author: MR. JUSTICE BURKE

text:
    Marie C. Drengberg, Plaintiff-Appellant, v. Earl W. Gerke, Defendant-Appellee.
    Gen. No. 51,836.
    First District, Second Division.
    October 13, 1967.
    Delbert T. Been, of O’Brien, Hanrahan, Wolfe & Been, of Chicago, for appellant.
    Clausen, Hirsh, Miller & Gorman, of Chicago (John J. Witous and James T. Ferrini, of counsel), for appellee.
   MR. JUSTICE BURKE

delivered the opinion of the court.

Marie C. Drengberg brought an action to recover damages for personal injuries allegedly caused by the wilful and wanton misconduct of Earl W. Gerke in the operation of an automobile in which plaintiff was an occupant. The mishap occurred in Indiana. The Indiana guest statute and the substantive law of that state govern the action. The plaintiff was a guest within the purview of that statute. It is undisputed that in order to recover, plaintiff was required to prove defendant guilty of wilful or wanton misconduct. The court entered judgment on the verdict for $7,500 for the plaintiff. Subsequently the court gave judgment notwithstanding the verdict for the defendant. Plaintiff appeals.

Plaintiff maintains that the issue of what constitutes wilful or wanton misconduct should have been left to the jury. The defendant says that the result reached was proper because as a matter of law defendant was not guilty of wilful or wanton misconduct. On September 9, 1962, defendant was involved in an accident on U. S. Route 6 in Indiana at a point more than two miles west of that road’s intersection with U. S. 31. At that time defendant’s wife and daughter along with plaintiff, who is his mother’s sister, were guests in his automobile. At the scene of the occurrence Route 6 is a straight stretch of blacktop highway in a farming area with a lane for eastbound and a lane for westbound traffic. It was drizzling and dark as defendant followed a tractor-trailer unit from the intersection of Route 6 and Route 31 to the scene of the occurrence. The posted speed limit was sixty-five miles per hour for automobiles and fifty-five miles per hour for trucks. The tractor-trailer unit proceeded at a speed of forty to forty-five miles per hour. On approximately two occasions through the distance of more than two miles that defendant followed the truck, he attempted to pass but was prevented from doing so by eastbound traffic. Having waited until the road was clear and level and there was no oncoming traffic he accelerated to fifty miles per hour to a point approximately 50 feet behind the trailer and in an attempt to pass, moved into the eastbound lane. At this time his vision was not obstructed and he had “clear sailing.” After entering that lane his vehicle hit a slippery spot which caused the left rear wheel of his vehicle to go off the road and onto the gravel shoulder. While attempting to gain control and get back on the road defendant found that he was heading directly under the trailer. At this time he had virtually lost control of the vehicle and was able only to avoid going under the unit. He was not able to prevent the right front portion of his vehicle from striking the left rear wheel of the tractor-trailer unit. Thereafter the right rear part of his vehicle came into contact with the unit and his car went into the ditch south of the road causing the injuries to plaintiff. There was no evidence that the accident was caused by anything other than defendant coming into contact with the unforeseeable slick spot in the road. Neither defendant’s wife nor the plaintiff had any idea what had caused the accident. Plaintiff admitted that she had never had any occasion to complain of defendant’s driving either before or at the time of the occurrence.

Although the Indiana Statute refers to the terms wilful or wanton in the disjunctive, the words have been held to be nearly synonymous since neither of them can be present without a conscious or intentional persistence in a known course of misconduct with a reckless indifference to consequences. Lee Bros. v. Jones, 114 Ind App 688, 54 NE2d 108. The definition of misconduct required for liability under the statute was set forth in Becker v. Strater, 117 Ind App 504, 72 NE2d 580, 581, wherein the court said that wilful or wanton misconduct consists of the conscious and intentional doing of a wrongful act or omission of a duty, “with reckless indifference to consequences, under circumstances which show that the doer has knowledge of existing conditions and that injury-will probably result.” See Hoesel v. Cain, 222 Ind 330, 53 NE2d 165; Swinney v. Roler, 113 Ind App 367, 47 NE2d 846; Richey v. Sheaks (Ind App), 228 NE2d 429; Burke v. Burke, 135 Ind App 235, 191 NE2d 530.

Nothing in the record indicates that defendant’s windshield was covered with mud or that his vision was obscured or that the windshield wiper did not adequately clear the spray and the falling rain. The evidence establishes that once defendant’s left rear wheel left the road, he was in a position to do nothing other than attempt to regain control. He was never again parallel to the truck. The evidence establishes without contradiction that the accident occurred when, without reasonable expectation thereof, defendant’s car was thrown out of control and into another vehicle.

Defendant had followed a tractor-trailer unit for over two miles at a speed of forty miles per hour awaiting a safe opportunity to pass. Upon reaching a point where the road was level and clear and he had “clear sailing” defendant moved from a point approximately fifty feet behind the truck into the left lane and accelerated to approximately fifty miles per hour. After defendant brought his vehicle even with the truck, without a reasonable basis for anticipating what followed, his automobile struck a slick spot in the road. Thereafter he only had sufficient control of his vehicle to prevent an accident worse than that which occurred.

We conclude that under the circumstances the positioning of the vehicle in the lane for oncoming traffic in order to pass the truck-trailer unit did not present evidence establishing wilful or wanton misconduct.

The Indiana courts hold that wilfulness arises where one persists in a course of conduct which the law describes as reckless after knowledge of conditions has been obtained. See Roop v. Woods, 134 Ind App 88, 186 NE2d 439. We think that the court was right in entering judgment notwithstanding the verdict in favor of the defendant.

Plaintiff states that the court improperly refused to allow her to amend her complaint to allege intoxication of defendant, to allow evidence of intoxication and the voir dire examination of the jury on that question. There was admittedly no evidence of probative value to support the proposed allegation or examination. The question of intoxication was not raised by plaintiff until after the jury had been selected. Plaintiff made no attempt or offer to introduce evidence of intoxication. The court did not err in refusing to allow the proposed amendment.

For these reasons the judgment notwithstanding the verdict for defendant and against the plaintiff is affirmed.

Judgment affirmed.

LYONS, P. J. and BRYANT, J., concur.


source: Caselaw Access Project

author: MR. PRESIDING JUSTICE LYONS

license: Public Domain

text:
    Skokie Federal Savings and Loan Association, a Corporation of the United States; Evanston Federal Savings and Loan Association, a Corporation of the United States; First Federal Savings and Loan Association of Wilmette, a Corporation of the United States; Park Ridge Federal Savings and Loan Association, a Corporation of the United States; Prudential Savings and Loan Association, a Corporation of Illinois; First National Bank of Skokie, a National Banking Association; Old Orchard Bank and Trust Company, an Illinois Banking Corporation, and Skokie Trust and Savings Bank, an Illinois Banking Corporation, Plaintiffs-Appellants, v. The Savings and Loan Board of the State of Illinois; Justin Hulman, Commissioner of Savings and Loan Associations of the State of Illinois; and Jerrold L. Morris, et al., Applicants for a Permit to Organize Devonshire Savings and Loan Association in Skokie, Illinois, Defendants-Appellees.
    Gen. No. 51,412.
    First District, Second Division.
    October 13, 1967.

      Russell & Bridewell, of Chicago (David A. Bridewell and Vincent P. Reilly, of counsel), for appellants.
    William G. Clark, Attorney General of State of Illinois, of Chicago (Richard A. Michael, John J. O’Toole, and Stuart D. Perlman, Assistant Attorneys General, of Counsel), and Seymour I. Burton, J. Richard Bockelman and Jerome P. Dixon, of Chicago, for appellees.
   MR. PRESIDING JUSTICE LYONS

delivered the opinion of the court.

This is an appeal by the plaintiffs (Skokie Federal Savings and Loan, et al.) brought under the provisions of the Administrative Review Act (Ill Rev Stats (1965) c 110, par 264, et seq.) from the entry of an order by the Circuit Court of Cook County, which order dismissed plaintiffs’ complaint for administrative review upon the motion and in favor of the defendants, Savings and Loan Board of the State of Illinois (hereinafter sometimes referred to as the Board) and Justin Hulmán as Commissioner of Savings and Loan Associations (hereinafter sometimes referred to as the Commissioner). Judgment was entered by the court below on March 21, 1966.

The instant action was occasioned when, on July 13, 1962, an application to the Director of Financial Institutions of the State (hereinafter sometimes referred to as the Director) for a permit to organize the Devonshire Savings and Loan Association in the Village of Skokie, Illinois, was caused to be filed by the above captioned defendant-applicants (Jerrold L. Morris, et al.). In response thereto, plaintiffs, comprised of numerous savings and loan and banking institutions in proximity to the proposed site of Devonshire, addressed objections to the Director. Issue being taken, the cause was thereafter set down for hearing before a hearing officer appointed by the Director.

Subsequently, there arose considerable delay due to a defect in the pleadings, which point is not germane to the issues here presented. The matter being resolved, hearings on the complaint (objections) were again conducted through 1964 and part of 1965 under the then existing jurisdiction of the Office of the Director. Pursuant to Legislative amendments effective August 1, 1965 (SB 1031 and SB 942) however, the administrative powers over the Savings and Loan Act (Ill Rev Stats (1965) c 32, par 701, et seq.) were transferred, en toto, from the Director of Financial Institutions to the newly formed Office of the Commissioner of Savings and Loan Associations (par 841), said Commissioner being substituted for the Director by such amendments throughout the Act and thereby becoming vested with jurisdiction over the instant application for a permit to organize and its related proceedings. (Pars 722 through 727 inclusive.)

