author: PRESIDING JUSTICE STOUDER JUSTICE HEIPLE,

text:
    GRAYBAR ELECTRIC COMPANY, INC., Plaintiff-Appellee, v. McCOY CONSTRUCTION COMPANY, a/k/a Jean A. McCoy & Sons, Inc., et al., Defendants-Appellants.
    Third District
    No. 3 — 83—0414
    Opinion filed April 19, 1984.
    Rehearing denied June 6, 1984.

      HEIPLE, J., dissenting.
    Paul E. Root and Roger B. Gomien, both of Gomien, Root & Masching, of Morris, for appellants.
    Robert W. Scott, of Swain, Johnson & Card, of Peoria, for appellee.
   PRESIDING JUSTICE STOUDER

delivered the opinion of the court:

This action was commenced by Graybar Electric Company, Inc. (Graybar), against McCoy Construction Company (McCoy) and Fidelity and Deposit Company of Maryland (Fidelity) on a commercial surety bond relating to a construction project for the Covenant Children’s Home in Princeton, Illinois. The circuit court of Bureau County entered judgment in favor of Graybar and against Fidelity in the amount of $21,019.65. Fidelity has appealed from this judgment. Graybar has also cross-appealed, arguing the trial court erroneously reduced its claim by $1,885 and erroneously declined to award contract interest.

As a condition of the Covenant Children’s Home construction project, McCoy was required to provide the commercial surety bond which is the subject of this litigation. The bond executed by Fidelity provided in the usual terms for indemnification of those supplying material and labor on the project. McCoy subcontracted a portion of the work to Grawey Electric Company, and in turn Grawey Electric Company (Grawey) purchased electrical supplies from Graybar. After the project was completed Graybar claimed it had not been paid in full by Grawey, so this action was commenced on the bond.

From the evidence, it appears during the period from July 1980 to May 1981 Graybar supplied materials for the Covenant project to Grawey amounting to some $62,000. During the same period McCoy paid Grawey some $112,000 and the subcontractor paid the supplier some $115,000. However, the supplier applied only $36,000 to the Covenant project, leaving a balance due thereon of $26,000. The balance of the $115,000 received from Grawey by the supplier was allocated to other accounts which Grawey owed the supplier. According to Graybar, this allocation was made pursuant to the direction of Grawey.

On this appeal the surety phrases the issues as follows:

I. Did the plaintiff satisfy the necessary conditions precedent to recover under the bond?
II. Was the finding of the trial court that Grawey Electric, Inc. (Grawey), directed the application of funds paid by it to the plaintiff against the manifest weight of the evidence?
III. Was the decision of the trial court that the surety did not have special equities in the funds paid by Grawey to the plaintiff against the manifest weight of the evidence?

Fidelity’s first contention is that Graybar failed to satisfy a condition precedent of the language of the bond itself, the condition precedent being that notice of nonpayment be sent by registered mail. While we acknowledge that this technicality could have been a possible defense, it is not available in this case. It is not available because Fidelity, while desirous of following the technicalities of its bond, failed to follow the technicalities of Illinois pleading and practice. In its complaint, Graybar alleged generally that it had performed all conditions precedent. Fidelity entered a general denial to this allegation. Supreme Court Rule 133 required Fidelity to allege facts “in connection with the denial showing wherein there was a failure to perform.” (87 Ill. 2d R. 133(c).) Fidelity waived the claim of nonperformance of this condition precedent by failing to specifically plead.

Next we turn to the merits of the surety’s appeal. In summary, the surety’s objections to the trial court’s judgment are twofold. First, it argues there is insufficient competent evidence to support the claim by Graybar as approved by the trial court of the allocations of payments by Graybar pursuant to Grawey’s directions. Second, the surety argues even if the directions by Grawey were supported by competent evidence, the special equitable interest in the funds from the Covenant project traceable through Grawey to Graybar required the allocation of such funds to the payment for material supplied for the Covenant project.

The major premise of the surety’s argument is that it has a special equitable interest in the funds received by Graybar from Grawey because they are traceable from the Covenant project for which the material was supplied. In response, Graybar argues the evidence is insufficient to support any claim of special equitable interest in the funds but even if so the direction of the subcontractor to apply funds to nonproject accounts was both properly proved and legally authorized.

If the surety did not establish its special equitable interest in the funds, it would follow that whether funds received by the supplier were or were not properly allocated would be immaterial since the surety would have no interest in such funds. This is one of the teachings of Alexander Lumber Co. v. Aetna Accident & Liability Co. (1921), 296 Ill. 500, 129 N.E. 871, which makes the special equity of the surety dependent upon proof that the funds received by the creditor were derived from the construction contract. According to the court in Alexander Lumber Co.:

“Without reviewing in detail here the mass of evidence and accounts in the records, we are of the opinion that the weight of the evidence supports the master’s finding regarding the source of the funds paid to defendant in error by Freeman & Brooks. The tracing of certain moneys and payments in the evidence, together with the testimony of Thomas Evans, a public accountant, and others, produces the unavoidable conclusion that payments to the amount of defendant in error’s claim for materials furnished for the chemistry building were, in fact, made from funds arising from that building.” (296 Ill. 500, 508.)

In fact the opinion in Alexander Lumber Co. indicates the creditor in that case, unlike the creditor in the instant case, did not dispute the source of the funds which it received.

As indicated earlier, the only evidence relating to derivation or source of funds received by Graybar was testimony of the payments made by McCoy from the Covenant project to Grawey during the 10-month period in question totalling $112,000 and the receipts by Graybar from Grawey during the same period totalling $115,000. We fail to see how such evidence supports the conclusion the funds received by Graybar were those derived from the Covenant project contract thereby creating in the surety a special equity in such funds. Based on such evidence, it is just as reasonable to conclude that the payments by McCoy from the Covenant construction project to Grawey were paid to other Grawey creditors or dissipated in other ways. Equally reasonable is the conclusion that the funds received by Gray-bar were from other projects of Grawey. Neither books, records nor bank accounts of Grawey were presented for consideration by the trial court.

In Village of Winfield v. Reliance Insurance Co. (1965), 64 Ill. App. 2d 253, 212 N.E.2d 10, the court deals at length with a method which it approves based on an accounting analysis for tracing funds derived from a construction project when payments are made therefrom as well as from other funds received from nonproject sources. No such evidence was presented in the instant case, and any conclusions based on the source of the funds are purely speculative.

Although the surety claims his special equity was proved merely because the subcontractor received more money from McCoy than it paid to Graybar, a conclusion which we have rejected, the surety also insists that it was the duty of Graybar, the creditor, to establish that the funds were not derived from the construction contract rather than its burden to establish the' converse. No authority has been cited for this proposition, and we believe the surety’s position is without merit. The surety is in the position of asserting rights based on its special equity in the funds, which is in its nature an equitable defense of payment. Absent the special equities, the usual rules of payment by debtors are applicable and the surety would have no basis for asserting that a special equitable rule should be applied to avoid injustice. Thus, where the creditor initially proves the terms of the surety bond, the supplying of the materials and their incorporation into the building project covered by the bond and the nonpayment therefore, it is the burden of the surety to show that the obligation was paid or otherwise discharged. This is in the nature of an affirmative defense whether so pleaded or not, and where the rights of the parties depend upon a special relationship to the transaction, it should be the burden of the party claiming such special relationship to establish it.

Since we believe that the evidence as a matter of law fails to establish the funds received by the plaintiff were derived from the Covenant construction project, we hold the defendant surety has no special equity in such funds and is in no position to complain that any of the funds received by the plaintiff were allocated to other accounts of Grawey. For this reason we find it unnecessary to decide whether the allocation of the funds to other accounts was supported by proper evidence or was legally permissible.

On its cross-appeal Graybar argues the trial court erred in reducing its claim by $1,885 and by failing to award it contract interest. Apparently, the trial court believed that $1,885 of the $115,000 which Graybar received from Grawey was not allocated to either the Covenant construction project material account or to any other accounts, and accordingly it credited the amount to the Covenant project account. Both parties seem to agree that the evidence does not support this deduction even under the theory applied by the trial court. Both because of such error and because of our position on the appeal of the surety, we conclude the deduction of $1,885 was erroneous. So far as the other objection of Graybar is concerned, we believe the court properly held that Graybar was entitled only to interest provided by statute and not the monthly rate of interest proclaimed on its monthly statements, and, accordingly, we find no error in the trial court’s decision disallowing interest at the contract rate.

