text:
    MID-CITY INDUSTRIAL SUPPLY COMPANY, Plaintiff-Appellant, v. DONALD HORWITZ, Defendant-Appellee.
    First District (1st Division)
    Nos. 83—2325, 84—328 cons.
    Opinion filed March 25, 1985.
    Rehearing denied April 25, 1985.

      Fritzshall, Fritzshall & Bensinger, of Chicago, for appellant.
    Forrest L. Ingram, of J. Barton Kalish & Associates, of Chicago, for appellee.
   JUSTICE BUCKLEY

delivered the opinion of the court:

The present appeal arises out of an action brought by plaintiff Mid-City Industrial Supply Company (Mid-City) to recover amounts owed under a purported personal guarantee for the debt of another executed by defendant Donald Horwitz. Plaintiff had previously brought an action against the original debtor, Wesco Products Company, Inc. (Wesco), but Wesco had filed a bankruptcy petition in Federal district court and the proceedings were stayed. Thereafter, plaintiff filed the instant action against Horwitz, the vice-president and a principal stockholder of Wesco. Plaintiff alleged that defendant had previously executed a document personally guaranteeing the debts of the now defunct Wesco Products Company and sought a recovery based on that guarantee. Defendant answered, denying that the document in question was a personal guarantee and alleged that the document was executed by him in his corporate or representative capacity as an agent for Wesco.

The case was tried without a jury. At the close of plaintiff’s case in chief, defendant moved for a directed finding under section 2 — 1110 of the Code of Civil Procedure. (Ill. Rev. Stat. 1983, ch. 110, par. 2— 1110.) The trial court granted defendant’s motion, specifically finding that plaintiff had failed to satisfy its burden of proof in the following respects: (1) plaintiff failed to establish standing where the present corporate existence of Mid-City was in doubt; (2) plaintiff failed to establish that a demand for payment was ever made on defendant personally; and (3) plaintiff failed to make a prima facie showing that the instrument in question was a personal guarantee of defendant where the mode of execution could only indicate that the guarantee was a corporate obligation of Wesco Products, Inc. Accordingly, judgment was entered in favor of defendant and plaintiff appealed. We reverse and remand for further proceedings.

The record reveals that seven or eight years prior to the commencement of this suit, Mid-City had supplied Wesco with certain gears and other industrial supplies. These components were essential parts in certain universal joints manufactured by Wesco. During 1978 and the early part of 1979, Wesco’s account with Mid-City was in arrears because Wesco was consistently unable to make timely payments. As a result, Mid-City stopped shipping supplies.

Being anxious for shipments to resume, Wesco’s plant manager, Donald Kellner, contacted Mid-City to see if an agreement could be worked out. He was told that shipments would resume only upon full payment of all outstanding invoices, with payment for future orders to be tendered in advance of delivery. In the alternative, Mid-City would only ship supplies if defendant Horwitz personally guaranteed the debts of Wesco. Kellner told Mid-City to draw up the necessary documents, and a meeting was arranged between Alan Gutman, president of Mid-City, and Donald Horwitz.

The meeting took place on May 17, 1979, with five people in attendance. Gutman and his accounting manager, Almarie Williams, were present for Mid-City and Horwitz, Kellner and two others were present for Wesco. Neither company was represented by an attorney.

Williams testified that she brought two documents to the meeting which she had previously prepared. One was a guaranty contract copied from a preprinted form and the other was a letter describing terms and conditions for payment and delivery of the merchandise. Williams further testified that defendant initially resisted signing the guaranty document but Gutman refused to ship any goods without defendant’s personal guarantee. Defendant then agreed to sign the document, but he wanted to make a few changes. The document states in relevant part:

“GUARANTEE
MID-CITY INDUSTRIAL SUPPLY CO. Date May 17, 1979 Gentlemen:
We, the undersigned, for the purpose of inducing MID-CITY INDUSTRIAL SUPPLY CO. (*** [Seller]) to extend credit to, or accept a contract or purchase order of: Wesco Products Company, 1333 South Cicero, Cicero, Illinois 60650 [Buyer].
*** hereby jointly and severally guarantee unto said Seller, MID-CITY INDUSTRIAL SUPPLY CO., its successors and assigns, absolutely and unconditionally, the due and prompt payment by the Buyer to said Seller of any and all sums which are now owing or may hereafter become owing, from Buyer to said Seller, and we hereby jointly and severally agree to indemnify and save harmless said Seller against any and all loss, damage and expense of every nature *** by reason of any and all defaults on the part of the Buyer ***. The undersigned agrees that its liability hereunder to the Seller shall be absolute upon default by the buyer and that no action against the Buyer by the Seller shall constitute a condition precedent to such liability.
* * *
In witness whereof, the undersigned has hereunto set his hand and seal (or caused this instrument to be executed by its duly authorized officer and its corporate seal to be hereunto affixed) the 17 day of May, 1979.
[Wesco Corporate Seal] [Signed] Don Horwitz Vice President (DH) [Initialled].”

The form also contained alternative methods for notarization, depending upon whether an individual or a corporation executed the document. The part which stated “To be executed for individual” was completely lined through and initialled by both Gutman and Horwitz. The part which stated “To be executed for Corporation” appears as follows:

“(To be executed for Corporation)
STATE OF ILLINOIS)
)SS.
COUNTY OF COOK )
On the 17 day of May, 1979, before me came Donald Horwitz to me known, who being by me duly sworn, did depose and say that he resides at 1333 So. Cicero [handwritten in ink] DH and AG [initialled in ink]; that he is the President of Wesco Products Company; the corporation described in and which executed the foregoing instrument; that he knows the seal of said corporation; that the seal affixed to said instrument is such corporate seal, that it was affixed by order of the board of directors of said corporation; and that he signed his name thereto by like order.
[Signed] Almarie Williams_
Notary Public
[Notary Seal of
Almarie Williams] Notary Public State of Illinois [Preprinted
My Commission Expires May 20, 1982 Notary Issued thru Illinois Notary Assoc. Stamp].” Both Gutman and Horwitz then signed the letter giving payment and delivery terms. The letter also referred to the guaranty document and contained the following statement:
“Part of this agreement is a signed guarantee of payment by Donald Horwitz.
Mid-City Industrial Supply Co., in return for your valued business, will work hard for your company and will do anything within reason to keep your production going.”

Defendant’s objection to the admission of this letter into evidence was sustained. Gutman also testified during plaintiff’s case in chief and corroborated Williams’ testimony.

We will first address the issue of whether plaintiff made a prima facie showing that the instrument in question was a personal guarantee of defendant. The standard to be applied when ruling on a defendant’s motion for a directed finding in a nonjury case is set out in Kokinis v. Kotrich (1980), 81 Ill. 2d 151, 407 N.E.2d 43. There, the court stated that the trial judge should consider all of plaintiff’s evidence, pass on credibility of witnesses, draw reasonable inferences from the testimony and generally consider the weight and quality of the evidence. This weighing process may result in the negation of some evidence necessary to the plaintiff’s prima facie case, in which event the court should grant the defendant’s motion and enter judgment in his favor. However, if sufficient evidence necessary to establish the plaintiff’s prima facie case remains following the weighing process, the court should deny defendant’s motion and proceed as if the motion had not been made.

After reviewing the record, it is clear the trial court believed that the guaranty document was unambiguously a corporate obligation on its face and therefore consideration of any extrinsic evidence was improper. Accordingly, the trial court did not comment on or consider the testimony of plaintiff’s witnesses concerning the circumstances surrounding the execution of the document. Similarly, the trial court refused to admit into evidence the letter executed at the same meeting by the same individuals which tended to indicate that the guarantee was intended as a personal obligation of defendant. Instead, the trial court focused on the manner of execution of the guaranty document and concluded that the instrument could only be a corporate obligation. We believe the trial court erred in finding no ambiguity in the guaranty instrument and in refusing to admit the letter in evidence or consider other extrinsic evidence.

The existence of ambiguity in a contract is a question of law for the court. (Joseph v. Lake Michigan Mortgage Co. (1982), 106 Ill. App. 3d 988, 436 N.E.2d 663.) An ambiguous contract is one capable of being understood in more than one sense (State Security Insurance Co. v. Linton (1978), 67 Ill. App. 3d 480, 384 N.E.2d 718) or an agreement obscure in meaning through indefiniteness of expression or having a double meaning. Pioneer Trust & Savings Bank v. Lucky Stores, Inc. (1980), 91 Ill. App. 3d 573, 414 N.E.2d 1152.