These newly established provisions of the Act created in addition thereto the Savings and Loan Board, and conferred upon it, among other powers, the power to pass in review upon any order, decision, or action of the Commissioner. (Pars 857 through 859, inclusive.) Of particular significance to the case at bar, there was thus created an administrative body empowered to pass in judgment upon actions of the Commissioner in an area where, by comparison, none had theretofore existed (other than by appeal to the courts under the Administrative Review Act) during the period in which savings and loan associations were governed by the Director.

In accordance with these changes, hearings in the instant cause were thereafter continued before the Office of the Commissioner who, on December 23, 1965, entered an order approving the subject application and directed the issuance of a permit to organize Devonshire to the defendant-applicants. A copy of the aforesaid decision of the Commissioner was served upon and received by the plaintiffs on January 17,1966.

In this regard, section 7-21 of the Savings and Loan Act (Ill Rev Stats (1965) c 32, par 861) provides:

“The Board shall upon the verified complaint in writing of any person setting forth facts which if proved would constitute grounds for reversal or change of any decision, order or action of the Com>missioner grant a hearing thereon. If the aggrieved party desires such a hearing, he shall, within 10 days of receipt of notice of such decision, order or action, file written notice with the Board, of intent to demand a hearing and shall, within 30 days of receipt of notice of such decision, order or action, file his verified complaint in writing. . . .” (Emphasis Supplied.)

In response to the adverse decision of the Commissioner, plaintiffs, on January 21, 1966, personally and by certified mail served notice upon the Board and Commissioner individually, the pertinent portions of which recited :

“Pursuant to Section 7-2k of the Illinois Savings and Loan Act, Ill Rev Stats, Ch 32, Sec 864, notice is hereby given that the objectors, a list of which is attached hereto, intend to seek review under the Administrative Review Act of the State of Illinois, Ill Rev Stats, Ch 110, Sec 264 et seq., of (1) the Order of the Commissioner of the Savings and Loan Associations, dated December 23, 1965, approving the application for a permit to organize the above association. . . .” (Emphasis Supplied.)

Shortly thereafter, on February 11, 1966, plaintiffs, by certified mail, served upon the Board and Commissioner individually letters with enclosed verified complaint in regard to this same cause, no response having been received by plaintiffs from either the Board or Commissioner in the interim. The letters, in addition to their reference to the enclosed complaint, advised the Board to set the cause down for hearing in compliance with the mandatory language of section 7-21 of the Act. By letter dated March 1, 1966, the Commissioner informed plaintiffs that the Board had denied their request for a hearing, “since notice of intent to demand a hearing was not filed” as required by said section 7-21 of the Act.

As a consequence thereof, the instant complaint for administrative review was filed by plaintiffs in the Circuit Court on March 7, 1966. Thereupon, the Board and Commissioner filed a motion to strike and dismiss, which motion, among other grounds, alleged plaintiffs’ failure to comply with the jurisdictional requirements of section 7-21 of the Act. After a full hearing before the trial judge, an order was entered granting the motion, from which plaintiffs bring this appeal. No questions are raised on the merits of the Commissioner’s findings, nor is the sufficiency of the February 11th notice disputed.

It is the plaintiffs’ theory of the case: (1) that the Board’s refusal to grant a hearing on its verified complaint was arbitrary, capricious, and contrary to law; and (2) that the court below erred in granting defendants’ motion to strike and dismiss its complaint for administrative review.

It is the defendants’ combined theory of the case (a separate brief and argument having been offered by the defendant-applicants, Jerrold L. Morris, et al.) : (1) that plaintiffs’ appeal should be dismissed for their failure to satisfy the mandatory and jurisdictional provisions of section 7-21 of the Act requiring written notice of intent to demand a hearing before the Board within 10 days of receipt of the adverse decision of the Commissioner; (2) that alternatively, the judgment should be affirmed for such noncompliance should this court determine that jurisdiction had properly attached to the Circuit Court; and (8) that in any event, plaintiffs’ complaint fails to state a cause of action.

Numerous alternative theories of relief have been offered by the parties to this appeal, which propositions this court feels are not necessary for a disposition of the case in view of section 7-21.

It is not disputed that plaintiffs had, in fact, filed a notice with the Board within the prescribed 10-day period of section 7-21. Rather, the pivotal consideration is whether the substance of that notice apprised the Board of plaintiffs’ intentions to demand a hearing before it within the contemplation of that same statute. The rule is that the courts will not interfere with the exercise of the legislatively created powers of an administrative agency absent a showing that the agency’s actions were palpably arbitrary, unreasonable, or capricious. Richards v. Board of Education, 21 Ill2d 104, 171 NE2d 37 (1960).

While section 7-21 is silent as to the legislative rationale for the required 10- and 30-day notices respectively, we feel attendant policy considerations suffice to supply the needed insight. The savings and loan industry is a business vested with a substantial public interest affecting the economic security and welfare of the citizenry. Flanagan v. Knight, 67 Ill App2d 71, 214 NE2d 557 (1966). As the General Assembly has itself pronounced in the Act, the Act is to be liberally construed as the public interest requires to the extent that it promotes and fosters the savings and loan business and assures its financial stability. (Ill Rev Stats (1965) c 32, par 702.) Cf. Citizens Savings & Loan Ass’n v. Knight, 74 Ill App2d 234, 219 NE2d 355 (1966).

The problem created by the subject notice is not one of ambiguous wording or informal defect as plaintiffs suggest, but rather a clear and specific statutory notice made pursuant to an inapplicable statute, (section 7-24). The notice having been framed with such specificity, by no reasonable construction or liberal interpretation of the language contained therein, can this court find compliance with the correct and governing statute.

The fact that plaintiffs acted with dispatch notwithstanding, neither plaintiffs nor this court can endeavor to escape the legal efficacy of those administrative changes made effective several months prior to the notice in question. We speak, in particular, of the creation of the theretofore nonexistent Savings and Loan Board, duly established to review actions of the Commissioner, and to which application could only be made via a 10-day notice of intent to demand a hearing. The subject is succinctly treated in section 7-21. Plaintiffs’ purported notice, however, makes reference specifically to section 7-24 only of the Act and, in unequivocal terms, states their intentions to pursue relief under the Administrative Review Act (accompanied by citations to those Acts).

An examination of said section 7-24 (Ill Rev Stats (1965) c 32, par 864), reveals that in fact administrative review to the courts is so provided but, significantly, only from orders or decisions of either the Director of Financial Institutions or the Board itself. Manifestly, neither situation existed in the instant case, plaintiffs’ application for review coming from a decision of the Commissioner and hence governed by section 7-21.

The language of section 7-21 providing for the 10-day notice has been set forth in haec verba. In determining whether such a provision is mandatory or directory as to plaintiffs, consideration must be given to the entire statute, its nature, objectives, and the consequences of construing it one way or another. Carrigan v. Illinois Liquor Control Commission, 19 Ill2d 230, 166 NE2d 574 (1960). While the use of the word “shall” therein is not deserving of an inviolate connotation, its use in the instant statute we feel contemplates prompt action by the party deeming himself aggrieved, so that a timely disposition of the matter might be effectuated. People ex rel. v. Biggs, 402 Ill 401, 84 NE2d 372 (1949); Sweitzer v. Industrial Commission, 394 Ill 141, 68 NE2d 290 (1946). Where, as here, noncompliance with the provision by a private individual, as distinguished from that of a public official, affects the public interest, the term is employed in its imperative sense and is mandatory. Sutherland Statutory Construction, 3rd Ed (1943) Yol 3, § 5816 (P 107).

The Board is a creature of statute, having no greater power or authority to exercise its jurisdiction other than that which has been conferred upon it by the General Assembly. Pearce Hospital v. Public Aid Commission, 15 Ill2d 301, 154 NE2d 691 (1958). Here, in the wisdom of our legislature, a 10-day requisite notice was established to best serve the ends of the Act by preventing delay in its administration. We do not feel the force of that 10-day notice, moreover, is in any way mitigated or made ineffectual by the 30-day provision which follows. Suffice to say, the notice asserted is totally absent as to any demands upon the Board, and as such, the Board was without jurisdiction to entertain the instant complaint. See Black Hawk Motor Transit Co. v. Illinois Commerce Commission, 398 Ill 542, 76 NE2d 478 (1947); Lambdin v. Illinois Commerce Commission ex rel. Assumption Mut. Tel. Co., 352 Ill 104, 185 NE 221 (1933). Plaintiffs, citing the absence of language in the statute which would import formality of notice and hearing, argue that no such jurisdictional requirement was intended. The contention is not well taken in view of the cases of North Federal Savings & Loan Ass’n of Chicago v. Becker, 24 Ill2d 514, 182 NE2d 155 (1962) and Harvey Federal Savings & Loan Ass’n v. Becker, 25 Ill2d 464, 185 NE2d 216 (1962), wherein the court in construing the quite similar language of section 7-21 of the Act in the 1959 and 1961 statutes respectively, determined that formal hearings upon a specific and responsive (to the statute) verified complaint were contemplated by the General Assembly.

It does not necessarily follow however, as defendants contend, that jurisdiction has failed to vest in the Circuit Court, thereby requiring a dismissal of the appeal. The Illinois Constitution, art VI, § 9, provides:

“The Circuit Court shall have unlimited original jurisdiction of all justiciable matters, and such powers of review of administrative action as may be provided by law.”

This, obviously, was a review of administrative action in the nature of which is specifically treated in section 2 of the Administrative Review Act (Ill Rev Stats (1965) c 110, par 265). It states:

“. . . If under the terms of the Act governing the procedure before an administrative agency an administrative decision has become final because of the failure to file any document in the nature of . . . petition for hearing or application for administrative review within the time allowed by such Act, such decision shall not be subject to judicial review hereunder excepting only for the purpose of questioning the jurisdiction of the administrative agency over the person or subject matter.” (Emphasis Supplied.)