For the foregoing reasons, the judgment of the circuit court of Bureau County is modified by adding to it the amount of $1,885 erroneously disallowed by the court, and the judgment as so modified in favor of the plaintiff in the amount of $22,904.65 with interest at 5% is affirmed.

Judgment modified and as modified affirmed.

SCOTT, J., concurs.

JUSTICE HEIPLE,

dissenting:

This case is a suit on a commercial bond. The suit was brought by an electrical parts supplier against the surety company for an alleged partial nonpayment to them by an electrical subcontractor on a construction project. McCoy Construction Company (McCoy) was the general contractor. Grawey Electric Company (Grawey) was the subcontractor. Fidelity and Deposit Company of Maryland (Fidelity) was the commercial surety company.

The time frame for this controversy was from July 1980 to May 1981, some 10 months. During this time, the supplier furnished some $62,000 worth of materials to the subcontractor for this project. For work performed, the contractor paid the subcontractor some $112,000, and the subcontractor paid the supplier some $115,000. On the surface, it would at first appear that the supplier had been paid in full, heaped and rounded measure. Where is the controversy?

The controversy arises because the subcontractor, Grawey, was also buying materials from the supplier, Graybar, for other unrelated jobs. When payments were made from Grawey to Graybar, Graybar did not credit all payments just to this particular project. Not at all. Some of these payments were also credited to various other projects wherein Grawey was buying electrical supplies from Graybar. Indeed, of the $115,000 paid by Grawey to Graybar, Graybar allocated only $36,000 to the McCoy project. Thus, Graybar claimed a balance due on the McCoy project of $26,000 ($62,000 supplied, less credits of $36,000) and asked for a judgment against Fidelity in that amount.

Upon a trial being held, the trial court awarded a judgment to Graybar in the amount of some $21,000. Fidelity appeals and Graybar cross-appeals.

At trial, Fidelity argued that Graybar had no right to allocate Grawey’s payments in the manner that was done; that the $26,000 claimed by Graybar was in fact satisfied by McCoy’s payments to Grawey of $112,000 and by Grawey’s payments of $115,000 to Graybar which amply exceeded Graybar’s total materials bill on the McCoy project of $62,000.

Our supreme court pronounced the law applicable to this situation in the case of Alexander Lumber Co. v. Aetna Accident & Liability Co. (1921), 296 Ill. 500. I restate it as follows. A surety has a special equity interest in funds paid by a contractor to a subcontractor (the debtor), which funds are in turn used by the subcontractor to pay its supplier (the creditor). This special equity requires the creditor to apply the funds paid by the debtor to the account of the contractor which is covered by the bond. This special equity will arise when payments are made and the debtor fails to designate the accounts on which payments are to be applied. Absent such designation of accounts, they will be deemed to be credited against the specific project for which the bond was issued. That is the law.

On the other hand, if the debtor does, in fact, direct the creditor to allocate payments among various accounts, that direction is controlling and the special equity of the surety does not arise. Where the debtor prefers other accounts with the same creditor, the court must consider that this is just as much a default (so far as the bond is concerned) as if the debtor had spent the money elsewhere.

In the instant case, and upon hearing the evidence, the trial court’s judgment of some $21,000 was grounded on the premise that all but some $2,000 paid by Grawey to Graybar was directed by Grawey, thus bringing the surety bond into play. That is to say, the trial judge found Grawey to be in default to Graybar on the McCoy project to the extent of $21,000.

The question is, did Graybar successfully prove that Grawey had directed payments to other accounts? Graybar’s exhibit No. 9 is a group exhibit consisting of copies of Graybar invoices billed to Grawey. The foundation for this exhibit was laid by Mr. .Abel, a credit manager of Graybar, who testified that the invoices in this exhibit were sent by Graybar to Grawey. The invoices were later returned to Graybar along with checks from Grawey. The invoices listed bills for materials for several different accounts. The checks did not always cover the entire bill. Abel stated that an employee of Grawey, named Mr. Collins, directed payment among the accounts by placing check marks next to the particular items to be paid with the check.

Scrutiny of this evidence reveals that it is flawed. First of all, the invoices offered are not the original invoices. They are copies. Moreover, the invoices in the exhibit are not even copies of the original invoices returned by Grawey, which supposedly carry check marks; rather, the invoices are copies of copies of the invoices sent out by Graybar. This is a violation of the best evidence rule which requires that the original writing be introduced into evidence unless the original is shown to be lost, destroyed or unavailable. In such a case, the proponent must prove the prior existence of the original, its unavailability, the authenticity of the substitute and the proponent’s own diligence in attempting to procure the original. Graybar should have had in its possession the original check-marked invoices returned by Grawey. Yet, Graybar never attempted to introduce the original invoices and never explained their unavailability. The admission of this group exhibit into evidence was error.

Moreover, Mr. Abel’s testimony did not and could not lay the proper foundation to bring the subject of the check marks on the invoices into evidence. His testimony was clearly hearsay. Although Abel stated that an employee of Grawey named Mr. Collins had directed payment among the accounts by placing check marks next to the particular items to be paid, Abel stated that he never discussed the meaning of the check marks with Mr. Collins, and Abel further admitted that he had no idea who, at Grawey, made the check marks or sent the invoices back to Graybar. Thus, the incompetence of this evidence is doubly manifest.

On another specific item, Mr. Abel also testified that Mr. Collins hand delivered a sealed envelope to Abel. The envelope contained a $15,000 check. Abel further related that Collins had told him the check was part payment for the material used in the K-mart job (a different job than the McCoy project). This, too, was incompetent. No competent witness testified to Collins’ position and authority to direct payment for Grawey.

This case should be reversed. The majority, however, declines to do so, finding that the funds were not traced through from the contractor to the subcontractor to the supplier. This is error. The evidence before the trial court was that the supplier furnished some $62,000 worth of materials to the subcontractor for the project. Further, that the contractor paid the subcontractor some $112,000 and that the subcontractor paid the supplier some $115,000. That is sufficient prima facie tracing. There was no other evidence. All else is conjecture. While other evidence might have been introduced to show that the money came from here or there and went elsewhere, there was no such evidence. On the evidence before it, sketchy as it was, the trial court was entitled to conclude prima facie that Graybar received ample money from the subject project to be fully paid. That established the special equity of Fidelity in those funds. The question remaining was whether, under the evidence, Graybar had properly allocated those funds to other accounts. As already indicated, I believe the evidence on that point was deficient. Thus, I dissent.


source: Caselaw Access Project

author: JUSTICE REINHARD

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. KEVIN TENNIN, Defendant-Appellant.
    Second District
    No. 83 — 372
    Opinion filed April 24, 1984.
    Rehearing denied May 31, 1984.

      G. Joseph Weller, Paul J. Glaser, and Nicholas J. Kritikos, all of State Appellate Defender’s Office, of Elgin, for appellant.
    Fred L. Foreman, State’s Attorney, of Waukegan (Phyllis J. Perko and Sally A. Swiss, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE REINHARD

delivered the opinion of the court:

Defendant, Kevin Tennin, appeals from his conviction, after a jury trial, for the offense of attempt (burglary) (Ill. Rev. Stat. 1981, ch. 38, par. 8 — 4(a)). He was sentenced to a five-year term of imprisonment.

Defendant raises the following issues on appeal: (1) whether he was denied a fair trial because of the introduction into evidence of a plea-related discussion, and (2) whether the trial court erred in permitting defendant’s impeachment with a prior burglary conviction.

Defendant and another person were found on the second-floor landing of an outside staircase at the rear of Rosales’ Bar in Waukegan, Illinois, at approximately 1 a.m. on January 21, 1983, by police who were dispatched to a possible burglary. The arresting officer observed that insulation had been pulled from the housing around two vents on the outside of the rear portion of the building. The vents led into the bar. A hammer was found on the ground near these vents. The owner of the bar testified that the appearance of the vents with the insulation pulled out was different from their appearance prior to the date of defendant’s arrest.

Detective Steven Anderson interviewed defendant after defendant had been read the Miranda warnings. Anderson testified that defendant initially told Anderson that defendant was behind the bar “to meet some lady” at the time of his arrest. Anderson testified that after he told defendant that that was not true, defendant gave an oral and a written statement admitting he had taken the insulation from around the vents with the intention of getting inside the bar and taking some money.

