text:
    William A. Davidson, Plaintiff-Appellant, v. John H. Pugh, Defendant-Appellee.
    (No. 70-273;
    Second District
    October 8, 1971.

      David A. Decker, and Hartnet & Pease, of Waukegan, for appellant.
    Joslyn & Green, of Woodstock, for appellee.
   Mr. PRESIDING JUSTICE THOMAS J. MORAN

delivered the opinion of the court:

Plaintiff appeals from a judgment notwithstanding the verdict entered in favor of the defendant.

Plaintiff and defendant had gone on hunting and fishing trips for several years prior to 1967. In the fall of 1965 the defendant purchased a Sports Van vehicle which contained cooldng facilities, a bunk and space to store hunting and fishing equipment. Shortly after the purchase, defendant drove to the plaintiff’s house to show him the vehicle. At that time, plaintiff stated that if the defendant was ever planning to go on a hunting trip, he would “like to participate”, “would supply the food” and would “pay for the gas.”

Subsequently, plaintiff and defendant went on several hunting trips in the Van. The plaintiff testified that on all these trips he paid for gas, brought food for everyone and also brought liquor for the defendant’s consumption. The defendant, however, testified that he and plaintiff shared the expenses of food and gasoline at the end of each trip.

On November 22, 1967, at 4:30 A.M., plaintiff, his son and defendant left for a hunting trip. Plaintiff testified that he had brought along food sufficient to feed all three of the parties. The gas tank being Ml, he had not contributed toward the gas. The defendant testified that he did not expect plaintiff to pay any share for gas on the trip.

The defendant proceeded westerly on Route 176. At the intersection with Route 31, Route 176 angles approximately thirty degrees to the right. The weather was clear, the road dry but at about 5:00 A.M. it was still dark when the defendant entered the intersection, failed to make the turn and ran his vehicle off the highway. Defendant admitted that there was no physical fact or reason why he did not see the turn. He testified that he was familiar with the intersection, having driven through it an average of fifteen times in each of the last seventeen years, but further stated he had never driven through the intersection at night.

The plaintiff filed a two count complaint for injuries received. Count I alleged that plaintiff was a “passenger” in the vehicle and that defendant was guilty of ordinary negligence; Count II alleged that plaintiff was a “guest” and that defendant was guilty of wilful and wanton misconduct.

At the close of all the evidence, plaintiff moved for a directed verdict. The trial judge granted this motion and directed a verdict as to liability, finding that, as a matter of law, plaintiff was a passenger and defendant was guilty of ordinary negligence. The plaintiff, upon having liability directed in his favor, withdrew Count II. The case was then submitted to the jury solely on the question of damages. The jury returned a verdict for $46,000.

In his post-trial motion, defendant moved for a judgment n.o.v. or, in the alternative, a new trial. The trial judge granted this motion and entered judgment n.o.v. for the defendant reversing the earlier decision and held that the plaintiff was a guest as a matter of law. Plaintiff appeals from that decision.

Assuming that the trial judge was correct in finding that the plaintiff was a guest as a matter of law, the question before this Court is, did this fact, of itself, justify a judgment n.o.v. for the defendant? When the trial judge reversed his findings and held that the plaintiff was a guest as a matter of law, only the allegations of Count I should have been removed from the -case. Still to be resolved was the issue of liability under Count II. In his memorandum opinion the trial judge held that, as a matter of law, the plaintiff was a guest; he did not hold that as a matter of law the defendant was free from wilful and wanton misconduct. It is true, subject to the Pedrick rule (Pedrick v. Peoria & Eastern R.R. Co. (1967), 37 Ill.2d 494, 510, that the trial judge cannot remove the entire case from the jury if there is evidence which would tend to prove anyone count. Vail v. Graham (1930), 259 Ill.App. 172, 176.

The defendant does not appear to disagree with the foregoing. However, it is his position that Count II had been “voluntarily” withdrawn by the plaintiff at the time the judge directed a verdict for the plaintiff and argues that, consequently, at the time defendant presented his post-trial motion, only Count I was before the court. In order to rule on this point it is necessary to refer to the dialogue which occurred at the time the plaintiff received his directed verdict.

“The Court: Pardon me. Suppose I make up my mind to send this case to the jury on Count One, what becomes of Count Two? You can’t send them both to the jury. I will not permit that they both go to the jury. They are entirely different; they are inconsistent. It is one or the other.
*****
The Court: s * * I am boiling it down to Count One.
Mr. Decker: (Plaintiff’s attorney): If he is a passenger and it is a negligence case, then the plaintiff is entitled to a directed verdict because I can’t see any other way. I believe as a matter of law going off the road like that is negligence.
The Court: All right, I am going to rule with you on this, Mr. Decker.
*****
The Court: I think I should hold as a matter of law on this and get it narrowed down.
Mr. Decker: If the Court believes he is a passenger, I don’t think there is any issue remaining of any substance other than the question of damages.
The Court: That is my attitude; that is my feeling.
# # #
Mr. Green: (Defendant’s attorney). As I understand it, you are directing a verdict on Count One and holding that as a matter of law the plaintiff is a passenger for consideration?
The Court: That is right.
Mr. Green: And it is going to the jury simply on the question of damages?
The Court: Damages.
Mr. Green: What happens to Count Two then?
Mr. Decker: I will withdraw Count Two.
Mr. Green: I will object to the withdrawal of Count Two.
The Court: I will order it stricken.
Mr. Decker: If he is a passenger you can’t send it to them on wilful and wanton.
The Court: I will order it stricken.
Mr. Decker: It is withdrawn.
The Court: I will let him withdraw it; I will let him withdraw it over objection.”

It is apparent from this colloquy that the plaintiff withdrew Count II because it was moot and inconsistent with the judge’s ruling of liability on Count I and because of the judge’s insistence that it could not remain in this case. The withdrawal was totally contingent upon the finding of liability under Count I. Upon the judge’s reversal of his finding of liability under Count I, the plaintiff should not have had a judgment entered against him, but instead, was entitled to have his claim litigated under Count II. Since the plaintiff was not given his day in court under Count II, we must reverse the judgment n.o.v., reinstate Count II and remand the case for a new trial.

The defendant argues that it is futile to grant the plaintiff a new trial on Count II since the record is void of any evidence which would indicate that the defendant was guilty of wilful and wanton misconduct. We cannot agree. The defendant admitted that he was familiar with the road and knew that it “jogged” some thirty degrees to the right at the intersection. Despite this, he did not make the turn and ran his vehicle off the road. The defendant could not offer any excuse for not seeing the turn and could not explain why he drove off the highway. It is clear that such conduct raises an issue of wilful and wanton conduct which is within the province of the jury to decide. Larson v. Harris (1967), 38 Ill.2d 436, 439-440; Klatt v. Commonwealth Edison Co. (1965), 33 Ill.2d 481, 488-489; Schneiderman v. Interstate Tr. Lines (1946), 394 Ill. 569, 582-584.

Having remanded this cause, we must decide if the matter should be tried anew on both counts or solely on the issues of Count II. This decision depends upon whether the trial court was correct in ruling that the plaintiff was a guest as a matter of law.

The Illinois Guest Act, Ill. Rev. Stat. 1967, ch. 95½, sec. 9-201 provides:

“No person riding in or upon a motor vehicle ... as a guest without payment for such ride, or while engaged in a joint enterprise with the owner or driver of such motor vehicle . . ., shall have a cause of action for damages against the driver or operator of such motor vehicle . . ., for injury ... in case of accident, unless such accident shall have been caused by the wilful and wanton misconduct of the driver or operator of such motor vehicle ...”

The rationale of the Act is that there should be a difference between the liability of the person who, out of the generosity of his heart, renders gratuitously some service to his fellow traveler as opposed to one who renders such services for hire. However, since the Act is in derogation of the common law, it must be strictly construed. Rosenbaum, v. Raskin (1970), 45 Ill.2d 25, 30; Summers v. Summers (1968), 40 Ill.2d 338, 342.

The Illinois Supreme Court has defined a guest as a rider who is invited to enjoy the hospitality of the driver of the vehicle and who accepts the hospitality without making any return or conferring any benefit upon the driver, other than the pleasure of his company but, “An important, if not decisive, test, under the statute, is payment.” Miller v. Miller (1946), 395 Ill. 273, 287; Rosenbaum v. Raskin, supra, 30. Generally, if the rider has paid money for the ride the courts have held him to be a passenger. Robbins v. Campbell (1966), 72 Ill.App.2d 252; McNanna v. Gach (1964), 51 Ill.App.2d 276; Dirksmeyer v. Barnes (1954), 2 Ill.App.2d 496; contra, Marks v. Newburger (1966), 69 Ill. App.2d 220.

In determining whether one is a passenger or guest, the Illinois courts focus upon the individual case, Rosenbaum v. Raskin, supra 30, and the rule is:

“. . . (I)f the transportation confers only a benefit incident to hospitafity, compannionship or the like, a motor vehicle passenger is a ‘guest’ within the meaning of the Guest Statute; but if the transportation is primarily for some objective or purpose of the operator, the passenger is not a ‘guest’ within the meaning of the Statute.” Enlow v. Illinois Cent. R. Co., 103 Ill.App.2d 269, 276 (1968).

Benefit can be bestowed upon a driver by other than payment of currency. In Connett v. Winget (1940), 374 Ill. 531, a real estate broker drove a rider to look at some property which the broker was attempting to sell or exchange. In Gass v. Carducci (1962), 37 Ill.App.2d 181, a mother accompanied her daughter to the doctor’s office in order to better relate the granddaughter’s medical symptoms. In Justice v. Justice (1969), 114 Ill.App.2d 254, a rider was helping the driver unload some logs on the driver’s vehicle.

