author: JUSTICE CAMPBELL

text:
      In re APPLICATION OF THE COOK COUNTY COLLECTOR (The People ex rel. Edward J. Rosewell, Cook County Treasurer and ex officio County Collector, Relator-Appellee, v. Albert A. Sharkey, Objector-Appellant).
    First District (1st Division)
    No. 83—310
    Opinion filed August 20, 1984.
    Keck, Mahin & Cate, of Chicago (John M. Betts, of counsel), for appellant.
    Rick Halprin, of Chicago Park District, of Chicago (Leslie P. Liss, of counsel), for appellee.
   JUSTICE CAMPBELL

delivered the opinion of the court;

The Cook County collector made application for judgment and order of sale against certain real estate for nonpayment of 1974 taxes.

The objector-appellant, Albert A. Sharkey (hereafter referred to as the taxpayer), owns the real estate located within the boundaries of the Chicago Park District. The taxpayer paid in full and under protest the 1974 park district real estate tax extended against his property. Thereafter, the taxpayer duly filed objections to the 1974 tax levy of the district. At the hearing in the trial court, the taxpayer withdrew all his objections except objection VII, objection X and objection XIII. The trial court overruled all three objections, and the objector has appealed the trial court’s final judgment overruling objections VII and X.

The facts as stipulated by the parties are summarized, and it appears that the Chicago Park District adopted its tax levy ordinance for the year 1974 on March 12, 1974. On that date, the maximum rate permitted for the corporate fund per $100 of the 1974 equalized assessed value of all taxable property within the district was .47. (Ill. Rev. Stat. 1973, ch. 105, par. 333.19.) However, the 1974 equalized assessed value of the taxable property within the district was not known on that date. The last known equalized valuation was for the year 1972. Therefore, the district estimated the maximum amount it could levy for the corporate fund for 1974 by applying the maximum permissible rate (47) to the 1972 equalized valuation ($13,175,351,612) to arrive at the amount of $61,924,153. The district thereupon levied $61,924,153 for the corporate fund by the 1974 tax levy ordinance adopted on March 12, 1974. When the 1974 equalized valuation became known in mid-1975, it turned out to be less than the equalized value for 1972 ($12,297,365,927 for 1974 versus $13,175,351,612 for 1972).

After the levy ordinance was adopted, section 19 of “An Act in relation to *** the Chicago Park District” (Ill. Rev. Stat. 1973, ch. 105, par. 333.19) was amended by Public Act 78 — 1202 to permit a maximum rate of .50 for the corporate fund. The amendment became effective October 1, 1974. Thereafter, the county clerk of Cook County extended corporate fund taxes at the rate of .50 authorized by the amendment to section 19. The county clerk of Cook County scaled back the Cook County portion to $61,472,719, computed by applying the rate of .50 to the 1974 Cook County equalized valuation. Section 19 was also amended to permit a maximum rate of .06 for the aquarium and museum fund. The maximum rate permitted at the time the 1974 tax levy was adopted was .04. The amendment was also effective October 1, 1974, and thereafter, the county clerk extended the rate at .042853.

The facts in respect to objection X are similar to those for objection VII, except that objection X involves the aquarium and museum fund of the district instead of the corporate fund as in objection VII. The issue before this court as to objection X is the same as for objection VII and involves the validity of the amendment to section 19 made by Public Act 78 — 1202, as applied to the 1974 corporate fund and aquarium and museum fund tax levy. It is claimed that the lawful levy for the corporate fund on March 12, 1974, was $57,797,619 (rate of .47) and that the excess is $4,126,534, and the excess by applying a rate over .04 for the aquarium and museum fund by virtue of the amendment was $351,194.

The taxpayer maintains that the amendment to section 19 was a curative or validating act passed by the legislature to cure a defect in earlier proceedings to make valid a proceeding that was originally invalid. (People ex rel. Bauer v. Elmhurst-Villa Park-Lombard Water Com. (1960), 20 Ill. 2d 139, 169 N.E.2d 350; People ex rel. Polivka v. Padley (1930), 340 Ill. 314, 172 N.E. 763.) Thus, the effect of the amendment, when it became effective after adoption of the levy, was an attempt to validate that part of the levy which required rates in excess of the March 12, 1974, maximum permissible rates prescribed by statute. The taxpayer asserts that if there had been no amendment to section 19, the excess of the levy of $4,126,534 and $351,194 would have been illegal and subject to objection. In essence, a clear attempt was presented to make valid a levy that was invalid at the time of its adoption.

The general rules as to curative or validation acts are limited to the validation of a defective exercise of power and do not apply where the power sought to be exercised does not exist at all. The taxpayer asserts that when the Chicago Park District’s 1974 tax levy was adopted the district had the power to levy a corporate fund tax requiring a rate of .47 and not .50, and the aquarium and museum tax requiring a maximum rate of .04 and not .042853. The legislature cannot give validity to the exercise of the power to levy when such power did not exist at the time it was purported to have been exercised. People ex rel. Larson v. Thompson (1941), 377 Ill. 104, 35 N.E.2d 355; People ex rel. Batman v. Illinois Central R.R. Co. (1938), 369 Ill. 432, 17 N.E.2d 25; People ex rel. Kjellquist v. Chicago, Milwaukee & St. Paul Ry. Co. (1926), 321 Ill. 499, 152 N.E. 560.

It appears that the trial court considered several cases cited by the taxpayer, People ex rel. Carr v. Pittsburgh, Cincinnati, Chicago & St. Louis Ry. Co. (1925), 316 Ill. 410, 147 N.E. 492, People ex rel. Orrison v. Wabash Ry. Co. (1931), 344 Ill. 606, 176 N.E. 767, and People ex rel. Dooley v. New York, Chicago & St. Louis R.R. Co. (1939), 371 Ill. 522, 21 N.E.2d 760, and recognized that at first blush such cases might give credence to the taxpayer’s position, but that such cases upon closer examination are distinguishable. Pittsburgh involved an additional levy by a taxing district, not merely a tax at a higher rate. Furthermore, in Pittsburgh the court found that the General Assembly did not intend that the curative act should have any retroactive effect. In Wabash, the issue was not the ability of the General Assembly to pass a curative act, but rather the effect of a town election to lower the tax rate. Finally, New York, Chicago & St. Louis R.R. Co. does stand for the proposition that the General Assembly may not vest power to assess taxes in a county through a curative act. However, that case involved an assessment by a county for pauper relief for which the county had no power to assess taxes. The court indicated that all of these cases involved deficiencies of a jurisdictional nature which were so fundamental as to be incapable of validation through a curative act of the General Assembly.

The taxpayer claims that the above cases do not involve curative acts and are not pertinent to the taxpayer’s theory of this case on appeal. The taxpayer now argues that, if anything, they support rather than oppose the result sought without setting forth any basis for such a proposition.

Elsewhere, the taxpayer takes issue with three other cases which the trial court held “clearly stand for the proposition that the General Assembly can by curative acts correct deficiencies in assessment by units of government.”

In People ex rel. Lindheimer v. Gaylord Building Corp. (1938), 369 Ill. 371, 16 N.E.2d 901, the Chicago Park District passed its tax levy ordinance on January 15, 1935, for that year. Subsequently, the legislature amended section 19 to authorize a rate for corporate purposes in the year 1935 sufficient to produce the sum of $9,000,000 and empowered the district to adopt a supplementary tax levy up to an amount which, when added to the amount therefore legally levied, would not exceed that sum. The district, on July 23, 1935, adopted a supplemental appropriation ordinance for the sum of $1,800,000. On the issue of the constitutionality of the amendment to section 19, the supreme court, after considering several constitutional objections, ruled that the amendment was a valid exercise of legislative power, and the levy ordinance adopted thereunder was likewise valid. The taxpayer argues that in Gaylord the original levy was lawful, whereas in the instant case the original levy was lawful at the .47 rate and unlawful to the extent of the excess of .03 and that the 1974 amendment did not validate an illegal levy at the additional rate of .03.