Defendant testified at trial that he was behind the building at the time because he went to that vicinity to get into a fight with the brother of a woman who lived next to the bar, and that he told Anderson this. He testified that Detective Anderson told him he did not believe him, and Anderson threw a chair, struck, kicked and choked him, and that he gave the inculpatory statement so Anderson would not continue to hit him. Anderson denied these allegations on rebuttal.

Defendant first contends that certain testimony given by Anderson on rebuttal concerned an inadmissible plea-related statement made by defendant. He maintains that the admission of this testimony was in violation of Supreme Court Rule 402(f) (87 Ill. 2d R. 402(f)), and that it denied him a fair trial. The challenged testimony occurred in response to the prosecutor’s question concerning when Anderson had talked with defendant about a person named “Pena Boy,” who was suspected of an unrelated crime. Anderson answered the question by saying:

“After I gave him the statement and we were bringing him back to the cell, he stated did I know Pena Boy and I said yes. I said, ‘Where is he at?’ He said, T want to make a deal.’ I said, ‘I don’t make deals.’ ”

Defendant moved for a mistrial at this point. The trial court denied this motion.

The State on appeal has chosen not to argue that this statement of defendant’s to Anderson was not plea-related. It contends instead that assuming, pursuant to People v. Friedman (1980), 79 Ill. 2d 341, 403 N.E.2d 229, the statement “was an offer to bargain and, therefore, was an inadmissible plea-related statement,” the admission of the statement was harmless error.

Supreme Court Rule 402(f) provides:

“If a plea discussion does not result in a plea of guilty, or if a plea of guilty is not accepted or is withdrawn, or if judgment on a plea of guilty is reversed on direct or collateral review, neither the plea discussion nor any resulting agreement, plea, or judgment shall be admissible against the defendant in any criminal proceeding.” (87 Ill. 2d R. 402(f).)

The purpose of the rule is to encourage the negotiated disposition of criminal cases through elimination of the risk that the accused enter plea discussion at his peril. (People v. Friedman (1980), 79 Ill. 2d 341, 351, 403 N.E.2d 229.) The test for determining whether a statement is plea-related is whether the accused exhibited a subjective expectation to negotiate a plea and whether this expectation was reasonable under the totality of the objective circumstances. (People v. Friedman (1980), 79 Ill. 2d 341, 351, 403 N.E.2d 229.) This determination must be made from the particular facts of each case. (People v. Friedman (1980), 79 Ill. 2d 341, 352, 403 N.E.2d 229.) In Friedman our supreme court held that defendant’s inquiry about “making a deal” and his stating generally the terms upon which he would be willing to bargain, was a plea-related statement and, therefore, was inadmissible. 79 Ill. 2d 341, 403 N.E.2d 229.

The troublesome question before us, which we must first address

even though not argued by the State, is whether defendant’s nonspecific statement that “I want to make a deal,” which Detective Anderson rejected, can be characterized as plea-related and therefore inadmissible under Rule 402(f). In contrast to the statements by the defendant in Friedman where the terms upon which defendant would be willing to bargain were generally stated, the statement by the defendant in the case at bar does not indicate an explicit offer to plead guilty.

In cases where the court found a statement inadmissible as plea-related, each defendant clearly sought a concession in return for his guilty plea. (People v. Friedman (1980), 79 Ill. 2d 341, 403 N.E.2d 229; People v. Hill (1980), 78 Ill. 2d 465, 401 N.E.2d 517; United States v. Herman (5th Cir. 1977), 544 F.2d 791; United States v. Brooks (6th Cir. 1976), 536 F.2d 1137.) However, other decisions have held that where the defendant has not made manifest his plea offer, a statement cannot be characterized as part of plea discussion. United States v. Pantohan (9th Cir. 1979), 602 F.2d 855; United States v. Robertson (5th Cir. 1978), 582 F.2d 1356; United States v. Levy (2d Cir. 1978), 578 F.2d 896; Commonwealth v. Calloway (1983), _Pa. Super. _, 459 A.2d 795; see also People v. Austin (1984), 123 Ill. App. 3d 788.

Our supreme court stated in Friedman as follows:

“Where a defendant’s subjective expectations are not explicit, the objective circumstances surrounding defendant’s statement take precedence in evaluating defendant’s subsequent claim that the statement was plea related. Before a discussion can be characterized as plea related, it must contain the rudiments of the negotiation process, i.e., a willingness by defendant to enter a plea of guilty in return for concessions by the State. [Citations.]” (People v. Friedman (1980), 79 Ill. 2d 341, 353, 403 N.E.2d 229.)

Defendant’s subjective expectations in the case at hand are not explicit when we look to his sole statement in the record concerning negotiation, i.e., “I want to make a deal.” After Detective Anderson testified to this statement, defendant did not seek to explain outside the presence of the jury what his state of mind was in making this statement. Although an accused’s subsequent account of his prior subjective mental impression cannot be the sole determinative factor (United States v. Robertson (5th Cir. 1978), 582 F.2d 1356, 1366), it is a factor that can be considered in determining his subjective intent. Since defendant’s subjective expectations are not explicit, we must focus on the objective circumstances surrounding defendant’s statement to determine if it is plea-related.

In this regard, we are guided by our supreme court’s pronouncement in Friedman that “[bjefore a discussion can be characterized as plea related, it must contain the rudiments of the negotiation process, i.e., a willingness by defendant to enter a plea of guilty in return for concessions by the State.” (People v. Friedman (1980), 79 Ill. 2d 341, 353, 403 N.E.2d 229.) Defendant here has not made manifest any indication to plead guilty or what the terms are under which he would be willing to bargain. We cannot assume that every statement by a defendant to the effect of “making a deal” is plea-related. There are other possible explanations underlying a motivation to make a “deal,” such as a defendant negotiating for his release without a cash bond or on a low bond, or the dropping of charges against him in return for information he might supply. Not all statements made in hopes of some concession are necessarily plea discussions. (People v. Victory (1981), 94 Ill. App. 3d 719, 722, 419 N.E.2d 73.) On this record, defendant has not demonstrated a subjective expectation to negotiate a plea and we find no error in admission of his statement. See People v. Austin (1984), 123 Ill. App. 3d 788.

In making this determination, we do so under the particular facts of this case mindful of the salutary purpose of Rule 402(f) in protecting a defendant from adverse inferences based upon statements made in circumstances in which the accused is seeking to negotiate a plea agreement. The plea negotiation process is significant to the administration of justice and is encouraged by Rule 402(f) through elimination of the risk that the accused enter plea discussion at his peril. We emphasize that we do not require a formal ritualistic expression of intent to enter plea negotiations by the accused, but under the facts here the defendant’s statement cannot fairly be characterized as part of a plea discussion.

Defendant also contends that the trial court erred in permitting the State to impeach him by introduction into evidence of his prior 1981 burglary conviction. Defendant contends that the trial court either failed to exercise discretion by balancing the probative value of the impeachment evidence against the prejudicial impact of this evidence, or, if it did exercise discretion, abused that discretion in allowing the impeachment evidence.

From our review of the record, it is evident that the trial judge did exercise discretion and weigh the probative value against the danger of unfair prejudice. Defense counsel, in arguing the motion in limine to bar the prior conviction, referred to the court’s “sound discretion” in making its decision on the motion. It is also clear from the court’s comments that it conducted the balancing test. Next, the burden is on the defendant to demonstrate prejudice by admission of this evidence (People v. Leonard (1980), 83 Ill. 2d 411, 423, 415 N.E.2d 358), and the trial court will not be reversed unless there is an abuse of its discretion. People v. McKibbins (1983), 96 Ill

In People v. McKibbins (1983), 96 Ill. 2d 176, 449 N.E.2d 821, the court noted that People v. Montgomery (1971), 47 Ill. 2d 510, 268 N.E.2d 695, refers to four factors to be considered in determining whether the probative value is substantially outweighed by the unfair prejudice: (1) the nature of the crime; (2) nearness or remoteness; (3) subsequent career of the person; and (4) whether the crime was similar to the one charged. (People v. McKibbins (1983), 96 Ill. 2d 176, 188, 449 N.E.2d 821.) Application of the factors articulated in Montgomery to the facts in the record clearly supports the trial court’s decision. See People v. Hall (1983), 117 Ill. App. 3d 788, 798-99, 453 N.E.2d 1327; People v. Minor (1983), 115 Ill. App. 3d 1046,1050, 451 N.E.2d 1011.

For the foregoing reasons, the judgment of the circuit court of Lake County is affirmed.

