author: JUSTICE ROMITI

text:
    MURRAY M. SHUGAN et al., Plaintiffs-Appellants, v. COLONIAL VIEW MANOR, d/b/a Condeversion Realty Sales Company, Defendant-Appellee.
    First District (4th Division)
    No. 81-1267
    Opinion filed June 3, 1982.

      George M. Sachs and Associates, of Vernon Hills (Brian C. Donegan, of counsel), for appellants.
    Victor J. Piekarski and Glen E. Amundsen, both of Querrey, Harrow, Gulanick & Kennedy, Ltd., of Chicago, for appellee.
   JUSTICE ROMITI

delivered the opinion of the court:

Plaintiffs filed a complaint for specific performance of an alleged agreement to sell real estate or in the alternative for damages. Defendant filed a section 45 (Ill. Rev. Stat. 1979, ch. 110, par. 45) motion to dismiss on the grounds that the complaint failed to state a cause of action in that the pleadings failed to establish or evidence a valid and enforceable contract between the parties; that no sufficient writing existed or could have existed since the parties never entered into a contractual agreement; and compliance with all conditions precedent had not been pleaded or evidenced by the plaintiffs. The trial court indicated that there was a sufficient written memorandum to justify a full hearing on whether or not there has been compliance with the Statute of Frauds. (Ill. Rev. Stat. 1979, ch. 59, par. 2.) It held, however, that the contract could not be specifically enforced because there were too many elements missing and dismissed the complaint. We reverse and remand.

Since the case was dismissed on a section 45 motion, only the pleadings can be considered. Also because the case arises on a section 45 motion the facts alleged in the complaint must be accepted as true. Duhl v. Nash Realty Inc. (1981), 102 Ill. App. 3d 483, 429 N.E.2d 1267.

Plaintiffs filed two complaints, both verified. In the first complaint they alleged that defendant in June 1980 had been engaged in the business of converting and selling condominiums. Shugan, one of the plaintiffs, entered into preliminary negotiations with defendant to purchase all 12 units in Building 210, Country Club Drive of the Colonial View Manor Condominiums. On June 23,1980, defendant, through its general partner, sent Shugan a letter offering to sell the units. The letter, attached to the complaint, reads in material part:

“Following up our meeting on Saturday, we can offer you three proposals:

1. Installment Sale — 12 units, 10% down, 11% interest only (plus taxes and maintenance fee) with a balloon payment in 3 years. This offer is subject to acceptance by Joseph Zowada as to 10 units.

* * *

In addition to the above, we will be able to work out something for you along the lines we discussed Saturday for your own personal unit.”

The letter was signed by Michael Bufkin, defendant’s partner’s vice-president and general counsel. On June 27, 1980, plaintiff wrote defendant stating:

“I am in receipt of your letter dated June 23,1980.
Please be advised that I hereby accept your offer, T. Installment Sale’. I would also appreciate clarification in writing of your reference in the above-mentioned letter to ‘. . . something for you along the lines we discussed Saturday for your own personal unit.’ Please contact my attorney, Sam Borek, to discuss those items which will be necessary to prepare the documentation to consummate this transaction.”

On July 26, 1980, Shugan deposited a $6,000 downpayment. He later deposited another $1,000. He also executed a “Purchase Offer” which, he alleged, “memorialized and integrated” into one document the terms of the agreement. In fact this purchase offer failed to conform to the previous writing in certain respects. Only Shugan signed this offer. Plaintiffs further alleged that during July and August defendant indicated it could only convey 11 of the units and Shugan orally agreed to reduce the number from 12 to 11, the price being adjusted accordingly. Plaintiffs sought specific performance of the contract or damages.

The complaint was dismissed on defendant’s motion. Plaintiffs then filed a second verified complaint. In that complaint plaintiffs alleged that in June 1980 defendant was in the business of converting and selling condominiums. A declaration of condominium ownership setting forth the legal description of the property was attached to the complaint. On June 23, 1980, the seller offered to sell the 12 units; the letter was again attached to the complaint as was Shugan’s reply of June 27, 1980. In July 1980, Michael Bufkin sent Shugan a memorandum, in Bufkin’s handwriting, showing each unit in Building 210 to be transferred pursuant to the contract together with a breakdown of the contract terms on a unit by unit basis. The memorandum also was attached to the complaint. Shugan made downpayments of $6,000 and $1,000. Shugan also assigned his right to 11 of the 12 units to the co-plaintiff, Lake Geneva Condominium Associates. Plaintiffs sought specific performance of the contract to sell all 12 units in Building 210 or, in the alternative, for damages. Defendant did not file an answer but instead filed a section 45 motion to dismiss. In the motion defendant alleged that the complaint failed to state a cause of action. Specifically defendant alleged:

1. the pleadings failed to establish or evidence a valid and enforceable contract between the parties;

2. no writing sufficient under the statute of frauds to evidence an alleged contract existed nor could it exist since the parties never entered into a contract;

3. compliance with all conditions precedent to an agreement were not pleaded or evidenced by the plaintiffs.

At the hearing on the motion to dismiss, defendant for the first time specifically raised plaintiffs’ failure to plead that Joseph Zowada, as required by the letter of June 23, 1980, had accepted the contract, the installment sale of 10 of the units being subject to his acceptance. Plaintiffs offered to amend the complaint to show that Zowada had tendered his acceptance. The trial court did not rule on that point. It concluded that as to the Statute of Frauds there was a sufficient written memorandum to justify a full hearing on whether or not there had been compliance with the Statute of Frauds, but while plaintiffs could file another action for damages, specific performance could not be ordered because there were too many vital contractual elements missing. The trial court thereupon dismissed the complaint with prejudice. Even if the court’s reasoning were correct, its order dismissing the complaint would have to be reversed since, as we recently noted in Conway v. Conners (1981), 101 Ill. App. 3d 121, 427 N.E.2d 1015, if a claim in equity is not stated but one in law is, the complaint cannot be dismissed although the cause may be transferred to the law division. However in this case where the trial court correctly found that the memoranda might be sufficient to satisfy the Statute of Frauds, it erred in holding that the complaint did not state a cause of action for specific performance.

I

Defendant’s objection that plaintiffs had not pled conditions precedent lacked the specificity required by section 45 of the Civil Practice Act (Ill. Rev. Stat. 1979, ch. 110, par. 45(1)), to raise the plaintiffs’ failure to allege that Zowada had consented, either orally or in writing, to the installment sale or that his consent was for some reason no longer required. This issue therefore was, for the first time, raised at the hearing, and plaintiffs immediately offered to amend the complaint. Assuming that the complaint otherwise stated a cause of action, the amendment should have been allowed. Lee v. Conroy (1973), 13 Ill. App. 3d 694, 300 N.E.2d 505; Coatie v. Kidd (1958), 17 Ill. App. 2d 289, 149 N.E.2d 646 (abstract).

II

Defendant’s allegation in its motion that a valid and enforceable contract between the parties was not established or evidenced is without merit. All a plaintiff is required to do in a complaint is to set forth such information as reasonably informs the opposite party of the nature of the claim or defense which he is called upon to meet. (Ill. Rev. Stat. 1979, ch. 110, par. 42(2).) He is not required in his complaint to evidence or prove anything. (Duhl v. Nash Realty Inc. (1981), 102 Ill. App. 3d 483, 429 N.E.2d 1267.) Indeed, except to the extent a plaintiff is required to or wishes to attach a written document relied upon to his complaint (Ill. Rev. Stat. 1979, ch. 110, par. 36), the plaintiff is expected to plead ultimate not evidentiary facts. Conway v. Conners (1981), 101 Ill. App. 3d 121, 427 N.E.2d 1015.