In People ex rel. Price v. Wisconsin Central R.R. Co. (1905), 219 Ill. 94, 76 N.E. 80, the county board of Lake County in 1904 attempted to levy a county tax of 75 cents on each $100 of taxable property according to its assessed valuation, and did not specify the particular purpose for which the tax was levied. Such a tax was not authorized by the State legislature. Later, in 1905, the legislature passed an act for the purpose of curing the defect in levies which existed in this and other like eases. The act was in force from and after its passage, and the only question was whether it cured the defect. The supreme court held that it did and ruled that

“[t]here is no prohibition in our constitution against the passage of retroactive statutes, and they are not invalid if they do not impair vested rights or come in conflict with some provision of the constitution. The general rule is, that where there is no constitutional prohibition the legislature may validate, by a curative act, any proceedings which they might have authorized in advance.” 219 Ill. 94, 96, 76 N.E. 80, 80; accord, Cowgill v. Long (1853), 15 Ill. 202.

The district argues that when it became apparent to the legislature because of declining real estate values that the 1974 equalized assessed valuation (which could not be known until midyear 1975) would apparently be less than the previous valuation, it passed a curative act, effective October 1, 1974, in order to overcome the deficiency. Had it not done so, there would have been a shortfall in the amount needed to operate the district and it would have been necessary to impose an additional tax.

It is clear that the legislature could have authorized such a levy as made, while the taxes remained uncollected and before paid, discharged or otherwise released (People ex rel. Price v. Wisconsin Central R.R. Co. (1905), 219 Ill. 94, 76 N.E. 80; Cowgill v. Long (1853), 15 Ill. 202), and the taxpayer has not cited any constitutional prohibition to such authority. The conclusion that the levy at a rate in excess of .47 and the rate in excess of .04 is void ab initio is unsupported by any facts in the record or cases cited by the taxpayer. The taxpayer’s conclusions are not persuasive, and are rejected, and the reliance on People ex rel. Kjellquist v. Chicago, Milwaukee & St. Paul Ry. Co. (1926), 321 Ill. 499, 152 N.E. 560, is misplaced. The burden was upon the taxpayer to sustain the objections to the 1974 tax levy, and the challenge in the instant case has not been met. People ex rel. Gill v. Schweitzer (1937) 366 Ill. 568, 10 N.E.2d 337.

After a careful examination of the record, we find that the decision of the trial court was correct. Accordingly, the judgment of the circuit court is affirmed.

Judgment affirmed.

BUCKLEY, P.J., and GOLDBERG, J., concur.


source: Caselaw Access Project

author: JUSTICE SULLIVAN

license: Public Domain

text:
    MARY VENUS et al., Plaintiffs, v. ROBERT O’HARA, d/b/a A-l Services, Defendant and Third-Party Plaintiff-Appellant, (Wil-Kil Pest Control Company, Inc., et al., Third-Party Defendants; Kenova Chemical Company et al., Third-Party Defendants-Appellees).
    First District (5th Division)
    No. 83—3081
    Opinion filed August 10, 1984.

      French, Rogers, Kezelis & Kominiarek, P.C., of Chicago, for appellant.
    Hinshaw, Culbertson, Moelmann, Hoban & Fuller, of Chicago, for appellee Kenova Chemical Co.
    Matthew J. Egan, of Chicago, for appellee Benlo Chemicals, Inc.
   JUSTICE SULLIVAN

delivered the opinion of the court:

This appeal is from a summary judgment for third-party defendants Kenova Chemical Company (Kenova) and Benlo Chemicals, Inc. (Benlo), in an indemnity action predicated on a theory of strict liability for failure to adequately warn of the dangerous propensities of naphthalene flakes. Third-party plaintiff Robert O’Hara (O’Hara) contends that the trial court erred in ruling that Kenova and Benlo, bulk distributors of naphthalene flakes, could not be held directly liable to him for the failure to provide adequate warnings.

Plaintiffs Mary, Dennis, and Sally Venus (Venus) filed a multicount complaint against O’Hara, alleging in pertinent part that his services were engaged on May 6, 1977, to rid the Venus residence of an animal which had gained access to the attic thereof, and that he was negligent in spreading toxic chemicals in the attic as a method of extermination, in failing to prevent the spread of chemical contamination throughout the residence, and in failing to warn them of the inherently dangerous nature of the chemical used. Venus also asserted that, as a proximate result of this negligence, the residence was rendered unfit for human habitation, their household furnishings were made unfit for use, and each of them suffered personal injuries. O’Hara admitted performing the services, but denied the allegations of negligence. The counts in the Venus complaint alleging property damage were dismissed following a settlement thereof, but it appears that the personal injury counts remain pending before the trial court, and the Venuses are not parties to this appeal.

O’Hara subsequently filed a third-party complaint for indemnity against Wil-Kil Pest Control, Inc. (Wil-Kil), Wedor Corporation (Wedor), Benlo, and Kenova, asserting that Venus had filed a complaint against him for property damage and personal injuries allegedly resulting from the use of a container of Wil-Kil Napthalene Flakes; that the parties in question variously manufactured, sold, distributed, and/ or repackaged the naphthalene flakes used in the Venus residence; and that the flakes were in the same condition at the time of their use as when they were manufactured, sold, and distributed by the third-party defendants. O’Hara further alleged that at the time the flakes left the possession and control of the third-party defendants, they were unreasonably and inherently dangerous in the following respects:

“a. Said products contained Naphthalene which the third-party defendants knew or should have known had harmful and deleterious effects on those who came into contact with or breathed the vapors from said materials.
b. Said products contained Naphthalene, which the third-party defendants knew or should have known would cause plaintiffs’ residence to be rendered unfit for human habitation making it unsaleable and rendering plaintiffs’ household articles unfit for human use.
c. Said products contained no warning or alternatively, the warning was insufficient in conveying knowledge to the user or public about the harmful and deleterious effects the chemical would have to persons and property when used to drive small animals from the inside of a residence.
d. Said product was manufactured, sold and distributed without testing or inspection to ascertain the effects it would have on the health and property of consumers and users when used to drive small animals from the inside of a residence.
e. That if injury or damage was suffered to the plaintiff’s property or person as a proximate result of any defect or any unreasonably dangerous condition of the said Naphthalene flakes or their container or labeling, then this was because the third-party defendants, and each of them, failed ■ to manufacture, distribute and supply the third-party plaintiff with a safe and suitable product free from any unreasonably dangerous conditions.”

The third-party complaint was later amended to allege that Wil-Kil distributed the naphthalene flakes in question to Dill Chemicals, Inc. (Dill), which in turn sold the flakes to O’Hara; however, Dill was not added as a third-party defendant.

In answer to the initial complaint for indemnity, Wedor admitted selling the flakes used in the Venus residence, but Benlo and Kenova neither admitted nor denied the allegation that they sold or distributed them. The answer of Wil-Kil is not contained in the record before us. After the amended complaint was filed, Benlo moved for summary judgment on the ground that it did not distribute naphthalene flakes directly to O’Hara. In support thereof, it cited O’Hara’s answer to interrogatories in which he stated that the naphthalene flakes used in the Venus residence were purchased from Dill, and stated that it (Benlo) had never done business as or with Dill Chemical. No affidavits or other materials were attached to the Benlo motion, although the record does contain the affidavit of Kenneth Michaels, its president (the Michaels affidavit), in which he acknowledges that bulk sales of naphthalene flakes were made to Wedor and Wil-Kil from 1974 through 1978, but avers that no sales were ever made to Dill or to O’Hara. Attached to the affidavit are copies of invoices evidencing sales to Wedor and to Wil-Kill of 200-pound containers of naphthalene flakes. Kenova subsequently joined in the motion, asserting that if Benlo were granted summary judgment on the ground that it was not within the chain of distribution, it too would be entitled to summary judgment because it was “upstream” from Benlo in the alleged chain of distribution.

In response to the motions, O’Hara asserted that the facts established that Benlo was within the chain of distribution, relying on the Michaels affidavit which admitted sales to Wedor and Wil-Kil. O’Hara further asserted that the evidence would show that Wil-Kil in turn sold the flakes to Dill. In support thereof, O’Hara attached the affidavit of his attorney, pursuant to Supreme Court Rule 191(b) (87 Ill. 2d R. 191(b)), in which it was averred that the facts which would refute the Michaels affidavit were known to Gordon Dill, former owner of Dill Chemical; that no affidavit could be obtained, and Mr. Dill was not in O’Hara's control; and that, if sworn, Mr. Dill would testify that he purchased the naphthalene flakes in question from Wil-Kil and sold them to O’Hara. The attorney based his belief that Mr. Dill would so testify on invoices evidencing sales from Wil-Kil to Dill, and from Dill to O’Hara.

