text:
    The People ex rel. Henry J. Shelton, Plaintiff-Appellee, v. The City of Chicago et al., Defendants-Appellants.
    (No. 57144;
    First District (4th Division) —
    July 25, 1973.
    Richard L. Curry, Corporation Counsel, of Chicago, (William R. Quinlan and Edmund Hatfield, Assistant Corporation Counsel, and Paul T. Foxgrover, Senior Law Student, of counsel,) for appellants.
    Richard F. McPartlin, of Chicago, for appellee.
   Mr. PRESIDING JUSTICE BURMAN

delivered the opinion of the court:

This is an appeal by the City of Chicago, defendant, from a judgment in the Circuit Court ordering a writ of mandamus to issue commanding the City to grant to Henry J. Shelton, relator, back salary and attendant rights for a period during which he was suspended from his job as a probationary building inspector.

The record reveals that at the time of his suspension, relator was employed as a code enforcement inspector, grade II, in the Department of Buildings. He had taken and passed civil service examinations for both grade I and grade II and was certified on June 1, 1969, as having successfully completed those tests.

On July 7, 1969, Shelton was indicted on charges of official misconduct and perjury. Relator consulted Mr. Duffy, the Deputy Commissioner and attorney for the Department of Buildings, and was advised that it would be impossible for him to return to work until he had cleared himself of the charges. Shelton requested postponement of the suspension until after his vacation, which was scheduled to begin on July 7, but his request was denied. The suspension notice read as follows:

“Dear Mr. Shelton:
You are suspended from your position of Code Enforcement Inspector II in the Department of Buildings for a period of Twenty-nine (29) days effective this date [July 7, 1969], pending further investigation.”

At the time of the suspension, relator was told that if the charges were favorably disposed of, he could return to work at the Department. Nothing was said about his interim salary rights.

On September 8, 1970, after a trial, Shelton was acquitted of the charges of official misconduct and perjury. He applied for reinstatement as a building inspector and on September 18, 1970, was restored to his position as a grade II code enforcement inspector with probation considered served.

On December 30, 1970, Shelton filed the instant action for a writ of mandamus. After a trial, the court found that Shelton was entitled to back pay for the period from August 5, 1969 (which was 30 days after his suspension), to September 18, 1970, including any salary increases and longevity, seniority and vacation increments. The trial court found that Shelton’s lost salary amounted to $11,904.10, and that his outside earnings for the period were $7,034.94, leaving a balance due him of $4,869.16.

On appeal, the defendant City contends (1) that relator’s suspension from his employment as a probationary building inspector while he was under indictment was proper and legal, and that he has no right to back pay during this period for work he did not perform; (2) that the mandamus action is barred by relator’s failure to make a demand on the City for back salary and attendant rights prior to instituting this action, and (3) that the action is also barred by the relator’s laches.

Relator contends (1) that no civil service employee, probationary or otherwise, may be legally suspended without pay in excess of 30 days; (2) that the question of failure to make a demand on the City was not argued in the trial court and cannot be raised for the first time on appeal, and that in any case, a demand would have been futile, and (3) that the action is not barred by laches.

It is undisputed that at the time of the suspension, Shelton was a probationary employee. Such probationary employment in the civil service is provided for by Ill. Rev. Stat. 1969, ch. 24, par. 10 — 1—14, which states that,

“9 9 9 original appointment shall be on probation for a period not to exceed 6 months 9 9 9.”

It is well established that a probationary employee may be discharged or dismissed without a hearing. (Rose v. Civil Service Com., 14 Ill.App.2d 337, 144 N.E.2d 768.) In Rose, the appellate court quoted Dalton v. Darlington, 108 N.Y.S. 626, 628, as follows:

“ ‘The purpose of the probationary period is to enable the appointing officer to determine whether a permanent appointment is desirable. That question is left solely to his judgment, and he has the whole probationary period in which to decide it.’ ” 14 Ill.App. 2d at 341, 144 N.E.2d at 770.

It was further stated in Rose that,

“9 9 9 the statute 9 9 9 is intended to give the head of the department, with the Commission’s consent, the right to exercise a broad authority in determining whether a probationer is the proper person to discharge the duties of his office. Many imponderables which cannot be discovered by an examination enter into such a determination and are, in the nature of the formal litigation now foHowing a contested discharge, difficult, if not impossible, to present as a legal issue. To try out these questions upon a hearing would defeat the purpose of the Act.” 14 Ill.App. 2d at 343-344, 144 N.E.2d at 771.

In the instant case, the Commissioner of buildings could have discharged relator without a hearing, but suspended Shelton instead. It is obvious that Shelton regarded the Department’s action as reasonable under the circumstances. The record shows that relator acquiesced in the decision since he did not return to work until the charges against him were cleared. He did not protest the suspension or institute an action for reinstatement.

Relator relies on Ill. Rev. Stat. 1969, ch. 24, par. 10 — 1—18, which provides that,

“Nothing in this Division I limits the power of any officer to suspend a subordinate for a reasonable period, not exceeding 30 days * *

This sentence, however, must be read in conjunction with the first sentence of the same section, which provides as follows:

“Except as hereinafter provided in this section, no officer or employee in the classified civil service of any municipality who is appointed under the rules and after examination, may be removed or discharged, or suspended for a period of more than 30 days, except for cause upon written charges and after an opportunity to be heal'd in his own defense.” (Emphasis added.)

It is apparent from the statute that the rule concerning suspensions of more than 30 days is applicable only to employees “in the classified civil service.” Moreover, our supreme court has held that an employee is not “in” the classified civil service until the probationary period has expired. Fish v. McGann, 205 Ill. 179, 183, 68 N.E. 761, 763.

This court has recently denied a request for back pay on facts very similar to those in the case at bar. In People ex rel. Heavey v. Fitzgerald, 10 Ill.App.3d 24, 293 N.E.2d 705, Heavey, like Shelton in the instant case, was a building inspector who was suspended when he was indicted on criminal charges. At the time of the suspension, Heavey was told that if the charges were favorably resolved, he would be allowed to return to work. As in the instant case, no mention was made of interim salary rights. After Heavey was accquitted, he went to the Department and asked to be reinstated. Instead, it was suggested that he take a leave of absence. Heavey then instituted a mandamus suit for reinstatement and back pay, from May 8, 1970, the date on which he was suspended, to May 28, 1971, the date on which the defendants were served with process. The trial court ordered Heavey restored to his former position, but denied him back pay except for the 20 day period from the date he requested reinstatement until the date the defendant was served with process. The appellate court affirmed the trial court’s order in all respects. The court emphasized, with respect to the issue of back pay, that Heavey was never told by any of his superiors that he would be paid for the time he was suspended.

The case at bar is strikingly similar on the facts to Heavy. Here too, nothing was said at the time of his suspension about relator’s interim salary rights. The only difference between the two cases is that Heavey’s position was stronger than relators because he was a certified civil service employee.

We have carefully reviewed the authorities cited by relator in support of his position and find that they are distinguishable on the facts from the case at bar. In view of our decision to reverse on the merits, we need not consider the City’s contentions as to laches and failure to make a demand.

Accordingly, the judgment of the Circuit Court will be reversed. Reversed.

ADESKO and DIERINGER, JJ., concur.


source: Caselaw Access Project

author: Mr. PRESIDING JUSTICE BURMAN

license: Public Domain

text:
    Dorothy McNellis, Admr. of the Estate of Charles B. McNellis, Deceased, et al., Plaintiffs-Appellees, v. Combustion Engineering, Inc., et al., Defendants—(Commonwealth Edison Company, Defendant-Appellant.)
    (No. 58145;
    First District (4th Division) —
    July 25, 1973.

      Pretzel, Stouffer, Nolan & Rooney, of Chicago, (Joseph B. Lederleitner, of counsel,) for appellant.
    A. Denison Weaver, of Chicago, for appellees.
   Mr. PRESIDING JUSTICE BURMAN

delivered the opinion of the court:

Dorothy McNellis, individually and as administrator of the estate of Charles B. McNellis, deceased, brought this action in the. Circuit Court of Cook County to recover various damages resulting from fatal injuries sustained by her husband while unloading a piece of equipment from a railroad car at a construction site. The original complaint, filed August 30, 1965, consisted of six counts. Named as defendants were Commonwealth Edison Company, owner of the premises, Combustion Engineering, Inc., the prime contractor, Air Preheater Company, manufacturer of the equipment, and the Elgin, Joliet and Eastern Railway, supplier of the car.

Count I charged all four defendants with negligence in loading the car and in failing to warn the decedent that the equipment as loaded was inherently dangerous. Count II contained substantially the same allegations and sought damages under the family expense statute (Ill. Rev. Stat. 1969, ch. 68, par. 15). Counts III and IV charged the Elgin, Joliet and Eastern with providing a car of improper design for the intended load and with failing to provide adequate fixtures within the car to secure the load. Counts V and VI charged Commonwealth Edison with negligence in permitting Combustion Engineering to perform the unloading in an unsafe manner and in failing to provide the decedent with a safe place in which to work.

On July 11, 1967, an additional count was filed and also designated as Count VI. This count charged Commonwealth Edison and Combustion Engineering with violating certain provisions of the Structural Work Act (Ill. Rev. Stat. 1969, ch. 48, par. 60 et seq.) in that they failed to provide adequate stays and supports to secure the equipment within the car. On October 20, 1970, the day of trial, an amended complaint was filed in which this count was replaced with a similar one, designated Count VII, charging Commonwealth Edison and Combustion Engineering with violating the Structural Work Act in that they failed to provide adequate stays and supports, failed to operate a crane located at the job site in such a way as to prevent the equipment from falling as it was unloaded and wilfully placed the crane in an unsafe and unsuitable manner by failing to attach it to the load. The defendants objected to the filing of the amended complaint on the grounds that it invoked for the first time a Structural Work Act recovery in an action five years old, that it added a new party (Dorothy McNellis individually), that it enlarged the areas of recovery and that the Structural Work Act is an unconstitutional preference to a certain class of persons.