Affirmed.

HOPF and VAN DEUSEN, JJ., concur.


author: JUSTICE ROMITI

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. MICHAEL HARRIS, Defendant-Appellant.
    First District (4th Division)
    No. 81 — 3064
    Opinion filed May 10, 1984.

      James J. Doherty, Public Defender, of Chicago (Hugh Stevens, Assistant Public Defender, of counsel), for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat, Paula Carstensen, and Edward Barron, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE ROMITI

delivered the opinion of the court:

Following a jury trial defendant Michael Harris was found guilty of the murder of Valencia Harris, the attempted murder and aggravated battery of Jerome Jones, and the aggravated battery of Robert Freeman. He was sentenced to 40 years’ imprisonment for murder, five years consecutive for aggravated battery of Freeman, 12 years consecutive for attempted murder, and five years concurrent to the 12 years for aggravated battery of Jerome Jones, for a total of 57 years. On appeal defendant contends: (1) the trial court erred in refusing to instruct the jury on voluntary manslaughter based on provocation and involuntary manslaughter; (2) the court abused its discretion in sentencing defendant to consecutive terms of imprisonment.

We affirm.

The testimony of the State’s witnesses established the following chain of events. Jerome Jones, the brother of Valencia Harris, testified that on May 5, 1978, Valencia lived with their father in Chicago. At 9 p.m. that day Jerome and his girlfriend arrived at Valencia’s home. Valencia had told Jerome that day that she was going to divorce the defendant. When the defendant subsequently rang the doorbell Jerome told Valencia to call the police. He went to the front door and asked the defendant what he wanted. Defendant asked to talk to Valencia but Jerome told him she did not want to talk to him. When defendant asked who was in the house Jerome told him it was none of his business. The defendant broke a glass pane in the door and reached in to open the door. He then ran around the side of the house to the kitchen door. There he kicked in an outer storm door and broke the glass on the inner door in order to reach in to open the door. Jerome took a butcher knife from the kitchen and threatened to cut off the defendant’s arm if he did not remove it. The defendant said he was going to kill Jerome and then retreated. Before running off defendant threw bricks and items ripped from Valencia’s car at the home’s windows.

Jerome telephoned his grandparents, Robert and Julia Freeman. He told Robert what had happened and asked him to bring a gun. The police subsequently arrived and toured the area in a fruitless search for the defendant. The Freemans arrived at the house and shortly thereafter Valencia yelled that defendant was outside, armed with a gun. Jerome asked Julia Freeman if she had brought a gun but she did not respond. Robert Freeman stated that he would talk to the defendant.

Robert testified that when he unlocked the front door the defendant shoved it open, knocking him against the wall. Robert reached for the defendant and defendant struck him on the head with the gun, knocking him to the ground. Robert followed defendant up some stairs, stating that he wanted to talk to him. But when defendant pointed the gun at him Robert backed into the living room, out of sight of the defendant. He then heard a shot.

Jerome testified that after Robert went toward the front door he went to the middle bedroom where Valencia was. He saw defendant enter a first bedroom down the hall. Defendant fired a gun at Jerome. Jerome ran to the kitchen, heard another shot, and ran back to the middle bedroom. He again ran to the kitchen, asking Julia where the gun was. She told him it was in her bag, and he retrieved it and returned to the middle bedroom. According to Julia during this time the defendant had also fired a shot at her.

When Jerome returned to the middle bedroom with the gun he saw Valencia using the phone on the east side of a bed. Defendant, on the west side of the bed, raised his arm and shot Valencia in the face. She fell to the floor and tried to get under the bed. As she did so defendant leaned over the bed and shot her twice more. Julia Freeman also testified that she saw the defendant walk into the middle bedroom with a gun, shoot Valencia once, and then shoot her twice more after she fell.

Jerome attempted to shoot the defendant but his gun would not fire. Defendant pointed his gun at him, saying he was going to kill him. Jerome dropped his gun and ran. The defendant fired his gun, but the bullet did not strike Jerome.

Jerome escaped the house by diving out a back window into the yard. As he fled over a fence his clothing became entangled. The defendant caught him and straddled him on the ground. Defendant announced that he was going to kill him, pointed his gun at Jerome’s chest, and the gun “clicked” two or three times. He then hit Jerome over the head with the gun, causing a large gash. When defendant dropped the gun Jerome grabbed him yelling for help. Defendant struck him on the head with a garbage can lid and ran off. He ultimately fled the State and was arrested in Maryland. Valencia was pronounced dead at the hospital at 10:40 p.m. It was stipulated that if called the pathologist who examined her body would testify that death was caused by multiple gunshot wounds. She had been struck by three bullets. One pierced the left area of her nose and continued down through her lung; a second bullet pierced her left thigh, and the third bullet pierced her left arm and lodged in her chest.

Defendant testified that he had married Valencia Harris in April 1975. In April of 1978 they separated, defendant moving in with his mother and Valencia moving in with her father. Defendant spoke to her about reconciling. During this period she informed him she had a boyfriend, Reginald Banks, and at one point introduced Banks to him. Defendant testified that he was jealous of Banks. Late in April defendant gave his wife money for the downpayment on an apartment she was to find for them. Instead she used the money to buy a car. Defendant testified that at this time he believed she was seeing other men. He lost his job because he was absent so often in attempts to talk to her.

The afternoon of May 5, 1978, defendant planned to visit his wife. He called her father’s house several times but there was no answer. At 6:30 p.m. he began drinking rum. At 7 p.m. he looked for Valencia at her house, her girlfriend’s house and Banks’ house. At the latter home he was told that Banks was out. He concluded that Banks and his wife were out together. Defendant returned to Valencia’s house some time after 8:30 p.m., having finished a pint bottle of rum. He rang the bell and Valencia answered the door. When he told her he wished to talk to her she told him to get away from the door. Defendant spotted Jerome Jones in the house and asked who he was. Jerome responded that he was Valencia’s boyfriend and told him to get away from the door. Defendant believed Banks was in the house, and he kept asking Jerome who was in there. Defendant testified that he was upset and angry because he wanted to see his wife and because he wanted to know if Banks was in the house. Defendant admitted that he then made the attempts to get into the house as described by Jerome in his testimony. '

Defendant next drove, to his brother’s home and obtained a gun from a closet, checking to be sure it was loaded. He returned to Valencia’s home, still upset in his belief that she was there with Banks. Defendant admitted striking Robert Freeman with the gun when he entered the home. He testified that when he entered the first bedroom he saw Jerome pointing a gun at him from a hall leading to the middle bedroom. Defendant jumped to the side and shot at Jerome. He then entered the middle bedroom where he saw Valencia standing by the bed, speaking on the telephone. As defendant approached her to talk to her he saw Jerome standing behind her in a doorway leading to the kitchen. Jerome had a gun pointed at defendant and defendant heard the gun clicking. Defendant ducked, turning away from Jerome, and shot at him from a distance of about eight feet. Valencia was hit and defendant ran, chasing Jones out the back, attempting to shoot him when he caught him, and striking him over the head with the gun. Defendant then fled.

Defendant’s mother testified that in April of 1978 defendant appeared upset and depressed. He began to drink more and was often drunk, a condition she had never before witnessed in him. The evening of the shooting he seemed unusually quiet and appeared depressed.

I

It is defendant’s contention that based on these facts the trial court erred in refusing to instruct the jury on voluntary manslaughter based on provocation and involuntary manslaughter. Over State objection the jury was instructed on voluntary manslaughter based on a mistaken belief that self-defense was justified.

Voluntary manslaughter is statutorily defined as follows:

“A person who kills an individual without lawful justification commits voluntary manslaughter if at the time of the killing he is acting under a sudden and intense passion resulting from serious provocation by:
(1) The individual killed, or
(2) Another whom the offender endeavors to kill, but he negligently or accidentally causes the death of the individual killed.
Serious provocation is conduct sufficient to excite an intense passion in a reasonable person.” (Ill. Rev. Stat. 1981, ch. 38, par. 9 — 2(a).)