Accordingly then, the jurisdictional requirement in question was jurisdictional only as to the Savings and Loan Board, and in no way affected the Circuit Court’s power, upon administrative review, to test the limited question of the absence or presence of same in the Board, a determination, it might be added, which is accurately reflected in the lower court’s order of dismissal in the case.

For the above reasons, the judgment is affirmed.

Judgment affirmed.

BURKE and BRYANT, JJ., concur.


author: GOLDENHERSH, J.

text:
    Frederick W. Bliesener, Plaintiff-Appellee, v. Baird & Warner, Inc., Defendant-Appellant.
    Gen. No. 51,119.
    First Judicial District.
    October 18, 1967.
    Holland F. FlaHavban, of Chicago (Marshall Patner, of counsel), for appellant.
    Van Duzer, Gershon, Jordan & Petersen, of Chicago (Horace W. Jordan, of counsel), for appellee.
   GOLDENHERSH, J.

Defendant appeals from the judgment of the Circuit Court of Cook County in favor of plaintiff in the amount of $8,000, entered after a nonjury trial.

The evidence shows that defendant is engaged in the real estate business. Plaintiff had been living in New York, had accepted employment in Chicago, and wished to buy a house in the Chicago area. He called defendant’s Winnetka office, and Alan Ramsay, one of defendant’s salesmen, showed him several houses, one of which, located in Glenview, had been built by John Edward Emerson, a contractor and builder. This house was one of 7 built by Emerson for which defendant, through its salesman, William Black, held an exclusive sales listing.

Plaintiff responded to a newspaper advertisement of the LaFave Agency, advertising houses for rent. Mrs. Mullack, a saleslady employed by LaFave, showed plaintiff the same house which Ramsay had showed him. Plaintiff explained to Mrs. Mullack that he had already seen the house and although interested, did not know whether he liked it well enough to buy it. Arrangements were then made for plaintiff, Ramsay, Black, Emerson and Mrs. Mullack to meet at defendant’s office on the evening of January 30,1964.

During the meeting Black prepared a lease on a printed form described as “George E. Cole & Co., No. 14-B, Residence Lease.” It provided for a lease of the premises for a period of 2 years commencing on April 1, 1964, at a rental of $400 per month. At the same time, on a printed form, he prepared an agreement for the sale of the property. This provided for an earnest money payment of $3,000, the transaction to be closed and possession given on May 29, 1964. Black also prepared three “riders” to the lease, one of which provided for plaintiff to pay $3,000 as advance rental, and for defendant to complete certain work on the house, the second provided that plaintiff had the option to purchase the property on the terms contained in the agreement for sale, provided he exercised his option before March 10, 1964, in which event the $3,000 paid as advance rent is to be deemed earnest money; the third rider required the “seller” to do certain work on or before the “date of closing.” An examination of these documents confirms the wisdom of the Supreme Court’s opinion in Chicago Bar Ass’n v. Quinlan & Tyson, Inc., 34 Ill2d 116, 214 NE2d 771.

Emerson and plaintiff signed the lease and the “riders,” and plaintiff gave defendant his check, payable to defendant’s order, in the amount of $3,000. Plaintiff then returned to New York.

The evidence shows that a savings and loan association held a mortgage on the property, that in November and December 1963, its president had told Black that Emerson was in default and the savings and loan association was seriously considering foreclosure. He also told Black to let him know if he had a “live prospect,” and he would use the threat of foreclosure to help persuade Emerson to agree to a sale at a “reasonable price.” A foreclosure suit was filed on January 27, 1964, and on January 30, 1964, a lis pendens was filed in the Torrens office. Both Black and Ramsay denied any knowledge of the filing of the foreclosure suit.

The testimony is conflicting as to the conversations at the meeting on January 30, 1964, with respect to whether plaintiff knew that Emerson needed the money to complete the house.

On March 7, 1964, plaintiff returned from New York and found the house was not completed. He told Black he had decided to rent, and not exercise his option to buy, Black told him the property was in foreclosure and plaintiff might have difficulty getting credit for the $3,000 if he rented, but if he bought the house there would be no problem with the down payment. Plaintiff demanded return of his money and defendant refused to repay it to him. In early February, 1964, defendant, after deducting its commission, had disbursed the money to Emerson.

Although defendant asserts in its brief that the court erred in permitting plaintiff, over defendant’s objection, to dismiss Emerson as a party defendant, the record contains no order dismissing Emerson, and in its judgment order the court entered judgment against both defendant and Emerson.

Defendant argues that it cannot be held liable because it was merely the agent of a disclosed principal, its action in paying the money to Emerson was in accordance with the terms and intent of the agreement, and was done without knowledge that its principal (Emerson) could not perform. It also contends that under the terms of the lease plaintiff was obligated to Emerson for advance rental, and because the option to purchase was never exercised, defendant did not, at any time become an escrowee for the funds.

Plaintiff’s complaint charges, inter alia, that for a long time prior to January 30, 1964, Emerson was in default on the mortgage, that a complaint for foreclosure had been filed, and defendant knew of the default and foreclosure. Although it is not clearly shown that defendant knew of the filing of the foreclosure action, the evidence leaves no doubt that defendant knew the mortgage was in default.

Since the mortgage was in default at the time the lease was entered into, the mortgagee was entitled to possession and Emerson could not perform. West Side Trust & Savings Bank v. Lopoten, 358 Ill 631, 193 NE 462.

In Rising v. Ferris, 216 Ill App 252, at page 257, this court said, “. . . an agent may, in some cases, owe a duty to third persons at the same time that he owes a duty to his principal, and that the common duty to regard the rights of others is none the less binding upon a person because he happens to be at the time an agent.”

Upon the facts here presented, we hold that defendant, having knowledge of facts which would prevent Emerson’s performance of the terms of the lease, owed plaintiff the duty to disclose to him the information which it had. Endsley v. Johns, 120 Ill 469, 12 NE 247; Restatement of the Law, Agency (2nd), §348. Having breached that duty, it is liable to plaintiff for the loss which he suffered.

For the reasons herein set forth the judgment of the Circuit Court of Cook County is affirmed.

Judgment affirmed.

MORAN and EBERSPACHER, JJ., concur.


text:
    Arthur C. Maimon, Plaintiff-Appellant, v. Edward M. Telman and Advance Leasing Co., an Illinois Corporation, Defendants-Appellees.
    Gen. No. 50,537.
    First Judicial District.
    October 18, 1967.
    Rehearing denied November 16, 1967.

      Norman S. Rosen, of Chicago, for appellant.
    Marshall & Marshall, of Chicago (Sherwin J. Stone, of counsel), for appellees.
   GOLDENHERSH, J.

Plaintiff appeals from the judgment of the Circuit Court of Cook County, entered in plaintiff’s suit for declaratory judgment and other relief.

In Count I of his amended complaint, plaintiff alleges the execution of a written agreement and prays for a declaratory judgment holding the agreement to be void by reason of its failure to provide a termination date, or in the alternative that it be declared terminable at will, and that it was terminated upon plaintiff’s demand.

The agreement is captioned “Agreement for Joint Venture,” and in the preamble recites that it was made and entered into on February 18, 1959, that defendant has been instrumental in organizing an Illinois corporation hereafter referred to as Advance, has subscribed for 40 shares of its capital common stock with a par value of $100 per share, for which he agreed to pay $7,500, plaintiff is desirous of acquiring an undivided one-half interest in and to said shares of stock, is willing to pay defendant the sum of $3,750 for the half interest, the parties deem it advisable that the interest of plaintiff not appear upon the books or records of the corporation or upon any stock certificates “heretofore issued” to defendant, and states further . . they therefore hereby elect to enter into a joint venture agreement with respect to the acquisition of said shares, the ownership thereof, the division of dividends which may hereafter be paid upon said shares, and the distribution of the proceeds in the event that said shares are hereafter sold, redeemed or otherwise disposed of”;

The agreement contains the following provisions:

“1. The parties hereby form a joint venture for the acquisition and ownership of forty (40) shares of the common capital stock of Advance Auto Leasing Company, an Illinois corporation, having a par value of $100.00 per share. It is further agreed that the subscription price for said shares of stock is Seven Thousand Five Hundred Dollars ($7,500.00) and each of the parties hereto agrees to contribute the sum of Three Thousand Seven Hundred and Fifty Dollars ($3,750.00) in payment of said subscription price.
“2. All dividends, whether in stock or in cash paid upon the aforesaid shares of stock shall be divided equally between the joint venturers. In the event that Telman shall exercise his preemptive rights to acquire any additional shares of stock from said corporation, payment therefor shall be made jointly by the parties hereto and such additional shares of stock, if any, shall be held subject to the terms hereof. In the event of the sale of said shares, the parties hereto shall share equally in the proceeds derived therefrom. It is further agreed that Telman’s ownership rights in and to said shares of stock are subject to the terms, covenants and conditions of a certain stock purchase agreement entered into this date by and between Telman and all of the shareholders of said corporation and Maimón hereby acknowledges that a true copy of said stock purchase agreement has been exhibited to him and he does further acknowledge that the rights of the parties hereto are subordinated to the terms of that agreement.
“3. In the event of the death of either of the parties hereto, the respective estates of the joint venturers shall succeed to the rights, privileges and conditions herein contained.
“4. The terms of this joint venture agreement shall not extend to or encompass any salaries or bonuses which Telman may hereafter receive as an employee of said corporation.
“5. This agreement shall not be deemed, held or construed as creating a partnership between the parties hereto and shall be held to apply solely to the purchase, ownership and disposition of the shares of stock hereinabove referred to and shall not include any other transactions heretofore or that may hereafter be entered into by either of the parties and shall not include any business or businesses that either of said parties are now in or that either of said parties may hereafter enter into.
“6. Telman hereby covenants and agrees that notwithstanding the fact that the said shares of stock shall be issued solely in his name, he shall hold said shares and all rights or interests emanating therefrom in trust for the benefit of the parties hereto.
“7. This agreement shall be binding upon the parties hereto, their heirs, executors, administrators and assigns.”

