author: Mr. PRESIDING JUSTICE SCOTT

text:
    SOUTH SIDE TRUST & SAVINGS BANK OF PEORIA, Plaintiff-Appellee, v. PEORIA HARBOR MARINA, INC., et al., Defendants-Appellants.
    Third District
    No. 81-82
    Opinion filed October 13, 1981.
    Frederick G. Hoffman and Ronald L. Keyser, both of Elliff, Keyser, Oberle & Davies, P. C., of Pekin, for appellant William T. Griffin.
    John W. Howard, of Bartley, Fraser, Parkhurst, Hession & Renner, of Peoria, for appellee.
   Mr. PRESIDING JUSTICE SCOTT

delivered the opinion of the court:

This action was brought by plaintiff upon a personal guaranty given to it by defendant William T. Griffin, following default in repayment of obligations owed plaintiff by Peoria Harbor Marina, Inc. The trial court granted plaintiff’s motion to dismiss certain affirmative defenses of defendant and entered summary judgment for plaintiff against defendant, from which decisions this appeal is taken.

On January 3, 1980, plaintiff filed a seven-count complaint seeking damages for the default of Peoria Harbor Marina, Inc., under the terms of certain notes and an agreement entered into between Peoria Harbor Marina, Inc., Louis J. Paulsen and the plaintiff. Counts I through III of the complaint were directed to Peoria Harbor Marina, Inc. Counts IV and V were directed to the defendant Louis J. Paulsen upon his personal guaranty and as a signatory of the agreement, dated May 29,1979. Counts VI and VII were directed to the defendant William T. Griffin upon his personal guaranty given to the plaintiff in consideration of advances to be made by the bank to Peoria Harbor Marina, Inc.

Count VI alleged that on June 17, 1974, in consideration of future advances to be made to Peoria Harbor Marina, Inc., by plaintiff, defendant executed and delivered to plaintiff his personal guaranty for the repayment of such advances. The extent of defendant’s personal guaranty was limited to the sum of $180,000.

Count VI of the complaint further alleged that on February 15,1979, Peoria Harbor Marina, Inc., executed and delivered a note to the plaintiff in the sum of $52,846.88, at 13.5-percent interest, due May 16, 1979. The note was a renewal of previous obligations owed plaintiff. Peoria Harbor Marina, Inc., defaulted in payment of the note but delivered to plaintiff three boats which were sold by plaintiff for $31,285.46.

A second note was executed by Peoria Harbor Marina, Inc., and delivered to plaintiff on March 27, 1979, for the sum of $7,778 at 13.5-percent interest, due June 25, 1979. This note was also a renewal of previous obligations owed plaintiff. The complaint alleged that Peoria Harbor Marina, Inc., defaulted in repayment of this note and that there was due as of January 1, 1980, the principal sum of $7,778, plus accrued interest of $796, plus attorneys’ fees of $1,286.14.

Count VI of the complaint concluded by alleging that defendant, under the terms of his written guaranty, owed to plaintiff the sum of $46,906.06 as the result of the default of Peoria Harbor Marina, Inc., on the two notes.

In count VII of the complaint, plaintiff alleged the existence of a compromise agreement dated May 29,1979, between plaintiff and Peoria Harbor Marina, Inc., and Louis J. Paulsen. In the agreement, the parties acknowledged the indebtedness owed plaintiff on that date was $62,761.81. The agreement further provided that in exchange for the delivery to plaintiff by the Marina of three watercraft, the Marina would be given a credit of $47,000 against this outstanding indebtedness, leaving a balance of $15,761.81 owed to plaintiff. This sum was to be paid within six months of the agreement, drawing interest in the interval of eight percent. It was further agreed that in the event all of the terms and provisions of the agreement were complied with, Peoria Harbor Marina, Inc., would be released from its obligations to the plaintiff and the guaranty of Paulsen discharged. Count VII further alleged that Peoria Harbor Marina, Inc., and Paulsen defaulted under the terms of the agreement and there became due the plaintiff the sum of $15,761.81 plus accrued interest of $630.47. Count VII sought recovery against this defendant in the sum of $16,392.28 plus interest and attorneys’ fees in the sum of $2,458.84 on the personal guaranty of defendant.

Defendant subsequently filed certain affirmative defenses to counts VI and VII which raised the written compromise agreement between plaintiff and Peoria Harbor Marina, Inc., and Louis J. Paulsen, dated May 29,1980, in which Paulsen agreed to return three watercraft to plaintiff in exchange for a credit of $47,000 against the then outstanding indebtedness owed plaintiff of $62,761.81, leaving a balance of $15,761.81 to be paid within six months at eight percent interest. The agreement further provided that upon compliance with all its terms, Peoria Harbor Marina, Inc., and Paulsen would have no further obligation to plaintiff. Defendant was not a party to this agreement. Defendant stated that on or about September 13, 1977, he sent a letter to plaintiff terminating his personal guaranty. Plaintiff admits receipt of a letter on or about September 13, 1977, but denies the letter terminated the written guaranty. Defendant further stated that he was unaware of the compromise agreement of May 29, 1979, and was prejudiced by the failure of plaintiff to give notice that defendant’s liability under his personal guaranty could have been limited at that point to $15,761.81, plus interest.

Defendant contended that during the year 1979, plaintiff sold a 28-foot boat for the benefit of Peoria Harbor Marina, Inc., and Louis J. Paulsen without requiring the proceeds to be paid to plaintiff to satisfy the compromise balance under the agreement of May 29,1979. Defendant also contended that the enforcement by plaintiff of defendant’s personal guaranty was unconscionable to the extent such enforcement deprived defendant of the opportunity to take advantage of the terms and provisions of the agreement of May 29, 1979.

Plaintiff filed a motion to dismiss defendant’s affirmative defenses to count VI of the complaint. Plaintiff also filed a motion for summary judgment as to counts I, II, IV and VI of its complaint.

The trial court granted summary judgment in favor of plaintiff and against Peoria Harbor Marina, Inc.

The trial court, following hearing, entered an order dismissing defendant’s affirmative defenses to count VI of the complaint. The court further granted summary judgment in favor of plaintiff against defendant on count VI of the complaint for $38,283.68, plus attorneys’ fees of $4,705, plus court costs of $95.60, for a total of $43,084.28. It is from this order that defendant prosecutes this appeal.

For purposes of appeal it should be pointed out that defendant has conceded that summary judgment was not improper by the trial court insofar as fact issues are concerned. He acknowledges that the facts as gleaned from the many affidavits contained in the record on appeal clearly establish an unpaid debt due to the plaintiff in the amount of $43,084.28. Defendant contends that the doctrine of equitable estoppel ought to prevent the plaintiff from enforcing, according to its precise terms, a contract against defendant which was a personal guaranty of a corporate debt. Although it is undisputed that the corporate defendant owed plaintiff $43,084.28, defendant argues that he should not, on equitable grounds, be required to pay the same amount under his personal guaranty. Defendant states that plaintiff is entitled to payment of only $15,761.81 plus interest because of an attempted agreement with the corporate defendant and the other personal guarantor to accept said sum if all the terms of the agreement were met. That agreement was not performed by the corporate defendant or other personal guarantor and by its express terms became null and void. Defendant seeks the benefit of an agreement to which he was not a party, and if he were to benefit in this way, his liability would be substantially less than the liability of the corporate defendant and the other guarantor.

The question that defendant presents for review concerns the enforceability of a guaranty contract. This issue has been considered by the supreme court and appellate courts of this State, and in each instance the courts have held that a guarantor is bound by the clear and unambiguous terms of the guaranty contract. Barrett v. Shanks (1943), 382 Ill. 434, 47 N.E.2d 481; Jacobson v. Devon Bank (1976), 39 Ill. App. 3d 1053, 351 N.E.2d 254.

In the instant case the corporate defendant owed to plaintiff the sum of $62,761.81 on May 29,1979. The debt was secured by a security interest in the corporate debtor’s inventory consisting primarily of watercraft. Further security for payment was the contractual guaranty of two individuals, one of whom is the defendant against whom summary judgment was rendered. Under Illinois law the plaintiff could have filed suit in May, 1979, for $62,761.81, the amount then due, rather than resort to the collateral. However, plaintiff attempted to recover collateral for the purpose of liquidating the corporate debt. This action was not required and directly benefitted the defendant. By recovering three boats, the plaintiff/bank was able to reduce the defendant’s principal obligation by $31,285.40. The plaintiff requested full payment from defendant Griffin in August 1977. A month later defendant wrote the plaintiff and said that he terminated his guaranty. Two years later, in May 1977, plaintiff recovered collateral, conducted an auction, and credited defendant with $31,285.40. Plaintiff’s efforts to minimize the debt, and patience, as demonstrated by forebearance in commencing suit against defendant for 2M years, are evident.

After close scrutiny of several salient facts, it is apparent that defendant’s claim for equitable relief cannot be sustained. Certain facts clearly demonstrate that the defendant’s course of conduct was consistent with a goal of avoiding financial responsibility on his guaranty to the plaintiff. The guaranty was executed June 17, 1974. On August 12, 1977, the plaintiff wrote to defendant and asked him to make arrangements to liquidate the indebtedness of the corporate defendant, an indebtedness which then totaled $55,837.29. Shortly after receiving the demand for payment the defendant wrote the plaintiff on September 13, 1977, and revoked his guaranty. The revocation purported to be retroactive to May 6,1977, the date defendant severed his ties with the corporate defendant. Judgment was rendered against the other individual guarantor, and the corporate defendant, by the trial court for obligations incurred prior to the revocation of defendant’s guaranty.

Defendant argues that the failure of plaintiff to join defendant as a party to the attempted May, 1979, settlement and the failure to advise defendant of the $15,761.81 payment due in December of 1979, are the only reasons why he did not pay that sum in December, 1979. Defendant’s statement that he would have paid is without merit. Defendant would have known of the existence of the attempted settlement dated May 29, 1979, if he had been willing to accept communications from the plaintiff/ bank. On June 11, 1979, defendant was sent a letter advising him of an auction of boats which had been surrendered to the plaintiff to liquidate a portion of the corporate debt. The letter also advised defendant of certain terms of the attempted settlement. The notice was sent postage prepaid, certified mail, return receipt requested. The defendant refused to accept delivery of the notice on three separate occasions, and the letter was returned to plaintiff. It is defendant’s fault that he did not have actual notice of the agreement within several weeks after its execution. His claim that he did not have notice is clearly without merit when we consider that it was defendant’s affirmative acts by which receipt of notice was avoided.

