author: JUSTICE WEBBER

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ROGER N. DAHL, Defendant-Appellant.
    Fourth District
    No. 4—82—0128
    Opinion filed November 15, 1982.

      Luedtke, Hartweg & Turner, of Bloomington (Darrell L. Hartweg, of counsel), for appellant.
    Ronald C. Dozier, State’s Attorney, of Bloomington (Robert J. Biderman and James K. Horstman, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE WEBBER

delivered the opinion of the court:

Defendant was convicted in the circuit court of McLean County of the offense of theft of property exceeding $150 in value in violation of section 16 — 1(a) of the Criminal Code of 1961 (Ill. Rev. Stat. 1979, ch. 38, par. 16 — 1(a)). He was sentenced to 12 months’ probation and 21 days in the McLean County jail and ordered to make restitution in the amount of $191.

No issue of reasonable doubt is raised, but a brief recapitulation of the facts is in order so that the issues which are raised concerning search and seizure may be more easily understood.

The alleged theft was that of electricity from the Illinois Power Company, the utility which supplied service to defendant’s residence in Bloomington. Electrical service to the residence was underground and led from a transformer at the rear and off of defendant’s premises. Defendant had been employed as a lineman for another utility for about nine years; his principal duties during that time were to hook up overhead wires, but he had done some underground work. In November 1980 a meter reader for the Illinois Power Company noticed that the billing meter on defendant’s house was upside down. As a result of obtaining this information, Illinois Power Company caused a check meter to be installed in the transformer on the service leading to defendant’s residence. This was done on June 3, 1981. The check meter and the billing meter on the house were read periodically and the results were forwarded to the billing department of the company. At trial it was established that for the period June 3, 1981, through August 6, 1981, the check meter showed 5,144 and the billing meter showed 1,407 as the number of kilowatt hours used. The value of the discrepancy was established at $191, not including taxes.

During the period from June to August of 1981 a customer supervisor for the Illinois Power Company conferred with an assistant State’s Attorney of McLean County concerning the situation at defendant’s residence. The supervisor had been a witness for the State in a previous case of the same nature. Among other things, the supervisor told the assistant State’s Attorney that the company had installed the check meter and was conducting an investigation into the situation; he inquired about what evidence was needed for criminal prosecution and how to go about obtaining it. The assistant advised that in order to enter the residence it would be necessary to obtain a search warrant. On August 5, 1981, the supervisor told the assistant State’s Attorney that on the next day, August 6, the company intended to go upon defendant’s premises and dig up the underground service to ascertain if it were being tapped with a bypass device. The assistant advised him that the company had the right to do this and that if anything were found, to call him so that a search warrant might be obtained.

Illinois Power Company personnel went to defendant’s premises on August 6. They first disconnected the billing meter and found that the check meter continued to register usage and that a porch light on the residence remained burning. They then excavated the service line into the house and cut it, whereupon the porch light went out. A second hole was dug nearer to the house at the general location of the billing meter and at that place wires branching off from the service were discovered. Company officials then went to the State’s Attorney’s office where the assistant prepared an application for search warrant. It specified that the items to be seized were the bypass connection on the incoming service line, the electrical equipment inside the house to which the bypass was connected, and the outside connections utilizing the bypassed electricity.

The assistant State’s Attorney came to the premises with the police officer who was to serve the search warrant and viewed what was alleged to be the bypass. The warrant was served upon the defendant and the assistant authorized the detachment of the three wires which allegedly constituted the bypass, but further authorized the taking of pictures of the remaining items because to remove them would cut off all electrical service to the premises.

Defendant’s motion to suppress the evidence obtained and to quash the search warrant was denied. He testified that he gave no consent to the placement of the check meter and no consent to the entry and excavations upon his premises.

On appeal defendant’s principal issue concerns the trial court’s denial of his motion to suppress evidence, which he contends is error.

Two additional issues are raised: (1) error in refusing to quash the search warrant when the warrant alleged theft of services and the ultimate charge was theft of property exceeding $150, and (2) error in admitting certain rate schedules of the Illinois Power Company. We find no error and affirm.

As to the issue of suppression, the position of the parties is straightforward: defendant claims that the participation of the assistant State’s Attorney in the affair makes the search one by the government, the protection of the fourth amendment applies,, and his rights were violated by the company’s actions. The State argues that defendant lacked any expectation of privacy in the areas searched and hence there was no violation.

We believe that the answer is somewhat narrower than either contention: the Illinois Power Company was authorized by law to enter upon the premises and therefore either the participation of the assistant State’s Attorney or the defendant’s expectation of privacy are irrelevant.

The company’s legal authorization stems from a portion of its tariff filing with the Illinois Commerce Commission. Pertinent portions of that filing entitled “Rules, Regulations and Conditions Applying to Electric Service” provide as follows:

“1. GENERAL INFORMATION AND REQUIREMENTS -
Page 7
1.1+ Obligations of Customer
1.41 By applying for or taking electric service from Utility, Customer grants to Utility the right to enter upon the premises to be served and to install or remove, repair or maintain thereon, its lines, meters and other facilities for the purpose of serving such Customer. Customer shall afford Utility’s representatives free access to Customer’s premises at all reasonable hours for the purpose of reading the meter, inspecting the metering and other equipment relating to Utility’s service, repairing, testing or removing its meter and equipment, and at any time in case of an emergency.
4. SERVICE CONNECTIONS - Page 13
1+. 6 Metering Equipment (continued)
* * *
4.66 All meters, transformers, wires and other equipment installed by Utility at its own expense upon Customer’s premises are the property of Utility. Under no circumstances shall any person other than a representative of Utility connect or disconnect any meter, connect to a meter or disturb any wiring between the meter and the service wires from Utility’s distribution system after the meter has been installed. Seals will be placed by Utility on all meters or meter enclosures and connection cabinets or source side of meter and such seals shall not be broken or disturbed by anyone other than authorized representatives of Utility. Any infraction of this Rule may be considered sufficient cause for discontinuance of service.”

These excerpts were offered into evidence at the hearing on the motion to suppress but were never ruled on by the trial court. In our opinion they were properly before the trial court and are properly before us. They are public records of a State agency and are subject to judicial notice on that basis. Compare Department of Public Welfare v. Bohleber (1961), 21 Ill. 2d 587, 173 N.E.2d 457; Thurman v. Department of Public Aid (1974), 25 Ill. App. 3d 367, 323 N.E.2d 502.

Illinois Power Company had the clear right to do what it did with or without the assistant State’s Attorney. Undoubtedly he became the beneficiary of the search, but this cannot alter its legal nature. Defendant has cited United States v. Mekjian (5th Cir. 1975), 505 F.2d 1320, but it is clearly distinguishable. In that case a doctor was being prosecuted for filing false Medicare claims. His office nurse had been copying records and provided them to the FBI, whose agents told her to refrain from any further copying but did accept the copies already made. However, she continued to copy records and provide them to authorities. The Fifth Circuit held the evidence inadmissible because of the government participation in and knowledge of the “misconduct.” The court described the government as “the beneficiary of such misconduct.” 505 F.2d 1320, 1327.

We have no quarrel with Mekjian. If the evidence is obtained through misconduct and the government acquiesces in it, the evidence should be suppressed. However, in the instant case there was no misconduct. Unlike the nurse who had no legal right to copy her employer’s records, Illinois Power Company was empowered by its approved tariffs to enter upon defendant’s premises and to remove any of its facilities. The fourth amendment has no application.

A Federal case more nearly parallel to the case at bar is United States v. Clegg (5th Cir. 1975), 509 F.2d 605. In Clegg a telephone company had reason to believe that its equipment was being bypassed by means of what was commonly called a “blue box” and long distance calls were being made by the defendant without payment for them. Recording devices were placed on defendant’s telephone line to ascertain that the calls were being made and were being made by him. The telephone company had kept the FBI informed of its investigations. The court held that under the totality of the circumstances the FBI’s part was insufficient to make the search one by the government authorities and that the fourth amendment did not apply. The court said:

“Rather, it is the case of a private, statutorily authorized investigation by the employee of a corporation intent upon protecting its property rights.
The fact that United States law enforcement authorities were informed that the investigation was underway and that it had uncovered evidence of criminal activity does not automatically change its private nature.” 509 F.2d 605, 609.

Other Federal cases reaching a similar result are United States v. Manning (6th Cir. 1976), 542 F.2d 685; United States v. Harvey (8th Cir. 1976), 540 F.2d 1345; United States v. Auler (7th Cir. 1976), 539 F.2d 642; United States v. Goldstein (9th Cir. 1976), 532 F.2d 1305.

Defendant’s second issue concerns the application for a search warrant. The application stated that the materials to be seized were believed to constitute evidence of the offense of “theft of services.” Defendant was ultimately indicted for theft of property over $150 in value. He maintains that this is a fatal variance and that the warrant should have been quashed.

Section 108 — 3(a)(1) of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1979, ch. 38, par. 108 — 3(a)(1)) provides:

“(a) Except as provided in subsection (b) ***, any judge may issue a search warrant for the seizure of the following:
(1) Any instruments, articles or things which have been used in the commission of, or which may constitute evidence of, the offense in connection with which the warrant is issued.” (Emphasis added.)

Defendant’s interpretation of this section is, in our opinion, overly technical. The common sense interpretation of the section is that it is intended to prevent a fishing expedition by the police. This is indicated by the Committee Comments to section 108 — 1 (Ill. Ann. Stat., ch. 38, par. 108 — 1, Committee Comments, at 11 (Smith-Hurd 1980)). While that section deals with search without a warrant, the rationale remains the same.