Count II alleges repeated demands for an “accounting of the financial status” of Advance, and defendant’s refusal to furnish an accounting, alleges plaintiff has no adequate remedy at law, and prays a mandatory injunction directing defendant to deliver a certificate evidencing plaintiff’s ownership of 20 shares of the stock.

Count III alleges a conspiracy between defendant and Advance to reduce Advance’s earnings and deprive plaintiff of “his justifiable share of the profits.” He prays for an accounting of all monies paid defendant and that defendant be required to pay plaintiff “any sums which would justifiably be due to the plaintiff if a proper dividend were declared.” He also prays for an order directing Advance to transfer 20 shares of defendant’s stock to plaintiff, and deliver to plaintiff a certificate showing the shares to be issued to him.

The testimony is conflicting as to whether defendant solicited plaintiff’s participation in the venture, or whether plaintiff approached defendant and asked to purchase an interest in the stock. Plaintiff testified that defendant told him he could have his stock at any time, which defendant denies.

The testimony shows that there was no written agreement in the early stages of the transaction. The first written evidence of plaintiff’s interest in the stock is a letter written by defendant to plaintiff in September 1959, “confirming” plaintiff’s ownership of a one-half interest in the stock, and all gains and losses, and that “the stock shall be voted with Mr. Telman’s as an entity.” The formal agreement between the parties, although dated February 18, 1959, was prepared and executed in December of 1960.

There is testimony that Advance had made an election under Subchapter S of the Internal Revenue Code (26 USCA 1871, et seq.), and testimony with respect to defendant’s income tax credits and liabilities by reason thereof. Defendant testified that he and plaintiff had treated the stock as being one half plaintiff’s, had exchanged such sums of money as were necessary to give plaintiff one-half of any dividends received and one-half of any savings effected in defendant’s income tax liability by reason of the Subchapter S election, and to reimburse defendant for one-half of any sums by which his income tax was increased because of dividends received. This testimony is supported by exhibits consisting of Advance’s profit and loss statements and balance sheets, and a “recapitulation” prepared by defendant. The stock purchase agreement referred to in paragraph 2 of the “Agreement for Joint Venture” is not in evidence.

The trial court found that plaintiff was not entitled to the relief sought under Counts II and III, and as to Count I in which plaintiff sought a declaratory judgment, entered the following judgment:

“1. The joint venture agreement dated February 18, 1959, is not void or voidable because it does not contain a specific termination date, but remains in effect until the joint venture is dissolved by mutual consent or terminated by the happening of certain, express, future events referred to in the contract, namely (a) the sale of the shares of stock constituting the subject matter of the joint venture; or (b) the redemption of said shares by the corporation, and the division of the proceeds between the parties.
“2. The joint venture agreement was not intended to be terminable at the will of either party thereto.
“3. The joint venture agreement was not unilaterally terminated at the demand of the plaintiff, and, therefore, is still in full force and effect.”

This appeal followed.

Plaintiff contends here (a) that the joint venture agreement is either void, or terminable at the will of either party, (b) defendant holds the stock as trustee for plaintiff and his refusal to transfer 20 shares to plaintiff is a breach of the fiduciary relationship, (c) the agreement is without consideration, lacks mutuality, is void as being contrary to public policy and (d) the court erred in denying plaintiff’s motion to file instanter, an amended complaint to conform the pleadings to the proof.

Neither party has cited, nor has this court found, an opinion of an Illinois appellate court deciding the precise question of whether failure to provide for a termination date in a joint adventure agreement voids the agreement. What appears to be the majority rule is well stated in Eagle-Picher Co. v. Mid-Continent Lead & Zinc Co., 209 F2d 917, wherein the court, at page 919, said: “The duration of a joint adventure may be fixed by the terms of a contract between the parties or by mutual consent. If no date is fixed by the contract for its termination, the agreement remains in force until its purpose is accomplished or until such accomplishment has become impracticable. (Citingcases.)”

Our Supreme and Appellate Courts have repeatedly held that failure to specify a termination date does not render a contract invalid. (See Galler v. Galler, 32 Ill2d 16, 203 NE2d 577; Vogel v. Melish, 31 Ill2d 620, 203 NE2d 411; Illinois Cent. R. Co. v. Michigan Cent. R. Co., 18 Ill App2d 462, 152 NE2d 627.) In the absence of decisions of the courts of Illinois to the contrary, we hold that the failure to specify a termination date did not render the agreement invalid.

Plaintiff, citing chapter 106%, section 31 (1) (b), Ill Rev Stats, argues that the agreement was terminable at will.

Although a joint adventure and a partnership are in many respects similar, the Supreme Court in Harmon v. Martin, 395 Ill 595, 71 NE2d 74, drew an important distinction, when at page 612, it said: “A joint adventure is not regarded as identical with a partnership, although, generally speaking, it may be said that practically the only distinction between the two is that the former relates to a single specific enterprise or transaction, while the latter relates to a general business of a particular kind.” An important rule applicable to both is stated by the court as follows: “A joint adventure, as well as a partnership, is controlled by the terms of the agreement under which it is formed or created.”

The agreement between the parties, as stated in the preamble, created a joint adventure “with respect to the acquisition of said shares, the ownership thereof, the division of dividends which may hereafter be paid upon said shares, and the distribution of the proceeds in the event that said shares are hereafter sold, redeemed or otherwise disposed of”; and as provided in paragraph 5 applies “to the purchase, ownership and disposition of the shares. . . .” In view of these provisions, the trial court correctly concluded that the purpose of the joint adventure would not be accomplished until the occurrence of one of the events enumerated in paragraph (1) of its order, that it was not terminable at will, and had not been terminated upon plaintiff’s unilateral demand.

We do not discuss plaintiff’s contentions with respect to the fiduciary relationship between joint adventurers, nor the cases cited in support thereof, other than to say that the cases cited are not in point. Unlike those cases, there is here no issue presented as to plaintiff’s ownership of an undivided interest in the shares; it is so provided in the agreement and admitted by defendant.

We have considered plaintiff’s contentions that the agreement is void for want of mutuality, lack of consideration and contrary to public policy, and upon examination of the authorities cited in support thereof hold these contentions to be without merit.

We have examined the testimony and find no basis for disturbing the trial court’s findings with respect to Counts II and III of the complaint.

We turn to plaintiff’s final contention that the trial court erred in refusing to permit him to file an amended complaint, amending Count I to conform to the proof. The proposed amendment contains a number of allegations, the proof of which could only be made by parol evidence tending to vary the express language of the written agreement. Although the trial court permitted the plaintiff to testify with respect to the matters alleged, at the time of announcing its decision, the court stated that the testimony could not be considered for the purpose of varying or supplying alleged deficiencies in the written agreement, and nothing would be achieved by permitting the amendment. In so holding, the trial court did not abuse its discretion and its refusal to permit the filing of the amendment was not error.

For the reasons herein set forth, the judgment of the Circuit Court of Cook County is affirmed.

Judgment affirmed.

MORAN and EBERSPACHER, JJ., concur.


author: MR. JUSTICE SMITH

text:
    Retia E. Patterson, Plaintiff-Appellant, v. The Travelers Insurance Company, a Connecticut Corporation, Defendant-Appellee.
    Gen. No. 50,801.
    First District.
    October 18, 1967.

      DiGrazia & Snyder, of Summit (Stanley H. Jakala, of counsel), for appellant.
    Kirkland, Ellis, Hodson, Chaffetz & Masters, of Chicago (William D. Maddux and John M. O’Connor, Jr., of counsel), for appellee.
   MR. JUSTICE SMITH

delivered the opinion of the court.

The trial court allowed the defendant’s motion for summary judgment on the plaintiff’s suit to recover $4,000 death benefit from a group insurance policy and denied the plaintiff’s companion motion for summary judgment. The basic issue to be determined here is the effective date of the policy and the effective date of the policy as to this beneficiary depends upon a determination of whether the term “compensated service” includes “vacation” pay. By denying the plaintiff’s motion and allowing the defendant’s motion, the trial court held that the term “vacation” pay is not included within the term “compensated service.”

The group insurance policy was dated January 13,1961, and was effective for compensated service during February and otherwise effective on March 1, 1961. The facts in the case are not in dispute. Thomas B. Patterson, the husband of the plaintiff, was a railway patrolman. His last day of actual work for the railroad was January 18, 1961. He was paid until February 2, 1961. The two days’ pay for February was marked V — meaning vacation. He died on July 7, 1961, without ever returning to active service with the railroad. The plaintiff contends that the payment on February 2, 1961, made the effective date of the policy as to her decedent February 1, 1961. The defendant, on the other hand, contends that since the February payment was “vacation” pay, it is not for compensated service and that therefore the effective date of the policy as to the decedent was March 1, 1961. Article II, ¶ 2 of the contract provides “an employee who shall have been in continuous active service . . . not less than 60 calendar days prior to the first day of the first calendar month following the execution of this policy contract and who shall have rendered compensated service within 90 days of such date shall become a ‘qualifying employee’ on such first day of the first calendar month following the execution of this policy contract.” Paragraph six of the contract provides “an employee shall cease to be a ‘qualifying employee’ (a) on the last day of the calendar month during which such employee has been placed on furlough or on leave of absence or has ceased to be in continuous active service . . .” The decedent ceased to be in continuous active service on January 18, 1961.

