author: JUSTICE REINHARD

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. JAMES R. PORRETTA, Defendant-Appellee.
    Second District
    No. 2—83—0759
    Opinion filed September 18, 1984.

      J. Michael Fitzsimmons, State’s Attorney, of Wheaton (Barbara A. Preiner, Assistant State’s Attorney, of counsel), for the People.
    Anthony M. Montemurro, of DiNatale & Montemurro, of Oak Park, for appellee.
   JUSTICE REINHARD

delivered the opinion of the court:

The State appeals a finding of “no probable cause” by the trial court in an “implied-consent” hearing held pursuant to section 11—501.1(c) of the Illinois Vehicle Code (Ill. Rev. Stat. 1983, ch. 951/2, par. 11—501.1(c)) following the arrest of defendant, James R. Porretta, for driving while under the influence of alcohol (DUI) under a city of Naperville ordinance.

The issue on appeal is whether, upon the trial court’s finding that defendant was incapable of refusing to take a breathalyzer test, the court erred in further determining that the State then should have administered a blood test and, on the State’s failure to conduct such a blood test, finding the State did not comply with the “implied-consent” procedures under the statute.

On February 2, 1983, defendant was arrested and charged with DUI under a city of Naperville ordinance. The arresting officer, William Zittnan, subsequently filed his sworn statement with the clerk of the circuit court that defendant refused to take a test requested in accordance with section 11 — 501.1 of the Illinois Vehicle Code and set forth the grounds upon which he based probable cause to arrest defendant for DUI. Defendant filed a request for a hearing.

The substance of Officer Zittnan’s testimony at the hearing was that while he was on patrol his attention had been called to defendant’s vehicle by a witness; that he then observed the vehicle make a left-hand turn and drive off the roadway; that defendant was the driver; that he arrested defendant for DUI after observing an odor of alcohol, defendant’s general attitude, and defendant’s inability to perform certain field tests; that at the station he requested the defendant take a breathalyzer test and defendant refused; that during his questioning of defendant to complete his report the defendant became unconscious and passed out; that defendant for a short period of time was awake and then would fall back asleep; that defendant also passed out as he tried to telephone his attorney; and that he never asked defendant to give samples of his blood or urine.

Defendant testified that he did not “recall” Officer Zittnan asking him to take a breathalyzer test; that he called his attorney but was unable to talk to him because he fell asleep; that at the station he was awake “for a little bit” and then was “comatose for a while”; and that he called his wife, who came and picked him up.

The trial court determined that a recent amendment to the Illinois Vehicle Code provided that a person in a condition rendering him incapable of refusing a test requested to determine alcohol content was deemed not to have withdrawn consent to such test as provided under the “implied-eonsent” statute. However, the court below stated that “[i]f a police officer has a comatose person as a result of alcohol, they [sic] may take him to the hospital and take the blood test.” The court then found that defendant was incapable of making a refusal of the test, that no blood test was taken, and that, therefore, there was “no probable cause” under the “implied-eonsent” statute.

The “implied-eonsent” hearing is a civil proceeding, and an adverse final judgment is appealable by the State in the same manner as other civil proceedings. (People v. Horberg (1984), 123 Ill. App. 3d 456, 457, 462 N.E.2d 831.) The Illinois Vehicle Code’s “implied-eonsent” law provides, inter alia:

“(a) Any person who drives or is in actual physical control of a motor vehicle upon the public highways of this State shall be deemed to have given consent, subject to the provisions of Section 11 — 501.2, to a chemical test or tests of blood, breath, or urine for the purpose of determining the alcohol, other drug, or combination thereof content of such person’s blood if arrested, as evidenced by the issuance of a Uniform Traffic Ticket, for any offense as defined in Section 11 — 501 or a similar provision of a local ordinance. The test or tests shall be administered at the direction of the arresting officer. The law enforcement agency employing said officer shall designate which of the aforesaid tests shall be administered by their enforcement personnel.
(b) Any person who is dead, unconscious or who is otherwise in a condition rendering such person incapable of refusal shall be deemed not to have withdrawn the consent provided by paragraph (a) of this Section and the test or tests may be administered, subject to the provisions of Section 11—501.2.” (Ill. Rev. Stat. 1983, ch. 951/2, par. 11—501.1(a),(b).)

Pursuant to subsection (c) of section 11 — 501.1, the statute further provides for suspension of a person’s license to operate a motor vehicle who refuses to submit to a test after being requested to submit to a test by a law enforcement officer. A person may request a hearing upon being notified of a suspension for his refusal to take the test, and the scope of the hearing is limited to the issues whether defendant was arrested for driving while under the influence of intoxicating liquors; whether the officer had reasonable grounds to believe defendant was driving while under the influence; and whether defendant refused to submit and complete the test upon request. Ill. Rev. Stat. 1983, ch. 951/2, par. 11—501.1(c); see People v. Malloy (1979), 76 Ill. 2d 513, 517, 395 N.E.2d 381; People v. Horberg (1984), 123 Ill. App. 3d 456, 459, 462 N.E.2d 831.

While the State first contends that the trial court’s finding that defendant was incapable of making a refusal to take the test was against the manifest weight of the evidence, we need not consider that argument, as we conclude the trial court misapplied the applicable law and its decision must be reversed as a matter of law. Nor do we deem meritorious defendant’s contention that the trial judge also found Officer Zittnan never advised defendant of his duty to submit to the test. The court below made no such finding, and the record does not support defendant’s argument.

The trial court correctly concluded that a recent amendment of the “implied-consent” statute was applicable to this case. In pertinent part, this amendment now provides:

“(b) Any person who is dead, unconscious or who is otherwise in a condition rendering such person incapable of refusal, shall be deemed not to have withdrawn the consent provided by paragraph (a) of this Section and the test or tests may be administered, subject to the provisions of Section 11—501.2.” (Ill. Rev. Stat. 1983, ch. 951/2, par. 11—501.1(b).)

Formerly, the statute had provided just the opposite — that any person who was unconscious or who was otherwise in a condition rendering him incapable of refusal, shall be deemed to have withdrawn his consent. (See Ill. Rev. Stat. 1981, ch. 951/2, par. 11—501.1(e).) Accordingly, the law now, as applied to this case, is that defendant’s condition, which the trial court found made him incapable of refusing the test, is not a withdrawal of the consent, statutorily imposed upon drivers of motor vehicles in this State, to a test to determine the alcohol content of his blood. See People v. Solzak (1984), 126 Ill. App. 3d 119.

In spite of this clear legislative mandate, the court below, sua sponte, engrafted into this amendment a requirement that if a person was incapable of refusing the test, that the offer of a breathalyzer test, as requested here, was insufficient and he must be taken to a hospital for a blood test — apparently to be administered involuntarily. This analysis is not only faulty, but is inconsistent with the language of the statute, as amended.

Subsection (a) of section 11—501.1 provides for “implied-consent” to a chemical test or tests of blood, breath, or urine for the purpose of determining the alcohol or drug content of a person’s blood. It further expressly states that the law enforcement agency employing the arresting officer “shall designate which of the aforesaid tests shall be administered by their enforcement personnel.” (Ill. Rev. Stat. 1983, ch. 951/2, par. 11—501.1(a).) The only testimony on this point here is that defendant was asked to take a “breathalyzer” test by Officer Zittnan. Without any evidence to the contrary, it is evident that the breathalyzer test was the type of test authorized by the city of Naperville. Thus, under subsection (a) of section 11—501.1, the arresting officer’s law enforcement agency may choose the type of test to be administered, and there is no requirement, contrary to the trial court’s interpretation, that another type of test be given if a person is incapable of refusing the type of test requested by the arresting officer. Recently, the appellate court in People v. Kiss (1984), 122 Ill. App. 3d 1056, 462 N.E.2d 546, held that a refusal to submit to a breathalyzer test upon request by an officer was a refusal under the “implied-consent” statute and the defendant was not entitled to choose which test should be administered among the types of blood-alcohol tests authorized by statute.

Our State, as most States have done, has adopted an “implied-consent” statute to assist in determining whether motor vehicle drivers suspected of intoxication are in fact under the influence of alcohol. (People v. Rolfingsmeyer (1984), 101 Ill. 2d 137, 139, 461 N.E.2d 410.) This statute should be liberally construed to accomplish its obvious purpose: to protect the citizens of this State upon the highways. (People v. Horberg (1984), 123 Ill. App. 3d 456, 459, 462 N.E.2d 831.) We doubt whether the legislative purpose of the “implied-consent” statute would be properly served by permitting an operator of a motor vehicle to retain his driving privileges because the arresting officer did not take him to a hospital for a blood test when he was too intoxicated to stay awake to make an intelligent decision to accept or refuse the breathalyzer test.

For the foregoing reasons, the judgment of the circuit court of Du Page County is reversed and remanded with directions to enter a finding of probable cause.

Reversed and remanded with directions.

LINDBERG and HOPF, JJ., concur.


source: Caselaw Access Project

author: JUSTICE JIGANTI

license: Public Domain

text:
    KENNETH W. HATTON et al., Plaintiffs-Appellants, v. MONEY LENDERS & ASSOCIATES, LTD., et al., Defendants-Appellees.
    First District (4th Division)
    No. 83—2373
    Opinion filed September 20, 1984.
    Rehearing denied October 26, 1984.
    Kanter & Mattenson, Ltd., of Chicago (David M. Mattenson and Stuart Gordon, of counsel), for appellants.
    Portes, Sharp, Herbst & Kravets, Ltd., of Chicago (David I. Herbst, of counsel), for appellee Associates Finance, Inc.
   JUSTICE JIGANTI

delivered the opinion of the court:

This action challenges the propriety of an order of summary judgment in which the trial court found that the defendant, Associates Finance, Inc. (Associates), was the holder in due course of a promissory note. The note was initially executed by the plaintiffs, Kenneth and Barbara Hatton, and Money Lenders & Associates, Ltd. (Money Lenders), on December 24, 1979. The terms of the note provided that the plaintiffs would repay a total of $78,000 in 120 monthly payments of $650 each to Money Lenders. This sum included $30,000 in principal and annual interest in excess of 24%. The note was secured by a trust deed on a rental apartment owned by the plaintiffs. At the time the note was executed, the plaintiffs also completed two affidavits in which they swore under oath that the money would be used solely for business purposes.