After receiving a demand for payment from plaintiff in August of 1977, and after terminating his guaranty in September 1977, the defendant refused all contact with the plaintiff. He had no interest in voluntarily performing his obligations under the guaranty. That was shown by his refusal to accept the notice of June 11, 1979. Further evidence of this avoidance strategy is found in the pleadings in this cause. Plaintiff’s complaint was filed January 3, 1980. As an exhibit to the complaint was attached the May 23, 1979, agreement which had not been performed by the corporate debtor or other individual debtor. Without contradiction it can be stated that defendant had actual notice of the agreement when he was served with the complaint. However, defendant did not at that time tender the $15,761.81 he argues he would have paid if only he had known of the agreement. He continued to resist any efforts to enforce the guaranty and filed a verified answer to the complaint on April 30, 1980, and raised his affirmative defenses. Defendant stated that he was not liable because he had terminated his guaranty in 1977. He further asserted that the plaintiff had been paid in full by the corporate debtor.

Defendant argues that he would have paid $15,761.81 in November of 1979 if that opportunity had been afforded him. Such a speculative assertion is not supported by the record. If the answer to the complaint had acknowledged liability under the guaranty, and if the defendant had deposited $15,761.81 with the court or tendered said sum to plaintiff at that time, further consideration of his argument might be warranted. Unfortunately, the record only reflects a vigorous defense by defendant. This court will not grant equitable relief on a record which clearly establishes defendant’s efforts to avoid liability on his guaranty contract with plaintiff. His argument that he should only pay $15,761.81 is a continuation of his efforts to limit his liability and shift the loss to plaintiff.

For these reasons and those stated earlier in this opinion, the judgment which was entered against defendant, William T. Griffin, on January 19, 1981, for $43,048.28 is hereby affirmed.

Affirmed.

STOUDER and BARRY, JJ„ concur.


source: Caselaw Access Project

author: Mr. JUSTICE BARRY

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DANIEL A. CONAWAY, Defendant-Appellant.
    Third District
    No. 80-414
    Opinion filed October 22, 1981.
    Robert Agostinelli and Frank W. Ralph, both of State Appellate Defender’s Office, of Ottawa, for appellant.
    Bruce W. Black, State’s Attorney, of Pekin (John X. Breslin and Gerry R. Arnold, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   Mr. JUSTICE BARRY

delivered the opinion of the court:

The defendant, Daniel A. Conaway, appeals from the order of the Circuit Court of Tazewell County sentencing him, after he had pleaded guilty to two counts of the unlawful delivery of a controlled substance, to two concurrent terms of imprisonment, one of three years and the second of two years. The only issue here raised concerns the sentences imposed and whether the trial court erred by refusing to consider the milder sentence imposed on another person, one Carey Garlock. While Garlock also pleaded guilty to the delivery of controlled substances and his convictions arose from the same ongoing undercover investigation as that which brought to light the defendant’s criminal activity, Garlock and the defendant were not co-defendants charged with the same act of delivery and, therefore, the sentence imposed on Garlock was properly ruled to be irrelevant in this case.

The factual basis for the defendant’s guilty pleas differs from that which served as the basis for Garlock’s pleas. Charges against both arose from the undercover investigation of Peoria County Deputy Sheriff Michael White, then a Multi-County Enforcement Group (MEG) officer.

In the case against the defendant, it was established that on the evening of December 5, 1978, White drove to the Conaway residence in Delavan, Illinois, after having arranged by telephone to meet the defendant. When White arrived, he was advised by the defendant’s wife that he would have to wait a half hour. When the defendant returned, he called a number in Pekin, Illinois, and determined that the cocaine was in. They then drove to Pekin to Steak'N’Shake where White gave the defendant a portion of the purchase amount ($25) and the defendant then disappeared. When the defendant returned to the car, he and White drove back to Delavan. After arriving at his home, the defendant placed the substance he had obtained in Pekin on a set of scales. The defendant asked for White’s plastic laminated driver’s license, took out a portion of the substance and showed Agent White that the scale still indicated that a little bit over a gram of cocaine was left. He then received another $85 from White and handed approximately a gram of cocaine to White. That substance was properly cared for by White and transmitted to the Illinois Bureau of Scientific Services for analysis. Mrs. Susan Jones at the Morton Laboratory found that it contained 1.2 grams of a substance containing cocaine.

Six days later White again returned to the Conaway residence, this time for the purposes of purchasing mescaline. On this occasion, he arrived at approximately 4:30 in the afternoon on the 11th of December, and the defendant, the defendant’s wife and Agent White all drove to the Pekin Steak'N’Shake. On this occasion, the defendant left the vehicle in the Steak'N’Shake parking lot and returned with the substance, which he then handed to White at 3205 Court Street in Pekin. That delivery was of a purported 3 grams of mescaline. The substance was properly handled by White and subsequently analyzed by Paul Titus of the Maywood Crime Lab, who determined that it contained 2.2 grams of lysergic acid diethylamide.

The factual basis for Garlock’s guilty pleas follow. On the 19th day of December, 1978, at 3219M Court Street in Pekin, Illinois, special agent White contacted Garlock for the purpose of buying drugs. The location is right next door to the Pekin Steak'N’Shake. The contact was made without the use or presence of an informant, but contact was made after getting the identification of Garlock from another person from another city, Delavan. Garlock and White discussed the purchase of cocaine, and Garlock agreed to sell a quarter ounce of cocaine for $475. The $475 was paid, and a white powdery substance was handed to Agent White. That substance was properly cared for until it was analyzed by a forensic scientist, Susan Hart Johns, who found the substance to be cocaine in the amount of 8.2 grams.

Regarding the second transaction between Garlock and White, which occurred on February 20, 1979, Agent White, with support from the Illinois Law Enforcement Department, Law Enforcement Division of Investigation, returned to the Pekin address for the purpose of buying drugs. Through some telephone calls before the actual meeting, it had been arranged that White would buy a half ounce of cocaine, and the agreed price was $950. When White got to the Garlock residence, there was some problem about the weight being a little bit short of one-half ounce, and Garlock indicated he did not want to sell a short quantity, so another quarter ounce sale was made. Again, the price was $475. The white powdery substance delivered February 20 was properly cared for and taken to Pekin Laboratory and analyzed by Susan Hart Johns, who found the substance to be cocaine in the amount of 9.1 grams.

The transactions which form the basis for the defendant’s convictions are totally separate and distinct from the transactions between White and Garlock. They are not co-perpetrators of the same act who pleaded guilty separately, as was the case in People v. Steg (1966), 69 Ill. App. 2d 188, 215 N.E.2d 854. Although fundamental fairness requires that defendants, who are in similar situations should not receive grossly disparate sentences (People v. Holman (1976), 43 Ill. App. 3d 56, 356 N.E.2d 1115), the defendant has cited to us no case in which this principle has been applied in a non-co-perpetrator situation. Initially, we note that persons who commit crimes independently are seldom, if ever, similarly situated. Furthermore, it would be a futile act to require a sentencing court to consider the sentences previously imposed on other defendants who were convicted of a particular type of crime — in this case, the unlawful delivery of a controlled substance. Although this defendant asks only for the consideration of the sentence imposed on one other person, to require the admissibility of one unrelated sentence would open the door for defendants seeking admission of all unrelated sentences, or at least those which would support an argument for a lesser sentence. Finally, consideration must be given to the differing records of defendants, the needed discretion in State’s Attorneys and the strength or lack thereof of proposed prosecutions.

Accordingly, the trial court properly considered Garlock’s sentence to be irrelevant to the imposition of sentences on this defendant, and therefore, the judgment of the Circuit Court of Tazewell County is affirmed.

Affirmed.

SCOTT, P. J„ and STOUDER, J., concur.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DANNY MATHES, Defendant-Appellant.—THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. RANDY JORDAN et al., Defendants-Appellants.
    Third District
    Nos. 79-391, 79-392 cons.
    Opinion filed October 15, 1981.

      Robert Agostinelli and Charles W. Hoffman, both of State Appellate Defender’s Office, of Ottawa, for appellant Danny Mathes.
    Thomas E. Cowgill, of Cirricione, Block, Krockey & Cernugel, P. C., of Joliet, for appellant Randy Jordan.
    Edward F. Petka, State’s Attorney, of Joliet (John X. Breslin and Gary F. Gnidovec, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   Mr. PRESIDING JUSTICE SCOTT

delivered the opinion of the court:

In case No. 79-391, the defendant, Danny Mathes, was convicted of armed robbery by a Will County circuit court jury and sentenced to six years in prison. The armed robbery occurred on December 4, 1978, at approximately 8:15 p.m. at a service station in Joliet, Illinois.

In case No. 79-392, the defendants, Danny Mathes and Randy Jordan, were each convicted of armed robbery and aiding and abetting following a jury trial in Will County circuit court, and each defendant was sentenced to concurrent nine year terms of imprisonment. This armed robbery also occurred on December 4,1978, at approximately 9:50 p.m. at another gas station in Joliet.

On the night of the commission of both armed robberies, both defendants were on parole, Mathes for a narcotics offense, and Jordan for another robbery and bail jumping. The six-year sentence for Mathes was to be “consecutive to any sentences that the defendant may have had imposed upon him either on this date or prior to this date that he is presently serving in the Department of Corrections.” The nine-year concurrent sentences for Mathes and Jordan were to be served “consecutive to any sentences that [they] may now be serving or be on parole from the Department of Corrections.”

The cases were consolidated for oral argument and are consolidated for purposes of an opinion.

