text:
      In re Estate of Viola Armstrong, Deceased—(Warren Peters, Exr. of the Estate of Viola Armstrong, Deceased, Petitioner-Appellee, v. Minnie Mesttnsek et al., Objectors-Appellants.)
    (No. 11921;
    Fourth District —
    August 1, 1973.
    Herrick, Rudasill & Moss, of Clinton, (Ray Moss, of counsel,) for appellants.
    Warren Peters pro se.

   Mr. JUSTICE SMITH

delivered the opinion of the court:

Legatees under the Will of Viola Armstrong filed objections to the imposition of inheritance tax on 20 shares of AT&T stock and objections to the final report of the executor which awarded them only 20 shares of AT&T stock. Their attack upon both orders of the circuit court of Logan County is that they should have received 120 shares of said stock and should have been taxed for them. This assertion is based upon their contention, opposed by the executor, that it was clearly the intention of the testator that they should have additional stock resulting from a stock split of 40 shares and a second stock split of 60 shares.

Their objections to the tax assessment and to the final report were properly overruled.

The chronology of events is as follows. In 1956, the decedent purchased 20 shares of AT&T stock, evidenced by Certificate No. 013372. In 1958, she executed her Will in which she gave the above-numbered Certificate to A for life with remainder to John Mestinsek and Wilma Mestinsek, his wife. In 1959, a stock split resulted and the testatrix received an additional 40 shares represented by a new stock certificate. In 1964, there was another stock split whereby the testatrix received an additional 60 shares of stock evidenced by a third stock certificate. In 1965, the testatrix purchased an additional 50 shares evidenced by a fourth certificate. The objectors here claim no interest in this last 50 shares, but only in the shares which the testatrix received through stock splits of the original 20 shares. In 1970, the testatrix revoked the provision for the objectors here and in lieu thereof repeated the same proviso, word for word, except she substituted “Erma,” a sister of John for Wilma and following a semi-colon added, “And I give and bequeath the sum of $200 to Wilma Mestinsek and John Mestinsek, jointly, or to the survivor.”

It is the objectors’ theory that the stock splits having had their birth in the original certificate for 20 shares are part and parcel of a fractional ownership of the corporation which was unchanged by the stock splits and that therefore the objectors are entitled to the additional 100 shares. The law recognizes a situation of this character and in those instances where the split occurred after the Will is executed, but before the death of the testator and nothing is done by the testator, generally the legatee of the shares bequeathed in the Will receives the additional shares acquired as a result of the stock split. Allan v. National Bank of Austin, 19 Ill.App.2d 149, 153 N.E.2d 260.

In our judgment, Knight v. Bardwell, 32 Ill.2d 172, 205 N.E.2d 249, followed by this court in In re Estate of Raab, 132 Ill.App.2d 281, 268 N.E.2d 909, controls our disposition of this case. Both cases hold in essence that when a stock split occurs prior to the execution of the Will, the Will provision controls and the legatees take the number of shares specified and not additional shares derived from a stock split. This is predicated on the proposition that the law assumes that when a testator executes a codicil he reexamines his entire Will and makes whatever changes are necessary, so that the Will and codicil together express his intent as of the date of the execution of the codicil. In the case at bar, the only change in the two provisions was the substitution of “Erma”, a sister of John, instead of ‘Wilma”, the wife of John, and adding the $200 gift to Wilma and John. There is no ambiguity in the codicil and as we view the plain language of the codicil, none can be created by argument or otherwise. The same certificate number is used, the same 20 shares are used and there is simply nothing that indicates a different intention as to quantity of shares as of the date of the codicil different from the date of the original Will. As noted in the opinions above cited, if the testator had any other intentions, it is not disclosed by any fact in this record nor any language in the codicil itself nor does speculative argument of the reasons for the change alter plain language.

Accordingly, the order of the trial court overruling objections to the inheritance tax return and to the executors final report is affirmed.

Judgment affirmed.

CRAVEN, P. J., and SIMKINS, J., concur.


source: Caselaw Access Project

author: Mr. PRESIDING JUSTICE SMITH

license: Public Domain

text:
    The People ex rel. Empress Farms, Inc., Relator-Appellant, v. The United States Trotting Association, Defendant-Appellee.
    (No. 11991;
    Fourth District —
    August 1, 1973.
    Giffin, Winning, Lindner, Newkirk & Cohen, of Springfield, (Herman G. Bodewes, of counsel,) for appellant.
    Drach, Terrell & Deffenbaugh, of Springfield, for appellee.
   Mr. PRESIDING JUSTICE SMITH

delivered the opinion of the court:

This is an epilogue to an opinion which became final on denial of leave to appeal by the supreme court. (1 Ill.App.3d 147, 273 N.E.2d 61.) Our mandate was filed in the trial court on February 8, 1972. In that case, the trial court had directed the Trotting Association to return the winner’s purse to the Illinois Director of Agriculture and directed him to deliver the purse to Empress Farms.

Upon redocketing in the trial court, the Trotting Association did not comply with the mandate of this court. Empress Farms filed its motion for judgment on the appeal bond requesting judgment in the amount, interest and costs. The amount of the judgment is $14,883 and the cost $56. At the hearing on the motion, the judgment amount and cost were paid in open court on April 21, 1972. This tender was accepted by the plaintiff “subject to any right of interest accruing from July 9, 1969”. It is the defendant’s position that no interest is due in this mandamus proceedings for the reason that interest on judgment is purely statutory and did not exist at common law (Pinkstaff v. Pennsylvania R.R. Co., 31 Ill.2d 518, 202 N.E.2d 512), and that a judgment in mandamus is not included within the terms of our statute allowing interest “when a judgment is entered upon any award, report or verdict.” (Ill. Rev. Stat. 1971, ch. 74, par. 3.) It is the position of Empress Farms that the $14,883 was a purse provided for the winner of a race at the Illinois State Fair in 1965, that the Illinois Secretary of Agriculture had received the fund and delivered it to the United States Trotting Association when a dispute arose over the winner of the race. The trial court directed the Trotting Association to deliver that fund to the Illinois Director of Agriculture and he, in turn, deliver it to Empress Farms. Upon the entry of the trial court’s order in the mandamus proceedings, the defendant had the option of either paying 6% per annum under the judgment statute or of tendering the payment of the judgment into court along with the cost. This would have been without prejudice to the right to the appeal which they took. Instead the Trotting Association furnished a bond which read in part: “We jointly and severally agree to pay to the above judgment creditor any part of a judgment which is not reserved, and interest, damages and cost.” (Emphasis supplied.) Instead the Trotting Association prosecuted its appeal and had the use and benefit of this “purse” during the course of that appeal. The Trotting Association likewise could have recused itself from any further litigation by delivering the purse as required by the court order to the Illinois Director of Agriculture for appropriate disposition by him. It should be here noted that he did not join in the first appeal.

In Tracey v. Shamley, 311 Ill.App. 529, 36 N.E.2d 753, interest is defined as follows: “Interest is defined to be the compensation which is paid by debtor to his creditor in recompense for his detention”. While we readily concede that normally the judgment statute refers to a specified sum which the creditor recovers from the debtor and if unpaid is followed by execution, the stark naked fact remains that in this man-damns proceedings it was the judgment of the court that the Trotting Association deliver to the Illinois Director of Agriculture a specified sum of money. The question of interest in mandamus proceedings is discussed in 73 A.L.R.2d at p. 923. In a case there noted, the writ of mandamus was itself a complete remedy and “gave the party all he was entitled to, and therefore it could not be said that he was entitled to damages other than the amount of interest as above indicated”. A Montana court took a different view and held that interest on unpaid warrants was no part of a mandamus suit. In the case at bar, we find some difficulty in drawing any distinction of substance between an order of the court directing a defendant to pay a third party a specified sum of money and a money judgment directing that A have and recover from B the sum of x-dollars and have execution therefor. The terms used in our judgment statute are sufficiently broad to cover the payment of interest in a mandamus suit which requires the delivery of a specified sum.

In addition, the Trotting Association on their first appeal presented a bond stating that it “agreed to pay to the above judgment creditor any part of the judgment which is not reserved, and interest, damages and cost.” “One who signs a bond and therefore obtains benefits therefrom is estopped to deny its binding obligation and the truth of the recitals therein and this rule applies to the surety of a bond as well as the principal * * *.” The general rule is applicable to a bond given on appeal or other review where such bond secures a stay of a judgment or a decree. Where a judgment is recited in an appeal bond the parties are estopped from questioning the judgment either as to its existence or its validity. (I. L. P. 18, Estoppel, par. 6; Moses v. Royal Indemnity Co. 276 Ill. 177, 114 N.E. 554.) The defendant obtained through the appeal bond a stay of enforcement of a mandamus writ. Under the decisions above recited, the defendant is obligated to pay interest from the date of the original judgment in the trial court to the date of its tender of the $14,883 and cost. The order of the trial court denying such interest is in error.

Accordingly, the judgment of the trial court is reversed and the cause remanded to that court with directions to enter judgment in accordance with the views herein expressed.

Reversed and remanded.

TRAPP and SIMKINS, JJ., concur.


author: Mr. JUSTICE SIMKINS

text:
    Horace Mann Insurance Company, Plaintiff-Appellant, v. Birdie Brown et al., Defendants-Appellees.
    (No. 11997;
    Fourth District —
    August 1, 1973.
    Jack E. Horsley and Richard F. Record, Jr., of Craig & Craig, of Mattoon, for appellant.
    Arthur Kreisman, of St. Louis, and Royce B. Sheppard, of East St. Louis, for appellees.
   Mr. JUSTICE SIMKINS

delivered the opinion of the court:

The plaintiff sought a declaratory judgment, claiming that an automobile libility insurance policy issued by plaintiff to defendant was not in effect on October 7, 1968, when defendant was involved in an automobile collision. The trial court, sitting without a jury, found that the insurance policy was still in force at the time of the accident.

A chronological summary of the events involving the insurance policy is necessary. Sometime in early March, 1968, plaintiff issued two automobile liability insurance policies to defendant Lewis: No. 218794-FA, covering a 1966 Buick, with a premium of $62.30, and No. 218795-FA, covering a 1965 Mustang, having a premium of $66.10. The total premium paid by defendant Lewis was $128.40 for six months’ coverage, beginning March 18, 1968.