Applying the rationale indicated by the Illinois cases, we must then use the Pedrick test in determining the status of the plaintiff. The evidence, viewed in its aspect most favorable to the plaintiff, indicates that before the parties ever went on a trip in defendant’s van, the plaintiff offered to pay for all food and gas if the defendant invited him along on any hunting trips; that the parties then went on numerous hunting trips wherein the plaintiff supplied all the food, liquor and gas; that on the day of the accident the parties embarked on a trip which was similar to ones taken previously; that on that day the plaintiff brought enough food to feed the defendant. The trial judge originally found that the evidence, when viewed in its aspect most favorable to the defendant, so overwhelmingly favored the plaintiff that he held as a matter of law that the plaintiff was a passenger. We are of the opinion that Pedrick was not satisfied and that it was error to rule that the plaintiff was a “guest” as a matter of law.

We hold that in this case it is for the jury to decide whether there was expected benefit to the defendant pursuant to an implied agreement or if there was hospitality extended to the plaintiff to which he responded with gratuitous gifts of food, liquor and gasoline. See Freer v. Rowden (1969), 108 Ill.App.2d 335, 339. Therefore, a new trial will be ordered on both Count I and Count II.

Reversed and remanded for a new trial.

GUILD and SEIDENFELD, JJ., concur.


source: Caselaw Access Project

author: Mr. JUSTICE SEIDENFELD

license: Public Domain

text:
    Richard Gilberto, a minor, by Phyllis Gilberto, his mother and next friend, Plaintiff-Appellee, v. Lillian Nordtvedt, Administrator of the Estate of Robert Ramel, Deceased, Defendant-Appellant.
    (No. 70-285;
    Second District
    October 5, 1971.

      Strass Terlizzi & Skjoldager, of Dundee, (R. M. Strass, of counsel,) for appellant.
    Fred Lambruschi, of Chicago, for appellee.
   Mr. JUSTICE SEIDENFELD

delivered the opinion of the court:

Defendant, Lillian Nordtvedt, Administrator of the Estate of Robert Ramel, Deceased, appeals from a judgment for $50,000 in favor of the plaintiff Richard Gilberto. The judgment was entered upon a jury verdict in a cause involving personal injuries resulting from an automobile accident on June 18th, 1968. Defendant urges trial errors as depriving him of a fair trial.

The complaint filed by the plaintiff had originally included a Dram Shop Count charging intoxication, but this was dismissed upon plaintiff’s motion prior to the beginning of the trial with an admission that he was unable to prove intoxication. Defendant first argues that the court erred in refusing to enter a protective order which would have forbidden the statement by a witness James Green in an evidence deposition, that Ramel drank “one can” of beer at a party prior to the accident.

The evidence deposition of Green was taken in Wisconsin on April 24th, 1970, by plaintiffs attorneys with defendant’s counsel participating. Green had lived in the same apartment with Ramel in Illinois during March, April and May of 1969. The testimony was that in April of 1969, Ramel narrated details of the accident which had taken place the previous June. In substance, Green testified that Ramel told him that he had trouble sleeping as he kept hearing one of the passenger’s voice telling him to stop or slow down; that he approached the curve where the accident occurred at 90 to 100 miles per hour; and that Ramel explained that he had an argument over the telephone with his girl friend, Carole Baum, earlier that evening while he was at a party. Green also testified that he was at the party attended by Ramel, his passengers and a number of others just prior to the accident, and that a small amount of beer was consumed. The witness was asked whether he saw Ramel drink any beer, and he answered “he had one can”.

Defendant argues that it was prejudicial error to permit evidence of defendant’s drinking to go to the jury when intoxication was not an issue, citing such cases as Miller v. Chicago Transit Authority (1954), 3 Ill.App.2d 223; Clarke v. Rochford (1967), 79 Ill.App.2d 336; Shore v. Truman (1965), 63 Ill.App.2d 315; Kitten v. Stodden (1966), 76 Ill.App.2d 177 and Warp v. Witmore (1970), 123 Ill.App.2d 157. These cases are authority for the rule that evidence of drinking cannot be equated with intoxication and that it is error to introduce the issue of drinking when intoxication is not an issue. We think the trial court should have stricken that portion of the evidence deposition. However, the introduction of this irrelevant evidence of drinking is cause for reversal only if it results in prejudicing the jury’s verdict. Thus, in Miller v. Chicago Transit Authority an objection to a question regarding drinking was sustained by the trial judge and thereafter counsel pursued the subject with another question to which an objection was again sustained. The questions were part of an apparent effort on the part of defendant’s counsel to discredit the testimony as to plaintiff’s dizziness and his falling in the hospital by the innuendo that plaintiff had been drinking with no proof to support the statement. In addition, defendant’s counsel was attempting to show purely by innuendo that the plaintiff’s manner of speech was different when he took his deposition although there was no proof in that regard. Under those facts the holding properly was that the verdict was the result of prejudice. Similarly in Clarke v. Rockford an attempt was made to raise the question of intoxication by insinuation and to also bring up the issue concerning revocation of the defendant’s driver’s license for drunken driving at a previous time, with obvious prejudice. In Kitten v. Stodden there was obvious prejudice in the statement by the trial judge during voir dire examination that “two drunks are still entitled to the same law as persons who are not intoxicated” when there was no evidence of intoxication. Likewise, the other cases cited are inapposite on their facts.

Here, there was no attempt to show that Ramel was intoxicated at the time of the accident by innuendo or inference. With the exception of the reference in Green’s deposition testimony, there was no other reference to drinking in any argument to the jury or in any comment or instruction. Harmful error does not necessarily result when immaterial facts are adduced at a trial; it may result if such evidence is of such nature or so pursued that it influences a verdict by an appeal to passion or prejudice. (See Boeker v. Grigg, Abst-1956), 11 Ill.App.2d 368. See also Shephard v. Smith (Wash.-1939), 88 P.2d 601, 603 and LeFevre v. Bear (Fla.-1959), 113 So.2d 390, 392.) The evidence of Ramel’s having drunk one can of beer at a party, under all the circumstances, was not considered by the court to have a prejudicial effect and we will not interfere with the exercise of the discretion of the court in not withdrawing that portion of the testimony in the deposition from the jury.

Defendant also argues that the court erred in allowing two eye witnesses, Caufield, and Strossner, to testify for the plaintiff. The evidence showed that the accident happened when Ramel attempted to pass a car being driven by Caufield (in which Strossner was a passenger) at a curve. Ramel did not make the curve, his car hit a guardrail, bounced up in the air and came backwards in a big U-tum and hit Caufield’s car. Defendant’s argument is based upon the fact that Ramel had died (of causes unconnected with the accident after the complaint was filed but before the trial) and the cause was being defended by his administrator. Defendant urges that the possibility of these witnesses suing or being sued as a result of the accident made them “interested parties” barred under the provisions of the Evidence Act (Ill. Rev. Stat. 1967, ch. 51, par. 2). No suits had been filed by either Caufield or Strossner and whether any such suits would be filed was speculative. Nor are we given any authority that the outcome of this case would be binding in other suits however unlikely to be filed in the future. Neither Caufield nor Strossner were parties to this suit and under the circumstances in the record no valid reason for joining them is indicated. The fact that Gilberto might sue Caufield or that Caufield and Strossner could have sued Ramel did not provide the direct, certain and immediate interest required to bar their testimony under the statute, considering the circumstances of this record. (Bellman v. Epstein (1917), 279 Ill. 34, 37; Gieseke v. Hardware Dealers Mut. Fire Ins. Co. (1965), 61 Ill.App.2d 119, 125; Braun v. Lawder (1951), 344 Ill.App. 423, 426; Martin v. Stransenback (Abst-1948), 334 Ill.App. 624.) The cases cited by defendant Clifford v. Schaefer (1969), 105 Ill.App.2d 233, and Mernick v. Chiodini (1957), 12 Ill.App.2d 249, involve witnesses who were actual parties, directly interested and adverse to the administrator, and have no application here. We conclude that the court did not err in allowing Caufield and Strossner to testify.

Defendant then argues that the court erred in granting plaintiffs motion for a protective order denying proffered testimony of witnesses that Green had stated, subsequent to his deposition, that he had been paid for his testimony by plaintiffs representative and had lied. In view of our holding as to the testimony of the witnesses Caufield and Strossner, the importance of the Green deposition would appear to be minimal on the whole record. Their testimony as to Ramel’s speed of 90 to 100 miles per horn: as he approached the curve would surely account for the jury finding that defendant was guilty of wilful and wanton misconduct. Moreover, this testimony of speed was confirmed at a point a mile or two before the accident by Robert Hosie, another witness for plaintiff. Also, the deposition of Green was allowed to be impeached by testimony of the witness Carole Baum that she and Ramel did not have a quarrel before the accident, and by the testimony of Gerald Shaver and James Summers that Green had a bad reputation for truth and veracity.

In our view, it was not error for the court to prevent Shaver and Summers from testifying to the purported conversation with Green two days before the trial. The record shows that on the day of trial, prior to the choosing of the jury, defendant’s counsel moved orally to suppress Green’s deposition. He stated that his investigation had uncovered, only the night before trial, that Green had lied in his deposition for money and that Ramel had not confided in Green at all with reference to the details of the accident. The court noted that defendant could put Green on and impeach his testimony. Defendant’s counsel asked the court to issue a request to the Circuit Court of Jefferson County, Wisconsin, to subpoena Green. The court, stating that Green was not within the State of Illinois, refused the motion but further noted that it would be a day or two before plaintiff could put in all of his evidence and that defendant’s counsel could bring Green in if he were available. The deposition of Green was read to the jury by plaintiff’s counsel on direct examination, defendant’s counsel on cross-examination, with no further objection. At the close of plaintiff’s case in chief, after a motion for a directed verdict was denied, plaintiff’s counsel moved for the protective order against the witnesses’ testifying to charges against his office amounting to the purported bribery of a witness. The stated basis was that Green, as a non-party witness, could only be impeached by first laying the usual foundation which would allow the witness to state under oath whether he had made the alleged impeaching statement.

