author: PRESIDING JUSTICE DOWNING

text:
      In re MARRIAGE OF NANCY ZANNIS, Petitioner-Appellee, and ANTHONY ZANNIS, Respondent-Appellant.
    First District (2nd Division)
    No. 82—1457
    Opinion filed May 17, 1983.

      Schiller, Du Canto and Fleck, Ltd., and Nicholas Zagone, both of Chicago (Donald C. Schiller and Terry J. Finman, of counsel), for appellant.
    Feiwell, Galper & Lasky, Ltd., of Chicago (George S. Feiwell, Michael J. Berger, Lawrence S. Starkopf, and Andrew D. Eichner, of counsel), for appellee.
   PRESIDING JUSTICE DOWNING

delivered the opinion of the court:

In this dissolution of marriage action, respondent Anthony Zannis appeals from the denial of his petition for substitution of judges (Ill. Rev. Stat. 1981, ch. 110, par. 501), and from the award of temporary attorney fees to petitioner Nancy Zannis’ attorney and also to the minor child’s representative. Ill. Rev. Stat. 1981, ch. 40, pars. 506, 508.

The issues presented on appeal are: whether the pretrial denial of the petition for change of venue was improper, therefore making the subsequent orders of attorney fees null and void; and, whether the award of attorney fees to petitioner’s attorney and to the minor’s representative was an abuse of the trial court’s discretion.

On December 19, 1980, petitioner filed a petition for dissolution of marriage which alleged extreme and repeated mental cruelty on the part of respondent. During 1981, several rulings were made in regards to various motions filed by the parties, including: an award to petitioner of $2,000 a month for temporary maintenance and child support; a denial of petitioner’s request for temporary exclusive possession of the marital home; resolutions of numerous discovery conflicts; and a demand for a bill of particulars regarding the grounds for dissolution.

Petitioner filed her first petition for temporary attorney fees on September 21, 1981. The minor child’s representative filed his first petition for attorney fees and an order was entered on November 17, 1981, requiring both respondent and petitioner to pay the sum of $2,500 in fees from the couple’s joint funds to the child’s representative.

On January 12, 1982, petitioner filed an amended petition for attorney fees and eight days later, before any hearing on the fees, respondent filed a petition for substitution of judges. Respondent claimed that the motion judge in the Domestic Relations Division of the County Department of the Circuit Court was prejudiced against him, that he could not expect a fair trial by him, and that said prejudice first came to his knowledge on January 18, 1982. The motion judge denied the petition, and respondent filed a notice of appeal of the order on January 27.

Two days later, a hearing was held on the issue of attorney fees and respondent’s attorney refused to participate, saying that because of his appeal of the denial of a change of venue, the court had lost its jurisdiction to hear the matter. The motion judge responded by stating that a denial of a change of venue is not an appealable order, therefore, the court retained jurisdiction and the hearing would proceed. Petitioner’s attorneys testified as to the accuracy of the figures contained in the petition for attorney fees for services rendered and respondent’s attorney refused to cross-examine them. The trial court calculated that the fees and costs incurred by the law firm to that date totaled $14,166 and with the deduction of the $3,500 retainer paid by petitioner in December of 1980, the firm was due the sum of $10,616. Respondent was therefore ordered to pay that sum. The trial judge refused to specify the source of the funds, saying that the trial court would consider it in the ultimate disposition. Upon petitioner’s request, the award was reduced to a judgment on February 9, 1982.

The minor child’s representative filed a motion for a money judgment for the award of attorney fees previously granted him, which was allowed and entered on February 11, 1982. The source of the funds was also unspecified. Respondent appeals from the entry of the two orders for attorney fees.

I

Respondent acknowledges that a denial of a change of venue is not an appealable order (Stark v. Roussey & Associates, Inc. (1970), 131 Ill. App. 2d 379, 382, 266 N.E.2d 439), but argues that the orders entered after the improper denial of the petition should be declared null and void (Anderson v. City of Wheaton (1975), 25 Ill. App. 3d 100, 105, 323 N.E.2d 129). Respondent urges that in this case, the trial court erred in not granting his petition for substitution of judges, filed on January 20, 1982, and that the improper denial of this motion makes the subsequent orders of attorney fees void.

We note initially that the recently decided Illinois Supreme Court case of In re Marriage of Leopando (1983), 96 Ill. 2d 114, 120, held that “issues raised in a dissolution-of-marriage case are not separate claims and therefore not appealable under [Supreme Court] Rule 304(a).” (87 Ill. 2d R. 304(a).) Although that case concerned appellate review of an interlocutory child custody order, we feel the policy consideration of not allowing unnecessary piecemeal litigation applies in this issue. Dissolution of marriage cases present many questions and issues. Attorney fees are purely collateral to the main issue. The piecemeal appeals in dissolution cases create an unnecessary expense to the litigants and delay in the administration of justice.

However, case law at the time this appeal was taken allowed for a review of an award of temporary attorney fees before the entire dissolution was decided when, as here, the trial court expressly stated that there was “no just reason for delaying enforcement or appeal.” We therefore allow review of the issue. For that reason, we decline to exercise our authority to dismiss the appeal, but alert the bar to this development.

Section 1 of “An Act to revise the law in relation to change of venue” allows a change in venue in a civil action “(2) Where any party or his attorney fears that he will not receive a fair trial in the court in which the action is pending, because *** the judge is prejudiced against him, or his attorney ***.” (Ill. Rev. Stat. 1981, ch. 110, par. 501(2).) Section 3 provides that:

“*** A petition for change of venue shall not be granted unless it is presented before trial or hearing begins and before the judge to whom it is presented has ruled on any substantial issue in the case, provided that if any grounds for such change of venue occurs thereafter, a petition for change of venue may be presented based upon such grounds.” Ill. Rev. Stat. 1981, ch. 110, par. 503.

It is recognized that the right to a change in venue is absolute if it is filed before the judge has ruled on any substantial issue. (American State Bank v. County of Woodford (1977), 55 Ill. App. 3d 123, 128, 371 N.E.2d 232, appeal denied (1978), 71 Ill. 2d 597.) Once there has been a ruling on a substantial issue, however, the movant must state specific allegations to support the claim of prejudice and the change should be granted only in the sound discretion of the court. (Templeton v. First National Bank (1977), 47 Ill. App. 3d 443, 447, 362 N.E.2d 33, appeal denied (1977), 66 Ill. 2d 637.) The rationale for providing a mandatory right of removal before there has been a ruling on a substantial issue is that a party should not be compelled to present his case “before a judge who is prejudiced, whether actually or only by suspicion”; the correlative principle for requiring actual allegations of prejudice after a ruling on a substantial issue is that a party “may not ‘judge shop’ until he finds one in total sympathy to his cause.” American State Bank v. County of Woodford (1977), 55 Ill. App. 3d 123, 128.

In this case, respondent did not allege specific instances of prejudice by the motion judge in his petition, but argues that petitioner’s request for temporary attorney fees was a new cause of action, collateral and independent of the dissolution of marriage action. Respondent contends that because no rulings had been made on the petition for fees, he had an absolute right to a substitution of judges. He finds support for his contention that a petition for attorney fees is an independent action in the case of In re Marriage of Ligas (1982), 110 Ill. App. 3d 1, 441 N.E.2d 1277. There, the trial court had ruled on a petition for prospective attorney fees, after an appeal had been taken, to defend the appeal from the disposition of marital property upon the dissolution of the marriage. This court held that the trial court properly ruled on the fees issue since it was an independent issue that was merely collateral to the divorce proceedings. In re Marriage of Ligas (1982), 110 Ill. App. 3d 1, 8.

The ruling in Ligas was concerned only with the question of whether an award of attorney fees is collateral to issues involved in an appeal of the disposition of marital property upon the dissolution of a marriage. As stated in a case upon which Ligas primarily relies, in such an instance, the main concern is whether the ruling by the trial court “would have the effect of interfering with review of the judgment from which the appeal has been taken.” (In re Marriage of Giammerino (1981), 94 Ill. App. 3d 1058, 1061, 419 N.E.2d 598.) Therefore, the analogy that respondent is making is not appropriate.

The request for attorney fees in a dissolution action that has not yet been resolved is not an independent action and must be considered to be part of the overall divorce proceeding. By way of contrast are cases in which courts have recognized that a petition for modification of a divorce decree is to be considered a new action for purposes of the Venue Act, e.g., Rosenblum v. Murphy (1976), 42 Ill. App. 3d 1029, 356 N.E.2d 888. In those instances, the facts alleged are different from those in the divorce proceedings, and the modification action is considered a different controversy. Johnson v. Johnson (1975), 34 Ill. App. 3d 356, 365, 340 N.E.2d 68.

Because we are not persuaded that petitioner’s filing of a request for temporary attorney fees constitutes a new action, we hold that respondent did not have an absolute right to a substitution of judges, and absent specific allegations of prejudice, the trial court correctly denied the motion.

II

Respondent also argues that, assuming the petition for substitution of judges was properly denied, the award of the attorney fees was an abuse of the trial court’s discretion. Respondent, who did not contest the itemization of services rendered and petitioner’s attorneys’ testimony at the hearing on fees because he claimed the court lacked jurisdiction to hear the matter, now claims that: the itemization is inadequate because the entries entitled “court appearance” have no explanations; the entries entitled “telephone calls and conference” do not specify whom the calls and conferences were with; “case preparation” entries are not explained; there is no indication of the hourly rate for the various services performed; and the petition for fees did not show that the case involved such complex, novel or important issues that might justify a large award. Respondent also claims that petitioner failed to satisfy her burden of proving her financial inability to pay the fees and respondent’s corresponding ability to do so.

Respondent makes a similar argument in regards to the minor’s representative’s itemization of his fees. The listing does not differentiate between hourly rates to be charged for different types of services. Respondent relies on the case of In re Marriage of Brophy (1981), 96 Ill. App. 3d 1108, 421 N.E.2d 1308, appeal denied (1981), 85 Ill. 2d 563, where the court stated that “[normally fees granted in a divorce case are based on a separate hourly rate for court time and office time in recognition of the greater expertise required of the former.” (96 Ill. App. 3d 1108, 1118.) Further, respondent argues, the hourly rate which the court allowed for the attorney’s time amounted to $102 per hour, which he believes is excessive.

