author: PRESIDING JUSTICE WHITE

text:
    MARSHALL M. ATLAS, Plaintiff-Appellee, v. 7101 PARTNERSHIP et al., Defendants-Appellants.—(Robert A. Holstein, Defendant-Appellee.)
    First District (3rd Division)
    No. 81—1194
    Opinion filed September 15, 1982.

      William Biederman, of Marks, Katz, Randall, Weinberg & Blatt, of Chicago, for appellants.
    Much, Shelist, Freed, Denenberg, Ament & Eiger, P. C., of Chicago (Michael J. Freed, Anthony C. Valiulis, and Kenneth A. Wexler, of counsel), for appellee Marshall M. Atlas.
    Robert A. Holstein, of Chicago, for appellee Robert A. Holstein.
   PRESIDING JUSTICE WHITE

delivered the opinion of the court:

Defendants 7101 Partnership and certain individual defendants appeal from an order of the circuit court of Cook County granting motions to compel arbitration filed by plaintiff, Marshall Atlas, and defendant Robert Holstein and from an order denying their motion to reconsider that order. The issues presented are: (1) whether Atlas waived his right to arbitrate by submitting arbitrable issues to a court for consideration; (2) whether Holstein has the right to compel plaintiff and the other defendants to arbitrate plaintiff’s claim; and (3) whether section 9(3)(e) of the Illinois Uniform Partnership Act (Ill. Rev Stat. 1981, ch. 106½, par. 9(3)(e)) precludes arbitration in this case.

Plaintiff’s amended complaint for injunctive and other relief names as defendants Vernon Schultz, Timothy Hartnett, Robert Holstein, Thomas Danis, Darryl Fohrman, Paul Lurie, Michael Sklar, and 7101 Partnership, an Illinois general partnership. The first count alleges that plaintiff is a real estate broker and was one of the partners in defendant 7101 Partnership; that on June 10, 1975, plaintiff and all of the individual defendants except Schultz formed the partnership for the purpose of acquiring, developing, and managing an office building located at 7101 North Cicero Avenue, Lincolnwood, Illinois; that on September 2, 1980, the partnership entered into a contract to sell the property, its sole asset, for $1,060,000; that section 5.01(b)(ii) of the partnership agreement provides:

<<*** Marshall M. Atlas and Morris S. Rothberg, jointly, shall only receive the following compensation ***:
(b) as real estate brokerage commission:
(ii) Due upon sale of real estate owned by the Partnership, the sum of 5% of sales price. ***”;

that Rothberg has assigned to plaintiff all of his interest in the broker’s commission; that plaintiff was the sole procuring broker for the sale of the property, and no other broker is entitled to a commission with respect thereto; that after the real estate contract was entered into, plaintiff was advised by the partnership that it would not pay him a commission for procuring the sale, but that it intended to pay Schultz and Hartnett a commission in the amount of five percent of the selling price; that in October 1980, the sale was closed and the partnership made a part payment of the five percent commission to Schultz and Hartnett; that the partnership is prepared to pay the balance of the commission to Schultz and Hartnett; that if the contemplated commission is paid to Schultz and Hartnett, such payment would be in violation of the partnership agreement; and that unless the partnership is enjoined from paying the commission to Schultz and Hartnett, plaintiff will be irreparably injured and without an adequate remedy at law. Count two realleges many of the allegations of the first count and further alleges that if the contemplated commission is paid to Schultz and Hartnett, such payment would be in violation of plaintiff’s entitlement to the commission as the sole procuring broker. The third count realleges the allegations of the first count, and further alleges a conspiracy by Schultz and Hartnett to deprive plaintiff of the brokers’ commission due him under the partnership agreement. It is alleged that as a result of their wrongful actions, the partnership has refused to pay plaintiff the commission due him in breach of the partners’ fiduciary obligations to plaintiff. The prayers for relief in each count sought an order preliminarily and permanently enjoining the partnership from paying to Schultz and Hartnett a real estate broker’s commission for the sale; requiring the partnership to set aside and hold from the proceeds received from the sale an amount equal to five percent of the selling price; declaring that plaintiff is the broker and the sole party entitled to a commission regarding the sale; awarding plaintiff judgment against defendants for $53,000, plus costs, interest and attorney fees, and other just relief. The prayer in the third count also sought $150,000 in punitive damages from defendants Hartnett and Schultz.

Earlier, on November 17, 1980, plaintiff had filed a complaint for injunctive and other relief, the allegations and prayers for relief of which were similar to the allegations and prayers for relief in the amended complaint summarized above. Defendant Schultz filed a motion to dismiss the original complaint, and shortly thereafter, plaintiff presented a motion for a preliminary injunction. The trial court entered an order denying plaintiff’s motion for a preliminary injunction and granting plaintiff leave to file an amended complaint. Plaintiff then filed his amended complaint.

Subsequently defendant Holstein entered his appearance and filed a motion to compel arbitration pursuant to the partnership agreement, and plaintiff filed another motion for a preliminary injunction which the trial court also denied.

Following this, plaintiff moved the court for an order compelling arbitration. This motion referred to paragraph 9.02 of the partnership agreement, which provides:

“If any controversy or claim arising out of this Partnership Agreement cannot be settled by the Partners, the controversy or claim shall be settled by arbitration in accordance with the rules of the American Arbitration Association then in effect, and judgment on the award may be entered in any court having jurisdiction.”

The court granted the motions of plaintiff and defendant Holstein to compel arbitration, ordered the parties to arbitrate the dispute and stayed the action pending resolution of the arbitration proceedings. This order specifically stated that there was no just reason to delay the enforcement or appeal from the order. On April 22, 1981, a motion to reconsider was denied and as noted at the outset, it is from these orders that defendants 7101 Partnership, Schultz, Fohrman, Lurie and Sklar appeal.

Appellants contend that the trial court abused its discretion in granting the motion to compel arbitration because plaintiff waived his right to arbitrate by submitting arbitrable issues to that court. We first examine this contention.

