author: Mr. PRESIDING JUSTICE BURMAN

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Romell Wilson, Defendant-Appellant.
    (No. 55305;
    First District (4th Division)
    May 16, 1973.

      Michael Unger, of Chicago, (Richard Zulkey and Joseph V. Roddy, of counsel,) for appellant.
    Bernard Carey, State’s Attorney, of Chicago, (Elmer C. Kissane and Frederic I. Chaimson, Assistant State’s Attorneys, of counsel,) for the People.
   Mr. PRESIDING JUSTICE BURMAN

delivered the opinion of the court:

The defendant, Romell Wilson, was tried together with a codefendant, Ronald Burbank, and both were found guilty of murder after a jury trial. The defendants were each sentenced to serve one hundred to one hundred and fifty years in the Illinois State Penitentiary. Ronald Burbank appealed directly to the Supreme Court and his conviction was affirmed. (People v. Burbank, 53 Ill.2d 261, 291 N.E.2d 161.) In this action, defendant Romell Wilson appeals.

The defendant contends that (1) the admission of the codefendant’s confession was prejudicial error denying him his right of confrontation; (2) the court erred in denying his motion for severance; (3) the final argument of the prosecutor was improper; (4) the court erred in denying his motion to suppress his oral confession; (5) the court erred in refusing to give an involuntary manslaughter instruction tendered by the defendant, and (6) the sentence imposed on defendant was excessive.

On July 30, 1968, at approximately 4:30 P.M., three high school girls were standing in front of Mike’s Shoe Shop in the 7100 block of South Ashland Avenue in Chicago, when they observed Ronald Burbank going into the shoe store. They heard gun shots. The girls saw Burbank come running out of the store, putting a gun in his pants pocket. They saw another person stick his head out of the store, but were unable to identify him. The girls gave a description of Burbank to the police and the next day identified him in a lineup of five men.

Officer Daniel Fitzgerald arrested Burbank on July 31st at his mother’s home. He advised Burbank of his constitutional rights, and Burbank said that he understood. Burbank then orally told the police that he and Romell Wilson agreed to rob the shoe store. Wilson went in first and he came in later. They were both armed. When Wilson announced the robbery, the proprietor stalled throwing shoes and Wilson shot him.

Upon this information, Romell Wilson was arrested by Officers Richard Bedran and James Kehoe. The officers advised Wilson of his constitutional rights. They asked him if he understood and he said he did. At the station, Detective Fitzgerald again advised Wilson of his rights and Wilson again said that he understood. Wilson twice orally admitted that he had shot the proprietor after the deceased had thrown shoes at him. He stated that he went into the shop to have his shoes repaired and that Burbank was with him. Wilson told Officers Bedran and Kehoe that he threw the gun over a fence. Later he told Officer Fitzgerald that the gun was on a shelf near the mattress in his bedroom, and gave the police permission to get the gun. Officer Donald Burch retrieved a .38 caliber revolver from defendant’s bedroom which was identified by ballistics tests as the gun that fired the fatal shot.

Defendant first contends that the admission into evidence of Burbank’s oral confession deprived him of his right of confrontation under the Sixth Amendment. We note that neither defendant took the witness stand. Both defendants made oral statements to the police, and both refused to give written statements. Defendant argues that he was prejudiced by the court’s allowing the jury to hear the contents of Burbank’s confession. He maintains that the prejudicial effect of Burbank’s statement is apparent in light of the fact that neither defendant testified at trial and that none of the State’s witnesses identified Wilson as being at the scene of the crime.

The record reveals that the court instructed the jury to consider Burbank’s confession only in determining Burbank’s guilt and not Wilson’s. The defense claims that the instant case is governed by Bruton v. U.S., 391 U.S. 123. There, the Court held that despite instructions to the jury to disregard the co-defendant’s confession, its admission at a joint trial violated the defendant’s right of confrontation. The Court stated that it was impossible to determine whether the jury had ignored the co-defendant’s statements in determining the defendant’s guilt.

Since Bruton, the U.S. Supreme Court has modified its position on this issue. (See Harrington v. California, 395 U.S. 250, and Schneble v. Florida, 405 U.S. 427.) In Schneble, a conviction was upheld in an analogous situation to the one now before us. There neither defendant testified and both gave confessions which were substantially similar. The Court held that the admission of the co-defendant’s confession was harmless error.

In the instant case, the admission of Burbank’s confession could not have altered the jury’s verdict. The statement Wilson gave to the police placed him at the scene of the crime with Burbank. Wilson admitted shooting the victim, and told the police where to find the murder weapon. In addition, the three girls testified that they saw another person with Burbank at the store. We are satisfied from the record that the defendant was convicted on the overwhelming evidence of his own confession and the other testimony and that he was not prejudiced by the'admission of his co-defendant’s statement into evidence.

Defendant next alleges that the trial court erred in refusing to grant his motion for severance. Burbank also contended on his appeal that a severance should have been granted. The paramount inquiry in determining whether a severance should be granted is whether the defenses are so antagonistic as to require severance in order to assure a fair trial. (People v. Canaday, 49 Ill.2d 416, 424, 275 N.E.2d 356, 361.) In the instant case, both confessions showed that the defendants were in the shoe repair store and that Wilson fired his gun and killed the deceased after the latter threw shoes at him. We are of the opinion that the State’s case against Wilson would not have been significantly less persuasive had the two defendants been severed for trial. (Schneble v. Florida, 405 U.S. 427, 432; People v. Burbank, 53 Ill.2d 261, 268 — 9, 291 N.E.2d 161, 165 — 6.) Wilson voluntarily confessed to shooting the victim while in the company of Burbank and assisted in recovering the gun he used. If there was error in trying the two defendants together, it was harmless error because of the overwhelming evidence' of the defendant’s guilt.

Defendant also contends that the trial court erred in allowing the State’s Attorney to comment in closing argument on the failure of defendant to testify. Wé find no merit to this contention. The defendant points to statements by the prosecutor to the effect that he did not know what the defense theory of the case was. We note that no objections were made at trial to the prosecutor’s comments, and that' the defendant has therefore waived this issue on appeal. (People v. Voss, 6 Ill.App.3d 362, 365, 285 N.E.2d 816, 818.) Even if the defendant had not waived the issue, however, we do not think that the prosecutor’s argument was improper. The test to be applied in determining whether a closing argument violated a defendant’s right to remain silent is whether the language used by the prosecutor was “intended or calculated to direct the attention of the jury to the defendant’s neglect to avail himself of his legal right to testify.” (People v. Mills, 40 Ill.2d 4, 8, 237 N.E.2d 697, 700.) Applying this test, we are of the opinion that the statements were proper and did not refer in any way to the defendant’s failure to testify.

Defendant further argues that the trial court improperly denied his motion to suppress his oral confession because he had not knowingly waived his right to remain silent. There was testimony that the defendant was advised of his rights at the time of his arrest and again when he arrived at the police station. Both times, defendant responded affirmatively when asked if he understood his rights. As the Supreme Court stated in Burbank, “the preliminary inquiry as to whether the defendant has been properly warned and whether he knowingly waived his rights is for the trial court.” (People v. Burbank, 53 Ill.2d 261, 266, 291 N.E.2d 161, 164.) On the evidence before us, we cannot say that the trial court’s denial of defendant’s motion to suppress was against the manifest weight of - the evidence.

The defendant also complains that the trial court erred in rejecting the involuntary manslaughter instruction tendered by the defendant at trial. The instruction read as follows:

“A person commits the crime of involuntary manslaughter who causes the death of another by acts which are performed recklessly and are likely to cause death or great bodily harm to another.”

The evidence showed that Wilson went to the shoe shop with Burbank and that he shot the proprietor after the deceased threw shoes at him. The victim was approximately 40 years older than the defendant and was unarmed. We find nothing in the record to warrant the giving of the instruction on involuntary manslaughter. Nor do we think the trial judge was obligated to give a voluntary manslaughter instruction sua sponte when none was tendered by the defense. People v. Taylor, 36 Ill.2d 483, 224 N.E.2d 266; People v. Johnson, 112 Ill.App.2d 148, 251 N.E.2d 393.

Lastly, it is argued that the sentence was excessive. Burbank made a similar argument on appeal and it was rejected by the Supreme Court. What was said there is applicable here. The trial judge is in a superior position to evaluate the length of the sentence that should be imposed because he heard the testimony and presided over the hearing on aggravation and mitigation. (People v. Taylor, 33 Ill.A.2d 417, 424, 211 N.E.2d 673, 677.) The length of a sentence is a matter of judicial discretion and it should not be altered by a reviewing court unless it is apparent that the judge has abused his discretion. (People v. Bonner, 37 Ill.2d 553, 229 N.E.2d 527, cert.den. 392 U.S. 910.) We cannot say that the sentence imposed by the trial court was improper.

The judgment of the circuit court is affirmed.

Affirmed.

ADESKO and DIERINGER, JJ., concur.


source: Caselaw Access Project

author: Mr. JUSTICE ADESKO

license: Public Domain

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Charles W. Krassel, Jr., Defendant-Appellant.
    (No. 57329;
    First District (4th Division)
    May 16, 1973.
    James J. Doherty, Public Defender, of Chicago, (Ronald P. Katz, Assistant Public Defender, of counsel,) for appellant.