Plaintiffs have sued for breach of contract and sought specific performance of that contract. Their amended complaint sets forth the offer and acceptance and the essential terms of the contract. This, except for plaintiffs’ failure to allege Zowada’s approval, is sufficient to state a cause of action. Kalkounos v. Four K’s, Inc. (1981), 94 Ill. App. 3d 1011, 419 N.E.2d 503; Denkewalter v. Wolberg (1980), 82 Ill. App. 3d 569, 402 N.E.2d 885; Mid-Town Petroleum, Inc. v. Dine (1979), 72 Ill. App. 3d 296, 390 N.E.2d 428.

Defendant contends that the exhibits show that the letters were part of continuing negotiation and did not create a contract. This may be true and defendant may be able to establish this at trial. But it cannot be said that the terms of the purported contract allegedly formed by the letters of June 23rd and 27th unambiguously indicate that the parties did not intend to be bound by the contract. Accordingly this question is one of fact to be decided after receiving parol evidence and is not proper for determination pursuant to a section 45 motion. (Chicago Investment Corp. v. Dolins (1981), 93 Ill. App. 3d 971, 418 N.E.2d 59.) A motion to dismiss is used to attack defects in a pleading and not to test the plaintiffs’ ability to recover where the complaint adequately states a cause of action. Duhl v. Nash Realty Inc. (1981), 102 Ill. App. 3d 483, 429 N.E.2d 1267.

Defendant contends that plaintiffs cannot recover because the two complaints must be read together as the first was verified, and that reading them together the terms are not settled since in the first complaint plaintiffs relied on the July 26 purchase offer, which altered the terms, and on the oral modification. It is true that where the complaint is verified, the plaintiff is bound by the facts pleaded in the complaint even if the complaint is dismissed and he should plead over (Merritt v. Greves (1979), 82 Ill. App. 3d 863, 403 N.E.2d 475, appeal denied (1980), 81 Ill. 2d 593; Farwell Construction Co. v. Ticktin (1978), 59 Ill. App. 3d 954, 376 N.E.2d 621), absent a pleading of mistake or inadvertence. Thus plaintiffs are bound by their allegation that there was a July 26 purchase order which Shugan signed, and that Shugan indicated a willingness, at defendant’s behest, to reduce the number of units to 11. But this is irrelevant since neither act could modify the contract of June 27 if in fact a contract was made on that day. The alleged purchase offer was not signed by defendant; indeed there was no aUegation it was even accepted by defendant. Accordingly it could not act to modify an already existing contract. Nor does the existence of the “purchase offer” prove as a matter of law that the parties had not previously entered into a binding contract. Likewise the alleged parol agreement in July or August, being parol and executory, was legally insufficient to modify the written contract to sell real estate. (Northmoor Estates, Inc. v. Board of Education (1965), 56 Ill. App. 2d 491, 206 N.E.2d Ill (abstract); 72 Am. Jur. 2d Statute of Frauds §3 (1974).) Finally the allegation in the first complaint that the purchase offer memorialized and integrated the contract was not an allegation of fact but a mere conclusion not borne out by the rest of that complaint including the exhibits. It follows that the pleadings in the first complaint are irrelevant and do not affect the efficacy of the amended complaint.

We note that if on remand, defendant waives the Statute of Frauds, defendant can rely on plaintiffs’ admission that the contract was orally modified to reduce the number of units to eleven. But then plaintiffs can introduce parol evidence to prove the terms of the contract, including the terms of the modification. There still would be no inconsistency between the pleadings since the first was based on the alleged contract between the parties if the Statute of Frauds was not invoked and the amended complaint on the alleged contract between them if it is invoked.

III

The Statute of Frauds does not act sua sponte to invalidate all oral contracts falling within its scope. (Ullsperger v. Meyer (1905), 217 Ill. 262, 75 N.E. 482.) The Statute of Frauds is an affirmative defense (Whildin v. Kovacs (1981), 93 Ill. App. 3d 582, 417 N.E.2d 736; Haas v. Cravatta (1979), 71 Ill. App. 3d 325, 389 N.E.2d 226), and must be raised by the party relying on it. (Haas; Terminal Freezers, Inc. v. Roberts Frozen Foods, Inc. (1976), 41 Ill. App. 3d 981, 354 N.E.2d 904; Ill. Rev. Stat. 1979, ch. 110, par. 43(4).) Where the Statute of Frauds is not properly invoked by the pleadings as a defense, a verbal contract for the conveyance of real estate may be enforced. Thomas v. Pope (1942), 380 Ill. 206, 43 N.E.2d 1004.

Defendant invoked the Statute of Frauds in its section 45 motion. The trial court, while not entering a finding on that issue, indicated at the hearing it doubted the defense was meritorious. Defendant on appeal has not invoked the Statute of Frauds; thus it would appear not to be an issue before this court. However, since it may be invoked again upon remand (Haas v. Cravatta (1979), 71 Ill. App. 3d 325, 389 N.E.2d 226; Uscian v. Blacconeri (1975), 35 Ill. App. 3d 80, 340 N.E.2d 618, appeal denied (1976), 62 Ill. 2d 592), this court will address the issue.

The Statute of Frauds (Ill. Rev. Stat. 1979, ch. 59, par. 2) provides that no action shall be brought to charge any person upon the sale of lands unless such contract or some memorandum or note thereof shall be in writing and signed by the party to be charged. The memorandum may be composed of more than one document, not all of which need to be signed. (Daehler v. Oggoian (1979), 72 Ill. App. 3d 360, 390 N.E.2d 417.) The memoranda or written contract must contain the essential terms of sale (McDaniel v. Silvernail (1976), 37 Ill. App. 3d 884, 346 N.E.2d 382), such as a description of the property, the price and method and manner of payment (Chicago Investment Corp. v. Dolins (1981), 93 Ill. App. 3d 971, 418 N.E.2d 59), but it is not necessary to provide for every collateral matter or every future contingency. (Chicago Investment Corp.) Furthermore, certain “reasonable terms” may be read in. Haas v. Cravatta (1979), 71 Ill. App. 3d 325, 389 N.E.2d 226.

Assuming that there was a contract, the seller’s offer was shown by the letter of June 23 signed by it; the buyer’s acceptance by the letter of June 27. The property was identified (except for the building) by the letter of June 23. A description of a tract by popular name, in this case Colonial View Manor, is sufficient to satisfy the Statute of Frauds. (72 Am. Jur. 2d Statute of Frauds §330 (1974).) The price of the property is specified in the first letter; that the property is to be paid for by installment payment with a balloon payment in three years is provided by the first letter as accepted by the second. The down payment is likewise specified by the two letters. The time for the down payment, place for its payment, date for delivery of property or a requirement that title must be clear are not in the letters but their absence does not trigger the operation of the Statute of Frauds as reasonable terms may be read in. (Ullsperger v. Meyer (1905), 217 Ill. 262, 75 N.E. 482; Haas v. Cravatta (1979), 71 Ill. App. 3d 325, 389 N.E.2d 226; Gerald Elbin, Inc. v. Seegren (1978), 62 Ill. App. 3d 20, 378 N.E.2d 626; Lewis Realty Co., Inc. v. Smith (1972), 7 Ill. App. 3d 734, 288 N.E.2d 515; 72 Am. Jur. 2d Statute of Frauds §340 (1974).) The only essential term not specified in the two letters is the designation of which building is being sold. That is supplied by the handwritten memorandum which lists the building as 210.

