text:
    Tommy Payne, Plaintiff-Appellee, v. Don Meeker, Defendant-Appellant.
    (No. 72-121;
    Fifth District
    March 29, 1973.

      Supplemental opinion upon denial of rehearing April 26, 1973.

    Edward M. Resch, of Casey, for appellant.
    Elmer Jenkins and Jeff Troutt, both of Renton, for appellee.
   PER CURIAM:

Defendant counter-claimant appeals from a decree in favor of plaintiff quieting title and dismissing defendant’s counter-claim for a decree for specific performance of an agreement to sell real estate and personal property. Defendant-appellant will hereinafter be referred to as Meeker and plaintiff-appellee as Payne. We will note here that no issues have been raised regarding the sufficiency of any agreements to comply with the Statute of Frauds. Ill. Rev. Stat., ch. 59, sec. 2.

The parties were litigants in a prior action in the circuit court of Franklin County. That action was commenced by Meeker when he took a judgment by confession on a note given by Payne in payment for grain storage bins Meeker had sold to Payne and erected on his 288 acre farm in Franklin County. Upon Payne’s motion the judgment by confession was opened and Payne granted leave to file a counter-claim against Meeker for breach of contract for improper installation and other matters. At the adjournment of court on Friday, March 12, 1971, the court suggested to the parties that they try to reach some agreement and settle the case before the trial resumed on Monday, March 15. Both parties are in agreement that a meeting was held between Meeker and Payne on the farm in question on Sunday afternoon, March 14 and that as a result of that meeting a settlement of the previous case effected. The terms were that Meeker would buy the farm from Payne for $65,000, payable in cash, plus an additional $2,000 for some shop equipment, and that Meeker would dismiss his lawsuit against Payne and mark the judgment and claim paid in full. Payne was to furnish abstracts of title to the farm to Meeker. Here agreement on what transpired at the meeting ends. According to the testimony of Meeker in the case under consideration there were two agreements written out and signed at the March 14 meeting. One pertained to the sale of the equipment for $2,000, and that agreement was later introduced in evidence. The other pertained to the sale of the farm and was alleged to be in substantially this wording:

“March 13, 1971
Tommy Payne here by agrees to Sell said farm of 288 acres to Don Meeker for $65,000.00. To give possion [sic] Monday, March 15, 1971. Tommy here by acknowledges receiving $100.00 cash. Don Meeker agrees to pay $64,900.00 when abstracts are brought up to date and cleared. Tommy to pay 1970 taxes. Judgment to be cleared against Tommy.
/S/ DON MEEKER /S/ TOMMY PAYNE”

Meeker further testified that he gave Payne a $100 bill at the time of the signing of the agreement “to make the contract.”

Payne appeared in court on Monday morning, March 15 with his attorney. Meeker was not present but his attorney, Mr. Owens, was. The court was informed that a settlement of the case had been reached. Mr. Owens had not been advised of this by Mr. Meeker but at the suggestion of the court made telephone contact with Meeker and returned into court to confirm that settlement had been reached. Thereupon Payne took the witness stand and testified to the settlement of the case upon the above terms adding that the deed was to be for the surface only and that the payment was to be made by certified check on Friday, March 20. In response to a question of the court Payne indicated that he accepted that offer of settlement and Mr. Owens in response to a question by the court indicated his concurrence and willingness to move to have the case dismissed. Thereupon the court dismissed the case with prejudice as to both parties.

After some telephone arrangements the parties met at the office of Mr. Jenkins, Payne’s attorney, in Benton, Illinois on March 18. Meeker was accompanied by his attorney, Mr. Owens. Meeker testified that the four of them were sitting at a table visiting for a while when Mr. Jenkins asked to see the contract on the farm. Meeker handed it to Jenkins, he read it, took his glasses off, thought a little bit and laid the contract over in front of Payne where it was impossible for Meeker to reach it. Payne thereupon picked up the contract tore it in several pieces, folded it and tore it again and handed it to Mr. Jenkins who dropped it into a wastebasket beside him. Meeker asked Jenkins if he wasn’t going to do something and Jenkins reportedly said something to the effect that “this is over with and now we could get down to making a contract.” Meeker left the meeting because he was about to lose his temper and went to Owens’ office.- Owens stayed on for approximately two hours trying to get the matter worked out but was unsuccessful. .

Payne testified that he returned to Jenkins’ office on Saturday, March 20 with a signed deed to the surface of the farm and abstracts extended to a current date and waited for over two hours but neither Meeker nor his attorney appeared. Approximately one week later another meeting was held with the same four parties present and this time, Meeker, according to his testimony, had certified checks for $64,900 to pay for the farm plus a certified check for $2,000 to pay for the equipment. At the trial Meeker introduced into evidence certified checks totaling $66,900. Again the parties were unable to reach an agreement, ostensibly because Payne demanded possession of the premises for 30 days, to which Meeker would not agree. Also at this meeting there was some discussion regarding a mortgage of the farm to the Federal Land Bank and whether or not Meeker was to pay the full purchase price of $65,000 in cash or was to pay the difference between the mortgage balance and the purchase price and assume the amount due on the mortgage. It was represented by Payne at that meeting that the mortgage had been paid and that Meeker would have to pay the entire purchase price in cash but no release of the mortgage was exhibited. After several unsuccessful attempts to establish a meeting between the parties for the purpose of closing the transaction a final meeting was held in Mr. Jenkins’ office on April 29, 1971. Payne was present with his attorney, Jenkins. Meeker was not at the meeting but was readily available in a nearby restaurant. He was represented at the meeting by Mr. Owens and a new attorney in his behalf, Mr. Wham. The deed was again presented and discussion held regarding language in the deed which provided that the surface only was being conveyed. It was Meeker s contention that he understood that Payne did not own all the oil, gas and other mineral rights but that Meeker was to get all the rights that Payne did own. Payne was told that Meeker had certified checks for $64,900 and $2,000 to pay for the land and the equipment and Payne agreed that he had heard this in the conversation. There was also discussion pertaining to the mortgage of tire Federal Land Bank and the release of that mortgage. Meekers attorneys requested three days in which to examine the abstracts of title to determine whether Payne had a merchantable title to the farm. This request was refused and Payne and his attorney insisted upon payment of $65,000 plus $2,000 in certified checks before delivery of the abstracts or deed. After a conference of some two hours the parties were unable to reach agreement and the meeting disbanded without further contacts between the parties or their attorneys.

Shortly following the meeting Meeker prepared and filed of record an affidavit which set forth the alleged written agreement to sell the 288 acres (set forth above), recited the destruction of the original agreement with intent to avoid the same and that Meeker intended to file suit to enforce the contract for sale.

Sometime in August thereafter Payne entered into a contract to sell the real estate to another party who upon recording the contract discovered the affidavit filed by Meeker. Payne thereupon commenced this suit to have the affidavit and alleged contract expunged from the record and his title quieted. Meeker answered the complaint with denials and filed his counter-claim for specific performance of the written contract.

Shortly before the trial of this case commenced attorney Owens sought and was granted leave to withdraw as attorney for Meeker and later-testified at the trial. His testimony corroborated in detail Meekers story regarding the destruction of the contract by Payne at the meeting in Jenkins’ office on March 18. He further testified that prior to that meeting he had met with Meeker in his own office and had examined the contract for sale of the 288 acre farm, stated that it was in substantially the same form as above set forth and that it was signed by both Payne and Meeker.

Payne denied the execution of any written agreement to sell the real estate but readily admitted their meeting at the farm on March 14, 1971 and the agreement with Meeker regarding sale of the farm. It was the testimony of Payne given in the trial of the previous case that established the agreement of record in that case. That testimony regarding the stipulation for dismissal and the settlement agreement in the previous case was made a part of the evidence in the case under consideration.

After a trial before the court sitting without a jury a decree was rendered in favor of plaintiff which granted the prayer of his complaint and dismissed the counter-claim of the defendant. The decree found the affidavit and alleged contract to constitute a cloud on the title of plaintiff and same was expunged from record and defendant held to have no claim to right, title, or interest in the concerned land.

It is the position of Meeker in this appeal, with which we must agree, that the decree of the trial court in this case was clearly against the manifest weight of the evidence and the court erred in entering a decree favorable to plaintiff.

Plaintiff on appeal frankly admits that there was an agreement for sale of the real estate and that this agreement was the subject of a stipulation made in open court which was designed to and did obtain dismissal of the prior case and a satisfaction of a judgment and claim against Payne in the amount of approximately $15,000. But plaintiff insists that he complied with the terms of the agreement when he was present on March 20 with an executed deed to the premises and the abstracts but appellant never then nor at any other time tendered a certified check for $65,000 for the farm plus a certified check for $2,000 for the equipment. Although not urged it is apparently the position of the appellee that by failing to produce the certified check for the deed that defendant has abandoned or forfeited his rights to the agreement.

We are and must remain reluctant to reverse a trial court because a finding and decree are against the manifest weight of the evidence. However, we believe the evidence here, together with fundamental equities operating in favor of the appellant, not only justifies such action on our part, it requires it. Friedman Electric Co. v. St. Clair County Housing Authority of East St. Louis, 23 Ill.App.2d 16, 161 N.E.2d 473.

Upon a fair consideration of evidence presented at the trial of this case together with the presumptions that flow therefrom we conclude that the agreement for the sale of the 288 acre farm was reduced to writing and signed by the parties at their meeting on March 14. Meeker testified in detail to the incident in which Payne destroyed the written agreement at the meeting in his attorney’s office. The destruction was denied by Payne. Attorney Owens corroborated in graphic detail the testimony of Meeker regarding the destruction of the farm sale agreement, he verified that it was substantially in the form as we have above set forth and that it contained the signatures of both Payne and Meeker. Attorney Jenkins never took the stand to corroborate the testimony of Payne nor to deny, clarify or explain any of the details described by-Meeker and Owens; and we specifically note that he did not refute the part ascribed to him in the destruction action nor the statements ascribed to him by both Meeker and Owens. Furthermore, Payne never denied receiving the $100 which Meeker testified he paid at the meeting on March 14 “to make the contract.” And we think it strange that there would be a writing as to the $2,000 to be paid for equipment but no writing as to the $65,000 to be paid for the farm, both of which agreements were originated at the same meeting. Also, the written agreement for the purchase of the equipment reads, in part, as follows: “I Don Meeker owe Tommy Payne additional $2,000 for personal items * * (Emphasis supplied.)