In the instant case the application concerned theft and the ultímate indictment was for theft. It was not a case of obtaining a search warrant under an allegation of theft and returning articles seized which would support a charge of drug possession or arson. The specificity demanded by defendant is contrary to logic and reason. His argument is without merit.

Defendant’s final contention concerns the admission of certain rate schedules of Illinois Power Company. This occurred during the trial testimony of a supervisor for the company who was called to testify as to the value of the electricity stolen. His testimony was objected to for lack of foundation. The witness stated that a rate increase had gone into effect in July 1981, midway during the period of investigation of defendant. He stated that he would require the rate schedules for the pre-July period as well as the post-July period in making an accurate answer. On motion of the State a recess was granted by the trial court and the witness repaired to his office and returned with the schedules. These were offered into evidence by the State to support the supervisor’s calculations, but defendant objected on the basis that they had not been included in the State’s answer to his discovery motions. The trial court overruled the objection.

The regulation of discovery under Supreme Court Rule 412(a)(87 Ill. 2d R. 412(a)) and sanctions for its violation are within the sound discretion of the trial court. (People v. Galindo (1981), 95 Ill. App. 3d 927, 420 N.E.2d 773.) Failure by a defendant to request a continuance when evidence not contained in the State’s answer to discovery is submitted is generally considered a waiver of the claim of surprise. (Galindo; People v. Nelson (1980), 92 Ill. App. 3d 35, 415 N.E.2d 688.) In the case at bar defendant made no motion for continuance and has failed to show any prejudice. There was no abuse of discretion and defendant has waived the matter.

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

Affirmed.

GREEN, P.J., and LEWIS, J., concur.


source: Caselaw Access Project

author:
PRESIDING JUSTICE GREEN
      JUSTICE TRAPP,

license: Public Domain

text:
      In re ESTATE OF DAMION F. WADMAN, a Minor.-(Charles Robert Crail et al., Guardians of the Person and Estate of Damion F. Wadman, a Minor, Petitioners-Appellants, v. Kirsten York, Respondent-Appellee.)
    Fourth District
    No. 4—82—0232
    Opinion filed November 17, 1982.

      TRAPP, J., concurring in part and dissenting in part.
    Burger, Fombelle, Wheeler & Dvorak, P.C., of Decatur (James E. Zachry, counsel), for appellants.
    Wayne G. Hedenschoug, of Land of Lincoln Legal Assistance Foundation, Inc., of Springfield, for appellee.
   PRESIDING JUSTICE GREEN

delivered the opinion of the court:

In this case we face again the difficult problems arising in proceedings where natural parents seek to have returned to them the rights and responsibilities previously placed in others by court order. On June 3, 1980, pursuant to the petition of Charles R. and Mary A. Grail under section 11 — 5 of the Probate Act of 1975 (Ill. Rev. Stat. 1979, ch. HOVa, par. 11 — 5), the circuit court of Macon County entered an order appointing petitioners guardians of the estate and person of Damion E Wadman, then a four-year-old boy. Respondent, Kirsten York, the natural mother, and apparently, sole person claiming parental rights, had filed a written consent to entry of the order. On April 15, 1982, pursuant to the request of respondent York, the court entered an order terminating the guardianship and returning the child to her custody.

Petitioners have appealed raising issues concerning (1) the standards the court should have applied in making its ruling, and (2) whether the ruling was contrary to the manifest weight of the evidence. More particularly petitioners assert: (1) the guardianship should not have been terminated absent a showing of change in circumstances since entry of the order appointing the guardians; (2) the trial court should have followed the detailed guidelines set forth in section 610 of the Illinois Marriage and Dissolution of Marriage Act (111. Rev. Stat. 1981, ch. 40, par. 610); (3) the termination was not proved to be in the best interests of the child; and (4) the respondent mother was shown to be unfit.

In determining the standards applicable to the court’s decision, we must first examine the statute under which the proceeding was brought. The only reference in the Probate Act of 1975 to the termination of the guardianship of a minor is section 11 — 14.1, which states, “[u]pon the minor reaching the age of majority, the letters of office shall be revoked and the guardianship shall be terminated.” (Ill Rev Stat. 1979, ch. llO1^, par. 11 — 14.1.) The Act makes no express reference to the termination of the guardianship of a minor who has not reached the age of majority. The parties have proceeded on a theory that section 23 — 2 of the Act (Ill. Rev. Stat. 1979, ch. llOVa, par. 23 — 2) providing for removal of a “representative” covers the termination of a guardianship of a minor who has not reached the age of majority. A guardian is a “representative” within the definition used in the Act. Ill. Rev. Stat. 1981, ch. llO1^, par. 1 — 2.15.

Section 23 — 2 is divided into subsections (a) and (b). Subsection (b) concerns removal of certain representatives if they become nonresidents and is not applicable here. Subsection (a) is geared primarily to removal of the representative for misconduct or inability to serve but also provides in subsection (a)(10) for removal for “other good cause.” (Ill. Rev. Stat. 1979, ch. HOVz, par. 23 — 2(a)(10).) Although few cases have touched on the applicability of section 23 — 2(a)(10) to proceedings of the nature here, in the case of In re Estate of Brown (1982), 103 Ill. App. 3d 470, 431 N.E.2d 457, the Appellate Court for the Fifth District indicated, by way of dictum, that section 23 — 2 would be applicable to proceedings to terminate the guardianship of a minor and to return the minor to parental custody. However, the court held that the “good cause” provision of subsection (a)(10) referred only to cause arising from malfeasance by or inability of the representative.

We agree that section 23 — 2(a)(10) is applicable to the termination of a guardianship of a minor prior to the minor’s reaching majority. Otherwise there would be no way to terminate a guardianship in such a situation. We do not agree that “other good cause” includes only situations where the representative has committed malfeasance. If that were so, no procedure would exist to return a child to the custody and control of a parent when that parent had become an able and proper person to make the parental decisions for a child, but the previously appointed guardian had served properly and continued to be able to do so. Accordingly, we hold that section 23 — 2(a)(10) was properly invoked here even though the major thrust of the mother’s contentions before the trial court in seeking termination made no claim of any malfeasance or inability of the guardians but referred to her right as a parent to care for the child and her ability to do so.

As the Probate Act of 1975 sets forth no standards for the proceeding for termination involved here, we must look elsewhere for such standards. However, the supreme court has spoken recently in the case of In re Custody of Townsend (1981), 86 Ill. 2d 502, 427 N.E.2d 1231, as to criteria crucial to all cases where custody of children are in issue. Although this case involves guardianship of the person of a child which includes rights and responsibilities in addition to custody, there as here, the dispute was between a natural parent and those not a parent. The Townsend court deemed the two most significant elements to be the superior right of parents to custody of their children and the concern of the court for the best interests of the child. Citing People ex rel. Edwards v. Livingston (1969), 42 Ill. 2d 201, 247 N.E.2d 417, the court held a nonparent seeking to acquire or retain the custody of a child against a parent had “the burden of demonstrating good cause or reason to supersede the superior right” of the parent. In re Custody of Townsend (1981), 86 Ill. 2d 502, 514, 427 N.E.2d 1231, 1237.

The Townsend court also said that courts should give significance to the claim of a nonparent “who has had actual or legal custody of the child for a substantial period of time, especially if the evidence shows that the child has become an integral member of a true family unit. [Citations.]” (86 Ill. 2d 504, 515, 427 N.E.2d 1231, 1238.) There, no prior court order of custody had been entered, and the court had no reason to address any requirement for showing a change in circumstances before a court should modify a custody order. Previous cases concerning modification of child custody in a divorce proceeding (Nye v. Nye (1952), 411 Ill. 408, 105 N.E.2d 300) and alteration of guardianship of the person (Hohenadel v. Steele (1908), 237 Ill. 229, 86 N.E. 717) have stated a change in circumstances is necessary before a court will alter a custody or guardianship order. The logic of this rule is that absent a change in circumstances, a court would be merely ruling on the exact issue previously decided. We conclude that some showing of a change in circumstances is necessary to support an order terminating a guardianship. As we later explain, a sufficient showing of change was made here.

Petitioners’ argument that the guidelines of section 610 of the Illinois Marriage and Dissolution of Marriage Act should have been followed is based on the arguments that: (1) standards for orders concerning child custody should be the same regardless of the type of proceeding involved; and (2) the lack of guidelines for determining “other good cause” under section 23 — 2(a)(10) of the Probate Act of 1975 require adoption of some detailed standards. In the case of In re Adoption of Scheidt (1980), 89 Ill. App. 3d 92, 411 N.E.2d 554, the Appellate Court for the Third District held that the standards set forth in sections 602 and 610 of the Illinois Marriage and Dissolution of Marriage Act were inapplicable to adoption and guardianship proceedings. (Ill. Rev. Stat. 1981, ch. 40, pars. 602, 610.) The court noted that the duties of guardian of the person of a minor might include custody but included several other responsibilities as well. It reasoned that, accordingly, the court should not imply a requirement that trial courts be subject to the constraints of section 610 in removing a guardian although the standards of section 610 might be looked to for guidelines.

We agree with the holding in Scheidt. Section 610 is a refinement of the change in circumstances rule and also refines the general rule stated in Townsend that consideration must be given to the affinity that may have developed between a ward and the custodial family. Had the exact guidelines of section 610 been binding on all custody proceedings, the Townsend court would have so stated. We conclude that the guidelines binding upon the court were those set forth in Townsend, and the requirement that some change in circumstances be shown.

