author: EBERSPACHER, P. J. DOVE, J.

text:
    The People of the State of Illinois, Appellee, v. Noel Evrard, Appellant.
    Gen. No. 65-32.
    Fifth District.
    November 24, 1965.
    Julius Lucius Echeles, of Chicago, for appellant.
    Frank Bonan, State’s Attorney, of McLeansboro, for appellee.
   EBERSPACHER, P. J.

This is an appeal taken pursuant to Chapter 88, Section 121-9 (b)(4), Ill Rev Stats 1963, which permits a reviewing court to reduce punishment imposed by a trial court.

The record discloses that appellant was indicted by the grand jury of Hamilton County for the crimes of rape and taking indecent liberties with a fifteen-year-old girl. He plead not guilty, and waived a trial by jury. At the conclusion of the trial, the court adjudged him guilty of the crime of taking indecent liberties, and sentenced him to the penitentiary. The record did not disclose that following the judgment of guilty, there was a hearing in the trial court in aggravation or mitigation. This court affirmed the judgment of guilty, but remanded the cause with directions to the trial court to “hear and receive evidence as to defendant’s moral character, life, family, occupation and criminal record, and thereupon impose punishment not inconsistent with this opinion.” (People v. Evrard, 55 Ill App2d 270, 204 NE2d 777).

Upon reinstatement of the cause in the circuit court and at the inception of the hearing the trial court stated: “Let the record show this cause comes on for hearing pursuant to the notice, for the sole purpose of presenting evidence in mitigation and aggravation, and to determine the proper sentence for this defendant.” The court then inquired of counsel for defendant if that was his understanding, and being assured that it was, counsel for defendant called the defendant as a witness in his own behalf and he was examined by his counsel and cross-examined by the State’s Attorney.

The defendant testified that at the time of the hearing, on April 8, 1965, he was 31 years of age; that he had attended high school for three years, dropping out when he was 16 years of age, and for two years thereafter he worked at Pontiac, Michigan, married and entered the military service. He received an honorable discharge from the Army in 1955, and was thereafter divorced, and his wife was granted the custody of their two children. Subsequently the defendant remarried, and at the time of the hearing was living with and supporting his wife and two children by this marriage, and was also contributing to the support of his children by the previous marriage. Appellant further testified that he had worked for various construction companies and at the time of the hearing was employed by the Freeman Coal Company at Logan, Illinois, and had been for about two years, and that his weekly wage was between $120 and $135 per week. He further testified that in 1962 he was in a tavern where the barmaid shot his brother, and in connection with this affair, he was convicted of disorderly conduct and fined $32. He concluded his testimony by stating that he was devoted to his family, and was deeply sorry and ashamed of the offense for which he was convicted, and if the court would consider a different sentence, he would abide by whatever conditions were imposed.

The wife of the defendant was then called as a witness, and she testified that her husband did not indulge in the use of intoxicating liquor and corroborated the testimony of her husband in that he was steadily employed and supported his family. The defendant and his wife were the only witnesses called by appellant. The Chief of Police of the City of Marion and the radio operator for the Sheriff of Williamson County were called by the State’s Attorney, but the evidence of these officers shed little, if any, light on the moral character, life, family, occupation or criminal record of the defendant.

At the conclusion of this hearing, which was before the same judge who heard the case originally, the trial court recounted some of the facts and stated that he was unable to conceive of a defendant who was guilty of such a “serious and vicious crime” having the “audacity of coming in and asking the court to place him on probation.” The court then stated that he should take into account the previous good record of the defendant, and under all the circumstances he would grant the application for probation, and entered an order admitting the defendant to probation for a period of five years.

One of the conditions of the probation order was that defendant should spend the first six months of his probation at the Illinois State Farm. This provision of the order was not acceptable to the defendant, and his counsel stated to the court that the purpose of punishment is to rehabilitate the defendant; that “if the defendant goes to Vandalia for six months, that degree of punishment would not be appropriate to defendant’s rehabilitation,” and requested the court to reconsider the imposition of this condition. The trial court refused and this appeal followed, which seeks only a reversal of that portion of the probation order which directed that defendant spend the first six months of his probation at the Illinois State Farm.

Upon oral argument in this court, counsel for appellant, in answer to a question by the court, stated that the defendant did not complain of any of the conditions embraced in the order admitting defendant to probation except that portion which directed that he spend the first six months of his probation at the Illinois State Farm.

It is suggested by counsel for appellee that the sentence originally imposed by the trial court which committed defendant to the Illinois State Penitentiary for an indeterminate sentence and fixed the maximum duration of his imprisonment at three years, and the minimum duration of his imprisonment at one year, has not been reversed, vacated or set aside, and that it is therefore in full force and effect. Upon our former review of the record in this case, the judgment of guilty of the offense charged was not reversed but was affirmed. The cause, however, was remanded to the trial court with directions to that court to “hear and receive evidence as to defendant’s moral character, life, family, occupation and criminal record, and thereupon to impose punishment not inconsistent with this opinion.” The effect of this was to vacate the sentence imposed and the trial court, the defendant and his counsel, and the State’s Attorney correctly so construed our holding and proceeded accordingly. There is no merit in this contention of counsel for appellee.

The Code of Criminal Procedure, effective January 1, 1964, repealed the provisions of the former Act and provided that any person found guilty of any offense, except a capital offense, the sale of narcotics or rape, may be admitted to probation, and authorized the admission of this defendant to probation if it appeared to the trial court that: (1) The defendant was not likely to commit another offense; (2) the public interest did not require that the defendant receive the penalty provided by law; and (3) the rehabilitation of the defendant does not require that he receive the penalty provided for the offense. The Code further provides that the term of probation shall be not less than six months, and not to exceed five years, and that the party admitted to probation shall remain subject to the jurisdiction of the court. (Ill Eev Stats 1963, c 38, § 117-1.) It enumerated the mandatory and discretionary conditions of probation. The first discretionary one provides for imprisonment in a place of confinement other than a penitentiary for a period not to exceed one year, and in no event to exceed the maximum penalty provided for the offense. (Ill Eev Stats 1963, c 38, § 117-2.)

In his brief and argument filed in this court, counsel for appellant says that upon this hearing the trial court was piqued and irritated because the court had remanded the cause for sentence. Counsel argue that the trial court, in committing defendant to the Illinois State Farm as one of the conditions of his probation, disregarded the manifest intention of this court, and insists that incarceration of defendant is too severe and would cause defendant to lose his employment and earnings and visit extreme hardship on his wife and children, and calls to our attention the language used in our former opinion, where we said: “A careful review of defendant’s testimony indicates remorse and contrition, and the record reflects a statement by the court to the effect that the crime was unfortunate, but not wilful or premeditated. If this defendant is of prior good record, it may well be that probation would be adequate punishment and would best effect his rehabilitation. Sections 117-1 and 117-2 (Ill Rev Stats 1963, c 38, §§ 117-1, 117-2) provide for probation in proper cases, and the basic rules of conduct to which a probationer must conform. Unless this defendant is incorrigible or has recidivistic tendencies not demonstrated in the record, a carefully supervised period of probation is more likely to result in rehabilitation than is a term in the penitentiary.” (People v. Evrard, 55 Ill App2d 270-276, 204 NE2d 777.)

In support of this argument and appellant’s contention, counsel cites Yates v. United States, 356 US 363, 2 L Ed2d 837; United States v. Wiley, 267 F2d 453; United States v. Wiley, 278 F2d 500; and United States v. Wiley, 184 F Supp 679.

In the Yates case, supra, it appeared that the defendant was convicted of contempt of court for refusing to answer eleven questions relating to whether persons, other than herself, were members of the Communist Party. The United States District Court imposed eleven concurrent sentences, which the Ninth Circuit Court of Appeals affirmed. The Supreme Court of the United States stated that the finding of a separate contempt for refusal to answer each question constituted an improper multiplication of contempts, and held that only one contempt was committed, affirmed the conviction as to one specification, and remanded the cause for resentencing.

In United States v. Wiley, 267 F2d 453, the trial court refused probation and imposed a three-year sentence on the defendant. The Circuit Court of Appeals held, that in entertaining an application for probation, a District Court could consider the fact that the defendant had entered a not guilty plea when he had only a frivolous defense, but that the trial court could not deny probation solely because the defendant had elected not to enter a guilty plea. The Appeals Court affirmed the judgment of guilty, but remanded the cause to the District Court for consideration of defendant’s application for probation with instructions “that it perform the functions imposed upon it under the Probation Act as herein indicated.”

Upon reinstatement of the Wiley case in the District Court, a hearing was had on defendant Wiley’s motion for probation. At the conclusion of the hearing, the application for probation was denied, and again a three-year sentence was imposed on the defendant, and the defendant again appealed. The Circuit Court of Appeals, upon this second appeal, referred to its former opinion wherein it was said that a trial court’s decision on whether or not probation shall be granted is seldom set aside, and then continued: “While we are strongly of the opinion that, if we were sitting in this cause in place of the district judge, we would have granted Wiley probation, we are not convinced that his taking an opposite view shows that he abused his discretion. He did conduct a hearing as required by our mandate, and in that respect, we will let the matter rest.” The opinion then pointed out the disparity between the sentence imposed on Wiley, who was an accessory, and upon the principal defendant, and alluded to the fact that the principal defendant had four prior felony convictions, and received a two-year sentence, while the defendant Wiley received a three-year sentence, although he had no prior criminal record. The court concluded that the trial court had arbitrarily and without justification singled out a minor defendant for the imposition of a more severe sentence than that imposed on the codefendants, and the Appeals Court again set aside the sentence and remanded the cause to the District Court for a proper sentence. (United States v. Wiley, 278 F2d 500.)

Upon reinstatement of the case, the Chief Judge of the District Court, who had imposed and reimposed the three-year sentence, in an interesting opinion, reviewed the case and concluded thus: “In good conscience, and with due regard to my oath of office, I cannot conclude that any sentence less than three years is either just or proper in the case of Wiley now before me. Accordingly, I hereby now again reimpose my original sentence of three years. However, out of my deep respect for the Court of Appeals, and in obedience to its mandate, I also hereby suspend the execution of said sentence. The defendant Wiley may go hence without day.” (United States v. Wiley, 184 F Supp 679-688.)