In Florence v. Travelers Ins. Co., 59 Ill App2d 470, 208 NE2d 95, the court had occasion to consider a contract similar to this one. In that case, the employment of the insured ended on May 12, 1960, when he became disabled. The provisions of the contract provided that the insurance should continue for a period of one year after such disability which prevents him from performing work in his regular occupation but further provided “after the date the Employee has failed to render compensated service for a period of One calendar year . . .” that no employee shall be insured. In discussing the term “compensated service” the court said at page 474, “The active employment of Jessie Florence by the B. & O. ended on May 12, 1960, when he was disabled, and this was the final date upon which he ‘rendered compensated services’ for his employer. He retired on April 11, 1961, and he died on May 11, 1962.” In that case, the court held that since the insured died on May 11, 1962, which was more than one calendar year after the last date he rendered actual and compensated service, he was not eligible to receive life insurance benefits at the time of his death. The defendant’s motion for summary judgment on this count of that complaint was affirmed. It would thus seem under the reasoning of that case that the term “compensated service” means service actually performed for which the insured is compensated. In the case at bar, there is no dispute but that January 18 was the last day upon which the insured rendered any actual service to his employer.

It should be further noted that an amendment to the policy in question was made on February 1, 1965, and that amendment provided that the policy would be effective “as to payments to the insurer on account of compensated service and vacation pay commencing with compensated service rendered and vacation pay received in February 1965, and otherwise shall be effective from March 1, 1965 . . .” The plaintiff argues that the amendment of 1965 confirms and puts into writing what was the implicit understanding between the parties prior to the 1965 amendment which was that vacation pay represents payments for working days earned by an employee. The difficulty with this position is that on July 10, 1961, the railroad forwarded its group insurance certification to the insurance company notifying it of the death of the employee and in that certification shows “compensated service last rendered January 18, 1961,” and answered the question whether the employee was eligible for death benefits by putting a mark in a box headed “NO.” If such an implicit understanding was actually in effect, it seems strange that the railroad company in the routine handling of claims of this type and character would indicate that they apparently did not consider vacation pay as compensated service within the terms of the policy by stating to the company that the employee was not eligible.

We would further observe that the 1961 amendment which brought the decedent’s group within the terms of the policy read, “This amendment shall be effective as to payments to the insurer on account of compensated service commencing with compensated service rendered in February 1961, and otherwise shall be effective from March 1, 1961.” Unless, therefore, vacation pay can be treated as compensated service, it seems clear that the decedent rendered no actual service during February. If such was the practice, there was no occasion for the 1965 amendment expressly including vacation pay. If it was the practice to so include it, it would seem that neither the records of the railroad payroll officer nor any extraneous evidence by affidavit or otherwise supports such a practice or implicit understanding. We fail to see any ambiguity in the language above quoted. It seems clear and explicit that as to the decedent the effective date of the policy was March 1, 1961, as he rendered no compensated service in February and none thereafter.

For these reasons, the judgment of the trial court must be and it is hereby affirmed.

Affirmed.

CRAVEN, P. J. and TRAPP, J., concur.


author: EBERSPACHER, J.

text:
    Hosea Lee Patterson, Plaintiff-Appellant, v. Mildred W. Stern and Harry Birkenstein, Individually and as Trustee Under the Testamentary Trust Created by the Last Will and Testament of Leon Weil and Weil and Eisendrath Company, Defendants-Appellees.
    Gen. No. 50,925.
    First Judicial District.
    October 18, 1967.

      Blaha, Hydler and Jackson, and Jerome H. Torshen, of Chicago (William A. Blaha and Jerome H. Torshen, of counsel), for appellant.
    Ross, Jacobson & Sorensen, of Chicago (Howard C. Sorensen, of counsel), for appellees.
   EBERSPACHER, J.

Plaintiff Patterson, an employee of Arenberg who was a tenant of a portion of a building leased by defendants Stern and Birkenstein, fell through a guardrail located in the outside wall of the building and suffered injuries. Plaintiff brought this action against the defendant landlords alleging negligence in the maintenance and possession of the building within the alleged control of the landlords. Defendants moved for summary judgment on the theory that the guardrail formed a portion of the premises leased to plaintiff’s employer. Summary judgment was entered for defendants and plaintiff here appeals.

Plaintiff prays reversal of the summary judgment on the theory that the allegedly defective guardrail was excluded from the demised premises by the explicit terms of the lease between plaintiff’s employer and defendants; that such guardrail formed a portion of the exterior wall within the control of the landlord; and that the evidence presented to the court in support of the oral motion for summary judgment, presented when the case was called for trial, was insufficient to demonstrate that there were no genuine issues of material fact between plaintiff and defendants.

Defendants contend that the trial judge properly entered summary judgment in favor of the defendants because (a) the guardrail, allegedly in a state of disrepair, which disrepair was the alleged cause of the occurrence which led to plaintiff’s injury, was in the exclusive possession and control of plaintiff’s employer by lease; and, (b) such railings were shown to be in a state of good repair.

Plaintiff’s complaint alleged that Arenberg had on August 3, 1965, leased from defendants a certain area on the 5th floor of the building and that defendants owed a duty to plaintiff, as well as to others lawfully present, to exercise reasonable care in the repair and maintenance of the premises, “more particularly the railing on the balcony adjoining the leased premises.” On the hearing on the motion for summary judgment a copy of the lease was put into evidence. It provided in part:

“. . . Lessor hereby leases unto . . . lessee, and the lessee accepts the premises known as one thousand (1,000) square feet located on the 5th floor, being the middle south portion between the rear chute door and fire escape, all located in the building at 2221 North Elston Avenue, Chicago, Illinois . . .” (Emphasis supplied.)

In support of defendants’ motion for summary judgment, they called as a witness an officer of certain of defendants. Over objection that the lease spoke for itself, he was allowed to testify that “the lease or all the leases in the building included common stairways, common elevator use of all the tenants, and common exits where there was more than one tenant per floor,” and that another tenant occupied a portion of the same floor. In addition, two photographs, one Defendants’ Exh. 2 showing the rear chute door referred to in the above quoted portion of the lease, closed and barred, the other Defendants’ Exh. 3 showing the same door open and exposing an area extending beyond the chute door and a wooden guardrail located 3 or 4 inches beyond the chute door, in the outside wall of the building, were admitted into evidence, over objection. The witness testified that the two exhibits correctly portrayed the general appearance of the area at the time of the accident. On cross-examination the witness admitted that he knew neither who had taken the photographs nor the date they were taken. He testified that the lessee was the only person who had access to open the door, (which opened inward onto the leased area), and that the only use the tenant ever made of the area beyond the door was to get air for ventilation, and that he made no use of it for any other purpose. There was no evidence that the tenant had ever used the chute or any of the area beyond the door for any other purpose, nor was it shown that the nature of the tenant’s operation on the leased premises was such as required the use of any portion of the building beyond the chute door.

On motion for summary judgment all inferences are to be resolved in favor of the respondent and summary judgment is not proper unless, viewing all evidence most favorable to respondent, there is no genuine issue of material fact. Di Battista v. Centennial Ins. Co., 52 Ill App2d 84, 201 NE2d 466. And the right to judgment must be clear beyond question, Solone v. Reck, 32 Ill App2d 308, 177 NE2d 879; and the whole record must be considered. Sampson Co. v. Mandel Bros., Inc., 3 Ill App2d 92, 120 NE2d 571. A motion for summary judgment should be denied if upon examination of the record it can be fairly said that a triable issue of fact exists. Des Plaines Motor Sales Inc. v. Whetzal, 58 Ill App2d 143, 206 NE2d 806.

We know of no rule of law which suspends the rules of evidence, including the parole evidence rule, in presenting testimony of a witness in lieu of supporting a motion for summary judgment with affidavits. Affidavits in support must be statements of fact and not mere conclusions, opinions or beliefs, and affiants must have personal knowledge of the facts stated. The same rule must apply to the testimony of a witness whose testimony is substituted for an affidavit. As an affidavit in support, it must be strictly construed and leave no question as to the movant’s right to judgment. Here, the witness’s testimony contradicts the terms of the lease which was in evidence; he was allowed to testify that no one besides the lessee had access to the chute door, although the lease specifically provided that the lessors could make alterations and improvements which would permanently close the opening and chute and make alterations to the “Building, or any part thereof, including the premises.” There was no evidence as to when the witness had viewed the door, chute, and railing, with reference to its condition of repair, yet he was allowed to testify that Defendants’ exhibits 2 and 3 correctly portrayed the general appearance “of the area” at the time of the accident, while on cross-examination he did not know who took the pictures or when they were taken. From his evidence, the last time he had seen the chute and railing could have been in 1956 when the lease was executed.

Defendants contend that since plaintiff offered no evidence to contradict the defendants’ evidence in support of the motion, that therefore the facts are not in dispute and they are susceptible of a single inference and, therefore, present only a question of law. Under the state of the evidence it was not necessary for plaintiff to produce any evidence or affidavit. At an early opportunity defendants put the lease into evidence; it disclosed that plaintiff’s employer was the lessee only of a well defined portion of the 5th floor which he was obligated to keep in repair, that lessors retained control of all portions of the building not leased for all purposes, including repair. Throughout the lease there is a consistent distinction between the building and the portion of the building, described as the premises, which is described as the area between the chute doors and the fire escape. It, of course, must be strictly construed since it was prepared by defendants and offered into evidence in support of their motion for summary judgment. The lease does not demise appurtenances to those premises and furthermore the testimony presented pertains to the doorway, not the exterior guardrail. If there is “a single inference” to be drawn, it is that the guardrail which allegedly gave way, was on the premises reserved to defendants. If the witness’s testimony raises any inference contrary to the written terms of the lease, the lease must prevail for the reason that all inferences on a motion for summary judgment must be resolved in favor of respondent, and disputed questions of fact cannot be summarily resolved.

Defendants urge that the chute doorway, the guardrail or railing and the double doors fit Bouvier’s definition of an appurtenance to a leasehold, and cites Bouvier’s Law Dictionary, Rawle Revision Yol 1, 224:

“The word has technical signification, and, when strictly considered, is employed in leases for the purpose of including any easements or servitudes used or enjoyed with the demised premises.”