      Bernard Carey, States Attorney, of Chicago, (Kenneth L. Gillis, Patricia C. Bobb, and John C. O’Rourke, Jr., Assistant State’s Attorneys, of counsel,) for the People.
   Mr. JUSTICE ADESKO

delivered the opinion of the court:

Defendant, Charles W. Krassel, Jr., was charged with the crime of aggravated battery. He pleaded guilty to the charge and was sentenced to five years probation with the first nine months to be served in the House of Correction, the first three months in actual confinement and the remaining six months in a work release program. The sole issue raised on appeal is whether the trial court properly admonished defendant pursuant to Supreme Court Rule 402 to determine whether his plea of guilty was knowing and voluntary. The facts are as follows:

On September 7, 1971, defendant was indicted by the Cook County Grand Jury for the offense of aggravated battery. On October 7, 1971, defendant was arraigned and entered a plea of not guilty. On January 10, 1972, defendant after negotiations with his counsel and the prosecution, withdrew his not guilty plea and entered a plea of guilty. The trial court admonished defendant concerning his plea of guilty and conducted a hearing wherein the court heard testimony stipulated by agreement between the prosecutor, defendant, and his counsel substantiating defendant’s guilt. The trial court entered judgment on the findings and after a hearing in aggravation and mitigation the court, pursuant to the negotiation, sentenced defendant.

Defendant’s contention on appeal is that the trial court erred by not admonishing defendant exactly as provided for in the Supreme Court Rules, before accepting his guilty plea as knowingly and voluntarily made. Supreme Court Rule 402 in pertinent part provides:

‘In hearings on pleas of guilty, there must be substantial compliance with the following:
(a) Admonitions to Defendant. The court should not accept a plea of guilty without first, by addressing the defendant personally in open court, informing him of and determining that he understands the following:
(1) the nature of the charge;
(2) the minimum and maximum sentence prescribed by law e # #. >
(3) that the defendant has the right to plead not guilty * * *, or to plead guilty; and
(4) that if he pleads guilty there will not be a trial of any kind, so that by pleading guilty he waives the right to a trial by jury and the right to be confronted with the witnesses against him.
(b) Determining Whether the Plea Is Voluntary. The court shall not accept a plea of guilty without first determining that the plea is voluntary. If the tendered plea is the result of a plea agreement, the agreement shall be stated in open court. The court by questioning the defendant personally in open court, shall confirm
• the terms of the plea agreement, or that there is no agreement and shall determine whether any force or threats or any promises, apart from a plea agreement, were used to obtain the plea.
(c) Determining Factual Basis for Plea. The court shall not enter final judgment on a plea of guilty without first determining that there is a factual basis for the plea.” (Ill. Rev. Stat. 1971, ch. 110A, par. 402.)

Defendant concedes that the trial court in the instant case admonished him as to the nature of the charge against him, as to the minimum and maximum penalty prescribed by law, and as to his right to a jury trial which he subsequently waived. Defendant also concedes that the trial court stated the existence of a negotiated plea agreement and the results of that agreement, and that the trial court determined that there was a factual basis for defendant’s guilty plea. Defendant contends, however, that the trial court erred by not admonishing him that if he pleaded guilty there would not be a trial of any kind, that he would not be confronted with the witnesses against him and further that the court did not inquire whether, apart from the plea agreement, there was any force or threats used to obtain the plea.

Supreme Court Rule 402 does not require strict literal adherence to every word contained in it, but rather requires only substantial compliance sufficient to safeguard the rights of the accused. (People v. Reed, 3 Ill. App. 3d 293, 278 N.E.2d 524.) The Illinois Supreme Court in People v. Mendoza, 48 Ill.2d 371, 270 N.E.2d 30, held:

. “The fact that defendant was not specifically admonished by the court, on the record, as to' each and every consequence of his plea does not sufficiently demonstrate that he was, in fact, unaware of these consequences. At the time defendant entered his plea he was represented by privately retained counsel and it is not alleged that his counsel failed to adequately advise him of the consequences of a guilty plea.”

The record in the instant case clearly establishes that defendant, who was represented by privately retained counsel, was carefully informed of the nature of the charge against him and of the penalties prescribed for the charge. He was informed that by pleading guilty he was waiving his right to trial by jury and his understanding was manifested by his answers to the questioning by the trial court. The trial court discussed with defendant in detail the negotiations involved in his plea and was satisfied that the plea was knowingly and understandingly entered into. The trial court found that there was a factual basis for the plea.

Our examination of the record in the instant case in no way indicates that defendant’s plea of guilty in the case at bar was not understandingly and voluntarily made.

We find that the trial court in the instant case substantially complied with the requirements of Supreme Court Rule 402 before accepting defendant’s guilty plea as knowingly and voluntarily made. The judgment of the Circuit Court of Cook County will therefore be affirmed.

Judgment affirmed.

BURMAN, P. J., and DIERINGER, J., concur.


text:
    The People of State of Illinois, Plaintiff-Appellee, v. Clarence Nelson, Defendant-Appellant.
    (No. 56429;
    First District (4th Division)
    May 16, 1973.

      James J. Doherty, Public Defender, of Chicago, (Ronald P. Katz, Assistant Public Defender, of counsel,) for appellant.
    Bernard Carey, State’s Attorney, of Chicago, (Kenneth L. Gillis and Patrick J. McNally, Assistant State’s Attorneys, of counsel,) for the People.
   Mr. PRESIDING JUSTICE BURMAN

delivered the opinion of the court:

The defendant, Clarence Nelson, was found guilty of armed robbery after a jury trial and sentenced to a term of 5 to 20 years in the penitentiary.

On appeal, defendant contends that (1) the prosecutor committed prejudicial error when he elicited testimony of another offense, and (2) the sentence imposed was excessive.

The complaining witness, Sheila Elcock, testified that at about 9 P.M. on January 19, 1970, she entered the vestibule of her apartment building at 307 S. Kilpatrick. A man (the co-defendant who was not tried with the defendant, Clarence Nelson) entered the vestibule armed with a pistol and demanded her money. She threw her purse and satchel to him, and he rifled through them. At this time, the defendant Nelson appeared. He came toward the victim and took the pistol from the other man. Nelson grabbed the victim by the neck, took away her fur coat and hat and began to search her. She said he ripped away her dress and searched her bra and girdle for more money. Then he handed the pistol back to the other man, took the victim’s hat and coat out of the building and returned quickly. When Nelson came back, he again took the pistol and demanded Mrs. Elcock’s apartment keys. When she did not give them to him, he grabbed her by the neck and choked her. Nelson had his hand to her throat and the pistol to her head when two policemen came into the vestibule. Mrs. Elcock testified that she had about $15 in her purse at the time of the robbery.

Officers Cornell Brooks and Curtis Baker testified that they received a call of a rape in progress at 307 S. Kilpatrick. When they arrived, they observed the two defendants in a hallway with a lady. Nelson had his arm around Mrs. Elcock’s neck. When the officers walked into the hallway, Mrs. Elcock screamed that she had been robbed. At this time, Officer Brooks observed the defendant putting something in his pocket and Mrs. Elcock said that he had a gun. The officers arrested the defendant and found a .22 caliber revolver in his right pocket. They also recovered about $15, and a coat and hat belonging to Mrs. Elcock.

The defendant, Clarence Nelson, took the stand in his own defense. He stated that on the occasion in question, he. went to 307 S. Kilpatrick with Carlos Smith for the purpose of visiting two young ladies who lived in the area. When they entered the vestibule, the defendant noticed a lady in the corner picking up the contents of her purse. The defendant told Smith that they better leave because he had a pistol in his pocket. Before they could leave, the police arrived.

The defendant first contends that the trial court erred in allowing the prosecutor to elicit testimony of another offense committed by the defendant. On direct examination of Officer Brooks, the following colloquy occurred:

“Q. Was anything recovered from the two individuals you placed under arrest?

A. Yes, there was some identification, I believe that was recovered from the two defendants belonging to another victim.

Q. Anything else?

A. And money was recovered from them.”

The defendant argues that the reference to “another victim” prejudiced his case.

We note first that no objection was made at tría 1 to the officer’s answer, nor was a motion to strike made or an instruction directing the jury to disregard requested. Thus the defendant has waived his right to raise this issue on appeal. People v. Trefonas, 9 Ill.2d 92, 98, 136 N.E.2d 817, 820; People v. Karatz, 365 Ill. 255, 259, 5 N.E.2d 842, 844.

Even if the defendant had not waived the issue, however, the reference to “another victim” could not have affected the jury’s verdict. The testimony of the complaining witness and of the arresting officers was so overwhelming as to preclude any possibility of prejudice to the defendant. As our Supreme Court has stated, “It is not our policy to reverse a judgment of conviction merely because error has been committed, unless it appears that real justice has been denied or that the verdict of the jury may have resulted from such error.” People v. Tranowski, 20 Ill.2d 11, 17, 169 N.E.2d 347, 350.

In People v. Cherry, 130 Ill.App.2d 965, 267 N.E.2d 744, cert, denied, 406 U.S. 962, a police officer testified that the defendant had been “brought to the police station one other time.” The trial court overruled the defense objection, and the jury was not instructed to disregard the testimony. The appellate court affirmed the conviction, emphasizing that the statement was an isolated remark and that the prosecutor made no effort to capitalize upon it, or to create an image of the defendant as having criminal tendencies. The court also noted that the defendant took the witness stand, and that the jury had an opportunity to form a first-hand impression of him. The court concluded that since there was ample competent evidence to support the jury verdict, the admission of the statement constituted harmless error. For the same reasons, we think the admission of the words “another victim” in the instant case was not so prejudicial to the defendant as to require a reversal.