Having passed upon the criteria to be considered, we now turn to a summary of the facts of this case. The parties agreed that the transcript of an adoption proceeding, wherein the Grails unsuccessfully sought to adopt Damion, be allowed into evidence at hearing on the petition. The undisputed evidence established that in April of 1980, Kirsten left Damion at the residence of Connie Grieve, who then took Damion to Mary Grail at the Eldorado Bowling Alley, all in Decatur.

The Grails testified that on that evening, Damion walked up to Mary and said, “Are you my new mommy?” and hugged and kissed her and went up to Robert Grail and said, “Are you Bob, are you my new dad?” The Grails stated that when Damion first came to them, he was very restless, wanted love and attention, and was very thin. They testified that within a day or two of coming to them, Damion indicated he disliked his mother, had been mistreated and beaten, and was not fed well.

Connie Grieve and Linda Fecho testified to an incident where they went to Kirsten’s third floor apartment and found Damion sitting in an open, screenless window. They stated Kirsten took Damion out of the window and hit him hard in the stomach. Grieve testified that Kirsten had said she hated Damion, and Brenda Deemer and Fecho both testified that Kirsten had said she did not want Damion. Grieve also testified to another occasion where Kirsten hit Damion in the stomach with her fist and to an occasion where she observed Kirsten smoke a marijuana cigarette in Damion’s presence. Grieve additionally testified that the day Damion was sitting in the window, the apartment had odors of stale food, there was food sitting on the stove apparently having been there for days, trash in front of the door, and items on the floor.

Kirsten gave the following testimony: She did not give up custody of Damion on a permanent basis but let him go to the Grails so they could take care of him, as she was working late nights and having trouble with her babysitter. She had an oral agreement with the Grails that they would take Damion until she could get back on her feet. She denied saying she wanted to get rid of Damion. She stated she never beat or struck Damion but has “whipped” him. She understood the transfer of Damion to the Grails to be a temporary arrangement and did not understand the guardianship papers that she signed.

Kirsten continued testifying as follows: She is employed as a cook and waitress and brings home $130 per week. Her previous jobs included employment at the Ramada Inn, from which she was fired, caring for an elderly woman, and working at McDonald’s. She currently is renting a home and has had three other residences since she gave Damion to the Grails. In April of 1981, she pleaded guilty to a charge of unlawful delivery of cannabis. She stated her situation has changed from the time she signed the guardianship papers, as she has a home and job and is more careful with whom she is associated.

Witnesses testifying on Kirsten’s behalf stated that Kirsten and Damion get along well during visitation. A previous babysitter testified that Damion always looked clean and properly clothed although on one occasion Kirsten struck Damion with a metal coat hanger.

The minor was examined in camera. He testified he would like to live with the Grails because they would let him go to school and, unlike his mother, would buy things for him. He did say that his mother had toys for him to play with when he visited her and children were also around to play with. He testified that Grails spanked him when he was bad. He stated his mother had given him bloody noses when he lived with her but had not even spanked him when he was there on weekend visitations. He also said he does not love his mother, does not think she cares for him, and is afraid of her. He stated he loved the Grails and liked the children he lived with.

Prior to entering the order terminating the guardianship, but after considering the evidence, the trial court indicated that if the adoption petition of the Grails, being heard by another judge, was ultimately denied, the court would terminate the guardianship. The court apparently felt that to leave the child in guardianship but not subject to adoption would leave the child indefinitely in limbo. In the final order, the court found that the best interests of the child required that he be restored to the custody of his mother.

Although we are concerned with the ability and inclination of the mother to properly care for the minor, we do not find the trial court to have applied improper standards nor do we find its decision to be contrary to the manifest weight of the evidence.

Taken most favorably to the respondent mother, the evidence here fell short of requiring a determination she was unfit. Likewise, at least some showing was made that a change in circumstances existed. The mother’s testimony indicated she no longer felt unable to cope with the child, and she was no longer working the late night hours as before. The less than two years’ time period in which the minor had been in petitioners’ home was not of sufficient length to require the trial court to continue the guardianship.

The major element in support of the decree is the mother’s superior right as a natural parent in context with the manner in which the guardianship was initiated. The original petition upon which the agreed guardianship order was entered alleged she was “unable to properly care for the minor at [that] time.” She testified to an understanding that the arrangement was to be temporary. To permit her to have another chance to care for the child would be in conformity with that agreement which the court could have found to have been made. The child is not now adoptable, and if he is ever to return to his mother, the trauma will be less the sooner that occurs. As we have indicated, much of the claims of improper care by the mother could have been negated by viewing the evidence most favorably to her. After so viewing the evidence and considering all of the circumstances, the trial court could properly decide the best interests of the minor were not so opposed to termination of the guardianship as to “supersede” her superior right as a parent. In re Custody of Townsend (1981), 86 Ill. 2d 502, 514, 427 N.E.2d 1231, 1237.

We affirm for the reasons stated.

Affirmed.

LONDRIGAN, J., concurs.

JUSTICE TRAPP,

concurring in part and dissenting in part:

I concur in the affirmance of the termination of the guardianship and in the statement of the burden of proof, but I must dissent from the reasoning of the majority and from the arguable inferences that follow.

A statement of standards for judicial termination of a guardianship under the Probate Act of 1975 (111. Rev. Stat. 1979, ch. 110xk, par. 1 — 1 et seq.) should not ignore the statutory mandate of section 11 — 7, which provides:

“If both parents of a minor are living and are competent to transact their own business and are fit persons, they are entitled to the custody of the person of the minor and the direction of his education. If one parent is dead and the surviving parent is competent to transact his own business and is a fit person, he is similarly entitled.” 111. Rev. Stat. 1979, ch. lKP/a, par. 11-7.

The custodial provisions of the guardianship greatly restrict, if they do not effectively terminate, parental rights of the mother. This is particularly so if one, as the majority does here, adopts the conclusion that termination of custodial guardianship under the Probate Act of 1975 requires a showing of a change of circumstances.

The statute itself suffices to establish the “good cause” to terminate the guardianship where the parent who requests termination has not been found to be unfit, and where there are no testamentary or other property interests which require particular attention.

The terms of section 11 — 7 of the Probate Act of 1975 concerning custody are consistent with the terms of section 1 of the Adoption Act (111. Rev. Stat. 1979, ch. 40, par. 1501) and the Juvenile Court Act (111. Rev. Stat. 1979, ch. 37, par. 701 — 1 et seq.). For purposes of adoption, section 8 of the Act (111. Rev. Stat. 1979, ch. 40, par. 1510) requires the consent of the natural parent unless that parent has been found to be an unfit person as defined by statute. To remove custody or guardianship from the natural parent under the Juvenile Court Act, section 5 — 7 requires the judicial finding that the natural parents “are unfit or are unable, for some reason other than financial circumstances alone, to care for, protect ***.” 111. Rev. Stat. 1979, ch. 37, par. 705 — 7.

The provision of the three statutory schemes for custody or guardianship retain the keystone that the natural parent be found to be unfit to have custody. In these probate proceedings, there is no finding that the natural mother is unfit.

In such light, I must disagree with the majority view that the Probate Act of 1975 states no standard for judicial termination of a guardianship and concludes that it is necessary to follow the language of a series of cases where guardianship under the Probate Act of 1975 was not in focus. Thus, In re Custody of Townsend (1981), 86 Ill. 2d 502, 427 N.E.2d 1231, worked from the presumption of the superior right of a natural parent as distinguished from the statutory right to custody in a parent who was fit.

I can find no valid reason to treat the statutory provision for parental custody under the Probate Act of 1975 in a different way than the comparable provisions of the Adoption Act and the Juvenile Court Act. See concurring opinion of Justices Klingbiel, Schafer and House in Giacopelli v. Florence Crittenton Home (1959), 16 Ill. 2d 556, 158 N.E.2d 613.


author: PRESIDING JUSTICE GREEN

text:
    ALLIED CONTRACTING COMPANY OF ILLINOIS, Plaintiff-Appellee, v. HAROLD T. BENNETT et al., Defendants-Appellants.
    Fourth District
    No. 4—82—0534
    Opinion filed November 15, 1982.

      Edward G. Coleman, of Springfield, for appellants.
    Fred C. Prillaman and Roger W. Holmes, both of Mohan, Alewelt & Prillaman, of Springfield, for appellee.
   PRESIDING JUSTICE GREEN

delivered the opinion of the court:

We are concerned here with a construction contract purporting to make all questions “relative to the execution of the work” to be performed by the contractor under the contract, subject to the “final and conclusive” decision of the project engineer hired by the owner. The legal question to be decided is whether those provisions make such questions subject to arbitration under the terms of the Uniform Arbitration Act (Ill. Rev. Stat. 1981, ch. 10, par. 101 et seq.). We conclude that they do not and affirm the order of the circuit court of Sangamon County refusing to require arbitration in this case.