In our opinion, the court properly granted the motion. A non-party witness may be impeached by a showing that he made inconsistent statements at another time as well as by proof of bias or motive to falsify. First, however, a foundation must be laid in order to alert the witness and to give him a chance to explain in either case. (People v. Payton (1966), 72 Ill.App.2d 240, 249. See also, People v. Rainford (1965), 58 Ill.App.2d 312, 317.) Defendant has argued that there was a proper foundation in this instance because, in the evidence deposition, Green had been asked generally whether he had been paid to testify and had answered in the negative. These questions and answers did not relate to the purported statements made by Green at a later time. The implication of the purported statement made by Green just prior to trial had much greater scope than whether or not he had received payment of any kind for appearing as a witness. The purported impeachment was directed at not merely whether the witness received some payment but at his alleged admission that he had not had the stated conversation with Ramel and that he lied in his deposition for pay. We agree that under these circumstances the witness must have an opportunity under oath to respond to such statements allegedly made by him before other witnesses can testify to them.

We, therefore, affirm the judgment below.

Judgment affirmed.

MORAN, P. J., and SEARS, J., concur.

       Defendant has argued that he did “everything he could think of to meet this problem head-on”. He refers to this motion for the suppression of the deposition and the alternative request to the Wisconsin court through the trial court to subpoena Green for trial. These requests were no answer to the problem. Defendant, in oral argument, suggests that he asked for a continuance in order to get the further evidence deposition of Green. The record does not support this contention and, additionally, counsel falls far short of claiming in his brief that he requested a continuance. In the colloquy before the court in which plaintiff’s attorney objected to inferences that his office had engaged in wrongful conduct, defendant’s counsel offered to submit the whole matter of “activities of attorneys or investigators” to the court for a hearing before continuing with the testimony, but no motion was made for a, continuance of the trial.


author: Mr. JUSTICE ABRAHAMSON

text:
    The Department of Business and Economic Development, Petitioner-Appellee, v. Andrew Brummel, et al., Defendants-Appellant.
    (No. 70-288;
    Second District
    October 8, 1971.

      Rehearing denied November 18, 1971.

      Michael P. Edgerton, and Edward J. Farrell, of West Chicago, for appellant.
    Frank S. Righeimer, Jr., Special Assistant Attorney General, of Chicago, for appellee.
   Mr. JUSTICE ABRAHAMSON

delivered the opinion of the court:

The defendants appeal from a judgment entered by the circuit court of DuPage County upon a jury verdict in a condemnation proceeding brought by the Department of Business and Economic Development of the State of Illinois. On December 2, 1968, the Department filed a petition to condemn a parcel of 45.06 acres (described in the petition as Parcel 106) to be used as part of the atomic accelerator laboratory to be developed by the United States government. Title was vested in the Department on January 14, 1969, pursuant to a quick take proceedings. On July 29, 1969, the defendants filed a cross-petition alleging damage to the remainder of their property, being 46.52 acres immediately to the east of and adjoining the parcel taken. The matter proceeded to trial on April 6, 1970 and the jury returned a verdict of $86,950 for the part taken and no damage to the remainder.

The defendant’s property was virtually bisected by a railroad right-of-way owned by the Elgin, Joliet and Eastern Railroad that runs north and south through the entire property. Parcel 106, located on the west side of the railroad, is L shaped and has a frontage of approximately 565 feet on Batavia Road that bounds it to the north. Immediately to the east of and adjoining the railroad right-of-way there is a 25 foot wide easement granted to a gas pipeline company that also runs through the property completely north to south. That portion of the property to the east of the railroad has frontage of about 1600 feet on Batavia Road. Ferry Creek runs through the southwest portion of Parcel 106 and 4 to 5 acres of that parcel are within the creek. Effluent from a nearby sewerage plant is carried away by the creek.

Although the record is not clear on this point, it appears that the western-most part of Parcel 106 adjoined the limits of the Village of Weston. State Route 59 is located approximately % of a mile to the east and the East-West tollway about 2 miles to the south. The municipalities of Batavia, West Chicago, Warrenville and Naperville are all located within a radius of 5 miles from the defendant’s property.

Leon C. Kroning testified that he was the owner of the property and had acquired it in 1955. He resided on and operated his construction business from that part of his property located on the east side of the railroad and leased the west portion out, in his words, “to keep the weeds down and grow corn”. Both portions were zoned R-2 (residential) in the County of DuPage but his business use preceded the zoning ordinance. ICroning stated that, prior to the taking, sewer and water facilities were available for his property from Weston but that the closest source thereafter was in West Chicago about 3% miles away. He also testified that although no written plans had ever been prepared, he had “mental” plans for the development of his property.

George Broomis appeared as a valuation witness for the defendant. He testified that he was a real estate broker and developer and had been active in the real estate market in the Chicago area since 1956. It was his opinion that the highest and best use of the whole property was to hold it “for future development with the potential for multiple and industrial use” and that the fair cash market value as of December 2, 1968, was $425,639. He placed a valuation of $170,109.05 on the portion taken as part of the whole. His testimony and opinion as to damage to the remainder was stricken pursuant to a motion made by the Department. Only one other valuation witness appeared for the defendants and his entire testimony was stricken when it was disclosed that his method of evaluation was improper.

Edward M. Kyser, a senior member of the American Society of Appraisers, testified as an expert witness for the Department. It was his opinion that the highest and best use of the property was farming, to be held for future residential development and that the value of Parcel 106 was $81,000 or $1800 an acre as of December 2, 1968. Jay Fitts, a professional appraiser and consultant with extensive experience in the area, also testified for the petitioner. It was his opinion that the land should be held for future development and that Parcel 106 was worth $2175 an acre or $98,000. Harry Bierma, Jr. testified, pursuant to subpoena, that he made a cursory investigation of the property for the defendants’ attorney and that in his opinion it was worth $2000 an acre.

The defendants contend that the trial court improperly excluded evidence of comparable sales offered by them and also erred in the admission of such sales offered by the petitioner. The two sales offered by the defendants and excluded by the trial court took place in the fall of 1968. They involved the sales of farm property, zoned R-2 in the County of DuPage, in parcels of 63 and 58 acres each located about 2% miles from the subject property. Both sales were of property with extensive coverage on the East-West tollway and one bordered state route 59, a main arterial road in the area. In addition, those properties had immediate access to utilities and were worth, according to the offer of proof, approximately 20-30% more than the subject property.

It was, of course, the legitimate function of the trial court to consider whether these other properties were sufficiently similar to the subject property to permit the jury to consider their sales as evidence of value. The determination whether a property is “sufficiently similar” is not capable of precise definition and must be made, in each case, within the wide discretion of the trial court. Forest Preserve Dist. v. Harris Trust & Savings Bank, 108 Ill.App.2d 65, 74, 247 N.E.2d 188; Illinois Building Authority v. Dembinsky, 101 Ill.App.2d 59, 63, 242 N.E.2d 67. Although the trial court did not indicate the reason it excluded the other sales, it appears to us that the location of the properties was of considerable significance. Broomis testified that tollway frontage would, of itself, substantially increase the value of otherwise identical properties.

On the other hand, the evidence of comporable sales offered by the petitioners concerned farm properties of similar size voluntarily sold within 1 to 3 years prior to the commencement of the suit. Although the properties were located from 1 to miles from the subject property, all were located on the perimeter or within the accelerator site. Under the circumstances, we feel that the rulings of the trial court relative to the offer of evidence on comparable sales were well within the limits of its reasonable discretion.

As we have seen, the comt granted the petitioners motion to strike all of the testimony of the witness Broomis relative to damage to the remainder. Broomis had testified that in his opinion the remainder would be damaged because of the diminution in size of the whole parcel and the loss of proximity to municipal sewer and water facilities and that the damage would be $79,781. Although the loss of size of remaining lands has been held to be a proper element of damages, it is not an element per se but must be supported by evidence of direct and proximate damage caused by the diminution. Waukegan Park Dist. v. First Nat. Bk., 22 Ill.2d 238, 246; Trunkline Gas Co. v. O’Bryan, 21 Ill.2d 95, 100; County School Trustees v. Elliott, 14 Ill.2d 440, 446. Here, the evidence showed that the owner, Kroning, used his property for two entirely different uses. Parcel 106, the part taken, was leased out as farmland and separated from the remainder by a railroad right-of-way and a 25 foot easement. The remainder was used by Kroning in the operation of his business and for his family residence. There was absolutely no evidence that the remainder was in any way damaged by the reduction in size of the entire tract and, indeed, there was evidence that the value of the remainder was actually enhanced by that fact.

Both Broomis and Kroning testified as to the existence of sewer and water facilities in nearby Weston that could have serviced the property before the taking. Kyser testified, however, that the Weston sewage plant was not large enough to service any lands outside the then existing village limits. In any event, there is nothing in the record to show that the availability of Weston’s facilities, if any there were, had been lost to the remainder as a result of the taking of Parcel 106. The evidence of damage to the remainder was far too vague and speculative to warrant consideration by the jury and the court quite properly struck it.

The defendants next maintain that the trial court was in error when it ordered them to open and close at all stages of the proceeding. It was well-settled in Illinois prior to 1957, when “quick-take” proceedings were authorized, that the condemnor in eminent domain cases, having the burden of proof, was entitled to open and close both as to the introduction of evidence and argument to the jury. The Supreme Court, however, in 1967 ruled that in condemnation proceedings after a quick-take, the condemnee had the right to open and close argument. Department of Public Works and Buildings v. Dixon, 37 Ill.2d 518, 521, 229 N.E.2d 679.