The issue here is whether the guaranty document, when construed as a whole, unambiguously reveals an intent to bind only Wesco, not defendant. In Reed v. Fleming (1904), 209 Ill. 390, 392, 70 N.E. 667, our supreme court held that “when the seal of the corporation is attached to a note and the name of the president of the corporation is signed to the note, with his official designation and the name of the corporation, the note is prima facie the note of the corporation.” But where language in the body of the document conflicts with the apparent representation by the agent’s signature, we believe the document is reasonably susceptible to more than one meaning and therefore extrinsic evidence should be considered in determining the intent of the parties. We note that in Reed, the supreme court examined both the manner of execution and the terms of the contract in order to determine whether the obligation in question was individual or corporate. The court concluded that since the note signed by the corporation’s president called for the issuance of mortgage bonds which only the corporation could issue, the obligation was clearly corporate.

Applying the same methodology to the case at bar, we note that the guaranty document was designed as a guarantee of one to perform in the event of another’s failure. As such, the document presupposed the existence of three parties — a creditor, Mid-City, a debtor, Wesco, and a guarantor of Wesco’s debt. Provisions of the contract make this much clearer. For example, the guaranty document states that the “undersigned” would be absolutely liable to Mid-City if Wesco defaulted and that no action against Wesco by Mid-City “shall be a condition precedent to such liability.” Accordingly, the type of obligation incurred under the guaranty instrument belies the assertion that this obligation was intended to be solely Wesco’s. Yet, considering the manner of execution and type of notarization, the “undersigned” would appear to be the debtor Wesco. Faced with such contrary indications on the face of the document, we believe the trial court erred in finding that the guaranty instrument was unambiguously a corporate obligation.

Where there is an ambiguity arising from the terms of the contract, the meaning may be derived from extrinsic facts surrounding formation. (La Throp v. Bell Federal Savings & Loan Association (1977), 68 Ill. 2d 375, 384, 370 N.E.2d 188, cert, denied (1978), 436 U.S. 925, 56 L. Ed. 2d 768, 98 S. Ct. 2818.) Here, the facts surrounding formation reveal that Wesco needed certain gears supplied by plaintiff and that an alternative supplier was unavailable elsewhere. Plaintiff refused to deliver more gears because of the past payment practices of Wesco and insisted upon the personal guarantee of defendant. Defendant first resisted, then signed the document after making a few changes. Defendant also signed a letter wherein he acknowledged that “part of this agreement is a signed guaranty of payment by Donald Horwitz.” In -view of the foregoing, we find that when the documents and extrinsic evidence are considered together, plaintiff made a prima facie showing that the guaranty instrument was a personal obligation of defendant.

Next, plaintiff contends that the trial court erred in finding that it had not established by a preponderance of the evidence that it had standing to bring this suit. We agree.

The trial court’s finding was grounded on the somewhat confused testimony of Mid-City’s president concerning the legal effect of the sale of a major portion of plaintiff’s assets to another concern. The question arose whether or not the plaintiff corporation was still in existence. Plaintiff’s attorney indicated that Mid-City might have merged with another corporation and, if so, he wanted to substitute the new corporation’s name. Plaintiff now states he withdrew this motion after determining that the corporation was still in existence but had merely changed its name.

The trial court’s determination that plaintiff had not established standing was premised on the erroneous proposition that plaintiff had the burden of demonstrating its corporate existence by a preponderance of the evidence. A corporate litigant need not allege or prove its corporate existence unless its opponent has entered a plea of nul tiel corporation. (Darwin Co. v. Sweeney (1982), 110 Ill. App. 3d 331, 442 N.E.2d 318.) This plea is an affirmative defense denying the existence of the alleged corporation and, when entered, the burden shifts to the corporate plaintiff to prove its corporate existence. (Darwin Co. v. Sweeney (1982), 110 Ill. App. 3d 331, 442 N.E.2d 318.) Here, the plea of nul tiel corporation was never made by defendant. Accordingly, plaintiff was not obligated to prove its corporate existence, and the trial court’s finding of no standing based on plaintiff’s failure of proof on this issue was error.

Next, plaintiff claims the trial court erroneously concluded that no demand for payment was ever made on defendant personally. Plaintiff contends that defendant had adequate notice of Wesco’s default since he was a major stockholder, vice-president and general manager of the company. Plaintiff further contends that defendant could not have been unaware of Wesco’s financial problems and therefore he suffered no prejudice from plaintiff’s failure to give actual personal notice. We agree.

In a suit brought on a collateral or continuing guarantee, such as the one sued on in this case, a prima facie case is made when the plaintiff enters proof of the original indebtedness, the debtor’s default and the guarantee. (Fort Dearborn National Bank v. Miller (1913), 178 Ill. App. 450.) While the general rule is that a guarantor is entitled to reasonable notice of the default of the principal debtor, the right to this notice is not absolute. (Mamerow v. National Lead Co. (1903), 206 Ill. 626, 69 N.E. 504; Swisher v. Deering (1903), 204 Ill. 203, 68 N.E. 517.) Failure to notify a guarantor of the debtor’s default has no other effect than to afford him a defense to the extent of the loss or damage sustained as a result of such failure. (Swisher v. Deering (1903), 204 Ill. 203, 68 N.E. 517.) This defense must be specially pleaded by the guarantor, and the plea and proof must also declare and show that the guarantor sustained a loss or damage resulting from the lack of notice. (Fort Dearborn National Bank v. Miller (1913), 178 Ill. App. 450.) A creditor is not required to give a notice of default to a guarantor where the guarantor has notice from an independent source. (Heberling Medicine & Extract Co. v. Smith (1916), 201 Ill. App. 126.) It also has been held that when directors, stockholders or officers of a corporation that are in a position to know the financial condition of their company act as guarantors of a corporate debt, they are chargeable with notice of the corporation’s default and additional notice from the creditor is unnecessary. Mamerow v. National Lead Co. (1903), 206 Ill. 626, 69 N.E. 504; Fort Dearborn National Bank v. Miller (1913), 178 Ill. App. 450.

Applying these principles to the case at bar, it is clear that lack of notice of the debtor’s default is a defense which must be pleaded and proved by defendant, not plaintiff. Accordingly, any failure of proof on this issue is irrelevant in making a determination of whether plaintiff has established a prima facie case. It is also clear that defendant, as vice-president, general manager and a major stockholder of Wesco, was chargeable with notice of Wesco’s default. Mamerow v. National Lead Co. (1903), 206 Ill. 626, 69 N.E. 504; Fort Dearborn National Bank v. Miller (1913), 178 Ill. App. 450.

In view of the foregoing, we find that plaintiff established a prima facie case and therefore the trial court erred in granting defendant’s motion for a directed finding at the conclusion of plaintiff’s case in chief. Subsequent to the entry of judgment in defendant’s favor, the trial court granted defendant’s petition for attorney fees and costs pursuant to section 2 — 611 of the Code of Civil Procedure. (Ill. Rev. Stat. 1983, ch. 110, par. 2 — 611.) Plaintiff filed a separate appeal on this order which was consolidated with the present appeal. Since we are reversing the original judgment entered in defendant’s favor and further proceedings will be necessary to resolve this case, an award of costs and attorney fees under section 2 — 611 is, at this point, premature. Accordingly, we must also reverse the trial court’s award of fees and costs pursuant to section 2-611.

Finally, defendant has filed several motions with this court which were taken with this case. We have reviewed the contentions raised by defendant therein and deny all of said motions.

Reversed and remanded for further proceedings.

McGLOON, P.J., and CAMPBELL, J., concur.


source: Caselaw Access Project

author: JUSTICE ROMITI

license: Public Domain

text:
    PREMIER ELECTRICAL CONSTRUCTION COMPANY, Plaintiff-Appellant and Cross-Appellee, v. LA SALLE NATIONAL BANK, Trustee, et al., Defendants-Appellees and Cross-Appellants.
    First District (4th Division)
    No. 83—1000
    Opinion filed December 27, 1984.
    —Rehearing denied May 16,1985.

      Patrick Mazza and Kurt David Baer, both of Chicago (Patrick Mazza & Associates, P.C., of counsel), for appellant.
    Sidney E. Morrison and Jeffrey T. Saltz, both of Morrison & Kamins, P.C., of Chicago, for appellees.
   JUSTICE ROMITI

delivered the opinion of the court:

The plaintiff, Premier Electrical Construction Company (Premier), appeals from orders of the Cook County circuit court which, pursuant to the defendants’ (hereafter owners) motions, dismissed count I of its amended complaint seeking foreclosure of a mechanic’s lien, dismissed count II of its amended complaint seeking recovery based upon breach of an oral contract, and denied Premier leave to amend its complaint to include a claim for unjust enrichment. The owners cross-appeal from the trial court’s order denying their motion to tax fees and costs against Premier.