The adamant refusal of Payne and his attorney to permit Meeker and his attorneys even three days time to examine the abstracts of title to the farm to satisfy themselves that there was a merchantable title prior to the payment of $65,000 was, under the circumstances here unreasonable and unwarranted. Coupled with this was their insistence on payment of the full amount of the agreed purchase price when there was an unreleased mortgage of record with a balance of over $40,000 outstanding and Payne did not have a release of the mortgage and would not agree to transfer title subject to the mortgage.

The conduct displayed by Payne and his attorney throughout the negotiations described can at best be characterized as inadequate for one who would seek relief from a court of equity. Neither the written contract nor tire stipulation for settlement of the prior case contained any details regarding the mode and procedure of closing. The agreement was the work of laymen and its lack of detail is understandable. In an equitable proceeding it must be presumed that a reasonable time and manner for implementation of the agreement was intended by the parties. Although it would hardly be necessary, there was testimony of a local attorney experienced in real estate transactions that it was customary for a seller to afford a buyer a reasonable time to examine abstracts of title to be assured of the merchantability of title before paying the purchase price. Indeed, only the foolhardy would proceed otherwise.

In his brief Payne argues that even if there had been a written agreement for the sale of the farm executed on March 14 the agreement would have been superseded by the March 15 stipulation under oath in open court. Without deciding its accuracy the point may be conceded without improving appellee’s case. “A stipulation concerning a pending case in court is an obligation unlike ordinary contracts between parties not in court. * * * All stipulations entered into by parties or their attorneys in respect to the conduct or control of their rights in the trial of a cause will be enforced by the courts in a summary manner unless such stipulations are unreasonable or contrary to public morals. * * * It is the policy of courts to enforce stipulations fairly made between attorneys or parties, relating to the conduct of suits, unless good cause is shown to the contrary. * e * The law is well settled that a stipulation touching a party’s substantial rights may be enforced by an action at law or by a suit for injunction or other appropriate remedy in equity. [Citations.] Whether the aid of tire court is invoked by some summary method during the pendency of tire cause or by a resort of another independent action, courts look with favor upon stipulations designed to simplify, shorten or settle litigation and save costs to parties, and will, when called upon in any appropriate manner, compel parties to observe such stipulations unless they are illegal or contrary to public policy.” People ex rel. Stead v. Spring Lake Drainage and Levee Dist., 253 Ill. 479, 97 N.E. 1042. Also see In re Estate of Moss, 109 Ill.App.2d 185, 248 N.E.2d 513.

The agreement for sale and purchase of the farm originated as a stipulation for dismissal of the previous case which was then done by the court with prejudice to both parties. When the court by its decree in this case dismissed appellant's counter-claim he was deprived not only of his judgment in the prior case but of the benefit of the stipulation entered into in that casé. The result is unconscionable. The court below should have rendered a decree for specific performance of the sale agreement in favor of defendant upon his counter-claim. This case is reversed and remanded with instructions to the trial court to render a decree accordingly. We find appellant’s proof regarding the agreement to convey the oil, gas and other mineral rights to be insufficient and accordingly the decree should provide for conveyance of the surface only of the farm as provided by the deed originally prepared by plaintiff. Also, we find defendant’s proof of damages by reason of plaintiff’s failure to comply with the agreement is indefinite and uncertain and the corrected decree should find the issues on defendant’s claim for damages in favor of file plaintiff.

Reversed and remanded with directions.

SUPPLEMENTAL OPINION UPON DENIAL OF PETITION FOR REHEARING

Plaintiff’s Petition for Rehearing has brought to our attention the fact that this action was commenced when Meeker took a confession of judgment against Payne under a rental payment clause of a lease agreement. The original opinion stated, erroneously, that the action was commenced by Meeker when he took a judgment by confession upon a note given by Payne. The original opinion is therefore corrected to reflect the manner in which the action was instituted. In all other respects the original opinion is confirmed and plaintiff’s Petition for Rehearing denied.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Harold Merryfield, Defendant-Appellant.
    (No. 56356;
    First District (5th Division)
    March 23, 1973.
    James J. Doherty, Public Defender, of Chicago, (John E. Hughes, Assistant Public Defender, of counsel,) for appellant.
    Edward V. Hanrahan, State’s Attorney, of Chicago, for the People.
   PER CURIAM.


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Deborah Dumas, Defendant-Appellant.
    (No. 57120;
    First District (5th Division)
    March 23, 1973.
    Allan A. Ackerman, of Chicago, for appellant.
    Bernard Carey, State’s Attorney, of Chicago, (Elmer C. Kissane and Mark T. Zubor, Assistant State’s Attorneys, of counsel,) for the People.
   PER CURIAM.


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Joann Jenkins, Defendant-Appellant.
    (No. 57463;
    First District (5th Division)
    March 23, 1973.
    James J. Doherty, Public Defender, of Chicago, for appellant.
    Edward V. Hanrahan, State’s Attorney, of Chicago, for the People.
   PER CURIAM.


author: Mr. PRESIDING JUSTICE BURKE.

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Ronald Hudson, Defendant-Appellant
    (No. 56461;
    First District (1st Division)
    March 26, 1973.
    James B. Haddad, of Chicago, for appellant.
    Edward V. Hanrahan, State’s Attorney, of Chicago, (Elmer C. Kissane and Peter F. Costa, Assistant State’s Attorneys, of counsel,) for the People.
   Opinion by

Mr. PRESIDING JUSTICE BURKE.


author: Mr. JUSTICE McGLOON.

text:
    McClelland Bishop, Plaintiff-Appellant, v. Canal-Randolph Corporation et al., Defendants-Appellees.
    (No. 55607;
    First District (3rd Division)
    March 29, 1973.
    Powers McGuire, and Joseph B. Lederleitner and Daniel E. Wanat, both of Pretzel, Stouffer, Nolan & Rooney, both of Chicago, for appellant.
    Seymour J. Gaynes, Frank Glazer, and Kirkland & Ellis, all. of Chicago, (Dom J. Rizzi and Frank M. Greenfield, of counsel,) for appellees.
   Opinion by

Mr. JUSTICE McGLOON.


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Ernest Moore (Impleaded), Defendant-Appellant.
    (No. 57004;
    First District (5th Division)
    March 30, 1973.
    James J. Doherty, Public Defender, of Chicago, (Elliott M. Samuels, Assistant Public Defender, of counsel,) for appellant.
    Edward V. Hanrahan, State’s Attorney, of Chicago, (Elmer C. Kissane, Russell Hartigan, and Ronald Neville, Assistant State’s Attorneys, of counsel,) for the People.
   PER CURIAM.


text:
    The People of the State of Illinois, Respondent-Appellee, v. Pablo Rivera, Petitioner-Appellant.
    (No. 58327;
    First District (5th Division)
    March 30, 1973.
    Kenneth L. Jones, of Defender Project, of Chicago, for appellant.
    Edward V. Hanrahan, State’s Attorney, of Chicago, for the People.
   PER CURIAM.


author: Mr. PRESIDING JUSTICE STAMOS

text:
    Ryland S. Parker, Plaintiff-Appellee, Cross-Appellant, v. Arthur Murray, Inc., et al., Defendants-Appellants, Cross-Appellees—(V. S. & W., Inc., et al., Defendant and Cross-Appellee.)
    (No. 55975;
    First District (2nd Division)
    April 3, 1973.

      Harry G. Fins, of Chicago, (Saul R. Leibowitz, of counsel,) for appellants.
    Philip H. Corboy, Sandra W. Boxby, and G. Wallace Roth, all of Chicago, for appellee.
   Mr. PRESIDING JUSTICE STAMOS

delivered the opinion of the court:

This is an appeal and a cross appeal from a decree, entered on March 26, 1971, which allowed rescission of five contracts for dance instruction, ordered the return of contract payments, but denied punitive damages. The sole issue raised by defendant is whether the terms of the contracts barred plaintiff from asserting the doctrine of impossibility of performance as the basis for seeking rescission under Count I of the complaint. The sole issue raised by plaintiff on his cross appeal is whether the court erred in dismissing his Count II, which sought rescission and punitive damages on the grounds of fraud.

The operative facts are not in dispute. In November, 1959 plaintiff went to the Arthur Murray Studio in Oak Park to redeem a certificate entitling him to three free dancing lessons. At that time he was a 37-year-old college-educated bachelor who lived alone in a one-room attic apartment in Berwyn, Illinois. During the free lessons the instructor told plaintiff he had “exceptional potential to be a fine and accomplished dancer” and generally encouraged further participation. Plaintiff thereupon signed a contract for 75 hours of lessons at a cost of $1000. At the bottom of the contract were the bold-type words, “N ON -CAN CELLABLE NEGOTIABLE CONTRACT.” This initial encounter set the pattern for the future relationship between the parties. Plaintiff attended lessons regularly. He was praised and encouraged regularly by the instructors, despite his lack of progress. Contract extensions and new contracts for additional instructional hours were executed. Each written extension contained the bold-type words, “N ON-C AN CELL ABLE CONTRACT,” and each written contract contained the bold-type words, “NON-CANCELLABLE NEGOTIABLE CONTRACT.” Some of the agreements also contained the bold-type statement, “I UNDERSTAND THAT NO REFUNDS WILL BE MADE UNDER THE TERMS OF THIS CONTRACT.”

On September 24, 1961 plaintiff was severely injured in an automobile collision, rendering him incapable of continuing his dancing lessons. At that time he had contracted for a total of 2734 hours of lessons, for which he had paid $24,812.80. Despite written demand defendants refused to return any of the money, and this suit in equity ensued. At the close of plaintiff’s case the trial judge dismissed the fraud count (Count II), describing the instructors’ sales techniques as merely “a matter of pumping salesmanship.” At the close of all the evidence a decree was entered under Count I in favor of plaintiff for all prepaid sums, plus interest, but minus stipulated sums attributable to completed lessons.