At the hearing on the motions for summary judgment, the trial court did not rule on the grounds asserted by Benlo and Kenova. Instead, it found that, even accepting as true the chain of distribution alleged by O’Hara, no action for indemnity would lie directly against the bulk handlers, who had no control over the warnings or labels placed on the containers by their purchasers. It went on to note that Wil-Kil was the first link in the chain of distribution because it repackaged the naphthalene flakes received from Kenova and Benlo, attaching its own label and warnings, and thus superseded anything Kenova and Benlo might have done. However, the court further stated that Benlo and Kenova could be brought into the action by way of a fourth-party complaint filed by Wil-Kil and predicated on their failure to transmit adequate warnings to it. The trial court therefore granted the motions for summary judgment, and when O’Hara’s motion to vacate was denied, this appeal followed.

Opinion

Initially, we address O’Hara’s contention that the trial court erred in ruling that he could not seek indemnity from Kenova and Benlo based on their failure to give adequate warnings on the ground that the naphthalene flakes were repackaged by Wil-Kil after leaving their control. It is undisputed that the failure to warn of a product’s dangerous propensities may be a basis for strict liability in tort (Woodill v. Parke Davis & Co. (1980), 79 Ill. 2d 26, 402 N.E.2d 194), and that strict liability therefor may be imposed upon all parties within the chain of distribution, including suppliers, distributors, wholesalers, and retailers (Hammond v. North American Asbestos Corp. (1983), 97 Ill. 2d 195, 454 N.E.2d 210). However, the parties disagree as to the effect of a change in packaging on the liability of distributors for the failure to provide adequate warnings where, as here, the product is repackaged and the repackager has supplied the warnings upon which the ultimate user relies. It is this narrow issue which we are asked to consider.

It is the parties’ position that this question turns on a determination of whether repackaging constitutes a “substantial change” in the product. Benlo and Kenova assert, without citation to authority, that repackaging is a substantial change, and direct our attention to cases wherein it is held that when a subsequent alteration causes the injury complained of, the original manufacturer or distributor may not be held liable. (See, e.g., Curry v. Louis Allis Co. (1981), 100 Ill. App. 3d 910, 427 N.E.2d 254; Gasdiel v. Federal Press Co. (1979), 78 Ill. App. 3d 222, 396 N.E.2d 1241.) O’Hara, also without citation to authority, argues that repackaging is not a substantial alteration, and relies on Hammond v. North American Asbestos Corp. (1983), 97 Ill. 2d 195, 454 N.E.2d 210, in arguing that a distributor has a nondelegable duty to make the product it handles safe through appropriate warnings.

We find the above authorities and arguments inapposite. In Curry and Gasdiel, we were concerned with a design defect created by later alteration in the product; whereas, here, it appears that there was no change in the naphthalene flakes or the dangerous propensities thereof as they passed through the chain of distribution. Furthermore, in Hammond, unlike here, the product complained of was not repackaged after it left the defendant’s control. While a change in warnings might, under some circumstances, create liability, it is our view that resolution of this issue here is not dependent upon a determination of what constitutes a “substantial change,” but upon a determination of the scope of the duty owed to ultimate users by manufacturers or distributors who do not control the packaging in which their products reach the consuming public.

The parties do not cite, nor has our own research discovered, any Illinois cases which address this issue. Therefore, we have looked for guidance to decisions in other jurisdictions where the question has been considered, and it appears that other courts have uniformly relied on section 388 of the Restatement (Second) of Torts, which states:

“One who supplies directly or through a third person a chattel for another to use is subject to liability to those whom the supplier should expect to use the chattel *** or to be endangered by its probable use, for physical harm caused by the use of the chattel in the manner for which and by a person for whose use it is supplied, if the supplier
(a) knows or has reason to know that the chattel is or is likely to be dangerous for the use for which it is supplied, and
(b) has no reason to believe that those for whose use the chattel is supplied will realize its dangerous condition, and
(c) fails to exercise reasonable care to inform them of its dangerous condition or of the facts which make it likely to be dangerous.” (Restatement (Second) of Torts sec. 388 (1965).)

On this rationale, other courts have held that, at the very least, a supplier has a duty to supply adequate warnings to its immediate vendee, and may be held liable to the ultimate user for its failure to do so. (See, e.g., Dougherty v. Hooker Chemical Corp. (3d Cir. 1976), 540 F.2d 174; Parkinson v. California Co. (10th Cir. 1958), 255 F.2d 265; Shell Oil Co. v. Gutierrez (1978), 119 Ariz. 426, 581 P.2d 271; Jones v. Hittle Service, Inc. (1976), 219 Kan. 627, 549 P.2d 1383; Younger v. Dow Corning Corp. (1969), 202 Kan. 674, 451 P.2d 177; Reed v. Pennwalt Corp. (1979), 22 Wash. App. 718, 591 P.2d 478.) While many of these cases state that the extent of the duty to warn is a question of fact (see, e.g., Dougherty v. Hooker Chemical Corp. (3d Cir. 1976), 540 F.2d 174; Shell Oil Co. v. Gutierrez (1978), 119 Ariz. 426, 581 P.2d 271; see also Restatement (Second) of Torts sec. 388, Comment n (1965)), most acknowledge that the duty will rarely extend beyond the communication of warnings to the immediate vendee, since, as a practical matter, the vendor has neither the means of controlling the vendee’s subsequent actions nor the opportunity to provide warnings directly to the ultimate user (see, e.g., Reed v. Pennwalt Corp. (1979), 22 Wash. App. 718, 591 P.2d 478).

Shell Oil Co. v. Gutierrez (1978), 119 Ariz. 426, 581 P.2d 271, is a good example of the application of the above rule and closely parallels the facts of the instant case. The product in question therein was xylene, a chemical which is flammable in liquid form and highly explosive in vapor form. Shell Oil Company (Shell) manufactured the xylene and distributed it in bulk to the Christie Oil Company (Christie) in railroad tank cars and trucks which bore warnings that the product was flammable. Christie packaged the xylene in drums and placed labels thereon warning that it was flammable. The drums were then sold to Flint Oil Company (Flint) and, ultimately, to Westinghouse Electric Company, which used the liquid xylene as a solvent and then stored the empty drums for return to Flint. Vapor from the liquid residue collected in the stored drums and exploded when a Westinghouse employee was welding nearby, severely injuring two employees. The employees brought a strict liability action against Shell and the intermediate distributors, alleging failure to give adequate warning of the product's dangerous propensities, and a jury returned a verdict against all defendants.

On appeal, Shell contended that, as a matter of law, it could not be held liable because it had no control over the container in which the product would be resold and no means of communicating warnings to the ultimate users. The court disagreed and, relying on section 388 of the Restatement, ruled that Shell could be held liable for the failure to give adequate warnings to the intermediate distributors, stating:

“The determination as to whether the supplier’s duty *** has been reasonably discharge [sic] comes within the function of the trier of fact. [Citation.] There is adequate evidence in this record to support a finding that Shell failed to adequately warn Christie or Flint of the danger of explosion, the possible precautions, or the type of labeling that would be appropriate.” 119 Ariz. 426, 434, 581 P.2d 271, 279.

We find the reasoning of the above cases persuasive, since they appear to be in harmony with the principles of strict product liability as they have developed in Illinois. In Krammer v. Edward Hines Lumber Co. (1974), 16 Ill. App. 3d 763, 306 N.E.2d 686, we held that a lumber supplier could be held liable to an ultimate user for its failure to warn an intermediate party that its product contained a defect which made it unfit for its foreseeable use as a stress-bearing member of a scaffold. While that action did not involve subsequent repackaging, it does demonstrate our belief that a party may be liable for the failure to warn its immediate vendee even where, as a practical matter, it had no opportunity to communicate those warnings to the ultimate user. Furthermore, we believe that such a rule does not place an unreasonable burden on the manufacturer or distributor; in most cases, its duty can be fulfilled by discovering the danger and giving warning thereof to the next party in the chain of distribution. As the supreme court noted in Hammond v. North American Asbestos Corp. (1983), 97 Ill. 2d 195, 454 N.E.2d 210:

“The evidence established that defendant knew of the dangerous propensities of asbestos but chose not to warn of the hazard. In strict liability, sellers are liable not just to those in privity to whom they sell their products, but also to the ultimate user or consumer. [Citation.] Moreover, a manufacturer is under a nondelegable duty to produce a product which is reasonably safe. [Citation.] Given the facts in this case, defendant could not expect or rely on others to intervene and make its products safe.” (97 Ill. 2d 195, 208, 454 N.E.2d 210, 217-18.)