Where a contract consists of several documents it is necessary that the signed writing refer to the unsigned writing or that the several writings be so connected, physically or otherwise, that it may be determined by internal evidence that they relate to the same contract. (Western Metals Co. v. Hartman Ingot Metal Co. (1922), 303 Ill. 479, 135 N.E. 744; Jones v. Olsen (1980), 80 Ill. App. 3d 1016, 400 N.E.2d 665, appeal denied (1980), 81 Ill. 2d 584.) Parol evidence may bring the writings together (Western Metals Co.), but the connection must be shown by internal evidence such as a reference to the same subject matter. (Jones.) Here the handwritten memorandum which lists the twelve units and details the same terms expressed in the June 23 letter shows a sufficient connection with the two letters that parol evidence may be introduced to identify the handwriting and set forth the circumstances under which the memorandum was received. (Crabtree v. Elizabeth Arden Sales Corp. (1953), 305 N.Y. 48, 110 N.E.2d 551; Annot., 81 A.L.R.2d 991, 1005 (1962).) As stated by the New York court in Crabtree, 305 N.Y. 48, 55-56, 110 N.E.2d 551, 554:

“The language of the statute — ‘Every agreement* * * is void, unless * * * some note or memorandum thereof be in writing, and subscribed by the party to be charged’ (Personal Property Law, §31) — does not impose the requirement that the signed acknowledgment of the contract must appear from the writings alone, unaided by oral testimony. The danger of fraud and perjury, generally attendant upon the admission of parol evidence, is at a minimum in a case such as this. None of the terms of the contract are supplied by parol. All of them must be set out in the various writings presented to the court, and at least one writing, the one establishing a contractual relationship between the parties, must bear the signature of the party to be charged, while the unsigned document must on its face refer to the same transaction as that set forth in the one that was signed. Parol evidence — to portray the circumstances surrounding the making of the memorandum— serves only to connect the separate documents and to show that there was assent, by the party to be charged, to the contents of the one unsigned.”

Since the complaint did state a cause of action for specific performance and the documents attached to the complaint indicate that the requirements of the Statute of Frauds may have been met the judgment of the trial court dismissing the complaint is reversed and the case remanded for further proceedings.

Reversed and remanded.

JOHNSON, P. J., and JIGANTI, J., concur.


source: Caselaw Access Project

author: JUSTICE KASSERMAN JUSTICE WELCH,

license: Public Domain

text:
    ROBERT DEMPSEY et al., Plaintiffs-Appellees, v. HOLIDAY UTILITIES CORPORATION, Defendant-Appellant.
    Fifth District
    No. 81-134
    Opinion filed May 24, 1982.
    WELCH, J., concurring in part and dissenting in part.
    Wiseman, Shaikewitz, McGivern & Wahl, P. C., of Alton, for appellant.
    Dennis A. Brandt, of Mateyka, Hill, Hill & Armstrong, of Granite City, for appellees.
   JUSTICE KASSERMAN

delivered the opinion of the court:

After a bench trial in the circuit court of Madison County, the court granted plaintiff homeowners’ petition for permanent injunction against defendant water company and awarded plaintiffs money damages, including punitive damages and attorney fees. The following facts appear from the pleadings, exhibits, and the testimony adduced at the trial on February 29 and April 2, 1980: Plaintiffs, Robert and Becky Dempsey, purchased Lot 1880 in Holiday Shores subdivision in Madison County, Illinois, in April 1978 and began construction of a new house on that lot the following month. At the time of the purchase, a water meter and a “yard hydrant” had been installed on the lot. The hydrant was not a fireplug; instead, it was a faucet or spigot to which a garden hose could be fitted. According to the plaintiffs, the hydrant was locked when they purchased the lot. Dan Smith, president and chief operating officer of defendant, Holiday Utilities Corporation, testified that the hydrant was private property and that the lock was not defendant’s. Defendant, which had been owned by the Dan Smith Company since 1977, had provided water service to the entire subdivision since 1967. In July of 1978, prior to completion of the house on Lot 1880, defendant billed plaintiffs for $12.50 for the quarterly billing period ending June 30,1980, and for $368.75 for a previous unpaid bill. As of July 25, the due date of this bill, no portion of it had been paid. Plaintiffs’ attorney wrote defendant on August 14, 1978, inquiring as to why this bill had been sent and demanding that defendant not deny plaintiffs water service when plaintiffs did apply for such service. Mr. Smith replied by letter dated August 16,1978, that the lot was served by a yard hydrant; that the recorded utility covenant for the subdivision provided for a $12.50 minimum charge per quarter for “water availability”; that such charge was binding upon the purchaser and his heirs and assigns; and that the lot owner must pay for the service or face a lien against the property, enforceable by foreclosure.

According to Mr. Dempsey, he became aware in August 1978 that there was no water service at the house. The house was completed, except for water service, near the end of September 1978. Mr. Dempsey related that he went to defendant’s office in the subdivision where Tom Albrecht gave him an application. Mr. Dempsey completed it and returned it to Albrecht, who said that everything appeared to be in order and that it would probably be a week before water was hooked up at the house. Albrecht also stated that the application would have to go to St. Louis for approval. Mr. Dempsey tendered no payment with the application.

Mr. Smith testified that the only office defendant maintained in the subdivision was for the use of defendant’s water treatment operator and that it was not an office for customer service or contact. Defendant’s office for those purposes was in St. Louis. Albrecht was a supervised maintenance man who worked briefly for defendant and had no responsibility for customer service, applications, or collections. Defendant’s records did not indicate an application by Mr. Dempsey in August.

By letter to defendant dated September 13, 1978, plaintiffs’ attorney agreed that plaintiffs were responsible for the $12.50 quarterly minimum charge from the date of plaintiffs’ purchase of the lot but disclaimed responsibility for the unpaid charges of $368.75 incurred prior to the purchase. In the letter, plaintiffs’ attorney also sought assurance that upon proper application and payment of currently due quarterly use charges, water would be supplied. There is no indication of a response by defendant to this letter.

On September 28, Mr. Dempsey spoke to Mr. Smith at Mr. Smith’s house. According to Mr. Dempsey, Mr. Smith told him that until the last bill was paid, plaintiffs would not receive water. Mr. Smith testified that he might have so stated. Mr. Dempsey testified that he told Mr. Smith that he would pay any bill plaintiffs had incurred since they had owned the lot but not the prior owner’s bill. Mr. Smith testified that Mr. Dempsey did not tender an application or offer to pay any portion of the previous bill.

By letter to defendant dated October 2, 1978, the Consumer Assistance Office of the Illinois Commerce Commission stated that plaintiffs had agreed to pay all charges accrued since their ownership of Lot 1880 and observed that, under Illinois Commerce Commission General Order 172, service could not be denied based on a previous owner’s bill. The letter requested that plaintiffs be provided water service. By letter dated October 6, defendant replied that the balance due under the recorded water covenant for the subdivision was $382.50 as of July 25, 1978, and noted that plaintiffs’ deed stated that it was subject to all covenants and restrictions of record. By letter to defendant dated October 9, 1978, plaintiffs’ attorney again demanded water service for plaintiffs.