The parties raise, inter alia, the following questions for our review:

1. Whether the trial court in dismissing count I properly interpreted a waiver of mechanic’s lien to date executed by Premier to operate as a final waiver of lien rights.

2. Whether the trial court properly dismissed count II of the amended complaint because it was inconsistent with prior sworn statements by Premier that were part of the record.

3. Whether the trial court properly denied Premier’s motion for leave to file an amended complaint alleging unjust enrichment.

4. Whether the form of owners’ motion to strike or dismiss Premier’s amended complaint was improper and so prejudicial to Premier that it requires reversal and remandment.

5. Whether the trial court abused its discretion in denying owners’ motion to tax fees and costs against Premier pursuant to section 2— 611 of the Code of Civil Procedure (Ill. Rev. Stat. 1981, ch. 110, par. 2 — 611), which sought such fees and costs on the ground that count II of Premier’s amended complaint was untrue and made by Premier without reasonable cause.

We reverse and remand the dismissal of counts I and II, and affirm denial of leave to file Premier’s unjust enrichment claim and owners’ motion to assess fees and costs against Premier.

Premier’s original verified complaint filed December 9, 1981, sought foreclosure of a mechanic’s lien and other relief from La Salle National Bank (La Salle Bank) as trustee under Trust No. 100819; Fulton House Associates (Fulton House), an Illinois limited partnership and beneficial owner of the bank trust; Wolf Point Landing Partners (WPLP), an Illinois general partnership and one of the partners of Fulton House; Harry Weese (Weese), a general partner of WPLP and general partner of Harry Weese & Associates, the architectural firm hired by Fulton House; Continental Illinois National Bank & Trust Co. (Continental), the mortgage lender for Fulton House; and E. W. Corrigan Construction Company (Corrigan), general contractor on the project. La Salle Bank, Fulton House, WPLP, Weese, and Continental will be referred to collectively as “owners” where appropriate. Corrigan is not a party to this appeal.

Premier’s complaint alleged that in June 1979, WPLP and Corrigan entered into a written contract to convert the Fulton House cold storage warehouse building at 345 North Canal Street in Chicago from a 16-story brick warehouse to condominium apartments and office space (hereinafter referred to as the “Fulton House project”). It further stated that on June 21, 1979, Corrigan entered into a written subcontract with Premier whereby Premier became the electrical subcontractor for the Fulton House project. Count I of the complaint, directed against the owners, Corrigan, and “unknown owners,” sought, inter alia, foreclosure of a mechanic’s lien for $90,000 for electrical work Premier alleged it had provided on the Fulton House project and for which it had not been paid. Count II, directed against Corrigan, alleged that Corrigan made numerous requests for additions, extras and changes to Premier’s subcontract which substantially increased the cost of the work and materials provided and that after allowance of all credits there remained due and owing to Premier the sum of $431,045.24, which Corrigan refused to pay.

On January 14, 1982, La Salle Bank filed an answer to the complaint alleging that it held title to the premises as a naked-land trustee with no further interest therein and requested that Premier’s complaint against it therefore be dismissed with prejudice. Nevertheless, on January 29, La Salle, Continental, and Fulton House filed their “motion to dismiss or in the alternative to strike complaint.” The motion requested that the complaint be dismissed pursuant to section 48 of the Civil Practice Act (now Ill. Rev. Stat. 1981, ch. 110, par. 2— 619), because (1) Premier had fully and finally waived and released any and all claims for a lien because it had executed a final waiver of lien; (2) Premier had failed to perfect the mechanic’s lien claimed in count I of the complaint; (3) Premier had no right to sue them for any sums claimed to be due from Corrigan or to claim a lien; and (4) the allegations in count I failed to conform to the requirements of the Mechanics’ Liens Act (Ill. Rev. Stat. 1981, ch. 82, par. 1 et seq.), and were substantially insufficient in law. In the alternative, the motion alleged that the complaint should be dismissed pursuant to section 45 of the Civil Practice Act (now Ill. Rev. Stat. 1981, ch. 110, par. 2 — 615). In further support, the motion alleged that the complaint failed to identify what labor and material were allegedly provided, failed to allege the total amount due, and failed to allege that the owners had authorized or agreed to any amounts claimed. In support of their motion pursuant to section 2 — 619 of the Code of Civil Procedure, the owners included the affidavit of Daniel O’Keefe, an employee of Fulton House, which stated in pertinent part that in reliance on Premier’s lien waiver, Fulton House had authorized payment to Premier of the amount shown on the pay-out note which had accompanied the lien waiver.

On February 9, Premier filed its motion in opposition to the motion of the owners to dismiss or strike the complaint, arguing that the waiver was not meant by the parties to be a final waiver of lien and that the complaint was factually sufficient.

On March 23, before the trial court ruled on the owners’ motion to strike or dismiss, Premier filed a motion for leave to file an amended complaint. This proposed amended complaint was directed against the original defendants as well as numerous parties not named in the first complaint. In proposed count I for foreclosure of mechanic’s lien, Premier first alleged in pertinent part that Premier entered into a subcontract with Corrigan on June 21, 1979, in the amount of $511,394, under which Premier agreed to provide labor and materials for electrical work at Fulton House in accordance with the terms of the subcontract and certain drawings, plans and specifications prepared for that purpose and made part of the subcontract. These allegations were realleged and incorporated into most of the subsequent counts of the proposed complaint.

Count I further alleged that during the course of construction, numerous unusual, unforeseen and unanticipated job conditions were encountered, including but not limited to structural defects caused during the thawing of the building (e.g., collapse of a substantial portion of one wall of the building), and vast structural differences in the actual physical construction of the building as opposed to what was reflected in the drawings. Premier claimed that this situation necessitated several field changes resulting in delays, unanticipated materials needs and additional costs. The complaint alleged in substance that the original subcontract did not cover these extras, that the parties had a customary practice between them with regard to the subcontract such that the owners knew that the waiver of lien was not intended to accurately reflect the full current subcontract price including all extras, that it was a matter of trade usage in the industry for a subcontractor to execute a waiver of lien that did not accurately reflect the full current subcontract price including all extras, and that Premier was entitled to a mechanic’s lien in the amount of $150,000 with statutory interest.

Count II of the proposed amended complaint sought recovery of $431,045.24, the full value of the extras Premier alleged to have provided on the project, based on the owners’ breach of an oral contract with Premier to provide these extras.

Count III of the amended complaint was directed against Corrigan and sought recovery of $431,045.24 based upon breach of the electrical subcontract.

Count IV sought recovery of the value of the extras from the owners based upon unjust enrichment. Count V consisted of a claim for reformation of the subcontract and was directed against Corrigan. Count VI was a fraud claim also directed against Corrigan.

The trial court ruled on Premier’s motion to file an amended complaint on April 28. It denied Premier leave to file count I (foreclosure of mechanic’s lien), count II (breach of oral contract), and count IV (unjust enrichment) of the proposed complaint and granted leave to file the remaining counts. The court also denied Premier leave to withdraw its original verified complaint.

Premier filed its amended verified complaint on May 12. In this pleading, Premier first made several allegations applicable to all counts. These allegations were substantially similar to those it had made in count I of its proposed amended complaint which it had realleged and incorporated into the subsequent counts of that document. Count I of the amended complaint sought foreclosure of mechanic’s lien and was substantially similar to the latter portion of count I of the proposed amended complaint. (The owners have not argued either before the trial court or in this appeal that Premier’s amended count I deviated from the trial court’s order denying Premier leave to file an amended count. Instead, as will be stated more fully below, owners argued before the trial court and claim in this appeal that the count should be stricken with prejudice because of the executed lien waiver or dismissed for failure to state a claim.)

Count II of the May 12 amended complaint sought recovery based upon owners’ breach of an oral contract. The count was substantially similar to count II of Premier’s proposed amended complaint which the trial court had denied leave to file. (As with count I, owners have not argued in this appeal, nor did they argue below, that Premier’s amended count II was improper. Instead, owners claimed before the trial court and contend in this appeal that amended count II was properly stricken with prejudice because of prior inconsistent sworn statements by Premier that were part of the record, or properly dismissed for failure to state a claim.)

The remaining counts of the amended complaint were the same as those Premier had been granted leave to file, except that proposed count IV seeking recovery directly from the owners based upon unjust enrichment was not included.