Here, Kenova and Benlo assert in effect that they had a right to rely on Wedor and Wil-Kil to make their product safe by providing adequate warnings, and they should therefore be absolved from any duty they might otherwise have. Nothing in the facts as yet presented, however, suggests that they were justified in relying on the expertise of subsequent distributors (see Martinez v. Dixie Carriers, Inc. (5th Cir. 1976), 529 F.2d 457), or that the dangerous propensities of naphthalene are so commonly known as to obviate the need for warning (see Huff v. Elmkurst-Chicago Stone Co. (1981), 94 Ill. App. 3d 1091, 419 N.E.2d 561), questions which, in any event, would be factual in nature. Therefore, we need not consider at this time what set of circumstances might justify reliance by Kenova and Benlo on Wedor and Wil-Kil.

Turning to the facts of the instant case, we must determine whether summary judgment was proper, i.e., whether Benlo and Kenova fulfilled their duty to warn their immediate vendees. The standard to be applied in considering this question was- set forth recently in Motz v. Central National Bank (1983), 119 Ill. App. 3d 601, 605, 456 N.E.2d 958, 961-62:

“The motion should be granted where the pleadings, exhibits, depositions, and affidavits of record show that there is no genuine issue of material fact and that the movant is entitled to judgment as a matter of law. [Citation.] However, because this is a drastic measure, it is to be granted only where the evidence, when construed most strongly against the moving party, establishes clearly and without doubt his right thereto. [Citations.] Furthermore, where the movant seeks to establish evidentiary facts by way of affidavit, Supreme Court Rule 191 requires that the affidavits relied upon consist of facts admissible in evidence, not mere conclusions [citation]; and although facts in an affidavit which are not contradicted by counteraffidavit will be taken as true despite contrary averments in the pleadings [citation], the movant must present evidence which precludes any possible liability before the party opposing summary judgment is required to present some factual basis by way of counteraffidavit which would arguably entitle him to judgment [citation]. Thus, we have held that ‘even though the party opposing the motion for summary judgment fails to file counteraffidavits, the moving party should not be awarded summary judgment unless the affidavits filed in support of the motion establish the judgment as a matter of law.’ ”

It is our view that a genuine issue of material fact remains as to whether Benlo and Kenova supplied adequate warnings.

It appears from Benlo’s answers to interrogatories that Kenova did provide product information to Benlo which warned that overexposure to naphthalene could cause irritation to the eyes, skin, and respiratory tract, dizziness, weakness, fatigue, nausea, headache, and possible unconsciousness. The warning also informed Benlo that overexposure had been found to cause anemia and eye damage in laboratory animals, and kidney, spleen, and eye damage in humans, and it recommended that “[s]ufficient mechanical (general) and/or local exhaust ventilation [be provided] to maintain exposure below [a threshold limit value of 10 parts per million].” It is significant, however, that in those same interrogatories, Benlo’s president stated that he “did not know” whether warnings of any kind were transmitted by Benlo to subsequent purchasers. The Michaels affidavit states that 200-pound containers of naphthalene flakes were shipped to both Wedor and Wil-Kil. While it is not clear from the record which of those entities was responsible for repackaging the flakes under the Wil-Kil label, various invoices attached to the Michaels affidavit indicate direct shipments to both Wedor and Wil-Kil. Documents provided by Wedor pursuant to discovery evidence sales to Wil-Kil of naphthalene flakes in 100-, 50-, and 25-pound containers, apparently not in the 200-pound containers which it received from Benlo, raising an inference that Wedor did the repackaging. However, one invoice bears the notation “Naphthalene (Repackaged from 100# supplied by Wil-Kil),” so that it is possible that Wil-Kil received some product directly from Benlo and passed it on to Wedor for repackaging.

In its answer to interrogatories, Wil-Kil stated that it received warnings only from the Environmental Protection Agency, and that those warnings were placed on its label, i.e.:

“KEEP OUT OF REACH OF CHILDREN. Avoid prolonged breathing of vapor or spray. Avoid contact with eyes. Rooms with treated furniture should be well ventilated before occupancy.”

The label also stated that for elimination of small animal pests, approximately 5 pounds of flakes per 2,000 cubic feet of space should be spread on the floor or applied between walls. It appears that O’Hara used 10 to 15 pounds of flakes in the Venus attic, which had approximately 2,099 cubic feet of space.

With regard to Benlo’s motion, we believe that the facts thus far presented raise a material question of fact as to whether any warnings were sent to Benlo’s immediate vendee. Benlo’s president stated that he did not know whether warnings had been sent, and Wil-Kil said it received no warnings. However, this is not conclusive on the question, since the product may have been sent directly to Wedor for repackaging under the Wil-Kil label. Benlo suggested at oral argument that we “presume” that the warnings provided by Kenova were attached to the containers and therefore passed on to subsequent purchasers. We may not indulge in such an unsupported assumption on a motion for summary judgment; the moving party in the first instance must present facts which dearly and without a doubt establish its right to judgment. Since it appears that some shipments were made directly to Wil-Kil by Benlo, and Wil-Kil has stated that it received no warnings, an assumption that the warnings were attached to the product is clearly unwarranted.

Kenova is in a somewhat different position, since the record does establish that it provided warnings to Benlo, its immediate vendee. Kenova concedes that, ordinarily, the sufficiency thereof would be a question of fact, and we note that there is nothing in this record which establishes that the warnings were adequate or even whether the injuries alleged by the Venuses are within the risks which were the subject of Kenova’s warnings. Nevertheless, Kenova maintains that summary judgment was proper as to it because Benlo’s failure to forward Kenova’s or any other warnings to subsequent purchasers was a superseding cause of the injury, precluding liability on its part. We agree with its argument that if the record established Benlo’s failure to pass on any warnings, the sufficiency of the Kenova warnings would be immaterial, since under those circumstances they were not relied upon downstream and would not have been a proximate cause of the injury. However, as noted above, a genuine issue of fact remains as to whether Benlo passed on the warnings it received from Kenova, and because the record does not otherwise show that the Kenova warnings were adequate, it is our view that neither Kenova nor Benlo has established as a matter of. law that it was entitled to judgment, either because it fulfilled its duty to warn or because other facts existed which would obviate the need for warnings.

Finally, Benlo argues that even if the trial court erred in its ruling, we may still affirm on the ground it initially asserted; namely, that O’Hara failed to show that it was within the chain of distribution. As it did before the trial court, Benlo relies on the lack of evidence that it sold to Dill and O’Hara’s admission that he purchased from Dill. Benlo strenuously argues that the affidavit of O’Hara’s attorney is insufficient to establish the distributive chain from Wil-Kil to Dill to O’Hara because it did not comply with Supreme Court Rule 191(a) (87 Ill. 2d R. 191(a)). Benlo did not address the question of the sufficiency thereof under Rule 191(b) (87 Ill. 2d R. 191(b)), the section under which the affidavit in question was filed.

We find the above arguments irrelevant. Before the party-opposing summary judgment is required to establish contrary facts by way of counteraffidavit, the moving party must present evidence which precludes any possible liability on its part. (See Motz v. Central National Bank (1983), 119 Ill. App. 3d 601, 456 N.E.2d 958.) Thus, the sufficiency of O’Hara’s counteraffidavit is material only if the evidence otherwise established that Benlo was not within the chain of distribution. In another affidavit, the sufficiency and content of which are not challenged, O’Hara stated that he used a container of Wil-Kil Naphthalene Flakes in the Venus residence, and the record also contains the signed statements of two of O’Hara’s employees which state that the product used was Wil-Kil 100% Naphthalene Flakes. Benlo has made no showing that the flakes used were not in a Wil-Kil container; that the Wil-Kil container did not contain flakes placed there by Wil-Kil; or that the flakes were changed in any way after they left the control of Wil-Kil but before they reached O’Hara. Benlo has admitted, by way of affidavit, sales of naphthalene flakes to Wil-Kil and Wedor, and Wedor — -in its answer to the complaint — admitted that it sold the flakes in question. Benlo has presented nothing which would suggest that Wil-Kil or Wedor had sources of supply other than Benlo. It is our view that these facts are insufficient to establish that Benlo is not within the chain of distribution; indeed, they indicate the contrary. The fact that Benlo has shown it did not sell directly to Dill or O'Hara is not controlling, as it admitted sales of flakes to Wedor and Wil-Kil, either of whom may have repackaged under the Wil-Kil label and then sold to Dill the flakes it passed on to O’Hara. Therefore, it is of no consequence that O’Hara’s attempt to show that a distributive chain from Wil-Kil to Dill to O’Hara did not comply with Rule 191(a). Benlo was not entitled to summary judgment on this ground.