Plaintiff was granted rescission on tire ground of impossibility of performance. The applicable legal doctrine is expressed in the Restatement of Contracts, sec. 459, as follows:

“A duty that requires for its performance action that can be rendered only by the promisor or some other particular person is discharged by his death or by such illness as makes the necessary action by him impossible or seriously injurious to his health, unless the contract indicates a contrary intention or there is contributing fault on the part of the person subject to the duty.”

Similarly, sec. 460 of the Restatement states:

“(1) Where the existence of a specific thing or person is, either by the terms of a bargain or in the contemplation of both parties, necessary for the performance of a promise in the bargain, a duty to perform the promise * * * (b) is discharged if the thing or person subsequently is not in existence in time for seasonable performance, unless a contrary intention is manifested, or the contributing fault of the promisor causes the non-existence.”

In Illinois impossibility of performance was recognized as a ground for rescission in Davies v. Arthur Murray, Inc., 124 Ill.App.2d 141, 260 N.E.2d 240, wherein the court nonetheless found for the defendant because of the plaintiff’s failure adequately to prove the existence of an incapacitating disability.

Defendants do not deny that the doctrine of impossibility of performance is generally apphcable to the case at bar. Rather they assert that certain contract provisions bring this case within the Restatements limitation that the doctrine is inapplicable if “the contract indicates a contrary intention.” It is contended that such bold type phrases as “NONCANCELLABLE CONTRACT,” “NON-CANCELLABLE NEGOTIABLE CONTRACT’ and “I UNDERSTAND THAT NO REFUNDS WILL BE MADE UNDER THE TERMS OF THIS CONTRACT’ manifested the parties mutual intent to waive their respective rights to invoke the doctrine of impossibility. This is a construction which we find unacceptable. Courts engage in the construction and interpretation of contracts with the sole aim of determining the intention of the parties. We need rely on no construction aids to conclude that plaintiff never contemplated that by signing a contract with such terms as “NONCANCELLABLE” and “NO REFUNDS” he was waiving a remedy expressly recognized by Illinois courts. Were we also to refer to established tenets of contractual construction, this conclusion would be equally compelled. An ambiguous contract will be construed most strongly against the party who drafted it. (I.L.P. Contracts, sec. 221.) Exceptions or reservations in a contract will, in case of doubt or ambiguity, be construed least favorably to the party claiming the benefit of the exceptions or reservations. (Carpenter v. Norlander, 191 Ill.App. 340.) Although neither party to a contract should be relieved from performance on the ground that good business judgment was lacking, a court will not place upon language a ridiculous construction. (Hall v. Wilson, 277 Ill.App. 601.) We conclude that plaintiff did not waive his right to assert the doctrine of impossibility.

Defendants have also contended, albeit indirectly, that plaintiff faded to establish the existence of an incapacitating disabHity. In contrast to Davies v. Arthur Murray, Inc., supra, wherein the plaintiff relied solely upon his own uncorroborated testimony, plaintiff in the case at bar produced both lay witnesses and expert medical testimony corroborating the severity and permanency of his injuries. That testimony need not be recited; suffice it to say that overwhelming evidence supported plaintiff’s contention that he was incapable of continuing his lessons. Accordingly, we hold that the trial court correctly found for plaintiff under Count I.

Plaintiff’s Count II, which aHeged fraud and sought punitive damages, was dismissed by the trial judge at the close of plaintiff’s case. It is contended on appeal that representations to plaintiff that he had “exceptional potential to be a fine and accomplished dancer,” that he had “exceptional potential” and that he was a “natural bom dancer” and a “terrific dancer” fraudulently induced plaintiff to enter into the contracts for dance lessons.

Generally, a mere expression of opinion will not support an action for fraud. (I.L.P. Fraud sec. 8.) In addition, misrepresentations, in order to constitute actionable fraud, must pertain to present or preexisting facts, rather than to future or contingent events, expectations or probabilities. (Hayes v. Disque, 401 Ill. 479, 82 N.E.2d 350.) Whether particular language constitutes speculation; opinion or averment of fact depends upon all the attending facts and circumstances of the case. (Bultitta v. Lawrence, 346 Ill. 164, 178 N.E. 390.) Mindful of these rules, and after carefully considering the representations made to plaintiff, and taking into áccount the business relationship of the parties as well as the educational background of plaintiff, we conclude that the instructors’ representations did not constitute fraud. The trial court correctly dismissed Count II. We affirm.

Affirmed.

LEIGHTON and HAYES, JJ., concur.

       Ill. Rev. Stat. 1965, ch. 29, pars. 51, 52, which otherwise would be determinative of the issue raised by defendant, was enacted in 1965 and is thus inapplicable to the facts at bar.


text:
    Natividad Rigor et al., Individually and as Mother and Next Friend of Theresa Rigor et al., Plaintiffs-Appellants, v. Howard Liquors, Inc., et al., Defendants-Appellees.
    (No. 56380;
    First District (2nd Division)
    April 3, 1973.

      Eugene F. Welter, of Chicago, for appellants.
    Lord, Bissell & Brook, of Chicago, (Robert B. Austin, Hugh C. Griffin, and Richard E. Mueller, of counsel,) for appellees.
   Mr. PRESIDING JUSTICE STAMOS

delivered the opinion of the court:

Plaintiffs, the wife and children of Peter Rigor, sued defendants Howard Liquors, Inc. (hereinafter referred to as Howard’s) and Rose Kelley, d/b/a Kelley’s (hereinafter referred to as Kelley’s), in a dram-shop action. Plaintiffs sought recovery for loss of support against Kelley’s for the intoxication of John Mika who was the driver of an automobile involved in an accident. Plaintiffs also sought relief against Kelley’s and Howard’s for the intoxication of Peter Rigor, claiming that Rigor’s intoxication caused him to become a passenger in the car driven by Mika. The jury returned a verdict of not guilty as to both defendants, and the court denied plaintiffs’ post-trial motion. On appeal plaintiffs present these issues for our review:

1. Whether the trial court erred in failing to require defendants to complete the impeachment of plaintiffs’ witness; and
2. Whether the trial court erred in admitting the testimony of a police officer who testified from his accident report.

The testimony of Peter Rigor and Police Officer Peter McElligott is pertinent to this appeal. Peter Rigor testified that on November 2, 1965, he was drinking at Howard’s from 6 P.M. to approximately 8 P.M. After 2 or 3 beers he left Howard’s and went to the race track where he remained for 2 races. He returned to Howard’s at approximately 10:30, and drank 4 or 5 more beers. When Howard’s closed, he went to a coffee shop, and at approximately 2:15 or 2:30 A.M., he went to Kelley’s and had 3 or 4 more beers. Rigor testified that he saw Mika fifteen minutes after he entered, and Mika had 3 or 4 drinks. Mika and Rigor left Kelley’s around 4 A.M. and Mika drove to Lindsey’s tavern where Rigor had 3 or 4 more beers and Mika had 3 or 4 screwdrivers. Rigor stated at trial that Mika seemed groggy and sluggish after leaving Lindsey’s at approximately 6:30 A.M. While driving Rigor back to his parked car near Howard’s, Mika swerved his car to the right while trying to pass other cars, and struck a parked car from the rear.

During cross-examination of Rigor, defendants’ counsel attempted to lay a foundation for impeachment by reading questions and answers from a deposition taken of Rigor on June 20, 1966. Rigor admitted coming in for the deposition, but his signature was not on the transcript. Plaintiffs’ counsel asked defense counsel to identify the transcript; thereafter plaintiffs only objected to the form of materiality of the questions. The answers to the deposition read at trial showed that Rigor had previously said that he stayed at the race track for 7 or 8 races; that he had 3 more beers at Howard’s after the track; that he went to Kelley’s at 2:45 or 3:00 A.M. and had one beer there; that he did not know if Mika drank in Kelley’s because he did not see him until nearly closing time; that upon leaving Lindsey’s Mika looked “all right” to him; and that he did not know why Mika swerved the car before the collision.

After Rigor’s testimony, defendants advised the court that they were unable to call the court reporter who had attended the deposition, but could produce another reporter to verify the accuracy of the deposition transcript. The trial court, however, ruled that defendants were not required to make an offer of proof because of plaintiffs’ failure to object to the use or authenticity of the deposition.

Defendants called Officer McElligott who investigated the accident. He testified to details of the accident and the condition of the driver. McElligott stated that he arrived at the scene at 7:15 A.M., and that he signed the accident report. He then read the report to refresh his memory. He was asked how he checked the box in his report marked “Physical Condition,” and he answered “normal.” He also stated that he made no notation in his report concerning liquor. Plaintiffs’ attorney objected continuously that the witness was reading from his report and that he had no independent recollection. The court repeatedly stated that the officer could testify from his report since he had made it. On cross-examination the officer testified that he had no independent recollection of the accident, and could not testify as to details not mentioned in his report; that all he could remember was arriving at the scene at 7:15. He then stated that he had an independent recollection of the “accident I handled, that I had taken the gentleman to the hospital.” Plaintiffs’ counsel asked questions concerning the weather and traffic conditions at the time of the accident and the officer referred to his report. Finally, the witness again testified that his present recollection was limited to the contents of the report and his arrival at the accident scene at 7:15. On redirect examination the officer acknowledged that he made the report at 8:30 A.M. of the day of the occurrence, while he had a present recollection of the facts. The court denied plaintiffs’ motion to strike this testimony by again stating that the testimony from the report was admissible because it was the witness’s report, he signed it, and at the time he signed it, it was an accurate recollection of what he had observed.

OPINION

Plaintiffs first contend that it was prejudicial error to allow defendants to lay a foundation to impeach a witness on a material matter, and then fail to offer proof of the allegedly impeaching statement. Defendants contend that no further proof of the deposition was required because plaintiffs never objected to the accuracy of the transcript, and never made a motion to suppress the deposition. In the alternative, defendants argue, that even if plaintiffs did not waive proof, Rigor admitted the most damaging deposition answers, and therefore, defendants were not required to offer proof of the impeaching statements. .

Initially, we hold that Supreme Court Rule 211, regarding waiver of errors and irregularities in depositions, is inapplicable in this case. We know of no situation where a party has the burden of raising an objection to the deposition in order to require the impeaching party to complete his impeachment by offering proof of the deposition. In Cibis v. Hunt, 48 Ill.App.2d 487, 199 N.E.2d 246, an unsigned deposition was used to support a motion for summary judgment, not for impeachment, and the objection to the use of the deposition concerned non-compliance with Rule 211 requiring a recital by the certifying officer that the party waived signature.