A later case has ruled that if the condemnee avails himself of the right to open and close argument, he must open and close at all stages of the proceeding. Department of Public Works and Buildings v. Tinsley, 120 Ill.App.2d 95, 100, 256 N.E.2d 124. Here, however, the defendant did not avail himself of the right to open and close, but was ordered to do so by the trial court pursuant to the motion of the petitioner. It appears that the trial court made its ruling as a result of a misunderstanding of the Tinsley case (which had not been printed at that time). However, we are unable to see that the defendant was prejudiced in any way as a result of the sequence followed in the presentation of evidence. Although it is obviously true, as contended by the defendants, that their witnesses were the first to be subjected to cross-examination, we do not see how this left them in a “weakened” position caused by “adverse rulings”. The defendants also maintain that they were denied their right to a fair and impartial trial by the prejudicial misconduct of counsel for the petitioners and the hostile attitude of the trial court towards their theory of the case. We have examined he record with considerable care arid find that the conduct of counsel does indeed invite criticism. Although we recognize that a protracted trial will often fray the nerves of the participants we deplore the continued interruptions and sarcasms present in this case. We find no evidence, however, of any hostility by the court towards the defendants or their theory of the case or that the conduct of the petitioner’s attorney prejudiced the jury.

I has been stated many times that where the jury has viewed the property and the amount of compensation awarded is within the range of the evidence the verdict will not be disturbed unless it appears that it resulted from passion, prejudice or clear and palpable mistake. City of Chicago v. Shell Oil Co., 29 Ill.2d 136, 138; Dept. of Public Works and Bldgs. v. Christensen, 25 Ill.2d 273, 276; Dept. of Public Works and Bldgs. v. Dust, 24 Ill.2d 119, 121. Here the admissible evidence relative to the value of the property ranged from $81,000 to $170,109.05. The jury viewed the property and returned an award within that range albeit close to the lowest valuation. We do not find that the jury was influenced by passion or prejudice or that the award resulted from any clear or palpable mistake and therefore wiH not disturb the verdict.

Finally, the defendants contend that the trial court erred in the instructions given to the jury. Petitioner’s instruction No. 1, given over objection, started out as foHows: “The State Agency in this case is entitled to the same fail- and unprejudicial treatment as an individual would be under like circumstances * # *” This instruction is based on Illinois Pattern Jury Instruction [I.P.I. No. 1.01] wherein the name of a corporate Mtigant is ordinarily inserted and is an exception to the general rule prohibiting the singling out of a particular party. The committee comments to the instruction point out the possible prejudice the jurors may have against a corporation as the basis for the rule and the same logic would not necessarily apply to an instrumentality of the State. However, we do not believe that the error, if any, in giving the instruction could be considered harmful to the defendants.

Most of the defendants’ instructions that were refused referred to damage to the remainder or other matters not relevant to the issues be-he jury and were properly refused. An examination of all the instructions indicates that they were generally fair and impartial.

For the reasons stated, the judgment of the trial court wiH be affirmed.

Judgment affirmed.

SEIDENFELD and GUILD, JJ., concur.


author: Mr. JUSTICE GUILD

text:
    The People of the State of Illinois, Appellee, v. Larry Blake, Impleaded, Appellant.
    (No. 71-1;
    Second District
    October 8, 1971.

      Ralph Ruebner, of Defender Project, of Elgin, for appellant.
    Philip G. Reinhard, State’s Attorney, of Rockford, (Galyn Moehring, Assistant State’s Attorney, of counsel,) for the People.
   Mr. JUSTICE GUILD

delivered the opinion of the court:

The defendant was jointly indicted with one Louis E. Watkins for the crime of burglary and subsequently tried before a jury which found him guilty. He was granted probation on the 12th of June, 1970. Three days later he was arrested for attempted burglary. Shortly thereafter a petition for revocation of probation was filed. On July 16th, 1970, his probation was revoked and he was sentenced to 1-3 years in the Illinois State Penitentiary.

It appears that on the 16th of December, 1969, the defendant in company with Watkins and a juvenile were observed driving up and down Forsythia Drive in Rockford. About 10:00 o’clock in the morning their car pulled into the driveway of a residence owned by the Fowlers.

The neighbor across the street saw one of the three men get out of the car and apparently knock at the front door. She then observed one of them go into the house and shortly thereafter through a picture window of the Fowler house one of the men beckoned to the other two in the car who in turn entered the house through the front door.

The neighbor, Mrs. Jones, aroused her husband who was sleeping as he worked nights. Mr. Jones went to the Fowler house and into the kitchen where he grabbed a bread board and went into the living room. The defendant and the other two men with him were found in the bedroom. They came out of the bedroom and when Mr. Jones asked them what they were doing there, they said they were looking for “Willie.” He advised them no one lived there by the name of Willie and they left hurriedly. In the meantime, Mrs. Jones had called the police and the defendant and his two companions were arrested shortly thereafter.

It appears further that the Fowler house was unlocked and the testimony of Joanette Fowler, the thirteen year old daughter of the owners, was that she had made the bed in the master bedroom before she went to school; that the drawers to the dresser were closed; and that the jewelry box on the dresser was closed. Examination of the premises after the defendant and his companions were found in the bedroom disclosed that the mattress on top of the box springs had been moved six or eight inches off of the box springs, the bedding had been thrown back, and at least two drawers of the dresser were opened and the jewelry box was open.

The sole ground for reversal urged by the defendant is that the defendant was not proven guilty beyond a reasonable doubt. In support of this contention the defendant has cited and relies upon People v. Hutchinson (1964), 50 Ill.App.2d 238, 200 N.E.2d 416. In Hutchinson the defendant entered a house and went into the kitchen of the complainant. A neighbor saw him do so and saw him leave approximately five minutes later. Nothing was taken there and nothing was disturbed in the house. The instant case differs materially from the Hutchinson case contrary to defendant’s contention, in that here, the defendant and his companions were apprehended in the house in then purported quest for Willie. Little opportunity apparently was left for them to take anything from the house as they were disturbed in their activity by Mr. Jones.

Defendant also cites People v. McCombs (1968), 94 Ill.App.2d 308, 236 N.E.2d 569 which may also be differentiated from the instant case in that Me Combs was found in the house and charged with burglary. However, this court found that Me Combs apparently had returned to the house “to resume a previously defined relationship with Barbara Berg, a consenting adult” when he was inadvertently interrupted. The sister of the consenting adult was sleeping in the consenting adult’s bedroom and the defendant was apprehended therein after he had removed his trousers and shirt. It is to be further noted that in the Me Combs case the defendant had waived a jury trial and the finding of guilty was reversed as this court held that there was no proof of felonious intent on the part of the defendant. That is not true of the instant case where the evidence discloses that while the defendant was apprehended in the building his explanation was not believed by the jury and the evidence indicated that the ransacking of the bedroom had been interrupted by the neighbor who came into the house.

In People v. Soznowski (1961), 22 Ill.2d 540, 177 N.E.2d 1946 also cited by the defendant, the court held that “the evidence disclosed no overt act on the part of the defendant after his entering the dwelling directed toward accomplishing his alleged intention of stealing.” Interestingly enough, in Soznowski the defendant was tried by the court without a jury upon an indictment for assault with attempt to commit rape and burglary. At the close of the State’s evidence the trial court found the defendant not guilty on the count charging assault with attempt to commit rape and after hearing all the evidence found the defendant guilty of burglary. The Supreme Court further stated, in holding that the intent to commit burglary was not proven, “the fact that defendant was discovered in the middle of the night in a ladies’ bedroom beating her, whatever the purpose of this act, would seem sufficient motivation for his flight and does not compel the conclusion that he entered the dwelling with intent to steal.”

In the instant case the defendant testified that Louis Watkins went into the Fowler home for the purpose of finding Willie. It would appear that when Watkins did not find him the other two men, including the defendant, also entered the house. Watkins also testified that they were looking for Willie.

We therefore have the situation where the entry into the dwelling was admitted, testimony adduced that the bed was disarrayed, the drawers opened, the jewelry box was open, and at this point the three men were interrupted by neighbor Jones. Obviously, the jury did not believe the defendants and it is not necessary to cite the multitudinous cases in this state where our courts have stated that the verdict of the jury will not be disturbed unless it is against the manifest weight of the evidence, nor will this court substitute its judgment for that of the jury in this case.

Defendant’s last contention is that the seven year old daughter of the complaining witness should have been called as a witness, and that the police officers should have taken finger prints on the dresser. Both of these contentions are without merit. It is the prerogative of the State as to what witnesses it will call. Had he chosen to do so, the defendant could have called this seven year old as a witness. This court knows of no law to the effect that finger prints must be taken where the defendants are interrupted in the commission of an offense, are apprehended in the house of another, and the evidence indicates that the premises have been ransacked. It is the province of the jury to determine whether the defendants are guilty of burglary or whether they will believe that it was necessary for all three of the persons involved to enter the house for the purpose of finding someone named Willie.

Judgment affirmed.

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


author: Mr. JUSTICE STOUDER

text:
    The People of the State of Illinois, Appellee, v. James William Manley, Defendant-Appellant.
    (No. 70-188;
    Third District
    October 14, 1971.
    Stuart R. Lefstein, of Rock Island, for appellant.
    Gregory L. DePorter, Assistant State’s Attorney, of Rock Island, for the People.
   Mr. JUSTICE STOUDER

delivered the opinion of the court:

Defendant-Appellant, James Manley and three co-defendants Bruce Burt, Jerry Burt and Fred Gary were indicted for the offense of robbery by the grand jury of Rock Island County. The trial of defendants Manley and Bruce Burt was separated from the trial of the other co-defendants and after a trial by a jury each was found guilty as charged. Defendant Manley was sentenced to a term of from one to seven years in the penitentiary from which judgment and sentence he has appealed.