For the foregoing reasons, the order granting summary judgment to Kenova and Benlo is reversed, and the cause is remanded for further proceedings.

Reversed and remanded.

MEJDA, P.J., and LORENZ, J., concur.

       A second count seeking contribution from the same parties was dismissed without prejudice, and that count was omitted from O’Hara’s amended complaint.


author: JUSTICE JIGANTI

text:
    LUCILLE CONSOLINO, Plaintiff-Appellant, v. C. E. THOMPSON, d/b/a Thompson’s Ice Cream, Defendant and Cross-Plaintiff-Appellant (L. Karp & Sons, Inc., Defendant and Cross-Defendant-Appellee).
    First District (4th Division)
    Nos. 83—2181, 83—2384 cons.
    Opinion filed August 16, 1984.
    Robert C. Sheridan, of Burdick & Smith, of Chicago, for appellant.
    Brydges, Riseborough, Morris, Franke & Miller, of Chicago, for appellee L. Karp & Sons, Inc.
   JUSTICE JIGANTI

delivered the opinion of the court:

This action was commenced in order to recover for personal injuries allegedly sustained by the plaintiff, Lucille Consolino, when a metal object, which was apparently contained in a chocolate iced longjohn she had ingested, became imbedded in her throat. The plaintiff brought this suit, sounding in strict liability and negligence against defendants, C. E. Thompson, the bakery which manufactured and sold the longjohn, International Multifoods Co., the supplier of flour (International) and L. Karp & Sons, Inc., the supplier of chocolate syrup (L. Karp). In the count against L. Karp, the plaintiff alleged that the syrup was defective and unreasonably dangerous in that it contained a foreign metal object which rendered said syrup unsafe for use in the baking products manufactured by Thompson. In a countercomplaint for indemnity based on strict liability, Thompson named International and L. Karp as counterdefendants. After answers were filed, L. Karp filed a motion for summary judgment as to Consolino’s complaint and Thompson’s countercomplaint. The circuit court granted L. Karp’s motion, and Thompson now appeals, with the plaintiff adopting both Thompson’s brief and oral argument. Only strict liability was argued.

On appeal, Thompson and the plaintiff contend that sufficient evidence was presented to make the reasonable inference that the metal object that lodged in the plaintiff’s throat came from L. Karp’s container of chocolate syrup and that therefore the trial court erred in granting L. Karp’s motion for summary judgment. The plaintiff’s and Thompson’s argument in developing the above inference is based on the fact that there are only three possible sources from which the metal object could have come; itself, L. Karp and International, and that the only evidence of the use of metal objects near the finished product or its ingredients was a metal clip used by L. Karp in its packaging of the chocolate syrup. In response, L. Karp asserts that regardless of the possibility of drawing the inference suggested above, there was simply no evidence in the record which shows that the product was unreasonably dangerous when it left L. Karp’s control.

In support of their contention, the only evidence Thompson and the plaintiff can point to in the record is as follows: the chocolate iced longjohn was manufactured and sold by Thompson and its only two ingredients were flour and chocolate syrup, which were supplied by International and L. Karp respectively. Furthermore, in deposition, Lawrence Kaiser, the manager of Thompson, testified that the only metal objects used in his store were staples. He stated that they were exclusively used in his office and that they were never used in the baking area. International, in response to interrogatories regarding the use of metal objects in its production process, stated that their quality control system insured the absence of any metallic objects within their flour. The most revealing evidence, as asserted by Thompson and the plaintiff, was that presented at the deposition of Stanley Lorenz, baker supervisor for Thompson. The only part of Lorenz’ deposition utilized in their argument is wherein Lorenz stated that the chocolate syrup sold by L. Karp was packaged in a plastic pail that was sealed with a metallic clip. While it was not argued how using a metallic clip in the packaging process creates an unreasonably dangerous product, Thompson and the plaintiff did argue that the above cumulative circumstantial evidence creates the undeniable inference that the metal clip that lodged in the plaintiff’s throat came from L. Karp’s container.

In order to prove their case against L. Karp, the plaintiff and Thompson must prove (1) that the plaintiff’s injury resulted from a condition of the product; (2) the condition was an unreasonably dangerous one; and (3) the condition existed at the time the product left L. Karp’s control. (Suvada v. White Motor Co. (1965), 32 Ill. 2d 612, 210 N.E.2d 182.) These elements may be proven inferentially, by either direct or circumstantial evidence. (Tweedy v. Wright Ford Sales, Inc. (1976), 64 Ill. 2d 570, 357 N.E.2d 449.) Circumstantial evidence is the proof of certain facts and circumstances from which the jury may infer other connected facts which usually and reasonably follow according to the common experience of mankind. Benson v. Bradford Mutual Fire Insurance Corp. (1984), 121 Ill. App. 3d 500, 459 N.E.2d 689.

The instant product liability action was decided at the summary judgment stage. A motion for summary judgment should be granted if the pleadings, depositions, admissions and affidavits on file reveal that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. (Ill. Rev. Stat. 1981, ch. 110, par. 2—1005; Farmers Automobile Insurance Association v. Hamilton (1976), 64 Ill. 2d 138, 355 N.E.2d 1.) However, where facts are undisputed, if a fair-minded person may draw different inferences from those undisputed facts, summary judgment cannot be granted. (Cuthbert v. Stempin (1979), 78 Ill. App. 3d 562, 396 N.E.2d 1197.) But, in order to draw other inferences, the evidence presented must only be of such a character that the inference drawn is reasonable. (See Mort v. Walter (1983), 98 Ill. 2d 391, 457 N.E.2d 18; Pace v. McClow (1983), 119 Ill. App. 3d 419, 458 N.E.2d 4.) Further, a product liability action cannot be decided on mere speculation, guess or conjecture, so that the circumstances shown must justify an inference of probability as distinguished from mere possibility. Mateika v. La Salle Thermogas Co. (1981), 94 Ill. App. 3d 506, 418 N.E.2d 503; see Tiffin v. Great Atlantic & Pacific Tea Co. (1959), 18 Ill. 2d 48,162 N.E.2d 406.

What is considered sufficient evidence in order to draw a reasonable inference is a measure that has eluded being specifically standardized by any court that has attempted to articulate such a formula. A ruling of this sort will depend entirely upon the nature of the evidence offered in the case at hand, and it will seldom be possible for such a ruling to serve as a precedent. (See 9 Wigmore, Evidence sec. 2494, at 383 (Chadbourn rev. 1981).) In a leading scholarly work on the subject, Professor Fleming James writes in part:

“The question of sufficiency of circumstantial evidence to prove a fact is more complex and subtle. It turns on the concept of legitimacy of the desired inference. If A is shown, then the trier may infer B from A if, but only if, the inference is a rational one. The test of rationality is usually expressed in terms of probabilities. Where from the proven facts the nonexistence of the fact to be inferred appears to be just as probable as its existence (or more probable than its existence), then the conclusion that it exists is a matter of speculation, surmise, and conjecture, and a jury will not be allowed to draw it. This test suggests mathematical precision, but the suggestion is spurious. For one thing, we lack the quantitative data about most matters which would be needed to make meaningful statements in terms of probabilities. Of course some broad generalizations would command general assent. These are the judgments of “common sense,” but even they are fallible. How often the science of the morrow makes today’s common sense look foolish! Moreover the area is vast wherein thoughtful men who accept today’s common sense would either disagree or refuse to guess on which side of the line the greater probability lay.
* * *
It appears then that the test, formulated in terms which suggests objective, scientific precision, is in fact one which gives the courts little guidance and great latitude. Even where expert evidence concerning probabilities is available it is seldom offered. Instead, courts are constantly asserting or assuming broad generalizations about human behavior on all sorts of other matters which either rest on their own very fallible notions about such things (which, since judges are human, often reflect veritable old wives’ tales current in the culture of the community), or spring from considerations of policy and expediency.” (James, Sufficiency of the Evidence and Jury-Control Devices Available Before Verdict, 47 Va. L. Rev. 218, 221-22 (1961).)

