text:
    Louis Giampa, Plaintiff-Appellant, v. Sunbeam Corporation, Defendant-Appellee, and Robert Trinski, Defendant. Orlando Cantanese, Plaintiff-Appellant, v. Sunbeam Corporation, Defendant-Appellee, and Robert Trinski, Defendant.
    Gen. No. 50,533.
    First District, Second Division.
    February 8, 1966.

      Kalcheim & Kalcheim, Elliott Kalcheim, Bernard Hammer and Charlotte Adelman, of Chicago, for appellants.
    Kirkland, Ellis, Hodson, Chaffetz & Masters, of Chicago (Max E. Wildman, John M. O’Connor, Jr. and John W. Kearns, Jr., of counsel), for appellee.
   MR. JUSTICE BURKE

delivered the opinion of the court.

This appeal is taken from an order allowing defendant Sunbeam Corporation’s motion for summary judgment against plaintiffs in their actions for false arrest and malicious prosecution.

Plaintiffs Louis Giampa, Orlando Cantanese and Gilbert Gaudio filed their complaints against Chicago Police Officer Robert Trinski and the Sunbeam Corporation, alleging that on September 9, 1959, Officer Trinski, duly authorized agent and acting for and on behalf of Sunbeam Corporation, appeared before a judge of the Municipal Court and filed criminal complaints against the plaintiffs, charging them with conspiring to steal the “goods and property” of the Sunbeam Corporation. The complaints further alleged that Officer Trinski, again acting as agent for Sunbeam Corporation, procured a warrant for the arrest of plaintiffs and caused them to be taken into custody, that plaintiffs were released on bond, and subsequently were indicted by the Cook County Grand Jury. It was further alleged that Officer Trinski, acting as Sunbeam Corporation’s agent, procured the State’s Attorney to cause a capias to issue for the arrest of plaintiffs a second time, after which a trial was had on the criminal charges and plaintiffs’ motion for a directed verdict of not guilty was granted.

Defendant Sunbeam filed answers to the complaints specifically denying that Officer Trinski was either its agent or was authorized to act in its behalf, and affirmatively stating that Officer Trinski was a Chicago Police Officer assigned to the State’s Attorney’s Office and acted solely under the direction and control of that Office. Sunbeam denied that it had at any time requested or authorized Officer Trinski to file criminal complaints against the plaintiffs or to procure a warrant for their arrests.

The plaintiffs’ complaints were consolidated. Plaintiff Gaudio died during the pendency of these actions and his action against the defendants was dismissed.

A motion for summary judgment was filed by Sunbeam Corporation pursuant to section 57 of the Civil Practice Act, together with supporting affidavits, depositions and exhibits. The affidavit of John J. Dahm, an officer and agent of the Sunbeam Corporation, recited that he had knowledge of the loss by theft of property belonging to the Sunbeam Corporation; that he reported the same to the State’s Attorney’s Office which in turn assigned Officer Robert Trinski to investigate the matter; that Officer Trinski did in fact investigate the matter and did so under the direction and control of the State’s Attorney’s Office; that Sunbeam Corporation never requested anything of Officer Trinski, and specifically never requested Officer Trinski to procure a warrant for the arrests of plaintiffs or to sign criminal complaints against them; that Sunbeam Corporation never directly acted to cause the arrests of plaintiffs; and that Sunbeam Corporation had no malice against any of the plaintiffs.

The affidavit of Frank J. Ferlic, the First Assistant State’s Attorney, recited that he conferred with officers of the Sunbeam Corporation on July 25, 1959, concerning the theft of some $287,000 worth of property belonging to Sunbeam, and contacted the State’s Attorney’s Chief Investigator Paul Newey concerning the matter. Officer Robert Trinski was assigned to the case and reported his findings to First Assistant State’s Attorney Ferlic. Ferlic and Trinski discussed the possibility of a criminal action against plaintiffs, and Ferlic directed Officer Trinski to procure a warrant for plaintiffs’ arrests, after which Ferlic caused plaintiffs to go before the Grand Jury. The affidavit stated that Officer Trinski acted solely for and on behalf of the State’s Attorney’s Office and acted solely in an official capacity.

A deposition was taken from Officer Trinski wherein he stated that he was assigned to the Sunbeam investigation by Paul Newey. Before he caused plaintiffs to be arrested Officer Trinski stated that he discussed the matter with Frank Ferlic and that he, Trinski, signed the complaints against plaintiffs. Officer Trinski stated that except for the original conference with an officer of the Sunbeam Corporation at the outset of the investigation, he had no conversation with any officer of Sunbeam or with any of Sunbeam’s attorneys prior to his signing of the complaints and his procurement of the warrants for the plaintiffs’ arrests.

A deposition was also taken from plaintiff Giampa, and a stipulation was entered between Giampa and Sunbeam to the effect that Officer Trinski had caused his arrest. The criminal complaints against the plaintiffs were signed “Robert Trinski, State’s Attorney’s Police.’’

Plaintiffs filed an answer to defendant’s motion for summary judgment, again alleging that “Robert Trinski acted as agent and servant of Sunbeam Corporation when he arrested plaintiffs,” that “certain agents of defendant Sunbeam Corporation prosecuted plaintiffs through the State’s Attorney of Cook County,” and that all statements contained in Sunbeam’s affidavit were self-serving, hearsay and conclusions. Plaintiffs filed no supporting affidavits or exhibits with its answer to defendant’s motion for summary judgment.

Defendant’s motion was allowed and judgment was entered against plaintiffs and for defendant’s costs. The actions against Officer Trinski are still pending in the trial court and are not involved in this appeal.

Plaintiffs maintain that “ultimate material disputed questions of fact” exist as to whether Officer Trinski acted as Sunbeam’s agent in procuring the arrests and prosecution of the plaintiffs and as to whether defendant Sunbeam procured the arrests and prosecution, and that the trial court erred in granting summary judgment.

The purpose of the summary judgment proceeding is to avoid congestion of trial calandars and the expense of unnecessary trials, by summarily disposing of cases wherein is presented no genuine issue of material fact. Ill Rev Stats 1963, chap 110, par 57; Allen v. Meyer, 14 Ill2d 284, 292, 152 NE2d 576. The mere fact that an issue is raised by the pleadings does not of itself give rise to the right to a trial; the issue of fact which is raised must be a genuine issue of fact. As was stated in Roberts v. Sauerman Bros., Inc., 300 Ill App 213, at pages 217, 218, 20 NE2d 849:

“. . . The fact that the pleadings joined issue does not prevent the entry of a summary judgment. The pleadings should be considered in order that the court may know what the issues are. Ordinarily, a motion for summary judgment presupposes that the pleadings properly join issue. If the pleadings do not join issue, the usual practice is to dispose of them on motions to strike or to dismiss. A person may be able to state a good defense in a pleading, and yet when he is required to set up that defense in affidavits according to the requirements of Rule 15 of the Supreme Court, it may become apparent that he has no defense. If he has no defense, he is not entitled to a trial. The duty often devolves on the court during a trial to direct a verdict. Then the court decides that there is no issue of fact for the jury to pass upon. Likewise, on a motion for summary judgment, when there is no triable issue of fact, the court is bound to enter judgment accordingly. Where the affidavits of merit raise an issue of fact, the motion for summary judgment must be denied. . . .”

Upon the filing of a motion for summary judgment, the determination of whether there exists any genuine issue of material fact is to be predicated upon “the pleadings, depositions, and admissions on file together with affidavits, if any.” If affidavits are filed they must conform to the requirements set out in Supreme Court Rule 15. Ill Rev Stats 1963, chap 110, pars 57(2), (3) and (4), 101.15.

In the instant case the complaints and the defendant’s answers joined issue on the question of the agency of Officer Trinski to the Sunbeam Corporation. However, contrary to the plaintiffs’ contention, no genuine issue as to the question of agency existed after the presentation of the affidavits and depositions filed in support of defendant’s motion for summary judgment. Mr. Dahm’s affidavit shows that Officer Trinski was never under the control or authority of the Sunbeam Corporation, but acted at all times as agent of the State’s Attorney’s Office. First Assistant State’s Attorney Frank Ferlic’s affidavit shows that Officer Trinski acted at all times as the agent of the State’s Attorney’s Office and took orders only from that Office. The deposition of Officer Trinski was to the same effect. Furthermore, the record shows that the complaint was signed by Officer Trinski in his capacity as a State’s Attorney’s Police Officer.

No statements of fact under the Practice Act and Rule were presented by the plaintiffs which contradicted the matters contained in the affidavits filed by the defendant. Plaintiffs’ answer to defendant’s motion for summary judgment states only conclusions. Instead of setting out facts which would bear on the question of Officer Trinski’s agency to the Sunbeam Corporation, plaintiffs merely state that “Robert Trinski acted as Sunbeam’s agent and servant,” that “certain officers of Sunbeam Corporation prosecuted plaintiffs through the State’s Attorney’s Office,” and that “the question of agency is a matter for a jury.” Merely by alleging that there exists a genuine issue of material fact does not create such an issue. Plaintiffs point to no fact which in any way tends to support their allegations that Officer Trinski acted as agent of the Sunbeam Corporation. On all the pleadings, affidavits and depositions, it clearly appears that no genuine issue of fact is presented.

Plaintiffs state in their brief that they are “prepared to prove with evidence that Officer Trinski was an agent of Sunbeam,” but no such “evidence” is set out by way of affidavit, nor was it alleged who would testify to such facts on a trial. While plaintiffs’ brief states that their complaints were accompanied by affidavits verifying all the facts contained therein, no ultimate facts were pleaded in the complaints but only conclusions, and no affidavits containing any ultimate facts appear in the record.

Plaintiffs’ contention that Officer Trinski’s agency is shown by “inference” from Officer Trinski’s deposition wherein he stated that because Sunbeam’s Attorneys were out of town, he took it upon himself to sign the corn-plaints against plaintiffs. Not only is this speculation, but the affidavits filed by defendant conclusively rebut any such alleged inference.