As respondent notes, the fact that the awards which he is disputing are for temporary fees does not lessen the burden which petitioner has in proving her case. (In re Marriage of Edelberg (1982), 105 Ill. App. 3d 407, 411, 434 N.E.2d 440.) However, an examination of the record reveals that at the hearing on fees for petitioner’s attorneys, the expertise of the attorneys was testified to; each attorney testified as to the hourly rate he charges and that each had in fact rendered the services specified; the motion judge stated that he was acquainted with the case and that the parties were “litigious people” requiring their attorneys’ frequent presence in court; respondent’s 1980 gross income as a physician was $125,000 and his 1981 gross income was approximately $135,000; and that petitioner was not employed but dependent upon the monies which respondent was ordered to pay as temporary maintenance.

A review of case law indicates that the trial court correctly considered the relevant factors in deciding whether the amount of attorney fees was reasonable. (See, e.g., In re Marriage of Thornton (1980), 89 Ill. App. 3d 1078, 1093, 412 N.E.2d 1336, appeal denied (1981), 83 Ill. 2d 575.) The amount of attorney fees awarded should be only in such an amount as will compensate for services rendered, and those services must have been reasonably required and necessary to the case. (Gasperini v. Gasperini (1978), 57 Ill. App. 3d 578, 582, 373 N.E.2d 576.) In the instant case, the trial court specifically stated that it had no evidence that any of the work done by the attorneys was not required. As to the argument that both itemizations supplied by petitioner’s attorneys and child’s representative do not specify differing hourly rates for in-court versus office time, we acknowledge that it would be preferable if the attorneys had done so. (See Donnelley v. Donnelley (1980), 80 Ill. App. 3d 597, 603, 400 N.E.2d 56.) However, the trial court determined the rates charged were reasonable and the work performed necessary; thus, we find no reason to disturb the awards of fees.

We note that it is sufficient to support an award of fees if the party seeking the fees would be stripped of her financial resources if required to pay. (Christian v. Christian (1979), 69 Ill. App. 3d 450, 458, 387 N.E.2d 1254, appeal denied (1979), 75 Ill. 2d 589.) In this case, respondent’s gross income for 1981 was $135,000 and petitioner has no income of her own. We conclude that based upon the relative financial status of each party, the trial court correctly ordered respondent to pay petitioner’s attorney fees and that the fees were not unreasonable.

For the reasons stated above, we affirm the orders of the circuit court of Cook County.

Affirmed.

STAMOS and HARTMAN, JJ, concur.

      As determined from the requests for attorney fees contained in the record, petitioner’s attorneys spent, at a maximum, 23V2 hours in court out of a total of HZVz hours billed and the child’s representative spent QVz hours in court out of 23 hours billed.


source: Caselaw Access Project

author: JUSTICE O’CONNOR

license: Public Domain

text:
    RAYMOND H. STENDER, Plaintiff-Appellant, v. NATIONAL BOULEVARD BANK OF CHICAGO et al., Defendants-Appellees.
    First District (1st Division)
    No. 82-0491
    Opinion filed May 16, 1983.

      Feiwell, Galper & Lasky, Ltd., of Chicago (George S. Feiwell, Michael A. Braun, and Bernard L. Rivkin, of counsel), for appellant.
    Kevin M. Forde, Ltd., and Richard J. Prendergast, Ltd., both of Chicago (Kevin M. Forde, Richard J. Prendergast, and Katrina Veerhusen, of counsel), for appellees.
   JUSTICE O’CONNOR

delivered the opinion of the court:

This is an appeal by plaintiff, Raymond H. Stender, from the trial court’s order granting judgment in favor of defendants and dismissing the complaint. Plaintiff sued defendants for specific performance of an alleged contract to purchase an apartment complex. Legal title to the property was held in trusts by defendant banks, National Boulevard Bank of Chicago and Pullman Bank and Trust Company, as trustees. The beneficiary of those trusts was a partnership of which the two individual defendants, D. F. Antonelli, Jr., and William G. Barr, are the general partners.

On February 9, 1981, plaintiff submitted a signed draft of a proposed contract for sale of property known as the Prentiss Creek Apartments in Downers Grove, Illinois. This proposed contract, consisting of a form contract, rider and joinder provision, was the third draft resulting from extensive telephone conversations and a previous meeting between the parties and their representatives. An addendum was also drafted by the parties.

The proposed contract was signed by plaintiff “as nominee for a trust to be formed.” A certified check for $200,000 was also tendered as earnest money. This check was provided by Walton Realty, a partnership of which plaintiff is a member. The proposed contract called for a purchase price of $15,400,000, with a closing date of April 1, 1981. At closing, a $1,400,000 down payment was to be made, with the remaining amount secured by a wrap-around mortgage. This wrap-around mortgage was to bear an interest rate of 7V4% per annum, payable monthly for 84 months. Also, three annual payments of $600,000 were to be made on the first three anniversary dates of the mortgage.

At the time of the offer, the property was encumbered by mortgages totaling $7,695,000. An agreed-upon escrowee was to receive the wrap-around mortgage payments and pay on the existing mortgages as they became due. A junior mortgage on the property, securing an indebtedness of $1,850,000, was held by Barclays/American Business Credit (successor to Aetna Business Credit, Inc.) (hereinafter referred to as Barclays). Under the terms of this mortgage, a sale or further encumbrance on the property could not be made without the prior written consent of Barclays.

During the February 9, 1981, meeting, defendant Antonelli signed the joinder, addendum and a letter of direction to the trustees. Defendant Barr signed those documents the next day in Miami, where he was on vacation. His attorney was present at the time and reviewed the documents beforehand.

On February 11, 1981, Paul Barile, a real estate broker involved in the transaction, took the proposed contract and letter of direction to the offices of each defendant bank. Neither bank, as trustee, would sign the contract because of an assignment of beneficial interest for collateral purposes to Barclays.

Attorneys for plaintiff and defendant Antonelli agreed to extend the April 1, 1981, closing date to May 1, 1981, in an attempt to gain Barclays’ approval of the proposed contract. A letter from plaintiff addressed to the banks and mailed to Antonelli’s attorney on February 17, 1981, indicated plaintiff’s willingness to the extension. This letter referred to the proposed contract as an offer and specifically referred to plaintiff’s agreement to extend the time for “acceptance of said offer.”

The parties continued their negotiating efforts to satisfy all conditions for the sale and meet the extended closing date. Through the remainder of February and March, the primary effort, however, was directed at obtaining Barclays’ consent to the transaction. Barclays had imposed numerous conditions to their approval of the deal. At a meeting early in March 1981, defendant Antonelli agreed to Barclays’ demand that two additional percentage points be paid on the loan. Another condition set forth by Barclays required an irrevocable letter of credit in the amount of the mortgage or a prohibition against foreclosure on the purchasers without first paying off the Barclays mortgage. Although most of the conditions set forth by Barclays were acceptable to defendants, this last condition was not.

A question also arose as to the status of the $200,000 earnest money. These funds were not earning any interest payable to the purchaser, as required by the proposed contract. The parties’ attorneys discussed what steps to take in this regard. Unable to agree on the type of escrow agreement for the funds, Antonelli’s attorney returned the certified check to plaintiff’s attorney.

Further negotiations to settle all the conditions of the deal failed. Defendants suggested a transfer of the property by articles of agreement so as to eliminate the need for Barclays’ consent. This suggestion was rejected by plaintiff and his counsel. A dispute existed over the disposition of a lease to an independent party (Presidential Villas, Inc.) of a portion of the apartment complex. Additionally, the parties never agreed on an engineer’s report containing cost estimates for the repair and replacement of roof areas and mechanical or structural systems in the buildings. Finally, the wrap-around mortgage was never drafted and agreed upon by the parties.

As a result, the transaction did not take place on the extended May 1, 1981, closing date. Further talks proved fruitless. In early June 1981, it was learned defendants had entered a contract to sell the Prentiss Creek Apartments to another purchaser.

On June 4, 1981, plaintiff filed his complaint seeking specific performance of the alleged contract with defendants. On February 22, 1982, trial in this matter began. During the trial, plaintiff attempted to introduce evidence pertaining to the negotiations of the parties prior to the February 9, 1981, proposed contract. The trial court sustained defendants’ objections to all evidence of events occurring before that date. Plaintiff was also barred from introducing evidence of the subsequent agreement for the sale of the property entered into between defendants and another purchaser. Plaintiff submitted an offer of proof to the court relevant to these matters.

At the close of plaintiff’s case in chief, defendants moved for judgment in their favor. The trial court entered judgment for defendants and dismissed the complaint (see Ill. Rev. Stat. 1981, ch. 110, par. 2 — 1110), finding that plaintiff was not entitled to specific performance. The court further found that plaintiff did not prove the elements needed for a binding contract to exist between the parties. The court specifically found the proposed contract “too indefinite to support either an action in equity for specific performance or at law for breach of contract and money damages.”

On appeal, plaintiff contends (1) the trial court erred in not granting specific performance; (2) error occurred in finding the contract was not binding between the parties; and (3) the trial court erred when it excluded evidence pertaining to the formation of the contract and the existence of a subsequent agreement with third parties for the sale of the property.

Prior to oral arguments in this matter, defendants filed a motion to dismiss this appeal on grounds of mootness. We took this motion with the case and address ourselves first to this question.

Defendants’ mootness argument is based on the claim that title to the Prentiss Creek Apartments has been conveyed to another purchaser. Defendants note that plaintiff’s notice of appeal was filed on March 1, 1982. A stay of the judgment pending appeal was not sought by plaintiff. Defendants argue then that the sale of the apartment complex to a third party places the property beyond the reach of plaintiff regardless of the outcome of the appeal. See 87 Ill. 2d R. 305(i); Horvath v. Loesch (1980), 87 Ill. App. 3d 615, 410 N.E.2d 154; Avondale Savings & Loan Association v. Amalgamated Trust & Savings Bank (1979), 78 Ill. App. 3d 244, 397 N.E.2d 121, appeal denied (1980), 79 Ill. 2d 625.

Plaintiff counters with two arguments. In objecting to the motion to dismiss, it is argued that Rule 305(i) is inapplicable to this case because the third-party purchaser acquired an interest in the property prior to the final judgment when it executed a contract on May 28, 1981. Secondly, plaintiff argues that his right to a determination of damages is not moot.

This is not the first time the issue of plaintiff’s remedy has arisen. In the trial court, defendants attempted to strike plaintiff’s prayer for specific performance, arguing that there was an adequate remedy at law. Plaintiff’s complaint did not alternatively seek money damages nor was it ever amended to include such a remedy. Plaintiff maintained at trial and also on appeal that the prayer for general relief allows the trial court to grant any relief to which he may be entitled, including money damages.