On July 31, 1968, plaintiff had not yet sent any notice for the next premium for the period commencing September 18, but defendant anticipated being away on vacation when such payment would be due so; wishing to continue both policies, defendant prepared two checks totalling $128.40, payable to the plaintiff and mailed them to the plaintiff. Defendant’s name and address were on the envelope but no explanation as to what the payment was to be applied was included with the checks which were received by plaintiff on August 2, 1968.

The plaintiff’s sole witness, its underwriting manager, testified that pursuant to an unvarying company policy, a notice was sent to the defendant no later than August 18, 1968 (30 days prior to the premium due date) which notice would state:

“NOTICE of automobile insurance premium. This is the only notice you will receive prior to date premium is due. Receipt is sent upon request only. * * * This premium must be paid before date shown or policy lapses 12:01 a.m. date shown.”

The plaintiff’s records indicate that the premiums for defendant’s policies due on September 18, 1968 were $78.60 for the policy covering the Buick and $84.40 for the other policy, for a total of $163.00. The underwriting manager could not testify from his personal knowledge that such a notice was sent to defendant Lewis. Lewis testified that he did not receive any notice which would alert him to the higher premium until September 26, and in an earlier deposition had stated that he did not remember ever receiving any premium notice. Plaintiff cashed the defendant’s two checks totalling $128.40, but on September 26, 1968, mailed their check for that amount to the defendant, along with the following letter:

“We are with regret forced to enclose our check for $128.40. This is a combination of the amount of two checks which you have sent to us. Our records reflect that we billed you for $84.40 renewal premium on policy 218795 and $78.60 renewal premium on policy 218794. So, as you can see, your checks totaling [sic] $128.40 are not sufficient to pay the policies in full and therefore must be considered partial payments. We cannot accept partial payments.
It is our suggestion that you immediately reissue a check or checks in the full amount to assure continuous coverage under your policies.”

The insurance company explained that the long delay was caused by a lack of explanation or premium notice with the checks received from the defendant. The underwriting manager said that by August 29, 1968 it was deduced that the defendant intended the $128.40 to be applied to his automobile liability insurance policies, but that the money was not returned until September 26 due to “just the normal amount of time required to process it after it had been identified.”

On the insurance company’s copy of the premium notice a pencil line was drawn through the date of September 18, 1968, and a pencil notation of “10/12” made and likewise the expiration date of March 18, 1969 was changed to “4/12”. That was explained by the underwriting manager as being made by a clerk in the underwriting department to indicate that if the defendant Lewis made payment by October 12, the company would consider reestablishing coverage.

The terms of the policy in regard to “Cancelation” reads:

“After this policy has been in effect for sixty days or, if the policy is a renewal, effective immediately, the company shall not exercise its right to cancel the insurance afforded under Part I unless:
1. The named insured fails to discharge when due any of his obligations in connection with the payment of premium for this policy or any installment thereof whether payable
directly or under any premium finance plan;
* # a
3. the insured violates any of the terms and conditions of the policy; or * *

Defendant Lewis, while driving the 1966 Buick insured under Policy No. 218794-FA, was involved in an accident with an automobile in which the defendants Brown were riding on October 7, 1968. Mr. Lewis was hospitalized. Mrs. Lewis testified that she notified the plaintiff by telephone of the accident the day after it occurred. Plaintiff made a number of objections to the testimony of the alleged telephone conversation, but plaintiff did not deny being notified of the accident promptly. On October 11, 1968, defendant Lewis mailed two money orders totalling $163.00 to the plaintiff who received them on October 12. Plaintiff returned these two money orders to defendant Lewis on November 27, 1968, along with a letter stating that:

“Enclosed are your two money orders in the amount of $163.00. Your automobile insurance policies lapsed September 18, 1968 for non-payment of premium, and no coverage has been provided trader said policies since that date.
We have been advised by your wife that you have been involved in an automobile accident. Please keep us advised of any developments which result as a consequence of this accident. Neither by requesting this, nor by anything else the Company has done, or may do, is it intended to infer that the policies were in effect at any time after they lapsed on September 18, 1968.”

The defendants Brown brought action against defendant Lewis for wrongful death and for personal injuries in a joint suit filed in St. Clair County. Plaintiff is defending Lewis in that suit under a reservation of rights and pending disposition of this appeal. The Sangamon County trial court found that the policy was in force at the time of the accident, based primarily upon a waiver of cancellation, citing Van Hulle v. State Farm Mutual Automobile Insurance Co., 44 Ill.2d 227, 254 N.E.2d 457.

Not only because the trial court strongly relied on it, but also because it is a recent statement by the Illinois Supreme Court on the issues involved in the instant case, Van Hulle will be analyzed extensively. In that case, Mr. Lax took out an insurance policy on his automobile on May 21, 1964. Six months later the policy lapsed for nonpayment of premium. Thereafter, an expiration notice was sent to Lax, and finally, because no premium was received, a lapse notice was sent on December 16, 1964, stating that the policy had lapsed but would be reinstated upon payment of the premium. No action was taken until January 13, 1965 when Mrs. Lax made out a check payable to State Farm in the amount of the premium and put it in an envelope addressed to State Farm. This envelope with the enclosed check was found in the wreckage of the automobile in which Mrs. Lax was killed on January 22, 1965. Mr. Lax found it and asked some friends to take it to the insurance agent and inform him of the accident. The friends did so, and the agent said he knew of the accident but could not accept the check. However, he advised them to send it to State Farm in Bloomington and have the company decide the matter. The friends sent the check and the lapse notice without further explanation. The next day the agent called the claim office of State Farm and advised the claim officer of the accident and the tendering of the check. On January 29, 1965 (seven days later), Mr. Lax told the agent that if his claim was not going to be covered he wanted the check returned. On February 11, 1965, the agent wrote a memorandum to State Farm briefly explaining the whole series of events and stated that he, the agent, had told Mr. Lax there was no coverage but felt a letter from the company so stating was desirable. On February 15, 1965, State Farm deposited Mr. Lax’s check and then on February 18, 1965, mailed Lax a refund check saying the policy could not be reinstated.

The Illinois Supreme Court cited many cases where waiver of forfeiture of an insurance policy was found where the insurer with knowledge of an intervening loss, accepted a premium tendered for the purpose of covering the loss. The court noted that the waiver generally is not express or intentional, but rather it is implied from the conduct of the insurer or its agents. In order to imply a waiver of lapse, the insurer must have knowledge of the intervening loss. In Van Hulle, it is clear that the insurance company had such knowledge.

The court discussed the fact that Mr. Lax had done business with State Farm for some time and had been late in paying the premium on numerous occasions, saying “These facts do not present a situation where a complete stranger was making a frivolous attempt to get coverage from an insurance company.” The court also noted that Mr. Lax gave notice of the accident and then stated that he wanted the money back if he was not covered — a good faith attempt to find out if he was covered. In response to State Farm’s argument that there had been no acceptance of the late premium, even though the check was cashed, the court cited a case to the effect that cashing a check is acceptance even though the amount is refunded and said: “* * * [A]t some point in the receiving, holding and disposing of a check, there must be an acceptance of it. The Lax check was received on January 26 and cleared the drawee bank 22 days later. Considering the elapse of 22 days and the eventual cashing of the check, we find these sufficient for acceptance, regardless of the fact that the insurer attempted to refund the premium.” Finally, in order to find a waiver, an intent to obtain retroactive coverage must be communicated to the insurer. The court added that it was clear the State Farm agent had notice on January 29, 1965, of the conditional tendering of the check.

As to the application of waiver, the Supreme Court quoted from Simmon v. Iowa Mutual Casualty Co., 3 Ill.2d 318, 322, 121 N.E.2d 509:

“‘Automobile insurance has taken an important position in the modem world. It is no longer a private contract merely between two parties. The greater part of litigation in our trial courts is concerned with claims arising out of property damage, personal injury or death caused by operation of motor vehicles. * * * Government and the general public have an understandable interest in the problem. Many persons injured and disabled from automobile accidents would become public charges were it not for financial assistance received from the insurance companies.’”

The court then recognized that “Forfeiture of an insurance contract for nonpayment of premium is not favored in the law, and courts are prompt to seize upon circumstances which indicate a waiver of forfeiture. [Citation] * *

A recent case urged as authority by Horace Mann, Harman v. House 9 Ill.App.3d 223, 292 N.E.2d 143, found in favor of Aetna Casualty Company and against the insured. In Harman, the policy issued on November 5, 1964, said with respect to the quarterly premium: 'If such premium is not paid when due, the policy shall terminate as of that date and such shaU be the end of the policy period.” This statement of a definite termination is much more unequivocal than the policy’s provision in the instant case. About 20 days before the due date of November 5, 1965, Aetna advised the defendant that the policy would be continued by payment on or before the due date and House failed to pay. Horace Maim urges that "[Tjhis equates with the advice the Plaintiff sent to its insured here approximately 30 days prior to the due date and, like the AETNA insured, # # the insured here failed to pay before the due date.” However, in the instant case, it is not established that Lewis was clearly warned beforehand as was House, and Horace Mann had raised the premium, otherwise the amount Lewis sent on July 31 would have sufficed to continue the policy. Also, Aetna’s notice, like the policy itself, seems to be much more definite and clear about termination if payment is not received by the due date than in the instant case. A factor clearly distinguishing the instant situation from that in Harman is that by sending the check for $128.40 early, Lewis showed an intent to continue coverage.

On November 29, 1965, House mailed Aetna a check for $68 but it was returned uncashed and Horace Mann contends that is just like the money orders in the instant case which were not only mailed in more than 12 days after the due date, but actually after the occurrence of the accident. However, Horace Mann held Lewis’s money orders for a much longer period of time — from October 11, 1968 to November 27 — as compared to Aetna’s keeping the check a much shorter time. In Harman, Aetna said the policy terminated for nonpayment. Harman contended that the cancellation notice was ambiguous and had to be construed against the insurer and also that an insurance policy cannot be cancelled after a loss has occurred as to affect the insured’s rights. The appellate court agreed with those theoretical principles, but referring to House’s failure to pay the proper premium within the authorized period of time, the appellate court held coverage was terminated when the insured failed to pay the proper premium by November 5, 1965, and reversed, entering judgment for Aetna Casualty.