The cases cited by plaintiffs are distinguishable on their facts. In Brockie v. State Farm Mut. Automobile Insurance Co., 39 Ill App2d 159, 187 NE2d 538, the agency of defendant Stolper to the State Farm Insurance Company was properly pleaded by the plaintiff. The court there held that “there exists a real question of fact” as to whether Stolper, on behalf of State Farm, instituted a criminal action against plaintiff. No such “real question” exists in the case at bar. In Zimbon v. 1400 Lake Shore Drive Corp., 8 Ill App2d 554, 132 NE2d 51, plaintiff’s complaint properly pleaded facts showing the agency and the authority of the defendant agent to act for and on behalf of the defendant corporation. In the instant case, however, plaintiffs fail to set out a single fact bearing on the question of agency.

Finally, there are absolutely no facts contained in either plaintiffs’ original complaints or in their answer to defendant’s motion for summary judgment to the effect that defendant Sunbeam “caused the arrests of plaintiffs through other agents.” On the contrary, it clearly appears that the only action taken by any of defendant’s agents was the report of the theft to the State’s Attorney’s Office and the consultation with First Assistant State’s Attorney Frank Ferlic which prompted the investigation into the matter. Officer Trinski did not consult any one connected with Sunbeam concerning the possibility of a criminal action against the plaintiffs, but looked solely to Frank Ferlic for permission to cause the arrests of the plaintiffs. Again, plaintiffs merely plead a conclusion, unsupported by any facts through affidavits.

While it is true that certain matters contained in defendant Sunbeam Corporation’s affidavits and depositions are hearsay and could not be testified to at a trial by the party swearing thereto, nevertheless sufficient facts are brought out by the affiants, and deponents, to which they could properly testify at trial, showing no agency between Officer Trinski and Sunbeam Corporation.

It is unnecessary to discuss the merits of the malicious prosecution actions with regard to malice and probable cause.

The judgment is affirmed.

Judgment affirmed.

BRYANT, P. J. and LYONS, J., concur.


source: Caselaw Access Project

author: MR. JUSTICE LYONS

license: Public Domain

text:
    Irene Lange, Plaintiff-Appellee, v. Gene H. Shapiro, American Bookkeeping Associates, and Edward Zolla, Jr., Defendants. On Appeal of American Bookkeeping Associates and Edward Zolla, Jr., Defendants-Appellants.
    Gen. No. 50,538.
    First District, Second Division.
    February 8, 1966.

      Jay Erens, of Chicago, for appellants.
    Arnold I. Kramer, of Chicago, for appellee.
   MR. JUSTICE LYONS

delivered the opinion of the court.

This is an appeal from a judgment by confession entered against three defendants.

This action was commenced by plaintiff, Irene Lange, on October 2, 1964, by the filing of a complaint and confession on a promissory note against Gene H. Shapiro, American Bookkeeping Associates (hereinafter also referred to as ABA) and Edward Zoila, Jr. (hereinafter referred to as Zoila). The note sued on was attached to the complaint and in substance states: “For Value Received, I promise to pay to the order of American Bookkeeping Associates, Inc. (an Illinois corporation) the principal sum and interest at the office of American Bookkeeping Associates, Inc. in Chicago.” The note contains a standard confession of judgment clause by which “the undersigned does hereby authorize irrevocably any attorney of any court of record to appear for the undersigned . . . and to confess judgment without process against the undersigned.” The note is signed in the place provided for the maker’s signature, “Gene H. Shapiro.” To the left of Mr. Shapiro’s signature appears the following typewritten insertion:

Pay to the order of Irene Lange with full recourse and warranty.
AMERICAN BOOKKEEPING ASSOCIATES, INC.
By: E. M. Zoila, Jr.,
By: E. M. Zoila, Jr.,
Personal

Process was never served on any of the defendants. On October 5, 1964, the court, awarded judgment, based on the confession of judgment clause, against all three defendants in the amount of $3,247.92 and costs.

On October 22, 1964, two of the defendants, ABA and Zoila, filed a motion to vacate the judgment. The motion pointed out that the maker of the note was Gene H. Shapiro, that the note was payable to ABA, by Zoila as general manager, that ABA endorsed the note over to plaintiff, Irene Lange, and that Zoila also signed personally as an accommodation endorser below ABA’s endorsement. The motion stated that Shapiro as maker of the note had given a warrant of attorney, to confess judgment against him, but that ABA and Zoila as endorsers thereof, had given no such warrant of attorney, and therefore prayed that the judgment be vacated as against them. Upon the filing of the motion, the court set the matter for a hearing on January 14,1965.

At the hearing plaintiff testified over appellants’ objection, to the execution of the note by Zoila for ABA, and Zoila personally, and that “she relied on the representations of Edward Zoila, Jr. that he would be personally bound under the terms of this note along with Mr. Shapiro and American Bookkeeping Associates, Inc.” Mr. Charles Snedecker testified over appellants’ objection to substantially the same effect.

The foregoing was all the evidence heard, and arguments were confined to the question of whether ABA and Zoila signed the note as comakers or as endorsers. Plaintiff’s counsel argued that all three defendants, Shapiro, ABA and Zoila signed as comakers and therefore joined in the warrant of attorney to confess judgment. Counsel for ABA and Zoila argued that ABA and Zoila signed as endorsers and therefore did not join in the warrant of attorney given by Shapiro as maker.

At the conclusion of the hearing, the court denied the motion to vacate the judgment by confession as to ABA and Zoila and ordered that the judgment be confirmed. On February 1, 1965, ABA and Zoila moved to vacate the latter order and this motion was likewise denied on February 18,1965.

This appeal is taken by defendants, ABA and Zoila from, one, the original judgment by confession; two, the order of January 14, 1965, refusing to vacate it and ordering that it be confirmed; and three, the order of February 18, 1965, refusing to vacate the order of January 14,1965.

Appellants’ theory of the case is, one, that the capacity in which they signed the note was, as a matter of law, that of endorsers and not comakers; two, that the court erred in admitting parol evidence to contradict the capacity in which they signed the note; three, that these appellants, as endorsers, gave no warrant of attorney for judgment to be confessed against them; and four, that the judgment rendered against them is void for want of jurisdiction over the person.

Plaintiff’s theory of the case is, one, that the signatures of defendants, ABA and Zoila, placed upon the front of the instrument, indicates that they were comakers of the promissory note; two, that in the alternative that the position of the signatures of the promissory note creates an ambiguity which should be construed against the perpetrators of the ambiguity; namely, ABA and Zoila, so as to place upon them the burden of proving in what capacity the promissory note was signed; and three, that even if the confession of judgment originally obtained was improper as to ABA and Zoila, their filing a motion to vacate and their participation in a hearing on the merits subjected appellants to the jurisdiction of the court and, therefore, the refusal to vacate the aforesaid judgment, or in effect, the confirmation thereof, is binding upon appellants.

We disagree with plaintiff that Zoila signed the face of the instrument in the capacity of a co-maker. The capacity of the appellants clearly appears, from the face of the note, to be that of endorsers. The negotiable instrument law requires the capacity of a person placing his signature on a note to be determined from within the four corners of the note itself. Thus, we turn to an examination of the note in question.

The body of the note recites that it is payable to the order of ABA. It is signed by Gene H. Shapiro in the place provided for the maker’s signature, namely, the lower right-hand corner. Thus, apparently, Shapiro is the maker and ABA is the payee. To the left of Shapiro’s signature, the following words are typed in: “Pay to the order of Irene Lange with full recourse and warranty,” and directly underneath those words are the signatures of ABA (by Zoila) and Zoila personally. Since ABA is the payee of the note, it was essential that it endorse the note over to the plaintiff, Mrs. Lange, in order for her to acquire title to it. See Ill Rev Stats (1961), ch 98, par 50. If plaintiff’s argument that ABA signed as a comaker is correct, then she is faced with the anomalous result that she never acquired title to the note. Obviously no such result was intended. The words preceding the signature of ABA are clearly words of endorsement and negotiation. The words “full recourse and warranty” can only have reference to the obligation of ABA as payee, which by endorsement negotiated the note to Mrs. Lange, a subsequent holder, and thereby made certain warranties to all subsequent holders. See Ill Rev Stats (1961) ch 98, par 86.

If there could be any doubt about the inevitability of this result, it has been laid to rest by our courts. They have held that where a note is payable to a named payee and that payee signs the note, his signature is deemed to be that of an endorser as a matter of law, and parol evidence is not admissible to vary or contradict this. Cohen v. Ets-Hokin, 219 Ill App 340 (1920); Kopf v. Yordy, 200 Ill App 409 (1916). Even where the payee, in endorsing the note, has added language that “I hereby acknowledge myself a principal maker,” the payee has been held to be conclusively an endorser as a matter of law, in order to make the transfer of the note effective and avoid an absurd result. Kistner v. Peters, 223 Ill 607, 79 NE 311 (1906).

Finally, the fact that ABA’s signature appears on the face of the note rather than on the back thereof is of no consequence. It has long since been settled that a payee may effectively endorse a note either on the front or on the back, and the effect of the signature will be exactly the same in either case. Kistner v. Peters, supra.

We also disagree that Zoila signed the instrument in the capacity of a comaker. An examination of the note reveals that the typewritten words of endorsement on the face of the note are followed both by ABA’s signature and by Zolla’s personal signature. Zoila signed both on behalf of ABA and personally, and both signatures are an integral part of the same endorsement. Unlike ABA, however, Zoila is not otherwise a party to the note. His personal signature is out of the chain of title. He is therefore conclusively deemed, as a matter of law, to be an accommodation or “irregular” endorser.

The Negotiable Instruments Law, Ill Rev Stats (1961), ch 98, § 84, provides as follows:

Where a person, not otherwise a party to an instrument places thereon his signature in blank before delivery, he is liable as endorser in accordance with the following rules:
3. If he signs for the accommodation of the payee, he is liable to all parties subsequent to the payee.

Furthermore, the motion of ABA and Zoila to. vacate the judgment by confession alleges that Zoila was general manager of ABA and signed for the accommodation of ABA, and this has never been denied.