In the early part of the trial, court granted a directed verdict in favor of the Elgin, Joliet and Eastern Railway on Counts III and IV of the amended complaint. At the close of the evidence, it directed a verdict in favor of the defendants on Count II. Following this, the plaintiff withdrew Counts I, V and VI, leaving only count VII to go to the jury. The jury returned a verdict against the plaintiff and in favor of Combustion Engineering. No appeal was taken from this judgment. The jury also returned a verdict in favor of the plaintiff and against Commonwealth Edison and assessed damages at $160,000. Judgment was entered on the verdict and Commonwealth Edison appealed directly to the supreme court, alleging that the constitutionality of the Structural Work Act was in issue. The supreme court transferred the cause to this court for disposition.

The pertinent facts are as follows. In 1961 Commonwealth Edison and Combustion Engineering entered into a written agreement under the terms of which Combustion was to design and fabricate two steam generating units and deliver them to the site of a power plant being constructed by Commonwealth Edison near Joliet, Illinois. The agreement included an option, exercisable by Commonwealth Edison, to require Combustion to perform the additional work of unloading, erecting and finishing the units. Commonwealth Edison exercised this option sometime prior to September, 1963. - The units were to be shipped to the job site in pieces and assembled within the power station building, which was being constructed by another contractor. With the approval of Commonwealth Edison, Combustion subcontracted the task of unloading the various components of the units and erecting them to Power Systems, Inc.

Construction material was brought to the job site by rail. Commonwealth Edison provided a number of temporary sidings to be used by the contractors for unloading and storing such materials. Cars destined for the job site were dropped off on one of the sidings by the Elgin, Joliet and Eastern Railway, then moved to an appropriate location for unloading or storage by the construction crews, who used a device known as a track mobile owned by Commonwealth Edison.

The sidings were located approximately one half mile from the site of the building. Material which arrived at the site ahead of schedule was unloaded and stored in the vicinity of the sidings until needed. It was then reloaded on flatcars or tracks and transported to the building for installation.

In August, 1963, the Air Preheater Company, a division of Combustion Engineering located in Wellsville, New York, loaded two axial seal pedestals into a railroad gondola car for shipment to the job site. The pedestals were components of air preheaters, which, in turn, were part of the steam generating units to be furnished by Combustion. Each pedestal was approximately 115 inches long and weighed 20,000 pounds. In appearance each resembled a curved rectangle. Hanging off of each was a single flat plate approximately twelve feet long. The width of each piece tapered from 139 inches to 70 inches. The two pedestals were loaded in the car paraUel to each other and parallel to the sides of the car. They were secured to the car by “tie rods” which extended from the pedestals through holes in the sides of the car and were capped off with nuts. They were also secured by pieces of scrap steel, which were welded to both the pedestals and the sides and bottom of the car.

On September 3, 1963, a yard crew employed by Power Systems undertook to unload the pedestals from the car. The crew consisted of Ray Suska, the foreman, James Chaney, Charles McNellis and an unidentified man. All of the men were journeyman boilermakers and had unloaded similar equipment before. Prior to unloading the four men examined the pedestals to determine the best method of removing them. In the vicinity of the car were two cranes having lifting capacities of 30 and 50 tons respectively. Operators were assigned to both cranes. Both were in good operating condition and neither was being used on any other job. They considered attaching a line from one of the cranes and taking a strain on it prior to cutting loose the scrap which held the pedestals in place. However, the three crew members decided that the “braces would hold” and that they would go ahead without the cranes. This was the decision of the foreman as well.

Chaney and McNeUis climbed into the car and began cutting the plates with a torch. Chaney did the actual cutting while McNellis kept the hose straight and held the torch as Chaney moved around the load. Four pieces of scrap held the load to the car. When Chaney cut the fourth plate, the pedestals fell, pinning McNellis to the side of the car. The crew righted the plate with the 50 ton crane and freed McNellis, but he died six weeks later as a result of his injuries.

On appeal Commonwealth Edison contends the following:

1. that the classification of employees granted or denied benefits by the Structural Work Act is not related to work that is either “structural” or “extra hazardous” and is so vague and arbitrary as to render the statute unconstitutional;

2. that the verdict is against the manifest weight of the evidence;

3. that the court should have directed a verdict for the defendants;

4. that the verdict is excessive.

We direct our attention first to the constitutional arguments. Commonwealth Edison contends that the trial court’s ruling that the Strucural Work Act is constitutional “is prejudicially erroneous because the act * * * is special legislation effecting a classification scheme bearing no discernible relationship to the realities of life, in violation of Section 22 of Article IV of the Illinois Constitution and the due process and equal protection clauses of the U.S. Constitution, Amendment 14, Sec. 1.” This is based upon the assertions that the statute as drafted provides special benefits to men engaged in the erection of buildings, but does not provide any equivalent rights to men who are engaged in other occupations which are equally hazardous and that the trial court extended the coverage of the statute to work that is neither structural in nature nor extra hazardous.

Initially we agree with Commonwealth Edison that these grounds go beyond those raised and passed upon by the supreme court in Kennedy v. Shell Oil Co., 13 Ill.2d 431. We also agree that a decision sustaining the constitutionality of a statute is not decisive of its validity against subsequent attacks upon different grounds. Grasse v. Dealer’s Transport Co., 412 Ill. 179.

The constitutionality of the Structural Work Act was attacked on the ground that it is special legislation in Claffy v. Chicago Dock Co., 249 Ill. 210. The Illinois Supreme Court upheld its validity, stating that it represented a proper exercise of police power by the legislature. In Chicago Dock Co. v. Fraley, 228 U.S. 680, the United States Supreme Court considered an appeal from the Illinois court’s decision in Claffy. There the appellant again argued that the classifications set up by the statute were arbitrary, stating that “in a case like this use cannot be made the test. Danger is the thing.” In affirming, the Supreme Court said:

“That danger is the test may be conceded, but there may be degrees of it, and a difference in degree may justify classification. * * # The legislation cannot be judged by abstract or theoretical comparisons. It must be presumed that it was induced by actual experience * * *. If it be granted that the legislative judgment be disputable or crude, it is notwithstanding not subject to judicial review. We have said many times that the crudities or even the injustice of state laws are not redressed by the Fourteenth Amendment.” 228 U.S. at 686.

In both Chicago Dock Co. cases the arguments of the appellant were directed to section 7 of the Structural Work Act of 1907 (Laws of 1907, p. 312) which provided that the shafts of elevators or hoisting machines used in the construction of buildings (but not in their repairing, alteration or removal, hence the appellant’s argument) should be protected by barricades. However, the principles enunciated in both decisions are broad enough to extend to the argument made by Commonwealth Edison in the present case. The appellant’s contention in Fraley that the test should be one of danger and not use is precisely the argument employed by Commonwealth Edison in its assertion that the hazard involved in the occupation is the only rational basis for a classification and not the occupation itself.

In such cases there is a presumption that the classification established by the legislature are based upon actual experience. (Fraley v. Chicago Dock Co., 228 U.S. 680, 686.) The circumstance that the legislature has not chosen to deal with the entire field of permissible legislation in one act does not violate the constitution. (Fraley, p. 687.) It is well known that the erection, repair and alteration of buildings and structures is a dangerous occupation. This is amply demonstrated by the myriad of cases which have arisen under the provisions of the Structural Work Act since its enactment. Therefore we cannot agree with Commonwealth Edison that the legislative classification conferring special benefits upon men engaged in this occupation bears no relationship to the realities of life. That the legislative did not provide for all men engaged in occupations which involve some degree of danger does not render the act invalid.

Commonwealth Edison also argues that unloading a railroad car is not per se structural work or work that is extra hazardous. It contends that by extending the benefits of the act to persons engaged in such work the trial court has established a classification of persons within or without the act that is so vague and arbitrary as to deny it due process of law.

It appears to us that this argument is similar to that made in Kennedy v. Shell Oil Co., 13 Ill.2d 431. There the appellants argued that section 1 of the Structural Work Act, which provides that all scaffolds shall be erected in a safe and suitable manner, was vague and incomplete and denied them due process of law because it did not define clearly what constitutes a safe and suitable scaffold. In rejecting this argument the court pointed out that the great variety of construction sites and working conditions made it impossible for the legislature to define in detail what should be a proper scaffold in all situations. What might be proper for one type of job would be improper for another. The court further pointed out that the constitution does not prevent the legislature from dealing with such a problem and that to establish the principle that whatever the legislature may do, it must do in every detail or not at all would virtually destroy the process of government.

The same considerations apply to the present case. Many different jobs are engaged in by men whose general occupation is the erection of buildings and structures. For the legislature to have attempted to define all of them in detail would have been a difficult and pointless undertaking. The purpose of the Structural Work Act is to prevent injuries to persons employed in dangerous and extra hazardous work. (Bounougias v. Republic Steel Corp., 277 F.2d 726), and the act must be construed liberally in order to carry out its purpose. Gannon v. Chicago, M., St. P. & P. Ry., 22 Ill.2d 305.

With this in mind we think it necessary to examine the trial court’s conclusion that the work being done by McNellis at the time of the occurrence was a Structural Work Act activity. We concede that there is nothing inherent in the act of unloading a railroad car which would cause it to fall within the purview of the act. However, as indicated above, we believe that the proper approach to whether it should in a particular case is to evaluate the facts of that case. After reviewing the facts of the present case we conclude that McNellis was entitled to the protection of the act at the time that he sustained his fatal injuries.

The written agreement between Commonwealth Edison and Combustion Engineering provided that Combustion should “unload, store and/ or remove from storage, erect and finish in a workmanlike manner * * * air heaters * * This duty was delegated to the subcontractor, Power Systems, Inc., which performed the actual work. It is clear that all parties involved understod that Power Systems assumed the general task of erecting the generators within the power station and that this would necessitate the incidental tasks of unloading and storage. Thus it may be said that McNellis, as an employee of Power Systems, was engaged in the overall occupation of erecting the steam generating units at the time of the incident which resulted in his death. That he was engaged in the specific task of unloading some parts of the structure later to be erected is immaterial.