It has been said that the prayer for general relief “is the best prayer next to the Lord’s prayer” (see VanZanten v. VanZanten (1915), 269 Ill. 491, 497, 109 N.E. 986); but, rather than determine the question of mootness, we prefer to dispose of this appeal on the merits.

At the close of plaintiff’s case in chief, a defendant may move for a finding or judgment in his favor. (Ill. Rev. Stat. 1981, ch. 110, par. 2 — 1110.) When ruling on such a motion, the trial court must weigh all the evidence, including any favorable to the defendant, pass on the credibility of witnesses, draw reasonable inferences from the testimony, and generally consider the weight and quality of the evidence. Kokinis v. Kotrich (1980), 81 Ill. 2d 151, 407 N.E.2d 43.

A two-step analysis should be used by the trial court when ruling on a section 1110 motion. (Kokinis v. Kotrich (1980), 81 Ill. 2d 151, 154-55.) First, it must be determined whether a prima facie case has been presented. If so, the court should then weigh the evidence to determine if a prima facie case still exists. (Chicago Title & Trust Co. v. Ceco Corp. (1980), 92 Ill. App. 3d 58, 415 N.E.2d 668.) On appeal, the decision of the trial court should not be reversed unless it is contrary to the manifest weight of the evidence. Kokinis v. Kotrich (1980), 81 Ill. 2d 151, 154; City of Evanston v. Ridgeview House, Inc. (1976), 64 Ill. 2d 40, 349 N.E.2d 399.

Specific performance of a contract is not to be accorded as a matter of right, but the awarding of such relief rests in the sound discretion of the trial court, whose decision will not be upset absent an abuse of discretion, or unless his action is contrary to the manifest weight of the evidence. (Mearida v. Murphy (1982), 106 Ill. App. 3d 705, 435 N.E.2d 1352; Kukulski v. Bolda (1953), 2 Ill. 2d 11, 116 N.E.2d 384; Johnson v. Gianacakos (1934), 356 Ill. 410, 190 N.E. 691.) Specific performance will not be granted unless the terms of the contract are sufficiently certain for the court to decree with some exactness what the defendant must do. 11 Williston, Contracts sec. 1424 (3d ed. 1968).

In the case at bar, the trial court found the alleged contract was not so certain, complete and unambiguous as to permit specific performance. In making its decision, it found (1) there was no agreement on the cost of repair and maintenance; (2) the parties had not agreed on the credit to be given seller as to a portion of the complex which was leased to Presidential Villas, Inc.; and (3) the wrap-around mortgage was not negotiated, drafted and agreed upon by the parties. Implicit throughout the court’s ruling is the belief that the court would necessarily be involved in supervision of the contract if specific performance were allowed. Plaintiff contends these findings were against the manifest weight of the evidence. We disagree.

Paragraph 17 of the rider to the contract gave plaintiff, as a condition precedent to closing, the right to inspect the apartment complex with the sellers in order to determine what repairs and/or replacements were required to the roofs and mechanical or structural systems of the buildings. This study was to occur within 30 days of the contract date. The addendum drafted at the February 9, 1981, meeting provided that either party would have the right to terminate the agreement unless plaintiff agreed to pay the costs of repairs and replacement over $100,000. Also, if the parties could not agree on certain repair or replacement work, paragraph 17 provided that a third-party engineer was to resolve the dispute.

The record reveals such a mutual cost study never occurred. Plaintiff’s engineer, Robert Mustari, testified that he made several on-site inspections to determine what deferred maintenance costs would be needed for the complex over a two to five year period. Plaintiff also testified that he never gave Mustari specific instructions for his inspections. Plaintiff stated he needed to know the cost figure on deferred maintenance for a limited partnership prospectus.

Plaintiff argues that by filing suit he has waived the benefit of paragraph 17. (See National Super Markets, Inc. v. First National Bank (1979), 72 Ill. App. 3d 221, 390 N.E.2d 602.) In National Super Markets, this court noted that specific performance need not be barred where a contingency is in effect if the purchaser has, in effect, waived it. (72 Ill. App. 3d 221, 229.) The contingency in that case was for the benefit and protection of the purchaser. The case before us differs in that paragraph 17 and the addendum provision provide protection to both parties. Defendants must bear the costs of repairs and replacements up to $100,000. If the plaintiff refused to bear all excess costs, defendants had the right to terminate the agreement. The trial court’s findings in this respect are supported by the manifest weight of the evidence.

A portion of the apartment complex was leased to Presidential Villas, Inc., which rented the units to individual tenants. Defendants had the burden of settling with Presidential Villas, Inc., the various terms of that lease, particularly whether an option would be exercised. The addendum provided defendants were to bear all loss of income and increased expenses to plaintiff resulting from below market rental rates, improper notice of intent to exercise the option and decorating and cleaning costs incurred more than once a year.

The trial court cited the lack of agreement as to credit from defendants to plaintiff as too indefinite. Specifically, the court noted that a definition of “below market rates” had not been made. The record shows that no definition of this term was agreed to by the parties.

The rider to the contract contemplated the purchase price and method of payment on the transaction. Payments were to be made under a wrap-around mortgage and a series of three payments of principal during the first three years. The wrap-around mortgage instrument was never drafted and agreed upon by the parties. Nevertheless, plaintiff argues that all the terms necessary for a binding contract are present in the rider, citing Hux v. Raben (1966), 74 Ill. App. 2d 214, 219 N.E.2d 770, affirmed (1967), 38 Ill. 2d 223, and Chicago Investment Corp. v. Dolins (1981), 93 Ill. App. 3d 971, 418 N.E.2d 59.

The trial court found that the mortgage document was essential to the undertaking of the transaction and many items remained open for negotiation. The testimony of Norman Codo, an attorney for defendant Barr, reveals that the essential terms of a default provision had yet to be determined. Codo also stated the type of service for the underlying first and second mortgages made by the holders of the wrap-around mortgage, along with acceleration clauses, were subject to negotiation by the parties. It is clear that this testimony was determined to be credible and convincing by the trial court.

The trial court also refused to grant specific performance to plaintiff because it did not have jurisdiction over Barclays. Barclays had the power to transfer title through an assignment of beneficial interest held as collateral for the mortgage to Barr. Paragraph 11 of the rider to the contract provided that the obligations of the parties were contingent on the consent of the mortgage holders. Thus, the approval of Barclays was needed for the transaction to occur.

Plaintiff argues that defendants were obligated to obtain Bar-clays’ consent to the sale. Plaintiff also argues that this obligation included assenting to and performing the conditions imposed by Bar-clays. We disagree.

Where the performance of a contingency or condition is within the control of a party to an agreement, the party for whose benefit the condition precedent runs is required to use “reasonable efforts” to have it occur. (Dodson v. Nink (1979), 72 Ill. App. 3d 59, 390 N.E.2d 546; Smith v. Vernon (1972), 6 Ill. App. 3d 434, 286 N.E.2d 99, appeal denied (1972), 52 Ill. 2d 599.) Barclays’ consent to the transaction was made only upon defendants’ acceptance of several conditions. One condition made by Barclays required a letter of credit in the amount of the mortgage or, alternatively, a prohibition against foreclosure on the purchaser without a payoff first being made on the Barclays mortgage. This condition was unacceptable to defendants. Although defendants were willing to accept some of the conditions, they were not obligated to accept and perform the conditions made by Barclays.

On appeal, plaintiff has sought review of the trial court’s determination that there was not a binding contract between the parties. He contends that a reversal of that determination by this court will entitle him to a hearing on the damages issue. The trial court specifically found that the alleged contract did not support an action for breach of contract and money damages.

A review of the record and the trial court’s findings shows plaintiff is not entitled to damages. The same reasons for denying plaintiff specific performance also support the denial of damages.

In making this determination, the trial court further found that the alleged contract lacked mutuality. This finding is borne out by examination of paragraph 11 of the rider to the contract. Paragraph 11 allows plaintiff to approve or disapprove of the documents relating to the mortgages on the property. If plaintiff disapproved, the contract could be canceled “in his sole discretion.” A similar clause in a letter of intent resulted in the dismissal of a purchaser’s action for breach of contract in Gardiakos v. Vanguard Communications, Inc. (1976), 38 Ill. App. 3d 937, 350 N.E.2d 210. In that case the court stated that “[mutuality of obligation is lacking, and neither party is bound to an executory contract where one of the parties has the right to arbitrarily terminate it.” 38 Ill. App. 3d 937, 939.

Several other factors also contributed to the trial court’s finding that the alleged contract was not enforceable. Plaintiff submitted his proposed contract signed by himself as “nominee for a trust to be formed.” The trust was never formed. There were no commitments from potential investors or financial institutions to finance the purchase. Plaintiff’s attorney testified that plaintiff never intended to assume any personal liability under the proposed contract.

The conduct of the parties after plaintiff submitted the proposed agreement belies the existence of a contract for sale. The record indicates, as the court found, that plaintiff referred to the proposed agreement as an offer. In a letter to the bank trustees dated February 17, 1981, plaintiff “agreed to extend time for seller’s acceptance.” This letter also referred to the offer made by plaintiff. The proposed agreement refers to itself as an offer to purchase, with executed copies to be returned to plaintiff. Also, the earnest money originally tendered with the proposed agreement was returned to plaintiff as negotiations continued and the projected closing date was delayed.

Plaintiff also argues the trial court erred when it excluded evidence relating to the conversations, prior drafts and related documents, and to the actions taken by the parties prior to the date plaintiff submitted his proposed agreement, February 9, 1981. It is well settled that if a written contract between parties is clear and the language unequivocal, then parol evidence may not be received to explain or expand upon its terms. (Gardiakos v. Vanguard Communications, Inc.; see Farmers & Mechanics Bank v. Davies (1981), 97 Ill. App. 3d 195, 422 N.E.2d 864.) Plaintiff’s position throughout the presentation of his case was that a binding agreement expressing the intent of the parties existed which was enforceable by the parties. Plaintiff’s reliance on Martindell v. Lake Shore National Bank (1958), 15 Ill. 2d 272, 154 N.E.2d 683, and Inland Real Estate Corp. v. Christoph (1981), 107 Ill. App. 3d 183, 437 N.E.2d 658, is misplaced. In those cases the respective courts applied the general rules of construction, recognizing the exception to the parol evidence rule after determining there was ambiguity or inconsistency in the litigated contracts.