The case of Foster v. Merkle-Korff Gear Co., 233 Ill App 302 (1924), involved a situation almost identical to that in the case at bar. A note was executed by the maker, payable to a named payee. The note was endorsed by. the payee and also by Merkle-Korff Gear Co., which was not in the chain of title, and was delivered to the plaintiff. The court held that Merkle-Korff was an accommodation endorser and that the plaintiff had notice of that fact because its endorsement was not in the chain of title.

Moreover, parol evidence is inadmissible to vary the capacity of an accommodation or irregular endorser. Katz Finance Co. v. Levy, 241 Ill App 576 (1926); Kroll v. Hoyt, 214 Ill App 428 (1919). In the Kroll case, the note was, as in the present case, payable to a named payee. As in the present case, it was endorsed both by the payee and by another person not in the chain of title, and delivered to a subsequent holder. And, as in the present case, the holder contended that the person not in the chain of title was a joint maker. The court held that section 84 of the Negotiable Instruments Law (then section 82) fixed the status of the irregular endorser as that of an endorser, and that parol evidence was absolutely inadmissible to show a contrary intention.

Thus, appellants signed the instrument as endorsers, and it is well settled that one who merely signs a note as an endorser does not give a warrant of attorney to confess judgment.

In Doss v. Evans, 270 Ill App 55 (1933), the makers of a note signed a power of attorney to confess judgment and the defendant endorsed the note in blank. Judgment by confession was taken against both the makers and defendant as endorser. Subsequently the court vacated the judgment as to the endorser for lack of jurisdiction. The Appellate Court affirmed the vacation of the judgment, stating on page 57:

There is no other liability upon a simple indorser of a note. Defendant in error in this case signed no power of attorney to confess judgment. His name upon the back of the note is well defined in the Negotiable Instruments Act, as it always has been defined at common law as a simple indorser and is not construed as authorizing the power of attorney to confess judgment any more than if it were a thousand miles away from the note. It has been held that the power to confess judgment must be clearly given and strictly pursued, otherwise the judgment confessed is void. (Citations omitted.) If there is no power of attorney to enter the appearance of the defendant and confess judgment, the judgment is a nullity and binds no one.

See also First Nat. Bank of Ava v. Yakey, 253 Ill App 128 (1929), which reversed a judgment taken by confession against one who had placed his signature on a note, on the grounds that he was an endorser and not a maker thereof.

Though we find that appellants, as endorsers, could not be bound by the warrant of attorney, we disagree with appellants that the invalidity of the warrant dismisses them from this cause of action. They filed a general appearance and waived any jurisdictional defect. The invalid warrant only voids the judgment as to appellants and does not take away the court’s jurisdiction over them.

The order of February 18, 1965, denying the Petition to vacate the order of January 14, 1965, is reversed and the cause remanded with directions to allow the Motion to vacate the judgment against appellants and to proceed in a manner not inconsistent with this opinion.

Order reversed and cause remanded with directions.

BRYANT, P. J. and BURKE, J., concur.


text:
    City of Chicago, a Municipal Corporation, Plaintiff-Appellee, v. Fred B. Mayers, Defendant-Appellant.
    Gen. No. 50,603.
    First District, Second Division.
    February 8, 1966.
    Rehearing denied March 21, 1966.
    William A. Cain, of Chicago, for appellant.

      Raymond F. Simon, Corporation Counsel, of Chicago (Sydney R. Drebin and Marvin E. Aspen, Assistant Corporation Counsel, of counsel), for appellee.
   MR. JUSTICE LYONS

delivered the opinion of the court.

This is an appeal from an order denying a petition asking for the return of records of identification taken from defendant at the time of his arrest for disorderly conduct.

Defendant was arrested December 10, 1962 in the City of Chicago and charged with a violation of chapter 193, section 1, of the Municipal Code of Chicago, designated “Disorderly Conduct.” He was fingerprinted and photographed by the police of the City of Chicago. Defendant appeared before the Honorable Edith A. Sampson. The matter was postponed, by order of court, to February 5, 1964. Thereafter, defendant was found not guilty and discharged.

On April 5, 1965, defendant served a notice of motion and a petition upon the Corporation Counsel for the City of Chicago and upon the State’s Attorney of Cook County stating in the notice that he would present said petition on April 9, 1965. Said petition requested the return of records of identification, which records consisted of fingerprints and photographs taken from defendant upon his arrest and alleged that there was no authority for the invasion of defendant’s right of privacy in that the matter involved only a quasi-criminal charge of disorderly conduct of which charge defendant was found not guilty and discharged; that defendant was a teacher and the records of identification on file with the Police Department of the City of Chicago and with the Department of Public Safety constituted a continuing menace to the future position and economic welfare of said defendant; that under section 206-5 of the Code of Criminal Procedure, had defendant been charged with a serious crime, as enumerated in said section, he would upon discharge, acquittal, or release without conviction, be entitled to a return of all photographs, fingerprints, or other records of identification presently in the custody of the Department of Public Safety; and that defendant, as a result of the records of identification being in the custody of the authorities, suffered great pecuniary loss, embarrassment and defamation of his social standing and will continue so to suffer in the future.

Neither the Corporation Counsel on behalf of the City of Chicago, nor the State’s Attorney on behalf of the Department of Public Safety, filed an answer or other pleading in opposition to the petition of defendant. The trial court denied the motion and petition of defendant.

Defendant’s theory of the case is that the trial court erred in its denial of defendant’s petition for the return of the records of identification in that the original charge of Disorderly Conduct was a civil proceeding in form; that the original charge being civil, the Civil Practice Act must apply and thus the failure of the City of Chicago and Department of Public Safety to answer or otherwise plead required the trial court to consider as true all of the well pleaded facts of the petition, and grant the relief prayed; that the legislature of the State of Illinois has empowered the Department of Public Safety as the only agency to cope with the task of criminal identification and investigation; that the City of Chicago has no inherent authority to take records of identification of an accused and therefore the court erred in not returning said records of identification after the accused had been acquitted; and that the denial of the defendant’s petition for the return of the records of identification was improper in that defendant’s rights were violated.

Plaintiff’s theory of the case is that the Superintendent of the Chicago Police Department, Orlando W. Wilson, has custody and control of the identification records of the Chicago Police Department; that the petition was properly denied by the trial court in that Superintendent Wilson was not named as a party, and along with the Department of Public Safety, was not served with a copy of the petition; that section 206-5 of the Code of Criminal Procedure is not authority for allowing the petition; and that the decisions of this court allow the Chicago Police Department to retain identification records of an arrested person, even after he has been acquitted.

At the outset we agree with the City that the petition is defective in that it does not name, or was not served upon, those persons against whom relief is sought. Thus we do not have to consider the merits of defendant’s petition.

Section 21(4) of the Civil Practice Act of Illinois (Ill Rev Stats 1963, c 110, Par 21 (4)) requires that “a party shall set forth in the body of his pleading the names of all parties for and against whom relief is sought thereby.” The petition indicates that the City of Chicago is the only party litigant other than defendant. The petition, however, does not pray for relief against the City of Chicago as such. The prayer of the petition seeks relief against two parties other than the City of Chicago. It reads:

Wherefore, the Petitioner prays for an order of this Court directed to the Commissioner of Police of the City of Chicago and to the Department of Public Safety of the State of Illinois, to return to him forthwith all fingerprints, photographs, or other records of identification taken from him on or about, to wit: December 10,1962.

From the foregoing, it is clear that defendant is requesting that the court order “all fingerprints, photographs, or other records of identification taken from him” to be returned by the Commissioner of Police of the City of Chicago and by the Department of Public Safety of the State of Illinois.

The Department of Public Safety, however, was not served and made a party in the trial court; nor was its attorney William G. Clark, Attorney General of Illinois, served with notice of the petition in the trial court proceeding. The Corporation Counsel of the City of Chicago has no authority to act as legal representative for the Department of Public Safety. Therefore, the trial court properly denied that part of the petition pertaining to the Department of Public Safety.

Under chapter 11, section 6 of the Municipal Code of Chicago, the Superintendent of Police of the City of Chicago, as chief administrative officer, is in charge of records of the Chicago Police Department. The Superintendent of Police was on December 10, 1962, and at the time of the filing of this petition, Orlando W. Wilson. The relief sought, therefore, by petitioner, should have been against Superintendent Wilson. Superintendent Wilson was not designated a party in the petition. Instead, petitioner sought relief against the Commissioner of Police of the City of Chicago. There is no office designated Commissioner of Police in the City of Chicago. Such office was abolished by the City Council of the City of Chicago on March 2, 1960. See chapter 11 of the Municipal Code of the City of Chicago. The identification records, which are the subject of the petition, relate to petitioner’s arrest on December 10, 1962. The petition was filed on March 19, 1965. Thus, on both the dates of plaintiff’s arrest and the filing of his petition there was not in existence the office of Commissioner of Police of the City of Chicago.

Furthermore, the Superintendent was never served with summons, either by name, or position. As a result any order entered by the trial court would have been ineffectual.

Without considering other points raised by the parties, the trial court correctly dismissed the petition. The order is affirmed.

Order affirmed.

BRYANT, P. J. and BURKE, J., concur.


author: MR. PRESIDING JUSTICE SULLIVAN

text:
    Arrow Contractors Equipment Company, a Corporation, Plaintiff-Appellee, v. Arthur J. Siegel, d/b/a Seco Construction Company, Defendant. Aetna Casualty & Surety Company, a Corporation; and Board of Education of the City of Chicago, a Body Politic Corporate, Defendants-Appellants.
    Gen. No. 49,704.
    First District, Third Division.
    February 10, 1966.

      Dent, Hampton & Doten, of Chicago, for appellants.
    Jerome F. Dixon and John E. Golden, of Chicago, for appellee.
   MR. PRESIDING JUSTICE SULLIVAN

delivered the opinion of the court.

Defendants Aetna Casualty & Surety Company and Board of Education of the City of Chicago appeal from a decree in which judgment was entered for $6,732.54, against defendant Arthur J. Siegel, d/b/a Seco Construction Company, a general contractor, and decreeing a section 23 lien therefor upon money, bonds or warrants in the hands of the Board of Education of the city of Chicago; also from that part of the same decree entering judgment in the sum of $6,732.54 against Aetna Casualty & Surety Company upon the statutory performance and payment bond. The decree directs that all costs, stenographic and master’s fees be adjudged against the defendants.

