author: Mr. JUSTICE GOLDBERG

text:
    Billy F. Janes and Marie Janes, Individually and on Behalf of all Other Persons Similarly Situated, Plaintiffs-Appellants, v. First Federal Savings and Loan Association of Berwyn et al., Defendants-Appellees.
    (No. 56774;
    First District (1st Division)
    April 16, 1973.

      Glazer and Cohan, of Chicago, for appellants.
    Gomberg and Sharfman, Ltd., of Chicago, (David L. Gomberg and Robert J. Sharfman, of counsel,) for appellee First Federal Savings and Loan Association of Berwyn.
    Nicholas S. Limperis, of Chicago, for appellee Irving Federal Savings and Loan Association.
    Francis J. Higgins, and Lawrence D. Solomon, of Chicago, (Bell, Boyd, Lloyd, Haddad & Burns, of counsel,) for appellee Chicago Title & Trust Company.
   Mr. JUSTICE GOLDBERG

delivered the opinion of the court:

Billy F. Janes and Marie Janes (plaintiffs) appeal from an order dismissing their amended complaint filed by them, individually and in a representative capacity on behalf of all persons similarly situated, and entering summary judgment against them in their suit against First Federal Savings & Loan Association of Berwyn (Berwyn), Irving Federal Savings & Loan Association (Irving) and Chicago Title & Trust Company (Chicago Title). Before stating the contentions of the parties, we will summarize the facts which appear from the amended complaint and from the affidavits filed by defendants in support of their respective motions.

Count I of the amended complaint alleged that plaintiffs entered into a contract for the purchase of real estate which was to be financed by Berwyn. Berwyn required that a preliminary report of title, as well as a title insurance policy, be obtained from Chicago Title. Berwyn ordered these items from Chicago Title “* * * on behalf of [pjlaintiffs.” In due course, an invoice for these services was issued by Chicago Title directed to Berwyn. These charges were apportioned between plaintiffs and the sellers of the real estate. Items pertaining to plaintiffs were paid by Berwyn from proceeds of the loan as reflected in the loan statement issued by Berwyn.

It was further alleged that neither the invoice from Chicago Title nor Berwyn’s loan statement reflected a rebate of 10% given to Berwyn. This rebate was given although Chicago Title knew that plaintiffs were the purchasers of the real estate. Instead, Berwyn charged plaintiffs the full price for the services rendered by Chicago Title and retained the rebate. This created a trust for plaintiffs; or, alternatively, was a wrongful conversion of plaintiffs’ funds or an unjust enrichment of defendants. This practice violated certain Federal regulations. 12 C.F.R. 545.6 — 10.

Count I also alleged that Berwyn had conspired with Chicago Title to deprive plaintiffs and other persons similarly situated of the funds in question and that there were large numbers of persons similarly situated who had purchased real estate which was financed through Berwyn. These persons constituted a class which had a common interest in obtaining a refund and an accounting. The class was large in number and permitting the action in a representative capacity would avoid a multiplicity of suits. The amended complaint prayed an accounting, injunctional relief against Berwyn from receiving discounts or rebates without returning same to sellers or buyers of property and other relief including reasonable fees to plaintiffs’ attorneys.

The second count of the amended complaint repeated virtually the same allegations against Irving and prayed the same relief. It alleged, however, that plaintiffs were sellers of real estate which was to be financed by Irving. The third count contained virtually the same allegations with reference to Chicago Title. It also alleged that this defendant knew that Berwyn and Irving did hot pay the discount or rebate to the respective purchasers or sellers but that it still continued to make payment thereof to them. It alleged that Chicago Title conspired with Berwyn and Irving and with other savings and loan associations to enrich themselves unjustly and to deprive other persons of funds rightfully theirs.

Berwyn filed a motion to strike and dismiss the amended complaint and for summary judgment. The motion averred that no facts were alleged which set forth any basis for requiring the lending institution to pass on to the borrower, or to account for, a prompt payment allowance. The motion also cited the applicable Federal regulations and stated that the reference thereto in the amended complaint was not actionable.

Berwyn also filed an affidavit by its president. This set forth that prior to making any loan, Berwyn required a report on title. Berwyn ordered this report for its own use and through its own account. Many times i such report was utilized by the parties to real estate transactions and paid for by them as they agreed. The affidavit then itemized various methods of ordering and paying for this preliminary report; listing nine separate methods of payment such as by the lender, attorneys, etc. In some cases, no title report was obtained but a Torrens Certificate was used.

Irving also filed a motion to strike and dismiss the amended complaint and for summary judgment based upon virtually the same grounds. An affidavit by the president of Irving was filed. It alleged that Irving requires a report of title or other evidence relative to the hen of its mortgage. In this regard, Irving, upon its own credit, deals with various title insurance companies in obtaining preliminary reports which are utilized for Irving’s benefit as well as for the benefit of the borrower. The cost of these reports is billed to Irving which pays these bills promptly when due and receives “whatever prompt payment allowance is customarily allowed.” Irving has no agreement with Chicago Title or any other title insurance company except to pay the customary prevailing charge for services rendered. Ultimately, this cost is charged to the buyer of the real estate who applied for the mortgage loan or is handled in accordance with such directions as the buyer may give.

Chicago Title filed a motion to strike and dismiss the amended complaint or alternatively for summary judgment. It averred that it does not control or restrict disbursement of prompt payment allowances which it makes to savings and loan associations. It alleged that the amended complaint fails properly to allege any acts of conspiracy or illegal purpose and fails to allege any conversion or misappropriation by Chicago Title of funds or property belonging to plaintiffs or any contracts with plaintiffs for payment of title charges. It alleged that there was no proper basis for a class action and no basis in law or in equity for injunctional relief which would prevent it from offering discounts to preferred customers without offering the same to all customers.

An affidavit was filed by the senior vice president of Chicago Title. It set forth that Chicago Title has given a monthly prompt payment allowance to savings and loan associations which have opened a credit account with it and have agreed to pay all charges on the account by the 10th day of the month following the date of the invoice. Exceptions to this rule are made only to allow for mailing or processing delays, in the case of items billed during the last three days of a month or for delay by a good customer with a reasonable explanation. This allowance is 10S of the net charges after eliminating recording or escrow fees and cash advances.

The affidavit also set forth in detail that this allowance was an inducement to the customer for prompt payment and also a recognition by Chicago Title of benefits received by it, such as personal liability of the lending institution to pay the charges regardless of their ultimate compensation from the principals; completion by the lender of applications for title policies and obtaining by it of necessary documents such as waivers, tax receipts or judgment affidavits; and reduction in cost and labor in accounting and billing procedures; all of which are of considerable benefit to Chicago Title. The affidavit further averred that Chicago Title imposes no agreement or understanding that the lending association will not deal with any competing title company and that no such condition was imposed in connection with Berwyn or Irving. Finally, the affidavit alleged that Chicago Title does not restrict or control in any manner the disbursement of allowances by any lending institution and did not do so or attempt to do so with regard to the transactions here involved.

Plaintiffs contend that Counts I and II of their amended complaint state a good cause of action against Berwyn and Irving upon a theory of resulting or constructive trust; or, alternatively on theories of conversion or unjust enrichment resulting from a quasi contractual relationship. Plaintiffs also contend that the lending institutions have violated applicable Federal regulations. Plaintiffs further contend that they have alleged a good cause of action against Chicago Title predicated upon conspiracy and also upon misrepresentation. Defendants Berwyn and Irving urge that the amended complaint sets forth no cause of action upon any trust basis, for wrongful conversion or for unjust enrichment and no cause of action for conspiracy. They further contend that they have not violated Federal regulations so that the suit was properly dismissed and summary judgment in their favor was properly entered. Chicago Title contends that Count III of the amended complaint fails to show any legal duty owed by Chicago Title to plaintiffs; fails to state a cause of action for misrepresentation or conspiracy; and, further, that the injunctional relief prayed in connection with the granting of prompt payment allowances would be improper.

Rather than unduly extending this opinion with analysis of many cases, we will simply state that none of the briefs cite any decisive authority which is completely germane to the situation at bar. However, we will note the recent decision of this court in De Phillips v. Mortgage Associates, Inc., 8 Ill.App.3d 759, 291 N.E.2d 329, leave to appeal denied March 27, 1973. There, plaintiffs were the buyers of a piece of real estate being financed by a mortgage in the amount of $16,800. It developed that the lender had disbursed a total of $15,792 but had retained $1008 which had been charged against the sellers as a mortgage discount. The real estate contract executed by the parties specified that this discount was to be paid by the sellers. The trial court denied plaintiffs’ claim that they were entitled to receive this sum from the lender. This court affirmed the decree in that regard holding that plaintiffs had not been damaged by a payment of the discount to the lender by the sellers. In other words, plaintiffs received all that they were entitled to receive in accordance with their agreement. While not completely factually similar to the case at bar, this decision is analogous to the situation here presented. We will next consider the contentions made by plaintiffs.

The problem here is to determine whether any of the alternative theories urged by plaintiffs are sufficient to state a cognizable cause of action or to raise material issues of fact which require trial. The first inquiry is whether the legal elements of a conversion, such as would support an action in trover, are present here. The traditional action of trover “* 8 8 does not operate on chattels generally, but specifically, such as money in coin or bills, animals, or other property capable of identification as being the actual property or thing wrongfully taken and converted.” (Kerwin v. Balhatchett, 147 Ill.App. 561, 566.) This same decision cites sec. 524, 2 Cooley on Torts, page 857, as authority for “* 8 8 an axiom of the law that trover will not lie for money given to a defendant to be used for a particular purpose, which defendant converts to his own use or which may be found due upon an accounting.” (See 147 Ill.App. at 566.) This necessary element of specific property is completely lacking in the case at bar.