The defendant also contends that the sentence of 5 to 20 years was excessive. He argues that he was only 27 years old and had no prior felony convictions. We note that the statutory penalty for armed robbery at the time of sentencing was an indeterminate term of not less than 2 years. Ill. Rev. Stat. 1967, ch. 38, par. 18.2.

Our supreme court recently stated in People v. Burbank, 53 Ill.2d 261, 275, 291 N.E.2d 161.

“The imposition of a sentence is a matter of judicial discretion and the sentence imposed by the trial court should not be altered by a reviewing court unless it is apparent that the judge abused his discretion. [Citation.] We have often stated that the trial court is normally in a better position during the trial and the hearing in aggravation and mitigation to make a sound determination as to the punishment to be imposed than are courts on review.”

In the instant case, the trial court, prior to sentencing, noted,

“I have never seen a more overwhelming case in all my life. I have been around the criminal courts a long time and I have never seen a more overwhelming case in all my life. All I have to say is that at one point if those police officers hadn’t come around I think we would have had a dead woman here or a woman that would have been raped or something else.”

The defendant argues that this statement shows that the trial judge considered improper factors when sentencing the defendant. We disagree. The evidence reveals that the defendant, during the course of the robbery, grabbed his victim by the neck and ripped away her clothing. He demanded her apartment keys and when she did not give them to him, he grabbed her by the neck and choked her. We think the trial judge properly considered the violent nature of the crime in sentencing the defendant. It also appears from the hearing on aggravation and mitigation that the defendant had three prior misdemeanor convictions— two for criminal trespass to an automobile and one for petty theft. Under these circumstances, we do not think the court erred in sentencing the defendant to 5 to 20 years in the penitentiary.

For the reasons stated, the judgment of the circuit court is affirmed.

Affirmed.

ADESKO and DIERINGER, JJ., concur.


text:
    Robert Le Flore, Plaintiff-Appellee, v. Chicago Transit Authority, Defendant-Appellant.
    (No. 57571;
    First District (4th Division)
    May 16, 1973.

      James G. O’Donohue, Jerome F. Dixon, and Joseph Luby, all of Chicago, for appellant.
    Joseph A. Rosin and Victor H. Goulding, both of Chicago, (Joseph A. Rosin, of counsel,) for appellee.
   Mr. PRESIDING JUSTICE BURMAN

delivered the opinion of the court:

The plaintiff, Robert Le Flore, brought this action in the Circuit Court of Cook County to recover damages for personal injuries sustained while allegedly a passenger on a bus operated by the defendant, Chicago. Transit Authority. The jury returned a verdict of $10,000 in favor of the plaintiff, upon which judgment was entered, and the defendant appealed.

The jury returned its verdict on October 27, 1971, and assessed the plaintiff’s damages at $10,000. The trial court entered judgment upon this verdict immediately; however, this was apparently unknown to the plaintiff who filed a post trial motion to increase the ad damnum of his complaint, which had been stated at $7,500, to conform to the verdict. The defendant also filed a post trial motion seeking a new trial. The defendant’s motion was denied on January 11, 1972, and the plaintiff withdrew his motion to increase the ad damnum on March 14, 1972. The defendant filed its notice of appeal on April 11, 1972.

The defendant raises two issues on appeal: whether the court erred in refusing to give to the jury a special interrogatory tendered by the defendant and whether the court erred in refusing to grant the defendant a new trial because of the plaintiff’s allegedly perjured testimony. The plaintiff raises a third issue: whether this court has jurisdiction of the present appeal.

We turn our attention first to the question of jurisdiction. The plaintiff points out that the notice of appeal was filed ninety-one days after the entry of the order denying the defendant’s post trial motion and contends, therefore, that it was not filed within the time required by the statute. (See Ill. Rev. Stat. 1971, ch. 110A, par. 303.) He argues that filing the notice within the specified time is jurisdictional and cannot be waived. (Ill. Rev. Stat. 1971, ch. 110A, par. 301; Wishard v. School Directors of District No. 11, 279 Ill.App.333.) The plaintiff has previously raised these contentions in a motion to dismiss the appeal filed in the trial court, which was denied, and in a motion in this court, which was likewise denied. Upon considering them a second time we again conclude that they are without merit.

We do not disagree with the law to which the plaintiff calls our attention. The requirement is that the notice of appeal be filed with the Clerk of the Circuit Court within 30 days after the entry of the final judgment appealed from, or, if a timely post trial motion is filed, within 30 days after the entry of the order disposing of the motion. (See Ill. Rev. Stat. 1971, ch. 110A, par. 303.) In the present case, both parties filed post trial motions. The defendant’s motion was disposed of on January 11, 1972, but the plaintiff’s motion pended until March 14, 1972, when it was withdrawn. Therefore the defendant’s notice of appeal, which was filed on April 11, 1972, was within 30 days of the disposition of the plaintiff’s post trial motion and was timely. In view of this we conclude that this court has jurisdiction of the present appeal and we so hold.

We next turn our attention to the issues raised by the defendant, beginning with whether the court improperly refused to give the defendant’s special interrogatory. A thorough understanding of this issue requires that some of the evidence presented at trial be set forth. The plaintiff testified that'his injuries occurred on December 21, 1967, when he boarded the defendant’s bus at the corner of Monroe Street and Homan Avenue. As he did so, the driver closed the door on his leg and drove for approximately two blocks in that manner down Homan to its intersection with Jackson Boulevard. When the bus ultimately pulled to the curb, the plaintiff’s left foot, which was outside the bus, struck a fire plug, breaking his leg. Police and a fire department ambulance were called, and the defendant was transported to Cook County Hospital for treatment. This testimony was corroborated by James Johnson, an acquaintance of the plaintiff, who was with him on the bus.

Donald O’Sullivan, an investigator for the Chicago Transit Authority, testified on behalf of the defendant that he visited the site of the incident and that there is no fireplug there. The records custodian of Cook County Hospital testified that she could not locate any medical records of a Robert Le Flore for the period December 21, 1987, to April 1, 1968. Richard Iwanowski, a Chicago police officer, testified that his beat included the area of the accident on December 21, 1967, and that he did not recall investigating any accident there on that date and had made no report of any.

The special interrogatory in question is as follows:

“Was the plaintiff treated in any way by Cook County Hospital for any alleged injuries resulting from the alleged occurrence on the Chicago Transit Authority but on December 21, 1967?”

The defendant argues that this was a material issue because of the conflicting inferences to be drawn from the plaintiff’s testimony that he was treated at Cook County Hospital immediately following the accident and the testimony of the records custodian that she could locate no medical records for him. We will not dispute that the issue may have been material; however we do not agree that it was the proper subject of a special interrogatory.

Section 65 of the Civil Practice Act (Ill. Rev. Stat. 1971, ch. 110, par. 65) provides that:

“The jury may be required by the court, and must be required upon the request of any party, to find specially upon any material question or questions of fact stated to them in writing.”

However, a special interrogatory is not proper unless it relates to an ultimate fact in the case and unless an answer responsive to it would be inconsistent' with some general verdict which might be returned upon the issues in the case. (Kaspar v. Clinton-Jackson Corp., 118 Ill.App.2d 364; Hulke v. International Mfg. Co., 14 Ill.App.2d 5.) A special interrogatory which asks for a finding as to a mere evidentiary fact , is never proper. Theesfeld v. Eilers, 122 Ill.App.2d 97; Hulke v. International Mfg. Co., 14 Ill.App.2d 5.

An affirmative answer to the special interrogatory tendered by the defendant in the present case would not be inconsistent with the general verdict returned by the jury. In addition, it is apparent from the defendant’s own argument in its favor that its materiality lies in the fact that it seeks a finding which would render more or less probable the ultimate fact that the plaintiff was in an accident on December 21 and was injured. Therefore it seeks a finding on an evidentiary matter and is not proper. The trial court was correct in excluding it.

Finally we turn our attention to the defendant’s contention that the court erred in refusing to grant a new trial because of the plaintiff’s allegedly perjured testimony. Hie plaintiff testified that prior to December 21, 1967, he was employed at Martin Car Wash, located at 34th Street and California Avenue. He had worked there for approximately five and one half years and earned $155 per week. As a result of the injuries sustained in the accident he was unable to return to work for seven or eight months and, as a consequence, lost the wages that he would have earned during that period.

Hie defendant attached to its post trial motion the affidavit of Glenn Alexander, general manager of Martin Car Wash since 1966. Alexander stated in essence that a Mr. Le Flore had been employed as a casual laborer during April, 1967, and sometime prior to that, but Robert Le Flore had not been employed by the car wash in any capacity from May 1, 1967, to the date of the affidavit, which was November 16, 1971. The highest wage earned by Le Flore during the period that he was employed was approximately $2 per hour. The defendant contends that the plaintiff’s testimony with respect to his lost wages influenced the jury in reaching its verdict and that the information contained in Alexander’s affidavit indicates that this testimony was false.

In its post trial motion the defendant simply set forth the substance of Alexander’s affidavit and argued that the verdict was obtained by fraud. In its brief and oral argument in this court it repeated this argument and also argued that the court erred in refusing to grant a short continuance of the trial so that Alexander could testify.

With respect to the court’s failure to grant a continuance, the record reveals fhat the following colloquy occurred at the conclusion of the defendant’s case:

“THE COURT: Next witness.

MR. LUBY: Your Honor, I have another witness but he is not available right now. I wonder if I could have a little time to get him over here.

THE COURT: Is he available now. Where is he?

Do you have a witness or don’t you?

MR. LUBY: Yes, your Honor, but he isn’t here right now.