The defendants argue two points, (a) that section 23 (Ill Rev Stats 1961, c 82, § 23) does not provide a lien against public contract funds for major repairs to contractor’s own equipment which were not consumed in the performance of the contract work, and (b) plaintiff is not entitled to recover upon the statutory performance and payment bond of Aetna Casualty & Surety Company.

The facts are these: On January 26, 1961, Arthur J. Siegel, d/b/a Seco Construction Company, entered into a contract with the Board of Education of the City of Chicago for the construction of the Ludwig Yon Beethoven School at 48th and State Streets, Chicago, Illinois. Under the contract the contractor was required to furnish all material and do the work required in the erecting of the new elementary school building. The contractor, as principal, and Aetna, as surety, executed and delivered to the Board of Education a statutory performance and payment bond conditioned:

“Now, if the said Arthur J. Siegel . . . shall in all things . . . truly keep and perform all of the covenants, conditions and agreements mentioned and contained in said contract . . . and shall promptly make payment to all persons supplying him labor or materials in the prosecution of said work, then the above obligation to be void, . . . .”

Siegel, the general contractor, owned a Bay City Model 185 T 60 truck crane with an 80-foot boom and a 15- or 20-foot jib which he had purchased in October, 1959, for $36,130, and had used on two other large jobs. He brought the crane to the job site about February 1, 1961, and thereafter used it to pour concrete and hoist materials. About April 1, 1961, the crane was standing on a construction road about 15 feet from an excavation for the north tower of the school. The outriggers, which are steel beams which slide out from the bottom of the crane to give it stability, were not out. The crane, while the operator thereof was “booming out,” lost its footing and the entire unit slid down an embankment which had been excavated for the school.

The expression “booming out” means that the “stick” (boom) is out at an angle and the operator permits the boom or stick to go out too far and the machine is unable to handle that weight when the outriggers are not extended out. As a result the crane was damaged.

The plaintiff was employed by Siegel, the contractor, to make the necessary repairs. The plaintiff inspected the damaged crane at the job site, dismantled the crane and brought it to the plaintiff’s shop. After making certain repairs, plaintiff returned the crane to the job site. The plaintiff invoiced the contractor for labor for its mechanic to straighten the cab fenders, install new glass in cab, replace a broken battery and install new boom complete with center sections, jibs, pendants and cable. The new parts totalled $6,358.57 including sales tax; incoming freight on the new parts totalled $88.97; hauling the crane to and from the job site cost $25, and $260 was charged for certain labor performed in repair work. After the repair of the crane it was used by the contractor in performing his concrete work under the terms of the contract with the Board of Education until early summer of 1961. The crane was then put in the contractor’s yard for a few weeks and on or about August 24, 1961, was sold and delivered by contractor to O’Neill Bros, of Danville, Illinois, for $22,000.

The contract between contractor and the Board of Education provided that the contractor agrees to furnish all material and do all of the work required in the erection of the school for $1,000,742.

There is no claim in this case that the amount of $6,-732.54 was for material, apparatus, fixtures or machinery which were incorporated into the school building, or for labor employed by the contractor to perform work required under his contract. The amount claimed is solely for repairs made to and new parts installed by the plaintiff in a crane owned by the contractor which had been used between February 1,1961, and early summer of 1961, in performing his contract, and which was damaged on April 1, 1961, when it tipped over into an excavation. There is no contention, nor could such a contention be sustained, that the repair items and new parts were consumed during the performance by contractor of his remaining contract work. The contractor had used the same crane on two other previous jobs as large as his contract with the Board of Education in this case. The crane was originally purchased for $36,130 in 1959 and that following its repair it was used in completing the contract work. It was sold in August, 1961, by the contractor to another contractor for approximately $22,000. It cannot therefore be said that the items supplied by the plaintiff were consumed during the performance of the contract work and yet be available to the contractor or others for other work.

The pertinent portions of section 23 (Ill Rev Stats 1961, c 82, § 23), are as follows:

“Any person who shall furnish material, apparatus, fixtures, machinery or labor to any contractor having a contract for public improvement for any . . . school district . . . shall have a lien on the money, bonds or warrants due or to become due the contractor having a contract with such . . . school district . . . under such contract, . . .

In Alexander Lumber Co. v. City of Farmer City, 272 Ill 264, 111 NE 1012, the pertinent facts were these: Farmer City had passed an ordinance for the construction of a system of sewers to be paid for in part by general taxation and in part by special assessment. The city entered into a written contract with the Howes Bros. Company which agreed to do the work for $16,888.15. The contract between Howes Bros. Company and Farmer City provided in part as follows: “It is further agreed that all funds becoming due said contractor under this contract shall be and are subject to the provisions of section 23 of an act entitled ‘An act to revise the law in relation to mechanics’ liens.’ ” Numerous persons claimed liens on the fund which was alleged to be in the possession of the city and due to the contractor. The circuit court allowed claims and decreed their payment by Farmer City, which decree was reversed by the appellate court, and some of the lien claimants prosecuted an appeal to the Supreme Court. The decree entered in the trial court found that all of the claims were for material and labor furnished by the claimants under contracts with Howes Bros. Company. The decree of the trial court had allowed a lien on behalf of Joseph C. Gould for $179.17. The Supreme Court in its opinion on page 275 said the following:

“It is also claimed that a small part of the claim of appellant J. C. Gould was for work in repairing machinery and tools.”

The Supreme Court in that opinion, without deciding whether a small part of Gould’s claim for work for repairing machinery and tools was well founded, affirmed the decree of the trial court which had found that the claims were for material and labor. The main issue of the Alexander case was whether any lien against money in the hands of a city due a contractor can be allowed in favor of subcontractors or parties furnishing material under section 23 of the lien act unless the material furnished entered into or became a part of the improvement. The court in that case did not state whether these items did or did not become a part of the improvement. The court did not discuss the repair item. The nature and amount of repairs is not revealed in the opinion except that they construed a small part of an entire claim for $179.17. The opinion does not reveal whether the repairs took place because of an accident, as in the instant case, or whether they consisted only of items for the normal maintenance of machinery and tools in connection with their everyday use on the project.

The later case of Acker v. Vanderboom, 235 Ill App 417, which construed the Alexander case, concluded that the rule announced therein is that materials, services and rentals which actually are used or consumed during the progress of the work are the proper subjects of a mechanics’ lien, even though they do not become a constituent, physical and component part of the completed structure.

The plaintiff here places a construction upon the Alexander case, supra, which would allow a claim for all repairs and that the cost of such repairs would constitute the basis of a lien under section 23 of the lien act, regardless of whether they contributed to the project. We think this contention is not consistent with the holding in that case.

The case of McMillan v. Joseph P. Casey Co., 311 Ill 584, 143 NE 468, has been cited by both the plaintiff and the defendants herein. In that case the plaintiffs sought a lien under section 23 for the payment of an unpaid purchase price for machinery and tools sold to a general contractor for use in performing a road building contract. The Supreme Court there held that the lien would not attach to the fund, and further said that in the Alexander case, supra, there was no intention of holding that machinery and apparatus, simply because furnished a contractor for public work, could be made the basis of a lien, regardless of whether it became a constituent part of the improvement. The court further said on page 588 of the McMillan case:

“It is contended, however, by appellants that it is the plain wording of section 28, as considered by this court in Alexander Lumber Co. v. Farmer City, 272 Ill 264, that as to a public improvement all that is required is that such material, machinery and the like be furnished the contractor, and that in itself is sufficient to give rise to a right for lien for the purchase price, whether it enters into or was furnished for the permanent use of the improvement. We cannot agree with this interpretation of the above decision. In our judgment there was no intention of holding in that opinion that machinery and apparatus, simply because furnished a contractor for public work, could be made the basis of a mechanic’s lien regardless of whether it became a constituent part of the improvement. In that case there was a discussion of the purposes for which different materials were put in the improvement there made, and the statement was made that sections 1 and 23 differ as to their purpose. Even if it be conceded, as argued by counsel for appellants, that one or two small items were allowed in that case which may not have actually entered into the structure, the opinion does not justify the interpretation that, regardless of how the machinery, apparatus or material is used, a lien may be had for the purchase price of the same. The only reason, in our judgment, for a difference in the construction of sections 1 and 23 is, that as under the latter section a public improvement cannot be permitted to be security to a private person, the funds due the contractor are substituted as security. The fact that an improvement is public rather than private can afford no reason for holding that the machinery, equipment and tools are to be regarded in a different manner, unless there is some clear wording in the statute to indicate it.”

On page 590 of the same opinion the court continued:

“The fact that in section 23 of the Lien act the words used are, ‘shall furnish ... to any contractor having a contract for public improvement,’ while in section 1 the wording is, ‘used for the purpose of or in the building,’ is in our judgment of no special significance. We do not think it was intended by the legislature that the fund referred to in section 23 was intended to be the source of indemnity to a contractor or sub-contractor for his working equipment, unless there was a provision in the contract for the public improvement to that effect. There was no such showing here as to the purpose of the contract. There was no attempt to show the value of the use of or injury to the machinery, equipment, appliances or material by the two appellants, except the 4500 feet of expansion joints which became a part of the improvement, and the claim therefor was properly allowed.”

