author: MR. PRESIDING JUSTICE LYONS

text:
    Stanley J. Goldberg, Plaintiff-Appellant, v. Valve Corporation of America, a Corporation, Defendant-Appellee.
    Gen. No. 51,761.
    First District, Second Division.
    December 6, 1967.

      Hoffman & Davis, of Chicago, for appellant.
    Irving T. Zemans, of Chicago, for appellee.
   MR. PRESIDING JUSTICE LYONS

delivered the opinion of the court.

This was an action for a declaration of rights under the terms of a written contract of employment brought pursuant to the provisions of section 57.1 of the Civil Practice Act (Declaratory Judgments). Plaintiff, Stanley J. Goldberg, appeals from the entry of an order by the Circuit Court of Cook County on September 9,1966, which order, upon the motion of defendant, Valve Corporation of America, a Delaware corporation, dismissed plaintiff’s action as inappropriate for declaratory relief. The order was entered without prejudice in all respects excepting plaintiff’s right to bring a declaratory judgment action anew on the contract.

Prior to its final disposition of the case, the court below had, on July 28, 1966, entered an interlocutory order striking the complaint for failure to state a cause of action for declaratory relief, leave being granted, on the court’s motion, to file an amended complaint at law. Plaintiff refused to amend, electing to stand on his complaint, suffer the adverse order and bring this appeal from both orders.

Plaintiff filed his single-count complaint on April 5, 1966, setting forth therein the terms of his employment contract with the Aerosol Research Company, an Illinois corporation (since merged into the surviving defendant-corporation, effective in December of 1965). The contract was to cover a period commencing February 6, 1965, and ending on June 30, 1969, which contract, insofar as material, provided: (1) that plaintiff, as President of Aerosol, was to devote the major portion of his time to the performance of the duties incident to his office, it being agreed that administrative assistance, to accomplish that end, would be furnished; (2) that as compensation therefor, plaintiff was to receive a yearly salary of $30,-000, plus an additional sum of 5 % of Aerosol’s annual net profits (as determined by annual audit of independent public accountants), never to be less than $30,000; (3) that Aerosol reserved the right to terminate his employment, in the event of serious or persistent breach of duties thereunder, unless cured by plaintiff within thirty days of receipt of notice of such breach; and (4) that plaintiff agreed not to solicit or accept orders from any person formerly a customer of Aerosol within two years subsequent to termination of employment, unless such termination was caused by the wrongful act of Aerosol.

Plaintiff avers to have fully performed all of the duties imposed upon him under the contract, until November 29, 1965, on which date he received written notice of termination of employment from Aerosol (attaching as Exhibit A, the termination notice). Such notice advised plaintiff, that an investigation of his activities conducted by the Board of Directors revealed plaintiff to have been guilty of grievous neglect in administering to the affairs of the company (which charges were enumerated) amounting to a breach of contract by him. The notice further demanded the return of $68,975.71 by plaintiff, that sum representing received, but allegedly unearned salaries, as well as certain monies improperly withdrawn by plaintiff for expenses.

Plaintiff alleged in the complaint that the termination was wrongful and legally ineffectual to sever the contractual relationship between the parties, averring to have at all times since receipt of notice of termination, been ready, willing, and able to continue to perform his contractual obligations. Plaintiff, thereinafter, made the following request for relief: (1) that the court declare defendant’s attempted termination of no legal effect; (2) that the court declare plaintiff be entitled to recover from defendant all sums provided under the contract; (3) that plaintiff may have judgment at law for the sums remaining payable to him; and (4) that the court reserve its jurisdiction in the matter to, from time to time, enter judgments at law for any sums thereafter becoming due under the contract.

To this complaint, defendant addressed its motion to dismiss based upon the complaint’s failure to state a cause of action for declaratory judgment. Such motion asserted as grounds therefor: (1) that the complaint does not request a declaration of rights under or interpretation of the contract; (2) that plaintiff obfuscates the issue by reference to defendant’s attempted termination, when in fact there was a termination, the sole issue remaining being whether such termination was justified; (3) that the aforesaid issue can be readily resolved by resort to a traditional and single action at law for damages, which plaintiff is not foreclosed from asserting; and (4) that if granted, a multiplicity of law suits would accrue. That motion having been granted, essentially, the issue presented on review is the propriety of a remedy for declaratory judgment under the facts disclosed in the complaint, each party having advanced their respective interpretation of the governing statute in support of and in opposition thereto.

Insofar as relevant, our statute on declaratory judgments provides:

“ (1) No action or proceeding is open to objection on the ground that a merely declaratory judgment, ... is sought thereby. The court may, in cases of actual controversy, make binding declarations of rights, having the force of final judgments, whether or not any consequential relief is or could be claimed, including the determination, ... of the construction of any . . . contract or other written instrument, and a declaration of the rights of the parties interested. The foregoing enumeration does not exclude other cases of actual controversy. The court shall refuse to enter a declaratory judgment, ... if it appears that the judgment, . . . would not terminate the controversy or some part thereof, giving rise to the proceeding.
“(2) ... if a declaration of rights is the only relief asked, the case may be set for early hearing as in the case of a motion.
“(3) If further relief based upon a declaration of right becomes necessary or proper after the declaration has been made, application may be made by petition to any court having jurisdiction. . . .” (Ill Rev Stats (1965) c 110, par 57.1.)

Caution should be taken to keep the language of the statute within its proper perspective, proceedings thereunder being strictly remedial in nature. Declaratory judgment was designed for the single purpose of ameliorating the limited scope of available relief, caused by preexisting deficiencies in the law, by affording an additional or cumulative avenue for a judicial determination. The statute creates, accordingly, no new substantive rights. Historical and Practice Notes, SHA (1956) chapter 110, § 57.1. To that end, and in the interests of fostering the proper administration of justice, the availability of relief under our Act has benefited from a liberal interpretation by the courts to the extent that consequential relief such as money damages, accountings and the like has been conferred in many cases. Central Ice Cream Co. v. Universal Leaseway System, 20 Ill App2d 145, 155 NE2d 324 (1958); Trossman v. Trossman, 24 Ill App2d 521, 165 NE2d 368 (1960); Crerar Clinch Coal Co. v. Board of Education, 13 Ill App2d 208, 141 NE2d 393 (1957).

That the construction and/or adjudication of the validity of a personal service contract, such as the one at bar, can be made the proper subject of inquiry in a declaratory judgment action, while itself not specifically enforceable, we think can fairly be said to be within the spirit and purview of paragraph (1) of our Act: 2 Anderson, Declaratory Judgments, (1951) § 587, p 1316; 22 Am Jur2d Declaratory Judgments, § 58, p 917, that is provided, of course, that an actual or justiciable controversy is first shown to exist. Ill Rev Stats (1965) chapter 110, par 57.1(1), 26 CJS, Declaratory Judgments, § 56, p 155.

Defendant submits, nonetheless, that by virtue of the permissive language of the initial sentence of paragraph (1), it was within the discretion of the trial judge to dismiss plaintiff’s complaint. With that proposition this court must take exception for its failure to recognize the basic distinction between the court’s refusal to grant declaratory relief, and its refusal to entertain the action in the first instance. As to the former, defendant is correct as the court, in its discretion, can decline to grant relief even though, under the facts presented, the statute is sufficiently broad to authorize judgment. Kitt v. City of Chicago, 415 Ill 246, 112 NE2d 607 (1953); Goodyear Rubber Co. v. Tierney, 411 Ill 421, 104 NE2d 222 (1952).

As to the latter however, a contrary rule obtains. When confronted by a motion to dismiss, unless it would appear that the plaintiff is entitled to no relief on the provable stated facts, his complaint must be sustained. A complaint for declaratory judgment which recites in detail an actual and legal controversy between the parties and prays for a declaration of rights as well as other legal relations, states facts sufficient to constitute a good cause of action. Greene v. Gust, 26 Ill App2d 2,167 NE2d 438 (1960). Cf. Mr. Justice Spivey’s dissent in Wolf v. Solem, 26 Ill App2d 262, 167 NE2d 820 (1960).

The distinction noted, our examination of the complaint at bar reveals that no request for a determination of the validity or construction of any ambiguous provisions of the contract is contained therein. Rather, plaintiff simply requests a declaration of his status as a discharged employee, together with consequential money damages. In this regard, plaintiff’s allegations of attempted, but legally ineffectual, termination of the contract are, patently, conclusions of law by him and, under well settled rules of practice, not admitted by the motion to dismiss. Awotin v. Abrams, 309 Ill App 421, 33 NE2d 179 (1941).

We further observe that the averments of attempted termination in the complaint are inconsistent with the pronounced intent of defendant’s letter of termination (attached to the complaint as Exhibit A), which document, in explicit terms, informs plaintiff of his discharge and insists that he vacate his office immediately. Where, as here, the action is one for declaratory judgment predicated upon an alleged “attempted termination” of a personal service contract, the action is founded in part, at least, upon the purported ineffectual notice of discharge. The writing then is more than evidentiary, and hence within the realm of application of Ill Rev Stats (1965) chapter 110, par 36. When such an exhibit is relied upon as a basis for recovery and there exists a discrepancy between the allegations of the complaint and the substance of the exhibit, the latter controls and will be accepted as the factual basis for the complaint. Benner v. Hudelson Baptist Home, 24 Ill App2d 256, 164 NE2d 252 (1960).