THE COURT: Well, let’s get on with it. I have other things to do this afternoon beside waiting for you.

MR. LUBY: WeH, in that case, your Honor, at this time the defendant rests.

THE COURT: All right, we will have a recess.”

In its brief the defendant argues that its request for a “short wait” until the witness arrived was tantamount to a motion for a continuance and that a motion for a continuance should not be denied where it is required by the ends of justice and a denial would be an abuse of discretion. While we agree with this as a general proposition we disagree with the conclusions which the defendant draws from it. The record indicates that the defendant made no attempt to inform the court as to the identity of its witness or the significance of his testimony. When the court indicated that it was not inclined to prolong the trial the defendant rested its case without further objection. Under these circumstances we can hardly say that the court abused its discretion. Had the defendant made a proper offer of proof or had it formally requested a continuance and given the court some ground upon which to grant such a request we might conclude otherwise. Taking the record as it is presented to us, however, we believe that the trial court’s action was entirely proper.

With respect to the defendant’s argument that the court erred in refusing to grant a new trial because of the information contained in Alexander’s affidavit, we believe it fundamental that whenever a new trial is sought on the basis of newly discovered evidence the party seeking it must demonstrate that the evidence could not have been discovered prior to trial. (Pritchett v. Steinker Trucking Co., 40 Ill.2d 510.) In the present case the defendant argues that it was diligent in attempting to obtain information concerning the plaintiff’s employment prior to trial in that on two occasions it requested the court to order the plaintiff to appear for a deposition. It appears from the record that the plaintiff never complied with these orders. It also appears that despite this, tire defendant took no further action to insure compliance. More than three years elapsed between the time that the suit was filed and the date of trial, and the defendant had ample opportunity to request that the court invoke one of the many sanctions provided for in the Civil Practice Act. (See Ill. Rev. Stat. 1971, ch. 110A, par. 219.) This it did not do. Therefore, we believe that the trial court was correct in finding that the defendant did not demonstrate diligence in discovering the details of the plaintiff’s employment and in denying its motion for a new trial.

For the foregoing reasons the judgment of the circuit court is affirmed.

Affirmed.

ADESKO and DIERINGER, JJ., concur.


author: Mr. PRESIDING JUSTICE DEMPSEY

text:
    Metro Investments Co., Inc., Plaintiff-Appellee, v. Thomas Enge, Defendant-Appellant.
    (No. 57014;
    First District (3rd Division)
    May 17, 1973.
    David C. Thomas and Jimmy Jenkins, of Chicago, for appellant.
    No appearance for appellee.
   Mr. PRESIDING JUSTICE DEMPSEY

delivered the opinion of the court:

Thomas Enge rented an apartment on West Madison Street, Chicago, from the plaintiff, Metro Investments Co., Inc. The apartment was occupied by his friend, Jean Jefferson, from November 1968 until June 1969. The tenancy was from month to month and rent was paid to the plaintiff’s agent. The rent, tendered in March 1969, was refused by the agent for the reason that the building was under new management.

No further demand for rent was made and Miss Jefferson and other tenants stayed in the building. However, services which had been furnished them, such as repairs, garbage collection and hot water, were discontinued and the tenants moved out. Miss Jefferson was the last to leave.

The plaintiff sued Enge for the rent which had been unpaid from March 16th to June 1st and obtained a judgment for $253.00. Enge appeals and contends that the plaintiff’s refusal to accept tendered rent barred its action to collect; that the plaintiff waived the covenant to pay rent because it breached an implied warranty that the premises were habitable, and that the trial court erred in denying his motion for leave to file interrogatories.

The plaintiff-appellee has not filed a brief in this court. When an appellee, such as this corporate plaintiff, does not appear to support the judgment in its favor and does not oppose an appellant’s prayer for reversal, a summary reversal is permissible. We believe such a disposition is appropriate in this case. Perez v. Janota (1969), 107 Ill.App.2d 90, 246 N.E.2d 42; Wieboldt Stores v. Mautner (1965), 61 Ill.App.2d 368, 210 N.E.2d 597; 541 Briar Place Corp. v. Harmon (1964), 46 Ill.App.2d 1, 196 N.E.2d 498.

The judgment is reversed.

Reversed.

McNAMARA and McGLOON, JJ., concur.


author: Mr. PRESIDING JUSTICE DRUCKER

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Albert A. Moore, a/k/a Alfred A. Moore, Defendant-Appellant.
    (No. 57572;
    First District (5th Division)
    May 18, 1973.

      Marshall A. Levin, of Chicago, for appellant. j
    Edward V. Hanrahan, State’s Attorney, of Chicago, (Elmer C. Kissane, James R. Truschke, and Anthony Shaker, Assistant State’s Attorneys, of counsel,) for the People.
   Mr. PRESIDING JUSTICE DRUCKER

delivered the opinion of the court:

In a jury trial defendant was convicted of rape, deviate sexual assault and two counts of aggravated battery. He received consecutive sentences of six to 12 years for rape, six to 12 years for deviate sexual assault, and three to nine years for one count of aggravated battery. He appealed to the Illinois Supreme Court, and the case was transferred to this court.

On appeal he contends that: (1) the evidence did not prove him guilty beyond a reasonable doubt; (2) the court erred in admitting testimony of an out-of-court identification of defendant by the victim’s son; (3) the court erred in permitting a police officer to testify as to the out-of-court identifications of defendant by the victim’s son since this was hearsay; and (4) the testimony of the victim’s son concerning an out-of-court photographic identification of defendant was prejudicial hearsay, and that the testimony should not have been allowed due to the State’s failure to produce the photographs involved.

The facts are as follows: On the night of January 22, 1970, Mrs. Annie Flowers and her niece, Ellen Smith, went to a film at a nearby theater. After the film the two women walked home together part of the way, and then separated at about 11:00 P.M. As Mrs. Flowers approached her home, she heard footsteps behind her. As she turned, a man put a coat over her head and placed a sharp object against her neck. She was taken down the alley that ran behind her house, to the stairway of a building abutting the alley. Her assailant forced her to undress and to perform an act of deviate sexual conduct. She was able to escape and ran from the stairway to the alley screaming for help. Her assailant caught up with her as she ran down the alley, raped her and struck her on the back several times with a belt.

Meanwhile, Houston Flowers, the son of the complaining witness, received a call from Ellen Smith informing him that his mother should have reached home by that time. Houston went out in search of his mother. As he walked along 78th Street past the alley that ran behind his house, he heard a noise. He proceeded down the alley and eventually was able to see the outline of a man. As he came closer he noticed his mother lying in the alley. Houston struck the assailant on the shoulder with a cane he had been carrying. Houston then began to run and the assailant ran after him. Houston claimed that he also viewed the assailant when they reached Union Avenue. At the time, they were two residential lots apart. Houston faced the assailant for only a moment.

Later that night at a police station Houston allegedly identified defendant from a selection of several photographs. Mrs. Flowers was unable to identify her assailant from photographs. About a week after the incident, Mrs. Flowers was asked to view a suspect at a police station. She was not able to make a positive identification of her assailant. Houston Flowers was asked to view the defendant; at the time the defendant was seated alone in a room at the station. Prior to making an identification of the defendant, Houston asked the attending officer, “Is that the guy?”

There was a hearing on a motion to suppress the identification testimony of Mrs. Flowers and Houston Flowers. At the conclusion of the hearing the trial court granted the motion with respect to Mrs. Flowers but refused to suppress the identification testimony of Houston Flowers.

At trial Houston Flowers made an in-court identification of defendant and also testified as to the pretrial photographic and stationhouse identifications. A police officer gave testimony describing Houston’s pretrial identifications. Defendant testified that he did not participate in the alleged crime and offered an alibi that he was at home at the time of the alleged offense; members of defendant’s family corroborated his testimony.

Opinion

Defendant’s first contention is that he was not proven guilty beyond a reasonable doubt. We agree. The only evidence connecting defendant with the offenses was the identification testimony of Houston Flowers, and we believe that his testimony was too weak to support a conviction as it did not reach the required quantum of proof beyond a reasonable doubt.

Houston’s opportunity to observe the assailant at the time of the offense was limited. The lighting in the alley was so poor that Houston did not realize that the victim was present until he reached the assailant and struck him with a cane; and he was unable to discern what object the assailant was using to strike the victim. After striking the assailant, both he and the assailant ran. Thus, any observation made at this point was made while either he or the assailant or both were running. The final opportunity to observe the assailant came when they were separated by the width of two residential lots and faced each other for a moment.

Defendant was arrested because Houston allegedly picked out a photograph of defendant on the night of the attack. After defendant was taken into custody, the police did not conduct a line-up for identification purposes. Yet, when Houston was brought to the police station the following week in order to view defendant alone in a show-up, Houston asked Officer John McClain: “Is that the guy?”

Houston’s initial description of the offender was vague. According to Officer McClain, who read from the report at trial, the description consisted of: “Five foot four, 165-170, medium brown, waist length jacket, brown pants, close cut hair, long sideburns.” Defendant testified that he was five feet eight and one-half inches tall. He also testified that he never wore sideburns because he lacked the facial hair to grow sideburns.

Aside from the contradictions concerning sideburns, the only other reference to distinguishing characteristics was elicited by the defense counsel during the hearing on the motion to suppress tire identification. When asked if he had noticed anything unusual about defendant’s appearance, Houston answered: “Yes. At the time that I seen him he had pockmarks, whatever you call them, from where hair had grown in. He must have shaved it off. There was little bitty holes in his face.” At the hearing Officer McClain also testified that Houston had mentioned the pockmarks. However, no testimony concerning pockmarks was elicited at trial, and there is nothing in the record to suggest that defendant has pockmarks and that this qualifies as a distinguishing or unusual characteristic.