In case No. 79-391, defendant Mathes presents three issues for review: (1) whether his armed robbery conviction must be reversed because of an alleged improper comment by the prosecutor in closing argument; (2) whether the case must be remanded for resentencing because the trial court made no explicit statement in the record that a consecutive sentence was necessary to protect the public (Ill. Rev. Stat. 1979, ch. 38, par. 1005 — 8—4(b)); (3) whether the trial court’s statement regarding the imposition of a consecutive sentence was so vague and uncertain as to require a new sentencing hearing.

With respect to defendant’s first assignment of error, it appears that during the conclusion of the prosecutor’s closing argument in rebuttal he asked the jury to return a verdict of guilty and thereby end defendant’s “career” as an armed robber.

Such remarks have on occasion been held to constitute reversible error. (People v. Oden (1960), 20 Ill. 2d 470, 170 N.E.2d 582; People v. Fort (1958), 14 Ill. 2d 491,153 N.E.2d 26; People v. Jackson (1980), 84 Ill. App. 3d 172, 405 N.E.2d 448; People v. Natoli (1979), 70 Ill. App. 3d 131, 387 N.E.2d 1096; People v. McCray (1978), 60 Ill. App. 3d 487, 377 N.E.2d 46.) However, we believe that under the totality of the facts and circumstances of the instant case, the overwhelming evidence of the defendant’s guilt, such a remark, although improper, did not constitute reversible error. It is noted that the defendant Mathes made a prompt objection to the prosecutor’s remark which was sustained by the trial court and the jury was instructed to disregard the same. Even though improper it is difficult to conclude that in the light of all the evidence the prosecutor’s remark influenced the verdict of the jury. See People v. Green (1963), 27 Ill. 2d 39,187 N.E.2d 708.

With respect to defendant’s claim of error regarding the imposition of a consecutive sentence, our subsequent holding in the companion case involving both defendants shall apply equally to this portion of the opinion.

In case No. 79-392, the defendants, Mathes and Jordan, were each convicted of armed robbery and aiding and abetting and sentenced to concurrent terms of nine years imprisonment. The concurrent sentences were ordered to be served “consecutive to any sentences that [they] may now be serving or be on parole from the Department of Corrections.”

On appeal defendant Mathes initially contended: (1) he was denied a fair trial where one of the complaining witnesses referred to having viewed “mug books” in violation of the court’s prior order prohibiting such references; (2) the case must be remanded for resentencing because the trial court made no explicit statement in the record that a consecutive sentence was necessary to protect the public (Ill. Rev. Stat. 1977, ch. 38, par. 1005 — 8—4(b)); (3) the trial court’s statement regarding the imposition of a consecutive sentence was so vague and uncertain as to require a new sentencing hearing.

Defendant Jordan raises the same issues on appeal as well as a claim of error concerning the admission into evidence of certain clothing and an alleged improper remark by the prosecutor in closing argument which referred to him as a “dangerous man.”

Mathes subsequently moved to adopt Jordan’s issue with regard to the admissibility of certain clothing and the motion was allowed.

With respect to the joint claim of error by the defendants that they were denied a fair trial due to the fact that one of the prosecution witnesses referred to having viewed “mug books” in violation of the court’s prior order prohibiting such references, some recitation of the factual context from which the remark evolved is necessary for an understanding of the issue now presented for review.

On the night of the armed robbery, Howard and Steven Swartz, being brothers, were present at a Clark service station in Joliet, Illinois. Both men were employees of the station. Howard was on duty, while Steven just happened to be present in order to pick up his paycheck.

Two men, whom the brothers identified in court as defendants Mathes and Jordan, entered the station. Jordan produced a pistol and ordered Howard to give him the money. Mathes pulled a knife and held it to Steven’s throat. Money was obtained from both brothers and then the defendants fled the scene.

After the robbery, the police were notified and the Swartz brothers viewed several books of “mug shots” at the police station. These books contained approximately 2,200 photographs, one of which was an earlier photograph of defendant Mathes. Neither of the Swartz brothers identified anyone from these photographs.

On December 5 the Swartz brothers were shown six photographs and Steven identified a photograph of defendant Mathes, who had held a knife on him, as one of the robbers. Howard was unable to identify anyone “for sure” from the photographs, but did indicate that three photographs “looked familiar,” one of which was of the defendant Mathes. Howard then signed two of the three photographs, neither of which were of the defendant Mathes. Of the two photographs signed by Howard, one was said to have “resembled” the robber with the handgun. Howard claimed that although the photograph of the defendant Mathes looked “familiar,” his face was “too long” in the picture.

On December 6 the Swartz brothers were shown more photographs. This time Steven was able to identify defendant Jordan as the armed robber who had held the pistol on his brother, Howard. Howard picked out two photographs, one of which was defendant Jordan, but did not sign either one.

On December 8 the Swartz brothers viewed two in-person lineups. Both Steven and Howard separately identified defendant Jordan in the first lineup and defendant Mathes in the second as the men who robbed them four days earlier.

Prior to trial Mathes’ attorney filed a motion in limine which sought to prevent the State from describing or referring to the books of photographs that were shown to the victims of the armed robbery at the Joliet police station as either “mug shots” or “mug books.” The attorney for defendant Jordan did not file a written motion, but did orally join in Mathes’ motion and it was granted without objection. The prosecutor was ordered to instruct the State’s witnesses accordingly.

At trial Howard Swartz was called to the stand and following his direct examination, Mathes’ counsel began his cross-examination. The witness was asked if he recalled going to the Joliet police station on the evening of the robbery to view some photographs. Swartz responded that he had and that the police showed him some “mug books.” Mathes’ attorney asked to approach the bench, after which a side bar conference was held. Following the side-bar conference, the court instructed the jury to disregard the characterization by the witness of what he viewed, and further, that they were not to draw any inferences therefrom. The trial judge also cautioned the witness not to use that particular term again. No objection was raised by Jordan’s counsel, nor does the alleged error appear in Jordan’s post-trial motion. Moreover, there was never any testimony that Jordan’s photograph was even in the “mug books.”

Defendant Jordan claims that he was prejudiced as a result of the inadvertent reference to “mug books” that was made by one of the victims in this case during cross-examination by Mathes’ attorney. He argues that certain prejudicial inferences arose from the characterization. However, due to his failure to object at the time or to raise said point in his post-trial motion, defendant Jordan has waived any error in this regard.

In order for error to be brought to the attention of the reviewing court, it must be preserved. (People v. Robbins (1977), 54 Ill. App. 3d 298, 369 N.E.2d 577.) Error is preserved either by objection at the proper time or by the filing of a post-trial motion, and then if a post-trial motion is filed, any errors not set forth in the motion are deemed to be waived. (People v. Dimond (1977), 54 Ill. App. 3d 1036, 370 N.E.2d 686.) The record in the case at bar clearly shows that the defendant Jordan has waived the issue by failing to object either at trial or in his post-trial motion.

We believe, however, that defendant Mathes has sufficiently preserved the alleged error to entitle him to our response on the issue of whether or not reversible error occurred by reason of the reference to “mug books,” which admittedly was in contravention of the court’s ruling on defendant Mathes’ motion in limine.

In the case of People v. Denwiddie (1977), 50 Ill. App. 3d 184, 365 N.E.2d 978, we have had occasion to address ourselves to the propriety of using “mug shots” for identification purposes. There the defendant had also been convicted of armed robbery and sought to challenge the admission of two different “mug shots” into evidence, one relating to an arrest for a prior offense and another resulting from the instant charge of armed robbery. We noted that despite the fact that both photographs contained a police file number, the legends had been covered over and the jury admonished to disregard the tags. We held that the photographs were properly before the jury even though “mug shot” photos implicitly contain the danger of suggesting prior criminal conduct, and that evidence of extra-indictment offenses is admissible if it tends to prove a fact in issue, such as identity.

The position of this district has been and will continue to be one which attempts to strike a balance between the probative value of admission of the “mug shot” (or as to the instant claim of error, mere reference to the viewing of “mug books”) as weighed against an infringement of the defendant’s right to a fair trial.

We believe that under the circumstances of this case, a single reference to the viewing of “mug books” instead of photograph albums by the victim of the armed robbery did not infringe the defendant’s right to a fair trial, especially in view of the fact that it was the defense, through cross-examination, which elicited the testimony in a deliberate tactical attempt to impeach the witness’ credibility on the issue of identification. While it is true that defense counsel sought to prevent through his motion in limine, any reference to “mug shots” or “mug books,” the fact that he anticipated the problem due to his pursuit of the issue does not ipso facto establish reversible error if the problem sought to be avoided nevertheless occurs. People v. Ruberto (1980), 81 Ill. App. 3d 636, 401 N.E.2d 1306.

The second claim of error made initially by defendant Jordan, and later adopted by defendant Mathes, concerns the trial court’s admission over objection of certain articles of clothing which the victims of the armed robbery had described as being worn by their assailants and which were later recovered from the defendants when they were arrested.

The specific allegation of error concerns the fact that while the victims of the crime testified that Mathes wore a brown vinyl or leather jacket and that Jordan wore a black leather jacket on the night of the armed robbery, Mathes was arrested the next day with a black leather jacket and Jordan was found with a brown leather jacket the following day.

The arguments made by the defendants resemble the one made by the defendant in People v. Fair (1977), 45 Ill. App. 3d 301, 359 N.E.2d 848, where following the defendant’s conviction for armed robbery and rape, the court rejected the defendant’s contention that ordinary coats (such as the one defendant was wearing at the time of arrest) can be purchased almost anywhere, that many such coats must exist in the area, and that the coat he was wearing had no particular distinguishable feature by which an identification could have positively been made.

The court in Fair believed that such arguments go to the weight to be given such evidence by the trier of fact, and not to its admissibility, and with this determination we agree.

The real issue raised by the defendants here is whether or not the victims of the armed robbery had to positively identify the coats seized from the defendants by the arresting officer as the actual garments worn by their assailants at the time of the commission of the offense or whether their testimony describing the clothing worn by the robbers served as “a sufficient nexus” for their admission as circumstantial evidence. People v. Smith (1974), 18 Ill. App. 3d 859, 867, 310 N.E.2d 734, 740.