In Burge v. Englewood M. C. and G. Co., 213 Ill.App. 357, plaintiff brought an action in trover for conversion of an automobile. The vehicle was stolen from a public garage operated by defendant. The action was commenced as replevin for possession of the automobile but plaintiff later filed a statement of claim in trover alleging conversion. A verdict and judgment for plaintiff were reversed by this court. Citing 38 Cyc. 2008, the court held that * * neither negligence, active or passive, nor a breach of contract, even though it result in the loss of specific property, constitutes the wrong under consideration.” (213 Ill.App. at 363.) We conclude that no cause of action for conversion is pleaded in the case at bar.

Plaintiffs next contend that the amended complaint properly alleges the existence and breach of a trust. In Sears v. First Fed. Sav. & Loan Assn., 1 Ill.App.3d 621, 275 N.E.2d 300, we defined the classification of express and implied trusts. All trusts of every kind are • necessarily included within these two general categories. Plaintiffs concede that we cannot be dealing here with an express trust which must arise “* * ” from the direct and positive action of the parties evidenced by a written instrument * * *.” (1 Ill.App.3d at 627.) A resulting trust is clearly defined and limited by the law to situations in which land or other property. * * is bought with the money of one person and title is taken in the name of another.” (Suwalski v. Suwalski, 40 Ill.2d 492, 495, 240 N.E.2d 677.) This does not exist here.

A constructive trust arises only by operation of law and then, “* # # only when fraud is proved or when advantage is taken of a fiduciary relationship by the dominant party.” (Perry v. Wyeth, 25 Ill.2d 250, 253, 184 N.E.2d 861.) We find no allegations in the amended complaint sufficient to raise an issue of fraud. Fraud cannot be presumed from mere sffence. It must be specifically alleged in any pleading which attempts to charge it. (Atwood Vacuum Mach. Co. v. Continental Casualty Co., 107 Ill.App.2d 248, 266, 246 N.E.2d 882.) There is no specific allegation in the amended complaint concerning the making of any fraudulent misrepresentation.

Furthermore, there is no fiduciary or confidential relationship disclosed from the allegations of the amended complaint. This relationship necessarily involves trust and confidence where one party to a transaction “* * * gains an influence and superiority over the other.” (De Phillips v. Mortgage Associates, Inc., 8 Ill.App.3d 759, 763, 291 N.E.2d 329.) This jurisdiction has consistently held that “the relationship mortgagor and mortgagee does not of itself show the existence of a confidential or fiduciary relationship.” (8 Ill.App.3d at 763.) We con-elude that the record fails to present the essential elements of a trust relationship.

Plaintiffs next contend that they are entitled to recover upon a quasi contractual theory to prevent unjust enrichment of defendants at the expense of plaintiffs. We find a complete and illuminating exposition of the theory of quasi contracts in Highway Comm’rs v. City of Bloomington., 253 Ill. 164. This authority cites many situations in which the courts have granted quasi contractual relief, always based upon principles of equity and good conscience which should operate to prevent one person from retaining money or its equivalent which actually belongs to another. We find no such situation existing here. It affirmatively appears from the allegations of the amended complaint and the exhibits appended thereto that plaintiffs were called upon to pay only the usual and customary charges by Chicago Title for the services they rendered. The only complaint is that after the transaction had been entirely closed, and after the bill had actually been paid, a portion thereof was remitted by the Title Company to Berwyn or Irving as payment for or recognition of their services rendered. None of the three defendants thus has received funds which should equitably be returned to plaintiffs.

Nor can plaintiffs recover upon a theory of conspiracy. The amended complaint alleges simply that the three defendants conspired to deprive plaintiffs and unjustly to enrich the defendants. It has repeatedly been held in Illinois that no cause of action is stated by a pleading which contains this simple type of conclusionary allegation regarding the existence of a conspiracy. There must be independent allegations which would indicate a legal or equitable wrong upon which some liability may be predicated. (Jamieson v. American National Safe Deposit Co., 133 Ill.App.2d 647, 273 N.E.2d 741, 744.) Conspiracy as such is not an actionable civil wrong. Rather, “* * * [i]t is the act performed in pursuance of the agreement that may result in liability.” B. R. Paulsen & Co., Inc. v. Lee, 95 Ill.App.2d 146, 152, 237 N.E.2d 793.

The next and last issue raised by plaintiffs is that of alleged violation of the applicable regulations of the Federal Home Loan Bank Board. See 12 C.F.R., sec. 545.6-10. (See Sears v. First Fed. Sav. & Loan Assn., 1 Ill.App.3d 621, 634, 275 N.E.2d 300, for the applicability and effect of such regulations.) The regulation provides that “* * * [b] orrowers may be required to pay the necessary initial charges in connection with the making of a loan, including the actual costs of title examination * # # ” The regulation also provides * # [tjhat no discount, rebate, or commission on any such charge may be received by any director, officer or employee of a Federal association * * * but such discounts, rebates, or commissions, when allowed as compensation for services performed, may be received and retained by the association.” The regulation further provides that “* * * the association shall furnish the borrower a loan statement showing in detail the charges or fees the borrower has paid or obligated himself to pay to the association or to any other person in connection with such loan # * *.”

Neither party has cited any authority concerning the interpretation of these regulations. Proceeding, therefore, upon analysis of the language thereof, the first portion requires that the borrower pay “the actual costs of title examination.” As regards the relationship between the buyer and Chicago Title, it would seem clear that the words “actual costs” refer to the statement issued by the Title Company reflecting all costs such as release fees, recording charges and the usual and customary fee for the preliminary examination of the title. Any party to a real estate transaction who dealt with Chicago Title would be obliged to pay these same charges. Even persons having an account with the company are initially required to pay these charges in full, as would the ordinary buyer who obtained his own title examination directly from the company.

The proviso in the regulation forbids receipt of discounts or rebates by any director, officer or employee of a Federal association. However, there is a specific provision that such rebates, when allowed as compensation for services performed, “may be received and retained by the association.” This record shows without contradiction that the discount or rebate received by Berwyn and Irving in the case at bar was given to them not only for prompt payment of bills but in consideration of significant services actually rendered by them to Chicago Title as above set forth. Furthermore, the amended complaint and the exhibits appended thereto demonstrate that Berwyn and Irving complied with the regulation by showing in detail the charges or fees which the parties to the transaction were obliged to pay. We find no violation of the applicable regulations by Berwyn or Irving.

The above considerations lead us to conclude that the amended complaint fails to state a cause of action against any of the defendants. We will briefly consider the summary judgments entered in favor of defendants. The issue is whether the entire record presents a genuine issue of material fact. (Ill. Rev. Stat. 1971, ch. 110, par. 57(3); Saghin v. Romash, 122 Ill.App.2d 473, 478, 258 N.E.2d 581.) All three defendants supported their motions with affidavits in proper form duly executed by their corporate officials. Plaintiffs filed no counteraffidavits in opposition. Under these circumstances, the material facts properly set forth in the affidavits on behalf of defendants stand admitted. (Glen View Club v. Becker, 113 Ill.App.2d 127, 136, 251 N.E.2d 778.) Even the allegations of the verified complaint of plaintiffs cannot prevail over the uncontradicted facts set forth in the affidavits presented by defendants in support of their motion for summary judgment. (Fooden v. Board of Governors, 48 Ill.2d 580, 587, 272 N.E.2d 497.) We find no material issue of fact presented by this record. We conclude that the trial court properly entered summary judgment in favor of defendants.

The parties have argued the issue of whether a proper class action is presented by the pleadings. Under the views above expressed, the matter need not be considered. However, since we have held that plaintiffs have no individual cause of action, it would follow necessarily that any attempted class action must fail. See De Phillips v. Mortgage Associates, Inc., 8 Ill.App.3d 759, 764, 291 N.E.2d 329.

It is, therefore, concluded that the trial court properly entered judgment dismissing the suit with prejudice and granting the motions of all three defendants for summary judgment in their favor.

Judgment affirmed.

BURKE, P. J., and EGAN, J, concur.


source: Caselaw Access Project

author: Mr. JUSTICE GOLDBERG.

license: Public Domain

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Ellis M. Henderson, Defendant-Appellant.
    (No. 56991;
    First District (1st Division)
    April 16, 1973.
    James J. Doherty, Public Defender, of Chicago, (Harold A. Cowen, Assistant Public Defender, of counsel,) for appellant.
    Edward V. Hanrahan, State’s Attorney, of Chicago, for the People.
   Opinion by

Mr. JUSTICE GOLDBERG.


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Elijah Daniels, Defendant-Appellant.
    (No. 57500;
    First District (1st Division)
    April 16, 1973.
    James J. Doherty, Public Defender, of Chicago, (Lee T. Hettinger, Assistant Public Defender, of counsel,) for appellant.
    Edward V. Hanrahan, State’s Attorney, of Chicago, (Elmer C. Kissane and John O’Rourke, Jr., Assistant State’s Attorneys, of counsel,) for the People.
   Opinion by

Mr. JUSTICE GOLDBERG.


author: Mr. PRESIDING JUSTICE STAMOS

text:
    The City of Evanston, Plaintiff-Appellee, v. G. & S. Mortgage and Investment Corporation, Defendant-Appellant.
    (No. 57185;
    First District (2nd Division)
    April 17, 1973.