The facts in these cases, relied upon by counsel for appellant, are not analogous to the facts in the instant case. Here the trial court gave full and adequate consideration to the expressions in our former opinion, heeded the intimations and suggestions of this court, and admitted this defendant to probation. There is nothing in this record which sustains appellant’s charge that the trial court was irritated or piqued or that the disposition of the case by granting defendant probation and imposing the conditions which were imposed, was prompted by any consideration other than a studied and sincere desire to administer justice in accordance with the statute and the expressions and directions contained in the former opinion of this court.

The judgment of the trial court finding appellant guilty was affirmed by this court. Upon remandment for a hearing in aggravation and mitigation, the provisions of the statute and the directions of this court were followed. At the conclusion of the hearing no sentence was imposed on the defendant for the offense of which he had been adjudged guilty, but upon defendant’s application, an order was entered admitting defendant to probation, and all the imposed conditions of probation were in accordance with the statute.

In People v. Molz, 415 Ill 183, 113 NE2d 314, it appeared that the defendant plead guilty, and was adjudged guilty of armed robbery. The defendant made application for probation, which application was referred to the probation officer for investigation and report. The probation officer filed a report, and a hearing was had, the application denied, and the defendant sentenced to the penitentiary. It was insisted that the trial court did not give the application for probation the consideration it merited.

In affirming the judgment, after detailing the facts as disclosed by the record, the Supreme Court (p 188) cited Burns v. United States, 287 US 216, 53 S Ct 154, to the effect that there is no constitutional right to probation, and that after a plea of guilty, a prisoner stands convicted and faces punishment and “cannot insist on terms or strike a bargain.” The court, omitting citations, then continued (p 189): “The first rule of law, then, is that the granting or refusing of an application for probation generally rests within the sound discretion of the court, this discretion to be exercised primarily for the benefit of society, and only incidentally for the benefit of the accused. Our reports are replete with statements by this court that this discretion is not even reviewable. The only modification or relaxation of this rule which we have been able to find in this state appears in People v. Donovan, 376 Ill 602.”

In the Donovan case, 376 Ill 602, 35 NE2d 54, the defendant plead guilty to forgery. His application for probation was denied and he was sentenced to the penitentiary. Five days later he filed a motion to set aside the judgment of conviction and for leave to withdraw his plea of guilty. This motion was denied.

Upon a review of the record, the Supreme Court quoted some of the provisions of the Act providing for a System of Probation then in effect, and observed (p 606): “When probation is asked, the court has discretion to grant or deny the application and, if granted, the court has discretion, by the express terms of paragraph 790, as to the extent of the punishment. The discretion the court may exercise upon an application for probation is not an arbitrary discretion to be exercised at the mere will or whim of the court, but is a sound legal discretion dependent for its exercise upon the facts shown. It is obvious that where the facts are not shown, and are not inquired into, the denial of probation is an arbitrary and unauthorized exercise of the power.” The court then held that under the statute then in force, the requirement for an investigation by the probation officer was mandatory, reversed the judgment of the trial court, and remanded the cause with directions to allow the defendant to withdraw his plea of guilty.

Although the present Code of Criminal Procedure repealed the provisions of the former Act, many of the holdings and expressions of courts of review remain applicable to cases where the facts are analogous. In the recent case of People v. Smith, 62 Ill App2d 73, 210 NE2d 574, the Appellate Court of the First District in an opinion delivered by Mr. Justice Dempsey stated: “The 1963 Code of Criminal Procedure has made significant changes in the law, but not all of the changes are such that the guideposts provided by earlier decisions need be abandoned.” The court cited People v. Evrard, 55 Ill App2d 270, 204 NE2d 777, and said that a defendant has neither an inherent nor a statutory right to probation, and that granting or not granting probation rests in the discretion of the court.

Under the Federal Practice an order of a United States District Court suspending the imposition of sentence and placing a defendant on probation was held to be a final and appealable order. (Korematsu v. United States, 319 US 432, 63 S Ct 1124, 87 L Ed 1497.) In that case the court said that the probationary surveillance was the same whether sentence was or was not imposed; that the defendant must abide by the order of the court, obey the terms and conditions imposed upon him, or subject himself to a possible revocation or modification of his probation. In conclusion the court said: “When discipline has been imposed, the defendant is entitled to review.”

The majority of this court is of the opinion that such discretion, as is reflected by the conditions of probation imposed by the trial court at its discretion, is reviewable by this court; that the tenor of the Criminal Code, the Code of Criminal Procedure, and the Provisions of Supreme Court Rule 27, subpar. (16), are to the effect that an order granting probation is reviewable; and particularly that when the imposed discipline involves a deprivation of freedom, the defendant is entitled to review. (Korematsu v. United States, supra, cited with approval in People v. Sims, 32 Ill2d 591, 208 NE2d 569.)

In the instant record there is no indication that the trial court was not eminently fair, or that in admitting defendant to probation and imposing the condition that defendant spend the first six months of his probation period in the Illinois State Farm, he was influenced by anything other than a desire to dispose of the case by a determination, as the trial court expressed it, “of what is fair and reasonable under the circumstances.” There is nothing in the record to indicate that the trial court did otherwise, and we are not disposed to disturb the discretionary order which he entered, to reverse which this appeal is prosecuted. The order appealed from should therefore be affirmed.

The order of the Circuit Court of Hamilton County is affirmed.

GOLDENHERSH, J., concurs.

DOVE, J.

Specially concurring:

If the order appealed from is subject to review by this court, I agree with the majority of this court and concur in affirming that order. It is my opinion, however, that the order is an interlocutory one and not appealable.

As defined by the Code of Criminal Procedure: “Probation means the conditional and revocable release before sentence, and under the supervision of an officer of the trial court, of a person who has been found guilty of an offense.” (Ill Rev Stats 1963, c 38, § 102-18.)

The applicable provision of the statute which counsel for appellant insists authorizes this appeal is § 121-9 (b) of the Criminal Code. This section provides: “On appeal the reviewing court may: (fo—1) reverse, affirm or modify the judgment or order from which the appeal is taken; (b-2) set aside, affirm or modify any or all of the proceedings subsequent to or dependent upon the judgment or order from which the appeal is taken; (b—3) reduce the degree of the offense of which the appellant was convicted ; (b-4) reduce the punishment imposed by the trial court; or (b—5) order a new trial if justice so requires.”

The appeal referred to in this section is from the judgment of guilty entered prior to the admission of defendant to probation, which appeal is expressly granted by § 117-1 (b-d) of the Code. The punishment here referred to is that punishment imposed on the defendant by the trial court which pronounced the sentence following the court’s finding of guilt. It is not the commitment or confinement embraced in a discretionary order admitting a defendant to probation. The punishment imposed by the trial court to which this provision is applicable has reference to the penalty fixed by the law defining and inhibiting the Criminal Act, and the word punishment, as here used, is synonymous with the word penalty. (Featherstone v. People, 194 Ill 325, 334, 62 NE 684).

In People v. Bardens, 394 Ill 511, 68 NE2d 710, the court after citing and quoting from the Featherstone case, supra, and People v. Jenkins, 322 Ill 33, 152 NE 549 says (pp 516-517): “Probation is a substitute for imprisonment. ... A sentence to imprisonment in the penitentiary cannot be synonymous with a grant of probation entitling the convicted defendant to escape a penalty of imprisonment.” The court continues (p 517): “As pertinently pointed out in Commonwealth v. Smith, 130 Pa S 536, 198 A 812, the court in deciding that an order of probation is not a sentence, commented: Tt delays the sentence and may result in the release of the defendant at the end of the probationary period, but until the conduct of the defendant has been such as to harmonize with the conditions of probation, the sentence is in abeyance. And on failure to perform the conditions the defendant may be sentencéd as provided in the act under which the indictment was drawn.’ It is nowhere in the act called, or referred to, as a sentence. . . . An examination of the provisions of Section 1 of the Probation Act as amended (citation), shows that the placing of the defendant on probation on such terms and conditions as the court may deem right and proper is regarded as a judgment, and the terms and conditions of probation are directed to be duly entered of record ‘as a part of the judgment in such case.’ But it is not a final judgment of sentence. ... It is rather an interlocutory judgment, in the nature of a conditional order placing the defendant under the supervision and control of the court, in a system of tutelage designed for his reformation (citations), to be followed by a final judgment of discharge, if the conditions of his probation are complied with (citation), or by a final judgment of sentence on his being brought before the court following a violation of the terms of his probation.”

Supreme Court Rule 27, subpar (16) provides in part: “Where an appeal is taken . . . from an order admitting the defendant to probation, or from an order altering the conditions of probation, the sentence or order may be stayed by the trial court or the reviewing court, or a judge thereof.” (28 I112d xxvi.)

It might be inferred from this language that an order admitting a defendant to probation was an appealable one, but the rule does not expressly so provide, and the statute limits an appeal (a) from a judgment of the trial court which alters the conditions of the probation order, or (b) from a judgment of the trial court terminating the probation. (Ill Rev Stats c 38, § 117-3 (e).) The statute expressly provides that a judgment of guilty shall be entered prior to the admission of defendant to probation, and it shall be a final judgment subject to review, under Article 121 of the Code. (Ill Rev Stats c38, §117-1 (d).)

There is no statute or rule of court which expressly grants a review to a defendant where a defendant has made an application for probation and his application has been granted, and the cause continued during the period of probation. Had the General Assembly or the Supreme Court by rule intended that an appeal could be taken from a provision contained in an order admitting a defendant to probation, the General Assembly or the Supreme Court would have expressly so provided.