Associates purchased the promissory note from Money Lenders on January 12, 1980. After making 14 monthly payments to Associates, the plaintiffs filed suit against both Money Lenders and Associates, alleging that the note was usurious and that it had been procured by misrepresentation and fraud. A default judgment was entered against Money Lenders. Money Lenders is not a party to this appeal. The trial court granted Associates’ motion for summary judgment, finding that Associates was a holder in due course and took the note free from all of the claims and defenses of the plaintiffs. The plaintiffs now appeal from this order of summary judgment.

The plaintiffs maintain on appeal that there were sufficient facts of record to indicate that Associates had notice of the plaintiffs’ alleged defense of usury at the time Associates purchased the note from Money Lenders. Consequently, the plaintiffs argue that a genuine issue of material fact was before the trial court and that the court therefore improperly entered summary judgment in favor of Associates. The plaintiffs further contend that holder-in-due-course status is a question of fact which in any event would foreclose the trial court from entering an order of summary judgment on that issue.

Before reaching the merits of the parties’ legal arguments, we believe a more detailed recitation of the facts of the case is in order. When Associates purchased the note from Money Lenders, it received copies of the plaintiffs’ 1977 and 1978 tax returns and the two affidavits which had been completed by the plaintiffs. The tax returns disclosed that the plaintiffs were engaged in both a snow removal business and a security alarm partnership at certain times over the course of the two years in question. The plaintiff Kenneth Hatton was also employed full-time as a movie projectionist, an occupation which provided approximately 95% of the plaintiffs’ income in 1977 and 1978. In the first of the two affidavits sworn to by the plaintiffs, there is a provision that the loan would be used for the “snow removal” business and “that the purpose of the loan applied for by me is solely for the purposes of carrying on such business and proceeds will be used for such purpose and for no other.” The second affidavit states that the loan would be used for the “security business” and also contains the above-quoted language.

The plaintiffs and Associates discussed the loan in the course of eight different telephone conversations between January 21, 1980, when Associates verified the loan balance with the plaintiffs following Associates’ purchase of the note, and January 9, 1981. At no time during these telephone conversations did the plaintiffs ever inform Associates of any purported claim or defense in connection with the loan. Associates first learned of the plaintiffs’ alleged defense when it was served with the plaintiffs’ complaint in this action.

In the trial court, the plaintiffs argued that they had borrowed the money to invest in the commodities market and that they had advised Money Lenders that the money would be used for that purpose. At their depositions, the plaintiffs stated that they knew the affidavits were false when they signed them but that they were told by Money Lenders that the signing of the affidavits was a “mere formality.” The plaintiffs thus contended that the note was usurious because it was intended for personal rather than business purposes and consequently did not fall under the business loan exception to the Illinois usury statute. See Ill. Rev. Stat. 1979, ch. 74, par. 4(1)(c).

Both at trial and now on appeal, the plaintiffs have maintained that Associates had notice of the plaintiffs’ alleged usury defense and therefore could not obtain the status of a holder in due course. In support of this contention, the plaintiffs argue that there was no stated interest rate on the note; that there is a discrepancy on the face of the note as to the dollar amount due from the plaintiffs; that the affidavits contradict each other on their face; that the plaintiffs’ tax returns indicate that only 5% of their income was received from the snow removal and security businesses; that the note was secured by real estate owned by the plaintiffs; and that the note was purportedly purchased from Money Lenders by Associates at a large discount. Because of these alleged discrepancies, the plaintiffs now maintain that Associates had notice that the loan would be used for nonbusiness purposes and that therefore, Associates had notice that the plaintiffs possessed a defense to the note under the usury statute. The plaintiffs do not maintain that Associates had actual notice of this alleged defense but that, rather, the note and other documents received by Associates from Money Lenders were irregular on their face, thus providing Associates with constructive notice of the alleged defense.

The Uniform Commercial Code requires that in order for one to be a holder in due course, he must take the instrument for value, in good faith, and without notice that it is overdue, or has been dishonored, or of any defense against or claimed to it on the part of any person. (Ill. Rev. Stat. 1983, ch. 26, par. 3—302.) Section 1—201 (25) of the Code defines “notice” and provides:

“(25) A person has ‘notice’ of a fact when
(a) he has actual knowledge of it; or
(b) he has received a notice or notification of it; or
(c) from all the facts and circumstances known to him at the time in question he has reason, to know that it exists.” (Ill. Rev. Stat. 1983, ch. 26, par. 1-201(25).)

A purchaser of a negotiable instrument has notice of a claim or defense if:

“(a) The instrument is so incomplete, bears such visible evidence of forgery or alteration, or is otherwise so irregular as to call into question its validity, terms or ownership or to create an ambiguity as to the party to pay; or
(b) the purchaser has notice that the obligation of any party is voidable in whole or in part, or that all parties have been discharged.” (Ill. Rev. Stat. 1983, ch. 26, par. 3—304.)

The crucial time in determining whether a holder has notice of a claim or defense is the time of negotiation of the instrument. (Schranz v. I. L. Grossman, Inc. (1980), 90 Ill. App. 3d 507, 412 N.E.2d 1378.) Notice received subsequent to the purchase of a loan does not operate to impair holder-in-due-course status. Crest Finance Co. v. First State Bank (1967), 37 Ill. 2d 243, 226 N.E.2d 369.

In the case at bar, we do not believe that there were any facts of record which demonstrate that Associates had notice of the plaintiffs’ alleged defense. First of all, there is no legal requirement that a negotiable instrument include a stated rate of interest. The fact that the note at issue here did not include such a term was therefore insufficient to put Associates on notice. Second, the record discloses that the plaintiffs’ assertion that the note is mathematically incorrect is- totally without merit. The note provides that 120 monthly installments of $650 must be paid by the plaintiffs, for a total repayment of $78,000. In fact, the plaintiffs stated during oral arguments that this second contention was erroneous.

The plaintiffs further maintain that because the businesses referred to in their affidavits comprised only a small part of their total income, Associates should have been wary that the loan might be used for nonbusiness purposes. We think, however, Associates correctly points out that there is no requirement that a business enterprise must be of a certain size or produce a certain profit before a business loan can be made to it. Fourth, the plaintiffs also argue that the fact that the note was secured by real estate should have put Associates on notice because, “Any individual who owns a piece of real estate can secure a loan at two or three points over the prime rate from most banks.” However, there is absolutely no evidence in the record concerning prevailing interest rates, the credit-worthiness of the plaintiffs, or typical business practices in regard to such loans. This court cannot make the unsupported assumptions urged by the plaintiffs absent any support in the record.

We also find no merit in the plaintiffs’ allegation that Associates should have been put on notice because the two affidavits that were executed by the plaintiffs referred to two separate businesses. The two affidavits were executed at the same time and specifically referred to the businesses that the plaintiffs had listed in their Federal income tax returns. The fact that a preprinted portion of the affidavits stated that the loans “will be used for such purpose and for no other,” we believe, was utterly insufficient to put Associates on notice that the loan would be used for other than business purposes.

Finally, the plaintiffs maintain that Associates should have been put on notice because the note was sold by Money Lenders to Associates at a large discount. In support of this proposition, the plaintiffs cite Winter & Hirsch, Inc. v. Passarelli (1970), 122 Ill. App. 2d 372, 259 N.E.2d 312, wherein the court stated in dicta that a party purchasing negotiable paper at a great discount has a duty to inquire further into the initial transaction to determine if the borrower has a defense to the note. However, in Passarelli, the court found that the holder of the note had intentionally kept itself in ignorance of certain facts which, if known, would have destroyed its holder-in-due-course status. In the case at bar, Associates examined the plaintiffs’ income tax returns and their affidavits of business purpose. As we have stated, nothing in those documents would have put Associates on notice regarding the plaintiffs’ alleged defense. Furthermore, Associates talked with the plaintiffs on the telephone on eight occasions to verify and discuss the loan. The plaintiffs never mentioned their purported defense. Therefore, even if we accept the language in Passarelli as persuasive support for imposing upon Associates a greater duty of inquiry, we think that Associates in the case at bar satisfied such a duty by going beyond the requirements of the Code to pursue a more comprehensive inquiry than that legally required. Accordingly, we do not believe that any of the alleged “irregularities” cited by the plaintiffs were sufficient to put Associates on notice that the loan would be used for other than business purposes.

While the plaintiffs agree that there is little or no legal support for each of their above contentions, they nonetheless argue that all of their alleged “irregularities” taken together were sufficient to put Associates on notice concerning their purported defense. We disagree. That negotiable paper is freely transferable in the business community is perhaps its greatest attribute. To require a party who wishes to purchase negotiable paper to pursue a lengthy inquiry not required by the Commercial Code would unduly burden such transactions and impede the free exchange of negotiable paper. In the case at bar, Associates even went so far as to talk on the telephone with the plaintiffs on at least eight occasions concerning their loan. The plaintiffs never once mentioned their purported defense. Taken as a whole, we cannot find that Associates possessed any information sufficient to put it on notice of the plaintiffs’ alleged defense. Accordingly, we believe the trial court properly found that Associates was a holder in due course and granted summary judgment in favor of Associates.