On September 25, 1981, plaintiff, Allied Contracting Company of Illinois, a construction contractor, filed suit in the circuit court of Sangamon County seeking recovery against Work, Inc., and other defendants, for monies due under a contract for improvements made to premises owned by Work, Inc. The other defendants had guaranteed the payments from time to time owed plaintiff by Work, Inc., under the contract as amended. On August 3, 1982, the trial court entered an order denying defendant’s amended motion to stay further proceedings and submit certain issues to arbitration pursuant to section 2(d) of the Uniform Arbitration Act which states:

“Any action or proceeding involving an issue subject to arbitration shall be stayed if an order for arbitration or an application therefor has been made under this Section or, if the issue is severable, the stay may be with respect thereto only. When the application is made in such action or proceeding, the order for arbitration shall include such stay.” Ill. Rev. Stat. 1981, ch. 10, par. 102(d).

Defendants’ appeal is taken from the order of denial. For purposes of appeal, a denial of a stay by a trial court is treated as a denial or a request for a preliminary injunction. (Cahokia Sportservice, Inc. v. Illinois Liquor Control Com. (1975), 32 Ill. App. 3d 801, 336 N.E.2d 276.) We have jurisdiction pursuant to Supreme Court Rule 307 (87 Ill. 2d R. 307), which makes denials of requests for preliminary injunctions appealable as a matter of right.

The major allegations of plaintiff’s complaint were: (1) under the original contract, plaintiff agreed to clear, grade, and construct streets, curbs, sewers and other facilities for the development of the Walnut Valley Subdivision in Springfield owned by Work, Inc.; (2) by March 21, 1978, Work, Inc., was indebted to plaintiff in the sum of $338,077.93 for work performed; (3) on March 31, 1978, plaintiff and Work, Inc., executed an amendment to the contract which established the amount of the existing indebtedness as aforesaid, and provided the method by which the arrearage would be paid by Work, Inc.; (4) on March 31, 1978, in consideration of plaintiff’s agreement to continue performance under the contract, the other defendants executed and delivered to plaintiff their written guarantee of Work, Inc.’s agreement to make the payments required of it under the contract as amended; and (5) the sum of $111,427.14 plus service charges at the rate of V-k% per month after August 31, 1981, was due under the terms of the contract as amended. Copies of the original contract and the amendment were attached to the complaint and incorporated therein by reference.

Defendants maintain section 5 of the original contract remained in force after the amendment and provided for disputes such as those at issue in the case to be submitted to arbitration under the Uniform Arbitration Act. We consider paragraph 4 of the contract to be pertinent to interpretation of paragraph 5. Those two paragraphs stated:

“4. It is further covenanted and agreed that the work shall be executed under the direction and supervision of the Engineers of the Owners and their properly authorized agents, and on whose inspection and approval all work shall be accepted or condemned. The said Engineers shall have full power to reject or condemn any materials furnished or work performed under this contract, which in their opinion does not conform to its spirit and to the terms and conditions expressed in the Contract Documents.
5. To prevent disputes and litigation, it is further agreed, by and between the Owner and Contract that the Engineers shall determine all questions in relation to the work and the construction thereof, and they shall in all cases decide all questions which may arise relative to the execution of the work under this contract on the part of the Contractor, and their decision shall be final and conclusive; and such decision, in case any questions may arise, shall be a condition precedent to the right of the Contractor to receive any money or compensation for anything done or furnished under this contract.”

The trial court first ruled that paragraph 5 provided for arbitration, entered the stay and ordered arbitration. It then reconsidered its order and concluded that the amendment to the contract nullified the “arbitration clause.” The court then set aside its previous order, denying defendants the relief they requested. Defendants dispute the trial court’s conclusion that the “arbitration clause” had been nullified and cite paragraph 4 of the amendment, which states:

“4. All terms and provisions of the contract remain in full force and effect, and Contractor does not waive any rights thereunder relative to payment, enforcement of remedies, or otherwise.”

However, the amendment to the contract stated that the sum then due by Work, Inc., to plaintiff, was the sum of $338,077.93. It is not clear from the amendment whether that determination resolved all disputes as to the sufficiency of the work performed up to that time. Parties cannot be required to arbitrate issues unless the agreement between them clearly so provides. (Flood v. Country Mutual Insurance Co. (1968), 41 Ill. 2d 91, 242 N.E.2d 149.) Even if paragraph 5 provides for arbitration, the contract as amended does not make clear whether disputes concerning work performed before the amendment would be subject to determination under paragraph 5. Furthermore, it cannot be ascertained from defendant’s amended motion for a stay or its affidavits in support thereof, whether the majority of the disputes alleged there involve work performed before the amendment.

In any event, we affirm the order because we do not interpret paragraph 5 to provide for arbitration under the Uniform Arbitration Act.

In Himmelstein v. Valenti Development Corp. (1982), 103 Ill. App. 3d 911, 431 N.E.2d 1299, a contract between a builder-developer and the purchaser of a house to be built by the former stated in part:

“ ‘Any dispute between Purchaser and Seller with respect to labor and/or material, or whether the residence has been constructed as herein required, shall be determined by the architect preparing plans and specifications and such determination shall be conclusive and binding upon Purchaser and Seller.’ ” (103 Ill. App. 3d 911, 912-13, 431 N.E.2d 1299, 1300.)

The purchasers sued the seller seeking rescission and other relief. They alleged that before conveyance, they observed a crack in the basement wall. A motion to dismiss set forth that the matter was referred to the architect who examined the wall and wrote a letter stating that the builder had performed in a workmanlike manner in repairing any crack, but he could not determine whether the wall would leak until the wet season arrived. The trial court dismissed the complaint. On review the appellate court stated that it agreed with the parties that the quoted provision of the contract provided for arbitration by the architect. The court concluded that the architect had not sufficiently fulfilled his responsibilities, because the report did not state whether the wall was defective. The appellate court reversed the portion of the judgment dismissing the counts involved and remanded “for obtaining a proper and definitive report from the architect.” 103 Ill. App. 3d 911, 915, 431 N.E.2d 1299, 1302.

The Himmelstein opinion does not indicate that the architect had held any hearing. Rather, he apparently made an investigation of his own. The appellate court did not remand for a hearing but merely for a better report. Thus, although the opinion speaks of the procedure used as being that of arbitration, the arbitration was not of the type prescribed by the Uniform Arbitration Act.

Other than Himmelstein, we are aware of no Illinois case where a provision similar to that in the instant contract in paragraphs 4 and 5 has been held or stated to provide for arbitration. In A-l Camp Chair Service Co. v. William L. Crow Construction Co. (1965), 24 App. Div. 2d 623, 262 N.Y.S.2d 166, 168, Gold Plastering Co. v. 200 East End Avenue Corp. (1953), 282 App. Div. 1073, 1074, 126 N.Y.S.2d 838, 839-40, and In re Mencher (1948), 274 App. Div. 585, 588, 84 N.Y.S. 2d 718, 721, somewhat similar provisions have been held to provide for arbitration by architects or engineers. In A-l and Gold Plastering, the word “arbitration” appeared in the clauses, but it did not appear in Mencher. In Paschen Contractors, Inc. v. Calnan Co. (1973), 13 Ill. App. 3d 485, 300 N.E.2d 795, cited by defendants, a construction contract provided for the architect to make decisions similar to that conferred upon the engineers here and further stated that all matters not determined by the architect were to “ ‘be submitted to arbitration.’ ” (13 Ill. App. 3d 485, 489, 300 N.E.2d 795, 798.) A dispute arose as to whether the architect should be charged with $195,000 for fees incurred to correct omissions in drawings by the architect. The appellate court held that because of the architect’s conflict of interest, the matter should be dealt with under the general arbitration clause. The court did not state whether the provision setting forth the responsibility of the architect to settle disputes provided for arbitration.

Taken together, the intended effect of paragraphs 4 and 5 of the contract before us is to provide that: (1) the engineer has the power to pass upon the sufficiency of all material and work; (2) the engineer shall also determine all questions which may arise with reference to the execution of the work by the contractor; and (3) if questions concerning the above arise, the engineer’s decision shall be a condition precedent to the contractor’s right to pay. An authority on the law of contracts has noted that such provisions in construction contracts are not unusual. (3A Corbin, Contracts secs. 651, 652 (2d reprint 1972).) Professor Corbin has explained that even though the determination of the architect or engineer is to be required, conclusive and final, action of the architect or engineer will not be required or conclusive if the actions of those individuals or their failure to act has been fraudulent, collusive or unreasonable. Illinois decisions have followed the same rule. Edward Edinger Co. v. Willis (1931), 260 Ill. App. 106; Cerny Pickas & Co. v. Dallach (1928), 249 Ill. App. 424.

Professor Corbin describes how the foregoing arrangement differs from agreements to submit disputes concerning the work performed under a construction contract to arbitration as requested by defendants. He explains: (1) that the arbitrator is not usually a person in the employ of one of the parties; (2) that arbitration proceedings usually involve a somewhat formal hearing with the parties involved having a right to be present and to be heard; and (3) that the arbitrator “is not one who has supervised the performance out of which the dispute arises.” 3A Corbin, Contracts sec. 652, at 124 (2d reprint 1972).

Here, if paragraph 5 is determined to provide for arbitration: (1) the arbitrator would be the engineer who is under contract to the owner; (2) the arbitrator would have “supervised the performance out of which the dispute arose”; (3) the matter in dispute might be one which the engineer had already passed on pursuant to paragraph 4; and (4) the required hearing would constitute a more complicated procedure than the contract would seem to have contemplated. Neither paragraph 5, nor that paragraph combined with paragraph 4, indicate that arbitration was contemplated. The trial court properly denied the stay and refused to order arbitration.