The rule in Illinois is that physical evidence may be admitted where there is evidence (either direct or circumstantial) to connect the evidence to the defendant and the crime. (People v. Ashley (1960), 18 Ill. 2d 272, 164 N.E.2d 70, cert. denied (1960), 363 U.S. 815, 4 L. Ed. 2d 1157, 80 S. Ct. 1255; People v. Miller (1968), 40 Ill. 2d 154, 238 N.E.2d 407, cert. denied (1968), 393 U.S. 961, 21 L. Ed. 2d 375, 89 S. Ct. 401. Moreover, where there is evidence indicating that an accused possessed a weapon at the time of the offense, a similar weapon found in his possession at the time of his arrest may be admitted against him, even though not identified as the actual weapon used by him in the commission of the crime. (People v. Johnson (1966), 35 Ill. 2d 516, 221 N.E.2d 497.) The use of demonstrative circumstantial evidence when articles of clothing worn at the time of arrest by the defendant in a robbery prosecution are exhibited to the jury to demonstrate their conformity with the descriptions of the robber given by the witnesses is well recognized. McCormick, Evidence 526 (2d ed. 1972).

It is also the defendant Jordan’s contention that plain error was committed when the prosecutor referred to him as a “dangerous man” in his closing argument. No objection to this remark was made by the defendant; however, Supreme Court Rule 615(a) (Ill. Rev. Stat. 1977, ch. 110A, par. 615(a)) provides a limited exception to the previously discussed waiver rule. We may notice errors appearing upon the record which deprive an accused of substantial means of enjoying a fair and impartial trial (People v. Burson (1957), 11 Ill. 2d 360, 143 N.E.2d 239), or in criminal cases in which the evidence is closely balanced (People v. Pickett (1973), 54 Ill. 2d 280, 296 N.E.2d 856). As such a prosecutorial comment might well deprive defendant Jordan of substantial means of enjoying a fair and impartial trial, we shall notice this assignment of error.

The remark that the defendant Jordan was a “dangerous man” should be judged in the context in which it was made. In closing argument, Jordan’s counsel noted that when Jordan was arrested, he did not resist, nor did he have a knife or gun on him. In rebuttal, the prosecutor replied that the reason the defendant didn’t resist arrest was because the evidence indicated that the arresting officers had their guns drawn, and the reason they had their guns drawn was because they were “dealing with a dangerous man.” Jordan’s arrest occurred two days after the armed robbery, and in view of the nature of the crime itself, any suspect about to be arrested for such an offense would undoubtedly be considered “armed and dangerous.” The characterization was, therefore, not the product of the prosecutor’s personal opinion of the defendant, but his attempt to explain or infer the basis for the arresting officers’ conduct in apprehending the defendant with their weapons drawn.

The remark was, therefore, an invited response to defense counsel’s closing argument which had attempted to portray the defendant as a peaceful, cooperative, unarmed individual who had not resisted arrest and was within the legitimate bounds of reasonable inferences which may be drawn from the evidence. People v. Hill (1977), 45 Ill. App. 3d 14, 358 N.E.2d 1350; Illinois Pattern Jury Instructions, Criminal, No. 1.03 (2d ed. 1981).

The defendant’s final claim of error challenges the imposition of consecutive sentences in two respects. First, that the trial court failed to specifically state on the record that it believed that consecutive terms are required to protect the public from further criminal conduct (Ill. Rev. Stat. 1977, ch. 38, par. 1005 — 8—4(b)), and second, that the statement that the defendants were to serve concurrent terms of nine years’ imprisonment (for armed robbery and aiding and abetting) and that each of these sentences was to be served “consecutive to any sentences that [they] may now be serving, or be on parole from, the Department of Corrections” was so vague that the case must be remanded for a new sentencing hearing.

With respect to the defendant’s contention that the case must be remanded for resentencing because the trial judge failed to specifically state in the record that “consecutive terms are required to protect the public from further criminal conduct by the defendants,” we note that the statute in question provides as follows:

“The court shall not impose a consecutive sentence unless, having regard to the nature and circumstances of the offense and the history and character of the defendant, it is of the opinion that such a term is required to protect the public from further criminal conduct by the defendant, the basis for which the court shall set forth in the record.” Ill. Rev. Stat. 1977, ch. 38, par. 1005 — 8—4(b).

The statute only requires that the reasons given by the trial judge support the conclusion that a consecutive sentence was required in order to protect the public from any further criminal conduct by the defendant. There is nothing in the statute which would require a trial judge to specifically repeat the language found in the statute in order to express the opinion that consecutive sentences are appropriate in a given situation.

Following their convictions a presentence investigation report was compiled. Defendant Jordan’s report revealed that prior to the instant convictions he had been convicted of robbery, jumping bail, criminal damage to property, resisting arrest, and disorderly conduct. Defendant Mathes had been convicted of armed robbery, burglary, battery, theft, and unlawful possession of a hypodermic needle.

In addition to defendant’s prior convictions, the trial judge also reflected upon the conduct of both defendants in committing the instant offenses. He further noted that the verdicts of the jury were fully substantiated by the evidence. The trial judge went on to state that both defendants were on parole at the time they committed the instant offenses. The trial judge next discussed the Class X legislation as it pertained to defendant Jordan.

Upon completion of his discussion of the Class X legislation and its applicability to defendant Jordan, the trial judge stated:

“Also in view that both of these men are fairly young men, they have already spent a portion of their young years in institutions either jails or penitentiaries and are facing additional time in the penitentiary. The record also recites that Mr. Mathes in one of his earlier convictions had been placed on probation in addition to some incarceration in the Will County Jail. It would appear however that Mr. Mathes and Mr. Jordan have not truly learned the errors of their ways in that their previous incarcerations have left no great impression upon them and in considering the evidence that was adduced at the trial their past convictions, it is the opinion of this, court that the recommendation of the People is excessive, however, the court in considering all the elements prior to sentencing of each defendant also believes that the minimum sentence is not called for at this time.”

The trial judge thereafter sentenced defendant Mathes on his convictions under counts I and IV to concurrent nine-year terms of imprisonment which would run consecutively to any sentence that he may now be serving or be on parole from the Department of Corrections. He next sentenced defendant Jordan on his convictions under counts II and III to concurrent nine-year sentences which were likewise to run consecutively to any sentence that the defendant was then presently serving in the Department of Corrections.

It is clear that the trial judge considered that it was in the best interest of society to protect it from any further criminal conduct on the part of these defendants to impose consecutive sentences in the case at bar.

Although the trial judge did not delineate his remarks so as to specifically employ the phraseology of the statute in question, the transcript leaves no doubt as to the trial judge’s opinion and his reasoning for so imposing consecutive sentences. (People v. Green (1980), 83 Ill. App. 3d 982, 404 N.E.2d 930.) There are of course no “magic words” that need be recited by a trial judge when imposing sentences in any given case. To require the trial judge to mechanically repeat a certain phrase in order to justify the imposition of consecutive sentences, as here’ advanced by defendants, would certainly be an exaltation of form over substance. The reasons set forth by the trial judge for imposing a sentence of incarceration in this case likewise supported the imposition of consecutive sentences upon the defendants.

Moving to the defendants’ final claim of error, it is urged that we remand the cause for resentencing because the trial judge, in imposing consecutive sentences, ordered that the nine-year sentences for armed robbery and aiding and abetting be served “consecutive to any sentences that [they] may now be serving, or be on parole from the Department of Corrections.” Defendants urge that the imposition of these consecutive sentences, while not claimed to be excessive, is so vague and uncertain as to require a redetermination by the court.

A similar argument as that advanced in the case at bar was made and rejected in People v. Green (1980), 83 Ill. App. 3d 982, 404 N.E.2d 930. The same trial judge had there imposed three concurrent sentences for the offenses for which defendant had been convicted, but stated that they were to be served consecutively to “any sentences that the defendant may presently be serving in the Department of Corrections.” (83 Ill. App. 3d 982, 989, 404 N.E.2d 930, 934.) It was first noted that reference to the presentence report is proper in order to determine what sentence a defendant is then currently serving. This court went on to hold:

“In the case at bar the defendant, at the time of sentencing, was serving only two concurrent sentences in the Department of Corrections; thus, there could be no doubt that the sentences imposed in the present case were to be served consecutively to those two sentences.” (83 Ill. App. 3d 982, 989, 404 N.E.2d 930, 935.)

See also People v. Harris (1972), 52 Ill. 2d 558, 288 N.E.2d 385; People v. Weaver (1972), 8 Ill. App. 3d 299, 290 N.E.2d 691.

In the case of Mathes, the presentence report established that defendant was charged with unlawful possession of a hypodermic needle on September 18,1976. He was convicted and received a sentence of one to three years. Defendant was released on parole in October, 1978.

As to defendant Jordan, the presentence report established that on September 14, 1976, he was arrested and charged with robbery. Thereafter defendant jumped bail, but was later apprehended and so charged. After being convicted on both charges (bail jumping and robbery), defendant was sentenced to a term of one to three years on jumping bail and two to six years for robbery. Defendant was released on parole on May 25,1978, however, he had not been discharged from parole as of the date of the instant offenses. As a result of the instant offenses, defendant was returned to the Department of Corrections on parole violation on March 15,1979.

The trial judge specifically noted that both defendants were on parole; Mathes in connection with his drug-related transaction and Jordan in connection with his robbery and bail-jumping conviction. There can be absolutely no doubt that the concurrent sentences imposed upon defendants were to be served consecutively to their respective sentences received on their prior convictions which were noted not only by the trial judge at the sentencing hearing, but also in the presentencing report. Therefore, there can be no uncertainty in the trial judge’s order imposing consecutive sentences in the instant case. People v. Green (1980), 83 Ill. App. 3d 982, 404 N.E.2d 930.

For the foregoing reasons the defendant Mathes’ conviction and sentence for armed robbery in No. 79-391 is hereby affirmed. In No. 79-392, the defendants’ convictions and sentences for armed robbery and aiding and abetting are hereby affirmed.

Affirmed.

BARRY and HEIPLE, JJ., concur.

       “Mug Shots” of the defendants were admitted into evidence without objection.

