text:
    In re MARRIAGE OF ILA ALLCOCK, Petitioner-Appellee, and JOHN V. ALLCOCK, Respondent-Appellant.
    Third District
    No. 81-617
    Opinion filed June 22, 1982.
    Rehearing denied July 23, 1982.
    Bradley W. Dunham, of McConnell, Kennedy, Quinn & Johnston, of Peoria, for appellant.
    Donald K. Birner, of Pekin, for appellee.
   JUSTICE STOUDER

delivered the opinion of the court:

The marriage between the petitioner, Ila Allcock, and the respondent, John V. Allcock, was dissolved by judgment on August 30, 1979, in the circuit court of Tazewell County. Following a bifurcated hearing on property settlement and support payments, the trial court found that the respondent’s allotment from the Veterans Administration was marital property. The petitioner was awarded a 50% interest in each allotment check issued to the respondent until she or the respondent died. The supplementary judgment provided for other property and support arrangements; however, they are not in issue in this appeal.

The respondent filed an appeal from the supplementary judgment on November 5, 1979. He asserted that the allotment was nonmarital property, and that the petitioner had no interest in it. However, before that appeal was heard, the parties entered into a stipulation agreement wherein they agreed to dismiss the appeal. The appeal was subsequently dismissed on April 14, 1980.

The stipulation agreement was approved and adopted by the trial court on April 14, 1980, following a hearing. It corrected the language used in the supplementary judgment concerning the “allotment check” from the “Veterans Administration” in order to clarify the source of the payment. The “allotment” was really a military nondisability retirement pension from the United States Army which the respondent had been receiving since June 1966. The stipulation provided that the petitioner would receive 45% of the monthly military retirement checks, and added that these payments would terminate upon the petitioner’s remarriage. It also stated that the petitioner was to receive a copy each month of the retirement pension check.

Although the April 14, 1980, order adopting the stipulation agreement was entered months after the supplementary judgment, it was applied retroactively to the percentage interest of the petitioner. The order provided that the petitioner’s share of the pension money, which had been paid into an escrow account by the respondent following a court order, be distributed to the parties. The petitioner was to receive 90% of the account, while the respondent was to receive the remaining 10%. This provision placed the parties in the position they would have been in had the supplementary judgment awarded 45% to the petitioner.

On August 26, 1981, the respondent filed a motion with the trial court to vacate its April 14, 1980, order. The respondent claimed that the order was void for want of jurisdiction. He prayed that any and all orders entered by the court pertaining to his military retirement pay be vacated, and that the court enter an order awarding him any and all such pay received or to be received. The respondent based his argument on the fact that a recent United States Supreme Court decision, McCarty v. McCarty (1981), 453 U.S. 210, 69 L. Ed. 2d 589,101 S. Ct. 2728, determined that the area of military nondisability retirement pensions had been pre-empted by the Federal Government, and that the pensions were not subject to division upon dissolution of marriage pursuant to State community property laws. Since the field had been pre-empted, argued the respondent, the trial court had no jurisdiction to enter that part of the decree which awarded the petitioner 45% of the respondent’s pension. The respondent’s motion to vacate was denied, and he appealed.

While the parties raise several issues in their briefs, essentially these issues can be merged into the primary one around which the others resolve. The issue is whether the decision of McCarty v. McCarty (1981), 453 U.S. 210, 69 L. Ed. 2d 589, 101 S. Ct. 2728, is to be given retroactive application to a final judgment rendered before McCarty was decided on June 26, 1981. The retroactive effect of McCarty turns on whether the prior judgment was void for want of subject matter jurisdiction.

The parties have conflicting views as to the nature and validity of their “stipulation agreement” adopted by the court in the April 14, 1980, order. The stipulation, whether an agreement by the parties to accept the terms of the property settlement, or merely a correction of the property settlement’s language, is a modification of the supplementary judgment. As a modification, its validity rests on whether the initial division of the military retirement pension as marital property was void, regardless of the percentage amount of that division. In our consideration of the validity of the supplementary judgment, we incorporate by reference to that judgment the April 14, 1980, order.

It does not appear from the record that the respondent filed his motion to vacate the April 14,1980, order pursuant to section 72 (Ill. Rev. Stat. 1979, ch. 110, par. 72). Nor is it clear whether the trial court entertained the motion in the nature of a section 72 petition. However, no issue was raised in this area. Therefore, we assume that the trial court considered the motion in light of section 72, and we examine only the trial court’s denial of the motion.

In McCarty v. McCarty (1981), 453 U.S. 210, 69 L. Ed. 2d 589, 101 S. Ct. 2728, the Supreme Court found that military nondisability retirement pay was not subject to division pursuant to State community property laws upon dissolution of marriage. The court concluded that the application of State community property laws to military retirement pay threatened Federal interests. Under the supremacy clause then, the States were precluded from dividing it as such.

Recently, the Illinois Supreme Court adopted the McCarty ruling and held that a State court could not divide military nondisability retirement pay according to State law in a dissolution of marriage proceeding. (In re ' Marriage of Musser (1981), 87 Ill. 2d 68, 429 N.E.2d 530.) However, Musser and other Illinois cases adopting the McCarty ruling (In re Marriage of Smith (1981), 102 Ill. App. 3d 769, 430 N.E.2d 364 (leave to appeal pending); In re Marriage of Meyer (1981), 103 Ill. App. 3d 44, 430 N.E.2d 610) have involved direct appeals from the dissolution judgment. Unlike these cases or McCarty, the instant appeal concerns a final judgment wherein no timely appeal was taken. Since McCarty did not discuss its applicability to final judgments of this nature, we are left to determine whether McCarty nullifies past judgments which divided military non-disability retirement pay according to State law.

In our consideration of the issue herein, we are guided by the doctrine of res judicata. That doctrine establishes that a final judgment settles not only the issues actually litigated in a proceeding, but also any issues that could have been litigated in the proceeding. (Federated Department Stores, Inc. v. Moitie (1981), 452 U.S. 394, 69 L. Ed. 2d 103, 101 S. Ct. 2424.) However, the res judicata consequences will not be applied where the judgment is void. A void judgment is one which, from its inception, is a complete nullity and without legal effect. Lubben v. Selective Service System Local Board No. 27 (1st Cir. 1972), 453 F.2d 645.

The absence of subject matter jurisdiction renders a judgment void. (Kelly v. Kelly (1982), 105 Ill. App. 3d 136, 434 N.E.2d 55 (leave to appeal pending).) In the interest of finality of judgments, such a finding is narrowly construed. Only in the case of a clear usurpation of power by the court will a judgment be rendered void for want of jurisdiction. Lubben v. Selective Service System Local Board No. 27 (1st Cir. 1972), 453 F.2d 645.

The general rule that the finality of judgments is not subject to collateral attack may yield to overriding considerations such as Federal preemption. (Kalb v. Feuerstein (1940), 308 U.S. 433, 84 L. Ed. 370, 60 S. Ct. 343; Ex parte Buckhanan (Tex. App. 1981), 626 S.W.2d 65, 68 n.4.) The doctrine of Federal pre-emption may be controlling in some cases to render a judgment void by removing jurisdiction from the court. (Durfee v. Duke (1963), 375 U.S. 106, 11 L. Ed. 2d 186, 84 S. Ct. 242.) However, in the absence of overriding considerations, the judgment may be erroneous but not void.

The res judicata consequences of a final unappealed judgment are not altered by the fact that the judgment may have been wrong or rested on legal principles later overruled in another case. (Federated Department Stores, Inc. v. Moitie (1981), 452 U.S. 394, 398, 69 L. Ed. 2d 103, 108-09, 101 S. Ct. 2424, 2427.) While McCarty decided that the States were precluded from applying State community property laws to military nondisability retirement pensions, it did not find, nor even suggest, that prior, valid State court judgments were invalid and unenforceable as a result. In the absence of such intention, we are lead to the conclusion that prior final judgments are not void for lack of jurisdiction.

There is a difference of opinion in other jurisdictions whether McCarty is retroactive and renders void prior, final judgments. California, which long held that military retirement benefits were community property, has adopted McCarty with some reluctance. (In re Marriage of Jacanin (1981), 124 Cal. App. 3d 67, 177 Cal. Rptr. 86.) The court of appeals for the fourth district, however, would not apply McCarty retroactively without a clear indication to do so. (In re Marriage of Sheldon (1981), 124 Cal. App. 3d 371, 177 Cal. Rptr. 380.) In Sheldon, the court analyzed the question of retroactive application to final judgments under the three factors set out in Chevron Oil Co. v. Huson (1971), 404 U.S. 97, 30 L. Ed. 2d 296, 92 S. Ct. 349. Under those principles, the California court determined that (a) McCarty overruled a long line of California Supreme Court cases which had definitely spoken on the issue; (b) the rationale underlying McCarty did not mandate a retrospective operation; and (c) the potential for injustice and hardship caused by a retroactive application was too great. Based on those conclusions, McCarty would not be applied to judgments which were final before its ruling.

The United States Court of Appeals for the Fifth Circuit also decided that McCarty would not be given a retroactive application. (Erspan v. Badgett (5th Cir. 1981), 659 F.2d 26, cert. denied (1982), 50 U.S.L.W. 3669.) The “defendant” in Erspan was originally in Federal court on the issue of whether his discharge in bankruptcy affected a 1963 divorce decree and property settlement which awarded his former spouse an interest in his military retirement benefits. During the pendency of a rehearing request, McCarty was announced. The “defendant” requested the Fifth Circuit to reverse the 1963 property settlement decree in light of the recent Supreme Court decision.

The court in Erspan refused to apply McCarty retroactively without an indication of intent to do so by the Supreme Court. Reasoning that the principles of res judicata were not displaced by the later Supreme Court decision, the “defendant” was barred from litigating issues which could have been litigated in the Texas court divorce proceeding. Therefore, the issue was not properly before the court, and the suggestion for rehearing en banc was denied.