Plaintiff has requested it be given leave to file an amended complaint, alleging that the engineer has improperly withheld approval of the work and requesting a determination it is entitled to payment. That is a question to be decided by the trial court on remand. We need not discuss any other matter raised. The interlocutory order appealed is affirmed. The case is remanded to the circuit court of Sangamon County for further proceedings.

Affirmed and remanded.

WEBBER and LEWIS, JJ., concur.


author: JUSTICE HOPE

text:
    ANDREW J. DWYER et al., Plaintiffs-Appellees, v. DANIEL R. GRAHAM et al., Defendants-Appellants.
    Second District
    No. 81—1038
    Opinion filed November 12, 1982.

      William L. Balsley, of Loves Park, for appellants.
    William W. Reedy, of Vella and Reedy, of Rockford, for appellees.
   JUSTICE HOPE

delivered the opinion of the court:

This case is before this court for the second time. Defendant Graham originally appealed from an order of the circuit court of Winnebago County declaring a lease between the parties unenforceable. We dismissed that appeal for lack of jurisdiction because the trial court had expressly retained jurisdiction over issues raised in defendant’s counterclaim and had not made a finding that there was no just reason to delay the appeal of the declaratory judgment portion of its order, as required by Supreme Court Rule 304(a) (73 Ill. 2d R. 304(a)). Following our dismissal of the appeal defendant returned to the trial court and moved to dismiss his counterclaim. This motion was granted. Defendant again appeals from the declaratory judgment, alleging as error: (1) that he was improperly denied the right to a trial by jury; (2) that plaintiffs are barred by the doctrines of estoppel and laches from seeking to have the lease agreement declared invalid and; (3) that certain evidence submitted by defendant was improperly excluded by the court. The plaintiffs have moved to dismiss this appeal.

On June 14, 1973, the parties entered into a written contract for the sale and purchase of certain equipment connected with plaintiffs’ cement business.. Paragraphs one, two and three of a document entitled “Agreement of Sale” provided that defendants would purchase the equipment for $13,000. The defendants were to convey to plaintiffs lots 13, 14 and 15 of the Tresemer Subdivision, valued at $3,000 each, and a $4,000 note payable on or before January 1, 1974. Paragraphs four, five, six and seven of the agreement provided for a lease of plaintiffs’ ready-mix cement plant at a rental of $1 per yard of concrete delivered. The lease was to continue for “as long as [defendants] desired,” and plaintiffs were to maintain the ready-mix plant as long as the rental agreement was in effect. Prior to the commencement of this action, defendant Graham purchased defendant Tresemer’s interest in the equipment, and Tresemer is therefore not an active party in these proceedings.

On November 30, 1979, plaintiffs commenced this declaratory judgment action requesting the court to declare the lease invalid and unenforceable because it was not reasonably limited in duration and because it lacked mutuality of obligation. Plaintiffs argued it was therefore terminable at will by either party. Defendant Graham filed his answer to the complaint, raising the affirmative defenses of estoppel and laches. He also filed a counterclaim, which was subsequently dismissed on defendant’s motion, requesting damages and asserting that the lease agreement was part of plaintiffs’ consideration for the sale and purchase of the equipment. Prior to trial, plaintiffs requested leave to withdraw their previously entered jury demand, and defendant requested leave to enter his jury demand. The court granted plaintiffs’ motion but denied defendant’s motion on the ground that there were no triable issues of fact.

The cause proceeded to trial and the court found the parties entered into a severable contract; the first being the sale and purchase of the cement equipment and the second being the lease agreement. It declared that the lease portion of the contract was terminable at the will of the parties, that it had in fact been terminated by the plaintiffs here, and that the parties had no further rights under the agreement.

We first turn our attention to plaintiffs’ motion to dismiss the instant appeal. Plaintiffs’ argument is three-fold: (1) that the issues here involved were disposed of by the previous order of this court dismissing the original appeal; (2) that this appeal was foreclosed by defendant’s motion to dismiss his counterclaim, and; (3) that the trial court lacked jurisdiction to dismiss defendant’s counterclaim because at the time of the dismissal the mandate from the appellate court was not yet filed. We have considered each of these contentions and find them to be without merit.

The previous order of this court dismissed the original appeal on jurisdictional grounds and did not reach the merits of the underlying litigation. Thus, this appeal remains unaffected by our prior order. (Weiland Tool & Manufacturing Co. v. Whitney (1969), 44 Ill. 2d 105, 251 N.E.2d 242.) Further, the dismissal of the counterclaim with prejudice affects only the issues involved in the counterclaim and not the completely separable issues involved in the appeal from the declaratory judgment order. In his counterclaim defendant argued that the lease represented part of plaintiff’s consideration for the allegedly premium purchase price of the cement equipment. However, this same argument also formed the basis of defendant’s estoppel defense. Thus, the dismissal of defendant’s counterclaim does not waive consideration of this claim on appeal. Finally, the trial court had jurisdiction to dismiss defendant’s counterclaim prior to the filing of the appellate court mandate in the original appeal. Ordinarily the filing of a notice of appeal divests the trial court of jurisdiction to enter further orders of substance in a cause (City of Chicago v. Scandia Books, Inc. (1981), 102 Ill. App. 3d 292, 430 N.E.2d 14; In re Johnson (1981), 102 Ill. App. 3d 1005, 429 N.E.2d 1364), and jurisdiction is not regained, if at all, until the filing of the appellate court mandate in the circuit court. (Bank v. Nestrick (1981), 94 Ill. App. 3d 511, 418 N.E.2d 515; Kuhlman v. Cotter (1968), 92 Ill. App. 2d 475, 234 N.E.2d 815.) However, this general rule does not apply where the notice of appeal is filed prematurely from an order or judgment which is not yet a final and appealable order. (King City Federal Savings & Loan Association v. Ison (1980), 80 Ill. App. 3d 900, 400 N.E.2d 562.) In this situation, the notice of appeal does not divest the trial court of jurisdiction to proceed with the case, nor does it vest the appellate court with jurisdiction to consider it. (80 Ill. App. 3d 900; Myers v. Myers (1977), 51 Ill. App. 3d 830, 366 N.E.2d 1114; Loveless v. Loveless (1972), 3 Ill. App. 3d 967, 279 N.E.2d 531.) Thus, in the present case, the trial court retained jurisdiction of this cause throughout the appellate court proceedings. Its dismissal of defendant’s counterclaim prior to the issuance of the appellate court mandate was therefore entirely proper. Plaintiffs’ motion to dismiss the instant appeal is therefore denied.

We turn now to the merits of defendant’s appeal, and first consider the contention that plaintiff was barred from challenging the validity of the contract by the doctrines of laches and estoppel. Defendant’s laches defense is premised upon the plaintiffs’ failure to assert the invalidity of the contract until 1979, six years after the agreement was executed. He further claims that he was greatly prejudiced as a result of this delay since he expended large amounts of time, effort and money in the development of the leased business.

In order to charge a plaintiff with laches, it is essential that the plaintiff knows the facts upon which his claim is based. (Mitchell v. Simms (1979), 79 Ill. App. 3d 215, 398 N.E.2d 211.) In determining whether laches will bar a particular cause of action all the circumstances of the case will be considered. (Payne v. Williams (1980), 91 Ill. App. 3d 336, 414 N.E.2d 836.) One consideration is the lack of knowledge or notice on the part of the defendant that the complainant would assert the right on which he bases his suit. (Bonner v. Westbound Records, Inc. (1977), 49 Ill. App. 3d 543, 552, 364 N.E.2d 570, 576; Pyle v. Ferrell (1958), 12 Ill. 2d 547, 553, 147 N.E.2d 341, 344.) In addition, any circumstances tending to explain or excuse the delay in asserting one’s rights should be considered. (Mitchell v. Simms; Harnois v. Harnois (1973), 10 Ill. App. 3d 1062, 295 N.E.2d 511, cert. denied (1974), 415 U.S. 948, 39 L. Ed. 2d 564, 94 S. Ct. 1470.) The application of the doctrine of laches is within the sound discretion of the trial court, and the decision of the trial court to apply or not apply the doctrine will not be disturbed unless a clear abuse of discretion appears. Finley v. Finley (1980), 81 Ill. 2d 317, 410 N.E.2d 12; Beckham v. Tate (1978), 61 Ill. App. 3d 765, 378 N.E.2d 588.

In the present case, we do not find an abuse of discretion in the trial court’s refusal to apply the doctrine of laches. Defendant Graham testified that plaintiff Roger Dwyer at the time of the agreement’s execution expressed concern regarding the legality of the open-ended lease agreement. Thus, defendant had some notice that plaintiffs might later assert the right on which this suit was based. (Bonner v. Westbound Records, Inc. (1977), 49 Ill. App. 3d 543, 552, 364 N.E.2d 570, 576.) There was also some evidence that one of the defendants told plaintiffs not to worry about the enforceability of the lease agreement because they would either buy or get out of the business within five years after the execution of the agreement. Under these circumstances, the trial court could have found that plaintiffs’ assertion of their right six years later was not unreasonable. We, therefore, are unable to conclude that the trial court abused its discretion in this regard.