       The victim of the armed robbery in No. 79-391 testified that the defendant, Mathes, . wore a black leather jacket when he was robbed. Both robberies occurred within 90 minutes of each other.


text:
    WALGREEN CO., d/b/a Walgreen’s, Plaintiff-Appellee, v. ILLINOIS LIQUOR CONTROL COMMISSION et al., Defendants-Appellants.
    Third District
    No. 80-641
    Opinion filed October 22, 1981.

      Tyrone C. Fahner, Attorney General, and Irene F. Bahr, Special Assistant Attorney General, both of Chicago, for appellants.
    Michael R. Berz and Debra K. Smietanski, both of Berz and Smietanski, of Kankakee, for appellee.
   Mr. JUSTICE BARRY

delivered the opinion of the court:

Defendant, the Illinois Liquor Control Commission (hereinafter the Commission), appeals from a ruling of the circuit court of Kankakee County in administrative review finding that Rule 24 of the Commission is unconstitutionally void and from the court’s order enjoining the Commission from enforcing the Rule.

The facts of the case follow. On April 8,1980, plaintiff Walgreen Co., as holder of 141 separate liquor licenses in Illinois, was cited by the Commission for having committed 208 violations of Rule 24.

The Commission’s Rule 24 reads as follows:

“Rule 24. Transactions Involving Use of Checks and their Equivalent
No person shall sell or furnish alcoholic liquor at retail to any person on credit or on a passbook or order on a store, or in exchange for any goods, wares or merchandise, or payment for any services rendered. The use, however, of money orders, traveler’s checks, drafts or checks or the equivalent of any of the foregoing shall not be deemed the extension of credit within the meaning of the foregoing provisions if not post-dated and if deposited and collected in due course promptly.
The use of credit cards or other authorizations, irrespective of form, when presented to and honored by a retail licensee for payment for alcoholic liquor consumed at retail on the premises, shall be deemed equivalent to the use of bank checks or bank drafts, if the retail licensee honoring such credit cards or authorizations receives payment in due course from such agency on a non-recourse basis.
A retail licensee honoring credit cards or authorizations issued by a non-licensed agency under this Regulation may not advertise the same in any way except by dignified signs in the interior or on the exterior of the licensed premises or by a table card.”

The violations occurred during a period from December 20, 1978, through April 1, 1980. They involved newspaper advertising in which logos for VISA and Master Charge appeared along with advertisements for both alcoholic liquor and other nonalcoholic products marketed by Walgreen’s. None of the advertisements in question were devoted solely to liquor.

During the period of the violations, the Commission duly notified appropriate representatives of Walgreen’s, and the Commission’s agents conducted meetings with such representatives to warn Walgreen’s that failure to comply with Rule 24 would result in formal administrative proceedings against Walgreen’s. Walgreen’s asked whether or not it was the Commission’s interpretation that the Rule would be violated if the liquor advertisements without logos were segregated from the nonalcoholic products advertised with logos on other sections of the same newspaper sheet. Alternatively, Walgreen’s asked whether or not the Rule would be violated were liquor advertisements placed on pages other than those containing the logos and nonalcoholic products. The Commission apparently failed to respond to these questions. The advertisements continued. Finally, on May 14,1980, the Commission entered its order finding Walgreen’s guilty of 208 violations of Rule 24 and imposing a $20,000 fine against the company. This was the maximum fine allowable under the Liquor Control Act. Ill. Rev. Stat. 1979, ch. 43, par. 108(1).

Walgreen’s appealed the Commission’s order to the circuit court pursuant to the Administrative Review Act (Ill. Rev. Stat. 1979, ch. 110, par. 264 et seq.). In addition to its arguments on the merits of the Commission’s ruling, Walgreen’s attacked the constitutionality of the Rule both on its face and as applied by the Commission in the instant case. Walgreen’s requested that the order of the Commission be stayed and that the Commission be temporarily and permanently enjoined from enforcing Rule 24.

On November 10, 1980, the circuit court filed a memorandum of opinion finding, inter alia, the following: 1) Rule 24 violates plaintiff’s constitutional right of commercial free speech; 2) Rule 24 is void as a violation of the doctrine of separation of powers; 3) Rule 24 violates plaintiff’s constitutional right to equal protection; and 4) Rule 24 is vague, arbitrary and unreasonable, thereby violating plaintiff’s constitutional right to due process of law. A judgment was entered accordingly in which the fine imposed by the Commission was vacated and the Commission was permanently enjoined from enforcing Rule 24. The Commission appeals from that order.

Initially, we note that the only portion of Rule 24 which the Commission sought to enforce in the instant case is the third paragraph. The Commission argues on appeal that if that paragraph can be severed without doing violence to the remaining paragraphs, then it would be proper to limit the scope of our ruling to only the third paragraph, thereby preserving the first two paragraphs for future challenges by parties directly affected by the provisions therein. Our inquiry is two-pronged— first, is the paragraph severable; secondly, if so, should the paragraph be severed for the purposes of the instant appeal.

Credit sales are dealt with generally in section 13 of article VI of the Liquor Control Act (Ill. Rev. Stat. 1979, ch. 43, par. 134). The third paragraph of Rule 24, however, represents a substantial departure from any of the provisions in section 134. It deals specifically with the retail licensee’s advertisement of the fact that nonlicensed agency credit cards, such as VISA and Master Charge, may be used for the purchase of alcoholic liquor. Examination of the remaining two paragraphs of Rule 24 reveals that they are closely related to provisions of section 13 of article IV and are capable of implementation without reference to the third paragraph of the Rule.

The first paragraph of Rule 24 prohibits the sale of alcoholic liquor at retail on credit, thereby implementing the first clause of section 134 of the Act, which reads, “No person shall sell or furnish alcoholic liquor at retail to any person on credit or on a passbook, or order on a store, or in exchange for any goods, ware or merchandise, or in payment for any services rendered. * *

Section 13 of article IV authorizes the use of credit cards for off-premises sales of alcoholic liquor. Specifically, the fourth and fifth clauses of section 13 of article IV state:

“[A]nd provided further that nothing herein contained shall be construed to prevent any hotel from permitting checks or statements for liquor to be signed by regular guests residing at said hotel and charged to the accounts of said guests; and provided further that nothing herein shall be construed to prevent payment by credit card or other credit device for the purchase of liquor in the original package or container for consumption off the premises.”

The second paragraph of Rule 24 expands upon the statute by authorizing the use of credit cards for on-premises sales as well.

It is readily apparent that neither the first nor the second paragraph of Rule 24 is dependent upon the third for meaningful interpretation. Accordingly, we find that the third paragraph is severable.

We turn next to the facts of the case to complete our analysis of severability. Walgreen’s has not been charged with either improperly accepting credit for the sale of alcoholic liquor or with violating the second paragraph of Rule 24 which deals with retail sales of alcoholic liquor for consumption on the premises. Walgreens, therefore, lacks standing to challenge the constitutionality of either of the first two paragraphs of Rule 24. (See, e.g., Schiller Park Colonial Inn, Inc. v. Berz (1976), 63 Ill. 2d 499, 349 N.E.2d 61.) Accordingly, since nothing prevents its severance from those paragraphs, we must, as defendant suggests, confine our ruling to the third paragraph of the Rule. The balance of our opinion will be addressed solely to the parties’ arguments respecting the third paragraph of Rule 24.

We consider the determinative question to be whether the trial court properly ruled that the Commission’s rule violates Walgreen’s right to commercial free speech under the Illinois and Federal constitutions. (U.S. Const., amend. I; Ill. Const. 1970, art. 1, §4.) The Commission argues that the governmental interest in regulating the sale of alcoholic liquor outweighs Walgreen’s First Amendment right of commercial free speech. The specific governmental interests involved in the instant regulation, according to the Commission, are protection of the public health, safety and welfare and the promotion of temperance. The Commission’s argument continues with the general premise that First Amendment rights may be curtailed where such important governmental interests are involved and the means chosen are closely drawn. Schiller, 63 Ill. 2d 499, 507, 349 N.E.2d 61, 65.

Applying these general premises to Rule 24, we find that the restriction therein on a retail licensee’s right to advertise is not a closely drawn means of promoting temperance or protecting the public health, safety or welfare. The Commission has failed to demonstrate either in the circuit court or on appeal that a consumer would be more likely to practice temperance if he were not informed, via the display of VISA and Master Charge logos in Walgreen’s advertisements, that credit cards are an acceptable mode of payment for Walgreen’s offerings, including alcoholic liquor, than if the consumer were not so informed.

The Commission next argues that the twenty-first amendment, which sanctions State regulation of the sale of liquor within its boundaries, substantially reduces a licensee’s first amendment right of commercial free speech with respect to alcoholic liquor. We agree with the Commission that the licensee’s first amendment right of commercial free speech is not absolute. However, the licensee’s constitutional right must prevail over a regulation which does not bear a substantial relation to the governmental interests which the Act legitimately seeks to protect. (Cf. Daley v. Berzanskis (1971), 47 Ill. 2d 395, 269 N.E.2d 716 (warrantless search of licensee’s premises did not require suppression of fruits of search for purposes of liquor license revocation hearing).) It is readily apparent that a rule which restricts licensees from advertising that they accept credit cards does not further the legislative purpose of the Liquor Control Act, which specifically states that a licensee such as Walgreen’s is authorized to accept credit cards for the sale of alcoholic liquor.

Therefore, having found that the third paragraph of Rule 24 bears no substantial relationship to the governmental interests which the Act seeks to protect, we hold that the rule as written, which totally bans advertising off the premises, in any form, a licensee’s statutorily authorized privilege of accepting credit cards, violates constitutionally protected rights of licensees guaranteed by the State and Federal constitutions.

In light of our holding with respect to the parties’ first amendment arguments we find it unnecessary to rule on the alternative bases advanced for sustaining or striking down Rule 24. The only other issue raised on appeal which merits our consideration concerns the propriety of the circuit court’s entry of a permanent injunction against the Commission.