This court in its former opinion has affirmed the judgment of the trial court finding appellant guilty of the criminal offense charged. Upon remandment by this court for a hearing in aggravation and mitigation, the directions of this court were followed, and at the conclusion of the hearing, the court imposed no sentence on defendant, as provided by law, for the offense he had been adjudged guilty of, but entered an order granting defendant’s application for probation and released Mm on probation for five years. The terms and conditions imposed by the court were authorized by the statute. In the absence of a statute expressly granting the right of review of a particular interlocutory decision, a case may not be taken to a r.eviewing court, and if “a court grants probation on the accused’s application and continues the cause during the period of probation, there is no final decision for review.” (15 ILP Criminal Law, § 843.) This was clearly the law prior to the effective date of the Criminal Code of 1963 and was so held in many cases. (People v. Kessler, 394 Ill 26, 67 NE2d 197; People v. Wheeler, 349 Ill 230-234, 181 NE 623; People v. Miller, 317 Ill 33, 38, 39, 147 NE 396; People v. Brown, 392 Ill 519, 523, 64 NE2d 739; People v. Bonheim, 307 Ill 316, 321, 138 NE 627; and People v. Pelikan, 6 Ill2d 275, 277, 128 NE2d 741.)

In People v. Ficarrotta, 385 Ill 108, 111, 52 NE2d 165, it is said: “An accused may not ask the court to proceed in a given manner and then assign error in a court of review the ruling or action which he procured.” That is exactly what appellant seeks to do here. He made an application for probation. His application was granted and an order was entered admitting him to probation. He and his counsel knew that if granted probation as requested, that the statute set forth the mandatory and the discretionary conditions which the order he desired and requested must or could contain. By this appeal he seeks a review of only one condition of the order which he moved the trial court to enter.

Under the Federal Practice, the trial court imposes a sentence and may then suspend that sentence and admit the defendant to probation. Such an order has been held to be final and appealable. (Korematsu v. United States, 319 US 432, 63 S Ct 1124, 87 L Ed 1497.) Our Supreme Court has cited this case with approval and referred to its “persuasive reasoning” (People v. Sims, 32 Ill2d 591, 208 NE2d 569), but, as said in People v. Smith, 62 Ill App2d 73, 210 NE2d 574, not all the “guideposts provided by earlier decisions need be abandoned,” even though the new Code of Criminal Procedure has made significant changes in the law.

Counsel for appellee has made no motion to dismiss this appeal or questioned the right of appellant to appeal from a portion of an order admitting defendant to probation, but has joined in this appeal and filed a brief. There is, however, no provision in the new Criminal Code, or rule of the Supreme Court, expressly granting this appeal. The order is interlocutory and not final. The cause is pending in the trial court and the proper order for this court to enter is to dismiss the appeal.


source: Caselaw Access Project

author: CRAVEN, J.

license: Public Domain

text:
    The Department of Public Works and Buildings of the State of Illinois for and in Behalf of the People of the State of Illinois, Petitioners-Appellees, v. Kern Lankford, et al., Defendants. Kern Lankford and Vera Lankford, Defendants-Appellants.
    Gen. No. 10,656.
    Fourth District.
    November 24, 1965.

      Busch, Harrington & Porter, of Champaign, for appellants.
    William G. Clark, Attorney General, of Springfield (Thos. C. Stifler, III, of Danville, and Richard E. Quinn, of Springfield, Special Assistant Attorneys General, of counsel), for appellee.
   CRAVEN, J.

This appeal is brought from a judgment of the circuit court of Vermilion County based upon a jury verdict awarding compensation in the amount of $87,125 for land taken by the State of Illinois pursuant to its power of eminent domain. The subject of this suit concerned the value of 7.28 acres taken from a tract of 8.89 acres and the damage done to the remainder.

The defendants-appellants raise three errors:

1. Expert opinion evidence as to value offered by the State should have been stricken where incomparable sales were considered in reaching the opinion.
2. Bona fide offers to purchase should have been admitted as evidence of the present fair cash market value.
3. The court should have excluded evidence of a sale which was not shown to be comparable.

The facts show that the defendants’ property was located between 12th and 13th Streets on the east side of Illinois State route 1 south of Danville in Vermilion County. This area was partially commercial and partially residential at the time of the taking. The defendants’ property had 146 feet of frontage on the highway. The property had several improvements, a four-room house and garage, a commercial building along the front line with a glass display window, a repair shop together with a small one-room shed formerly used as an office for a used-car lot.

The principal evidentiary objection is to the opinion testimony of the petitioners’ witness, Willis W. Capps. The defendants contend that Capps considered improper elements in arriving at his opinion as to the present fair cash market value. The rationale of this argument is that the court had excluded evidence of certain sales of property as not comparable and that where the witness stated that he had considered them in reaching his opinion as to value, the court should have excluded his opinion testimony also. The defendants then rely upon the principle of law that where opinions of value are in part based upon improper elements of damage there is no proper basis for the admission of the testimony. Central Illinois Light Co. v. Nierstheimer, 26 Ill2d 136, 185 NE2d 841 (1962). However, there is no evidence that petitioners’ witness Capps based his testimony on an improper element of damages. Comparable sales are a standard of comparison which afford a yardstick for an opinion as to value; however, they are not elements of damage. Separate sales must stand or fall as evidence on similarity or dissimilarity between themselves and the subject property. The rule regarding comparable sales is one of relevancy and not unlike the general evidentiary rule applied in all proceedings requiring similarity of conditions. This test is usually left to the discretion of the court in light of the circumstances of each case. City of Chicago v. Vaccarro, 408 Ill 587, 97 NE2d 766 (1951).

The evidence in this case showed that petitioners’ witness Capps made a comprehensive study of sales in the area and in so doing considered sales which the court excluded as evidence. It is not apparent what weight the witness attached to them in reaching his opinion as to value. However, his testimony was that he considered these sales along with others and there is no clear abuse of discretion by the trial court in admitting such testimony, nor is there a clear indication that consideration of these sales along with others so infected the witness’ opinion as to render it inadmissible as evidence.

The defendants also contend that the court’s failure to admit bona fide offers of purchase of the defendants’ property was reversible error. This question has been presented often and our Supreme Court has held that offers to purchase must be bona fide and there must also be a showing of an absence of comparable sales. Department of Public Works and Buildings v. Lambert, 411 Ill 183, 191, 103 NE2d 356 (1952); City of Chicago v. Lehmann, 262 Ill 468, 474, 104 NE 829 (1914).

The court admitted two sales as comparable—the Chatkin sale introduced by the petitioners and the Bolick sale introduced by the defendants. Under the above test even a bona fide offer is inadmissible due to the evidentiary priority accorded a comparable sale consummated between a willing buyer and a willing seller. Only when there is an absence of such evidence will the courts take judicial cognizance of a mere offer. Its probative value is doubtful (5 Nichols Eminent Domain sec 21.4 (3d Ed 1962)) and is only accepted where there is no actual sale to afford a comparable standard. Even if the offers were considered as admissible as some evidence of value, the fact that they were less than the defendants’ expert appraisal testimony, which took into consideration actual sales, demonstrates that exclusion of such offers was not reversible error.

The third error alleged in this appeal relates to the defendants’ above contention that bona fide offers of purchase should have been accepted as evidence of the present fair cash market value. The defendants contend that the petitioners’ only comparable sale should have been excluded as dissimilar because the sale involved unimproved property some three miles distant from the defendants’ improved property. Thus, if there were no comparable sales, bona fide offers of purchase would be admissible as some evidence of value.

The fact that the subject tract had improvements and the Chatkin tract was without improvements is evidence of a dissimilarity. However, the alleged dissimilarity goes to the weight rather than the admissibility of the evidence. Such dissimilarity can usually be pointed out and the testimony qualified by routine cross-examination. Forest Preserve Dist. of Cook County v. Folta, 377 Ill 158, 162, 36 NE2d 264 (1941). The question as to whether such sales are sufficiently similar to be admitted into evidence is left to the sound discretion of the trial court. City of Evanston v. Piotrowicz, 20 Ill2d 512, 522, 170 NE2d 569 (1960); Trustees of Schools of Township No. 36 v. LaSalle Nat. Bank, 21 Ill2d 552, 556, 173 NE2d 464 (1961).

The evidence showed that both properties were of the same approximate size and fronted along the same highway. Although both were in a mixed commercial-residential area, the highest and best use was as commercial property with a potential for increased commercial development. The existence of the type of improvements on the defendants’ property may or may not have added to the present fair cash market value of the property in light of its highest and best use. However, this was a question to be resolved by the jury and was not a dissimilarity which required the exclusion of the Chatkin sale as evidence.

There being no evidence of arbitrariness or unfairness, we find no reason to disturb the finding of the jury as their determination of value was within the range of the testimony. Therefore, the judgment entered by the circuit court of Vermilion County is affirmed.

Judgment affirmed.

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


author: PRESIDING JUSTICE McCORMICK.

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Edward Lee Lyons, Defendant-Appellant.
    Gen. No. 50,052.
    First District, Fourth Division.
    November 26, 1965.

      Gerald W. Getty, Public Defender of Cook County, of Chicago (Marshall J. Hartman and James J. Doherty, Assistant Public Defenders, of counsel), for appellant; Daniel P. Ward, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and E. Roger Horsky, Assistant State’s Attorneys, of counsel), for appellee.
   Opinion by

PRESIDING JUSTICE McCORMICK.

Not to be published in full.


author: MR. PRESIDING JUSTICE BURMAN

text:
    The People of the State of Illinois, Appellee, v. Henry Layfield, et al., Principals Below, Thaddeus M. (a/k/a Ted) Damsz, et al., Sureties Below, Appellants. The People of the State of Illinois, Appellee, v. John Franks, et al., Principals Below, Ted Damsz, et al., Sureties Below, Appellants.
    Gen. Nos. 50,277, 50,278.
    First District, First Division.
    November 22, 1965.
    Rehearing denied December 9, 1965.

      Wendell P. Marbly and Thad B. Eubanks, of Chicago, for appellants.
    Daniel P. Ward, State’s Attorney of Cook County, of Chicago (Edward J. Hladis, Chief of Civil Division, and Joseph V. Roddy, Assistant State’s Attorney, of counsel), for appellees.
   MR. PRESIDING JUSTICE BURMAN

delivered the opinion of the court.