Supreme Court Rule 212 provides that discovery depositions may be used to impeach the testimony of the deponent as a witness “in the same manner and to the same extent as any inconsistent statement made by a witness.” The rule in Illinois regarding impeachment by a prior inconsistent statement is that, once counsel has laid a foundation for impeachment, he is under an obligation in law to offer proof of the allegedly impeaching statement. (Schoolfield v. Witkowski, 54 Ill.App.2d 111, 203 N.E.2d 460; Danzico v. Kelly, 112 Ill.App.2d 14, 250 N.E.2d 801.) The only exception to this rule occurs when the witness admits that he made the prior statement.. Logue v. Williams, 111 Ill.App.2d 327, 250 N.E.2d 159.

In the instant case, defendants argue that they were ready and willing to tender proof of the deposition transcript, and that the trial judge stated that he would not require further proof. In addition, they maintain that the trial court’s refusal to require completion of the impeachment was beneficial to plaintiffs and was prejudicial to defendants. However, it is clear that innuendoes involved in allegedly impeaching questions on a material issue are highly prejudicial. Miller v. Chicago Transit Authority, 3 Ill.App.2d 223, 121 N.E.2d 348; Ramseyer v. Illinois Central Railroad Co., 110 Ill.App.2d 95, 249 N.E.2d 120.

The issues of Mika’s intoxication and Rigor’s intoxication were certainly important and material issues. Therefore, the basic question before us is whether Rigor’s answers at trial admitted the prior inconsistent statements. The following answers were given by Rigor when he was asked if he recalled giving certain deposition answers:

(Number of races at track) “I thought I was there for just 2, for the double, that’s all.”
(When he returned to Howard’s) “I don’t deny it. I might have made a mistake.”
(How many beers in Howard’s after track) ‘T could have said 3 or 4 or 5, I don’t know. Around in that.”
(Time of arrival at Kelley’s.) “Around in that time. Closer to 2:30.”
(Number of beers at Kelley’s) “I don’t recall that direct, if I said it. But I know I had 3 beers, 3 beers positive.”
(Condition of Mika) “If I said it, it must be there.”
(Reason Mika swerved) “If that’s what it was then, I would have answered it that way.”

Rigor’s answers neither admitted nor denied the statements, his answers were equivocal. We do not believe that such answers are admissions of the inconsistent statements. Rigor’s answers put the authenticity of the deposition in issue, and should have required a prove-up.

In People v. Williams, 105 Ill.App.2d 25, 245 N.E.2d 17, the defendant was asked questions regarding his testimony at a coroner’s inquest. Defendant answered that he did not remember, and the prosecution did not prove the alleged impeaching statements. The court held that once ■the foundation was laid, counsel must offer proof. In Dunkelberger v. Hopkins, 51 Ill.App.2d 205, 200 N.E.2d 905, defendant’s counsel asked plaintiff if she recalled making prior inconsistent statements at a deposition. Plaintiff answered that if she made that statement she was mistaken and did not recall it; if it was there, then she said it. Defendant never offered the deposition into evidence, and the court held that the cross-examination, standing alone, did not impeach the witness. Without referring to the transcript of the alleged deposition, plaintiff’s responses did not establish that such questions had ever been posed to plaintiff or answered.

In the case at bar, as in Dunkelberger, Rigor’s responses did not establish the authenticity of the transcript, and therefore, defendants should have been required to offer proof of the deposition. Absent such proof, we cannot conclude that Rigor’s testimony was properly impeached.

There are cases in Illinois which hold that where the witness’s answers at trial are equivocal, it is counsel’s option to offer the impeaching statement if he so desires. (People v. Preston, 341 Ill. 407, 173 N.E. 383; Vancil v. Fletcher, 90 Ill.App.2d 277, 232 N.E.2d 789.) However, these cases are distinguishable in that they involved situations where the witnesses’ answers at trial were unresponsive, and the prior inconsistent statements were introduced. On appeal the issue was whether the impeaching party could complete the impeachment.

Plaintiffs’ second contention is that Officer McElIigott’s testimony from his police report was improperly admitted into evidence. Defendants contend that the police report merely refreshed the officer’s recollection, and therefore, his testimony was proper.

Supreme Court Rule 236(b) prohibits tire introduction into evidence of police reports. However, a police report can be used to refresh the memory of a witness. Hall v. Checker Taxi Co., 109 Ill.App.2d 445, 248 N.E.2d 721.

In the present case, our review of the record indicates that the report was not used merely to refresh the witness’s memory, but was read into evidence. On direct examination the officer testified by referring to his report. On cross-examination the witness admitted that he could testify only as to facts in his report. The officer did make the ambiguous statement that he had an independent recollection of the “auto accident I handled * * However, he then went on to testify that his recollection of the occurrence was limited to what he had said in his report, except for the fact that he recalled going to the accident scene at approximately 7:15 A.M. We are convinced that the witness’s testimony on cross-examination clearly showed that he had no recollection of the accident even after reviewing the police report.

In addition, we do not believe that the report could be read into evidence as past recollection recorded. The primary prerequisites for past recollection recorded, that the witness have no independent recollection and that the document fail to refresh the witness’s memory (Noumoff v. Rotkvich, 88 Ill.App.2d 116, 232 N.E.2d 107), are satisfied in this case. However, a foundation for past recollection recorded must also be laid by having the witness testify that he has no independent recollection, that he recorded the facts at the time of the occurrence or soon afterward and that his report was accurate and true when made. (Diamond Glue Co. v. Wietzychowski, 227 Ill. 338, 81 N.E. 392; Koch v. Pearson, 219 Ill.App. 468.) Here the officer testified on redirect examination that he made the report, signed it and had a fresh recollection of the facts when he made it. This was an attempt to belatedly lay the foundation for admission of the contents of the police report. However, the officer did not testify that he knew his report to be accurate when made. Therefore, his testimony did not substantially comply with the requirements for past recollection recorded. In view of this finding and our finding that the report did not refresh the witness’s recollection, it was error to allow this witness to testify to the contents of the police report.

In light of these errors, the judgment of the trial court is reversed and the cause is remanded for a new trial.

Reversed and remanded for a new trial.

LEIGHTON and HAYES, JJ., concur.

       Ill. Rev. Stat. 1971, ch. 110A, par. 211(d).

       Ill. Rev. Stat. 1971, ch. 110A, par. 212(a)(1).

       Ill. Rev. Stat. 1971, ch. 110A, par. 236(b).


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Robert Hall, Defendant-Appellant.
    (No. 57433;
    First District (2nd Division)
    April 3, 1973.
    Elwood T. Olsen, of Chicago, for appellant.
    Edward V. Hanrahan, State’s Attorney, of Chicago, for the People.
   PER CURIAM.


author: Mr. JUSTICE SEIDENFELD.

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Edward McCormick, a/k/a Edward L. McCormick, Defendant-Appellant.
    (No. 72-255;
    Second District
    April 11, 1973.
    Ralph Ruebner, of Defender Project, of Elgin, for appellant.
    Jack Hoogasian, State’s Attorney, of Waukegan, for the People.
   Opinion by

Mr. JUSTICE SEIDENFELD.


author: Mr. PRESIDING JUSTICE THOMAS J. MORAN

text:
    The People ex rel. Finitzo Brothers, Inc., Petitioners-Appellants, v. Paul J. Ronske et al., Defendants-Appellees.
    (No. 71-393;
    Second District
    April 17, 1973.

      Julian R. Wilheim, of Hinshaw, Culbertson, Moelmann, Hoban & Fuller, and Neil Greenbaum, of Gordon, Greenbaum & Browne, both of Chicago, for appellants.
    William V. Hopf, State’s Attorney, Rathje, Woodward, Dyer & Burt, both of Wheaton, (Malcolm F. Smith, Assistant State’s Attorney, of counsel,) for appellees.
   Mr. PRESIDING JUSTICE THOMAS J. MORAN

delivered the opinion of the court:

The petitioners (plaintiffs herein) appeal from an order dismissing their petition for a writ of mandamus.

Plaintiffs filed petitions (numbered 1760 and 1761) with the Du Page County Zoning Board of Appeals requesting a special use permit on two properties. On June 29, 1966, the County Board of Supervisors (hereinafter, the Board), upon recommendation of the Board of Appeals, passed an ordinance authorizing the issuance of the permit. The permit would allow, subject to nine conditions, the construction and operation of multiple-family dwellings on a portion of the Oestmann farm and on the entire Maercker farm, both having been zoned for single-family residences. Certified copies of the ordinance were transmitted by the County Clerk to the County Building and Zoning Department, the plaintiffs’ agent, and the State’s Attorney.

Thereafter, on July 12, 1966, the Board, without notice to petitioners, recalled the ordinance for reconsideration. A motion was then passed, ordering that the petition be “referred to the Zoning Committee of the Board of Supervisors * * * [who would] report back to the County Board.”

During the September 27, 1966 meeting of the Board, the following occurred:

“Supervisor Weeks brought back to the floor an Ordinance passed June 21, 1966, providing a Special Use Permit issued to Gail M. Reingold, Jr. (Maercker Farm — Cases #1760 and #1761), which action had been reconsidered by the Board at the following meeting and then referred back to the Zoning Committee for further study.
Supervisor Weeks moved, seconded by Supervisor Raymond that an amendment to the original motion, ‘to limit the number of 3 bedroom or more units to NOT MORE THAN 5 per acre.’ * * * Motion carried.”

The plaintiffs were never informed of this action and when they applied for their permit, it was denied. County officials asserted that the September 27th action by the Board did not apply to plaintiffs’ petition (the date of June 21, 1966, recited therein, did not correspond with the June 28, 1966 date of the original ordinance, and the name Gail M. Reingold, Jr., did not correspond with any of plaintiffs’ names); that the recalled ordinance remained in committee and that the property was therefore still zoned residential.