Defendant’s estoppel defense is based on the assumption that the lease agreement was part of plaintiffs’ consideration for the allegedly premium purchase price paid for the equipment. Defendant essentially argues that the contract is not severable and that plaintiffs’ acceptance of the benefits of the contract now estops them from denying its enforceability. The doctrine of equitable estoppel may be invoked only in cases where the words or conduct of the party against whom the estoppel is alleged amounts to a misrepresentation or concealment of a material fact. (Willowbrook Development Corp. v. Pollution Control Board (1981), 92 Ill. App. 3d 1074, 416 N.E.2d 385; Denton Enterprises, Inc. v. Illinois State Toll Highway Authority (1979), 77 Ill. App. 3d 495, 396 N.E.2d 34.) The party claiming the benefit of estoppel “must have relied upon the actions or representations of the other and must have had no knowledge or convenient means of knowing the true facts.” Levin v. Civil Service Com. (1972), 52 Ill. 2d 516, 524, 288 N.E.2d 97, 102; Denton Enterprises, Inc. v. Illinois State Toll Highway Authority.

Both of these elements are lacking in the present case. Defendant Graham testified at trial that he was aware of plaintiffs’ doubt as to the enforceability of the lease agreement. Accordingly, he has failed to demonstrate that plaintiffs concealed or misrepresented any facts. Further, it is clear that defendant’s claim of estoppel is based upon his reliance upon the legality of the lease agreement. This is a pure question of law, and a mistake of law is not a basis for application of equitable estoppel. (Denton Enterprises, Inc. v. Illinois State Toll Highway Authority (1979), 77 Ill. App. 3d 495, 503-04, 396 N.E.2d 34.) Thus, defendant’s assertion that plaintiffs were estopped to deny the enforceability of the lease agreement is without merit. The trial court properly refused to apply the doctrine in the present case.

Defendant Graham’s final contention is that he was improperly denied his right to a trial by jury. Section 57.1(4) of the Civil Practice Act governs a party’s right to a trial by jury in declaratory judgment proceedings. (Ill. Rev. Stat. 1979, ch. 110, par. 57.1(4).) That section provides:

“If a proceeding under this section involves the determination of issues of fact triable by a jury, they shall be tried and determined in the same manner as issues of fact are tried and determined in other civil actions in the court in which the proceeding is pending.”

The Illinois Constitution guarantees the right to trial by jury as it existed in common law actions when the constitution was adopted. (Ill. Const. 1870, art. II, sec. 5.) “ ‘When a declaration alone is sought, and no further relief is requested, the right to a trial by jury must be determined by an examination of the disputed issues and an appraisal of their predominant characteristics as indicating the appropriateness of legal or equitable relief.’ ” Berk v. County of Will (1966), 34 Ill. 2d 588, 591, 218 N.E.2d 98, 101, quoting Lazarus v. Village of Northbrook (1964), 31 Ill. 2d 146, 148, 199 N.E.2d 797, 799.

In the present case, plaintiffs requested only a declaration of their rights under the lease agreement. The rules of contract construction are applicable to the construction of written leases. (Hoffman v. Clark Street Roadhouse, Ltd. (1979), 79 Ill. App. 3d 41, 398 N.E.2d 238.) Generally, the interpretation of a contract is a matter of law for the trial court to decide. (Interway, Inc. v. Alagna (1980), 85 Ill. App. 3d 1094, 407 N.E.2d 615.) The determinative factor in construing an agreement is the intentions of the parties, and when the terms of the contract are plain the instrument itself is the only source of the parties’ intent. (Interway, Inc.) Where, however, the meaning of a writing is uncertain or ambiguous and extrinsic evidence is introduced in aid of its interpretation, the question of its meaning should be left to the jury. If, however, after taking the extrinsic evidence into account, reasonable men could reach only one conclusion, the issues should be decided by the trial court as are other questions of fact under these circumstances. (Borg-Warner Corp. v. Anchor Coupling Co. (1958), 16 Ill. 2d 234, 156 N.E.2d 513; Interway, Inc.) The initial determination of whether a contract is ambiguous is a question of law for the trial court. Chicago Investment Corp. v. Dolins (1981), 93 Ill. App. 3d 971, 418 N.E. 2d 59.

The trial court here determined that the contract was ambiguous. This determination has not been challenged by the parties on appeal. Upon reviewing the extrinsic evidence, it is apparent that there is a triable issue of fact which defendant was entitled to have submitted to a jury.

We believe that reasonable men could differ on the question of whether the parties intended the lease to be of indefinite, or at least lifetime, duration. We do not consider, as the trial court apparently did, that a lease of perpetual or indefinite duration is necessarily void for uncertainty. (See Stanmeyer v. Davis (1944), 321 Ill. App. 227, 53 N.E.2d 22; Green v. Dietrich (1885), 114 Ill. 636, 3 N.E. 800.) In our view, such a lease is enforceable if properly entered into and intended by the parties. (Illinois Central R.R. Co. v. Michigan Central R.R. Co. (1958), 18 Ill. App. 2d 462, 489, 152 N.E.2d 627, 640; Davis v. Nokomis Quarry, Inc. (1979), 77 Ill. App. 3d 1011, 397 N.E.2d 216.) In the present case, the defendant claimed the lease gave him lifetime use of the cement plant which could be terminated either if he stopped business or if he stopped paying rent. The contract itself provided that the lease should continue “for as long as [lessee] desires.” These words certainly add credence to defendant’s position since it seems unlikely these words would have been used if the parties contemplated the contract could be terminated by the lessor at any time. Further, defendant Graham testified that he advised plaintiffs prior to signing the agreement that he did not want a lease which would remain in effect for only several years. Given the nature of the business involved, this viewpoint is understandable. We are hard pressed to conceive of the benefit of cement trucks and other specialized equipment without the corresponding benefit of a cement plant. However, there was also evidence in the record that plaintiffs entered into the lease agreement with an understanding that within several years defendants would purchase the cement plant. If this evidence is believed, then it is doubtful that plaintiffs intended the lease to be of indefinite or even lifetime duration. Because of the conflict in the evidence with respect to the intentions of the parties as to the lease’s duration, we believe defendant Graham was entitled to have this question submitted to a jury.

Although the parties have disputed the severability of the contract we do not believe that a triable issue of fact exists as to this issue. The question of whether a contract is severable depends upon the intention of the parties. (Kaplan v. Keith (1978), 60 Ill. App. 3d 804, 377 N.E.2d 279.) Factors aiding in the finding of the intention of the parties are whether performance by one party consists of distinct and separate items and whether the price paid by the other party is apportioned to each item being performed. (Kaplan.) After reviewing the extrinsic evidence in this case, we conclude that there is no evidence to support defendant Graham’s claim that the lease agreement was actually part of plaintiffs’ consideration for the purchase price of the equipment. Both plaintiff Andrew Dwyer and defendant Tresemer testified that the purchase price did not include the use of the cement plant facilities and that the only consideration for the plant was the one dollar per yard rental payment referred to in the contract. Further the record indicates, by way of a rejected offer of proof, only that defendant Graham believed the value of the trucks at the time of the agreement was approximately $3,000 and that he believed the remaining $10,000 of the purchase price was for the lease. However, these beliefs were not communicated to the plaintiffs, nor were they reflected in the agreement itself. Thus, no evidence of a meeting of the minds on this point was presented by defendant. The contract clearly provided for the performance of separate agreements at a price apportioned to each agreement. (Kaplan.) Accordingly, the issue of severability was properly decided by the trial court and was not a triable issue of fact for the jury.

Consistent with this view, we find that defendant’s offers of proof attempting to show that the value of the equipment was substantially less than the original purchase price of $13,000 were properly excluded as irrelevant. As previously stated, without some showing that these values were discussed with the plaintiffs prior to reaching their agreement the evidence has no bearing on a meeting of the minds between the parties.

Finally, we are compelled to comment upon the plaintiffs’ claim at trial that the lease agreement was void for lack of mutuality of obligation. Under the agreement, each party assumed obligations which were detrimental to them and could be enforced by the other party. Plaintiffs agreed that defendants could use the cement plant facility for as long as they paid the agreed rental of one dollar per yard of concrete delivered. In addition to the rental payments promised by defendants, there exists in the agreement an implied covenant to use good faith efforts to develop the concrete business. (Allied, Delivery System, Inc. v. Illinois Commerce Com. (1981), 93 Ill. App. 3d 656, 417 N.E.2d 777; Davis v. Nokomis Quarry, Inc. (1979), 77 Ill. App. 3d 1011, 397 N.E.2d 216; Daughetee v. Ohio Oil Co. (1914), 263 Ill. 518, 105 N.E. 308.) Thus, if either of these covenants were breached by the defendants the plaintiffs would have been entitled to recover damages under the contract. “A contract does not lack mutuality merely because its obligations appear unequal or because every obligation or right is not met by an equivalent counter obligation or right in the other party.” (Cox v. Grant (1978), 57 Ill. App. 3d 922, 926, 373 N.E.2d 820, 823.) The mutuality requirement is satisfied if each party has given sufficient consideration for the other’s promise. (Cox v. Grant.) Although theoretically defendant had the power to reduce rental payments by decreasing the quantity of concrete delivered, this fact alone would not destroy mutuality since such an action would be detrimental to defendant’s business. (Lincolnland Properties, Inc. v. Butterworth Apartments (1978), 65 Ill. App. 3d 907, 913, 382 N.E.2d 1250, 1255.) We conclude that mutuality of consideration existed in the instant case, and that the mutuality requirement was not defeated by the mere fact that the contract was terminable solely at the will of only one of the parties. (Cf. Gardiakos v. Vanguard Communications, Inc. (1976), 38 Ill. App. 3d 937, 350 N.E.2d 210; Kraftco Corp. v. Koblus (1971), 1 Ill. App. 3d 635, 274 N.E.2d 153; Joliet Bottling Co. v. Joliet Citizens’ Brewing Co. (1912), 254 Ill. 215, 98 N.E. 263.) Further, even assuming the mutuality requirement was not satisfied at the contract’s inception, it is a well settled rule of law that want of mutuality of obligation is no defense where the contract is executed or where, as here, a party who was not bound to perform does perform. Walter E. Heller & Co. v. Convalescent Home (1977), 49 Ill. App. 3d 213, 365 N.E.2d 1285.