In Illinois, arbitration is a favored method of resolving disputes. (Brennan v. Kenwick (1981), 97 Ill. App. 3d 1040, 1042, 425 N.E.2d 439.) Since arbitration is an efficient, relatively inexpensive method of settling disputes, a waiver of a right to arbitrate is not to be lightly inferred. (Brennan v. Kenwick (1981), 97 Ill. App. 3d 1040, 1043.) But the law is well settled that “a contractual right to arbitration may be waived by a party through conduct inconsistent with the arbitration clause, which would thus indicate that he had abandoned his right to avail himself thereof.” (Applicolor, Inc. v. Surface Combustion Corp. (1966), 77 Ill. App. 2d 260, 266-67, 222 N.E.2d 168; Brennan v. Kenwick (1981), 97 Ill. App. 3d 1040, 1042; Gateway Drywall & Decorating, Inc. v. Village Construction Co. (1979), 76 Ill. App. 3d 812, 815, 395 N.E.2d 613.) Applicolor, the leading Illinois case on the question of waiver, has been cited for the proposition that “a defendant’s conduct [amounts to waiver] *** when he admits the existence of a contract for arbitration while submitting issues which are arbitrable under that contract to a court of law for decision.” Brennan v. Kenwick (1981), 97 Ill. App. 3d 1040, 1042-43; Gateway Drywall & Decorating, Inc. v. Village Construction Co. (1979), 76 Ill. App. 3d 812, 816.

Here, in addition to the complaint and amended complaint, plaintiff filed two motions for preliminary injunctions, and the trial court denied both motions. Appellees note that injunctive relief may not be available in arbitration, and therefore contend that these motions were not inconsistent with plaintiff’s right to arbitrate. However, we need not reach this question because we are of the opinion that given the wording of the arbitration clause in the partnership agreement, there was no waiver.

The arbitration clause states that arbitration shall be “in accordance with the rules of the American Arbitration Association then in effect.” And section one of the Commercial Arbitration Rules of the American Arbitration Association provides: “The parties shall be deemed to have made these Rules a part of their arbitration agreement whenever they have provided for arbitration *** under [the American Arbitration Association’s] Rules.” Thus, section 47(a) of those rules is deemed part of the arbitration agreement. That section provides: “No judicial proceedings by a party relating to the subject matter of the arbitration shall be deemed a waiver of the party’s right to arbitrate.” We are of the opinion that since this section of the American Arbitration Association rules was incorporated into the arbitration clause, the limited legal maneuverings of plaintiff in filing complaints and in obtaining rulings on his motions for preliminary injunctions were not inconsistent with that arbitration clause. Therefore, plaintiff has not waived his right to arbitrate.

This conclusion is supported by People ex rel. Delisi Construction Co. v. Board of Education (1975), 26 Ill. App. 3d 893, 326 N.E.2d 55. In that case, the defendant requested that a damages issue be submitted to arbitration, and the plaintiff argued that defendant waived arbitration by submitting the question of the existence of a contract to the court. The appellate court found that there had been no waiver and gave as a reason supporting its conclusion:

«*** ^ arbitration clause provides that arbitrable questions be decided ‘in accordance with the Construction Industry Arbitration Rules of the American Arbitration Association then obtaining unless the parties mutually agree otherwise.’ Section 46 of these *** Rules *** provides *** ‘no judicial proceedings by a party relating to the subject matter of the arbitration shall be deemed a waiver of the party’s right to arbitrate.’
In view thereof, and because there was no mutual agreement by the parties that the Construction Industry Arbitration Rules should not control, we are of the belief that there was no waiver by defendant of the right to arbitrate the question of damages for contractual breach.” (26 Ill. App. 3d 893, 896.)

The waiver language in the rule construed in Delisi is identical with the waiver language in the rule here. Delisi is, therefore, persuasive authority for a conclusion of nonwaiver here.

Even if we were to conclude that plaintiff had waived his right to arbitrate, we are of the opinion that defendant Holstein had the right under the partnership agreement to compel the parties to arbitrate. The parties do not dispute that Holstein did not waive any right that he may have to compel arbitration.

Appellants argue, however, that Holstein cannot compel plaintiff and the other defendants to arbitrate. They rely on Property Management, Ltd. v. Howasa, Inc. (1973), 14 Ill. App. 3d 536, 540, 302 N.E.2d 754, for the proposition that those who are not parties to an arbitration agreement cannot be forced into arbitration. It is appellants’ position that plaintiff’s waiver of the arbitration provision and the other partners’ election not to arbitrate nullifies the arbitration provision as to them. Therefore, according to appellants, the rule stated in Howasa mandates the conclusion that Holstein is without the right to compel plaintiff and the other partners to arbitrate their disputes. The facts of Howasa, however, are in no way similar to the facts of the instant case, and appellants cite no case law requiring the conclusion they seek.

We find appellees’ responses to appellants’ argument more persuasive. They assert that the defendant partners other than Holstein were not nonparties to an arbitration agreement, but were partners bound by the terms of a partnership agreement containing an arbitration clause. Since plaintiff’s claims arise out of the partnership agreement, which was signed by plaintiff and each of the individual defendants, appellees assert that Holstein has the right, under the agreement, to compel all of the partners to resolve plaintiff’s dispute with them by proceeding to arbitration. This position is consistent with the principle that “parties are only bound to arbitrate those issues which by clear language they have agreed to arbitrate.” (Flood v. Country Mutual.Insurance Co. (1968), 41 Ill. 2d 91, 94, 242 N.E.2d 149; Ill. Rev. Stat. 1981, ch. 10, par. 102.) Furthermore, the, result reached here is consistent with the public policy in favor of arbitration.

Lastly, appellants contend section 9(3)(e) of the Illinois Uniform Partnership Act (Ill. Rev. Stat. 1981, ch. 106½, par. 9(3)(e)) prevented both plaintiff and defendant Holstein from submitting plaintiff’s claim against the partnership to arbitration. Section 9(3)(e) provides:

“(3) Unless authorized by the other partners or unless they have abandoned the business, one or more but less than all the partners have no authority to:
* * *
(e) Submit a partnership claim or liability to arbitration or reference.”

Appellees respond that this provision of the Uniform Partnership Act deals with the powers of one or more partners vis-a-vis third parties and does not concern the internal relationship of partners. Thus, they contend that this section is inapplicable to the present dispute. This position finds support in the fact that section 9 is contained within part III of the Uniform Act, which is entitled, “Relations of Partners to Persons Dealing with the Partnership.” See also 5 Am. Jur. 2d Arbitration and Award sec. 66 (1962).

We are of the opinion that section 9(3)(e) of the Uniform Partnership Act did not bar arbitration of the dispute between plaintiff and the partnership and other individual partners. Moreover, if we were to accept appellants’ argument regarding section 9(3)(e), arbitration clauses contained within partnership agreements would be rendered meaningless, since a party to an agreement could prevent arbitration simply by refusing to proceed with arbitration, despite the fact that he or she had previously signed an agreement to arbitrate. Such a result cannot be countenanced.