Horace Mann then “inteipolates” the Harman holding to the facts of the instant case; however, there are many distinguishing factors between the two cases. Horace Mann equates the alleged premium notice of mid-August sent by Horace Mann to the “coverage memo” sent to House, but Aetna’s policy language was more unequivocal, the notice of termination was more definite, and Aetna never led House to believe that he was still covered. House’s premium was due on November 5 and he sent the check 24 days late on November 29. On December 1, Aetna had notified the finance company of the termination of coverage on November 5 with a December 13 date of termination regarding the interest of the lien holder. Aetna returned House’s check uncashed on December 14, which is 15 days after receipt, not lVz months as in the instant case. In Harman, the accident occurred December 8; the lien holder sent House a letter on December 10 advising that the insurance coverage would end on December 13. Aetna argued the policy terminated for nonpayment with House replying that the cancellation notice created an ambiguity by having different dates for the owner and the lien holder, and the policy could not be cancelled after a loss so as to affect the rights of the insured. However, there was no ambiguity in the policy or the notice sent to House. Aetna never led House to think that he was covered after the due date. In fact, House did not even know about the notice sent to the lien holder referring to a December 13 cutoff until after the accident, and in any event, both the policy and the notice sent to House were clear and consistent.

We believe that the instant case is clearly distinguishable from Harman on the facts and although Van Hulle is not squarely on point, its principles are controlling.

In Van Hulle the more common circumstances surrounding the problem are demonstrated. There the insured did nothing when the premium fell due, and thereafter the events (relevant to the issues of lapse, waiver of lapse and the ultimate issue of continuous or retroactive coverage) transpired, followed by loss and tender of premium. Here there are facts, circumstances and events, both preceding and following the due date of the premium and loss which must be weighed. In this case, Lewis clearly showed his intention to continue the policy by tendering payment more than lVz months before it was due and long before the accident by sending the amount which had been the previous premium on the two policies. There was no indication that Lewis could have been aware of the premium being raised at that time. Another factor is the plaintiff’s retention of the $128.40 premium payment for almost two months, eight days past the due date, thus leading Lewis to reasonably believe that the payment was accepted and the policy continued. However, subsequent to the due date, on September 26, the amount of $128.40 was sent to Lewis in the form of a Horace Mann check, rather than returning defendant’s checks, along with a statement explaining that it was being considered as a partial payment which could not be accepted and with a suggestion that defendant send a larger check to assure continuous coverage of the policy. In contrast to Harman, there was no direct statement that the policy had lapsed and that it might be reissued or reinstated, but rather an implication that the policy would remain in force continuously if a new check was sent.

These events occurring prior to the accident strengthen defendant Lewis’s .case. After the accident occurred on October 7, at which time Lewis had cashed plaintiff’s check for $128.40 but had not yet sent a check for the new $163.00 premium, Lewis’s wife stated that she notified plaintiff at their office in Springfield the day after the accident. There are objections to the wife’s testimony as to the conversation with an unidentified person, but it seems to have been satisfactorily established that plaintiff was notified of the accident shortly after it occurred. Thereafter, the more common series of events occurred with defendant sending money orders on October 11 for the higher premium of $163.00. Horace Mann returned the money orders, this time not its own check, Vfe months later on November 27, 1968, stating that no coverage had been provided since September 18 due to the lapse on nonpayment. That letter acknowledged that Mrs. Lewis had notified Horace Mann of the accident and asked for further information concerning the accident but denying liability.

As to plaintiffs objection to Lewis’s delay from September 26 to October 11 to send in the higher premium, it should be noted that that time is quite prompt as compared to the plaintiffs delay of almost 2 months in returning defendant’s original payment, and the IV2 months’ delay before returning the money orders for the second attempted payment.

Here, in simplest terms, we have either a party who intended to let his insurance policy lapse, and then attempted to continue it after incurring a loss; or on the other hand, an insurance company which was willing to accept a late payment for a new higher premium but then after the loss occurred, had second thoughts. The trial judge heard the testimony of the insurance company’s witness and of Lewis, and apparently believed Lewis. Lewis clearly indicated, IV2 months before the premium was due, his intention to continue the insurance policy and in good faith tendered the premium in the amount paid for the preceding period. That factor weighs strongly against the contention that he intended to let his policy lapse and then sought to renew it after having an accident. By keeping this payment until September 26 — almost 2 months — and past the date the new premium was due without any effort to apprise Lewis that the premium had been changed or that his tendered payment was insufficient, the insurance company led Lewis to reasonably assume that his premium was paid. Then plaintiff’s letter of September 26 refers to the $128.40 as a “partial payment” and suggests that a larger amount ($163.00) be sent immediately to assure continuous coverage. The record here does not estabMsh an unscrupulous purchaser deliberately permitting a policy lapse, and then endeavoring to secure retroactive continuous coverage following an accident. The plaintiff insurance company appeared very willing to continue the pohcy and accept late premium until the accident. Of course, it is very noteworthy that the new premium payment of $163.00 was sent by defendant Lewis on October 11, four days after the accident, and if plaintiff Horace Mann had immediately returned those money orders stating that the policy had terminated because of nonpayment, the case would be more difficult —balancing a prompt definite denial of liability against an earlier representation that sending the larger check would assure continuous coverage. However, the insurance company retained the money orders until November 27 — about IVz months — before returning same, stating that there had been no coverage since September 18, 1968.

Therefore, the trial court’s decision based upon Van Hulle, declaring that there was a waiver of the forfeiture for nonpayment of tire entire premium on the due date is supported by the manifest weight of the evidence: that being the insurance company’s knowledge of Lewis’s intent to continue coverage by the sending of the early, albeit insufficient, premium; the insúrance company’s keeping of that check for almost 2 months; its representation after the due date of the premium that continuous coverage would be assured by prompt payment of the larger premium; and, finally, the insurance company’s holding of that later $163.00 payment for IVz months before returning it and denying that there was coverage.

Affirmed.

SMITH, P. J., and TRAPP, J., concur.


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Charles Silagy, Defendant-Appellant.
    (No. 12147;
    Fourth District —
    August 1, 1973.
    John F. McNichols, Deputy Defender, of Springfield, (J. Daniel Stewart, of counsel,) for appellant.
    Richard J. Doyle, State’s Attorney, of Danville, (John R. McClory, First Assistant State’s Attorney, of counsel,) for the People.
   Mr. PRESIDING JUSTICE SMITH

delivered the opinion of the court:

The sole issue in this case is whether or not the Unified Code of Corrections (Ill. Rev. Stat., 1972 Supp., ch. 38, par. 1055 — 8—1), applies to the sentence imposed in this case and requires a remandment for an appropriate sentence under that statute. The question stated must be answered “yes” in both aspects.

Hie defendant was charged in a two-count indictment with rape and incest in connection with an August 26, 1972, incident involving his sister. He entered a plea of guilty to the charge of incest pursuant to a plea negotiation agreement in which the State agreed to dismiss the rape count of the indictment. Following a hearing in aggravation and mitigation on November 30, the court sentenced the defendant to a term of 6 to 10 years in the penitentiary. Notice of appeal was filed on December 14, 1972, and was thus pending on January 1, 1973 when the Code became effective.

It is the position of the People that the term “final adjudication” is a synonym for final judgment and that final judgment in a criminal case means a sentence. The difficulty with this interpretation is that par. 1008 — 2—4 of the Code provides: “If the offense being prosecuted has not reached the sentencing stage or a final adjudication, then for purposes of sentencing the sentences under this Act apply if they are less than under the prior law upon which the prosecution was commenced.” (Emphasis supplied.) In People v. Chupich, 53 Ill.2d 572, 295 N.E.2d 1, the court points out that the terms “sentencing stage” and “final adjudication” do not mean the same thing and that “the appellate courts have correctly held that the penalties provided in the Controlled Substances Act are applicable to cases pending upon direct appeal. The same result will follow under the Unified Code of Corrections.” This court has pursued a like course. People v. Mize, 9 Ill.App.3d 647, 292 N.E.2d 731; People v. Lobb, 9 Ill.App.3d 650, 292 N.E.2d 750.

Accordingly, the sentence imposed in this case is vacated and the cause is remanded to the circuit court of Vermilion County with directions to impose a sentence appropriate under the Code of Criminal Corrections.

Reversed and remanded with directions.

SIMONS and TRAPP, JJ., concur.


author: Mr. JUSTICE JONES

text:
    Norbert Butz et al., Plaintiffs-Appellees, v. Joseph Butz et al., Exrs. of the Estate of Eva Butz, Deceased, Defendants-Appellants.
    (No. 72-261;
    Fifth District —
    July 26, 1973.

      Rehearing denied August 17, 1973.

      W. E. Ackermain, of Turner, Holder & Ackermann, of Belleville; for appellants.
    Rogers D. Jones, of Jones, Ottesen & Fleming, of Belleville, for appellees.
   Mr. JUSTICE JONES

delivered the opinion of the court:

This is an appeal from a decree for specific performance of an agreement for the conveyance of farm land entered by the Circuit Court of St. Clair County in favor of the appellees.

On July 22, 1954, Eva Butz, a widow, owner of the land in question, entered into a ten-year written lease with plaintiffs-appellees Norbert Butz, her son, and Lucille, his wife. The term of the lease was from March 1, 1955 to March 1, 1905. It was entitled “Farm Lease With Option to Purchase,” and provided that the lessees should have an “option to renew said lease for an additional ten-year term upon the conditions, covenants, and restrictions hereinafter set forth.” The lease contained no provisions of any kind with regard either to the time or manner in which the option to renew should be exercised.

Paragraph 18 of the lease granted to the lessees “the exclusive right at their option for and during the period of the original term herein provided for or renewal thereof to purchase the demised premises for the sum of $25,595.” The option to purchase further provided that it should not be exercisable by the lessees during the lifetime of the lessor and “shall be exercised by the lessees during a period of two years from date of lessor’s death.” The lessees were required in case they exercised the option to serve written notice of such election upon the personal representative of the lessor. By terms of the lease the lessor bound her heirs, executors, administrators and assigns to effect the conveyance of the property to the lessees if the option were exercised.