This appeal involves a number of cases which arose out of the so-called “bail bond irregularities” in the Municipal Court of Chicago. These cases, consolidated by the parties for purposes of this appeal taken by the surety-defendants, present substantially identical fact situations and pose identical questions of law for our determination.

The course of the litigation is somewhat complex, and must be examined in detail. In each case, the principal defendant was arrested, and a surety executed a bail bond guaranteeing the appearance of the principal defendant in court. After each principal defendant failed to appear, a bond forfeiture was ordered by the court, and a writ of scire facias issued. In some of the cases before us, judgments were entered against the sureties in the scire facias suits. Subsequently, the sureties filed motions in the Municipal Court requesting that the bond forfeitures be vacated and that the scire facias suits be dismissed. These motions were granted, and orders to this effect were entered in some of the cases on June 24, 1958, and in the others on December 19, 1958. No appeals were ever taken from any of these orders.

The State subsequently filed motions in the Municipal Court of Chicago requesting the court to vacate its 1958 orders as void for want of jurisdiction, to reinstate the original orders, and thereby to impose liability upon the sureties. The surety-defendants moved to strike the State’s petition. Judge Hermes, hearing the cases together on January 22, 1964, denied the sureties’ motion to strike and granted the petition of the State in the cases now before us. In each case, the bond forfeiture was reinstated, and judgment was entered against the surety in the scire facias action. The surety-defendants subsequently petitioned this court for leave to appeal within one year, pursuant to the provisions of the Civil Practice Act (Ill Rev Stats 1963, c 110, § 76), and to the Rules of the Appellate Court, and leave was granted.

The threshold problem presented here is whether the court which entered the January 22, 1964 orders had jurisdiction to pass upon these matters at all. The sureties contend that the State’s attack came too late, in that the orders which vacated the bond forfeitures and dismissed the scire facias suits (i. e. the 1958 orders) were entered in open court with the State’s Attorney present, and cannot be vacated more than sixty months after the entry of such orders unless they resulted from fraud, accident or mistake, or without negligence on the part of the State; that those orders were final and appealable orders; and that if the State’s Attorney fails to appeal such orders within the time allowed, they remain in full force and effect even if erroneous.

It is the position of the State that it was entitled to attack the 1958 orders in favor of the sureties at any time because those orders were subject to a jurisdictional defect and therefore were void. The State contends that under c 38, § 625f of the Illinois Revised Statutes of 1957 a surety who moves that a bond forfeiture be vacated and a scire facias suit against him be dismissed is required to file a petition setting forth one or more of the grounds specified in that statute; that the filing of such a petition is mandatory and the court has no jurisdiction to vacate the bond forfeiture and to dismiss the action unless such a petition is filed; and that the surety-defendants in this case filed no such petition.

The statute relied upon is, in relevant part, as follows:

Vacating or modifying forfeiture and judgment or decree. Within 15 months after any forfeiture of a recognizance or bond, either within thirty days or more than thirty days after the day at which such forfeiture or any judgment or decree thereupon shall have been entered, upon motion, copy of which shall have been served upon the State’s attorney, and upon a proper showing to the court upon any of the following grounds; that the accused person has been apprehended or surrendered, or has died, or has been convicted and imprisoned by some other state or by the United States, the court in which any proceeding upon scire facias or foreclosure shall be pending may remit in whole or in part, within its discretion, such forfeiture and set aside or modify in accordance therewith any judgment or decree in such court entered thereupon, . . . (Ill Rev Stats 1957, c 38, § 625f).

The record does not show that any motions of the surety-defendants to vacate the bond forfeitures and to dismiss the scire facias suits were made in writing; nor does it show that any verified petitions were filed alleging any of the grounds enumerated in the foregoing statute.

It is established in Illinois that the foregoing provisions of the Criminal Code are mandatory, and that where the surety has failed to comply with its terms the court is without jurisdiction to vacate a bond forfeiture or to dismiss the scire facias suit against him. People ex rel. Swanson v. Sullivan, 339 Ill 146, 171 NE 122; People v. Garfield, 33 Ill App2d 164, 178 NE2d 666. Since the court was therefore without jurisdiction to enter the orders it did on June 24, 1958, and on December 19, 1958, those orders are void, and can be attacked at any time. People ex rel. Kilduff v. Brewer, 328 Ill 472, 160 NE 76; People v. Garfield, 33 Ill App2d 164, 178 NE2d 666.

Three cases are cited by the surety-defendants in support of their position. Great stress is placed upon this court’s holding in the recent case of People v. McCrory, 41 Ill App2d 59, 190 NE2d 159. The facts of that case were in conformity with those of the cases before us in all but one respect: in McCrory, when the surety moved to vacate the bond forfeiture and to dismiss the scire facias action, the State’s Attorney entered into a stipulation with the surety-defendants waiving the requirement of the foregoing statute that the surety file a written petition. The trial court, on motion of the State, had reinstated the bond forfeitures and had entered scire facias judgments against the sureties, as in this case; but this court reversed, holding that since the scire facias action was a civil suit for money the State’s Attorney had the authority to waive the statutory requirement, and that the court passing upon the surety’s motion had jurisdiction to do so under those circumstances. Surety-defendants have suggested that in the instant case the State’s Attorney had agreed to waive the statutory requirement of a petition, as in McCrory. The sole support in the record for this assertion is the presence of the words “By Agreement” on the court sheets of June 24, 1958, and of December 19, 1958, relating to these cases. Photostatic copies of those court sheets were filed here by the surety-defendants at about the same time as they filed their reply brief in this action. The entries thereon are allegedly in the handwriting of the Judge, but there is nothing in the record to suggest what precise agreements between the parties, if any, are represented by the notation. In fact, the record sheds no light at all on the question of how, these entries came to be made. Moreover, the orders of the court vacating the forfeitures and scire facias judgments do not recite that it was entered by agreement of the parties. Judge Hermes apparently concluded that the surety-defendants failed to show that there was any waiver of the statutory requirement by the State’s Attorney, and that therefore the McCrory case was in-apposite. We will not disturb that finding.

The case of People v. Garfield, 33 Ill App2d 164, 178 NE2d 666, is also cited by the surety-defendants. There too the fact situation was substantially identical to the one now before us, but with one major difference: in Garfield, when the surety’s motion to vacate the bond forfeiture and to dismiss the suit against him was granted, a judgment of $6 in costs was entered against the surety, paid by him, and accepted by the State. As here, the State later succeeded in its motion to vacate that order as void for want of jurisdiction, and judgment was entered against the surety. When that ruling was appealed, this court reversed, holding in part that the payment and acceptance of the costs judgment in a scire facias suit prohibited the State from later seeking to invalidate the order for want of jurisdiction. In the present case, however, no judgment for costs was entered or paid, either on June 24, 1958, or on December 19, 1958. Thus a crucial element of the Garfield case is absent here, and the State cannot be held to have waived its right to challenge the jurisdiction of the court entering the order, as it did in Garfield.

A third case dealing with this problem and cited by the surety-defendants is People ex rel. Adamowski v. Dougherty, 19 Ill2d 393, 167 NE2d 181. In that case a serious question was raised about the validity of the original scire facias writ, due to the passage of time between the bond forfeiture order, such as it was, and the issuance of the writ of scire facias. The Supreme Court found that the jurisdiction of the court which vacated the bond forfeiture and dismissed the scire facias suit turned upon the validity of the issuance of the writ of scire facias. The court further found that this issue had been clearly presented to the trial court, and stated that since the writ of mandamus cannot be used as a substitute for appeal or to correct judicial error therefore the determination of the issue by the lower court would not be disturbed. Since the procedural setting for the Supreme Court holding was not an appeal, as here, but rather a petition for a writ of mandamus, the court did not pass on the merits of the jurisdictional problem involved. Therefore the denial of the State’s petition for that writ in that case has little bearing upon the case before us.

For all of these reasons, the judgments against the sureties entered by the Municipal Division of the Circuit Court of Cook County in the cases consolidated in this appeal are affirmed.

Judgments affirmed.

MURPHY and KLUCZYNSKI, JJ., concur.


author: SMITH, P. J.

text:
    In the Matter of the Estate of Henry Schonhoff, Deceased. Robert H. Bastert, Plaintiff-Appellant, v. Mary Hild, Administrator of the Estate of Henry Schonhoff, Deceased, Defendant-Appellee.
    Gen. No. 10,664.
    Fourth District.
    November 22, 1965.

      Elmo E. Koos, of Peoria, for appellant.
    Howard L. Snowden, of Quincy, for appellee.
   SMITH, P. J.

Plaintiff-appellant filed his claim in probate for personal services rendered the decedent at the rate of $20 per week for four years, fifty-one weeks, in the total sum of $5,180. The trial court found the evidence insufficient to support the claim; the services were gratuitous; no contract for payment existed; there was no foundation for the reasonableness of the charges made, and denied the claim. This appeal followed.

Claimant and the decedent were longtime friends. Decedent was a bachelor, sixty-three years old at death, and lived on a small tract where he engaged in truck farming to a small degree. There was no water in the house and heating and cooking was' by means of a wood stove. Decedent was nursery man for the Quincy Park District with a salary of about $80 for each two weeks. Witnesses testified for the claimant that they had seen claimant carry water; feed the chickens, dogs and cats; split and carry wood and water; feed and bed down decedent’s mule; work with tomatoes and potatoes, and used his automobile to take decedent to the bank, grocery store and town. Three witnesses saw claimant doing some of these things once or twice a week. Another testified that it was practically an every day occurrence. Witness Cory testified that during the summer of 1962, claimant asked decedent, “When you going to pay me for what I’m doing ?” Decedent said, “I’ll make it right with you.” Witness Schoenekase testified that he and the decedent talked during the summer of 1963, and on one occasion decedent said: “You don’t have to worry about it. I’m going to pay him for it” and again that “he was going to pay Bob [claimant] very well for what he was doing.” They testified that the going price for such services was $1.25 to $1.50 per hour. We find no testimony as to the number of days or the number of hours on each day that were devoted to these services. The record is silent as to any payment ever having been made. At this point claimant rested and a motion to dismiss the claim was denied.