Stripped then of its legally deficient and inconsistent allegations, the complaint discloses no uncertainty as to plaintiff’s present and existing status under the contract. The contract was at an end, notwithstanding plaintiff’s averred willingness to continue to perform by its terms. An action for declaratory judgment was unknown to the common law, and is one which is said to be neither legal nor equitable, but sui generis. As such, while itself liberally construed, its provisions must be strictly complied with. Freeport Motor Cas. Co. v. Tharp, 406 Ill 295, 94 NE2d 139 (1950). The complaint, accordingly, is legally insufficient unless it contains allegations which bring the case within the statute authorizing such a judgment. Saline Drainage Dist. v. Sanitary Dist., 399 Ill 189, 77 NE2d 158 (1948).

The contractual relationship having been severed, the only bona fide issue presented by the complaint was whether or not plaintiff’s discharge was justified, a question reserved for a traditional action ex contractu. The Act was not designed to supplant existing remedies. Consequentially, an action brought under it is one which is properly dismissed on motion where there has theretofore accrued another existing and well recognized form of action. Stern v. Material Service Corp., 44 Ill App2d 198,194 NE2d 511 (1963); 16 ILP, Declaratory Judgments, § 2, p 69. The provision in the contract for 5% of net annual profits does not, by itself, offer any unique circumstance warranting a contrary conclusion. It was and is compensable in a traditional action/s at law, which recourse, by the language of the order below, plaintiff is not foreclosed from asserting. By the court’s reservation of jurisdiction, declaratory judgment in the instant case would only have assured a judgment in advance of a determination of its magnitude, and thus, not to any persuasive degree, facilitated a more efficient administration of the matter. In either event, the cause would be demanding of piecemeal application to the respective court.

Plaintiff now by his complaint seeks not to have his present rights in an existing contract declared in a preventative fashion, rather he endeavors to have them enforced and executed after the fact. He has shown no actual and present controversy in its true sense. See City of Flint v. Consumers Power Co., 290 Mich 305, 287 NW 475 (1939), decided under Mich Comp Laws 1929, § 13903, which is essentially in conformity with the provisions of paragraph (1) of the Illinois statute. Historical and Practice Notes, SHA (1956) chapter 110, § 57.1.

Had plaintiff sued at common law he would have had a duty to mitigate damages and been barred from recovery of any sums becoming due after the date of trial. Corby v. Seventy-One Hundred Jeffery Ave. Bldg. Corp., 325 Ill App 442, 60 NE2d 236 (1945); 17 ILP, Employment, § 27, pp 393-394. By his instant action, plaintiff would have no duty to mitigate, enjoy a prompt hearing on the merits under paragraph (2) of the Act, and gain immediate access to one judgment for all sums due or to become due under the contract in excess of three years in advance of that contract’s expiration date. We do not believe that our statute was intended as the agency for such advantage, nor can we lend countenance to plaintiff’s change of the applicable substantive law by his simple choice of forums. American Automobile Ins. Co. v. Freundt, 103 F2d 613 (7th Cir) (1939).

Finally relative to plaintiff’s contention that the restrictive covenant in the contracts necessitates a declaration of his rights, of itself, this court can find no merit, as the complaint makes no request for relief therefrom.

For the above reasons, the order dismissing the complaint is affirmed.

Order affirmed.

BURKE and BRYANT, JJ., concur.


source: Caselaw Access Project

author: MR. JUSTICE BRYANT

license: Public Domain

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Angel R. Ayala, Defendant-Appellant.
    Gen. No. 52,015.
    First District, Second Division.
    December 6, 1967.

      Eric E. Graham and Nathaniel R. Howse, of Chicago, for appellant.
    John J. Stamos, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and Barth H. Goldberg, Assistant State’s Attorneys, of counsel), for appellee.
   MR. JUSTICE BRYANT

delivered the opinion of the court.

The defendant, Angel R. Ayala, was convicted of robbery in a trial by the court. On appeal defendant contends that, (1) his identification as the robber was not proved beyond a reasonable doubt; (2) he was effectively denied a fair trial by the incompetency of his counsel; (3) he was improperly denied trial by jury; (4) the court committed error in failing to appoint an interpreter for him; (5) the court committed error in restricting cross-examination of the State’s eyewitness; and (6) the court committed error in failing to grant a continuance in order that defendant might bring in additional witnesses.

At trial the State produced three witnesses: Margaret Cullen, the victim of the robbery; Frieda Leamon, an eyewitness to the crime; and Albert E. Withall, the police officer who arrested defendant.

Margaret Cullen testified that she was 71 years of age. At 5:30 p. m. on September 18, 1966, she and Mrs. Leamon were standing outside the Red Apple Restaurant at 63rd and Ashland waiting for a bus. Someone whom she did not see tried to take her purse and in so doing knocked her to the sidewalk where she fell on her purse. He then kicked her in the face and body, took her purse containing $14 from her and left her unconscious on the sidewalk. She testified that the purse, including contents, was recovered and later returned. She was unable to identify defendant as the man who had robbed her. She had not seen her assailant. She had first seen defendant at the Englewood Police Station.

Frieda Leamon testified to substantially the same events. She saw the robber approach, knock Mrs. Cullen to the sidewalk, wrest away her purse and flee. As the man began to run away he turned around about ten feet from Mrs. Leamon and looked at her. Mrs. Leamon screamed and a nearby stranger pursued the robber north down Ashland Avenue and into an alley where the robber dropped the purse and ran away. Mrs. Leamon then accompanied Mrs. Cullen to the hospital. Later the police brought the defendant to the hospital where Mrs. Leamon identified him as “definitely” the man who had taken the purse from Mrs. Cullen.

Sergeant Albert Withall testified that he was at 64th and Ashland Avenue at approximately 5:35 p. m., that he observed a citizen on the corner waving his arms at him. Withall stopped and was informed that there had been an incident at 63rd and Ashland and that the man involved had fled westbound through the alley. Withall then went to 64th and Marshfield where he apprehended the defendant. Withall took the defendant to Englewood Hospital where Mrs. Leamon identified him as the robber.

Two witnesses appeared for the defense. Defendant testified that at 5:30 on the afternoon in question he was in the Del Rio Lounge on the west side of Ashland Avenue between 62nd and 63rd Streets. About two or three minutes after he left the bar to go to the home of a friend he was arrested by the police.

Juanita Swan, a waitress at the Del Rio Lounge, testified that defendant was present in the bar drinking during the afternoon of September 18, 1966. She was unable to say exactly what time he left.

Defendant’s first contention on appeal is that the State’s evidence did not prove his identity as the robber beyond a reasonable doubt. Defendant argues that identification of a suspect when he is brought alone before a witness is not entitled to the weight of an identification made from a number of persons. This proposition correctly states the law. However, a positive identification by an eyewitness is sufficient to establish identity beyond a reasonable doubt even though the suspect is not picked from a group. Mrs. Leamon’s identification of defendant was made shortly after the robbery occurred. Her identification was unequivocal. She stated, when defendant was brought before her, that he was “definitely” the man who had struck Mrs. Cullen and taken her purse. The lighting conditions had been good and she had seen the robber’s face at a distance of ten to fifteen feet as he turned to look at her when he fled. The weight and credibility of this evidence was for the trial court to determine. We cannot say that as a matter of law it was insufficient.

Defendant directs our attention to language in People v. Kidd, 410 Ill 271, at 279, 102 NE2d 141 (1952) stating:

“. . . [T]he identification of one person by another who had never seen him before is an opinion or conclusion of the identifying witness, and the attendant circumstances, together with the probability or improbability of affording an opportunity for a definite identification, must be considered in weighing the evidence of identification of one stranger by another.”

Defendant contends that the testimony of Mrs. Leamon identifying defendant as the man who took Mrs. Cullen’s purse was opinion testimony and that a foundation enumerating the facts which led to her conclusion or identification was required. The court was here concerned with the observations made by Mrs. Leamon and not with opinions about what she observed. It is, of course, correct that the court must consider circumstances surrounding the witness’ opportunity to observe in weighing the testimony, but it is not incumbent upon the State to elicit the numerous and perhaps indefinable characteristics noticed by the witness which were the basis of her identification.

Defendant’s second contention is that he was denied a fair trial by the incompetence of his trial counsel. Defendant predicates this contention upon several occurrences at trial which it is claimed demonstrates his counsel’s incompetence. In support of his argument defendant directs our attention to People v. McCoy, 80 Ill App2d 257, 225 NE2d 123 (1967). The McCoy appeal was from a murder conviction in which, as in the instant case, counsel was of the defendant’s choosing rather than court appointed. This court reversed the judgment saying, at pp 263-264:

“Defense counsel was chosen by defendant. The general rule adopted by our courts is that where a defendant is represented by counsel of his own choosing, his conviction will not be reversed for incompetency of counsel unless it can be said from the record that the representation was of such low caliber as to amount to no representation at all, or that it was such as to reduce the trial to a farce
“While we do not believe that the representation given the defendant in this case reduced the trial to a farce, we do believe that the caliber of representation afforded the defendant in this case was such as would deprive the defendant of any chance of being found not guilty.”

Defendant first contends that failure of his trial counsel to ask the court for appointment of an interpreter for his client demonstrated counsel’s incompetence. An examination of defendant’s testimony at trial reveals that he was capable of understanding and making himself understood without the aid of an interpreter. Defendant next argues that counsel’s incompetence was shown by failure to move for suppression of Withall’s testimony to the effect that he was told of an “incident” at 63rd and Ashland on the ground that it was acquired through an unlawful arrest and also by counsel’s failure to object to the testimony as hearsay. Defendant also cites his counsel’s failure to object to some unspecified questions put to certain witnesses by the State and counsel’s allegedly inadequate cross-examination of Mrs. Leamon on her ability to identify defendant. It is also contended by defendant that failure to ask for a continuance in order to bring in alibi witnesses or to request from the State a stipulation as to the testimony of those persons indicated incompetence. Whether or not counsel utilized each and every advantage the law may have permitted and whether or not counsel’s actions were strategically in the best interests of his client’s defense are questions we need not determine on this appeal. It is sufficient to say that our examination of the record indicates no action or omission of defendant’s trial counsel which amounts to a showing of incompetence under the criteria stated in People v. McCoy, supra, or any other Illinois case.