Accordingly, the judgment of the circuit court of Cook County is affirmed.

Affirmed.

McNAMARA and McGILLICUDDY, JJ., concur.


source: Caselaw Access Project

author: JUSTICE MILLS

license: Public Domain

text:
    RURAL ELECTRIC CONVENIENCE COOPERATIVE CO., Plaintiff-Appellant, v. ILLINOIS COMMERCE COMMISSION et al., Defendants-Appellees.
    Fourth District
    No. 4—82—0026
    Opinion filed September 16, 1982.

      Edward G. Free, of Free & Free, and Jon W. DeMoss, both of Springfield, for appellant.
    William S. Hanley and Gary A. Brown, both of Sorling, Northrup, Hanna, Cullen and Cochran, Ltd., of Springfield, for appellee Central Illinois Public Service Company.
    Tyrone C. Fahner, Attorney General, of Springfield (Allen C. Wesolowski, Assistant Attorney General, of counsel), for appellee Illinois Commerce Commission.
   JUSTICE MILLS

delivered the opinion of the court:

Electric Supplier Act revisited.

This is the tenth chapter in this case.

We now review a classic battle of the experts.

In short — we again affirm.

This litigation began in 1974 when Central Illinois Public Service Company (CIPS) — pursuant to section 7 of the Electric Supplier Act (Ill. Rev. Stat. 1981, ch. 111⅔, par. 407) — served Rural Electric Convenience Cooperative Co. (Rural Electric) with notice that it intended to extend certain of its existing lines to serve Freeman Coal Company’s new mine that was to be constructed in Macoupin County. Pursuant to the same statute, Rural Electric filed a complaint with the Illinois Commerce Commission (Commission) stating that CIPS was not entitled to serve the mine.

Rural Electric and CIPS had previously entered into an agreement that Rural Electric was to provide service to the area where the mine was to be located. The exception to the agreement was that where the new customer’s:

«*** anticipated load during the first year of normal operation will require, as determined in accordance with accepted engineering practices, that the load be supplied through a connection to and/or an extension of an existing as of July 2, 1965, line having a voltage of 34.5 KV or higher, the supplier shall be determined under the Electric Supplier, Act as approved July 2, 1965.”

This agreement was entered into and approved by the Commission pursuant to section 2 of the Electric Supplier Act (Ill. Rev. Stat. 1981, ch. 111⅔, par. 402).

In ruling on Rural Electric’s complaint, the Commission found that the exception to the parties’ agreement applied, that Rural Electric had not been serving customers at the location of the mine on the effective date of the Electric Supplier Act, and that it was in the public interest that CIPS serve the mine. (Ill. Rev. Stat.. 1981, ch. 111⅔, pars. 405, 408.) The circuit court affirmed the Commission, and this court affirmed the circuit court. Rural Electric Convenience Cooperative Co. v. Illinois Commerce Com. (1977), 56 Ill. App. 3d 281, 371 N.E.2d 1143.

Thereafter, the supreme court granted Rural Electric’s petition for leave to appeal, vacated the judgments, set aside the order below, and remanded the cause to the Commission. The basis for the supreme court’s action was that the Commission had failed to give effect to certain language of the parties’ service area agreement. Therefore, the Commission was directed to consider whether accepted engineering practices would require that the new mine be supplied through connection to and/or extension of a 34.5 kilovolt (KV) line which was in existence on July 2, 1965 (the effective date of the Act) rather than any 34.5 KV line. See Rural Electric Convenience Cooperative Co. v. Illinois Commerce Com. (1979), 75 Ill. 2d 142, 387 N.E.2d 670.

The Commission conducted further hearings and received extensive expert testimony on whether accepted engineering practices required that the mine be served by an existing as of July 2, 1965, 34.5 KV or larger line. (There was only one such line in the area of the mine — the one owned by CIPS and through which it proposed to provide service to the mine.) The Commission again decided in favor of CIPS.

On administrative review, the circuit court first reversed and remanded to the Commission for determination of the “first year of normal operation” of the mine. Thereupon, CIPS sought a writ of mandamus in the supreme court. The court declined to issue the writ, but in the exercise of its supervisory jurisdiction, vacated the order of the circuit court and directed the circuit judge to confine his review of the Commission’s order to the scope of the supreme court’s directions to the Commission on remand. The circuit court subsequently affirmed the Commission and Rural Electric prosecutes this appeal.

This hoary litigation has thus been whittled down to a single, precisely formed issue: Did accepted engineering practices require that the mine in question be connected to an existing as of July 2, 1965, 34.5 KV or larger line? The Commission answered affirmatively. And its decision will not be disturbed unless it is contrary to the manifest weight of the evidence. Ill. Rev. Stat. 1981, ch. 111⅔, par. 72; Cox v. Daley (1981), 93 Ill. App. 3d 593, 417 N.E.2d 745.

Such cannot be said of the decision in this case. The Commission hearing was a classic battle of the experts. Rural Electric produced witnesses with impressive credentials who testified that accepted engineering practices did not require that the mine be connected to an existing as of July 2, 1965, 34.5 KV or larger line. The witnesses for CIPS were all CIPS employees whose credentials were perhaps not as elaborate, but they were undoubtedly more familiar with the system in question. They testified that accepted engineering practices did require that the mine be connected to an existing as of July 2, 1965, 34.5 KV or larger line.

Testimony of experts is to be considered in light of their qualifications, the quality of their testimony, and their credibility. (McSwain v. Chicago Transit Authority (1977), 48 Ill. App. 3d 190, 362 N.E.2d 1264.) As we have noted, Rural Electric’s witnesses had outstanding credentials, but CIPS’ were more familiar with the system. As a result, Rural Electric’s experts based their opinions on assumptions and incomplete information, while CIPS’ witnesses testified from a thorough working knowledge of the system. The credibility of CIPS’ witnesses was called into question by the fact that they were testifying for their employer, but it may be assumed that Rural Electric’s experts were not testifying gratis. Thus, it cannot be said that Rural Electric’s witnesses were so superior that it was error to reject their testimony.

It should be noted that the Commission’s original order found CIPS’ 34.5 KV line adequate under section 8 of the Electric Supplier Act. (Ill. Rev. Stat. 1981, ch. 111⅔, par. 408.) This finding was affirmed by this court and the supreme court and is not open to dispute. (See Serbian Eastern Orthodox Diocese v. Milivojevich (1979), 74 Ill. 2d 574, 387 N.E.2d 285.) As such, the Commission’s result was almost inevitable. It is difficult to perceive a line which is adequate for purposes of the Electric Supplier Act but which would not pass muster under the accepted engineering practices standard. We need not reach the issue of whether there are really two separate inquiries, however, because the Commission consistently and correctly found that CIPS’ existing 34.5 KV line sufficed under both standards.