The decision of the trial court is not against the manifest weight of the evidence. Accordingly, the decision of the circuit court of Cook County granting judgment to defendants and dismissing plaintiff’s complaint is affirmed.

Affirmed.

GOLDBERG and CAMPBELL, JJ., concur.


author: JUSTICE LORENZ

text:
    BOARD OF EDUCATION OF BREMEN COMMUNITY HIGH SCHOOL DISTRICT NO. 228, COOK COUNTY, Plaintiff-Appellant, v. BREMEN DISTRICT NO. 228, JOINT FACULTY ASSOCIATION, et al., Defendants-Appellees.
    First District (5th Division)
    No. 83—200
    Opinion filed May 20, 1983.

      Anthony Scariano, Robert H. Ellch, and Joanne P. Schochat, all of Scariano, Kula & Associates, P.C., of Chicago Heights, for appellant.
    Michael B. Erp and Irving M. Friedman, both of Katz, Friedman, Schur & Eagle, of Chicago, for appellees.
   JUSTICE LORENZ

delivered the opinion of the court;

This appeal concerns the validity of an arbitration award which decided that plaintiff, the Board of Education of Bremen High School District No. 228 (the Board), violated a collective bargaining agreement when it voted to dismiss eight tenured teachers without first holding a public hearing under section 24 — 12 of the School Code. (Ill. Rev. Stat. 1981, ch. 122, par. 24 — 12.) The Board filed an action to vacate the arbitrator’s award on the following grounds.

1. Neither the dismissed teachers nor their collective bargaining representative have standing to rely upon section 24 — 12 of the School Code.

2. The arbitrator exceeded his authority.

3. The award is based on erroneous findings of fact and conclusions of law.

The trial court affirmed the arbitrator’s award, and we affirm. The following facts are material to our decision.

The collective bargaining agreement between the Board and the Bremen District No. 228 Joint Faculty Association (the Association) provides that “[i]f a reduction of tenured certificated personnel occurs, it will be in accordance with Chapter 122, Article [sic] 24 — 12 of the School Code of Illinois.” Section 24 — 12 of the School Code provides that

“If a teacher in contractual continued service is removed or dismissed as a result of a decision of the board to decrease the number of teachers employed by the board or to discontinue some particular type of teaching service, written notice shall be given the teacher by registered mail at least 60 days before the end of the school term, together with a statement of honorable dismissal and the reason therefor ***. Whenever the number of honorable dismissal notices based upon economic necessity exceeds, 5, or 150% of the average number of teachers honorably dismissed in the preceding 3 years, whichever is more, then the board shall hold a public hearing on the question of dismissals. Following the hearing and board review the action to approve any such reduction shall require a majority vote of the board members.” Ill. Rev. Stat. 1981, ch. 122, par. 24 — 12.

The collective bargaining agreement also contains a grievance mechanism for “any complaint of a violation, misinterpretation, or misapplication of the terms and conditions of [the] Agreement.” It is further provided that an aggrieved party can have a grievance submitted to arbitration if he or she is not satisfied with the outcome of the grievance procedure. The submission agreement in the collective bargaining contract specifies that

“The arbitrator shall have no power to alter, add to, or subtract from the terms of this Agreement or require action that is prohibited by law. The sole power of the arbitrator shall be to determine whether the terms of this Agreement have been violated, misinterpreted, or misapplied. The decision of the arbitrator shall be rendered to the Board and to the grievant in writing and shall be binding upon both parties.”

On March 1, 1982, Robert Wheat, superintendent of District 228, sent a letter to Cathy Fronczak, president of the Joint Faculty Association, notifying her that the district would have to fire 10 tenured teachers because of a projected decrease in enrollment. The superintendent stated that the district had decided to maintain a ratio of 23.5 students per teacher, explaining that “it is the responsibility of all of us to attempt to operate this school district in a sound fiscal manner not only for the coming year, but for future years. This continues to be a problem because of the State of Illinois’ unpredictable financial situation, plus the uncertainty at the county level because of assessment practices, variation in the state multiplier, and lower percentage of tax collections.”

The Board met on March 22, 1982, and a member moved to dismiss eight tenured teachers because of “declining enrollment; teachers returning from leaves; [and] fluctuations in subject area needs.” This motion passed, and the teachers were notified the next day that they were honorably dismissed from employment.

The Association filed grievances on behalf of the teachers, and eventually, after various procedural skirmishes which are not material to our decision, the grievances were submitted to arbitration.

During arbitration the Association claimed that the Board fired the aggrieved teachers because of “economic necessity,” and that the Board violated the collective bargaining agreement because it voted to dismiss the teachers without first holding the public hearing which section 24 — 12 requires whenever a board of education dismisses a specified number of teachers because of economic necessity.

It was stipulated that the number of dismissals exceeded the number required to trigger the hearing requirement, but the Board asserted that the dismissals were not based on economic necessity. According to the Board, the dismissals were based solely on its desire to maintain a ratio of 23.5 students per teacher.

The arbitrator noted that a declining enrollment will result in a decreased amount of financial aid from the State, and the arbitrator concluded that “[a]n inference is inescapable that there are economic reasons for reducing the number of teachers to maintain a student/ faculty ratio during a period of declining enrollment.” Furthermore, the arbitrator found that “[a]ny doubt that the School Board acted due to economic necessity is dispelled by Superintendent Wheat himself in his letter of March 1, 1982 to JFA President Fronczak.”

Having found that the dismissals were based on economic necessity, the arbitrator found that the Board violated the provision of section 24 — 12 which required the Board to hold a public hearing before voting on the dismissals. Accordingly, the arbitrator found that the Board violated the provision of the collective bargaining agreement in which it promised to comply with section 24 — 12. Also, in light of the fact that the Board failed to hold the required public hearing before it voted to dismiss the teachers (and before it gave notice of the dismissals), the arbitrator decided that the notices of dismissal were void. As a result, the arbitrator concluded that the Board was obligated to reinstate the aggrieved teachers for the 1982-83 school year.

The Board filed an action against the Association and the aggrieved teachers seeking to vacate the award. The defendants counterclaimed for an order confirming the award, and upon cross-motions, the trial court entered summary judgment on behalf of the defendants.

Opinion

We first consider the argument that neither the Association nor the aggrieved teachers have standing to rely upon section 24 — 12 of the School Code. According to the Board, section 24 — 12 was not designed to benefit or protect teachers, and only members of the general public can demand the public hearing which the statute requires. We need not decide this question, however, because the Board entered into a collective bargaining agreement in which it promised the Association that it would comply with section 24 — 12. Even if the defendants could not directly rely upon section 24 — 12, the Board created a separate obligation, a contractual obligation, when it agreed that it would obey section 24 — 12. This agreement is binding because the legislature did not authorize the Board to disobey section 24 — 12, and the promise to comply with the statute did not violate the principle that a school board cannot give up a power which the legislature has exclusively assigned to school boards. (Compare Lindblad v. Board of Education (1906), 221 Ill. 261, 271.) Therefore, the Association is entitled to assert its contractual rights as a party to the collective bargaining agreement, and the aggrieved teachers, as members of the collective bargaining unit which the Association represented, can assert contractual rights as the intended beneficiaries of the agreement between the Board of the Association.

Next, we consider the argument that the arbitrator lacked authority to determine whether the Board violated section 24 — 12. According to the Board, it has a nondelegable power to determine whether dismissed teachers were dismissed because of economic necessity.

Under long-standing Illinois case law, a school board cannot delegate to another any function which the legislature has exclusively assigned to school boards. (See Lindblad v. Board of Education (1906), 221 Ill. 261, 271.) “Even if a dispute between the parties involves the application and interpretation of provisions of the collective bargaining agreement, it is not arbitrable if it would constitute an impermissable delegation of discretionary public responsibility specifically reposed by law in [school boards].” Board of Trustees v. Cook County College Teachers Union, Local 1600 (1979), 74 Ill. 2d 412, 420.

Section 24 — 12 obligates school boards to hold a public hearing when the number of teachers dismissed because of economic necessity exceeds a specified threshold. But, when teacher dismissals are based on economic necessity, the School Code does not give a school board authority to deny that the dismissals were in fact based on economic necessity. The Board simply does not have authority to deny that the aggrieved teachers were dismissed because of economic necessity if they actually were dismissed because of economic necessity.

The General Assembly did not give school boards exclusive authority to judge whether they have complied with the requirements of section 24 — 12, and authorizing an arbitrator to decide whether a school board has violated section 24 — 12 does not usurp any power which the law has exclusively reposed in school boards. We therefore hold that a school board can validly agree to let an arbitrator decide whether it has complied with section 24 — 12 of the School Code.

In a related argument, the Board contends that the arbitrator did not have authority to determine whether the Board issued valid dismissal notices. However, when tenured teachers are dismissed because of economic necessity, section 24 — 12 imposes upon school boards a nondiscretionary obligation to give notices which specify the reason for the dismissals. This gives the teachers an opportunity to determine whether the board is obligated to hold a public hearing before voting on the dismissal, and it also gives the targeted teachers a chance to prepare for the required hearing.

We agree that a collective bargaining agreement cannot authorize an arbitrator to review whether a school board should have dismissed teachers based on economic necessity (see Lindblad v. Board of Education (1906), 221 Ill. 261, 271), but this does not prevent an arbitrator from being authorized to determine whether a school board has fulfilled its nondiscretionary statutory obligation of giving tenured teachers notices which specify why they are to be dismissed. The collective bargaining agreement in the present case authorized an arbitrator to determine whether the Board complied with section 24 — 12, and we conclude the arbitrator was empowered to decide whether the statutory notices were valid.

■ The next issue is whether the arbitrator’s award should be vacated on the grounds that it is based upon erroneous findings of fact and conclusions of law. According to the Board, the arbitrator erred when he found that the dismissals were based on economic necessity, and he erred when he concluded that the failure to hold a public hearing, and the failure to specify the true reason for the dismissals, rendered the notices of dismissal void.

Arbitration of collective bargaining agreements is a substitute for litigation. (See Board of Trustees v. Cook County College Teachers Union, Local 1600 (1979), 74 Ill. 2d 412, 419.) When reviewing the validity of an award “made pursuant to a collective bargaining agreement, the court is directed to look to common law grounds for vacating an arbitration award that were in effect before the enactment of the Uniform Arbitration Act.” Board of Education v. Chicago Teachers Un ion, Local No. 1 (1981), 86 Ill. 2d 469, 474, citing Ill. Rev. Stat. 1977, ch. 10, par. 112(e).