Subsequent to Erspan, the Fifth Circuit again refused to apply McCarty retroactively in the absence of a definite holding by a Texas court on the issue. (Wilson v. Wilson (5th Cir. 1982), 667 F.2d 497, 498 n.2.) It relied on res judicata to bar the suit.

In the time between Erspan and Wilson, there had been Texas court decisions which involved the McCarty ruling. In Ex parte Buckhanan (Tex. App. 1981), 626 S.W.2d 65, the “relator” was jailed for contempt for failure to pay his former spouse her interest in his military retirement pay pursuant to a 1977 divorce decree. He applied for relief to the court on a writ of habeas corpus. The court relied upon its earlier decision of Ex parte Johnson (Tex. 1979), 591 S.W.2d 453, wherein it was decided that a State court could not enforce by means of contempt an order which divided Veterans Administration disability benefits as community property. The Buckhanan court concluded that implicit in the Johnson ruling was a finding that the district court’s judgment was void. Based on the McCarty decision that the district court’s power to divide military retirement benefits pursuant to State community property laws was preempted, the supremacy clause prevented the enforcement of that part of the 1977 decree pertaining to Buckhanan’s military pension. He was ordered discharged. See also Ex parte Acree (Tex. App. 1981), 623 S.W.2d 810.

The Texas Supreme Court sidestepped the issue of retroactivity and the Erspan decision by distinguishing the facts of Trahan v. Trahan (Tex. 1981), 626 S.W.2d 485, from the facts in Erspan. Unlike Erspan, the military retirement benefits were not divided at the time the Trahans were divorced, so that the case was not within the Erspan holding of the Fifth Circuit. The Texas Supreme Court did not comment on the Erspan decision but stated that res judicata was inapplicable to Trahan because there had been no final adjudication of the matter.

In view of the principles of res judicata and the reasoning heretofore discussed in this opinion, the October 5, 1979, supplementary judgment in the instant case was not void because of a lack of jurisdiction to enter it. While the subsequent decision of McCarty may have demonstrated that the 1979 judgment was erroneous, it did not render the judgment void. Not being void, the doctrine of res judicata prevents the respondent from raising issues which could have been litigated in that proceeding. Indeed, it appears the issue was actually raised but thereafter abandoned pursuant to the appellant’s stipulation and dismissal of his appeal.

Nor should we allow the res judicata consequences to be denied effect. There are no overriding considerations to impede its application. The rationale underlying McCarty, providing for retirees and meeting the personnel management needs of the active armed forces, does not mandate a retroactive application. And, finally, the potential for injustice and hardship to the former spouse and family members that would be caused by á retroactive application is too great. Chevron Oil Co. v. Huson (1971), 404 U.S. 97, 30 L. Ed. 2d 296, 92 S. Ct. 349; Douglas-Guardian Warehouse Corp. v. Posey (10th Cir. 1973), 486 F.2d 739.

Based on the above reasoning, the judgment of the circuit court of Tazewell County is affirmed.

Affirmed.

ALLOY and HEIPLE, JJ, concur.


source: Caselaw Access Project

author:
JUSTICE ALLOY
      JUSTICE STOUDER,

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DANIEL JOHNSON, Defendant-Appellant.
    Third District
    No. 81-332
    Opinion filed June 28, 1982.
    Rehearing denied July 29, 1982.

      STOUDER, J., dissenting.
    Robert Agostinelli and Thomas Lilien, both of State Appellate Defender’s Office, of Ottawa, for appellant.
    James T. Teros, State’s Attorney, of Rock Island (John X. Breslin and Gary F. Gnidovec, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE ALLOY

delivered the opinion of the court:

The State filed a complaint in the circuit court of Rock Island County charging the defendant, Daniel Johnson, with attempted rape and deviate sexual assault. It alleged that on September 3,1980, the defendant shoved Sharon Fundell to the ground, ripped her clothes, and attempted to have sexual intercourse without her consent. He then forced her to perform an act of oral sex. Following a jury trial, the defendant was found guilty of attempted rape and acquitted of deviate sexual assault. The court later sentenced the defendant to a five-year term of imprisonment. Although the defendant presents several issues for review, the most significant issue is whether the admission of other crimes evidence was reversible error.

On September 3, 1980, Sharon Fundell walked to an 11 a.m. appointment in Rock Island. A young man riding a bicycle approached her from the rear and touched her buttocks as he passed. He rode to the street corner and returned, asking her questions. Fundell replied, but kept walking along Second Avenue as the man walked his bicycle along with her. As she approached her destination, the man placed his hands on one of her breasts and took one of her hands and placed it on his crotch. Each time Fundell shoved his hands away and said, “No.” Suddenly, as they approached the building to which Fundell was going, the man lifted her into the air and threw her to the ground near some bushes, pinning her down by lying on top of her. Fundell was frightened but she did not scream, thinking it best to try to convince her assailant to release her. The man ripped her dress and pantyhose and attempted to insert his penis into her vagina, but could not because he failed to get an erection. The man then stood, subdued Fundell as she attempted to escape, and forced her to perform oral sex.

After five minutes, Fundell said she was going to signal an approaching car for help. She could not, but the attacker then released her when he thought he heard someone approaching. Fundell went inside the building and called the police. On October 21, 1980, she identified the defendant as her assailant from a group of six or seven photographs. The defendant’s photograph, from which Fundell made her out-of-court identification, was taken one day earlier following the defendant’s arrest for two other attacks. She also identified the defendant in court as the man who had attacked her.

The prosecution then introduced, over the defendant’s objection, testimony of two other women who claimed to be victims of the defendant’s attacks, for the purpose of reinforcing Fundell’s identification of the defendant as her assailant. The prosecution argued that such testimony was relevant for establishing the defendant’s modus operandi which in turn circumstantially showed that the defendant had committed the crimes charged.

On September 18, 1980, at 2 p.m., Judith Harland and her mother were walking along Eighth Avenue in Rock Island. A young man walked past them and said, “Hi.” Harland and her mother said nothing and kept walking. As Harland reached the corner, she turned back and saw the man approaching. She continued walking, but the man grabbed her buttocks then reached around her neck. He threw Harland to the ground, tore her blouse, and tried to unsnap her pants before he fled. She reported the attack to the police and gave a description of her assailant that matched Fundell’s description of her assailant.

On October 20,1980, at 1 p.m., Virginia Holmquist was attacked by a • young man on Tenth Avenue in Rock Island. He first walked past her and said, “Hey, baby.” She told him to leave her alone and continued walking. She sensed someone was behind her, so she turned and saw the young man following her. She became frightened and criss-crossed several streets. She believed that she had lost the man when, suddenly, he turned her around, said he did not like “bitches” who refused to talk to him, and struck her face. When Holmquist screamed, some people appeared and the man fled. The defendant was arrested later that day and was identified by Harland and Holmquist as their assailant at a station house showup.

The defendant did not testify and presented virtually no evidence. He now appeals his conviction and sentence, alleging several errors in the trial court.

The first issue is whether the trial court erred in admitting evidence of other crimes. Although the courts disapprove of evidence concerning extra-indictment offenses, this evidence is admissible to show motive, intent, knowledge or modus operandi. (People v. McDonald (1975), 62 Ill. 2d 448, 343 N.E.2d 489.) In this case, the trial court properly admitted evidence of other crimes to show a common scheme or modus operandi.

Evidence of other crimes is admissible to show modus operandi when the evidence establishes “a scheme or design which was strikingly similar to the offense charged in the indictment.” (People v. Tranowski (1960), 20 Ill. 2d 11, 16, 169 N.E.2d 347, cert. denied (1960), 364 U.S. 923, 5 L. Ed. 2d 262, 81 S. Ct. 290. See also People v. McDonald (1975), 62 Ill. 2d 448, 343 N.E.2d 489.) The other crimes do not have to be identical in every minute detail. The similarity need only be striking or distinctive.

In People v. Sievers (1978), 56 Ill. App. 3d 880, 372 N.E.2d 705, the court upheld the use of evidence of extra-indictment offenses when a defendant was convicted of armed robbery and rape. In Sievers, the State produced evidence that a man corresponding to the defendant’s description attacked four other women. In each attack, as in the one charged here, the man approached his victims on foot while walking down a sidewalk and began the assault by fondling or attempting to fondle the victim. Three of the attacks occurred on a Sunday morning and the attacker used a knife, as was true in the offense charged. Additionally, the defendant preceded the attacks with an armed robbery and the attacker announced his sexual intentions, as was also true in the offense for which he was on trial. Furthermore, these attacks occurred within a two-week time span.

Similarly, in McDonald, our supreme court upheld admission of evidence of other crimes when both the extra-indictment offense and the crime for which the defendant was charged occurred in the early morning hours, the attacker gained entrance to both homes in a similar fashion, the method or attack on each victim was similar and the attacker wore the same attire in each instance. The court ruled that the similarity in modus operandi was sufficient enough to admit the evidence of another crime. See also People v. Therriault (1976), 42 Ill. App. 3d 876, 356 N.E.2d 999.

In the case at bar, Sievers and McDonald provide ample support for the admission of Harland’s and Holmquist’s testimony. The attacks occurred within a nine-week time span. All three attacks occurred in the daylight. All three victims are white and each'was walking on a sidewalk at the time of the initial contact with the defendant. In each case, the defendant first tried to initiate a conversation with the victim. In the case before us and in the attack on Harland, the attacker started his assault by fondling the victims. In all three attacks, the victims gave police substantially identical physical descriptions.

People v. Tate (1981), 87 Ill. 2d 134, 429 N.E.2d 470, relied upon by defendant, does not require a contrary result. Not only does Tate reiterate the law on this subject, that decision reaffirms the validity of McDonald. The circumstances of McDonald and the case at bar are closely parallel, and the “degree of uniqueness” here is no weaker than that found in McDonald. The trial court, therefore, did not err when it admitted evidence of extra-indictment offenses.