An insightful summation on the subjects of the sufficiency of evidence and the reasonableness of inferences is provided by Justice Rutledge, wherein he stated: “The boundary between substance and shadow is hard to draw. Men, including judges, differ about it, always in concrete cases. What is substance to one may be shadow to another. The line cannot be drawn by magic of word or formula. It is not susceptible of generalization. It is always relevant to the issues and the evidence in a particular case. Hence, in the end, a kind of intuitive evaluation must be made, that the verdict does not or would not shock the judicial sense of justice.” Christie v. Callahan (D.C. Cir. 1941), 124 F.2d 825, 827.

In the case at bar, in order for Thompson and the plaintiff to prevail they must allege sufficient facts from which it is reasonable to draw the inference that L. Karp provided unreasonably dangerous chocolate syrup when it left L. Karp’s control and that said syrup injured the plaintiff. The only evidence that the plaintiff presented merely established that L. Karp’s packaging utilized a metal clip, whereas the other two named defendants, Thompson and International, did not use any such metallic object and that Thompson, International and L. Karp were the only three sources from which a metal object could have come. Given the facts presented, on a continuum of possibilities, to draw the inference that because L. Karp packages its syrup by using a metal clip and therefore its product is unreasonably dangerous is clearly not reasonable, but rather is utter speculation and conjecture. While it is possible to infer that the metal object that lodged in the plaintiff’s throat did come from L. Karp’s syrup container, such an inference is irrelevant since the record is completely devoid of any evidence that reasonably suggests that packaging syrup with a metal clip creates a product in an unreasonably dangerous condition. As mentioned above, there is no mathematical precision when it comes to ruling on a motion for summary judgment. Instead, the court makes more of an intuitive evaluation of the evidence before it and primarily renders a decision based on such assessments. In the instant case, because of the scant evidence presented, there was little question that the plaintiff failed to establish that L. Karp’s product was unreasonably dangerous when it left its control. Therefore, the motion for summary judgment was properly granted.

Based on the foregoing, the judgment of the trial court is affirmed.

Affirmed.

LINN, P.J., and JOHNSON, J., concur.


author: JUSTICE STAMOS

text:
    DAVID GUEL, Plaintiff-Appellant, v. KAREY C. BULLOCK et al., Defendants-Appellees.
    First District (2nd Division)
    No. 83—55
    Opinion filed August 28, 1984.

      Albert Brooks Friedman, Ltd., of Chicago (Frederick M. Ellis, Jr., of counsel), for appellant.
    Hopkins & Sutter, of Chicago (Elvin E. Charity, of counsel), for appellees.
   JUSTICE STAMOS

delivered the opinion of the court:

Plaintiff David Guel sought specific performance of a contract to purchase real estate. Named as defendants were the owner of the property in issue, Karey C. Bullock, and Joseph and Shou-Mei Morris, the ultimate purchasers of the property. Defendants filed a motion for summary judgment which was granted, and plaintiff appeals.

On February 6, 1982, plaintiff contracted to buy and defendant Karey Bullock contracted to sell real estate owned by Bullock. The contract described the property as “8427 S. Euclid.” The contract provided that plaintiff would pay $4,500, assume the mortgage on the property, and pay all back taxes which were due. The agreement designated plaintiff as the purchaser and Bullock as the seller, and it was signed by Bullock and plaintiff’s agents.

On February 24, 1982, plaintiff received a letter from Bullock’s attorney stating that Bullock was rescinding the contract to purchase. This letter was signed by Bullock’s attorney. Thereafter, Bullock sold his property to Joseph and Shou-Mei Morris for $8,000 under the same conditions contained in the agreement between plaintiff and Bullock. Plaintiff then sued for specific performance of the contract.

In his amended complaint, plaintiff contended that by reading the February 6 contract in conjunction with the February 24 letter of rescission, the essential elements for specific performance of the contract could be found. Defendants filed a motion for summary judgment on the grounds that the contract in issue failed to comply with the Statute of Frauds. The trial court granted the motion for summary judgment on the grounds that the contract failed to comply with the Statute of Frauds and because it appeared that plaintiff was not ready, willing and able to perform the terms of the contract. Plaintiff then instituted this appeal.

Plaintiff first contends that the trial court erred in concluding that the contract in issue did not comply with the requirements of the Statute of Frauds.

In Illinois, no action on a contract for the sale of an interest in land may be brought unless the contract is in writing and signed by the party to be charged. (See Ill. Rev. Stat. 1981, ch. 59, par. 2.) For a court to decree specific performance of a contract to convey real estate, the contract must be “definite and certain in its terms and conditions, contain the names of the vendor and vendee, a description of the property sufficient to identify it, the price, the terms and conditions of sale, together with the signatures of the parties to be charged.” (Pocius v. Fleck (1958), 13 Ill. 2d 420, 427, 150 N.E.2d 106.) This appeal turns on the degree of specificity required by the Statute of Frauds.

The contract in issue provides as follows:

“February 6, 1982
Seller agrees to sell and buyer agrees to buy on an assumption of the present mortgage of the property commonly known as 8427 S. Euclid. Buyer will pay on closing the sum of five thousand five hundred dollars in cash.
Buyer will pay all closing costs (excepting sellers attorney fees) and will assume all past due mortgage payments and real estate taxes.
This agreement subject to a title search to disclose any hidden liens, judgments or claims on the property.
This agreement is also subject to the mortgagee (Bell Federal) accepting the assumption.”

The first ambiguity noted by defendants and the primary point of contention is the contract’s failure to designate what city and State the property is located in. Plaintiff asserts that this defect is remedied by the letter of February 24, 1982, from Bullock’s attorney to plaintiff. In that letter, Bullock’s attorney acknowledged the existence of the contract for the sale of “8427 S. Euclid, Chicago, Illinois” and then proceeded to serve notice that that contract was being rescinded. Plaintiff asserts that when the letter of February 24, 1982, is read in conjunction with the contract of February 6, 1982, a property description which satisfies the Statute of Frauds results.

The difficulty with this approach is the fact that the letter of February 24, 1982, was signed only by the attorney, and not by the “party to be charged” (Bullock), and is therefore not binding on Bullock. Plaintiff argues that the attorney was Bullock’s agent and that the letter does bind Bullock. However, an attorney who is employed to provide advice with respect to a real estate transaction is not authorized to act as his client’s agent except as specifically authorized. (See Lanski v. Chicago Title & Trust Co. (1927), 324 Ill. 367, 373, 155 N.E. 296.) The specific authority to bind a client must be in writing where an interest in realty is at issue. McMillan v. Ingolia (1980), 87 Ill. App. 3d 727, 730, 410 N.E.2d 162.

In the instant case, in support of defendants’ motion for summary judgment, Bullock submitted an affidavit in which he stated that he did not authorize anyone to act as his agent with respect to the real estate transaction in issue. Plaintiff did not file a counteraffidavit contradicting this statement, and the court was therefore bound to accept it as true. (See Mutschler Kitchens of Chicago, Inc. v. Wineman (1981), 95 Ill. App. 3d 728, 734, 420 N.E.2d 672.) Thus, the trial court correctly disregarded the letter of February 24, 1982, in ruling on the motion for summary judgment.

Without the letter of February 24, the description of the property in issue is that provided in the contract: “8427 S. Euclid.” Defendants cite Crocker v. Smith (1937), 366 Ill. 535, 9 N.E.2d 309, for the proposition that the failure to specify the county or State of the subject property in a contract to purchase real estate renders the contract unenforceable under our Statute of Frauds. But the failure to specify the county or State was only one of several reasons cited by the court in Crocker in support of its finding that the contract in issue could not be specifically enforced. (See 366 Ill. 535, 537.) If the omission of the county or State from the property description had been the only ambiguity in the contract, it is not apparent that the court would have held the contract to be unenforceable as a matter of law. See Ullsperger v. Meyer (1905), 217 Ill. 262, 264, 266, 75 N.E. 482; Gage v. Cameron (1904), 212 Ill. 146, 173, 72 N.E. 204.