Similarly irrelevant to determination of the issues on this appeal is when the mine’s first year of normal operations actually occurred and how much electricity the mine actually required during that period. On remand, the applicability of the exception to the parties’ service area agreement was to be determined from the perspective of the Commission at the time of its original hearing. Its decision was of necessity based on predictions. Its decision is binding and cannot be disturbed simply because the predictions were not totally accurate. (Milivojevich.) To do so would remove all finality from administrative decisions.

Affirmed.

GREEN, R J., and TRAPP, J., concur.


author: JUSTICE LONDRIGAN JUSTICE TRAPP,

text:
    SHUBRICK T. KOTHE, Ex’r of the Will of Vera A. Shaw, Deceased, Plaintiff-Appellee, v. MARY ANNA JEFFERSON a/k/a Mary Ann Jefferson, Indiv. and as Ex’r of the Will of John H. Jefferson, Deceased, et al., Defendants-Appellants.
    Fourth District
    No. 17281
    Opinion filed September 21, 1982.
    Rehearing denied October 18, 1982.

      TRAPP, J., dissenting.
    Thomas J. Logue, of Glenn & Logue, of Mattoon, for appellant John H. Ryan.
    Ward E. Dillavou, of Dillavou, Overaker & Smith, of Paris, for other appellants.
    William F. Meehling, of Meehling & Rich, of Marshall, for appellee.
   JUSTICE LONDRIGAN

delivered the opinion of the court:

Vera Shaw leased 11 parcels of land, 438.5 acres in all, to John H. Jefferson, February 19, 1959, for the production of oil and gas. Shaw filed a complaint in 1980 seeking to cancel the lease as it applied to 318.5 acres of the leasehold for breach of the implied warranty to develop; she later moved for summary judgment with respect to 120 of the 318.5 acres. The trial judge granted the motion; this appeal has been brought by persons who assert various interests in the 120 acres. Shaw died while the case was pending below, and the executor of her estate was substituted as plaintiff.

The Shaw-Jefferson lease describes 11 parcels of land; the motion for summary judgment, the subject of this appeal, concerns portions of one parcel, specifically the northeast quarter of the northeast quarter and the south half of the northeast quarter of section 4, township 11 north, range 14 west, Clark County (“the summary judgment land”). The 40 acres composing the northwest quarter of the northeast quarter of section 4 — 11—14 are among the 120 acres in the leasehold that the complaint does not seek to affect. The lease specifies a primary term of three years and is to remain in effect for as long as oil, gas, or casing-head gas is produced or oil or gas wells are drilled; the lease contains several provisions regarding its continuation by alternative methods such as payments of cash. The lease gives Shaw a one-eighth royalty. Reserving an overriding royalty, John H. Jefferson and his wife, Mary Ann(a), assigned their interest in the northeast quarter of section 4 to J.L. Cowan May 4,1964.

The plaintiff filed a request for admission of facts regarding assignments made by Cowan of the summary judgment land. The request specifies 21 assignments totalling at least 67/64 fractional working interests of the northeast quarter of the northeast quarter; the interests of two assignees are not specified. The earliest assignment occurred August 17, 1964, and the latest December 14, 1966. The request lists 22 assignments of 50/64 fractional working interests of the south half of the northeast quarter. The earliest of these assignments occurred May 19, 1964, and the latest was on July 23, 1964; half the assignments are not dated. The request also asserts that none of the named assignees have working interests in any other portions of the 438.5-acre leasehold. The plaintiff filed the request September 19, 1980, and because none of the defendants denied or objected to the assertions, they stand admitted under Supreme Court Rule 216(c) (87 Ill. 2d R. 216(c)).

The plaintiff named as defendants in this action “all those who have or may claim a record interest in” the 318.5 acres that the complaint would affect; no one argues that a necessary party has not been joined. The trial court entered four default orders; Jefferson’s assignee, J.L. Cowan, died in 1967, and Cowan’s heirs and assigns were among the casualties of the defaults. None of the defaulted defendants have appealed. The only defendants asserting an interest in the summary judgment land who survived the defaults are the Jefferson heirs: Mary Ann(a) Jefferson, the widow of John H. Jefferson; Pamela Baker Jefferson Powell, the widow of Mary Ann(a) and John H.’s son William T.; and Stewart Jefferson Powell and Elliott Jefferson Powell, the two children of Pamela and William T. John H. Ryan was added as a defendant on the plaintiff’s motion. The Jefferson heirs argue that when Cowan and his assignees failed to develop the land, the working interest reverted to them, which they assigned to Ryan, March 20, 1980, reserving an overriding royalty. Ryan was also assigned their interests, whatever they may be, to seven other parcels listed in the 1959 Shaw-Jefferson lease.

Armed with the default orders and the admitted facts, the plaintiff later moved to cancel the lease with respect to all owners of working interests in the summary judgment land and for summary judgment against the nondefaulting defendants. The plaintiff argued that all those who could assert working interests — namely the Cowan heirs and assigns — had been defaulted and that the nondefaulting defendants had only overriding royalty interests, which cannot exist unless linked to a working interest. The trial judge allowed the motion, cancelling the lease on the 120 acres and granting the plaintiff summary judgment against the defendants.

The defendants’ major contention on appeal is that an oil and gas lease cannot be cancelled with respect to one portion of the leasehold for breach of the implied covenant to develop if other portions of the leasehold have been developed. The plaintiff seeks in effect to divide the implied covenant of development, for the complaint requests cancellation of the lease on only part of the leasehold: 318.5 of the 438.5 acres. A review of the authorities shows that implied covenants in an oil and gas lease should be construed as indivisible unless the lease contains a clause making them divisible.