The general rule is that a court of equity will not enjoin enforcement of a law or regulation merely because its validity is being challenged. (4 Am. Jur. 2d Injunctions §187 (1969).) The exception to this rule, thereby allowing the circuit court to enter an injunction, obtains when the plaintiff shows both that he would suffer irreparable injury were injunction denied and that he is without an adequate remedy at law. (Kaplan v. Kaplan (1981), 98 Ill. App. 3d 136, 423 N.E.2d 1253 (citing ABC Trans National Transport, Inc. v. Aeronautics Forwarders, Inc. (1980), 90 Ill. App. 3d 817, 413 N.E.2d 1299).) We believe that both of these prerequisites were adequately shown in the trial court prior to its granting of injunctive relief in the case at bar.

First, Walgreen’s demonstrated that enforcement of the Rule would impair the effectiveness of its advertising scheme, thereby reducing its retail sales to a degree which would be practically impossible to ascertain with sufficient certainty to recover from the Commission in damages. Secondly, Walgreen’s demonstrated that a multiplicity of lawsuits could result if the Commission were permitted to continue its enforcement of the Rule. The trial court’s assessment of the factors relevant to its decision to grant injunctive relief was not manifestly erroneous insofar as it relates to the third paragraph of Rule 24. As we have stated above, any questions concerning the validity of the first two paragraphs of the Rule are not properly before the court because the plaintiff lacks standing to challenge provisions which do not affect it. Accordingly, we affirm the order of the trial court for the reasons and subject to such limitations as specified in this opinion.

Affirmed as modified.

ALLOY and HEIPLE, JJ„ concur.


author: Mr. JUSTICE STOUDER

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. LARRY T. RHODEN, Defendant-Appellant.
    Third District
    No. 81-177
    Opinion filed October 20, 1981.

      Robert Agostinelli and Bonita L. Welch, both of State Appellate Defender’s Office, of Ottawa, for appellant.
    James T. Teros, State’s Attorney, of Rock Island (John X. Breslin and Terry A. Mertel, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   Mr. JUSTICE STOUDER

delivered the opinion of the court:

The defendant, Larry Rhoden, appeals from his conviction for burglary following a jury trial in the Circuit Court of Rock Island County. The issues presented for review are (1) whether the circuit court deprived the defendant of his sixth and fourteenth amendment rights to be present during trial and to be represented by counsel when, without either the defendant or his counsel being present, the court received and responded to a written request made by the jury during its deliberations, and (2) whether the court erred in admitting the testimony of Sandra Stein, whom the prosecution claimed to be qualified as an expert witness in fingerprint comparison.

On the morning of April 28,1980, the police responded to an alleged burglary at the residence located at 603 44th Street, Rock Island, Illinois. Upon arriving, they learned from the owner, Sheri Chilberg, that someone had broken into her house during the night and had removed her television set and stereo equipment. The burglar appeared to have entered through the kitchen door by breaking a pane of glass from the door and releasing the door latch. During their investigation, the police successfully recovered several latent fingerprints from the area of the door surrounding the broken pane. On October 23, 1980, the defendant was arrested and charged with burglary. At that time the police made a full set of impressions of the defendant’s fingerprints. At trial the prosecution attempted to demonstrate that the fingerprints recovered from the scene of the burglary matched the defendant’s fingerprints, thus establishing inferentially that the defendant committed the burglary. The prosecution called Sandra Stein, a Rock Island Police Department evidence technician, to testify in this regard.

She stated she had approximately 2 years’ fingerprinting experience and had made “thousands” of fingerprint comparisons, although the instant trial was only the second time she had testified as an expert witness. Her formal training in fingerprint comparison included a 1-week course conducted by the F.B.I. in Springfield and a 3-week course at the F.B.I. headquarters in Quantico, Virginia. Stein had attended both courses in 1980. She admitted she had not been certified by the International Association of Identification for the reason that she had not yet acquired 3 years’ experience in fingerprinting, a requirement for certification. She added, however, that she was aware of persons employed with the F.B.I. for almost 15 years who had not been so certified.

She first identified a single fingerprint and a set of four fingerprints recovered from the scene of the breakin and marked as exhibits Nos. 1 and 2. Then, by using enlarged photographs of exhibit No. 1 and the defendant’s left thumbprint, Stein indicated 10 points of similarity between that exhibit and the defendant’s thumbprint. The 10 points were each marked by corresponding arrows on both enlargements. Although she admitted there was some disagreement among experts on the issue of how many points of similarity are necessary to make a valid identification, she submitted that 10 points were more than sufficient to conclude conclusively that the fingerprint labeled exhibit No. 1 was the defendant’s left thumbprint. Referring then to exhibit No. 2, Stein said she had discovered between 5 to 10 points of similarity between each of the four fingerprints and the defendant’s fingerprints, but she had failed either to chart the similarities using enlarged photographs, as she had done with exhibit No. 1, or to make notes on where the points of similarity could be located. Further, she could not recall the points’ locations. Stein said she believed that charting the similarities between the fingerprints contained in exhibit No. 2 and the defendant’s fingerprints was unnecessary because of her comparison made between exhibit No. 1 and the defendant’s left thumbprint. Over the defendant’s objection, the court admitted both exhibits as well as the enlarged photographs containing the ten charted points of similarity.

The only evidence adduced by the defendant consisted of his parents’ testimony. They stated that the defendant was in Milwaukee caring for his grandmother on the date of the burglary.

During its deliberations, the jury submitted a handwritten note to the trial judge, requesting a magnifying glass. Without either the defendant or defense counsel being present and without notifying them, the judge sent the following written response, “None available.” The jury subsequently returned a guilty verdict against the defendant for burglary.

The defendant argues that he was denied his constitutional right to be present in the courtroom when the trial judge communicated with the jury during its deliberations. Before proceeding to the primary issue, we first reject the State’s contention that, by failing to assert the claimed sixth amendment violation in his post-trial motion, the defendant waived consideration of the issue for the purposes of appeal. To hold that the defendant must raise in his motion for post-trial relief the alleged constitutional error which transpired without his presence or knowledge would effectively preclude a reviewing court from considering such violations for the obvious reason that, in all likelihood, the defendant would have no knowledge that the communication occurred.

It has long been axiomatic that a defendant is entitled to a public trial by jury, every part of which he has a right to participate and to be present, from arraignment to final sentencing. (People v. Etheridge (1976), 35 Ill. App. 3d 981, 343 N.E.2d 55.) In this regard the law is well established that any judgment based upon a communication between the court and jury after their retirement to deliberate, unless made in open court, violates this right. (Parker v. Gladden (1966), 385 U.S. 363, 17 L. Ed. 2d 420, 87 S. Ct. 468; Jenkins v. United States (1965), 380 U.S. 445, 13 L. Ed. 2d 957, 85 S. Ct. 1059; People v. Beck (1922), 305 Ill. 593, 137 N.E. 454.) Hence, in the instant case the court committed error by responding to the jury’s request for a magnifying glass without the defendant or his counsel being present. The law is equally well established, however, that such an unconstitutional communication is not deemed conclusively prejudicial. (People v. Mills (1968), 40 Ill. 2d 4, 237 N.E.2d 697.) Because the actual effect of the communication on the jury is difficult to establish, the standard applied is whether the illegal conduct involved “ ‘such a probability that prejudice will result that it is [to be] deemed inherently lacking in due process.’ ” People v. Tobe (1971), 49 Ill. 2d 538, 544, 276 N.E.2d 294, 298, citing Estes v. Texas (1965), 381 U.S. 532, 542-43, 14 L. Ed. 2d 543, 550, 85 S. Ct. 1628, 1633.

In the instant case, the communication did not prejudice the defendant because, assuming the defendant and his counsel had been present during the court’s response that no magnifying glass was available for the jury’s use, that response was the only appropriate reply for the court to have made. Although authority exists which may condone the jury’s use of a magnifying glass in examination of exhibits (see Howard v. Illinois Trust & Savings Bank (1901), 189 Ill. 568, 59 N.E. 1106), recent case law establishes that the refusal to permit examination of fingerprint exhibits under magnification does not result in error. The classification and method of comparison of fingerprints is a science requiring specialized study not common to most. (People v. Speck (1968), 41 Ill. 2d 177, 242 N.E.2d 208.) Accordingly, the jury must be assisted by the testimony of experts in the field of. fingerprint identification and comparison. Although the jury may reject the expert’s testimony and conclusions on the basis of his or her lack of credibility or on the basis of testimony developed on cross-examination, it may not exercise the unlimited prerogative to speculate as to the presence or absence of points of similarity in fingerprint exhibits. (People v. Peter (1973), 55 Ill. 2d 443, 303 N.E.2d 398.) For this reason the jury is not entitled to a magnifying glass, thus making the court’s denial of the jury’s request proper and nonprejudicial to the defendant’s sixth amendment right to be present during all proceedings.

The defendant secondly contends that the court erred in admitting the testimony of Sandra Stein, the prosecution’s evidence technician, claiming she was unqualified to testify as an expert and to offer her opinion concerning the fingerprint comparisons. The defendant suggests that the recent case of People v. Rhodes (1981), 85 Ill. 2d 241, 422 N.E.2d 605, established minimum qualifications necessary to be considered an expert in fingerprint identification and comparison. We disagree with this interpretation. Rhodes contains no language suggesting that the expert’s substantial qualifications there were to be considered an absolute minimum, thus preempting the trial judge’s traditional discretion concerning the qualification of an expert witness.

The comparison of fingerprints involves the exercise of scientific knowledge which assists the jury in its determination of the facts. (People v. Jennings (1911), 252 Ill. 534, 96 N.E. 1077.) This scientific data is supplied by the introduction of an opinion of an expert witness. The party offering the expert assumes the burden of establishing that expert’s scientific knowledge, the sufficiency of which rests largely on the sound discretion of the trial judge. Irrespective of how the specialized knowledge was acquired, whether through education, training, experience, or a combination of each, if the witness possesses such knowledge, then he or she may testify by opinion or otherwise. E. Cleary & M. Graham, Handbook of Illinois Evidence §702.2 (3d ed. 1979).