The common law attitude toward arbitration awards was succinctly stated in Podolsky v. Raskin (1920), 294 Ill. 443, 450: “The object of arbitration is to avoid the formalities, delay and expense of litigation in court, and the decision of the arbitrators, acting within the scope of their authority under the submission agreement, is conclusive on the parties upon matters of law and fact.”

The supreme court further explained in Merritt v. Merritt (1850), 11 Ill. 565, 568, that “[wjhether [an arbitrator’s] decision was correct or erroneous, is not the proper subject of inquiry. The parties selected their own tribunal, for the adjustment of all their transactions, and, in the absence of all fraud, misconduct and partiality, they must abide by its decision.” Therefore, “[a] mere error of judgment as to the law or facts of the case, will not vitiate the award.” Ross v. Watt (1854), 16 Ill. 99, 102.

There are, of course, exceptions to the general rule of unreviewability, and at common law courts could set aside an award if there was fraud, bias, misconduct, or, in certain cases, if a mistake of law or fact appeared on the face of the award. (White Star Mining Co. v. Hultberg (1906), 220 Ill. 578, 601, 602, 610.) Thus, “a mistake in the draft of the award may be reformed so as to conform to the one actually made by the arbitrators.” (220 Ill. 578, 602.) Nevertheless, judicial review of the fact finding and legal reasoning of an arbitrator is circumscribed because it would undermine the finality which the parties bargained for when they agreed to submit their disputes to an arbitrator for a binding and nonappealable decision. (220 Ill. 578, 602.) The supreme court therefore explained that when reviewing the alleged “mistakes” of an arbitrator, “ '*** “*** [cjourts should be careful to avoid a wrong use of the word ‘mistake,’ and by making it synonymous with mere error of judgment assume to themselves an arbitrary power over awards ***” ’.” (Emphasis added.) 220 Ill. 578, 602, quoting Knox v. Symonds (1791), 1 Ves. Jr. 369.

In the present case, the Board contends that the award should be vacated on the grounds that it was based on an erroneous finding of fact. Replying to such an argument, the court stated in White Star:

“ '*** As to the matters of fact, the learned counsel of the [appellants] have argued to us that from the evidence which was before [the arbitrators] they ought to have decided the facts differently. But as we have no right to look into the evidence for the purpose of correcting their errors of judgment, in the absence of fraud, the argument can avail nothing.’ The foregoing language is clearly applicable to the case at bar and we regard the reasoning unanswerable.” 220 Ill. 578, 608, quoting Mickles v. Thayer (1867), 96 Mass. (14 Allen) 114.

The findings of fact made by the arbitrator in the present case are amply supported by the evidence, but at most the arbitrator made a mere error of judgment, and we would not be justified in setting aside the award on this basis.

The Board further asserts that the arbitrator erroneously concluded that failure to comply with section 24 — 12 rendered its dismissal notices void. Again, however, the arbitrator at most made a mere error of judgment. Even if the arbitrator’s “view of the law was plainly wrong, still the parties selected their own tribunal, and that tribunal having acted, the courts will afford no relief, even through the arbitrators have mistaken the law, where it does not appear that they have been guilty of fraud, partiality or misconduct.” Stone v. Baldwin (1907), 226 Ill. 338, 345.

The Board does not assert that there was fraud, partiality or misconduct in the present case, and we would not be justified in vacating the award in the present case even if the arbitrator was “plainly wrong” in deciding that the dismissal notices were void.

Finally, we note we agree that the arbitrator did not have authority to remedy violation of the collective bargaining agreement by ordering reinstatement of the aggrieved teachers. (See Board of Trustees v. Cook County College Teachers Union, Local 1600 (1976), 62 Ill. 2d 470, 476.) However, the arbitrator ruled that the Board’s defective notices were void, and, under the submission agreement, this decision was binding on the parties. And because the parties are bound by the ruling that these notices are void, we find that the aggrieved teachers were rehired by operation of law under the statute which provides that when a teacher has not received valid notice that he or she will not be rehired, “the employee shall be deemed reemployed, and not later than the close of the then current school term the board shall issue a regular contract to the employee as though the board had reemployed him in the usual manner.” Ill. Rev. Stat. 1981, ch. 122, par. 24 — 11.

Based on all the reasons given above, the judgment of the circuit court is affirmed.

Affirmed.

WILSON, P.J., and ME JDA, J., concur.


author: JUSTICE MEJDA

text:
    EDWARD J. BLAKE, Plaintiff-Appellant, v. TRI-STATE CRANE SERVICE, INC., et al., Defendants and Third-Party Plaintiffs-Appellees—(Sprague Iron Works, Third-Party Defendants).
    First District (5th Division)
    No. 81—1658
    Opinion filed May 20, 1983.

      Terrence E. Leonard, of Chicago, for appellant.
    Hinshaw, Culbertson, Moelmann, Hoban & Fuller, of Chicago (Kevin R. Sido and Stephen R. Swofford, of counsel), for appellee Tri-State Crane Service, Inc.
    Van Duzer, Gershon, Jordan & Petersen, of Chicago (Horace W. Jordan, of counsel), for appellee Enger-Vavra, Inc.
   JUSTICE MEJDA

delivered the opinion of the court:

Plaintiff Edward J. Blake filed suit under the Structural Work Act (the Act) (Ill. Rev. Stat. 1981, ch. 48, par. 60 et seq.) to recover for injuries sustained at a construction site. The court entered judgment on a directed verdict in favor of defendant Enger-Vavra, Inc., and entered judgment on a jury verdict in favor of defendant Tri-State Crane Service, Inc. (Tri-State). Upon denial of plaintiff’s post-trial motion, plaintiff appealed. The issues are whether: (1) errors as to instructions were waived; (2) the court erred in refusing plaintiffs tendered instructions; (3) the jury verdict in favor of the subcontractor Tri-State was contrary to the manifest weight of the evidence; and (4) the court erred in directing a verdict in favor of the general contractor, Enger-Vavra, Inc. We affirm.

Defendant Enger-Vavra, Inc., was the general contractor for the construction of a structural steel building for use as a racquetball court. Defendant Tri-State leased a crane and crane operator to Sprague Iron Works, Inc. (Sprague), a subcontractor. Sprague employed plaintiff and four other ironworkers on the project.

Plaintiff sustained injuries while working on the construction site as a “connector.” A connector sets joists into proper position before they are permanently fastened in place. Joists are parallel horizontal bars of iron extending from wall to beam to support the boards of the floor or ceiling of a building. The joists are hoisted by a crane which utilizes cables attached to a movable boom. At the end of the cable there is a large weighted ball called the “headache ball” which has a hook at the bottom. Attached to the cable above the headache ball is another cable, a “choker,” which has a loop at the free end. To place a joist, first the choker is slipped around the joist, then the loop at the end of the choker is placed on the hook at the bottom of the headache ball. The crane then lifts the joist to the connectors who set it in place. Once the joist is in place the crane operator maneuvers the headache ball in such a way that the looped end of the choker slides off the hook at the end of the headache ball, disconnecting the joist from the crane. The crane then pulls the cable and the ball up and away.

The crane operator moves the crane and joist as directed by hand signals from the connectors. When the connector’s position allows him to see the crane operator, the connector gives hand signals regarding the desired movement of the crane directly to the crane operator. When the connector and the crane operator are not visible to each other, or “in the blind,” the connector gives the signals to the signalman who relays them to the crane operator.

At the time of the injury, plaintiff and his partner, Gregory Hudella, were working as connectors. They had placed two joists and were working on the third. Hudella was on a ladder against an inside wall of the building under construction. The wall contained holes or pockets into which he placed one end of each joist. Directly across from Hudella, plaintiff was standing on the beam upon which he was setting the other end of each joist. After Hudella placed his end of the third joist into the pocket, plaintiff placed his end in the proper position on the beam and stood with his right foot on the joist in order to hold it in place. At that time, the crane pulled the joist up in the air causing plaintiff to be thrown off the beam. He fell to the ground, sustaining injuries.

Gregory Hudella, plaintiffs connector-partner on the day in question, testified that from his position on the ladder he was unable to see the crane operator; he himself had earlier stood on the beam where plaintiff was standing just prior to the injury and, from that position, he had been able to see the crane operator; plaintiff was giving signals directly to the crane operator; after the third bar joist was set into position with one end in the pocket and the other end on the beam, plaintiff was standing on the beam facing the crane operator and had one foot on top of the bar joist to hold it in place; plaintiff then gave the hand signals for “crane down a little bit” and “up easy,” which means move up very slowly, in order to disconnect the crane from the joist; after the “up easy” signal the joist went up in the air quickly and plaintiff was thrown approximately 20 feet into the air before he fell to the ground; he never saw a signal given for the “up and out fast” movement that the joist actually sustained; this was plaintiff’s first day on this particular construction site; and the signals used were the signals accepted in the trade.

George Hominick, an ironworker employed by Sprague, testified that he was the signalman on the day of plaintiff’s injury; as signalman he relayed the signals from the connectors to the crane operator when they were working in the blind; the crane operator does not give but only receives signals; just prior to being thrown off the beam plaintiff was giving signals directly to the crane operator; plaintiff gave the “easy up” signal; after Hominick saw the “easy up” signal given the joist went up in the air very quickly and plaintiff was thrown into the air before falling to the ground; and the use of a signalman and the hand signals used were common and accepted within the trade.

Plaintiff testified that after he and the other connector had positioned the third joist he was standing on the beam with his foot on the joist to hold it in position; at that time he had a clear view of the crane operator but the crane operator was not looking at him; he held the “easy up” signal so the crane operator would see it; the crane operator turned toward him and made a movement following which he was thrown up to the height of the beams which formed the next -level of the building before falling to the ground; he was familiar with the job of a connector; and he did not remember whether he had had any discussion with the crane operator before starting the job that day.