Defendant’s third and fourth contentions are that he was improperly denied trial by jury and that the court erred in failing to appoint an interpreter. The record shows that a jury was expressly waived by defendant through his counsel and in his presence, and that defendant signed a waiver after having been told by the Judge of his right to a trial by jury. Defendant contends, however, that an interpreter should have been appointed to explain to defendant his right to a jury and to insure that the waiver “is not only expressly but understandingly” made as was said in People v. Palmer, 27 Ill2d 311, 189 NE2d 265 (1963). The answer to both of these contentions is that defendant’s ability to speak and understand English was, as we have noted above, demonstrated in his testimony at trial. We find that defendant understandingly waived jury trial and was not prejudiced by the court’s failure to supply an interpreter.

Defendant next argues that error was committed by the court in refusing to allow defendant to ask Mrs. Leamon if the man that accosted Mrs. Cullen was “a colored man or a Spanish man.” The record indicates that the defense was allowed to cross-examine Mrs. Leamon at some length. The issue of defendant’s race was not raised on direct examination and the court obviously viewed the question as unhelpful in determining the accuracy of Mrs. Leamon’s identification of defendant. The court was within the proper bounds of its discretion in ruling as it did upon the objection.

Finally, defendant argues that the court committed error in failing to grant a continuance in order that defendant might bring in additional witnesses. Defendant has also argued on this appeal that the incompetence of his counsel was demonstrated by counsel’s failure at the close of the State’s case to move for a continuance in order to produce the alibi witnesses or to request a stipulation as to the nature of their testimony. The record shows that defense counsel informed the court that his witnesses were not present at the time set for the trial and that he had not subpoenaed them because they were expected to voluntarily appear. He requested some time in which to telephone the witnesses and trial was delayed for more than two hours. At last counsel said he was ready to proceed to trial though he obviously knew that his witnesses were not yet present in court. At no time did counsel move for a continuance nor does it appear that a stipulation was requested of the State. We cannot find error in the Court’s failure to grant a continuance in view of the defense’s failure to take proper steps to secure one.

The judgment is affirmed.

Judgment affirmed.

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


text:
    Donald Maggio, d/b/a Mr. Don, Plaintiff-Appellant, v. The State of Illinois Liquor Control Commission, an Administrative Agency, and Howard Cartwright, et al., Defendants-Appellees.
    Gen. No. 52,096.
    First District, Second Division.
    December 6, 1967.

      M. J. Berkos, of Chicago, for appellant.
    William G. Clark, Attorney General of State of Illinois, of Chicago (John J. O’Toole and A. Zola Groves, Assistant Attorneys General, of counsel), for appellees.
   MR. JUSTICE BRYANT

delivered the opinion of the court.

This is an appeal from an order of the Circuit Court affirming an order of the Illinois Liquor Control Commission which revoked the Retail Liquor License of Donald Maggio.

Donald Maggio, (“appellant” herein) was in 1966 the liquor licensee of a tavern and restaurant located in Forest Park, Illinois. On April 13, 1966, appellant pleaded guilty in Federal Court to the charge of failing to purchase a gambling stamp in violation of Title 26, Section 7203 of the United States Code. This offense was committed upon premises located in Skokie, Illinois, and the appellant was then arrested. On September 6, 1966, a hearing was had before the Illinois Liquor Control Commission and subsequently on September 19 appellant’s liquor license was revoked on the grounds that appellant had violated revised Rule 3 of the Commission’s Rules and Regulations. A petition for review was filed and denied. An administrative review was taken to the Circuit Court and an order was entered on January 20, 1967, affirming the order of the Commission. This appeal is from the order entered by the Circuit Court.

Rule 3 of the Rules and Regulations of the Illinois Liquor Control Commission provides in part:

“To the end that the health, safety and welfare of the People of the State of Illinois shall be protected and temperance in the consumption of alcoholic liquor shall be fostered and promoted by sound and careful control and regulation of the manufacture, sale and distribution of alcoholic liquor, the following rule has been adopted by the Commission.
“1. No person holding a license issued by this Commission shall in the conduct of the licensed business or upon the licensed premises:
“(a) Violate any law of the State of Illinois; or

Appellant first contends that it has not been shown that he has violated any Illinois laws as required by Rule 3. Appellant admits, however, that he was convicted on a plea of guilty of the federal offense of failure to buy a gambling stamp in violation of Section 7203 of Title 26. An element of this offense is either wagering or gambling, Stone v. United States, 357 F2d 257 (5th Cir, 1966); United States v. Conforti, 360 F2d 280 (3rd Cir, 1966). Section 28-1 of the Illinois Criminal Code (Ill Rev Stats 1965, c 38, § 28-1) provides that wagering or gambling is a crime. Thus, appellant’s plea of guilty to the charge of violation of the federal statute is an admission of violation of the Criminal Code of Illinois. Rule 3(5) of the Commission’s Rules and Regulations provides :

“5. Proof before this Commission of facts which establish a violation of any state statute, city, village, town or county ordinance or resolution or rule of this Commission, shall be sufficient cause for revocation or suspension of any license issued by the Commission, irrespective of whether or not a conviction has been obtained in any court.”

Thus it is clear that proof of appellant’s violation of a state statute has been sufficiently provided.

Appellant’s second contention is that he did not commit any offense in the conduct of the business or upon the licensed premises. It is not disputed that the violation charged by the Commission was not perpetrated on the licensed premises. However, appellant has not properly construed the phrase “in the conduct of the business.” It has consistently been held that the privilege of a license is a personal one (25 ILP, Licenses, § 54; 1916 Opinions of Attorney General 511). The license being personal, it follows that the person to whom it is granted is, for the purposes of the Rule, “the business” and the personal integrity and morality of such licensee cannot be detached or separated from the business. See 48 CJS, Intoxicating Liquors, § 175.

The order appealed from is affirmed.

Order affirmed.

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


text:
    Joann Dodge, et al., Plaintiffs-Appellants, v. Allstate Insurance Company, Defendant-Appellee.
    Gen. No. 52,155.
    First District, Second Division.
    December 6, 1967.
    John D. Hayes and John B. Cashion, of Chicago, for appellants.
    Raymond P. Concannon, of Harrington, Petrucelli & Casey, of Chicago, for appellee.
   MR. JUSTICE BRYANT

delivered the opinion of the court.

Joann Dodge, Mary Chernesky and Catherine Pickering, (“plaintiffs” herein) brought action against Allstate Insurance Company (“defendant” herein) to recover as beneficiaries under a “Homeowners” insurance policy issued by defendant. The Circuit Court, Municipal Division, granted summary judgment for the defendant. Plaintiffs appeal.

On January 22,1966, plaintiffs were guests at a skating party given by Harry and Jeannie Davis. The skating party was held at a public park not distant from the Davis home. During that party the plaintiffs were injured upon the ice. Each required medical care for her injuries.

The Davises were the holders of a “Homeowners” insurance policy in effect at the time and issued by the defendant. “Coverage Y” of that policy stated as follows:

“Guest Medical Payments.
“Allstate will pay all medical expenses incurred within one year from the date of accident for bodily injury caused by accident and sustained by any person other than the Named Insured and, if residents of his household, his spouse and the relatives and wards of either:
“1. while on the premises with the permission of an insured, or
“2. while elsewhere if such injury (a) arises out of the premises or a condition in the ways immediately adjoining, or (b) is caused by the activities of an Insured, or (c) is caused by the activities of or is sustained by a residence employee and arises out of and in the course of his employment by an Insured, or (d) is caused by an animal owned by or in the care of an Insured.” (Italics added.)

Plaintiffs do not claim that their injuries were the results of any specific act or acts of the Davises, the insured. Plaintiffs’ contention is that the language of Part 2 (b) of “Coverage Y,” “is caused by the activities of an Insured,” is ambiguous and that this ambiguity must be resolved by a construction favoring the insured. Their argument is that the Davises ice-skating party was an “activity” in the sense of an organized recreation and that construction of the words “caused” and “activity” in favor of the insured will thus bring them within the coverage.

The Circuit Court found no ambiguity in the language in question. We agree.

It is the rule, as plaintiffs assert, that where a policy provision is vague or ambiguous that construction favoring extension of coverage to the insured will be preferred by the courts. We do not find it necessary, however, to apply the rule in this case for we find only one possible reasonable construction of the phrase in question. Plaintiffs are mistaken in the contention that the only words of significance in the quoted phrase are “caused” and “activities.” The language of an insurance policy is not ambiguous because a word or phrase isolated from the context of the whole is susceptible of more than one meaning, or because in context it is susceptible of one reasonable and one unreasonable meaning. Hill v. Standard Mut. Cas. Co., 110 F2d 1001 (1940). The language in issue must be taken as a whole and in its plain, ordinary and popular sense. Geneva Miller v. Madison County Mut. Automobile Ins. Co., 46 Ill App2d 413, 197 NE2d 153 (1964); Cook v. Suburban Cas. Co., 54 Ill App2d 190, 203 NE2d 748 (1964). Reasonable construction of the language read in context and as a whole discloses no ambiguity. Such a reading of the policy also discloses that there can be no recovery by the plaintiffs as there was no activity of the Davises that caused the plaintiffs to fall on the ice. The social party given by the Davises did not in fact cause the injuries complained of. The possibility of strained or unreasonable interpretations of the policy language does not give rise to the necessity of applying a rule of construction that would bring plaintiffs within coverage.