On June 9, owners filed a motion to dismiss or in the alternative to strike portions of the amended complaint. The motion was substantially similar to their previous motion to the same effect regarding Premier’s original verified complaint, and adopted in support the previously filed affidavit of O’Keefe. Premier filed a motion in response, to which the owners replied. Premier also later filed a motion for leave to file instanter the affidavit of Michael Hughes, vice-president of Premier, in support of its memorandum in opposition to the owners’ motion to dismiss, which the court subsequently granted.

On October 8, the court ruled, inter alia, that count II of the amended complaint was stricken with prejudice and leave to amend that count was denied because it was inconsistent with prior sworn statements part of the record. Subsequently, on November 18, the court granted owners’ motion to dismiss count I of the amended complaint with prejudice because of the lien waiver executed by Premier. The court later also denied Premier’s motion to reconsider these rulings.

Premier appeals from the rulings which dismissed counts I and II and denied it leave to file amended count IV for unjust enrichment. Owners cross-appeal from the trial court’s order denying their motion to tax fees and costs against Premier pursuant to section 2 — 611 of the Code of Civil Procedure (Ill. Rev. Stat. 1981, ch. 110, par. 2 — 611). All notices of appeal were timely filed.

I

DISMISSAL OF COUNT I

Premier claims that the trial court erred in dismissing count I of the amended complaint on the ground that Premier’s previously executed waiver of lien barred such foreclosure. Premier argues that the affidavits of O’Keefe on behalf of the owners and Hughes on behalf of Premier created issues of fact regarding whether the parties intended the waiver of lien to constitute a final waiver and whether the owners acted in innocent, good-faith reliance on the waiver when they authorized payment in accordance with the pay-out note which accompanied the waiver of lien, as shown by the customary practice between the parties and trade usage in the industry. We agree that innocent, good-faith reliance, customary practice and trade usage were disputed factual issues which precluded dismissal of count I.

Premier’s original verified complaint and amended complaint included as exhibits the lien waiver, contractor’s affidavit, and pay-out note signed and executed by Hughes as vice-president on behalf of Premier. The documents recited that Premier’s work on the project had been completed on May 31, 1981. The lien waiver further stated in essence that Premier waived any right to claim a mechanic’s lien on the Fulton House property for sums due Premier on account of work “furnished to this date.” The lien waiver was dated July 13, 1981. The contractor’s affidavit similarly stated that “all waivers are true, correct and genuine and delivered unconditionally and that there is no claim either legal or equitable to defeat the validity of said waivers ***.”

In dismissing count I of the amended complaint, the trial court stated that “the waiver of lien is in defense of Premier’s claim” and granted the motion to dismiss with regard to La Salle Bank, Fulton House, and Continental. Similarly, in denying Premier’s motion to vacate the order dismissing count I, the trial court observed that Premier “had primary responsibility for protecting its lien rights” and that “[t]he election to waive the lien rights was voluntarily done by the plaintiff, and the plaintiff is bound by its sworn documents.”

Generally, where the terms of a waiver of lien are clear and unambiguous, extrinsic evidence which varies from or contradicts such terms cannot be considered in order to determine the intent of the parties; this rule applies, however, only when the party against whose property a lien is sought has relied upon the waiver of lien in innocence and good faith. (Luczak Brothers, Inc. v. Generes (1983), 116 Ill. App. 3d 286, 298, 451 N.E.2d 1267; see also Country Service & Supply Co. v. Harris Trust & Savings Bank (1981), 103 Ill. App. 3d 161, 165-66, 430 N.E.2d 631.) Whether there has been such innocent, good-faith reliance is a question of fact. (Luczak Brothers, Inc. v. Generes (1983), 116 Ill. App. 3d 286, 298, 451 N.E.2d 1267; see also Contract Builders Service Corp. v. Eland (1981), 101 Ill. App. 3d 366, 372-73, 428 N.E.2d 178.) In addition, questions of customary practice between the parties and trade usage in the industry are also appropriately raised in the context of the effect of a subcontractor’s lien waiver. Chicago Bridge & Iron Co. v. Reliance Insurance Co. (1970), 46 Ill. 2d 522, 530-32, 264 N.E.2d 134.

Here, Premier and the owners disputed in their respective affidavits whether there had been innocent, good-faith reliance upon Premier’s waiver of lien, the customary practice between them, and trade usage regarding subcontractor’s waivers of lien. Hughes’ affidavit gave a detailed recounting of specific instances where Premier was directed to perform additional work beyond the scope of its subcontract with the assurance that it would be compensated for these extras. He also gave a detailed accounting of specific instances where payment to Premier was authorized on the basis of lien waivers and pay-out notes which all parties knew did not accurately reflect the full, up-to-date subcontract price. For example, in support of its claim that the owners knew of the true status of Premier’s subcontract amount, Hughes’ affidavit claimed that the dual capacity of Weese as both owner and architect on the project created uncertainty as to whether Weese’s on-site instructed changes were given in his capacity as owner or architect on the project. Furthermore, Hughes stated in substance that representatives of Fulton House, as owner, participated in and affirmed Weese’s on-site changes and also issued similar instructions of their own. In short, the reasonable inferences which might be drawn from Premier’s complaint, supporting documents, and affidavit, are that the owners knew that the amounts shown on Premier’s pay-out notes and lien waivers did not accurately reflect the amounts due it for materials and labor Premier had provided on the project. O’Keefe’s affidavit, on behalf of the owners, disputed these allegations in the sense that he stated that the owners innocently relied upon Premier’s lien waiver and pay-out note in authorizing Premier’s payment.

It is well established that a motion pursuant to section 2 — 619 cannot be decided on the basis of controverted factual matter; since the issues which the trial court should have considered here were factually disputed by the parties, the court’s judgment dismissing count I must be reversed and the cause remanded for further proceedings. In view of this determination, we do not address Premier’s additional claims of reversible error in the trial court’s dismissal of count I.

II

DISMISSAL OF COUNT II

Premier argues that the trial court erred in dismissing count II of its amended complaint which sought recovery of $431,045.24, the value of extras Premier claimed it provided, based upon the owners’ breach of an oral contract between them and Premier regarding the extras. We agree.

The trial court’s order, which struck with prejudice count II of the amended complaint, stated that the count was “inconsistent with prior sworn statements part of the record.” As appears from the transcript, the court determined that Premier could not seek relief from the owners based upon breach of an oral contract regarding the extras because Premier’s original verified complaint sought recovery of the value of the disputed extras from Corrigan based upon breach of the written subcontract between Corrigan and Premier.

Premier argues that section 2 — 605 of the Code (Ill. Rev. Stat. 1981, ch. 110, par. 2 — 605), regarding verified complaints, permits alternative or inconsistent pleadings where a party is uncertain what the facts and evidence will show. (See, e.g., Olson v. Weingard (1966), 77 Ill. App. 2d 274, 222 N.E.2d 24.) It contends that such pleadings are appropriate here because Corrigan’s answer to Premier’s claim against it has admitted that Premier provided the disputed material and labor but denied that Corrigan requested or authorized the work.

The owners claimed before the trial court and argue now in this appeal that Premier’s prior sworn statements were inconsistent because they sought recovery of the value of the extras from Corrigan based upon Premier’s electrical subcontract with the general contractor. As evidence of such prior inconsistent sworn statements, owners point to portions of count II of Premier’s original verified complaint directed against Corrigan for breach of subcontract; portions of Premier’s amended notice and claim for mechanic’s lien, attached as an exhibit to Premier’s original verified complaint with regard to count I against owners for foreclosure of the lien; portions of Premier’s second amended notice and claim for mechanic’s lien, attached as an exhibit to Premier’s original verified complaint with regard to count I for lien foreclosure; portions of Premier’s subcontract; portions of the contractor’s affidavit Premier executed on July 13, 1981, which accompanied its lien waiver; and portions of the lien waiver itself. Owners claim that these statements directly contradicted count II of Premier’s amended complaint, which alleged in relevant part that the extras were provided “at the express request of the Beneficial Owners, and/ or his architect, and/or his architect’s field representatives,” which created “an oral contract *** between Premier and the Owner to perform said additional work for added consideration.”