Plaintiffs’ complaint for injunction, damages, and attorney fees was filed October 18,1978. Their petition for a temporary restraining order or preliminary injunction to prevent defendant from refusing water service until a hearing could be had on the complaint for permanent injunction was filed October 19,1978. Plaintiffs had been billed on October 9,1978, for $382.50 previous balance plus $12.50 for the quarter ending September 30; no portion of that bill was paid as of its due date of October 25. On October 26, 1978, a “Temporary Restraining Order” was entered which stated in part: “Defense counsel agrees on behalf of the Defendant that upon application and payment of undisputed bills, water service will be provided. Plaintiffs agree to do so. This case, therefore, continued by agreement.” On October 29, Mr. Dempsey went to defendant’s attorney’s office, wrote out an application form and paid $25. Water service was hooked up the same day.

In order No. 58638, dated December 6, 1978, the Illinois Commerce Commission announced various findings and conclusions relating to the billing practices of defendant as determined in hearings before the Commission in March and May of 1978 and at various other hearings since 1973. The order, in pertinent part, provided as follows:

“Respondent [defendant] claims that the purchase contracts for lots within its certificated area, the tariffs on file with the Commission and the record in the original certificate proceeding each recognized the collection by Respondent of an available for use charge. Contending that it is authorized to collect an available for use charge from its non-metered customers, including both those customers with applications and those customers without applications on file with the Company, Respondent commenced to bill all lot owners for water service in its certificated area.
Since April, 1977, the Consumer Assistance Section of the Commission has received numerous complaints concerning the Company’s billing practices. These complaints include, inter alia, the practice of (1) billing lot owners who never signed an application for water, (2) demanding that present customers pay delinquent water charges incurred by their predecessors in title, and * * *. The Company supports [its] position stating that certain covenants dealing with the Holiday Shores Subdivision were made a part of the sale contract when lots in the subdivision were purchased and provide in part ‘the purchaser contracts and agrees to pay a minimum water use charge not to exceed $12.50 per quarter and/or such water use charges as may be set and/or approved by the Illinois Commerce Commission.’ Respondent claims that such a covenant runs with the real estate and is binding upon grantees of the original purchaser.
* * *
The Commission is of the opinion that the record of the original certificate proceeding does not authorize or otherwise allow Respondent to collect an available for use charge, in fact, it appears abundantly clear to this Commission that Respondent’s witness in the certificate proceeding and its witness in this proceeding prior to its being reopened, intended that only those lot owners who applied for service would be billed.
* * *
[U]nder Respondent’s tariffs it is authorized to charge only those individuals who have signed applications for water service or are otherwise receiving water service from the Company.
* * *
[Conclusions:]
* * *
(11) Respondent’s tariffs only authorize it to charge customers who have applied for water service, and the practice of Respondent to demand a charge of $12.50 from lot owners who have not signed a water application is unjust, unreasonable and contrary to the tariffs on file with this Commission;
(12) Respondent had no authority under its tariffs or the rules and regulations of this Commission to deny water service to a new customer because the prior owners of the property had not paid water bills and such practice of Respondent is unjust, unreasonable and contrary to its filed tariffs;
* * *
IT IS THEREFORE ORDERED by the Illinois Commerce Commission that Holiday Utilities Corporation immediately cease, desist and refrain from charging, collecting or demanding payments from customers not authorized by its tariffs as set forth in Findings (11), (12), (13) and (14) hereof * * *."

Mr. Smith testified that as of the time of trial, order No. 58638 was being appealed in the circuit court of Madison County. He explained that defendant had taken the position that, in view of the subdivision’s water utility covenants, a contract to purchase a lot within the subdivision constituted an application for water service. Defendant viewed order No. 58638 as affecting only “nonusers” who had not applied for water service and were nonetheless being billed. According to Mr. Smith, a customer was billed at the end of a quarter for his water use in that quarter. In general, no deposit was necessary when a new customer applied for service, even if the application was in mid-quarter; i.e., a new customer owed nothing until the end of the quarter. Defendant’s rate schedule, admitted in evidence, indicates that the first billing shall be on the first quarterly billing date after application.

Mr. Smith testified that company records revealed that plaintiffs or their agents called on May 7,1978, to report a water leak on Lot 1880; that defendant’s employees investigated and discovered a leak between the meter box and the yard hydrant; and that the employees closed the meter valve and advised the owner to make repairs. Defendant’s exhibit No. 6, in evidence at trial, was a document entitled “Customer Complaints and Service Report.” It bore the same information. There was no affirmative indication thereon that the needed repair had been made or service restored. Mr. Smith explained that it was the customer’s responsibility to repair any leak on the customer’s side of the meter. According to Mr. Smith, “[sjervice is restored by checking to see if the repair has been made. And if the repair has been made, then we open the valve and turn the water on.” A customer could turn the water on with pliers or a crescent wrench. For a customer to get water in the house, the customer would need to extend the pipe from the meter. Keeping the yard hydrant was optional. Although customers often turned their water supply off or on, Mr. Smith stated that “we don’t like” them to do so. Defendant’s regulations required that the customer notify defendant of a change of lot ownership, make written application, and “arrange for service to be turned on if it’s not already turned on.” Mr. Smith testified that he was unaware whether the water was shut off at the meter valve at the time plaintiffs were seeking water service.

Defendant’s exhibit No. 17 consisted of payment stubs for plaintiffs’ water service for payments due in January, April, July, and October of 1979 and January of 1980. The “net amount due” on each of these stubs except for the last one reflected a billing for the arrearage of the prior owner of Lot 1880. Each of plaintiffs’ payments was for the current amount due only.

Mr. Dempsey testified regarding various inconveniences his family suffered because they could not move into their new home prior to October 29 because of the lack of water service. He itemized resultant expenses of $195. At the conclusion of trial, the trial court granted a permanent injunction prohibiting defendant from billing plaintiffs for the prior owner’s past due bill and from refusing water service on that basis. The court found damages as follows: Actual damages $220 (apparently, $195 plus the $25 plaintiffs paid on October 29, 1978); punitive damages, $3,500; and attorney fees, $2,765. The trial court also denied defendant’s counterclaim for the prior owner’s arrearage.

In this appeal defendant urges that various findings by the trial court were against the manifest weight of the evidence. Defendant also argues that punitive damages were improperly awarded and that, if this was a proper case for punitive damages, the amount awarded was excessive. Neither the question of the propriety of the award of attorney fees assessed in the trial court nor the reasonableness of such award has been briefed or argued in this appeal and will not be considered by this court. (See 73 Ill. 2d R. 341(e)(7).) Further, this court ordered that plaintiffs’ motion for attorney fees on appeal, filed in this court after the appeal was perfected, be considered with this appeal.

Defendant contends that the trial court erred in finding that defendant unreasonably and unlawfully refused to provide water service to plaintiffs prior to October 29, 1978. Defendant urges that water service was available when plaintiffs purchased the lot because it was serviced by the yard hydrant; that the leak reported May 7, 1978, indicates that available water was leaking; and that plaintiffs admitted that they had available water service by offering to pay undisputed charges in inquiries about the water service and by agreeing to pay a $25 “undisputed bill” as shown by the “Temporary Restraining Order” of October 26, 1978. Plaintiffs argue that the leak report, which reflects that water was shut off May 7, is not inconsistent with defendant’s refusal to turn on the water from August 1978, until October 29, 1978.

In our view, the decisive facts are that plaintiffs could not obtain water in their house at any time from August 1978 until October 29,1978, when defendant effected a “hookup.” This was uncontradicted and was ample proof of plaintiffs’ lack of water service prior to the hookup.