Commonwealth Edison places great emphasis on the fact that the area in which the unloading was done was located approximately one-half mile from the building and also that the axial seal pedestals were not actually installed until some time after they were unloaded. This apparently is an attempt to isolate the act of unloading and remove it in time and space from the act of erecting the units. However, we believe that this emphasis is misplaced. It is apparent from the record that the power generating facility was a unique structure and that the circumstances of its construction, as well as the size and nature of some of its components, dictated that unloading be performed some distance from the actual building. In addition, we note that the written agreement itself defined the premises as the place where the work was to be done, including all places contiguous thereto and in the vicinity thereof where materials were stored or kept, and we believe that the record fairly demonstrates that the unloading in question was an integral part of the entire operation of erecting the generating units. When it is viewed in this manner, the time and place at which it occurred are of little significance.

It is common knowledge that construction materials do not appear on a job site of their own accord, but must be transported there and unloaded before they may be incorporated into the structure being built. We believe that the legislature in drafting the Structural Work Act realized that of necessity some work done on and around structures would involve the unloading of construction materials. Therefore to place such activity within the coverage of the act does not stretch it beyond foreseeable limits.

Commonwealth Edison also likens the axial seal pedestals to a lathe, drill press or other piece of plant equipment and urges that if we find that unloading the pedestals was a Structural Work Act activity we shall be required in the future to extend the benefits of the act to any person injured while unloading merely a piece of equipment. We are not so persuaded. We perceive a fundamental difference between the examples cited and the present case. The record establishes that the unloading being performed by McNellis was a hazardous operation. The pedestals were large and extremely heavy. They were irregularly shaped and were loaded in such a way as to make them unstable and unwieldy to handle. It should have been apparent to all concerned that there existed a strong potential of serious injury or death if the unloading were done improperly.

We conclude that the trial comt was correct in finding that McNeillis was engaged in a Structural Work Act activity at the time of the occurrence and we so hold. We conclude further that the trial court’s application of the statute to the present case does not result in a classification of persons entitled to receive the benefits of the act that is so vague and arbitrary as to amount to a denial of due process of law.

Having concluded that the act is constitutional we direct our attention to the contention that the court erred in refusing to direct a verdict in favor of Commonwealth Edison. With respect to this, Commonwealth Edison argues that the evidence most favorable to the plaintiff demonstrates that the work engaged in by McNellis at the time of the occurrence was not a Structural Work Act activity and that it did nothing over and above engaging an independent contractor who was in charge of the work.

In Pedrick v. Peoria and Eastern R.R. Co., 37 Ill.2d 494, our supreme court set forth the standard to be followed in granting directed verdicts:

“In our judgment verdicts ought to be directed * * * only in those cases in which all of the evidence, when viewed in its aspect most favorable to the opponent, so overwhelmingly favors movant that no contrary verdict based on that evidence could ever stand.” 37 Ill.2d at 510.

Our discussion which follows, of Commonwealth Edison’s contention that the verdict is against the manifest weight of the evidence applies with equal force here. The record is replete with evidence which, taken in the light most favorable to the plaintiff, supports the jury’s findings that McNellis was engaged in a Structural Work Act activity at the time of the occurrence, that Commonwealth' Edison was in charge of the work and that it violated the provisions of the act.

Commonwealth Edison also relies upon Crafton v. Lester B. Knight & Assoc., Inc., 46 Ill.2d 533, wherein the court found as a matter of law that the Structural Work Act did not apply and that the trial court should have directed a verdict in favor of the defendants. It argues that the facts in Crafton are indistinguishable from those in the present case. We disagree. In Crafton the plaintiff was working with two other iron workers moving structural steel from a rail siding to the site of the actual construction. They were using a tractor equipped with a thirty foot side-boom hoist, which was being operated by an operating engineer. The tractor was used exclusively to haul structural steel from the siding and storage area to the site of the building several hundred yards away. The area between the storage yard and the place of erection was covered with mud ranging in depth from six inches to two feet. The plaintiff and his fellow iron workers tied a bundle of steel to the cable hoist which was attached to the tractor. The plaintiff then climbed up on the tractor as he usually did to ride to the building site. As he did so, the tractor lurched and he was injured. After reviewing the record the court concluded as a matter of law that the plaintiff’s injuries resulted from .the lurching of the tractor.rather than the operation of the hoist.

As indicated above, the evidence in the present case is such that we cannot say as a matter of law that McNellis’s injuries were unrelated to Commonwealth Edison’s failure to insure that the cranes were properly attached and operated so as to prevent the load from falling. For this reason the present case is distinguishable from Crafton and we find no merit in the contention that the trial court should have directed a verdict for tire defendants.

We direct our attention next to the contention that the verdict is against the manifest weight of the evidence. The Structural Work Act was intended to place full responsibility for employee injuries upon the person in charge of the work who wilfully violates the provisions of the act. (Bryntesen v. Carroll Const. Co., 27 Ill.2d 566.) After reviewing the record we believe that there is sufficient evidence for the jury to have found that these conditions were met.

The agreement between Commonwealth Edison and Combustion provided, among other things, that Combustions personnel should consult with representatives of Commonwealth Edison as to the method to be used in unloading and bringing the equipment into the building for erection and that Combustion should comply with the provisions of the Structural Work Act and carry on the work in a proper and safe manner. In the event that Commonwealth Edison’s engineers concluded that the work was not being carried on in a safe manner the agreement gave them the right to order the work stopped. Commonwealth Edison retained the right to make changes in the scope of the work at its discretion and to approve all subcontractors. These provisions were incorporated by reference into the subcontract between Combustion and Power Systems. Commonwealth Edison also had the right to direct the contractor or any subcontractor to remove any employee which Commonwealth Edison designated as unfit or unskilled.

Leo Burke, one of Commonwealth Edison’s engineers, testified that there were between seven and eight Commonwealth Edison employees on the job site during the course of construction. George Gandsey, an employee of Power Systems, testified that there were as many as fourteen to sixteen Commonwealth Edison people present on the site. Burke testified that it was the function of the Commonwealth Edison employees to make inspections of the work in progress. Burke acknowledged that he had the right to stop the work of any contractor if it was being carried on in an unsafe manner.

The foregoing contractual provisions, as well as the activity of Commonwealth Edison during the course of construction, are similar to those outlined in Sola v. City of Chicago, 82 Ill.App.2d 266. There the defendant owner argued that it was not in charge of the work in that it had merely hired an independent contractor. The court held that whether the defendant was in charge of the work was a question for the jury, stating:

“In this case the contract for construction gave defendant the right to approve all safety facilities and the right to require changes or modifications in scheduling, methods, structures, and equipment used (these may be changed for safety purposes). Defendant had an engineer on the job at all times who worked closely with the contractor’s crew, and who could alter the procedures by communicating with the crew foreman, although the engineer could not direct the workers himself. In light of the foregoing cases,- these circumstances are sufficient to require a jury determination of whether defendant was in charge of the work involved in the accident.” 82 Ill.App.2d at 273-74.

There is ample evidence in the record to support the jury’s finding that Commonwealth Edison was in charge of the work at the time of the occurrence.

Section 1 of the act provides that “[a]ll # e cranes * * * erected or constructed by any person, firm or corporation in this State for the use in the erection * * * of any * * # building * * * or other structure, shall be erected and constructed, in a safe, suitable and proper manner, and shall be so erected and constructed, placed and operated as to give proper and adequate protection to the life and limb of any person or persons employed or engaged thereon * * (Ill. Rev. Stat. 1969, ch. 48, par. 60.) In the present case it is undisputed that there were two large cranes in the vicinity of the car which Mc-Nellis was helping to unload. These cranes were in good operating condition and had operators assigned to them. Their obvious purpose was to unload heavy objects such as the axial seal pedestals, and they had been used in this way earlier in the day on September 3. George Gandsey, the field superintendent for Power Systems, Inc., testified that in his opinion the proper way for the crew to have removed the pedestals would have been to attach a line from one of the cranes to them and take a strain on it prior to cutting the bracing loose. This would have held the pieces upright as the braces were cut. In our opinion this was sufficient for the jury to have found that if the cranes had been properly utilized to support the pedestals as the braces were cut they would not have toppled. Further the jury could have found that the failure to attach one of the lines to the pedestals and to operate the crane in such a way as to prevent the pedestals from falling was as much a violation of the act as if the crane had been attached and the cable had snapped causing the pedestal to fall. As stated in Louis v. Barenfanger, 39 Ill.2d 445:

“From a realistic viewpoint, if the failure to provide scaffolding would not be actionable under this statute, then every person to whom the Act was directed could defeat its purpose by simply failing to provide a scaffold, stays or supports.” 39 I11.2d at 448-49.

Finally we consider the contention that the verdict is excessive. Commonwealth Edison brings to our attention two cases from other jurisdictions which are similar to the one presently before us and in which lower verdicts were returned. It argues by comparison that the verdict in the present case is excessive and represents a sympathy assessment. We do not believe that the propriety of a verdict can be determined from a comparison with other cases. Each case must be considered

on its own facts, and a determination of the amount of the plaintiff’s damage is peculiarly within the province of the jury. Lau v. West Towns Bus Co., 16 Ill.2d 442. As we said in Scully v. Otis Elevator Co., 2 Ill. App.3d 185:

“[T]he question is whether reasonable men might differ in their answers to the question of the damages; we cannot substitute our judgment for that of the jury * * 2 Ill.App.3d at 201.

In the present case, considerable evidence was presented as to McNellis’s earning potential and habits of thrift and industry. This was sufficient for the jury to have assessed the damage to his widow and children at $160,000, and we cannot say as a matter of law that this figure was the result of passion or prejudice.

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

Affirmed.

ADESKO and DIERINGER, JJ., concur.


author: Mr. JUSTICE LORENZ

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Dorothy Ward et al., Defendants-Appellants.
    (No. 56709;
    First District (5th Division) —
    July 27, 1973.

      James J. Doherty, Public Defender, of Chicago, (Emanuel Logalos and James N. Gramenos, Assistant Public Defenders, of counsel,) for appellants.
    Bernard Carey, State’s Attorney, of Chicago, (Elmer C. Kissane and Patricia C. Bobb, Assistant State’s Attorneys, of counsel,) for the People.
   Mr. JUSTICE LORENZ

delivered the opinion of the court:

Defendants Dorothy Ward (alias Josephine Reed) and Rosemary Brown were found guilty of armed robbery after a bench trial. Following a hearing in aggravation and mitigation, they were sentenced .to three to six years. Defendants then appealed to the Supreme Court which transferred the case here.