“Prior inconsistent sworn statements,” or judicial admissions, are a party’s formal binding statements or allegations of fact. (Giamanco v. Giamanco (1982), 111 Ill. App. 3d 1017, 1022, 444 N.E.2d 1090.) Once made, as for example in a verified pleading, a party cannot subsequently contradict such factual allegations. (Waldorf v. Marlas (1977), 56 Ill. App. 3d 358, 362, 371 N.E.2d 1021.) The provision in section 2 — 605 of the Code (Ill. Rev. Stat. 1981, ch. 110, par. 2 — 605) that verified allegations shall not constitute evidence except by way of admission refers to admissions of fact, not admissions of law. Franz v. Schneider (1957), 14 Ill. App. 2d 464, 468,144 N.E.2d 798.

The statements of Premier which the trial court found to constitute binding judicial admissions here were essentially allegations that Premier provided the extras on the basis of its subcontract with Corrigan. These were allegations of legal conclusions, however, not facts. Although the allegation of the existence of a subcontract of a particular scope might appear upon first impression to be an allegation of “fact,” it is more properly an allegation of a legal conclusion, since it is the province of the trial court to determine, based upon properly admitted evidence, the existence and terms of a contract between the parties. (See Martin-Trigona v. Bloomington Federal Savings & Loan Association (1981), 101 Ill. App. 3d 943, 946-47, 428 N.E.2d 1028; Pollack v. Marathon Oil Co. (1976), 34 Ill. App. 3d 861, 864, 341 N.E.2d 101.) The construction, interpretation or legal effect of a contract are questions of law to be resolved by the court. (Premier Electrical Construction Co. v. Ragnar Benson, Inc. (1982), 111 Ill. App. 3d 855, 864, 444 N.E.2d 726.) Consequently, in our view, count II of Premier’s amended complaint did not contain factual allegations inconsistent with its verified complaint; instead, it sought, based upon factual allegations consistent with and constituting an amplification of the verified complaint, a remedy inconsistent with its verified complaint.

Further, there is no error in such a procedure. The doctrine of election of remedies does not apply when- inconsistent or alternative remedies are joined in the same pleading. (Pinelli v. Alpine Development Corp. (1979), 70 Ill. App. 3d 980, 1005-06, 388 N.E.2d 943.) The remedies of a subcontractor are cumulative and may be pursued consecutively or concurrently. (J & K Cement Construction, Inc. v. Montalbano Builders, Inc. (1983), 119 Ill. App. 3d 663, 677, 456 N.E.2d 889.) These remedies include:

“(1) an action at law against the original contractor alone; (2) an action at law against the original contractor and the owner jointly; (3) an action at law upon the original contractor’s completion bond; (4) an action in equity to enforce the subcontractor’s lien; and (5) intervention in a pending action of the original contractor against the owner. (Ill. Rev. Stat. 1981, ch. 82, par. 1 et seq.; see Illinois Mechanics’ Lien 5 — 54 (Ill. Inst. Cont. Legal Educ. 1981).)” (J & K Cement Construction, Inc. v. Montalbano Builders, Inc. (1983), 119 Ill. App. 3d 663, 677, 456 N.E.2d 889.)

The trial court erroneously determined that since Premier had elected the remedy of recovery from Corrigan for breach of subcontract in its original complaint, it could not seek recovery from the owners based upon breach of an oral contract in its amended complaint. Accordingly, we conclude that count II of Premier’s amended complaint was improperly dismissed. In view of this determination, we do not address additional arguments raised by Premier regarding the trial court’s dismissal of this count.

Ill

DENIAL OF LEAVE TO FILE AN UNJUST ENRICHMENT CLAIM

Premier argues that the trial court improperly denied it leave to file count IV of its proposed amended complaint which sought recovery from the owners based upon a theory of unjust enrichment. We disagree.

The theory of unjust enrichment is based upon a finding of a “contract implied in law.” Such a contract differs from a “contract implied in fact” in that it arises by implication of law wholly apart from the usual rules relating to contracts and does not depend upon the agreement or consent of the parties. (In re Estate of Milborn (1984), 122 Ill. App. 3d 688, 690, 461 N.E.2d 1075.) Unjust-enrichment recovery requires a showing that the defendant has voluntarily accepted a benefit which it would be inequitable for him to retain without payment, since the law implies a promise to pay compensation when value of services is knowingly accepted. (Plastics & Equipment Sales Co. v. DeSoto, Inc. (1980), 91 Ill. App. 3d 1011, 1017, 415 N.E.2d 492.) As a general rule, the doctrine of unjust enrichment does not apply where the entire work is contracted for and placed under a general contractor who has the power to employ whom he chooses, because in such circumstances the owner has the right to presume that work is being done for and on behalf of the contractor. (Vanderlaan v. Berry Construction Co. (1970), 119 Ill. App. 2d 142, 145, 255 N.E.2d 615.) This rule applies because a claim for unjust enrichment generally cannot stand where there is an allegation of an express contractual agreement. (See Vanderlaan v. Berry Construction Co. (1970), 119 Ill. App. 2d 142, 145, 255 N.E.2d 615; see also Decatur Production Credit Association v. Murphy (1983), 119 Ill. App. 3d 277, 288, 456 N.E.2d 267.) Nevertheless, it has also been held that where the general contractor’s employment has been terminated prior to completion of the project and the owner has directly instructed the subcontractor to perform such work with the assurance of compensation, the subcontractor may seek recovery directly from the owner. (Redd v. Woodford County Swine Breeders, Inc. (1977), 54 Ill. App. 3d 562, 566, 370 N.E.2d 152.) In this instance, however, the proper theory of recovery is breach of an express unilateral contract between the owner and the subcontractor, rather than a theory of unjust enrichment. Redd v. Woodford County Swine Breeders, Inc. (1977), 54 Ill. App. 3d 562, 370 N.E.2d 152.

Count IV of Premier’s proposed amended complaint seeking recovery from the owners based upon unjust enrichment alleged, inter alia, the existence of an oral contract between Premier and the owners to the effect that Premier would be compensated for the extras it provided. As unjust enrichment cannot be sought where there is such an express agreement, the trial court properly denied Premier leave to file the proposed amended count IV.

IV

IMPROPER FORM OF OWNERS’ MOTION TO STRIKE OR DISMISS

Based on our review of the record, we find no prejudicial error to Premier resulting from the improper form of the owners’ motion to strike or dismiss Premier’s amended complaint. We observe, however, that it is abundantly clear from the record that both counsel and the court were confused by this procedure, and would draw owners’ counsel’s attention to the recent decision of Premier Electrical Construction Co. v. La Salle National Bank (1983), 115 Ill. App. 3d 638, 450 N.E.2d 1360, in this regard.

V

OWNERS’ CROSS-APPEAL

Because we conclude that the trial court erroneously dismissed count II of the amended complaint, we affirm without discussion the trial court’s order denying the owners’ motion to tax fees and costs against Premier pursuant to section 2 — 611 of the Code (Ill. Rev. Stat. 1981, ch. 110, par. 2-611).

For the reasons stated, the trial court’s orders dismissing amended counts I and II and denying Premier’s motion to vacate these orders are reversed and the cause remanded; the trial court’s order denying Premier leave to file an amendment to include a claim for unjust enrichment is affirmed; and the trial court’s order denying owners’ motion to tax fees and costs is affirmed.

Reversed and remanded in part; affirmed in part.

JOHNSON and JIGANTI, JJ., concur.


author: PRESIDING JUSTICE STAMOS

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. EDMARD ROSS, Defendant-Appellant.
    First District (2nd Division)
    No. 83—2478
    Opinion filed March 12, 1985.
    Rehearing denied May 21,1985.

      Jenner & Block and Howard Reich, both of Chicago (Thomas P. Sullivan, Laura A. Raster, and Gail Rubin, of counsel), for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat and Peter D. Fischer, Assistant State’s Attorneys, of counsel), for the People.
   PRESIDING JUSTICE STAMOS

delivered the opinion of the court:

Defendant Edward Ross was convicted of murder in a bench trial for the November 4, 1981, shooting of his ex-wife Betty and was sentenced to 30 years’ imprisonment. Defendant appeals his conviction.

In 1981, defendant was 49 years old and his ex-wife Betty was 47 years old. Defendant and his ex-wife were twice divorced, having been married in 1973, divorced and remarried in 1977 and divorced again in 1978. They continued to see each other frequently after the second divorce.