On July 30, 1962, Eva Butz executed her last will and testament. Paragraph FIFTH of her will provided,

“Since I have entered into an agreement with my son NORBERT BUTZ for the sale of my farm located in Shiloh Valley Township, St. Clair County, Illinois to be performed within two years from my death, I direct that my Executors shall carry into effect the terms of said agreement should my son, NORBERT, desire to complete and comply with its terms * *

Paragraph SIXTH of her will required that in case of election to exercise his option to purchase,

“* * * then my son NORBERT, his heirs or assigns, shall pay the additional taxes imposed upon my estate by reason of the increased valuations and the refusal of the Internal Revenue Service and/or the State of Illinois to accept the valuation of said farmlands as determined in tire option agreement.”

Eva Butz died on December 13, 1967, at the age of 96 leaving as her heirs nine living children and children of one of the six of her children who had predeceased her. The will was duly admitted to probate on January 17, 1968, and sons Joseph and Henry Butz were named as executors. On September 30, 1968, notice that the appellees, Norbert Butz and Lucille Butz, had elected to exercise the option to purchase was served upon the executors. The executors refused to convey the property and the optionees commenced a suit for specific performance which resulted in the decree here on appeal. Following denial of a posttrial motion for rehearing, to vacate the decree or for judgment and decree in favor of the defendants, notice of appeal to this court was filed on September 5, 1972.

No question was raised at the trial court level about the validity of the lease or of the will. The issues presented to the trial court were: (1) Was the original lease renewed for another ten years effective March 1, 1965, and (2) were the provisions in the will regarding the option sufficient in law to sustain the right to an option even if the lease had expired. The trial court decided that the holding over by the lessees was sufficient to renew the lease for another ten years and hence keep the option alive. Having so decided the court granted specific performance, finding it unnecessary to discuss the second issue. The issues presented on appeal are the same as those presented to the trial court.

We disagree with the decision of the trial court that the holding over by the lessees under the circumstances present in this case was sufficient to renew the lease for an additional term but nevertheless affirm the judgment of the trial court upon different grounds.

When a lease contains an option to renew and expresses the conditions under which the option can be exercised there is little doubt that when a tenant fails to meet these conditions his right to possession terminates with the lease, and if he holds over and is accepted by the landlord he becomes a tenant from year to year. But when the lease creates an option to renew without stating how or when it is to be exercised, what is the position of the holdover tenant?

It is the appellants’ view that some overt act is required so the landlord will know whether or not the lease is being renewed, and that in the absence of such overt act the tenant who holds over becomes a tenant from year to year with only those provisions of the former lease pertaining to the rent and other matters essential to the farming of the land applicable to the tenancy from year to year. An option to purchase, for example, not pertaining to the rent or farming, would not carry over into the tenancy from year to year.

Several cases cited by the appellants (Clinton Wire Cloth Co. v. Gardner (1881), 99 Ill. 151; Goldsborough v. Gable (1892), 140 Ill. 269, 29 N.E. 722; Fitzgerald v. George J. Cooke Co. (1907), 133 Ill.App. 479; Besley v. Ridgely (1915), 195 Ill.App. 435) do not support their position since none of the cases contain an option to renew.

Appellees claim that since the lease was silent as to the mode of renewal by the lessees, the mere holding over renewed the lease for another ten-year term and the option to purchase was therefore continued. In support they cite Cusak v. The Gunning System (1903), 109 Ill.App. 588. In this case a lease contained the provision “* * * we hereby rent The Gunning System the north wall * * * for advertising purposes for a period of one (1) year from date, with the privilege of its renewing yearly on like terms.” But in that case the lessee did make an effort to renew. The lease expired on a Sunday; he appeared on Saturday (this was 1903) at the office of the lessor but the office was closed. On Monday, the next business day, he again appeared with his request for renewal. The court held this to be sufficient. In the instant case it should be noted there is no evidence of any attempt to renew. Appellees also cite Anderson v. Dodsworth (1920), 292 Ill. 335, 127 N.E. 43, in which the lease contained a provision that the “* * * lessee shall have the privilege of extending this lease on the same terms and conditions as herein expressed and at the same rental from year to year for the period of one, two, or three years from the first day of March 1915.” The lessee did not request an extension. The court expressed the view that since he failed to request an extension, it would be assumed that the lease was extended for the shorter period, namely one year. This conclusion of the court was not necessary since the lessee had held over for more than one year and had become a tenant from year to year, thus being entitled to the statutory notice period. Whether or not this notice period applied was a real issue in the case. Furthermore, the suit was between the holdover tenant and a new lessee and not between the landlord and his tenant.

Appellants cite section 12 of the Landlord and Tenant Act (Ill. Rev. Stat. 1971, ch. 80, sec. 12) which states that ‘When the tenancy is for a certain period, and the term expires by the terms of the lease, the tenant is then bound to surrender possession, and no notice to quit or demand of possession is necessary.” Appellants argue that since the lease was not renewed, it expired by its own terms and the landlord was then entitled to possession without notice. But since the tenants remained on the farm, were not dispossessed, and the landlord accepted rent, a tenancy for another year arose, under which the terms of the former lease do not apply except as they are applicable to the “new condition of things” under the new form of tenancy. In support of this view appellants cite several cases, including Bell v. Groom (1922), 224 Ill.App. 58 and Wanous v. Bolaco (1952), 412 Ill. 545, 107 N.E.2d 791. In the latter case there was an option to purchase which expired, the court said, when the original lease terminated and the tenant became a tenant from year to year.

Both the appellants and the appellees cite Vincent v. Laurent (1911), 165 Ill.App. 397 to support their views regarding renewal of the lease. The case involved a lease for five years with a provision that the lessee should “* * * have the refusal to release said premises for five years more at the same rate at the expiration of this lease.” The court in that case stated “Upon the examination of the cases cited by counsel we conclude the better doctrine to be where the lessee has an option to renew a lease, that he should notify the lesssor before the term expires whether he elects to renew, as the lessor should know when the term expires whether he has or has not a tenant.” (Emphasis supplied.) The court went on to say that if the option given the lessee is to “extend” rather than “renew” no notice is required and a mere holding over is sufficient to extend the lease.

Appellees argue that “renew” and “extend” should not be words of art, that there should be no distinction, and that though the term “renew” was used in the Butz lease, no notice was required and the holding over renewed the lease for another ten years with all of its provisions including that on the option to buy.

We accept the view of the Laurent case regarding renewal when a lease contains an option to renew and contains no statements regarding the time or method of renewal. It is to be noted that commencing with Prickett v. Ritter (1854), 16 Ill. 96, the courts of Illinois have sought to bring certainty into farm leasing agreements. That case is the foundation for the rule that when a farm tenant holds over after a lease for a term has expired or without any written lease ever having been executed, he becomes a tenant from year to year. At Common Law he was entitled to six months notice. Later the legislature changed the notice period to 60 days and still later, with respect to farm tenancies, it changed it to four months. (Ill. Rev. Stat., ch. 80, sec. 5.1.) Section 12 of the Landlord and Tenant Act also has as its objective the bringing of more certainty into farm lease agreements by eliminating arguments about the necessity of notice when a lease for a definite term expires.

We feel that for the benefit of both landlords and tenants this same certainty should exist in situations like that presented by the instant case where there is an option to renew a lease but no indication of how or when it is to be done. Whether the option is to renew or extend, failure of the tenant to give the lessor adequate notice prior to tire termination of the lease invokes the provisions of section 12 of the Landlord and Tenant Act giving the landlord the right to take possession without notice and that if the tenant does hold over into the next crop year, the landlord not having sought possession within a reasonable time, he becomes a tenant from year to year under conditions as expressed in Wanous v. Bolaco and Bell v. Groom. To hold otherwise would deprive the landlord of the benefit of section 12 of the Landlord and Tenant Act and would cast doubt on how he could regain possession if the tenant or his heirs or assigns remained on term after term without committing any breach of the lease. Though for some purposes there may be valid distinctions between “renew" and “extend,” for the purpose of altering the status of a “hold over” tenant who has given no notice to renew or extend, we see none.

What of the option to purchase granted in the original lease, is it carried over to become one of the terms of the new year to year tenancy?

In Bell v. Groom and Wanous v. Bolaco it was stated that only those provisions of the former lease which are “applicable to the new condition of things” will pertain to the ensuing tenancy from year to year. We interpret this to mean that the former lease is no longer effective as a contract but that its terms may be consulted in determining rent, costs, and essential duties of both landlord and tenant under the tenancy from year to year. Special provisions created by the lease agreement, such as an option to purchase, a promise to make some improvement or to give the tenant a bonus for high yields, having lapsed with the lease which was not renewed or extended, and not being essential to a determination of usual farm landlord-tenant rights and duties, would not be a part of the tenancy from year to year.

Accordingly, we hold that the lease in the instant case was not renewed, that the lessees became tenants from year to year in 1965, and that the option to purchase could no longer be exercised under the lease.

We turn now to the second issue: Does the language in the will of Eva Butz create an option to purchase exercisable after her death? Appellants argue that it does not. Paragraph FIFTH of Eva Butz’ will states: “Since I have entered into an agreement with my son NORBERT BUTZ for the sale of my farm located in Shiloh Valley Township, St. Clair County, Illinois to be performed within two years from my death, I direct that my Executors shall carry into effect the terms of said agreement should by son, NORBERT, desire to complete and comply with its terms * # *.” Appellants argue that it was not the intent of the testatrix to create a new right and that the expression “I direct that my Executors shall carry into effect the terms of said agreement should my son, NORBERT, desire to complete and comply with its terms * * °” refers to the lease and that since Norbert did not renew the lease there are no valid terms with which the executors need comply. We do not so interpret paragraph FIFTH. The whole reference is to the agreement regarding the sale of tibe farm, not the lease or any of its other terms. The language is mandatory, not precatory. Paragraph SIXTH of the will simply recognizes the fact that land continues to appreciate in value and that if when the option is exercised its value is greater than the $25,995 stated in the lease, the optionees rather than the estate should bear the expense of the death taxes.