The leasehold here contains more than one tract, and ownership has been splintered through assignments. The question becomes whether development of some tracts, which the complaint acknowledges, serves as compliance with that covenant on all other tracts; a covenant is indivisible when compliance on one tract is compliance on all, and divisible when compliance is required on each separate tract (R. Hemingway, The Law of Oil and Gas sec. 9.10 (1971)). The better view holds that all covenants in an oil and gas lease are indivisible unless the lease expressly provides otherwise. (3 Summers, The Law of Oil and Gas secs. 513, 516 (1958), citing, among other cases, Worrell v. Parsons (1928), 133 Okla. 61, 271 P. 155, and Hughes v. Cordell (1927), 174 Ark. 757, 296 S.W. 735.) Summers criticizes Standard Oil Co. v. Giller (1931), 183 Ark. 776, 38 S.W.2d 766, the major decision holding that covenants are divisible, for misreading the cases that it cites as ostensible support. The Giller court was aware of its earlier decision in Hughes, for it cited Hughes, but only for a different point and not in its discussion of the interpretation of covenants. Two reasons support the conclusion that covenants are indivisible in the absence of a contrary provision in the lease: conservation of resources— recovery of oil and gas is maximized when wells are placed far apart and extraction is done slowly — and the parties’ expectations. 3 Summers, The Law of Oil and Gas sec. 516 (1958).

An analogous case, Dickerson v. Ray (1960), 20 Ill. 2d 107, 169 N.E.2d 341, supports this result; Dickerson was a suit brought to enforce rights under the habendum clause in a mineral deed. The deed had been executed by the separate owners of two tracts of land, the “north forty” and the “south forty,” and had given the grantee, the plaintiffs’ predecessor in interest, an undivided one-half interest in oil and gas under the two tracts for a set term and after that for as long as oil or gas was produced. Drilling rights were leased, and sometime after the expiration of the primary term of the deed, production ceased on the north forty; production later resumed on that tract under a different lessee. The plaintiffs asserted an interest in both tracts under the mineral deed, but the defendants argued that the cessation of production on the north forty had terminated the plaintiffs’ rights under the deed in that tract. The court held that production on either tract continued the plaintiffs’ undivided interest in both, and the plaintiffs were therefore entitled to their share of the proceeds from the resumed production in the north forty. Although the court did not expressly discuss divisibility, it held in effect that the habendum clause was indivisible. The defendants argued that diversity of ownership of the two tracts required that each be treated separately, but the court rejected that, saying:

“Arising first in decisions relating to oil-and-gas leases, it is the rule of the vast majority that where a number of land owners demise their lands in a single lease, whether contiguous or not, and provide that after a designated period the interest covered by the said instrument will continue for as long as there is production upon said land, production which is sufficient to continue the interest as to any of the land described is sufficient to continue the interest as to all of the land described. [Citations.]” (20 Ill. 2d 107, 113-14, 169 N.E.2d 341, 344.)

Later, the court referred to “the rule that production within the primary term on one of the leased tracts extends the term as to all of the tracts.” (20 Ill. 2d 107, 117, 169 N.E.2d 341, 346.) The habendum clause therefore was indivisible.

We see no reason to reach the opposite result with an implied covenant. That Dickerson involved a mineral deed rather than a lease is of little moment, for in reaching its result the court relied extensively on cases involving oil and gas leases. Another possible distinction is that the diversity of ownership in Dickerson was among the grantors of the deed and here is among the owners of the leasehold. Yet this too does not signify, for the divisibility or indivisibility of covenants does not depend on where diversity of ownership lies.

The plaintiff points out that Elliott v. Pure Oil Co. (1956), 10 Ill. 2d 146, 139 N.E.2d 295, affirmed the trial court’s decree that ordered the lessee of a 20-acre tract to drill a new well within 60 days or risk losing the lease on 10 acres of the tract; the lessee was producing oil on the other 10 acres. The lessee did not argue indivisibility as a bar to the lessor’s action, however, and Elliott does not discuss it. Also, the 10 acres in Elliott were seriously threatened by drainage from neighboring wells, which has not been shown here. Baker v. Collins (1963), 29 Ill. 2d 410, 194 N.E.2d 353, reached the opposite result, but like Elliott did not mention divisibility and indivisibility. In Baker the landowner leased the oil and mineral rights to 210 acres of land and later won cancellation of the lease on 190 acres; the supreme court reversed. The lease, signed in 1941, had a primary term of five years and was to remain in effect as long as oil or gas was produced. In 1949 the parties agreed that the lessee could drill several more wells in the next few years; one of these was producing a half barrel of oil per day at the time of the trial. In 1961 another well was drilled under a farm out. The court based its decision on the lessor’s acquiescence in the lessee’s sporadic drilling activity rather than on the theory that covenants are indivisible. Therefore, the reasoning of Dickerson rather than the results of Baker and Elliott must guide us here.

The plaintiff argues that the attack on the sufficiency of the complaint came too late in the proceedings below and therefore was waived. The defendants questioned the sufficiency of the complaint in opposing the motion for summary judgment, but the trial judge considered the issue waived because they had answered the complaint rather than attack it by motion. We conclude, however, that the defendants adequately raised the question of partial development and indivisibility, for in response to the motion for summary judgment they submitted counteraffidavits showing development of portions of the leasehold. The defendants’ argument may also be interpreted as affirmative matter that bars the action (Brewer v. Stovall (1977), 54 Ill. App. 3d 261, 369 N.E.2d 365). Although such a defense is better presented by motion for dismissal under section 2 — 619(a)(9) of the Code of Civil Procedure (Ill. Rev. Stat. 1981, ch. 110, par. 2— 619(a)(9)) or by motion for summary judgment, we iterate that the plaintiff received adequate notice of this argument. The trial court therefore erred in holding that the issue had been waived.

Given our decision on the question of partial development and the implied covenant to develop, we need not consider the defendants’ remaining arguments.

Although this disposition may leave in doubt the ownership of the leasehold on the summary judgment land, a plaintiff seeking to quiet title “must recover on the strength of his own title” (Reynolds v. Burns (1960), 20 Ill. 2d 179, 193, 170 N.E.2d 122, 130). The default orders entered against the Cowan heirs and assignees did not operate as an admission by the defendants of the complaint’s legal sufficiency. (Chamblin v. Chamblin (1936), 362 Ill. 588, 1 N.E.2d 73.) We therefore reverse the judgment of the trial court.

Reversed.

WEBBER, J., concurs.

JUSTICE TRAPP,

dissenting:

The complaint was filed on January 14, 1980. Service by publication upon the defendants, as nonresidents who claim as heirs of the initial lessee, John Jefferson, was begun January 19, 1980. The clerk of court certifies that he mailed copies of such notice to the Jeffersons at stated addresses on January 28, 1980.

The defendant, Ryan, who claims as assignee of the heirs of John Jefferson procured such assignment on March 20,1980.

