author: MR. PRESIDING JUSTICE SULLIVAN

text:
    Robert Snyder and Associates, Inc., Plaintiff-Appellant, v. John E. Cullerton, Director of Labor of State of Illinois, Fred A. Niles Productions, Inc., a Corporation, Defendants-Appellees.
    Gen. No. 50,613.
    First District, Third Division.
    September 15, 1966.

      Brown, Fox & Blumberg, of Chicago (Jacob L. Fox and Eugene L. Resnick, of counsel), for appellant.
    William G. Clark, Attorney General, of Chicago (Richard A. Michael, A. Zola Groves and John J. O’Toole, Assistant Attorneys General, of counsel), for appellees.
   MR. PRESIDING JUSTICE SULLIVAN

delivered the opinion of the court.

This is a proceeding brought by the plaintiff under the Administrative Review Act to review an order of the circuit court of Cook County, entered on February 17, 1965, which order affirmed the decision of the Director of Labor who determined that the plaintiff’s contribution rate under the Unemployment Compensation Act was 1.6 percent for the year 1960. Kling Film Enterprises, Inc. (Kling) had an unfavorable experience rating record and for rate determination purposes, this record must be charged either to Fred A. Niles Productions, Inc. (Niles), or to the plaintiff. If Kling’s record is charged to the plaintiff, it would tend to increase plaintiff’s 1960 contribution rate, and if charged to Niles, would tend to increase Niles’ rate for that year. The sole issue presented is whether, for unemployment compensation purposes, the unfavorable experience rating record of Kling should be attributable to plaintiff Robert Snyder & Associates, Inc. (Snyder), or to defendant Niles.

The Director of Labor found that the defendant Niles did not succeed to substantially all of the employing enterprises of Kling, and as a consequence, for rate deter-initiation purposes, the plaintiff Snyder was charged with the experience rating record of Kling.

It is the plaintiff’s theory that the evidence clearly indicates that defendant Niles succeeded to the business interests of Kling, and under the applicable provisions of the Unemployment Compensation Act, should have therefore been charged with Kling’s employment experience.

This case involves the construction of paragraph A of section 1507 of the Unemployment Compensation Act (Ill Rev Stats 1963, c 48, par 577) which provides, in material part, as follows:

“Contribution Rates of Successor and Predecessor Employing Units.) A. Whenever any employing unit succeeds to substantially all of the employing enterprises of another employing unit, then in determining contribution rates for any calendar year, the experience rating record of the predecessor prior to the succession shall be transferred to the successor and thereafter it shall not be treated as the experience rating record of the predecessor, except as provided in Subsection B. For the purposes of this Section, such experience rating record shall consist of all years during which liability for the payment of contributions was incurred by the predecessor prior to the succession, all benefit wages based upon wages paid by the predecessor prior to the succession, and all wages for insured work paid by the predecessor prior to the succession, on which contributions have been paid.”

On October 13, 1958, Kling, a corporation engaged in making commercial films for television and industrial use, sold its tangible personal property to defendant Niles, a corporation engaged in a similar business. Defendant operated its business at 22 West Hubbard Street, Chicago, and Kling operated from leased premises at 1058 Washington Boulevard, Chicago. Kling was a wholly owned subsidiary of the plaintiff until Kling was dissolved. Thereafter, the remaining assets and liabilities were distributed to the plaintiff in 1962. By virtue of the sale, the defendant assumed the lease of the Kling premises, and Kling agreed that it would not engage in the business of making commercial films for a period of 15 years following the date of the sale.

The purchase price of approximately $350,000 was payable $2,000 upon the consummation of the contract and the balance in annual installments. The sale was consummated on October 13, 1958, by the transfer to Niles of all of the tangible assets and leasehold improvements owned by Kling and used by it in its business, and the assignment to Niles of Kling’s lease. Niles also took over Kling’s telephone number since it could not transfer its Hubbard Street telephone number to the Washington Boulevard studio.

The tangible assets of Kling immediately prior to the sale consisted of cameras, lighting equipment, sound recording devices, and the related equipment and leasehold improvements required to synchronize and record image and sound on film. These assets, which cost Kling $452,302 and had a depreciated value on its books of $204,722, were all sold to Niles. Kling retained its cash, accounts receivable, certain prepaid items, and its investments in other companies, which had a value on Kling’s books of approximately $258,000.

At the time of the purchase Niles had tangible assets carried on its books at a value of approximately $117,063. The effect of the purchase was to increase the value of Niles’ tangible assets to approximately $469,295.

According to the testimony of Fred A. Niles, principal owner of Niles, Niles purchased no goodwill from Kling, nor the right to use its corporate name, because Niles did not want to be identified in any way with Kling. Kling’s record was such that any connection with Kling could mean trouble for Niles. It was agreed that Kling’s unfinished work would be completed by Niles but it was stipulated that Kling would bill the customers for the work and they would pay Kling. Niles’ sole interest was in the expansion of its own business. Consequently, Niles wanted only Kling’s facilities, its studio and its equipment.

At the time of the sale Kling had a library of film negatives, accumulated over a period of ten years. These negatives are owned by the customer but customarily retained by the studio. Niles agreed to retain custody of these negatives accumulated by Kling. The business from these negatives was very insignificant, and never exceeded 3% of the total business of Kling. Consequently, retention of these negatives was no assurance that Niles would receive any additional business.

Prior to October 13, 1958, Kling employed approximately 60 persons. Kling reduced its work force so that at the time of sale it had 43 employees on its payroll. The President of Niles, in negotiations with Kling, stated that Niles had “plenty of personnel” and had no need for Kling employees. Niles informed Kling that Niles would not agree to hire any of Kling’s employees, but that Niles would consider former employees if they were free agents and could be used by Niles. Fifteen of Kling’s employees were employed by Niles for varying periods of time. On October 13, 1958, four were hired by Niles — two secretaries, a set painter, and an electrican. Prior to October 13 three of Kling’s employees were hired by Niles. After October 13 seven persons who had been employed by Kling were hired by Niles. One of them worked for Niles for three days. Four of those hired worked for Niles for periods ranging from one to three weeks. Four of the persons hired were employed to work on the jobs which Niles was completing for Kling. Kling released those employees not taken on by Niles at the time of sale or shortly thereafter.

The plaintiff contends that the transaction between Fred A. Niles Productions, Inc. and Kling Film Enterprises, Inc. was a succession by the former to “substantially all of the employing enterprises” of the latter, as that phrase is used in section 1507 of the Unemployment Compensation Act and as it has been interpreted by the courts.

To understand the nature of the controversy in the instant case it would be well to set forth the method by which contribution rates are established for employers under the provisions of the Unemployment Compensation Act.

The Act provides for the accumulation of reserves during periods of employment to be used to pay benefits to workers during periods of unemployment. (Ill Rev Stats 1963, c 48, par 300.) To provide funds to pay unemployment compensation benefits, the Act imposes upon employers an obligation to pay a certain percentage of their payroll into the unemployment trust fund of this State. For the year 1960, these rates ranged from 0.1 percent to 4.0 percent. Employers who have histories of unstable employment tend to have higher contribution rates, and those who have histories of stable employment tend to have lower contribution rates.

Section 1507 of the Act authorizes the transfer of an employer’s experience rating to another only in cases where there has been a succession to substantially all of the employing enterprises of the predecessor employer. If the successor did not succeed to substantially all of the employing enterprises of the predecessor, the predecessor retains its experience rating record.

This court is obliged to upheld the decision of the Director of Labor with regard to plaintiff’s 1960 contribution rate unless it is clearly and manifestly against the weight of the evidence. (Ill Rev Stats 1963, c 48, par 703; c 110, par 274.) Under the statutory provisions the burden is on the plaintiff to establish that the Director’s decision is incorrect. The Supreme Court of this State has stated that the finding of fact and decision of the Director of Labor will not be disturbed unless manifestly against the weight of the evidence or unless not substantiated by the evidence in the record. (Spahn v. Department of Labor, 25 Ill2d 482, 185 NE2d 231; Myers v. Cummins, Director of Labor, 9 Ill2d 582, 138 NE2d 491.)

Both parties to this appeal agree that in determining whether Kling’s experience should be transferred to Niles, it is important to ascertain and to give effect to the legislative intent in enacting section 1507 (A). Prior to July 1, 1941, the Unemployment Compensation Act contained no provision for the transfer of employment experience. Recognizing the need for such a provision, the legislature enacted section 18(c) (6) which provided:

“. . . For the purpose of this subsection two or more employing units which are parties to or the subject of a merger, consolidation, or other form or reorganization effecting a change in legal identity or form shall be deemed to be a single employing unit for the purpose of computing contribution rates, if the Director finds that (a) immediately after such change the employing enterprises of the predecessor employing unit or units are continued solely through a single employing unit as successor thereto, and (b) immediately after such change such successor is owned or controlled by substantially the same interests as the predecessor employing unit or units. . . .” (Ill Rev Stats 1941, c 48, par 234.)

On July 1, 1943, section 18(c) (6) was amended so that subsection (A) (b) of the section read: “. . . (b) immediately after such change such successor is owned or controlled, directly or indirectly, by legally enforceable means or otherwise, by the same interests as the predecessor employing unit or units immediately preceding the date of reorganization . . . (Ill Rev Stats 1948, c 48, par 234.) Under each of these amendments the employing experience of a predecessor was passed to a successor only if the latter was “owned or controlled” by the same interests as the predecessor.

The Board of Unemployment Compensation and Free Employment Office Advisors was created by statute to study unemployment compensation, and to give recommendations to the Governor and General Assembly. On April 25, 1945, said board submitted a report to the Governor and the Sixty-Fourth General Assembly which recommended that the language of section 18(c)(6) which provided that the predecessor and successor employing units involved therein “should be considered and treated as a single employing unit” should be modified so as to set forth the rights and obligations of the parties with greater clarity and that the requirement of common ownership and control should be eliminated.