That a will may incorporate by reference the provisions of other documents, whether or not those other documents are still operative, is well settled. (In re Meskimen's Estate (1968), 39 Ill.2d 415, 235 N.E.2d 619.) The tests for such incorporation are well expressed in Continental Ill. Nat. Bank & Trust Co. of Chicago v. Art Institute of Chicago (1950), 341 Ill.App. 624, 94 N.E.2d 602, where it is said: “The Illinois law has been laid down for us in a number of cases. It requires that the will should refer to the paper to be incorporated as being in existence at the time of the execution of the will in such a way as to reasonably identify the paper and to show the testator’s intention to incorporate and make it a part of his will, and the document must in fact be in existence at the time of the execution of the will.” In this case we find that a copy of the lease is in existence; it is a part of the record. It was in existence at the time of the execution of the will. The reference in the will is definite with respect to the portion of the document it incorporates. The intent of the testatrix is clear. If she had meant to condition the right of the optionees by requiring that the lease be renewed she could have so stated; or she could have omitted paragraph FIFTH from her will, since paragraph SIXTH imposes on the optionees the duty to pay death taxes.

The testatrix was not bound to give her children equal shares of her estate. (Daly v. Daly (1921), 299 Ill. 268, 132 N.E. 495.) Since she could have devised the farm in question to her son Norbert and his wife she could most certainly create an option in her will giving them the right to purchase it at less than market price. This she has done. In Stern v. Stern (1951), 410 Ill. 377, 102 N.E.2d 104, the court recognized the right to create an option to purchase by will, at less than real value, and stated that the court has a duty to search for language supporting the implication of a gift. In the instant case the intent, as expressed by the will of Eva Butz, is evident and the language is clear and mandatory.

For the foregoing reasons the decree of the trial court will be affirmed.

Affirmed.

EBERSPACHER, P. J., and CREBS, J., concur.


author: Mr. JUSTICE ABRAHAM SON

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. William Barker, Defendant-Appellant.
    (No. 72-94;
    Second District —
    July 17, 1973.

      Paul Bradley and Richard Wilson, both of Defender Project, of Elgin, for appellant.
    Jack Hoogasian, State’s Attorney, of Waukegan, James W. Jerz, of Model District State’s Attorneys Office, of counsel,) for the People.
   Mr. JUSTICE ABRAHAM SON

delivered the opinion of the court:

The defendant, William Barker, was indicted by a grand jury of Lake County on May 4, 1971, and charged with the offense of robbery in that he took a wallet and approximately $20 in cash from Lloyd LaFond by the use of force. The matter proceeded to trial in July of 1971 but resulted in a mistrial when the jury failed to return a verdict. A second trial took place in November of 1971 at which time a jury found Barker guilty as charged and he was sentenced to a term of from 2 to 4 years in the penitentiary. On appeal the defendant contends that he was not proved guilty beyond a reasonable doubt and that the trial court improperly refused to give his offered instructions on the weight to be afforded accomplice testimony.

Lloyd LaFond testified that about midnight on March 13, 1971, he left Lee’s Tap in Lake County where he had stopped for a beer. As he walked from the tavern, LaFond was hailed by the defendant from his car which was parked near the front of Lee’s. After a short conversation, Barker invited LaFond to get in the car and have a beer. LaFond got in the front seat from the right hand side and joined Barker and a “young fellow” seated between them. They discussed construction work for a few minutes and then Barker left saying he had to go to the washroom. LaFond continued to talk with the other occupant of the car until he was suddenly seized around the neck through the open car window and pulled out of the car and thrown on the ground. His assailant kicked him in the ribs, took his wallet, got into the car and drove off. LaFond saw only the pants of his assailant which, he testified, were green with a dark stripe. LaFond went home and was contacted shortly thereafter by the Zion police who asked if he had lost his wallet. LaFond went to the station where he identified Barker from his green pants with a dark stripe.

Michael Tobias testified for the state that he was 16 years old and was hitchhiking at approximately 6:30 P.M. on March 12 when he was picked up by Barker with whom he was not previously acquainted. Tobias contributed. $2 towards the purchase of a case of beer after he agreed to Barkers suggestion that they obtain something to drink. Barker then drove to a hospital to visit his wife where Tobias waited in the car for approximately one hour and drank about 5 bottles of the beer. After leaving the hospital, the two drove around Waukegan for another horn: and stopped at a bowling alley in Zion to # * see if we could get any money from anybody that we knew." They left the bowling alley when they did not find anyone, drove around a skating rink and stopped at AI’s Tap, located 50 feet from Lee’s Tap. They played the pinball machine at Al’s where Barker had a beer but where Tobias was refused service because of lack of proper identification. They returned to the car about 12:30 A.M. and drove the 50 feet to Lee’s Tap where Barker purchased a cold six-pack of beer since he had discarded the warm beer left in the original case. Barker returned with the beer to the car where he and Tobias sat and talked and drank the beer. Tobias testified further that LaFond then came out of Lee’s and came over to the car at the request of Barker. The two discussed construction work in the area and Barker invited LaFond to join them in the car for a can of beer. LaFond got in the front seat next to Tobias and they continued to discuss the job situation for a few minutes before Barker left the car to go to the washroom. Tobias and LaFond then conversed together until Tobias next saw Barker reach through the open window on the right side of the car and grab LaFond by the neck and drag him from the car. Barker told Tobias to take LaFond’s wallet but he did nothing since he was, in his words, "too scared”. Barker took the wallet, hit LaFond, who was on the ground, threw the wallet into the car, got in and drove off. They drove around for another 45 minutes and were ultimately stopped by the police.

Deputy Sheriff Perry Coleman testified for the defendant that he telephoned LaFond from the Zion police station on March 13, 1971, and asked him if he was missing a wallet. Coleman stated that he believed LaFond informed him that two subjects had taken his wallet at a parking lot of Al’s Tap. Coleman recalled that LaFond said that there were two subjects but that he was knocked to the ground and kicked by one of the subjects who wore blue and white striped pants. On cross examination Coleman testified that LaFond identified Barker at the police station as the man who was responsible for his injuries and took his wallet and that Tobias had nothing to do with it but was just an onlooker. He also said that Barker was wearing blue pants with white stripes.

Police officer Norman Lee also testified for the defense that he spoke to LaFond by telephone on March 13. Lee stated that LaFond told him that he was robbed by a large subject as he left Frenchie’s Tavern and that a small subject was also there but did not have contact with him. Lee also recalled that LaFond told him that the larger subject wore light colored pants.

The following instruction (being I.P.I. instruction 3.17) was offered by the defense and refused by the trial court:

“An accomplice witness is one who testifies that he was involved in the commission of a crime with the defendant. The testimony of an accomplice witness is subject to suspicion, and should be considered by you with caution. It should be carefully examined in light of the other evidence in the case.”

An accomplice has been described as one who knowingly, voluntarily and with a common interest with others participates in the commission of a crime. (People v. Coddington, 123 Ill.App.2d 351, 259 N.E.2d 382, 392.) The generally accepted test as to whether a witness is an accomplice is whether he could have been charged for the offense either as a principal or accessory. People v. Nowak, 45 Ill.2d 158, 258 N.E.2d 313, 318; People v. Hrdlicka, 344 Ill. 211, 222, 176 N.E. 308.

The trial court commented that it was certain that there was no accomplice involved in this case when the tendered instruction was refused. The record before us strongly supports that conclusion.

The defendant argues that the testimony of Tobias himself implies his participation in the crime. He points out that Tobias testified that he and Barker had, earlier in the evening, gone to a bowling alley to see if they could get money and that LaFond had first informed the two police officers that he was attacked by two persons. However, even a cursory examination of the record shows that his interpretation of this testimony is actually a distortion of it. Tobias testified that he and Barker went to the bowling lanes “* * * to see if we could get any money from anybody that we knew.” At the earlier trial, he had testified that they went to borrow money from friends. Surely his testimony was consistent on this point that he and Barker intended to borrow money from their acquaintances since a plot to rob an acquaintance would obviously be an absurdity. In addition, the testimony of the police officers was not that LaFond informed them that he was attacked by two persons but that two persons were present and that only one of them, identified as Barker, assaulted him and took his wallet. LaFond testified at the trial that Tobias remained in the car during the time he was dragged from it and robbed. Under the circumstances, the testimony of the 16 year old Tobias that he was too frightened to interfere is certainly capable of belief. We agree that there was no evidence that Tobias was an accomplice to the crime and that the accomplice instruction was properly refused.

The defendant also contends that the testimony of LaFond and Tobias (being the only 2 witnesses produced by the state) was insufficient to sustain his conviction. He points out that LaFond was able to identify his assailant only by the color of his pants and that his description of the pants was so confused and contradictory as to render that identification worthless. It was, of course, the function of the jury to consider any inconsistencies in the testimony of the witnesses and to generally assess their credibility. A court of review will not reverse a judgment of conviction unless there is a well founded and reasonable doubt of the guilt of the accused and the verdict is found to be palpably contrary to the weight of the evidence. (People v. Robinson, 14 Ill.2d 325, 153 N.E.2d 65.) The jury here not only had the testimony of La-Fond to consider but the positive and unequivocal identification of Barker by Michael Tobias. The law is clear that the testimony of one credible witness is sufficient to sustain a conviction. (People v. Novotny, 41 Ill.2d 401, 244 N.E.2d 182, 188.) In our opinion the evidence before the jury was sufficient to support their verdict and sustain the conviction of the defendant.

The defendant has also filed a motion for summary modification of sentence under the provisions of the new Unified Code of Corrections. (Ill. Rev. Stat. 1972, ch. 38, sec. 1001 — 1—1 et seq., effective Jan. 1, 1973.) Section 1008 — 2—4 of the Code provides that if the matter has not reached a “final adjudication” then the sentences under the Code are to be applied if they are less than under the prior law. It has been held that if there is a pending appeal the cause has not reached a “final adjudication” as defined in the Code. People v. McCloskey, 2 Ill.App.3d 892, 274 N.E.2d 358; People v. Keating, 2 Ill.App.3d 884, 274 N.E. 2d 362; People v. Chupich, 53 Ill.2d 572, 295 N.E.2d 1.