Plaintiffs filed a declaratory judgment action on November 25, 1966. (The intervening respondents (defendants herein) were allowed to participate in the proceeding.) Plaintiffs’ inartfully drawn complaint was not in separate counts for alternate remedies, but it did seek two separate reliefs, one contingent upon the other. It first requested that the court find the action of the Board (in reconsidering and amending the June 28, 1966, ordinance) invalid, and the ordinance, as originally passed, valid. Its second issue, contingent upon the outcome of the first (should the court find the Board’s amendatory action valid and the property properly classified as single family), requested that the comprehensive zoning ordinance be declared invalid, both generally, and as applied to plaintiffs’ property.

We have been furnished only a portion of the report of proceedings in the declaratory judgment action. That portion, however, reveals that the trial court imposed an election of remedies upon plaintiffs, having determined that their complaint set forth inconsistent remedies. The record does not show that evidence was heard, or action taken, on the first issue raised in the pleadings, but that evidence was heard on the second issue and relief thereon denied. Plaintiffs appealed the order of denial and while the appeal was pending, had it voluntarily dismissed.

In 1969, plaintiffs again requested the County Building and Zoning Department to issue the permit ordained and authorized by the June 29, 1966 ordinance, amended on September 27, 1966. The Department refused the permit stating that the subject property was still zoned for single family residences.

Plaintiffs filed a petition for writ of mandamus against the members of the Board and the Director of the County Building and Zoning Department, alleging that the ordinance had been enacted June 29, 1966; that on July 12, 1966, it was reconsidered, later brought back to the floor and passed as amended on September 27, 1966; that the ordinance was still in full force and effect; that despite requests, plaintiffs had been denied the special use permit, and that petitioners have a clear legal right to the permit.

The Board and Director, in their answer, admitted the chronological history of the ordinance but alleged that the ordinance reconsidered on September 27th was not the same as that which governed petitioners’ property. It was the Board’s and Director’s position that the last official act concerning the pertinent ordinance was its reconsideration on July 12, 1966, after which it was referred to the Zoning Committee; that since it has never been brought out from that Committee, the ordinance does not exist.

Defendants were again allowed to intervene. They filed an amended motion to dismiss the petition alleging that, due to the prior declaratory judgment suit, the action was barred under the doctrines of res judicata, estoppel by verdict and election of remedies. The trial judge allowed the defendants’ motion. The accompanying memo of decision stated that the Board “attempted by resolution to amend the ordinance, an action of which I doubt the validity, as it takes an ordinance to amend an ordinance,” but dismissed the petition on the grounds that the prior declaratory judgment suit barred tire plaintiffs’ mandamus action. From this order, plaintiffs appealed; the Board and Director have chosen not to participate.

Since the order appealed must be reversed, we limit our remarks to plaintiffs’ contention that the present case is not barred by the prior declaratory judgment action.

One requirement by which a prior proceeding may act as a bar to further litigation under the doctrines of res judicata and estoppel by verdict, is that the identical issue litigated in the former proceeding, is again sought to be decided. The burden of proof was on the defendants here to show that the court tried and determined the first issue raised by the plaintiffs in their complaint for declaratory judgment. (See People ex rel. Chicago & Eastern Illinois R.R. v. Fleming, 42 Ill.2d 231 (1969); Ray Schools—Chicago Inc. v. Cummins, 12 Ill.2d 376 (1957); In re Estate of Garrett, 109 Ill.App.2d 243 (1969).) The record before us contains no such proof and therefore the appealed order cannot be founded upon the doctrines of res judicata or estoppel by verdict.

Unfounded, also, is defendants’ claim that the doctrine of election of remedies bars plaintiffs from prosecuting the present action. For this doctrine to apply, a litigant must have inconsistent remedies available to him from, which he chooses one as the basis for his cause of action. (People v. Marx, 370 Ill. 264, 270 (1938).) We hold that plaintiffs’ did not plead inconsistent theories and cannot, therefore, be subject to the doctrine of election of remedies. A reading of the declaratory judgment complaint, coupled with the excerpts from the hearing, indicates that plaintiffs first requested a clarification of the existence of the ordinance and then, in the event of an adverse ruling on this point, alternatively requested a decision on constitutional issues.

The portion of the record provided indicates that, prior to hearing on the second issue, plaintiffs’ attorney was pressed to answer whether plaintiffs had been “turned down.” It is unclear whether “turned down” referred to the Board’s refusal to allow a reclassification of the property involved or referred to a refusal on the part of county officers to issue a permit. Defendants take the position that the expression “turned down’* indicated an admission that the ordinance did not exist. Such interpretation, however, ignores the fact that the plaintiffs continually state'd that there was confusion as to whether the ordinance existed and that they desired a judicial determination on that point.

This court finds that, for the reasons stated, the mandamus action is not barred by the prior suit. The order of the trial court is therefore reversed and the cause remanded for further proceedings.

Reversed and remanded.

ABRAHAMSON and SEIDENFELD, JJ., concur.


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Roy Grimes, Defendant-Appellant.
    (No. 72-162;
    Second District
    April 17, 1973.
    Paul Bradley, of Defender Project, of Elgin, for appellant.
    William V. Hopf, State’s Attorney, of Wheaton, (Ralph J. Gust, Jr., Assistant State’s Attorney, of counsel,) for the People.
   Mr. PRESIDING JUSTICE THOMAS J. MORAN

delivered the opinion of the court:

The defendant appeals from an order denying relief, after an evidentiary hearing, under an amended post conviction petition.

The single issue is whether, in light of a claimed “unfulfilled promise” by the prosecutor, the defendant’s sentence to the penitentiary violated his constitutional rights to due process.

During the hearing on the amended post conviction petition, it was established that the defendant was arrested for burglary; that, in the course of interrogation, the police promised to recommend probation for the defendant if, in return, he would identify his accomplice, give a statement and testify against his companion. Defendant identified his cohort and gave a statement. Later he and his accomplice were indicted. The public defender, appointed to represent defendant, verified the State’s agreement to recommend probation under the terms above.

On two occasions defendant appeared, ready to testify against the co-defendant: on each occasion, the co-defendant (aware of the arrangement between the State and the defendant) had the case continued. On the next date set for trial, August 28, 1969, the defendant failed to appear. The case was continued to September 8, 1969. The public defender wrote to the defendant at his last known address, informing him of the new date, but the letter was returned unclaimed. On September 8, 1969, defendant’s bond was forfeited for failure to appear, the co-defendant entered a plea of guilty and was sentenced to a term of 2 to 5 years in the penitentiary. On that date, the State notified defendant’s counsel of its decision to withdraw the promise of probation recommendation.

Late in November, 1969, defense counsel was informed that the defendant had been incarcerated in Cook County since August 9, 1969. Brought back to Du Page County, defendant was informed that the State had withdrawn any prior promise to recommend probation and, instead, would now recommend a sentence of 2 to 5 years. (Defendant alleged that his counsel then advised him to plead guilty, suggesting that he would arrange for the Assistant State’s Attorney and the interrogating police officer to be present, anticipating that, after the plea, special consideration might be urged upon the court. Defense counsel denied that any conditions were suggested but stated that he had advised defendant to plead guilty and accept the State’s recommended sentence.) On December 11, 1969, defendant entered his plea and was sentencd to a term of 2 to 5 years.

The record clearly indicates that the defendant admitted full knowledge of the withdrawal of the State’s promise and of the intended sentence recommendation, prior to the entry of his plea. During a thorough admonishment by the court, defendant explicitly voiced his understanding that the State would recommend a 2 to 5 year sentence and unequivocally stated that no other promises had been made him.

From the evidence herein, we conclude that the defendant’s plea of guilty was not made in reliance upon any prior promise by the State but, rather, was entered voluntarily, intelligently and understandingly.

The judgment of the trial court is affirmed.

Judgment affirmed.

SEIDENFELD and ABRAHAMSON, JJ., concur.


author: Mr. JUSTICE DIXON

text:
    Vera Parker et al., Plaintiffs-Appellants, v. David L. Newman, Defendant-Appellee.
    (No. 72-245;
    Third District
    April 18, 1973.
    James B. Lewis, of Peoria, for appellants.
    Clifford E. Schneider, of Peoria, for appellee.
   Mr. JUSTICE DIXON

delivered the opinion of the court:

This is an appeal from an order entered by the Circuit Court of Peoria County, Illinois, denying the plaintiffs’ motion for a continuance and dismissing the case for want of prosecution when their attorney refused to proceed with the trial.

The plaintiffs, Vera Parker and John Parker, her husband, filed a complaint on March 11, 1970, alleging that on March 13, 1968, the defendant, David L. Newman, drove his car into theirs, which was carrying Vera Parker and Clara L. Graham, their only independent occurrence witness. The defendant in his answer denied being involved in the accident, and in answers to interrogatories denied any knowledge of the occurrence.

A pre-trial conference was held March 16, 1972. At that time the case was set for trial on May 15, 1972, and the pre-trial conference was continued to May 4. When the pre-trial conference was resumed on May 4, the defendant’s attorney informed the court that he had learned that his client was in the army and thought he was in Germany. He asked the court to postpone the trial until defendant would be available. The trial judge refused this request, however, and directed that if the defendant’s testimony was needed his evidence deposition should be taken. The judge re-set the trial for June 26.

After the pre-Mai conference it was learned that the defendant would be on furlough in the early part of June but had to report to Fort Dix, New Jersey, on June 26, 1972, for shipment to Germany. Then on June 12, in compliance with the ruling of the presiding judge at the pre-trial conference, the defendant’s attorney gave the plaintiffs notice that the defendant’s evidence deposition would be taken on June 21. Subsequently, at the request of the plaintiffs’ attorney, the deposition was postponed one day, to June 22.

On June 22, 1972, the plaintiffs’ attorney did not appear at the time fixed for the deposition but arrived while the deposition was in progress. He announced that he was not going to participate in the deposition, said he expected to cross-examine the defendant at the trial scheduled for June 26, served defendant’s attorney with a notice to produce the defendant at the trial on that date, and then left. Having learned that the defendant was not going to be available on June 26, the plaintiffs’ attorney also filed a motion on June 22 for a continuance of the Mai, but this motion was heard and denied on June 23.

When the court convened for the trial on June 26, the plaintiffs renewed their motion for a continuance. The court again denied the motion, observing that the defendant’s attorney was at that time prepared for Mai, that an evidence deposition had been taken pursuant to the court’s earlier request, and that the plaintiffs had been given notice of the taking of the deposition. The plaintiffs’ attorney indicated that he would not go to Mai unless the defendant were personally present. The court thereupon dismissed the case for want of prosecution, and this appeal followed.