The summary judgment for defendant was correct and is affirmed.

Judgment affirmed.

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


text:
    James L. Currie, et al., Plaintiff-Appellant, v. Etalo Daminato, Defendant, and A. H. Sollinger Construction Co., Inc., Garnishee-Defendant-Appellee.
    Gen. No. 67-27. (Abstract of Decision.)
    Second District.
    December 7, 1967.
    Paulson and Ketchum, of Chicago, for appellant; Robert L. Tarrel, of Chicago, for appellee.
   Opinion by JUSTICE MORAN. Not to be published in full.


author: STOUDER, P. J.

text:
    People of the State of Illinois, Appellee, v. Kenneth Dykema, Appellant.
    Gen. No. 66-99.
    Third District.
    December 7, 1967.

      Bull, Ludens & Potter, of Morrison, for appellant.
    L. E. Ellison, State’s Attorney, of Morrison, for appellee.
   STOUDER, P. J.

On May 31, 1966, Respondent-Appellant, Kenneth Dykema, was charged in a criminal complaint filed in the Circuit Court of Whiteside County with the offense of public indecency. On June 6, 1966, a petition was filed by the People alleging Respondent to be a sexually dangerous person. Pursuant to a petition, the court on June 13, 1966, appointed Doctors Savage and Cabrera to examine Respondent. On September 8, 1966, jury having been waived, trial was held before the court resulting in a finding by the court that the Respondent is a sexually dangerous person.

At the trial the People introduced the testimony of several children to the effect that Respondent had induced or sought to induce children to get into his car and had exposed or attempted to expose his private parts in their presence, such acts occurring within two months of the filing of the petition in this case. Respondent’s counsel stipulated that Respondent had been confined in the East Moline State Hospital from 1958 to 1959, that Respondent had been convicted and sentenced for the criminal offense of rape in 1960 and Respondent’s counsel further stipulated that the medical reports of Doctors Roubicek and Rybak could be admitted into evidence.

On appeal in this court Respondent argues that the People failed to make out a prima facie case and that certain of his constitutional rights have been violated.

This proceeding was commenced in the trial court under section 105, chapter 38, Ill Rev Stats 1965, which in subsection 1.01, defines a sexually dangerous person; in subsection 4, provides for the examination of Respondent by two qualified psychiatrists, the filing of their reports and delivery of copies to the Respondent; and in subsection 4.01, defines a qualified psychiatrist.

Respondent’s assignments of error are based primarily upon the failure of the People to comply with the statutory requirements relating to appointment and examination by qualified psychiatrists. The record fails to reveal what occurred with respect to the appointment of Doctors Savage and Cabrera on June 16, 1966. Subsequent to the appointment of these doctors the record is silent concerning any participation by them in the proceeding. On September 8, 1966, the day of the hearing, there appears a docket entry that a motion to substitute psychiatrists was filed and granted. The motion was apparently an oral motion and the docket entry offers no explanation as to its propriety nor the appointment of any psychiatrists including the particular Doctors Roubicek and Rybak, whose reports were later admitted into evidence. Except for the stipulation the record does not reveal that the reports of the psychiatrists were filed with the court or delivered to the Respondent prior to admission into evidence. Further such medical reports do not purport to set forth the experience or qualifications of the doctors making such reports.

Section 105, subsection 3.01, chapter 38, Ill Rev Stats 1965, provides that a proceeding to determine whether a person is sexually dangerous is civil in nature. Such proceedings may result in a deprivation of liberty and a defendant must be accorded the essential protections available in a criminal trial. People v. Olmstead, 32 Ill 2d 306, 205 NE2d 625. The statute, being in the nature of a penal statute, should be strictly construed. People v. Bruckman, 33 Ill2d 150, 210 NE2d 537.

The People contend that whatever irregularities are revealed by the record were waived by the stipulation of Respondent’s counsel that the medical reports of Doctors Roubicek and Rybak could be admitted into evidence with the same effect as if said doctors had testified personally to the facts contained therein. We do not agree with the People’s contention. The record discloses that two physicians were appointed by the court but such physicians neither filed reports nor testified as witnesses. We can only conjecture as to whether these physicians examined Respondent and whether, if the examination was conducted, their reports were favorable or unfavorable to the position of the People. The physicians whose reports were considered by the court, pursuant to the stipulation, were not shown by the record to be either appointed by the court or qualified. Further, the only compliance with the statute concerning filing of the reports and delivery of copies to Respondent is also based on the stipulation entered into during the progress of the trial. To the extent the People contend that compliance with the statutory requirements was waived by the Respondent, we can only say that where waiver is claimed as a basis for noncompliance the record must affirmatively show as in other criminal proceedings, that the right was knowingly and voluntarily waived. A stipulation related solely to the admission of medical reports does not meet this requirement. We are not prepared to say which, if any, of the failures to comply with the statute might, standing alone, result in reversible error. We believe the cumulative effect of such errors leads to the conclusion that Respondent was deprived of a fair trial.

Upon a retrial of this case other matters about which Respondent has complained may not recur and we find it unnecessary to consider other assignments of error.

Accordingly the judgment of the Circuit Court of Whiteside County is reversed and the cause is remanded to said Court with directions that Respondent be granted a new trial.

Reversed and remanded with directions.

ALLOY and CULBERTSON, JJ., concur.


text:
    People of the State of Illinois, Plaintiff-Appellee, v. John Allen Scott, Defendant-Appellant.
    Gen. No. 67-17.
    Third District.
    December 7, 1967.
    Robert P. Boeye, of Rock Island, for appellant.
    Richard Stengel, State’s Attorney, of Rock Island, for appellee.
   STOUDER, P. J.

This is an appeal by John Allen Scott, Defendant, from a verdict and judgment of the Circuit Court of Rock Island County finding Defendant guilty of burglary of a clothing store in Rock Island, Illinois.

Defendant, testifying in his own behalf, admitted three prior convictions for infamous offenses. As rebuttal evidence, the State offered the record of Defendant’s conviction for a fourth felony. Defendant objected on the ground that this conviction was being appealed which objection was denied. The State’s Attorney read the record of the conviction to the jury including the indictment which charged the Defendant with two felonies although the record indicated that the Defendant was found guilty of only one charge.

Defendant assigns as error the introduction of the conviction while such conviction was being appealed and the presentation to the jury of an alleged offense for which Defendant was not convicted.

The question of the introduction of a conviction for impeachment purposes while such conviction is being appealed has recently been considered in People v. Spears, 83 Ill App2d 18, 226 NE2d 67, and People v. Webb, 80 Ill App2d 445, 225 NE2d 679. In such cases the introduction of the conviction was not deemed error and we adhere to these precedents.

The People concede that it was error to present to the jury the information that the Defendant was charged with an offense for which he was not convicted. It is, however, argued that such error was not prejudicial. We agree with this contention. Defendant failed to object or otherwise call to the court’s attention, the improper evidence of impeachment. Moreover, including the offense described in the preceding paragraph the record reveals four prior convictions for infamous offenses. This is not a case where erroneously admitted evidence is the only evidence of impeachment as in People v. Snook, 35 Ill2d 597, 221 NE2d 290. Under such circumstances we do not believe that the improper evidence of impeachment can be deemed to have had any effect on the jury and therefore such error was not prejudicial to the Defendant. People v. Squires, 27 Ill2d, 518, 190 NE 2d 361.

For the foregoing reasons the judgment of the Circuit Court of Rock Island County is affirmed.

Judgment affirmed.

ALLOY and CULBERTSON, JJ., concur.


author: PER CURIAM.

text:
    John E. Robinson, Plaintiff-Appellant, v. City of Geneseo, Illinois, a Municipal Corporation, Defendant-Appellee.
    Gen. No. 67-28.
    Third District.
    December 7, 1967.
    Winstein & Kavensky, of Rock Island, for appellant.

      Andrews & Andrews, of Kewanee, and Jay M. Hanson, of Geneseo, for appellee.
   PER CURIAM.

The complaint of plaintiff, John E. Robinson, in the cause now before us sought a declaratory judgment that plaintiff was entitled to serve as Chief of Police of the City of Geneseo until November 14, 1966, in accordance with a contract dated December 26, 1963, for a three-year term beginning as of November 15, 1963. The contract provided that the city had been instructed by unanimous vote of the city council to enter into the contract to employ the plaintiff as Police Chief for a period of three years from November 15, 1963, to November 14, 1966. The duties of Chief of Police were outlined in detail in the contract and the contract set the salary, the vacation and provided for other fringe benefits. In the contract it was provided “This contract may be terminated only by mutual agreement of both parties hereto.” Plaintiff performed his duties as Chief of Police for Geneseo for a little over two years until December 2, 1965, when he was removed from that office by the action of the City Council without his approval. The complaint filed by plaintiff combined a request for declaratory judgment declaring the rights of the respective parties under the contract for plaintiff’s employment with a request for an injunction against the City of Geneseo enjoining the city from interfering with the plaintiff’s performance of his duties as Chief of Police for Geneseo for the balance of the contract period. The City of Geneseo filed a motion to strike the complaint setting forth nine different grounds for the motion. Following a hearing, the motion to strike was granted and the plaintiff has appealed. The first appeal was dismissed by this court for the reason that a final and appealable order was not entered. This defect, however, was cured by entry of an order.