The penalty for robbery at the time that this prosecution was commenced was, and still is, a term of from 1 to 20 years in the penitentiary. (Ill. Rev. Stat. 1971, ch. 38, sec. 18 — 1(b).) The sentence for robbery under the Unified Code of Corrections also is a penitentiary term of from 1 to 20 years (as a class 2 felony) but the minimum term, in any event, may not exceed one-third of the maximum term actually imposed. (Ill. Rev. Stat. 1972, ch. 38, sec. 1005 — 8—1(c) and (3).) Although the sentence under the Code is not less than the possible sentence under the prior law, the minimum sentence actually imposed was greater than that provided by the procedural rules of the Code. Sentences have been modified under similar circumstances. People v. Harvey, 53 Ill.2d 585, 590, 294 N.E.2d 269, 272; People v. Gargano, 10 Ill.App.3d 957, 295 N.E.2d 342.

We therefore conclude that the sentence must be modified so that the minimum does not exceed one-third of the maximum or to a term of 1 year and 4 months to 4 years and the sentence is so modified.

Judgment of conviction affirmed, sentence modified.

GUILD, P. J., and T. MORAN, J., concur.


author: Mr. JUSTICE THOMAS J. MORAN

text:
    J. Armour et al., Plaintiffs-Appellants, v. Mechanics Universal Joint Division of Borg Warner Corporation, Defendant-Appellee.
    (No. 72-113;
    Second District —
    August 6, 1973.
    Roszkowski, Paddock & Johnson, of Rockford, for appellants.
    Reno, Zahm, Folgate & Skolrood, of Rockford, for appellee.
   Mr. JUSTICE THOMAS J. MORAN

delivered the opinion of the court:

Plaintiffs appeal from a summary judgment entered in favor of defendant. No material facts are at issue.

Plaintiffs, employees of defendant corporation, were members of International Union UAW, AFL-CIO, Local Number 225 (Union). Defendant and the Union entered into an agreement that provided in part for accident and sickness benefits for defendant’s employees. Plaintiffs received payments pursuant to the agreement but defendant reduced such payments by the amount of money paid to them under federal social security disability benefits. Plaintiffs filed a complaint alleging that these deductions were not authorized by the agreement and asked for a judgment totalling the amount of social security benefits deducted from their accident and sickness payments. Both parties moved for summary judgment and the judge granted defendant’s motion.

The agreement commences by stating that the terms, benefits, effective dates and amounts of contributions are set forth in Exhibit A. Article II, paragraph (a) of the Exhibit relates, in part:

“* * * Benefits payable for any period shall be reduced by any payments for time lost from work in that period to which the employee is entitled under any Workmen’s Compensation or Occupational Disease Law.”

It is plaintiffs’ position that Exhibit A controls the manner in-which benefits are paid and allows reduction of only workmen’s compensation or occupational disease law payments, not social security benefits.

Section 5 of the agreement provides:

“* ® * It is intended that the benefits provided for in this Agreement shall comply with and be in substitution for any provisions for similar benefits which are provided under any law now in effect or hereinafter in effect. If any insurance benefits of a similar nature to those provided for in this Agreement are required under any lato now in effect or hereinafter in effect and the insurance benefits provided for in this Agreement are not considered in substitution therefor, the insurance benefits provided for in this agreement shall be reduced by the amount of such benefit provided under such law and the contribution of the Company and the employees with respect to such benefits shall be proportionately reduced.” (Emphasis added.)

Plaintiffs argue that “insurance benefits of a similar nature * # * required under any law” applies only to benefits required by state law because: (1) the caption of section 5 states in part, “Integration with State Benefits” (emphasis added) and (2) the provisions of Exhibit A being more specific, take precedence over the general clauses of section 5. Plaintiffs bolster this argument by claiming that social security benefits are not “of a similar nature” to the benefits provided by the agreement.

Conversely, defendant argues that, under section 5, social security benefits are “of a similar nature”; that the caption does not control the contents of the clause and adds that section 10 of the agreement is dispositive of the issue, The last sentence of that section provides:

“* * * The terms of any contract or policy issued by an insurance company shall be controlling in all matters pertaining to benefits thereunder.”

We additionally note that section 4 of the contract has a provision similar to that of section 10, stating:

“The benefits provided for herein shall be provided through a self-insured plan or under group insurance policy or policies issued by an insurance company or insurance companies * * *. If these benefits are insured by an insurance company, all benefits are subject to the provisions of the policies between the Company and the insurance companies.” (Emphasis added.)

We find that the contract clearly establishes that policy provisions are controlling, and next look to the policy. Therein, a portion sets forth the determination of weekly accident and health insurance benefits and states:

“2. The amount of benefit otherwise payable under paragraph 1. above with respect to any full week of disability which lies entirely within a single calendar month shall be reduced by three-thirteenths of the amount of any benefit provided for the Employee under the Federal Social Security Act as amended, for the calendar month in which such week of disability occurs. The amount of benefit otherwise payable under paragraph 1 * * * shall be reduced, for each day of such period or such portion of a full week (excluding that day on which the Employee does not normally work), by one-sixth of the amount of reduction set forth in the preceding sentence * * *”

(Emphasis added.)

After reading the agreement as a whole, and in accordance with the foregoing, we find that social security deductions were properly made and the trial judge correctly allowed a summary judgment for defendant.

Judgment affirmed.

GUILD, P. J., and SEIDENFELD, J., concur.


author: Mr. PRESIDING JUSTICE GUILD

text:
    Fred E. Stone, Plaintiff-Appellee, v. The Board of Trustees of the Police Pension Fund of the City of Belvidere et al., Defendants-Appellants.
    (No. 72-185;
    Second District —
    August 7, 1973.
    Pedderson, Menzimer, Conde, Stoner, Ferolie & Spelman, of Rockford, for appellants.
    John A. Strom, of Belvidere, for appellee.
   Mr. PRESIDING JUSTICE GUILD

delivered the opinion of the court:

This is the third appeal from the circuit court of Boone County concerning plaintiff’s right to be reinstated to active duty on the Belvidere police force. The Police Pension Board, upon hearing, refused to reinstate plaintiff to active duty. The trial court held that the decision of defendant Board was against the manifest weight of the evidence. The Board appeals.

The background facts are adequately stated in People ex rel. Stone v. Wilson (1969), 111 Ill.App.2d 101, 102, 248 N.E.2d 826, and in People ex rel. Stone v. Whalen (1970), 129 Ill.App.2d 462, 463-4, 263 N.E.2d 365. In the latter appeal we held among other things that sections 3— 114, 3 — 115, and 3 — 116 of the Illinois Pension Code (Ill. Rev. Stat. 1967, ch. 108½, par. 3 — 114, 3 — 115, 3 — 116) make it mandatory, not directory, upon the defendant Board to hold a hearing and to determine whether or not plaintiffs disability had ceased. We reversed and remanded the cause for further proceedings.

Pursuant to the mandate of this court following that opinion and an order accordingly by the trial court, the defendant Board held a hearing at which evidence was received. Plaintiff testified and so did his personal physician, Dr. Wesley B. Oliver, who had been treating plaintiff for over 25 years. The defendant Board also received in evidence, statements from Dr. Paul E. Dee and Dr. Eugene T. Leonard, both of whom are orthopedic surgeons. All three doctors had examined plaintiff.

Dr. Oliver testified that he saw “no reason for any restriction of activity” after noting “a streak of calcium on both sides of the tendon line” in both of plaintiffs shoulders, which is “entirely asymptomatic” (i.e., without symptoms). Dr. Dee stated “I see no reason why this patient cannot carry out any activities that he desires to with the shoulders. I feel that he has no pathology at either shoulder at the present time.” Dr. Leonard’s report made no statement as to plaintiffs physical capability of performing the duties of a police officer but noted calcification in plaintiff’s right shoulder and changes of restriction of full motion in his right elbow.

Plaintiff testified that since 1966 or early in 1967 he has been employed full time as security officer for Ingersoll Milling Machine Company and, if reinstated as a police officer, is capable of handling any type of situation; that he has no physical disability or ailment and that since about March 15, 1967, has been ready to return to active duty as a police officer.

The defendant Board voted two to two (with the Plaintiff, a member of the Board, not voting) on the motion to return plaintiff to active duty, and denied plaintiff’s request. Upon review under the Administrative Review Act (Ill. Rev. Stat. 1967, ch. 110, par. 264, et seq.) the court ruled that defendant Board’s decision was against the manifest weight of the evidence and ordered the Board to certify that defendant was no longer disabled and was able to resume the duties of his position. This appeal followed.

The finding and conclusions of the Board on questions of fact are prima facie true and correct. (Ill. Rev. Stat. 1967, ch. 110, par. 274.) However, on review it is the court’s duty to ascertain if the finding and decision of the administrative agency is against the manifest weight of the evidence. (Peterson v. Board of Trustees (1973), 54 Ill.2d 260, 296 N.E.2d 721.) If the administrative order is against the manifest weight of the evidence it is the court’s duty to set the order aside. Dorfman v. Gerber (1963), 29 Ill.2d 191, 196, 193 N.E.2d 770; Oakdale Community School District v. Trustees (1957), 12 Ill.2d 190, 195, 145 N.E.2d 736.

The plaintiff proved by competent medical testimony of two doctors, one of them an orthopedic surgeon, that he had the physical capability of returning to active duty as a police officer even though there was calcification in both shoulders. Dr. Oliver, his personal physician, testified that plaintiff had no limitation of motion in the right shoulder or right elbow (where his injury occurred which resulted in plaintiff’s disability leave of absence). The Administrative Review Act does not require judicial recognition of an order which is against the manifest weight of the evidence. Drezner v. Civil Service Com. (1947), 398 Ill. 219, 231, 75 N.E.2d 303.

The findings and decision of the Police Pension Board were against the manifest weight of the evidence and the trial court was justified in so holding and reversing the Board’s decision. The judgment of the trial court is affirmed.

Affirmed.

SEIDENFELD and T. MORAN, JJ., concur.


author: Mr. JUSTICE DIXON

text:
    The City of Rock Falls, Plaintiff and Counterdefendant-Appellee, v. Chicago Title & Trust Company, as Trustee, Defendant—(William C. Jerome, Defendant and Counterplaintiff-Appellant, v. Louis J. Pignatelli, Counterdefendant-Appellee.)
    (No. 72-247;
    Third District —
    August 2, 1973.

      Rehearing denied August 28,1973.

      Walter E. Trittipo, of Chicago, and Nelson, Weinstine & Kilgus, of Morrison, for appellant.

      Donald E. Blodgett, of Rock Falls, for appellee.
    Louis J. Pignatelli, pro se.