Defendant first contends the jury could have concluded that he shot his wife in a fit of passion provoked by what appeared to be an adulterous meeting between his wife and Reginald Banks. The committee comments to the Illinois statute cite adultery as one of the categories of provocation recognized within the law while also indicating that the reported cases in Illinois have only involved actual or threatened physical harm as opposed to such categories as adultery or illegal arrest. (Ill. Ann. Stat., ch. 38, par. 9 — 2, Committee Comments, at 393-94 (Smith-Hurd 1979).) Defendant has not cited to any Illinois case in which the discovery of adultery has been held to constitute sufficient provocation in itself, nor has our research disclosed such a case. (See People v. Jenkins (1975), 30 Ill. App. 3d 1034, 333 N.E.2d 497; People v. Wax (1966), 75 Ill. App. 2d 163, 220 N.E.2d 600, cert. denied (1967), 387 U.S. 930, 18 L. Ed. 2d 991, 87 S. Ct. 2051.) But of even greater significance is the fact that, as Illinois courts have recognized in several cases, this form of provocation has generally been limited to instances where the parties are discovered in the act of adultery or immediately before or after such an act, and the killing immediately follows such discovery. (People v. Wax (1966), 75 Ill. App. 2d 163, 220 N.E.2d 600, cert. denied (1967), 387 U.S. 930, 18 L. Ed. 2d 991, 87 S. Ct. 2051; People v. Jenkins (1975), 30 Ill. App. 3d 1034, 333 N.E.2d 497; Palmore v. State (1969), 283 Ala. 501, 218 So. 2d 830; State v. Ward (1974), 286 N.C. 304, 210 S.E.2d 407, death penalty vacated (1976), 428 U.S. 903, 49 L. Ed. 2d 1207, 96 S. Ct. 3206; 40 Am. Jur. 2d Homicide sec. 65 (1968).) Even under what has been viewed as the more liberal approach, where discovery by verbal communication has been held to be sufficient, it would appear that the information communicated must be that adultery actually took place and the resulting homicide must closely follow the communication of this information. Commonwealth v. Schnopps (1981), 383 Mass. 178, 417 N.E.2d 1213; Haley v. State (1920), 123 Miss. 87, 85 So. 129; W. LaFave & A. Scott, Criminal Law 575-77 (1972); 40 Am. Jur. 2d Homicide sec. 66 (1968); see Tripp v. State (1977), 36 Md. App. 459, 374 A.2d 384.

Examination of two Illinois cases which have affirmed voluntary manslaughter convictions based on facts which included a wife’s confession of adultery immediately prior to the killing (People v. Ahlberg (1973), 13 Ill. App. 3d 1038, 301 N.E.2d 608; People v. Carr (1980), 91 Ill. App. 3d 512, 414 N.E.2d 1108, cert. denied (1981), 454 U.S. 848, 70 L. Ed. 2d 136, 102 S. Ct. 167), establishes that the revelation of adultery was but one of a series of statements or circumstances found by the courts to be so provoking as to constitute an exception to the general rule in Illinois that words alone cannot constitute sufficient provocation to reduce a murder to voluntary manslaughter. Thus in Ahlberg the defendant’s wife moved out of the house with the children, told defendant he had never satisfied her sexually, also told him she had found an older man who could love her and the children more than he could, and then announced her intention to divorce him. The court held that under these circumstances to follow the general rule concerning mere words as insufficient provocation would create a miscarriage of justice. In Carr the defendant’s wife returned from a two-week separation and got into an argument with him over her attempt to retrieve certain items of property, culminating in her telling him she had found a real man. The reviewing court relied on Ahlberg in affirming the conviction. In our view these cases do not support the proposition that Illinois has adopted the more liberal approach concerning verbal communication of the fact of adultery as provocation. Nor do we find insignificant the fact that in both cases a finding that the evidence did not support the voluntary manslaughter instructions which the defendants had objected to could have resulted in absolute reversal of the defendants’ convictions.

Defendant has cited the case of People v. Curwick (1975), 33 Ill. App. 3d 757, 338 N.E.2d 468, in which a conviction for voluntary manslaughter was affirmed under circumstances indicating that the defendant killed the woman he had lived with after learning from her and her boyfriend that they had been involved for some time and planned to marry in a few days. But the reviewing court in Curwick held only that the defendant, having requested an instruction on voluntary manslaughter, could not on appeal contend that it should not have been given. The court did not address whether the instruction was justified under the facts of the case.

It is apparent in any event that the facts of this case do not fall with any recognized form of discovery-of-adultery provocation for voluntary manslaughter. The defendant never testified that he believed his wife was committing, had committed, or was about to commit adultery. He testified only that he believed she was in the house with her boyfriend, Reginald Banks. Moreover, by his own admission defendant had known since the month before that his wife was dating Banks, and indeed he had even been introduced to Banks by his wife. Under these circumstances we find no error in the trial court’s determination that defendant was not entitled to a voluntary manslaughter instruction based on this form of provocation. People v. Jenkins (1975), 30 Ill. App. 3d 1034, 333 N.E.2d 497.

Defendant next contends that the jury could have found that he was acting, under serious provocation from Jerome Jones when in an attempt to shoot Jerome he accidentally or negligently shot Valencia. This theory requires a finding that defendant was entitled to claim serious provocation by Jerome. The sole case cited by defendant in support of this is one in which there was some evidence of mutual combat followed by the victim first drawing a gun on the defendant. (People v. March (1981), 95 Ill. App. 3d 46, 419 N.E.2d 1212.) In this cause by the defendant’s own admission he attempted to break into the house through several doors and then left to obtain a gun, returning to storm the house, pistol-whipping Jerome’s grandfather in order to gain entry. The law does not permit one who instigates an assault on another to then rely on the victim’s response to that assault as evidence of mutual combat sufficient to mitigate a subsequent killing from murder to manslaughter. (People v. Matthews (1974), 21 Ill. App. 3d 249, 314 N.E.2d 15; People v. Causey (1978), 66 Ill. App. 3d 12, 383 N.E.2d 234; see People v. Handley (1972), 51 Ill. 2d 229, 282 N.E.2d 131; cert. denied (1972), 409 U.S. 914, 34 L. Ed. 2d 175, 93 S. Ct. 247.) Therefore defendant was not entitled to have the jury instructed on voluntary manslaughter based on the alleged provocation by Jerome Jones.

Defendant also contends that the jury should have been instructed on involuntary manslaughter, defined by statute (Ill. Rev. Stat. 1981, ch. 38, par. 9 — 3) as occurring when:

“A person *** unintentionally kills an individual without lawful justification *** if his acts whether lawful or unlawful which cause the death are such as are likely to cause death or great bodily harm to some individual, and he performs them recklessly ***.”

Recklessness is defined as follows:

“A person is reckless or acts recklessly, when he consciously disregards a substantial and unjustifiable risk that circumstances exist or that a result will follow, described by the statute defining the offense; and such disregard constitutes a gross deviation from the standard of care which a reasonable person would exercise in the situation.” (Ill. Rev. Stat. 1981, ch. 38, par. 4 — 6.)

Involuntary manslaughter does not involve behavior in which there is an intent to inflict injury. (People v. Bolden (1968), 103 Ill. App. 2d 377, 243 N.E.2d 687.) Yet defendant’s citation of People v. Davis (1974), 18 Ill. App. 3d 173, 309 N.E.2d 338, suggests that his theory is that although he fired his gun with the intention of killing Jerome Jones, his acts were only reckless as to Valencia. In Davis defendant’s theory was that he intentionally fired at one man but was not aware of a second victim who was standing further inside an apartment. The reviewing court concluded that on these facts an instruction on involuntary manslaughter should have been given. The Davis court made no reference to the doctrine of transferred intent, a doctrine which we find to be controlling here. When a defendant shoots at one person, intending to kill him with no legal justification, but accidentally kills another person whom he did not intend to kill, he is still guilty of murdering that unintended victim. (People v. Marshall (1947), 398 Ill. 256, 75 N.E.2d 310; People v. Johnson (1978), 66 Ill. App. 3d 84, 383 N.E.2d 648.) Here where under defendant’s own theory of the case he was intending to shoot one person but accidentally shot a second person, he was not entitled to have the jury instructed on involuntary manslaughter for the killing of that allegedly unintended victim.

II

Defendant’s final contention is that the trial court abused its discretion in imposing on him consecutive sentences totalling 57 years. Section 5 — 8—4(b) of the Unified Code of Corrections (Ill. Rev. Stat. 1981, ch. 38, par. 1005 — 8—4(b)) provides:

“The court shall not impose a consecutive sentence unless, having regard to the nature and circumstances of the offense and the history and character of the defendant, it is of the opinion that such a term is required to protect the public from further criminal conduct by the defendant, the basis for which the court shall set forth in the record.”