      Samual Morgan, of Chicago, for appellant.
    Jack M. Siegel, Corporation Counsel, of Evanston, for appellee.
   Mr. PRESIDING JUSTICE STAMOS

delivered the opinion of the court:

Defendant G. & S. Mortgage and Investment Corp. (hereinafter referred to as G&S) has been the owner of an apartment building at 1003-1009 Greenleaf Street in Evanston since 1967. On December 9, 1968 plaintiff instituted this quasi-criminal suit against defendant for violation of the Evanston Housing Code and zoning ordinances. Defendant was charged with maintaining three dwelling units more than allowed by the zoning ordinance, and also with maintaining a dwelling unit in the cellar in violation of the Evanston Housing Code. Plaintiff’s complaint alleged that these violations existed from March 19, 1968 through December 1, 1968. A jury trial was waived, and on July 15, 1971 defendant was found guilty and fined $100.

Defendant appealed this judgment directly to the Illinois Supreme Court which has transferred this matter to our court. The issues presented for review are: (1) whether a finding of guilty in prior litigation between the parties bars the litigation of the validity of the zoning ordinance; and (2) whether the zoning ordinance is unreasonable, confiscatory, and deprives defendant of its property without due process of law.

The facts in this case indicate that in 1925 the City of Evanston issued a permit authorizing the construction of a ten unit apartment building at 1003-1009 Greenleaf Street. Twelve units were originally constructed, and prior to January 1969, twelve units and a basement apartment were being utilized. There is no evidence that the twelve unit building ever existed as a legal nonconforming use. In 1968 plaintiff conducted an intensive check for zoning violations in various sections of the city, and as a result, a quasi-criminal complaint was filed against G & S on September 16, 1968. The complaint charged that on or about March 18, 1968, and for a long time prior, G&S violated the zoning ordinance and Housing Code by maintaining three units more than allowed, including a dwelling unit in the cellar.

On November 22, 1968 G&S was found guilty and fined $100. Four days later G&S filed a suit in the Chancery Division of the Circuit Court asking for a temporary restraining order to prevent the city from instituting any further quasi-criminal proceedings based upon the alleged violation. The chancellor denied the restraining order, and this order was affirmed | by the Appellate Court. (G.& S. Mortgage & Investment Corp. v. City of Evanston, 130 Ill.App.2d 370, 264 N.E.2d 740.) G & S did not appeal the judgment of November 22, 1968.

In the instant suit plaintiff charged the same offenses as in the prior suit. Because of the judgment of November 22, 1968, the trial court limited the evidence to whether the same conditions existed on March 19, 1968 which were found to exist on March 18. The trial court ruled i that the unreasonableness and unconstitutionality of the zoning ordinance I was litigated or could have been litigated in the prior suit, and therefore could not be relitigated in this suit.

Defendant was allowed to make an offer of proof to show that (1) twelve units were built in 1925 and there have been no structural changes since that time; (2) public health, safety and welfare would not be promoted by a reduction in the number of apartments; and (3) a reduction in the number of apartments would reduce defendant’s income to a point where defendant would be unable to meet its mortgage and tax responsibilities. The court then found defendant guilty of the offenses charged.

The principal issue on appeal is whether the doctrines of res judicata and collateral estoppel bar further litigation of the validity and constitutionality of the Evanston zoning ordinance. Initially, we must recognize that an action to recover a penalty for violation of an ordinance is a quasi-criminal proceeding. However, it is well settled that, although the suit is criminal in nature, it is civil in form, and civil rules of procedure apply. (City of Chicago v. Ballinger, 45 Ill.App.2d 407, 195 N.E.2d 739; City of Chicago v. Provus, 115 Ill.App.2d 176, 253 N.E.2d 182.) Therefore there is no question that the principles of res judicata and collateral estoppel may be applied in an ordinance violation suit.

Defendant contends that in applying the doctrine of res judicata, a court must ascertain what facts the prior judgment determined. Defendant argues that plaintiff merely introduced a finding of guilty in the prior quasi-criminal action; there were no findings by the court in the prior suit, and there was no report of proceedings. Defendant concludes that, because it is impossible to determine if the validity of the ordinance was in fact litigated in the prior suit, res judicata cannot bar litigation of that issue in the present suit.

The doctrine of res judicata is two-pronged. The first prong is the doctrine of estoppel by judgment. When a cause of action has been litigated in a court of competent jurisdiction to final judgment on the merits, the parties to that action and their privies are thereafter estopped from relitigating in a subsequent action in the same or any other court, not only the issues which were in fact raised and decided in the prior action, but also all other issues which might have been raised in that prior action. (Hoffman v. Hoffman, 330 Ill. 413, 161 N.E. 723; City of Elmhurst v. Kegerreis, 392 Ill. 195, 64 N.E.2d 450.) This “might have been” res judicata dimension exists only under the concept of estoppel by judgment. And estoppel by judgment applies only when both actions are based on the same cause of action. Hoffman v. Hoffman, supra.

The second prong is the doctrine of estoppel by verdict (sometimes called collateral estoppel). When, in a subsequent action on a different cause of action between parties to a prior action on their privies (which prior action had been litigated to final judgment in a court of competent jurisdiction), there arises an issue which was in fact raised and decided in the prior action, then the parties to the subsequent action are estopped by the verdict in the prior action from relitigating that issue in the same or any other court in the subsequent action. (Charles E. Harding Co. v. Harding, 352 Ill. 417; City of Chicago v. Provus, supra.) There is no “might have been” res judicata dimension to the doctrine of estoppel by verdict; the issue in the subsequent action as to which the parties are estopped must in fact have been raised and decided in the prior action. On the other hand, the doctrine of estoppel by verdict applies only when the subsequent action is based on a different cause of action. Charles E. Harding Co. v. Harding, supra.

In the instant case, the subsequent action was based on a different cause of action and not on the same cause of action, because under the City’s zoning ordinance each day’s violation is a separate offense. The offenses being prosecuted in the second action were different and separate offenses from the offenses which had been prosecuted in the first action. As a result, the doctrine of estoppel by judgment with its “might have been” res judicata dimension is inapplicable to this instant second action.

It follows that only the res judicata doctrine of estoppel by verdict could apply in this second action, and then only to issues which in fact had been raised and finally decided in the first action.

In order to determine what those issues were, we must have recourse to the record. (Cohen v. Schlossberg, 17 Ill.App.2d 320, 150 N.E.2d 218; City of Chicago v. Provus, supra.) If the record is silent as to what those issues were and consists merely of a finding and judgment of guilty to the charges in the complaint, then the only inference which may be drawn is that the issues actually raised and decided were the essential issues which plaintiff necessarily had to raise and prove in order for defendant to have been found guilty of the charges in the complaint. No inference can be drawn that affirmative defenses available to defendant were in fact raised, and there can be no inferred estoppel by verdict as to those affirmative defenses which are then later raised in the second action.

The defense that the provisions of the zoning ordinance as applied to the instant premises were unconstitutional is clearly an affirmative defense. It follows that, on the state of this record, the doctrine of estoppel by verdict is not available to plaintiffs.

In addition, the decision of the Appellate Court affirming the denial of G & S’s motion for a temporary restraining order (130 Ill.App.2d 370, 264 N.E.2d 740.) did not determine the constitutionality of the ordinance. The court there held that the city is not estopped from enforcing its ordinances after 43 years of non-enforcement, and that G & S’s estoppel argument did not overcome the presumption of the validity of the ordinance.

In view of the above conclusions, defendant was erroneously barred from contesting the unconstifutionality of the ordinance. We do not believe that we can determine this constitutional issue on the basis of defendant’s offer of proof. Therefore, the judgment of the Circuit Court is reversed and the cause is remanded for a new trial.

Reversed and remanded.

LEIGHTON and HAYES, JJ., concur.

       The 1921 zoning ordinance required a minimum lot area per dwelling unit allowed approximately 10 dwelling units in the building. Under present requirements only 4 dwelling units would be allowed.


author: PER CURIAM.

text:
    The People ex rel. Fenton Dellahoussaye, Petitioner-Appellant, v. John J. Twomey, Warden at Illinois State Penitentiary at Menard, Respondent-Appellee.
    (No. 57194;
    First District (1st Division)
    April 17, 1973.
    Gerald W. Getty, Public Defender, of Chicago, for appellant.
    Edward V. Hanrahan, State’s Attorney, of Chicago, for appellee.
   PER CURIAM.


text:
    The People ex rel. Stephen A. Johnson, Petitioner-Appellant, v. Richard J. Elrod, Sheriff of Cook County, Respondent-Appellee.
    (No. 57336;
    First District (2nd Division)
    April 17, 1973.
    James J. Doherty, Public Defender, of Chicago, for appellant.
    Bernard Carey, State’s Attorney, of Chicago, for appellee.
   PER CURIAM.


text:
    The People of the State of Illinois, Respondent-Appellee, v. Robert Johnson, Petitioner-Appellant.
    (No. 58029;
    First District (2nd Division)
    April 17, 1973.
    Jeffrey J. Kennedy, of Chicago, for appellant.
    Bernard Carey, State’s Attorney, of Chicago, (Kenneth L. Gillis and Bernard S. Armel, Assistant State’s Attorneys, of counsel,) for the People.
   PER CURIAM.


author: Mr. JUSTICE ADESKO

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Edgar Ross, Defendant-Appellant.
    (No. 54857;
    First District (4th Division)
    April 18, 1973.

      James J. Doherty, Public Defender, of Chicago, (Lee T. Hettinger, Assistant Public Defender, of counsel,) for appellant.
    Bernard Carey, State’s Attorney, of Chicago, (Elmer C. Kissane and Robert J. Cohen, Assistant State’s Attorneys, of counsel,) for the People.
   Mr. JUSTICE ADESKO

delivered the opinion of the court:

After a jury trial, Edgar Ross was found guilty of murder and armed robbery. The trial court sentenced the defendant to the Illinois State Penitentiary for a period of not less than 70 years nor more than 100 years. On appeal defendant contends:

(1) He was not proven guilty beyond a reasonable doubt;
(2) The trial court erred by allowing into evidence the police officer’s testimony that the identifying witnesses had made prior out of court identifications of the defendant;
(3) His Fifth Amendment rights were denied when the prosecution introduced evidence that the defendant remained silent at a lineup and the prosecutor also argued to the jury that defendant’s silence was evidence of his guilt;
(4) Prosecutor’s closing argument was so prejudicial as to deny defendant’s right to a fair trial; and
(5) He was denied the effective assistance of counsel.