This definition defines the term “appurtenance” as “employed in leases,” but in the case at hand the word appurtenance is not employed in the sections of the lease describing the premises demised, or those describing the obligations to repair.

The lease appears on its face clear and unambiguous, and there has been no showing by extrinsic evidence that it is uncertain in meaning. Defendants do not contend there is an ambiguity in it; instead they choose to ignore it as evidence. They do not contend that the word “between” used in the demise of the premises has a meaning other than the space that separates two things (the chute door and the fire escape) and which is not itself a part of either of the things that it separates. 10 CJS, Between, p 349. We are unable to find that Illinois courts have defined “between” with reference to distance. However, the above definition is consistent with the holdings of our courts where the word has been defined with reference to time, as including only an intervening period excluding terminal boundaries. Greenberg v. Nieman, 320 Ill App 99, 49 NE2d 817; Winans v. Thorp, 87 Ill App 297.

Ignoring the provisions of the lease, defendants contend that the railing is an appurtenance to the leased premises because there was testimony that the tenant had exclusive benefit and control of the doorway and thus of the railing some 3 to 4 inches beyond it, and which filled the opening in the masonry of the outside wall of the building beyond the doorway. As stated, the inference is otherwise.

As to benefit, the only evidence is that of lessee’s use of the doorway for ventilation; plaintiff’s injury occurred beyond the doorway and the allegedly defective guardrail had nothing to do with ventilation. Examination of this record leads us to believe that the greatest benefit provided by the existence of the doors, chute and guardrail, was that afforded the owners of the building by not being required to spend any money to remove it and close up the hole, or the benefit of having the chute open in the event the next prospective tenant might be engaged in an activity which would require its use, and thus make the premises more attractive to such prospective lessee. As to the control of the chute, doorway and railing, lessors specifically reserved control in the quoted section of the lease.

Defendants urge that the rule of law stated in Woods v. Lawndale Enterprises, 302 Ill App 570, 573, 24 NE2d 193, 195:

“As a general rule of law, a landlord is not liable for injuries on premises leased to a tenant and under the tenant’s control. This rule applies not only to the enclosed portion of the premises, but also to any entrance, passageway, etc., so long as these appurtenances are not reserved under the landlord’s control in common for the use of the tenants of the entire building.”

is to be applied in the present case. In that case “the leased premises are described as 4025 West Koosevelt Road” (302 Ill App 582) and the “entranceway was not reserved under the landlord’s control” and “the tenant expressly covenanted to keep the premises and the appurtenances in good repair.” (302 Ill App 583.) (Emphasis supplied.) That case followed the case of West Chicago Masonic Ass’n v. Cohn, 192 Ill 210, 61 NE 439, in which an injured plaintiff fell into a coal hole in a sidewalk of certain premises and brought suit against the owner. There the evidence showed that the tenant had agreed to make all repairs required to fixtures used in connection with the demised premises, (192 Ill 215), and “the portion so leased includes a vault under the sidewalk of a public street and a coal hole opening into the vault” (192 Ill 221). There the tenant had expressly covenanted he would keep the coal hole and the cover thereto in good repair, 192 Ill 218 and 221, and the court pointed out that in order for the general rule to be applicable, the evidence must show that the “tenant as against the owner, has, and is entitled to have, exclusive possession and control of the basement, coal hole and vault, and has covenanted to keep the same in good repair” 192 Ill 222. In the present case, the landlord retained control of the opening, chute and railing; the lease did not include them but excluded them by the preciseness of the description of the demise, and the tenant covenanted only to keep the demised premises in good repair and there were no covenants providing that the tenant should repair appurtenances or adjoining premises which had not been damaged by the tenant.

Kalil v. Wolldenroot Operating Co., 341 Ill App 58, 92 NE2d 786, involved actions against a tenant who was not negligent and the tenant of the balance of the building. It did not concern itself with landlord’s liability. As stated by the court in its opinion at 341 Ill App 60: “Plaintiff was given leave to amend his complaint against the owners, the remaining defendants.” Thus, the landlords remained in the suit after all tenants were absolved from liability for an accident which occurred on a vault door in a sidewalk.

In Jackson v. 919 Corp., 344 Ill App 519, 101 NE2d 594, the landlord was absolved of liability to a pedestrian who was injured by a falling glass panel. There the plaintiff conceded that the tenant had exclusive possession and control of the inner window, the breaking of which injured plaintiff. In that case the court pointed out that the tenant had covenanted to replace any and all broken glass “in and about said premises” and also that the “lessor did not retain any right to enter into the demised premises for purposes of inspection, repair or otherwise.” In the present case, the injury complained of did not result from broken glass, and the lessor not only reserved the right to enter the leased premises to repair, but reserved the right to alter the building closing the opening and the chute and to permanently fill the hole in the outer wall in which the guardrail was located, at lessor’s expense.

In Taylor v. Plain, 38 Ill App2d 159, 186 NE2d 544, there was a month to month tenancy, no lease was in evidence which showed any control in the landlord, rights to enter the premises by the landlord, or a description of any portion demised. In that case, plaintiff’s theory was that the area in which she was injured was a common way under control of the owner. The court affirmed the trial court holding that it was not. There the tenant was the lessee of both floors of a two-story building, not any specifically described portion thereof, and the door was clearly included in the leased premises.

The specific demise of an interior section of the building to one of several tenants therein with restrictive language such as that in the instant lease reserved to the landlord the responsibility for the outer walls. Ciskoski v. Michalsen, 19 Ill App2d 327, 335, 152 NE2d 479; Campbell v. Banks, 257 Ill App 354, 357; Burlingham v. Gordon, 201 Ill App 474, 476; Fairmount Lodge No. 590, A. F. & A. M. v. Tilton, 122 Ill App 636, 638. As stated in Ciskoski v. Michalsen, 19 Ill App2d 327, 152 NE2d 479 at p 335:

“In Burlingham v. Gordon, 201 Ill App 474 (1916), on p 476, the court quoted from 1 Taylor on Landlord and Tenant, sec 175a, where it is said:
“ ‘A demise of parcels out of a building leaves the responsibility for what is not demised, upon the landlord. The roof, halls and passages not demised, chimneys, eaves and outside walls, remain the landlord’s charge.’
“This rule was again quoted in Campbell v. Banks, 257 Ill App 354 (1930).” (Emphasis supplied.)

In the case at bar, the allegedly defective railing was the exterior of the building. In Burlingham v. Gordon, supra, the lease did not specifically mention the “exterior.” The court held that in view of the language of the lease the tenant did not agree to make outside repairs. Other courts have also held the landlord responsible for defects to exterior walls.

Defendants here have contended that the photographs are undisputed evidence that the doors, chute and railing are in a state of good repair. All they purport to show is a part of each of those three objects at a time undisclosed by this record. There is nothing in this record to disclose the size of the opening in the wall which these three objects fill, and we are not even able to determine how much of each of these objects are either included in the photographs or excluded therefrom, although it is obvious that no one of the objects is completely shown. As a result, their value as evidence in support of a motion for summary judgment, in the state of this record, is nil. There is no testimony in the record as to the condition of repair of any one portion of either the leasehold or those parts of the building adjoining it. As a result, nothing was offered relating to condition and state of repair that plaintiff needed to dispute, to defeat the motion.

We therefore conclude that triable issues of fact exist and the trial court was in error in entering judgment for defendants on the motion for summary judgment. The judgment of the trial court is reversed and the cause remanded with directions to try the case on the issues raised by the pleadings.

Judgment reversed and cause remanded with directions.

MORAN and GOLDENHERSH, JJ., concur.

       Defendants Stern and Birkenstein, are not the owners of record but are treated as such at law because they are the trustees of a testamentary trust under the Last Will and Testament of Leon Weil, deceased. They were signatories to the lease of Arenberg. The other defendant, Weil and Eisendrath Company, a corporation, was a tenant of a portion of the building which is not herein involved.

       Section 12 of the lease provided: “Repairs: Subject to the provisions of sections 10 and 18, Lessee shall, at Lessee’s own expense, keep the premises in good order, condition and repair during the term, including the replacement of all broken glass no matter how the same may be broken, with glass of the same size and quality with sign thereon, under the supervision and with the approval of Lessor. If Lessee does not make repairs promptly and adequately, Lessor may, but need not, make repairs and Lessee shall, upon Lessor’s demand, pay the cost thereof. At any time or times, Lessor either voluntarily or pursuant to governmental requirement, may at Lessor’s own expense, make repairs, alterations or improvements in or to the Building or any part thereof, including the premises, and, during operations, may close entrances, doors, corridors, elevators or other facilities, all without any liability to Lessee by reason of interference, inconvenience or annoyance. Lessor shall not be liable to Lessee for any expense, injury, loss or damage resulting from work done in or upon, or the use of, any adjacent or nearby building, land, street or alley. Lessee shall pay Lessor for overtime and for any other expense incurred in the event repairs, alterations, decorating or other work in the premises are not made, at Lessee’s request, during ordinary business hours.”

       Stupka v. Scheidel, 244 Iowa 442, 56 NW2d 874 (1953); Howe v. Howe, 266 App Div 799, 42 NYS2d 15, 16 (1943); Shines v. W. & Y. Realty Corp., 284 NY 647, 30 NE2d 494 (Court of Appeals, NY, 1940); Tucker v. Taksel (Mo App), 345 SW2d 385 (1961); Yorra v. Lynch, 226 Mass 153, 115 NE 238, 239 (1917) (party wall not specifically mentioned in lease giving tenant control of roof remained in control of landlord).


author: MR. JUSTICE DEMPSEY

text:
    James Lee Bass and Ellis Bass, Jr., Plaintiffs-Appellees, v. Rothschild Liquor Stores, Inc., a Corporation; Paulina Liquors, Inc., Now Known as Harvest Liquors, Inc., a Corporation, Defendants-Appellants.
    Gen. No. 51,136.
    First District, Third Division.
    October 19, 1967.