Under the Statute of Frauds in this State, parol evidence may be used to clarify the terms of a written contract. (See Callaghan v. Miller (1959), 17 Ill. 2d 595, 599, 162 N.E.2d 422; Werling v. Grosse (1979), 76 Ill. App. 3d 834, 841, 395 N.E.2d 629.) This is not to say that parol evidence may be used to supply missing terms. Only when the contract itself evinces the fact that the parties intended to be bound and that they agreed on the essential terms may parol evidence be introduced. See Corbin, Contracts sec. 499, at 689 (1950).

In order to be enforceable under our Statute of Frauds, a contract for the sale of land must contain: (1) a description of the property which is sufficiently certain so that it can be identified; (2) the price, the terms and conditions of sale; (3) the names of the vendor and vendee; and (4) the signature of the party to be charged. McDaniel v. Silvernail (1976), 37 Ill. App. 3d 884, 886, 346 N.E.2d 382.

In the instant case it is apparent that the parties entered into the agreement in issue intending to be bound and that they came to an agreement as to the essential terms. Defendant does not refute this. Rather, defendant claims that the written contract is not detailed enough to be enforceable.

Clearly, a contract need not provide for every contingency to be enforceable under the Statute of Frauds. (See Shugan v. Colonial View Manor (1982), 107 Ill. App. 3d 458, 465, 437 N.E.2d 731.) If it is apparent from the writing that a term has been agreed upon, parol evidence may be introduced to clear up any ambiguity. See, e.g., Callaghan v. Miller (1959), 17 Ill. 2d 595, 599, 162 N.E.2d 422; Werling v. Grosse (1979), 76 Ill. App. 3d 834, 841, 395 N.E.2d 629; Bliss v. Rhodes (1978), 66 Ill. App. 3d 895, 897-98, 384 N.E.2d 512; see also Corbin, Contracts sec. 499, at 689 (1950).

In the instant case, defendant argues that the property description in the contract (“8427 S. Euclid”) is too ambiguous to enforce. But by resorting to parol evidence, plaintiff may be able to establish that defendant Bullock has an interest in only one parcel of real estate which is designated as “8427 S. Euclid” and that that parcel is located in Chicago, Illinois. (See Bliss v. Rhodes (1978), 66 Ill. App. 3d 895, 897, 384 N.E.2d 512.) If plaintiff was given an opportunity to present such evidence, it would be readily apparent that there was no other parcel of real estate to which the contract could apply. See, e.g., Callaghan v. Miller (1959), 17 Ill. 2d 595, 599, 162 N.E.2d 422; Werling v. Grosse (1979), 76 Ill. App. 3d 834, 841, 395 N.E.2d 629; Bliss v. Rhodes (1978), 66 Ill. App. 3d 895, 897-98, 384 N.E.2d 512; see also Corbin, Contracts sec. 505, at 719 (1950).

In the instant case, the trial court granted defendants summary judgment because of the insufficiency of the written contract. But summary judgment should not be granted unless it is apparent that no set of facts can be proved to sustain the cause of action. (Golden Rule Life Insurance Co. v. Mathias (1980), 86 Ill. App. 3d 323, 332, 408 N.E.2d 310.) Under the above analysis concerning the sufficiency of the property description, it appears that plaintiff could prove a set of facts to allow enforcement of the contract. We find that summary judgment was improperly granted.

Defendants attempt to bring into question the sufficiency of other terms of the contract in issue. But it is not apparent that these terms are as ambiguous as defendants claim. In any event, it is clear that these terms were agreed upon by the parties, and plaintiff should be given the opportunity to produce evidence to clarify these terms to defendants’ satisfaction. To the extent that the court’s grant of summary judgment was based on the alleged ambiguities of these terms, it was in error because they could have been clarified through parol evidence.

By our reversal of the trial court’s judgment, we are not precluding the trial court from dismissing plaintiff’s complaint on the basis of the Statute of Frauds. If, after the presentation of parol evidence, it becomes apparent that the parties did not in fact come to an agreement as to the essential terms of the contract, the court will be justified in dismissing plaintiff’s action. See Corbin, Contracts sec. 499, at 688 (1950).

Plaintiff also objects to that portion of the trial court’s order which states that plaintiff was not ready, willing and able to perform under the contract in issue. Defendants defend this part of the order by arguing that at the time the contract was entered into, the property was “distressed” (mortgage installments and property taxes were past due) and plaintiff was aware of this fact. Defendants assert that it was apparent to all parties involved that time was of the essence in performing under the contract. Defendants conclude that plaintiff’s failure to apply for an assumption of defendant Bullock’s mortgage within 18 days of signing the contract indicates that plaintiff was not ready, willing and able to perform.

Where the parties to a contract intend that the contract is to be performed as soon as possible, they should expressly provide in the contract that “time is of the essence.” Without such a provision, the court will imply a reasonable time for performance (see Ullsperger v. Meyer (1905), 217 Ill. 262, 267, 75 N.E. 482), and what is a reasonable time for performance is a question of fact.

In the instant case, the contract in issue did not provide that performance should occur within a stated time or that time was of the essence. Thus, a question of fact was presented as to whether plaintiff’s failure to act within 18 days of signing the contract was beyond a reasonable time. Under these circumstances, a grant of summary judgment was inappropriate.

Defendants Joseph and Shou-Mei Morris contend that the trial court’s grant of summary judgment in their favor was proper because they are bona fide purchasers for value. A person who takes title to real property in good faith for value without notice of outstanding rights of others is a bona fide purchaser and takes such title free of the rights and claims of third parties. In his amended complaint, plaintiff Guel alleged that the Morrises had knowledge of his purchase of the subject property before they contracted to purchase that same property. This allegation was supported by two averments of fact. First, plaintiff claimed that:

“9. The Defendants, JOSEPH MORRIS and SHOU-MEI MORRIS were aware of the previously executed agreement between DAVID GUEL and KAREY C. BULLOCK and therefore were not bona fide purchasers due to the fact that at the time of transfer of the property to JOSEPH MORRIS and SHOUMEI MORRIS they were represented by one Harold Markham, who also represented the Defendant, KAREY C. BULLOCK.”

Second, plaintiff claimed that:

“10. Further the Defendants, JOSEPH AND SHOU-MEI MORRIS were fully aware of said agreement due to the fact that they received a copy of the letter of February 24, 1982 attached hereto as Exhibit ‘B’.”

The Morrises’ answer to plaintiff’s complaint contained general denials to the averments discussed above. The motion for summary judgment did not address them at all. The motion dealt exclusively with the alleged failure of plaintiff’s agreement to meet the requirements of the Statute of Frauds. The motion did not contain a single provision refuting the factual averments concerning the Morrises’ alleged knowledge of the prior agreement. Thus, the trial court was presented with only plaintiff’s averments and the Morrises’ general denials in ruling on the motion for summary judgment. Clearly, to grant the motion in this situation would be inappropriate unless the invalidity of the averments was evident on their face or was revealed by the exhibits accompanying the pleadings and motion. In ruling on a motion for summary judgment, a trial court must construe the motion, pleadings and supporting documents most strictly against the moving party and most liberally in favor of the opponent. Cimino v. Dill (1980), 92 Ill. App. 3d 345, 348, 415 N.E.2d 1272.

As to the first averment in issue, the Morrises contend that it is invalid as a matter of law. This averment charges that the Morrises had knowledge of the prior agreement because at the time they purchased the property, “they were represented by one Harold Markham, who also represented the Defendant, KAREY C. BULLOCK.” The Morrises interpret this averment as an improper attempt by plaintiff to impute to the Morrises the knowledge of their attorney, Harold Markham, concerning the prior agreement. At this stage of the proceedings, however, such a narrow reading of this averment is inappropriate.

Under a liberal reading of the above averment, plaintiff should be allowed to produce evidence that attorney Markham directly informed the Morrises of plaintiff’s contract to purchase the subject property prior to the time that the Morrises contracted to purchase that same property. This appears to be a reasonable interpretation of this averment, and we find that plaintiff should be given an opportunity to produce evidence on this point.