However, we agree with defendant that plaintiffs admitted their liability for $25 for two quarters’ minimum water charge from April 1, 1978, to September 30, 1978; for that reason it is unnecessary that we decide whether that $25 was in fact owed by plaintiffs. Defendant urges that such admission is evidenced by plaintiffs’ various offers to pay the minimum use charge for the time they owned the lot but had no water service and plaintiffs’ agreement to pay $25 as the “undisputed” portion of the bill. We find the point conceded as well during Mr. Dempsey’s testimony on cross-examination: Mr. Dempsey testified that the yard hydrant was ultimately removed before the house was completed. When defense counsel asked Mr. Dempsey whether, to his knowledge, any of the contractors used the hydrant during construction prior to its removal, plaintiffs’ counsel objected, arguing that “there is no question about the fees incurred or whether they were paid after the Dempseys bought the property at 1880. The question is the prior charge * ° The court sustained this objection.

While we find that plaintiffs conceded that they owed the minimum water charge for the first two quarters of their ownership of Lot 1880, we do not agree with defendant’s conclusion therefrom that plaintiffs conceded that they had water service for that period of time. It appears that plaintiffs believed, rightly or otherwise, that they owed the minimum use charge regardless of whether they had applied for water, as evidenced by their letters admitting liability for this charge while seeking water service, and from the agreed order of October 26,1978, of like effect. Support for that belief appears in the recorded water covenant for the subdivision, which states in part: “The Purchaser contracts and agrees to pay a minimum water use charge not to exceed $12.50 per quarter ° ° We conclude that the trial court did not err in determining that plaintiffs were refused water service; however, we find that it was error to award plaintiffs as an element of their damages the $25 undisputed liability of plaintiffs for the billing period from April 1978 through September 1978.

Next, defendant argues that the trial court’s finding that defendant unreasonably and unlawfully attempted to collect the prior owner’s unpaid bill was against the manifest weight of the evidence. Defendant urges that plaintiffs failed to avail themselves of the dispute resolution procedures set forth in Illinois Commerce Commission General Order 172, Second Revised, and that refusal by defendant to provide service, if any, was because of plaintiffs’ failure to pay undisputed charges rather than the prior owner’s bill. As we understand the second of these arguments, defendant is urging that plaintiffs would have been provided service had they paid the $25 coming due after they acquired their lot. This contention is untenable. Defendant consistently demanded full payment of the prior owner’s bill as a prerequisite to any service, as shown by Mr. Smith’s letters of August 16 and October 6, 1978, and by Mr. Dempsey’s account of what Mr. Smith told him on September 28, 1978.

Additionally, in our view the Illinois Commerce Commission’s dispute resolution procedure, relied upon by defendant, does not apply to the circumstances at bar. Section 16 of General Order 172, Second Revised, is entitled “Dispute Procedures.” It requires a utility to assign at least one employee in each of its business offices to hear any dispute by an “applicant, customer or user.” If the dispute cannot be resolved, the employee designated to hear disputes is to inform the complainant of the right to have the matter heard by supervisory personnel who, in the event of further inability to resolve the dispute, is to inform the “applicant, customer, or user” of the right to review by the Illinois Commerce Commission. That portion of the dispute procedures relied upon by defendant states that when a “customer” disputes a particular bill, the utility shall not discontinue service for nonpayment so long as the “customer” (1) pays the undisputed portion of the bill (subject to exceptions inapplicable here), (2) pays all future bills when due, and (3) begins bona fide dispute settlement discussions with the utility.

In the “definitions” section of General Order 172, Second Revised, “customer” is defined as “a person who has agreed with a utility to pay for gas, electric, water or sanitary sewer utility service.” “Applicant” is defined as “a person who applies for residential or non-residential utility service.” In the case at bar plaintiffs were at all relevant times attempting to secure first-time service, service which they did not have. No agreement to pay for service had been reached. We find that plaintiffs in these circumstances were applicants, not customers, and that the provisions relied upon by defendant were not applicable to plaintiffs. We further note that the provisions relied upon by defendant forbid “discontinuation” of service under certain conditions, an anomalous reference where the complainant has not yet received service.

Defendant also argues that plaintiffs failed to establish that any of the damages they claimed to have incurred after plaintiffs in fact received water service on October 29, 1978, resulted from continued billing by defendant for the unpaid bill of the prior owner. Defendant notes that plaintiffs did not pay any portion of the prior owner’s bill and that all testimony regarding damages incurred by plaintiffs related to plaintiffs’ inability to get water service prior to October 29, 1978. We agree with defendant that, assuming continued billing for the prior owner’s bill after October 29,1978, was improper, there was no evidence of actual damages resulting from that billing. The damages proved resulted from defendant’s refusal to provide water service prior to October 29,1978, unless the prior owner’s bill was paid. Nevertheless, we find ample basis in that refusal to justify the imposition of actual damages as set forth in section 73 of the Public Utilities Act (Ill. Rev. Stat. 1979, ch. 111 2/3, par. 77). Further, we conclude that the judgment of the trial court does not depend on a finding that some of plaintiffs’ damages were incurred as a result of defendant’s acts or omissions occurring after October 29, 1978.

Next, defendant contends that the trial court erred in finding, contrarily to the manifest weight of the evidence, that defendant “unreasonably and unlawfully violated the ICC Order entered December 6, 1978. ” Defendant urges that this order prohibited billing only the owners who had not applied for water service and were not “otherwise receiving” water service. However, this contention depends on the premise that plaintiffs were receiving water service prior to October 29,1978, through the yard hydrant. We have already noted our inability to accept that premise. We conclude that the trial court’s finding that the order of December 6, 1978, was violated by defendant’s continued billing for the unpaid bills of the prior owner was supported by the evidence adduced.

The remaining issues concern the trial court’s award of punitive damages of $3,500 to plaintiffs, pursuant to section 73 of the Public Utilities Act. Section 73 provides in part that where a public utility shall do any act prohibited or declared to be unlawful or shall omit to do any act required to be done by the provisions of the Public Utilities Act or any rule, regulation, order or decision of the Illinois Commerce Commission under authority of that act, the public utility shall be liable for damages and, if the court finds that the act or omission was “wilful,” the court may award punitive damages in addition to actual damages. (Ill. Rev. Stat. 1979, ch. 111 2/3, par. 77.) Defendant contends that the case at bar was not a proper case for imposition of exemplary or punitive damages because there was insufficient basis upon which to characterize defendant’s behavior as wilful. Defendant urges that it has consistently attempted to justify its conduct with respect to plaintiffs and that the imposition of punitive damages in the instant case would force utilities to construe their rate schedules, Illinois Commerce Commission orders, and statutes most favorably to consumers. Defendant also argues that the amount of punitive damages assessed was excessive.

Although punitive damages may be recovered in a proper case, they are not a favorite in the law and will be allowed with caution and confined within narrow limits. (Smith v. Dunaway (1966), 77 Ill. App. 2d 1, 221 N.E.2d 665.) It is generally recognized that punitive damages are awarded primarily to punish the offender and to discourage other offenses. Mattyasovszky v. West Towns Bus Co. (1975), 61 Ill. 2d 31, 330 N.E.2d 509; see Anvil Investment Limited Partnership v. Thornhill Condominiums, Ltd. (1980), 85 Ill. App. 3d 1108, 407 N.E.2d 645.