In the instant case, Stein testified that she had 2 years’ experience in which she had made “thousands” of fingerprint comparisons. In 1980 she also had completed two courses specializing in fingerprint comparison. We can assume from these recent courses that she was familiar with current literature in her area of concentration. Moreover, her failure to be certified by the International Association of Identification did not conclusively disqualify her from testifying as an expert. In any event, the jury was aware of this and considered it in weighing Stein’s credibility. Although Stein clearly did not garner the qualifications of the experts who testified in Jennings (three experts who averaged 6 years’ experience) or in Rhodes (5 years’ experience in addition to 50 hours of in-service training), she was sufficiently experienced and trained to serve as an expert witness and to state her opinions concerning the similarity between the defendant’s fingerprints and the fingerprints recovered at the scene of the crime. By permitting Stein to testify as an expert witness, the court committed no abuse of its discretion.

For the foregoing reasons, we affirm the defendant’s conviction for burglary entered in the Circuit Court of Rock Island County.

Affirmed.

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


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. STEPHEN FILKER, Defendant-Appellant.
    Third District
    No. 79-544
    Opinion filed October 23, 1981.
    Robert Agostinelli and Charles Hoffman, both of State Appellate Defender’s Office, of Ottawa, for appellant.
    Michael M. Mihm, State’s Attorney, of Peoria (John X. Breslin, of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   Mr. JUSTICE BARRY

delivered the opinion of the court:

This is an appeal by the defendant, Stephen Filker, following his convictions for attempt murder and aggravated battery in the Circuit Court of Peoria County. After the jury found him guilty, he was sentenced to a six-year term of imprisonment for attempt murder.

In this appeal, the defendant argues that the aggravated battery conviction must be vacated since it arose from the same physical act which formed the basis for the attempt murder conviction. The State concedes the vacatur of the aggravated battery conviction, but argues the impropriety of a remandment in this case because the defendant has failed to rebut the presumptive validity of the sentence imposed.

In support of its position, the State cites the appellate decision in People v. Myers (1980), 83 Ill. App. 3d 1073, 404 N.E.2d 1082, aff'd in part & rev'd in part on other grounds (1981), 85 Ill. 2d 281, 422 N.E.2d 620. However, reliance on Myers is inappropriate. The decision in Myers was based on a standard of review which has since been determined by the Illinois Supreme Court to be unconstitutional. People v. Cox (1980), 82 Ill. 2d 268, 412 N.E.2d 541.

Under the abuse of discretion standard which was reaffirmed in Cox, remandment for resentencing has consistently been the remedy where the trial court could have improperly considered a second conviction based on the same act as supports the conviction for which the defendant was sentenced. See People v. Smith (1980), 78 Ill. 2d 298, 399 N.E.2d 1289; People v. Vallero (1978), 61 Ill. App. 3d 413, 378 N.E.2d 549; People v. Ross (1978), 60 Ill. App. 3d 857, 377 N.E.2d 230.

Accordingly, the judgment of conviction of attempt murder entered in the circuit court of Peoria County is affirmed, the judgment of conviction for aggravated battery is vacated, and the cause is remanded for a new sentencing hearing.

Affirmed in part, vacated in part and remanded.

SCOTT, P. J., and STOUDEB, J„ concur.


author: Mr. JUSTICE WEBBER

text:
    URS CORPORATION, Plaintiff-Appellee, v. ROBERT LEE ASH et al., Defendants.—(WAYNE B. TAYLOR et al., Defendants-Appellants.)
    Fourth District
    No. 16991
    Opinion filed October 21, 1981.

      Robert L. Gibson and Alfred H. Kreckman, Jr., both of Massey, Anderson & Gibson, of Paris, for appellants.

      Phebus, Tummelson, Bryan & Knox, of Urbana (Joseph W. Phebus and Janet A. Flaccus, of counsel), for appellee.
   Mr. JUSTICE WEBBER

delivered the opinion of the court:

This appeal concerns a series of easements acquired for the underground storage of natural gas in Edgar County by Peoples Gas Light and Coke Company (Peoples). All of the easements were conveyed by Peoples to the plaintiff by a special warranty deed. Certain owners of the underlying fees refused to recognize the conveyance and the plaintiff thereupon filed in the circuit court of Edgar County a 23-count complaint for declaratory judgment (Ill. Rev. Stat. 1979, ch. 110, par. 57.1) seeking a declaration of its rights in the easements. Each count related to a separate easement.

Nearly all of the counts were settled, but six of them were not, and those six are the subject of this litigation. As to four of them, the trial court entered summary judgment in favor of the plaintiff after striking seven of the defendants’ nine affirmative defenses. As to the remaining two, the trial court, after a brief bench trial, entered judgment in favor of the plaintiff. This appeal followed.

A brief background statement is first in order. Further recitation of facts will appear throughout this opinion as necessary for clarity in discussing the issues raised. Peoples embarked upon a project to store natural gas underground in connection with sales to its customers in the Chicago area. In pursuit of the project, it began acquiring easements in 1972 and in April and July of 1973 it obtained certificates of convenience and necessity from the Illinois Commerce Commission (Commission) under the provisions of section 50 and 55 of the Public Utilities Act (Ill. Rev. Stat. 1971, ch. Ill 2/3, pars. 50, 56) which included powers of eminent domain under the provisions of “An Act concerning the use of eminent domain in connection with the transportation, distribution, or storage of gas, and granting rights for the storage of gas in property of the State of Illinois and political subdivisions, municipal corporations and quasi-municipal corporations therein” (Ill. Rev. Stat. 1971, ch. 104, par. 104 et seq., now Ill. Rev. Stat. 1979, ch. 96M, par. 5501 et seq.) (Gas Storage Act).

After investing over $3 million in the project, Peoples arrived at the decision that it was no longer feasible in view of an existing surplus of natural gas and therefore sought to dispose of the easements which it had acquired. It approached several other natural gas distributing companies without success and ultimately arrived at an agreement with the plaintiff which agreed to purchase the easements for $385,000. Plaintiff’s purpose for the use of the easements is to store compressed air as a part of its experimental project for the generation of electrical power.

Since the issues and the bases of our decision are somewhat different as to the easements upon which the trial court entered summary judgment (Taylor easements) and the ones upon which judgment after bench trial was entered (Porter easements), we must discuss them separately.

All of the Taylor easements were executed on a preprinted form supplied by Peoples which in pertinent part is read as follows:

“For and in consideration of the payment of $5.00 per acre, the receipt of which is hereby acknowledged, Owner hereby GRANTS, CONVEYS and WARRANTS unto THE PEOPLES GAS LIGHT AND COKE COMPANY (hereinafter referred to as “Company”), its successors and assigns, the exclusive right and easement to conduct geological surveys in, under and upon said land; to construct, develop, operate and maintain a gas storage project under and upon said land; to inject natural gas or other gases or vapors (all hereinafter referred to as “gas”) into any geological strata, 500 feet or more below the surface of said land, not containing oil and gas in commercial quantities (all such strata being hereinafter referred to as the “Storage Reservoir”); to rework and/or plug existing or plugged or abandoned wells penetrating the storage reservoir; to store gas in the Storage Reservoir and to retain possession of the gas so stored as personal property; to withdraw the gas (with all substances absorbed) from the Storage Reservoir; to drill, install, operate, maintain, renew, move, remove and/or abandon in place, at locations selected by Company, wells, pipelines, roads, cathodic protection, electric lines and all other surface or subsurface facilities as Company deems necessary or desirable for the geological survey or a gas storage project, with the right of ingress and egress on said land and the right to do and perform all such other acts and things as may be necessary for the geological surveys, and the construction, development, operation, and maintenance of a gas storage project. Owner hereby expressly releases and waives any right of homestead.”

The Porter easements were typewritten and in pertinent part are read as follows:

“The grantors * 0 * convey * ° 8 to Peoples Gas Light & Coke Co. * * *, grantee, the exclusive right, privilege and easement to introduce and store gas in all formations at depths in excess of 500 feet below the surface of the real estate ” ° ° and to retain possession of gas so stored as personal property, and to remove gas so stored together with any absorbed water vapor and to maintain the integrity of the cap-rock formation overlying each storage formation and to do and perform such acts as may be necessary or convenient for all of the foregoing purposes.”

In addition, the Porter easements contained a clause not found in the Taylor easements. This clause provides, “In the event grantee shall permanently discontinue the storage of gas under the real estate in question, grantee shall prepare and place of record an instrument releasing the rights herein granted.”

The epicenter of the controversy among the parties is the affirmative defenses and their striking as a matter of law by the trial court. There were nine of them in all; seven of them applied to all the easements; the eighth is not appealed; and the ninth applied only to the Porter easements. As previously indicated, summary judgment was entered as to the Taylor easements in favor of the plaintiff after the seven were struck, and the trial court after hearing held in favor of the plaintiff as to the Porter easements.

Without detailing each of the seven concerned with the Taylor easements, we may group them into three principal categories: (1) abandonment of the easements, (2) scope of the easements, and (3) eminent domain consequences. As will be seen from our discussion of them, each impinges on the other to a certain extent, the defense of scope being the most determinative.

As to scope, defendants claimed that the easements by their own terms were limited to natural gas and that air was not included within the meaning of gas. As a subsidiary argument, they further maintained that the Commerce Commission orders referred only to natural gas, and not air, and that the plaintiff was not subject to Commission regulation, thus depriving them of the protections afforded by the orders issued to Peoples. Plaintiff maintains that the language of the easements, “natural gas or other gases or vapors,” is broad enough to include compressed air and that since the easements were acquired by voluntary grant, the question of governmental regulation becomes irrelevant.

While the trial court assigned no reasons in its order for striking the scope defense, the record indicates that it resorted to a dictionary for a definition of “gas” and in its brief plaintiff argues dictionary definitions. Defendants claim that this indicates an ambiguity in the use of the term and therefore evidence of surrounding circumstances should have been allowed.

Thus arises a nettlesome question as to the determination of whether an ambiguity exists and the use of extrinsic evidence in making such a determination.

The Illinois courts are agreed that the question of ambiguity is one of law to be determined by the court. Chicago Investment Corp. v. Dolins (1981), 93 Ill. App. 3d 971, 418 N.E.2d 59; Board of Education v. Chicago Teachers Union, Local 1 (1980), 89 Ill. App. 3d 861, 412 N.E.2d 587.