In October of 1981, Betty traveled to San Francisco on business, stopping on the way back in Las Vegas, where she met Jana Nuter, her daughter by a previous marriage. Betty returned to Chicago on the morning of November 4, and was met at the airport by defendant, who drove her to his apartment in Des Plaines. After arriving from the airport, Betty and defendant ate and went to bed, where they talked and engaged in sexual intercourse. Defendant testified that he got out of bed and went to the bathroom to put on his pajamas, the bedroom being completely dark. He returned to the bedroom and lay down on the bed. As he lay awake, he heard an “explosion” and rolled across Betty’s side of the bed and ran into the hallway, where he heard another explosion. He returned to the bedroom, turned on a closet light and saw Betty lying near the bed with a gunshot wound in her head. Defendant took an oxygen tank from his side of the bed and placed the mask on Betty’s face. He then telephoned for help and opened the apartment door.

Officer Winek of the Cook County sheriff’s police testified that on November 4, 1981, between 9 and 9:08 a.m. the sheriff’s office in Des Plaines received a telephone call reporting a shooting at defendant’s apartment. Officer Winek, his partner Bryant and three paramedics went to the apartment, where they found the door open. Upon entering the master bedroom, Winek observed defendant kneeling over Betty and attempting to administer oxygen. When defendant saw Winek, he said, “Help her. Help her.” Winek handcuffed defendant and the paramedics began to administer aid to Betty. Betty was taken to Lutheran General Hospital, where she died later that day.

Officer Winek was the only witness who saw the master bedroom before the paramedics entered with their equipment and moved Betty. When Winek first entered the bedroom, Betty was lying on her back on the floor near her side of the bed. She had a bullet wound in her left temple. A revolver was on the floor between Betty and the bed, approximately two feet to Betty’s right. After Winek handcuffed defendant, the paramedics entered the bedroom. One removed the shade from the window and the others moved Betty toward the foot of the bed and began to administer first aid. Winek took defendant to the second bedroom, where he noticed that defendant had been shot in the inside of his upper right thigh.

Evidence technicians arrived at approximately 9:10 a.m. Although they instructed the police officers and paramedics not to disturb the scene, numerous objects had already been moved by the paramedics in the course of treating Betty. Photographs were taken of the room. The technicians observed a purse filled with blood on defendant’s side of the bed and a revolver on the floor. The purse had been moved by the paramedics. The gun, upon which no fingerprints were found, had blood on both sides of its frame.

Four bullets were recovered from the room. One was recovered from Betty’s head, one from the floor beneath Betty’s side of the bed, one from the carpeting near the head of Betty’s side of the bed, and one from the top of the sheets on the surface of the bed. This last bullet was stained with a red substance and was found near the head of the bed. A large bloodstain was present at the head of Betty’s side of the bed. This stain was smeared toward the edge of the bed where Betty was found. Bloodstains were also observed in other places in the bedroom. Samples of these were taken, but because defendant and Betty shared the same ABO blood type, most of the samples proved inadequate to determine the source of the stains. Erethrocyte acid phosphatase (EAP) testing indicated that the large stain on Betty’s side of the bed was made by her blood, that the stain on defendant’s side of the bed was his blood, and that the large quantity of blood found in Betty’s purse was hers. The autopsy revealed that Betty’s death had been caused by a contact gunshot wound to the left temple.

A firearms expert testified that all four bullets recovered from the scene had been fired from the gun found in the bedroom. This gun belonged to defendant and had been kept loaded in a drawer of the nightstand at defendant’s side of the bed. An examination of defendant’s pajama pants showed that he had been shot from a distance of less than six inches, but greater than contact. The bullet entered the front of his right thigh and exited at the rear.

Evidence introduced at trial revealed that Betty had experienced emotional problems several months before her death, but had been successfully treated for them; that the relationship between Betty and defendant was often troubled; that defendant was a gun enthusiast and an experienced marksman, and at the time of Betty’s death owned several guns besides the one which killed Betty; that defendant denied shooting Betty when questioned by police immediately after the shooting; and that Betty did not like guns and was inexperienced in their use.

At trial, defendant maintained that Betty had committed suicide. He was tried before the bench, convicted of murder and sentenced to 30 years’ imprisonment.

Defendant first contends that he was denied due process of law due to the State’s failure to preserve material evidence. It is clear that the State has the duty to preserve and disclose possible exculpatory evidence to the accused in a criminal case. (People v. McDowell (1984), 121 Ill. App. 3d 491, 496-97, 459 N.E.2d 1018.) This duty to preserve and disclose evidence focuses on the fairness of the trial process. (121 Ill. App. 3d 491, 497.) We must therefore determine whether the State has breached this duty and, if so, what effect this breach would have on the fairness of the trial process.

Defendant first argues that the State withheld material evidence from him by failing to test his and Betty’s hands for gunshot residue. However, a police investigator testified that, due to the contamination of Betty’s hands by the presence of adhesive tape applied by the paramedics and by blood, and because defendant had been taken to the hospital, the investigator believed that reliable gunshot residue samples could not have been obtained from the hands of either person. Under these circumstances, we cannot say that the State’s actions in failing to obtain gunshot residue evidence amounted to a breach of its duty to preserve evidence.

Defendant next argues that the State breached its duty to disclose evidence by the failure of police investigators to obtain blood samples from the room in quantities sufficient to allow accurate testing to determine the sources of the various stains. The record shows that investigators used cotton swabs to collect blood samples. Expert testimony established that this method is not considered the most reliable for collecting such samples. While the failure of police to obtain sufficient samples of bloodstains may amount to a breach of the State’s duty to preserve and disclose material evidence, it does not appear that any unfairness to defendant resulted from such failure here. The trial judge, in announcing his findings as to defendant’s guilt, considered the size and location of the stains, rather than the results of the blood tests, in determining their origin. The judge found that the large stain at the head of Betty’s side of the bed could, due to its size and shape, only have come from Betty’s head wound. It therefore does not appear that defendant was prejudiced by the unavailability of samples of bloodstains found elsewhere in the room. In addition, given the multiplicity of stains and the fact that defendant and Betty shared the same ABO blood type, we do not find that the failure to obtain samples of all the stains was prejudicial, especially given defendant’s argument, discussed below, that no accurate method exists to differentiate between the blood of persons who share the same ABO blood type. See People v. McDowell (1984), 121 Ill. App. 3d 491, 459 N.E.2d 1018.

Defendant also argues that the failure of the police to examine the bedsheets and the bullet found on the bed was a breach of the State’s duty to preserve evidence. However, an examination of these items could only have shown whether Betty was shot while on the bed and whether defendant was shot in the leg by the bullet found on the bed, facts which are ascertainable from the available evidence. We therefore find that defendant was not prejudiced by the failure of the State to have these items examined.

Defendant next contends that the trial court’s consideration of inadmissible evidence denied him his right to a fair trial. Defendant first contends that blood type evidence based on EAP testing, a method used to differentiate blood from persons who share the same ABO blood type, is inadmissible because it has not gained general acceptance in the scientific community. (See People v. Baynes (1981), 88 Ill. 2d 225, 240-45, 430 N.E.2d 1070 (regarding polygraph examinations).) However, the trial court in the instant case made its findings relative to the blood stains on the basis of their size and location, rather than the EAP test results. Therefore, we find that defendant was not prejudiced by the admission of this evidence.

Defendant also objects to the admission into evidence of two letters written by Betty. Defendant argues that these letters were inadmissible hearsay. The letters were intended to show Betty’s state of mind at the time of her death and were admitted into evidence under the state-of-mind exception to the hearsay rule. Defendant argues that the State failed to show that the letters satisfied the two-fold basis for hearsay exceptions — necessity and a reasonable probability of truthfulness — in that it did not establish a reasonable probability that the content of the letters was true. See People v. Reddock (1973), 13 Ill. App. 3d 296, 304, 300 N.E.2d 31.

The first letter was written by Betty to her cousin in Yugoslavia. The letter contains statements indicating that Betty was in an optimistic mood immediately prior to her death. Defendant argues that because Betty’s daughter testified that it was consistent with Betty’s character to refrain from discussing her problems with her cousin, and because the letter omitted references to some of Betty’s problems, the letter was inherently unreliable and was improperly admitted as evidence of Betty’s state of mind. However, the letter does discuss several of Betty’s more serious problems, including her past emotional problems, and the evidence as to Betty’s state of mind was corroborated by the testimony of Betty’s daughter and of one of her co-workers. In light of these facts, we cannot say the trial court erred in finding the exhibit to be reliable.

The second letter, dated October 5, 1981, was written by Betty to defendant and expresses Betty’s displeasure with their relationship and indicates her desire to distance herself from defendant. Defendant argues that this letter was admitted without proper foundation because Betty’s daughter, who identified Betty’s signature on the letter, lacked personal knowledge of its contents. However, the foundation testimony was directed solely toward identifying Betty’s signature. Therefore, Betty’s daughter’s lack of knowledge of the letter’s contents does not affect the reliability of the statements made therein.