In our opinion, it is not the presence or absence of possible justification for defendant’s refusal to provide water which renders this a case of wilful act or omission; rather, it is the conduct by which defendant sought to implement its views, i.e., by attempting to force plaintiffs to capitulate or else do without a vital service, which we believe can fairly be characterized as wilful. The term “wilful” entails an intentional disregard of the safety of others and the absence of care for the life and property of others, which exhibit a conscious indifference to the consequences of the action or inaction of a defendant. (Mathis v. Burlington Northern, Inc. (1978), 67 Ill. App. 3d 1009, 385 N.E.2d 780.) Here, there was certainly conscious indifference and intentional disregard for the hardship sure to be thrust upon persons deprived of water at their place of residence over a prolonged period of time. Under the circumstances, we conclude that the case at bar was a proper case for imposition of punitive damages under section 73 of the Public Utilities Act (Ill. Rev. Stat. 1979, ch. 111 2/3, par. 77).

However, we find that the amount of punitive damages assessed in this case, $3,500, was excessive. We note that although the amount of actual damages proved by plaintiffs was relatively small, it has been held that in Illinois punitive damages need not be awarded proportionally to compensatory damages. (Gass v. Gamble-Skogmo, Inc. (7th Cir. 1966), 357 F.2d 215, cert. denied (1966), 384 U.S. 943,16 L. Ed. 2d 541, 86 S. Ct. 1464; Hannigan v. Sears, Roebuck & Co. (7th Cir. 1969), 410 F.2d 285, cert. denied (1969), 396 U.S. 902, 24 L. Ed. 2d 178, 90 S. Ct. 214; 27 DePaul L. Rev. 571, 573 (1978).) Also, there is some authority that expenses and attorney fees incurred by plaintiffs in prosecuting the action may be considered in setting the amount of punitive damages. (Anvil Investment Limited Partnership v. Thornhill Condominiums, Ltd.; 27 DePaul L. Rev. 571, 573 (1978), citing Smith v. Dunaway and Ritter v. Ritter (1943), 381 Ill. 549, 46 N.E.2d 41.) Here, attorney fees incurred by plaintiff were the subject of an express award. We are guided primarily by the fact that defendant’s actions threatened inconvenience at most, not physical injury. We believe punitive damages of $1,500 would have been quite sufficient punishment and a genuine deterrent to the sort of behavior for which defendant was responsible. Accordingly, we reduce punitive damages to $1,500.

This court ordered that plaintiffs’ motion for attorney fees on appeal be taken with the case. We find the motion well taken. (See Ill. Rev. Stat. 1979, ch. Ill 2/3, par. 77.) We grant the motion and order payment of reasonable attorney fees which pertain directly to the defense of this appeal. We therefore direct the trial court on remand to conduct a hearing in order to ascertain the amount of attorney fees which defendant must pay.

For the foregoing reasons, the compensatory damages awarded to plaintiffs are reduced to $195; plaintiffs’ punitive damages are reduced to $1,500; and this cause is remanded to the circuit court of Madison County for determination of the amount of attorney fees on appeal.

Judgments reduced; cause remanded.

JONES, J., concurs.

JUSTICE WELCH,

concurring in part, dissenting in part:

While I agree with the rest of the majority’s opinion, I must dissent from the reduction of the punitive damages for the reasons stated in my partial dissent in Stambaugh v. International Harvester Co. (1982), 106 Ill. App. 3d 1. As in that case, the majority here provides no reason to characterize the trial court’s assessment of punitive damages as improper, and in the absence of such doctrine, I believe we must presume that that assessment is correct.


author: JUSTICE HARRISON

text:
    MONROE COUNTY WATER COOPERATIVE, Plaintiff-Appellee, v. THE CITY OF WATERLOO, Defendant-Appellant.
    Fifth District
    No. 81-260
    Opinion filed June 11, 1982.
    Rehearing denied July 12, 1982.

      Edward J. Kionka, of Carbondale, and Thomas C. Soraghan, of Belleville, for appellant.
    Crowder, Traughber & Scoggins, Ltd., of Columbia, for appellee.
   JUSTICE HARRISON

delivered the opinion of the court:

The defendant, City of Waterloo (the City) appeals from a final judgment of the circuit court of Monroe County against the City and in favor of the plaintiff, Monroe County Water Cooperative (the Co-op). After a bench trial the trial court found that the City had converted a water line system properly belonging to the Co-op, and the court therefore awarded damages to the Co-op in the amount of $76,898, plus costs of suit. On appeal the City raises three issues for our consideration. First, the City contends that the trial court erred in finding that a 1955 water supply contract had been abandoned. Second, the City asserts that the trial court erred in finding that the City had taken the Co-op’s water lines. Third, the City maintains that the Co-op failed to plead the theory of conversion on which the judgment was based. We affirm the judgment of the circuit court.

The record indicates that about 1950 Walter Luhr constructed a system of water lines to service a subdivision which he was developing north of the City. After securing City approval, Luhr connected his water system to the City water system. About 1955 Louis Hoffman and Delbert Mueller also developed a subdivision north of the City for which they negotiated an agreement with the City to supply water. The contract, dated July 5, 1955, provided, in part, for Mueller and Hoffman to pay a specified rate for water passing through a master meter which was to be located at the connection to the City water system. A functional master meter was apparently never installed, and the City provided water through these lines to consumers, billing them directly.

In 1977 Hoffman and Mueller attempted to sell their line to the City. In January 1978, the city council voted to purchase the line for $23,500, but then in February 1978, the council reconsidered and voted not to purchase the line. Instead, the council unofficially suggested that a water district should be formed. Pursuant to that suggestion, the Co-op was formed.

On June 16, 1978, the Hoffman and Mueller water system and the Luhr system were sold to the Co-op. Mueller and Hoffman also assigned to the Co-op their interests in the 1955 contract. On July 11, 1978, the City passed an ordinance which provided for a rate greater than that provided by the 1955 agreement.

On December 4, 1978, the City denied the Co-op’s request that the City pay a fee for the use of the water lines in question. Subsequently, the Co-op installed a new master meter in anticipation of final readings of individual meters in preparation for the Co-op’s assumption of supply and billings. The City failed to supply the Co-op with a copy of the final meter readings. At trial the City presented evidence that the new master meter was defective.

On May 18, 1979, the Co-op filed a four-count complaint in the circuit court. The first count of the complaint sought, inter alia, specific performance of the 1955 contract as well as damages for breach thereof. The second count sought damages and alleged that the “defendant took and appropriated in part the aforesaid Cooperative Water Main System of plaintiff for the use and benefit of defendant and 999 without plaintiff’s consent 9 9 9.” The third count sought damages for substantially similar conduct. The fourth count sought a writ of mandamus to compel the City to institute condemnation proceedings to acquire the water main system.

The trial court found that the Co-op’s contract claim was barred by the statute of limitations in that more than 10 years had passed after a cause of action had accrued under that contract. The court also found that the defendant

* * has in fact passively and actively negated attempts of plaintiff to be compensated as owner of its water lines and has taken over possession for its own public use and profit the water main system and its appurtenances which are the personal property of the Monroe County Water Cooperative, a corporation, and have [sic] assimilated same into defendants’ [sic] Municipal Water System, for its undivided profit, without first acquiring said property in the manner provided for such taking of private property for public use, and without first obtaining the unconditional consent or permission of the Cooperative. This constitutes a conversion, a use or disposition of the personal property of the Cooperative not authorized by, without the license or consent of, or contrary to or in violatin [sic] of the instructions of or any agreement with the owner Cooperative in a wrongful assumption of ownership rights. Plaintiff’s position is made difficult in the assertion of its proprietary rights in that were the plaintiffs to shut off the system at the valves preventing continued use, it would deprive 113 users of their only available central source of water. Similarly to seek an injunction for the same purpose would likewise deprive these people of water.”