Since a significant factual question exists as to the intention of the parties with respect to the duration of the lease agreement, the trial court improperly denied defendant’s request for a jury trial. This cause is therefore reversed and remanded for a new trial on this issue. Plaintiffs’ motion to dismiss the appeal is denied.

Reversed and remanded.

UNVERZAGT and VAN DEUSEN, JJ., concur.


author: JUSTICE TRAPP MILLS, J., PRESIDING JUSTICE GREEN,

text:
    REAVY GRADY & CROUCH REALTORS et al., Plaintiffs-Appellants, v. JAMES W. HALL et al., Defendants-Appellees.—(Ray L. Unterbrink, Plaintiff.)
    Fourth District
    No. 17338
    Opinion filed November 15, 1982.

      GREEN, P.J., dissenting.
    Wayne R. Golomb and Thomas Y. Pearson, both of Springfield, for appellants.
    Edward G. Free, of Free and Free, of Springfield (Michael W. Hogan, of counsel), for appellees.
   JUSTICE TRAPP

delivered the opinion of the court;

This action arises out of a real estate listing contract for an apartment building in Chatham, Illinois. Appellants, Reavy Grady and Crouch Realtors, and Willard Kennedy, a realtor, sued to recover $14,000, alleging earned as a real estate commission, plus costs of suit. Defendant, Joyce L. Hall, was dismissed at the close of the plaintiffs’ case. The trial court found for the defendants on all counts of the complaint. All plaintiffs, except Ray Unterbrink, appeal the trial court’s decision.

When the defendant, James W. Hall, moved to Florida in 1976, he employed Howard McCormick to manage the Chatham property. In 1978, McCormick told the defendant that he had a prospective purchaser for the apartments. The defendant then sent McCormick a letter which authorized him to act as defendant’s representative in the sale of the apartments. The letter further stated that McCormick was empowered to act in the defendant’s best interest as agreed upon by the defendant and his attorney. The letter did not specifically refer to McCormick’s prospective buyer. At trial, the defendant stated that this letter of authorization was for the sale to McCormick’s prospecfive buyer and no one else.

On September 10, 1978, McCormick told the defendant that he had listed the property with plaintiff, Willard Kennedy, of Century 21 Realty. This multiple listing agreement was executed on September 2, 1978. The defendant said that he was terribly upset about the listing with Kennedy. According to the defendant, his prior understanding with McCormick was that, if McCormick’s prospective buyer backed out, the defendant would find his own realtor. McCormick testified, however, that he and the defendant did discuss listing the property with a realtor, and that the defendant agreed to the listing with Kennedy. After he learned of the multiple listing contract, the defendant did not tell McCormick to cancel it, and also never personally attempted to cancel the agreement.

On September 27, 1978, McCormick informed the defendant that Kennedy had found a buyer, Ray Unterbrink, who was offering $200,000. Unterbrink’s offer had to be accepted on or before noon September 28. At approximately 10:40 a.m. (EST), Kennedy and the defendant discussed Unterbrink’s offer and Kennedy’s commission. The defendant did not want to accept the offer. He then terminated the conversation because he wanted to discuss the matter with his attorney and accountant. Although the defendant could not reach his attorney, he did have a discussion with his accountant. After this, the defendant again talked to Kennedy. The time of this conversation and what occurred next are in dispute. According to the defendant, he told Kennedy that he still opposed the sale, but was uncertain of what action he should take. When Kennedy suggested sending a telegram of acceptance, the defendant replied that he would send such a telegram only on the condition that the sale was subject to the approval of both his attorney and accountant. Kennedy testified that the defendant accepted the offer. Kennedy supplied the defendant with the words to use in the telegram. According to Kennedy, he told the defendant that he would sign, as agent, the defendant’s name on the contract of sale. Kennedy stated that the defendant put no stipulation on his acceptance, and did not inform Kennedy that the acceptance was contingent upon the approval of his accountant or attorney.

The mailgram which defendant sent to Kennedy read:

“I accept Ray Unterbrink’s offer of $200,000 for 405 East Mulberry Chatham Illinois for these apartments.”

The defendant stated that he considered adding the words “subject to the approval of a lawyer” to the mailgram. However, he did not do so because he had Kennedy’s promise to send copies of the contract to defendant’s lawyer and accountant, and because defendant did not wish to spend the money on the additional words. The defendant claimed that he never authorized Kennedy to sign the contract of sale.

Later on the afternoon of September 28, 1978, the defendant decided against selling the apartment. The primary reason for rescinding the sale was that the price was too low. The defendant testified that he called Kennedy on October 2, 1978, to cancel the sale. The defendant told Kennedy that he had finally been able to talk with his lawyer and that his attorney advised defendant against the sale. Kennedy could not recall talking with defendant on this date. Kennedy testified that his first notification of defendant’s cancellation was upon receipt of a letter from the defendant dated October 9, 1978. This letter read as follows:

“After further consideration I do not wish to accept the offer of Ray Unterbrink to buy the apartments from me at 405 E. Mulberry, Chatham, Illinois, for $200,000.
I am hopeful that you will be successful in selling the apartments closer to the listed price of $280,000 during the balance of the three months in which the property is listed with you.
During the next several weeks, I will do everything possible to bring the apartments into better condition for you to sell. My plans are to spend this weekend and most of next week personally working on the apartments.
I would appreciate your suggestions how we can get a better price on the apartments.”

The trial court found that no enforceable sales contract existed because Kennedy did not have the power of an agent. The plaintiffs now claim that an agency between Kennedy and defendant was established by ratification. For purposes of argument, the plaintiffs assume that McCormick’s listing of the property with Kennedy was beyond the scope of the agency granted to him by the defendant. However, defendant’s actions in continuing the seller-broker relationship with Kennedy constituted a ratification of McCormick’s conduct. We agree.

The authority of an agent may come only from his principal. Where an agent has acted outside the scope of his authority, a principal may ratify the act and render it obligatory upon himself; and that subsequent assent and ratification is equivalent to an original authority and confirms that which originally was an unauthorized act. A principal needs to have a full knowledge of the facts and the choice of either accepting or rejecting the benefits of the transaction. Wing v. Lederer (1966), 77 Ill. App. 2d 413, 222 N.E.2d 535.

We find that the defendant ratified, through acquiesence, McCormick’s participation in the multiple listing agreement. (See Magid v. Drexel National Bank (1947), 330 Ill. App. 486, 71 N.E.2d 898; American Car & Foundry Co. v. Industrial Com. (1929), 335 Ill. 322, 167 N.E. 80.) The defendant admitted that McCormick informed him of the listing agreement approximately three weeks before Kennedy presented Unterbrink’s offer. The defendant did not tell McCormick to cancel the listing agreement, and did not attempt to cancel the agreement himself. Even after the defendant informed Kennedy, by letter, that he would not accept Unterbrink’s offer, the defendant still wished to retain Kennedy’s representation. Thus, the defendant ratified McCormick’s signing of the multiple listing agreement.

Where a broker enters into a listing agreement with the property owner and procures a purchaser ready, willing, and able to purchase upon the terms proposed by the seller, the broker is entitled to his commission. (Haas v. Cohen (1973), 10 Ill. App. 3d 896, 295 N.E.2d 28.) The listing agreement in the instant case specifically provided for payment of the broker’s commission in the event the broker found a ready, willing, and able purchaser. Unterbrink was such a purchaser.

The defendant points out that his wife, Joyce Hall, was dismissed from the case. Her dismissal does not have any effect on the plaintiffs’ right to a commission. The fact that the seller may not be the sole owner of the property neither renders the sale agreement unenforceable, nor affects the seller’s liability under the listing agreement where the broker has performed according to its term. Haas.

The plaintiffs also contend that the defendant, as the principal, has failed to prove by a preponderance of the evidence that conditions or qualifications existed on an otherwise general grant of authority.

The listing agreement clearly delegated a general power to sell defendant’s property. The defendant said that his acceptance of Unterbrink’s offer was conditional, and would become final only upon approval of both his attorney and his accountant. Plaintiffs argue that, by reciting these conditions, the defendant is attempting to modify the term of the listing agreement through parol evidence. Parol evidence is admissible to show a condition precedent to the existence of a contract. (Huegel v. Sassaman (1979), 75 Ill. App. 3d 414, 393 N.E.2d 1361.) We have reviewed the record closely and conclude that defendant’s evidence does not support his contention that he placed qualifications upon an otherwise general grant of authority to Kennedy. According to the defendant, he informed Kennedy that he would accept Unterbrink’s offer only with stipulated conditions. However, the defendant admits that his decision to cancel the sale was made unilaterally on the very day that he sent the mailgram. We find it difficult to believe that Kennedy, as an experienced broker, would consider defendant’s conditions as an acceptance, rather than a counteroffer. Kennedy stated that the defendant placed no conditions upon his acceptance. This assertion is strongly reinforced by the mailgram which contained no trace of the purported conditions. RaJean Mudgett, a salesman for Reavy Grady and Crouch Realtors, showed the defendant’s property to Unterbrink. She testified that Kennedy called her before noon on September 28, 1978, and announced that defendant had accepted the offer. The testimony of Mudgett and Kennedy, combined with certain portions of the defendant’s own testimony, clearly shows that the defendant failed to prove, by a preponderance of the evidence, that he placed qualifications or conditions on his grant of authority to Kennedy.