The Supreme Court again was called upon to construe section 23 of the lien act in Standard Oil Co. of Indiana v. Vanderboom, 326 Ill 418, 158 NE 151. In that case, in referring to McMillan v. Joseph P. Casey Co., 311 Ill 584, 143 NE 468, the court said on page 423:

“This court, in affirming the judgment of the Appellate Court denying a lien for the machinery sold the contractor, said: ‘There was no attempt to show the value of the use of or injury to the machinery, equipment, appliances or material by the two appellants, except the 4500 feet of expansion joints which became a part of the improvement, and the claim therefor was properly allowed.’ There was nothing in the decision of the Appellate Court or in the decision of this court in conflict with the Alexander Lumber Co. case, but it is probably true that in cornmenting on the construction of section 23 the court used some language which cast doubt upon the construction given that section in the Alexander Lumber Co. case. Such language was not necessary to a decision in the McMillan case, for it was not proved in that case that the materials and machinery furnished the contractor were consumed in constructing the improvement, nor was it proved there was any injury to the machinery and tools or what the value of their use was in making the improvement. In the McMillan case the court correctly held that the purchase price of machinery and equipment was not lienable under section 23, and said: ‘It would seem that generally it would be presumed that a contractor is prepared with machinery and necessary appliances to do his work and that such items are furnished upon his own credit and as a part of his working equipment and business and are not furnished upon the implied credit of the public.’ ”

Again, in Standard Oil Co. of Indiana v. Vanderboom, supra, the claim was for gasoline, oil and grease necessary for the use of the contractors in constructing the improvement and were entirely consumed. The Supreme Court held that section 23 was intended to, and does, give the party who furnishes materials, which are necessarily consumed in making the improvement, a lien on money due the contractors from the State, and found that the materials furnished, namely, gasoline, oil and grease were necessary to enable the contractors to do the work and were entirely used up and consumed by the contractors in making the improvement. In none of the cases which have been called to our attention has the court sustained a lien under section 23 for damages to machinery caused by accident or negligence of the operator. The cases do support the right of a lessor of machinery or equipment to a lien for the value of ®the use of the equipment while on rental and possibly for injury to rented equipment. Such a rule, however, does not aid the plaintiff in this case because there were no injuries to anything which the plaintiff supplied. The plaintiff did not make a claim for the use of the value of the repaired machine because he did not own the machine when the accident occurred. The facts in the instant case are far different than the hypothetical case which the McMillan court had in mind when it made the statement in question.

As we read the Illinois cases construing section 23 of the lien act none specifically support plaintiff’s contention that major repairs occasioned by an accident are lienable. None of the Illinois cases involve a claim for a lien due to damages to machinery occasioned by accident or negligence. However, the reasoning in cases from other jurisdictions is somewhat helpful, as will be pointed out in a discussion on the second point raised in this case.

We conclude that section 23 of the lien act does not warrant a lien against the public fund for major repairs to equipment owned by the contractor, occasioned by accident or by negligence of the operator. We believe that a lien may be established for costs of repair of minor items on machinery which were necessarily consumed in making the improvement. To give to section 23 of the lien act a construction which would allow a lien for major repairs to machinery occasioned by accident or carelessness of the employees of the contractor would be stretching the language employed by the legislature. The contractor who agrees to construct a public improvement and uses his own machinery does so on his own credit and not the credit of the public. It cannot be said that this crane was totally consumed in building the improvement. Furthermore, the repair work was not totally consumed in building the improvement. The machine was sold for $22,000 and will be used in future jobs. The fund contemplated by section 23 of the lien act is not an accident or indemnity fund, and the statutes, we feel, were never meant to include equipment damaged through accident or negligence of an employee.

The case of D. D. Kennedy, Inc. v. Lake Petersburg Ass’n, 54 Ill App2d 85, 203 NE2d 145, was called to the court’s attention by defendants. Inasmuch as sections 1 and 21 of the lien act were held to be applicable in that case we do not consider it helpful to a decision in this case.

In the cases of McMillan v. Joseph P. Casey Co., supra, and Standard Oil Co. of Indiana v. Vanderboom, supra, the Supreme Court in commenting on the law in both cases made the statement that there was no attempt to show the value of injury to machinery, etc. Injury or damage to machinery is not specifically mentioned in section 23. That language, as we see it, could only have been taken from the Alexander case where the court merely held that it was claimed that a small part of the claim of appellant Gould was for work in repairing machinery and tools. But as pointed out heretofore, the trial court in the Alexander case had found that the claims were for material and labor supplied the contractor and that the Supreme Court in the Alexander case affirmed the decree of the trial court without deciding whether the claim was for repairing machinery and tools. Neither the McMillan case, supra, nor the Standard Oil Co. of Indiana case, supra, involved damage or injury to machinery or tools, and a decision covering such point was not made in either of those cases.

In the McMillan case (McMillan v. Joseph P. Casey Co., 311 Ill 584, 143 NE 468), the court said on page 590: “There was no attempt to show the value of the use of or injury to the machinery, equipment, appliances or material by the two appellants, . . . .” The last quoted statement, no doubt, was made in reference to the rights of the owner of rental equipment in respect to injuries to such equipment when on rental; and even if it were the law that the lessor of equipment is entitled to a lien for the injury to his equipment in addition to the amount of his rental or use value, the plaintiff here would not benefit thereby. There is no evidence that there were any injuries to anything plaintiff supplied. The parts supplied by the plaintiff to the general contractor and the plaintiff’s labor incorporating them into the machine were not consumed or injured in the contractor’s performance of his contract. By the material and labor furnished by the plaintiff the contractor’s crane was merely restored to the same or better condition than it was prior to the accident. The plaintiff does not seek the value of the use of such repairs, nor does he claim that there was any damage or injury thereto. The plaintiff was not the owner of the crane or the owner of the damaged parts, and plaintiff’s property neither sustained nor incurred any injuries or damage from the accident, and therefore if the foregoing statement appearing in the McMillan case, supra, is the rule, which the plaintiff claims it to be, it has no application to the facts in the case at bar.

The second point raised by the defendants is that the plaintiff is not entitled to recover upon the statutory performance and payment bond of Aetna Casualty & Surety Company. The bond sued upon bears the following condition:

“Now, if the said Arthur J. Siegel, . . . shall in all things stand to, abide by, and well and truly keep and perform all of the covenants, conditions and agreements mentioned and contained in said contract . . . including the covenant that the said Arthur J. Siegel . . . shall be responsible for all liabilities incurred for labor furnished or materials used in the prosecution of the work provided for in said contract, and shall promptly make payment to all persons supplying him labor or materials in the prosecution of said work, then the above obligation to be void, otherwise to remain in full force and effect.”

Paragraphs 15 and 16 of chap 29, (Ill Rev Stats 1961, c 29, pars 15, 16) provide in part as follows:

“15. All officials, boards, commissions or agents of this State, or of any political subdivision thereof . . . shall require every contractor for such work to furnish, supply and deliver a bond . . . conditioned for the payment of material used in such work and for all labor performed in such work, whether by subcontractor or otherwise.
“Each such bond shall be deemed to contain the following provisions whether such provisions be inserted in such bond or not:
“ ‘The principal and sureties on this bond agree to pay all persons . . . having contracts with the principal ... all just claims due them under the provisions of such contracts for labor performed or materials furnished, in the performance of the contract on account of which this bond is given . . . .’
“16. . . . Every person furnishing material or performing labor . . . for any contractor . . . shall have the right to sue on such bond . . . .”

The plaintiff argues that section 28 of the lien act (Ill Rev Stats 1961, c 82, § 23) provides that any person who shall furnish “material, apparatus, fixtures, machinery or labor to any contractor” having a contract for a public improvement shall have a lien upon the money, bonds or warrants due or to become due the contractor; that a comparison of section 23 with paragraph 15 of chapter 29 relating to public contracts shows that both used the identical words “material and labor”; and that while in paragraph 15 of chapter 29 the words “apparatus, fixtures and machinery” are not present as in the case of section 23 of the lien act, it is, nevertheless, of no consequence so far as the issue here is concerned.

Plaintiff relies on the case of Illinois State Toll Highway Commission v. M. J. Boyle & Co., 38 Ill App2d 38, 186 NE2d 390, and relies upon a statement by the court on page 51 as follows:

“In this opinion we are not attempting to interpret or construe the statute. Once the principals and sureties have given a bond which satisfies the minimum requirements provided for in the statute the statute in a sense becomes functus officio. There is nothing to prevent the parties from entering into a contract and bond which go far beyond the statutory provisions, where they are entered into by parties competent to contract and they are not prohibited by law. The rights of the plaintiff here depend upon the meaning of the contract and bond. The statutory provisions concerning mechanic’s liens are not controlling in the present case. The plaintiff is not seeking to enforce a lien but is pursuing an entirely independent remedy.”

In the Illinois State Toll Highway Commission case, supra, the bond being construed went much further than the statute required, and provided that prevailing wages for the work performed in accordance with the contract must be paid, together with money due not only for labor and material, as required in the statute, but also for apparatus, fixtures or machinery and transportation with respect thereto, which were furnished for the purpose of performing such work. The court pointed out that the question was whether, when a performance bond such as the one in that case is given, which goes far beyond the statutory provisions, recovery can be had against the principals and sureties in a suit on such bond. The court concluded in that case that because the bond was a voluntary bond given by the principals and sureties over and beyond the statutory requirements, the plaintiff was entitled to recover from the surety for items for which the supplier could not have established a lien under section 23 of the lien act.

It therefore becomes necessary for us to determine whether the bond in this case went beyond or covered matters which would not have been lienable under section 23.

In the Illinois State Toll Highway Commission case, supra, the bond, after stating the substance of the contract between the principals and the Illinois State Toll Highway Commission, provided that the principals pay not less than the prevailing wages for the work to be performed in accordance with such contract, and also pay “all sums of money due for any labor, materials, apparatus, fixtures or machinery, and transportation with respect thereto, furnished to such Principals for the purpose of performing such work in accordance with the provisions of the contract and any and all duly authorized additions, alterations, cancellations and deductions which may be hereafter made pursuant to said contract . . .

An additional provision of the bond provided that the sureties have “agreed that this bond shall inure to the benefit of any person, firm, company or corporation to whom any money may be due from the Principals, any subcontractor, or other person for any such labor, materials, apparatus, fixtures or machinery, and transportation with respect thereto, so furnished and that suit may be maintained on such bond by any such person, firm, company or corporation for the recovery of any such money.” (Emphasis supplied.)