Jefferson became a lessee of decedent Shaw on February 19, 1959. On May 4, 1964, Cowan became an assignee of Jefferson as to the land at issue. Cowan died in December 1967. Jefferson died in April 1973.

Despite the innumerable assignments made by Cowan to many persons, defendants allege a reversionary interest passing through the Jefferson heirs who assert that there were oral covenants to develop the assigned lease, so that an interest reverted to Jefferson when Cowan and his assignees failed to develop the leasehold. Nothing in the records suggests that any such claim was asserted in any way by the Jeffersons against Cowan from his death in 1967 until March 20, 1980, after the filing of this complaint, a span of some 12 years.

Assuming, arguendo, that the majority opinion is correct in holding that a development of a portion of the lease is sufficient to bar cancellation of the lease, the reversionary interest alleged to be in Jefferson and Ryan is either bound by the same rule of indivisibility so that the so-called reversion in Jefferson and Ryan cannot operate in their favor while there is production on a remote parcel, or there is, in fact, a failure by the assignees of the working interest to develop oil and gas by reasonable efforts so that the lease should be deemed abandoned and the judgment in favor of the decedent affirmed.

So far as the affidavits filed show, 36V2 barrels of oil have been produced since February 1959, on all of the land originally leased to Jefferson. As to the 120 acres at issue, no attempt has been made to drill in some 21 years. From August 1967 until February 1977, no well was drilled on any of the land in the original lease. The majority opinion asserts that the application of the rule of indivisibility maximizes the recovery of oil and gas and permits the conservation of resources. Upon the facts here the magic of the rule achieves farce.

As the trial court pointed out, Jefferson saw fit to divide the working interest by his assignment to Cowan. The latter, in turn, so assigned the interest to so many individuals that it is reasonable to conclude that it would be impossible to effectively develop the interests.

The majority concludes that the result is mandated by the opinion in Dickerson v. Ray (1960), 20 Ill. 2d 107, 169 N.E.2d 341. In that case, separate owners saw fit to join their respective tracts in one lease, and the opinion found that the language of the lease conclusively showed that the several tracts were treated as a single entity by the respective owners. Under such circumstances, it could be fairly said that the owners should not be permitted to claim that the several tracts were separate and distinct with the end to establish a termination of the lease for non-production.

The reason and justice of that rule are not apparent here, for the lessee has divided the working interest in a single parcel by making partial assignments. He has insulated himself from duties under express and implied covenants of the lease as to the assigned interests. The lessee’s assignees, who theoretically have assumed express and implied covenants of the lease, are, in turn, insulated from any obligations by reason of the theory adopted here. The law should not permit such manipulation to the detriment of others.

Our judgment, which here merely reverses, preserves untouched an immeasurable uncertainty upon the rights as to the 120 acres which began in 1964 in the assignment of Jefferson, and which presumably will continue to exist without a foreseeable end.

It is an egregious fault to apply the doctrine of the indivisibility of the lease to support the gross manipulation by the lessee and the assigns of the lessee. I would affirm the trial court.


author: JUSTICE STOUDER

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JAMES MILLER, Defendant-Appellant.
    Third District
    No. 82—136
    Opinion filed September 20, 1982.
    Robert Agostinelli and Thomas A. Lilien, both of State Appellate Defender’s Office, of Ottawa, for appellant.
    Carl E. Hawkinson, State’s Attorney, of Galesburg (John X. Breslin and Terry A. Mertel, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE STOUDER

delivered the opinion of the court:

The defendant, James Miller, originally pleaded guilty in the circuit court of Knox County to three Class A misdemeanors on November 21, 1979, and was sentenced to three concurrent, maximum one-year terms of probation. On July 7, 1980, the State filed a petition to revoke probation and on January 7, 1981, the circuit court determined that the defendant violated a condition of his probation by possessing a firearm. The court then sentenced him to three consecutive one-year terms of probation. The defendant appealed and this court vacated the consecutive sentencing scheme in People v. Miller (1981), 101 Ill. App. 3d 1200 (Rule 23 order). At resentencing the circuit court again imposed three concurrent, maximum one-year terms of probation on January 18, 1982. The sentences were to have begun on January 30, 1981. On January 22, 1982, before the concurrent terms of probation expired, the defendant moved to be discharged, while at the same time, the State petitioned to revoke probation. The court denied the defendant’s request for discharge and held the State’s petition in abeyance while the defendant appealed.

The defendant points out that, when adding the 71/2-month period preceding the violation of probation and the eight-month period from the date of the consecutive sentencing to his most recent alleged violation of probation, his term of probation has exceeded the one-year maximum sentence prescribed for the Class A misdemeanors to which he initially pleaded guilty. He contends that, following this court’s vacating of the consecutive sentencing, the circuit court, in choosing to impose probation again, was only authorized to impose an approximately 41/2-month term so as not to exceed the one-year maximum sentence limitation. In support of his argument, the defendant relies on section 5 — 6—4(e) of the Unified Code of Corrections which provides that: “If the court finds that the offender has violated a condition at any time prior to expiration or termination of the period, it may continue him on the existing sentence, with or without modifying or enlarging the conditions, or may impose any other sentence that was available under section 5 — 5—3 at the time of initial sentencing.” (Ill. Rev. Stat. 1979, ch. 38, par. 1005 — 6—4(e).) Thus, the defendant concludes, where the sentencing court has originally sentenced the probationer to the maximum term, it has only two sentencing options upon violation of probation: (1) continue him on the same maximum-term sentence, with or without enlarging conditions, or (2) impose another kind of sentencing disposition that was available when the defendant was first sentenced.

We cannot accept the defendant’s postulate that upon revocation of a maximum term of probation, a court choosing to impose probation again must also continue the same term so the total time spent while on probation does not exceed the statutory maximum for the underlying offense. As section 5 — 6—4(e) provides, where a court does not intend to continue the defendant on the original sentence, it may impose any other sentence that was available when he was first sentenced. Contrary to the defendant’s argument, we do not interpret “any other” to restrict by implication the authority of the court to impose a term of probation that in and of itself lies within the statutory range but which when taken with previously served probation increases the term beyond the prescribed maximum. Certainly a court may choose merely to continue the existing term in spite of the violation of probation. (People v. Nowman (1981), 95 Ill. App. 3d 228, 419 N.E.2d 1267.) But the court may impose any length of probation upon revocation that was available originally, regardless of the amount of previously served probation. Thus, where a probationer has completed a substantial portion of his probation and then commits an egregious violation of probation, the court in its discretion may order the maximum term anew to rehabilitate the errant probationer. Were we to accept the defendant’s argument, a court might be more inclined to sentence the defendant to imprisonment since an extended term of probation would be unavailable.