The plaintiffs next argue on appeal that it was improper for the trial court to grant summary judgment in favor of Associates because holder-in-due-course status is a question of fact to be decided at trial. In support of this contention, the plaintiffs cite Zemel v. Chateau Royale Corp. (1962), 35 Ill. App. 2d 313, 182 N.E.2d 383, and Schranz v. I. L. Grossman, Inc. (1980), 90 Ill. App. 3d 507, 412 N.E.2d 1378, wherein the respective courts noted that whether one is a holder in due course is a question of fact. In both of those cases, there were disputed factual matters which would preclude entry of summary judgment. Section 2—1005 of the Illinois Code of Civil Procedure provides that summary judgment should not be entered unless “the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” (Ill. Rev. Stat. 1983, ch. 110, par, 2—1005(c).) As we have already found, there was no genuine issue as to any material fact in the case at bar. Therefore, the trial court acted properly when it granted summary judgment in favor of Associates.

As a final matter on this issue, the plaintiffs cite certain statements made by the trial judge which they contend indicate that the judge was resolving disputed facts rather than ascertaining whether a material fact existed. However, the decision whether summary judgment is appropriate is a question of law. The appellate court need not defer to the trial court’s reasoning on a finding of law but may rather make an independent determination on such a question. (See Illinois Valley Asphalt, Inc. v. La Salle National Bank (1977), 54 Schranz. App. 3d 317, 369 N.E.2d 525; Rymer v. Kendall College (1978), 64 Ill. App. 3d 355, 380 N.E.2d 1089.) We have found that no genuine issue of material fact was present in this case, and we therefore have found as a matter of law that summary judgment was proper. Consequently, we find no merit in the plaintiffs’, contention.

For the foregoing reasons, the order of summary judgment entered in favor of Associates is affirmed.

Affirmed.

JOHNSON and ROMITI, JJ., concur.


author: PRESIDING JUSTICE SEIDENFELD

text:
      In re MARRIAGE OF PAULA D. KLOSTER, Plaintiff-Appellee, and JOHN M. KLOSTER, Defendant-Appellant.
    Second District
    No. 2—83—0901
    Opinion filed September 24, 1984.

      Alex M. Abate, of Abate & Pirrello, of Rockford, for appellant.
    Roberta L. Holzwarth, of Holmstrom & Green, of Rockford, for appellee.
   PRESIDING JUSTICE SEIDENFELD

delivered the opinion of the court:

John M. Kloster appeals from a judgment in a marriage dissolution proceeding which incorporated a settlement agreement with his wife, Paula D. Kloster. He contends that the agreement is invalid and unconscionable.

I

John’s claim of invalidity is based upon his contention that, although he signed one copy of the agreement, and his wife an identical copy, neither actually agreed to its terms. He first argues that the fact that separate copies were sighed, neither document including both signatures, proves that there was no meeting of the minds. We disagree.

While there appears to be no Illinois decision directly in point in a marital case, the application of normal contract rules belies the husband’s contention. The provisions of a settlement agreement are to be interpreted by normal contract rules. (In re Marriage of Thaden (1983), 119 Ill. App. 3d 538, 540.) A contract may be composed of several writings. A contract signed by the party to be charged may be enforced against him. (Glabman v. Bouhall (1980), 81 Ill. App. 3d 966, 969.) The contract may also be composed of several writings whose terms do not conflict, “and which, when connected, show the parties, subject matter, terms, and consideration.” O’Brien v. Kawazoye (1975), 27 Ill. App. 3d 810, 816.

Here, both parties signed identical copies of the agreement on the same day. Later that day, upon learning that Paula had changed attorneys, John called her. He objected to the change of attorneys, saying “We had this thing all settled.” John testified that he thought Paula was dissatisfied with the agreement. Paula, however, testified she was dissatisfied with her attorney, not with the agreement, although she said she would like some unspecified matters clarified. This testimony was insufficient to show that Paula had rejected the agreement.

John also argues that there was no mutual assent because the parties disagreed about the interpretation and effect of the agreement. Paula thought John’s monthly obligation would amount to approximately 40% of his monthly take-home pay, while John stated the obligation amounted about 60%. Subjective agreement to the terms of a contract is not required; conduct indicating agreement with its terms is sufficient. Steinberg v. Chicago Medical School (1977), 69 Ill. 2d 320, 331; Joseph v. Lake Michigan Mortgage Co. (1982), 106 Ill. App. 3d 988, 992.

John said he did not understand the agreement, but signed it after he and his attorney “thumbed through it,” because his attorney “was anxious” and wanted to “get this thing over quickly.” An agreement, even if signed under duress alleged by one party, is binding if later conduct affirms it. (Board of Education v. Ballweber (1983), 96 Ill. 2d 520, 526-27.) One who has had an opportunity to read a contract before signing, but signs before reading, cannot later plead lack of understanding or that the contract misled him. (Hintz v. Lazarus (1978), 58 Ill. App. 3d 64, 66.) Furthermore, John’s statement affirming the settlement, and his agreement at trial that Paula’s testimony as to the terms of the agreement was accurate, show he understood and agreed to the settlement.

Illinois courts look with favor upon amicably agreed property settlements and will not set them aside absent proof of fraud, duress, or variance with public policy. (Stutler v. Stutler (1978), 61 Ill. App. 3d 201, 204; In re Marriage of Block (1982), 110 Ill. App. 3d 864, 875.) Here there are no allegations of fraud or duress sufficient to invalidate a contract. John’s implied allegation that his attorney hurried him into signing does not amount to legal duress.

John’s reliance on In re Marriage of Perry (1981), 96 Ill. App. 3d 370, 373, is misplaced. In Perry, the husband, his attorney, and the wife’s attorney negotiated a settlement agreement, out of the wife’s hearing, 15 minutes before trial. At trial the wife objected that the income figures were inaccurate and presented evidence to that effect. On appeal, the Perry court required a rehearing, finding duress, lack of mutual assent, and disparities in the evidence concerning marital property. Here, the parties met to discuss the terms in January and signed the agreement in April. Both were represented by attorneys. The property, income, and expenditures listed in the agreement were not disputed. Where the contents of an agreement are testified to and the objecting party fails to object or to give evidence to the contrary, the agreement is established. (Guyton v. Guyton (1959), 17 Ill. 2d 439, 444.) A property settlement should not be disregarded simply because one party has second thoughts. Horwich v. Horwich (1979), 68 Ill. App. 3d 518, 522.

“Whether a contract exists, its terms and the intent of the parties are questions of fact to be determined by the trier of fact.” (Peoria Harbor Marina v. McGlasson (1982), 105 Ill. App. 3d 723, 727.) The appellate court will not reverse the judgment of the trial court unless contrary to the manifest weight of the evidence. 105 Ill. App. 3d 723, 727.

We conclude that the parties entered a valid and enforceable agreement.

II

John argues, finally, that even if the parties entered a valid agreement, it is unenforceable because unconscionable.

In summary, the settlement agreement, as incorporated unchanged into the divorce decree, provided as follows:

Paula received custody of the four children, child support of $130 per week, maintenance of $10 per week, the 1977 Toyota, personal property and household furnishings, her attorney fees, and a $5,000 life insurance policy. She received possession of the marital home until she remarries or the youngest child reaches 18, and, when the home is sold, the first $15,000 of the principal and half the additional proceeds after certain deductions are taken.

John received specified visitation rights, the right to claim child support as a tax deduction, the 1980 Buick subject to an unspecified indebtedness, shop supplies and personal property in his possession, his profit sharing plan (present value estimated to be $20,000), half the proceeds of the marital home after the first $15,000 and other deductions, and a $10,000 life insurance policy.

Paula is obligated to grant specified visitation, to pay the first $50 per child, up to an aggregate of $200 per year, for medical expenses not covered by insurance, and also to pay “repair or maintenance expenses to the marital home not exceeding $50.”

John is obligated to pay, in addition to child support and maintenance, real estate taxes and insurance on the house (estimated to amount to $83 per month), the children’s medical expenses exceeding $200 and not covered by insurance, the mortgage of $269.82 per month, and the cost of repairs for the maintenance of the home exceeding $50. He is also obligated to keep current medical insurance for the children and a life insurance policy naming the children as beneficiaries.

At the time of the order, John’s income was approximately $31,000 per year, his biweekly take-home pay was approximately $700-$760, and his monthly take-home pay was estimated at $1,646. His undisputed calculations indicate he must pay $949 per month for support, mortgage, taxes and insurance on the marital home, amounting to approximately 57% of his take-home pay. His obligation for the children’s medical expenses and for maintenance on the home are open-ended.

Section 502(b) of the Illinois Marriage and Dissolution of Marriage Act provides:

“The terms of the agreement, except those providing for the support, custody and visitation of children, are binding upon the court unless it finds, after considering the economic circumstances of the parties and any other relevant evidence produced by the parties, on their own motion or on request of the court, that the separation agreement is unconscionable.” Ill. Rev. Stat. 1983, ch. 40, par. 502(b).

Under section 502(b) the court may not reject a settlement agreement for unfairness, but only for unconscionability. (In re Marriage of Miller (1981), 98 Ill. App. 3d 1084, 1088.) In Miller, unconscionability was equated with one-sidedness or oppressiveness. (98 Ill. App. 3d 1084, 1087.) John relies upon Crawford v. Crawford (1976), 39 Ill. App. 3d 457, 461-64, but it is distinguished by the fact that it was decided before the effective date of the Illinois Marriage and Dissolution of Marriage Act. Ill. Rev. Stat. 1983, ch. 40, par. 101 et seq.