Defendant next contends that he was not proved guilty of murder beyond a reasonable doubt because the evidence of his guilt was entirely circumstantial and the State failed to rebut defendant’s reasonable hypothesis of suicide.

It has been held that a valid conviction may be based entirely on circumstantial evidence. (People v. Williams (1977), 66 Ill. 2d 478, 484, 363 N.E.2d 801.) It is necessary, however, that the proof be of a conclusive nature leading, on the whole, “to a satisfactory conclusion and producing a reasonable and moral certainty that the accused and no one else committed the crime.” (66 Ill. 2d 478, 484-85.) Where a conviction of murder rests solely upon circumstantial evidence, the guilt of the defendant must be so thoroughly established as to exclude every reasonable hypothesis of innocence. (People v. Garrett (1975), 62 Ill. 2d 151, 163, 339 N.E.2d 753.) It is not required that the facts be such as to exclude all imaginable situations wherein the defendant might possibly be innocent (People v. Hargis (1983), 118 Ill. App. 3d 1064, 1072, 456 N.E.2d 250) and “the trier of fact need not search out all possible explanations consistent with innocence and raise them to a level of reasonable doubt.” People v. Rhodes (1981), 85 Ill. 2d 241, 249, 422 N.E.2d 605.

In the instant case, certain facts are undisputed. It is clear that Betty died as the result of a single bullet wound to the temple. Expert medical testimony established that, although Betty could have moved about after the shot, it was far more likely that she collapsed where she was shot, fell immediately into a comatose state and died very shortly thereafter. It is undisputed that Betty was in defendant’s apartment when she was killed and that the fatal shot was fired from a gun owned by defendant and kept loaded in his nightstand. It is also undisputed that Betty and defendant were alone in the apartment when the shooting occurred and that no third party is involved in this incident. Therefore, only two explanations for Betty’s death are conceivable; she either killed herself or was killed by defendant.

Defendant contends that the evidence introduced at trial was insufficient to prove that Betty was killed by him, rather than by herself. Because defendant is the sole witness to what occurred in his bedroom on November 4, 1981, his testimony as to what transpired is crucial. Defendant testified as follows: He picked Betty up at O’Hare Airport as she returned from San Francisco in the early morning of November 4, 1981. The two drove back to defendant’s apartment in Des Plaines, where they each had something to eat and drink and discussed their future. Betty told defendant that she wanted them to remarry. She took a bath and then went into the bedroom. Defendant and Betty undressed and got in bed. Defendant reached into the drawer of the nightstand next to his side of the bed for a condom, but did not remove one because Betty said, “I am safe.” Defendant left the drawer open. Inside the drawer was a loaded .32-caliber revolver.

Defendant and Betty engaged in sexual intercourse. The room was in total darkness because defendant could not sleep in a lighted room and had covered the windows. After intercourse, defendant went to the bathroom to wash up. He put on his pajamas and came back to lie down on the bed. Defendant testified that Betty asked “what they were going to do with the rest of their lives,” and that he replied, “We have to see your mother at noon. We have to drive tomorrow to Traverse City. I am going to sleep.” However, after the shooting, defendant told investigators that he had been arguing with Betty over her desire to remarry immediately prior to the shooting. Defendant testified that he lay down on the bed but did not fall asleep and that as he was lying in bed he heard an “explosion.” He rolled out of bed and landed on his hands and knees on the floor near Betty’s side of the bed, took two steps to get to his feet and ran down the hallway leading to the front door. He then heard a second “explosion” and returned to the bedroom, where he turned on the closet light and found Betty lying on the floor near her side of the bed with a bullet wound in her head. Defendant telephoned the operator and reported “a shooting.” He then ran down the hall to open the front door, leaving the phone off the hook. After going to the bathroom to look for medical supplies, defendant returned to the bedroom to administer oxygen to Betty from a tank he kept. Such was the scene when the police arrived.

When the police and paramedics arrived, defendant was taken to a second bedroom and questioned. Until this time defendant had not noticed that he had been shot in the right thigh, and he did not know when he had been shot. Defendant was questioned by Officer Winek. When asked if he had shot Betty, defendant answered, “No.” When asked if Betty had shot him, defendant replied, “I don’t know.” A few minutes later, Investigator Kraut asked defendant if he had shot Betty and was told, “No. I loved her,” but when he asked defendant if Betty had shot him, defendant replied, “I won’t answer that.” When asked if Betty could handle a gun, defendant replied, “No. She was afraid of guns.” To Kraut’s questions of whether Betty had shot herself or whether defendant had shot himself, defendant replied, “I won’t answer that,” to both. Kraut then asked defendant how the shooting had occurred and was told, “I don’t know.”

In support of his contention that he was not proved guilty of murder beyond a reasonable doubt, defendant cites the decision of our supreme court in People v. Garrett (1975), 62 Ill. 2d 151, 339 N.E.2d 753. In Garrett, the court reversed the defendant’s murder conviction on the basis of the State’s failure to rebut the defendant’s reasonable hypothesis of suicide. However, an examination of the facts in Garrett shows them to be dissimilar to those of the instant case. In Garrett, forensic evidence showed that the characteristics of the victim’s wounds were equally consistent with murder or suicide. Other evidence introduced at trial revealed that the victim had been depressed; that she had spoken of committing suicide; that she had just confessed to her husband that she was having an affair, and therefore had a motive to kill herself; and that she had left a note stating that she killed herself. None of these factors is present in the instant case.

An examination of the evidence adduced at trial in the instant case, and especially of defendant’s testimony, reveals the implausibility of defendant’s suicide hypothesis. The evidence at trial showed that defendant was a gun enthusiast and a marksman, yet he described the gunshots heard by him in the bedroom as “explosions.” It is unlikely that a man with as much experience with firearms as defendant would be unable to identify the sound of gunshots. In addition, defendant claims to have heard only two shots, while the evidence shows that four were fired. Defendant’s explanation of this discrepancy is that he was rendered temporarily deaf by the sound of the first shot and therefore heard only one of the other three. However, even considering the possibility that one of the shots was muffled because it was fired on contact into Betty’s head, it is apparent that all the shots were fired within a period of only a few seconds, and it is unlikely that defendant’s temporary deafness would abate quickly enough to allow him to hear another of the shots.

In addition, the fact that four shots were fired is itself inconsistent with defendant’s hypothesis of suicide. Defendant proposes several scenarios to explain why Betty would have fired four shots when she intended to kill herself. Defendant argues that three of the shots were “hesitation shots,” misses which defendant claims are often fired by persons attempting suicide before the fatal shot is fired. However, no evidence supporting defendant’s theory of “hesitation shots” was introduced at trial. In addition, the location of the spent bullets is inconsistent with any claim that they were fired by Betty in an attempt to hit her left temple as she lay on the bed.

It is also significant that, although Betty had been shot in the left temple, the evidence adduced at trial shows that she was right-handed and that she had lost the ring finger of her left hand in an accident several years prior to her death, and consequently seldom used that hand. It is therefore highly unlikely that Betty would have held a gun with her left hand and shot herself in the left side of the head. Defendant’s expert testimony that a study of 55 suicide cases involving right-handed people revealed that five of them shot themselves with their left hands does not demonstrate a significant probability that Betty would have used her left hand to shoot herself, especially in light of the permanent disabling injury to that hand and the evidence that she seldom used it.

Testimony was also presented that Betty was not able to handle guns and was, in fact, afraid of them. Defendant testified that he had taught Betty how to fire a handgun by having her fire two shots from their car into a cornfield outside a gun club in Elburn. We find that the trial court was clearly correct in finding this testimony to be incredible, it being unlikely that defendant and Betty would drive all the way to a firing range in Elburn, only to fire their gun into a cornfield outside the club, or that an experienced marksman would allow a gun to be fired from his car into a cornfield.

Defendant’s telephone conversation with Betty’s former husband, George Nuter, also casts doubt on defendant’s suicide theory. Nuter testified that he received a telephone call from defendant a day or two after Betty’s death, regarding funeral arrangements. After arguing with defendant about this subject, Nuter asked defendant why he killed Betty, and defendant replied, “I don’t know. I don’t know.” Nuter then asked defendant, “You pulled the trigger, didn’t you? You did kill her?” Defendant responded, “I know. I know.”

Also significant is the fact that no fingerprints were found on the gun used in the shooting, an indication that the gun had been wiped clean by the person who last handled it. It would not, of course, have been possible for Betty to have wiped the gun clean if she had killed herself with it.