The facts are as follows:

On January 10, 1969, at approximately 10:00 P.M., two men entered D.D.’s Bar-B-Q at 5430 South State Street, Chicago, Illinois. The shorter of the two men announced a stickup and fatally shot James Blay, a customer, when he failed to move quickly. The taller assailant was in the rear of the restaurant with his gun drawn during the robbery. Gladys Ambrose, manager of the restaurant, identified the defendant as the taller assailant. She testified that defendant wore a mask which hung from the top of his nose and a khaki jacket. She further testified that she was able to identify the defendant because of his physique. Sam Franklin, a customer of the restaurant, testified that the defendant was wearing a green army field jacket.

Defendant and his mother testified that he was home at the time the crime was committed. Maurice Hall, a customer of the restaurant who was present at the robbery, testified that he was unable to identify the defendant as the taller robber. Defendant’s first contention on appeal was that he was not proven guilty beyond a reasonable doubt. The basis for defendant’s contention was that the testimony of the two identifying witnesses was weak and conflicting.

Gladys Ambrose testified that she knew the defendant and had seen him before. Ambrose had ample time to view the defendant at the time of the robbery and was able to identify him because of his physique and the upper part of his face which was not covered by the mask. Sam Franldin also identified the defendant. The defendant was positively identified by two witnesses. Furthermore, the fact that the defendant produced an alibi, supported by one witness does not, in and of itself, constitute reasonable doubt of his guilt. Conflicts in the testimony are to be resolved by the trier of fact who is not obliged to believe the alibi testimony of the defendant and his mother over the positive identification of Ambrose and Franklin. (People v. Setzke, 22 Ill.2d 582, 586, 177 N.E.2d 168.) The trier of fact makes the determination of the witnesses’ credibility and we find that the evidence is not so unsatisfactory as to create a reasonable doubt of defendant’s guilt. That determination will not be disturbed. People v. Holt, 124 Ill.App.2d 198, 201, 260 N.E.2d 291.

Defendant’s second contention on appeal was that the trial court erred by allowing into evidence the police officer’s testimony that the identifying witnesses had made prior out of court identification of the defendant. As the court in People v. Williams, 117 Ill.App.2d 34, 44, 254 N.E.2d 81, stated:

“There was no objection to this testimony at the trial, so any error which may have occurred in its admission is deemed to have been waived. People v. Dial, 95 Ill.App.2d 345, 238 N.E.2d 122; People v. Hester, 49 Ill.App.2d 308, 200 N.E.2d 3. Even if hearsay testimony had been improperly admitted reversal is not warranted where the same matter has been proved by independent and properly admitted evidence. People v. Frenchwood, 28 Ill.2d 139, 190 N.E.2d 767. The identification testimony of the robbery victims in this case was sufficient to render the officer’s testimony mere surplusage, and we find that no prejudice resulted therefrom.”

In the case at bar, the identication testimony of Ambrose and Franklin was sufficient to render the officer’s testimony mere surplusage, and we find that no prejudice resulted therefrom.

Defendant’s third contention on appeal was that his Fifth Amendment rights were denied when the prosecution introduced evidence that the defendant remained silent at a lineup and the prosecutor argued to the jury that defendant’s silence was evidence of his guilty. Both the defendant and Officer Nimocks testified that the defendant was told that he could remain silent at the lineup. This testimony fully explained to the jury that the defendant was instructed to remain silent at the lineup. The trial court improperly admitted evidence of defendant’s silence, but this error did not contribute to the finding of guilty and therefore was not prejudicial error.

Defendant’s fourth contention on appeal was that the prosecutor’s closing argument to the jury deprived him of a fair trial. Defendant alleges that the prosecutor evoked sympathy for the deceased in order to arouse the jurors’ passions against the defendant and that the prosecutor suggested that the defendant intimidated the prosecution witnesses and therefore he should be incarcerated in order to protect the witnesses. It has been said many times that arguments and statements based on the proof or legitimate inferences deducible therefrom do not transcend the bounds of legitimate argument and it is perfectly proper for the prosecutor to dwell upon the evils of crime. (People v. Hairston, 46 Ill.2d 348, 375, 263 N.E.2d 840.) We have read the prosecutor’s closing arguments in their entirety, with particular attention to the isolated excerpts of which complaint is made, and conclude that the bounds of proper argument were not exceeded.

Defendant’s fifth contention on appeal was that he was denied effective assistance of counsel.

“We consider there is no basis to the defendant’s claim that he did not at trial have the effective assistance of counsel. Where, as here, an accused has retained counsel of his own choice this court has observed: ‘[H]is judgment of conviction will not be reversed merely because his counsel failed to exercise the greatest skill or for the reason that it might appear, in looking back over the trial, that he had made some tactical blunder. [Citations.] This court has said that ordinarily a defendant who retains counsel of his own selection is responsible if that counsel does not faithfully serve his interests; that any other rule would put a premium upon pretended incompetence of counsel, for if the rule were otherwise, a lawyer with a desperate case would have only to neglect it in order to insure reversal or vacation of the conviction.’ (People v. Stephens, 6 Ill.2d 257, 259.) Thus, a defendant will not, unless the representation was so inadequate as to reduce a proceeding to a farce (People v. Nelson, 42 Ill.2d 172), be heard to complain of his retained counsel.” People v. Fleming, 50 Ill.2d 141, 145, 277 N.E.2d 872.

We have reviewed the entire record in our consideration of defendant’s claim that he was denied effective assistance of counsel and find that the representation by counsel of defendant’s choice was not of such low caliber as to amount to no representation at all, or to reduce the court proceedings to a farce or a sham. (People v. Hogan, 7 Ill.App.3d 689, 690, 288 N.E.2d 486.) Although defense counsel did not make a motion to suppress the identification testimony, he effectively cross-examined the two identifying witnesses and presented a witness to the robbery who stated that he was unable to identify the defendant. Defense counsel also presented an alibi defense witness. We believe the charge of ineffective assistance of counsel is not supported by the record.

For the reasons given, the judgment of the Circuit Court of Cook County is affirmed.

Judgment affirmed.

BURMAN, P. J., and DIERINGER, J., concur.


author: Mr. PRESIDING JUSTICE BURMAN

text:
    Lawrence E. Richardson, Plaintiff-Appellant, v. Bulk Petroleum Corporation et al., Defendants-Appellees.
    (No. 55863;
    First District (4th Division)
    April 18, 1973.

      A. Denison Weaver, of Chicago, (Noah Walker, of counsel,) for appellant.
    Kirkland & Ellis, of Chicago, (Leo K. Wykell, of counsel,) for appellees.
   Mr. PRESIDING JUSTICE BURMAN

delivered the opinion of the court:

The plaintiff, Lawrence E. Richardson, brought this action in the Circuit Court of Cook County to recover damages for personal injuries sustained while on the premises of a gasoline station allegedly operated by the Bulk Petroleum Company, either by itself or through its agent, James Goodwin. The trial court granted summary judgment in favor of Bulk Petroleum, and the plaintiff instituted this appeal. The sole issue is whether the trial court erred in granting summary judgment for Bulk Petroleum.

In his amended complaint, the plaintiff alleged that on January 11, 1970, he entered the gasoline station in question, located at 6350 South Stony Island Avenue in the City of Chicago, with the intent of purchasing a package of cigarettes. While on the premises he was struck by an employee of the station and sustained injuries which resulted in the loss of an eye. It was undisputed that the premises were owned by Bulk Petroleum and leased to James Goodwin by a written agreement for a term which ran from August 1, 1967, to July 31, 1968. At the time of the incident which resulted in the plaintiff’s injuries this term had expired, and Goodwin continued to occupy the premises on a month-to-month basis as provided for in the written agreement.

The written agreement, a copy of which was attached by Bulk Petroleum to its motion for summary judgment, contained provisions usual in leases of commercial real estate, including the following, which the plaintiff urges are particularly relevant to this appeal:

“3. Since the rent payable depends on the amount of sales on the demised premises, Lessee agrees to keep leased premises open for operation for such hours and days as are necessary to serve and develop the business available, and that Lessee will use his best efforts to promote sales in a good and business-like manner.
4. Lessee shall furnish a daily sales report for all gasoline, cigarettes, and self-liquidating premiums. Lessor shall have the right to audit the books of Lessee from time to time for the purpose of ascertaining Lessee’s volume of sales and to examine the premises and property thereon and his compliance with the terms of this lease.
5. As an additional consideration for the demise of said premises, Lessee agrees to pay daily, at the time and manner for rent payments, for all petroleum products and other items purchased from Lessor when such petroleum products and other items are resold by Lessee.
e # #
11. Upon Lessee’s default or failure to perform any of the covenants of this lease, Lessor may forthwith without notice declare this lease at an end, and immediately re-enter and repossess said premises, equipment and fixtures.”

Also in the record is the deposition of John K. Williams, a sales supervisor of the Gulf Oil Company, the parent corporation of Bulk Petroleum. Williams testified that at the time of the incident it was the practice for a “sales supervisor” to visit gasoline stations leased by Bulk Petroleum, including the one leased to James Goodwin, every week to ten days. The duties of the sales supervisor were to promote the sale of Gulf products by the station operators and to “counsel” the operators with respect to violations of their leases. If the sales supervisor found that a station was not being maintained in accordance with the standards set by Gulf, he and other office personnel had “greater counselling” with the operator. If this counselling did not produce results, Gulf would seriously consider terminating the operator’s lease.