Based on this finding the court assessed damages in the amount of $76,898 plus costs of suit.

The appellant’s first contention is that the trial court erred in finding that the contract had been abandoned. We note, however, that appellant urged on the trial court precisely the point which he now claims as error. In closing argument the attorney for the City stated that “[w]e believe, Your Honor, that with the contract, Lou and Del basically abandoned the contract from the beginning, that, therefore, was no contract. That is one of our contentions.” A “theory inconsistent with that which is espoused in the trial court may not be considered on review.” Commercial Discount Corp. v. Bayer (1978), 57 Ill. App. 3d 295, 299, 372 N.E.2d 926.

The City’s second contention is that the trial court erred in finding that the City had taken the Co-op’s water lines. The City advances several arguments in support of this proposition. First, the City asserts that it committed no specific act which constitutes a taking. The trial court found that the defendant “has taken over possession for its own public use and profit the water main system and its appurtenances * * * and have [szc] assimilated same into defendants’ [sic] Municipal Water System, for its undivided profit * * To constitute a conversion “[a]ll that is required is that defendant exercise control over the chattel in a manner inconsistent with plaintiff’s right of possession.” (Jensen v. Chicago & Western Indiana R.R. Co. (1981), 94 Ill. App. 3d 915, 932, 419 N.E.2d 578.) The City has supplied water through the Co-op’s lines and collected the charges directly from consumers. By so utilizing the system, the City has effectively prevented the plaintiff from making use of the system. This is sufficiently inconsistent with the Co-op’s right of possession to constitute a conversion.

The City argues that direct billing is not a conversion because it was permitted under the 1955 contract. An analogous contention was rejected in Jensen (94 Ill. App. 3d 915, 933); moreover, we have already upheld the trial court’s determination that the contract was abandoned, hence this point is without merit.

The City’s final contention of error is that the Co-op failed to plead the theory of conversion on which the trial court predicated its judgment. Where a defendant is “cognizant of the nature and circumstances of plaintiff’s claim for damages and the theory behind that claim, and the claim is supported by evidence adduced at trial, the pleadings will be liberally construed.” (Pickett v. First American Savings & Loan Association (1980), 90 Ill. App. 3d 245, 251, 412 N.E.2d 1113.) Paragraph seven of count II of the complaint alleges that “defendant took and appropriated in part the aforesaid Cooperative Main System of plaintiff for the use and benefit of defendant and its municipal water system without plaintiff’s consent • # (Emphasis added.) We find that this adequately apprises the defendant of the nature and circumstances of plaintiff’s claim, therefore, despite the complaint’s failure to use the word “conversion,” we find that the complaint, when liberally construed, does allege a conversion.

The City asserts that the Co-op failed to demand the return of the system and that such a failure is fatal to the Co-op’s cause of action. The cases are, however, divided as to whether an allegation of demand and refusal is always necessary to maintain a cause of action for conversion. (Compare Jensen v. Chicago & Western Indiana R.R. Co. (1981), 94 Ill. App. 3d 915, 933, with Hoffman v. Allstate Insurance Co. (1980), 85 Ill. App. 3d 631, 633-34, 407 N.E.2d 156.) In cases which do not impose on a plaintiff the requirement of alleging demand and refusal, the defendant had sold or otherwise disposed of the property in question and thus no longer had possession thereof (Jensen v. Chicago & Western Indiana R.R. Co. (1981), 94 Ill. App. 3d 915; Community Acceptance Corp. v. Falzone (1951), 343 Ill. App. 258, 260-62, 98 N.E.2d 788), the rationale being that a demand for possession would be fruitless where the defendant no longer possesses the chattel and the law will not require the doing of a useless act. National Rond & Investment Co. v. Zakos (1923), 230 Ill. App. 608, 612.

In light of the testimony of the Co-op’s president that unsuccessful attempts were made to obtain the meter readings from the City, we find this rationale applicable to the instant case, in that any demand would have been unavailing, and therefore we decline to require such an allegation.

We have examined the defendant’s other assertions of error and found them to be without merit. We therefore affirm the judgment of the circuit court of Monroe County.

Affirmed.

JONES and KASSERMAN, JJ., concur.


author: JUSTICE WELCH

text:
      In re D. J. B., a Minor.—(THE PEOPLE OF THE STATE OF ILLINOIS, Petitioner-Appellee, v. D. J. B., Respondent-Appellant.)
    Fifth District
    No. 80-507
    Opinion filed June 21, 1982.

      John H. Reid and Patrick M. Carmody, both of State Appellate Defender’s Office, of Mt. Vernon, for appellant.
    Don W. Weber, State’s Attorney, of Edwardsville (Martin N. Ashley and Frank J. Bieszczat, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE WELCH

delivered the opinion of the court:

Respondent, D. J. B. was adjudged a delinquent and a ward of the Circuit Court of Madison County. Following a dispositional hearing he was committed to the Department of Corrections, Juvenile Division.

The record reflects that in an unrelated hearing in March 1980, the respondent had been found to be delinquent based upon his involvement in arson. He was declared a ward of the court and placed on probation for one year. In May of 1980, a petition was filed charging respondent with burglary and criminal damage to property under $150. In addition, a petition to revoke minor’s probation based on those charges was filed.

An adjudicatory hearing was held on June 13, 1980. The respondent was represented by the public defender’s office. Neither parent appeared at the hearing. Respondent, pursuant to negotiations, admitted to the criminal damage charges of both petitions. In exchange, the burglary charges in the petitions were dismissed. After being fully admonished and advised of his rights and possible dispositions the respondent admitted to the offenses in open court and affirmed the negotiations. The court then found respondent to be delinquent and a ward of the court. At a dispositional hearing held July 3, 1980, respondent was ordered placed in the custody of the Department of Corrections, Juvenile Division.

Respondent contends on appeal, although he did not do so at trial, that the juvenile court lacked jurisdiction to impose final judgment and that any order entered is void. The first basis for respondent’s contention is that service of his parents by publication occurred only eight days prior to the adjudicatory hearing in contravention of the 10-day rule of section 4 — 4(3) of the Juvenile Court Act (Ill. Rev. Stat. 1979, ch. 37, par. 704 — 4(3)). It appears that this argument poses a question of first impression in this court.

The current petition listed the address of respondent’s father as “ADDRESS UNKNOWN, Indianapolis” and listed the address of respondent’s mother as “ADDRESS UNKNOWN.” Service by publication of respondent’s parents was placed with the Granite City Press-Record on June 2, 1980, and notice of the June 13, 1980, adjudicatory hearing was published on June 5, 1980. In the previous hearings of this respondent, resulting in probation, service was by publication also, the parents’ addresses being unknown.

Respondent relies on In re R. P. (1981), 97 Ill. App. 3d 889, 423 N.E.2d 920, for the contention that the court lacked jurisdiction based on the State’s failure to comply with the 10-day notice rule. Reliance on this case by respondent is misplaced. In R. P. the issue was whether in personam jurisdiction for an adjudication of a second supplemental petition continued from the original petition and first supplemental petition. Jurisdiction had been acquired over the minor’s biological father by personal service for the purpose of an adjudicatory hearing on the original and first supplemental petitions.