Houston also testified at trial that he had seen defendant near his high school prior to the assault. However, this testimony was extremely vague. He testified that he had seen defendant “more than two” times but ‘less than ten times.” He further testified that these observations of defendant took place during 1968 and 1969, and that the last such observation occurred “about” three months prior to the attack, but he could not recall the exact month. Contrary to the argument of the State, we do not consider this reference to previous viewings of defendant to constitute the type of situation in which the identity of a defendant is so well known to the witness that the witness is said to “know” the defendant. (People v. Nelson, 40 Ill.2d 146, 238 N.E.2d 378.) This is especially so when the record shows that Houston did not, in giving a description of the assailant to the police, mention the fact that he knew or had ever seen the assailant before. On the contrary, the day after the incident he told Officer David that he did not know the man who attacked his mother. Moreover, Houston’s uncertainty at the show-up further demonstrates the inadequacy of his identification testimony.

Finally, we find further weakness in the identification testimony in that the photograph of defendant (and those from which it was selected) was never produced in court despite timely requests by defendant at both the hearing on the motion to suppress and at trial. Houston allegedly identified a photograph of defendant, and from this photograph the police allegedly made their arrest. Yet there was a nine day delay between the selection of the photo by Houston and defendant’s arrest: Defendant was arrested while the officers were on a routine patrol. He was beckoned to the police car, the officers remaining at the car. Defendant offered no resistance and came over to the car. Although from the photographic identification the officers supposedly knew the person they were looking for, the arrest, nine days after the photo identification, was without a warrant. The officer called by the State attempted to account for this unusual sequence by stating that the police had been unsuccessful in finding defendant’s name on any of the mailboxes at the building allegedly listed as defendant’s address on the police records.

The identification of the defendant was weak and his alibi was not effectively impeached. Defendant testified that he did not participate in the alleged offense and that he was at home at the relevant time. Members of his family fully corroborated his alibi testimony. Under these circumstances we believe the following language from People v. Gardner, 35 Ill.2d 564, 571, 221 N.E.2d 232, is applicable:

“This court has often held that: ‘In a criminal case it is incumbent upon the prosecution to prove beyond a reasonable doubt not only the commission of the crime charged but also its perpetration by the accused. * * * And while the identification and whereabouts of the defendant at the time of the crime are questions for the jury, yet, where from the entire record there is a reasonable doubt as to the guilt of the accused, a judgment of conviction will not be permitted to stand. (People v. Ricili, 400 Ill. 309; People v. Gold, 361 Ill. 23.) * *

We find, therefore, that the identification testimony and the circumstances of defendant’s arrest, which reflects on the identification, does not meet the burden required to convict defendant.

In view of this conclusion, we need not consider defendant’s other contentions.

The judgment is reversed.

Reversed.

ENGLISH and LORENZ, JJ., concur.

       One count of aggravated battery was for use of a deadly weapon (Ill. Rev. Stat. 1969, ch. 38, par. 12 — 4(b — 1)) and the other for causing great bodily harm (Ill. Rev. Stat. 1969, ch. 38, par. 12 — 4). Defendant was sentenced for only the latter of the two aggravated battery convictions.


text:
    ITT Abrasive Products Company, Plaintiff-Appellee, v. John W. Lewis, Secretary of State, Defendant-Appellant.
    (No. 56894;
    First District (5th Division)
    May 18, 1973.

      William J. Scott, Attorney General, of Chicago, (Francis T. Crowe and Samuel E. Hirsch, Assistant Attorneys General, of counsel,) for appellant.
    John A. McElligott, of Chicago, (Henry J. McDonald, of counsel,) for appellee.
   Mr. PRESIDING JUSTICE DRUCKER

delivered the opinion of the coxirt:

Defendant appeals from a judgment granting plaintiff’s prayer that it be permitted to pay its 1967 Illinois franchise taxes and license fees on the basis of what is commonly referred to as the “in state-out of state” apportionment formula. Defendant contends that plaintiff was under obligation to pay such taxes and fees on the basis of its entire stated capital and paid-in surplus.

The facts were stipulated to by the parties and in relevant part are as follows:

1. Prior to December 31, 1966, Plaintiff, ITT ABRASIVE PRODUCTS COMPANY, a Corporation of Michigan, hereinafter referred to as ‘ABRASIVE’ was known as STERLING GRINDING WHEEL COMPANY, a Michigan Corporation, hereinafter referred to as ‘STERLING’. Its stated capital was $50,000 and it had no paid-in surplus.
2. Also prior to December 31, 1968, THE PENINSULAR GRINDING WHEEL COMPANY, a Corporation of Michigan, hereinafter referred to as ‘PENINSULAR’ had a stated capital of $25,000 with no paid-in surplus.
3. For the years through December 1966, both these corporations filed annual reports and paid the minimum Franchise Tax under the Illinois Business Corporation Act based upon the election of the respective corporations to pay such Tax based on their entire stated capital and paid-in surplus.
4. Pursuant to an agreement of merger dated December 15, 1966, effective December 31, 1966, entered into between STERLING and PENINSULAR, PENINSULAR was merged into STERLING and the stated capital of STERLING, whose name was changed by the agreement of merger to ITT ABRASIVE PRODUCTS COMPANY, remained at $50,000.
5. PENINSULAR was later dissolved as a corporation in the State of Michigan and was withdrawn from doing business in the State of Illinois, and proper notification was given the defendant herein.
6. The records of the defendant disclose that it received on February 28, 1967, an Annual Report (* * # ABRASIVE’S Exhibit 3) in the name of STERLING which set forth a stated capital of $50,000 and no paid-in surplus. In this Annual Report ABRASIVE elected to be taxed on its entire stated capital of $50,000 and no paid-in surplus. The records of ABRASIVE disclose that another Annual Report (* * * ABRASIVE’S Exhibit 4) was ostensibly mailed on February 21, 1967, to the defendant. The records of defendant do not reflect the receipt of Exhibit 4 in which ABRASIVE elected to be taxed on an ‘in state out of state’ basis, the alternative method.
# * #
11. On June 24, 1968, ABRASIVE executed and forwarded to Defendant its Supplemental Annual Report for the year 1968, * * * setting forth a stated capital of $50,000 and paid-in surplus of $4,547,460 for a total of $4,597,460, and in said report elected to be taxed on the ‘in state out of state’ basis.”

Based upon the facts set forth in paragraph 6 above, the trial court concluded that there was a presumption that plaintiff’s other annual report (Abrasive’s Exhibit 4) requesting taxation on the basis of the apportionment formula had been received by defendant and that this presumption had not been rebutted by the fact that defendant’s records failed to show that said report was received. The court, as noted, then ordered that plaintiff be permitted to pay its taxes and fees based upon said apportionment formula. Defendant contests the aforesaid conclusion. Opinion

The rule of law relied upon by the trial court is set forth in Talmage v. Union Central Life Insurance Co., 315 Ill. App. 623, 639, 640, 43 N.E.2d 575, wherein the court stated:

“The rule is that proof of the due mailing of a letter raises the presumption of its receipt, and when the receipt thereof is denied, the only effect is to raise an issue of fact.”

See Loving v. Allstate Insurance Co., 17 Ill.App.2d 230, 149 N.E.2d 641; Werdell v. Turzynski, 128 Ill.App.2d 139, 262 N.E.2d 833.

But in order to invoke the cited presumption there must be proof that the letter, or report here (Abrasive’s Exhibit 4), was duly mailed. In this case the only proof to this effect was the statement set forth in Paragraph 6 of the stipulation of facts that the records of plaintiff “disclose that another Annual Report [Abrasive’s Exhibit 4] * # # was ostensibly mailed on February 21, 1967, to the defendant.” (Our emphasis.)

In construing the terms of a stipulation, as in construing the terms of a contract, the main objective of the court is to determine the intention of the parties. Pearce v. Walker, 229 Ill. App. 133. Each word must be given its ordinary meaning. State Toll Highioay Com. v. Boyle & Co., 38 Ill.App.2d 38, 186 N.E.2d 390.

The use of the word “ostensibly” in the stipulation is of significance here. It is defined in Webster’s Third New International Dictionary (unabridged 1964 ed.), p. 1597, as:

“la: capable of being shown: * * *. 2: professing genuineness and sincerity but often concealing the real aspects behind a plausible facade * *

In the context of the law of partnership and agency “ostensible” takes on the following meanings (Black’s Law Dictionary (4th ed. 1968), p. 1252):

“OSTENSIBLE AGENCY. An implied or presumptive agency, which exists where one, * # *, induces another to believe that a third person is his agent, though he never in fact employed him. # # #
OSTENSIBLE PARTNER. One whose name appears to the world as such, though he have no interest in the firm. #

Based on the foregoing definitions, it is evident that the parties did not stipulate that Abrasive’s Exhibit 4 (the other annual report) had in fact been duly mailed, but only that plaintiff’s records showed that said report was “capable of being shown” to have been mailed, or “presumably” mailed. If the parties had intended to stipulate that the report was in fact mailed, they could have simply deleted the word “ostensibly” from the stipulation.