The plaintiffs contend that the Mai court’s denial of their motion for a continuance was an abuse of discretion. They argue that the primary issue in their case was one of identification, that it was essential to their case to have the defendant in court so the witnesses could describe him and then point him out before the jury as the driver of the car which had struck theirs, and that the court’s denying their motion for a continuance was capricious and arbitrary, served no valid purpose, and unfairly denied them their day in court.

The defendant, on the other hand, contends that the trial court did not commit an abuse of discretion. He argues that the plaintiffs displayed lack of diligence in not having their occurrence witnesses view him earlier when his evidence deposition was taken, since they could have testified at the trial that they had previously identified the defendant as the wayward driver. He argues, further, that the plaintiff’s having failed to support their motion for a continuance with an affidavit is sufficient ground for sustaining the trial court’s denial of the motion.

As this court has recently stated, an appellate tribunal will not interfere with a trial court’s exercise of its discretion in the granting or denial of a motion for continuance unless there has been a manifest abuse of the trial court’s discretion. (Reecy v. Reecy, 132 Ill.App.2d 1024, 271 N.E.2d 91, 92.) Accordingly we must decide whether the denial of a motion for continuance in the case before us was a manifest abuse of discretion.

This court has stated, also, that in numerous cases involving the propriety of a trial court’s exercise of its discretion in ruling on a motion for continuance, the decisive factor has been whether the party applying for a continuance has shown a lack of due diligence in proceeding with the cause. (Krupinski v. Denison, 9 Ill.App.2d 155, 159.) We have held that if the moving party has not shown the use of due diligence to obtain evidence or the lack of time to obtain it, as required by Supreme Court Rule 231(a), the trial court’s refusal of a motion for a continuance will be sustained. Franks v. North Shore Farms, Inc., 115 Ill.App.2d 57, 76-77.

We believe the plaintiff should have utilized the opportunity to have their witnesses view the defendant when his deposition was taken. If the witnesses had recognizd him on that occasion, then at the trial they could have told the jury they had done so, and would not have had to point to him. The plaintiffs’ neglect of this opportunity, created for them by direction of the trial court at the pretrial conference, appears to us to show a lack of due diligence. We therefore cannot find a manifest abuse of discretion in the trial court’s denying the plaintiffs another opportunity to obtain the identification evidence which they claimed they needed.

Furthermore, it appears that the plaintiffs’ motion for a continuance was not supported by an affidavit as required by Supreme Court Rule 231. In a number of cases it has been held that where no affidavit has been filed (Ellick v. Clayton Motor Co., 16 Ill.App.2d 151; see Debolt v. Wallace, 56 Ill.App.2d 380, 384), or the affidavit does not meet the requirements of Rule 231 (Bell v. Board of Education, 117 Ill.App.2d 15; North Fed. Sav. & Loan Assn. v. Tokoph, 110 Ill.App.2d 254, 257-59), denial of a motion for continuance cannot be regarded as an abuse of discretion. Therefore we must held, we believe, that denial of the plaintiffs’ motion for a continuance was within the discretion of the trial court in the case before us.

The plaintiffs contend that denying their motion and dismissing the case was unfair to them and served no good purpose. However, we note that in a recent case where a motion for a continuance was made but due diligence to obtain evidence was not shown, the court said: “Because of the potential inconvenience to the parties, the witnesses and the court, especially grave reasons for granting a delay must be given once a case has reached the trial stage.” (Schneider v. Seibutis, 3 Ill.App.3d 323, 326.) Also, in another case wherein an affidavit supporting a motion for a continuance was held insufficient, the court stated: “Every plaintiff probably feels that an involuntary dismissal does disservice to the goal of substantial justice. But we must consider ‘justice’ in a broader context. s * * [W]e conclude that in order to maintain a steady flow of cases into trial courts we must support the rules and regulations the purpose of which is expeditious assignment and disposition of the vast number of cases in our courts. Continuances and delays without good cause or sufficient excuse interrupt orderly procedures and throw the entire system out of balance to the detriment of other cases awaiting trial.” Davies v. Infragnia, 54 Ill.App.2d 299, 305-06.

Inasmuch as our review has not disclosed a manifest abuse of discretion by the trial court, the judgment of the Circuit Court of Peoria County will be affirmed.

Judgment affirmed.

SCOTT, P. J., and STOUDER, J., concur.


author: Mr. PRESIDING JUSTICE CRAVEN

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Steven Arthur Camel, Defendant-Appellant.
    (No. 11552;
    Fourth District
    April 12, 1973.

      Robert I. Auler, of Champaign, for appellant.
    Lawrence E. Johnson, State’s Attorney, of Urbana, (Thomas L. Knight, Assistant State’s Attorney, and Scott Murphy, Senior Law Student, of counsel,) for the People.
   Mr. PRESIDING JUSTICE CRAVEN

delivered the opinion of the court:

The defendant was convicted in a bench trial of rape and aggravated kidnapping. He was sentenced to a term of not less than 10 nor more than 25 years in the Illinois State Penitentiary, the sentences to run concurrently. Upon this appeal, he asserts that the trial court committed error in denying discovery of certain evidence before trial; that he . was denied his right to counsel at the preliminary hearing; and that the in-court identification was based upon unduly suggestive show-up or photographic identification; and that the trial court prohibited certain offers of proof. Other evidentiary rulings are also assigned as error.

On March 17, 1970, Joanne Hinton, then age 16, was walking from her home to Champaign Central High School in Champaign, Illinois. As was her usual custom, she was following a route that would take her by way of the home of a girl friend with whom she walked to school. Joanne had left her home around 8:00 o’clock in the morning of the date in question.

A man walking in the same direction as Miss Hinton passed her, then stopped and turned around and inquired of her as to the location of the university. Miss Hinton pointed in the general direction of the university. The man had a scarf on that covered the lower portion of his face up to about the middle of his nose.

Miss Hinton crossed the street to avoid further encounter with the man; however, he followed her and again asked her the location of the university. The conversation at that point was described by Miss Hinton in her testimony as follows:

“Where’s the university?
You have a long ways to go.
I have a gun, and I don’t want to hurt you. All I want is your money.
You can have it.
I don’t want to take it here. Come with me if you don’t want to get hurt.”

The man placed a knife at her back and they walked to a car described as “greenish-blue”. She got in and sat on the passenger side. She was told to keep her head down close to her knees. The man then placed a blindfold over her eyes. When she began to cry, he placed the knife at her throat and ordered her to stop crying. After driving for what was described as a few minutes, the car was stopped and the girl’s hands were tied behind her back. The man ordered the girl to take off her underpants but she was unable to do so because her hands were tied. He then removed the underpants himself, started to drive again, and ordered the girl to get into the back seat of the car. Ultimately, she got into the back seat of the car; the man stopped the car, climbed into the back seat, and raped the girl. She stated that she did not attempt to fight him because she was scared she would be hurt.

Miss Hinton was then driven by the man to Westside Park in Champaign, was told to face the opposite direction of the car, and not to look back until the car was gone. She testified that she did not look back, but instead ran to the high school. She there made an immediate complaint to the dean of girls as to the preceding events. She arrived at the high school around 9:00 A.M. Miss Hinton was thereafter taken by her mother to a Doctor Kelso for purposes of examination.

Later that same morning, Miss Hinton talked to officers of the Champaign Police Department, gave a statement to officer Voss, and in the statement gave a physical description of her assailant as around 5 feet 8 inches tall, of small build, with dark brown hair combed over his forehead, having small hazel eyes, of medium voice, and wearing a brown corduroy jacket of three-quarter length. His age was described as between 21 and 22 years.

Also, on the day of the offense, the police asked Miss Hinton to view certain prisoners on a closed-circuit television at the police department. She did so, but did not identify any of the persons viewed as her attacker. About a month later, the prosecutrix looked at a large number of photographs at the police station but did not identify her attacker as being among the photographs shown to her. In her testimony, she stated that she did not see the defendant on the closed-circuit television, nor recall seeing photographs of him at the time of the photographic viewing.

On May 28, 1970, Miss Hinton and her father were present at a preliminary hearing. She and her father were unaware that the defendant was to be present and unaware that they were there for purposes of any identification. At the time of that hearing, Miss Hinton made a positive identification of the defendant, Steven Arthur Camel, as her attacker.

Joyce Parlchill and her son, Bill, then age 13, were called as witnesses for the prosecution. The substance of their testimony was that Mrs. Parkhill was driving the son to school at around 8:00 o’clock in the morning on March 17, 1970. They saw a car stopped at an intersection near John Street in Champaign, Illinois. As they pulled alongside the stopped car they saw a young man in the car with a muffler around the lower part of his face. Mrs. Parkhill, a portrait artist, described the facial characteristics and described the car as a blue-green vehicle. Bill Park-hill likewise described the facial characteristics of the man with the muffller and also indicated that he saw a girl crouched down in tire passenger side of the front seat of the car. She was wearing a black and white hat and he testified that the hat he saw looked like the hat worn by Joanne Hinton on the day she was kidnapped. Mrs. Parlchill and Bill were shown five photographs. Bill Parkhill identified a photograph of the defendant as his second most likely choice as a picture of the man he saw that morning. These photographs are in evidence. Mrs. Parkhill was unable to identify the defendant. At the time of trial, Bill Parkhill made a courtroom identification of the defendant Camel as the one who had been in the car on the morning in question. Upon cross examination, he conceded that he was not absolutely one hundred per cent certain of his identification.

Dr. Kelso, the family physician to whom Miss Hinton was taken for examination, testified that vaginal smears taken from Miss Hinton indicated the presence of sperm. He further testified that on the occasion of his examination of Miss Hinton she was extremely upset and nervous and that she related to him that she had been raped.

Victoria Booth, defendant’s girl friend, testified as an alibi witness to the effect that the defendant spent the night of March 16, 1970 in her apartment and that he did not leave her apartment on the morning of March 17 until after 8:30 A.M. and that he did not use her automobile described as a forest green automobile.

Other evidentiary matter so far as is relevant to the decision in this case will be discussed in connection with the particular issue to which it has application.