Both defendants make the following contentions on appeal: the pretrial identification procedures violated their due process rights; and the trial court’s refusal to allow discovery in regard to a police officer’s notes of an interview with the complaining witness, and in regard to certain police radio logs, was reversible error. Defendant Ward alone contends that the trial court’s refusal to furnish her with funds to hire an expert witness to dispute the authenticity of her signature on a waiver of rights form was reversible error. Defendant Brown alone contends that the trial judge erred in ruling that her counsel’s request for a list of witnesses and statements tolls the 120 day speedy trial rule. Evidence.

Defendants were indicted March 12, 1970, for the armed robbery of a Chicago gas station on December 23, 1969. They had been arrested and incarcerated on December 28, 1969. On March 20, 1970, at arraignment, the Public Defender was appointed to represent defendants and orally moved for discovery of the State’s list of witnesses and “any written confessions or oral admissions that they may have made.” The State requested a week to ten days to comply. The court continued the case until April 8, 1970, and stated, “Motion defendant.” On April 8, 1970, the State filed a written list of witnesses and a list of physical evidence. On May 15, 1970, defendant Brown filed a petition for discharge, alleging that 120 days had passed since December 28, 1969, the date she was placed in custody. The discharge was denied after a hearing. Then defendant Ward made a motion for a handwriting expert to determine the authenticity of her signature on a confession and waiver of rights. After several hearings the motion was denied. Defendants then filed a motion to suppress the identification testimony of all witnesses, which was denied.

Finally, defendants filed a motion to suppress evidence and dismiss indictments. At the hearing on the motion, defendant Ward, testifying on behalf of herself, and Officer Thomas O’Farrell testifying on behalf of the State, both stated that defendants were not violating any law when they were arrested. O’Farrell, a member of the Alsip Police Department, was on duty at approximately 5:00 A.M. on December 28, 1969, when he received a radio communication that a Clark gas station was to be robbed. The officer testified that on December 21, 22, and 24, 1969, he had received dispatches over his police radio that gas stations in nearby suburbs had been robbed. The dispatches in each instance reported that the vehicle involved was a white over gray, 1962 Buick, bearing a certain Illinois license plate number. Proceeding to a Clark station at 3600 West on 127th Street, Officer O’Farrell observed a white over gray, 1962 Buick with the same license plate mentioned in the previous radio dispatches. He radioed his partner, Officer Orlovetz, who immediately joined in following the car. The two officers stopped the car, asked the two occupants (identified in court by the witness as defendants) to get out, informed them that they were being held for investigation of armed ■robbery, and informed them that they had a right to remain silent. Officer O’Farrell observed a revolver lying in the front seat and a black automatic pistol between the seat and the door, and confiscated both.

The trial began on June 18, 1970, with Henry March, the complaining witness, testifying that he was working at a gas station on Chicago’s south side when a 1962 Pontiac pulled into the station. After servicing the car, March went inside the station. One of the occupants in the car then pulled out a gun and ordered March to give her all his money. She then waved to her companion, who came inside and together the two searched the drawers and shelves, taking cash and cartons of cigarettes. At trial March identified defendants Ward and Brown as being the two persons involved in the robbery.

March further testified that on March 30, 1969, Detective Adams phoned March at work, told him a couple of girls had been arrested for robbery in a suburb, and that they fit the description he had given police. Detective Toles visited March at work, showing him seven photographs. One of the pictures showed a front view of defendant Ward with the words “Police Department, Alsip, Illinois” written underneath her chin. This picture and a second one, a side view of Ward, comprised People’s Exhibit No. 2. The third photograph presented a front view of defendant Brown with the identical caption underneath her chin. This shot along with a side view of Brown formed People’s Exhibit No. 3. The remaining three photographs were of three different women.

Just prior to the Grand Jury hearing, Detective Toles was showing the photographs to a friend. Standing very near the detective, March saw the pictures easily and overheard Detective Toles mention the names of defendants as he pointed to each picture. While March was speaking to the State’s Attorney’s stenographer after the hearing, he was again shown the photographs.

During direct examination, the prosecutor showed March People’s Exhibit No. 2, telling him that it purports to be a picture of defendant Ward. The defense attorney objected to this form of questioning. March then testified that during his meeting with Detective Toles, March had identified the person pictured as a participant in the robbery. After being shown People’s Exhibit No. 3, March testified that he had also identified the person pictured, defendant Brown, as a participant in the robbery at the same meeting. The defense attorney objected to all testimony regarding the identification. March also testified that the words “tall” on People’s Exhibit No. 2 and “short” on People’s Exhibit No. 3 were not on the pictures when they were first presented to him during his meeting with Detective Toles.

During cross-examination, March testified that he spoke to several police officers immediately after the robbery and that he noticed one of them taking notes. Defense counsel then requested that the notes be turned over to him. The trial judge denied the request on the grounds that discovery of private notes is not mandatory. Defendants chose not to put forward a defense. Both were convicted of armed robbery and took this appeal.

Opinion.

Defendants were arrested on December 28, 1969, and remained incarcerated without being admitted to bail. On May 15, 1970, defendant Brown filed a petition for discharge pursuant to Ill. Rev. Stat. 1969, ch. 38, sec. 103 — 5, alleging that more than 120 days had passed since her arrest and that she had not yet been brought to trial. Clearly, therefore, defendant Brown was entitled to discharge unless she occasioned or caused the delay of trial. Defendants’ attorney concedes that defendant Ward is not entitled to discharge since she filed a motion for continuance on April 8, 1970, and therefore clearly occasioned the delay of trial. The State contends that Brown did occasion a delay in die trial on March 20, 1969, by reason of her attorney’s requesting a list of witnesses and notice of their statements, which tolled the running of the four-month statutory period and caused it to run anew from that date. If this is so, trial on June 18, 1970, was in apt time. (The time between the May 15 petition for discharge, and June 18 were consumed mostly by hearings on defendants’ motion to suppress evidence, motion for appointment of a handwriting expert, etc.)

In People v. Nunnery (1973), 54 III.2d 372, the trial was delayed beyond the 120 day limit by reason of defendant’s filing a complex motion for discovery. Nunnery was arrested on February 9, 1969, and indicted on May 27, 1969. He was arraigned on June 4, 1969, at which time he filed a 21 paragraph motion for discovery. On June 12, 1969, he moved for a discharge. The trial court allowed the petition and he was discharged. The Appellate Court held that although the delay in the indictment and arraignment could not be attributed to defendant, his filing of the discovery motion on the 115th day started a new 120 day period. On further appeal defendant contended (in the language of the Supreme Court opinion) that the Appellate Court’s decision forced him to elect between his constitutional right to a speedy trial and his right to pretrial discovery, thus depriving him of due process of law; that the record shows that defendant’s motion did not cause any delay, and that the decision served to create an invidious classification of defendant based on wealth, and denied him equal protection of the law. The Supreme Court held that since the requested information could have been produced promptly by the State if it had been ready for trial as it asserted it was, no delay was caused by the defendant, and he was entitled to a discharge.

In this case, we believe Nunnery applies in regard to defendant Brown. Defendant’s motion for a list of witnesses and statements was not the type of motion which would occasion delay which could justly be attributed to defendant upon viewing the case as a whole. Here, 82 days after the arrest, the State could have supplied the requested information relatively easily. (See People v. Scott No. 55782, filed July 19, 1973.) We recognize that courts must be careful to prevent a mockery of justice by technical evasion or by improper discharge under the 120 day rule. (People v. Fosdick (1967), 36 Ill.2d 524, 528-529, 224 N.E.2d 242, 246.) In this regard, of course, we note that defendants must not be permitted to manipulate rights intended for their protection in such a way as to provide an avenue to escape legitimate prosecution, to avoid the necessary and proper consequences of illegal acts, and to injure society as a whole. (People v. Hairston (1970), 46 Ill.2d 348, 263 N.E.2d 840.) We further recognize that the trial courts must determine these matters in the first instance and must, therefore, be accorded some degree of discretion. However, in this particular case, for the reasons we have indicated, judgment as to defendant Brown must be reversed. Therefore, we will confine the remainder of our discussion to those matters affecting defendant Ward.

Defendant Ward’s first contention is that the trial court erred in denying her motion to suppress identification testimony. A favorable ruling on this motion would have precluded the following testimony which was successfully elicited at her trial: (1) testimony concerning March’s identification of defendant Ward’s photographs on December 30, 1969, and (2) March’s in-court identification of Ward. Defendant Ward argues that each of these identifications was induced or tainted by suggestive and improper police procedures, and that to allow testimony regarding each of them was to violate her Fourteenth Amendment right to due process.

A defendant is free to establish, based on the totality of the circumstances, that the identification of the accused was so lacking in fairness as to deprive him of due process. (Stovall v. Denno (1967), 388 U.S. 293.) We agree with defendant that the police procedures used in the case at bar were improper. The use of duplicate photos of each defendant, the marking of the words “Police Department, Alsip, Illinois” on the front view photos of each defendant, and the addition of the words “tall” on the photos of Ward and “short” on the photos of Brown are not procedures condoned by this court. Similarly, the use of a line-up would have been preferable, as the court noted in People v. Holiday (1970), 47 Ill.2d 300, 265 N.E.2d 634.

The court in People v. McMath (1968), 104 Ill.App.2d 302, 313, 244 N.E.2d 330, 335; affirmed (1970), 45 Ill.2d 33, 256 N.E.2d 835, stated:

“If, however, the testimony does establish an unfair pretrial identification confrontation, the subsequent in-court identification may nevertheless be admissible if the State shows, by clear and convincing evidence, that such in-court identification has an independent origin, arising from other uninfluenced observation of the defendant.”

(See also People v. Fox (1971), 48 Ill.2d 239, 269 N.E.2d 720.) Applying the McMath and Fox rulings to the case at bar, we find that March’s in-court identification had an origin independent of the improper police and prosecutorial conduct. It was undisputed that the floodlights and spotlights the station were shining brightly during the entire time the robbery took place. The lights inside the station were on. March observed defendant Ward at a very close distance over the course of 10-15 minutes. She was not wearing a disguise of any sort. March was cross-examined extensively and remained positive and uncontradicted in his testimony regarding the identification. The mere absence of a line-up does not render the identification violative of due process. The positive identification of an accused by one who closely observed him at the time of the crime is not discredited by the lack of a police line-up. (People v. Starling (1971), 131 Ill.App.2d 806, 266 N.E.2d 905.) We hold that since the in-court identification was based on circumstances sufficiently independent of the improper police and prosecutorial procedures, defendant Ward was not deprived of her due process rights.