It can be readily seen that the bond given in the Illinois State Toll Highway Commission case differs materially from the provisions of the bond in the instant case. The bond in the case at bar is conditioned that the contractor shall perform the covenants of the contract “. . . including the covenant that the said Arthur J. Siegel, doing business as aforesaid, shall be responsible for all liabilities incurred for labor furnished or materials used in the prosecution of the work provided for in said contract, and shall promptly make payment to all persons supplying him labor or materials in the prosecution of said work.” (Emphasis supplied.) In our opinion the condition of the bond is no broader than the language used in section 23 of the lien act. The repair parts and the labor connected with the repair of the crane were not “used in the prosecution of the work provided for in said contract,” in that they were not consumed in the project. It is the contractor’s responsibility to maintain his equipment in a workable condition to the end that the job may be done expeditiously and within the contract price. Because of the negligence of the operator of the crane, a delay was, no doubt, caused in the prosecution of the work.

While this court realizes that this case must be decided upon Illinois law both as to the lien against the fund and the liability of the surety, nevertheless, cases from other jurisdictions are important, not only for their direct holdings, but for the very persuasive reasoning which dictated the decisions.

In the case of Clifton v. Norden, 178 Minn 288, 226 NW 940, suit was brought on a public contractor’s payment bond for labor and materials in installing new main bearings, pistons, drive shafts and many other major repair items in a fleet of trucks owned by the contractor and used in a road building contract. The repairs were made during the course of the work and there was no proof that any of the parts were worn out on the job. The Supreme Court of Minnesota denied recovery and said the question was whether the words “work . . . tool, machinery or materials” furnished under or for the purpose of such contract or for its completion, in accordance with its terms, would cover the claims made by the plaintiff. The court on page 941 said:

“Literally, in its inclusion of equipment and machinery, the statute reaches the cost of new articles purchased by a contractor for use and used on a given work, even though they become part of his permanent and general equipment and will serve on other and perhaps many other contracts as well. But to conclude that the language was meant so literally would lead at once into absurdity. Plainly it was not intended that sureties for a $25,000 contract may be liable for the cost of a steam shovel outfit purchased, to be first used on that job, at a cost of possibly twice the contract price. So, as frequently happens, the language must be restricted within the reasonable limits easily found when applied to its subject-matter.
“The law was not intended to permit a contractor to go onto a bonded job with a run-down outfit and have it rebuilt at the expense of his sureties. Public contracts require the contractors to furnish their own equipment. . . . Moreover, they demand, expressly or by direct implication, that his equipment be maintained by the contractor in a workable condition to the end that the job may be done expeditiously and within the contract price. ... So also if a truck break down on the job beyond possibility of repair or be completely wrecked and be replaced by a new one which will serve other jobs as well, the cost of the new machine is not within the bond. The same must be true of any part of a machine which, through use or casualty, must be replaced. If it is such that it will normally not only serve the job in hand but others as well, its cost is not covered.”

In Madison Lumber Co. v. Crane Service Co., Inc., 129 So 189, 14 La App 363, the court held that the payment bond of a contractor on a public job was not liable for lumber furnished to repair the contractor's pile driver which was damaged by the negligent operation of the driver. The court said at page 189:

“Our attention has, however, been called to the fact that the repairs made were not necessitated by ordinary use, or by wear and tear, but were required because of the fact that the pile driver, through carelessness of the employees of the subcontractor, was allowed to turn over, with the result that it sustained damage . . . .”

The court stated that the statutes never meant to include equipment damaged by the negligence of an employee.

The case of Alpena v. Title Guaranty & Surety Co., 159 Mich 329, 123 NW 1126, involved repairs to the contractor’s equipment resulting from an accident. The plaintiff sued for the value of labor in raising contractor’s dredge which sank while the contractor was using it in performing the contract work. The court said at page 334: “A very cogent reason for not extending the protection of the bond to that class to which the use plaintiff herein belongs is that to do so would tend to impair, if not absolutely destroy, the value of the bond to those who, in fact, did perform labor or furnish materials ‘in the erection, repairing, or ornamenting of such building, works, or improvements.’ ”

Because of the foregoing, the decree of the trial court decreeing a section 23 lien upon money, bonds or warrants in the hands of the Board of Education of the City of Chicago, and entering judgment in the sum of $6,732.-54 against defendant Aetna Casualty & Surety Company upon the statutory performance and payment bond, is reversed. Inasmuch as Arthur J. Siegel, d/b/a Seco Construction Company, did not appeal, and probably had no defense to the action, the decree is sustained insofar as it entered judgment for $6,732.54 against Arthur J. Siegel d/b/a Seco Construction Company. The decree further directed that all costs, stenographic and master’s fees be adjudged against the defendants. This part of the decree is reversed insofar as it relates to Aetna Casualty & Surety Company, a corporation, and Board of Education of the City of Chicago, a body politic.

Reversed in part and affirmed in part.

SCHWARTZ and DEMPSEY, JJ., concur.


author: MR. JUSTICE DEMPSEY

text:
    People of the State of Illinois, Plaintiff-Appellee, v. James Bracken (Impleaded), Defendant-Appellant.
    Gen. No. 50,167.
    First District, Third Division.
    February 10, 1966.

      Clarence M. Dunagan and Emmet F. Byrne, of Chicago, for appellant.
    Daniel P. Ward, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and James B. Klein, Assistant State’s Attorneys, of counsel), for appellee.
   MR. JUSTICE DEMPSEY

delivered the opinion of the court.

James Bracken was indicted for murder, was found guilty by a jury and was sentenced to the penitentiary for a term of 25 years.

The defendant was indicted jointly with Roy McGovern, Eugene Avery, Donald Cogían, Phillip Kolep, LeRoy Buick and Dennis Doherty. Buick was not tried because he was found in a pretrial sanity hearing to be mentally incompetent, and Doherty was granted a separate trial. Bracken and the four remaining defendants were tried together but this appeal is by Bracken alone.

Bracken bases his appeal on the grounds that the trial court erred in denying him a separate trial and that there was no evidence sufficient to sustain his conviction.

On the night of June 21, 1960, McGovern and Roseann Beckman were in a tavern on the corner of 87th Street and Wallace Avenue in Chicago. Around two o’clock in the morning someone suggested going to another tavern. McGovern and Mrs. Beckman left the tavern in McGovern’s car accompanied by Avery, Cogían and Kolep. Just before reaching the corner of 43rd and Parnell, McGovern-passed a two-door Ford sedan driven by Buick and in which Doherty and Bracken were passengers. The Ford followed McGovern’s car to 43rd and Parnell. When McGovern stopped his car at that corner, Mrs. Beckman got out and began walking down 43rd Place. One of the men in the Ford asked McGovern who the girl was, and McGovern replied that they could “have” her if they wanted her. Someone called out Bracken’s name. Kolep, having recognized one of the men in the Ford, called to him and then entered the Ford. McGovern and Cogían followed Mrs. Beckman down the street. About 300 feet away from and in sight of the Ford, both men struck her and she fell, hitting her head on the sidewalk. The Ford then drove up. Mrs. Beckman was picked up and placed in the back seat. Buick, Doherty and Bracken were in the front seat of the Ford; McGovern, Avery, Cogían, Kolep and Mrs. Beckman were in the back seat. The Ford was driven a half block into an alley where McGovern had intercourse with Mrs. Beckman. Kolep then left. Cogían took Mrs. Beckman’s rings. When someone said that Mrs. Beckman might be dead, McGovern, Avery and Cogían ran away. Buick, Doherty and Bracken took Mrs. Beckman to a desolate area near a railroad track and dumped her on the ground and fled. Her lifeless body was later found where it had been left. (For additional facts see: People v. Kolep, 29 Ill2d 116, 193 NE2d 753 (1963); People v. Doherty, 28 Ill2d 528, 193 NE2d 37 (1963) (conviction affirmed).

The defendant’s first' point is that the trial court erred in denying his motion for a separate trial. The defendant’s petition for a severance set forth that Cogían had made written statements accusing Bracken of having sexual relations with Mrs. Beckman, that Bracken denied having intercourse with her, and that Coglan’s statements if admitted into evidence would conflict with Bracken’s defense. The defendant stated further that since he was not with the other defendants at the tavern (having come into contact with them only after they had taken some measures in furtherance of the planned rape) it would be unfair to him to be tried with his co-defendants.

The general rule is that persons jointly indicted for the commission of a crime should be tried together, and whether a separate trial should be granted is largely within the sound judicial discretion of the trial court. People v. Wilson, 29 Ill2d 82, 193 NE2d 449 (1963), cert denied 377 US 955. The paramount inquiry is whether the defenses are of such an antagonistic nature that a severance is imperative to insure a fair trial. People v. Grilec, 2 Ill2d 538, 119 NE2d 232 (1954). It is incumbent upon a defendant moving for a separate trial to show how he would be prejudiced by a joint trial; if he fails to do so he cannot complain of the denial of his motion. People v. Lindsay, 412 Ill 472, 107 NE2d 614 (1952). Before the trial of this case the prosecuting attorney agreed that no statement made by a codefendant outside the presence of and implicating Bracken would be used against Bracken. This agreement was implemented by a conference of the trial court and the prosecuting and defense attorneys in which all references to Bracken were deleted from the written statements given to the law enforcement authorities by Bracken’s codefendants. In the Lindsay case the Supreme Court stated:

“Ordinarily, confessions, or admissions of a codefendant are not competent as against the defendant not making them, but are competent when properly restricted as against the defendant making the confession or admission; and where a motion for separate trial is made on the ground of confessions of others implicating the defendant making the motion, a severance should be ordered unless the State’s Attorney declares that the confessions or admissions will not be offered in evidence on the trial or unless there be eliminated from the confessions any reference to the complaining defendant. (People v. Fisher, 340 Ill 216.)”

In view of the arrangements made pertaining to the statements of the other defendants, Bracken’s principal reason for a severance was obviated. Moreover, each time one of these expurgated statements was offered into evidence and each time a witness testified to a conversation with one of the codefendants, the trial court instructed the jury that the statement applied only to the defendant making it and not to any other person. Bracken’s subordinate reason for a severance (that he would be prejudiced by evidence of the events prior to the time he joined the group) did not sustain his burden of showing a prejudicial conflict in defenses. In reality, Bracken’s absence from the group when the first steps were taken toward the commission of the offense was advantageous to him since his defense was that he did not strike or ravish Mrs. Beckman and that he did not aid and abet the acts of violence committed upon her. The trial court was solicitous in protecting the defendant from any prejudice arising from the joint trial and did not abuse its discretion in denying him a severance.