In In re Marriage of Foster (1983), 115 Ill. App. 3d 969, 972-73, the court defined an unconscionable bargain by commercial law principies as that bargain “which no man in his senses, not under delusion, would make, on the one hand, and which no fair and honest man would accept, on the other,” and, as that bargain which is “totally one-sided or oppressive.” (115 Ill. App. 3d 969, 972-73, citing Ill. Ann. Stat., ch. 40, par. 502, Historical and Practice Notes, at 400-01 (Smith-Hurd 1980).) The Foster court proposed a two-part inquiry into unconscionability, in which the court is to examine the conditions under which the agreement was made and the resulting economic circumstances. (115 Ill. App. 3d 969, 972.) Under this test, or under the generally accepted understanding, the agreement before us may not be characterized as “unconscionable.”

Courts have found unconscionable conditions requiring reversal of settlement agreements where the agreement was hastily contrived and where the plaintiff immediately objected to the agreement. (See In re Marriage of Perry (1981), 96 Ill. App. 3d 370, 373; In re Marriage of Lorenzi (1980), 84 Ill. App. 3d 427 (agreement held procured by fraud where wife signed a “consent and appearance,” was not represented by an attorney, and did not appear in court).) In contrast, here, both Paula and John were represented by separate counsel. The agreement was first discussed in January and was reduced to writing in April. Moreover, there is no allegation of fraud.

As to the resulting economic conditions of the parties, it does not appear that the agreement is so one-sided as to be unconscionable as a matter of law.

In Foster, an agreement which provided that petitioner receive $100,000 more property than respondent was found not to be unconscionable. (115 Ill. App. 3d 969, 973.) In In re Marriage of Held (1979), 73 Ill. App. 3d 561, 566, an agreement providing petitioner $500 per month child support for three children and the marital home subject to a $14,000 mortgage, where respondent earned $18,000 per year, was held not to be unconscionable. On the other hand, a marital agreement entered under conditions indicating respondent “did not make a meaningful choice” was set aside as unconscionable where petitioner received custody of the parties’ two children, the 1975 Ford, and the marital home, and respondent received $55 per week for 16 weeks. (In re Marriage of Carlson (1981), 101 Ill. App. 3d 924, 931.) A decision setting aside a marital settlement as “manifestly unfair and inequitable” was affirmed where the agreement gave respondent $600 per month for three months, custody of the children, and child support of $167 per child per month, while petitioner received all the interest in the family farm. (In re Marriage of Hawkins (1982), 106 Ill. App. 3d 68, 70-71.) In Hawkins, respondent was not represented by counsel at the hearing, and the court found that petitioner fraudulently induced respondent to sign the agreement and fraudulently misrepresented the value of the farm.

In the present case, both parties were represented by counsel at all times. There is no unfairness surrounding the execution of the agreement. It appears that the parties divided their property relatively evenly, and that John’s $31,000 per year salary has been apportioned fairly in order to cover his needs and the needs of the four minor children. While the division may not be perfect, and while the agreement may favor one party more than the other, the decision that the agreement was not unconscionable is supported by the manifest weight of the evidence. In re Marriage of Miller (1981), 98 Ill. App. 3d 1084, 1089.

The judgment of the circuit court of Winnebago County is affirmed.

Affirmed.

NASH and HOPF, JJ., concur.


text:
    GORD INDUSTRIAL PLASTICS, INC., Plaintiff-Appellee, v. AUBREY MANUFACTURING, INC., Defendant-Appellant.
    Second District
    No. 2—83—0763
    Opinion filed September 24, 1984.

      Barnard M. Kaplan, of Ruben, Kaplan & Rosen, of Skokie, for appellant.
    Charles L. Fierz, P.C., of Sycamore, for appellee.
   PRESIDING JUSTICE SEIDENFELD

delivered the opinion of the court:

In a prior appeal (Gord Industrial Plastics, Inc. v. Aubrey Manufacturing, Inc. (1982), 103 Ill. App. 3d 380), we concluded that “a mold-removal fee, if shown to be understood in the parties’ course of dealings or a usage of the plastics molding industry, would be a term supplementing or qualifying the terms fixing the prices of the molds, and thus part of the contract.” (103 Ill. App. 3d 380, 386.) We remanded the cause to the trial court to determine whether the contract formed by the parties “included, by means of course of dealings or usage of trade, a mold-removal fee and, if the court does so find such a provision incorporated, the size of the fee *** [and to make] findings on defendant’s counterclaim.” 103 Ill. App. 3d 380, 387.

Following an evidentiary hearing, the trial court found that: Both plaintiff and defendant were operating in the plastics industry and to some extent both were engaged in molding plastic parts; Mr. Johansen, an officer of the defendant, was an experienced molder and understood the problems of molding plastic parts; “[t]he Standards and Practices of Plastics Custom Holders promulgated by the Society of the Plastics Industry Inc., *** provide, that if molds are removed from the custom molder’s possession, it is the customary practice to require a mold removal fee”; there was additional testimony that a mold-removal fee was standard practice; the “order form was repeatedly furnished defendant and contained references to a mold removal fee”; defendant’s purchasing agent first objected to the payment of the fee, but on checking with other firms in the industry found it was a common practice, paid the fee and thereafter improperly stopped payment on the check. The court also found, based on expert testimony, that mold-removal clauses were common in the plastic molding industry ranging up to 50% of the cost of the mold and thus, that the 30% charge is reasonable. The court ordered judgment to be entered in favor of Gord in the amount of $3,153.90.

I

The essential question, as to the issue of the mold-removal fee, is whether the evidence supports the conclusion that a mold-removal fee is customary in the trade, so that such a term became incorporated into the parties’ contract and, if so, whether the fee charged was reasonable.

Preliminarily, Aubrey’s argument that the contract consists of the terms on the reverse of its purchase order only ignores the first decision of this court. There we ruled that the parties have no written contract, but one created by their conduct, supplemented by customs and usages of the trade, if any, and by terms on which the writings agree. (Gord Industrial Plastics, Inc. v. Aubrey Manufacturing, Inc. (1982), 103 Ill. App. 3d 380, 386.) A question of law decided on a previous appeal is binding on both the trial court and the appellate court. Zokoych v. Spalding (1980), 84 Ill. App. 3d 661, 667.

Further, Aubrey’s argument that there is no evidence that it was aware of the custom misses the point that parties may be charged with knowledge of any usage or custom in the trade “of which they are or should be aware.” (Emphasis added.) Ill. Rev. Stat. 1983, ch. 26, par. 1—205(3); see also Clark v. General Foods Corp. (1980), 81 Ill. App. 3d 74, 78-79.

We conclude that there was sufficient proof that the mold-removal fee was shown to be of “such regularity of observance in a *** trade as to justify an expectation that it will be observed with respect to the transaction in question ***.” (Ill. Rev. Stat. 1983, ch. 26, par. 1—205(2).) The term to be established as part of a contract by custom and usage of the trade must not be inconsistent with the other contract terms, must be well-settled and uniformly acted upon, and must be established by several witnesses. “It must have existed for a sufficient length of time to become generally known and to warrant a presumption that all contracts in the line of business to which the custom applies are made with reference to it.” Kelly v. Carroll (1921), 223 Ill. App. 309, 315; see also Chicago Bridge & Iron Co. v. Reliance Insurance Co. (1970), 46 Ill. 2d 522, 531-32.

In the present case, Gord’s comptroller and the plant manager of another mold maker both testified that the mold-removal fee is customary in the industry. Aubrey’s purchasing agent also conceded that he discovered, upon inquiry, that mold-recovery fees are common in the industry.

Gord introduced a booklet, published by the Society of the Plastics Industry, Inc., entitled “Standards and Practices of Plastics Holders and Plastics Molded Parts Buyers Guide,” copyright 1965, revised 1978. The following statement from the booklet was entered into evidence.

“Because molds are generally quoted at cost with no charge for engineering, a molder has considerable investment in a customer’s mold by the time it is in production. For this reason, it has been customary for the custom molder to retain tools, molds and equipment which he has built or contracted to build. If the molds are removed from his possession, it has been normal for the molder to receive a removal fee to recover his engineering costs.”

Both Gord’s president and the other molder’s plant manager testified that the Society is respected as a standard in the industry to which people can look for guidance and advice, and its standards are generally used in the industry. Since the witnesses identified the Society as a reliable and relied upon standard in the industry, it was within the court’s discretion to admit the booklet. In any event it would have been harmless error because cumulative, since the two witnesses also testified orally to the same standard.

Defendant argues that it is not a mold maker and is thus not “in the business” of mold making. However, a party need not deal primarily in a trade in order to be charged with knowledge of its customs. For example, the plaintiff in Clark operated an employment agency. The defendant there used employment agencies to recruit employment prospects. The Clark court charged the defendant with knowledge of the employment agency field’s customs and usages, including that custom in which an agency charged a fee if an employer hired a prospect whose name it had received from the agency within the past year, even though it had never encountered that provision before. Clark v. General Foods Corp. (1980), 81 Ill. App. 3d 74, 78-79; accord, Snedden v. General Radiator Division of Chromalloy American Corp. (1982), 111 Ill. App. 3d 128, 132.

n

We have reviewed the record and conclude that Aubrey’s counterclaim, based on its claim for damages allegedly for replacement of faulty products, labor costs for inspection, shutting down production lines, cost of handling shipments in excess of those ordered, cost of conversion to “center gating” and labor costs for replacement of defective parts, was properly denied. The trial court found on conflicting evidence that the molding technique, “sidegating,” specified by Aubrey, was the cause of the quality problems. It also noted that there had been adjustments made from time to time and that there were no unresolved claims prior to the suit. The trial court’s order finding against Aubrey on the counterclaim is not against the manifest weight of the evidence.