The City of Geneseo exists under a charter of 1865 which provides for the election of a mayor annually in April and one alderman for each ward. There is a provision that the aldermen serve two-year terms so that half of them are elected each year. Article V of the Geneseo charter provides “Section One. The City Council of the City of Geneseo shall have power to appoint a city marshal who shall be ex officio collector . . . ; and the City Council may remove any of said officers at their pleasure, either for misconduct or for any other cause.” The Code of the City of Geneseo, Section 9-1-2 provided “Chief of Police: The marshal shall be an ex officio chief of police and shall be appointed annually by the Council . . . .”

On appeal in this court, plaintiff contends (1) that the municipality had the right to enter into the contract even though the power was irregularly exercised and is bound by its terms; (2) that the contract is divisible and not entire and (3) that defendant-appellee is estopped to deny the validity of the contract having accepted its benefits. As authority for the position taken by the plaintiff, plaintiff cites City of East St. Louis v. East St. Louis Gas Light & Coke Co., 98 Ill 415 and McGovern v. City of Chicago, 281 Ill 264, 118 NE 3. The City of East St. Louis case involved a contract for street lighting for a thirty-year period. Action was brought to recover payment for six months of lighting which had already been furnished to the city under the terms of the contract. The city argued that the contract was ultra vires and not enforceable. The court correctly concluded that the city had the power to contract for street lighting and the contract was not illegal. In sustaining the claim of the company as against the city, the court stated that the city had received benefits and was bound to pay for them. The court, in that case, at pages 426-427 stated specifically:

“Such an objection as is made to this contract, that it interferes with the exercise of the legislative or governmental power of the city over the subject, does not require that the contract should be held void, but only voidable so far as it is executory. It is enough for the obviating of any such objection, that there be the right at any time to avoid the contract, so that there may be the freedom to exercise its governmental power in regard to the subject, when and as the city pleases.”

The court thus made it clear that it was not upholding the validity of the entire 30-year contract, but merely requiring the city to pay for what it had received.

In the McGovern v. City of Chicago case, supra, a similar fact situation was involved. In that case a contract for asphalt which had been satisfactorily performed by the contractor resulted in an action by the contractor for the unpaid balance. The city contended that the contract was invalid because the time for performing the work extended beyond the fiscal year for which the appropriation for such work was made. The contractor was permitted to recover. The court in considering the ultra vires argument stated, at page 280:

“There is a distinction between contracts which are ultra vires and contracts which are within the power of the city to make but which have been irregularly or illegally made but have been performed in good faith. In Dillon on Municipal Corporations (5th ed sec 1611) it is said: ‘A municipal corporation, as against persons who have acted in good faith and parted with value for its benefit, cannot, unless by virtue of some statutory provision, set up mere irregularities in the exercise of power conferred, as, for example, its failure to make publication in all of the required newspapers of a resolution involving the expenditure of moneys. Such failure might have the effect to invalidate a local assessment upon the abutter if there were no grounds of estoppel, this being a matter in invitum, but as regards a bona fide contractor with the city who had expended money for its benefit in respect of a matter within the scope of its general powers, the contract would not be ultra vires in the true sense of that term, and the city would be estopped to set up as a defense its own irregularities in the exercise of a power clearly granted to it.’ This principle applies to the case at bar.”

The court there concluded that since the city had received the benefits under the contract it was bound to pay for the benefits actually received since the contract was not void but merely ultra vires in a secondary sense. It is significant that in the City of East St. Louis and the McGovern case, the court merely required that the municipality pay for what benefits they had actually received under the agreements. No such issue is involved in the instant case since plaintiff was fully paid for actual services rendered by plaintiff.

Paragraph eight of the contract states that it “may be terminated only by mutual agreement of both parties.” Article V, Section One of the City Charter provides that officers can be removed at the pleasure of the council. Since the contract is in conflict with the charter provisions and the City Council had acted to remove plaintiff, the contract should not thereafter be binding on the City of Geneseo unless Paragraph eight could be deemed a binding waiver. We perceive no compelling public policy to be served by requiring a waiver of the termination provision in the City Charter in the cause before us.

Plaintiff also contends that since the City has accepted the benefits of the contract it is estopped to deny the validity of the contract. In support of this contention, plaintiff relies on Great Lakes Dredge & Dock Co. v. City of Chicago, 353 Ill 614, 188 NE 196, and People v. Spring Lake Drain, and Levee Disk, 253 Ill 479, 97 NE 1042. Both of these cases involved agreements by municipalities which were ultra vires in a “limited or secondary sense” similar to the agreements in the East St. Louis and McGovern cases referred to in this opinion. The court in both of these cases allowed recovery only for the benefits actually received by the municipalities. In no case which has been called to this court’s attention has the doctrine of estoppel been applied so as to obligate a municipality for future services of the character involved in this case (where the contract was in violation of the charter provisions) .

In passing, the plaintiff contends that the contract in the instant case was divisible. In this we agree to the extent that the portion of the contract performed before plaintiff was dismissed on December 2, 1965, is divisible from the remaining 11½ months of the contract not actually performed by plaintiff. The city has paid for 24½ months under the contract and as to this 24½ months the contract was valid and payment to plaintiff was proper. As to the remaining 11½ months of the contract we find no basis for its enforcement in the record in this cause.

We conclude that the theory of estoppel does not apply in the instant case as to services not rendered by the plaintiff following his dismissal. We also feel that although the contract may have been motivated by public welfare and good faith and that it is to the benefit of cities in Illinois to be able to contract for such services for an extended period of time, it was necessarily made with a view to the actual charter limitation that the services of plaintiff could be terminated under the terms of such provision. In absence of a showing of benefit to the city for which payment should be made or of facts which would require invocation of the doctrine of estoppel, we must conclude that the action of the city council effectively terminated plaintiff’s service as chief of police.

In an appropriate case where overriding public policy might be subserved, a waiver of a termination provision in a charter or of the doctrine of estoppel might be properly invoked. Under the facts and record in this case, however, we believe that the trial court was justified in granting the motion to dismiss.

The judgment of the Circuit Court of Henry County is, therefore affirmed.

Affirmed.


author: MR. PRESIDING JUSTICE DAVIS

text:
    Marengo State Bank, an Illinois Banking Corporation, Plaintiff-Appellee, v. Tilden P. Meyers, et al., Defendants-Appellants.
    Gen. No. 67-30.
    Second District.
    December 7, 1967.

      Canfield, Canfield and Franks, of Rockford, for appellants.
    Paul W. Jevne, of Marengo, and Peterson, Lowry, Rall, Barber and Ross, of Chicago, for appellee.
   MR. PRESIDING JUSTICE DAVIS

delivered the opinion of the court.

This is an appeal by Marion Meyers Johnson, herein called the appellant, from a judgment entered against her after a bench trial in the Circuit Court of the 17th Judicial Circuit. The defendant-appellant is the mother of Tilden P. Meyers, herein called Tilden, and Frank P. Meyers, herein called Frank, who were additional defendants in this litigation.

On August 3, 1966, the Marengo State Bank, herein called the Bank, caused a judgment to be confessed against the three defendants in the total sum of $27,601.-80, and costs of the suit. This judgment, herein referred to as the original judgment, was based on a promissory-note in the principal sum of $25,000, with interest due thereon in the sum of $86.80 and attorney’s fees in the sum of $2,515, pursuant to the provisions of the confession clause of the note.

The essential facts in connection with this litigation are undisputed. The appellant and her two sons held title, in joint tenancy, to a parcel of farmland near Belvidere on which Tilden and his family resided. Prior to January 20, 1966, Tilden negotiated a $20,000 loan with the Bank, based on his financial statement, showing a net worth of $419,200, and the joint signatures of the appellant and Frank.

Tilden desired to remodel his home and advised the Bank that the proceeds of the loan would be used for this purpose,' and subsequently $19,500 thereof was so used. On January 20, 1966, Tilden delivered to the Bank an executed judgment note in the sum of $20,000, due July 1, 1966, purporting to bear the signatures of the appellant and Frank, as well as his own. The appellant’s and Tilden’s signatures were genuine, but that of Frank was a forgery.

Prior to July, 1966, Tilden again called at the Bank and requested a renewal of the existing loan, and an additional $5,000, which was needed to complete the home remodeling work. The Bank agreed to comply with Til-den’s request and gave him a new note in the sum of $25,000 with directions that he obtain the signatures of the appellant and Frank on said note and return it to the Bank. This note was executed by Tilden at that time and was payable on September 14,1966.

On July 14, 1966, Tilden delivered the $25,000 note to the Bank with the purported signatures of the appellant and Frank thereon, received an additional $5,000 from the Bank, and a bank teller surrendered the $20,000 note to him. This note remained in Tilden’s possession until produced at the trial by him, pursuant to subpoena. On the face of the note the teller wrote the word “Renewed.”

The purported signatures of the appellant and Frank on the $25,000 note were both forgeries and they filed motions to vacate the judgment and for leave to plead. The judgment was opened up as to them on September 2, 1966, they were given leave to plead, and each filed an answer which stated in substance that his and her purported signatures were not genuine, but rather, were forgeries. Pending hearing on the pleadings, the judgment stood as security.

On September 23, 1966, pursuant to leave of court, the Bank filed an amendment to its complaint — designated as Count II — alleging a second cause of action against the appellant and Frank, based upon the $20,000 note dated January 20,1966.