Ward next contends that the trial court committed reversible error in ruling that a police officer’s notes taken at the original interview of March need not be turned over to the defense for purposes of impeachment. The Illinois Supreme Court in People v. Wolff (1960), 19 Ill.2d 318, 327, 167 N.E.2d 197, 201-202, expressly adopted the Federal rule first announced in Jencks v. United States (1957), 353 U.S. 657, and later made part of a Federal statute (18 U.S.C., sec. 3500):

“Accordingly, we adopt the view that where no privilege exists, and where the relevancy and competency of a statement or report has been established, the trial judge shall order the document delivered directly to the accused for his inspection and use for impeachment purposes. However, if the prosecution claims that any document ordered to be produced contains matter which does not relate to the testimony of the witness sought to be impeached, the trial judge will inspect the document and may, at his discretion, delete unrelated matters before delivery is made to the accused.”

The case of People v. Dennis (1970), 47 Ill.2d 120, 265 N.E.2d 385, with facts identical to the case at bar, demands that we reject defendant’s argument. In Dennis, the complaining witness testified that he had spoken to the police after the crime, but could not testify as to the contents of the notes being taken by the police. The State denied that the report contained statements of the witness. Similarly, in the case at bar, March could not testify as to the contents of the notes taken by the police, and the State has continually denied that the notes contain any statement by March. The record discloses that the State filed a list of evidence in which it denied possessing any witness’ statement. Therefore, we follow the court in Dennis (1970), 47 Ill.2d 120, 129, 265 N.E.2d 385, 390 in holding that:

“In this regard, the defense could have requested the court to conduct a héaring outside the presence of the jury for the purpose of securing the testimony of the officer who made the report. Having failed to establish that the report contained a statement of the complaining witness in his own words or substantially verbatim, defendant was not entitled to its production.”

Ward next contends that the trial court’s granting the State’s motion to quash the subpoena duces tecum for the production of the police radio logs, from which the message giving the police probable cause to arrest defendants came, was reversible error. We need not decide whether the subpoena was properly quashed because the record shows beyond a reasonable doubt that even if it were error to have quashed the subpoena, the error was harmless. (Gilbert v. California (1967), 388 U.S. 263; Chapman v. California (1966), 386 U.S. 18.) In upholding the trial court’s decision to deny the suppression of certain evidence, the Illinois Supreme Court in People v. Kirkwood (1973), 54 Ill.2d 369, found that none of the evidence seized led to the identification of Kirk-wood. Instead the positive and unequivocal identification of Kirkwood was sufficient to support his conviction. Under Kirkwood identification of this defendant by March was sufficient to support the. conviction. We find no reversible error.

Defendant Ward finally contends that the trial court committed reversible error in not allowing her requested funds to procure an expert to dispute the authenticity of her signature on a waiver of rights and confession, and that the court wrongly relied on personal beliefs in deciding the issue. Defendant was not prejudiced even if the court wrongfully refused to allow funds for an expert, or wrongfully relied on personal beliefs, since defendant could not point to any and we could find no confession, written or oral, introduced into evidence or in any way referred to by any witness. Therefore, without deciding the legal issue raised, we find that defendant’s contention is wholly without merit.

For the reasons stated the judgment as to defendant Brown is reversed, and the judgment as to defendant Ward is affirmed.

Reversed in part, affirmed in part.

DRUCKER, P. J., and ENGLISH, J., concur.

       § 103 — 5 provides in part:
      “(a) Every person in custody of this State for an alleged offense shall be tried by the court having jurisdiction within 120 days from the date he was. taken into custody unless delay is occasioned by defendant.”


author: Mr. PRESIDING JUSTICE DRUCKER.

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Harold L. Jackson, Defendant-Appellant.
    (No. 57045;
    First District (5th Division) —
    July 27, 1973.
   Opinion by

Mr. PRESIDING JUSTICE DRUCKER.

James J. Doherty, Public Defender, of Chicago, (Harold A. Cowen and Shelvin Singer, Assistant Public Defenders, of counsel,) for appellant.

Edward V. Hanrahan, State’s Attorney, of Chicago, (Elmer C. Kissane and Terrence McQuigg, Assistant State’s Attorneys, of counsel,) for the People.


author: Mr. JUSTICE ENGLISH

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Vito Lombardi, Defendant-Appellant.
    (No. 57278;
    First District (5th Division) —
    July 27, 1973.

      Gerald W. Getty, Public Defender, of Chicago, (Judith Smith Leland and James J. Doherty, Assistant Public Defenders, of counsel,) for appellant.
    Edward V. Hanrahan, State’s Attorney, of Chicago, (Elmer C. Kissane, Lawrence Morrissey, and Cary Lind, Assistant State’s Attorneys, of counsel,) for the People.
   Mr. JUSTICE ENGLISH

delivered the opinion of the court:

OFFENSES CHARGED.

Conspiracy to commit theft. Ill. Rev. Stat. 1969, ch. 38, par. 8 — 2. Theft. Ill. Rev. Stat. 1969, ch. 38, par. 16 — 1(a)(1).

JUDGMENT.

After a jury trial, defendant was found guilty of both charges and on October 9, 1970, was sentenced on each to six-to-ten-year terms in the penitentiary concurrent with each other and concurrent with a federal sentence of five years for mail fraud imposed on March 31, 1970. CONTENTIONS RAISED ON APPEAL.

1. The indictment for conspiracy was fatally defective by failing to name an object of the conspiracy, placing defendant in peril of double jeopardy, in violation of the fifth and fourteenth amendments of the United States Constitution.

2. The State failed to prove defendant guilty of theft of over $150 beyond a reasonable doubt.

3. Defendant was deprived of a fair trial and due process of law by the conduct of the judge before the jury.

4. The sentencing of defendant for conspiracy to commit theft and theft concurrently was contrary to law.

EVIDENCE.

Donald Basore, for the State:

He was a solicitor for Woodstock, Inc. of Chicago and an originator and sole stockholder of Woodstock, Inc. of Florida. In December, 1969, he opened a bank account for Woodstock, Inc. of Florida at the National Industrial Bank of Miami. After the name of Carmen Freda was removed from the account, he was the only one authorized to sign checks for the company. On December 16, 1969, the account had a balance of less than $2. On that same day, a check was drawn on the account for $2,500,000, payable to Jack Walsh. The check was endorsed by Jack Walsh to Chicago Title & Trust Co. for deposit to Escrow Account #325177. The signature on the check bore the name Donald Basore; however, the witness denied drawing the check. At the time the account was opened, he received 20 blank checks in a small envelope and later received a check book with an undetermined number of checks. He never met Vito Lombardi.

Herbert Rix, for the State:

After being granted immunity pursuant to Ill. Rev. Stat. 1969, ch. 38, par. 106 — 1, he testified as follows:

In June, 1968, he was bookkeeper and general manager for Jindrich Construction Company which was run mainly by Walsh with the help of Carl Verive and defendant. He was advised by Walsh that a division of the company would be established at 5538-40 W. Division Street in Chicago, called Mar-Men Construction Company. During the time he was with Mar-Men Construction Company, no construction work was performed, but in June, 1968, Walsh, Verive, defendant and the witness typed up bills for work allegedly performed by Mar-Men for Certified Grocers of Illinois. The work was actually performed and billed by Jindrich Construction Co. He knew of no Mar-Men payroll. Also, waivers of lien were prepared in the name of Mar-Men and submitted to Certified Grocers. Certified refused to pay on them because the work covered had previously been paid for to John Jindrich of Jindrich Construction Co. All liens and invoices were taken to Certified by Jindrich, Walsh or the witness.

Gale L. Marcus, for the State:

He is an attorney with offices in Chicago. On December 16, 1969, he accompanied defendant to the escrow department at Chicago Title & Trust Co. He received six checks from Chicago Title & Trust Co. and immediately turned two of them over to defendant. After leaving the bank, defendant asked him where the checks could be cashed. As they were passing American National Bank, he suggested to defendant that he open an account there and then cash at least a portion of the checks. One check was payable to A. J. Novelli in the amount of $25,000; the other was payable to defendant Vito Lombardi d/b/a Mar-Men Construction Company in the amount of $15,000. Defendant opened an account by depositing this latter check, and withdrew $1,000 in cash.

On September 22, 1969, defendant, Walsh and Verive met with him in his office and Walsh told him he [Walsh] owed defendant $50,000 for work defendant had done for him.

Matthew Mazzone, for the State:

On December 1, 1969, he accompanied defendant to Chicago Title & Trust Co. to sign as a witness to signatures of defendant and Walsh who defendant said owed him money. He signed two papers that day but did not read them. He had never done any work for Walsh. On December 8, 1969, he returned to Chicago Title with defendant and signed another document with Novelli. He did not read the document.

Anthony J. Novelli, for the State:

He is a real estate broker in Du Page County, Illinois. On December 8, 1969, he met Walsh, defendant, and Matthew Mazzone at Chicago Title where, in the presence of title officers, he signed a document making him the nominee on the escrow account authorizing disbursement of $25,000 to him. On December 16, 1969, defendant gave him a check drawn by Chicago Title & Trust Co. against the escrow account in the amount of $25,000 in payment for a home which defendant purchased from Novelli. Since the home cost only $20,000, he agreed to meet defendant and his wife the next day at the Addison State Bank where he deposited defendant’s check and wrote a check payable to defendant for the $5,000 difference. About a week later, he received a call from the bank informing him that payment on the $25,000 check drawn by Chicago Title had been stopped and that his account was short $4,000. Title to the property was never transferred to defendant, although he lived there for a number of months, made some repairs and some payments on the mortgage until being evicted by Novelli. The Addison Bank took $2500 from his other account to cover the deficiency of $4,000 created by the failure of defendant’s check to clear.