The defendant sought, and for the most part obtained, extensive pretrial discovery. He sought but did not obtain the photographs shown to the victim nor was he furnished any detail with reference to the closed-circuit television viewing for purposes of attempted identification. This asserted denial of discovery is claimed as error.

While the prosecution is required to furnish the defendant with all items of evidence or information that would tend to exculpate the defendant or provide mitigating factors for use in his defense, such requirement has no application to the evidentiary items, discovery of which was denied. The discovery requirement applicable at the time of this trial and pretrial proceedings would be those found in the cases of People v. Moses, 11 Ill.2d 84, 142 N.E.2d 1; People v. Wolff, 19 Ill.2d 318, 167 N.E.2d 197, and, of course, Brady v. Maryland, 373 U.S. 83, 10 L.Ed.2d 215. Although this case was tried before the adoption of the present rules of discovery for criminal trials, it is not established that there would be non-compliance with the requirements of these mies. This record does not show nor suggest that favorable evidence was denied the defendant. Further, the denial of the photographs, even if obtainable, cannot be said to be reversible error inasmuch as the in-court identification clearly had an origin independent of any attempted photographic identification. See People v. Newbury, 53 Ill.2d 228, 290 N.E.2d 592.

The defendant urges that the identification at the May 28, 1970 preliminary hearing was a pretrial show-up conducted in the absence of counsel and that under tire decisions of United States v. Wade, 388 U.S. 218, 18 L.Ed.2d 1149; Gilbert v. California, 388 U.S. 263, 18 L.Ed.2d 1178; Coleman v. Alabama, 399 U.S. 1, 26 L.Ed.2d 387; and People v. Adams, 46 Ill.2d 200, 263 N.E.2d 490, aff’d 405 U.S. 278, 31 L.Ed.2d 202, the trial court was in error in its ruling on the motion to suppress and to dismiss the prosecution. The confrontation at the preliminary hearing is not established as a show-up. The record negates the existence of a planned encounter. Furthermore, at the preliminary hearing the defendant had counsel and counsel had sought and obtained a continuance of that hearing on a prior occasion. Indeed, the record indicates that the preliminary hearing was held at a time sought by defendant through his counsel.-

The chronology of events becomes relevant. The offense here involved was March 17, 1970. A complaint charging the defendant with the offense was filed May 4, 1970. The preliminary hearing was May 28, 1970. The date of the indictment was June 25, 1970. In People v. Palmer, 41 Ill.2d 571, 244 N.E.2d 173, the Illinois Supreme Court held that the requirements of Wade and Gilbert do not apply to preindictment lineups. However, after the decision in Kirby v. Illinois, 406 U.S. 682, 32 L.Ed.2d 411, and in compliance with that decision, the holding in Palmer was modified and broadened to apply the Wade-Gilbert rule to lineups conducted after the initiation of adversary judicial proceedings. People v. Burbank, 53 Ill.2d 261, 291 N.E.2d 161; People v. Pierce, 53 Ill.2d 130, 290 N.E.2d 256.

Thus, the protective and exclusionary rule of Wade and Gilbert would be applicable here if the identification involved were based upon a show-up at the time of the preliminary hearing and the at-trial identification was dependent upon the identification at the preliminary hearing. However, there was no photographic identification, nor a show-up in the sense of a presentation of the suspect alone to the victim for purposes of identification. Thus, that which Wade and Gilbert is designed to protect against does not appear here.

The in-court identification by the victim and by the witness Park-hill in our judgment was properly received. Each witness had an opportunity to observe the offender at or about the time of the offense. Under the circumstances related in this record, the positive identification at trial has the time of the offense as its origin, not the preliminary hearing nor the attempted identification by photographs. See People v. Pierce; People v. Blumenshine, 42 Ill.2d 508, 250 N.E.2d 152.

We find no merit in the contention of the defendant that he was improperly denied his right to counsel at the time the photographs were exhibited to Mrs. Parkhill and her son. The defendant was not present and in People v. Holiday, 47 Ill.2d 300, 265 N.E.2d 634, the Illinois Supreme Court held that the Wade-Gilbert doctrine does not require the presence of defense counsel at photographic identification proceedings where the defendant himself is not present.

The defendant contends that the trial court committed error in evidentiary rulings with reference to the statement by the victim to Dr. ICelso that she had been raped and in allowing Dr. Kelso to state the results of the laboratory tests for the presence of sperm when he had not conducted nor supervised those tests. Even if the defendant is correct in his assertions of error on these evidentiary rulings, such did not constitute reversible error in view of the clear cumulative nature of such evidence.

The same observation is true as to the assertion of the defendant that the trial court improperly precluded him from making certain offers of proof designed to demonstrate the incorrectness of the record insofar as it related to the preliminary hearing. The defendant was denied the opportunity to make offers of proof when he attempted to demonstrate various elements of suggestiveness alleged to exist at the time of tire preliminary hearing and when he sought to impeach the record as to that which transpired at the preliminary hearing. The defendant sought to introduce testimony of a discussion allegedly held between the defendant and the judge at the preliminary hearing and he did this by offering the testimony of a witness who was present at the preliminary hearing. An objection on the grounds of hearsay was sustained but the court did permit an offer of proof. Thereafter, when the defendant sought to elicit a conversation between the victim and the victim’s father at the time of the preliminary hearing, which conversation was said to have been overheard by a witness, Victoria Booth, the court sustained a general objection and rejected the effort by the defendant to make an offer of proof of that conversation. At another point, again at the hearing on the motion to suppress, the victim was called to the stand and was asked certain questions with reference to attempted photographic identifications. Objections to this fine of questioning were sustained and defendant’s request to make an offer of proof was disallowed. It can be said as a general rule that it is error for the trial court to refuse to permit counsel to make an offer of proof. It must be borne in mind that we are concerned only with the right to offer tire proof as distinct from the right to introduce the evidence. We agree with the observations of the supreme court of Wyoming in the case of Jones v. Clark, 418 P.2d 792, when the court noted that the right to offer proof is almost absolute, subject only to the court’s discretion to reasonably restrict repetitious effort to offer the same or substantially the same type of proof which has been previously offered and its reception denied. The discussion there found with reference to the purpose of making offers of proof is relevant here. (See also 88 C.J.S. Trial, sec. 73, p. 179, and the annotation at 89 A.L.R. 2d 281.) Thus, it was error for the trial court to preclude the defendant’s offer of proof. Such error does not require reversal, however, in view of our holding with reference to the independent origin of the in-court identification.

Other evidentiary matters with reference to the existence or nonexistence of a cast and whether it was removable or not removable were essentially matters relating to the credibility and believability of certain of tlie witnesses and such issues are properly for the trier of fact. We find no error in the trial court proceedings upon the essential issues and none that would have denied the defendant a fair trial. The judgment of the circuit court of Champaign County is affirmed.

Judgment affirmed.

SIMKINS and SMITH, JJ., concur.


author: Mr. JUSTICE SCHWARTZ

text:
    Robert T. Gray, Plaintiff-Appellant, v. Peter H. Hall et al., Defendants-Appellees.
    (No. 56623;
    First District (2nd Division)
    March 20, 1973.

      Donald L. Johnson, of Chicago, and Errol Zavett, of Evanston, for appellant.
    Joseph D. Gannon, of Chicago, and Nadelhoffer, Hennessy & Dommermuth, of Naperville, for appellees.
   Mr. JUSTICE SCHWARTZ

delivered the opinion of the court:

Plaintiff, one of two shareholders in P. E. Product Engineering Corporation (the Corporation), instituted this suit against the Corporation and its principal shareholder, Hall, seeking an accounting. Before tire case came to trial the Attorney General of Illinois instituted an action against the Corporation, seeking an involuntary dissolution for failure to file its annual report. The Attorney General was successful and on December 22, 1969, a decree was entered ordering dissolution of the Corporation. Plaintiff’s complaint was later amended, seeking not only an accounting but also liquidation of the corporate assets and distribution of the proceeds to the shareholders. After a trial by the court it was ordered that upon liquidation of the Corporation the plaintiff was to receive assets representing his fractional share of the common stock. All other relief was denied, and plaintiff appealed to this court. He charges that

(1) the trial court erred in failing to order a liquidation and distribution of the assets of a dissolved corporation;
(2) the trial court erred in failing to liquidate the corporation under its powers granted pursuant to Ill. Rev. Stat. 1971, eh. 32, par. 157.86; and
(3) the trial court erred in allowing Hall to benefit from a breach of a shareholders’ agreement, and that certain findings of fact made by the trial court were contrary to the manifest weight of the evidence.

No question is raised by the parties as to the appellate jurisdiction of this court to decide questions which could cause the termination of a corporate franchise. Jurisdiction over such questions, as well as questions involving freeholds, formerly vested solely with the Supreme Court. (Central Standard Life Insurance Co. v. Davis, 7 Ill. 2d 266). Changes in our Civil Practice Act and Supreme Court Rules make it clear that such questions are, however, now properly brought before the appellate court. The facts follow.

In 1960 the Corporation was formed by Gray, Hall, and one Edwin Townsend. There is dispute as to the relative capital contributions made by Townsend and Hall, but it appears that Gray contributed $6,000 to the venture. Each of the incorporators received 120 shares of stock, and these 360 shares were the only stock ever issued. The Corporation commenced doing business in the field of 4-way refrigeration valves. It was agreed that Townsend would attend to the design, Hall would concern himself with the manufacturing, and Gray with the sales of the product. It was further agreed, in writing, that so long as the three were the only shareholders, the sale of stock by any one of them would be permissible only if the others had sufficient notice of the proposed sale and the opportunity to purchase at the highest offer.

As the Corporation progressed, Townsend and Hall worked full time and drew salaries, while Gray continued in his previous occupation as a manufacturers representative and took no salary from the Corporation. Gray made some limited sales trips and established a sales network for the Corporation. However, he occupied substantial quarters in the building rented by the Corporation, and made free use of its secretary and storage facilities. During this time he was in daily communication with Hall and Townsend.

There is disagreement as to the amount of commission Gray was to receive, but it is admitted that he was to be paid a 10% commission on valve sales after the Corporation “got off the ground.”