R. P. addresses only the issue of when service by publication may be used. In that case, the court felt that notice by publication of the second supplemental petition was inadequate, since the father had received personal service of the original and first supplemental petitions. R. P. states that when a supplemental petition alleges a different transaction from that in the original petition, notice to the parents “must be just as adequate as * * ° the notice required for the original petition.” (97 Ill. App. 3d 889, 893, 423 N.E.2d 920, 923.) The decision in that case provides us with no guidance concerning the ability of the juvenile court to proceed within 10 days following service of parents by publication.

The Juvenile Court Act allows for service by publication when personal service or notice by certified mail cannot be obtained. (Ill. Rev. Stat. 1979, ch. 37, par. 704- — 4(2).) The Act further states that “[t]he court may not proceed with the adjudicatory hearing until 10 days after publication.” (Ill. Rev. Stat. 1979, ch. 37, par. 704 — 4(3).) Respondent interprets this language to be mandatory.

Words such as “shall” or “must” often indicate mandatory language, although, in certain circumstances, those terms can be construed as directory rather than mandatory. (Andrews v. Foxworthy (1978), 71 Ill. 2d 13, 373 N.E.2d 1332). In section 4 — 4(1), such language is employed, in that the court “shall not proceed with the adjudicatory hearing until 5 days” after service upon the parents by certified mail. (Ill. Rev. Stat. 1979, ch. 37, par. 704 — 4(1).) By contrast, section 4 — 4(3) states that the court “may not” hold an adjudicatory hearing until 10 days after publication. To us, the difference between the language in section 4 — 4(1) and section 4 — 4(3) indicates that the time period in the latter section was intended only to be directory, and, even if mandatory, not jurisdictional. But, the wording of the statute is not the sole basis for our conclusion.

As our supreme court stated in In re Armour (1974), 59 Ill. 2d 102, 319 N.E.2d 496, we must consider the entire statute, its nature, objects and the possible consequences from construing it in a particular manner. It is well established that the Juvenile Court Act was enacted as a corrective, rather than a penal measure. (Ill. Rev. Stat. 1979, ch. 37, par. 701 — 2(1).) Society is interested in the proceedings for its own sake as well as for the minor’s individual welfare in guiding and rehabilitating. These interests cannot always be served by mechanical adherence to rote or formula. In re Armour (1974), 59 Ill. 2d 102, 104, 319 N.E.2d 496, 498.

Cases which have found the time limitations of the Juvenile Court Act to be mandatory have involved situations where the juvenile was being detained. (See People ex rel. Davis v. Vazquez (1982), 92 Ill. 2d 132, 145, and cases cited therein). Courts in those cases found that even if mandatory compliance was required, failure to do so would not deprive the court of jurisdiction. The remedy for the juvenile was to be released from detention rather than discharged.

We realize that the cases referred to in the preceding paragraph have construed maximum time limits in the context of the minor’s right to a swift adjudication. But we find the approach taken in those cases to be persuasive in interpreting a minimum time limit here. In the present case, the minor and society are both interested in a speedy determination of the matters alleged in the petition, while the parents’ interest lies in the receipt of adequate notice. We do not believe that the drafters of the Juvenile Court Act intended to reconcile these competing interests by mandating a 10-day waiting period in all cases. Instead, the use of the directive language “may not” suggests that these interests should be weighed to determine whether the Act has been complied with, as they were in the maximum time limit cases. In re Armour.

The predispositional evaluations in this case show that D. J. B. was placed in the Catholic Children’s Home in Alton, Illinois, by his father in 1972. He returned to his father in 1974, but his father returned D. J. B. along with two sisters to the Children’s Home in 1975, where he remained through the adjudicatory hearings. D. J. B.’s mother was not shown to have had any contact with him during this time, and, as of March 1980, D. J. B. last saw his father a year and a half previously, and last received any correspondence from him in mid 1979. When probation personnel finally contacted the father in June 1980, the father stated that he did not want D. J. B. to reside with him because his current wife was under a doctor’s care. The probation officer

“suggested to [the father] that perhaps [D. J. B.] needs him in order to get his life in order. [The father’s] response was that it would not make any difference because [D. J. B.] has always been in some type of trouble (no further elaboration on this subject from [the father]). [The father] also stated that the only thing that will help [D. J. B.] is for him to find out that he cannot do these things [referring to delinquent behavior].”

In this case, the interests of the absent mother and indifferent father, neither of whom had custody of the minor, are at best speculative. (See In re J. W. (1981), 87 Ill. 2d 56, 429 N.E.2d 501.) Moreover, the minor was represented by counsel who protected his rights at all stages of the proceedings. (In re Vaught (1981), 103 Ill. App. 3d 802, 431 N.E.2d 1231.) Under the circumstances, the trial court acted in accordance with the intent of the Juvenile Court Act when it held an adjudicatory hearing eight days after publication.

Respondent next contends that the court lacked jurisdiction because the State failed to exercise due diligence in notifying respondent’s parents of the pending hearing. We cannot agree.

In his brief, the minor relies on In re T. B. (1978), 65 Ill. App. 3d 903, 382 N.E.2d 1292. There, a summons pertaining to the minor’s forthcoming adjudicatory hearing was sent via certified mail to the mother’s last known address in Peru, Illinois. It was returned with a postal stamp marked “MOVED. Left No Address.” Notice to the mother of the hearing was then published. The record did not indicate whether the father received notice of the hearing or whether he appeared at it. At the dispositional hearing, it was learned that the minor’s mother had moved to Arizona. The minor was aware of that fact, and had mentioned it to the police before the summons was sent to his mother’s Peru address. Also, at the dispositional hearing, the father was described as a long-time alcoholic who had little interest in his family.

The appellate court held that the State failed to exercise due diligence in ascertaining the mother’s new address. It was suggested that the State should have inquired among the mother’s former neighbors or of the father, if he was available, to locate her. Significantly, the T. B. court did not fault the State’s efforts in notifying the father, even though it was not apparent of record that he received any sort of notice of the proceedings.

In this case as well, evidence discovered after the adjudication of delinquency proved that further diligence in locating the precise address of the father would have been futile, because he did not wish additional involvement in the matter. Moreover, it appears that D. J. B. had no contact with his mother in approximately eight years, and nothing in the record indicates that he had any idea of her whereabouts, as did T. B.

It is unclear from the record in this case what efforts were made to attempt to locate the current addresses of the parents. The mother’s address has consistently been referred to as “Unknown.” The father was described as a resident of Pittsboro, Indiana in the March and June, 1980, predispositional evaluations, and as a resident of Indianapolis in the May 1980 petitions. The minor suggests that additional inquiries may have yielded a precise street address to which certified mail could have been sent. However, since it is not obvious from the record what inquiries were made, it is difficult to say what those “additional inquiries” would have consisted of.

Most importantly, though, is that, given the parents’ disinterest in the minor, we cannot hold that the failure to make further inquiry so as to enable service by certified mail deprived the court of jurisdiction to adjudicate the status of the minor. The mother’s lengthy absence rendered service by publication appropriate (In re Vaught; In re J. W.), and greater diligence in locating the father’s street address would have indeed been a “useless formality.” (In re J. W. (1981), 87 Ill. 2d 56, 62, 429 N.E.2d 501, 504.) In re T.B. does not hold otherwise.

In our opinion, neither the trial court’s adjudication of delinquency within 10 days of notice by publication nor the State’s failure to pursue whatever further measures might have yielded street addresses for the parents were jurisdictional defects under the facts of this case. Consequently, we affirm the decision of the Circuit Court of Madison County.

Affirmed.

KARNS, P. J., and JONES, J., concur.