This count alleged: the making and delivery of the $20,000 note and its provision for interest and attorney’s fees; that while the Bank was the owner and holder thereof, Tilden delivered to it the $25,000 note dated July 14, 1966, purportedly executed by the three defendants against whom judgment was confessed, and Tilden then paid the interest due on the $20,000 note; that Til-den on July 14, 1966, received an additional $5,000 loan from the Bank, and when he presented the $25,000 note to it, he represented to the Bank that it had been signed by himself, the appellant and Frank, knowing that the signatures of appellant and Frank were forgeries; that the Bank relied on Tilden’s representations and returned the note dated January 20, 1966 to him; that had the Bank known that the signatures of the appellant and Frank were forgeries, it would neither have made the additional loan of $5,000 to Tilden nor returned the $20,000 note to him; that the Bank is the owner and holder of the $20,000 note; and that there is due and owing to it on said note, from the defendants, Frank, and the appellant, the principal sum of $20,000, plus interest in the sum of $116.66, and attorney’s fees in the sum of $2,015, making a total amount due of $22,131.66, and costs of the suit.

The appellant filed a motion to strike Count II, which was denied, and the appellant and Frank each thereafter answered the count in the nature of a general denial, and they asserted, as an affirmative defense, that the Bank was not the owner and holder of the note; and that it had been surrendered to Tilden, as one of the makers, and was thereby discharged. Frank further asserted that the note dated January 20,1966, did not bear his signature.

On September 23, 1966, the judgment of August 3, 1966 was confirmed against Tilden and the case was tried on October 7, 1966. The court then found that the appellant’s signature on the note of January 20, 1966 was genuine; that the purported signature of Frank thereon was not his signature; and that the purported signatures of appellant and Frank on the note dated July 14,1966, in the sum of $25,000 were not their respective signatures. On said date, the court vacated the judgment entered against Frank on August 3,1966, in the sum of $27,601.80, and on November 2, 1966, vacated said judgment as to appellant.

Thereafter, on January 23, 1967, the court entered judgment for the Bank and against the appellant on Count II in the sum of $20,643.33. The court found in its judgment order, herein referred to as the second judgment, that the signatures of Tilden and the appellant on said note were genuine; that Frank’s was a forgery, and found the facts heretofore stated relative to Tilden’s negotiation of the $25,000 loan. It recited the vacation of the August 3, 1966 judgment as to appellant and Frank; found that Tilden obtained possession of the $20,000 note from the Bank by fraudulent and deceitful means; and that its delivery to Tilden did not release the appellant from her liability on said note.

The court included in its judgment on Count II, in favor of the Bank and against the appellant, the principal sum of said note — $20,000—plus interest thereon from July 14, 1966 to January 23, 1967, in the sum of $643.33, and costs. It further ordered that all payments made by appellant as to principal, interest and costs on this second judgment, be also credited on the original judgment against Tilden; and that all payments made by Tilden as to principal, interest and costs on the original judgment entered against him, be credited to and applied on the principal, interest and costs of the second judgment. Subsequently, by nunc pro tunc order, the court clarified the second judgment and ordered that the plaintiff not recover attorney’s fees from appellant.

The appellant has appealed from this judgment in the sum of $20,643.30, and the Bank has cross-appealed from that part of the second judgment order disallowing it attorney’s fees, and from the judgment order entered November 2, 1966 which vacated the original judgment as to appellant.

The appellant contends that the judgment against her was erroneous for the reason that the Bank was neither the holder nor the owner of the note upon which the judgment was based; and that the Bank had voluntarily surrendered the note to one of the original makers and had thereby discharged the obligation created by the note. In support thereof she cites sections 3-605(1) (a), (b) and (2); and 3-601 (3) (a) and (b) of the Commercial Code (Ill Rev Stats c 26, pars 3-605(1) (a), (b) and (2); and 3-601(3) (a) and (b)), which provide:

“3-605 CANCELLATION AND RENUNCIATION.
“(1) The holder of an instrument may even without consideration discharge any party
“(a) in any manner apparent on the face of the instrument or the indorsement, as by intentionally cancelling the instrument or the party’s signature by destruction or mutilation, or by striking out the party’s signature; or
“(b) by renouncing his rights by a writing signed and delivered or by surrender of the instrument to the party to be discharged.
“(2) Neither cancellation nor renunciation without surrender of the instrument affects the title thereto.
“3-601 DISCHARGE OF PARTIES.
“(3) The liability of all parties is discharged when any party who has himself no right of action or recourse on the instrument
“ (a) reacquires the instrument in his own right; or
“(b) is discharged under provisions of this Article, except as otherwise provided with respect to discharge for impairment of recourse or of collateral (Section 3-606).”

The Bank urges that appellant is liable to it in that she knowingly and voluntarily executed the note of January 20, 1966, and its proceeds substantially inured to her benefit; and that her liability was not discharged when the co-maker, Tilden, by fraudulent and deceitful means induced the Bank to surrender that note to him. It contends that the discharge provisions of Article 3 of the Commercial Code, upon which appellant relies, apply only to negotiable instruments; and that the note of January 20, 1966, is not a negotiable instrument within the meaning of the Code since it provided that judgment could be confessed upon it before maturity. The Bank cites sections 3-102(1) (e) and 3-112(1) (d) of the Commercial Code to sustain its contention. (Ill Rev Stats 1965, c 26, pars 3-102(1) (e) and 3-112(1) (d)). Said sections provide as follows:

“3-102 Definitions and Index of Definitions.
“(1) In this Article unless the context otherwise requires
“(e) ‘Instrument’ means a negotiable instrument.
“3-112 Terms and Omissions Not Affecting Negotiability.
“(1) The negotiability of an instrument is not affected by
“(d) a term authorizing a confession of judgment on the instrument if it is not paid when due; . . .”

The Bank further asserts that the provision in the note of January 20, 1966, requiring the makers to pay attorney’s fees in event the note was placed in the hands of an attorney for collection, is valid; that the trial court erred in failing to include the stipulated attorney’s fees in the second judgment which it entered against the appellant as a co-maker of the note; and that the trial court should have permitted the original judgment to stand as security until a final determination of the cause on its merits.

The threshold question is whether the $20,000 note dated January 20, 1966, was discharged by its delivery or surrender to Tilden, as provided in section 3-605(1) (b) of the Commercial Code. The answer depends, in part, upon whether the note was a negotiable instrument. If so, the above provisions of the Code may govern, and if not, such provisions would be inapplicable.

Both of the notes in question provided that judgment could be confessed thereon “at any time after date.” The Code comment with reference to section 3-112(1) (d) states:

“This paragraph changes Illinois law. Section 5 (2) of the Illinois version of the NIL deleted the clause ‘if the instrument be not paid at maturity’ in Sec 5 (2) of the Uniform Law. This change was intended to incorporate in the Illinois NIL the rule of Gehlbach v. Carlinville Nat’l Bank, 83 Ill App 129 (3rd Dist 1898), which held that a clause allowing confession of judgment to be made even before maturity did not impair negotiability of a note. See Beard v. Baxter, 258 Ill App 340 (3rd Dist 1930); Davis v. Mosbacher, 252 Ill App 536 (4th Dist 1928), cert denied, 252 Ill App xiii.
“Under this paragraph an instrument may not authorize confession before maturity and remain negotiable.”

(SHA c 26, par 3-112 (1) (d), p 59).

If the negotiability of an instrument is not affected by a term authorizing a confession of judgment on the instrument if it is not paid when due, conversely, it would seem that the negotiability would be affected by a term in the instrument authorizing a confession of judgment thereon prior to its maturity. This view is sustained by both court decisions and texts. Hawkland — A Transactional Guide to the Uniform Commercial Code — Vol 1, pages 476 and 477 states:

“Subsection 3-112(1) (d) is an important provision in the handful of states that permit a clause to be inserted in a negotiable instrument authorizing the confession of judgment. The subsection makes it plain that the confession of judgment clause is not an acceleration clause, and, therefore it can be used in a negotiable instrument only if the instrument is not paid when due. Clauses permitting a judgment to be confessed at any time, therefore, destroy negotiability. This is made clear by official Comment 2 to section 3-112, which states that: ‘As under the original Section 5(2), paragraph (d) is intended to mean that a confession of judgment may be authorized only if the instrument is not paid when due, and that otherwise negotiability is affected.’ ” (Italics Ours.)

In Bittner v. McGrath, 186 Pa Super 477, 142 A2d 323 (1958) at page 325 the court stated:

“The note of the defendants for $5,400 which was assigned to the plaintiff by Narduc authorized the confession of judgment (as did all other notes executed by the defendants) ‘as of any term’. The note therefore was not negotiable. A note containing a warrant to confess judgment at any time is a nonnegotiable instrument. Cf. Uniform Commercial Code of April 6, 1953, PL 3, 12A PS Section 3-112 (d); Shinn v. Stemler, 158 Pa Super 350, 45 A2d 242.”

Also see: Smith v. Lenchner, 204 Pa Super 500, 205 A2d 626 (1964); Fidelity Trust Co. v. Gardiner, 191 Pa Super 17, 155 A2d 405 (1959); United States Nat. Bank in Johnstown v. Drabish, 187 Pa Super 169, 144 A2d 640 (1957) ; Shinn v. Stemler, 158 Pa Super 350, 45 A2d 242 (1946).

In view of the determination that the notes in question were not negotiable, we conclude that sections 3-601 and 3-605, cited by the appellant, have no relevancy to such notes and do not compel us to hold that the $20,000 note dated January 20, 1966, was discharged by its delivery to Tilden.

Section 1-103 of the Code (Ill Rev Stats 1965, e 26, par 1-103), provides:

“Sec. 1-103. Supplementary General Principles of Law Applicable.
“Unless displaced by the particular provisions of this Act, the principles of law and equity, including the law merchant and the law relative to capacity to contract, principal and agent, estoppel, fraud, misrepresentation, duress, coercion, mistake, bankruptcy, or other validating or invalidating cause shall supplement its provisions.” (Italics Ours.)