Jack Walsh, for the State:

On November 18, 1969, he was present at Chicago Title & Trust Co. when an escrow agreement was opened. Following the opening, he met with Joe Rocco, Verive and defendant. It was agreed that defendant would withdraw $15,000 and Verive would withdraw $20,000 from the account. Also, Mazzone was to draw out $25,000 for defendant, and another would coUect $40,000 for Verive. Mar-Men was a “paper company” created to invoice for work not actually done, coUect a check in payment, and cash it.

On November 25, 1969, he met with defendant, Verive, and Rocco at Chicago Title and prepared releases for various companies. The releases were presented to Chicago Title and defendant was authorized to withdraw $15,000 from the escrow account.

On December 1, 1969, he went again to Chicago Title and was told by defendant that Mazzone was .coming in that day to sign for $25,000 on the escrow for work he was supposed to have done. A release was prepared for Mazzone and presented to Chicago Title. However, on December 8, 1969, Mazzone signed off the escrow and Novell! signed on.

On the morning of December 15, 1969, he met Rocco at the Howard Johnson Restaurant in ViUa Park, Illinois. From there they went to Tilecrest and typed up a check for $2,500,000, payable to Chicago Title & Trust Company. The signature of Donald Basore was on the check at the time it was typed. They had the check xeroxed and then presented it to Miss Vlasek in the escrow department at Chicago Title. She checked to see if the check was good. When told a corporate resolution was necessary before the bank would accept the corporate check, they decided instead to make out a new one payable to Walsh who would then endorse it to the escrow account. The next day, while driving to Chicago Title, he was so distracted by the $2,500,000 check payable to himself that he ran broadside into a car driven by a Mr. Thompson. After Thompson was taken to a hospital in the ambulance, he went to Action Rubber Stamp Company where a stamp was made which read: “Payable upon proper endorsement, National Industrial Bank of Miami, Florida.” The check was endorsed and given to Miss Vlasek at Chicago Title.

Prior to that time, on September 22, 1969, he signed a statement indicating one of his creditors in the amount of $300,000 was Waukesha Food Products Inc., a company in which his brother had an interest and' by whom he was employed. He also signed on that day a statement indicating defendant was one of his creditors in the amount of $50,000, as was Max Munson in the amount of $70,000, Verive in the amount of $50,000, Addison Bank in the amount of $15,000 and Jim Kemper in the amount of $25,000. He bought two Cadillacs and three Oldsmobiles valued at $29,000 for himself and friends. One hundred thirty-four checks were issued by Chicago Title in payments out of the escrow account.

Caroline Vlasek, for the State:

She had been employed by Chicago Title in the escrow department for nine years. After she received a $2,500,000 check from Walsh on December 16, 1969, she deposited the check and began preparing checks to be drawn on the escrow account. One check was issued to defendant. She did not call the National Industrial Bank of Miami to see if the $2,500,000 check was good. Normally, someone would check to see if the check was valid before disbursement. Before disbursement, Rocco told her that she could go to a local furrier, mention his name, and pick out anything she wanted as soon as the disbursements were made. She never did so. On December 19, 1969, she first learned that the $2,500,000 check had been forged.

OPINION

First, defendant argues that the indictment for conspiracy was fataHy defective for failing to name an object of the conspiracy, placing defendant in peril of double jeopardy, in violation of the 5th and 14th amendments to the United States Constitution.

Count One of the indictment, which charges defendant and others with conspiracy to commit theft, sets forth 15 acts in furtherance of the conspiracy, nine of which specificaHy refer to Chicago Title & Trust Company. Count Five of the indictment, which charges defendant with theft, specifically refers to Chicago Title & Trust Company as the owner of the property defendant intended to take. Defendant maintains that since no victim is named in Count One, the entire indictment is defective, and he faces the threat of a second prosecution for conspiracy. The requirement that an indictment name the person injured is to provide proper identification so that a defense may be prepared, to insure that defendant will not be placed in danger of subsequent prosecution for the same offense and will not be taken by surprise at trial. (People v. Nelson, 17 Ill.2d 509, 162 N.E.2d 390.) When an indictment contains more than one count, the law presumes that the various counts relate to the same transaction unless the contrary appears from the indictment. (See People v. Borrelli, 392 Ill. 481, 489, 64 N.E.2d 719; People v. Tinned, 385 Ill. 537, 53 N.E.2d 427.) Defendant cites no cases which contradict this principle. Thus, when Count Five named Chicago Title & Trust Company as the victim of the theft, in the absence of anything contrary in the indictment, it is presumed that Chicago Title was also the intended victim in Count One which charges defendant with conspiracy to commit the theft. Since defendant was charged with only one count of conspiracy to commit theft and but one count of theft which can be presumed to have arisen out of the same transaction, it can only follow that the victim of the conspiracy was the same as the victim of the theft. With the object of the conspiracy properly established, defendant is placed in no danger of a second prosecution for the same offense.

Next, defendant argues that the State failed to prove him guilty of theft of more than $150 beyond a reasonable doubt. He maintains that there is no evidence that Chicago Title had the total amount of the checks in its account at The First National Bank of Chicago (on which bank its checks were drawn) or that any money was disbursed from its account in payment of the checks. There are two essential reasons why defendant’s assertion is erroneous.

First, on December 16, 1969, Miss Vlasek at Chicago Tile executed and delivered to defendant two checks drawn on the Chicago Title’s escrow account at The First National Bank of Chicago. One of the checks was payable to defendant in the amount of $15,000. Defendant left Chicago Title and immediately opened an account at American National Bank by depositing the check and withdrawing from the bank $1,000 in cash. According to the statute under which defendant was charged (Ill. Rev. Stat. 1969, ch. 38, par. 16 — 1(a)(1)), the theft occurred at the time he exercised unlawful control over the check, that being the time he took the check from Chicago Title. Since proof of value is shown by the fair cash value at the time and place of the theft (People v. Butman, 357 Ill. 506, 192 N.E. 564), in the absence of anything contrary in the record, it can be assumed the check had a value to Chicago Title of $15,000 at the time it was drawn. (See People v. Franklin, 415 Ill. 514, 114 N.E.2d 661.) Furthermore, common sense requires us to take notice of the fact that defendant received $1,000 in cash immediately upon deposit of the check, that fact alone being prima facie evidence of value in excess of $150. See State v. Harrison, 347 Mo. 1230, 152 S.W.2d 161, where failure of the indictment to allege the value of the check was held not fatal to the indictment as the check was presumed to be worth its face value.

Second, American National Bank become a holder in due course of the instrument when it took the properly executed check from defendant, for value, in good faith, and without notice that there was any defense against it or claim to it by any other person. (Ill. Rev. Stat. 1969, ch. 26, par. 3 — 302.) Although the question is not raised, there can be no doubt concerning American National’s good faith, even though they failed to wait until the check had cleared before permitting defendant to withdraw $1,000 from the account opened at time by deposit of the $15,000 check. It is an obvious presumption that a call to Chicago Title at that time would only have confirmed issuance of the check minutes earlier and would have verified its authenticity.

As a holder in due course of an instrument upon which payment was later stopped, American National Bank had the right to recover $1,000 from Chicago Title, the drawer of the instrument. (Ill. Rev. Stat. 1969, ch. 26, pars. 3 — 305, 3 — 413 and 4 — 403, S.H.A. Comment 8. See also Suit & Wells Equipment Co., Inc. v. Citizens National Bank of Southern Maryland, 263 Md. 133, 282 A.2d 109, and Texico State Bank v. Hullinger, 75 Ill.App.2d 212, 220 N.E.2d 248.) Thus, it is clear that on the one check alone Chicago Title’s loss would have been $1,000 and thus in excess of $150.

Next, defendant argues that the conduct of the trial judge deprived defendant of a fair trial and due process of law. Specifically, he maintains that during the early stages of the trial, defendant was prejudiced when the judge addressed the jury as follows:

“The charge against Mr. Vito Lombardi, I will read to you. However, this indictment that I am going to read to you is not an exhibit or evidence. It’s merely the formal charge of the State against Mr. Vito Lombardi, and it’s not a conclusive presumption that he is guilty of these charges. It’s incumbent upon the State of Illinois to prove that this gentleman, Vito Lombardi, was guilty of this indictment that I am to read to you, beyond a reasonable doubt.”

Those counts of the indictment pertaining to defendant were then read to the jury, and the judge continued:

“Let me admonish you again, ladies and gentlemen of the jury, an indictment is not evidence, and it is not proof. The burden is upon the State to prove beyond a reasonable doubt. It’s merely a charge.
# # #
The indictment in this case is not to be considered as any evidence or presumption of guilt against the defendant. It is a mere formal charge necessary to place the defendant upon trial. The defendant under the law is presumed to be innocent of the charge in the indictment, and this presumption remains throughout the trial. And the presumption is in favor of this defendant. Until you have been satisfied by the evidence in the case beyond all reasonable doubt of the guilt of the defendant and the burden of proving the guilt of the defendant beyond all reasonable doubt is on the State, and the law does not require the defendant to prove his innocence.”

Defendant contends that when the judge initially advised the jury that the indictment was “merely the formal charge * * * and it’s

not a conclusive presumption that he is guilty of these charges," he committed reversible error by subtly informing the jury that defendant was presumed guilty although such presumption could be rebutted. In so arguing, defendant overlooks the remainder of the judge’s comments to the jury which we find clearly dispel any possible misapprehension the jury may have had about the presumption of guilt. Although the judge may inadvertently have referred to the indictment as not being a “conclusive presumption,” his preliminary advice to the jury, like the formal instructions at the conclusion of the evidence, must be considered as a whole, and we must note that this clause was phrased in the negative and was followed by the numerous statements quoted above which properly advised the jury of an indictment’s function and that defendant was presumed innocent, which presumption of innocence would remain with him throughout the trial.

Furthermore, at the close of the case, the jury was instructed that the indictment “is not any evidence against the defendant and does not create any inference of guilt.” I.P.I. Criminal #2.02. Also I.P.I. Criminal #2.03 was given which reads:

“The defendant is presumed to be innocent of the charge against him. This presumption remains with him throughout every stage of the trial and during your deliberations on the verdict, and is not overcome unless from all the evidence in the case you are convinced beyond a reasonable doubt that the defendant is guilty.
The State has the burden of proving the guilt of the defendant beyond a reasonable doubt, and this burden remains on the State throughout the case. The defendant is not required to prove his innocence.”