   Mr. JUSTICE DIXON

delivered the opinion of the court:

This is an appeal from an order of the Circuit Court of Whiteside County, Illinois, which dismissed the third amended counterclaim of William C. Jerome, one of the defendants, against the City of Rock Falls, the plaintiff, and Louis J. Pignatelli, its former mayor.

The City of Rock Falls on April 28, 1970, filed a complaint for authorization to repair or demolish a building alleged to be dangerous and unsafe. Title was held in trust by Chicago Tide & Trust Company, Jerome was the trust beneficiary, and both of them were made defendants. Jerome filed an answer and counterclaim, and subsequently, after motions, hearings, briefs, and adverse rulings, filed an amended counterclaim, a second amended counterclaim, and a third amended counterclaim. Pignatelli was joined as an additional counterdefendant on September 3, 1970. It is from the order dismissing Jeromes third amended counterclaim, directed against the City and Pignatelli, that this appeal is taken.

The issues presented are whether the third amended counterclaim states a cause of action under Illinois law for the tort of interference, whether the defendants are protected by the Local Governmental and Governmental Employees Tort Immunity Act (Ill. Rev. Stat. 1971, ch. 85, sec. 1 — 101 et seq.), and whether suit is barred by the limitations provision of that Act or by the general five-year statute of limitations. Ill. Rev. Stat. 1971, ch. 83, sec. 16.

The challenged counterclaim alleges that Pignatelli, while mayor and chief executive officer of the City of Rock Falls, made an offer in February of 1951 to purchase in his own name the property involved in this case, but Jerome acquired the property by making a higher offer in May of 1951; that because Pignatelli was not able to obtain the property, he, and the City through his acts, deliberately, wilfully, and maliciously pursued a course of conduct which prevented Jerome from obtaining the business advantages he should have derived from his equitable ownership of the premises as trust beneficiary; that this wrongful conduct continued from June of 1961 until May 1, 1969, when Pignatelli ceased to hold office as mayor; that many wrongful acts besides those specifically mentioned in the counterclaim were committed by Pignatelli and officers and employees under his control but were concealed from Jerome; that Pignatelli publicly ridiculed one of Jerome’s plans, which was to convert the building into a motel-hotel, and indicated that anyone buying the property would not receive cooperation from the City or any of its departments and would “probably find it difficult to function”; that the city clerk refused to issue applications for building permits to agents of Jerome, he said he could do nothing for them, and Pignatelli refused to allow the applications to be issued; that prospective lessees were told by Pignatelli that the building was not available, and one of the prospective lessees was told by Pignatelli that he would not allow Jerome to use the building; that a prospective user was told by Pignatelli that city water and electric service would not be provided by the City to the building and permits would not be issued to allow conversion of the building to a light manufacturing use; that an agent of Jerome who was attempting to repair leaks in the roof of the building was told by officials of. the City to halt the repairs, and the City’s building inspector told Jerome that no permits for repairs or remodeling would be issued to him and that Pignatelli had forbidden their issuance; that the City’s electrical superintendent informed Jerome that Pignatelli had ordered him and other city officials not to authorize utilities to Jerome for the building; that the city attorney, on Pignatelli’s instructions, told Jerome that the ordinances he had prepared for the City were not kept in any particular place and he did not know where Jerome could find the City’s ordinances dealing with, building permits and utilities; that on various occasions during 1966, 1967, 1968 and 1969, when Jerome had financial and civic backing for proposals to utilize his building but needed licenses, permits, and utilities, Jerome or an agent of his was told by Pignatelli and other city officials that no applications for the licenses, permits, and utilities would be accepted, considered, or granted so long as Jerome owned an interest in the premises; and that because of the continuing misconduct of Pignatelli and the City, Jerome was continuously deprived of the profits he would otherwise have made from the premises.

The tort action for interference developed at an early date to give recognition to the principle that a person’s business is property which is entitled to protection from harm by another who is not acting in the exercise of some right such as the right to compete for business. Annot., 9 A.L.R.2d 228, sec. 2.

The theory of the tort of interference, it is said, is that the law draws a line beyond which no member of the community may go in intentionally intermeddling with the business affairs of others; that if acts of which complaint is made do not rest on some legitimate interest, or if there is sharp dealing or overreaching or other conduct below the behavior of fair men similarly situated, the ensuing loss should be redressed; and that the line of demarcation between permissible behavior and interference reflects the ethical standards of the community. (45 Am.Jur.2d, Interference sec. 1.) The elements which establish a prima facie tortious interference are the existence of a valid business relationship (not necessarily evidenced by an enforceable-contract) or expectancy; knowledge of the relationship or expectancy on the part of the interferer; an intentional interference inducing or causing a breach or termination of the relationship or expectancy; and resultant damage to the party whose relationship or expectancy has been disrupted. The interest protected is the reasonable expectation of economic advantage. Id. sec. 50.

The tort of interference has long been recognized in Illinois. In Doremos v. Hennessy, 176 Ill. 608, 615, the Illinois Supreme Court said: “Every man has a right, under the law, as between himself and others, to full freedom in disposing of his own labor or capital according to his own will, and any one who invades that right without lawful cause or justification commits a legal wrong, and, if followed by an injury caused in consequence thereof, the one whose right is thus invaded has a legal ground of action for such wrong.”

It is established in Illinois, also, that the damage or injury can be loss of potential income from property, and an existing contract is not required. (Pendleton v. Time, Inc., 339 Ill.App. 188, 194.) As the comment to section 766 of the Restatement of Torts explains, “The liability for inducing breach of contract is now regarded as but one instance, rather than the exclusive limit, of protection against unjustified interference in business relations.”

The counterclaim adequately states a cause of action, we believe, for interference with Jerome’s utilization of the property of which he was beneficial owner under the trust. Our review of the counterclaim’s recital of refusals to issue applications, misstatements about availability of the property, threats concerning utilities, and other patent abuses of public office causes us to find little appeal in the argument that no wrongful conduct is alleged, that the conduct described was justified or privileged, or that the allegations are merely conclusions or conjecture. Jerome is entitled to the reasonable intendments of the language used. W. P. Iverson & Co. v. Dunham Mfg. Co., 18 Ill.App.2d 404, 422.

The defendants are not protected, we believe, by Sections 2 — 104 and 2 — 206 of the Local Governmental and Governmental Employees Tort Immunity Act (Ill. Rev. Stat. 1971, ch. 85 secs. 2 — 104, 2 — 206), which deal with the denial of permits and licenses by persons who are authorized to determine whether they should be issued or denied. These sections do not cover the refusal of applications, nor the bulk of the other misconduct alleged. Furthermore, it has been questioned whether these sections extend to cases where “a public official * * * maliciously or intentionally misuses the powers of his office.” Young v. Hansen, 118 Ill.App.2d 1, 9.

Jerome’s right to recover from the City is not barred by limitations because the City first sued Jerome. The Illinois Supreme Court has stated that sections 8 — 101, 8 — 102 and 8 — 103 of the Tort Immunity Act and section 17 of the Limitations Act are to be construed together so as to allow a defendant to assert any claim he might have arising out of the occurrence for which he is being sued. (Helle v. Brush, 53 Ill.2d 405.) It appears to us that Jerome’s counterclaim alleging, among other things, that repairs to his building were not allowed, can fairly be said to arise out of the same occurrence as the City’s complaint for leave to repair or demolish the building because of its having become dangerous and unsafe through disrepair.

Jerome’s claim against Pignatelli is subject to the general five-year statute of limitations, section 15 of the Limitations Act, which applies to “all civil actions not otherwise provided for.” The counterclaim alleges that Pignatelli’s misconduct, including acts known and described and acts not known to Jerome, continued until May 1, 1969. Where a tort involves a continuing or repeated injury, the statute of limitations does not begin to run until the date of the lást injury or when the tortious acts cease. (Maclaskey v. Macartney, 324 Ill.App. 498, 510; 54 C.J.S., Limitation of Actions sec. 169; 51 Am.Jur.2d, Limitation of Actions sec. 135; 25 I.L.P., Limitations sec. 53.) Therefore suit against Pignatelli is not barred.

Accordingly, the order dismissing the third amended counterclaim is reversed and the case is remanded to the Circuit Court of Whiteside County for further proceedings not inconsistent with this opinion.

Reversed and remanded.

STOUDER, P. J„ and SCOTT, J„ concur.


author: Mr. PRESIDING JUSTICE ALLOY

text:
    Philip S. Lindner & Co., Inc., Plaintiff-Appellant, v. Kathryn M. Edwards et al., Defendants-Appellees.
    (No. 72-329;
    Third District —
    August 6, 1973.
    Thomas W. Grant, of Sandwich, appellant.
    James J. Duncan, of Peru, for appellees.
   Mr. PRESIDING JUSTICE ALLOY

delivered the opinion of the court:

This is an appeal from a judgment of the Circuit Court of La Salle County in favor of defendant Kathryn M. Edwards, entered pursuant to motion made at the close of proof on behalf of plaintiff. Plaintiff Philip S. Lindner & Co., Inc. initiated the action on the theory that it was a “contractor” within the meaning of section 1 of Mechanics’ Lien Act. The plaintiff engages in the business of selling lumber and building supplies at retail and initiated the action to foreclose what it claimed was a proper mechanic’s lien. Named as defendants in the action were Kathryn M. Edwards, owner of the real estate against which the plaintiff sought to assert the lien, and Kesling Associates, Inc., asserted to be a general contractor which had contracted with the owner to erect a dwelling house upon the premises (and other parties whose interests are not involved in the action before us).

The pertinent portion of section 1 of the Mechanics’ Lien Act involved provides:

“Any person who shall by any contract or contracts, express or implied 999 with the owner of a tract of land, or with one whom the owner has authorized or knowingly permitted to contract to improve the lot or tract of land, furnish material 999 is known under this Act as a contractor, and has a lien upon the whole of such lot or tract of land 9 9 9 for the amount due to him for such material * * Ill. Rev. Stat. 1971, ch. 82, § 1.