The judgment of the circuit court of De Kalb County is affirmed.

Affirmed.

HOPF and NASH, JJ., concur.


author: JUSTICE WHITE

text:
    CHERYL L. PIEHL, Adm’r of the Estate of Mabel Finn, Deceased, Petitioner-Appellant, v. THE NORWEGIAN OLD PEOPLES’ HOME SOCIETY OF CHICAGO, Respondent-Appellee.
    First District (3rd Division)
    No. 83—2309
    Opinion filed September 28, 1984.

      Berks, Berks & Marcus, Ltd., of Des Plaines (Stuart Berks, of counsel), for appellant.
    John H. Hanson, of Park Ridge, for appellee.
   JUSTICE WHITE

delivered the opinion of the court:

Plaintiff, Cheryl L. Piehl, administrator of the estate of Mabel Finn, filed a petition for citation to discover and recover assets pursuant to section 16 — 1 of the Probate Act of 1975 (Ill. Rev. Stat. 1983, ch. 1101/2, par. 16—1) praying that defendant, Norwegian Old Peoples’ Home Society (the Home) be directed to account for and return all assets transferred by the deceased to the Home in connection with her residency in facilities owned by the Home. The petition for citation alleged that: (1) on October 26, 1981, Mabel Finn signed a document entitled, “Continuing Care Contract” which purported to provide for her lifetime care by Norwood Park Home, a nursing facility owned and operated by the Norwegian Old Peoples’ Home Society, in exchange for the transfer of all her assets to the Home; (2) approximately 5V2 months later, on April 8, 1982, Mrs. Finn died while a resident of the Norwood Park home; and (3) the Home paid $3,000 for Mrs. Finn’s funeral expenses but refused to make any further accounting as to assets, funds or property transferred by Mrs. Finn to the Home.

On June 9, 1983, the circuit court of Cook County, Probate Division, issued the citation to discover assets against the Home. Thereafter, the Home filed a motion to dismiss the citation. Said motion was granted and plaintiff’s petition was dismissed.

On appeal, plaintiff contends that the “continuing care contract” signed by Mrs. Finn was void for lack of mutuality. Plaintiff argues that the Home’s promise to care for Mrs. Finn was illusory, since the Home had the option to terminate the contract if Mrs. Finn was ineligible for old age assistance benefits. Plaintiff concludes that the Home was not bound by the contract and therefore neither was Mrs. Finn. A contract does not lack mutuality merely because its obligations appear unequal or because every obligation or right is not met by an equivalent counterobligation or right in the other party. (Cox v. Grant (1978), 57 Ill. App. 3d 922, 926, 373 N.E.2d 820.) The mutuality requirement is satisfied if each party has made a promise to the other and is therefore an obligor and under a duty to the other contracting party. (57 Ill. App. 3d 922, 925.) In the instant case, the decedent and the Home each assumed obligations which were detrimental to them and could be enforced by the other party. The decedent transferred to the Home her present assets and any and all assets which she might subsequently acquire together with her social security income, her pension benefits, and all other monies or benefits for which she might be eligible. In return the Home agreed to provide room, board and nursing and medical services until the decedent left the facility voluntarily, involuntarily, or by reason of death. We are aware that section 2.3 of the “continuing care contract” provided that the obligation of the facility to continue care may be terminated at the option of the facility when all of the assets transferred have been used for resident’s care if the resident fails to qualify for old age assistance benefits. This provision, however, did not give the Home an absolute right to terminate or cancel the contract at any time. The Home was bound to care for Mrs. Finn until the assets transferred were exhausted or, if Mrs. Finn qualified for old age assistance benefits, until her death. Moreover, it is well settled that want of mutuality is no defense where a contract is executed or where a party who was not bound to perform does perform. (Heller & Co. v. Convalescent Home (1977), 49 Ill. App. 3d 213, 220, 365 N.E.2d 1285; Sisters of the Third Order of St. Francis v. Estate of Guillaume (1921), 222 Ill. App. 543.) In the instant case, the Home provided care for Mrs. Finn until her death. Accordingly, we conclude that the “continuing care contract” had been performed by the Home and that the claim of lack of mutuality was not available.

Plaintiff maintains that the “continuing care contract” was oppressive and unconscionable in that, although it purports to provide care for Mrs. Finn’s lifetime, the contract allowed the Home to terminate such care upon exhaustion of the transferred assets or for medical or safety reasons. An unconscionable contract has been defined as a one-sided contract or one which no man in his senses, not under delusion, would make, on the one hand, and which no fair and honest man would accept on the other. (First Financial Insurance Co. v. Purolator Security, Inc. (1979), 69 Ill. App. 3d 413, 419, 388 N.E.2d 17; Personal Finance Co. v. Meredith (1976), 39 Ill. App. 3d 695, 702-03, 350 N.E.2d 781.) The term unconscionability encompasses an absence of a meaningful choice on the part of one of the parties together with contract terms which are unreasonably favorable to the other party. (First Financial Insurance Co. v. Purolator Security, Inc. (1979), 69 Ill. App. 3d 413, 419.) Where a contract is found to be unconscionable, courts will refuse to give full effect to it as written. (Neal v. Lacob (1975), 31 Ill. App. 3d 137, 142, 334 N.E.2d 435; Personal Finance Co. v. Meredith (1976), 39 Ill. App. 3d 695, 702.) We are of the opinion that the terms of the “continuing care contract” were not unreasonably favorable to the Home. The contract provided that the Home would care for decedent until she left the facility voluntarily, involuntarily, or by reason of death. In the event Mrs. Finn left the facility voluntarily she was entitled to recover the balance then remaining in the account paid or deposited with the facility on her behalf less charges properly allocated to her stay in the facility. Mrs. Finn was also entitled to a refund should the Home request that she leave the facility for medical reasons, safety reasons or for other reasons permitted by law. Lastly, the Home reserved the right to terminate the contract should Mrs. Finn not be eligible for old age assistance benefits. However, the Home incorporated certain safeguards in the contract to insure Mrs. Finn’s eligibility for old age assistance benefits. Most importantly, the Home’s option could only be exercised once all assets transferred to the Home had been used in the care of Mrs. Finn. Accordingly, we conclude that the “continuing care contract” signed by Mrs. Finn was not unconscionable.

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

Affirmed.

R1ZZI, P.J., and McNAMARA, J., concur.

       The resident could terminate his or her stay at the facility at any time, in which case he or she would be entitled to a refund.

       The Home reserved the right to discharge residents for medical or safety reasons. The resident was entitled to a refund if he or she left voluntarily or at the request of the Home.


author: JUSTICE PERLIN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ENRIQUE BORGES, Defendant-Appellant.
    First District (2nd Division)
    No. 83—174
    Opinion filed September 18, 1984.

      Steven Clark and Phillip J. Zisook, both of State Appellate Defender’s Office, of Chicago, for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat, Jeanette Sublett, and William G. Lacy, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE PERLIN

delivered the opinion of the court:

Enrique Borges (defendant) was indicted for murder (Ill. Rev. Stat. 1981, ch. 38, par. 9—1(a)(1)) and conspiracy to commit murder (Ill. Rev. Stat. 1981, ch. 38, par. 8—2). He and a codefendant, Danilo Ruiz, were tried simultaneously before separate juries. Ruiz was acquitted. Defendant was convicted of murder and acquitted on the conspiracy charge, following which he was sentenced to 30 years for murder.

At defendant’s trial, Chicago police officer John Klusman testified that at about 1:55 a.m. on January 30, 1982, he arrived at the intersection of Hirsch and Maplewood streets in Chicago and found a young man lying in a pool of blood. While at the scene, Klusman spoke with Sergio Rodrigues and Larry Taylor, with whom the victim had been walking.

Armando Ochoa testified: he was at the time of defendant’s trial living in the protective custody division of the Cook County jail. He was testifying in exchange for the State’s dropping charges against him in the instant case and agreeing to recommend a three-year sentence on the remaining conspiracy-to-commit-murder charge still pending against Ochoa. Prior to the shooting, Ochoa, a member of the Puerto Rican Stones street gang, was attending a party at a house on Sheffield Avenue. Also in attendance were members of the Latin Kings, Spanish Lords and Insane Unknown street gangs. Ochoa testified that these four gangs were “allies” in a “war” with the rival gangs Latin Eagles, Latin Disciples, Imperial Gangsters and Spanish Cobras.

Ochoa testified that Borges was at the party in the company of codefendant Ruiz. Ochoa heard Ruiz tell another member of the Insane Unknowns that Ruiz wanted to kill some members of the rival Disciples gang, and that he (Ruiz) had a shotgun. At about 12:30 a.m., Ochoa left the party with Messrs. Ruiz, Borges, Rivera, Chapman and Perez to buy some marijuana. Ochoa drove his blue Omega, with Borges sitting in the front passenger seat and Perez in the rear. The other persons were in Chapman’s black Trans-Am auto. Ochoa followed behind Chapman’s car.

While driving, Ochoa saw three men at the intersection of Hirsch and Maplewood. After Chapman’s car crossed, the three men walked through the intersection. Perez then rolled the rear window down, and Ochoa heard gunshots fired from the rear of his car. He then saw Borges draw a “long revolver” and fire three shots toward the three pedestrians. Ochoa did not see any of the men fall.