What the defendant actually urges today is for this court to find a mandatory credit for previous probation against any term of probation imposed following revocation. We find no statutory provision which authorizes such credit nor have we found any authority in the case law that so provides. In support of our ruling today, we analogize to section 5 — 6—4(h), which directs that “[t]ime served on probation, conditional discharge or supervision shall be credited by the court against a sentence of imprisonment or periodic imprisonment unless the court orders otherwise.” (Ill. Rev. Stat. 1979, ch. 38, par. 1005— 6 — 4(h).) Likewise, at sentencing following revocation of probation, the court choosing to sentence the defendant to probation again should carefully consider the length of the successfully served probation before imposing the term; if the probation violation does not indicate a readjustment in the length of the original sentence of probation, then the court should continue the sentence without extending the total period of probation beyond the statutory maximum. But, where, as here, the court finds that additional probation is necessary, it may impose any permissible term of probation regardless of whether the probationer will eventually serve more than the statutory maximum.

Accordingly, we affirm the orders of the circuit court of Knox County.

Affirmed.

BARRY, R J., and ALLOY, J., concur.


author: JUSTICE KASSERMAN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. RANDY HOGA, Defendant-Appellant.
    Fifth District
    No. 81—524
    Opinion filed September 20, 1982.

      Marvin Barnes, of Granite City, for appellant.
    Don Weber, State’s Attorney, of Edwardsville (Martin N. Ashley and Debra A. Buchman, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE KASSERMAN

delivered the opinion of the court:

The defendant, Randy Hoga, pleaded guilty before the Honorable Lola Maddox to unlawful use of weapons in violation of section 24— 1(a)(3) of the Criminal Code of 1961 (Ill. Rev. Stat. 1979, ch. 38, par. 24 — 1(a)(3)), and on July 7, 1981, was placed on court supervision. On July 30, 1981, a petition to revoke supervision was filed, alleging that defendant had committed the offense of aggravated assault. On September 25, 1981, notice was sent that a hearing on the petition to revoke supervision was scheduled for October 2, 1981, before the Honorable Thomas Hildebrand. On October 1, 1981, defendant filed a “Perition [sic] and Affidavit for Change of Venue” which alleged in conclusory terms that Judge Hildebrand was prejudiced against defendant and prayed that another judge conduct the hearing. Subsequent to the hearing at which defendant was found by a preponderance of the evidence to have violated supervision and sentenced to 364 days’ imprisonment, the court denied defendant’s motion for change of venue on the basis that a sufficient showing for granting the motion was not made and that the motion was filed prior to defendant’s attorney entering his appearance of record. On appeal, the defendant contends, (1) that the court improperly denied his motion for substitution of judges; (2) that the State failed to prove that he violated supervision; (3) that the charge of violation of supervision does not state an offense; and (4) that the sentence was improper.

In support of his first contention, that the court erred in denying his motion for substitution of judge, the defendant relies upon the provisions of section 114 — 5 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1979, ch. 38, par. 114 — 5). Section 114— 5(a) provides for automatic substitution of judges upon motion of a defendant filed within 10 days after a cause is placed on the trial call of the judge. The courts have uniformly held that this section is not applicable to proceedings to revoke probation. (People v. Malone (1976), 41 Ill. App. 3d 914, 354 N.E.2d 911.) The rationale of Malone is equally applicable to a petition for revocation of supervision; therefore, we conclude that section 114 — 5(a) of the Code does not apply to proceedings to revoke supervision. With respect to section 114 — 5(c) of the Code, providing for a substitution of judge for cause, defendant’s motion was conclusory and failed to state any specific allegations of prejudice, such as when the alleged prejudice of the trial judge arose or when the alleged prejudice came to defendant’s knowledge; therefore, the motion was properly denied. People v. Spurlark (1978), 67 Ill. App. 3d 186, 384 N.E.2d 767.

Next, defendant contends that the evidence does not establish that the aggravated assault occurred on or about “a public way, public property, or public place of accommodation or amusement.” (Ill. Rev. Stat. 1979, ch. 38, par. 12 — 2(a)(9).) The information charged that the offense occurred while defendant was standing on Route 159. At the hearing, Robert Hulsey testified that on July 18, 1981, at 9 a.m. he was visiting his daughter in Collinsville, Illinois, when he stopped at the mailbox. Mr. Hulsey wanted to proceed onto Route 159 when defendant blocked the path. The mailbox is on the property line facing toward Route 159. After Mr. Hulsey went to the mailbox he attempted to get back into his automobile. Defendant then pushed the car door, which hit Mr. Hulsey in the back. Mr. Hulsey was able to get into his automobile and lock the door. Defendant beat on the window and threatened “to get” Mr. Hulsey. Defendant was standing in the gutter of Route 159, a State highway, and blocking the driveway to Mr. Hulsey’s daughter’s business. Defendant was shouting and making threatening gestures. Mr. Hulsey testified without obligation that on one previous occasion, defendant attacked him with an axe. Defendant ceased threatening Mr. Hulsey when Dale Hoga called defendant to the house.

Defendant testified that on July 18, 1981, he and Richard Shane went fishing at Barth’s Lake at 7 a.m. and returned at 3:30 p.m. Barth’s Lake sold defendant a badge and charged defendant a dollar for each of his two fishing poles. Defendant could not remember on which highway the lake was located. Defendant denied threatening or blocking Mr. Hulsey’s path.

Richard Shane testified that on July 18, 1981, he went fishing with defendant. He met defendant at 6:15 a.m. at defendant’s house and returned home at approximately 3:30 p.m. Mr. Shane identified the ticket-badge which Barth’s Lake sold him. Defendant drove; therefore, Mr. Shane was not sure on which highway Barth’s Lake was located. Defendant had one fishing pole, a rod and reel combination.

The court found that the State had not proved that defendant had violated his supervision beyond a reasonable doubt but had proved a violation by a preponderance of the evidence. The court found that the State’s witness was more credible that defendant’s witnesses. In support of that finding the court stated that the badge-tickets did not have a time noted on them, that defendant could have gone fishing after the incident, and that there were conflicts in the testimony of defendant’s witnesses.