On appeal, the plaintiff contends that the frequent visits of the sales supervisor, coupled with the power of Bulk Petroleum to terminate Goodwin’s lease without notice if he did not perform his covenant to use his best efforts to promote sales, amounted to such close control over the actual method of operation that a question is raised as to whether Goodwin was in fact the agent or employee of Bulk Petroleum.

Bulk Petroleum opposes this and argues that its relationship with Goodwin was nothing more than that of lessor and lessee of real property and the improvements thereon.

It is a well established principle of the law of landlord and tenant that where a landowner has turned over possession and control of demised premises to a tenant, the landlord is not liable to a third person for injuries sustained as a result of the alleged negligence of the tenant or the tenant’s employees. In Elbers v. Standard Oil Co., 331 Ill.App. 207, the court held as a matter of law that where the lessor of a gasoline station had no control over or possession of the premises upon which an invitee was injured there was no liability on the part of the lessor. The court said:

“We have read the cases cited by the parties and agree with defendant that the courts have uniformly held that the law of landlord and tenant applies wherever the station operator is in fact an independent contractor.”

331 Ill.App. at 222.

In the present case it is undisputed that Goodwin was in complete possession of the station facilities. The pivotal question is whether he or Bulk Petroleum was in control of them at the time that tire plaintiff was injured. The plaintiff emphasizes the provisions in the written agreement, which we have set forth, in an effort to show that the relationship between Goodwin and Bulk Petroleum was more than that of an ordinary lessor and lessee. After reviewing these provisions, as well as the remainder of the agreement, we disagree. It is a common practice for the rent on real estate which is to be used for sales to be proportionate to the volume of business transacted there, and when such a provision is present, it is usual for the agreement to contain some provision to the effect that the lessee will use his best efforts to maintain and promote the business upon which the rent is based. It is customary for leases of this type to require the lessee to report the volume of his business to the lessor periodically so that the rent may be set accordingly and for the lessor to retain certain rights of inspection in order to verify the accuracy of such reports. Additionally, a clause allowing the lessor to declare the lease terminated and reenter the demised premises upon the lessee’s breach of one or more of the covenants undertaken by him is virtually a standard provision in all leases. Therefore, the agreement between Goodwin and Bulk Petroleum is not unusual, and we see nothing in it which would justify a departure from the general rule enunciated above.

The plaintiff also argues that the role of the sales supervisor was such that Bulk Petroleum, acting through him, maintained effective control over the way in which the station operators carried on their businesses. In his deposition Williams testified that the main function of the sales supervisors was to promote the sale of Gulf products and that they carried this out by finding dealers, placing them in stations and counselling them on “good business practices, management, selling [and] merchandising.” It is likely that this counselling did have some effect upon the way in which the dealers operated their businesses. Presumably they would have been disposed to follow the advice of the sales supervisors, which was intended to benefit all parties concerned by increasing sales. We do not believe, however, that this is sufficient to raise a question of agency or employment when considered in light of the entire record. For example, it is undisputed that Goodwin had complete discretion in the hiring and firing of his employees. He did not have to obtain permission from Bulk Petroleum or Gulf to hire a particular person and did not have to provide any information about the persons that he hired. He was responsible for his employee’s payroll, including withholding, workmen’s compensation and social security taxes.

He alone paid the sales tax on merchandise sold at the station. He determined such things as whether his employees would wear uniforms I and he procured them at his own expense. He alone was responsible for the cleanliness and maintenance of the station. In short, Goodwin had all of the rights and prerogatives normally ascribed to independent contractors, and these were not limited in any way by Bulk Petroleum or Gulf.

For these reasons we conclude that the trial court was correct in finding that the present case involves no question of agency and in granting summary judgment for defendant Bulk Petroleum Company. The judgment is affirmed.

Affirmed.

ADESKO and DIERINGER, JJ., concur.


text:
    Maywood-Proviso State Bank, Plaintiff-Appellee, v. Peter A. Cokinis, d/b/a Bud Cokinis Meats, Defendant-Appellee—(George B. Javaras et al., Respondents-Appellants.)
    (No. 56231;
    First District (4th Division)
    April 18, 1973.

      Frederick S. Stein, of Chicago, (Howard C. Emmerman, of counsel,) for appellants.
    Giachini and Murphy, of Maywood, (Michael Cooper, of counsel,) for appellee Maywood-Proviso State Bank.
    Moltz & Wexler, of Chicago, (Leon C. Wexler, of counsel,) for appellee Peter A. Cokinis.
   Mr. JUSTICE ADESKO

delivered the opinion of the court:

This is an appeal by respondents, George B. Javaras and Josephine Skach, from an order of the Circuit Court of Cook County declaring void the Sheriff’s sale of June 21, 1971, and the interest in a land trust purchased by respondents at the sale. The sole issue on review is whether the trial court erred in vacating its order of April 23, 1971, and declaring void the Sheriff’s sale of June 21, 1971. The facts are as follows:

On August 25, 1965, Peter and Isabelle Cokinis placed their home, which was valued at $45,000 and in which they had an equity of $28,500 in a land trust at the Maywood-Proviso State Bank. (Hereinafter the “Bank”.) On that date they borrowed money from the Bank and assigned the beneficial interest in the land trust to the Bank as security for the loan.

On September 18, 1970. the Bank made another loan to Peter Cokinis, individually, of $1,605.00. On December 28, 1970, the loan to Peter Cokinis was in default and the Bank confessed judgment against him for $1,714.73, and notified him of the judgment. The Bank then filed a Citation to Discover Assets directed against itself individually and as trustee of the Cokinis Trust and to produce all records relating to the trust. Notice of the Citation Proceedings were served upon Peter Cokinis, but not upon his wife.

A hearing, which was not attended by Peter Cokinis or Isabelle Cokinis, was held on April 23, 1971, and the court entered an order on that date directing that the beneficial interest in the trust be assigned to the Sheriff to be sold and that the proceeds were to be applied toward satisfaction of the judgment against Peter Cokinis.

The sale was conducted, though no publication was made and no service of notice was had upon Peter Cokinis or Isabelle Cokinis, and respondents Javaras and Skach were the only bidders with a bid of $1,845.41. Javaras and Skach received an assignment of the beneficial interest in the trust from the Sheriff, but the Bank, as trustee refused to accept assignment by the Sheriff to Javaras and Skach.

Javaras and Skach then filed a petition for a rule to show cause why the Bank should not be held in contempt for failure to comply with the order of April 23, 1971, by not honoring the assignment of beneficial interest to Skach and Javaras.

Peter and Isabelle Cokinis then filed a petition pursuant to Section 72 of the Civil Practice Act requesting that the order of April 23, 1971, be vacated and that the Sheriff’s sale be voided and that Peter and Isabelle Cokinis be confirmed as beneficiaries of the trust. The Bank also filed a petition requesting the court to void the sale or to refuse to confirm it.

On July 26, 1971, after a full hearing attended by all of the parties, the court entered an order holding that the sale was a judicial sale requiring confirmation by the court; that the order of April 23, 1971, was void as to Isabelle Cokinis because she was neither a party nor a judgment debtor; that the judgment which was the basis for the sale had been statisfied by a written agreement to pay; that the sale price was so inadequate that it shocked the conscience of the court; and that the judgment had been released and satisfied by payment. The court vacated the order of April 23, 1971, and voided the assignment of the beneficial interest to Javaras and Skach. This appeal by respondents followed.

Respondents contend on appeal that the trial corut erred in vacating its order of April 23, 1971, and in voiding the Sheriff’s sale of June 21, 1971. Respondents maintain that the trial corut erred in determining that the sale of June 21, 1971, was a judicial sale requiring the court’s approval and that the court further erred in denying such approval and voiding the sale.

Rather than being a judicial sale requiring court approval, respondents contend that the sale in the instant case was more in the nature of an execution sale not requiring court approval and cite Craddick v. Cotta Gear Co., 306 Ill.App. 459, 28 N.E.2d 734, in support of their contention. In Craddick, however, the Illinois Appellate Court discussed the differences between a judicial sale and an execution sale and noted:

“The chief differences between execution and judicial sales, are, that the former are based on a general judgment for a certain amount of money, whffe the latter are based on an order to sell specific property; the former are conducted by an officer of the law in pursuance of the directions of a statute, while the latter are made by the agent or officer of a court in pursuance of the directions of the court; in the former, the sheriff is the vendor, while in the latter, it is the court; in the former, the sale is usually complete when the property is struck off to the highest bidder, while in the latter, it must be reported to and approved by the court.”

In the case at bar, as the trial court directed, the Sheriff as its agent to sell specific property, rather than the Sheriff proceeding to seH property pursuant to Statute, for claims arising from a general judgment, it would appear that the sale in the instant case was a judicial sale within the definition of the Craddick case.

It is weU settled that a judicial sale is not complete until it has been approved by the trial court. (Berber v. Hass, 57 Ill.App.2d 109, 207 N.E.2d 96.) Trial courts have broad discretion in approving or disapproving sales made at their direction and unless an abuse is clearly shown in the exercise by the court of this discretion, a court of review wiU not interfere. (Blancett v. Taylor, 6 Ill.2d 434, 128 N.E.2d 916.) One instance when a court may refuse to confirm a sale is where the sale price is so inadequate as to shock the conscience of the court. (Levy v. Broadway-Carmen Bldg. Corp., 366 Ill. 279, 8 N.E.2d 671.) In Moeller v. Miller, 315 Ill. 454, 146 N.E. 449, which respondents themselves cite in an effort to demonstrate that the sale in the instant case was an execution sale, and not a judicial sale requiring court approval, the court held that even in a nonjudicial sale not requiring confirmation, it would still be the duty of the court to set aside a sale for gross irregularity depriving the owner of valuable rights.