Eugene Stromberg testified that he was the foreman and one of the crew of five ironworkers employed by Sprague; he supervised and directed the ironworkers and assigned them to various jobs; the crane operator decided on the positioning of the crane and directed the iron-workers in setting it up; the crane operator stays in the cab of the crane and waits for the signals to be given to him; and he himself had pointed out Hominick to the crane operator as the man who would be giving signals that day

Jack Greinke testified that he was employed by the subcontractor Tri-State and was the crane operator on the construction site; at the time of the accident he was working in the blind and could not see the plaintiff; because he was in the blind he was at all times receiving signals from the signalman, the only man he could see, and not the connectors; when working in the blind the signalman is the “boss”; after the third joist had been placed, immediately before the injury, the signalman gave the “cable up” signal; he started to raise the cable but stopped upon receiving the signal to do so; when he operates in the blind he always moves the crane slowly; if he feels appropriate safety measures are not being taken he will refuse to do a job; and if he receives a signal he knows is unsafe he will refuse to follow it.

At the conclusion of plaintiff’s case, the court granted the motion of Enger-Vavra, Inc., for a directed verdict and entered judgment thereon. In response to a special interrogatory, the jury found that defendant Tri-State’s conduct was not “the primary and significant cause” of plaintiff’s injury and returned a verdict for Tri-State. Judgment was entered on the jury verdict. Plaintiff appeals the judgments and the denial of his post-trial motion.

Opinion

We first consider the argument raised in defendant Tri-State’s brief that plaintiff’s post-trial motion was insufficiently specific and, therefore, any error as to the instructions has been waived. Under section 2 — 1202(b) of the Code of Civil Procedure, a post-trial motion “must contain the points relied upon, particularly specifying the grounds in support thereof ***.” (Ill. Rev. Stat. 1981, ch. 110, par. 2 — 1202(b).) Supreme Court Rule 366(b)(2)(iii) provides that “[a] party may not urge as error on review of the ruling on his post-trial motion any point, ground, or relief not specified in the motion.” (87 Ill. 2d R. 366(b)(2)(iii).) Any claimed error in the instructions cannot be reviewed upon appeal unless the grounds for the claim of error are set forth with particularity in the post-trial motion. Brown v. Decatur Memorial Hospital (1980), 83 Ill. 2d 344, 415 N.E.2d 337.

In the instant case that portion of plaintiffs post-trial motion alleging error regarding jury instructions states:

“2. The Court erred in modifying plaintiffs Instruction No. 21, I.P.I. No. 180.04, the issues instruction, by striking the charge ‘pulled away the headache ball, hook and choker without a signal for that operation.’
3. The Court erred in refusing to give plaintiff’s Instruction No. 18, I.P.I. 180.01, containing the portions of the Structural Work Act contained in Section 67 of that Act relating to signals.”

It is our opinion that plaintiff’s post-trial motion set forth the claimed error in a manner sufficiently specific to meet the requirements of the Code and Rules (see Brown) and, therefore, the issue as to whether the trial court erred in refusing plaintiff’s tendered instructions was properly preserved.

Plaintiff first contends that the court erred in refusing his instruction No. 18 (Illinois Pattern Jury Instruction (IPI), Civil, No. 180.01 (2d ed. 1971)) as originally tendered. The tendered instruction stated that there was in force in Illinois a statute called the Structural Work Act and set forth the provisions of sections 1, 7a and 9. (Ill. Rev. Stat. 1981, ch. 48, pars. 60, 67, 69.) The court refused the inclusion of the provisions of section 7a which states in pertinent part that where, as in the instant case, certain hoisting apparatus is used “a complete and adequate system of communication by means of signals shall be provided and maintained by the owner, contractor or sub-contractor ***.” Ill. Rev. Stat. 1981, ch. 48, par. 67.

Generally, unless the record includes some evidence to support the theory set out in a tendered instruction, the court is not required to give it. (GNP Commodities, Inc. v. Walsh Heffernan Co. (1981), 95 Ill. App. 3d 966, 420 N.E.2d 659.) An instruction not supported by the evidence cannot be given. (Vincent v. Wesolowski (1967), 87 Ill. App. 2d 477, 232 N.E.2d 120.) Specifically, instructions concerning violation of a statute should not be given unless the evidence is adequate to support a finding that a violation actually occurred. Figarelli v. Ihde (1976), 39 Ill. App. 3d 1023, 351 N.E.2d 624; Wallace v. Weinrich (1980), 87 Ill. App. 3d 868, 409 N.E.2d 336; IPI Civil No. 60.00.

In urging that the court erred in refusing the tendered instruction, plaintiff predicates liability upon a theory that section 7a of the Act was violated. Specifically, he. argues that he was thrown off the beam because the signal he gave was not followed and that it was either not received or not understood. He concludes that his injury re-suited from defendant’s failure to provide and maintain an adequate system of communication as required by section 7a. However, such theory is not supported by the evidence.

The evidence shows that the hand signals used at the time of plaintiff’s injury were those commonly used and accepted in the trade and were known and understood by all the parties utilizing them. At trial the crane operator and each ironworker identified and demonstrated the hand signals for various movements of the crane. The testimony regarding what signal was given and received, and to whom and by whom, although conflicting, would not support a finding that a complete and adequate system of communication by means of signals was not provided or maintained. There was no testimony of confusion regarding the system of communication or the hand signals utilized. Unlike Gundich v. Emerson-Comstock Co. (1960), 21 Ill. 2d 117, 171 N.E.2d 60, the witnesses did not contradict themselves and each other on their understanding of the signals. Nor was evidence presented to show that the system was incomplete or inadequate, or that a better means of communication was available or feasible. We cannot conclude on this record that the communication system was less than adequate or that the system was extremely crude. See Burgh v. Crane Construction Co. (1968), 102 Ill. App. 2d 188, 243 N.E.2d 590.

As there was no confusion as to the meaning of the signals utilized, the evidence at most shows that the workers failed to properly execute or follow such communication system. The evidence does not support a finding of a wilful violation of section 7a of the Act, which section concerns the completeness and adequacy of the signal communication system, not the execution of the signals. Although plaintiff’s instruction No. 18 as tendered may have accurately stated the law regarding the duty under section 7a, the issue of such duty was not raised by the evidence. It is not error to refuse an instruction if there is no evidentiary basis for that instruction nor to refuse an instruction containing a mere abstract proposition. (Ramsey v. Greenwald (1980), 91 Ill. App. 3d 855, 414 N.E.2d 1266; Baird & Warner, Inc. v. Ruud (1976), 45 Ill. App. 3d 223, 359 N.E.2d 745.) Therefore, it was not error to refuse plaintiff’s instruction No. 18 as originally tendered.

Plaintiff also contends that the court erred in refusing plaintiff’s instruction No. 21 (IPI Civil No. 180.04) as to the issues. The tendered instruction stated that defendant violated the Structural Work Act in one or more of the following:

“Failed to follow signals.
Failed to release the choker from the joist before pulling away.
Pulled away the headache ball hook and choker without a signal for that operation.”

The third violation alleged was refused as repetitive and redundant. It was deleted and the instruction was given as modified.

The first violation set forth in the tendered instruction alleged that defendant “failed to follow signals.” It contemplates a finding by the jury that a signal was given but that defendant or his servant acted contrary to such signal. The second violation, “failed to release the choker from the joist before pulling away,” differs and is distinct from the first in that no reference is made to signals. Liability under the foregoing portion of the instruction could be premised on a finding by the jury that such actions constituted a violation of the provision of the Act which requires that cranes be operated so as to give proper and adequate protection to the persons employed or engaged thereon. (Ill. Rev. Stat. 1981, ch. 48, par. 60.) However, the third violation, which was refused, is susceptible to various interpretations, none of which render it a novel theory or one essential to the jury’s consideration of this cause.

Under one construction, the third violation is based on a theory that the crane operator “pulled away” without any signal. Although contradictory as to the nature of the signal given and by whom given, all of the testimony was in agreement that there was a signal. Thus, since the theory of the refused violation charge was not supported by the evidence, the refusal of that portion of the instruction was not error. (Skinner v. Baker (1978), 67 Ill. App. 3d 773, 384 N.E.2d 1360; Winston v. Chicago Transit Authority (1971), 2 Ill. App. 3d 151, 276 N.E.2d 65.) The refused portion can also be construed to mean that defendant “pulled away” upon receiving a signal for some other operation. Such a construction renders it the same as the first violation, “failed to follow signals,” and was repetitive and, therefore, properly refused. (Grabner v. American Airlines, Inc. (1980), 81 Ill. App. 3d 894, 401 N.E.2d 1196; Christopherson v. Hyster Co. (1978), 58 Ill. App. 3d 791, 374 N.E.2d 858.) Accordingly, there was no error in the refusal of the plaintiff’s instruction No. 21 as tendered.

The remaining issues concern the trial court’s determination that neither defendant Tri-State nor defendant Enger-Vavra, Inc., is liable under the Act. Liability under the Act requires proof that (1) defendant was in charge of the work, and (2) there was a wilful violation of the Act. (Gundich v. Emerson-Comstock Co. (1960), 21 Ill. 2d 117, 171 N.E.2d 60.) The courts have declined to define the term “having charge of” and consider it a term of common usage and understanding. (Larson v. Commonwealth Edison Co. (1965), 33 Ill. 2d 316, 211 N.E.2d 247.) Before a defendant may be found in charge of the work, it must be shown that he had a direct connection with the construction operations. (Larson.) Moreover, to impose liability under the Act, the defendant must have been in charge of the particular operations which involved the violation from which the alleged injury arose. McGovern v. Standish (1976), 65 Ill. 2d 54, 357 N.E.2d 1134.

Regarding the second element, the term “wilful” is construed to mean “knowing.” A violation of the Act is wilful when a person having charge of the work knew or, in the exercise of ordinary care, should have known of a dangerous condition. (Gundich v. EmersonComstock Co.; Lavery v. Ridgeway House, Inc. (1969), 117 Ill. App. 2d 176, 254 N.E.2d 117.) It is not necessary that there be a reckless or deliberate disregard of the provisions of the Act in order to constitute a wilful violation. (Gundich.) The issues concerning “in charge of” and “wilful” are questions of fact upon which reasonable persons might differ and are appropriate for determination by a jury. (Norton v. Wilbur Waggoner Equipment Rental & Excavating Co. (1979), 76 Ill. 2d 481, 394 N.E.2d 403, citing Gannon v. Chicago, Milwaukee, St. Paul & Pacific Ry. Co. (1961), 22 Ill. 2d 305, 175 N.E.2d 785.) Such determination must rest upon an assessment of the totality of the circumstances. Norton.