The estate then presented evidence showing that on November 21, 1962, claimant and his wife entered into a bond for deed with the decedent whereby they contracted to buy some property for $2,000 from him. Terms stated were: $100 down, $400 on March 1, 1963, and $500 on March 1 for the next three successive years. Claimant and his wife paid the $100 and the $400. On March 4, 1963, the deed was delivered to claimant and his wife by the escrowee bank and they receipted the bank for it. The written receipt follows a written authorization over the signature of the decedent stating that he had accepted a $1,500 note from claimant and his wife as payment in full for their obligation under the bond for deed. The deed was recorded the next day. The record is silent as to the whereabouts of this note. The written authorization and the receipt were received in evidence by the trial court for the limited purpose of showing the conduct of the parties and not for the purpose of establishing a counterclaim by the estate against the claimant.

Assuming, without deciding, that the claimant’s evidence made out a prima facie case and that the trial court was thus correct in denying the motion to dismiss the claim at that stage, we now consider the conduct of the parties and its effect, if any, on the problem at hand. Notwithstanding claimant’s contention in the trial court that the real estate transaction was wholly separate and distinct from the services rendered, the trial court did not so regard it nor can we. We see conduct of both the claimant and the decedent strangely inconsistent with the statements attributed to them. In November 1962, claimant and his wife agreed, in writing, to pay decedent $2,000 and did then make a $100 down payment, when, as is now claimed, decedent owed almost $4,000 for services rendered. In March 1963, claimant paid decedent $400, when, as is now claimed, decedent owed him well in excess of $4,000 for services rendered. Four days later, the deed was delivered to claimant by escrowee bank at the direction of the decedent. If paid, surely claimant would have some evidence of that fact. Was a $1,500 note given? If so, where is it? If not paid, it is unlikely that claimant woüld not have treated it as a credit on his claim of $5,180. Why would decedent accept these payments if he then felt he was indebted to claimant for services rendered? Why did he demand and receive this contract if he then felt he was indebted to claimant for services rendered? The record is silent. This conduct stands wholly unexplained.

It is truism to say that actions speak louder than words. We think, as the trial court evidently thought, that these actions by each of the parties speak loud and clear. It precludes the thought that the claimant then expected payment or the thought that the decedent then expected to pay for services rendered. Conversely, if one was then expecting payment for services and the other then expected to pay, it would seem natural, usual and in conformity with ordinary human conduct, that all this be considered before the execution of the written contract. In the absence of explanation indicating otherwise such a conclusion seems inescapable.

Where a claimant borrows from a decedent, a presumption arises that a claim based on services previously rendered has been paid, or that the claimant never intended to charge for such services. Ball v. Sieverling, 130 Ill App 89; Seacord v. Matteson, 56 Ill App 439. This record and the conduct of the parties support that presumption rather than destroy it. We cannot say that the conclusions of the trial court are against the manifest weight of the evidence and the reasonable inferences to be derived therefrom. It follows that the trial court was correct in its conclusions and its judgment is affirmed.

Affirmed.

TRAPP and CRAVEN, JJ., concur.


author: JUSTICE TRAPP.

text:
    Owen F. Carter, Plaintiff-Appellee, v. Montgomery Ward & Co., Incorporated, Defendant-Appellant.
    Gen. No. 10,626.
    Fourth District.
    December 1, 1965.
    Acton, Baldwin, Bookwalter & Meyer, of Danville (John M. Bookwalter, of counsel), for appellant; Lowenstein, Saikley & Hubbard, of Dan-ville (Albert Saikley, of counsel), for appellee.
   Opinion by

JUSTICE TRAPP.

Not to be published in full.


author: JUSTICE SULLIVAN.

text:
    In re Petition to Annex Certain Unincorporated Territory to the Village of Arlington Heights, Illinois. Albert M. Vidmar, et al., Petitioners-Appellants, v. The Village of Arlington Heights, a Municipal Corporation, L. A. Hanson, Village Manager of the Village of Arlington Heights, and John G. Woods, Village President of the Village of Arlington Heights, Respondents-Appellees.
    Gen. No. 50,095.
    First District, Third Division.
    December 2, 1965.
    Reynolds and Helm, of Chicago (Earl R. Reynolds, of Counsel), for appellants; Ross, Hardies, O’Keefe, Babcock, Mc-Dugald & Parsons, of Chicago (Jack M. Siegel, of Counsel), for appellees.
   Opinion by

JUSTICE SULLIVAN.

Not to be published in full.


author: PRESIDING JUSTICE DEMPSEY.

text:
    John J. Weiss, Jr., Claimant-Appellee, v. Alberta E. Ehrlich, Executor of the Last Will and Testament of Benjamin H. Ehrlich, Deceased, Executor-Appellant.
    Gen. No. 50,368.
    First District, Third Division.
    December 2, 1965.
    Hoffman & Davis, of Chicago, for appellant; H. Reid Harris, of Chicago, for appellees.
   Opinion by

PRESIDING JUSTICE DEMPSEY.

Not to be published in full.


author: PRESIDING JUSTICE MCCORMICK.

text:
    People of the State of Illinois, Defendant in Error, v. James Stinson, Plaintiff in Error.
    Gen. No. 50,337.
    First District, Fourth Division.
    December 3, 1965.
    Michael Anthony Lowe, of Chicago, for plaintiff in error; Daniel P. Ward, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and James B. Klein, Assistant State’s Attorneys, of counsel), for defendant in error.
   Opinion by

PRESIDING JUSTICE MCCORMICK.

Not to be published in full.


author: JUSTICE ENGLISH.

text:
    Bertha Sanders, Plaintiff-Appellee, v. Alonzo Sanders, Defendant-Appellant.
    Gen. No. 50,596.
    First District, Fourth Division.
    December 3, 1965.

      Stephen Lee, of Chicago, for appellant; Eugene F. Welter, of Chicago, for appellee.
   Opinion by

JUSTICE ENGLISH.

Not to be published in full.


author: MR. JUSTICE DRUCKER

text:
    Bernard Katz, Plaintiff-Appellee, v. Morris Brooks, Defendant-Appellant.
    Gen. No. 50,414.
    First District, Fourth Division.
    December 3, 1965.

      Harry B. Aron, of Chicago, for appellant.
    Sheldon L. Glieberman, of Chicago, for appellee.
   MR. JUSTICE DRUCKER

delivered the opinion of the court.

Defendant appeals from a judgment awarding plaintiff a real estate brokerage commission in the amount of $5,000 after a finding that plaintiff had procured a purchaser who was ready, willing and able to buy defendant’s property.

On July 10, 1962, defendant executed an exclusive sales listing agreement authorizing the plaintiff to procure a purchaser for defendant’s property located at 2435 Peterson Avenue in Chicago, Illinois. The agreement by its terms expired without notice on September 15,1962, and provided that plaintiff would be paid the rate of commission as recommended by the Chicago Real Estate Board if he found a buyer; that the sale price was $112,000; that a deposit of 10% was required; and that defendant was to receive the balance entirely in cash. On September 13, 1962 (two days prior to the expiration of the agreement) plaintiff submitted to defendant a contract of purchase for the property at a price of $110,000 signed by a prospective purchaser who happened to be plaintiff’s own attorney. Defendant refused to sign. The contract presented to the defendant stated:

This contract is specifically subject to and contingent upon the ability of Bernard Katz & Co. obtaining on behalf of Purchaser a first mortgage commitment on the subject property in the sum of $80,000.00, the said mortgage to be payable in equal amortized installments over a twenty (20) year period, including not more than six per cent (6%) interest, the costs for obtaining the same not to exceed 1%. In the event said Bernard Katz & Co. shall fail to obtain such commitment (or in the event Purchaser is unable to obtain his own said commitment) on or before September 20, 1962, this contract shall become null and void and the Purchaser’s deposit shall be forthwith returned.

The contract was further conditioned upon the purchaser’s approval of various leases in effect for the subject premises. It provided that “in the event the Purchaser shall find that the same are not standard leases and/or contain unusual clauses or other provisions, he shall» upon one day’s notice be entitled to cancel this contract and obtain a return of the earnest money and all rights herein shall forthwith cease.” .

A real estate broker, to be entitled to his commission, has the burden of proving that he procured a purchaser who was ready, willing and able to perform a contract to purchase the subject property and that the contract was in accordance with the authority given and terms specified by the seller. Oliver v. Sattler, 233 Ill 536, 84 NE 652. Defendant contends that plaintiff did not procure the requisite purchaser within the time limits of the listing agreement, asserting that due to the aforementioned contingencies in the purported contract of purchase tendered to him there was no binding contract at all but merely an option to purchase the subject property; that those contingencies were not authorized by him in the listing agreement; and that if he had signed the agreement to purchase he would have been bound to pay plaintiff a commission of $6,000 thus leaving defendant with a net of $104,000, which is less than he agreed to accept.

The purchaser was not legally bound to buy the property under the proposed contract since he had the discretionary right to cancel it if the leases contained “unusual clauses or other provisions” and since by its terms the contract became null and void if the mortgage was not obtained. In Cooper v. Liberty Nat. Bank of Chicago, 382 Ill App 459, 75 NE2d 769, the court rejected a broker’s claim for his commission where the contract of purchase contained a mortgage contingency clause substantially similar to that in the instant case. The court stated that the contract was conditional, not binding, and that the purported purchaser was not presently “able” to buy the subject property. Plaintiff in the instant case went to great lengths to prove that the proposed purchaser had the assets necessary to finance the deal. However, since the contract became null and void unless the $80,000 was obtained through a mortgage, the worth of the purchaser was of no significance whatsoever.