Ochoa then drove back to the party. During the drive back, Borges stated that if they ran into any police, he wanted to “shoot it out.” Borges told Ochoa that his gun was a Colt .45; Perez said his was a .9 millimeter. Borges stated that he was going to hide his gun under the dashboard of Ochoa’s car. Back at the party Ochoa heard Ruiz asking people if they wanted to buy a Colt gun.

Ochoa testified that he was arrested by the police for murder in connection with this incident on February 14, 1982. Since February 16, he had been living in the protective custody quarters of the Cook County jail. Although Rivera was in the same quarters, the two of them did not discuss their court testimony.

Jose Rivera testified for the State: he was a member of the Puerto Rican Stones gang. At the time of the trial, charges for conspiracy to commit murder, murder and concealing a homicide, arising from this incident, were pending against him. At the time of trial he was living in the protective custody unit of the Cook County jail. Although he and Ochoa were incarcerated in the same unit, they did not discuss this case because Rivera was in the lockup.

At the January 29 party, Rivera heard Ruiz tell Chapman that Ruiz wanted to “burn” some members of the Latin Disciples gang. Chapman told Ruiz, “Later.” Rivera left the party with the others to buy marijuana. Borges, Perez and Ochoa rode in Ochoa’s car; Ruiz, Rivera and Chapman were in Chapman’s car. While they were driving, Ruiz began “playing” with a shotgun in the back seat of Chapman’s car.

At the intersection of Hirsch and Maplewood, Rivera saw three men make hand gestures indicating they were members of the rival Latin Disciples gang. Chapman drove the car slowly through the intersection. The three pedestrians crossed the intersection in front of Ochoa’s following car. Rivera saw “fire” come from the passenger side of Ochoa’s car, and one of the men in the intersection fell. Chapman drove his car around the block and approached the three men. Chapman parked the car near the fallen man, and Ruiz and Chapman then fired at the man from four or five feet away. Ruiz shot twice and Chapman shot six times. They then drove back to the party. At the party, Ruiz advised people that he had a Colt .45 for sale.

Rivera testified that when he found he was wanted by the police in connection with the shooting, he turned himself in. He was interviewed by the police for three days. He stated that he reached an agreement with the State that in return for his testimony .before the grand jury and at trial, the State would drop the murder charge against him and recommend a three-year sentence for the charge of concealing a homicide. Rivera testified that in 1981 he had been sentenced to one year probation for misdemeanor theft.

Dr. Rae An, a forensic pathologist for the county, testified that she had performed the autopsy on the victim, James Harrison, and that the cause of death was one of four bullet wounds in the body.

Sergio Rodrigues testified: On the night of the shooting, he and two friends were walking near the intersection of Maplewood and Hirsch streets when he noticed a blue car parked under a streetlight. The window on the front passenger’s side of the car opened. Borges stuck out his head, and was holding a pistol. Rodrigues told his friends to run. Gunfire came from the car. Rodrigues saw Borges fire two shots at the men. After a few more shots, the car drove off. Rodrigues stated that he then saw a second car, a black and yellow Cámaro, drive by. From that car Ruiz fired three shots. Rodrigues testified that he heard the driver of the second car say, “We got them suckers.” Rodrigues said that the black and yellow car had not been traveling in front of the blue car.

Rodrigues further testified that two weeks after the trial, he had identified Borges and Ruiz at a police lineup as the persons firing the shots. At trial Rodrigues identified pictures of the lineup. He was a member of the Latin Disciples, and he had pleaded guilty to armed robbery in 1973 and to delivery of a controlled substance in 1975. At the time of trial, Rodrigues had pending against him an unlawful-use-of-weapons charge, and he was on probation for battery. He denied entering into any agreement with the State in return for his testimony. On the night of the shooting, he had drunk approximately IV2 quarts of beer.

Chicago police detective Nick Gaudio testified that he was present on February 14, when the lineup which included defendants Ruiz and Borges was held. While there was a height disparity between the lineup subjects, it was not obvious, because the subjects were seated when viewed by witnesses.

On Borges’ behalf, defense counsel presented three of defendant’s family members and a family friend who testified that on the night of January 30, 1982, defendant and the others drove to Waukegan to watch a televised boxing match and thereafter defendant returned home and went to bed.

In rebuttal, the State offered the testimony of Officer Klusman, who stated that the murder had occurred in the early morning hours of January 30 and not on the night of January 30.

In closing arguments the prosecutor told the jury he did not know why defendant introduced testimony of his whereabouts on the night following the murder. In his closing argument, defense counsel told the jury that he was not presenting an alibi defense, and admitted defendant was not visiting in Waukegan on the night of the shooting. “It is an error I made. I ask you not to hold it against Ricky Borges.” In rebuttal, the State argued that the evidence of defendant’s whereabouts on the night before the murder “was no mistake” and that the defense was “trying to fool you.” The jury returned verdicts of guilty on both murder and conspiracy to commit murder. The trial judge vacated the conspiracy verdict and sentenced defendant to 30 years for murder.

On appeal, defendant contends that he received ineffective assistance of counsel when his attorney presented four alibi witnesses for the wrong night, and defendant is therefore entitled to a new trial. The State responds that under the totality of the circumstances defendant received adequate assistance of counsel, and his conviction should be affirmed.

In Strickland v. Washington (1984), 466 U.S._, _, 80 L. Ed. 2d 674, 693, 104 S. Ct. 2052, 2064, the United States Supreme Court held:

“A convicted defendant’s claim that counsel’s assistance was so defective as to require reversal of a conviction or death sentence has two components. First, the defendant must show that counsel’s performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the 'counsel’ guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction or death sentence resulted from a breakdown in the adversary process that renders the result unreliable.”

Our Illinois supreme court has enunciated a similar standard. (People v. Royse (1983), 99 Ill. 2d 163, 457 N.E.2d 1217.) We recognize that in analyzing a defense counsel’s trial performance, we must examine the record as a whole, rather than focusing on isolated incidents (People v. Martin (1983), 112 Ill. App. 3d 486, 445 N.E.2d 795), and that appellate review will not extend to those areas of representation which involve the exercise of judgment, trial tactics and strategy (People v. Gallardo (1983), 112 Ill. App. 3d 764, 445 N.E.2d 1213). We are aware that the United States Supreme Court has advised that “[jjudicial scrutiny of counsel’s performance must be highly deferential.” (Strickland v. Washington (1984), 466 U.S. _, _, 80 L. Ed. 2d 674, 694, 104 S. Ct. 2052, 2065.) It is our opinion, however, that none of these admonishments can deflect a conclusion that defense counsel’s introduction of testimony from four witnesses to the effect that defendant was in another city on the night before the crime was, in fact, “actual incompetence” and a “deficient” performance.

Such a determination does not end our inquiry. To obtain a new trial after a finding that defendant’s counsel was actually incompetent, “the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction *** resulted from a breakdown in the adversary process that renders the result unreliable.” Strickland v. Washington (1984), 466 U.S. _, _, 80 L. Ed. 2d 674, 693, 104 S. Ct. 2052, 2064.

The Strickland court defined the “prejudice” which a defendant must show in order to prevail on his claim as “a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” (466 U.S. _,_, 80 L. Ed. 2d 674, 698, 104 S. Ct. 2052, 2068.) The Illinois Supreme Court has stated that the standard for determining whether counsel’s incompetence requires a new trial is whether such errors “produced substantial prejudice to the defendant without which the result of the trial would probably have been different.” (People v. Greer (1980), 79 Ill. 2d 103, 120-21, 402 N.E.2d 203.) The prejudice allegedly suffered by a defendant cannot be based on speculation or mere conjecture. People v. Hills (1980), 78 Ill. 2d 500, 401 N.E.2d 523.

In our opinion, it cannot be said that in the absence of the alibi testimony for the wrong date, “the result” of the defendant’s trial “would have been” or “probably” would be “different.” As was recognized by defendant’s counsel, this case centered upon the identification of defendant by the witnesses. We note that counsel did an able job in cross-examining the eyewitnesses who identified the defendant. Counsel also presented cogent, articulate arguments to the jury as to why the identification evidence against defendant Borges should not be relied upon.

In urging that defense counsel’s incompetence prejudiced him, defendant relies heavily on United States ex rel. Connor v. Lane (N.D. Ill. March 18, 1983), No. 81 C 2527. In that case defendant’s attorney presented a witness who testified to an alibi for the day after the crime. When the witness testified to the wrong date, defense counsel attempted, unsuccessfully, to have the witness, while on the stand, amend his testimony to establish an alibi for the correct date. The Federal court found that the presentation of such testimony was incompetence and, further, that defendant was prejudiced thereby, requiring a new trial. The court’s holding was based on its finding that the State presented the testimony of only one of the two victims of the crime and that that person was a 16-year-old who “gave a very general description of her assailants, after the event.” Also, she identified a picture of the defendant by saying it looked “something like” the perpetrator. The court found that the “state’s case rested almost entirely on the testimony of one witness whose identification at trial was at least suspect” and that “the only other evidence apparently connecting [the defendant] with the crime was the fact that his residence was one block away from the scene of the crime.” The court concluded that in light of these circumstances and the fact that defense counsel in his opening statement advised the jury he would present an alibi defense, defense counsel’s error “had a devastating effect” on defendant’s case in that it “utterly destroyed the credibility of petitioner’s defense” and undercut counsel’s “entire position that there was reasonable doubt as to the identification of the [defendant] by the victim.”