The next issue is whether the trial court held an adequate hearing to rule on defense motions to suppress Harland’s and Holmquist’s identification. Harland and Holmquist viewed the defendant during a one-man showup procedure — after police asked these witnesses to come to the police station to identify their attacker. The defendant moved to suppress these identifications at the close of Harland’s testimony. He contends the trial court did not hold an adequate hearing when it denied the motions to suppress. The defendant bases his appeal of this issue on two points: First, that the court failed to require the State to meet its burden of proof. In essence, the defendant is arguing the State failed to meet its burden. Second, the hearing was inadequate because the trial court failed to make findings of fact and conclusions of law. The defendant relies upon section 114 — 12(e) of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1979, ch. 38, par. 114 — 12(e)) to support his argument.

The defendant incorrectly argues that the State failed to meet its burden of proof. Both witnesses viewed the defendant in close proximity and in daylight. Although the witnesses did not say how long they viewed their attacker, the recitation of their attacks demonstrates ample opportunities for both of them to view the defendant. Their identification of the defendant — at the showup as well as at the trial — were positive and unwavering. The fact that neither stated precisely how many minutes they saw the defendant is unimportant. The trial court could properly find an independent basis for the in-court identifications. Furthermore, the trial court need not make findings of fact and conclusions of law where the underlying search or seizure is lawful. (People v. Dickerson (1979), 69 Ill. App. 3d 825, 829-30, 387 N.E.2d 806.) The defendant here does not contend his arrest was unlawful. Therefore, the trial court properly denied the motion to suppress the identifications.

The next issue is whether the prosecutor’s closing and rebuttal comments operated to deny the defendant a fair trial. The comments at issue repeatedly refer to the “uncontradicted” nature of the State’s case. The defendant claims these remarks amounted to a comment on his decision not to testify, thus prejudicing his defense.

It is improper to comment upon a defendant’s failure to testify. (Griffin v. California (1965), 380 U.S. 609, 14 L. Ed. 2d 106, 85 S. Ct. 1229.) Although the State may argue that its evidence is uncontradicted and unrebutted — even when the only person who could refute it is the defendant — courts have not tolerated such arguments when they are calculated to draw attention to the defendant’s silence. (People v. Johnson (1981), 102 Ill. App. 3d 122, 429 N.E.2d 905.) Although the defendant’s failure to object to these improper comments could be construed as a waiver of objection, we note that they were harmless beyond a reasonable doubt. The victim’s testimony of the events surrounding the attack was unequivocal, and the identification testimonies of the prosecutrix, Holmquist and Harland, were positive and emphatic. The evidence is overwhelming and unrebutted. On these facts, the error charged was harmless beyond a reasonable doubt. People v. Evans (1979), 78 Ill. App. 3d 996, 398 N.E.2d 326.

• 6 Finally, the defendant appeals his five-year sentence for the conviction of attempted rape. The trial court listed the threat of serious harm to the victim as a factor in aggravation of sentencing under section 5 — 5—3.2(a) of the Unified Code of Corrections (Ill. Rev. Stat. 1979, ch. 38, par. 1005 — 5—3.2(a)). The defendant contends that the use of force in an attempted rape implicitly carries a threat of serious harm to the victim. The defendant argues, therefore, the legislature already considered this factor when it determined a sentence for attempted rape and the court may not now consider this fact again. The defendant relies upon the reasoning of People v. Conover (1981), 84 Ill. 2d 400, 419 N.E.2d 906, in which our supreme court ruled that obtaining money as a result of a burglary was not “receiving compensation” for the offense within the meaning of section 5 — 5—3.2(a). Obtaining the proceeds of a burglary is implicit in the offense itself, and could not be used as a factor in aggravation. Relying upon People v. Allen (1981), 97 Ill. App. 3d 38, 422 N.E.2d 254, the defendant argues that aggravating factors exist only when the risk of harm is greater than that inherent in the offense. 97 Ill. App. 3d 38, 40.

The defendant’s analogy of Conover and Allen to this case is faulty. The fact that a crime has an element of force in it does not necessarily mean that serious harm or the threat of serious harm is inherent in the offense. (See, e.g., People v. Carmack (1982), 103 Ill. App. 3d 1027, 432 N.E.2d 282 (threat of serious harm not necessarily implicit in offense of armed robbery).) Similarly, the threat of serious harm is not inherent in the offense of rape. There are wide variances in the risk of harm to victims of sexual attacks. The rapist who uses a deadly weapon in his attack, for example, is usually a much greater threat to his victims than an unarmed rapist who overcomes his victims by fear or intimidation. It is illogical to argue that the legislature intended to prevent a trial court from recognizing these differences and from imposing sentences accordingly. The trial court here properly considered the threat of serious harm as an aggravating factor and imposed a sentence of imprisonment that is supported by the record.

The judgment of the circuit court of Rock Island County is affirmed.

BARRY, P. J., concurs.

JUSTICE STOUDER,

dissenting:

I respectfully dissent from the result reached by my colleagues. I believe the circuit court erred when it admitted evidence of other crimes as his modus operandi to circumstantially establish the defendant’s identity. Today’s ruling shows that the exceptions to the rule have all but eliminated the rule itself.

The criminal law strongly disfavors receiving proof of the accused’s bad character, including evidence of unrelated crimes, to demonstrate his guilt circumstantially by suggesting that he conformed to his established propensities. Other-crimes evidence is barred not because it is not factually relevant, but because it tends to over-persuade the jury to the obvious and substantial prejudice of the accused. (People v. Lindgren (1980), 79 Ill. 2d 129, 402 N.E.2d 238.) Our law “simply distrusts permitting the trier of fact to draw the inference that because a man has committed other crimes he is more likely to have committed the current crime.” (E. Cleary and M. Graham, Handbook of Illinois Evidence sec. 404.5, at 134 (3d ed. 1979).) Nevertheless, other-crimes evidence may be admitted where it is substantially relevant for some other purpose than to show a probability that the accused committed the crime charged because he has a criminal character. (People v. Lehman (1955), 5 Ill. 2d 337, 125 N.E.2d 506.) One such independent basis for admitting other-crimes evidence is to establish the accused’s modus operandi or common scheme. (People v. McDonald (1975), 62 Ill. 2d 448, 343 N.E.2d 489.) The justification for admitting this evidence is that, if the criminal conduct charged coincided with the accused’s established criminal tradecraft, then the accused is likely to have committed the current crime.

To constitute admissible evidence of the defendant’s modus operandi, the other crimes must not only parallel the crime charged, but they also must carry some degree of uniqueness so as to separate or distinguish the accused from the general criminal population. This is done by showing that the crimes being compared exhibit the accused’s criminal trademark. The requirement of uniqueness is particularly crucial, for without it other-crimes evidence only demonstrates the defendant’s criminal propensities and bad character, and thus is not legally relevant. The question presented here is how unique must the evidence be before it becomes admissible as modus operandi. Our supreme court said in People v. Lehman (1955), 5 Ill. 2d 337, 343, 125 N.E.2d 506, 509, that evidence of modus operandi must have “peculiar and distinctive features” to be admissible. More recently, the court has said: “Although the similarities need not be unique only to the two offenses being compared, there must be present some distinctive features that are not common to most offenses of that type in order to demonstrate modus operandi.” (People v. Tate (1981), 87 Ill. 2d 134, 142-43, 429 N.E.2d 470, 475. See also McCormick, Evidence sec 190, at 449 (2d ed. 1972) (other-crimes evidence “must be so unusual and distinctive as to be like a signature”).) The majority, while at least acknowledging the need for uniqueness, requires none in finding that the evidence of the attacks on Harland and Holmquist was probative modus operandi evidence. The sum of the similarities among the three attacks was that a male, generally fitting the description of the defendant, attacked three white women, who were walking along different Rock Island sidewalks, during a six-week period. In each case the assailant attempted to initiate a conversation with the victim prior to striking. Not only are there no more similarities, but also the similarities that do exist are not themselves entirely consistent. For example in Fundell’s attack, the assailant approached on a bicycle, whereas the assailant who attacked Harland and Holmquist was on foot. Also, although the assailant preceded each attack with an attempt to strike up conversation with the victim, he used no unique or even similar approach. Finally, the nature of the attacks was not consistent throughout because, while the assailant clearly fondled Fundell, the record is not clear as to whether the assailant fondled Harland and clearly shows that Holmquist was not fondled by her assailant.

These similarities are nothing more than standard criminal techniques, or generic similarities that are common to most, if not all, sexual assaults. Indeed the similarities that the majority finds so convincingly distinctive here are also found at least in part in another sexual attack case upon which they relied, People v. Sievers (1978), 56 Ill. App. 3d 880, 372 N.E.2d 705. Certainly the similarities here are no more distinctive than in People v. Tate (1981), 87 Ill. 2d 134, 429 N.E.2d 470. There the indicted crime and the compared crime were practically identical in every respect: in both a man slipped several packages of sausages under his coat and attempted to walk out of two Kankakee foodstores without being noticed. The supreme court - ruled that the evidence was inadmissible as modus operandi on the ground that it lacked sufficient uniqueness. The court termed the so-called modus operandi as standard criminal technique and said that while the distinctiveness need not be so conclusive so as to eliminate all other offenses of the same type, the evidence must establish the accused’s criminal trademark which will exclude most like offenses. Applying this standard to the case before us, I can discern no distinctiveness in the proffered other-crimes evidence which sets this defendant apart from others committing the same criminal conduct.


author: PRESIDING JUSTICE GREEN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ALLEN MACK, JR., Defendant-Appellant. — THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. BRUCE JEFFERSON, Defendant-Appellant.— THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ARTHUR JONES, Defendant-Appellant.
    Fourth District
    Nos. 16703, 16730, 16731 cons.
    Opinion filed June 22, 1982.

      Robert M. Hodge, of Chicago, for appellant Allen Mack, Jr.
    Dennis Cunningham and Peter Schmiedel, both of Chicago, for appellant Bruce Jefferson.
    Shelley A. Bannister, of Bannister, Block & Spevack, of Chicago, for appellant Arthur Jones.