Thus, the fact which the court relied upon (due mailing) to invoke the presumption was not in evidence. Under these circumstances it was error for it to have concluded that Abrasive’s Exhibit 4 had been received by defendant. See People v. Roy, 206 Ill.App. 406; Meyer v. Krug, 298 Ill. App. 625, 19 N.E.2d Ill. (abst.); State Bank of East Moline v. Standaert, 335 Ill. App. 519, 82 N.E.2d 393. Roy at page 412 referred to this as basing a presumption on a presumption. Therefore, the only report which may be deemed to have been filed by plaintiff in 1967 is the annual report, Abrasive’s Exhibit 3, in which it requested to be taxed on the basis of its entire stated capital and paid-in surplus.

While all the arguments of the parties, pro and con, have related to the question treated with above concerning a report (Exhibit 4) which plaintiff claims was mailed on February 21, 1967, this approach may well be beside the point. If it were to be hypothesized, arguendo, that such a report had been received by defendant, it would presumptively have been received prior to February 28, 1967. Yet the stipulation is clear that on that date a report (Exhibit 3) was in fact received based on plaintiff’s entire stated capital and paid-in surplus. That being so, the later report (Exhibit 3) would be considered as amending or superseding the earlier one (Exhibit 4) and would be controlling in any event.

Finally, we note the record shows that plaintiff paid a franchise tax bill of $25 on May 24, 1967, and a supplemental bill of $75 on September 1, 1967, both of which were based upon its entire stated capital and paid-in surplus (although said figures were grossly understated considering the figures set forth in the stipulation of facts). These payments made three and six months after filing of the report give added confirmation to the efficacy of Exhibit 3 and, in themselves, go far toward defeating plaintiffs argument relying on its alleged filing of a report electing a different basis for payment of its taxes.

The cause is remanded with directions to vacate the judgment and enter judgment for defendant in the amount determined by computing the respective taxes and fees for the year 1967 on the basis of plaintiffs entire stated capital and paid-in surplus.

Reversed and remanded with directions.

ENGLISH and LORENZ, JJ., concur.

       The relevant statutory provisions are sections 136 and 139 of the Business Corporation Act (Ill. Rev. Stat. 1967, ch. 32, pars. 157.136 and 157.139), which in part provide that a foreign corporation will have its franchise taxes and license fees computed on an “in state-out of state” apportionment formula unless, as section 139 provides:
      “(a) If the corporation elects in its annual report in any year to pay its franchise tax upon the sum of its entire stated capital and paid-in surplus, all franchise taxes accruing against the corporation after the filing of said annual report shall be assessed acordingly, until the corporation, elects otherwise (1) in a subsequent annual report filed on or before June 25 of said year and before payment of its annual franchise tax or supplemental annual franchise tax, * * *.”
      An amendment to an annual report filed after June 25 which seeks to change the basis of computing said taxes and fees is not effective. U.S. Borax Corp. v. Carpentier, 14 Ill.2d 111, 150 N.E.2d 818.

       Abrasive’s Exhibit 3 bears a notation: “Pd. $25.00 on 5/24/67.”


author: Mr. JUSTICE LORENZ

text:
    Orput-Orput & Associates, Inc., Plaintiff-Appellee, v. Daniel F. McCarthy, Defendant-Appellant.
    (No. 55988;
    First District (5th Division)
    May 18, 1973.

      David K. Anderson, of Skokie, for appellant.
    Elroy C. Sandquist and Robert F. Fuchs, both of Chicago, for appellee.
   Mr. JUSTICE LORENZ

delivered the opinion of the court:

This appeal involves a contract between the architectural firm of Orput-Orput & Associates, Inc., plaintiff, and Daniel F. McCarthy, defendant. Defendant appeals from the entry of judgment for $24,521.23 plus interest against him for breach of contract and from the dismissal of his counterclaim.

EVIDENCE

In 1960 the J. C. Penney Company agreed to lease 14,000 square feet of first-floor space in a three-story building to be constructed by defendant. Defendant retained Perkins & Will, architects, to prepare preliminary plans. Later, because of delays in planning the project, Ralph Betts, Penney’s representative, suggested a change in architects. Defendant was contacted by Raymond Orput, president of plaintiff, and later held three meetings with him. At the first meeting on December 14 or 15, 1960 in Evanston, defendant told Orput of Penney’s projected October 1, 1961 occupancy date. Defendant testified that Orput agreed that if retained as architect the building would be completed in time for Penney to take possession on October 1, 1961 and the construction cost would not exceed $20 per square foot, including architect’s fees. Orput denied making either statement.

On December 22,1960, the two men, accompanied by Marshall Stevens, a construction superintendent of plaintiff, held the second meeting at defendant’s Evanston office. Raymond Orput agreed to reduce the architectural fee from the standard six per cent of construction cost to five per cent if retained. Defendant claims and plaintiff denies that Raymond Orput again agreed to a $20 per square foot maximum on construction cost.

The third meeting occurred on December 30, 1960, at plaintiff’s Rockford office and at a Rockford restaurant. Raymond Orput presented a written contract, a standard printed form of the American Institute of Architects, completed by typing in the following fee provision:

“B. The Owner agrees to pay the Architect for such services a fee of not to exceed five (5%) percent of the construction cost of the Project, with other payments and reimbursements as hereinafter provided, the said percentage being hereinafter called the Basic Rate. The Architect is to be paid a guaranteed fee of IY2 [per cent] profit plus actual and all overhead for handling the professional architectual [sic] — Engineering costs in preforming [sic] this work but in no event shall the total architectural fee exceed 5% of the total cost of the Project. The Architect’s fee shall apply to all alternates whether accepted or not. The office building will have plans developed on the first floor only. Plans for the interior development of other than the first floor will be preformed [sic] at the rate of $15.00 per hour.”

Paragraph C-3 of the contract was changed by defendant’s requiring addition of a provision that the building would be constructed in separate phases and that separate contracts, at no additional cost to defendant, would be taken on each phase. The evidence is undisputed that defendant made no request to incorporate into the contract a guaranteed time limitation for completion of construction or a square foot cost maximum. Raymond Orput, Alden Orput, his son and vice president of plaintiff, and defendant signed the contract.

Thereafter in mid-January, 1961, defendant and J. C. Penney executed a lease, providing for occupancy by October 1, 1961, but cancellable only if occupancy were not available by June 1, 1962. On January 3, 1961, defendant had met with Raymond and Alden Orput for the purpose of defining as closely as possible the features of the building. Defendant presented the Orputs with the very sketchy preliminary drawings prepared by Perkins and Will for the J. C. Penney layout. Between January 10th and 30th, 1961, four sets of preliminary plans were sent to defendant by plaintiff. The plans, forwarded to J. C. Penney, changed the layout slightly so as to relocate some of the private offices. Penney, by letter dated February 10, 1961, rejected the changes, insisting that the original plans be followed. Plaintiff revised the drawings to Penney’s satisfaction and they were approved on February 17, 1961. Phase one final plans and preliminary specifications were completed on March 13, 1961. Changes made by plaintiff had resulted in the addition of 3930 square feet of rentable space without alteration of exterior dimensions. J. C. Harris & Sons, on the basis of competitive bidding, was then awarded the general construction contract for phase one and commenced construction immediately thereafter. After construction began, defendant at various times considered adding to the building a restaurant, a swimming pool, offices for retired executives, a health club, and a fourth and fifth floor, and cutting back the building to two floors, all of which delayed by about six weeks the construction schedule.

Defendant requested and plaintiff sent to him on May 11, 1961 a cost estimate listing the total construction cost (not including architectural fees) at $1,280,000 or $18.33 per square foot. In order to save the time of taking further bids, J. C. Harris was retained in late June for the balance of the contract by means of a contract negotiated directly between Harris and defendant. In early July plaintiff prepared a form contract for this work including a penalty provision of $300 per day for failure of completion by October 1, 1961. Defendant, however, delayed signing this agreement until mid-September and agreed with Harris to delete this provision.

In July competitive bids from subcontractors under J. C. Harris and from mechanical and electrical contractors were taken. Raymond Orput, upon reviewing all bids, speculated that the estimated cost guidelines would be met. Defendant testified that plaintiff refused to approve defendant’s color selection and thus delayed unnecessarily for two weeks the ordering of precast panels. The panels were not delivered until December 23 or 24, 1961; installation was completed around February 1, 1962. Some of the tenants moved in immediately thereafter. There was evidence that Harris refused to order the panels until after his own contract was signed by defendant. There was also delay by the subcontractor in submitting shop drawings to plaintiff for approval until the day after the completed panels were supposed to have been delivered under the subcontract.

Defendant was billed on phase one by the contractors and subcontractors for $1,194,175.12, the amount of their contracts. After extensive bargaining, defendant settled all the bills at $1,070,000. Plaintiff sues defendant for five per cent of the construction cost of phase one (5% of $1,194,175.12) or $59,708.76 and for $41,510.09 ($15 per hour worked) on the remainder of the project for a total of $101,218.85. Defendant’s payments to plaintiff under the contract totaled $70,000. Accordingly, plaintiff prayed for $31,218.85 in its complaint for breach of contract under Count I and for $50,000 for additional services, performed over and above the contract in Count II. Defendant counterclaimed for $305,337.54, claiming damages arising out of the breach of the two alleged oral agreements (an October 31, 1961 deadline and a $20 per square foot cost maximum). The trial court dismissed Count II of the complaint and the entire counterclaim for want of equity, awarding damages of only $24,521.23 (the number of hours the court found that plaintiff had actually worked on the project, at $15 per hour) plus interest at five per cent, on Count I. Defendant appeals from the entry of judgment on Count I and from the dismissal of the counterclaim, the dismissal of Count II and the discrepancy between the amount prayed for and the amount awarded being uncontested by plaintiff.