In the instant case the trial court held that the sale in question was1 a judicial sale requiring the approval of the court. The trial court found that under the attendant circumstances, the price bid by respondents was so “* * ” grossly inadequate to such a degree as to shock the conscience of the court * e #.” The trial court concluded that “* * # because of many irregularities and the gross inequity and injustice done defendant * * * the sale of June 21, 1971 is to be vacated and set aside.”

Our examination of the record reveals that the court did not abuse its discretion in so finding and the judgment of the Circuit Court of Cook County will therefore be affirmed.

Judgment affirmed.

BURMAN, P. J., and DIERINGER, J., concur.


text:
    Joseph Perry, Plaintiff-Appellee, v. Ronald T. Schwed, Defendant-Appellant.
    (No. 56408;
    First District (4th Division)
    April 18, 1973.

      Mitchell Kilanowski, of Chicago, for appellant.
    Mathew K. Szygowski, of Bianco & Szygowski, of Chicago, for appellee.
   Mr. PRESIDING JUSTICE BURMAN

delivered the opinion of the court:

This is an appeal from a judgment of the Circuit Court of Cook County entered in favor of plaintiff in the amount of $8,900. Plaintiff sued defendant upon an employment contract and a judgment note to recover the value of a security bond put up by plaintiff for defendant under the employment contract.

On January 10, 1958, plaintiff and defendant entered into an employment contract. By the terms of the contract, plaintiff, an experienced and licensed bondsman, was to put up a $10,000 security bond with the Clerk of the Municipal Court to enable the defendant to operate as a bondsman under plaintiffs license. Defendant was to engage in the bail bond business and share one-half of his profits with the plaintiff. The $10,000 security bond and interest thereon was to remain the property of the plaintiff. The plaintiff did put up two $5,000 U.S. treasury notes with the Clerk of the Municipal Court as a bond for the defendant’s license. On January 27, 1958, the defendant executed a judgment note and a receipt securing the two $5,000 notes. The receipts stated that the security bonds were the sole property of the plaintiff, and the defendant agreed to return the security bond on demand. The defendant signed the judgment note as security thereof.

On April 25, 1959, by court order, the authority of plaintiff to operate as a bondsman was terminated because of many bond forfeitures outstanding. Plaintiff testified that he attempted to obtain the release of the $10,000 security bond, but was unable to do so because of forfeitures on bonds which the defendant had written. The defendant testified that the Clerk refused to release the bonds because of forfeitures on bonds that the plaintiff had written. Plaintiff filed this action, seeking the value of the security bond from the defendant. The trial court entered judgment for the plaintiff in the amount of $8,900 (the value of the security bond was $9,200 and the defendant had, at the time of the contract, paid $300). The defendant appeals, arguing that the plaintiff has not performed the contract and therefore cannot recover under the terms of the contract.

The $10,000 security bond filed with the Clerk of the Municipal Court was, as far as the Clerk was concerned, the property of the defendant. The defendant was the only person who could take the interest coupons from the bond and was the only person to whom the bond could be returned. The contract between the plaintiff and the defendant was not binding upon the Clerk who held the security bond for the defendant’s license. The record is unclear as to the reason why the Clerk refused to release the security bond. Plaintiff testified that the Clerk would not release the security bond because of forfeitures on the bonds that the defendant had written. The defendant, however, testified that the Clerk would not release the security bond because of forfeitures on bonds that the plaintiff and other employees of the plaintiff had written.

The contract between the plaintiff and defendant, although not binding upon the Clerk of the Municipal Court, was binding upon the parties to the contract. The contract, receipt and judgment note were all part of the same transaction and must be construed as one document. (Rudolph v. O. D. Jennings & Co., 38 Ill.App.2d 92, 186 N.E.2d 80.) It is clear that the parties intended that the security bond was to remain the property of the plaintiff and that the defendant was to return the security bond upon demand. The defendant gave a receipt and judgment note as security for his pledge to return the security bond. Plaintiff is entitled to the return of the bond or funds in like amount to the extent that he was not at fault for the Clerk’s Office holding the security bond.

From the present record, it is impossible to determine the reason that the Clerk is holding the security bond. The case is, therefore, reversed for a hearing to determine the exact reason why the Clerk of the Municipal Court, now the Clerk of the Circuit Court of Cook County, is holding the security bond in question. If the only hold on the security bond is the forfeitures on bonds written by the defendant, then the plaintiff is entitled to the judgment. If, however, the funds are being held because of forfeitures on bonds the plaintiff and other members of the plaintiff’s staff have written, he is entitled to a judgment only in the amount of the security bond, less the amount of the forfeitures he incurred.

For the foregoing reasons, the judgment of the Circuit Court of Cook County is reversed for further proceedings not inconsistent with this opinion.

Judgment reversed and cause remanded.

DIERINGER and JOHNSON, JJ., concur.


author: Mr. JUSTICE DIERINGER

text:
    The People ex rel. Edward J. Barrett, Petitioner-Appellee, v. The Board of Commissioners of Cook County et al., Respondents-Appellants.
    (No. 56816;
    First District (4th Division)
    April 18, 1973.

      Edward V. Hanrahan, State’s Attorney, of Chicago, (Vincent Bentivenga, Jr., and Henry A. Hauser, Assistant State’s Attorneys, of counsel,) for appellants.
    Kirkland & Ellis, of Chicago, (Don H. Reuben, Lawrence Gunnels, and James C. Munson, of counsel,) for appellee.
   Mr. JUSTICE DIERINGER

delivered the opinion of the court:

On June 8, 1971, Edward J. Barrett, County Clerk of Cook County, filed a petition in the Circuit Court of Cook County for a writ of mandamus alleging his salary as County Clerk had been reduced by the County Board during his term of office, in violation of Article X, section 10, of the Illinois Constitution of 1870. He petitioned the court to direct the Board of Commissioners to pay him at the rate adopted by the Board prior to the beginning of his term of office.

On June 16, 1971, on motion of the petitioner, the court entered an order appointing the law firm of Kirkland & Ellis as a special State’s Attorney to prosecute the lawsuit on behalf of Mr. Barrett, pursuant to chapter 14, paragraph 6, of the Illinois Revised Statutes, on the grounds the elected State’s Attorney was officially committed to represent the County Board and had issued a legal opinion that the reduction of the County Clerk’s salary was correct as a matter of law.

The issues on appeal are whether the trial court’s appointment of a special State’s Attorney to represent the petitioner was proper; whether the trial court had jurisdiction to entertain the petition for fees filed by the special State’s Attorney more than 30 days after an adjudication on the merits; and whether the award of fees was reasonable and in conformity with the statute.

The trial court granted a motion by the petitioner for judgment on the pleadings and issued a writ of mandamus on August 5, 1971. On September 7, 1971, Kirkland & Ellis petitioned for an award of fees and expenses incurred in prosecuting the cause.

On September 21, 1971, the Board answered the petition for fees, alleging the appointment of the special State’s Attorney was improper, and the court lacked jurisdiction to entertain the petition for fees because it was not filed within 30 days of the issuance of the writ.

The trial court heard arguments on the petition for fees and held that no issue involving the propriety of the court’s appointment of the special State’s Attorney could be raised because the Board had failed to make an objection at the appointment hearing, the court had jurisdiction to entertain the petition for fees, and $50 per hour was a reasonable fee for the services of the special State’s Attorney.

On October 6, 1971, the court entered an order directing the county to pay $3,500 for 70 hours of professional services and $232.77 for expenses incurred in the prosecution of the suit to Kirkland & Ellis. The Board of Commissioners appeals from this order.

The Board’s first contention is the trial court erred in appointing a special State’s Attorney in this situation. It argues' it was not established the State’s Attorney had a duty to represent Mr. Barrett in the lawsuit because the suit was not one which could be brought in his official capacity; therefore, the question of conflict of interest never arose.

The record shows the Board failed to object to the appointment of a special State’s Attorney either at the appointment hearing or during the mandamus proceeding itself. The law is well settled that failure to make a timely objection in the trial court constitutes a waiver of the right to review on appeal. (Department of Public Worlds and Buildings v. Todaro (1967), 90 Ill.App.2d 245.) Even assuming there was no waiver, the appointment was proper. The public office holder’s right to compensation is not based on any personal or contract rights but attaches to the office. Kelly v. Chicago Park District (1951), 409 Ill. 91.

Secondly, the Board contends the trial court lacked jurisdiction to entertain the petition for fees and expenses, citing the general rule that the jurisdiction of the trial court extends to all matters put in issue by the pleadings, and such jurisdiction ceases 30 days after the entry of the final judgment or decree.

The rule is correctly stated, but its application favors the petitioner because the issue of fees was not determined by the pleadings. The trial court loses jurisdiction only over those elements of a suit that are finally determined and not over elements of the suit not related to the writ itself.

It is clear the duties of the special State’s Attorney extended to whatever appeals the Board might file, and it was necessary to wait 30 days following tire issuance of the writ to determine if there would be an appeal; therefore, the special State’s Attorney could not determine its fees or expenses until the expiration of that period.

Finally, the Board contends the amount of fees awarded by the trial court was unreasonably high and not in accord with chapter 14, paragraph 6, of the Illinois Revised Statutes. The Board argues the court is not free to exercise discretion in awarding fees because the statute requires the special State’s Attorney to be paid at the same rate of compensation as the State’s Attorney.