The report stated that under the then present provisions when an employer has earned a specific rate and sells the business to another employing unit, the purchaser does not secure the employment experience of the seller unless the purchaser’s business was continued solely through the seller, and the purchaser and seller units were owned or controlled by the same interests.

The board recommended an amendment to section 18 (c) (6) to remove the requirement that the predecessor and successor units be owned or controlled by the same interests, in order to qualify for a variable rate. The report stated: “The purchaser of a business ordinarily takes over all of the rights and liabilities of the seller, even though the two businesses are not controlled by the same interests. The present provisions are inconsistent with this concept, since they were based upon the theory that employment experience is a factor personal to the individuals who control a business. The Advisory Board was of the opinion that this theory is not entirely correct and that the nature of the business and the circumstances under which it functions are of major importance in the transfer of its employment experience. For this reason it is logical that the business should retain such experience despite changes in ownership. . . .” (Emphasis added.)

The board was of the opinion that the variable rate should be allowed to the successor when he takes over substantially all of the predecessor’s business; the inflexible nature of the requirement that the predecessor business be “continued solely through” the successor caused many inequities and administrative difficulties. The board stated that “the phrase ‘substantially all’ would accomplish the same results as the phrase ‘continued solely through’ and that . . . the former is more adaptable to the furtherance of the legislative intent.”

We must here note that nowhere in the report or recommendations of the board was it concerned with a mere transfer of assets, and no mention was made of assets. The board wanted to provide for the transfer of employment experience when the successor took over “subsequently all of the predecessor’s business.”

The recommendations of the board were adopted by the Legislature on June 7, 1945, in Senate Bill 361, and the bill was approved by the Governor on June 30, 1945. (Session Laws 1945, pp 767, 791, 792.) Section 18(c) (6) was thereby amended to incorporate the changes previously referred to. Syction 18(c)(6) was renumbered section 1507 (A) in Í951, (Ill Rev Stats 1951, c 48, par 577) and in all respects the statute remains the same today. (Cited supra.)

The plaintiff argues that the legislative history of section 18(c) (6) demonstrates that the Legislature broadened the coverage of the section when the requirement that there be a succession to “the employing enterprises” was changed in 1945 to “substantially all of the employing enterprises” and the requirement that the successor be owned or controlled by substantially the same interests as the predecessor was deleted.

We do not agree with this argument by the plaintiff. A review of the history of this section of the Unemployment Compensation Act reveals no intent on the part of the Legislature to broaden the coverage of the Act. The Advisory board specifically stated that the phrase “substantially all” would accomplish the same results as the phrase “continued solely through.” The phrase “substantially all” was inserted into the section to remedy the inflexibility of the requirement that the predecessor business be “continued solely through” the successor. In view of the history of the section, the argument of the plaintiff relative to the 1945 amendment is entirely unrelated to the legislative intent in enacting this amendment. The history of section 1507 (A) speaks for itself. It demonstrates that the intent of the Legislature was to permit a transfer of the predecessor’s experience rating record to a successor only when there has been a succession to substantially all of the predecessor’s business as a going business.

The use of reports of a statutory board is justified when the legislative body adopts the views embodied therein, and enacts them into law. Sutherland Statutory Construction, 3rd Ed, Vol 2, § 5006, pp 491-493, § 5010, pp 498, 499; Moran v. Bowley, 347 Ill 148, 155, 179 NE 526.

The plaintiff argues that the case of Ekco Products Co. v. Cummins, 5 Ill2d 307, 125 NE2d 526, is very similar to the instant case. There the predecessor (Minute Mop) manufactured and sold patented cleaning devices. The successor (Ekco) purchased Minute Mop’s machinery and equipment, inventories of finished goods and work in process, corporate name, goodwill, patent rights, licenses, trademarks, brands and trade names. Minute Mop also turned over to Ekco the manufacturing, processing, scientific, and technical data, records and drawings, lists of customers, sales correspondence, books of accounts, price lists, together with the other records and advertising materials used in its business. The factory building was subleased to Ekco. In order to continue the operations of Minute Mop, Ekco hired 61 of 65 Minute Mop employees. These employees continued to work on the same premises and in the same capacities after an orderly and uninterrupted changeover of management.

Ekco contended that it had not succeeded to substantially all of the employing enterprises of Minute Mop since approximately 75% of its predecessor’s employment producing assets were retained by Minute Mop. The Supreme Court rejected this contention and pointed out that Ekco had acquired the patent rights, licenses, lists of customers, trademarks, and corporate name of Minute Mop. The court considered it important that immediately after the sale, 61 of the 65 Minute Mop employees (93 % ) became employees of Ekco and continued in the same capacities. Also, the assets acquired from Minute Mop accounted for 97% percent of its sales.

It is apparent that the important facts in the Ekco case are quite dissimilar from those in the instant case. Rather than supporting the plaintiff, this case actually supports the decision of the Director of Labor. A comparison of the items transferred in Ekco to those transferred in the instant case is enlightening:

Disposition in Disposition in Ekco this case
Manufacturing equipment and machinery Transferred Transferred
Office equipment Transferred Transferred
Corporate name Transferred Not transferred
Inventories Transferred Not present
Covenant not to compete Given Given
Possession of premises Transferred Transferred
Good Will Transferred Not transferred
Disposition in Disposition in Ekco this case
Work in Progress Transferred Not transferred
Patent Rights Transferred Not transferred
Licenses Transferred Not transferred
Trademarks Transferred Not transferred
Trade Names Transferred Not transferred
Technical Data Transferred Not transferred
Lists of Customers Transferred Not transferred
Sales Correspondence Transferred Not transferred
Books of Accounts Transferred Not transferred
Employees Transferred 61 out of 65 (See below)

Insofar as the number of employees transferred to Niles, the plaintiff argues that 15 out of 43 were hired by Niles, while the defendants contend that only 4 out of 60 were actually employed by Niles as a direct result of the sale. The facts reveal that prior to the sale Kling employed 60 persons, but reduced this number to 43 at the time of the sale. Of these 15 worked for Niles subsequent to the sale. Of these 3 were already working for Niles prior to October 13, 1958, and therefore cannot be considered a part of the sale in question. Of the remaining 12 persons, 8 were first employed by Niles on October 20, 1958, and shortly thereafter. Their employment came about after Niles was in possession of the purchased premises, and obviously had nothing to do with the transfer. The remaining 4 persons (representing approximately 9 percent of Kling’s final production payroll) were acquired by Niles at the time of the transfer.

In terms of employees acquired, it is obvious that Niles did not acquire “substantially all.” The previous comparison of the items transferred in the instant case with those transferred in Ekco also reveals that the sale to Niles consisted essentially of physical assets.

The Ekco case distinguished between the New Hampshire statute which uses the term “assets” and the Illinois statute which uses “employing enterprises.” The court did not deny the validity of assets as one of the criteria to be used in an analysis of “employing enterprises,” but said at page 315:

“In enacting section 1507 the General Assembly based the transfer of employment experience upon a succession to a going business, a commercial or industrial project or undertaking responsible for giving employment to workers, and.not merely upon a succession to assets. Factors most directly related to furnishing employment will necessarily vary with different businesses, but the value of assets, alone, will rarely constitute the sole basis for determining the capacity of a business for furnishing employment.” (Emphasis added.)

In the Ekco case the transition which occurred by virtue of the change in ownership was orderly; orders were filled and sales were made without interruption. After the sale assets acquired by Ekco from Minute Mop accounted for 97% percent of its sales. These assets included Minute Mop’s corporate name, goodwill, patent rights, inventory of finished goods, licenses, trademarks, trade names, technical data, books of accounts, list of customers, price lists, and various records of Minute Mop. This is in sharp contrast to what happened in the instant case. The above mentioned assets were not transferred, there was not an orderly transition, and sales were not made by Niles to customers of Kling.

Plaintiff states in its brief that: “the real test is whether the capacity for furnishing or providing employment is transferred. ...” A necessary corollary of this reasoning would be that for an enterprise or asset to be an employment producing one, it would actually have to produce some employment. There is no evidence in the instant case that Kling’s enterprises or assets actually produced any such result after their transfer to Niles.

In the Ekco case the court stated at page 315: “It appears, however, that while Ecko disavows an interpretation of the phrase ‘employing enterprise’ as meaning solely the dollar value of assets, its argument approaches that position.” Similarly in the instant cáse, while plaintiff may disavow an interpretation of his argument that “employing enterprises” means assets, his argument actually approaches that position when he contends that Niles should be charged with Kling’s experience rating solely on the basis of a succession to physical assets. This argument was rejected by the court in Ekco, supra, and is rejected in the instant case.

We find that the decision of the Director of Labor is not contrary to the manifest weight of the evidence, and the plaintiff, Robert Snyder and Associates, Inc., was correctly charged with the experience rating record of Kling Film Enterprises, Inc.

Affirmed.

SCHWARTZ and DEMPSEY, JJ., concur.


source: Caselaw Access Project

author: STOUDER, J.

license: Public Domain

text:
    Orrin C. Hammond, Plaintiff-Appellee, v. The Prudential Insurance Company of America, a Mutual Life Insurance Company, Defendant-Appellant.
    Gen. No. 65-76M.
    Third District.
    September 16, 1966.
    Rehearing denied October 7, 1966.

      Miller, Westervelt & Johnson, of Peoria, for appellant.
    John Radley, of Peoria, for appellee.
   STOUDER, J.

Plaintiff, Hammond, commenced this action in the Circuit Court of Peoria County to recover hospital, medical and surgical expenses from the Defendant, Prudential Insurance Company, under the terms of a health insurance policy issued by the Defendant. The case was heard upon a stipulation of facts and resulted in a judgment in favor of Plaintiff in the amount of $1,433. Defendant appeals. No questions are raised concerning the pleadings and the facts are undisputed.