      J. Richard Stanton and Jones & Clark, of Chicago (Vincent M. Clark, of counsel), for appellants.
    Herbert A. Ellis, Arthur Aaron Ellis, and Morris W. Ellis (Ellis and Ellis, of counsel), for appellees.
   MR. JUSTICE DEMPSEY

delivered the opinion of the court.

This is an appeal by Paulina Liquors, Inc., from an adverse judgment in an action brought under the Dram Shop Act (Ill Rev Stats, c 43, § 135 (1957)). Harvest Liquors, Inc., is the name to which Paulina Liquors was subsequently changed, the corporation otherwise remaining the same. Rothschild Liquor Stores, named in the complaint, is not involved in this appeal. The appeal centers upon two issues: whether the evidence established a cause of action against the defendant under the statute and whether the conduct and arguments of the plaintiffs’ attorney deprived the defendant of a fair trial.

The case grows out of an automobile accident which occurred on March 7,1958, near the intersection of Adams Street and Western Avenue in Chicago. The plaintiffs, brothers, were passengers in an automobile which struck a tree, killing the driver, Paul Johnson, and injuring them. The liability of the defendant is predicated upon its having sold or given intoxicating liquor to Johnson, thereby causing or contributing to his intoxication and ultimately causing or contributing to his inability to control the automobile.

Liability under the Dram Shop Act is imposed when the evidence proves that the defendant dramshop keeper sold or gave alcoholic beverages which contributed to the intoxication of a third party and that his intoxication caused the injury complained of. Danhof v. Osborne, 11 Ill2d 77, 142 NE2d 20 (1957); Dunkelberger v. Hopkins, 51 Ill App2d 205, 200 NE2d 905 (1964). A person is intoxicated when, due to his consumption of alcoholic liquor, there is an impairment of his mental or physical faculties and a resultant diminution of his ability to think and act with ordinary care. Navarro v. Lerman, 48 Ill App2d 27, 198 NE2d 159 (1964).

The defendant first contends that the trial court erred in refusing to direct a verdict against the plaintiffs and that the jury’s verdict was contrary to the manifest weight of the evidence because there was insufficient proof that it sold or gave alcoholic liquor to Johnson.

Ellis Bass testified that Johnson drove him and his brother James to the wake of a friend. When they left the funeral parlor Johnson, who was sober and had not been drinking, drove them and two other friends to the corner of Paulina Avenue and Madison Street and stopped on Paulina across the street from the defendant’s store. He went into the store and Ellis, from his position in the car, observed the bartender reach over and give him something and saw Johnson “standing over the bar drinking; he had a half pint. . . . [H]e was drinking out of the bottle.” Fifteen or twenty minutes after Johnson entered the store, James Bass and one of the other passengers got out of the car to bring him back. Johnson did not appear to be intoxicated at that time but Ellis, who was sitting next to him, smelled whiskey on his breath. Johnson drove south on Paulina, made a “wobbly” turn west on Adams, accelerated to a speed in excess of 80 miles an hour and then hit a tree on the southwest corner of Adams and Western. It was Ellis’ opinion that Johnson was drunk before he lost control of the vehicle. This narration of events was substantially corroborated by James Bass. Further support for it was given by testimony of an assistant from the City Clerk’s office that on March 7th the defendant was licensed to operate a tavern, a package liquor store or a combination of both. In addition, the police officer who investigated the accident testified that the steering wheel was pushed hack against Johnson’s chest, his mouth was open and there was a strong odor of alcohol on him.

The plaintiffs’ version of how Johnson came to be intoxicated was sharply controverted. The defendant’s manager and a clerk testified that after August, 1957, no alcoholic liquor was served on the premises and there was a definite policy against drinking in the store. Samuel Rothschild, who testified for the plaintiffs as well as for the defendant, stated that he was an agent for the defendant and that in March of 1958 it did not serve intoxicating beverages for consumption on the premises. An investigator employed by the defendant testified that he interviewed the plaintiffs, wrote down their statements and saw them sign their names on each page. Both statements described the plaintiffs’ activities from early evening on March 7th till the accident and did not mention Johnson’s drinking at the defendant’s store. Ellis admitted drinking a half pint of whiskey with Johnson before going to the funeral home and falling asleep on the way home. He and James both acknowledged that Johnson was not intoxicated at the time of the accident. (The plaintiffs denied making the statements but agreed that their signatures were upon them.) The court reporter who attended the coroner’s inquest into Johnson’s death read the testimony of Ellis and James which in some ways corroborated the statements taken by the investigator.

The defendant also denied that the plaintiffs were able to see into its store. The manager, the clerk and Rothschild stated that on March 7th the windows of the stores were entirely covered with signs and that a partition behind the windows prevented anyone on the street from looking into the store.

The test to be applied in ruling upon a motion for a directed verdict is whether there is any evidence, or reasonable inference arising from the evidence, which tends to prove the material allegations of the non-moving party’s case. In determining whether there is such evidence, the weight and credibility of the evidence are not material, for the question is whether the party opposing the motion has as a matter of law failed to sustain the elements of his case. Mesich v. Austin, 70 Ill App2d 334, 217 NE2d 574 (1966). A verdict should not be directed if there is evidence supporting the opposite party’s case except in those rare cases in which all the evidence, when viewed in its aspect most favorable to the opposite party, so overwhelmingly favors the movant that no contrary verdict based on that evidence could ever stand. Pedrick v. Peoria & E. R. Co., 37 Ill2d 494, 229 NE2d 504 (1967). Applying this test to the evidence, it is obvious that the trial court properly refused to direct a verdict.

The findings of a jury will not be set aside as being against the manifest weight of the evidence unless it appears they are clearly and palpably lacking evidentiary support. Tihay v. Aurora City Lines, 79 Ill App2d 107, 223 NE2d 171 (1967). Especially is this so where, as in the case at bar, there are conflicts in the evidence. Klinkenberg v. Horton, 81 Ill App2d 152, 224 NE2d 597 (1967). Although there was evidence tending to exculpate the defendant, there was also evidence that Johnson was sober when he entered the defendant’s store, that the defendant’s license authorized it to sell alcoholic liquor for consumption on the premises, that a bartender reached over the bar and gave Johnson something, that Johnson stood at the bar and drank from a half-pint bottle, that he had whiskey on his breath when he came out of the store 15 minutes later, that he drove in an unsteady fashion before the collision and that he accelerated to a high speed just prior to the impact. This testimony supports the jury’s verdict, and it cannot be said that an opposite verdict was clearly warranted.

The second contention on appeal is that the conduct and argument of the plaintiffs’ attorney deprived the defendant of a fair trial. One instance occurred during final argument. Although there was no testimony about the illumination inside or outside the store, the plaintiffs’ attorney referred to the store as being “lit up like a Christmas tree” and said it “has got [sic] flood lights all over the place. . . .” In the defendant’s brief other instances of alleged misconduct and prejudicial argument are set forth. However, in its written post-trial motion the defendant specified only the occurrence just mentioned. The incidents not included in the motion are deemed to be waived, for it is unfair to charge the trial court with error without having brought the alleged errors to the court’s attention so that a new trial could have been granted had the court found it advisable. Ill Rev Stats, c 110, § 68.1 (2) (1965); Perez v. Baltimore & O. R. Co., 24 Ill App2d 204, 164 NE2d 209 (1960).

In his closing argument the defendant’s attorney said that the darkness of the night would have made it impossible for the plaintiffs to see into the store. Several other times he referred to the plaintiffs looking “in the dark.” These comments were not based on the evidence. In rebuttal the plaintiffs’ attorney made the point that a person looking from a dark place can see into a lighted place and he then made the statements complained of. The defendant’s attorney replied that there was no testimony that the lights were on, and the trial court said “Yes, Counsel.” Since to some extent the remarks of the defendants’ attorney provoked the argument, and the trial court expressed his agreement with defense counsel that the argument was not substantiated by the evidence, the prejudicial effect of the argument was minimal and could not have prevented the jury from fairly considering the issues before it.

The judgment is affirmed.

Affirmed.

SULLIVAN, P. J. and SCHWARTZ, J., concur.


author: MR. JUSTICE BRYANT

text:
    William J. Suwalski, Plaintiff and Counter-Defendant, Appellee, v. Arthur J. Suwalski, Defendant and Counter-Plaintiff, Appellant.
    Gen. No. 51,134.
    First District, Second Division.
    October 20, 1967.

      Basil N. Pyshos and Edward L. Stepnowski, of Chicago (Edward L. Stepnowski, of counsel), for appellant.
    Stanley Werdell, of Chicago, for appellee.
   On Rehearing

MR. JUSTICE BRYANT

delivered the opinion of the court.

This is an appeal from a decree of the Circuit Court of Cook County, imposing a resulting trust in favor of the plaintiff, William Suwalski on title to property at 5954 West Eastwood, Chicago, Illinois. On appeal the defendant argues that the findings of the Master and the trial court and the decree are contrary to the manifest weight of the evidence. The defendant also contends that the Master’s fees are excessive and that they should have been taxed against the corpus of the estate.

The transaction and surrounding circumstances culminating in this suit are as follows: In August of 1950, William Suwalski (“plaintiff” herein) and his wife (now deceased) undertook to purchase the property at 5954 Eastwood Avenue for their family home. The purchase price of the property was $15,500. Plaintiff and his wife were prepared to pay $4,500 and they hoped to obtain the remaining $11,000 through a mortgage of the property to Community Savings and Loan Association. Their hopes were disappointed when the Savings and Loan Company told them that in view of plaintiff’s age a loan of only $9,500 could be made secured by a first mortgage and a cosignor would be required on the note. Arthur J. Su-walski (“defendant” herein), the son of plaintiff and his wife, was in 1950 a bachelor residing with his parents. He agreed to supply the $1,500 which his parents lacked to make the purchase and to guarantee repayment of the loan.