The statute provides for the appointment of the special State’s Attorney in two situations: “Whenever the attorney general or state’s attorney is sick or absent, or unable to attend or is interested in any cause or proceeding, civil or criminal, which it is or may be his duty to prosecute or defend, * * * and in case of a vacancy of more than one

year occurring in any county in the office of State’s Attorney, by death, resignation or otherwise.” In the latter situation the statute provides the acting State’s Attorney shall be paid the “same compensation as provided by law for the State’s Attorney of the county, apportioned as to the time of service,” but does not provide for compensation in the first situation.

In light of this omission practical considerations support a construction of the statute which leaves the question of fees to the discretion of the trial court. When an acting State’s Attorney is appointed to fill a vacancy, he takes over the entire resources of the office, including staff, clerical personnel, and offices. On the other hand, a special State’s Attorney must use his own staff and office resources in the completion of the assigned task. As a result, the net salary of the State’s Attorney apportioned for time of service may be insufficient to pay for both the time and overhead expenses of a private attorney.

The Board primarily relies on two cases (Aiken v. County of Will (1943), 321 Ill.App. 171, and Lavin v. Board of Commrs. (1909), 151 Ill.App. 236 (aff'd 1910), 245 Ill. 496), but neither supports its contention. In Aiken, a special State’s Attorney argued he was entitled to be paid the salary of the elected State’s Attorney for the fuU time between his appointment and its termination. The court rejected this contention, holding that a special State’s Attorney could be compensated only for actual time of service, but did not indicate what rate would be applied. In Lavin, the question was whether a special State’s Attorney was entitled to any compensation. The court stated he was entitled to compensation and should be “placed upon the same footing with regard to fees and salaries as the State’s Attorney regularly elected,” but specifically declined to determine the extent of the compensation.

We hold that whether the special State’s Attorney has been “placed upon the same footing with regard to fees and salaries as the State’s Attorney regularly elected,” and whether, in addition, the overhead expenses of the special State’s Attorney should be considered when setting the hourly rate, is a matter for the determination of the trial judge. We find no error in the court’s determination of the total fee.

For these reasons, the judgment of the Circuit Court of Cook County is affirmed.

Affirmed.

BURMAN, P. J., and ADESKO, J., concur.


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Easton Hall, Defendant-Appellant.
    (No. 57405;
    First District (4th Division)
    April 18, 1973.

      Robert B. Rosen, of Chicago, for appellant.
    Bernard Carey, State’s Attorney, of Chicago, (Kenneth L. Gillis and Nicholas J. Motherway, Assistant State’s Attorneys, of counsel,) for the People. j
   Mr. JUSTICE ADESKO

delivered the opinion of the court:

Defendant was found guilty of robbery in a jury trial and sentenced by the trial judge to serve eight to fifteen years in the Illinois State Penitentiary. On appeal defendant contends that he was not found guilty beyond a reasonable doubt and that prejudicial and inflammatory remarks in the closing arguments of the prosecutor denied him a fair trial.

The prosecuting witness, Joseph Leopoldo, testified that on February 20, 1971, about 8:00 P.M., he was in the vicinity of Madison and Racine Streets after visiting a friend. As he was walking west on Madison Street, west of Racine, he was grabbed by two men, thrown to the ground, and robbed of his wallet, containing five twenty-dollar bills.

Officer Robert Murray of the Chicago Police Department testified that he was on duty on February 20, 1971, at about 8:00 P.M. in the vicinity of Madison and Racine; that as he arrived at said intersection, he saw two men hovering over Joseph Leopoldo; that he saw the defendant with one knee on Leopoldo, who was lying on the sidewalk; and that he saw defendant take a wallet from Leopoldo, get up and walk away with the other man who was with him. After observing this, the officer got out of his unmarked car and walked over to Leopoldo, who told him that they took his money and wallet.

Officer Murray followed the defendant who crossed Madison going northbound, and the other man went southbound. When Murray announced his office, the defendant kept walking. He walked faster, almost at a trot. When Murray grabbed his shoulder and put a gun in his back, the defendant threw a wallet to the curb. The officer searched the defendant and found five twenty-dollar bills in the defendant’s waistband. The officer then found the wallet, which contained various cards bearing the name of Joseph Leopoldo.

Defendant maintains that Murray testified that he saw the defendant take the wallet, and thereafter the defendant and the other assailant walked towards the officer and passed in front of the officer’s car. The officer did not stop him or say anything to him. The record shows that the officer was talking to Leopoldo at the time. Furthermore, the defendant remained within the officer’s view and was apprehended shortly thereafter.

Defendant argues also that Murray made no attempt to stop the defendant for questioning and bring him back to where Leopoldo was located. In his brief defendant says: “The fact that Murray made no attempt to do so certainly vitiates his testimony that he saw the defendant take a wallet from Leopoldo’s prostrate body.” We do not agree. We are mindful of the fact that the defendant was arrested near the site of the crime. The victim’s stolen wallet was found near the defendant within a short time after the robbery. The money in the wallet, five twenty-dollar bills, was found on the defendant. There is sufficient evidence from which the jury and the trial judge could find beyond a reasonable doubt that the defendant took part in this robbery.

Defendant also maintains that the prosecutor’s references to “crime in the streets” constituted an emotional appeal to the jurors designed to arouse their prejudice against the defendant, denying the defendant his right to a fair trial. In the first place, there was no objection made at the trial to this portion of the prosecutor’s argument, now claimed to be unfair. We agree that prejudicial remarks by counsel should be considered by the courts of review despite their not having been objected to at the trial. Illinois Supreme Court Rule 615 provides that on appeal:

“Plain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the trial court” Ill. Rev. Stat, ch. 110A, par. 615(a) (1971).

The inflammatory remarks in closing argument to the jury, which defendant claims on appeal constituted reversible error, were as follows:

’We enforce the laws in the courtroom so people can walk the streets and not have to worry about being set upon.”
# # #
“A crime happens every day, it’s what makes the streets of our community unsafe to walk on at night.”
# # #
“There is a crime called robbery. Citizens of this community should be allowed to walk the streets of their community and not have to worry about such conduct and if other people in his community don’t care to abide by that rule they are punished. This is what we are here for today.”
# # #
“Based on that evidence we are asking you to find this man guilty of robbery as charged in the indictment. If you want to condone this kind of conduct in your community then you can find him not guilty.”
# # #
“* * * if you want to condone this kind of conduct in your community then you can find him not guilty.”

Defendant contends that “law and order” and “crime in the streets” are emotional issues affecting the public and were not issues involved in this appeal. As we have said in People v. Olivier, 3 Ill.App.3d 872, 874:

“It is also clear that the prosecution may not bring forth evidence which has no tendency to prove the issue being tried, but only serves to cause the jury to believe a defendant to be a bad person, and hence likely to be guilty of the crime charged. Evidence of this nature has been repeatedly and consistently condemned. (People v. Lewis, 313 Ill. 312, 145 N.E. 149; People v. Newman, 261 Ill. 11, 103 N.E. 589.) On the other hand, evidence which is relevant and otherwise admissible need not be excluded because it may also have a tendency to prejudice a defendant. (People v. Jackson, 22 Ill.2d 382, 176 N.E.2d 803.) A reading of all the testimony in the record in the case at bar leads us to the conclusion that there is no merit to defendant’s contention.”

In People v. Murdock, 3 Ill.App.3d 746, 753, the defendant on appeal objected to the characterization of him and his associates as “bums” and “thugs.” The Appellate Court said:

“The rule is well established that the prosecuting attorney may reflect unfavorably upon an accused, denounce his wickedness, dwell on the evil results of crime and even indulge in invective in urging a fearless administration of the law, when such is based upon the evidence and legitimate inference drawn therefrom.”

We find no prejudice resulting to the defendant in the instant case. The argument of the prosecutor was a “very mild, almost philosophical, comment about the counsequences and results of crime.”

For the foregoing reasons the judgment of the Circuit Court of Cook County is hereby affirmed.

Judgment affirmed.

BURMAN, P. J., and DIERINGER, J., concur.


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Freddie L. McDonald, Defendant-Appellant.
    (No. 57543;
    First District (4th Division)
    April 18, 1973.
    James J. Doherty, Public Defender, of Chicago, withdrew for appellant.
    No appearance for the People.
   Mr. JUSTICE ADESKO

delivered the opinion of the court:

Defendant, Freddie L. McDonald, was charged with the offense of armed robbery. Represented by privately retained counsel he pleaded guilty to the offense and was sentenced to serve not less than five, nor more than eight years in the Illinois State Penitentiary.

Defendant, represented by appointed counsel, filed a notice of appeal. Appointed counsel now seeks to withdraw and has filed a brief in support of his motion to withdraw, pursuant to Anders v. California, 386 U.S. 738, 18 L.Ed. 493, 87 S.Ct. 1396, and states from a review of the record the only basis for an appeal could be (1) whether defendant was properly admonished by the trial court before his guilty plea was accepted and (2) whether the sentence imposed was excessive. Appointed counsel concludes that defendant was properly admonished of his rights before knowingly and voluntarily entering a plea of guilty and that the sentence imposed was not excessive. Appointed counsel having found no meritorious grounds for appeal thus seeks to withdraw.

Defendant received a copy of his appointed counsel’s motion to withdraw and a copy of the supporting brief. Defendant was also sent a letter by this court notifying him of the motion and giving him an opportunity to file any points he might choose to support his appeal within 30 days from the date of the letter. Defendant failed to respond.