It is apparent from the brief and arguments presented by plaintiff that it concedes that its materials contract was with the general contractor Kesling but it contends, nevertheless, that it is to be deemed a “contractor”, with a contractor’s hen within the meaning of section 1 for the asserted reason that the owner “authorized” and “knowingly” permitted the general contractor to enter into such contract with plaintiff. The trial court, at the time of entry of judgment in favor of the owner Kathryn Edwards, found, in substance, that plaintiff had failed to produce any evidence to justify a finding that the owner had authorized or knowingly permitted the contract for materials with Kesling; that plaintiff was in fact a subcontractor; and that it had no subcontractor’s hens susceptible of foreclosure by reason of its failure to comply with section 24 of the Act. (Ill. Rev. Stat. 1971, ch. 82, §24.) Only the finding of the trial court that plaintiff had failed to produce evidence to justify a finding that the owner had authorized or knowingly permitted the general contractor to enter into the contract with the plaintiff is placed in issue on appeal before us. Plaintiff contends that such finding of the trial court was contrary to the manifest weight of the evidence.

From the excerpts of record, the pleadings, and the report of proceedings, it is apparent that sometime prior to July 11, 1969, the owner Kathryn M. Edwards entered into a contract with Kesling Associates, a general contractor, to erect a residence on the premises owned by her. At that time, Kesling Associates was not incorporated and Mrs. Edwards was an employee in its business office. (It appears from the record that Kesling Associates did incorporate subsequently, but the exact date does not appear. Plaintiff’s exhibit “A”, the pre-incorporation subscription agreement, suggests that the incorporation did not occur until after November 10, 1969.) A carpenter foreman George Kleinprinz, who worked for Kesling, delivered to plaintiff a typewritten list of materials and supplies to be furnished for the construction of the residence, with the list bearing the handwritten caption, “K. Edwards job”. On July 11, 1969, plaintiff prepared and delivered to Kesling a written quotation of the cost of the items on the list, and on September 16, 1969, Kesling entered into an oral contract with plaintiff to purchase the necessary materials and supplies. Pursuant to such contract plaintiff made its first delivery of materials on September 16, 1969, and made its last delivery on July 27, 1970. A payment of $7,172.87 became due on July 27, 1970. On July 21, 1971, when $6,372.87 remained unpaid, plaintiff started this action against the owner to foreclose a contractors lien as hereinbefore stated.

Prior to the hearing on the motion of the owner for judgment in the case, three witnesses testified for plaintiff, including the owner who was called as an adverse witness. Philip S. Lindner, who was president of plaintiff, testified that during the period from September 16, 1969, to July 27, 1970, materials were delivered to the construction site from time to time as ordered; that Mrs. Edwards was an employee in the Kesling office during all of that period; and that some of the orders for materials were telephoned to plaintiff by Mrs. Edwards and that she did not at any time protest the delivery of materials to the job site. He testified further that monthly statements for materials were sent to Kesling, and, with no identification as to time, he stated that he had inquired of Mrs. Edwards about the payment of the account and was informed by her that a loan was being obtained on the property and that a substantial payment would be made when the loan was consummated.

George Kleinprinz, the carpenter foreman for Kesling, testified that he had worked as a foreman and a supervisor for Kesling from about May 1969 until around September 1970, when he terminated his employment. He stated that Mrs. Edwards ran the Kesling office, paying bills and signing paychecks. He stated that when he desired materials to be ordered for a job he would leave a fist in the office, and then on three or four occasions in the course of office routine, Mrs. Edwards had ordered materials for the residence being constructed on her premises. He also stated that Mrs. Edwards had visited the construction site frequently. Kleinprinz also stated that Kesling maintained a folder for each of its construction jobs, including the building being erected on Mrs. Edwards’ lot, and that it was part of her duties to maintain such files. Although Kleinprinz could give no times or dates, the witness stated that Mrs. Edwards and Gary Kesling had previously erected a house on another site as a joint venture. Without reference to any dates also, Kleinprinz testified that “they” had approached him and informed him that they were going to form a corporation and that they asked him to buy some stock and told him he would be a vice-president. On November 10, 1969, he signed the preincorporation agreement committing himself to the purchase of $10,000 in stock but eventually “put in” only $5,250. Following the incorporation, according to Kleinprinz, there were never any corporate meetings that he attended.

Mrs. Edwards, who was called as an adverse witness, testified that she was the owner of the premises involved; that she had purchased the lot with her own funds about 3 months before the construction was started; that the house was to be her residence; and that Kesling was employed to construct it. When she was asked if the house was to be used as a “demonstration house or model home of some kind”, she responded, “No, that was Mr. Kesling’s idea.” The witness, who displayed an uncertainty as to dates throughout her testimony, testified that she started to work for Kesling in February or March of 1968 and that she had terminated the employment for Kesling at the end of July in 1969. She stated that work on the house had started while she was employed by Mr. Kesling and that she had not worked for the firm in any capacity after July 1969, and had not been employed there during the period of material delivery dates testified to by Lindner. Her duties when employed, she stated, were primarily in sales, working with established customers and seeing what would go in their houses. She stated that she might on occasion have talked to Lindner about materials. Mrs. Edwards conceded that she had become Secretary when the firm had incorporated and stated that, indirectly, she had been one of the organizers. However, she further testified that she had not furnished any capital when the firm began, but that at a later date, about which she was not certain, she had put $20,000 into the business on a temporary basis under an agreement, which was not kept, that she would be repaid in 60 days.

As one basis for its claim for a contractor’s lien under Section 1 of the Act, plaintiff contends that the contract between Mrs. Edwards and Kesling Associates, Inc. (emphasis ours) was fraudulent, and that Mrs. Edwards, the owner, and Kesling Associates, Inc. (emphasis ours) are, in reality, one entity, and that a court of equity should pierce the corporate veil and find that there was in fact a direct contract for materials between the owner and the plaintiff. The trial court rejected this contention. On the basis of the proof presented by plaintiff we believe the trial court acted correctly in doing so.

There is no showing in the record when the corporation came into existence. If the pre-organization subscription agreement is any guide, incorporation did not occur until after November 10, 1969. It appears affirmatively from the pleadings and proof that the owner entered into an agreement with Kesling (not incorporated) to erect the building prior to July 11, 1969, and that Kesling entered into an oral contract with plaintiff for materials on September 16, 1969. On neither occasion were the owner and Kesling “one entity" as plaintiff’s theory presupposes, nor, since Kesling Associates, Inc. had not yet come into being, had plaintiff been misled as to knowing with whom it was dealing.

The case of Illinois Interior Finish Co. v. Peonie, 277 Ill.App. 554, upon which plaintiff relies and from which its theory is apparently derived, is factually inapplicable. The proof in that case showed that the owner there was a mere nominee for a secret trust, and that the general contract, which was suspect of having been contrived after litigation had arisen, had been entered into with a corporation which was a party to the secret trust, which had no charter powers to engage in the construction business, and which was controlled by the husband and son of the purported owner.

Relying upon the part of Section 1 of the Act which grants a contractor’s lien to any person who furnishes material pursuant to a contract, “with one whom the owner has authorized or knowingly permitted to contract,” plaintiff next asserts that it made a prima facie case that the owner, Mrs. Edwards, knowingly permitted Kesling to contract for materials with plaintiff and that the trial court therefore erroneously entered judgment for the owner.

Plaintiff’s claim of a prima facie case and the construction it seeks to place on Section 1 of the Act, ignores its pleading and proof that Mrs. Edwards, the owner, entered into a contract with Kesling (not incorporated), a general contractor, for the construction of a residence. As stated in Love, Illinois Mechanics’ Liens (2d ed.), §131, p. 4-49: “It is not the theory of our statute that the original contractor is the agent of the owner for the purpose of purchasing materials.” It has been consistently held that if the owner of real estate has let out the entire work to an original contractor, then he may not be deemed to have “knowingly permitted” or “authorized” any subcontractor of the original contractor to furnish any service or material, since the owner is justified in assuming that such subcontractor is doing the work and furnishing materials for the original contractor, and not the owner. See: Love, Illinois Mechanics’ Liens (2d ed.), §33, pp. 2-11, 2-12; Vanderlaan v. Berry Construction Co., 119 Ill.App.2d 142, 255 N.E.2d 615; Sloan v. Cleveland, CC & St. Louis Ry. Co., 140 Ill.App. 31.

Nor when its facts are noted do we see Wertz v. Mulloy, 144 Ill.App. 329, as requiring a departure from such rule in this case as plaintiff contends. In Wertz, a Mrs. MuHoy, who owned a life estate in the premises, entered into a contract with one McHatton to remodel her residence where she lived with her daughter, Alice, one of the remaindermen. Mrs. Mulloy died before the remodeling had been completed, but the work was continued and Wertz supplied the lumber therefor. McHatton paid Wertz a part of the money he had received from Mrs. Mulloy prior to her death and when the balance due him continued to be unpaid, Wertz filed a suit against the remaindermen for a subcontractors lien for the amount due him. So far as is pertinent in this case, the court, relying on the language of section 1 of the Act which gives a lien to anyone whom the owner of the lot has “authorized or knowingly permitted to contract for * * * material,” held that the conduct of Alice Mulloy entitled Wertz to a lien against the remainder interest. In substance, the conduct relied upon was found in proof that Alice had participated in the preparation of the written contract with McHatton; that she at times took practical charge of directing the work; that she caused many radical changes to be made from the plans and specifications; and that she was present a good deal of the time when the work was in progress. Although plaintiff arduously insists to the contrary, we find no proof that Mrs. Edwards indulged in comparable conduct in this case. It is true that Kleinprinz testified that she visited the site from time to time, and while she may have worked with the architect on the original design and colors, as Kleinprinz also testified, there was no proof that she caused radical changes or even attempted to take charge of directing the work. Her conduct was not significantly different from that of a typical owner who has a house built by a general contractor.

It is axiomatic that the statute providing for mechanic’s liens is in derogation of the common law and is to be strictly construed as to the manner of invoking it. (E.g. Vanderlaan v. Berry Construction Co., 119 Ill.App.2d 142, 255 N.E.2d 615.) In applying that principle to the cause before us, foreclosure of the mechanic’s lien should not have been allowed. We conclude that the circuit court of LaSalle County accordingly properly refused to allow plaintiff a contractor’s lien against the owner under section 1 of the Act, and its judgment is, therefore, affirmed.

Judgment affirmed.

STOUDER and SCOTT, JJ., concur.