According to the stipulation of facts, Plaintiff, a truck driver, while operating his truck on the wrong side of the road on August 16, 1961, collided with another truck the resulting injuries including the loss of Plaintiff’s arm. Plaintiff made his last pickup for his employer in Peoria at 3:30 p. m. and the accident took place north of Peoria at 6:30 p. m., although Plaintiff has no recollection of what events if any, intervened. In the performance of his duties Plaintiff had no reason to be at the location of the accident. Plaintiff was intoxicated at the time.

Plaintiff filed his claim under the Workmen’s Compensation Act, chap 48, Ill Rev Stats 1959, alleging injuries compensable under the Act. The Arbitrator denied Plaintiff’s claim and thereafter Plaintiff perfected a review of the Arbitrator’s decision to the Industrial Commission. Pending review, a lump-sum settlement contract was approved by the Industrial Commission. The settlement contract itemized Plaintiff’s hospital and medical expenses describing them as unpaid. Plaintiff agreed to accept and later received $4,000 in full settlement of all claims and demands against his employer, including medical and hospital expenses.

The health insurance policy upon which Plaintiff’s action is based contains the following exclusion: “Exceptions applicable to Part IV: This Part IV does not provide benefits for loss (1) caused or contributed to by sickness or injury of the insured or a covered dependent if such sickness or injury is recognized as a compensable loss by the provisions of any Workmen’s Compensation Act or Occupational Disease Law under which such person is or could be protected on a mandatory or voluntary basis, whether or not such protection is so afforded.” Defendant claims that the exclusionary provision is applicable to the present claim and hence the trial court erred in entering judgment against it. For the purpose of its argument Defendant concedes that Plaintiff was not acting within the scope of his employment at the time of the accident. However Defendant argues that the question of whether or not Plaintiff was acting within the scope of his employment is immaterial since in fact the Plaintiff received a lump-sum settlement under the Workmen’s Compensation Act which settlement included the medical and hospital expenses herein sought to be recovered.

In support of the judgment, Plaintiff claims that the lump-sum settlement being substantially less than the benefits payable for the loss of an arm, was a compromise settlement and did not determine the compensability of the injury under the Workmen’s Compensation Act. Plaintiff argues further that since in fact he was not acting within the scope of his employment, the lump-sum settlement is not a bar to this action and further that the exclusionary provision is ambiguous as applied to the facts of this case.

In Fogelmark v. Western Casualty & Surety Co., 11 Ill App2d 551, 137 NE2d 897, the court held that the purpose of a similar exclusionary provision was to avoid the double payment of medical expenses and further that such an exclusionary provision must be considered to have incorporated by reference the provisions of the Workmen’s Compensation statute. See also Roop v. Farmers Automobile Management Corp., 15 Ill App2d 125, 145 NE2d 334, wherein the court held a similar exclusionary provision applicable where employee was required to and did reimburse his employer for all compensation paid, such reimbursement coming from a recovery from a third-party tort-feasor.

A compromise settlement as represented by the lump-sum settlement contract may not be determinative of the merits of an employee’s claim under the Workmen’s Compensation Act. However, to the extent that such lump-sum settlement may be deemed in payment of expenses appropriately recoverable under the Workmen’s Compensation Act, we can only conclude that such expenses are recognized as compensable under such Act. If the Plaintiff was recompensed for his medical expenses, the merits or demerits of Plaintiff’s claim under the Workmen’s Compensation Act is immaterial. The court in Kosick v. Hospital Services, 12 Ill App2d 291, 139 NE2d 619, considered problems similar to those involved herein and held that a lump-sum settlement under the Workmen’s Compensation Act precluded coverage of medical expenses under a health policy containing a similar exclusionary provision. Although the lump-sum settlement in the Kosick case was based on a previous Arbitrator’s award, including a specific amount for medical expense, we find no difference between the legal effect of such lump-sum settlement and the settlement in the instant case. We have examined the precedents relied upon by Plaintiff but we do not believe that they support a position contrary to that expressed herein. We believe that the medical expenses were included in the lump-sum settlement received by Plaintiff and that the exclusionary provision of the policy is applicable and bars recovery by Plaintiff.

Finding error in the judgment of the Circuit Court of Peoria County said judgment is reversed.

Judgment reversed.

CORYN, P. J. and ALLOY, J., concur.


author: MR. JUSTICE MCCORMICK

text:
    Vincent G. McGrath, Plaintiff-Appellee, v. Alton A. Davis and Maude L. Davis, his Wife, Defendants-Appellants.
    Gen. No. 49,975.
    First District, Fourth Division.
    September 16, 1966.

      Howard T. Savage, of Chicago (Earle M. Brooks and Robert C. Power, of counsel), for appellants.
    Lendol D. Snow, of Chicago, for appellee.
   MR. JUSTICE MCCORMICK

delivered the opinion of the court.

This appeal is taken from an order entered in the Circuit Court of Cook County ordering specific performance of a real estate contract for the sale of certain described real estate between Vincent G. McGrath, plaintiff, and Alton A. Davis and Maude L. Davis, his wife, defendants.

The plaintiff, buyer, and defendants, sellers, entered into a contract on January 9, 1968, in which the plaintiff agreed to purchase at the price of $23,500, and the defendants agreed to sell a certain parcel of real estate commonly known as 4455 Drexel Boulevard, Chicago, Illinois. On or about January 4, 1963, the defendants acquired title to the said real estate. They had purchased the property from the original owner through Charles Ringer Company, real estate brokers. At some time thereafter the broker informed defendants that he knew of a person who wished to buy the property for the price of $23,500. Prior to January 9, 1963, Charles Ringer Company contacted the plaintiff and prepared a contract between the plaintiff and the defendants. On January 9 the plaintiff executed the contract and left it, together with a deposit of $1,000, with Charles Ringer Company. Defendants executed the contract on the same day and a duplicate copy of the contract, signed by defendants, was delivered to the plaintiff within five days. The contract provided, among other things, that:

“VINCENT G. McGRATH, or Nominee, agreés to buy at the price of Twenty Three Thousand Five Hundred and No/100 ($23,500.00), which includes the mortgage indebtedness, if any, hereinafter specified, the following described real estate, in Cook County, Illinois (legal description of property), and ALTON A. DAVIS and MAUDE L. DAVIS, his wife, agree to sell said premises at said price, and to convey or cause to be conveyed to buyer good title thereto by stamped statutory warranty deed, with release of dower and homestead rights, . . .
“Rents, water taxes, insurance premiums are to be adjusted pro rata as of date of delivery of deed. Existing leases and insurance policies shall be assigned to buyer. General taxes for the year 1962 are to be prorated from January 1, to date of delivery of deed. If the amount of such taxes is not then ascertainable, prorating shall be on the basis of the amount of the most recent ascertainable taxes.
“Buyer has paid ONE THOUSAND AND NO/lOO ($1,000.00) Dollars earnest money to be applied on purchase price, and agrees to pay within five days after title is shown good or is accepted buyer, the further sum of TWENTY TWO THOUSAND FIVE HUNDRED AND NO/'lOO ($22,500.00) Dollars, provided deed as aforesaid shall be ready for delivery.
“Within twenty days from date hereof, seller shall deliver to buyer or his agent (which delivery may be made at office of Charles Ringer Company) as evidence of title covering" date hereof, showing record title in seller (or grantor) ... (2) Owner’s Guarantee Policy of Chicago Title and Trust Company in the amount of the purchase price or its customary preliminary report on title subject to the usual objections contained in such policies, though, if such report be furnished, seller shall deliver such guarantee policy when deed is delivered, but seller, on furnishing such report shall not be in default for failure to furnish policy until ten days after demand therefor by buyer, such policy or report on title to be conclusive evidence of good title subject only to the exceptions therein stated; . . . ((
“All notices and demands herein required shall be in writing. The mailing of a, notice by registered mail to seller at C/o Charles Ringer Company, 7915 Exchange Avenue, Chicago, 111., or to buyer at 7925 Racine Avenue, Chicago, Illinois shall be sufficient service thereof, on date of mailing.”

The contract also provided that the seller would pay a real estate brokerage commission to Ringer.

On February 8, 1963, the plaintiff filed a complaint in the Circuit Court, in which complaint he alleged that on January 9, 1963, plaintiff and defendants had entered into a written contract, copy of which was attached to the complaint; that plaintiff had duly performed all covenants and conditions on his part to be performed; that plaintiff had tendered to defendants the entire balance of the purchase price as set forth in the contract by depositing same with Charles Ringer Company, agent of defendants; that plaintiff had been at all times and still was ready, willing and able to complete the contract; that defendants had failed to perform the conditions prescribed in the contract inasmuch as they have failed and refused to exhibit evidence of title and to deliver a deed; and the plaintiff prayed that the court enter a decree of specific performance against the defendants.

The defendants filed an answer admitting that a contract was entered into between them on January 9, 1963, but denying that plaintiff had performed all the covenants and conditions on his part to be performed, denying that plaintiff had tendered to defendants the balance of the purchase price in accordance with the terms of the contract, denying that the defendants have failed and refused to exhibit evidence of title, and further de nying that the plaintiff made a timely request for the delivery of a deed. The defendants also filed an affirmative defense in which they allege that the plaintiff had “waived a current report of title and agreed to accept as satisfactory proof of title a certain Chicago Title and Trust Company report . . .”; that the plaintiff failed and refused to pay or tender the balance due on the purchase price within the specified time; and that defendants were ready and willing to deliver their deed.