In sentencing the defendant the trial court noted that defendant had been convicted of burglary in Maryland and was sentenced to 10 years in the penitentiary for that offense, which occurred after the commission of the offenses at issue here. The court was also informed of two prior felony convictions for theft, a conviction for aggravated battery, and a conviction for escape. At the hearing the defendant informed the court that he had perjured himself in his trial testimony, that he had planned his actions and had intended to use the insanity defense. The court expressly indicated that it took all these factors into consideration. The court then reviewed the facts of this case and stated that it had concluded that defendant was a “dangerous, dangerous person” and would remain so.

These comments by the sentencing court clearly establish that the court was of the opinion that consecutive terms were necessary for the protection of the public. Because this constitutes sufficient compliance with the statutory requirements and because we find no abuse of discretion in this determination we will not disturb the sentences imposed. People v. Hicks (1984), 101 Ill. 2d 366; People v. Pittman (1982), 93 Ill. 2d 169, 442 N.E.2d 836.

The judgment of the trial court is affirmed.

Affirmed.

LINlSr, P.J., and JIGANTI, J., concur.


author: PRESIDING JUSTICE MILLS

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. RICHARD McGUIRE, Defendant-Appellant.
    Fourth District
    No. 4 — 83—0674
    Opinion filed May 10, 1984.
    Rehearing denied June 8, 1984.

      Daniel D. Yuhas and David Bergschneider, both of State Appellate Defender’s Office, of Springfield, for appellant.
    Thomas J. Difanis, State’s Attorney, of Urbana (Robert J. Biderman and Rebecca L. White, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   PRESIDING JUSTICE MILLS

delivered the opinion of the court:

Residential burglary and misdemeanor theft.

Bench trial.

Concurrent sentences of six years and 364 days.

He now appeals.

The sole issue: Did the court err in refusing to discharge him even though he was incarcerated for more than 120 days prior to his trial?

No.

We affirm.

Section 103 — 5(a) of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1981, ch. 38, par. 103 — 5(a)) provides:

“Every person in custody in this State for an alleged offense shall be tried by the court having jurisdiction within 120 days from the date he was taken into custody unless delay is occasioned by the defendant ***.”

And section 103 — 5(d) then provides:

“Every person not tried in accordance with subsections (a) *** of this Section shall be discharged from custody or released from the obligations of his bail or recognizance.” Ill. Rev. Stat. 1981, ch. 38, par. 103-5(d).

McGuire was arrested on May 9, 1983, and tried on September 12, 1983, the intervening period being 126 days. He moved for discharge on September 8, 1983. The trial court denied the motion, holding that a continuance granted at the request of his newly appointed attorney tolled the running of the statutory period. We agree.

Since the entire case rises or falls on the nature of a continuance granted the defendant, a rather extensive explication of the circumstances is warranted. McGuire and two codefendants were arrested on May 9, indicted by a grand jury on May 19, and arraigned on May 20, the record showing them represented by Bruce Ratcliff. (The record does not reflect whether Ratcliff was retained or appointed counsel.) The record does show that the cause was set for a criminal docket call on July 8. By at least June 1 the record shows defendants being represented by the public defender’s office of Champaign County. Following the arraignment, discovery was had and both sides appeared at the July 8 docket call. Both sides answered ready for trial and the cause was set for July 18.

From this point forth, the plot takes some bizarre twists.

After answering ready for trial on July 8, the public defender appeared in court on July 13. A hearing was held, the subject of which was a motion to withdraw as counsel for McGuire and one of his codefendants. The public defender, Mr. Faddish, stated for the record:

“[T]he thrust of my motion is that after getting this case and receiving discovery from this date and after speaking with Mr. Duckworth and Mr. McGuire and Mr. Williams, I have arrived at a conclusion that a conflict exists between Mr. Duckworth, Mr. McGuire, and Mr. Williams on the other side, so it will be Mr. Duckworth and Mr. McGuire having a potential conflict with Mr. Williams and that conflict — I have reached the conclusion that a conflict exists based on the discovery and the information supplied to me by Mr. Williams, and on that basis I would ask leave to withdraw as to either Mr. Duckworth, McGuire, or Mr. Williams, and for appointment of counsel for

In response iu questions from the court, Faddish expressed his opinion that he coulKbest represent Williams without compromising the interest of the others.

The State vigorously opposed the motion, arguing that any problems should be cured by severing the cases and trying the defendants separately rather than allowing the public defender to withdraw. Following argument, the court allowed the motion to withdraw and appointed two new attorneys to represent McGuire and Duckworth. McGuire’s attorney was Lonnie Lutz, the Coles County Public Defender. (He was apparently available to the office of the Champaign County Public Defender as a result of their having previously defended a client of his in Coles County.)

On July 14, Lonnie Lutz appeared on behalf of McGuire and requested a continuance of the July 18 trial date. The continuance was granted. The cause was continued to September 2 for a criminal docket call. (The cause was not set for August, since Champaign County does not hold trials during that month.) On August 29, Lutz moved to continue the docket call but no ruling on this motion was ever made, and Lutz appeared at the docket call on September 2. At the docket call, McGuire’s trial was set for September 12. On September 8, Lutz filed a motion to dismiss, based on the fact that the 120-day period of the statute had run. The motion was heard at a hearing prior to the bench trial on September 12. The trial court ruled against the defendant, finding that the July 14 continuance — which had been granted at defense attorney’s request — was a delay attributable to the defendant, thereby tolling the running of the 120-day period until the cause was set for trial. Since the cause had been set for September 12, and the parties were presently prepared to go to trial, the running of the period had been tolled until the current date and no 120-day violation had occurred. Following this hearing, the trial was had on stipulations, the defendant was found guilty of the offenses charged and was later sentenced.

From this scenario it is clear that the July 14 continuance is the tincture which colors McGuire’s trek along the trial trail. If the continuance was properly attributed to McGuire, it effectively tolled the running of the 120-day speedy-trial provisions of the Code of Criminal Procedure.

Defendant urges that we must reverse the decision of the trial court based on the reasoning of the courts in People v. McKinney (1978), 59 Ill. App. 3d 536, 375 N.E.2d 854, and People v. Collum (1981), 98 Ill. App. 3d 385, 424 N.E.2d 440. In both McKinney and Collum, the Appellate Court of Illinois, Fifth District, developed a doctrine whereby delays occasioned by the withdrawal of defense counsel, based on that counsel’s perceived conflict of interest, but not at the behest of the defendant, are not charged to the defendant, unless the withdrawal was made under circumstances from which it may be inferred that the defendant acquiesced in the delay, or in situations where the withdrawal was followed by a request that the defendant’s attorney be given additional time to prepare for trial.

While we do not pass on the merits of this doctrine, we find that under the facts of this case, McGuire acquiesced in the delay caused by the withdrawal of his attorney. Shortly after his arrest and indictment in May, the defendant and his two codefendants were represented by the Champaign County Public Defender’s office. The cause was set for trial July 18. Just five days prior to trial, the public defender appeared and moved to withdraw based on a perceived conflict of interest. New counsel was appointed immediately. However, the appointment was just four days before the trial date. It seems patently clear that the newly appointed counsel could not possibly prepare adequately to conduct a proper defense when being appointed only four days before a trial. The record supports the view that he had never spoken with the defendant prior to his appointment nor had he seen any of the discovery materials. Faced with this situation, the court granted the new defense attorney’s motion for a continuance and eventually scheduled the trial for September 12.

We note in passing that the State was prepared to go to trial at all times and actively opposed all attempts at delaying the trial.

Under these circumstances we feel that defendant was bound by the action of his attorneys. The record shows that McGuire’s first appointed attorney withdrew from the case after consulting with him. Yet, the defendant, who was conversant in spoken English, said nothing in open court when his counsel withdrew and his new counsel was appointed. McGuire’s silence is pregnant in that the court at the time of the withdrawal specifically addressed the speedy-trial problem and yet McGuire said nothing. Under these circumstances, we find that the defendant — though silent — acquiesced in the withdrawal of his counsel and the ensuing delay.

Support for this view is found in People v. Eason (1976), 44 Ill. App. 3d 308, 357 N.E.2d 1191. There, the court held that under Illinois law it is clear that a delay occasioned by the withdrawal of counsel to which a defendant acquiesces may be chargeable to the defendant, thereby tolling the running of the 120-day period. Eason cited People v. Johnson (1970), 45 Ill. 2d 38, 257 N.E.2d 3, for the proposition that where a defendant fails to object to the withdrawal of his counsel, or a continuance necessitated by the withdrawal, he may be found to have acquiesced in the delay resulting from the continuance.

