.2d 208; Rosewood Corp. v. Fisher (1970), 46 Ill. 2d 249, 263 N.E.2d 833.) The Illinois Supreme Court has stated that “ ‘[g]ermane’ has been judicially defined as meaning ‘closely allied,’ and is further defined [citation] as meaning: ‘closely related; closely connected; relevant; pertinent; appropriate.’ ” 46 Ill. 2d 249, 256, 263 N.E.2d 833, 838.

In the instant case whether rent was due and owing is the crucial and decisive issue. The length of time defendants have operated their business is not germane to a resolution of the issue. The funds defendants expended in improving the leased premises might be germane if the rental payment due and owing plaintiff was to be satisfied by such expenditure. However, defendants did not assert this allegation by way of answer, counterclaim or in any other manner. Therefore, the mere expenditure of these funds in and of itself is not “closely allied,” “relevant” or “pertinent” to the issue of whether the August rental was due and owing plaintiff. Accordingly, such expenditure was not a germane equitable defense to plaintiff’s action. See Joppa High School District No. 21 v. Jones (1976), 35 Ill. App. 3d 323, 341 N.E.2d 419.

For the reasons cited herein, the judgment of the trial court is affirmed.

Affirmed.

SULLIVAN, P. J„ and WILSON, J., concur.