On February 6, 1963, the plaintiff moved the court for a summary judgment requiring the defendants to specifically perform the" contract in question, and with the motion the plaintiff presented certain affidavits. In his affidavit he stated that the contract was executed on January 9, 1963; that $1,000 for earnest money was deposited with the contract with Charles Ringer Company; that Charles Ringer Company, within five days from the date of the contract, delivered to plaintiff a duplicate of the contract executed by the defendants. He further stated that the contract provides that within 20 days from the date thereof seller shall deliver to buyer, or his agent, evidence of title; and that no evidence of title has been delivered to the plaintiff within 20 days of the date of the contract, nor at any time since; that on January 28, 1963, the plaintiff requested from John J. Rewers (a salesman for Charles Ringer Company) evidence of title to the said real estate, and was advised by Rewers that this was not in the possession of Charles Ringer Company. Plaintiff further stated that the contract provides that within five days after title is shown to be good a further sum of $22,500 to complete the purchase price should be deposited with Charles Ringer Company, provided that a deed to the property shall be ready for delivery; that on February 1, 1963, the plaintiff delivered his certified check to the Ringer Company in the amount of $20,502.86, being the balance of the purchase price, less real estate tax and other deductions which were agreed to be prorated; and that on February 6, 1963, the plaintiff served a demand on defendants, in care of Charles Ringer Company, for delivery of a deed in compliance with said contract.

Affidavits, counteraffidavits, and a deposition were submitted to and considered by the court in the hearing for summary judgment. In Davis’ deposition he stated, among other things, that while it was agreed at the time the contract was signed that there would be a “complete passing of all the necessary papers and the cash,” he does not remember ever having executed a deed pursuant to the contract, and that he did not execute such a deed and deliver it to the buyer or Charles Ringer Company.

On April 9, 1964, the defendants filed a petition praying that the court deny a summary decree to the plaintiff. In that petition defendants contend that there were issues of fact in the cause; that Charles Ringer Company was representing the defendants and also representing plaintiff; that Charles Ringer Company as the agent of plaintiff, by parol waived the provision of the contract which required the defendants to submit evidence of title within 20 days from January 9, 1963; that thereupon the defendants were entitled to “an immediate consummation of the transaction”; and that the defendants were never informed that the plaintiff had deposited any earnest money with Charles Ringer Company.

On April 20, 1964, the plaintiff filed a verified reply to the defendants’ petition in which he stated that defendants had admitted the execution of the contract; that the question of the agency of Charles Ringer Company and Rewers, or either of them, is immaterial and irrelevant; that the defendants in their counteraffidavit state that they were at all times represented in the transaction by Charles Ringer Company through Rewers. The plaintiff further set out that there is no fact issue pointed out by defendants’ petition inasmuch as, even admitting there was a waiver of submission of title evidence, no allegation was made of the waiver of any other requirement of said contract, and “particularly that provision that a Deed shall be ready for delivery upon payment of the purchase price.” (Emphasis supplied.)

On May 13, 1964, the court entered a decree for specific performance in favor of the plaintiff and against the defendants. In that decree the court recited that after considering the pleadings, the depositions on file, the affidavits in support of the motion, and the counter-affidavit; and having heard the arguments of counsel, and “being otherwise fully advised in the premises,” there appeared to be no genuine issue as to any material fact presented to it, and the court thereupon ordered that the defendants execute, acknowledge and deliver to the plaintiff, within five days after the entry of the decree, a warranty deed with release of dower and homestead rights, conveying to plaintiff the described real estate, and setting out the legal description thereof. The decree also provided that the defendants’ conveyance should be “subject only to special taxes or assessments for improvements not yet completed, installments not due at date hereof of any special tax or assessment for improvements heretofore completed, general taxes for the year 1962 and subsequent years, building lines and building and liquor restrictions of record, zoning and building laws or ordinances, party wall rights or agreements, if any, roads and highways, if any; and that defendants let the plaintiff into possession of the . . . described real estate, . . .” The decree further provided that in the event the defendants did not execute a deed within a 5-day period a master in chancery was authorized to execute such deed; that simultaneously with the delivery of the deed, plaintiff would pay to defendants the balance of §22,500, less the pro rata amount of general taxes unpaid from January 1, 1962, to date of delivery of said deed, and that the deed should be delivered to plaintiff and the payment made by plaintiff at the office of Charles Ringer Company. The decree having been entered, the defendants thereupon took an appeal to this court.

The defendants argue here that all obligations of defendants under the contract of January 9, 1963, had ceased on January 14, 1963, by reason of plaintiff’s failure to deposit the balance of the purchase price specified in the contract, on or before five days after that date, since a broker-agent of the plaintiff had accepted the existing evidence of title on the date the contract bears, or January 9, 1963. It is also contended that the tender of the balance of the purchase price, if it was not too late, was less than the amount specified in the contract.

It is unnecessary to cite authority to support the well recognized rule in this state that a summary judgment cannot be entered where there is any material question of fact to be determined. Hence, it is necessary to analyze the issues in this case. It is agreed between the parties that they entered into a contract on January 9, 1963; that the contract required that the seller should, within 20 days, deliver to the buyer or his agent evidence of title consisting of either a guarantee policy from Chicago Title and Trust Company, or that company’s customary preliminary report of title, subject to the usual objections contained therein, showing the record title in the seller or the grantor.

The first contention of the defendants is that there was an agreement entered into either at the time the contract was signed or subsequent thereto, providing that there should be an immediate transaction with the entire purchase price to be paid forthwith; and that the plaintiff had accepted the title of defendants as good at the time the contract was signed. The important question before the trial court was as to whether the defendants had complied with their agreement and had tendered a warranty deed either to the plaintiff or to Charles Ringer Company. No waiver of this provision of the contract is alleged. The question as to whether or not there was a waiver of the contract requirement that the defendants furnish proof of title is immaterial. It is also immaterial whether or not the plaintiff accepted title without any further proof.

The contract specifically provides that buyer is to pay the balance of the purchase price “within 5 days after title is shown good or accepted by the buyer . . . provided deed as aforesaid shall be ready for delivery.” Therefore, buyer was not required to pay over the purchase price until the deed was ready for delivery. Since it is admitted that defendants had never prepared a deed, plaintiff was not required to pay over the money until the deed was ready, regardless of the acceptance of the title. When plaintiff deposited the balance of the purchase price with Charles Ringer Company, defendants had not deposited the deed as provided in the contract, and therefore, the court properly found that plaintiff was entitled to specific performance.

The entire picture of the transaction becomes somewhat clearer when we consider seller’s response to the question asked him during the taking of his deposition as to why he did not proceed with the transaction. He stated that it was because he wanted the property himself.

The defendants also argue that since the contract provided that the balance of the purchase price was $22,-500, and the plaintiff deposited with Charles Ringer Company the sum of $20,502.86, plaintiff did not comply with the terms of the contract. Under the terms of the contract the defendants should have deposited with Charles Ringer Company as escrowee, within 20 days after the date of the contract, proof of title at least consisting of a preliminary letter of Chicago Title and Trust Company, together with a properly executed deed. This he did not do. When the plaintiff deposited the sum in question he was depositing a sum which was more than sufficient to make up the agreed balance of the purchase price, when it is considered that there would be deductions properly made at the time of the proration.

The defendants cite Macy v. Brown, 326 Ill 556, 158 NE 216, as authority to support their contention that the amount of the tender made by the plaintiff was not sufficient; however, that case is not in his favor,- as the court said:

“. . . The technical rules that govern pleas of tender in actions at law are manifestly inapplicable to the circumstances of suits in chancery, and a court of chancery is not bound down by any fixed rule on this subject by which it will allow the substantial ends of justice to be perverted or defeated by the omission of an unimportant or useless act which nothing but the merest technicality could require. (Webster v. French, 11 Ill 254.) The main question in a case of specific performance is whether the complainant has made a conscientious effort on his part to comply honestly with the contract. [Citing cases.] The general rule is, that to entitle a purchaser to demand a deed and maintain a bill for specific performance it is sufficient that he is ready and offers to pay any sum that may be found to be due and still unpaid and to comply with the contract on his part.”

The defendants also argue in this court that the case of Chicago Bar Ass’n v. Quinlan and Tyson, 53 Ill App2d 388, 203 NE2d 131, revd in part, 34 Ill2d 116, 214 NE 2d 771, should be considered if Charles Ringer Company was the agent of both the buyer and the seller. Under the view we have taken that since the seller failed to deposit with Charles Ringer Company (admitted agent of the seller) a deed to purchaser, he did not comply with the terms of the contract. The question as to whether Charles Ringer Company was also the agent of the buyer, or whether or not he waived on buyer’s behalf any provisions of the contract, particularly the provision concerning the furnishing of proof of title to the buyer, is immaterial.

We find that the trial court properly ruled that there was no material issue of fact involved in the case and that the judgment decreeing a specific performance on the part of the defendant was proper. The judgment of the Circuit Court of Cook County is affirmed.

Affirmed.

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


author: MR. PRESIDING JUSTICE DRUCKER

text:
    People of the State of Illinois, Defendant in Error, v. Hazen Craig, Plaintiff in Error.
    Gen. No. 51,018.
    First District, Fourth Division.
    September 16, 1966.

      Julius H. Shapiro and Gerald M. Sachs, of Chicago, for plaintiff in error.

      Daniel P. Ward, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and Matthew J. Moran, Assistant State’s Attorneys, of counsel), for defendant in error.
   MR. PRESIDING JUSTICE DRUCKER

delivered the opinion of the court.

Defendant, Hazen Craig, was convicted of robbery after a jury trial and was sentenced to the penitentiary for a term of not less than three nor more than ten years. Defendant sued out a writ of error in the Supreme Court which transferred the case to the Appellate Court.

Contentions on Appeal

Defendant contends that he did not receive a fair trial because:

(1) the prosecutor’s closing argument to the jury was improper, in that he:

A. read the indictment to the jury, and
B. stated that the defendant had confessed to an assault and battery;

(2) the court erroneously allowed a prosecution witness to orally describe the subject matter of the robbery (a camera case) although the prosecution did not produce the camera case in court;

(3) cross-examination of a prosecution witness, Officer Lorenz, was improperly restricted; and

(4) statements of the trial judge to the jury were improper.