      C. David Vogel, State’s Attorney, of Pontiac (Robert J. Biderman and James K. Horstman, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   PRESIDING JUSTICE GREEN

delivered the opinion of the court:

Defendants, Allen Mack, Jr., Bruce Jefferson, and Arthur Jones, appeal convictions of violations of section 3 — 6—4(a) of the Unified Code of Corrections (Ill. Rev. Stat. 1977, ch. 38, par. 1003 — 6—4(a)) entered by the circuit court of McLean County after a jury trial. Section 3 — 6—4(a) provided that a person committed to the Illinois Department of Corrections who while participating in holding any person as a hostage “while participating in any disturbance, demonstration or riot, causes, directs or participates in the destruction of any property” is guilty of a Class 2 felony. (Emphasis added.) On October 2, 1980, each defendant was sentenced to a term of 3 years’ imprisonment. As Jefferson was serving a different sentence at the time of sentencing than he was serving at the time of the offense, his sentence was ordered to be concurrent with the sentence he was serving at sentencing. The others were serving the same sentence at sentencing as at the time of the offense so their sentences were ordered to be consecutive to that sentence. (Ill. Rev. Stat. 1979, ch. 38, par. 1005 — 8—4(f).) We affirm.

Defendants assert: (1) Their guilt was not proved beyond a reasonable doubt; (2) the trial court erred in allowing a motion to dismiss a defense motion to dismiss the charges because of prosecutorial misconduct; (3) the trial court erred in not suppressing identification testimony which was tainted; (4) defendants were prejudiced by the prosecutor’s direct and indirect references to the use of polygraph examinations given to State witnesses; (5) the judge originally assigned to try the case erred in disqualifying himself based on defendants’ motions requesting substitution as a matter of right rather than on their motions made for cause; (6) defendants were denied a fair trial by the trial court’s moving the venue to McLean County rather than a county more distant from the occurrence and one having a larger black population; and (7) the court erred in not giving certain instructions.

We consider first the sufficiency of the evidence to support the verdicts. The following background facts are undisputed. On July 22, 1978, defendants were inmates at the Illinois State Prison at Pontiac in Livingston County. On that day the inmates at that institution rioted and by 9:40 a.m. the riot had reached massive proportions. Hostages had been taken. Many inmates were then in the yard and could not return to their cell blocks because the cell blocks had been locked. A forklift had been taken from one of the buildings and was used by inmates to punch holes in windows and doors in buildings which were subsequently looted and torched. As the forklift was driven about by certain inmates various other inmates mounted it and rode on it. The contention of the State is that the defendants were among those that did so and thereby participated in the destruction of property which was effectuated by use of the forklift. The proof of their participation came entirely from the testimony of other inmates.

Prosecution witness James Sims testified that he was at a fence between buildings called the captain’s office and the industrial building when he saw the forklift break through a door of the latter building and go toward the cold storage building, at which time defendant Mack got on the forklift and rode as it broke through a fence and went on to the cold storage building. Sims stated he had known Mack for three or four months prior to the riot. State’s witness Maurice Childs testified to having been in about the same area as Sims and to having seen Mack on the forklift as it broke through the fence. Childs stated he had known Mack for about three weeks before the event. In return for their testimony, Sims was released from the prison 90 days earlier than scheduled and Childs was transferred to a medium security prison pursuant to his request that he needed the transfer for his safety.

Both Sims and Childs were impeached in ways other than the concessions made to them for their testimony. They both were, of course, convicted felons. Sims had been in one of the buildings when some guards were assassinated by inmates and expressed fear that he might be charged for the homicide. No showing was made, however, that the State had any evidence to support a charge. Sims had been given a disciplinary ticket for giving false information and had, in the past, been a user of heroin. Sims, also, admittedly had very poor eyesight. Childs admitted lying at his initial interview with a law enforcement agent concerning the riot.

Danny Newell testified that he was standing near the captain’s office when he saw the forklift move to the cold storage building. He said that defendant Jefferson was behind the forklift as it ran into the cold storage building. Napoleon Hughes testified to having been standing between the cold storage building and one called R and D when the forklift came through a gate and thereafter Jefferson got on the lift. Hughes stated that the lift then went to the cold storage building, but he did not say that Jefferson was on it as it ran into the door of that building. Perry Murphy testified that from the north corner of the industrial building, he saw Jefferson get on the lift and ride upon it as it went to the cold storage building and that there the lift was used to try to break open the door to that building. Murphy stated that Jefferson was on the lift when an attempt to break" the door was made but did not state definitely that Jefferson was on the lift at the time it made impact with the door.

The latter three witnesses were impeached in much the same way as were Sims and Childs. For his testimony, Hughes received 90 days’ credit on his sentence and a letter of appreciation to the parole board. He was subsequently paroled after 6 years’ incarceration on an indeterminate sentence of 10 to 30 years for attempt murder. Murphy received 30 days’ good time credit. After his release from prison, the State found secret places for him to live in Illinois and Indiana, paid his rent and found a job for him. Newell was subsequently paroled.

Six witnesses identified defendant Jones as having ridden on the forklift. Danny Patton said he saw Jones riding on it and waving his arms as it went west from the cold storage building. James Hubbard testified to seeing Jones on the lift as it was removing a metal gate from a window of the captain’s office. Hughes said Jones was on the lift when it broke the back door at the cold storage building. Murphy’s testimony also placed him at that place at that time. Charles Media and Newell also testified to seeing Jones riding the lift at one time or another. Patton and Media both also received concessions from the State for their testimony.

Defendants maintain that the proof of their guilt was insufficient both because the witnesses whose testimony we have related were unbelievable and because, even if the testimony were believed, it did not show that the defendants had participated in the destruction of property within the meaning of the statute defining the offense of which they were convicted.

We agree with defendants that their mere presence at the scene of the destruction of the property would not have been sufficient to convict them. However, section 3 — 6—4(a) of the Unified Code of Corrections defines the activity giving rise to the offense as causing, directing or participating in the destruction of property. Because of the use of the disjunctive, the defendants need not have caused or directed the destruction to be guilty even though they were charged with causing and participating in the disturbance. (People v. Calcione (1938), 369 Ill. 154, 15 N.E.2d 859.) By use of the additional word “participates” the legislation evidences an intention that it be given wide coverage. The appropriate mental state for the offense would logically be knowledge. The circumstantial evidence presented, if believable, clearly showed that the defendants would have known the lift was stolen, was being used illegally and was being used to destroy property. A defendant riding on the vehicle, knowing it was an instrument of destruction on its way to perform destruction, would be participating in the destruction even if he was not on the vehicle at the time it actually made contact with objects to be destroyed.

In arguing the State’s inmate witnesses were not worthy of belief, defendants emphasize the undisputed evidence that (1) concessions were made by the State to the witnesses for their testimony; (2) all inmates including the witnesses had endured a strict lockup during the period in which they were being interviewed and deciding whether to testify for the State; (3) agents of the State were vigorous in their attempt to get testimony; (4) during the interview period many witnesses changed their position in regard to the occurrence and made statements inconsistent with prior statements; and (5) some of the testimony of the State’s witnesses at trial was inconsistent with prior statements made by those witnesses. Ordinarily the weight to be given to the testimony of witnesses who have given direct testimony of the commission of an offense by an accused is for the trier of fact even though the witness was thoroughly impeached. Nevertheless, in some instances the impeachment and inherent weakness of the testimony requires as a matter of law that the accuseds be acquitted. In arguing that this is such a case, defendants cite a number of cases but rely primarily upon People v. Kiel (1979), 75 Ill. App. 3d 1030, 394 N.E.2d 883; People v. Richardson (1974), 21 Ill. App. 3d 859, 316 N.E.2d 37, and People v. Smith (1971), 3 Ill. App. 3d 64, 278 N.E.2d 551.

In Kiel, a conviction for conspiracy to commit murder was reversed where based solely on the testimony of an accomplice who was admittedly so much under the influence of narcotics at the time of the event that he did not then know what he was doing. The witness had made no mention to police of the defendant’s participation in the offense for two years and had mentioned it only after he had been arrested for armed robbery and burglary for which he was not prosecuted. The witness had denied remembrance of the event at a preliminary hearing and made conflicting statements. In Richardson, the conviction of a defendant for reckless homicide was based entirely upon a police officer’s testimony that defendant had admitted to him that he was driving 65 or 70 miles an hour going over a bridge. The officer had made no mention of this admission until trial and it was contrary to his notes of the occurrence. The defense put on substantial evidence of the. defendant’s having driven properly and that a mechanical failure caused the collision. In Smith, a murder conviction was reversed because it was based solely on the testimony of a witness whose testimony was impeached and directly contradicted at trial.

The proof here differs from that in the cited cases most strongly in that the guilt of none of the defendants was based solely upon the testimony of a single witness. Secondly, we do not find the testimony of the State’s witnesses to be substantially out of conformity with each other except that of Charles Media. As his testimony aided only the prosecution against defendant Jones and that defendant’s participation was testified to by several other witnesses, that inconsistency was not a fatal flaw. We also do not find the testimony of individual witnesses to be grossly internally inconsistent. We recognize that their testimony was often inconsistent with previous statements they had made or actions taken. Such a situation is inherent when inmates, after protecting other inmates or wishing not to be involved, turn State’s evidence. We are also aware of the extremely strong incentive the State’s witnesses had to manufacture testimony in order to obtain rewards from the State, but we consider that to merely be a matter for the trier of fact to have weighed with the other evidence.

Considering the corroboration of the evidence of guilt of each defendant and that the State’s evidence was not contradicted by any direct evidence, we hold that a reasonable jury could have found each defendant’s guilt to have been proved beyond a reasonable doubt. The bias of the witnesses and the extent to which their testimony was internally contradictory or contradicted by their prior statements or the testimony of other witnesses were merely matters for the jury to consider in weighing the evidence.