Here, the trial court, at the motion for discharge, ruled against the defendant based on the fact that he acquiesced in the delay resulting from the withdrawal of his attorney. We will affirm the decision of the trial court unless it amounts to an abuse of discretion. (People v. Keagbine (1979), 77 Ill. App. 3d 1039, 396 N.E.2d 1341.) Since the record reflects adequate information from which the court could have found that the continuance granted on July 14 was properly chargeable to the defendant, and that he acquiesced in the face of likely delay, we affirm the decision denying McGuire’s motion for discharge.

Affirmed.

TRAPP and WEBBER, JJ., concur.


author: JUSTICE DOWNING

text:
    STEWART L. GRILL et al., Plaintiffs-Appellees, v. ROY ADAMS et al., Defendants-Appellants.
    First District (2nd Division)
    No. 83 — 285
    Opinion filed May 1, 1984.

      Wayland B. Cedarquist and Stanley K. Feinberg, both of Boodell, Sears, Sugrue, Giambalvo & Crowley, of Chicago, for appellants.
    Daniel C'. Meenan, Barbara J. Vrdolyak, and Nancy M. Barrett, all of Feiwell, Galper & Lasky, Ltd., of Chicago, for appellees.
   JUSTICE DOWNING

delivered the opinion of the court:

In this action involving a real estate sales contract, the trial court ordered defendants to specifically perform a contract for the sale of their 69% interest in certain real estate and to pay damages based on the value of the remaining fractional interest not owned by them. Defendants contend that: (1) the judgment for specific performance is contrary to law and to the manifest weight of the evidence; and (2) the judgment for money damages is contrary to general principles of law, contrary to the manifest weight of the evidence and is grossly inequitable because: (a) it was a term of the contract that only 69% of the real property interest was being sold; (b) plaintiffs waived the requirement that the 31% interest be conveyed; and (c) plaintiffs’ failure to mitigate damages barred recovery of a money judgment.

Defendants Roy, Bruce and William Adams, who are brothers, own a 68.993% (hereinafter referred to as 69%) interest in the Pelouze Building, located at 230 East Ohio Street in Chicago. They hold their interest as beneficiaries of Land Trust No. 30313 at American National Bank. The brothers, who are businessmen, do not reside in Illinois. The office building, currently valued at $1.6 million, is fully occupied with business tenants. The remaining 31.007% (hereinafter 31%) interest is owned by Harris Bank, as trustee for the will of Helen T. Pelouze.

In the spring of 1977, defendants discussed selling the property. Bruce, a California resident, through the suggestion of a local real estate broker, John Martin, became interested in tax-deferred transactions under Interal Revenue Code section 1031. Martin prepared a listing agreement for the real estate at the price of $795,000, dated April 12, 1978, which stated that the deal was to be a 1031 exchange. Only defendants were identified as the owners and so signed the agreement. Both Roy and Bruce testified that Martin was informed of the split ownership and that they assumed Martin would obtain the Harris’ signature on the listing agreement. Martin contacted a Chicago broker from Arthur Rubloff and Company about the property.

Plaintiffs are Stewart L. Grill, a real estate developer and investor since 1958, and Stuart M. Kaplan, a real estate broker for over 20 years. Plaintiffs were introduced to the transaction by the Rubloff representative. Shortly after expressing an interest, they inspected the property and received the rent roll. Thereafter, their attorney prepared a written offer, dated September 27, 1978, to purchase the parcel for $700,000. The rider attached to the offer referred to the exchange feature of the sale.

A counteroffer prepared by broker Martin at Bruce’s direction and dated October 14, contained two alterations to the offer. The purchase price was increased to $775,000 and the following language was inserted:

“This transaction [is] to be a 1031 Tax Deferred exchange into properties not located in the State of Elinois with closing on or before 1/15/79. Should the up property [the exchange property] not be located by this date it is agreed to extend the closing date in order for the owners of the office building to effect the exchange.”

Plaintiffs signed the counteroffer on October 20 and Bruce acknowledged the sellers’ acceptance on October 31, 1978. Plaintiffs deposited $35,000 earnest money into escrow and thereafter took steps to secure financing. They also actively participated in the management of the property in accordance with the contact provision that sellers could not make major changes or lease renewals without plaintiffs’ approval.

Martin wrote to James Andras, a trust officer handling the Pelouze Trust at Harris Bank, on November 11, 1978, to inform him of defendants’ intent to sell the property and that the purchase price of $775,000 included the amount which would represent the value of the Harris’ 31% ownership. Roy contacted the beneficiary of the trust in December of 1978 in order to attempt to gain her cooperation.

Kaplan and Grill testified that they did not know precisely when they learned of the complete ownership, but both thought it was after the contract signing. On cross-examination, however, Kaplan stated that he couldn’t recall if it was before or after the contract signing. The listing agreement, the offer to purchase, and the counteroffer all indicate that defendants owned the property and no mention was made of Harris Bank.

Kaplan testified that at the time the contract was executed, defendants were interested in a particular exchange property, but it was not until September 15, 1979, that the parties entered into an exchange agreement involving the Reatta Shopping Center near Houston, Texas. In this document, Harris was identified as one of the title holders to the property, and defendants declared that they had secured a written proposal from Harris to sell its proportionate share in the Pelouze Building for $240,000. Kaplan stated that the parties worked out an understanding with Harris wherein plaintiffs would increase the sales price and the brokers would reduce their fees so that Harris obtained the sum of money it desired for its interest. The exchange amount reflected a new sales price of $779,705. Harris was not a party to the exchange agreement.

Defendants testified they understood that the current mortgage on the Reatta property was assumable at the rate of 93/4%. Thereafter defendants were notified by the Reatta lender that the loan could not be assumed and the new interest rate would be 12%. Defendants testified that they then explored other methods of financing, but none were feasible. The Reatta exchange contract was therefore abandoned. The exchange agreement provided that in the event that the mortgagee and/or note holder changed the terms and conditions of the note, defendants had the right to terminate the contract.

The only specification placed on the exchange property by defendants in the original contract was that it not be Illinois property. Roy testified that after the Reatta deal fell through, he continued to review paperwork on additional properties, but that because of the interest climate at the time, “there was absolutely nothing that fit the perameters [sic].” He further stated that rising interest rates stopped the Reatta deal “and any other deal that came down the line.” Roy and Bruce testified that Martin continued to send them profiles of possible exchange properties through 1980. Kaplan stated he sent listings to defendants’ attorney, although he wasn’t sure if it was before or after Reatta, and a Houston broker also continued to submit prospects to defendants through the summer of 1980.

Plaintiffs filed this lawsuit in August 1980 requesting that the court direct defendants to specifically perform the contract by conveying “100 percent of the beneficial interest” in American National Bank Trust No. 30313 (count I); and, that the court enter judgment in an amount in excess of $800,000 for damages which plaintiffs suffered as a result of defendants’ conduct (count II). After the suit was initiated, defendants notified plaintiffs that they had terminated the agreement.

Following a bench trial, judgment was entered on behalf of plaintiffs based upon the court’s findings that: plaintiffs did not know of defendants’ lack of total ownership in the property prior to the execution of the real estate contract; defendants failed to exercise reasonable efforts to find an exchange property; plaintiffs have fully performed their obligations under the contract; and defendants, by their conduct, waived their right to select and tender an exchange property. The court held that the contract was valid and specifically enforceable to the extent that defendants own the property, and therefore defendants were ordered to convey their interest in the property to plaintiffs and, further, to pay the amount of $225,907.75, plus costs. The amount of damages was computed to be the pro-rata difference between the present market value of the remaining 31% interest in the property and the portion of the purchase price attributable to that percentage. Defendants now appeal from that judgment.

I

Defendants contend that the trial court’s judgment for specific performance is contrary to law and to the manifest weight of the evidence. The offer to purchase, drafted by plaintiffs, contained the language that “if seller cannot close by December 1, 1978 because it is attempting to effect an exchange of properties, then closing shall occur on March 1, 1979. Purchaser reserves the right to effect an exchange at closing.” The counteroffer, drafted by defendants, stated only that the exchange property not be situated in Illinois and that if such property was not located by January 15, 1979, it was agreed that the closing date be extended so that the sellers could effect the exchange.