Evidence

According to the evidence adduced by the prosecution, on March 23, 1963, at approximately five minutes after midnight Officer Joseph J. Lorenz was working with a police undercover unit on South Loomis Street in Chicago. While he was walking down the street feigning drunkenness, dressed as a private citizen and carrying a camera case over his left shoulder, the defendant approached him and asked for a cigaret. After being given the cigaret defendant took Lorenz by the arm and led him across the street over the latter’s protests. Lorenz told the defendant to leave him alone, that he was all right and could take care of himself, after which the defendant departed. Lorenz continued to walk south on Loomis and did not see the defendant; he stepped into an alley (in which Officers William Nolan and Roosevelt Robinson were sitting in their automobile), hesitated for a few minutes, coughed a few times and then returned to the mouth of the alley at which time the defendant approached him. After again telling the defendant that he neither needed nor wanted assistance the defendant replied “I’m not going to help you” and reached across with his left hand and grabbed the camera case off Lorenz’ shoulder. As Officer Lorenz reached out to grab the defendant the latter swung a fist at him but missed, then hit Lorenz in the jaw with his elbow. Officer Lorenz regained his composure, drew his service revolver and yelled “Police Officer,” after which Officers Nolan and Robinson arrived on the scene and took the defendant into custody.

Officers Nolan and Robinson corroborated the testimony of Officer Lorenz with regard to the activity in the alley during which defendant grabbed the camera case. In response to questioning by Officer Nolan, the defendant admitted taking the camera case because he needed the money.

At the trial defendant denied that he grabbed the camera case and also denied that he had admitted to the police that he had done so. He stated that he approached Officer Lorenz and asked him for a cigaret but was told that he (Lorenz) had none; that defendant assisted Lorenz across the street; that Lorenz started down the street and, without turning around, said something about his race; that he walked up behind Lorenz, turned him around with the left hand and hit him with his right hand; and that he was then apprehended by the police.

Opinion

(D

A. Defendant claims that since the trial judge read the indictment to the jury at the voir dire examination, prior to trial, it was prejudicial error for the prosecution to reread the indictment to the jury in its closing argument. He contends that while the reading of an indictment to the jury is not objectionable, the court erred in not sustaining his objections to a rereading of the indictment. We find no error in this ruling. Additionally, in its instructions to the jury the court stated:

The indictment in this case is not to be considered as any evidence or presumption of guilt against the defendant. It is a mere formal charge necessary to place the defendant upon trial.

Therefore we find that no prejudicial error was committed in allowing the prosecution to reread the indictment to the jury in its closing argument.

B. The defendant admitted on direct examination that he struck Officer Lorenz because of the latter’s alleged remark concerning defendant’s race. In his closing argument to the jury the prosecutor "stated that by his testimony the defendant had confessed to committing an assault and battery.

A judgment will be reversed only when it is reasonably clear that improper remarks influenced the jury in a manner that resulted in substantial prejudice to the accused. People v. Woodley, 57 Ill App2d 380, 206 NE2d 743; People v. Stahl, 26 Ill2d 403, 186 NE2d 349. We do not believe that the defendant was prejudiced by the prosecution’s closing argument.

Moreover, under an indictment for robbery it is not necessary to prove the particular identity or value of the property taken, further than to show it was the property of the victim or in his care and had a value. People v. Lawler, 23 Ill2d 38, 177 NE2d 183. In the instant case, neither the existence of the camera case nor any of its features were in issue.

(2) Defendant argues that it was error for the court to allow a prosecution witness to describe the camera case since the prosecution did not produce the case in court nor did it explain its failure to do so. Defendant fails to note that Officers Lorenz and Nolan both stated that at the time of trial they didn’t know the whereabouts of the camera case. Officer Nolan stated that the case belonged to a member of their undercover unit, which had been disbanded and the members transferred to various areas.

Therefore, defendant’s contention is without merit.

In addition, the issue was waived by the failure to raise an appropriate objection in the trial court. People v. Bowlby, 51 Ill App2d 51, 201 NE2d 136.

(3) The issue of the restriction of cross-examination was not raised in defendant’s written motion for a new trial and is therefore waived. People v. Bridges, 67 Ill App2d 236, 214 NE2d 539. Moreover, we find no merit in defendant’s contention.

(4) On cross-examination of Officer Lorenz, defense counsel, in an-attempt to impeach the witness’ testimony, read from the statement made by the officer at the preliminary hearing. After it had been read extensively an objection by the prosecution was sustained, the court stating:

Counsel, you have read from there, and I don’t see anything substantially different from what the officer testified to.

No objection was made to the court’s comments and therefore the issue has not been preserved for review. People v. Jones, 29 Ill2d 306, 194 NE2d 239. Moreover, defendant does not urge that the trial judge erroneously sustained the prosecution’s objection nor does he contend that Officer Lorenz would have been impeached if counsel had continued to read from the statement.

Holding on Appeal

We find that the defendant received a fair trial and that he was proven guilty beyond a reasonable doubt. Therefore the judgment of the trial court is affirmed.

Affirmed.

McCORMICK and ENGLISH, JJ., concur.


text:
    James Riley, Plaintiff-Appellant and Cross-Appellee, v. School District 124, Board of Education of School District 124, Lee D. Nye, et al., as Members of the Board of Education of School District 124, and Virginia Rolph, Superintendent of School District 124, All of the City of Evergreen Park, County of Cook, State of Illinois, Defendants-Appellees and Cross-Appellants.
    Gen. No. 50,857.
    First District, Fourth Division.
    September 16, 1966.
    Rehearing denied October 2, 1966.

      Riley and Carlson, of Chicago (Richard F. Sprague, of counsel), for appellant.
    Arent J. Jacobson and Edward Wolfe, of Chicago, for appellees.
   MR. PRESIDING JUSTICE DRUCKER

delivered the opinion of the court.

Plaintiff appeals from a judgment entered on June 4, 1965, in favor of the defendants on Count II of his complaint in which it is alleged that the contract for his teaching services for the 1957-1958 school year was breached by the defendants by their refusal to allow plaintiff to teach. Defendants filed a cross-appeal from a judgment in favor of the plaintiff on Count I of the complaint for monies due him under a contract to teach for the 1956-1957 school year.

Plaintiff was employed pursuant to a written contract to teach the 7th and 8th grades at the Evergreen Park Elementary School for the school year 1956-1957. During the effective period of that contract the parties, on April 30, 1957, entered into another written contract (which was approved by the Board of Education on May 14, 1957) under which the plaintiff was to teach for the school year 1957-1958 at an annual salary of $5,700.

In February or March 1957, plaintiff applied for Naval Officer Training and on or about May 26 he received orders to report for active duty. However, neither his school superintendent (Mrs. Rolph) nor any other school official was notified that plaintiff was assigned to military duty until plaintiff’s wife called Mrs. Rolph on June 5 and informed her that he was taking his physical examination. Also on June 5 plaintiff wrote to Mrs. Rolph and informed her that he was departing that night but actually did not leave until after June 10, on which date he took an evening law school examination. The evidence is in conflict as to whether the plaintiff completed various required school records prior to his leaving before the end of the school term. (According to the defendants the school term ended on June 21.)

On July 16, 1957, Mrs. Rolph wrote the plaintiff a letter (addressed to him at Urbana, Illinois, where plaintiff was then enrolled at the University of Illinois) in which she expressed dissatisfaction with the plaintiff’s conduct, stated that the defendants attempted in vain to mail to him by registered mail the balance of salary due him for the 1956-1957 school year, and his resignation was requested. In response to that letter plaintiff on July 17 wrote Mrs. Rolph in relevant part as follows:

Upon receipt of the full amount of compensation due me for services rendered in the employ of District #124, I shall tender my resignation.

Subsequently plaintiff received a letter from the defendants dated July 18th with regard to the computation of salary due plaintiff. In that letter the defendants (1) inquired as to whether plaintiff intended to return certain maps which he had allegedly taken, and (2) notified him that they were deducting thirteen days from his pay for his absence in June (June 5 through June 21). On July 26 Mrs. Rolph wrote plaintiff that the Board of Education had regarded his letter as one of resignation and that the resignation had been accepted, whereupon the plaintiff responded on July 28 that he never had any maps in his possession and that there could be no acceptance of the resignation until there had been compliance with all of the terms thereof. On July 31 the defendants sent plaintiff a check for $327.38 (which was never cashed and, while plaintiff asserts that he mailed it back to the defendants, it has never been located) which defendants contended represented the amount of salary due him. On August 6 plaintiff wrote another letter to the defendants in which he asserted that five of the aforesaid thirteen days were improperly deducted because they represented days of a post-school conference which, he contended, “are not days to be included in the calculation of a teacher’s salary.”

In Count II of his complaint plaintiff alleges that he reported to the school on August 28, 1957, (the beginning of his contract) and tendered performance of his services as a teacher but the defendants refused to permit him to teach; that he “has always and at all times during and since the date of his employment as aforesaid been lawfully licensed, qualified and competent to teach . . . and has always . . . been ready and willing to teach. »

In his contract to teach school for the 1957-1958 school year plaintiff agreed that the contract was to be “subject to all the laws of the State of Illinois, now or hereafter in force.” Relevant Illinois law in force at that time provided that “no one shall teach or supervise in the public schools . . . who does not hold a certificate in qualification. . . .” (Ill Rev Stats, 1955, c 122, § 21 — 1.) Section 21-15 of chapter 122 (Ill Rev Stats 1955, c 122, § 21-15) requires the certificate to be registered annually and provides that:

Every applicant when issued a certificate shall pay to the county superintendent of schools a fee of $1.00 which shall be paid into the institute fund. Every certificate issued under the provisions of this Act shall be registered annually. The county superintendent of schools having supervision and control over the school where the teaching is done shall register the certificate before the holder begins to teach otherwise it shall be registered in any county in the State of Illinois and a fee of $2.00 for the registration or renewal shall be paid into the institute fund.