With these principles in mind, we next address plaintiff’s contention that the jury verdict in favor of defendant Tri-State was contrary to the manifest weight of the evidence. The jury received the following evidence pertinent to this issue. Tri-State was a subcontractor who supplied the crane and crane operator to Sprague, plaintiff’s employer, pursuant to a rental agreement. While the crane operator had the right to determine the position of the crane and to direct the ironworkers in setting up the crane, plaintiff’s injury did not arise from any violation of such duties. The crane operator had a right to suggest a different signalman if not satisfied, to complain as to the manner of work, to refuse or stop work if ordered to lift objects he deemed too heavy for the crane’s capacity, to refuse to follow unsafe signals, and to alone operate the crane. The crane operator did not give the ironworkers any orders or have any authority over them other than in moving and placing the crane. He did not tell them how to position themselves nor how to perform their work.

The crane and crane operator were positioned on one side of a two-story masonry wall in which there was an opening at ground level approximately eight to 10 feet wide and four to six feet high. Plaintiff and Hudella were setting joists on the other side of the wall. Plaintiff testified that at the time of the accident he was giving hand signals directly to the crane operator and had signaled for “crane down a little” and then “easy up.” Hudella stated that plaintiff, while giving the signals, was on the beam and was facing the opening in the wall. The crane operator testified that he had been working in the blind for the entire time; he could not see plaintiff through the wall opening. He had no trouble receiving signals from the signalman. After lowering the third joist into place, he did not know whether the choker was disconnected from the joist. He looked through the boom of the crane at the signalman and took from him the signal for “cable up” and the following signal for “stop.” He did not see plaintiff fall.

Communicating by hand signals and using a signalman to relay the signals when working in the blind were common and accepted practices within the trade. The hand signals used were understood by all the parties utilizing them and there was no testimony of confusion regarding the system of communication.

Determination of who was in charge is a classic example of an issue of fact within the province of the jury. Whether defendant TriState knew or should have known of an alleged violation is also a question for jury consideration. (Isabelli v. Cowles Chemical Co. (1972), 7 Ill. App. 3d 888, 289 N.E.2d 12.) A jury verdict will not be disturbed on appeal unless it is contrary to the manifest weight of the evidence. (Old Second National Bank v. Gould (1979), 75 Ill. App. 3d 839, 393 N.E.2d 1356; Svenson v. Miller Builders, Inc. (1979), 74 Ill. App. 3d 75, 392 N.E.2d 628.) Verdicts and judgments are considered against the manifest weight of the evidence only when an opposite conclusion is clearly evident or the jury’s verdict is palpably erroneous. Svenson.

The evidence here presented would support a finding by the jury that Tri-State was not one having charge of the particular phase of the construction from which plaintiff’s injury arose. Upon such evidence the jury could also find that there was no wilful violation of the Act. Since both of the above elements must be proved in order to impose liability under the Act, we cannot say that the verdict in favor of Tri-State was contrary to the manifest weight of the evidence and may not disturb such verdict. Isabelli.

Finally, we address plaintiff’s contention that the court erred in directing a verdict for defendant Enger-Vavra, Inc., on the basis that no wilful violation had been shown. As discussed above, before liability can be imposed under the Act it is necessary to prove that the defendant was in charge of the work and, either directly or through a servant, wilfully violated the terms of the Act. (Gundich v. Emerson-Comstock Co. (1960), 21 Ill. 2d 117, 171 N.E.2d 60.) In its answer Enger-Vavra, Inc., admitted being the general contractor “in charge of” the work. A review of the record, however, fails to disclose any evidence tending to show that Enger-Vavra, Inc., knew or should have known of a violation, as is required to prove wilfulness. We concluded above that there was no error in refusing an instruction directed at a violation of section 7a, regarding the adequacy of the system of communication, and for like reason, we conclude here that the court did not err.

The evidence showed that a commonly-used system of communication by means of hand signals was in use on the construction site at the time of plaintiff’s injury. Further, testimony revealed that the crane operator and ironworkers knew and understood these signals. There was no evidence establishing that Enger-Vavra, Inc., knew or should have known the system of communication provided would be, in some way, improperly executed.

It is well-accepted principle in Illinois that a verdict should be directed in those cases in which all of the evidence, when viewed in its aspect most favorable to the opponent, so overwhelmingly favors the movant that no contrary verdict based on that evidence could ever stand. (Pedrick v. Peoria & Eastern R.R. Co. (1967), 37 Ill. 2d 494, 229 N.E.2d 504.) In the instant case, there was no evidence of a wilful violation of the Act by Enger-Vavra, Inc., and, therefore, a verdict against it could never stand. Accordingly, we find that the court did not err in directing a verdict for defendant Enger-Vavra, Inc.

For the reasons stated above, we affirm the order of the trial court.

Affirmed.

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

      The third-party action for indemnity against Sprague is not involved in this appeal.


text:
    ALFRED BEHRSTOCK, Plaintiff-Appellant, v. ACE HOSE & RUBBER COMPANY et al., Defendants-Appellees.
    First District (5th Division)
    No. 81—2557
    Opinion filed May 20, 1983.

      Thomas E Ging and Steven A. Weiss, both of Reuben & Proctor, of Chicago, for appellant.
    Irving B. Ribstein, Ltd., of Chicago (Irving B. Ribstein and Eugene Lieberman, of counsel), for appellees.
   JUSTICE MEJDA

delivered the opinion of the court:

Plaintiff Alfred Behrstock (hereinafter Alfred), a 50% owner, officer, and one of two directors of five closely held corporations, brought this suit to set aside a written employment contract executed on behalf of all five companies by plaintiff’s brother, Eugene Behrstock (hereinafter Eugene), in favor of Eugene’s son, Bruce Behrstock (hereinafter Bruce), and for accounting and other relief. After a trial, the trial court denied the relief sought in plaintiff’s complaint and held that the written contract was valid and enforceable as against the five corporations.

Plaintiff appeals, contending that: (1) the employment agreement is an extraordinary contract and beyond the authority of Eugene to execute on behalf of the corporations, absent approval of the board of directors; (2) the trial court erred in finding that the employment contract was ratified by Alfred; and (3) the trial court erred in finding that Eugene exercised “complete control” over the “Ace Companies.”

The evidence presented as to the following preliminary matters is largely undisputed. Plaintiff Alfred and defendant Eugene are brothers. Each controls 50% of the stock of five closely held corporations. Those companies, Ace Hose & Rubber Company, Ace Lite-Step Company and Ace Stretch Hose Company (hereinafter the Ace Companies), L. Behrstock & Company, and 1708 South State Street Building Corporation (hereinafter Building Corp.), are also defendants. The companies sell industrial rubber products and pressing equipment, except the Building Corp., which owns the property and buildings in which the others operate. Defendant Bruce is Eugene’s son and Alfred’s nephew.

The companies were originally founded in 1943. They were incorporated in 1956 or 1957. Alfred is the president of the Building Corp. and L. Behrstock & Company. He is also secretary-treasurer of each of the three Ace Companies. Eugene is the president of the Ace Companies and secretary of the other two companies. During all relevant times, Alfred owned 50% of the stock of each company. Eugene owned the other 50% until 1972, when he began transferring stock to his son Bruce. Alfred and Eugene are the only two directors of each of the five companies and Bruce is neither a director nor an officer of any of them.

In 1970, Eugene employed his son Bruce as a comptroller and by 1973, Bruce had become assistant to the president, and general manager of the Ace Companies. In 1975, Eugene retired from the companies but continued to consult with Bruce, who by that time had taken over Eugene’s managerial duties. As salary, Bruce was paid approximately $700 per week during the period preceding 1978; however, no written employment contract had been entered into between the parties.

At a time during 1978, Eugene and Bruce suggested to Alfred that a written contract be entered into concerning Bruce’s employment with the companies. By this time Bruce was managing all five companies. In June 1978 Alfred refused, telling Bruce, “It’s entirely out of the question.” Despite this refusal, Bruce negotiated terms with Eugene resulting in the employment agreement which is the subject of this suit.

During a meeting of the board of directors in September or October, 1978, Eugene brought up the topic of a written employment contract for Bruce, and Alfred again refused. Alfred’s position was that Bruce would continue to receive a share of the profits, but that no written contract was necessary. It was known by Bruce, at the time of the meeting, that Alfred would not approve a written contract. The meeting erupted into an argument and Alfred left the room.

On December 16, 1978, Alfred received a letter from Bruce and a copy of the written employment agreement entered into between Bruce and the five companies. This was the first time that Alfred was aware of the contract. The agreement was signed on behalf of the companies by Eugene as “President” of the Ace Companies and as “Vice-president” of L. Behrstock & Company and the Building Corp. Defendants have admitted that Eugene is not a “Vice-president” of either of these two companies, although he was secretary. It is undisputed that Alfred did not sign the employment agreement nor did he authorize Eugene to enter into the contract on behalf of the companies.

Under the agreement, Bruce was employed as general manager of the five companies for a term of five years. The contract terms provided, inter alia, for (1) a retroactive salary increase from $36,000 to $52,000 per year; (2) a bonus of 3% based upon gross sales up to $2,000,000 and 4% if the sales exceeded this amount; (3) an additional bonus of 20% of the adjusted net profits of all five companies; and (4) if the companies were sold under certain conditions, Bruce was to receive 20% of “the gross sale proceeds over and above any amount by virtue of his stock ownership.”

On January 5, 1979, Alfred sent a registered letter to Eugene expressing his disapproval. In the letter Alfred stated that the agreement was not presented to, or approved by, the board of directors; that he would not consent to the agreement; and that he considered the agreement illegal and void. Alfred thereafter initiated this action on February 16, 1979.

Defendants presented the following evidence to establish Eugene’s authority to bind the companies to the employment agreement sued on: Eugene testified that from their inception, the Ace Companies were managed entirely by him. He testified that pursuant to an oral agreement in 1956 or 1957, entered into between Alfred and himself, it was agreed that he would have “100 percent of the say of running the *** rubber business *** lock stock and barrel.” Alfred, in turn, would have “all the say of running L. Behrstock & Co. We shook hands. We had a deal.” Under this arrangement, Eugene was to receive “20 percent of the profit of the Ace Companies off the top.”