The pertinent facts adduced by the State are substantially as follows. On June 14, 1970, Charles Myers was employed as the attendant at a Clark gasoline station located in Rock Island, Illinois. At approximately 10:30 or 11:00 P.M., he observed two “colored persons” walking toward fire station on the west ramp drive. They came into the station and one of them, who was identified as defendant Burt, said something about “not having * * * a cash register” in the station.

A couple of minutes later, two other “colored men” walked up the east ramp drive. As the two new men were walking up the drive, the two in the station building stepped outside, and one of the two who had just arrived came into the station, so that there was then only one “colored man” in the station with the attendant.

At this time, with the attendant alone in the station with the newly arrived “colored man”, and with the station door closed, the attendant was informed: “Man, if you don’t want to get hurt, get your money out. I mean it, Man, if you don’t want to get hurt. I mean it, Man, we’ve all got guns. If you don’t want to get hurt, give me your money.” The attendant never actually saw a gun. In response to the threat, the attendant handed over $35.00 and the individual taking the same stuck it in his pocket and ran out the door. As he did so, he said, “Come on, Man, let’s go,” and grabbed the arm of one of the men outside, and the two of them started running in an easterly direction.

Then, according to the attendant, as he came outside defendant Burt asked him what had happened, and the attendant replied, “I was robbed”. The attendant then started to call the police. Whereupon, Burt, and the man who resembled Manley, also started to run. Myers, also called as a witness by the defendant, indicated that the defendants appeared surprised after he told them that he had been robbed.

Defendant Manley at the time of trial was 18 years of age and had no prior record. According to his testimony he had been at a pool hall in Davenport when he was picked up by defendant Burt at between 6:00 and 6:30 P.M., and that Fred Gary was with Bmt. They then drove to a girl’s house in Rock Island and met a Jerry Burt, who was a cousin of the defendant, Bruce Burt. After leaving the girl’s house they rode around and parked the car on a side street and walked to the Clark Service Station.

Manley stated that he never did go into the station, but that Bruce Burt did and then came back out. He stated that Jerry Burt was inside the station, but that Fred Gary was outside. Manley then related that Jerry Brut came running out of the gas station and ran down the street. He heard Bruce Burt ask the attendant what had gone on, and after the attendant responded, Burt then asked him (Manley) what he thought they should do. Manley replied that he didn’t want to get involved and told Burt that they should leave. They went back to the car and found Jerry Burt lying down in the back seat of the car.

The three of them then drove to a girl friend’s house, stayed about an hour, and went to Davenport to Bruce Burt’s house. He stated that they were then sitting at a table, and Jerry took some money out of his pocket and gave them $7.00 apiece. Manley stated that Jerry Burt did not indicate where he received the money, although earlier in the evening Jerry Burt had said something about a painter paying him $30.00 for painting a houe. Manley also stated that Jerry Burt owed him (Manley) money. He stated that he never at any time knew that anyone was going to rob the Clark Service Station.

On cross-examination, defendant Manley stated that they rode around for about an hour before the incident in question, but that he was not paying any attention to the conversation that was going on in the automobile, and specifically he did not hear them talking about “making a hit” or “snatching a purse somewhere”. Manley stated that they were going to the service station to get some pop and that he ran down the street from the alley after the attendant told him about being robbed because he was “scared”.

The testimony of Bruce Burt generally corroborated the testimony of Manley with his additional testimony that there had been a conversation principally between himself and Jerry Burt and Fred Gary concerning the latters’ desire to “snatch a purse” or something, which plan Bruce Brut did not want any part of. According to this witness Manley was not a part of the conversation and the witness himself had no intention of going with or participating in any activities with the other two.

Rock Island police officers testified that defendants Bruce Burt and James Manley had been arrested in Davenport, had waived extradition had cooperated with the police and had executed question and answer statements. In their statements each of the defendants described their conduct generally in accord with their testimony in the case each denying that he had any knowledge of any intended robbery of the Clark station or that either of them intended to rob the station.

Defendant has made several assignments of error but the only assignment which we believe it necessary to consider is his contention that the evidence is insufficient to justify the conclusion that he was guilty of the offense charged beyond a reasonable doubt.

It is undisputed that defendant was not the actual perpetrator of the robbery. His guilt depends upon his accountability for the offense which took place. Such accountability is determined in accord with Ill. Rev. Stat. 1969, ch. 38, pars. 5—1 and 5—2(c). Section 5—1 provides, “Accountability for Conduct of Another — A person is responsible for conduct which is an element of an offense if the conduct is either that of the person himself, or that of another and he is legally accountable for such conduct as provided in Section 5—2, or both.” Section 5—2(c) provides, “Either before or during the commission of an offense, and with the intent to promote or facilitate such commission, he solicits, aids, abets, agrees or attempts to aid, such other person in the planning or commission of the offense * * Whether a person is accountable and guilty of the offense charged may be proved by circumstantial evidence as in other cases. Presence at the scene of an offense and flight are circumstantial evidence which may tend to prove and establish defendant’s guilt. (People v. Smith, 127 Ill.App.2d 199, 262 N.E.2d 165.) However such circumstantial evidence must be considered with all of the other circumstances in determining whether defendant’s guilt has been satisfactorily determined. Defendant’s presence and flight are subject to explanation and in light of other circumstances their tendency to prove guilt may be diminished. People v. Washington, 121 Ill.App.2d 174, 257 N.E.2d 190.

So far as the facts of the case at bar are concerned there is nothing in defendant’s presence near the scene of the offense warranting the inference that he had prior knowledge concerning the commission of the offense or that he knew or should have known that an offense inside the filling station was being committed. The victim’s testimony tends to corroborate the testimony of defendant concerning the defendant’s surprise at learning that there had been a robbery and defendant’s flight after a hurried conference with his friend is at best an ambivalent circumstance having no significant tendency either to prove the commission of the offense or render defendant’s account improbable.

It is our conclusion that the evidence is so unsatisfactory that a reasonable doubt exists concerning defendant’s guilt.

For the foregoing reasons the judgment of the circuit court of Rock Island County is reversed.

Judgment reversed.

ALLOY, P. J„ and SCOTT, J., concur.


text:
    Charles Q. Burroughs, as Conservator of Lean Burroughs, Plaintiff-Appellant, v. Matt Burroughs et al., Defendants-Appellees.
    (No. 70-216;
    Third District
    October 14, 1971.

      Froehling & Taylor, of Caton, (Ralph Froehling, of counsel,) for appeHant.
    Crissey, Kost & Downs, of Lewiston, (Lachlan Crissey, of counsel,) for appellee.
   Mr. JUSTICE STOUDER

delivered the opinion of the court:

This is an appeal from a judgment of the circuit court of Fulton County granting the motion of Matt Burroughs and Robert Burroughs, Defendants-Appellees, for judgment in their favor made at the close of the evidence introduced by Plaintiff-AppeHant, Charles Burroughs, Conservator of the estate of Lena Burroughs, incompetent. This action originally commenced by Lena Burroughs was brought in three counts, the first sought to have a deed absolute in form declared to be a mortgage, the second and third counts sought recession on the basis of fraudulent misrepresentation and the violation of a fiduciary duty respectively. After this case was filed but prior to the hearing, Lena Burroughs was judged to be incompetent, Charles Burroughs, her son, was appointed her conservator, and as such conservator was substituted as party plaintiff.

In April, 1967, Lena Burroughs a widow, was the owner of 240 acres of farm land in Fulton County Illinois, the land being farmed by her son Charles Burroughs. The farm had been acquired by Lena Burroughs’ husband in 1957 and he did in 1958. There had been no mortgage on the premises since its acquisition by the Burroughs.

In 1961 Lena Burroughs executed a coal lease on the premises which provided for advance royalty payments of $100,000. Such advance royalty payments were payable at the rate of $3000 per year for the first nine years of the lease and the balance of $73,000 was due at the end of the tenth year. The coal company had the option to terminate its lease at any time. At the time of the hearing the annual payments for nine years totaling $27,000 had been paid and the final payment of $73,000 would be due March 1, 1971, if the option were to be exercised by the company. According to a representative of the coal company the coal seams underlaid about 55 per cent of the farm in the northwest corner thereof.

Two real estate appraisers testified that in their opinions the value of the 240 acre farm in April 1968, was $71,000 and $78,000 respectively. Such appraisals did not include any valuation attributable to the coal lease.

In April, 1967, Lena Burroughs in order to assist her son Charles, who was in financial difficulties, joined with Charles in executing a mortgage and note secured thereby to the Canton State Bank in the sum of $45,000, the mortgage included the 240 acre farm and two homes owned by Charles. Additionally Charles’ farm machinery was included as security. The proceeds of this loan went solely to Charles or for his benefit. The note required that $5,000 on principal plus interest be paid annually for the next three years with the final balance of $30,000 due April 26, 1971.

When April 26, 1968, approached, Charles did not have sufficient funds to make the payment then due. The amount due at the time was approximately $5,200, the bank having received $3,000 from the coal company as its annual payment (the coal lease also had been assigned as security for the loan.) Additionally Charles had $2,000 but the bank refused to accept anything less than the full payment due and insisted that the payment be made or foreclosure proceedings would be instituted.

In April and May of 1968, Lena Burroughs was 85 years old (87 years of age at the time of trial) and was hard of hearing. As indicated earlier Lena was adjudged incompetent prior to the hearing in this litigation and resided at a nursing home. Such incompetence raised the question of her competency to testify as a witness and defense counsel initially objected to her testimony but later withdrew the objection.

From the testimony of Lena Burroughs and her son Charles it appears that during the last part of April or the early part of May, 1968, they visited relatives in Washington, Illinois for the purpose of getting a loan but were unsuccessful in this regard. On the way back to Canton they stopped to see Matt Burroughs the defendant, a nephew of Lena’s deceased husband. Charles testified that the purpose of going to see Matt Burroughs was to see about a loan to which response the court sustained an objection, it being the position of defendants’ attorney that only conversations could be testified to. Although both Lena Burroughs and Charles refer to this initial conversation with Matt Burroughs their account of the conversation is sparse. It appears that they talked over their problems with Matt Burroughs and that he said “give me a few days to think it over”, “I’ll let you know”.