We find substantially different circumstances attendant in the instant case. Here, the State’s witnesses to the crime presented very strong identification testimony against defendant. Defense counsel recognized that identification was the key issue and ably attacked the testimony and credibility of the identification witnesses. Defense counsel here did not advise the jury in his opening statement that defendant would present an alibi defense, and, when it became clear that the alibi witnesses testified as to the wrong date, counsel told the jury that the mistake in dates was “his error” and asked that they not hold it against defendant. In light of the strong evidence against defendant, we cannot conclude that but for counsel’s alibi error the outcome of defendant’s trial would probably have been different. We therefore reject defendant’s argument that he is entitled to a new trial based on the incompetence of his counsel.

Defendant also contends that his trial counsel was incompetent because he failed to move to suppress Rodrigues’ pretrial lineup identification of Borges, and because he failed to impeach Rivera with Rivera’s prior conviction for unlawful use of weapons. We do not find any incompetence based on these allegations.

As to the failure to move to suppress Rodrigues’ pretrial identification of defendant, it has been repeatedly held that the decision not to move to suppress evidence is one involving trial strategy and therefore outside the scope of review for purposes of establishing incompetency of counsel. (People v. Reppa (1982), 104 Ill. App. 3d 1123, 433 N.E.2d 1091; People v. Son (1982), 111 Ill. App. 3d 273, 443 N.E.2d 1115.) Further, our review of the record indicates no basis to successfully move to suppress Rodrigues’ identification.

With regard to the failure of defense counsel to impeach Rivera with the stipulation that he had previously pleaded guilty to a misdemeanor UUW conviction, the failure to use impeaching evidence has been held not to establish incompetence of counsel. (People v. Martin (1983), 112 Ill. App. 3d 486, 445 N.E.2d 795.) And while it is true that defense counsel neglected to impeach Rivera with this one conviction, he did in fact impeach Rivera with another prior conviction, as well as attacking his credibility based on Rivera’s receiving leniency in return for his trial testimony. We fiñd no incompetence based on these two allegations.

Defendant next argues that he was not proved guilty beyond a reasonable doubt because “the state’s evidence consisted of substantially uncorroborated accomplice testimony motivated by promises of leniency and given by gang members with prior criminal backgrounds.” He points out that Rivera was initially charged with the same crime, was testifying in return for leniency and, allegedly, lied on the witness stand. Ochoa was also charged with the murder and testified in return for leniency. Rodrigues was, at the time of trial, on probation, had pending criminal charges against him in an unrelated matter and had a previous criminal record. Rodrigues also testified that he was a member of a gang which, according to another witness, had been “at war” with Borges’ gang at the time of the shooting.

Defendant also points to inconsistencies in the trial testimony which he asserts further indicate that he was not proved guilty beyond a reasonable doubt. He cites the fact that while Ochoa testified that Chapman’s car was in front of Ochoa’s car and both cars were moving at the time of the initial shooting, Rodrigues testified that Chapman’s car was parked at the time of the shooting and no other car was in the vicinity. While Rodrigues testified that defendant fired the first shots, Ochoa testified that one Juan Perez fired first.

The State responds that the evidence supports the jury’s decision that defendant was proved guilty beyond a reasonable doubt; it is the function of the trier of fact to both determine the credibility of witnesses and reconcile conflicting testimony. The State posits that minor inconsistencies, such as those articulated by defendant, are insufficient to raise a reasonable doubt as to defendant’s guilt. The State also contends that this case does not rely solely on the uncorroborated testimony of an accomplice and, under all of the circumstances, the defendant’s guilt should be upheld.

In our opinion the record discloses sufficient evidence upon which to affirm defendant’s guilt. While it is true that a conviction cannot be based solely on the uncorroborated testimony of an accomplice promised leniency in return for his testimony unless such testimony carries within it an “absolute conviction of its truth” (People v. Ash (1984), 102 Ill. 2d 485), that situation is not present here. The testimony presented against defendant was not solely that of accomplices, nor was it uncorroborated.

Nor do we believe the backgrounds of the witnesses arrayed against defendant, or the minor inconsistencies in their testimony, serve to cast doubt on defendant’s guilt.

“It is the function of the trier of fact to weigh the testimony, judge the credibility of the witnesses and determine factual matters in debatable circumstances, and in criminal proceedings, the trier of fact may believe part of a witness’ testimony without believing all of it. [Citation.] A reviewing court has neither the duty nor the privilege to substitute its judgment as to the weight of disputed evidence or credibility of witnesses for that of the trier of fact ***. While there are a few minor contradictions as to his precise location at the moment of the shooting, there are many significant details which remain consistent in the witness’ testimony ***.” (People v. Sanchez (1982), 105 Ill. App. 3d 488, 493, 434 N.E.2d 395.)

While it is true that the State’s witnesses to the shooting were not of impeccable character, there is no requirement that they be so. It is, again, the function of the trier of fact to determine their credibility. The record discloses no basis for overturning the jury’s determination.

Defendant next argues that he was denied a fair trial and due process of law because the State allegedly allowed false testimony by one of its witnesses to go uncorrected. He contends that Rivera twice lied on the witness stand, once when he stated that he had complied with the terms of his court probation and a second time when Rivera testified that he was living in the protective-custody section of the Cook County jail.

With regard to the first statement, the record demonstrates that during his cross-examination and after acknowledging that he had been on probation, Rivera answered that he had complied with the terms of the probation. In a sidebar conference, it was shown that while on probation, Rivera had pleaded guilty to misdemeanor unlawful possession of a weapon. The record indicates that defense counsel was aware of Rivera’s guilty plea. The State advised that no charges had been filed for violation of probation. After the sidebar, the parties stipulated that while on probation Rivera had pleaded guilty to the UUW charge.

We find no knowing use of false testimony by the State. Both the State and defense counsel were clearly aware of these facts and stipulated to them. Rivera’s answer to the question was, arguably, untrue in that while his UUW conviction demonstrates he did not “comply” with the terms of probation, no legal proceedings were initiated. In any case, we find no use of false testimony by the State.

Defendant contends Rivera also lied when he stated that he was living in the protective-custody section of the Cook County jail. The testimony involved proceeded as follows:

“Defense Attorney: Where do you live now?
Rivera: At the protective custody.
Q. Where is that?
A. 2650 California.”

After his testimony, the State advised defense counsel that Rivera was living instead at the protective custody unit of the Du Page County jail. Rivera had been moved due to allegations that he possessed marijuana while at Cook County. No charges were filed against Rivera based on these allegations. While it is clear that the State may neither use false testimony nor allow it to go uncorrected (Napue v. Illinois (1959), 360 U.S. 264, 3 L. Ed. 2d 1217, 79 S. Ct. 1173), we do not believe such occurred here. The State advised defense counsel of Rivera’s true residence. Defense counsel chose not to recall Rivera to impeach him. While we will not countenance the State using or permitting the use of false testimony, we do not believe the rule requires the State to immediately interrupt opposing counsel in order to correct what may be a misstatement or incorrect answer by a witness.

Defendant's final contention is that he was denied a fair trial when the State was allowed to introduce a witness’ prior consistent statement in order to bolster his in-court testimony.

The record demonstrates that after Ochoa testified that defendant fired his gun at the victim, Ochoa was permitted, over defendant’s objection, to testify that his courtroom testimony was the same as his pretrial statement to the authorities. While recognizing the rule that prohibits introduction of a prior consistent statement for the purpose of bolstering a witness’ credibility, the State contends that here the prior consistent statement was properly introduced to rebut allegations that the witness was motivated to lie.

While a prior consistent statement may be admitted to rebut allegations that the witness was motivated to lie, “of course, it must be shown that the presently imputed motive did not exist at the time of the prior statement. [Citations.]” (People v. Tidwell (1980), 88 Ill. App. 3d 808, 810, 410 N.E.2d 1163.) Here, Ochoa’s alleged motivation to lie was to escape being charged with the murder by accusing another. Clearly such motivation existed when Ochoa gave his initial statement to the police inculpating defendant. Thus, this exception to the rule precluding admission of a witness’ prior consistent statement did not here apply, and Ochoa’s prior consistent statement should not have been admitted into evidence. However, we do not find that this error mandates a new trial. Ochoa’s prior identification of defendant as a shooter was supported by the testimony of two other eyewitnesses. Thus, in view of this cumulative evidence, the admission of Ochoa’s prior consistent statement was harmless error. People v. Olmos (1978), 67 Ill. App. 3d 281, 384 N.E.2d 853.

For the reasons stated herein, defendant’s conviction is affirmed.

Affirmed.

HARTMAN, P.J., and STAMOS, J., concur.


author: JUSTICE JOHNSON

text:
    McDONALD’S CORPORATION, Plaintiff-Appellee, v. RICHARD MAZUR et al., Defendants-Appellants.
    First District (4th Division)
    No. 83—2069
    Opinion filed September 27, 1984.

      Beermann, Swerdlove, Woloshin, Barezky & Berkson, of Chicago (Alvin R. Becker and Howard A. London, of counsel), for appellants.
    Frederic S. Lane and Richard L. Fenton, both of Sonnenschein, Carlin, Nath & Rosenthal, of Chicago, for appellee.
   JUSTICE JOHNSON

delivered the opinion of the court:

Plaintiff, McDonald’s Corporation, filed a complaint in the circuit court of Cook County for declaratory judgment against defendants, Richard Mazur, Benjamin Kramer, Sol Reifler, Ben Borenstein, Dan Cross, Jason Sharps, 3433 23rd Avenue Drive-In, Inc., 3303 North Brady Street Drive-In, Inc., and 2409 11th Street Drive-In, Inc.

The trial court entered an order granting summary judgment for McDonald’s, and defendants have appealed. The issue on appeal is whether the trial court erred in ruling that the plaintiff had a right, under the license agreement, to review defendants’ corporate records in order to determine stock ownership.