Plaintiff maintains, however, that the aforementioned contingencies are customarily inserted in contracts for the sale of real estate - and that the listing agreement did not specify what form the contract should take or the mechanics of the sale. From this plaintiff contends that he was impliedly authorized to insert the contingencies in the contract of sale and therefore he procured the requisite purchaser. It is a fundamental principle of law that a contract will be construed so as to give effect to the intention of the parties. Bonde v. Weber, 6 Ill2d 365, 128 NE2d 883. There is no evidence that defendant had actual knowledge of the alleged custom, if it is a custom, nor is there evidence that defendant had previously engaged in real estate transactions from which such knowledge can be imputed. Terms relating to the custom of a particular trade cannot be implied in a contract unless both parties had actual or implied knowledge of the custom. Hufford v. National Retailer-Owned Grocers, Inc., 16 Ill App2d 1, 147 NE2d 437. As stated in Swern v. Churchill, 155 Ill App 505, 507-08:

True, a person who deals in a particular market must be regarded as dealing according to the general and uniform usage and custom of that market.. . . and as having knowledge thereof; but this rule does not apply to one having but a single transaction with a member of a profession, of which he is not himself a member, wherein exists a usage or custom by which it is sought to charge him on the ground it entered into his contract.

The cases cited by plaintiff relate to instances where such knowledge was imputed because the defendant previously had been involved in real estate transactions or where a third party has relied upon an agent’s apparent authority, and are therefore distinguishable.

Moreover, a trade custom or usage to be binding, must be so well known, uniform, long-established and generally acquiesced in as to induce the belief that the parties contracted with reference to it (nothing appearing in their contract to the contrary). Traff v. Fabro, 337 Ill App 83, 84 NE2d 874. The existence of the custom or usage must be proved as any other matter of fact (Gourley v. Chicago & E. I. Ry. Co., 295 Ill App 160, 14 NE2d 842) and the burden is on the party asserting it. Armour Grain Co. v. United States Grain Corp., 241 Ill App 332. Plaintiff introduced no evidence that there is a custom and usage permitting a purchaser to cancel his contract upon his determination that the leases are not standard “and/or contain unusual clauses or other provisions.” Plaintiff alone testified only as to his practice in obtaining a mortgage commitment for a purchaser of a small home. Questions seeking to establish a custom and usage as respects the existence of the aformentioned mortgage contingency clause in contracts for the purchase of real estate were objected to. The objections were sustained and no other evidence was adduced. Plaintiff has not established the existence of the custom and usage upon which his argument is based.

As for the price discrepancy, plaintiff admits that under the terms of the contract of purchase his commission would be $6,000 thus netting defendant only $104,000 (which is $1,000 less than he agreed to accept) but contends that he offered to accept $5,000 as his commission so that defendant would net $105,000. The objection to plaintiff’s testimony as to this waiver should have been sustained. Parol or extrinsic evidence is inadmissible to vary, alter or contradict a written agreement which is complete on its face unless it is evidence of a subsequent binding agreement between the parties. Mandell v. Miller, 14 Ill App2d 430, 144 NE2d 791. Plaintiff’s alleged waiver of a portion of his commission was a unilateral act which did not constitute such an agreement. If defendant had signed the contract of purchase he would have been obligated to pay the full commission. Therefore, the proposed purchase price did not conform to the requirements of the sale price in the listing agreement.

Upon a consideration of the record we conclude that plaintiff is not entitled to a brokerage commission in that he did not procure, within the terms of the listing agreement, a purchaser ready, willing and able to buy defendant’s property. Therefore the judgment of the trial court is reversed.

Reversed.

MCCORMICK, P. J. and ENGLISH, J., concur.

       It is undisputed from plaintiff’s evidence that defendant demanded a net price of $105,000 and that the $112,000 figure in the listing agreement represented that $105,000 plus the broker’s commission.


author: MR. JUSTICE DAVIS

text:
    In the Matter of the Estate of Georgine A. Lynch, Deceased.
    Gen. No. 65-53.
    Second District.
    December 3, 1965.
    Rehearing denied January 6, 1966.

      Marshall Patner, of Chicago, Ross & Stern, of Deerfield, for appellant.
    O’Keefe, O’Brien, Hanson, Ashenden & Hartenfeld, of Chicago, for appellee.
   MR. JUSTICE DAVIS

delivered the opinion of the court.

This is an appeal from an order entered April 1, 1965, in the Circuit Court of the 19th Judicial Circuit, Lake County, Probate Division, construing the will of Georgine A. Lynch, deceased. The construction question was raised in a citation proceeding by the administrator de bonis non with the will annexed (herein called the administrator) against the National Boulevard Bank of Chicago (herein called the Bank) as Executor and Trustee under the will of William Maehler, the former executor of the will of Georgine A. Lynch, deceased, to recover the residuary assets of the estate.

The will in question contained the customary introductory clause, followed by Item I which provided:

“I hereby nominate, constitute and appoint my brother, William Maehler of Kenmore Avenue, Chicago, Illinois, the Executor of this my Last Will and Testament and for the purpose of converting my real estate into money I authorize and empower my said Executor to sell the same.”

Items II and III contained the testator’s request that her executor serve without bond, and directed the payment of her debts and funeral expenses. Item IV set forth specific bequests to her four brothers, to numerous friends and to her step-daughter, and then further provided:

“I give, devise and bequeath all the rest and residue of my property, real, personal and mixed, of which I may die seized or possessed, to my brother, William Maehler, for him to distribute amongst the other heirs or retain as he in his own best judgment may decide.
“Should my brother, William Maehler, predecease me, or be dead at the time or before my estate is settled, I nominate and appoint my brother, Eichard Maehler, my Executor with the same powers as herein given the Executor including the distribution of the residue.”

Georgine A. Lynch died testate on September 8, 1960, a resident of Lake County, Illinois, leaving her four brothers as her only heirs. Her will was admitted to probate December 16, 1960, and letters testamentary issued to her brother, William Maehler, on that date. He published for claims, and filed an inventory of the estate property. The claim period expired August 16, 1961, and thereafter he paid all claims against the estate. In the due course of administration of the estate, he filed income, inheritance and estate tax returns and paid the taxes assessed on such returns; paid to the proper recipient, a specific legacy of $500, as provided for under the terms of the will; and caused the specific bequests in kind, provided for in the will, to be delivered to the persons named therein.

In November 1963, he initiated the transfer of the corporate stocks, which constituted the residue of the estate, from himself as executor, to himself individually, as authorized under the residuary clause of the will. This transfer was completed in December 1963. Thereafter, on February 24, 1964, William Maehler died; his will was admitted to probate and the Bank was appointed executor and trustee of his estate.

It was the theory of the appellee, and the trial court held, that the estate was “settled” as that term was used in the will; that consequently, pursuant to the terms of the Georgine A. Lynch will, William Maehler was individually entitled to the residuary assets of her estate, which were transferred to him; that such assets were a part of his personal estate; and that the relief prayed for in the petition for citation should be denied.

The appellant-administrator contended in the trial court, and urges on appeal, that the executor was not given a gift in his own name and that he had no power to distribute the residuary assets prior to the fulfillment of the condition in the will that the “estate is settled”; and that these residuary assets should be returned to the Georgine A. Lynch estate. The administrator argues that there was no gift to William Maehler in that he died before the estate was settled and that the will specified the settlement of the estate as a condition precedent to distribution of its residuary assets.

Item I of the will nominated and appointed William Maehler as executor and gave him the power to sell the testator’s real estate for the purpose of converting it into money. The last paragraph of Item IY, which reads:

“Should my brother, William Maehler, predecease me, or be dead at the time or before my estate is settled, I nominate and appoint my brother, Richard Maehler, my executor with the same powers as herein given the Executor including the distribution of the residue.”,

merely complements the appointment, of William Maehler as executor, as contained in Item I. In so doing, it nominates and appoints Richard Maehler as successor executor, “Should my brother, William Maehler, predecease me, or be dead at the time or before my estate is settled,” and it gives unto him, Richard Maehler, “the same powers as herein given the Executor including the distribution of the residue.” When the two clauses of the will pertaining to the appointment of an executor and successor executor are considered together, the clause, “Should my brother, William Maehler, predecease me, or be dead at the time or before my estate is settled,” relates only to the appointment of a successor executor and not to the distribution of the residuary estate. Therefore, it does not prescribe as a condition precedent to distribution under the residuary clause, that the estate be settled at the time of such distribution.

It is the duty of courts to construe wills as they find them and they should not, under the guise of construction, change the provisions of wills or draft new ones. The cardinal rule of testamentary construction is to ascertain the intention of the testator from the terms of the will itself and to give effect to this intention, unless contrary to some established rule or public policy. Weber v. Hawkins, 30 Ill2d 278, 283, 196 NE2d 695 (1964); Hoge v. Hoge, 17 Ill2d 209, 212, 161 NE2d 117 (1959).

In Hoge, at page 212, the court in considering the question of the testator’s intention, stated:

“That intention is determined in two ways: One way is by ascertaining the actual meaning from the words employed in the will, to which all rules of construction give way, and the other by finding the presumed intention, gathered by the application of rules of construction, which rules apply in cases where the meaning of the will is obscure, doubtful or uncertain. (Freudenstein v. Braden, 397 Ill 29.) The intent which controls is that which is manifest, either expressly or by necessary implication, from the language of the will itself. The whole will and all of its parts must be considered in order to ascertain that intention. Where the language of the will is clear, the courts will not consider surrounding circumstances for the purpose of varying an intention clearly expressed in the will. Le Sourd v. Leinweber, 412 Ill 100.”

It is obvious that William Maehler retained for himself, individually, the residuary assets of the estate. He caused them to be transferred of record from himself as executor, to himself individually. However, before so doing, he paid all debts, claims, taxes and legacies due under the will, and delivered to the respective persons entitled thereto, the specific property bequeathed to them. He then, as executor, pursuant to the unambiguous language of the residuary clause of the will which gave and devised the residuary estate to him, as executor, “to distribute amongst the other heirs or retain as he in his own best judgment may decide,” distributed said residue to himself individually and thereby retained it for his own use, as authorized to do under this clause of the will. Thus, in the case at bar, there is no necessity to construe the will other than according to the actual meaning of the words employed in the will itself in its related parts.