It is our belief that the drafters of the Commercial Code did not intend to draw a set of inflexible rules which would cast aside the long-recognized and well-established basic legal principles governing parties to commercial paper. Rather, they specifically provided that the provisions of the Code were to be augmented by such principles, including those related to fraud, misrepresentation and mistake.

The evidence in this case was largely uncontroverted, and we believe that the plaintiff proved by the preponderance thereof that Tilden obtained possession of the note dated January 20, 1966, by fraudulent and deceitful means. Such finding was made in the judgment order dated January 23, 1967. Under such circumstances, the trial court was correct in holding that the appellant could not retain the benefits of the fraud perpetrated by her son, Tilden. The law neither condones fraudulent conduct, nor does it permit one party to reap the harvest of another’s fraud.

In the case of Hood v. Hollister, 235 Ill App 112 (1924), the plaintiff, Rosa Hood, loaned $300 to Carl Hollister, taking an interest-bearing note signed by Carl and his brother, James. On maturity of the note, Carl asked for an extension and was told to see his brother with regard to further security. He later delivered a new note to the plaintiff, likewise purportedly signed by himself and his brother. Thereupon, the plaintiff surrendered the first note to Carl. When the plaintiff learned that James had not signed the second note, she instituted suit against him for the amount due on the original note.

James pleaded release by delivery of the original note to the co-maker; the payment of the original note by the acceptance of the new note; an account stated by acceptance of the new note for and on account of the first note; and release of himself from liability on the first note by reason of the extension of time by acceptance of the new note without his knowledge or consent. At pages 117,120 and 121 the court stated:

“It is well understood that fraud vitiates every transaction into which it enters. Three special pleas were interposed to the declaration counting on the first note upon which the suit was brought: release, payment, and discharge of appellant on account of extension of time to Carl Hollister. Before the matter pleaded could operate to bar the action, the transaction must have been a lawful one, or one, though unlawful, was known to be so by appellee; or that she had notice of facts that put her upon inquiry which she failed to pursue to knowledge. . . .
“. . . Under very similar circumstances the Appellate Court of the First District in Commercial Loan and Trust Company v. Mailers, 141 Ill App 460 (462) . . . said:
“ ‘Appellee cannot disaffirm the action of his son in indorsing his name upon the new note, and thereby escape the obligation of paying it, and affirm the son’s action as paying the note in faith of the unauthorized indorsement. So that appellee, in repudiating his liability upon the second note, assumes the obligation to discharge his liability arising from his guaranty of the first note.’ ”

The contentions of the appellant in the case at bar and the appellee in Commercial Loan & Trust Co. v. Mailers, supra, are substantially the same. Consequently, we believe that the appellant in repudiating her liability upon the second note by virtue of the forgery of her signature thereon, thereby assumed the obligation to discharge her liability as a co-maker of the first note which bore her genuine signature. Absent other facts compelling a contrary holding, right reason requires that a note bearing the signature of co-maker A, which has been surrendered to co-maker B, be revived and made enforceable upon a determination that the signature of co-maker A was forged on the second note, which co-maker B gave in liquidation of the first note.

In 10 CJS, Bills & Notes, par 444(d), page 980, the general rule of law governing cases of this character is stated as follows:

“Since an obligation cannot be paid and satisfied by a new promise of a debtor which is unfulfilled and which he can avoid at his pleasure, a note is not discharged by the giving of a new note in payment thereof where the new note proves invalid. Therefore, the surrender of a note and the acceptance of a new note in payment without knowledge that the new note is a forgery does not discharge the original note.” (Citations.) Also see: Manker for Use of Ruyle v. Manker, 249 Ill App 161, 163 (1928).

Thus, the trial court properly found, under the law and the evidence in the case at bar, that the surrender of the original note was accomplished by Tilden’s fraud and deceit; and that the original obligation, therefore, was not discharged. In addition, the record in the case at bar fails to disclose that the Bank had notice of facts to put it on inquiry which it failed to pursue.

We do hot believe that the trial court erred in denying attorney’s fees as a part of the judgment entered against the appellant. Such fees in the sum of $2,015 were included in the judgment which was entered on the $25,000 note. The total indebtedness which the Bank can collect by virtue of the judgments of August 3, 1966, against Tilden in the sum of $27,601.80 and of January 23, 1967 against the appellant in the sum of $20,643.33, is the total amount of the first judgment, plus interest due thereon and costs of suit. An award of fees in connection with each judgment would constitute a duplication of attorney’s fees and would bear the same hallmark of impropriety and unfairness of which the Bank herein complains.

The Bank has also urged that the trial court should have permitted the original judgment of August 3, 1966, which was entered against all three defendants, to stand as security until the final determination of the cause on its merits. This judgment was opened up on September 2, 1966, the appellant and Frank were granted leave to plead, and the judgment was ordered to stand as security.

The case was tried on October 7, 1966, and the court, in its judgment order of November 2, 1966, found that the signature of the appellant on the $25,000 note was a forgery, and vacated and set aside this judgment as to her. At this time, the Bank had filed Count II of its complaint, the appellant and Frank had filed answers thereto, and all proof had been made in connection with this litigation. Nothing further transpired until the court entered its order of January 23, 1967, which was heretofore referred to in detail, and which ordered, among other things, that the Bank recover from the appellant, $20,643.25 and costs of suit. Appellant contends that the judgment of August 3, 1966 was opened up as to her on September 2, 1966, and was vacated as to her on November 2, 1966; and that there was no basis for any lien against her thereafter until the entry of the judgment against her on January 23,1967.

Supreme Court Rule 23 provides, among other things, as follows:

“OPENING OF JUDGMENT BY CONFESSION . . .
“If an order is entered opening the judgment, defendant may assert any counterclaim, and plaintiff may amend his complaint so as to assert any other claims, including claims which have accrued subsequent to the entry of the original judgment. . . . The original judgment stands as security, and all further proceedings thereon are stayed until the further order of the court, but if the defense is to part only of the original judgment, the judgment stands as to the balance and execution may issue thereon.” (Ill Rev Stats 1965, c 110, par 101.23.) (Italics Ours.)

Under the above Rule and court decisions, courts exercise jurisdiction, equitable in nature, over judgments obtained by confession under warrants of attorney in order to admit a defense upon the merits, allow a plaintiff to amend his complaint to assert any other claim, including those which accrued subsequent to the entry of the original judgment and to permit the defendant to assert any proper counterclaim. Under this Rule, the judgment is not vacated or set aside, but rather is opened up to afford both parties litigant an opportunity for a hearing on the merits on all claims and defenses involved — the judgment meanwhile remaining in force and standing as security. First Nat. Bank of Palatine v. Hahnemann Institutions of Chicago, 356 Ill 366, 370, 371, 190 NE 707 (1934); Farmers Bank of North Henderson v. Stenfeldt, 258 Ill App 428, 430 (1930).

At the time of the entry of the order of November 2, 1966, all issues were before the court and it was established — in fact conceded — that appellant’s signature on the first note was genuine. Therefore, the court erred in vacating the original judgment as to the appellant. It should have continued to stand as security until the entry of the judgment order of January 23, 1967, which made a final determination of the litigation.

Accordingly, the second judgment of the trial court which was entered in favor of the Bank and against the appellant on Count II on January 23, 1967, in the sum of $20,000, plus interest and costs, from which the appellant has appealed and from which the Bank has cross-appealed with reference to the disallowance of attorney’s fees, is affirmed in all respects; and the order of November 2, 1966, vacating the original judgment as to the appellant, from which the Bank has cross-appealed, is reversed, and it is hereby ordered that the original judgment of August 3, 1966, shall continue to stand as security with reference to, and to the extent of the second judgment of January 23, 1967, to the end that the Bank may have a valid lien effective against the property of the appellant from the date of said original judgment.

Judgment affirmed in part and reversed in part.

MORAN and ABRAHAMSON, JJ., concur.


text:
    Thaddeus A. Kellett and Della Kellett, His Wife, and Robert B. Smyth and Wilda E. Smyth, His Wife, Plaintiffs-Appellants, v. The County of Du Page, Defendant-Appellee.
    Gen. No. 67-88.
    Second District.
    December 7, 1967.

      Leonard Bosgraf, of Chicago, for appellant.
    William V. Hopf, State’s Attorney of Du Page County, of Wheaton, and Kevin P. Connelly, Assistant State’s Attorney, for appellee.
   MR. PRESIDING JUSTICE DAVIS

delivered the opinion of the court.

This is an appeal by the plaintiffs from an adverse ruling by the trial court, after a bench trial, on their complaint for declaratory judgment, which sought to have the defendant’s zoning ordinance declared invalid as applied to their property.

The plaintiffs’ property, which is located in an unincorporated area of Du Page County, is presently zoned for single-family residence, but is used as a real estate office — a nonconforming use. The office is a frame structure with living quarters in the rear. Immediately to the north, across 55th Street — a four-lane heavily traveled thoroughfare — is the Village of Clarendon Hills. The subject property is bounded on the north by 55th Street, with a frontage of 264 feet; on the west by Alabama Avenue, with a frontage of 147 feet; on the east by Clarendon Hills Road, with a similar frontage; and on the south by property zoned single-family residential.