The second averment charges that the Morrises, prior to contracting to purchase the subject property, received a copy of a letter which alluded to the prior agreement between plaintiff and Bullock. The letter was attached as an exhibit to plaintiff’s amended complaint. The letter was sent to plaintiff, was signed by Markham, and indicated that copies of the letter were to be sent to defendant Bullock and to an attorney named Barry Schmarak. The Morrises assert that it is evident from the face of the letter that they were not a party to it and that they did not receive a copy of it. It may be, however, that one of the parties to the letter made a copy and gave it to the Morrises, and plaintiff may be able to produce evidence to this effect. This scenario is reasonably encompassed in plaintiff’s averment, which states simply that the Morrises “received a copy of the letter.” This is admittedly a strict construction of the averment, but as we noted above, a motion for summary judgment requires that the documents involved be strictly construed in favor of the nonmoving party. Viewed from this perspective, it was inappropriate to dispose of this second averment as a matter of law.

In support of its motion for summary judgment, the Morrises stated that “[pjlaintiff has failed to show any actual or constructive knowledge on the part of Mr. and Mrs. Morris with respect to the dealings between Plaintiff and Karey C. Bullock.” Plaintiff was not, however, required to prove anything at this stage of the proceedings. (See Bennett v. Raag (1982), 103 Ill. App. 3d 321, 325, 431 N.E.2d 48.) All that plaintiff was required to do to survive a motion for summary judgment on the issue of the Morrises’ knowledge was to raise a triable issue of fact. We find that he has done so in the instant case.

For the reasons expressed herein, the judgment of the circuit court is reversed and this case is remanded for further proceedings.

Reversed and remanded.

DOWNING and PERLIN, JJ., concur.


author: JUSTICE WHITE

text:
    G & W ELECTRIC COMPANY, Plaintiff-Appellant, v. JOSLYN MANUFACTURING AND SUPPLY COMPANY et al., Defendants-Appellees.
    First District (3rd Division)
    No. 84—1385
    Opinion filed August 22, 1984.

      Robert B. Jones and David A. Crossman, both of Fitch, Even, Tabin & Flannery, of Chicago, for appellant.
    Mason, Kolehmainen, Rathburn & Wyss, of Chicago (Timothy J. Vezeau and Robert L. Rohrback, of counsel), for appellees.
   JUSTICE WHITE

delivered the opinion of the court:

G & W Electric Company (G&W) appeals from an order of the circuit court denying the part of its motion for a temporary restraining order which prayed that the court temporarily restrain defendant, Bruce M. Sauerbier, from assuming employment with defendant, Joslyn Manufacturing and Supply Company (Joslyn), and from disclosing the confidential and proprietary information of G&W to Joslyn. The order was entered without an evidentiary hearing. The only facts before the trial court were those alleged in plaintiff’s verified complaint, in the affidavit of Lawrence Radawan, plaintiff’s vice president, and in the motion to dismiss. Defendants have filed no responsive pleadings.

The question presented by this appeal is whether the trial court erred in denying G&W the restraints prayed for without an evidentiary hearing. We examine the pleadings to determine whether they contain allegations which could support the temporary restraining order which G&W seeks. From the sum of plaintiff’s pleadings, these facts appear: G&W Electric Company designs, develops, manufactures and sells equipment for electric power distribution systems, including electric switches. Over the years it has done research and spent large sums of money to create and maintain confidential proprietary information and trade secrets regarding the design, development, manufacture and sale of its products. This information is original and of special substantive competitive value, and is made known only to those employees of G&W who must have access to it in order to perform their duties. Defendant Sauerbier was one of those employees, and as such he was required by G&W to enter into a confidential information agreement as a condition of his continued employment by G&W. The agreement, dated January 11, 1984, in pertinent part reads:

“that after leaving G & W for any reason, I will not accept employment at a direct competitor, which is likely to utilize * * * [the confidential and proprietary information of G&W known to Sauerbier] *** to the competitive detriment of G & W (the definition of such competitor and such likelihood is solely at the discretion of G & W), for a period of up to two years (term to be G & W discretion) commencing with date of separation, provided G&W declares (at its sole prerogative) a direct competitive conflict involving confidential proprietary information. I understand that, should a direct competitive conflict be declared by G & W, G & W will compensate me during this period at a rate equal to my most recent base compensation rate prior to separation date.”

Sauerbier, in a letter dated May 7, 1984, advised G&W that he was terminating his employment with G&W effective May 18, 1984, and that he had accepted a position with Joslyn Manufacturing and Supply Company to begin immediately after the termination. Joslyn is also engaged in the design, development, manufacture and sale of electrical equipment and is a direct competitor of G&W. On the next day, G&W sent a letter to Sauerbier stating that pursuant to their employment agreement, “G&W has determined that Joslyn is a direct competitor of G & W’s, and that your employment at Joslyn would be likely to utilize confidential proprietary technical, financial and strategic information and plans which you acquired during your employment by G & W. G & W hereby exercises its right to continue to compensate you at your most recent base compensation ($2,035 per month) and in return we expect you to decline employment at Joslyn as provided in your employment agreement.” After another exchange of letters, Sauerbier, on May 14, 1984, notified G&W that he had gone to work for Joslyn. On May 16, 1984, G&W filed its complaint and motion for temporary restraining order.

It has been repeatedly held covenants such as the one in the case at bar, which restrict employment opportunities of former employees, are basically in restraint of trade and will be enforced only when their limitations as to time and territory are not unreasonable. (Haag Brothers, Inc. v. Artex International, Inc. (1978), 60 Ill. App. 3d 141, 145, 376 N.E.2d 636.) In the case before us, the restriction against Sauerbier’s employment was limited in time to two years, but it had no geographical limitation. G&W argues that specific geographic limitation is impossible in this case, however, because plaintiff is in competition throughout the United States and in foreign countries as well. We need not decide whether the worldwide restriction on Sauerbier’s employment was reasonable in light of the fact G&W’s business was worldwide, because nothing before the chancellor even suggested the ubiquitous nature of G&W’s operations. A plaintiff asking equity to enforce a restrictive covenant must allege facts establishing a valid enforceable contract. The record before the trial court failed to establish that the restriction on Sauerbier’s employment was no broader than the extent of G&W’s operations and was therefore reasonable although without geographical limitation. A claim never alleged in the complaint nor set up in plaintiff’s theory of the case at trial cannot be considered on appeal. Baker v. Collins (1963), 29 Ill. 2d 410, 415, 194 N.E.2d 353.

In further support of its argument that the restriction in the covenant in its employment contract is not unreasonable, G&W makes this point: “The restriction on Defendant’s subsequent employment was not automatic and did not preclude him from taking employment with a direct competitor. The restriction took effect only upon notice to Defendant that Plaintiff had determined that a particular direct competitor was likely to misappropriate Plaintiff’s proprietary information.” This limitation on the covenant’s restrictions, however, becomes illusory when read together with a phrase in the covenant which follows it: “the definition of such competitor and such likelihood is solely at the discretion of G&W.” It can certainly be argued that under this covenant G&W would be the sole arbiter of where Sauerbier worked for two years following his leaving G&W.

Another point made by G&W, perhaps to mitigate the severity of the restrictions on Sauerbier’s employment opportunities, is that “during that period Plaintiff is obligated to pay Defendant’s full base salary.” We fail to see how the payment of this stipend would make the restrictions placed on Sauerbier reasonable. That is determined by how relevant and necessary it is to the protection of G&W’s legitimate interest's.

For these reasons we find no error in the denial of this part of plaintiff’s motion for a temporary restraining order.

The motion also sought to restrain Sauerbier “from disclosing the Confidential and Proprietary Information of G&W to defendant Joslyn Manufacturing and Supply Company or to any others.” This portion of the motion was also denied. We believe this action taken without an evidentiary hearing was error. Indeed, defendants, in their brief on appeal, state: “Defendants did not then and would not now object to entry of an order prohibiting Akers and/or Sauerbier from disclosing to Joslyn any specifically identified trade secrets (i.e., excluding information in the public domain and that representing general skills and knowledge).” We reverse and remand this portion of the order appealed.

Affirmed in part, reversed and remanded in part.

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