The parties and the trial court characterized the location and designation of the exchange property as a condition precedent of the contract. A condition precedent “must be performed before a contract becomes effective or *'** is to be performed by one party to an existing contract before the other party is obligated to perform [citation].” (In re Estate of Albrecht (1975), 27 Ill. App. 3d 839, 841, 327 N.E.2d 317.) If the condition is not satisfied, the obligations of the parties end. (Lyntel Products, Inc. v. Alcan Aluminium Corp. (1981), 107 Ill. App. 3d 176, 180, 437 N.E.2d 653; see J. Calamari & J. Perillo, Contracts sec. 11 — 3, at 384 (2d ed. 1977).) Defendants reason that because no suitable exchange property was found, further contractual obligations were discharged, and cite John J. Calnan Co. v. Talsma Builders, Inc. (1979), 77 Ill. App. 3d 221, 395 N.E.2d 1076. In that case, a plumbing subcontractor brought suit against the general contractor for rescission of a contract which imposed a condition precedent upon the sub which he never performed. The court noted that because of the sub’s failure to comply with the condition, the general’s duty to pay him never ripened. 77 Ill. App. 3d 221, 225.

In the instant case, defendants are attempting to use their own noncompliance with a condition, inserted into the contract for their benefit, as the justification for concluding that the parties’ contractual duties never ripened. This condition, however, was in the sole control of defendants. The only requirement which they placed in the contract regarding the exchange property was that it could not be located in Illinois. An examination of the record reveals that defendants’ main concern, and their reason for not obtaining a suitable property, was the increasing rate of interest. Therefore, the conclusions by the trial court that defendants did not use reasonable efforts to secure an exchange property was not against the weight of the evidence. It is true the exchange agreement for the Reatta property was conditioned upon the defendants’ ability to finance the purchase on a mortgage with a 93k% rate of interest. The fact that the lender demanded 12% would justify defendants in not proceeding with the Reatta exchange agreement. However, that development did not invalidate the parties’ agreement or defendants’ duty to use reasonable efforts to locate other exchange property. Further, as discussed below, the trial court’s conclusions were not contrary to law.

Where the obligation of one party is subject to the occurrence of a condition precedent, the duty of good faith and fair dealing is imposed upon that party (Restatement (Second) of Contracts sec. 205, Explanatory Notes to sec. 245, comment a, at 258 (1981).) A party cannot take advantage of his own conduct and claim that failure of the fulfillment of a condition therefore defeats his liability. (Yale Development Co. v. Oak Park Trust & Savings Bank (1975), 26 Ill. App. 3d 1015, 1020, 325 N.E.2d 418.) When a condition attached to a contract is waived by the parties’ conduct, performance of the duty that was originally subject to its occurrence then becomes due. (Restatement (Second) of Contracts sec. 245 (1981).) Applying these principles to defendants’ conduct in the case at hand, we conclude that the trial court’s ruling was not contrary to law. We further note that the remedy of specific performance is appropriate for the portion of a contract which provides for an exchange of properties. (Yonan v. Oak Park Federal Savings & Loan Association (1975), 27 Ill. App. 3d 967, 975, 326 N.E.2d 773, appeal denied (1975), 60 Ill. 2d 602.) The grant of this relief rests in the sound discretion of the trial court and is to be determined from the facts and circumstances of each particular case. (Bailey v. Meador (1980), 91 Ill. App. 3d 143, 147, 414 N.E.2d 279.) We find no error in the trial court’s action.

II

Defendants next argue that the trial court’s judgment in favor of plaintiffs for money damages in the amount of $225,907.75 is contrary to general principles of law, contrary to the manifest weight of the evidence, and is grossly inequitable for the reasons specified below.

Initially, defendants contend that all plaintiffs sought in this litigation was title to the 69% interest in the property which defendants own. Defendants note that no mention was made anywhere in the pleadings of the 31% interest owned by Harris. This lawsuit, however, was solely initiated against the Adams brothers, who were the only parties contractually obligated to plaintiffs. Specific performance could not be obtained against defendants for that property interest which they did not own. Therefore, plaintiffs’ request for money damages for the portion defendants could not convey was proper.

Defendants also complain that count II of plaintiffs’ second amended complaint only requests damages in the event that specific performance was denied. There' is no indication in the complaint that plaintiffs intended the two remedies to be mutually exclusive; rather, plaintiffs were requesting both specific performance and damages against defendants. This request was proper, as it has been recognized by Illinois courts that a purchaser who “entered into the contract in ignorance of the vendor’s incapacity to give him the whole *** is generally entitled to have the contract specifically performed so far as the vendor is able, and to have an abatement out of the purchase money for any deficiency in title, quantity or quality of the estate. This rule applies *** in [the] case where the vendor holds an aliquot part of the land agreed to be conveyed and has contracted to convey the whole.” (Baker v. Puffer (1921), 299 Ill. 486, 492, 132 N.E. 429; see also Schiro v. W. E. Gould & Co. (1960), 18 Ill. 2d 538, 546, 165 N.E .2d 286; 5A Corbin on Contracts sec. 1160, at 188 (1964).) We note that, as one case has suggested, because an order of specific performance in effect erases the breach of contract, the money award being sought should really be considered as equitable compensation in the nature of an accounting between the parties rather than as legal damages. (Arnold v. Leahy Home Building Co. (1981), 95 Ill. App. 3d 501, 509, 420 N.E .2d 699.) Whether the relief sought is termed as damages, equitable compensation, or an abatement of the purchase price, we conclude that plaintiffs were justified in seeking this remedy.

A

Defendants argue that plaintiffs knew that the Adams brothers were only selling 69% of the interest in the Pelouze Building and that this was a term of the contract. The record does not support this conclusion. Our review of the negotiations leading to the execution of the original sales contract leads us to conclude that plaintiffs believed that defendants were going to convey to them title to the entire real estate. The contract language does not indicate a contrary intention. Throughout the negotiations, even after it was clear that plaintiffs knew of the fractional ownership, the parties’ behavior indicates that the original sales offer included 100% of the property interest in the building. (For example, Martin’s letter to Harris one month after the contract signing stated that defendants intended to purchase the Harris’ share and that the $775,000 purchase price was for the entire building.)

In Illinois, the grantor of real estate need not have title to the property at the time the contract is made; it is the promise to convey title which is the basis of the contract. (Crum v. Krol (1981), 99 Ill. App. 3d 651, 656, 425 N.E.2d 1081.) Therefore, defendants’ promise to convey title to the entire real estate forms the basis of the contract and the trial court’s order reflecting this obligation was correct.

B

Defendants further contend that evidence in the record shows that even if the contract did obligate them to convey the Harris’ interest, plaintiffs waived this requirement. Defendants reason that because the exchange agreement specifically provided for the conveyance of the Harris portion, once that agreement was abandoned defendants were no longer bound to deed Harris’ share.

We do not agree with this interpretation of the facts. By entering into the exchange agreement, the parties did not void their underlying contractual obligations arising from the sale contract, a position admitted by Roy at trial. (See Rigdon v. Shirk (1889), 127 Ill. 411, 416-18, 19 N.E. 698.) Defendants have cited no authority in support of their contention and we find no merit to it.

C

Lastly, defendants attempt to convince this court that the judgment rendered by the trial court was erroneous because plaintiffs did not, on their own, attempt to purchase the Harris’ 31% interest, and thus the money judgment should be barred for failure to mitigate damages. We do not agree.

Under the theory of mitigation of damages, an injured party is not allowed to recover from a wrongdoer those damages which the party should have foreseen and “could have avoided without undue risk, burden or humiliation.” (Restatement (Second) of Contracts sec. 350(1) (1981); see also J. Calamari & J. Perillo, Contracts sec. 14-15, at 538 (2d ed. 1977).) In this case, plaintiffs never had a contractual duty to obtain Harris’ cooperation and no duty to do so should be imposed on them. Under such circumstances, they should not be penalized for failing to attempt to purchase the 31% interest. Plaintiffs were therefore not barred from money damages (also called equitable compensation or an abatement of the purchase price) under this theory.

For the reasons stated above, the judgment of the circuit court of Cook County is hereby affirmed.

Affirmed.

STAMOS and PERLIN, JJ., concur.

      A third issue, whether the judgment for specific performance is so inconsistent and vague as to be unenforceable, is listed in the “Issues Presented for Review” section of defendants’ brief, but is not covered in the “Argument” section. We therefore do not address it. 87 Ill. 2d R. 341(e)(7).