Plaintiff did not register his teaching certificate for the 1957-1958 school year, nor is there evidence that he has registered it at all since 1956. Plaintiff admits in his reply brief that failure to register a teaching certificate does not invalidate a teaching contract “as long as it is registered before a teacher begins to teach,” (emphasis supplied) citing Sloan v. School Directors of District #22, 373 Ill 511, 26 NE2d 846. Plaintiff argues, however, that he never “began” to teach because the defendants refused to allow him to do so, and that therefore registration of the certificate was not necessary. But according to the law (and plaintiff’s own admission) the certificate must be registered before he begins to teach.

Alternatively, plaintiff argues that section 21-15, supra, “merely provides for registration of the certificate annually. If this is done by the county superintendent before the holder begins to teach, its cost is only $1.00, if registered after that, the cost is $2.00.” Upon a careful reading of the statute in question, we believe that it requires a certificate to be registered annually before the holder begins to teach; that if he registers in the county where the teaching is done, the cost is $1 but if the holder chooses to register his certificate in some other county, an additional fee of $1 is charged.

We find that since the plaintiff had not registered his certificate to teach for the 1957-1958 school year by the first day of school he could not have tendered his services to teach. Plaintiff did not comply with the law of this State, as incorporated into his contract, and therefore he is precluded from recovery under that contract. We therefore affirm the judgment of the court on Count II of plaintiff’s complaint. In light of our decision on this issue we need not address ourselves to the controversy as to whether the plaintiff abandoned his contract to teach or whether his resignation was effected.

With regard to defendants’ cross-appeal from the judgment in favor of the plaintiff for $490 under Count I of the complaint, the question as to whether plaintiff completed the records as required of him by statute was for the trial judge as the trier of fact to determine. Similarly, whether plaintiff completed the records as required by the School Board (in accordance with his contract) or, if not, whether he was in substantial breach of his contract, was also for the trial judge to determine. The trial judge heard the evidence and saw the witnesses, and his findings should not be disturbed by a reviewing court unless they are against the manifest weight of the evidence. Reese v. Laymon, 2 Ill2d 614, 119 NE2d 271. We find that the judgment of the court on Count I was not against the manifest weight of the evidence.

Therefore the judgments of the trial court are affirmed.

Affirmed.

ENGLISH and McCORMICK, JJ., concur.

       While the judgment was entered on June 4, 1965, the plaintiff’s complaint was filed on February 20, 1959; on February 20, 1961, an order was entered dismissing the case for want of prosecution, which order was vacated on March 10; on March 30, 1965, the ease was again dismissed for want of prosecution; on April 26 a petition was filed requesting the court to vacate the aforesaid order of March 30 and, while the parties proceeded with the understanding that the case had been reinstated, we find no order of the court to that effect.

       According to the uncontroverted testimony plaintiff reported to work in September on the first day of school.

       Mr. Burdyl, Principal of Central Junior High School in Evergreen Park and plaintiff’s immediate supervisor, testified:
      Our School Board decided to put into the school system for the New Year which was starting in the following fall, an entirely new program. The purpose of it [referring to a conversation with the plaintiff on May 21, 1957] was to determine whether Mr. Riley would fit into this program or come back to the school system next year. . . . Mr. Riley told me, “Next year I will be far away from here, that I didn’t need to worry about him coming back.”

       Assistant County Superintendent of Schools Ray Etherton testified that: “[A] person . . . could not teach unless he had registered his certificate each year.”

       We note that while plaintiff alleged in his complaint that he was “ready and willing” to teach, he does not allege that he was “able” to teach.


text:
    People of the State of Illinois, Defendant in Error, v. Jesse E. Johnson, Plaintiff in Error.
    Gen. No. 50,918.
    First District, Fourth Division.
    September 16, 1966.
    David N. Rosner, of Chicago, for plaintiff in error.

      Daniel P. Ward, State’s Attorney of Cook County, of Chicago (James Gildea, Assistant State’s Attorney, of counsel), for defendant in error.
   MR. PRESIDING JUSTICE DRUCKER

delivered the opinion of the court.

Defendant was indicted for the unlawful sale of narcotics (Indictment No. 62-2655) and in a separate indictment (No. 62-2656) was charged with burglary. He was convicted after a bench trial of the former charge and was sentenced to the penitentiary for not less than ten years nor more than ten years and one day. Defendant pleaded guilty to the burglary charge and was sentenced to the penitentiary for not less than one nor more than three years, the sentences to be served concurrently. Defendant sued out a writ of error in the Supreme Court with regard to the proceedings under both indictments and the cause was transferred to this court. No error is now urged with regard to the plea of guilty under Indictment No. 62-2656. In his appeal from the conviction under Indictment No. 62-2655 defendant contends (1) that he was not proven guilty beyond a reasonable doubt of the unlawful sale of narcotics, and (2) that the package of narcotics which he allegedly sold was improperly introduced into evidence.

The defendant was arrested on September 13, 1962, and charged with the illegal sale of narcotics to Willie Jordan, a police informer, on August 3, 1962. According to the evidence adduced by the prosecution, Jordan had arranged with the defendant at about 1:00 p. m. on August 3, 1962, for the sale of $30 worth of heroin, to be consummated at 5:00 p. m. that same day at 63rd and Morgan Streets; that at "about 4:30 p. m. of that day Jordan was searched by three Chicago police officers and Inspector Mitchell Ware of the State of Illinois Narcotics Division; that after finding him devoid of all money and narcotics Jordan was given three prerecorded ten dollar bills; that he was picked up by the defendant in a red automobile on the corner of 63rd and Morgan in Chicago, Illinois, and that defendant told him he had the “stuff,” whereupon they proceeded to 64th and Halsted to pick up an unidentified woman after which they drove to an apartment building at 1156 West 65th Street. While the officers attempted to follow the defendant after he picked up Jordan, they lost sight of the defendant’s automobile shortly thereafter for a ten or fifteen minute period, but regained sight thereof in time to observe all three occupants of the automobile enter the aforesaid apartment building. The officers remained outside the building. Jordan testified that they went to a third floor apartment and were let in by a young lady named Alice; that defendant told her he wanted to transact some business; that “he wanted to measure out some stuff for me”; that she told them to go to the basement which they did, whereupon the defendant tore open a tinfoil package which he had taken from his pocket and dumped the contents into another piece of foil; that defendant handed the foil package to him but since there was an amount less than one-sixteenth Jordan told the defendant he would pay only $25; that he gave the defendant two of the prerecorded ten dollar bills but retained the other because the defendant had no change; that the three of them reentered the defendant’s automobile and proceeded to a grocery store at 62nd and Racine (followed by the officers) ; that he (Jordan) went into the store alone and bought three bottles of “pop” to procure change for the ten dollar bill; that he returned to the defendant’s automobile, gave him $4.70 and defendant departed; and that he (Jordan) then went to Inspector Ware’s automobile which was parked nearby and handed him a five dollar bill and the foil package which he had received from the defendant (the package being introduced into evidence as People’s Exhibit 3). The officers did not attempt to recover the prerecorded ten dollar bill which purportedly was cashed at the store by Willie Jordan and none of the other prerecorded bills allegedly given to the defendant was ever recovered. Defendant was subsequently arrested on September 13,1962.

Willie Jordan stated on cross-examination that he is employed as an upholsterer and works an average of seven to eight months a year and that he is paid by the State of Illinois for his work as an informer. With regard to his rate of pay as an informer Jordan stated:

Well, it varies. It is usually according to how long it takes to make a case. Therefore, I mean I have my expenses and I get paid by the day. Then also according to how large the case is.

The defendant testified in his own behalf and stated that while he had been an acquaintance of Jordan’s for about two years he knew him only as “Howard.” Defendant admitted picking up this “acquaintance” (Jordan) and the woman (whom he identified as Opris Williams, a good friend) and driving to the apartment building on 65th Street as testified to by the prosecution’s witnesses, but denied having a prearranged meeting with Jordan and also denied complicity in the sale of narcotics. He stated that as he drove by 63rd and Morgan:

He [Jordan] was standing on the corner. I pulled up to the stop light and he called me .... He came over to the car and got in. He asked me would I take him to 65th Street to take care of some business . . . . I took him to 65th right off Racine, and went upstairs to this third floor. He went — he knocked on the door. This woman answered the door. He went into the apartment. I waited outside in the hallway. He was in there for 15 or 20 minutes.

Defendant further stated that the aforesaid apartment belonged to one Kenneth White, whom he had known for four or five years, and that he had known the woman, Alice, who answered the door, for about three years; that upon leaving the apartment they drove to 62nd and Racine where Jordan bought some “pop” for which he (defendant) paid; that Willie Jordan never asked him to get narcotics; and that he (defendant) had previously been a narcotics’ addict for two and a half years but had broken the habit three or four months prior to his arrest.

Opris Williams, whom the defendant identified as a good friend, was not called to testify.

A stipulation was entered into that if John D. Endriz were to testify, he would testify that he was a chemist employed by the United States Government Revenue Laboratory; that on August 22, 1962, he examined People’s Exhibit 3 and determined that it contained the narcotic drugs heroin and dormin.