Our examination of the record in the instant case reveals the trial court, before accepting defendant’s guilty plea, admonished him as to the nature of the charge against him; that the minimum and maximum sentences are prescribed by law; that defendant had the right to plead not guilty or to persist in his guilty plea; that by pleading guilty he waived his right to a trial by jury and the right to be confronted with the witnesses against him; and asked whether any threats or duress had been exercised upon defendant. The trial court further confirmed the terms of the plea agreement on the record and heard a factual basis for the plea before entering a final judgment. It is clear defendant, who was represented by privately obtained counsel was properly admonished before his guilty plea was accepted by the trial court.

The record in the case at bar further reveals that after the trial court accepted defendant’s plea of guilty and after the court conducted a hearing in mitigation and aggravation, the trial court sentenced defendant to a term of not less than five nor more than eight years in the Illinois State Penitentiary. In view of the fact defendant had been convicted of two prior felonies, it cannot be said the sentence imposed was excessive.

After examining the points raised by appointed counsel’s brief as well as the entire record before this court, we are compelled to conclude this appeal would be wholly frivolous and without merit. The motion of appointed counsel to withdraw from the instant appeal is therefore allowed and the judgment of the Circuit Court of Cook County is hereby affirmed.

Judgment affirmed.

BURMAN, P. J., and DIERINGER, J., concur.


text:
    666 North Orleans, Inc., Plaintiff-Appellee, v. Larry Kors et al., Defendants-Appellants. Henry J. Cleys et al., Cross-Plaintiffs-Appellees, v. Larry Kors et al., Cross-Defendants-Appellants.
    (No. 57878;
    First District (4th Division)
    April 18, 1973.

      Levin and Berger, of Chicago, (Burton Berger, of counsel,) for appellants.
    Brown, Stine, Cook & Hanson, of Chicago, (John H. Hanson, of counsel,) for appeUees.
   Mr. JUSTICE ADESKO

delivered the opinion of the court:

On November 30, 1971, 666 North Orleans, Inc., (hereinafter “666”), lessee for the premises at 664-672 N. Orleans, Chicago, Illinois, filed a complaint for declaratory judgment to declare the respective right, title and interest of Larry Kors and Arrow Messenger Services, Inc., (hereinafter "Kors”), as contract purchasers, and Henry J. Cleys and Gladys Cleys (hereinafter “Cleys”), as contract sellers, to said real estate in order that the plaintiff might pay rent to the rightful party and thereby remain in possession of the premises. The Cleys filed a cross-complaint alleging that Kors defaulted under the Articles of Agreement of Warranty Deed; that the Cleys perfected a forfeiture of the interest of Kors; and that therefore the Cleys are the legal owners of the premises entitled to receive the rent from the plaintiff. Kors filed an answer alleging that the Cleys had waived any default; that the alleged forfeiture was legaUy ineffective; and that Kors was entitled to receive the rent from the plaintiff. The trial court held that Kors lost all right, title and interest in the subject real estate; that the Cleys are the owners in fee of the subject premises; and that 666 is in possession as a tenant of the Cleys.

On appeal Kors contends (1) that the Cleys, as contract sellers, did not properly and effectively terminate all right, title and interest of Kors as contract purchaser; and (2) that the contract sellers must file a forcible detainer action to obtain possession of the premises from the contract purchaser.

The parties entered into a Stipulation of Facts, which recited that the Articles of Agreement for Warranty Deed were entered into on August 19, 1963, between the Cleys as contract seUers and Larry Kors as contract purchasers, for the sale of the premises at 664-672 N. Orleans Street, Chicago; that the Agreement provided for monthly installment payments, for the payment of all subsequent real estate taxes and special assessments by contract purchasers, and for the maintenance of fire and extended coverage and public liability insurance by contract purchasers at purchasers’ cost. It was also stipulated that the general real estate taxes for the year 1969 were unpaid, sold, and not redeemed; that in recent years the tax bills were sent directly to Kors by the Collector and the Cleys had no actual notice of the payment or nonpayment of taxes when due; that on October 15, 1971, the Cleys redeemed the 1969 real estate taxes; and that on October 26, 1971, the Cleys paid both installments and accrued interest due on the 1970 real estate taxes.

It was also stipulated that because of the failure of Kors to pay the insurance premiums on the premises, the insurance was cancelled in June, 1971; that the Cleys obtained their own insurance coverage in July, 1971; and that Kors obtained insurance coverage on January 24, 1972.

It was also stipulated that on November 3, 1971, Kors tendered the Cleys’ checks for the September and October installments due upon the contract and also a check in substantially the amount paid by the Cleys to redeem the 1969 real estate taxes, which tender was refused.

It was also stipulated that Arrow Messenger Services, Inc. was a defunct corporation, has been dissolved, and has no interest in the premises.

Kors states that the Stipulation of Facts shows that although the monthly payments of $250 due from Kors under the Articles of Agreement for Warranty Deed were frequently late, the Cleys accepted said checks through August 1971 and that on occasion Kors did not pay the real estate taxes when due, but did pay the same subsequently. He argues that although the contract sellers knew of the late payments and failure to pay the taxes when due, they failed to serve notice upon the contract purchaser requiring the contract purchaser to make his payment on time and, therefore, the Cleys have waived the prompt payment provision of the Agreement,

The record shows that the Cleys attempted to give Kors notice of the defaults and an opportunity to cure them. It was stipulated that on June 29, 1971, tire Cleys sent a properly addressed certified letter to Kors to the proper address for the service of notice on Kors, which was returned “Unclaimed”. This letter notified Kors of the real estate tax and insurance premium defaults and demanded that said defaults be cured by July 12, 1971. A copy of the June 29,1971, letter was enclosed in a letter dated August 10, 1971, sent to Kors by regular mail to the same address. This letter was received by Kors a day or two after it was mailed. In addition to enclosing a copy of the June 29, 1971, letter, the letter of August 10, 1971, stated that unless the defaults were cured within ten days, steps would be taken to cancel the contract for the purchase of the property. On September 8, 1971, a letter was sent to Kors at the same address by certified mail, return receipt requested, declaring the contract forfeited. This letter was returned “Unclaimed”. On September 15, 1971, more than 30 days after Kors admittedly received the letter of August 10, 1971, a Declaration of Forfeiture was filed in the office of the Recorder of Deeds of Cook County, Illinois as Document No. 21-622-917.

Kors’ first contention on appeal was that the contract sellers, the Cleys, did not properly and effectively terminate all right, title and interest of Kors in said real estate.

In Bade v. Brownlee, 29 Ill.2d 214, 193 N.E.2d 786, the court said, at page 219:

“Courts of equity abhor forfeitures, but where a forfeiture has been declared in the manner prescribed by the parties to a contract the court will give effect to the contract. Thus, the general rule is stated in Johnson v. Crouch, 325 Ill. 559, at pages 568-9: “Where a forfeiture has been declared in the manner prescribed by the parties to a contract a court of equity will not ignore their action and make another contract for them, but it will give effect to the existing contract.’ The same rule is stated and like clauses held valid in McDonald v. Bartlett, 324 Ill. 549; Lang v. Hedenberg, 277 Ill. 368, and Kingsley v. Roeder, 2 Ill.2d 131.”

Kors relies on the case of Kingsley v. Roeder, 2 Ill.2d 131, 117 N.E.2d 82, for his contention that the contract sellers waived their right to strict compliance with the payment provisions of the contract. However, in Kingsley the contract sellers made no diligent inquiry or effort to give contract purchasers notice of their intention to declare a forfeiture. In the Kingsley case the seller sent the notice of intent to exercise the forfeiture clause to a place where he knew the purchasers would not receive it and made no other attempt to notify the purchasers. Also in the Kingsley case the purchasers immediately cured all the defects complained of when they learned of purchasers’ intention to enforce strict compliance with the terms of the contract. In the case at bar, Kors did not cure his defaults upon receiving notice from the Cleys and when Kors did later tender amounts due, he still left outstanding the 1970 real estate taxes and interest paid by the Cleys and the insurance premiums paid by the Cleys in July, 1971. The Cleys took all reasonable steps available to comply with the provisions of the Agreement for the giving of notice of the defaults to Kors, with an opportunity for him to cure said defects; and therefore upon Kors’ failure to cure the defaults, Cleys correctly declared a forfeiture of the Agreement.

Kors’ second contention on appeal was that the contract sellers, the Cleys, must file a forcible entry and detainer action in order to obtain possession of the premises from the contract purchaser, Kors.

Section 13 of the Forcible Entry Detainer Act provides in part:

“Nothing herein contained shall be construed as affecting the right of a seller of such premises to any lawful remedy or relief other than that provided by this Act” Ill. Rev. Stat. 1971, ch. 57, par. 13.

In the case at bar the Cleys pursued another lawful remedy. The question of the rights of the Cleys, as contract sellers, and Kors, as contract purchaser, were put in issue by the 666 Corporation, lessee of the premises, when it filed a complaint for declaratory judgment for a judicial determination of the rights of the Cleys and Kors in the premises at 664-672 North Orleans, Chicago, Illinois, in order that the 666 Corporation might pay rent to the lawful party and thereby remain in possession of the premises. The Cleys then filed a cross-complaint requesting a determination by the court that the Articles of Agreement for Warranty Deed had been forfeited and that the Cleys were the owners in fee of the subject premises.

The trial court held that because the 666 Corporation filed its declaratory judgment action to adjudicate the rights of the parties the issues of whether or not Kors was in default and whether the Cleys had properly declared a forfeiture were properly before the court for determination. The trial court correctly determined that the Cleys had properly and effectively terminated all the right, title and interest of Kors in the premises.

Kors claimed a right to possession based on a lease executed contrary to the terms of the agreement with the Cleys. Kors is not in possession of the premises in question and therefore a forcible entry and detainer action is not necessary.

For the reasons given, the judgment of the Circuit Court of Cook County is affirmed.

Judgment affirmed.

BURMAN, P. J., and DIERINGER, J., concur.