The defendant’s second point is that the evidence was insufficient to sustain his conviction. The defendant does not deny that Mrs. Beckman was ravished and killed, but he does deny that he struck or raped her and that he joined in any conversation or act relative to the crimes. The killing of a human being, even without intent to do so, constitutes the offense of murder if it occurs during the commission of an unlawful act which in its consequences naturally tends to destroy life or if it occurs in the prosecution of a felonious intent. Ill Rev Stats c 38, par 363 (1959). A person who stands by and aids, abets or assists, or who not being present, aiding, abetting or assisting, has advised, encouraged, aided or abetted the perpetration of a crime is an accessory before the fact, and shall be considered as a principal and punished accordingly. Ill Rev Stats c 38, par 582 (1959). Mere presence or negative acquiescence in the commission of a crime is not enough to constitute one an accessory before the fact, People v. Shields, 6 Ill2d 200, 127 NE2d 440 (1955); but a person may aid or abet without actively participating in the overt act. People v. Brendeland, 10 Ill2d 469, 140 NE2d 708 (1957). Evidence that a defendant voluntarily attached himself to a group bent on illegal acts with knowledge of its design supports an inference that he shared the common purpose and will sustain his conviction as a principal for a crime committed by another in furtherance of the venture. People v. Rybka, 16 Ill2d 394, 158 NE2d 17 (1959). If the proof shows that a person is present at the commission of a crime without disapproving or opposing it, it is competent for the jury to consider this conduct in connection with other circumstances and thereby reach the conclusion that he assented to the commission of the crime, lent to it his approval, and was thereby aiding and abetting its commission. People v. Kolep, 29 Ill2d 116, 193 NE2d 753 (1963); People v. Valentine, 60 Ill App2d 339, 208 NE2d 595 (1965). Although the proof tending to show that one is an accessory before the fact generally would be of events occurring before the inflicting of the fatal blow, evidence of subsequent acts is nonetheless competent to prove participation in the criminal assault. People v. Cione, 293 Ill 321, 127 NE 646 (1920).

The killing of Mrs. Beckman occurred in the prosecution of a felonious intent to rape her and constituted the offense of murder, and the evidence establishes the defendant’s guilt as an accessory before the fact. Bracken was in the front seat of the Ford when McGovern told its occupants that they could “have” Mrs. Beckman. Bracken was in a position to see Mrs. Beckman struck but made no attempt to protect her, made no protest, made no effort to call the police and did not leave the scene. Bracken remained seated in the front seat of the Ford with Buick and Doherty, while Mrs. Beckman and the four other defendants were crowded into the back seat. Since it was a two-door car he had to move to let them in. He remained in the car when it was driven to the alley and he remained in the car while the intercourse took place in the back seat. He did not object to the commission of this offense. When the other defendants fled he aided Buick and Doherty in taking the body of Mrs. Beckman from the alley to an unfrequented place and in removing her body from the car and in placing it on the ground. From his course of conduct before and after the offenses justifiable inferences could be drawn that Bracken had knowledge of the intent of his companions and that his continued presence was for the purpose of assisting and abetting them in the attack on Mrs. Beckman.

The evidence was sufficient to sustain the defendant’s conviction and the jury’s finding of guilty will not be disturbed. The judgment is affirmed.

Affirmed.

SULLIVAN, P. J. and SCHWARTZ, J., concur.


author: MR. JUSTICE SCHWARTZ

text:
    Otto Koenigshofer, et al., Plaintiffs-Counter-Defendants, Appellees, v. George B. Shumate, et al., Defendants-Counter-Plaintiffs, Appellants.
    Gen. No. 50,282.
    First District, Third Division.
    February 10, 1966.

      Concannon, Dillon, Snook & Morton, of Chicago (William R. Dillon and Thomas E. Dillon, of counsel), for appellants.
    Favil David Berns and Samuel B. Bass, of Chicago, for appellees.
   MR. JUSTICE SCHWARTZ

delivered the opinion of the court.

This is an appeal from an order confirming a judgment by confession and ordering that defendants take nothing by a counterclaim. Plaintiffs, Otto Koenigshofer and his wife Anna, had leased to defendants, George B. Shumate and his wife Mary, a building for use as a rooming house. The judgment was for rent due for a three-month period under the lease. The issue presented is whether the lessors’ failure to correct substantial violations of city housing regulations constitutes a constructive eviction so as to end the liability of the lessees who took the property with actual knowledge of its condition and later vacated it when the city sought compliance.

The lease was made in 1958. Late in 1961 the Department of Buildings gave notice that there were substantial violations of provisions of the Municipal Code (enacted prior to 1958) and ordered compliance with the following requirements:

“Provide two direct means of exit for occupants of first, second and third floors. . . .
“Provide proper one-hour stairwell enclosure with self-closing Class ‘B’ fire doors. . . .
“Provide one-hour corridor enclosures with 1%," solid core doors and 1%" solid rebated frames. . . .
“Provide one-hour fire separation between all units on first, second and third floors. . . .”

Otto Koenigshofer, who resided in California, requested that George Shumate appear before a Compliance Board on his behalf. Later Koenigshofer returned to Chicago briefly and found that compliance would cost an estimated $18,000. When compliance did not take place, .both of them were named as defendants in a suit for penalties in the amount of $800. Koenigshofer was nonsuited for lack of service. When the case came up for trial, the court indicated it would reduce the fine if Shumate vacated the building. The case was then continued with no order being entered. Defendants did vacate after notifying the plaintiffs that they considered the lease terminated on the ground of constructive eviction, that they were serving notice of termination of tenancy upon the occupants of the building, and that they were withholding one month’s rent as security for damages. When the case was again called for trial, Shumate was found guilty and fined only $100. Plaintiffs reentered the premises, complied with the requirements at a cost of $17,000, and after two months vacancy in which the repairs were made, they were able to relet the premises. The judgment in question was for the rent for those three months.

The lease contains clauses making the lessees generally responsible for repairs. Defendants argue that repairs of this nature are so substantial and unforeseen as to be “structural” in character and not within the scope of those clauses. However, they say, the lessors are responsible and their failure to make these vital improvements amounts to a constructive eviction.

It is well established that where a lease contains a clause making the lessee generally responsible for repairs, the expense of repairing subsequently discovered deficiencies falls upon the lessee, unless the deficiency is so substantial and unforeseen as to be termed “structural.” See Kaufman v. Shoe Corp. of America, 24 Ill App2d 431, 436, 164 NE2d 617. It has been thought unfair to require a lessee to provide substantial permanent improvements necessary to his enjoyment of the lease which he could not have foreseen when the term began. Thus, the classification of repairs as “structural” depends not so much on the physical characteristics of the deficiency as on its foreseeability, from which the intentions and agreement of the parties may be inferred.

The collapse of a building through a grave defect concealed in its structure, for example, would ordinarily be unforeseeable. The responsibility for such a repair would rest on the lessor. But there is no law against letting a tumbledown house. 1 Tiffany on Landlord and Tenant 557 (1910). If the lessee knew of the defects when executing the lease, it can and should be presumed that he accepted the property as it stood at the time of leasing. Under such circumstances, as between lessor and lessee neither would be liable.

In the instant case, the defendants inspected the premises floor by floor and examined the corridors. Defendants admitted that the conditions on which constructive eviction is predicated preexisted the lease. Inspection must have disclosed the lack of fire enclosures in the stairwell and corridors and the inadequate number of direct exits. Defendants are charged with knowledge of the ordinance, which was in effect before execution of the lease. The commencement of legal proceedings by the city was unforeseeable only in the sense that one might have calculated that illegal conditions on any single piece of property in the city were likely to remain undiscovered.

The defects having existed and being known to the lessees when the building was let, their later discovery by the city in no way affects the lessees’ obligations under the lease. Kiernan v. Bush Temple of Music Co., 229 Ill 494, 82 NE 410; Eskin v. Freedman, 53 Ill App2d 144, 203 NE2d 24. In the Kiernan case the city had obtained the closing of a theater for failure to correct substantial violations of the building ordinance. The lessee sought an injunction against collection of rent on the ground that the lessors had breached an implied covenant of quiet enjoyment by their failure to correct the violations. The court upheld the denial of that relief and said (pp 505, 506):

“The lessee, equally with the lessor, must be presumed to have known of the provisions of the building ordinance in force when the lease was executed . . . [The illegal conditions] were all matters that could be readily seen .... No covenant on the part of the lessor can be implied that the lessee should be permitted to use the demised premises in violation of the building ordinance. . . .• [T]he complainant had used . . . movable scenery in a building so constructed that the use of movable scenery therein was prohibited . . . and gave the city authorities the right to close the theater. We do not think that the disturbance of the lessee’s enjoyment of the demised premises thus occasioned can be held a breach of the lessor’s implied covenant. . . .”

Similarly, in Eskin v. Freedman, supra, the city had obtained a mandatory injunction requiring the lessors of a building used as a rooming house to reduce the number of rental units from 49 to 12. The lessees charged that on account of the violations, the lessors had breached an implied warranty that the premises were fit for the use for which they were demised. The court held that the lessees had no cause of action in the absence of an allegation that “the lessors knew of the existence of the violations . . . and failed to disclose such knowledge to the [lessees] who were ignorant of such violations.” (P 154.)

Several New York cases are cited by defendants. In Herald Square Realty Co. v. Saks & Co., 215 NY 427, 109 NE 545, 546 (1915) the lessors were held responsible for substantial improvements which were unforeseeable insofar as they became necessary because governmental regulations or policies were changed after the execution of the lease. Contrary cases cited are Younger v. Campbell, 163 NY Supp 609 (App Div 1917), and Sullivan v. New York United Realty Co., 293 NY Supp 957, 960 (App Div 1937), where lessors were held responsible for substantial changes required by enforcement of city regulations which existed when the leases were made. These cases depart from the rationale expressed by the Court of Appeals in the Herald Square Realty case, supra, and reflect an unacceptably narrow viewpoint as to the contingencies which parties to a lease should foresee.

It is our conclusion that the lessors were not responsible under the lease for the making of the repairs in question and that there was no constructive eviction. The dismissal of the counterclaim was proper and the judgment is affirmed.