OPINION

The first issue presented for review is whether the following findings made by the trial court in construing the contract are against the manifest weight of the evidence: the parties did not orally agree to a cost per square foot limitation or a deadline date; the parties intended the contract term “cost” to refer to the amount charged, not the amount paid; the parties intended the five per cent contract limitation on architecture fees to refer to the cost of the structure, foundation, and interior of the first floor only, rather than to the entire cost of the project; there was no responsibility on the part of plaintiff for construction delays which resulted in any excuse to defendant to withhold payments under his contract with plaintiff. The second issue is whether interest shall be assessed against defendant for failure to timely pay the amount due plaintiff.

The vital preliminary question is whether the trial court’s ruling that the parties did not orally agree that plaintiff would guarantee an October 1, 1961 deadline or a $20 per square foot maximum is against the manifest weight of the evidence. The contract does not mention either alleged agreement. When a contract is silent in essential particulars, parol evidence of prior negotiations and contemporaneous oral agreements is admissible to establish the missing parts. (Spitz v. Brickhouse (1954), 3 IlI.App.2d 536, 539-40, 123 N.E.2d 117, 119; Stevens v. Fanning (1965), 59 Ill.App.2d 285, 292, 207 N.E.2d 136, 140; New York Cent. Development Corp. v. Byczynski (1968), 95 Ill.App.2d 474, 476, 238 N.E.2d 414, 416.) Neither plaintiff nor defendant questions this rule. The trial judge heard all the evidence introduced, weighed its credibility, and ruled that the contract was “full and complete.” We agree, and find that Spitz v. Brickhouse was properly followed by the trial judge.

Defendant further argues that the burden is upon plaintiff to prove the entire contract, including the missing terms and cites Continental Ill. Nat. Bank v. Nat. Casket Co. (1960), 27 Ill.App.2d 447, 169 N.E.2d 853. But in Continental, plaintiff conceded that the parties orally agreed to a particular contract term, differing only in their accounts of the precise nature of the agreement. The court there held that plaintiff should bear the burden of proof. In the case at bar plaintiff does not concede that either a deadline date or a square foot maximum was ever agreed to, and therefore, neither item can be considered a term of the contract. We hold that Continental is not applicable, and that the trial court was correct in ruling that the unfulfilled burden was upon defendant to prove the two alleged oral agreements.

While defendant testified that Raymond Orput agreed to the October I, 1961 deadline and the $20 per square foot maximum at the three meetings held prior to the signing of the contract, Raymond and Alden Orput testified to the contrary. The credibility of the witnesses is, of course, essentially a matter for the finder of fact. The trial judge held that no such agreement was made. “A reviewing court may not reverse the judgment of the trial court merely because different conclusions could be drawn, other results are more reasonable or if such reversal would entail a mere substitution of judgment for that of the trier of fact. An opposite conclusion must be clearly evident from all the evidence before the judgment can be disturbed.” (Gamm Construction Co. v. Berkson (1973), 11 Ill.App.3d 42, 295 N.E.2d 537.) In view of defendant’s failure to add or request the Orputs to add the cost limitation or deadline to the contract on December 30, I960 when defendant did insist upon certain additional language (paragraph C-3) during that meeting, we find that the trial court’s ruling is not against the manifest weight of the evidence.

The trial court ruled that the amount charged defendant by the contractors and subcontractors pursuant to their contracts was “the construction cost of the Project” for the purpose of computing plaintiff’s fees. The next question is whether the trial court correctly interpreted the terms of the contract. The dispute involves only the costs of the structure and foundation of the entire building and the interior of only the first floor, phase one. Defendant argues that the contract term “cost” (the amount used to compute the maximum cost figure) means the actual expense to defendant, i.e., the total of $1,070,000 for which the bills were settled, while plaintiff maintains that the term “cost” means the amount charged for the same work under defendant’s agreements with the general contractor and subcontractors or $1,194,175.12. The contract between plaintiff and defendant itself provides no clue as to the intention of the parties in this regard. In Michalowski v. Richter Spring Corp. (1969), 112 Ill.App.2d 451, 251 N.E.2d 299, the defendant argued, as does defendant here, that “construction cost” should be read to mean the amount actually paid for construction. The court in Michalowski recognized that adopting defendant’s interpretation would lead to the anomalous result that the architect would be paid nothing for valuable service rendered when the project is abandoned before construction begins. We follow that case and hold that the amount charged under the construction contracts is a fair interpretation of the architect’s contract term “construction cost.” Were it otherwise, an owner could simply refuse to pay his contractors and by this expedient of an unlawful act be legally released from paying the agreed fees of his architect.

No evidence was introduced by either party to prove the meaning intended at the time of contracting. The matter was apparently never considered. The court in Stevens v. Fanning (1965), 59 Ill.App.2d 285, 290, 207 N.E.2d 136, 139, stated the proper rule in such a situation:

“The fundamental question in determining the meaning of a contract is always the intent of the parties. This intent is to be gathered by giving to the contract a fair and reasonable interpretation * * (Emphasis added.)

The court below properly applied this “fair and reasonable” standard to the testimony of eight witnesses. Seven of the witnesses testified that the amount charged was “fair and reasonable,” only defendant testifying to the contrary. Defendant has not shown the application of this standard to be against the manifest weight of the evidence. We are aware that contracts are generally construed against the party who prepared them. (Coney v. Rockford Life Insurance Co. (1966), 67 Ill.App.2d 395, 399-400, 214 N.E.2d 1, 3.) However, since the interpretation urged by plaintiff complies with the “fair and reasonable” standard adopted by this court, plaintiff has met his burden. Accordingly, we find that the amount charged to defendant by his construction contractors and subcontractors ($1,194,175.12) was the “construction cost” of phase one of the project.

The next issue is whether the trial court’s ruling that the five per cent limitation on plaintiff s fees applies to only phase one is against the manifest weight of the evidence. The parties refer to the work on the structure and foundation of the entire building and the interior of only the first floor as phase one. Plaintiff billed defendant for five per cent of the construction cost of phase one (5% of $1,194, 175.12) or $59,708.76, which is uncontested. The remainder of the project was billed at, $15 per hour worked or $42,337.07. Defendant contests the propriety of the second charge, asserting that the five per cent maximum applies to the entire project. The parties agree that the imposition of the five per cent limitation on the work beyond phase one would yield a charge substantially below the $42,337.07 figure.

The contract provides in Section B: “a fee of not to exceed five (5%) per cent of the construction cost of the Project * * s.” An alternative method of computing the architect’s fee is then set out, “a guaranteed fee of IV2 [per cent] profit plus actual and all overhead * * Defendant contends that the phrase “construction cost of the Project” refers to all the work done on the building. If the contract made no further reference to fee computations, defendant would be correct. However, the contract further provides: “The office building will have plans developed on the first floor only. Plans for the interior development of other than the first floor will be performed at the rate of $15.00 per hour.” These two sentences establish the $15.00 per hour charge for work beyond phase one without explicitly limiting the charge to the five per cent maximum. Therefore, there exists uncertainty as to whether the five per cent maximum applies to the additional work beyond phase one.

The law is well established that where a written contract is uncertain, ambiguous, or incomplete, evidence of a contemporaneous oral agreement to prove the entire contract is admissible. (Spitz v. Brickhouse (1954), 3 Ill.App.2d 536, 539, 123 N.E.2d 117, 119.) The parol evidence introduced clearly favors the interpretation urged by plaintiff, that no maximum is imposed on the work performed beyond phase one. Raymond Órput explained to defendant at the December 30, 1960 meeting the intended meaning of the fee application. According to defendant’s own account of that meeting, the services were to be billed, subject to a five per cent limitation, and the “extras” billed at a flat $15.00 per hour. The billings of plaintiff, apparently consistent with this interpretation, were received by defendant without protest, until the present litigation arose some time later. We find the provision ambiguous. Although the court below found the fee provision unambiguous, with the aid of parol evidence we agree with the trial court’s conclusion that the five per cent maximum applies only to phase one. Therefore, plaintiff billed defendant properly: 5% of $1,194,175.12 (construction cost of phase one) or $59,-708.76 for phase one and $41,510.09 (the number of hours the court found that plaintiff had actually worked on the project, at $15 per hour) for tire remainder of the project.

Defendant counterclaims for $305,337.54, based on the theory that plaintiff-caused delays prevented the attainment of the alleged October 1, 1961 deadline. The total construction cost of the project, including architectural fees, was $1,589,990.36 or $169,990.36 more than the allegedly agreed maximum cost of $20 per square foot for 71,000 square feet. This excess cost, together with $70,000 paid to plaintiff, $50,460.32 in lost rent and penalties paid tenants for the delay, and $14,876.83 for miscellaneous expenses caused by failure to meet the alleged deadline, form the basis of the defendant’s counterclaim. We have held above that the evidence sustains the trial court’s finding that the parties did not agree to an October 1, 1961 deadline date guaranteed by plaintiff. Therefore, the counterclaim, which must find its support on the existence of such an agreement, was properly dismissed.

Additionally, defendant apparently argues that plaintiff-caused delays excuse defendant from making payments on the contract. The record shows conflicting testimony as to whether defendant or plaintiff was responsible for the delays. The trial court found the plaintiff properly performed his obligations under the contract: “I think that they performed genuinely fine architectural work.” In view of defendant’s uncertainty as to the number of floors and the inclusion of various additions (a restaurant, swimming pool, offices for retired executives, and health club); extensive delay on the part of defendant in signing the general contract; indecision on defendant’s part as to the number of floors; the fundamental change in the layout. of the Penney space; and the fact that the preliminary drawings first presented to plaintiff were so sketchy as to be unworkable, we cannot say that this ruling is against thé manifest weight of the evidence. In summary, we find the awarding of $24,521.23 damages to plaintiff and the dismissal of the counterclaim to be proper.