Defendant asserts that the police informer, Willie Jordan, is “an admitted narcotics user” and that his testimony is uncorroborated. From this defendant argues that he was not proven guilty beyond a reasonable doubt, relying principally upon People v. Bazemore, 25 Ill2d 74, 182 NE2d 649. The instant case, however, is substantially similar to People v. Carter, 69 Ill App2d 448, 217 NE2d 413, in which Bazemore was held to be inapplicable. In Carter the police informer (Theodore Hall), after being subjected to the customary search and examination by two police officers, entered DeMarco’s Restaurant with ten prerecorded one dollar bills. The officers took positions outside the restaurant and kept Hall under surveillance through the window. The court further stated the facts at page 450:

After about 20 or 30 minutes, the defendant, John Carter, emerged from the back of the restaurant, and Hall met him in front and they took a cab to Chicago Avenue and Cambridge, where they left the cab. They walked north a short distance, turned west at a corner, and entered defendant’s apartment. While in a small entranceway, Hall gave defendant the recorded bills, and defendant went upstairs. Hall saw “an old woman in the kitchen by the sink, and I heard a woman’s voice upstairs and John Carter’s voice.” Defendant returned shortly, and while they were in the entranceway he gave Hall a tin-foil package. They walked back to Chicago Avenue and took a cab back to Division and State, where defendant returned to the restaurant and Hall went over to the officers and handed Officer Tobin the tinfoil package. The officers followed them on both cab trips and saw them while they were walking on Canbridge [sic], but lost sight of them when they turned west at a corner and did not observe them again until they returned on foot and entered the second cab.
The officers field-tested the contents of the tinfoil package and found narcotics. The officers then proceeded to DeMarco’s Restaurant and arrested defendant. They searched defendant, the restaurant and his home and did not find the prerecorded bills or any additional narcotics.

In holding that People v. Bazemore, supra, was not controlling the court at page 452 quoted with approval from People v. Romero, 54 Ill App2d 184, 203 NE2d 635:

“Although the testimony of a narcotic addict is scrutinized with caution, his testimony may be sufficient to sustain a conviction if it is credible under the surrounding circumstances. . . . The test is not whether an addict informer’s testimony is uncorroborated, but whether his testimony is credible under the surrounding circumstances.”

In rejecting the defendant’s argument that there was insufficient continuity in the surveillance of the informer to prove him guilty beyond a reasonable doubt, the court stated at pages 452, 453:

Defendant argues that in the restaurant, Hall may have transferred to the counterman “the prerecorded funds and obtained the narcotic drug, and then, to divert attention from his source of supply, . . . implicated the defendant,” and further, “it was not the responsibility of the defense to explain what had actually happened” at defendant’s home “since there was no testimony other than that of the informer that a sale of a narcotic drug had occurred there.” We note here, however, that with the exception of these two periods, the defendant and the informer were together under the constant surveillance of the police from the time they left the restaurant until they returned, when the informer delivered the tinfoil package to the police officers, and defendant was arrested in DeMarco’s.

We would point out that while the defendant in Carter was arrested shortly after the informer handed the foil package to the police, none of the prerecorded funds was ever found on the person of defendant, in the restaurant or at his home.

In the instant case the police kept the informer, Willie Jordan, and the defendant under constant surveillance during the automobile ride with the exception of a fifteen or twenty minute interval. Furthermore, while the officers did not enter the apartment on 65th Street they did observe the defendant, Jordan and a girl enter and leave. Though defendant was not arrested immediately upon receipt of the foil package of narcotics by the officers his identity was known at that time. The trial judge apparently believed the testimony of Willie Jordan, corroborated in part (but at no point contradicted) by the police officers, and did not believe the defendant when he testified: (1) that he picked up a man on the street corner whom he knew only as “Howard” without any prior appointment or arrangement to meet him and went out of his way to drive the latter around to take care of some business; and (2) that he remained in the hallway outside the apartment of Kenneth White for about twenty minutes but was not invited inside. Further casting a shadow upon the reliability of defendant’s testimony is: (1) that he claimed that he ceased being a narcotics addict three or four months prior to his arrest after two and one-half years of addiction; and, (2) that he stated on direct examination that he worked periodically as a waiter at McCormick Place, but on cross-examination admitted telling Inspector Ware at the time of his arrest that he worked for Fuller Products.

In People v. Romero, 54 Ill App2d 184, 203 NE 2d 635, the court stated at page 189:

This court will not substitute its judgment on the credibility of witnesses and the weight to be given their testimony where the trier of fact saw and heard their testimony, unless we can say that the proof was so unsatisfactory as to justify a reasonable doubt as to the defendant’s guilt.

We find that the proof in the instant case was not so unsatisfactory as to justify a reasonable doubt as to the defendant’s guilt.

Defendant also asserts that the package of narcotics which he allegedly sold to Willie Jordan (People’s Exhibit 3) was marked “8-6-62” whereas the alleged sale occurred August 3,1962. From this defendant argues that the aforesaid package of narcotics was improperly admitted into evidence. The package in question was unequivocally identified by Inspector Ware as being the same one which he received from Jordan on August 3. Moreover, there is no testimony that he marked the date on the package simultaneously with marking his initials nor that the date of the alleged sale is the date which is customarily marked on the package. We find no error in admitting People’s Exhibit 3 into evidence.

Therefore the judgments of the trial court are affirmed.

Affirmed.

ENGLISH and McCORMICK, JJ., concur.

       On redirect examination the defendant stated that he was not actually working for Fuller Products but that he would buy merchandise from them and sell it himself.


author: MR. JUSTICE MURPHY

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Odessa Williams, Defendant-Appellant.
    Gen. No. 49,706.
    First District, First Division.
    September 19, 1966.

      Gerald W. Getty, Public Defender of Cook County, of Chicago (Frederick F. Cohn and James J. Doherty, Assistant Public Defenders, of counsel), for appellant.
    Daniel P. Ward, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and James B. Zagel, Assistant State’s Attorneys, of counsel), for appellee.
   MR. JUSTICE MURPHY

After a bench trial, defendant, Odessa Williams, was found guilty of the offense of unlawful possession of a narcotic drug. She was sentenced to the penitentiary for a term of 5 to 7 years.

On appeal, it is not disputed that defendant was improperly sentenced. For that reason, we consider only defendant’s contentions (1) that the evidence was not sufficient to support a finding of guilty; and (2) that there were prejudicial trial errors.

On July 18, 1962, five police officers proceeded to 4042 West Jackson Boulevard, pursuant to a warrant in which were named Odessa Williams and one Johnny B. Four police officers testified that the defendant was present in the apartment when they entered, and that narcotics were found in a chest of drawers in the apartment, which defendant substantially admitted belonged to her. Three witnesses for the defense testified that defendant entered the apartment while “the raid was going on.” Defendant denied that there were any narcotic drugs in her apartment.

Officer DeLeo testified that he went to the apartment with Officers Duffy, Mrozek, Donovan and Boyle. Officer Duffy had a search warrant and knocked on the rear door at about two o’clock in the afternoon. Defendant walked out, and Officer Duffy showed her the warrant, and “we walked into the apartment. . . . There were two men sitting in the dining room off the kitchen. These two men were Johnny Rosemont and John B. Cooper. I walked approximately into the bedroom at the far end of the hall. ... I began a search of the dresser drawers and chest of drawers. I searched the closets of that bedroom. There were female clothes in the closet. In the chest of drawers, a second drawer, I found a package. It was a tinfoil package. I opened the tinfoil package. In its contents I found a white envelope which contained a white powder substance. . . . Immediately after I found these exhibits, I called Officer Duffy into the bedroom. Present at this conversation was Officer Duffy, myself, and the defendant. Officer Duffy had taken the exhibits from my hand the white substance, and asked her if this belonged to her. She said, ‘Everything in here belongs to me, so it must be mine.’ Words to that effect.”

On cross-examination, Officer DeLeo said, “The narcotics here I found myself. No one was with me when I found them. Officer Duffy was in the bathroom at that time. I was in the apartment for approximately 45 minutes before I found the narcotics. As soon as I entered the apartment, as I testified on direct examination, I walked directly into the bedroom. When I went directly into the bedroom, the defendant was standing at the door talking to Officer Duffy, who showed her the warrant. I walked directly by them. ... I was searching myself; I’m not positive what the other officers were doing. The tinfoil package was found and inside it was found a white envelope. In the bottom part of the drawer of the chest of drawers a separate 2 sections of the chest of drawers I found the pills, tinfoil wrappings of different sizes of tinfoil. I did not find anything else in the bedroom. I did' not find any narcotics in the closet. I found clothing. . . . The clothing was still in packages of the store. The clothing was taken from the closet and inventoried and sent to the Custodian’s Office. ... In my presence Officer Duffy asked the defendant if the narcotics belonged to her. I couldn’t say exactly what words Officer Duffy used. But words to the effect, ‘Does this belong to you,’ indicating the narcotics in his hand. The package was opened at that time. We field tested the package just before she arrived.

“Q. Just before she arrived?
“A. Before he called her in, before he went to get her and brought her back into the apartment.
“Q. Officer, you said, ‘Just before she arrived?’
“A. That was a mistake by me, before.
“Q. I heard what you said, you said, ‘Just before she arrived’ you field tested it. Did you ask the 2 men what their names were?
“A. I did not.’’

Officer Duffy testified that he had a search warrant for the premises at 4042 West Jackson Boulevard, and the names on the warrant were Odessa Williams and Johnny B. He entered the apartment and found Odessa Williams, Johnny Rosemont and Johnny B. Cooper. “Five officers entered the apartment. At 2:00, four officers and myself entered. ... I identified myself as a police officer. Then I produced a warrant, and I showed it to Odessa Williams; I handed it to her; she looked at it. I do not know if she read it or not. . . . I went into the bedroom. Officer DeLeo was in there when I went in. He called me in there. . . . He showed me a tinfoil wrapped package. People’s Exhibit No. 4 for identification is that package. I had a conversation with Odessa Williams in the bedroom. Officer DeLeo and myself were present. ... I showed her the package and asked her if this was hers, she said ‘Everything in this apartment belongs to me, so it must be mine.’ ”

On cross-examination, Officer Duffy testified, “I knocked on the door, there was no answer. ... A few minutes later the door opened up. The defendant was standing at the door. I said T am a police officer from the 11th District.’ I showed my badge. ... I said, T have a warrant to search the premises here.’ I asked her if she was Odessa Williams, and she said she was. . . . When I went to the apartment on July 18, there were only three people present. Odessa Williams, Johnny B. Cooper and Eosemont. There were no other people present. . . . When I went into the bedroom Officer DeLeo showed me a white powder substance and a tinfoil package. He had the tinfoil package in his hand. I field tested it. It turned a slight purple, not a real deep purple. I don’t know the name for this type of a test. I have been assigned to the Narcotics Investigation for possibly two years. I conducted this test in the bedroom. Only Officer DeLeo and myself were present. Then Odessa Williams was called in. I went and got her. . . . And I asked her, ‘Does this belong to you?’ And she said, ‘Yes.’ I was holding the package when I asked her, ‘Does this belong to you?’ At the time I asked her the question I did not tell her I had narcotics in my hand. I did not refer to dope or anything of that sort. . . . There was a lot of clothing lying on the bed. And she answered, ‘Everything in this house belongs to me, I suppose it does.’ Well, that’s not exactly what she said; she said, ‘Everything in this apartment is mine, belongs to me, so it must be mine.’ . . . We never told the defendant that she was also under arrest for theft. Yes, subsequently we did arrest her for theft also. We did not ask her questions concerning the ownership of the clothing which were in her bedroom. Not at that time. We questioned her at the 11th District station with regards to the clothing. She said yes, they were hers. . . . The tinfoil package, after it was field tested, was in my presence all the time. I took it down to the crime laboratory.”