In order to establish a violation of supervision, the State must prove the violation by a preponderance of the evidence. (Ill. Rev. Stat. 1979, ch. 38, par. 1005 — 6—4(c).) It is the function of the trier of fact to determine the credibility of the witnesses, the weight to be given to their testimony and the inferences to be drawn from the evidence. (People v. Akis (1976), 63 Ill. 2d 296, 347 N.E.2d 733). Mr. Hulsey testified that defendant was standing in the gutter of State Route 159 while he threatened Mr. Hulsey, who was in his automobile. The evidence was sufficient to establish that Mr. Hulsey was “on or about a public way” at the time he was assaulted and that defendant was, in fact, on the public way. Based on the record on appeal, we conclude that the finding of violation of supervision is not against the manifest weight of the evidence.

Defendant further contends that the charge of violation of supervision does not state an offense. The charge stated:

“[0]n the 18th day of July, 1981, the defendant committed the offense of Aggravated Assault in violation of the Illinois Revised Statutes, Chapter 38, Paragraph 12 — 2, in that he shook his fist at Robert Hulsey and threatened him with bodily harm while said defendant was standing on Route 159 in front of Robert Hulsey’s residence, 81-ECM-773 [sic] thereby placing Robert Hulsey in reasonable apprehension of receiving a battery.”

The charge fails to state that Route 159 is a public way and fails to specify the subsection of section 12 — 2 which defendant was alleged to have violated; however, the allegation in the petition to revoke was not objected to in the trial court. When attacked for the first time on appeal, a complaint is sufficient if it apprised the accused of the precise offense charged with sufficient specificity to prepare his defense and allows pleading a resulting conviction as a bar to future prosecution arising out of the same conduct. (People v. Pujoue (1975), 61 Ill. 2d 335, 335 N.E.2d 437.) When the allegation of violation of supervision is tested against the standard of Pujoue, it can successfully withstand attack for the first time on appeal.

Immediately after revoking supervision,1 the court entered into the sentencing phase of the proceedings. No presentence report was prepared because none was required. (Ill. Rev. Stat. 1979, ch. 38, par. 1005 — 3—1.) In sentencing the defendant, the court stated:

“Now, the question at this point in time becomes one of what to do with the Defendant. Mr. Hoga has pending at this point in time aggravated assault which resulted a hung jury [sic] Tuesday night, 81-CCM-116. He has this pending aggravated assault charge which was the basis for the Petition to Revoke 81-ECM-773, and Mr. Hoga — Randy Hoga has exhibited in his past dealings with this Court an absolute disregard for orders not only of this Court but of every judge in this County who has had occasion to deal with the Hoga family.
There comes a time, boys and girls, when the rule of law must be followed. And there comes a point in time when talking doesn’t do any good. The handwriting, Mr. Hoga, has been on the wall for a long time that you should keep a low profile and not get involved in any of these rather scurrilous activities. But mindless of the constraints imposed upon you by this Court, subtle hints dropped, the fact that you’re already out on appeal bond on the battery case that Judge Ferguson sentenced you on last year, you just don’t seem to get the picture, Mr. Hoga. And I figure that one of two things is going to happen. Eventually you’re going to get the hint or — three things. That’s the outside possibility, get the hint. Or you will go to jail and do some time, file a Notice of Appeal to avoid that, or that you will run out of appeal bond and eventually serve a sentence. And I think the time has come, Mr. Hoga, for you to serve a sentence.
Accordingly, in hopes that it will cause a seize [sic] fire on Vandalia for a couple of blocks in either direction, it’s going to be the sentence of this Court that Randy Hoga be sentenced to D.O.C. Vandalia Division for 364 days. Mittimus to issue instanter. The Court finds no just reason to delay enforcement or appeal of this Order, of course.”

The defendant urges that the court improperly considered the cases pending against him when imposing sentence. The State contends that the trial court was considering these pending charges only in the context of determining whether to sentence defendant to probation. The State further argues that the court is presumed to have disregarded any improper evidence in imposing sentence. While it is true that the court is presumed to have disregarded improper considerations (People v. Grau (1975), 29 Ill. App. 3d 327, 330 N.E.2d 530), that presumption is rebutted by the statements of the court appearing in the record. The tenor of the court’s statements is that defendant’s conduct has been bad and that he has avoided incarceration but that now the time has come to punish defendant as severely as possible. The court refers to the defendant’s disregard of orders of other judges in Madison County; however, there is nothing in the record upon which to base this statement. We further find that the reference to a hung jury has no relevance to the proceedings. None of the “scurrilous activities” to which the court referred involved a felony and only one resulted in a conviction. That the court considered improper factors in sentencing defendant is further evidenced by the fact that defendant received the maximum sentence of 364 days’ imprisonment for the offense charged while there is no evidence in the record concerning the crime for which he was sentenced. In this regard, the trial judge was not familiar with the unlawful-use-of-weapons conviction because he did not accept the plea and there is no evidence in the record indicating that the court was apprised of the details surrounding the charge.

We are not unmindful of the fact that evidence of prior criminal activity of a defendant may be introduced, despite the fact that no prosecution or conviction had resulted from the conduct, if it passes the tests of relevancy and accuracy. Thus, if such evidence is relevant to a determination of a proper sentence, if it appears trustworthy and if defendant is afforded an opportunity to cross-examine the witnesses, it is admissible. (People v. LaPointe (1981), 88 Ill. 2d 482, 431 N.E.2d 344.) However, the rationale of LaPointe is not applicable in the case at bar because no victim or witness testified as to defendant’s “scurrilous activities” or any other misconduct alluded to by the judge when he sentenced defendant. There was testimony by Mr. Hulsey that defendant previously had attacked him with an axe; however, the court made no reference to this event when imposing sentence on defendant. There also was testimony concerning the aggravated assault which led to the revocation of supervision. In this regard, a sentence imposed after the revocation of supervision may not be supported by testimony of the acts leading to revocation except as those acts reflect on defendant’s potential for rehabilitation. The sentence given must be imposed on the basis of the crime for which defendant was convicted. People v. Strickland (1974), 24 Ill. App. 3d 560, 321 N.E.2d 309; People v. Ford (1972), 4 Ill. App. 3d 291, 280 N.E.2d 728.

Finding that the court abused its discretion in considering improper factors (People v. Perruquet (1977), 68 Ill. 2d 149, 368 N.E.2d 882; People v. Cox (1980), 82 Ill. 2d 268, 412 N.E.2d 541), the revocation of supervision is affirmed, the sentence is vacated, and the cause is remanded to the circuit court of Madison County with directions to conduct a new sentencing hearing.

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

JONES and HARRISON, JJ., concur.