A few days later Matt Burroughs came to Canton to Lena’s home. Charles was there. They had some conversation. There was testimony by Charles that “we just talked about what the loan would be” which was objected to, and objection was sustained. That day at Lena’s home, Matt simply said, “I think I’ll take the whole mortgage up; just take the whole thing off of your hands”. Thereafter, the three of them proceeded to the Canton State Bank.

At the bank the three Burroughs met with bank officials. At the time Matt Burroughs had two checks totaling the amount of the loan. The bank accepted the checks giving a receipt therefor but declined to do anything else until the checks had cleared. According to Lena and Charles Burroughs they inquired at the time whether or not they should have an attorney but according to Charles they were advised by C. C. Mason, the bank officer and Matt Burroughs that they would not need an attorney. There is evidence tending to show that at this meeting James Van Sickle, the bank’s attorney, was present and was instructed with regard to the preparation of necessary documents although it does not appear that either Lena or Charles Burroughs had any idea what the documents would be. The parties then returned to Lena’s home and had further conversations which included the reiteration as in a former conversation that Charles could buy the property back when he had the money. It also appears that during this conversation arrangements were made for Charles to continue farming the farm for the next year.

Two days later Matt Burroughs returned to Lena Burroughs’ home and took her to the Canton Bank to finish the details. According to Lena, Charles was not there at the time and when she asked that he accompany them Matt declined.

According to Lena Burroughs’ testimony she signed many documents at the bank including a deed although a deed is the only document about which she had any knowledge either signed by her or by anybody else. From the exhibits it appears that a warranty deed dated May 13, 1968, recorded May 15, 1968, was signed by Lena Burroughs conveying the property to Robert Burroughs (the son of Matt Burroughs). Another exhibit dated May 13, 1968, recorded May 15, 1968, was the assignment of the mortgage by the Canton State Bank to Robert Burroughs, the assignment reciting that the note for $45,000 secured by the mortgage had also been assigned to Robert Burroughs, the expressed consideration for the assignment of the mortgage being $45,375.67. Other exhibits dated May 13, 1968, included what was purported to be an accord and satisfaction and release of the mortgage (unrecorded) executed by Matt Burroughs as to the farm and also an agreement for warranty deed which recited that the mortgage note had been assigned to Matt Burroughs and that the consideration for the transfer of the farm property described therein was the release of the mortgage of the farm property.

James Van Sickle, testiled that he was the attorney for the Canton State Bank, that he had prepared the documents described above and was probably present when they were signed. Although he testified they were prepared according to instructions objection was interposed and sustained so that the record does not reveal who gave the instructions. According to his testimony he charged Lena Burroughs and Matt Burroughs each $35.00 for his services and received the amounts from them.

Matt Burroughs was called as an adverse witness under Section 60. His testimony indicated that he was a man of means, owned several farms, managed real estate and during the last eight years he also purchased delinquent taxes in Fulton and adjoining counties. Matt Burroughs was also asked about the whereabouts of the original promissory note which had been assigned to him at the time of the assignment of the mortgage. It appears from the colloquy of the attorneys that demand for the production of the note had been previously made but it had not been produced. However it did appear there was a photocopy in the files of defendant’s attorney apparently turned over to him by a previous attorney representing Matt Burroughs, indicating that the note had been in the possession of defendant. Matt Burroughs indicated that the note might be in some of his papers but that he had tio present recollection of its whereabouts. Tender of the copy of the note as an exhibit was objected to and the court declined to admit the exhibit on the grounds that it was irrelevant. No inquiry was made of Matt Burroughs concerning any other aspect of the events in which he was involved.

The hearing on this dispute was before the court without a jury. Pursuant to defendants’ motion made at the close of plaintiffs evidence the court entered judgment against the plaintiff on all counts of the complaint. So far as this appeal is concerned the plaintiff has made no claim of error regarding the action of the trial court on the counts charging fraud and violation of a fiduciary duty. The only assignments of error relate to rulings on evidence and the court’s conclusion that the evidence was insufficient to support plaintiff’s claim as set forth in the first count that the warranty deed should be declared a mortgage.

In Ruckman v. Alwood, 71 Ill.155, the Court in this early case, discusses at some length prior decisions and the then state of the law concluding that it is well settled that a deed absolute in form, may in equity be declared a mortgage if that be the intent and purpose of the transaction. As indicated in the Ruckman case the equitable principles applicable are usually discussed in text sections dealing with fraud, accident or mistake as grounds for granting equitable relief. However as the court points out the equitable principle which is applicable does not depend on fraud, accident or mistake but has an independent basis. Generally speaking it might be said that application of equitable principles is justified to prevent fraud which might otherwise occur if form were to conclusively prevail over substance. Equitable principles also recognize unfair advantage may be the result of coercion caused by necessitous circumstances and that devices designed to circumvent the rights of a borrower ought not to be permitted. Cassem v. Heustis, 201 Ill. 208, 66 N.E. 283.

Defendant Appellee has cited no cases in his brief disputing the authorities referred to by the appellant either in his brief or in this opinion or supporting the trial court’s action in applying the general rules to the facts of this case. Defendants are content to argue that the evidence has no tendency to prove the plaintiff’s claim. To some extent both the argument of defendants counsel and the observations of the trial court made during the progress of the trial and at the time he ruled on the final motion indicate some misapprehension concerning the equitable principle involved. Although defendants concede that a deed otherwise absolute in form, may be declared a mortgage they fail to understand that such equitable principle does not necessarily require the existence of fraud, accident or mistake. According to defendants, so long as Lena Burroughs knew she was signing a deed and so long as Matt Burroughs was not shown to be guilty of actionable misconduct no equitable relief is appropriate. Such a conclusion is contrary to the principles governing this equitable remedy. In such cases as Ruckman v. Alwood, 71 Ill. 155, Totten v. Totten, 294 Ill. 70, 128 N.E. 295 and Davidson v. Iwanowski, 341 Ill.App. 152, 93 N.E.2d 139, the grantor knew that he was signing a deed, executed and procured without misconduct. In Ruckman, supra, the Court observes, “* * * where the transaction is shown to have been meant as a security for a loan, the deed will have the character of a mortgage, without other proof of fraud than is impMed in showing that a conveyance, taken for the mutual benefit of both parties, has been appropriated solely to the use of the grantee.”

No particular kind of evidence is required to prove a claim that a deed otherwise unconditional was intended as a mortgage. (Totten v. Totten, 294 Ill. 70, 128 N.E. 295.) Any evidence tending to show that the purpose and intention of the parties of the transaction was that of a loan and security is admissible. It is the nature of the transaction which determines the rights of the parties and not the form employed. (Shultz v. McCarty, 193 Ill.App. 318.) The relation of the parties, the circumstances surrounding the transaction, the appearance of the transaction, the adequacy of the consideration and the situation of the parties after the transaction may be relevant to a determination of the ultimate issue which is the intention of the parties. (Kulik v. Kapusta, 303 Ill. 208, 135 N.E. 402 and Darst v. Murphy, et al., 119 Ill. 343, 9 N.E. 887.) The transaction was either a sale or a loan there being general agreement that no gift was intended. Thus direct evidence that a loan was intended may be complimented and supported by evidence inconsistent with or contrary to the claim that the transaction was a sale.

After reviewing the evidence it is our conclusion that there is ample evidence to support plaintiff’s claim and that the direction of a judgment at the close of plaintiff’s evidence was erroneous.

Without extensively repeating the evidence there appear to be several aspects of the evidence apparently ignored or misunderstood, by the trial court. InitiaUy it should be observed that the premises were not advertised for sale in the usual course, no real estate agent had been consulted, no price had been put on the premises, no offers of sale had been made and prior to the original contact with defendant the evidence indicates that plaintiff attempted to secure a loan from another relative. Nor is there any evidence indicating the property was not readily sale-able for its appraised value.

Next we have the conversations which took place prior to the execution of the deed. As indicated above, the testimony of Lena and her son Charles is somewhat fragmentary in part due to restrictive rulings by the trial comt. However both witnesses indicated that the defendant said that they could get the property back or buy the property back. A review of the cross-examination of each of these witnesses by counsel for the defendants reveal that the latter avoided any reference to these conversations in his cross examination and avoided any questions relating to any offer to seU made by plaintiff or offer to buy by the defendant during such conversations. At best we believe conflicting inferences may be drawn from the testimony of these witnesses and when considered with the other evidence in the case their testimony is consistent with the' claim that a loan was intended and inconsistent with the claim that a sale was intended. In this connection mention should be made of the disparity in abilities of the parties involved. While disparity is not in and of itself grounds for awarding equitable relief such disparity plus the friendly relationship of kin are relevant in interpreting the conduct of the parties and in explaining the transaction.

One of the more important factors relating to the issue presented by this case is the appearance of the transaction, including particularly the related documentary evidence. Defendants’ principal argument in their brief is that the transaction has all of the appearances of a regular and ordinary sale. In substance their argument is that Matt Burroughs bought the property for $45,375.67. Contrary to the defendants’ assertion there are many aspects of the transaction itself which are not regular and ordinary and which in fact are inconsistent with a claim that the transaction was a sale in due course.

To start with the evidence reveals that payment to the bank was made before the agreement for warranty deed was executed. Ordinarily sales agreements are not executed after the purported consideration has been paid. Next there is payment to the bank and not payment to the alleged seller. The payment to the bank is not for release of the mortgage but for an assignment thereof and the note secured thereby. Although defendants insist that the transactions are regular in appearance even the bank officer appeared somewhat surprised that the mortgage and note were assigned rather than released and canceled which would have been the case in an ordinary sale. Van Sickle, the attorney, also testified that the assignment of the mortgage and note rather than release and cancellation was unusual. Furthermore it is noted the assignment was to the son of Matt Burroughs, a person with whom the plaintiffs had no dealings. The purported accord and satisfaction for release of the mortgage as to Lena Burroughs is likewise not part of an ordinary sale.