Fifty-fifth Street is a four-lane county highway carrying approximately 8,500 vehicles per day. Alabama and Clarendon Hills Road both dead-end into 55th Street, with stop signs controlling access to 55th Street. Alabama Avenue is a lightly traveled residential street. Clarendon Hills Road carries approximately 1,750 vehicles daily, and the plaintiffs contend that it is a major north-south thoroughfare. While it extends some distance to the south, it is without center line, curbs or developed shoulders. It dead-ends at the northeast corner of the subject property and it runs parallel to, but several blocks west of Route 83 — a truly major north-south artery. From the evidence, it would appear that Clarendon Hills Road is neither a seldom traveled residential street, nor a major thoroughfare.

Directly to the north in the Village of Clarendon Hills, and on the north side of 55th Street, the property is devoted entirely to single-family residences. In the one block area north of 55th Street, on Walker Street— which dead-ends directly across from the subject property — there are 16 residences. Within the same block as the subject property and directly to the south of it, there are 8 residences. Across Alabama Avenue, in the adjacent block to the west, are 4 additional residences. Across Clarendon Hills Road, in the block to the east, are 3 additional residences. Further south and west are additional single-family residences, and to the south and east are single-family residences and 2-flat apartment buildings.

Directly across Clarendon Hills Road to the east of the subject property and on 55th Street, is a large improved parcel of land used as a tavern and beer garden which, like the subject property, is a nonconforming use. Also, approximately four blocks to the west of the subject property and on 55th Street, another tavern is located, which use is also nonconforming. There is a JewelOsco shopping center on 55th Street approximately three blocks east of the subject property. This is not a nonconforming use, but it is next to a large cloverleaf providing access to Route 83.

Thus, the subject property is located in about the center of an area west of Route 83 which extends along 55th Street for a distance of approximately one and one-half miles. There are four commercial uses in this area. One is properly zoned, the Osco-Jewel Center — and it adjoins the cloverleaf — , and the other three, including the subject property, are nonconforming uses — two taverns and a real estate office. The balance of 55th Street in this area is developed single-family, with approximately fifty residences along this mile and one-half.

Plaintiffs’ expert witnesses testified that the subject property, as presently zoned, was worth approximately $12,000 to $14,000. They characterized plaintiffs’ proposed use of the subject property as a neighborhood convenience center. It would include a gas station, which would be located on the east end of the property along 55th Street and Clarendon Hills Road, and would take up approximately the east 140 feet of the 246 feet fronting on 55th Street. The balance would be a one-story retail store building. The main tenant would be a Convenient Food Mart; the other units would include a beauty shop, a dry cleaner and either an insurance office, barbershop or carry-out food shop. The Convenient Food Mart would be open seven days a week from 9:00 a. m., until midnight.

Plaintiffs’ expert witnesses testified that the highest and best use of the subject property was as a neighborhood convenience center as planned, and that the value of the property for the proposed use was between $105,000 and $110,000. However, there was admitted in evidence, the plaintiffs’ contract for the sale of this property in the total sum of $54,500, subject to obtaining the zoning in question. These witnesses also testified that the proposed use would have no adverse effect on the neighboring properties. Several of the neighbors testified that they were of the opinion that the proposed use would have an adverse effect on the value of their properties.

A presumption exists in favor of the validity of the existing zoning ordinance, and to overcome this presumption the plaintiffs must establish by clear and convincing evidence that, as applied to their property, the ordinance is arbitrary and unreasonable and without substantial relation to the public health, safety, comfort, morals or general welfare. Bennett v. City of Chicago, 24 Ill2d 270, 273, 274, 181 NE2d 96 (1962); Padgett v. City of Oakbrook Terrace, 89 Ill App2d 244, 231 NE2d 466 (1967); Mutz v. Village of Villa Park, 83 Ill App2d 1, 8, 9, 226 NE2d 644 (1967). Within these limits, the fixing of zoning lines is a matter of legislative discretion. Thus, the party challenging the validity of the ordinance has the burden of proving by clear and convincing evidence that the City has abused its legislative discretion in classifying the subject property in a given manner. Such proof must establish not merely that the property could reasonably be classified as plaintiffs wish, nor indeed that the court would classify it otherwise. The plaintiffs must establish that the legislative decision as to the property is “clearly unreasonable” in order to show an abuse of discretion. Jans v. City of Evanston, 52 Ill App2d 61, 68, 201 NE2d 663 (1964).

The various factors which are relevant to the determination of the validity of a zoning ordinance as applied to specific property are well known. See: Myers v. City of Elmhurst, 12 Ill2d 537, 543, 544, 147 NE2d 300 (1958); La Salle Nat. Bank v. County of Cook, 12 Ill 2d 40, 46, 47, 145 NE2d 65 (1957); Hoffmann v. City of Waukegan, 51 Ill App2d 241, 244, 201 NE2d 177 (1964). While no single factor is determinative of the issue, and the decision in each case must depend on the sum total of the particular facts of that case (First Nat. Bank v. County of Cook, 15 Ill2d 26, 31, 153 NE2d 545 (1958); Fiore v. City of Highland Park, 76 Ill App2d 62, 73, 221 NE2d 323 (1966)), existing uses and zoning classifications of nearby property are of paramount importance. Ryan v. County of DuPage, 28 Ill2d 196, 198, 190 NE2d 737 (1963); LaSalle Nat. Bank v. Village of Lombard, 64 Ill App2d 211, 215, 212 NE2d 321 (1965). Clearly, the surrounding area is predominantly residential. In the mile and one-half along 55th Street, of which the subject property is approximately in the center, it is entirely residential on both sides with the exception of Jewel-Oseo —grocer-drugstore center — approximately 1,000 feet east of the subject property and adjacent to a cloverleaf connecting with Route 83, and with the further exception of three nonconforming uses, of which the subject property is one. It is also residential to the north and south. The balance of the block in which the property is located is single-family residential. The character of the neighborhood obviously is residential. Neither the nonconforming use of the subject property, nor the nonconforming use across the street for a tavern, alter the residential character. Some commercial use near or even adjoining the property, does not alter the otherwise residential character of this property. De Bartolo v. Village of Oak Park, 396 Ill 404, 411, 71 NE2d 693 (1947); Jans v. City of Evanston, supra, 72.

Plaintiffs contend that the traffic on 55th Street and Clarendon Hills Road is a further reason why the existing zoning is unreasonable. Fifty-fifth Street is a heavily traveled thoroughfare, but the fact that property is situated on a heavily traveled street does not render invalid a single-family zoning classification of such property. River Forest Bank & Trust Co. v. Maywood, 23 Ill 2d 560, 563, 179 NE2d 671 (1962); Wehrmeister v. County of Du Page, 10 Ill2d 604, 609, 141 NE2d 26 (1957); LaSalle Nat. Bank v. Village of Lombard, supra, 216; Jans v. City of Evanston, supra.

The fact that the subject property fronts on 55th Street and also adjoins the nonconforming tavern use across the street, may make it less desirable for residential use than other neighboring properties, but this does not render the zoning ordinance confiscatory. Bolger v. Village of Mount Prospect, 10 Ill2d 596, 602, 141 NE2d 22 (1957); Wehrmeister v. County of Du Page, supra. We would agree that the highest and best use for the land in question is not single-family residential and that plaintiffs’ land would be substantially more valuable if they were permitted the use they sought. However, as we have often stated, this is usually the case and this fact alone is not sufficient to invalidate an existing zoning ordinance. Elmer Clavey, Inc. v. City of Highland Park, 75 Ill App2d 464, 470, 220 NE2d 93 (1966); Hoffmann v. City of Waukegan, supra, 245.

The defendant County rezoned the entire area in the 1950’s, reserving the entire area for residential development. Plaintiffs acquired the property with knowledge of the existing zoning. While this does not preclude them from later asserting the invalidity of such zoning, it is a factor to be considered, especially where, as here, the acquisition was relatively recent to the time the zoning change was sought. Bolger v. Village of Mount Prospect, supra, 602; Mutz v. Village of Villa Park, supra, 10.

The purpose of the zoning ordinance was to reserve this area as residential in character. There have been no inroads upon this character nor commercial trends as plaintiffs contend, other than the one grocery-drugstore center which, by reason of its location, does not impress us as an important factor in this case. The use of the surrounding land as well as the value placed on the property under present zoning, suggests that it is not unsuitable for such use, and the record contains testimony to this effect. The fact that the surrounding land in the unincorporated area has not developed as quickly for residential purposes as the land to the north within the Village of Clarendon Hills, does not justify our setting aside the zoning ordinance as unreasonable. The county has not provided the sewer and water services necessary to achieve the faster growth. The development that has taken place, however, has been consistent. It has developed along residential lines, and we see no valid reason to upset the type of orderly development sought by the zoning ordinance.

We cannot agree that the proposed use would have no adverse effect on the surrounding property. Rather, we find more plausible the testimony of the surrounding landowners that it would have an adverse effect on the value of their property. It seems more likely to us that the presence of a gasoline service station and various stores, with at least one store which would be open seven days a week until midnight, along with the attendant noise, lights and traffic, would have an adverse effect on the value of the surrounding single-family residences.

We do not believe that the evidence is clear and convincing that the zoning ordinance as applied to plaintiffs’ land is unreasonable and arbitrary and bears no reasonable relation to the public health, safety and welfare. There is room for a legitimate difference of opinion concerning the reasonableness of the ordinance, and this being the case, the legislative judgment is conclusive. Mutz v. Village of Villa Park, supra, 11; Koplos v. City of Rockford, 62 Ill App2d 268, 273, 210 NE2d 629 (1965).

There is ample evidence to support the judgment of the trial court, and its judgment is, therefore, affirmed.

Judgment affirmed.

MORAN and ABRAHAMSON, JJ., concur.