We find that the defendant, through acquiesence, ratified his agent McCormick’s participation in the multiple listing agreement. The defendant failed to prove that his acceptance of Unterbrink’s offer was conditional. The plaintiffs procured a purchaser ready, willing, and able to purchase upon the terms proposed by the seller. Thus, the plaintiffs were entitled to their real estate commission.

Accordingly, we reverse the trial court. This cause is remanded with directions that the trial court enter judgment for the plaintiffs Heavy Grady & Crouch Realtors and Willard Kennedy in the amount of $14,000 plus costs.

Reversed and remanded with directions.

MILLS, J.,

concurs.

PRESIDING JUSTICE GREEN,

dissenting:

While plaintiff argues that defendant failed to prove by a preponderance of the evidence that the general grant of authority in the telegram was conditional or qualified, the issue in this respect at this stage of the proceedings is whether the trial court’s finding that it was, is contrary to the manifest weight of the evidence. Allendorf v. Elgin, Joliet & Eastern Ry. Co. (1956), 8 Ill. 2d 164, 133 N.E.2d 288.

The trial court heard the testimony of Kennedy that defendant made no oral qualifications to the mailgram purporting acceptance of Unterbrink’s offer. It also heard the testimony of defendant that he did make such oral qualifications. While the circumstantial evidence surrounding the transaction tends to support plaintiffs’ version of what happened, the trial court heard the testimony of the two witnesses who were privy to this crucial telephone conversation and observed their demeanor and manner. I do not find that determination of the trial court to be palpably wrong, nor do I conclude that a different result was clearly evident. Owen v. Pret’ A Porter Boutique, Inc. (1973), 15 Ill. App. 3d 438, 302 N.E.2d 672.

Accordingly, I would affirm the circuit court.


author: JUSTICE LONDRIGAN

text:
    DARWIN CO., Plaintiff-Appellant, v. MARLA SWEENEY, Defendant-Appellee.
    Fourth District
    No. 4—82—0115
    Opinion filed November 15, 1982.
    Alan W. Appelbee, of Jacksonville, for appellant.
    William S. Schildman, of Jacksonville, for appellee.
   JUSTICE LONDRIGAN

delivered the opinion of the court:

The plaintiff sued defendant to recover the cost of repair work that plaintiff performed on defendant’s home. At the close of plaintiff’s evidence, defendant moved for a directed verdict on the ground that plaintiff had not established its corporate existence. The motion was granted and plaintiff appeals from this ruling. We reverse and remand.

The plaintiff is a home improvement contractor in Jacksonville. Plaintiff entered into a contract with defendant for repair of the overhang and installation of new gutters on her home. The work was subsequently completed, but according to defendant, it did not solve the problem that was the reason for the work. She therefore refused to pay plaintiff any part of the contract price of $2,114.68.

Plaintiff filed a small claims complaint in the Morgan County circuit court. In the complaint, plaintiff was referred to as “A CORE” At the bench trial, plaintiff's only witnesses were defendant, called under section 60 of the Civil Practice Act (Ill. Rev. Stat. 1979, ch. 110, par. 60), and Gary Steward, who was formerly employed by plaintiff as a general foreman. Both witnesses testified about the circumstances surrounding the execution of the contract and the manner in which the work was completed.

At the conclusion of plaintiff’s evidence, defendant moved for a directed verdict on the ground that plaintiff had not established its corporate existence. The case was continued for a hearing on the motion.

Plaintiff moved that defendant’s motion be denied, or, in the alternative, that it be allowed to reopen its case to establish its corporate existence. The court later granted defendant’s motion and dismissed the case. As the basis for its ruling, the court held that “[defendant's plea of nul tiel corporation may be taken as specifically pleaded under Supreme Court Rule 286 [87 Ill. 2d R. 286] and *** Plaintiff offered no evidence of Plaintiff’s corporate existence in the presentation of its case to the Court.”

Supreme Court Rule 286 provides in pertinent part:

“If the defendant appears, he need not file an answer unless ordered to do so by the court; and when no answer is ordered the allegations of the complaint will be considered denied and any defense may be proved as if it were specifically pleaded.” 87 Ill. 2d R. 286.

Defendant maintains that her appearance constituted a plea of nul tiel corporation by virtue of Supreme Court Rule 286, which eliminates the need for written pleadings in small claims cases unless such pleadings are specifically ordered by the court. Therefore, since a plea of nul tiel corporation requires a corporate litigant to prove its corporate existence and its corollary right to sue in its corporate name, defendant asserts that plaintiff was obliged to establish its corporate existence in its case in chief. Since plaintiff presented no evidence of its corporate existence prior to defendant’s motion to dismiss, the court, in defendant’s opinion, acted properly in dismissing the suit.

The plaintiff, on the other hand, contends that dismissal of its suit was improper because a plea of nul tiel corporation should not be implied under Supreme Court Rule 286. Plaintiff contends that such a plea is properly asserted either as an affirmative defense or as a ground for involuntary dismissal of a suit pursuant to section 2— 619(a)(2) of the Code of Civil Procedure. Ill. Rev. Stat. 1981, ch. 110, par. 2 — 619(a)(2).

An understanding of the nature and history of the plea of nul tiel corporation is essential to a resolution of the issue presented in this case. The plea of nul tiel corporation denies the existence of an alleged corporation. (Black’s Law Dictionary 964 (5th ed. 1979).) When this plea is entered, a corporate plaintiff must prove its corporate existence. (Ramsey v. Peoria Marine & Fire Insurance Co. (1870), 55 Ill. 311.) Obversely, a corporate litigant need not allege or prove its corporate existence in the absence of a plea of nul tiel corporation. Wheatley, Buck & Co. v. Chicago Trust & Savings Bank (1897), 167 Ill. 480, 47 N.E. 711.

In days past, when all corporations owed their existence to special legislative charters, the entry of a plea of nul tiel corporation was used for determining whether a litigant claiming to be a corporation was indeed a legally constituted corporation and whether it thus possessed the power to bring lawsuits in its own name. With the advent of general corporation statutes, which confer certain corporate powers, such as the right to sue and be sued in the corporate name, on all corporations which fulfill certain statutory requirements (see Ill. Rev. Stat. 1981, ch. 32, par. 157.5(b)), the efficacy of the plea of nul tiel corporation as a useful litigation tool has, however, virtually disappeared and it has become an anachronism.

The purpose of the small claim rules (87 Ill. 2d Rules 281 through 289) is to provide an expeditious, simplified, and inexpensive procedure for the litigation of disputes involving small amounts. (Wroclawski v. Waszczyk (1976), 35 Ill. App. 3d 408, 342 N.E.2d 261.) Other practice rules, as well as the provisions of the Code of Civil Procedure, are applicable to small claims proceedings if consistent with the aims of the small claims rules. (Peoria Housing Authority v. Roberson (1979), 74 Ill. App. 3d 326, 392 N.E.2d 1107.) In our view, section 2 — 613(d) of the Code of Civil Procedure (Ill. Rev. Stat. 1981, ch. 110, par. 2 — 613(d)) meets the Roberson test and is thus applicable to small claims proceedings of the type involved here. Section 2— 613(d) provides in pertinent part: “[A]ny ground or defense, whether affirmative or not, which, if not expressly stated in the pleading, would be likely to take the opposite party by surprise, must be plainly set forth in the answer or reply.” The clear purpose of section 2— 613(d) is to facilitate the decision of cases on their merits, and to eliminate the harsh consequences which often stemmed from unfair surprise at trial prior to enactment of modern rules of procedure. Since Supreme Court Rule 286 (87 Ill. 2d R. 286) eliminates the need for written pleadings in small claims cases, compliance with the letter of section 2 — 613(d) of the Code of Civil Procedure is obviously impossible in such cases. This does not, however, mean that compliance with the spirit of section 2 — 613(d) is impossible in small claims cases.

In the case at bar, the defendant’s assertion of the infrequently used plea of nul tiel corporation obviously took plaintiff by surprise. If we were to hold that the burden was on plaintiff to produce evidence of its corporate existence simply because defendant was not obligated to assert its defense of nul tiel corporation by means of a formal, written plea, we would in effect allow defendant to prevail because she asserted an obscure defense at trial which plaintiff could not reasonably have been expected to anticipate and counter in its case in chief. Such a result would be diametrically contrary to the policy underlying section 2 — 613(d) of the Code of Civil Procedure. Since such outcomes are contrary to public policy in cases where large monetary amounts are at stake, it follows that they are even more repugnant to the considerations which led to the promulgation of the small claims rules, which were designed to allow.pro se litigants to obtain resolution of disputes in a quick, simple, and informal manner, unbridled by the technicalities and legal niceties which normally obtain in court proceedings.

In a situation such as the one present here, where the defense raised by defendant takes plaintiff by surprise and plaintiff has the burden of proof, the trial court should allow plaintiff to reopen his case and present evidence relevant to that question. We remand the cause with directions that the trial continue, and that plaintiff then be afforded an opportunity to establish its corporate existence.

Reversed and remanded with directions.

WEBBER and MILLS, JJ., concur.