Of additional significance is the relation of the parties at the time of the transaction. As disclosed by the documents themselves the warranty deed was executed by one of the mortgagors to an assignee of the mortgage who was therefore at the time occupying the status of mortgagee. Such conveyances are considered highly irregular, subject to close scrutiny and justly warrant the inference of likely unfairness. However the execution of the previously described documents is almost conclusively inconsistent with any claim of sale in light of the fact that the mortgage note was never canceled or marked paid, particularly when the claim is made that the payment of the $45,000 note was tire bone fide consideration for the transfer. Defendants concede in their brief the note was never marked paid or delivered to Lena Burroughs or Charles Burroughs and both from the documents involved in the transactions and from the consequences thereof such note continues to be coHectable from Charles Burroughs and continues to be secured by mortgages on two residences and farm machinery. Such a state of facts is completely irreconcilable with any claim that the transaction was a sale or that Matt Burroughs purchased the property for $45,000.

The next aspect of the evidence supporting plaintiff’s claim is the inadequacy of the consideration. The evidence that the property was worth substantially more than the $45,000 is undisputed and defendants’ position, apparently shared by the trial court, is that the inadequacy of consideration was irrelevant. This is not the rule. While the courts have said that inadequacy of consideration is not by itself sufficient to warrant equitable relief it may be regarded as a potent circumstance (Walker v. Streeter, 87 S.W.2d 43, Ark. Sup. Ct. 1935) or a strong circumstance (Beeler v. American Trust Co., 140 P.2d 814, Sup. Ct. Calif. 1943) tending to show that a deed was intended to operate as a mortgage and not as an absolute conveyance. (See also Davidson v. Iwanowski, 341 Ill.App. 152, 93 N.E.2d 139 and Totten v. Totten, 294 Ill. 70, 128 N.E. 295.) If a transfer of property is for an adequate consideration i.e., its fair value, such fact would tend to support the claim that the transaction was intended as a sale. Where the consideration is grossly inadequate as in this case, a contrary inference is strongly indicated.

The last aspect of this case which we beheve it necessary to consider involves the representation of Lena Burroughs by an attorney. So far as the record presently stands it is undisputed from the testimony of Lena and Charles that they were advised that no attorney was necessary. Nevertheless in response to the argument of plaintiff that Lena was not represented by an attorney the defendants have adopted three positions. First, it is said that she was represented by Van Sickle, next that Van Sickle represented both the plaintiff and defendants and finally that Van Sickle represented only the bank and did not represent either of the parties.

As is often the case in connection with real-estate transactions one attorney may weU be acting for more than one party whose interests are in fact conflicting. As shown by the tenor of the questions, Van Sickle was called as a witness for the purpose of showing that Lena had not received any legal advice concerning the transaction and that the documents had been prepared by the attorney pursuant to the instructions of and for the benefit of the defendants. Objections were made to some questions asked of this witness and were sustained by the court. No offers of proof were made and in an effort to alleviate this deficiency the plaintiff after the decision was rendered by the trial court, filed the pre trial depositions of Van Sickle and Mason, the bank officer, and sought to have such depositions included as part of the record. Pursuant to appropriate motion the trial court struck the depositions from the record and the plaintiff has renewed his effort to have such depositions made a part of the record in this court.

It is admitted the depositions were not admitted as exhibits, were not considered as evidence in the case and in our view do not constitute part of the pleadings. The mere fact that such pre trial depositions may be filed does not make them part of the record and certainly the depositions are inappropriate as a substitute for an offer of proof. Accordingly it is our decision that such depositions are not part of the record before us.

Since in our opinion this case must be remanded for further proceedings we believe it unnecessary to decide whether the court properly sustained the objections to Van Sickles’ testimony since it is unlikely that the same questions will again arise. In so far as Van Sickles’ testimony is relevant to the issues of this case it is clear that Lena Burroughs did not receive any independent legal advice or for that matter any legal advice. From Van Sickles’ testimony it appears that he acted directly or indirectly in behalf of and for the benefit of Matt Burroughs. Without deciding that the dual representation of the parties by Van Sickle has any special consequences in this case it can be said that the circumstances presented afford a potential for misunderstanding and unfair advantage. From Van Sickles’ testimony it may be inferred that the form of the transaction was directly by Matt Burroughs, that the form of the transaction was for Matt Burroughs advantage and did not necessairly represent the substance of the transaction.

For the foregoing reasons the judgment of the Circuit Court of Fulton County is reversed and remanded with directions to proceed in accord with the views expressed herein.

Reversed and remanded with directions.

ALLOY, P. J., and SCOTT, J., concur.


author: Mr. PRESIDING JUSTICE SMITH

text:
    In Re Application of the County Collector for Judgment and Order of Sale—(Walter T. Morey, Plaintiff-Appellant, v. All-States Corporation, Defendant-Appellee).
    (No. 11340;
    Fourth District
    October 8, 1971.
    John F. Dunn, of Decatur, for appellant.

      Burger, Geisler & Fombelle, of Decatur, (Norman J. Fombelle, .of counsel) for appellee.
   Mr. PRESIDING JUSTICE SMITH

delivered the opinion of the court:

Plaintiff appeals from a judgment of the circuit court of Macon County refusing to set aside a tax deed issued to the defendant corporation. Complaint was filed under Ill. Rev. Stat. 1969, ch. 110, par. 72, asserting that the proceedings whereby the tax deed was obtained were void because initiated on behalf of the defendant corporation by one who was not a licensed attorney and that notice was not given to the plaintiff who was the equitable owner of the property. We affirm.

Certain facts are not in dispute. Donald L. Kirkwood and Louise L. Kirkwood, his wife, were the record title owners of this property and sold it on contract to Charles Brawner and his wife. The county records show that Brawner was last assessed for the general real estate taxes on the property. The evidence shows that the plaintiffs father bought the contract from the Kirkwoods and they assigned it to him. The Kirkwoods also delivered to him a deed conveying the property from themselves to the Brawners. The elder Mr. Morey and the plaintiff, after his father’s death, collected the contract payments from the Brawners. The plaintiff testified that he acquired this contract through his father’s estate and that he was the owner of this real estate subject to the interest of Brawners and to the interest of the defendant under its tax deed. The Kirkwood-Brawner contract was entered into somewhere about 1956. The plaintiff also testified that sometime after the tax deed was issued in August of 1967, he discovered that the property had been sold for taxes and caused an investigation to be made. Among the papers received from his father was a deed, blank as to grantee, which the Kirkwoods had apparently left with his father duly notarized by one Ayrlie Morris, a real estate broker, on the 31st day of December, 1956, but which was not filed for record until the plaintiff himself filed it on January 2, 1968. It is through this deed that the plaintiff bases his claim that he was the equitable owner of this real estate and should have had notice of the tax sale. It is further clear from the record that the plaintiff nowhere appeared in the record chain of title until the December 1956 deed was recorded in January of 1968.

In our judgment, the deed from the Kirkwoods to the plaintiff wherein no grantee was designated is a nullity. In Chance v. Kimhrell, 376 Ill. 615, 35 N.E.2d 48, it is stated: “If the three deeds were blank as to grantee when defendant attached her signature they passed no title and are a nullity. Tucker v. Kanatzar, supra; Donnelly v. Dumanow ski, 329 Ill. 482, 160 N.E.2d 759; Osby v. Reynolds, 260 Ill. 576, 103 N.E. 556; Ann. Cas. 1914D, 387.” Being a lawyer, the plaintiff knew or should have known that the deed in question was a nullity and conveyed to him no interest in this real estate and that there was nothing of record indicating any interest by him in the real estate. In this state of the record, at the time of the tax purchase and at the time of the tax deed, Walter T. Morey was a stranger to the record title.

Nevertheless the plaintiff contends that the agent of the tax purchaser by diligent search and inquiry should have readily ascertained from the Kirkwoods or from the Brawners — and the record indicates that he talked to both of them — that Walter T. Morey had some interest in the property. The evidence shows clearly that both the Kirkwoods and the Brawners were served with necessary notice. We think this case is basically controlled by Zeve v. Levy, 37 Ill.2d 404, 226 N.E.2d 620. In that case it was noted that in 1951, the court policy toward tax deeds changed. Prior to that date, the issuance of a tax deed was largely an administrative matter and the utmost and exacting observance of technical forms was required to produce a valid tax title. Thereafter in 1965, ch. 120, par. 747, was enacted which provided that “the tax deed issued pursuant to this section shall be incontestable except by appeal from the order of the court directing the county clerk to issue the tax deed. This section shall be liberally construed so that tax deeds herein provided for shall convey merchantable title”. Following that enactment the Supreme Court held that tax deed proceedings could not be collaterally attacked except as provided by section 72 of the Civil Practice Act and that relief under such section is available upon proof of fraud. (Remer v. Interstate Bond Co., 21 Ill.2d 504, 173 N.E.2d 425.) In Zeve, it is noted that the failure to receive notice of a tax deed proceeding does not per se entitle one to have the deed set aside nor does the fact that the respondent’s agent could have made a more thorough inquiry and a more diligent search than he did necessarily establish fraud on the part of the respondent in the absence of proof of wrongful intent or a pattern of deception. From the evidence here it is difficult to construct a wrongful intent or a pattern of deception when the agent of the respondent in this case relied upon the public record as to title. We think any further or additional inquiry on his part was not called for. Indeed, the trial court specifically found that there was no fraud in this transaction and on this record we are disposed to agree. If there is any pattern of deception, it is the documents and the conduct of the plaintiff, who, as well as his predecessor before him, patently maintained the utmost secrecy so far as the public record was concerned as to any interest in this property.