Judgment affirmed.

SULLIVAN, P. J. and DEMPSEY, J., concur.


text:
    People of the State of Illinois, Plaintiff-Appellee, v. Juan R. Tolentino (Impleaded), Defendant-Appellant.
    Gen. No. 50,444.
    First District, Third Division.
    February 10, 1966.
    Gerald W. Getty, Public Defender of Cook County, of Chicago (Marshall A. Patner, Frederick F. Cohn and James J. Doherty, Assistant Public Defenders, of counsel), for appellant.
    Daniel P. Ward, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and E. James Gildea, Assistant State’s Attorneys, of counsel), for appellee.
   MR. JUSTICE DEMPSEY

delivered the opinion of the court.

Two indictments were returned against Juan Tolentino and Robert Medino. One charged them with the robbery of Robert P. O’Connor, the other with the robbery of John R. Logan. They entered pleas of not guilty and waived trial by jury. The indictments were tried together. The trial court found them not guilty of either robbery but found them guilty of “the lesser included offense of theft” of the property of O’Connor. They were found not guilty of theft as to Logan.

Tolentino was sentenced from three to seven years in the penitentiary and this appeal is by him alone. He contends that his conviction should be reversed because (1) the trial court’s finding that he was guilty of theft is inconsistent with the court’s own explicit findings of fact and (2) the indictment was invalid.

In the early morning of January 12,1964, O’Connor and Logan spent four hours drinking in a tavern on West Madison Street, Chicago. When the tavern closed at 5 a. m. they went to a restaurant at Halsted and Madison Streets .and stayed there for a half hour. When they left the restaurant they walked west on Madison. O’Con-nor had $40 and some small change on his person; $34 of the $40 was in his key case. Logan had about $45 with $40 of that being in a separate pocket.

O’Connor next remembered waking up in a hospital. Logan saw O’Connor struck in the back of the head and he was struck in the front of the head at the same time. He also came to in the hospital. O’Connor had a cut on the side of his head and Logan had a cut on the front of his head which required 17 stitches. Neither had seen the assailants nor the instruments with which they were struck. O’Connor was missing his key case, the money therein and some change; Logan was missing $5 or $6 in currency.

Two Chicago police officers were driving eastward on Madison at about 5:30 a. m. As they approached Halsted they saw two men bent over two other men lying on the sidewalk on the northwest corner of the intersection. There was no one else in the vicinity. The two men on their feet were Tolentino and Medino and the two prostrate, bleeding men were O’Connor and Logan. The officers observed Tolentino going through Logan’s pocket and saw him hand something from the pocket to Medino. The two ran when the officers approached. Immediately prior to being taken into custody, Tolentino threw some money to the ground. He was searched and the money thrown on the ground together with the money on his person totaled $3.04. He had blood on his hands. Medino was also apprehended and searched; a key case containing $34, $12 in currency and some change were found on his person. The victims were taken to the hospital and when they regained consciousness O’Connor identified the key case found on Medino and the $34 as his. Two hours later the officers searched the area where the crime was committed but found no weapons.

Tolentino testified that on the morning of January 12, 1964, he had been drinking beer in West Madison Street taverns and that from 4:30 to 5:00 a. m. he had been with a friend, Lorenzo Ramirez. He said they got in Ramirez’ auto to drive to the south side but that he changed his mind and they returned to Madison and Halsted, where Ramirez parked his auto and waited while he went to get some coffee. He related that on his way to the restaurant he observed a fight between four persons at the corner. He said he watched the fight for 15 minutes, during which time two men knocked down and kicked the two complaining witnesses and then ran off. He denied striking Logan and O’Connor, denied going through their pockets and stated that the first time he saw Medino was when they were arrested.

Eamirez corroborated Tolentino’s testimony in part. He testified that he met him in a tavern and that Tolentino was drunk at the time. He said they left the tavern at 5:00 a. m., drove a few blocks and turned around and went to Madison and Halsted Streets. He said he waited in his car for 15 minutes and when Tolentino did not return he went home.

Medino denied knowing Tolentino. He said he was in the restaurant on the corner, noticed four men fighting and went outside to watch. Two of the four men were Logan and O’Connor. He said he did not see Tolentino in the fight nor did he see Tolentino standing next to him when he bent over to assist the victims. He explained that he ran when the police approached because he couldn’t afford to be investigated.

It is argued that the court was inconsistent in finding the defendant guilty of theft and not guilty of robbery, and in finding him guilty of theft from O’Connor and not guilty of theft from Logan. In making these findings the court gave the defendant the benefit of every doubt. Where the record contains evidence upon which a finding of theft may be made, the fact that the evidence would have justified the court in finding the defendant guilty of robbery is not a matter of which the defendant can complain. The record also would have justified a finding of guilty of theft from Logan. The defendant cannot complain that he was found not guilty of stealing Logan’s money when he could have been found guilty of doing so. O’Connor’s key case and the $34 within it were more readily identifiable than the currency lost by Logan, and the court resolved any doubt in favor of the defendant by finding him guilty of theft from O’Connor only.

Although the key case was found on Medino, the evidence showed Tolentino’s complicity in the crime. A person is legally accountable for the conduct of another when during the commission of an offense, with the intention to facilitate such commission, he aids or abets such other person in the commission of the offense. Ill Rev Stats 1963, c 38, par 5-2; People v. Valentine, 60 Ill App2d 339, 208 NE2d 595 (1965). Both Tolentino and Medino were seen hovering over the robbery victims; Tolentino was seen going through the pockets of one of them; he passed something to his confederate, fled when he saw policemen coming and had blood on his hands. The evidence established his guilt of theft from O’Connor as .much as it did Medino’s, from whose person O’Connor’s possessions were recovered.

The court’s findings were not inconsistent with the evidence and they were not inconsistent with the indictment. The court found the defendant “guilty of the crime of theft . . . being a lesser included offense in indictment 64-603,” and specifically found him guilty of the “offense of theft by obtaining unauthorized control over the property of Robert O’Connor, being $34 in United States currency and a key case taken from him ... in violation of Chapter [sic] 16-1, Paragraph A, Chapter 38 of the Illinois Revised Statutes 1963.” In determining the meaning of a finding of guilty the entire record will be searched and all parts of it interpreted together. Cf. People v. Bailey, 391 Ill 149, 62 NE2d 796 (1945). From the sentence imposed (three to seven years in the penitentiary) it is obvious that the “lesser included offense” found by the court was not just the theft of $34 and a key case, but the theft of this property from the person of O’Connor. The defendant’s sentence was in conformity with the penalty provided for this aggravated form of theft. Ill Rev Stats 1963, c 38, par 16-1.

The difference between theft from the person and robbery lies in the force or intimidation used in robbery and the absence of such force or intimidation in theft. People v. Ryan, 239 Ill 410, 88 NE 170 (1909). An indictment may be so drawn as to charge in one and the same count the offense of robbery and also the offense of theft, and the defendant may be convicted of either offense, according as it may be shown by the evidence, and a description and value may be alleged and proved which would be necessary in a charge of theft but would be immaterial on a charge of robbery and could be rejected as surplusage on that charge. People v. Keene, 391 Ill 305, 63 NE2d 509 (1945); People v. Rusk, 348 Ill 218, 180 NE 863 (1932). The indictment charged that the defendants:

“. . . committed the offense of robbery in that they, by the use of force and by threatening the imminent use of force, took thirty-four dollars . . . and a key case from the person ... of Robert P. O’Con-nor. . . .”

The indictment as drawn, although in a single count, charged robbery, theft and an aggravated form of theft— theft from the person. It charged robbery by alleging the use of force in the taking of the property; it charged theft by describing and alleging the value of the property taken, and it charged theft from the person by alleging that the property was taken from the person of O’Connor. The lesser offenses of theft and theft from the person were included in the charge of robbery and came within the purview of the statute which defines an “included offense” as one which:

“ (a) Is established by proof of the same or less than all of the facts or less culpable mental state (or both), than that which is required to establish the commission of the offense charged. . . .” Ill Rev Stats 1963, c 38, par 2-9.

There is no merit to the defendant’s remaining contention that the indictment' is invalid because it failed to specify the time and place of the offense. People v. Blanchett, 33 Ill2d 527, 212 NE2d 97 (1965).

The defendant was properly convicted of the offense of theft and properly sentenced for the aggravated offense of theft from the person. The judgment will be affirmed.

Affirmed.

SULLIVAN, P. J. and SCHWAETZ, J., concur.


author: JUSTICE LYONS.

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Monroe Kane, Defendant-Appellant.
    Gen. No. 50,252.
    First District, Second Division.
    February 15, 1966.
    Gerald W. Getty, Public Defender of Cook County, of Chicago (Frederick F. Cohn and James J. Doherty, Assistant Public Defenders, of counsel), for appellant; Daniel P. Ward, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and George Saméis, Assistant State’s Attorneys, of counsel), for appellee.
   Opinion by

JUSTICE LYONS.

Not to be published in full.


text:
    Chicago Title and Trust Company, as Trustee Under Trust Agreement Dated May 29, 1963, and Known as Trust No. 45671, Plaintiff-Appellee, v. The County of Cook, a Body Politic and Corporate, Defendant-Appellant, and Village of Mount Prospect, a Municipal Corporation, and the Village of Arlington Heights, a Municipal Corporation, Defendant-Intervenors-Appellants.
    Gen. No. 50,393.
    First District, Second Division.
    February 15, 1966.
    Rehearing denied March 21, 1966.
    Daniel P. Ward, State’s Attorney of Cook County, of Chicago (Edward J. Hladis, Chief of Civil Division, and Thomas A. Hett, Assistant State’s Attorney, of counsel), for appellant; Jack M. Siegel and Ross, Hardies, O’Keefe, Babcock, McDugald & Parsons and Edward C. Hofert, of Chicago (Jack M. Siegel, of counsel), for intervenors-appellants; Haskins, Maguire and Has-kins, of Chicago (Robert E. Haskins and C. W. Eckert, of counsel), for appellee.
   Opinion by

JUSTICE LYONS.

Not to be published in full.