Another witness for the State, a police officer who was a registered pharmacist, testified that People’s Exhibit 4 contained a substance commonly referred to as heroin.

Defense witnesses were Odessa Williams, John Eoseman, Johnny B. Cooper, and Police Officer Mrozek.

Defendant, Odessa Williams, testified that she lived at 4042 West Jackson Boulevard, together with her three small children. She had left the apartment with her daughter to get some fruit. At that time Arthur Macklin and John Roseman were in the apartment with her sons. “When I came back to the apartment, I saw something unusual. The officer named Duffy . . . came down the alley behind me as my daughter and I came back in. . . . I had to ring the back door bell to get into the apartment. ... I was assisted in to the apartment by a police officer. . . . the first room I entered was the kitchen and no one was there except the Officer and I. ... I asked him who he was and what he wanted there. He asked me who I was and I told him my name and that it was my apartment. ... I was arrested in the later afternoon about 4:00 — 3:30, maybe 4:00. . . . The tall officer that showed me the search warrant told me that I was under arrest. He said I was under arrest for grand theft; possession of a hypodermic needle. I was not shown any narcotic drugs. There was no mention by any police officer of any drugs. I have not seen People’s Exhibit No. 4 before. No police officer showed me this on July 18, 1962. ... I haven’t seen People’s Group Exhibit No. 8 before. Certain large pieces of tinfoil, no, I haven’t seen those before. No, I haven’t seen the smaller pieces before. I wasn’t shown any of these exhibits at my house prior to being taken to the station. I wasn’t shown anything. ... On July 18, 1962, I didn’t have any narcotic drugs in my apartment. I didn’t know that there were any narcotic drugs in my apartment on that date. I didn’t have any reason to believe that there were narcotic drugs in my apartment at any place in my apartment on July 18. At no time on July 18, 1962 did I tell any one of the four or five police officers who were present at my home . . . that narcotic drugs in the apartment belonged to me. I have had narcotic drugs in my possession at one time. It was a long time ago. Back in 1953. I was found guilty of possession of narcotic drugs. That was in the year 1953. I served a year for that. I have never been a user of narcotic drugs; I have never used drugs.”

A witness for the defense, John Roseman, testified that when the police first entered the apartment, only he and Arthur Maeklin were present. “Then there was a knock on the door .... After the knock on the door, Odessa came in. No one was with her. Officer Boyle asked her her name. . . . After July 18, 1963, (sic), I was married to Odessa Williams.”

Johnny B. Cooper testified that he arrived at the apartment in the afternoon and was admitted by Officer Duffy. Present in the apartment at that time were the officers, John Roseman, Odessa Williams and a man called McCullerton. Cooper slept in the apartment occasionally, and “I used to go to any place in the apartment I wanted to. I wasn’t restricted in my movements. . . . I used to go to Odessa Williams’ bedroom occasionally. I have gone in to Odessa Williams’ chest of drawers. I never put anything in her chest of drawers. I never took anything from the chest of drawers.”

Officer Mrozek, called as a defense witness, testified that Odessa Williams, Cooper and Roseman were in the apartment when he entered it. He identified defendant’s Exhibit 1 as a report prepared by him.

In rebuttal, Officer Donovan identified Odessa Williams in the courtroom and testified that she was in the apartment when the five officers entered it.

After both sides rested and in final argument, counsel for defendant asserted that the police officers were not telling the truth, and that their testimony “was a complete and out and out frame.” In finding defendant guilty, the court remarked, “I can’t bring myself to believe that these police officers are completely fabricating all of their testimony. If I so believed, I would have to believe that the execution of this search warrant and the return thereon was a complete and absolute frame by the Police Officers. I simply can’t bring myself to that conclusion.”

We consider first defendant’s contention that during the trial, defense counsel was denied timely use of police reports. Cited is People v. Cole, 30 Ill2d 375, 196 NE2d 691 (1964), where it is said (p381) :

“Where it appears that there is evidence in the possession and control of the prosecution favorable to the defendant, a right sense of justice demands that it should be available, unless there are strong reasons otherwise. ... If contradictory statements were made by the prosecuting witness to these two missing officers then the defendant by all means should have the benefit for impeachment purposes. Justice requires a full and fair disclosure.”

The record shows that two police reports were given to defendant’s counsel at a lunchtime recess, prior to the direct testimony of Officer Duffy, the officer responsible for the reports. These two reports were received in evidence as defendant’s exhibits 1 and 2, of which exhibit 2 is in the record. Both reports were used by defendant in the cross-examination of Officer Duffy. The record does not show that defendant’s access to and use of these reports was unduly limited. We find no merit to defendant’s contention that defendant was denied timely use of police reports necessary for the impeachment of witnesses.

We consider next defendant’s contention that “the trial court erred in failing to employ a proper standard in adjudging the credibility of the witnesses.” We agree with defendant that there is no rule of construction which says that the credibility of a witness may be determined by his profession. We do not agree with the defendant that this record “conclusively demonstrates that the trial judge was prejudiced in favor of the police.”

In a bench trial in a criminal case, it is for the trial court to weigh the testimony and determine the credibility of the several witnesses. Where the truth lies, in any debatable set of circumstances, is a matter peculiarly for the trier of fact, be it judge or jury, and it is not for a reviewing court to substitute its opinion therefor. In view of the opportunities available to the trial court, the reviewing court will not disturb a guilty finding unless the proof is so unsatisfactory or implausible as to justify a reasonable doubt as to defendant’s guilt. People v. Woods, 26 Ill2d 582, 585, 187 NE2d 692 (1963); People v. Evans, 23 Ill2d 302, 305, 178 NE2d 376 (1961).

As to the comments of a trial judge on the credibility of a witness in a bench trial, it is said in People v. Faginkrantz, 21 Ill2d 75, 80, 171 NE2d 5 (1960) :

“Upon such a trial a judge’s comments only make explicit what would otherwise be implicit in a finding adverse to the defendant. They thus become a matter of taste, in the absence of a showing of prejudice.”

Examining the testimony, we note one conflict in testimony is whether the defendant was present when the police officers entered her apartment. Four officers testified affirmatively. Defendant, Roseman and Cooper testified she arrived later. Defendant asserts the police report (defendant’s Exhibit 2) demonstrates that the defendant was not present at the time the police officers entered the apartment. Defendant further notes that during the cross-examination of Officer DeLeo, he said, “We field tested the package just before she arrived.”

Another conflict concerns what defendant was referring to when she said, “Everything in this apartment is mine, belongs to me, so it must be mine.” This was in response to a question of Officer Duffy. Officer Duffy testified he showed her the tinfoil package of narcotics. Defendant testified, “I wasn’t shown any of these exhibits at my house prior to being taken to the station. I wasn’t shown anything.”

Examining these conflicts in the testimony and the remarks of the trial judge on the credibility of the witnesses in finding the defendant guilty, we are unable to agree with defendant’s contention that the trial judge failed to employ “a proper standard in adjudging the credibility of the witnesses.” As the court stated, “I have to believe the Police Officers or I have to believe the defendant.” We find nothing in this record to demonstrate that the court was in error in choosing to believe the testimony of the police officers.

As to the proof of defendant’s guilt of the offense charged, the determinative question is whether it may be properly inferred from the proof that defendant had both knowledge and control of the narcotics found in her apartment. In People v. Nettles, 23 Ill2d 306, 178 NE2d 361, it is said (pp 308, 309) :

“Where narcotics are found on the premises under the control of the defendant, this fact, in and of itself, gives rise to an inference of knowledge and possession by him which may be sufficient to sustain a conviction for unlawful possession of narcotics, absent other facts and circumstances which might leave in the mind of the jury, or of the court where a jury is waived, a reasonable doubt as to his guilt. . . . Whether a defendant’s account of his possession of narcotics is believed depends on the credibility of the witnesses and the weight to be given their testimony, which are both matters for the trial judge where a jury has been waived.”

Applying these pronouncements to the evidence in this record, we note that it is not disputed that the narcotics in evidence were found in defendant’s bedroom in a chest of drawers owned by her. There are no facts or circumstances in this record which militate against an inference of knowledge and possession by defendant, in spite of her denials. The questioning of defendant by Officer Duffy, regarding the package of narcotics held in his hand, can be interpreted as being equivocal, but we are of the opinion that the undisputed facts here give “rise to an inference of knowledge and possession” sufficient to sustain defendant’s conviction for unlawful possession of the narcotics.

For the reasons given, the conviction of defendant is affirmed. As the State concedes that defendant was improperly sentenced, defendant’s sentence to the penitentiary is reversed and the cause is remanded to the Criminal Division of the Circuit Court of Cook County with directions that defendant be sentenced in compliance with the proper statutory provisions.

Affirmed in part; reversed in part and remanded with directions.

KLUCZYNSKI, P. J. and BURMAN, J., concur.