While the plaintiff complains of a failure- to receive notice of the application for the tax deed, it is evident that the taxes had gone unpaid for several years and it is likewise clear that it was his own deliberate action in failure to record his contract documents or his negligent failure to do so that precluded receipt of a notice. All other interested parties of record were notified.

In 1967, the General Assembly amended section 747 of the Revenue Act (Ill. Rev. Stat., ch. 120, par. 747), to provide that relief may be granted from orders ordering the issuance of a tax deed under § 72 of the Civil Practice Act and that in such proceedings “the court shall consider defenses relating to questions of the notices required by Section 263 and the proof presented in the hearing required by this Section”. This was in reality a codification of the rule laid down in Urban v. Lois, Inc., 29 Ill.2d 542, 194 N.E.2d 294. In that case, the owner was not served with notice of the application for a tax deed but was actually aware of his default in tax payments and had made arrangements to redeem. He had full knowledge of the tax proceedings, but the failure to redeem was not occasioned by a lack of notice but by his lack of funds. In that case, the court stated that in the absence of fraud, we must consider the order of the county court as conclusive. We think the same should be said here. The failure of the plaintiff to receive notice fies at his door rather than any other place through his failure to record his- interest in this property.

In plaintiff’s complaint, he alleged that the tax deed proceedings were null and void and the court was without jurisdiction over the parties and the subject matter for the reason that the defendant’s petition for tax deed was not filed through a person duly licensed and entitled to practice law in the State of Illinois. This allegation was denied by the defendant. The matter was then dropped in the trial court and was not asserted in this court as a reason for vacating the tax deed. On our own motion, we requested oral argument in this court and supplemental briefs based upon our decisions in Remole Soil Service, Inc. v. Benson, 68 Ill.App.2d 234, 215 N.E.2d 678, and Leonard v. Walsh, 73 Ill.App.2d 45, 220 N.E.2d 57. The petition for the tax deed recites “Now comes All-States Corporation, an Illinois corporation, petitioner, by Robert D. Burroughs, its agent, and says * * * It is signed by Robert D. Burroughs as agent for the petitioner and verified by affidavit. We granted leave to the defendant to supplement the record and it filed an affidavit by the president of All-States Corporation stating that at all times at all appearances in court it was represented by an attorney duly licensed to practice in the State of Illinois and that at no time did a layman not licensed to practice appear in the court for the AU-States Corporation. This was likewise supplemented by an affidavit of the attorney in which he stated that he personally appeared on behalf of All-States before the county judge and presented the petition for issuance of a tax deed and obtained a hearing date thereon and personally made all court appearances on behalf of All-States Corporation. Nowhere on the original petition, however, does this fact appear. In County Board of School Trustees v. Bendt, 30 Ill.App.2d 329, 174 N.E.2d 404, a judgment order stated “and the court having heard the evidence * * There was no report of trial proceedings there filed. The court stated that an assignment of error must be shown in the record itself and not by the arguments of counsel or his statement in his brief on appeal. In that case it was stated that the court could not through guess, surmise or conjecture, through absence in the record of evidence, presume that none was heard when the record itself affirmatively stated that evidence was heard. We permitted the filing in this court of an affidavit by the president of All-States and one by his attorney which now affirmatively shows that the failure to list the attorney on the original petition is at most an oversight. It is urged that it was error to permit the filing of these affidavits and that we may not consider them because they were not filed in the trial court. (Kazubowski v. Kazubowski, 45 Ill.2d 405, 259 N.E.2d 282.) In our view of this case, it is not necessary for us to determine the propriety or impropriety of considering these affidavits. Without them, there is sufficient evidence in this record to warrant the conclusion that the suit was not instituted by an unlicensed attorney. Under the power granted a reviewing court by Supreme Court Rule 366, Ill. Rev. Stat. 1969, ch. 110A, par. 366, we are permitted to draw inferences of fact. In the instant case, where the trial court did not decide the issue of unlawful practice of law, even though it was an issue, where no evidence was offered in the trial court on the subject, and where the plaintiff abandoned that issue, both in the trial court and in this court, it seems to us that the reasonable inference from this record is to presume that the failure to include the attorney’s name on the first petition was an inadvertent oversight rather than a deliberate attempt to practice law without a license. To hold that such a failure voids a judgment is, we think, an unnecessary extension of the doctrine announced in Walsh and in Remóle and would in many instances nullify judgments, orders, or proceedings where it is not justified as a matter of fact. For us to presume that the defendant in this case willfully, knowingly and intentionally violated the law is to reach a conclusion based upon pure speculation, conjecture or surmise. This record does not affirmatively show that there was no attorney of record nor does it affirmatively show that there was an attorney of record at the time of the filing of the original petition. Under such circumstances, it strikes us that the reasonable inference to be drawn is that there was a compliance with the law rather than a complete disregard of the law. That such inference is the more reasonable is borne out by the fact that the plaintiff himself abandoned the issue both in the trial court and in this court.

Accordingly, the judgment of the trial court is affirmed.

Judgment affirmed.

CRAVEN and TRAPP, JJ„ concur.


author: Mr. JUSTICE GEORGE J. MORAN

text:
    E. H. Ripperden, Plaintiff-Appellee, v. Henry Absher Chevrolet, Inc. et al., Defendants-Appellants.
    (No. 70-44;
    Fifth District
    October 7, 1971.

      David L. Stanley and Kern and Pearce, of Carmi, for appellants.
    Bernard L. Minton, of McLeansboro, for appellees.
   Mr. JUSTICE GEORGE J. MORAN

delivered the opinion of the court:

Plaintiff E. H. Ripperden filed suit against the defendants to foreclose a mechanic’s hen for concrete furnished for a garage building on a six-acre tract of land owned by the defendant, Absher Chevrolet, Inc., hereinafter referred to as Absher. The complaint alleged that the value of the premises was enhanced in excess of $2215.70, by reason of the concrete furnished. Absher counter-claimed for damages, claiming Ripperden had refused to pay for a truck he had purchased from Absher.

The trial court entered a judgment awarding a mechanic’s lien to Ripperden, but reserved the right to determine priorities at a later date because the question of priorities between the lienor and the mortgagee was not made an issue in the hearing. The trial court also dismissed defendant’s counterclaim, holding that Absher did not prove the material allegations of its counterclaim.

Defendant contends (1) that the judgment is defective because the evidence showed that some of the concrete products were used in the construction of another building owned by defendant and this building was not included either in the claim for lien filed or the complaint; (2) that plaintiff failed to establish that the materials he furnished enhanced the value of the premises; and (3) that the claim for relief based on tire sale of a truck to plaintiff should not have been denied.

The variance alleged must be substantial and material to be fatal. United Cork Companies v. Bolland, 365 Ill. 564. The variance in this case is not substantial and material for the reason that the concrete materials alleged to have been delivered for the construction of the garage building were used either in that building or in the other building also located on the tract of land described in the claim for hen and in the complaint.

As between the lienor and owner, it is not necessary that the materials furnished enhance the value of the premises. As between the parties to the contract, the contract price establishes the value of the improvements. (Moulding-Brownell Corp. v. E. C. Delfosse Construction Co., 304 Ill.App. 491. Hinkle v. Creek, 113 Ill.App.2d 454.) The lien attaches by virtue of the provisions of Ill. Rev. Stat. 1969, ch. 82, par. 1. The fact that a mortgagee might have priority over a mechanic’s hen is not a ground for denial of the lien. Liddel v. Smith, 65 Ill.App.2d 295.

The evidence disclosed that during July of 1966 plaintiff negotiated with Absher for the purchase of a new truck. In substance, Ripperden testified that he agreed to purchase the new truck with a new bed and hoist on it. When it was delivered to him on July 13, it did not have a bed and he refused to accept delivery. The truck which was delivered by Absher’s employees remained on his lot for several weeks and he did not drive it or make any payments on it or sign a note during that time. Sometime in August, Henry Absher and Van Ward, Iris truck sales manager, came to Ripperden’s house with a note for the purchase price. Ripperden testified that they told him if he would sign the note they would have the brakes fixed on the truck and would have a bed and hoist instaUed. Ripperden’s wife substantiated this testimony. He returned the truck to Absher Chevrolet the next day and never saw it again, although he and his employees made several inquiries at Absher Chevrolet about the return of fire truck.

We believe the evidence amply justified the trial court’s finding. The finding that the material allegations of defendant’s counterclaim were not proved is not contrary to the manifest weight of the evidence. Vassel v. Underwood, 85 Ill.App.2d 222, Elliot v. Nordlof, 83 Ill.App.2d 279.

In its decree the trial court ordered that defendant Absher pay plaintiff the sum of $2215.70 plus interest and costs within ten days or in the alternative that the premises be sold and that upon sale after payment of costs, commissions and fees if the remainder were sufficient, that the judgment amount be paid to plaintiff. In the same order the court stated that it reserved ruling upon the priority between plaintiff as Henor and mortgagee, First National Bank of Carmi. To the extent that the decree provided that plaintiff be paid out of the proceeds of the sale, it did determine that plaintiff had priority over the mortgagee. However, there was no proof that the concrete furnished by the plaintiff enhanced the value of the premises and in the absence of that proof the decree must be modified to provide that upon sale of the property, aU of the proceeds be paid into the trial court where, if a sale is necessary, a judicial determination of priorities may be had. Defendants advanced no authority and we find none that it is improper to reserve ruling or priorities of Hen claimants and encumbrancers for subsequent hearing.

Accordingly, the judgment of the Circuit Court of White County is modified to provide that all proceeds of a judicial sale, if necessary, be paid into the court to be distributed pursuant to a subsequent hearing to determine priority by the trial court, and as modified the judgment is affirmed.

Modified in part and affirmed.

EBERSPACHER, P. J., and JONES, J., concur.