In determining the meaning of the particular parts of a will, the whole will must be considered and every provision given due weight, having regard to substance rather than form. Strauss v. Strauss, 363 Ill 442, 447, 2 NE2d 699 (1936); In re Estate of Betts, 2 Ill App2d 453, 460, 119 NE2d 801 (3rd Dist 1954).

When the intention of Georgine A. Lynch is determined by ascertaining the actual meaning of the words employed by her in the will itself, in its related parts, such intent becomes abundantly clear without the labored effort of seeking her presumed intent by the application of rules of construction.

Counsel for appellant and appellee have. both cited cases from this and other jurisdictions which pertain to the settlement of an estate as related to the distribution of the residuary assets thereof, but under the rationale of our decision, such cases are not in point.

Neither does this decision adopt the theory and reasons of the trial court for reaching its judgment. However, the ultimate decision on review here is not whether'the trial court assigned proper reasons for its decision; but rather, the correctness of its judgment. An appellate court will not- reverse an order or decree, which correctly pronounces the judgment of the law upon the facts, because an improper reason is given for the conclusion. A correct judgment of the trial court will be affirmed even though it is based on improper reasons. Rosehill Cemetery Co. v. Chicago, 352 Ill 11, 33, 185 NE 170 (1933); 5 Am Jur2d (Appeal and Error), Section 727, p 170.

Accordingly, the order of the trial court appealed from herein, is affirmed.

Order affirmed.

ABRAHAMSON, P. J. and MORAN, J., concur.


author: MR. PRESIDING JUSTICE ABRAHAMSON

text:
    The People of the State of Illinois, Defendant in Error, v. Samuel Headrick (Impleaded), Plaintiff in Error.
    Gen. No. 64-149.
    Second District.
    December 3, 1965.

      John R. Snively, of Rockford, for plaintiff in error.
    William G. Clark, Attorney General, Fred G. Leach and E. Michael O’Brien, Assistant Attorneys General, all of Springfield, and John A. Strom, State’s Attorney, of Belvidere, for defendant in error.
   MR. PRESIDING JUSTICE ABRAHAMSON

delivered the opinion of the court.

The People filed an information against Carl Max Headrick, Sam Headrick and James Lockinger with the Clerk of the Circuit Court of Boone County on May 11, 1962, alleging they had knowingly committed the offense of burglary. Carl Max Headrick and James Lockinger entered a plea of guilty and Sam Headrick was granted probation after being found guilty of burglary by a jury. Upon a proceeding for revocation of probation he was sentenced to the penitentiary for a period of not less than one nor more than ten years. The revocation proceeding was reviewed by this Court in State v. Headrick, 54 Ill App2d 44, 203 NE2d 157.

This is a review of the original trial on transfer from the Supreme Court. Defendant contends his constitutional right to demand the nature and cause of the accusation was denied him in that the information failed to sufficiently describe the building and failed to give the street address of the property or its more specific location in the county.

A review of the record discloses that an oral motion to quash the information was submitted to the court without argument. An oral motion to quash an indictment without pointing out wherein it is defective is in the nature of a general demurrer, and, therefore, raises only questions relating to defects of substance. Under these circumstances, where the motion is denied, the ruling of the court can only be held erroneous where there are innate and substantial defects in the indictment which would make it insufficient to support a judgment. People v. Lee, 356 Ill 294, 295, 190 NE 264; People v. Fox, 346 Ill 374, 376, 178 NE 907. In People v. King, 50 Ill App2d 421, at 429, 200 NE2d 411, the Court stated: “.......while the absence of the address of a burglary is a defect for which an indictment may be quashed upon motion in the trial court, nevertheless, a failure to so move will constitute a waiver of such defect since it is not jurisdictional.”

Defendant (plaintiff in error) assigned the following additional errors:

1) A proper foundation was not laid to make two witnesses called by the State court’s witnesses.

2) The entire written statement of one of said witnesses should not have been read to the jury.

3) The prior conviction of felony was not properly proved.

4) There was insufficient proof of identity of defendant.

5) The evidence was insufficient to sustain the conviction.

6) The verdict was fatally defective.

James Lockinger was called by the State as a Court’s witness. The record is void of any objection to this procedure and the failure to object is regarded as a waiver and cannot be urged upon appeal. People v. Trefonas, 9 Ill2d 92, 98, 136 NE2d 817.

The second witness, Carl Max Headrick, a brother of the plaintiff in error, who had previously pled guilty to the information herein, in his direct testimony appears to have contradicted the contents of a written statement on a previous occasion. It was not until direct testimony was presented to the trial court that the State obtained permission to interrogate this witness as a court’s witness. The State under these circumstances should not be compelled to vouch for the witness’ veracity. People v. Robinson, 14 Ill2d 325, 333, 334, 153 NE2d 65.

The reading of the short statement made by the witness to the jury which reiterated very succinctly the events of the evening, although repetitious of the direct testimony in part and contradictory in other aspects, cannot be considered as prejudicial error. The events were well and amply covered by the interrogatories by the attorneys on direct and cross-examination. The contradictory portions of the short statement are admissible for impeachment purposes, but not as to any evidence of any fact touching on the issues to be tried. People v. Dascola, 322 Ill 473, 488, 153 NE 710.

The defendant next contends that the trial court permitted at the cross-examination of the defendant (plaintiff in error) an inquiry relative to a conviction for forgery. It appears from the record that a certified copy of the conviction was introduced and admitted, though the document does not appear in the record. In People v. Neukom, 16 Ill2d 340, 348, 158 NE2d 53, it was held that the admission of the record of conviction cured the error of the State’s Attorney in cross-examining the defendant in regard to his conviction of a prior offense, after the defendant offered himself as a witness.

It is next urged by the defendant that his identity was not established. We need not belabor the opinion on this point. Suffice it to say that his brother, Carl Max Headrick, placed him at the scene of the occurrence and another witness well-known to him placed him there also.

It is next urged that the evidence is insufficient to sustain the conviction. It appears from the testimony that the defendant was the owner of and driver of the automobile involved and that when they came to the filling station he instructed his brother, Carl Max Headrick, to go around to the back window of the gas station and knock the window out and told the other participant, James Lockinger, to sit in the car and said he was going in with Carl Max Headrick. In such cases whatever is done in furtherance of the original design is the act of all, and it is not necessary that each one take an active part in the commission of the crime. In the case at bar the facts in evidence clearly justify the inference that a common understanding existed and that the acts done by all three were intended to be done in furtherance of the original design and as such was the act of all, and it is not necessary that each takes an active part in the commission of the crime. People v. Brendeland, 10 Ill2d 469, 471, 472, 140 NE2d 708.

The last error urged is addressed to the form of the verdict. The jury failed to fix the age of the defendant. We find no merit in the contention that this is fatal. This precise question was determined in a very early case, Herder v. People, 209 Ill 50, 70 NE 674. See also People v. Poole, 284 Ill 39, 119 NE 916, and People v. Cavaness, 21 Ill2d 46, 52, 171 NE2d 56. The verdict failed to include the words “manner and form as charged in the information.” This likewise does not invalidate the verdict or the conviction. The test of the sufficiency of the verdict is whether the jury’s intention can be ascertained with reasonable certainty from the language used. People v. Orlando, 380 Ill 107, 114, 43 NE2d 677; People v. Schrader, 2 Ill2d 212, 216, 117 NE2d 786. In the present case the only charge made in the information was that of burglary and the jury returned a verdict of guilty. We deem this sufficient to meet the test of the jury’s intention.

The judgment of the trial court is therefore affirmed.

Judgment affirmed.

DAVIS and MORAN, JJ., concur.


text:
    Ada Marie Morella, a Minor, by Her Father and Next Friend, Reno Morella, Plaintiff-Petitioner, v. Melrose Park Cab Company, a Corporation, James C. Brislin, and Ricardo E. Guzman, Defendants. Melrose Park Cab Company, a Corporation, and James C. Brislin, Respondents.
    Gen. No. 65-15.
    Second District.
    December 3, 1965.

      Epton, McCarthy, Bohling & Druth, of Chicago, and Donovan, Dichtl & Atten, of Wheaton (Alfred S. Druth, Joseph A. Donovan, Ralph L. Dichtl and Gerald M. Chapman, of counsel), for plaintiff-petitioner.
    Rathje, Woodward & Dyer, Associates, of Wheaton, for appellees.
   MR. JUSTICE DAVIS

delivered the opinion of the court.

Ada Marie Morelia, a minor, by her father and next friend (herein called plaintiff) sued the defendant Mel-rose Park Cab Company (herein called Melrose) and its cab driver at the time of the accident in question—the defendant James C. Brislin (herein called Brislin) to recover for personal injuries sustained when the cab owned by Melrose and driven by Brislin, in which plaintiff was a passenger, collided with an automobile driven by the defendant Ricardo E. Guzman (herein called Guzman) on Lake Street, just east of York Road in DuPage County.

The complaint charged both defendants with concurrent negligence in operating their respective automobiles. The defendants denied the material allegations of the complaint, and the cause was tried before a jury which returned a verdict in favor of plaintiff, and against Melrose and Brislin in the sum of $20,000, and a verdict of not guilty as to Guzman.

Melrose and Brislin filed a post-trial motion for judgment notwithstanding the verdict, which was denied; and for. a new trial, which was allowed. The new trial was granted without supporting oral remarks or written memorandum by the trial judge.

The post-trial motion consisted of 81 numbered paragraphs which, when distilled, charged that the verdict was against the manifest weight of the evidence; was excessive; was the result of passion and prejudice and included punitive damages; that the Court erred in the admission and denial of certain testimony; that plaintiff’s counsel in-an interchange with defendants’ counsel, made certain prejudicial remarks; and that the Court erred in giving and refusing certain instructions.