On September 22, 1950, plaintiff and defendant signed and submitted to the Savings and Loan Association a mortgage application. On October 14, 1950, plaintiff and his wife, plaintiff’s attorney, Louis Klonowski (now deceased) and defendant, met with the representative of the Savings and Loan Association to sign documents pertaining to the purchase. Plaintiff, his wife and defendant executed a real estate contract, a mortgage and a note. On November 6, 1950, the purchase was completed and a trustee’s deed was executed naming plaintiff, his wife, and defendant, as joint tenants.

Plaintiff, his wife and defendant moved into the new home shortly after the purchase. Defendant married in 1953 and did not thereafter reside at 5954 Eastwood Avenue. His parents continued to live in the home. Plaintiff’s wife died in 1961 and plaintiff thereafter occupied the home by himself.

In 1963 plaintiff decided to sell the property. At that point he found that defendant’s name was included in the deed as a joint tenant. He demanded a reconveyance from his son and offered to pay him $1,500. The defendant refused this offer and this suit followed.

It was the plaintiff’s contention that the intent of the parties when the house was purchased was that defendant was merely lending his parents $1,500. The defendant answered that he was a purchaser for value and an owner in joint tenancy. He also counterclaimed in two counts. Count 1 of the defendant’s countercom-plaint averred that William J. Sulwalski severed the joint tenancy in 1963 by executing a mortgage and that as a result William Suwalski and Arthur Suwalski each hold title to an undivided one-half as tenants in common. Count 2 averred that Anna Suwalski and William J. Suwalski executed a joint mutual will, which was never rescinded, that this will was a contract, and that the beneficiaries thereof were Arthur J. Suwalski and his sister, Virginia Badgley, equally, subject to a life estate in William Suwalski, and further subject to a legacy of $1,500 due Arthur J. Suwalski.

The law on the subject of resulting trusts in Illinois is clear. Defendant cites two cases recently decided by the Illinois Supreme Court, First Nat. Bank & Trust Co. of Bockford v. Illinois Nat. Bank & Trust Co. of Rockford, 19 Ill2d 385, 167 NE2d 223, and Fender v. Yagemann, 29 Ill2d 205, 193 NE2d 794 (1963). The First Nat. Bank & Trust Co. case decided in 1960 in an opinion by Mr. Justice Schaefer is remarkably close on the facts to the instant case. That case recites law which is undisputed by either party. A resulting trust is based upon the presumed intention of the parties distilled from their conduct, and comes into being at the instant the title vests or not at all, the burden of proof being upon the party seeking to establish such a trust; and evidence, to be effective for this purpose, must be clear, convincing, unequivocal and unmistakable, and if doubtful or capable of reasonable explanation, upon any theory other than the existence of the trust it is insufficient.

Plaintiff attempted to meet this heavy burden of proof by showing the following facts: that aside from the original $1,500 advanced by defendant, he has not paid any of the costs incurred in connection with the purchase of the said premises; he has not paid any of the mortgage payments on the mortgage indebtedness of $9,500 and that the present balance due on that mortgage is now $724.41; he has not paid any of the taxes assessed against the premises; he has not paid for any of the repairs and improvements; he has not paid any of the water bills; he has not paid any of the insurance premiums on the premises; he has exercised no indicia of ownership or claimed any interest in the premises; he did not know until 1963 that he was in title; he has not at any time informed the plaintiff or his mother that he has or claims any interest in said premises; that the joint last will of plaintiff and his wife recited an idebtedness of $1,500 to the defendant. Plaintiff also introduced testimony of Virginia Badgley, Robert Badgley and Paul Mann, corroborating his own testimony to the effect that the plaintiff and his wife never intended to have the defendant’s name in the title. And plaintiff testified that attorney Klonowski did not inform him and that plaintiff did not know defendant was in title until 1963.

The defendant, in support of his argument denying that his intention had been to treat the $1,500 only as a loan, states: the application for a mortgage loan was signed by plaintiff and defendant only; the real estate contract was signed by all three persons; the note was signed by all three persons; the mortgage was signed by all three persons; mortgage payment receipts recite funds received from William Suwalski, et al.; the trustee’s deed named all three persons as grantees, and the fact of joint tenancy was inserted three times; payment by defendant of the $1,500 was directly to the Savings and Loan Association; that at the execution of the land purchase documents on November 16, 1950, his parents were represented by experienced counsel. Defendant also calls attention to the plaintiff’s testimony to the effect that he did not execute a note to his son, did not promise to pay the $1,500 and never paid any part of the $1,500 or interest thereon.

Plaintiff’s evidence requires some comment. It is undisputed that a resulting trust arises, if at all, at the time of the purchase and is based upon the intention of the parties at that time. Much of plaintiff’s evidence relates to the actions of the parties after the transactions in dispute. That evidence can be considered only for the light it might inf erentially shed upon the question of what the parties’ intentions had been at the time of the purchase.

The joint will of plaintiff and his deceased wife insofar as it describes the $1,500 as an indebtedness is self-serving and therefore inadmissible for the plaintiff. But it is a declaration against interest insofar as it recognizes the $1,500 payment made by the defendant and is for that purpose admissible by the defendant. First Nat. Bank v. Illinois Nat. Bank & Trust Co., supra.

The plaintiff relies upon West v. Scott, 6 Ill2d 167, 128 NE2d 734 (1955), to support the proposition that it becomes the burden of the defendant to rebut a presumption of a resulting trust where plaintiff’s evidence shows that the defendant’s name was added as a grantee in a joint tenancy deed merely to enable the plaintiff to get a loan on the property being foreclosed. The defect in this contention is that the plaintiff in the West case had raised the presumption of a resulting trust by showing that the plaintiff alone had paid the entire consideration for the property and the defendant had made no contribution. Thus, the circumstances of the West case are not matched by the facts of the instant case for the basis of defendant’s defense to this suit is his contribution of $1,500 of the initial purchase payment. The burden of proof, therefore, does not shift from the plaintiff.

Even accepting plaintiff’s contentions that he was unaware that his son was “in title” and that plaintiff’s attorney did not inform him of that fact, we cannot disregard the facts (of which plaintiff and his wife must have been aware) that the defendant’s signature was on the mortgage application, the real estate contract and the mortgage, as well as the loan note and that the defendant made payment of $1,500, not to the plaintiff and his wife, but directly to the Savings and Loan Company. These facts are not consistent with the theory that defendant was merely a lender and guarantor, for if that were so, there would have been no reason for defendant to have done anything but give his father the $1,500 and sign the note. It is also clear that the Savings and Loan Association understood from the outset that defendant was not merely a lender and guarantor. Finally, the facts that there was no note evidencing a loan from defendant to plaintiff, no agreement concerning interest or repayment and apparently no offer or demand for repayment over the thirteen years between the purchase and plaintiff’s attempted sale, suggest that this arrangement was not considered as simply a loan.

In our view the best argument that plaintiff can advance on this evidence is that the parties did not fully and clearly consider the arrangements they were making in 1950. This definitely does not meet the demanding test which the Supreme Court restated in First Nat. Bank v. Illinois Nat. Bank & Trust Co., supra. The decree of a resulting trust for the plaintiff must be reversed.

We turn to defendant’s counterclaim. Count 1 averred that the joint tenancy was severed by William Suwalski, plaintiff-counterdefendant, in 1963 when he executed a mortgage of the property. This point was not argued in appellant’s brief and is therefore waived under Supreme Court Eule 341 (e) (7).

Count 2 averred that William Suwalski and Anna Suwalski had executed a joint and mutual will which was a contract, that defendant-counterplaintiff was a third-party beneficiary thereunder, and that subject to a life estate in William Suwalski and a $1,500 legacy due defendant-counterplaintiff he was to share his parents’ estate equally with his sister, Virginia Badgley. On Page 11 of his Brief and Argument, appellant states: “Due regard for the existing law on resulting trusts would obviate all collateral issued (sic) as to the joint and mutual will.” Because we have reversed the decree declaring a resulting trust and because appellant’s statement makes it clear that Count 2 of the countercomplaint was pleaded as an alternative to defendant’s defense to the resulting trust suit we do not further consider the counterclaim.

Defendant also contends that the master’s fees are excessive and that the fees should have been assessed against the corpus of the estate. The trial court found that the certificate of services, fees and charges amounting to $2,819.87 by Joseph S. Fiffer, Master in Chancery, was reasonable. Defendant claims that this amount was excessive. We are of the opinion that the finding of the trial court on the matter of fees should not be disturbed.

The equities of this suit and counter suit require that the costs, including master’s fees, be shared equally by the plaintiff, William Suwalski, and the defendant, Arthur Suwalski.

The decree is reversed and the cause is remanded with instructions to enter a decree denying a resulting trust, apportioning costs equally and for further proceedings not inconsistent with these views.

Decree reversed and cause remanded with instructions.

LYONS, P. J. and BURKE, J., concur.


text:
    People of the State of Illinois, Defendant in Error, v. John Eddy (Impleaded), Plaintiff in Error.
    Gen. No. 51,785. (Abstract of Decision.)
    First District, Second Division.
    October 27, 1967.
    Noel I. Smith and Gregory B. Beggs, of Chicago, for plaintiff in error; John J. Stamos, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane, Fred Morelle, Jr., and Lawrence Genesen, Assistant State’s Attorneys, of counsel), for defendant in error.
   Opinion by JUSTICE BKYANT. Not to be published in full.