However, there is a split of authority as to how the court should go about making the determination. A long line of older cases adopted what has been called the “four corners” or “plain meaning” test. Apparently this is the test which the trial court applied in the instant case. The rule is stated as follows:

“An agreement, when reduced to writing, must be presumed to speak the intention of the parties who signed it. It speaks for itself, and the intention with which it was executed must be determined from the language used. It is not to be changed by extrinsic evidence.” Western Illinois Oil Co. v. Thompson (1962), 26 Ill. 2d 287, 291, 186 N.E.2d 285, 287.

The rule has been followed in a variety of factual situations. Examples are: Saddler v. National Bank (1949), 403 Ill. 218, 85 N.E.2d 733; Pioneer Trust & Savings Bank v. Lucky Stores, Inc. (1980), 91 Ill. App. 3d 573, 414 N.E.2d 1152; Maloney v. Maloney (1980), 88 Ill. App. 3d 146, 410 N.E.2d 416; Herbert Shaffer Associates, Inc. v. First Bank (1975), 30 Ill. App. 3d 647, 332 N.E.2d 703.

The “four corners” test represents a mechanical approach to a difficult problem and possesses two flaws in that it assumes a precision of language which cannot exist and further that it places a trial judge in the uncomfortable position of determining the true intent of the parties in a transaction to which he is far removed both in time and circumstance. However, whatever he decides, he can be solaced by the knowledge that he is sustained by what seems an unimpeachable rule of law.

This is not to say that the “four corners” test does not have a place in the administration of contract law. When statutes or rules of law give a fixed meaning to particular words or phrases, or when certain technical words or phrases acquire a definite meaning, the test is clearly applicable. The parties are presumed to have used the fixed and definite meaning.

Another line of cases found its genesis in Ortman v. Stanray Corp. (7th Cir. 1971), 437 F.2d 231. Interpreting Illinois law, that court said:

“In entering judgment for defendant on the contract cause of action, the trial court accepted the defendant’s argument that a condition precedent to the admission of any evidence relating to the meaning of the contract was an initial determination by the court that the contract was ambiguous. Though language in some of the Illinois cases supports this view, we believe that it is incorrect as a general statement of the parol evidence rule. If relevant testimony concerning the circumstances surrounding the signing of a contract is offered, it should generally be heard. The meaning of words cannot be ascertained in a vacuum. The function of interpretation of a contract is to ascertain the intention of the parties as manifested by the words they used to evidence their agreement. This cannot normally be done by an isolated inquiry limited to the four corners of a document; it requires that a court attempt to place itself in the same situation as that of the parties at the time of the execution of the contract.
The standard to be used in interpreting an integrated contract is:
[T]he meaning that would be attached to the integration by a reasonably intelligent person acquainted with all operative usages and knowing all the circumstances prior to and contemporaneous with the making of the integration. 060 Restatement of Contracts §230 (1932).
Thus, relevant parol evidence is always admissible to assist in the determination of what the words used in an integrated writing mean; and the parol evidence rule is placed in its proper role of focusing interpretation on the meaning of the terms embodied in the writing and of rendering all evidence inoperative to vary those terms once their meaning has been discovered. Admitting evidence of prior negotiations and agreements for the purpose of discovering the meaning of the terms used in the integration does not violate the parol evidence rule. ‘Such testimony does not vary or contradict the written words; it determines that which cannot be varied or contradicted.’ [Citing Corbin on Contracts §579, at 421-422 (I960).]” 437 F.2d 231, 234-35. (Footnotes omitted except Corbin cited in footnote 7, bracketed above.)

Two other opinions of the same court have followed Ortman. International Minerals & Chemical Corp. v. Husky Oil Co. (7th Cir. 1973), 485 F.2d 153; Lucie v. Kleen-Leen, Inc. (7th Cir. 1974), 499 F.2d 220.

More significantly, the Ortman rule has been followed in two recent decisions of the appellate court in Baird & Warner, Inc. v. Ruud (1976), 45 Ill. App. 3d 223, 359 N.E.2d 745, and Keep Productions, Inc. v. Arlington Park Towers Hotel Corp. (1977), 49 Ill. App. 3d 258, 364 N.E.2d 939.

We believe that the line of cases commencing with Ortman are well reasoned and represent a more workable rule. Such a rule will permit the trial judge to determine with greater certainty whether in fact an ambiguity does exist or whether the parties were at one in their understanding of the language used. If he does find ambiguity, then the usual rules of construction will obtain; if no ambiguity appears, or if it appears that a word or phrase has a fixed meaning either by law or by usage and custom, then the “four corners” rule will be applied. In either event, the true intent of the parties will be better served.

We therefore hold that in the instant case the trial court was in error in striking defendants’ affirmative defenses two and three relating to the scope of the easements.

We turn next to the affirmative defenses concerned with abandonment. Defendants claim that the easements were abandoned by nonuse and by petition, order, petition for rehearing and further order by Peoples pursuant to section 49a of the Public Utilities Act (Ill. Rev. Stat. 1975, ch. Ill 2/3, par. 49a). They maintain that nonuse is shown by the failure to store natural gas in the easements and that the various documents before the Commission speak of “abandonment.” Plaintiff counters that there is no nonuse since the easements were assigned to it by Peoples for storage of compressed air and that the documents before the Commission related to abandonment of the project, not of the easements.

It is true that an easement granted for a particular purpose terminates as soon as such purpose ceases to exist, is abandoned, or is rendered impossible of accomplishment. (28 C.J.S. Easements §54 (1941).) However, forfeiture of easements is not favored and an easement can be extinguished only in some mode recognized by the law. (28 C.J.S. Easements §52 (1941); 25 Am. Jur. 2d Easements and Licenses §101 (1966).) It follows that under the circumstances of the instant case the question of abandonment is closely related to, and derivative from, the question of scope discussed above.

If, after hearing evidence on the question of the scope of the language “natural gas or other gases or vapors,” the trial court determines that compressed air is within its ambit under the intent of the parties, then there would be no abandonment in the legal sense. On the other hand, if compressed air is beyond the scope of the easements, then there could be abandonment by reason of nonuse. In our opinion the pleadings before the Commission are relevant only as to the intent of Peoples; the question of abandonment must be settled by the language of the easements themselves.

We therefore hold that the trial court was in error in striking defendants’ affirmative defenses one and seven relating to abandonment.

The two affirmative defenses sounding in eminent domain require less extended discussion. Defendants in one of them claimed that the easements were obtained under duress and threat of eminent domain proceedings. The record discloses that of the four Taylor easements here under litigation, three of them were acquired before Peoples obtained the Commission order authorizing eminent domain proceedings, and there is no indication that the fourth was obtained in any manner except by voluntary conveyance. Further, and more importantly, the point is not argued in defendants’ brief and is therefore waived under Supreme Court Rule 341(e)(7) (73 Ill. 2d R. 341(e)(7)).

The second affirmative defense in the eminent domain area alleged that a reversion by operation of law occurred when the public purpose was no longer being served. Defendants cite Scheller v. Trustees of Schools (1978), 67 Ill. App. 3d 857, 384 N.E.2d 971. That case does so hold, but it is not in point. As has already been said, there is no indication in the record that any of the easements were acquired by eminent domain.

The trial court was therefore correct in striking defendants’ affirmative defenses four and six relating to eminent domain.

Defendants’ last affirmative defense as regards the Taylor easements is that through Peoples’ assignment of the easements defendants lost the protections afforded by the orders of the Commission. Plaintiff responds that there are adequate protections within- the easement grants themselves, that defendants have no rights in the Commission orders, and in any event the plaintiff is subject to regulation by the Environmental Protection Agency.

The record does disclose some seven protective restrictions in the Commission orders which are made to apply to easements to be acquired as well as those already acquired; the record also discloses a number of restrictions within the easement grants themselves; but none of these can be compared with any purported restrictions of the Environmental Protection Agency, because none of the latter are shown. The trial court had no basis for comparison, and therefore it was error to strike that affirmative defense as a matter of law.

To sum up, then, concerning the four Taylor easements: we find that there were genuine issues of material fact relating to the affirmative defenses of abandonment (Nos. 1 and 7), to the affirmative defenses of scope (Nos. 2 and 3), and to the affirmative defense of protection (No. 5); that there were no genuine issues of material fact as to the affirmative defenses concerning eminent domain (Nos. 4 and 6). We therefore conclude that the trial court erred in entering summary judgment for the plaintiff as to the Taylor easements. Its action in striking defendants’ affirmative defenses Nos. 1, 2, 3, 5 and 7 is reversed; its action in striking defendants’ affirmative defenses Nos. 4 and 6 is affirmed.

We turn next to the Porter easements on which the trial court held an evidentiary hearing. All of the seven affirmative defenses discussed in connection with the Taylor easements were likewise stricken by the trial court. In addition, defendants raised a ninth affirmative defense to the Porter easements only, that being the release required when the storage of gas was discontinued. The principal basis for the trial court’s decision as observed in its written order was that “air” was included within the meaning of “gas.” We have already dealt with this issue in discussing the Taylor easements and the trial court’s finding in this respect is subject to the same infirmity. We note that a dictionary definition of “gas” was argued to the trial court and presumably influenced it. Without attempting to pass on the merits of the matter, we note in passing the definition of “gas” as set forth in Webster’s Second New International Dictionary 1036 (1959):

“In popular usage, any gas, or gaseous mixture, with the exception of atmospheric air-, * ° (Emphasis added.)

We therefore hold that the trial court’s judgment as to the Porter easements was against the manifest weight of the evidence and must be reversed.

For the foregoing reasons, the summary judgment in favor of the plaintiff and against the defendants as to the Taylor easements is reversed; the judgment in favor of the plaintiff and against the defendants as to the Porter easements is likewise reversed; and the cause is remanded to the circuit court of Edgar County for further proceedings in accordance with the views expressed herein.

Affirmed in part, reversed in part, and remanded with directions.

TRAPP, P. J., and LONDRIGAN, J., concur.