Taken in conjunction with the earlier statements by the judge, we find no prejudice to defendant’s right to a fair trial. A defendant is given the right to a fair trial, not one free from all error. People v. Garner, 91 Ill.App.2d 7, 18, 234 N.E.2d 39.

The third point urged by defendant is alleged to have occurred at the conclusion of the State’s direct examination of Herbert Rix, a State’s witness. At that time, the court asked:

“Mr. Georges [defense counsel], do you wish to proceed with this witness on cross examination or do you want to reserve the right to examine the testimony before the Grand Jury if this witness has testified before the Grand Jury?”

Counsel immediately moved for a mistrial, which motion was denied. Defendant argued then and reasserts now that the judge’s question forced counsel either to impeach the witness with the grand jury minutes or explain why he did not. If no such cross-examination were made, the effect, he argues, would be to enhance the credibility of the witness. In People v. Lowe, 84 Ill.App.2d 435, 228 N.E.2d 563, the only case cited by defendant, the court reversed the conviction where the state’s attorney, in the presence of the jury, turned over to defense counsel documents purporting to be testimony of the complaining witness before the grand jury and a document purporting to be a police report of the witness’ statement, then stated in closing argument that the defense had failed to impeach those statements. Here, no documents were presented to counsel and no further mention was made of impeachment of the witness or the lack of it. Furthermore, the judge’s statement did not affirmatively establish that Rix had in fact testified before the grand jury, but stated only that defense counsel could have time to review the grand jury testimony if, indeed, such testimony had been given. Thus, the case is distinguishable on its facts and it cannot be said here that one isolated and somewhat ambiguous statement by the judge prejudiced in any substantial way defendant’s right to a fair trial. People v. Nilsson, 44 Ill.2d 244, 248, 255 N.E.2d 432, cert. denied 398 U.S. 954, 90 S. Ct. 1881.

Finally, the State concedes that although defendant was properly convicted of theft and conspiracy to commit theft, defendant should have been sentenced for only the substantive offense of theft. We agree. (People v. Radford, 87 Ill.App.2d 308, 232 N.E.2d 100.) In addition, pursuant to motion by defendant, defendant’s sentence for theft is modified by reducing the minimum to three years and four months, in accordance with the currently effective Unified Code of Corrections. (Ill. Rev. Stat., 1972 Supp., ch. 38, par. 1005 — 8—1(c) (4).) As modified, defendant’s conviction for theft is affirmed, and his sentence under the conspiracy charge is vacated.

Sentences vacated in part, modified in part, and affirmed as modified.

DRUCKER, P. J., and LORENZ, J„ concur.

       Pan 16 — 1. “Theft. A person commits theft when he knowingly:
      (a) Obtains or exerts unauthorized control over property of the owner; * * * and
      (1) Intends to deprive the owner permanently of the use or benefit of the property; * * *
      Penalty.
      * * * A person convicted of theft of property from the person or exceeding $150 in value shall be imprisoned in the penitentiary from one to 10 years.”


author: Mr. JUSTICE ABRAHAMSON

text:
    The People ex rel. Nicholas Kish, Petitioner-Defendant-Appellant, v. June Kish, Sheriff of Kendall County, Respondent-Plaintiff-Appellee.
    (No. 71-334;
    Second District —
    August 15, 1973.
    Mel Sloan, of Chicago, for appellant.
    June McCort, of Aurora, for appellee.
   Mr. JUSTICE ABRAHAMSON

delivered the opinion of the court:

This is an appeal (.transferred to this court by the supreme court) from three judgments of the Circuit Court of Kendall County. On July 31st, 1970, an order (in a divorce proceeding) was entered directing defendant to pay $5,500 to the plaintiff as a lump sum in lieu of alimony, $1,350 attorney fees, and the matter was continued to August 31, 1970 for the purpose of allowing defendant time to make payment. On August 31st defendant was adjudged in contempt of court for failure to make such payment and was committed to the Sheriff’s custody in the county jail until he purged himself of contempt.

As to those judgments the appeal is dismissed in view of the fact that defendant’s notice of appeal was filed on January 2, 1971, long after the expiration of the thirty day period prescribed by Supreme Court Rule 303(a). (Ill. Rev. Stat. 1967, ch. 110-A, par. 303(a).) See Werbeck v. Werbeck (1966), 70 Ill.App.2d 279.

The third judgment appealed from was entered on December 16, 1970. As to that order the notice of appeal was timely. By that order the trial court struck an amended petition for habeas corpus filed on that date and quashed the original petition therefor filed earlier pro se by the defendant, without hearing any evidence.

The amended petition recited among other things that the petitioner (defendant in the divorce case) had been imprisoned pursuant to the order of August 31, 1970, finding him guilty of contempt; that the petitioner has no funds or income sufficient to make payment of the sum of $6850, and that the court heard no evidence and made no finding as to the defendant’s ability to do so. The petition further recited that petitioner is not employable because of a permanent disability and that incarceration is physically and mentally unendurable.

Ill. Rev. Stat. 1969, ch. 65, sec. 36, Habeas Corpus Act, provides:

“Any person imprisoned for any contempt of court for the nonperformance of any order or decree for the payment of money, shall be entitled to a writ of habeas corpus, and if it shall appear, on full examination of such person and such witnesses, and other evidence as may be adduced, that he is unable to comply with such order or decree, or to endure the confinement, and that all persons interested in the order or decree have had reasonable notice of the time and place of trial, the court or judge may discharge him from imprisonment, but no such discharge shall operate to release the lien of such order or decree, but the same may be enforced against the property of such person by execution.”

In view of that express provision, the trial court erred in failing to grant the writ and hearing evidence bearing upon the petitioner’s ability to comply with the order for the payment of money or to endure the confinement. Therefore, the judgment of December 16, 1970, is reversed and the cause is remanded with directions to grant the writ of habeas corpus and hear evidence in compliance with section 36 of the Habeas Corpus Act.

Appeal as to judgments entered July 31, 1970, and August 31, 1970, dismissed, and as to judgment entered December 16, 1970, the cause is reversed and remanded.

Dismissed in part; reversed and remanded in part.

GUILD, P. J., and T. MORAN, J., concur.


author: Mr. PRESIDING JUSTICE GUILD.

text:
    Irwin J. Hesley, Jr., Plaintiff-Appellee, v. Ellen D. Hesley, Defendant-Appellant.
    (No. 72-220;
    Second District —
    August 17, 1973.
    Carbary, Carbary & Chapski, of Elgin, for appellant.
    Matthews, Jordan, Dean, Eichmeier & Peterson, of Aurora, for appellee.
   Opinion by

Mr. PRESIDING JUSTICE GUILD.


author: Mr. JUSTICE THOMAS J. MORAN.

text:
    Betty Burhenn, Plaintiff-Appellant, v. Walter A. Kyger et al., Defendants-Appellees.
    (No. 72-103;
    Second District —
    August 21, 1973.
    William J. Sturgeon, of Dixon, for appellant.
    Henry S. Dixon, of Dixon, for appellees.
   Opinion by

Mr. JUSTICE THOMAS J. MORAN.


author: Mr. JUSTICE SIMKINS

text:
    Richard Berry, d/b/a Berco & Associates, Plaintiff-Appellee, v. Blackard Construction Co. et al., Defendants-Appellants—(First Federal Savings and Loan Association of Peoria et al., Defendants.) Blackard Construction Co., Plaintiff-Appellant, v. Richard Berry, d/b/a Berco & Associates, et al., Defendants-Appellees.
    (No. 11951;
    Fourth District —
    August 9, 1973.

      Rehearing denied September 12,1973.

    Wayne E. Armstrong and Jon D. Robinson, of Hull, Armstrong & Campbell, of Decatur, for appellants.
    Samuels, Miller, Schroeder, Jackson & Sly, of Decatur, (Thomas S. Sly and John S. Cobb, of counsel,) for appellees.
   Mr. JUSTICE SIMKINS

delivered the opinion of the court:

This is an appeal from two judgments entered in two cases which were consolidated in trial court, and in which the issues were tried without a jury.

On November 6, 1969, appellant Blackard Construction Co. filed suit against appellee Richard Berry, d/b/a Berco & Associates and Great American Insurance Company (Berry’s surety) alleging that Berry had breached a contract for the construction of certain facilities in Camelot Addition and sought damages for repairs of Berry’s faulty work, the cost of completion of the work following Berry’s refusal to proceed with the job, and consequential damages. As to this suit the trial judge found Blackard Construction Co. guilty of anticipatory breach of the contract and entered judgment in favor of Berry.

On February 13, 1970, the appellee Richard Berry, d/b/a Berco & Associates sued the appellant Blackard Construction Co., Richard Blackard, Yvonne Blackard and others having interests in Camelot Addition, a subdivision in Decatur, Illinois. Berry alleged breach of contract and sought to enforce his rights under the Mechanic’s Lien statute. The trial judge found in Berry’s favor and awarded him a mechanic’s lien in the sum of $20,940.64.

Richard D. Blackard, during the period of time in question, was the sole stockholder and President of Blackard Construction Company. He and his wife Yvonne Blackard originally purchased the land which became Camelot Addition. On June 2, 1969, Blackard and his wife entered into an agreement with Blackard Construction Company providing that all work on Camelot Addition (including the work to be performed by appellee Berry) would be completed by February 1, 1970. Blackard Company was to develop the subdivision, supervise the installation of all improvements and was granted the option to purchase the improved lots and to promote sales. On June 16, 1969, Blackard Company and Berry entered into a contract pursuant to which Berry was to construct sanitary sewers, storm drainage, water mains and alternate streets for the Camelot Addition. The first paragraph of the agreement incorporated, by reference, Standard Specifications for Water and Sewer Main Construction in Illinois, first edition, August 1, 1967, a publication by the Illinois Society of Professional Engineers and other related groups interested in the titled subject. The book contains 152 pages. The contract further provided that “The work * * * shall be completed in 180 work days. * * * Work days shall be determined by the Engineer.” Other pertinent paragraphs provided as follows:

“4. PROGRESS PAYMENT. BLACKARD shall make payment on account of the contract as provided therein as follows:
On or about the 15th day of each month, an amount equal to 90% of the value, based upon the contract price of labor and materials, incorporated in the work up to the last day of the preceding month, as certified to by Warren E. Hagan, as engineer, less the aggregate of previous payments.
5. ACCEPTANCE AND FINAL PAYMENT. Final payment shall be due thirty days after substantial completion of the work, provided the work be then fully completed and the contract fully performed.
Upon receipt of written notice that the work is ready for final inspection and acceptance, the Engineer shall promptly make such inspection and when he finds the work acceptable under the contract and the contract fully performed, he shall promptly issue a final certificate under his own signature, stating that the work provided for in this contract has been completed and is accepted by him under the terms and conditions thereof, and that the entire balance found to be due BERCO, and noted in said final certificate, is due and payable.
Before issuance of final payment BERCO shall submit evidence satisfactory to Warren E. Hagan, Engineer, that all payrolls, material bills, and other indebtedness connected with the work have been paid or otherwise satisfied.”