A few months after the business was started Townsend and Hall formed an engineering project partnership which they called EMCO. In 1961 and 1962 EMCO provided up to 90% of the Corporation’s revenue-producing business. In 1962, due to personality conflicts between Townsend and Hall, EMCO was dissolved, and Townsend took over its machinery, business, and name, with Hall taking Townsend’s interest in the Corporation.

Gray apparently knew of the transfer since EMCO and the Corporation were in the same building and had the same principals; and the transaction between Townsend and Hall was reported in a Dun and Bradstreet publication. At this time 120 shares of stock in the Corporation were worth approximately $2,000.

Subsequently, the sales of the Corporation increased each year from $14,870.27 in 1962 to $305,607.12 in 1970. The earnings, however, fluctuated from a profit high in 1966 of $13,846.13 to a loss in 1969 of $19,764.74. From 1963 to 1970, Hall’s salary increased from $5,208 to $12,000. Plaintiff contends that these increases were a result of the unilateral acts of Hall. On the other hand, plaintiff admits that Hall worked 70 hours a week for the Corporation.

In March 1967, after disagreements with Hall, Gray moved from the premises. In October, Gray’s attorney served Hall with a demand for permission to inspect the corporate books and records, pursuant to Ill. Rev. Stat. 1971, ch. 32, par. 157.45. In May of 1968, notice was served on plaintiff that a shareholders and directors meeting would be held on May 29, the first of such meetings since the incorporation in 1960. There is dispute as to what transpired at the meeting. The corporate minutes indicate that there was a discussion of an intention by Hall to move the headquarters to North Carolina. Plaintiff contends that these records do not accurately represent the occurrences of that date and that little was said about an intention to move the corporate headquarters. The meeting was adjourned in order that Gray and his attorney could examine the corporate books; however, the examination could not be completed since some of the books were at the office of the accountant. Soon after s this meeting the plant was moved to Asheville, North Carolina, and this suit was commenced shortly thereafter.

Plaintiff’s first contention is that the trial court erred in failing to liquidate the assets of the Corporation after it had been dissolved in the non-related action brought by the Attorney General of Illinois. On appeal, the parties agree that the decree of dissolution previously entered was vacated on motion of tire Attorney General on September 3, 1971. Plaintiff acknowledges the vacating of the decree of dissolution, but contends that this court cannot take cognizance of such event, since it occurred after the judgment from which the appeal was brought. However, it would seem illogical to cause the liquidation of a corporation based upon a decree of dissolution where it is agreed by all parties that the decree has been vacated.

Plaintiff next contends that even if there were no decree of dissolution, the trial court erred in failing to liquidate the assets of the Corporation pursuant to its powers under Ill. Rev. Stat. 1971, ch. 32, par. 157.86(a) (3), which provides in pertinent part:

“Circuit courts have full power to liquidate the assets and business of a corporation:
(a) In an action by a shareholder when it appears:
# # #
(3) That the acts of the directors or those in control of the corporation are illegal, oppressive or fraudulent; * ”

Plaintiff lists nine specific acts of the defendants which he alleges constitute oppressive action within the meaning of the statute. In Central Standard Insurance Co. v. Davis, 10 Ill.2d 566, the Supreme Court stated at page 573:

“The word ‘oppressive’ does not carry an essential inference of imminent disaster; it can, we think, contemplate a continuing course of conduct. * * * [W]e reject defendants’ argument that the word is substantially synonymous with ‘illegal’ and ‘fraudulent.’ Misapplication of assets or mismanagement of funds are not, as we read the statute, indispensable ingredients of ‘oppressive’ conduct.”

As we read this definition, actions which might be oppressive under one set of circumstances would not be oppressive under others. For instance, the paying of large salaries to corporate officers might be justified where a corporation has large retained earnings. This same behavior might be oppressive where the corporation is unable to pay dividends to minority stockholders, due to large salaries drawn by officer-majority stockholders. Similarly, the non-payment of dividends might indicate oppressive behavior where the corporation retains large amounts of earnings for no apparent reason except to “freeze out” minority stockholders. The non-payment of dividends by a corporation cannot be determined to be oppressive except when viewed in the backdrop of the corporation’s overall financial picture. In this case, to obtain a view of the overall picture is impossible without a thorough and complete accounting of the Corporation’s books. In our opinion, the plaintiff is entitled to such an accounting, and the case should be remanded for that purpose.

Plaintiff further contends that the trial court erred in allowing defendant Hall to benefit from his knowing breach of the stockholders agreement when he bought Townsend’s stock. However, our examination of the record discloses that plaintiff knew of the transfer and acquiesced in it until the commencement of this action eight years later. Plaintiff does not specify what remedy he would have this court grant in respect to this contention. The inference is that plaintiff desires a rescission of the transfer between Townsend and Hall, with that block of stock being divided equally between plaintiff and defendant Hall. Such equitable relief is not proper under these circumstances, where plaintiff knew of the breach and acquiesced in it until such time as it became financially desirable for him not to do so.

Plaintiff further contends that the trial court’s findings relative to his claim for commissions were contrary to the manifest weight of tire evidence. The trial court’s ruling on this issue was based on the evidence, and we find no error in the court’s ruling.

The case is remanded with directions to the trial court to order a complete accounting of the books and records of the corporate defendant and to grant plaintiff such relief, if any, as may be deemed appropriate.

Affirmed in part, reversed in part, and remanded for such other and further proceedings as are not inconsistent with the views herein set forth.

STAMOS, P. J., and HAYES, J., concur.


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Donald Wright, Defendant-Appellant.
    (No. 56282;
    First District (5th Division)
    March 23, 1973.
    James J. Doherty, Public Defender, of Chicago, (Shelvin Singer, Assistant Public Defender, of counsel,) for appellant.
    Bernard Carey, State’s Attorney, of Chicago, (Elmer C. Kissane and Terrence McQuigg, Assistant State’s Attorneys, of counsel,) for the People.
   PER CURIAM.


author: Mr. PRESIDING JUSTICE DRUCKER

text:
    Michael La Pota et al., Plaintiffs-Appellants, v. The County of Cook, Defendant-Appellee.
    (No. 56874;
    First District (5th Division)
    March 23, 1973.
    George B. Collins and Jeffrey Schulman, both of Chicago, for appellants.
    Edward V. Hanrahan, State’s Attorney, of Chicago, (Daniel P. Coman and James A. Rooney, Assistant State’s Attorneys, of counsel,) for appellee.
   Mr. PRESIDING JUSTICE DRUCKER

delivered the opinion of the court:

Plaintiffs appeal from the dismissal of their complaint which alleged that the defendant, County of Cook, was liable for damage done to plaintiffs’ property due to the “Dixmoor riots” on August 15 through August 21, 1964. This appeal was originally filed in the Illinois Supreme Court but was transferred to this court.

In their complaint plaintiffs relied on Section 25 — 3 of the 1965 Criminal Code (Ill. Rev. Stat. 1965, ch. 38, par. 25 — 3) which provided in relevant part:

“(a) Any person suffering material damage to property, * * * as a result of any of the following unlawful activities shall have an action against the county in which such damage * * * is inflicted:
(I) Mob action by 6 or more persons; * *

This section was repealed on July 31, 1967, (Laws of 1967, p. 2365) and in Shelton v. The City of Chicago, 42 Ill.2d 468, 248 N.E.2d 121, it was held that the repealing act served to bar all claims under this section wherein final relief had not been obtained prior to July 31, 1967.

Plaintiffs’ complaint, along with their demand for a jury trial, was filed on August 11, 1965. The case never reached the trial call and was dismissed on March 26, 1970, in reliance on Shelton.

On appeal plaintiffs contend that the large backlog of cases in the Law Division of the Circuit Court of Cook County was the reason they were unable to obtain final relief prior to the repealing act; that they were thus deprived of their rights under Article II, Section 19 of the 1870 Illinois Constitution (then in effect), which provided:

“Every person ought to find a certain remedy in the laws for all injuries and wrongs which he may receive in his person, property or reputation; he ought to obtain, by law, right and justice freely, and without being obliged to purchase it, completely and without denial, promptly, and without delay.”

Plaintiffs also contend that they were denied their right to equal protection under the Fourteenth Amendment to the United States Constitution. They argue that had their case been filed in a county other than Cook, final relief could have been obtained prior to the repeal of Section 25 — 3, supra.

Opinion

We find it unnecessary to address plaintiffs’ substantive arguments for the simple reason that the defendant in this action, the County of Cook, is not responsible for establishing and operating the circuit court system in Cook County. It therefore cannot be held liable (assuming that either of plaintiffs’ theories of recovery is a viable one) due to the backlog of cases therein.

The powers of a county are set forth in Ill. Rev. Stat. 1965, ch. 34, par. 303. Nowhere in this section is it provided that a county has the power, in itself, to affect matters which pertain to the backlog of cases in the circuit court system within which it lies. Rather, the Illinois General Assembly, guided by the provisions of Article VI of the 1870 Illinois Constitution (in effect at the relevant time) determines the number of judges in each circuit (see Ill. Rev. Stat. 1965, ch. 37, par. 72.2), their rate of compensation (see 1870 Ill. Const. Art. VI, Sec. 17) and the other aspects which control the circuit court judiciary system. (See Ill. Rev. Stat. 1965, ch. 37, par. 72.1, et seq.) Further, since 1964 the IHinois Constitution has provided that general administrative authority over the entire state judicial system is lodged in the Illinois Supreme Court. Ill. Const. Art. VI, Sec. 2.

For this reason the decision is affirmed.

Affirmed.

ENGLISH and LORENZ, JJ., concur.

       The main power that Cook County has with respect to the circuit court system within it, is the power to grant supplemental compensation to its judges as provided in Article VI, Section 17 of the 1870 Illinois Constitution, as amended at the date of this action was filed, but only then, after the enactment of enabling legislation by the General Assembly. See Ill. Const. Art. VI, Sec. 17. (See also Ill. Rev. Stat. 1965, ch. 34, pars. 5651, 5652, irrelevant here, but which permit counties with a population of over 500,000 to create a Judicial Advisory Council which shall study means of improving the administration of justice in the county and submit suggestions and recommendations for such improvement (if they relate to legislation) to the County Board which in turn shall submit them to the State Judiciary Advisory Council.)