Defendants’ claim that the trial court should have allowed their pretrial motion to quash the charges for prosecutorial misconduct is based upon evidence of the methods used by law enforcement and correctional officers in the setting of a lockup which existed for some six months after the riots. Although no case was presented where charges have been dismissed on such grounds, defendants analogize to People v. Lawson (1977), 67 Ill. 2d 449, 367 N.E.2d 1244, where the court upheld the dismissal of charges where defendants were prejudiced by unreasonable delay by the prosecution in bringing charges. They also analogize to milestone cases where the United States Supreme Court held that evidence wrongfully obtained must be excluded to protect the integrity of the judicial process. Wong Sun v. United States (1963), 371 U.S. 471, 9 L. Ed. 2d 441,83 S. Ct. 407; Nardone v. United States (1939), 308 U.S. 338, 84 L. Ed. 307, 60 S. Ct. 266.

An offer of proof was made by the defendants in support of their motion to quash the charge. The offer indicated that during the lockup: (1) Inmates were generally not allowed out of their cells except to be interviewed by those investigating the riot; (2) for the first three months inmates were not allowed showers; (3) meals were delivered to the cells and passed to the inmates through the bars resulting in considerable spillage; (4) much dispute developed over the manner in which the food was delivered and whether the spillage was intentional; and (5) much dispute developed as to the medical attention afforded inmates. By stipulation, a transcript of Dr. Marvin Schwartz, given in a Federal case, was presented. He testified that after touring the prison during the lockup and talking to inmates, he formed an opinion that the existing conditions would likely cause the inmates to fabricate testimony in order to escape the lockup. Evidence was then offered: (1) In the face of the foregoing situation at least one investigator lied to inmates from whom he sought information by telling them they were to be indicted when such was not the case; (2) numerous promises of concessions in exchange for testimony were made by investigators to inmates; and (3) the conduct of investigators was coaxing and coercive.

• 3, 4 A trial court has inherent power to dismiss a charge when due process so requires (Lawson), but this should rarely be done. (See People ex rel. Sears v. Romiti (1971), 50 Ill. 2d 51, 277 N.E.2d 705.) We need not decide whether the trial court should have heard the motion rather than dismissing it because the offer of proof shows the evidence to have been insufficient to support the charge. To support a dismissal of a charge, prosecutorial misconduct must result in actual and substantial prejudice to a defendant. (Lawson; People v. Haag (1979), 80 Ill. App. 3d 135, 399 N.E.2d 284; People v. Rivera (1979), 72 Ill. App. 3d 1027, 390 N.E.2d 1259.) We cannot tell what the testimony before the grand jury was but the offer of proof gives no indication that there was any taint to the evidence so pervasive as to vitiate the charge. Traditionally, an indictment has not been quashed because of lack of proper grand jury evidence unless all evidence before that body has been deemed subject to suppression. (People v. Jones (1960), 19 Ill. 2d 37, 166 N.E.2d 1.) The relationship between the prosecution and the inmate witnesses who testified at trial has been previously set forth. We find nothing in the transactions between those witnesses and the State that constitutes prosecutorial misconduct.

No reversible error resulted from the trial court’s ruling on defendants’ motion to dismiss the charges.

We likewise do not find the trial court to have erred in refusing to suppress the identification testimony of any of the inmate witnesses who testified at trial. We do not deem the incentive they had to identify some person as having been a participant to be suggestive as to who they should name. Many of them were presented with volumes containing photographs of all prisoners in particular cell houses at the prison, but this was probably the only reasonable way to proceed with the investigation. No showing was made that any of the pictures were presented in such a way as to suggest that one of the defendants was a participant in the offense, nor was there evidence that any investigator otherwise suggested that any of the witnesses should pick out any picture.

Prior to trial, the trial court allowed a defense motion to exclude from evidence all reference to polygraph tests which the State had apparently required its inmate witnesses to take in order to lessen the likelihood that it would be using perjured testimony. Nevertheless, during the State’s presentation of its case in chief, its witness, Lindsey, an investigator, testified that he discussed with inmates concessions the State might grant for testimony in order to get them involved in the case but he would not accept at face value the statements the inmates made. He was then asked what scrutiny he would place upon their statements. He responded:

“Well, if they named names I would — those people would be interviewed to corroborate what was said by the witness. I would compare statements made by other witnesses with the witness that I had received the information from to corroborate or to substantiate his consistency. I would ask if he would submit to a polygraph examination — . ”

The court then sustained an objection and instructed the jury to disregard the answer, saying it had “nothing to do with this case.”

Later, in the cross-examination of the inmate witness Sims, he was asked about his fears that he might be prosecuted. He stated he was not spending a great deal of time thinking about it because he had not done anything. He was then asked if he had “that much confidence in the ability of the system to distinguish who had and who had not.” He answered:

“Well, I figured if they were going to try to convict anybody or somebody, they would have given lie detector tests. That’s what I was hoping for.”

The defense made a motion for a mistrial but did not ask that the answer be stricken. Counsel argued that the witness had been coached to give the answer. The trial court denied the motion.

On another occasion, after Napoleon Hughes had been impeached by a prior inconsistent statement, the State produced a statement which Hughes had signed and which apparently contained his agreement with the State to give concessions in exchange for his testimony. The agreement was not made part of the record but was shown to state that Hughes agreed to take a polygraph test. After objection by the defense to permitting the witness to give the terms of the agreement as it was stated, Hughes was permitted to testify that the agreement stated he would “cooperate with [Illinois Department of Law Enforcement] procedures to verify the authenticity and truthfulness” of the statement he had given the State.

During the testimony of Charles Media the witness was permitted on direct examination to testify, over defense objection, that before he was given a second interview when he identified defendant Jones and Michael Mitchell as riding on the forklift, he submitted to a “procedure, to verify the truthfulness and veracity of [his] statement.” At that time the trial court told the prosecutor that no further allusion to such procedures would be allowed.

Finally, in closing argument the prosecutor stated:

“You also heard from Officer Lindsey that he thought, in his opinion, a deadlock made possible false information. That is a question that exists any time you talk with anyone about anything, whether they may be a normal citizen or another police officer. False information may come out of any interview. Deadlock is a situation out of which false information may come and he described to you certain procedures available to them both to and at July 22, 1978, whereby they could verify the authenticity of the statements given. He described those procedures. He said that before information would be accepted, that it would be subject to this procedure or series of procedures and that witnesses would be asked if they would be willing to submit to procedures of IDLE—

A defense objection was sustained and the jury was instructed to disregard that portion of the argument. Prior to closing argument, the trial judge had again instructed the State to refrain from references to procedures used by the State to verify the statements of its witnesses.

Our supreme court has most recently discussed the admissibility of the results of polygraph tests in People v. Baynes (1981), 88 Ill. 2d 225, 430 N.E.2d 1070. There the trial court had admitted evidence that the defendant had taken a polygraph test and that certain of his answers indicated he was not telling the truth about matters pertinent to the alleged offense. The supreme court held the admission of the evidence to require reversal even though before taking the test the defendant has stipulated the results might be admitted and had neither objected to the evidence at trial nor cited its admission as error in his post-trial motion. The court noted that the accuracy of the procedure has been estimated to be as low as 70% by a critic to as high as 86% by a proponent but that accuracy is very dependent upon the examiner’s interpretation of the readings given by the polygraph machine. The court considered that not only was the reliability of the procedure a problem but also the tendency of juries to greatly exaggerate the importance of test results was likely to be highly prejudicial to a defendant in a criminal case.

Here, no evidence of the results of polygraph tests were presented and the reference to tests were to those that might have been taken by witnesses for the State. In People v. Parisie (1972), 5 Ill. App. 3d 1009, 287 N.E.2d 310, the State called in rebuttal a witness who stated that the defendant who had testified had a poor reputation for truth and veracity. On cross-examination the witness was questioned about the State having investigated him in regard to the offense with which the defendant was on trial and about the witness’ conversation with the State. On redirect, the witness was asked if he had taken any tests and he answered he had taken a polygraph test whereupon the answer was stricken by the court. This court held that no reversible error occurred.

Here, the testimony by investigator Lindsey was that he would compare statements of the various witnesses and would ask them if they would take a polygraph test. There was no showing that any particular witness had taken a polygraph test, and the jury was directed to disregard the reference to such tests. The reference to the comparing of statements was not objected to and is not now claimed as error. The only other time direct reference was made to a polygraph test was the testimony of Sims and came when he was being cross-examined by the defense and was responsive to the question asked. Thereafter the references were to procedures used to determine whether the witnesses were telling the truth. By the court’s ruling on Lindsey’s testimony the jury would have been led to believe that the procedures were to compare the statements of the witness with those of others. The prosecutor’s argument emphasized the comparing of statements. Defendants have not raised an issue as to the propriety of testimony or argument to that effect. Accordingly, we find no reversible error to have occurred although the prosecutor violated the trial court’s direction not to refer to the procedures it used to test the reliability of its witnesses.

Before trial defendants made simultaneous motions for substitution of judges under section 114 — 5(a) and 114 — 5(c) of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1979, ch. 38, par. 114 — 5(a) and 114 — 5(c)). The motion under section 114 — 5(a) sought substitution as a matter of right with each defendant seeking the substitution of one judge. The motion under section 114 — 5(c) was substitution for cause against the Honorable William T. Caisley, who had been assigned to try the case and was one of the judges listed in the section 114 — 5(a) motion. Judge Caisley heard the section 114 — 5(a) motion first and granted it, thus making moot the other motion. In claiming that the procedure was erroneous defendants apparently are maintaining that the judge should have passed on the motion based on prejudice first so that if it was granted they could then amend the other motion in order to obtain a substitution from an additional judge as a matter of right. We are aware of no precedent for such a theory and do not agree that defendants had such a right. The procedure used by Judge Caisley was proper.

The prosecution was begun in Livingston County. Defendants made pretrial motion for change of venue which was granted and the trial moved to McLean County. Defendants then filed a motion for a further removal to Cook County claiming they were prejudiced because of McLean County, which is adjacent to Livingston County, was too close to Pontiac and had too small a black population to give defendants, all of whom were black, a fair trial. Defendants supported their motion by the offer of a survey purporting to show that 78.3% of people interviewed in McLean County thought the defendants were “definitely guilty or probably guilty.” The court refused to admit evidence of the survey and defendants do not cite this ruling as error. The only other evidence offered was the testimony of Sandra Consalvo, clerk of the Jury Commission of McLean County, who testified that she observed prospective jurors called for service in the county and that between January and June 1980 only about 10 of 400 people appearing for jury service during that time were black. She also testified to an opinion that about 5% of the population of the county was black.