Berry was to commence work by June 23, 1969. He was paid, pursuant to the above-recited paragraph 4 of the contract, a progress payment of $6,470.28 for work completed through July 1, 1969; he received a progress payment of $16,661.46 for work completed, from July 1, 1969, to August 1, 1989, and a third progress payment in the amount of $37,855.05 for work completed from August 1, 1969, to September 1, 1969. Warren Hagan, engineer for Blackard testified, with reference to the progress payments as follows:

“Q. In connection with this contract, did you on a monthly basis prepare what was called an Engineer’s Payment Estimate?
HAGAN: Yes.
J. And what was meant to be covered by the estimates on a monthly basis?
HAGAN: The estimates were to cover all of the work installed in the project.
Q. Did those estimates reflect whether or not.the work was installed in accordance with the contract?
HAGAN: No, they did not.’”

Hagan then prepared a fourth progress payment report for Blackard which indicated payment due Berry in the amount of $35,756.13. This fourth progress payment report encompassed some 320 lineal feet of 12 inch sewer pipe. Hagan testified, with reference to this report as follows:

"Q. Am I correct in assuming that at the time you prepared this it was your best judgment, without having actually measured, that there was 320 lineal feet of the 12 inch sewer pipe installed on the ground?
Hagan: Approximately 320 feet, yes.
Q. And by showing it there you did not mean to state to anyone that it had been completed in the sense that it had been tested and accepted by the city, did you?
A. That it had been tested or accepted by our office or the city.
Q. That it was simply installed in the ground?
A. Simply in place."

Blackard then refused to pay the $35,756.13 shown to be due Berry according to the fourth progress payment report, advising Berry on October 7, 1969, that “* * # Payments are to be made on work in place and accepted. The sewer is not acceptable. Therefore, payment for sewer work in place and not accepted will not be made.” On October 22, Blackard advised Berry that he had ten days in which to correct defects in the sewer fine. Berry did no further work on the job after October 17, 1969, stating that his only reason was Blackard’s refusal to pay the $35,756.13. Thereafter, on November 3, 1969, Blackard declared the contract forfeited, took over the project and completed it.

Blackard first urges that the trial court erred in finding that it breached the contract by “anticipatory repudiation in view of the express terms of the contract.” It is undisputed that in October, 1969, some of the work in place was not in a condition to be finally acceptable.

The resolution of this assignment of error hinges upon the construction of the contract between Berry and Blackard Construction Co. In essence the trial judge interpreted the above-quoted paragraphs 4 and 5 of the contract to mean that Berry had 180 working days to complete the project with all work finally acceptable under the plans and specifications, and that he was entitled, each month, to receive (upon the basis of the engineer’s progress payment report) a sum equal to 90% of the value of labor and materials incorporated in the work during the period covered by the report, and that Berry had 180 days within which to make the work finally acceptable. It is clear that this is precisely what the contract says absent reference to the 152-page treatise incorporated by reference as above recited. The trial judge made extensive and detailed findings of fact and conclusions of law. A portion of those findings are as follows:

6. (the contract “* * * provides, inter alia, for 180 working days for the completion of the work and for progress pay-
ments monthly of 90% of the value of labor and materials incorporated in the job during the preceding month as certified to by the engineer on the project.”
7. “That * * * Berry completed 71 working days * *
# # #
13. “That the payment estimate number 4 aforesaid of
$35,756.13 was never paid * *
# # #
20. “That Blackard * * * declared the contract forfeited
on November 3, 1969, and took over the project at that time.”
# # #
24. “That Blackard’s action was taken after only 71 of 180
working days called for in the contract had elapsed and Blackard is guilty of an anticipatory breach of the contract”.
25. “That Blackard’s actions of non-payment and forfeiture effectively prevented Berry from making repairs to work already installed, if any be needed, and from completing his contract”.
26. “That there is no substantial and credible evidence in the record that Berry could not have completed his contract in an acceptable manner within the aforesaid 180 days”.

It is apparent that finding of fact No. 6 is, despite the label, the trial judge’s construction of the contract between the parties. The fact that a finding by the trial court is designated a finding of fact does not preclude review of that finding as a question of law if it actually is. (Illinois Bell Telephone Company v. Slattery (1939), 102 F.2d 58.) Where there is a written contract and extrinsic facts are free from dispute, construction of the contract is a question of law, not fact. (Rosenbaum Bros. v. Devine, 271 Ill. 354, 111 N.E. 97.) Where all the parties adopt and act on a certain construction of a contract, there is not better extrinsic evidence of their intention than the interpretation they themselves placed upon it. (American National Bank and Trust Company v. Lembessis, 116 Ill.App.2d 5, 253 N.E.2d 126.) The record here indicates that Hagan and Blackard were aware that some of the work in place did not conform to final acceptable standards prior to Berry’s receipt of progress payments made to him on the basis of the engineer’s estimates number 2 and 3, and, indeed, that Hagan made no effort to ascertain “final acceptability” as to the work in place when those estimates were made nor did Blackard demand that he do so. Hagan also made no determination of “final acceptability” in preparing progress estimate No. 4. The parties had, in fact, construed the contract precisely as the trial court did prior to Blackard’s letter of October 7, 1969, and the trial court’s construction of paragraphs 4 and 5 of the contract is predicated upon the proposition that those paragraphs are couched in plain, unambiguous language and simply mean what they say. This approach to an effort to divine the meaning of language employed in a contract is to be commended.

Blackard argues that reference to the Standard Specifications For Water and Sewer Main Construction in Illinois supports the position that progress payments are not to be made until the work meets final acceptability standards. We note that this volume contains detailed specifications concerning materials, mechanical preparation and methods of installing water and sewer mains. The contract between Blackard and Berry provided, with reference to the incorporation of the Standards, as follows:

“1. Scope of Work. Berco shall furnish all of the materials and perform all of the work as described in Section 1 — Sanitary Sewers, Section 2 — Storm Drainage, Section 3 — Watermains, and Section 5 — Alternate Streets and shown on the plans for “Camelot” prepared by Warren E. Hagan * * * and shall do everything required by this agreement and the specifications prepared by ° * 6 Hagan for this project, all to be done in accordance with the Standard Specifications for Water and Sewer Main Construction in Illinois * *

Blackard argues that sections 5 — 10, 7 — 18, and 8 — 11 of the Standards are part of his contract with Berry and are designed to protect the owner in the event that the work does not comply with the specifications. It would unduly lengthen this opinion to quote these in detail. We agree that the provisions were inserted for the protection of the owner, but it is equally clear that none of them have any bearing upon the conditions for progress payments set forth in paragraph 4 of the contract. The trial court’s interpretation of paragraph 4 of the contract to the effect that it means precisely what it says is correct, and we agree that it is unambiguous and not susceptible of a different “interpretation”. Berry was entitled to receive the $35,756.13 progress payment No. 4 as certified to by Hagan and Blackard did breach the contract by refusing to make that payment.

Blackard next contends that the trial court “erred in granting Berry a Mechanic’s Lien in view of Berry’s breach of contract”. The trial court ruled that Blackard, not Berry, breached the contract. We have agreed with that ruling.

Blackard’s final contention is that the trial court erred in granting to Berry a mechanic’s lien for an amount which exceeds the “value” of his work. In substance the argument is that the trial judge’s finding, as to the amount of lien awarded, is against the manifest weight of the evidence. The findings of fact conclusions of law made with reference to the lien awarded are as follows:

“33. That the Court calculates Berrys lien, based upon the evidence submitted, including the exhibits, and matters admitted in the pleadings, and certain stipulations made, as follows:
Balance due on Estimate No. 4 $35,756.13
Extra (mainly street grading) 2,440.03
Retainage — Estimate No. 4 10,749.21
Work in place not on Estimate No. 4 6,620.24
Materials left on site 2,918.71
Crushed stone 1,325.30
$59,890.72
Deductions:
Paid to suppliers $12,407.77
Repairs to sewer in place 18,852.46
Repairs to water mains 814.72
Repairs to curbing 270.00
Engineering at 15% 2,990.58
$35,335.53
Overhead at 10% 3,533.55
$38,869.08
Lien Total $20,940.64
CONCLUSIONS OF LAW
1. That Berry is entitled to a Mechanic’s Lien on the premises in the amount of $20,940.64 and costs of suit.”

Blackard’s argument as to the amount of lien is, in essence, directed to the cost of repairs which it says must be made to a sewer line which, contains three areas of sag. The line in question is operating. The trial judge expressly found, with reference to the issue of repairs to sewer line in place that:

“31. That the evidence concerning repair of the sewer work in place, the value of material left on the premises by Berry and used by Blackard, and the amount of crushed stone left on the premises is so conflicting as to be almost impossible to determine.
32. That with the exception of Glenn Chastain the Court had no benefit of independent testimony and the testimony of Chastain is vague and uncertain.”

The evidence as to necessity of repair, extent of repairs and costs of repairs is, as the trial judge found, vague, uncertain and in sharp conflict. It is not the function of this Court to reweigh and reevaluate that evidence. (Landolt v. Stratmann, 87 Ill.App.2d 81, 230 N.E.2d 498.)

The judgment of the trial court in assessing damages is not against the manifest weight of the evidence.

Judgment affirmed.

SMITH, P. J., and TRAPP, J., concur.