Thereafter, until his retirement in 1975, Eugene managed the Ace Companies. Alfred managed L. Behrstock & Company. Eugene testified that “for the Ace Companies, every facet of the business, I made the decisions, sources of supply, who was hired, who was fired, everything.” He also set company policies, supervised the employees, negotiated with the unions, and he executed all contracts, including all employment contracts. He testified that he had, over the years, hired all the employees of the Ace Companies; that some of the key employees had been given percentages of the profits of the companies; that no employment contract was ever submitted for approval by the board of directors; and that the only employment contract to be challenged was the contract sued upon.

Eugene testified that annual board meetings were held in October for the voting of bonuses, at which he, Alfred and the company accountant were present. At these meetings the accountant would recommend to him bonus figures. He then would customarily take his 20% off the top and the remainder was split between the two brothers. He admitted that the amount of bonuses was agreed to jointly saying, “if there were further bonuses to be paid, it was decided between Alfred Behrstock and myself.” At these meetings Eugene would normally present the profit figures for the Ace Companies and ask for Alfred’s approval as to a division thereof.

Finally, over many years, Eugene expanded the Ace Companies by acquisition of a number of other companies. Each deal was negotiated by him without once consulting Alfred or the board of directors. When he retired completely from the companies in 1975, Bruce assumed his duties as general manager. Although he thereafter moved to Florida, he continued to “consult” with Bruce by telephone regarding company matters.

Alfred’s testimony as to the foregoing matters conflicted in the following relevant details. Alfred testified that prior to 1972, both brothers managed the five companies. Eugene worked primarily with the three Ace Companies and Alfred worked primarily with L. Behrstock & Company and the Building Corp. During the late 1960’s or early 1970’s, Eugene spent a substantial amount of time in Florida and, thus, an “understanding” was reached between the two that Alfred would manage all of the companies for six months of the year, and Eugene would manage them for the other six months. He testified that in 1968, as a result of the six months division, Eugene’s flat 20% bonus was suspended by their mutual agreement and was never reinstated. He stated that each year he and Eugene would agree as to both the amount and distribution of bonuses at the annual meeting, including a bonus to Bruce. In addition to any such bonus, Eugene would also give a portion of his own bonus to Bruce.

The evidence is undisputed that Bruce, who had been managing the Ace Companies since approximately 1973 without a contract, has continued to do so since the institution of this action. He has also been helping run L. Behrstock & Company and the Building Corp., although Alfred retained ultimate control of those two companies. Bruce testified that his duties did not change to any considerable extent after the instant contract was signed.

After trial, the trial court found that Alfred had objected to the employment agreement, but that Eugene had exercised “complete control” over the Ace Companies and thus had total authority to bind those companies to the instant contract without prior approval by the board of directors. The trial court further held that as to the other two companies, although Eugene exercised no control over them, Alfred implicitly ratified the contract by acquiescing to Bruce’s management and control of the five companies. Accordingly, the trial court declared the contract to be valid and enforceable.

Opinion

We first address plaintiff’s contentions challenging the trial court’s findings with respect to the Ace Companies. As the principal ground for reversal, he contends that the employment contract is an extraordinary and unusual contract and thus beyond the authority of Eugene to execute, absent board approval. It is well established under Illinois law that a contract to pay as compensation a percentage of the net profits of a corporation is not a usual and ordinary contract, and that under most circumstances the president of the corporation has no authority, absent authorization by the board of directors, to enter into any such unusual or extraordinary contract on behalf of the corporation. (See, e.g., Southwest Forest Industries, Inc. v. Sharfstein (7th Cir. 1972), 482 F.2d 915, 925; see also Jaffe v. Chicago Warehouse Lumber Co. (1954), 4 Ill. App. 2d 415, 124 N.E.2d 618; Sacks v. Helene Curtis Industries, Inc. (1950), 340 Ill. App. 76, 91 N.E.2d 127.) However, an exception to this rule may arise when a corporation allows its president to assume “complete control” over its affairs. In such situations, the officer exercising such control is said to hold, prima facie, the power to bind the corporation to such contracts. (Jaffe; see also Joy v. Ditto, Inc. (1934), 356 Ill. 348, 190 N.E. 671.) A corollary to this exception, however, is that the power may be rebutted where it is affirmatively shown that such contracts were unauthorized. Joy v. Ditto, Inc.

Regarding the portion of the order holding the Ace Companies bound to the employment contract, it is clear that the trial court relied solely upon the “complete control” exception espoused in the Jaffe case.

Initially, we note that there is no valid contention here that the contract at issue was not unusual or extraordinary, for not only did it provide for payment of a percentage of net profits, but it further entitled Bruce to 20% of the gross sale proceeds, over and above any stock ownership, if the companies were sold to a third party. Secondly, there is no dispute that no action was taken by the board of directors authorizing Eugene to enter into this contract on behalf of the corporation. Finally, the record plainly establishes that the contract was executed over the express and repeated objections of Alfred. Under such facts plaintiff argues that the Jaffe “complete control” exception has no application. It is further argued that this exception was too broadly construed by the trial court since it establishes only prima facie power to bind the corporations, which plaintiff contends is fully rebutted on this record.

Upon careful review of the principles illustrated in Jaffe, we find that its premises were misconstrued as the applicable rule of law in the instant case. In Jaffe, as an equitable measure, the appellate court applied an exception to the rule ordinarily limiting the authority of the president to bind a corporation to extraordinary or unusual contracts in the absence of action by the board. The circumstances giving rise to the exception in Jaffe, however, are distinguishable from those at bar. There, an aggrieved employee, hired by the president under a contract which provided for a percentage of the net profits, was denied his share of the profits after more than a year of employment with the defendant corporation. The corporation was solely owned by the president and his wife; the only directors were the president, his wife, and their minor son. The corporation was so totally dominated and controlled by the president that he was held to have been the “alter ego” of the corporation. Moreover, no member of the board had ever countermanded any decision of the president, including the contract sued on. The corporation, in defending the suit, raised the defense of lack of authority of its president to bind the corporation to the disputed agreement. This was done as an “afterthought” at trial. Under these circumstances, the court applied the principle that a corporation would not be permitted to disavow the action of its president to the detriment of an employee who relied upon the president’s apparent authority where the corporation had allowed the president to assume complete control of its affairs.

Here, the situation differs in that Bruce, the employee, cannot be said to be an unsuspecting employee who is attempting to enforce an extraordinary contract on the basis of his reliance upon the president’s authority to bind the corporation. The undisputed evidence showed, rather, that Bruce was well aware of Alfred’s status as 50% shareholder and director and, moreover, that Alfred expressly and repeatedly opposed the agreement. Thus, even assuming, arguendo, that the evidence established Eugene’s “complete control” over the corporations as that term is used in Jaffe, the resulting prima facie power to bind the corporation to this unusual contract is plainly rebutted by the evidence.

We do not interpret Jaffe as creating an exception whereby once a president has assumed complete control over a corporation’s affairs, his unauthorized actions can never be validly challenged by the corporation or by its board. We believe that a faithful application of the Jaffe exception, however, requires us to consider not only the extent of the president’s unfettered control over the affairs of the corporation, but also the reasonableness of the contracting employee’s reliance upon this prima facie authority, as well as the extent to which the evidence affirmatively shows that the contract was unauthorized. From our careful review of the undisputed evidence in this case, we conclude that the Jaffe exception was improperly applied as the rule of law in this case, thus resulting in reversible error.

Next, with respect to L. Behrstock & Company and the Building Corp., the trial court concluded that the contract was binding upon these companies because plaintiff had accepted “the benefits of Bruce Behrstock’s efforts.” The trial court further found that plaintiff impliedly “ratified the entire contract by his conduct in acquiescing to Bruce Behrstock’s management and control of the five companies.” Plaintiff argues that the ruling is reversible error since there can be no implied ratification where plaintiff expressly rejected the agreement both prior to and after its execution; where Bruce knew of the repudiation and the lack of authority of Eugene to contract for the companies; and where Bruce’s duties did not considerably change after the execution of the agreement. We agree that the requisites for implied ratification are not established on this record.

Ratification will not be inferred “where there is no act on the part of the corporation to show an intention, either express or implied, to ratify, but where, on the contrary, it seeks to repudiate the unauthorized act as soon as it has knowledge of it.” (2A W. Fletcher, Cyclopedia of the Law of Private Corporations, sec. 752 (rev. perm, ed. 1982).) Here, it is clear that plaintiff’s expressions before and after the contract exhibit no intent to ratify, but, on the contrary, constitute an unequivocal repudiation of the employment contract. Another requisite which must exist before the doctrine of implied ratification may apply is detrimental reliance by a third party (see generally Harris Trust & Savings Bank v. Joanna-Western Mills Co. (1977), 53 Ill. App. 3d 542, 368 N.E.2d 629); and it must be shown that the third party has been misled, or induced to forego advantage he would have otherwise enjoyed. (Harris Trust & Savings Bank) There is no evidence here to show detrimental reliance on the part of Bruce. He had been managing the companies since 1973, and his duties remained essentially unchanged by the instant contract. He entered into this contract with full knowledge that it was unauthorized and contrary to Alfred’s expressed rejection as a director of the board. Accordingly, the trial court’s finding of implied ratification is contrary to the manifest weight of the evidence and, therefore, cannot stand.

Finally, plaintiff challenges the trial court’s' finding that Eugene exercised complete control over the Ace Companies. In view of our holding that the Jaffe “complete control” exception was improperly applied in this case, we need not fully address this issue. We note, however, that no concrete definition of “complete control” is to be found in that opinion. The general factors considered relevant in establishing “complete control” in that case included: (1) the extent to which the officer exercised control over the corporate stock; (2) the extent to which the officer acted on behalf of the corporation; and (3) the extent to which the board of directors acquiesced in his actions. Applying those factors here, the evidence shows that at the time of the instant contract, Eugene controlled no more than 50% of the stock of the five companies; that since 1975 Bruce managed and controlled the day-to-day affairs of the Ace Companies; that Eugene was retired and living in Florida; that annual board meetings were held; that Alfred had not relinquished control of the two remaining companies; and that Alfred, as director, had clearly countermanded the authority of Eugene to bind the corporations to the instant contract. Thus, it appears that under the above factors considered relevant in Jaffe, Eugene exercised less than “complete control” of the Ace Companies at the time this extraordinary contract was executed.

For the foregoing reasons, the judgment declaring the written contract valid and enforceable is reversed, and the cause remanded for entry of judgment declaring the written contract null and void, and for any further proceedings not inconsistent with this opinion.

Reversed and remanded with directions.

WILSON, RJ., and LORENZ, J., concur.