Even if the survey results had been admitted into evidence, that alone would not have made the decision to deny a change from McLean County erroneous. (People v. Gendron (1968), 41 Ill. 2d 351, 243 N.E.2d 208.) Furthermore, the trial court liberally granted defense challenges of prospective jurors for cause. We are aware of no right that defendants had to a trial in a county having a large number of people of the same race as defendants. The trial court’s refusal to remove the case from McLean County was not error.

Lastly, defendants assert the court erred in not giving instructions with reference to the consideration to be given to the testimony of witnesses who are narcotics addicts or accomplices. The record does not show that instructions on either subject were ever tendered. In order to complain of the refusal of instructions, an appellant must present a record containing the instructions offered and given. (People v. Daily (1968), 41 Ill. 2d 116,242 N.E.2d 170.) Moreover, the record here does not show that either instruction would have been proper. Any instruction with reference to addicts would have been directed to the State’s witness Sims. However, the only evidence of this addiction was his own testimony, and he said he was free of the habit by the time of the occurrence. (See People v. Smith (1979), 70 Ill. App. 3d 250, 387 N.E.2d 901.) The accomplice instruction would have been aimed at all the State’s inmate witnesses. The test of whether such an instruction should be given is whether the witness whose testimony is in issue could have been charged properly with the offense. (People v. Robinson (1974), 59 Ill. 2d 184, 319 N.E.2d 772.) Clearly none of those witnesses could have been. The defendants maintain the instruction should have been given because the witnesses had much of the same motivation as accomplices. Although the motivation of such witnesses can and should be argued to the jury, no precedent exists to instruct specifically as to this type of bias. No error resulted from the trial court’s rulings on instructions.

Finding no reversible error to have occurred we affirm.

Affirmed.

WEBBER and TRAPP, JJ., concur.


author: JUSTICE McGILLICUDDY

text:
    LYNTEL PRODUCTS, INC., et al., Plaintiffs-Appellees, v. ALCAN ALUMINUM CORPORATION, Defendant-Appellant.
    First District (3rd Division)
    No. 79-498
    Opinion filed September 2, 1981.
    Rehearing denied July 28, 1982.
    Frederic F. Brace, Jr., Charles W. Douglas, and William J. Nissen, all of Sidley & Austin, of Chicago, for appellant.
    Lawrence A. Salibra, of Cleveland, Ohio, and Patrick J. Agnew, of Chicago, for appellees.
   JUSTICE McGILLICUDDY

delivered the opinion of the court:

This action was brought by Lyntel Products, Inc. (Lyntel) and Brian C. Egan, the plaintiffs, against Alcan Aluminum Corporation (Alcan), the defendant. The trial court entered judgment for the plaintiffs in the amount of $100,000 at the conclusion of a bench trial and subsequently denied defendant’s post-trial motions to vacate and modify the judgment.

On appeal the defendant contends that the trial judge decided the case on a theory not raised in the plaintiffs’ complaint; that the theory applied by the court was not supported by the manifest weight of the evidence; and that the trial court erred in denying defendant’s post-trial motion to modify the judgment.

The plaintiffs’ theory of liability in the instant case was that Alcan breached its contract with Lyntel. Alcan denied liability contending that there was no contract because the condition precedent to Alcan’s acceptance of Lyntel’s order, the payment of $10,000 “front money” by Lyntel, was never performed.

Lyntel was organized by Egan to market Pizza Perfect, a kit containing a perforated metal pan, serving tray, cutting knife spatula and recipes for the preparation of pizza at home. It was sold on a guaranteed sale basis in retail outlets during the Christmas season. In May of 1972, Chicago Metallic, a division of Alcan, agreed to manufacture the metal pans and cutter/spatula units. The payment terms specified in the agreement called for cash in advance on the initial order and “one-half cash in advance and one-half net 30-days” on the following order. Lyntel placed orders in October and November of 1972, and payments were made in accordance with this agreement. Another order was placed with Alcan on January 3, 1973, and the payment arrangement was 50% cash in advance, with the balance to be paid net in 30 days. These payments were also made.

On June 19, 1973, Lyntel ordered 40,000 pans and cutter units at a price of $23,728.40 with instructions to ship the goods on or before October 1, 1973. An agreement reached between Egan and Gary Brabac, the sales manager for Alcan, called for the payment of $3,728.40 in September when Alcan received the raw materials and $20,000 in January 1974. Lyntel made payments in September 1973 and January and February 1974.

Egan testified that in January 1974 he met with Bud Dungan, national sales manager for Alcan, and Robert Farmer, production manager of Alcan, to discuss the terms for his anticipated order of 100,000 units. Farmer indicated that this large order would require an early ordering of raw materials due to a steel shortage. Egan submitted his order at a cost of $59,321 on May 13, 1974, and requested a shipment date of no later than October 1, 1974.

Egan stated that prior to the mailing of the May 13, 1974, order, he had telephone conversations with Dungan and Farmer. He testified that Farmer said he would order the raw materials immediately upon receipt of Lyntel’s purchase order. Egan desired to pay the entire order price in January 1975 after his accounts receivable for the 1974 Christmas season were received. Dungan thought there would be no problem with credit and told Egan to submit the order. Thereafter, Egan discussed credit arrangements with James Hennigan, the assistant regional credit manager for Alcan; and a meeting was set for June 10,1974. Present at this meeting were Egan, Hennigan, Dungan, and Robert Buck, Alcan’s regional credit manager. Egan testified that the parties agreed that, if Lyntel reduced its order to a cost of $40,000, credit in the amount of $30,000 would be extended until January 1975 and that the remainder would be due in September 1974 when the raw materials were received by Alcan. Egan stated that all the parties understood that the units were needed for a guaranteed sales program during the 1974 Christmas season. Egan submitted a revised order on June 12, 1974, in the amount of $37,791. The order was for 100,000 pans, having an altered design and a lesser per unit cost. Shipment was to be made on or before September 15, 1974.

On July 16, 1974, Egan met with Dungan at a housewares show and was informed that Alcan did not have the metal to fill Lyntel’s order due to a steel shortage. Egan testified that Dungan suggested the possibility of obtaining steel from the black market at inflated prices and said Alcan needed an additional $23,000 from Egan in two days. Egan told Dungan that it would be impossible, and on August 1,1974, Egan received a letter from Alcan cancelling Lyntel’s order due to its failure to make advance payment to Alcan for raw materials.

Egan testified that he was never told that the raw materials would not be ordered until he made an advance payment. Had he been asked, he could have made an advance payment in an amount up to $10,000.

James Hennigan, defendant’s assistant regional credit manager, testified that when a purchase order requiring credit approval is received, it is forwarded to the credit department. Once credit is approved, the order is sent to the production department so that necessary raw materials could be ordered and production scheduled. When Lyntel’s purchase order for 100,000 items was received, it was forwarded to the credit department. Hennigan stated that in May of 1974 he examined Lyntel’s credit file and called Egan on May 28 to discuss alternative forms of credit. No agreement was reached at that time.

At the June 10 meeting, Hennigan repeated the proposals for the extension of credit to Lyntel. When Egan suggested reducing his order to $40,000, Hennigan and Buck said $30,000 credit could be extended but that $10,000 front money would have to be paid before the metal was ordered. According to Hennigan, there was no discussion of the availability of raw materials at this meeting. Hennigan’s notes of this meeting mentioned front money but did not indicate when the front money had to be paid. He stated that his notation “$10,000 front money by 9/15” was a proposal that was not agreed to by Alcan. Hennigan testified that, if Egan had paid Alcan the $10,000 on or about July 16, 1974, Alcan could have obtained the necessary raw materials.

Feme “Bud” Dungan testified that prior to July 1975 he was national sales manager of the housewares division of Alcan. He had no authority to grant credit and made no credit commitments to Egan. Dungan stated that, at the June 1974 meeting, Egan was told that he would have to make an advance cash payment before any metal could be ordered by Alcan for Lyntel’s order. Dungan could not recall how much front money was required. Dungan stated that he repeated this requirement when he met Egan in July and told Egan that if the front money was not received by Alcan immediately the metal for Lyntel’s order would have to be obtained at a premium from a warehouse. Dungan denied using the term “black market” during this conversation or requesting immediate payment of $23,000 cash. Dungan stated the lead time in 1974 for ordering metal from mills was 16 to 20 weeks. He did not know whether Alcan could have obtained the steel to complete Lyntel’s order by September 15,1974 if the front money had been received on July 16.

Robert Buck, the regional credit manager for Alcan, corroborated the testimony of Hennigan and Dungan. He said it was clearly stated to Egan at the June 1974 meeting that front money was to be paid before the metal would be acquired by Alcan to fill Lyntel’s order. On cross-examination, Buck testified that in 1973 Lyntel paid the front money in September which was after the raw materials reached Alcan’s plant.

Robert Farmer, chief of the production department of Alcan in 1974, testified that he was responsible for ordering all raw materials. He stated that it was not necessary to order all raw materials in advance but that Lyntel’s order for 100,000 units would have required an advance special order. Farmer stated that he had not seen Lyntel’s 1974 orders and that no purchase orders were issued for the raw materials. Farmer denied that he had conversed with or met with Egan in 1974 and said that he had no conversations with Hennigan, Dungan or Buck relative to Lyntel’s orders. He confirmed that a steel shortage existed in 1974 and stated that lead time to obtain steel to fill Lyntel’s order for 100,000 units would have been three to six months.

At the conclusion of the trial, the court entered judgment in favor of the plaintiffs and awarded damages in the amount of $100,000. The trial court declined to make findings of fact and conclusions of law.

On appeal Alcan initially contends that judgment was entered in the plaintiffs’ favor based on a theory of liability that was not presented in their complaint or supported by the evidence at trial. The defendant argues that the plaintiffs pleaded and sought to prove at trial that the defendant had breached its contract with Lyntel. Alcan contends, however, that the trial judge erroneously ruled against it and imposed liability based on a theory similar to unfair termination of a continuing franchisee or distributor agreement.