The record indicates that on October 21, 1961, a head-on collision took place on a construction detour on Lake Street, about three blocks east of York Road, shortly after 8 p. m., between a 1954 Buick automobile driven by Guzman and a cab owned by Melrose and driven by Brislin, in which plaintiff was a passenger. At the time and place, the highway was dry; the night dark but clear, and the visibility was good. Guzman was driving east on Lake Street in his lane of traffic at a speed of 30 to 35 miles per hour, and Brislin was driving west on Lake Street at a speed of 45 to 50 miles per hour. The testimony and all physical facts indicated that Brislin was driving in Guzman’s lane of traffic at the time and place of the collision.

The plaintiff, at such time and place, was seated in the rear seat of the cab on the right-hand side. Before the accident, her left leg was in good condition. The impact of the collision threw her to the floor of the cab and against the front seat and caused a comminuted fragmented fracture of her left femur extending from her knee joint upwards for about 5% inches.

The plaintiff’s injury was painful. It required the placing of her left leg in a splint and the insertion of a Steinman pin in her left tibia to provide a point from which traction would be applied. Thereupon, plaintiff was placed in traction. Due to angulation, further surgical procedures were required, including the placing of plaintiff in a hip spica cast. Plaintiff left the hospital December 2, 1961, and remained in bed at home until December 12. The cast was removed January 20, 1962, and plaintiff started walking with the aid of crutches in February 1962. She was still limping and her leg was still swollen when the case was called for trial on October 26, 1964. Her hospital and medical expenses totalled $1,841.72 and she missed the second semester of her freshman year in high school due to the injury.

Even though plaintiff filed petition for leave to appeal and abstract of record, and complied with the rules of this Court, no answer to the petition was filed in this Court by Melrose or Brislin. After the petition for leave to appeal was granted, neither Melrose nor Brislin saw fit to file brief in support of the trial court’s order granting a new trial. On this state of the record, we would be justified in reversing and remanding this case without consideration of the merits. Ogradney v. Daley, 60 Ill App2d 82, 208 NE2d 323 (1st Dist 1965); Spears v. Spears, 45 Ill App2d 167, 169, 170, 195 NE2d 237 (1st Dist 1964); East Side Health Dist. v. Village of Caseyville, 38 Ill App2d 438, 442, 187 NE2d 534 (4th Dist 1963); Basinski v. Basinski, 20 Ill App2d 336, 340, 156 NE2d 225 (1st Dist 1959). Such result, however, is not required (Spears v. Spears, supra).

The posture of this case on appeal is unusual: it stands without brief or argument by counsel to support the decision of the trial court (see Ill Rev Stats 1963, c 110, §§ 77(2), 101.30 and 201.22) and without written memorandum by the trial judge stating the reasons for his decision, as permitted by Supreme Court Rule 36(1) (c) (Ill Rev Stats 1963, c 110, § 101.36(1) (c)). We regret the absence of a brief statement of the trial court’s reasons for his decision, and we deplore the cavalier attitude of Melrose and Brislin in their failure to support the order of the trial court by either answer or brief, or by both. Such default by counsel places an undue burden on the reviewing court and is unfair to the trial court. Under these circumstances, we have, without the customary assistance of court and counsel, examined the record and considered the law determinative of the issues involved.

Under the evidence above set forth, there can be no question concerning the propriety of the trial court in refusing to grant a judgment notwithstanding the verdict. Even if the inferences to be drawn from the evidence were uncertain as to the negligence of the respective defendants, the contributory negligence of the plaintiff and the proximate cause of her injuries, so that fair-minded men could draw different conclusions, questions of fact, to be decided by the jury, were presented. Dursch v. Fair, 61 Ill App2d 273, 282, 209 NE2d 509 (2nd Dist 1965); Turner v. Schaeffer, 30 Ill App2d 376, 390, 174 NE2d 690 (2nd Dist 1961). Also see Zank v. Chicago, R. I. & P. R. Co., 17 Ill2d 473, 479, 480, 161 NE2d 848 (1959); Brown v. McColl, 36 Ill App2d 215, 218, 183 NE2d 541 (2nd Dist 1962).

The determinative issue herein is whether the trial court properly granted the motion of defendants Melrose and Brislin for a new trial. In Payne v. Kingsley, 59 Ill App2d 245, 207 NE2d 177 (2nd Dist 1965) at page 252, this Court stated:

“In considering such motion, the trial court may weigh the evidence for the purpose of determining whether the verdict is contrary to the weight of the evidence, and, if the court so finds, a new trial should be granted. Heideman v. Kelsey, 414 Ill 453, 466, 111 NE2d 538 (1953); Hunt v. Vermillion County Children’s Home, 381 Ill 29, 34, 44 NE2d 609 (1943); Ardison v. Illinois Cent. R. Co., 249 Ill 300, 302, 94 NE 501 (1911); Lukich v. Angeli, 31 Ill App2d 20, 27, 175 NE2d 796 (1st Dist 1961); Read v. Cummings, 324 Ill App 607, 611, 59 NE2d 325 (1st Dist 1945).”

The nature and extent of the power of the trial court in ruling on a motion for new trial is stated in Buer v. Hamilton, 48 Ill App2d 171, 199 NE2d 256 (5th Dist 1964), at pages 173 and 174 in these words:

“In passing on a motion for a new trial, the trial judge has a greater latitude in passing on questions of fact than on questions of law, and a reviewing court will not reverse a ruling on a question of fact unless a clear abuse of discretion is shown. Hulke v. International Mfg. Co., 14 Ill App2d 5, 142 NE2d 717; Lukich v. Angeli, 31 Ill App2d 20, 175 NE2d 796. The matter of granting a new trial is in the sound discretion of the trial judge. (Citations.) As said in the Hulke case, ‘The presiding judge in passing upon the motion for new trial has the benefit of his previous observation of the appearance of the witnesses, their manner in testifying, and of the circumstances aiding in the determination of credibility. The trial judge is in a better position than a court of review to weigh the evidence. The allowance or refusal of the motion is largely within the discretion of the trial court. His decision is subject to review, but it is commonly said that it will not be reversed except for a clear abuse of discretion. (Citations.)’ ”

This thought was further expressed in Read v. Cummings, 324 Ill App 607, 59 NE2d 325 (1st Dist 1945), at pages 609 and 610, in these words:

“But after the verdict is returned a different question arises. It is then the duty of the trial judge to consider the weight of the evidence and if he is of opinion that plaintiff has not proven his case by a preponderance of the evidence, taking into consideration the fact that the jury has found otherwise, it is his duty to set aside the verdict and grant a new trial. And if the court does not do so but overrules the motion and enters judgment and the case is then brought to this court, we are not authorized to disturb the verdict on this ground unless the verdict and judgment are against the manifest weight of the evidence. ... It requires much more for this court to set aside a verdict and judgment than is required of the trial judge. It is his duty to set aside the verdict if he is of opinion that the plaintiff has not sustained his case by a preponderance of the evidence, while the question of the preponderance of the evidence does not arise at all in this court.”

However, in Commissioners of Lincoln Park v. Schmidt, 375 Ill 474, 31 NE2d 969 (1941), at page 477, the Supreme Court in considering the discretion of the trial judge in setting aside a jury verdict and in granting a new trial, stated:

“The discretion of trial judge is not unlimited but must be exercised reasonably.”

In Kahn v. James Burton Co., 5 Ill2d 614, 126 NE2d 836 (1955), the Supreme Court recognized the limitations on the power of a trial court and reviewing court in setting aside jury verdicts and at page 623 stated:

“A verdict will not be set aside merely because the jury could have found differently or because judges feel that other conclusions would be more reasonable. (Lindroth v. Walgreen Co. 407 Ill 121.) In the trial of a law suit, questions of one’s due care, another party’s alleged negligence and the proximate cause of such injured party’s injuries and damages are pre-eminently questions of fact for a jury’s determination. Under our system of jurisprudence, jury determinations can be set aside only when a court of review, or a trial court upon proper motion, is clearly satisfied that they were occasioned by passion or prejudice or found to be wholly unwarranted from the manifest weight of the evidence.”

The jury was justified in rendering a verdict against the defendants under the facts of this case. Brislin was driving in the wrong lane of traffic at a high rate of speed, and collided head on with the Guzman car which was travelling at an appropriate rate of speed with lights on, and in its proper lane. The plaintiff was a passenger in the rear seat of the cab and was not negligent, as a matter of law, at, or immediately before the collision. Smith v. Bishop, 32 Ill2d 380, 383, 384, 205 NE2d 461 (1965). Prior to the accident, plaintiff’s left leg was in good condition; and after the collision, it was broken badly.

It is obvious that the evidence manifestly sustained the jury verdict and that the trial court abused its discretion in setting it aside and in granting a new trial. Defendants Melrose and Brislin did not see fit to file abstract, brief or argument in support of the order of the trial court granting a new trial; the trial court left no memoranda indicating the reason for setting aside the jury verdict and judgment and for granting a new trial, and we can find none in the record.

In the post-trial motion, Melrose and Brislin contended that the verdict was the result of passion and prejudice and included punitive damages. However, it has long been the law in Illinois that the amount of a verdict is largely within the discretion of the jury. Lau v. West Towns Bus Co., 16 Ill2d 442, 452, 158 NE2d 63 (1959); Holsman v. Darling State St. Corp., 6 Ill App2d 517, 527, 128 NE2d 581 (1st Dist 1955).

In view of the nature and extent of the injury, the pain and suffering which plaintiff experienced, and the special damages incurred in the sum of $1,841.75, we do not believe that the verdict in the sum of $20,000 was either excessive- or included punitive damages. Neither was it of such amount as to show passion or prejudice.

We have reviewed the alleged errors with reference to the court’s rulings on the admission and denial of evidence, relative to instructing the jury, and have considered the alleged prejudicial remarks made by defendants’ counsel. We find no merit in these alleged errors.

The order granting the new trial is, therefore, reversed and the cause is remanded to the trial court with directions to set aside the order granting a new trial and to enter judgment on the verdict in the sum of $20,000, and for costs in favor of the plaintiff and against the defendants Melrose and Brislin.

Reversed and remanded with directions.

ABRAHAMSON, P. J. and MORAN, J., concur.