The evidence also showed that the bullet which passed through defendant’s right leg was fired from a distance of less than six inches, and passed through an area of the leg not containing major nerves or blood vessels. The trial court’s finding that the characteristics of this wound were more consistent with self-infliction than with infliction at the hand of another was not, in our opinion, unjustified, although no expert testimony was elicited regarding this question.

In contrast to the facts in Garrett, the evidence presented in the instant case is clearly more consistent with murder than with defendant’s theory of suicide. The evidence shows that the large, smeared bloodstain at the head of Betty’s side of the bed was most probably made by Betty’s being shot while she was lying on the bed and then being slid onto the floor, where the police found her. The evidence also reveals that Betty was shot with a gun owned by defendant and kept in the nightstand near his side of the bed; that the gun was found to be completely devoid of fingerprints or smudges; that four bullets had been fired from the gun and were found in locations which render highly unlikely the possibility that Betty had fired them while aiming the gun at her head; that Betty, although she had for many years been disabled by the loss of a finger from her left hand and was shown to have seldom used that hand, was shot in the left temple; that defendant, a gun enthusiast and an experienced marksman, claimed to be unable to distinguish between the sound of an explosion and that of a gunshot and claimed to have allowed his wife to fire a gun from their car into a cornfield; that Betty was shown to have had an aversion to guns and to have been inexperienced in their use; and finally, that Betty had been in an optimistic mood immediately prior to her death.

Defendant’s theory that Betty killed herself is not supported by this evidence. In Garrett, the evidence was equally consistent with murder or suicide, and our supreme court found that the defendant had not been proved guilty to a reasonable and moral certainty. In the instant case, however, the evidence is much more consistent with murder than with suicide. We therefore find that no reasonable hypothesis of innocence existed and that the trial court properly found that the evidence in the instant case established defendant’s guilt to a reasonable and moral certainty.

The decision of the circuit court is affirmed.

Affirmed.

HARTMAN and PERLIN, JJ., concur.


author: JUSTICE O’CONNOR

text:
    JEAN K. GREENSPAN et al., Plaintiffs-Appellees, v. NORMAN MESIROW et al., Trustees, et al., Defendants-Appellants.
    First District (1st Division)
    No. 84—2909
    Opinion filed April 8, 1985.
    Rehearing denied May 2,1985.

      Jenner & Block, of Chicago (Thomas P. Sullivan, Gail Rubin, Jeffrey Col-man, and Michael B. Brohman, of counsel), for appellant Norman Mesirow.
    John S. Roadhouse and Robert J. Kopka, both of Conklin & Adler, Ltd., of Chicago, for appellant Jesse J. Holland.
    George Feiwell, Michael J. Kravlovec, and William J. Judge, all of Feiwell, Galper, Lasky & Berger, Ltd., of Chicago, and Stuart M. Sischman, of Dun & Zuckerman, of New York, New York, for appellees.
   JUSTICE O’CONNOR

delivered the opinion of the court:

This appeal arises from an action which was originally brought in 1982 by the trustees and beneficiaries of a private trust seeking modification of certain of its provisions so as to name successor trustees. A dispute subsequently arose between the surviving settlors and beneficiaries of the trust (plaintiffs) and the two nonfamily trustees (defendants), and the suit proceeded as a contested action to remove and surcharge the defendants for the alleged breach of fiduciary responsibilities and for conflicts of interest.

During discovery, plaintiffs filed a verified motion for preliminary injunction against defendants and a subsequent, unverified motion for temporary restraining order which alleged for the first time that defendants had used approximately $100,000 of trust assets to prepay principal on certain notes owed by the trust to a family fund of which defendants were also directors. On October 26, 1984, based on the allegations of prepayment, the fact of which was admitted in open court by defendants, the trial court elicited the agreement of defendants that no further disbursements would be made from the trust until a hearing could be had on the matter. The court then issued the first of two interlocutory orders which are the subject of this appeal, enjoining defendants from making any disbursements in excess of $5,000 in one calendar month without further leave of court. On November 13, defendants filed a motion to dissolve the October 26 order. Plaintiffs were subsequently given leave to amend their motion for temporary restraining order to verify its allegations.

On November 21, 1984, after defendants had filed their answer putting the material allegations of plaintiffs’ motion in issue, the trial court modified its previous order to increase the specified amount to $25,000 per calendar month. The modified order was also entered without an evidentiary hearing, based on the trial court’s belief that he was merely “supervising a hotly contested matter” and not issuing injunctive relief. It appears from the record that to this date, no evidence regarding the alleged impropriety of the prepayments or of resultant harm to the trust has been presented, although defendants have consistently maintained that such payments were in fact beneficial to the trust and made for “tax and other good business purposes.” Further, there is a disagreement among the parties as to whether a hearing date has in fact been set to consider such evidence. Our review of the orders pertinent to this appeal supports defendants’ claim that at the time of filing this appeal, a date had been set only for “status” on plaintiffs’ motion.

Defendants brought this interlocutory appeal pursuant to Supreme Court Rule 307(a) (87 Ill. 2d R. 307(a)), challenging both the October 26 and November 21 orders. Plaintiffs filed a motion to dismiss the appeal which was taken with the case, raising as issues the noninjunctive nature of the subject orders, the timeliness of the appeal, waiver by defendants and mootness.

Initially, we find that the subject orders, which effectively restrict defendants from conducting their ordinary affairs as trustees, are injunctive in nature. (See Bohn Aluminum & Brass Co. v. Barker (1973), 55 Ill. 2d 177, 303 N.E.2d 1 (in determining what is an injunction subject to interlocutory review, courts will look at substance rather than form).) We also find no support in the record for plaintiffs’ contention that defendants “agreed to” the blanket restriction now appealed from. Further, given our finding that no hearing has been set thus far on the propriety of the injunctive relief granted as a result of which the court’s order of November 21 remains in effect, we reject plaintiffs’ remaining contentions with respect to the timeliness of this appeal and its justiciability. Compare Oscar George Electric Co. v. Metropolitan Fair & Exposition Au thority (1982), 104 Ill. App. 3d 957, 433 N.E.2d 958 (where defendant filed an untimely appeal from a temporary restraining order four days before the hearing date set by the trial court on defendants’ motion to dissolve the injunction).

Under the circumstances presented, we believe the only issue before this court to be the propriety of the November 21 order which modified the injunction entered on October 26. We find the factual situation here to be similar to that before the court in Jurco v. Stuart (1982), 110 Ill. App. 3d 405, 442 N.E.2d 633, where a temporary restraining order was entered pursuant to a summary proceeding with notice but no definite hearing date set on plaintiffs’ motion for a preliminary injunction. The court in Jurco noted that a temporary restraining order is a drastic emergency remedy which may issue only in exceptional circumstances and for a brief duration upon a summary showing of the necessity of the order to prevent immediate and irreparable injury, and that the purpose of such an order is to maintain the status quo until a hearing can be had on an application for a preliminary injunction. Upon the presentation of evidence and legal arguments, a preliminary injunction may then issue in order to maintain the status quo during the pendency of the trial on the merits. (110 Ill. App. 3d 405, 408-09, and other cases cited therein.) While a temporary restraining order may exist beyond 10 days, the hearing must be set within a short time thereafter so as to prevent the potential significant consequences of allowing a summary proceeding to exist for more than short period of time. Citing Kable Printing Co. v. Mount Morris Bookbinders Union Local 65-B Graphic Arts International Union (1976), 63 Ill. 2d 514, 349 N.E.2d 36, the court in Jurco stated:

“To allow a temporary restraining order of unlimited duration is to have a preliminary injunction *** without giving the one party a fair opportunity to oppose the application and to show if he can why an injunction should not issue.” (110 Ill. App. 3d 405, 409.)

The court went on to conclude that the order before it, which emanated from a summary proceeding, albeit with notice, for an unspecified time, did not comport with the statutory scheme envisioned by the legislature and, pursuant to the defendant’s request, remanded the cause for an immediate hearing on the plaintiff’s motion for a preliminary injunction.

We believe this to constitute the appropriate relief in the case now before us; accordingly, we affirm the trial court’s injunctive order entered on November 21 modifying its October 26 order and remand this cause with instructions to proceed with an immediate hearing on plaintiffs’ motion for a preliminary injunction. Plaintiffs’ motion to dismiss is denied.

Motion to dismiss denied, order affirmed and cause remanded with directions.

CAMPBELL and BUCKLEY, JJ., concur.