We have reviewed the remarks of the trial court and disagree with defendant’s argument. While the remarks of the trial court appear ambiguous in part, we feel that the court imposed liability upon the defendant based on a breach of contract theory. We find it particularly convincing that the trial court began its remarks at the conclusion of the trial with the statement that the elements of a contract were proved. We do not believe that the trial court based liability on a continuing relationship theory and, therefore, find it unnecessary to address defendant’s argument that that theory was not supported by the manifest weight of the evidence.

Concluding that the defendant was adjudged liable based on the contract theory presented by the plaintiffs, we believe it necessary to determine whether the finding of liability was supported by the evidence. It is the plaintiffs’ contention that the evidence showed that a contract existed between the parties and that, contrary to Alcan’s argument, the payment of front money was not a condition precedent to the formation of that contract.

A condition precedent is one which must be performed before a contract becomes effective or which is to be performed by one party to an existing contract before the other party is obligated to perform. (In re Estate of Albrecht (1975), 27 Ill. App. 3d 839, 327 N.E.2d 317.) A condition precedent is to be performed before the agreement becomes effective and binding on the parties and calls for the happening of some event or the performance of some act after the terms of the contract have been agreed on. (Crawford v. Abraham Lincoln Life Insurance Co. (1934), 278 Ill. App. 576.) If the condition remains unsatisfied, the obligations of the parties are at an end. (Getz v. City of Harvey (7th Cir. 1941), 118 F.2d 817, cert. denied (1941), 314 U.S. 628, 86 L. Ed. 504, 62 S. Ct. 59.) Whether an act is necessary to the formation of the contract or to the performance of an obligation depends upon the facts of the case. See National Dairymen Ass’n v. Dean Milk Co. (7th Cir. 1950), 183 F.2d 349, cert. denied (1950), 340 U.S. 876, 95 L. Ed. 637, 71 S. Ct. 122.

Applying these rules to the case at bar, we find that liability should not have been imposed upon Alcan without a determination of whether the payment of front money by the plaintiffs to Alcan was a condition precedent to the formation of their contract. As it is not clear from the record that this issue was in fact decided by the trial court, this case should be remanded for the purpose of resolving this issue. (See Nasco, Inc. v. Dahltron Corp. (1979), 74 Ill. App. 3d 302, 392 N.E.2d 1110; Casati v. Aero Marine Management Co. (1976), 43 Ill. App. 3d 1, 356 N.E.2d 826.) If on remand the court finds that the payment of front money was a condition precedent which was never fulfilled, judgment should be rendered in the defendant’s favor.

The defendant next argues on appeal that the trial court erred in denying its post-trial motion to modify the judgment. The defendant’s post-trial motion argued that the plaintiffs were required to mitigate their damages by seeking financing in July of 1974 to meet the front money requirements of Alcan rather than to seek another source of metal pans.

Section 2 — 715(2) of the Uniform Commercial Code provides that consequential damages resulting from the seller’s breach include:

“(a) any loss resulting from general or particular requirements and needs of which the seller at the time of contracting had reason to know and which could not reasonably be prevented by cover or otherwise;” (Ill. Rev. Stat. 1977, ch. 26, par. 2 — 715(2)(a).)

The defendant relies on this provision and cites cases that state the buyer is obligated to minimize his loss and pay cash when the seller demands cash after the seller had agreed to extend credit. (See, e.g., Lawrence v. Porter (6th Cir. 1894), 63 F. 62.) The buyer can recover damages thereafter amounting to interest for the period during which credit was to have been extended. (See, e.g., Warren v. Stoddart (1881), 105 U.S. 224, 26 L. Ed. 1117.) The defendant in the instant case suggests that a similar requirement should have been imposed upon the plaintiffs in July 1974 when Dungan demanded a cash payment. The defendant relies on testimony by Egan that he had financing available to him up to an amount of $10,000 and argues, therefore, that Egan should have made the cash, payment to Alcan instead of seeking an alternative manufacturer.

The defendant’s argument ignores other testimony of the witnesses, to wit, Dungan’s statement that he could not answer whether Alcan could have filled Lyntel’s order had Egan paid the front money of July 16,1974. We also note that Dungan testified that due to the steel shortage in 1974, the necessary lead time to order raw materials was 16 to 20 weeks. Farmer, a defense witness, also testified that the lead time for ordering raw materials was three to six months. Furthermore, Egan testified that in July of 1974 Dungan demanded $23,000 so that steel could be acquired on the black market. Thus, on the basis of this accumulated testimony, we believe there was insufficient evidence to support defendant’s argument that it could have filled plaintiffs’ order by the delivery date of September 15,1974, even if Egan had obtained financing and paid the front money in July-

A buyer effects cover, under the Uniform Commercial Code, by “making in good faith and without unreasonable delay any reasonable purchase of or contract to purchase goods in substitution for those due from the seller.” (Ill. Rev. Stat. 1977, ch. 26, par. 2 — 712(1).) We believe the plaintiffs satisfied the requirement of cover by purchasing goods in substitution for those due from the defendant. The plaintiffs proceeded without delay to find an alternate source in July immediately after his conversation with Dungan and upon the realization that Alcan would not fill Lyntel’s order by the required date. The plaintiffs’ substitute purchase was reasonable under the facts presented.

Thus, we believe the plaintiffs mitigated their damages and, if the court finds in their favor on remand, they are entitled to the consequential damages proved.

For the foregoing reasons, the judgment of the circuit court of Cook County is reversed and remanded for further proceedings consistent with the holdings of this opinion.

Reversed and remanded.

RIZZI, P. J., and McNAMARA, J., concur.

       When a product is marketed on a guaranteed sales basis, the retailer pays nothing for advertising or to have the product placed in his store. When the product is sold, he keeps a percentage of the sale price and remits the remainder to the manufacturer.

       Due to the seasonal nature of Pizza Perfect, Egan was required to plan his advertising schedule and enter into contracts with retail outlets and producers of the kit materials well in advance of Thanksgiving.

       The plaintiffs argue that Alcan should not be permitted to claim this error because Alcan failed to raise it at trial or in its post-trial motions. We note, however, that Alcan could not have alleged this error at those times because the defendant was not fully aware of this alleged misapprehension until after the court’s ruling on the defendant’s post-trial motions. Furthermore, Alcan has not waived this error by failing to include it in its post-trial motions because in a civil bench trial the failure to include an issue in a post-trial motion does not preclude its consideration by the reviewing court. Commercial Discount Corp. v. Bayer (1978), 57 Ill. App. 3d 295, 372 N.E.2d 926; Ill. Rev. Stat. 1977, ch. 110A, par. 366(b)(3)(ii).
      The plaintiffs also argue that the defendant should not be allowed on appeal to change the theory upon which the case was tried. We note, however, that Alcan is not changing the theory of the case; rather, Alcan is arguing that an error was committed at trial when the judge decided the case on a theory not propounded by the parties.

       Dungan denied that he had used the term “black market" and could not recall telling Egan that he would have to pay $23,000 to Alcan so that steel could be obtained.


author: JUSTICE McNAMARA

text:
    INLAND REAL ESTATE CORPORATION, Plaintiff-Appellant, v. ROBERT CHRISTOPH et al., Defendants-Appellees.
    First District (3rd Division)
    No. 80-2408
    Opinion filed November 12, 1981.
    Rehearing denied July 19, 1982.

      Winston & Strawn, of Chicago (Richard J. Brennan, Edward J. Wendrow, and Deborah G. Haude, of counsel), for appellant.
    Foran, Wiss & Schultz, of Chicago (Thomas A. Foran and Kenneth W. Sullivan, of counsel), for appellees.
   JUSTICE McNAMARA

delivered the opinion of the court:

Plaintiff Inland Real Estate Corporation appeals from the dismissal of its complaint for specific performance of a contract for the sale of two parcels of real estate. Defendants Robert Christoph and Bruce McLaren are real estate developers and controlling partners in defendant Partnership Concepts, a general partnership. The Foxboro defendants are limited partnerships formed by Partnership Concepts. The defendant bank is the land trustee of the property in question.

Defendants moved to dismiss the complaint pursuant to sections 45 and 48 of the Civil Practice Act. (Ill. Rev. Stat. 1979, ch. 110, pars. 45 and 48.) The section 45 motion stated that the alleged contract was subject to a condition precedent which had not been fulfilled. The section 48 motion recited that the Statute of Frauds barred specific performance of the contract, alleging that essential terms were absent from the writing. Defendants additionally maintained that the Statute of Frauds barred the action since the general partner, Christoph, lacked written authority to sell the property.

In dismissing the complaint under section 45, the trial court found that the parties intended not to be bound until the later execution of a formal contract.

A section 45 motion is limited to the face of the pleadings, and admits the truth of all well-pleaded facts therein. (O’Fallon Development Co. v. Ring (1967), 37 Ill. 2d 84, 224 N.E.2d 782.) Apart from the complaint and attached exhibits no new matter presented by way of affidavit or otherwise may be considered. (Mutual Tobacco Co. v. Halpin (1953), 414 Ill. 226, 111 N.E.2d 155; Arthur Rubloff & Co. v. Leaf (1952), 347 Ill. App. 191, 106 N.E.2d 735.) In the present case, defendants must show that the parties intended a condition precedent to contract formation which did not occur. Defendants successfully argued in the trial court and urge here that the following handwritten portion of the printed and executed letter of intent attached as an exhibit to the complaint shows such a condition precedent:

“The contracts alone shall be the binding documents. (At which time this letter shall be null and void.)”