We affirm.

The parties agree that there is no dispute of fact.

On December 8, 1982, McDonald’s filed its complaint for declaratory judgment against defendants. The complaint alleged that McDonald’s is in the business of operating, franchising and servicing limited menu fast food restaurants known as “McDonald’s Restaurants.” Plaintiff described itself as a “system” which offers a comprehensive concept for the operation of retail restaurants which serve high-quality uniform food in an atmosphere designed to appeal to a broad cross-section of people. Plaintiff approves individual licensees for a franchise to use the McDonald’s name by means of a specific agreement which permits participation in the McDonald’s system.

Plaintiff entered into a license agreement with William Barr on April 14, 1965. Under the agreement, Barr was authorized to operate certain McDonald’s restaurants. That agreement was subsequently assigned to defendant Mazur and Gary Swanson, in 1968. In 1973, Mazur and Swanson assigned the agreement to the corporate defendants, 3433 22nd Avenue Drive-In, Inc., located in Moline, Illinois, 2409 11th Street Drive-In, Inc., located in Rock Island, Illinois, and 3303 North Brady Street Drive-In, Inc., located in Davenport, Iowa. McDonald’s consented to the assignments on the condition that defendant Mazur would remain liable for the covenants of the license agreement. In agreeing to the assignments, McDonald’s included the condition that there be no assignment or transfer of the franchise without prior written consent of McDonald’s. McDonald’s referred to paragraph 14 of the agreement made with William Barr in 1965. That paragraph states:

“14. Agreement Not Assignable. Licensee shall not sell, assign, transfer, convey or encumber this Agreement or any right or interest therein or thereunder, or suffer or permit any such assignment, transfer or encumbrance to occur by operation of law, unless the written consent of the Licensor be first had and obtained. In the event of the death of the Licensee, or if the Licensee is a corporation in the event of the death of a stockholder therein, the Licensor shall not unreasonably withhold its consent to a sale or assignment of Licensee’s interest herein, or if Licensee is a corporation, of the decedent’s stock in said corporation, to a descendant of decedent, who shall in the sole judgment of Licensor, be capable of performing the duties and obligations of the Licensee hereunder or to a responsible bona fide purchaser acceptable to the Licensor. In the case of any such sale or assignment so consented to by the Licensor, the assignee shall agree in writing with the Licensor to assume and perform all of Licensee’s covenants and agreements contained herein.
If Licensee is a corporation, or if with the consent of Licensor, the rights of Licensee hereunder are assigned to a corporation, then and in such event
WILLIAM BARR
shall remain the legal and beneficial owners of not less than 51% of the capital stock thereof during the entire term hereof, and, except as expressly provided herein, the assignment, either voluntarily or by operation of law, of more than 49% of said capital stock without the prior express written consent of Licensor to any other person shall constitute a breach of the terms of this Agreement.”

Plaintiff’s complaint alleged that the corporate defendants are required to produce for inspection by plaintiff all corporate minute books, stock records and other corporate records which show ownership interests in the corporate defendants. Plaintiff asserted that paragraph 12 of the license agreement obligates defendants to produce the records in question for inspection by plaintiff. Paragraph 12 of the license agreement states:

“12. Service Fees. For and during the term of this Agreement, Licensee shall pay semi-monthly to Licensor as service fees and, in consideration of all services to be rendered and facilities to be made available, one and nine tenths (1.9%) percent of the gross sales which Licensee shall receive from the operation of said establishment. On the fifth and sixteenth days of each calendar month Licensee shall render to Licensor a full and complete statement, in such form as Licensor shall require, of all receipts from the operations of said establishment for the preceding semi-monthly period and shall thereupon pay to Li-censor the percentage of gross sales from the operation of said establishment for said period as hereinbefore set forth. On or before the twenty-fifth (25th) day of each month, Licensee shall submit to Licensor, a complete operating statement for the previous month in form satisfactory to Licensor. Licensee shall keep and preserve full and complete records of all gross sales in manner and form satisfactory to Licensor and shall submit such other financial data as Licensor may request on the accounting forms and in the manner prescribed by Licensor. The term ‘gross sales’ shall exclude bona fide credits and returns for merchandise and the amounts turned over by Licensee for Retailer’s Occupation Tax, Use Tax, Sales Tax, and all other taxes levied by municipal, county, state, and federal governmental bodies on sales of any merchandise and/or services.
Any and all service fees that may be and become due and owing from Licensee shall bear interest from and after the respective due dates thereof at the rate of seven (7%) percent per annum.
The accounts, books, records and tax returns of Licensee, so far as the same pertain to the business transacted under the provisions of this Agreement, shall be open to the inspection, examination and/or audit by Licensor and its authorized representatives at all reasonable times. Any such inspection, examination and/or audit shall be at Licensor’s cost and expense unless the same is either necessitated by Licensee’s failure to prepare and deliver its statement of gross sales or operating statement, or to keep and preserve records as hereinabove provided, or such inspection discloses that any such statement made and delivered by Licensee is in error to an extent of five (5%) percent or more, in either of which events such cost and expense shall be borne and paid by Licensee upon demand.”

Plaintiff requested the aforementioned records from the corporate defendants for the purpose of determining the current stock ownership of the corporations and whether any unauthorized assignments or transfers of interests had taken place. Defendants refused to produce the records, and McDonald’s sought a declaratory judgment and injunctive relief. McDonald’s asked the trial court to declare that defendants are required to produce the records in question, which reflect stock ownership of the three corporate defendants. Plaintiff also sought attorney fees and costs.

Defendants answered and counterclaimed, agreeing to the factual allegations of plaintiff’s complaint, but asking that McDonald’s be denied relief. Defendants asked the circuit court to declare that plaintiff does not have the right, under the language of the license agreement, to examine nonfinancial records of the corporate defendants. Both parties sought summary judgment.

On July 21, 1983, the circuit court granted McDonald’s motion for summary judgment and ordered defendants to produce corporate minute books, stock record books, and all other records which reflect stock ownership of the corporate defendants. The question of attorney fees was reserved by the court.

Defendants make two arguments in support of their contention that the trial court’s ruling was erroneous. They argue that McDonald’s contractual right to review the records extends only to financial records and that McDonald’s was not entitled to injunctive relief under these facts. Defendants contend that the language of paragraph 12 of the license agreement only gives McDonald’s the right to review records of gross sales and financial data, for the purpose of verifying financial information provided by the corporate defendants. Therefore, the contractual language relied upon by McDonald’s is expressly limited to the aforementioned verification of financial data. The fact that the language relied upon by McDonald’s is found in the paragraph entitled “Service Fees” is further support for the position that McDonald’s has no right to examine records other than financial records which relate to sales. Second, the trial court’s order that defendants produce the records in question was an erroneous grant of injunctive relief, since the license agreement does not give McDonald’s the right it claims to have.

In resolving the dispute, we agree with plaintiff that the basic issue before this court is whether the facts as stipulated sustain the judgment of the trial court. The specific language around which this dispute centers is found in the third subparagraph of paragraph 12 of the license agreement.

Plaintiff contends that the language is broad and permits inspection of documents which are pertinent to all business carried out under the license agreement. Defendants, on the other hand, urge us to resort to various rules of construction of the contractual language. A court will not resort to rules of construction where an agreement is clear and unambiguous. (Harris Trust & Savings Bank v. Hirsch (1983), 112 Ill. App. 3d 895, 899, 445 N.E.2d 1236, 1239.) In this case, the parties each state that the language of the contract is unambiguous, notwithstanding that each party gives a different meaning to the language in question. Accordingly, we will not resort to rules of construction but will look instead at the plain meaning of the language of the license agreement.

In adhering to the principle that a contract must be read as a whole and all parts construed together (Preski v. Warchol Construction Co. (1982), 111 Ill. App. 3d 641, 645, 444 N.E.2d 1105, 1108), we reject defendants’ argument that the language in the third subparagraph of paragraph 12 refers only to matters contained in that paragraph. We hold that the language refers to the contract as a whole.

When contract terms are clear and unambiguous, they must be given their ordinary and natural meaning. (Board of Education v. Chicago Teachers Union (1980), 89 Ill. App. 3d 861, 866, 412 N.E.2d 587, 591.) When read in conjunction with all other provisions of the license agreement, we believe that the language of paragraph 12 clearly gives McDonald’s contractual right to inspect documents which relate to the operation of the business. The question then becomes whether ownership of the business is related to operation of the business.

Plaintiff is persuasive with its argument that the identities of the individuals who represent its name in the marketplace, and who profit from participation in the McDonald’s system, are pertinent factors in the transaction of business under the license agreement. Additionally, plaintiff points out that the license agreement makes no distinction between passive and active shareholders. Therefore, defendants’ attempt to distinguish the two for the purpose of determining the meaning of the language of paragraph 12 does not abrogate their contractual obligation to permit plaintiff to inspect the records in question.

Similarly, we reject defendants’ argument that the trial court erroneously imposed an injunction. That argument is premised upon the theory that the trial court’s interpretation of the contractual language was erroneous. Our review of the record shows that the trial court’s understanding of the Contractual language was correct. Further, McDonald’s has argued convincingly that defendants’ failure to produce the records goes to the very basis of the contractual and business relationship. Any potential harm which plaintiff may suffer as a result of defendants’ failure to honor the contract could not be remedied by an action at law, since the records in question are necessary to determine whether there has been a breach of the license agreement. The trial court did not abuse its discretion in granting the injunctive relief sought by plaintiff.

Accordingly, we find that the circuit court acted properly, and its judgment will, therefore, be affirmed.

Affirmed.

LINN, P.J., and ROMITI, J., concur.