We next turn to the question of whether interest should be assessed against defendant for failure to make timely payment of the amount due plaintiff. The trial judge awarded interest on the entire decree at the statutory rate of five per cent per annum from the date the work was completed. Ill. Rev. Stat. 1971, ch. 74, par. 2, provides:

“Creditors shall be allowed to receive at the rate of five (5) per centum per annum * * * on money withheld ■ by an unreasonable and vexatious delay of payment.”

No evidence, other than defendant’s self-serving statements, tended to prove that the parties orally agreed to a cost limitation or a deadline date. We hold that no reasonable dispute existed over the amount due defendant. The entire amount awarded plaintiff by the trial court, $24,521.23, was subject to an unreasonable and vexatious delay on the part of defendant. Accordingly, we affirm the award of five per cent interest per annum on $24,521.23 from February 1, 1962, the date on which construction was completed.

Affirmed.

ENGLISH and EGAN, JJ., concur,


text:
    State Street Properties, Inc. et al., Plaintiffs-Appellees, v. The Zoning Board of Appeals et al., Defendants-Appellants.
    (No. 56885;
    First District (5th Division)
    May 18, 1973.
    Richard L. Curry, Corporation Counsel, and Price, Cushman, Keck & Mahin, both of Chicago, (Edmund Hatfield and Daniel Pascale, Assistant Corporation Counsel, and Robert S. Cushman and Wesley S. Walton, of counsel,) for appellants.
    Arvey, Hodes & Mantynband, of Chicago, (J. Herzl Segal and Walter V. Lesak, of counsel,) for appellees.
   Mr. JUSTICE LORENZ

delivered the opinion of the court:

Defendants appeal from an order of the trial court which reversed a decision of the Zoning Board of Appeals of the City of Chicago. The Board had denied plaintiffs a permit to change the lettering in lights on a double faced electric sign affixed to its building in the downtown area of Chicago. The Board’s actions affirmed an identical decision by the City’s Zoning Administrator. Plaintiffs then sought an Administrative Review of the Board’s ruling in the Circuit Court of Cook County. The trial judge reversed the Zoning Board’s decision. Defendants appealed from that judgment order directly to the Supreme Court and that Court transferred the case here.

On appeal defendants contend that the Zoning Board’s decision does not violate due process of law. Specifically they are (1) that the proposed lettering change was prohibited by the zoning ordinance, (2) that plaintiffs did not overcome the presumption of the validity of the ordinance, (3) that the City has statutory authority to regulate the space over tire public way and therefore plaintiffs have no vested rights in the sign, (4) that this prohibition is a reasonable regulation related to the public health, safety, comfort, morals and welfare and is not unreasonably discriminatory, and (5) that the decision of the Zoning Board was not based on extraneous considerations.

The facts are essentially undisputed. Plaintiff, Karoll’s Inc., leases a ground floor store in a building at the southwest corner of Washington and State Streets in the City of Chicago from plaintiff, State Street Properties, Inc. In 1948 (15 years prior to Karoll’s lease) with authority of the City Council, a fifteen by seventeen foot double faced advertising sign was affixed at a right angle to the Washington Street side of the building, thus projecting some fifteen feet over the public sidewalk. Through the years several changes in the message on the sign were authorized by permits issued by the City. The most recent change occurred in 1961 when the message on the sign was changed to read "Rae Me Shops — Handbags and Jewelry” by authority of a City permit dated April 13, 1961. Rae Me Shops was a tenant and occupant of the ground floor shop over which the sign was affixed. In January, 1963, plaintiff, Karoll’s Inc., took over the space occupied by Rae Me Shops and was given the right to use, operate and maintain the sign pursuant to the terms in its lease.

On August 20, 1963, Karoll’s applied for a permit to change the lettering on the sign to read “Karoll’s Men’s Wear” or “Men’s Wear by Karoll’s” or “Men’s Wear Karoll’s.” The Chicago Zoning Administrator noted that the sign was located in a B6-7 Central Business District. The application was denied on the ground that the proposed change did not, in the Administrator’s opinion, conform to Section 8.9 — 6(2) (a) of article 8 of Chicago’s Zoning Ordinance, as amended in 1957 and again in 1963. That added section provides:

“In the B6 — 6 and B6 — 7 Districts, non-flashing business signs are permitted, subject to the following:
# * #
(2) (a) Existing non-conforming projecting signs which project more than 12 inches across the property line into the public way shall not be enlarged, altered or structurally repaired.”

Plaintiffs appealed the Zoning Aidministrator’s decision to the Zoning Board of Appeals.

In October, 1963 the Board of Appeals conducted an extensive hearing to review the Zoning Administrator’s decision. The Chief of Chicago’s Bureau of Electrical Inspectors, William P. Hogan, testified that he had drafted ordinance section 8.9 — 6(2) (a). He stated that, in his opinion, a change in lettering would constitute a prohibited alteration. On the other hand, the plaintiffs produced two expert witnesses whose testimony differed from Hogan’s. Rubin J. Baer, a licensed structural engineer who specialized in sign design, testified that in his opinion changing the lettering on the face of an outside sign cannot be a “structural alteration” because no changes occur to the signs load carrying members. Another expert witness, Carmen Montello, supervising engineer for the Federal Sign Company of Chicago, also stated that a lettering change would not be a “structural alteration” because the existing circuits and transformers could be used to accomplish the proposed change. Montello stated, however, that the change would technically be considered an “alteration” requiring a rewording permit from the City of Chicago. Sam Karoll, an officer and director of plaintiff corporations, testified that the sign was a valuable asset of the building and identified a photographic exhibit which showed similar signs in the same block.

On November 7, 1983, the Chairman of the Zoning Board of Appeals requested an opinion from the Corporation Counsel of tire City of Chicago regarding the nature of the instant sign. Initially the Corporation Counsel was of the opinion that plaintiffs had a right to change the sign. On March 2, 1965, however, he withdrew his opinion. Subsequently, the Zoning Board affirmed the Zoning Administrator’s opinion.

Plaintiffs took the matter to the Circuit Court of Cook County. The trial judge found that the Zoning Board’s action was both, unreasonable and arbitrary, as well as against the manifest weight of the evidence. The judge also found that the Board’s ruling deprived plaintiffs of the protection of due process of law. Accordingly, the court reversed the Board’s decision and entered judgment for plaintiffs, instructing the City of Chicago to issue permits for the proposed lettering change. Defendants appeal this judgment order.

OPINION

Since the instant appeal focuses on the statutory construction and constitutionality of section 8.9: — 6(2) (a) of the Chicago Zoning Ordinance, we will deal directly with that matter. Section 8.9 — 6(2) (a) provides that:

“Existing non-conforming projecting signs which project more than 12 inches across the property line into the public way shall not be enlarged, altered or structurally repaired.” (Emphasis added.)

The present lessee of a premises to which is affixed an existing nonconforming sign projecting more than 12 inches across the property line into the public way now proposes to alter the electric light lettering thereon. In our opinion, the words of the ordinance expressly forbid such a change. We are fully aware of the provisions of Article 6 of tire Zoning Ordinance regarding Non-conforming Buildings, Structures and Uses including section 6.3 regarding non-conforming signs being subject to amortization only as provided for in section 6.4 — 8 and including section 6.4 — 1 regarding permissible alterations in non-conforming buildings and structures. Notwithstanding these provisions, we believe section 8.9 — 6 (2) (a) prohibits the proposed change. This section was added to tire ordinance by amendment subsequent to the writing of the rest of the ordinance. The section does not use the words “structurally altered” (to which term plaintiffs’ two experts directed their testimony); it uses the single word “altered” which by common usage means “changed.” Moreover, section 8.9 — 6(2) (a) applies specifically to existing non-conforming projecting signs, not to non-conforming uses generally. The specific controls the general.

Although plaintiffs assert that if the ordinance were construed to prohibit the instant alteration it would be unconstitutional, we cannot agree. Statute authorizes the elimination of non-conforming uses. (Ill. Rev. Stat. 1963, ch. 24, sec. 11 — 13 — 1.) The ordinance expresses such an intent. Such provisions have been held to be constitutional where related to the public interest. (Village of Gurnee v. Miller (1966), 69 Ill.App.2d 248, 215 N.E.2d 829.) Here the instant sign is suspended above the public way. The public must walk below it. This situation is hazardous to the public welfare and the City is totally within its authority to eliminate such potential hazards. (1426 Woodward Avenue Corp. v. Wolff (1945), 312 Mich. 352, 20 N.E.2d 217.) Moreover, the City has a duty to keep the public way free from obstructions which tend to delay or obstruct traffic or annoy the public in the use of the streets. (E.g., People ex rel. Armanetti v. City of Chicago (1953), 415 Ill. 165, 112 N.E.2d 616.) The fact that the City has chosen to eliminate such hazards by creating an incentive for the owner to remove them by prohibiting alterations is not constitutionally significant. Furthermore, plaintiff is not being deprived of any right. It may, and does, advertise its name by use of a sign which lies flat against the building and does not project more than 12 inches into the public way.

For the above reasons, the decision of the Circuit Court of Cook County is reversed and the decision of the Zoning Board of Appeals is reinstated.

Reversed.

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