Whether a writing which contains all the essential terms of a contract but which contemplates the later execution of a formal document is itself a contract or merely negotiation depends on the intent of the parties. (Interway, Inc. v. Alagna (1980), 85 Ill. App. 3d 1094, 407 N.E.2d 615.) Where the terms of the letter of intent are ambiguous, parol evidence is necessary to ascertain whether the parties intended to be then bound. (Huegel v. Sassaman (1979), 75 Ill. App. 3d 414, 393 N.E.2d 1361.) In Terracom Development Group, Inc. v. Coleman Cable & Wire Co. (1977), 50 Ill. App. 3d 739, 365 N.E.2d 1028, we held that the intent of the parties not to be bound was clear where the writing expressly stated that the agreement would not be binding until the later execution of a contract satisfactory to the parties. In Harris v. American General Finance Corp. (1977), 54 Ill. App. 3d 835, 368 N.E.2d 1099, on the other hand, we held that a letter of intent constituted a binding contract despite the failure to execute a contemplated document where the defendants signed below the word “accepted.”

In the present writing, an ambiguity exists as to the parties’ intent. The clause “at which time this letter shall be null and void” evinces the intent to be then bound, for we fail to see the necessity for a provision nullifying or voiding a writing in the future if the parties never intended for that writing to be binding from its inception. In contrast, the clause “the contracts alone shall be * * # binding” evinces an intent not to be then bound. The juxtaposition of these conflicting statements clearly gives rise to a question of fact as to the parties’ intent not properly resolved by a section 45 motion. (Chicago Investment Corp. v. Dolins (1981), 93 Ill. App. 3d 971, 418 N.E.2d 59.) Accordingly, the trial court erred in dismissing the complaint on this basis. We therefore must consider an issue not reached by the trial court: whether the action is barred by the Statute of Frauds. Ill. Rev. Stat. 1979, ch. 59, par. 2.

Section 2 of that statute provides in pertinent part:

“No action shall be brought to charge any person upon any contract for the sale of lands ***** unless such contract or some memorandum or note thereof shall be in writing, and signed by the party to be charged therewith, or some other person thereunto by him lawfully authorized in writing, signed by such party.”

In this regard, defendants initially contend that specific performance of the letter of intent is precluded by the omission of essential terms from the writing.

Unlike a section 45 motion, a section 48 motion may be based on facts extraneous to the pleading and if “the grounds do not appear on the face of the pleading attacked the motion shall be supported by affidavit.” (Ill. Rev. Stat. 1979, ch. 110, par. 48(1).) Like a section 45 motion, however, a section 48 motion concedes the truth of the allegations in the complaint. (Kirk v. Financial Security Life Insurance Co. (1977), 54 Ill. App. 3d 192, 369 N.E.2d 340.) Unlike the question whether a condition precedent to contract formation exists, the issue whether a contract for sale of land is unenforceable due to absence of material terms from the writing is properly raised by a section 48 motion since such a contention does not contravene the allegations of the complaint. To be specifically enforceable, a contract for the sale of the land must contain in writing the essential contract terms such as the names of the vendor and vendee, the price, the terms and conditions of the sale. (Chicago Investment Corp. v. Dolins.) A contract which recites the aggregate purchase price of more than one parcel of land is specifically enforceable. Chicago Investment Corp. v. Dolins.

The present letter of intent does not lack material contract terms. The names of both the vendor and vendee are listed. Defendants maintain, however, that the omission of the following essential terms from the writing precludes specific performance: the condition that the sale of the property would be subject to the approval of a majority of the limited partners of each limited partnership; the allocation of the stated purchase price and cash down payment for both parcels of real estate between each parcel; and the amount of purchase money mortgage on each parcel. The first alleged omission cannot be resolved by way of motion. The complaint recites that a binding contract was formed between the parties upon the execution of the letter of intent. Whether there in fact existed a condition precedent to contract formation which was wholly omitted from the writing is a question of ultimate fact which must be ascertained by a trial on the merits and not by way of a motion to dismiss. The failure to allocate the price and cash down payment of each of the two parcels at issue does not render the contract indefinite since the total price and cash down payment are indicated. (Chicago Investment Corp. v. Dolins.) Nor does the absence of a provision in the letter of intent for a purchase money mortgage render it unenforceable. The writing clearly provides the details of the terms and conditions of the sale. In addition to the aggregate cash down payment and purchase price, the letter of intent states that existing mortgages will be assumed by the purchaser. The amounts of these mortgages and terms of payments are detailed. The balance owed on the property is to be paid by interest-only payments of 7 percent quarterly with the principal balance due January 4, 1986. The agreement’s silence as to any mortgage simply precludes plaintiff from introducing any evidence as to a parol agreement pertaining to a mortgage. (Kendall v. Kendall (1978), 71 Ill. 2d 374, 375 N.E.2d 1280.) The failure to provide for a mortgage on the property does not render the agreement indefinite. Defendants’ reliance upon the holding in Sweeting v. Campbell (1956), 8 Ill. 2d 54, 132 N.E.2d 523, is misplaced. In that case, the writing included a provision for a mortgage but failed to indicate a maturity date. Under those facts, the court appropriately held that the writing was indefinite. The present writing simply does not provide for any purchase money mortgage.

Defendants next maintain that the Statute of Frauds bars the action since the general partner, Christoph, lacked the requisite written authority to sell the property. At the outset, we reject plaintiff’s argument that defendants have waived the issue. Defendants proposed it in their memorandum in support of their section 48 motion to dismiss, and the issue was presented to the trial court.

Defendants rely primarily upon a provision in the partnership agreements between the partners which restricts the authority of a general partner to convey the partnership property. The restriction provides that the general partner may not sell the real estate without approval of a majority of the limited partners. Plaintiff counters by citing portions of the statutes governing limited and general partnerships in Illinois which confer authority on each partner to bind the partnership in sales of real estate.

Limited partnerships are creatures of statute. (Allen v. Amber Manor Apartments Partnership (1981), 95 Ill. App. 3d 541, 420 N.E.2d 440.) Unlike a general partnership, a limited partnership cannot be created by informal agreement; its existence depends upon compliance with the Uniform Limited Partnership Act. (Ill. Rev. Stat. 1979, ch. 1006½, par. 44 et seq.; Allen v. Amber Manor Apartments Partnership.) A certificate of partnership must be signed by all the partners and filed in the county of the partnership’s principal place of business. (Ill. Rev. Stat. 1979, ch. 106½, par. 45.) The purpose of the certificate is to give notice to third persons “of the essential features of the limited partnership.” (Allen, at 548.) Under the Act, to which the Uniform Partnership Act applies (see Ill. Rev. Stat. 1979, ch. 100½, par. 6), any partner possesses authority to convey real property in the partnership name. (Ill. Rev. Stat. 1979, ch. 106½, par. 10(1).) Each partner is agent of the partnership and, when acting in furtherance of partnership business, he binds the entire partnership unless he in fact lacks authority and the third person with whom he deals has knowledge of his restricted authority. (Ill. Rev. Stat. 1979, ch. 106½, par. 9(1).) Where the sale of the realty is not apparently in furtherance of partnership business, however, a partner may not bind the partnership to such a sale “unless authorized by the other partners.” Ill. Rev. Stat. 1979, ch. 106½, par. 9(2).

We believe- that a certificate of limited partnership necessarily incorporates the terms of the statutes which govern its existence, and that the signatures of the partners on the certificate constitute written assent to the provisions thus incorporated. Hence, where a sale of real estate is transacted by a partner for “apparently carrying on in the usual way” partnership business, the certificate of partnership is a sufficient written authorization of agency under the Statute of Frauds, unless the party in fact lacks authority and the third party knows it. Similarly, since the partners by their signatures on the certificate agree to the terms of the statutes, a sale by a partner outside the usual course of the partnership business but which in some manner has been authorized by the other partners also binds the partnership. The Statute of Frauds is again satisfied by the signing of the certificate.

Applying these principles to the present case, we hold that issues of fact exist which require a trial. The first issue of fact in this regard is whether the sale of the subject real estate was an act “apparently carrying on in the usual way the business of the partnership.” (Ill. Rev. Stat. 1979, ch. 106½, par. 9(1).) The certificates of the limited partnerships state that the nature of each is to “acquire, own and operate certain real estate * * * and the doing of any and all things incidental thereto and any other business related thereto, or rights therefrom.” Partnership Concepts is a developer which is in the business of forming limited partnerships for the acquisition and sale of land, and it formed the two defendant limited partnerships. It is also uncontroverted that the general partner who transacted the letter of intent with plaintiff is a general partner in Partnership Concepts as well as in the limited partnerships. Yet, defendants maintain that the sale of the land was not within the ambit of the partnerships’ usual business. For purposes of section 9(1), however, the issue is not whether the land sale was in fact an ordinary act of the partnerships, but instead, whether the sale was apparently an act in furtherance of the partnership business. The issue of fact must be determined at trial.

The second issue of fact is whether plaintiff had knowledge of the restriction of authority in the partnership agreement. The parties’ affidavits are in conflict, and it is a matter for the trier of fact. Finally, an issue of fact exists as to whether, if the sale occurred outside the scope of the partnerships’ business, the other partners nevertheless authorized the sale. Defendants point to the partnership agreements which expressly restrict the general partners’ authority to sell. Yet, “authorization” within the meaning of section 9(2) need not be in writing (Murray v. Korshak (1964), 52 Ill. App. 2d 119, 201 N.E.2d 737), and it is the terms of section 9 to which the partners in writing assented when signing the certificates. Hence, an issue of fact exists as to whether the other partners authorized Christoph in any manner to sell the subject real estate.

In light of our holding that, under certain facts, the certificates of limited partnership may constitute a sufficient written authorization to satisfy the Statute of Frauds, the cases upon which defendants rely are readily distinguishable since in each there lacked a writing independent of the sales contract. Dineff v. Wernecke (1963), 27 Ill. 2d 476, 190 N.E.2d 308; Volumut v. Bern (1931), 346 Ill. 619, 179 N.E. 84; Flannery v. Marathon Oil Co. (1979), 75 Ill. App. 3d 690, 394 N.E.2d 706.

For the foregoing reasons, the judgment of the circuit court of Cook County is reversed and the cause is remanded for further proceedings consistent with the holdings of this opinion.

Reversed and remanded.

RIZZI, P. J., and WHITE, J., concur.