text:
    JEROME HARRIS, Plaintiff-Appellee, v. FAULTFINDERS, INC., Defendant-Appellant.
    First District (3rd Division)
    No. 79-2113
    Opinion filed December 30,1981.

      Coghlan, Joyce and Nellis, of Chicago (William J. Nellis, Robert P. Nolan, and Thomas C. Nyhan, of counsel), for appellant.
    Richard J. Hollander, of Silberman & Gershon, Ltd., and Wigoda & Wigoda, both of Chicago (William S. Wigoda, Robert M. Wigoda, and Gary I. Wigoda, of counsel), for appellee.
   PRESIDING JUSTICE RIZZI

delivered the opinion of the court:

Plaintiff, Jerome Harris, brought this action to collect unpaid commissions allegedly owed to him by defendant, Faultfinders, Inc. Plaintiff also sought to recover money owed to him pursuant to a profit sharing plan. Defendant filed counterclaims against plaintiff in which it alleged appropriation of trade secrets and confidential information, formation of a competing organization, breach of an employment agreement and unjust enrichment. In a bench trial, the trial court entered judgment in the amount of $10,000 in favor of plaintiff on the count relating to the unpaid commissions. The court entered judgment in favor of defendant on the count relating to the profit sharing plan. Judgment was entered in favor of plaintiff on the counterclaims. We affirm.

Plaintiff began his employment with defendant in July or August of 1971. He was hired to open a Chicago service center, and he was to test printed circuit boards and sell equipment on which the circuit boards could be tested. While employed by defendant, plaintiff signed a document entitled “Confidential Information and Patent Agreement.” The agreement provides that the employee is to faithfully and to the best of his ability perform such duties as the company shall direct, and the employee is to devote all of his working time to such services and duties. The agreement further states that for a period of one year after termination of his employment, the employee is not to render services, directly or indirectly, to any competitive organization.

In 1972, while plaintiff was at a sales meeting, an incentive plan for service center employees was introduced. The plan is based on the company’s two principal sources of income, which are sales of the company’s products and test service work. During a certain accounting period (six months for product sales and two months for services), the employee’s performance is monitored to determine his incentive pay. Under the plan, the company establishes a bogey for each employee, which is a base after which incentive pay is earned. Plaintiff’s bogey was his salary squared divided by 1000. Incentive pay related to services begins when the sales in a two-month period equal an employee’s bogey divided by 12. Incentive pay related to product sales begins when the sales in a six-month period equal an employee’s bogey. The company agreed to reduce an employee’s bogey pertaining to product sales in proportion to the attainment of his bogey pertaining to services.

In October 1974, plaintiff and Fred Wright, also an employee of defendant, incorporated a business known as Jefro. Plaintiff was an officer, director and 50% shareholder in the corporation. The business had been a partnership prior to its incorporation; the partnership began in approximately June of 1974. According to plaintiff, the sole purpose of the business was to service electronic game machines. Plaintiff had a friend who needed a technician to service the machines, and Wright was to perform the services. Plaintiff testified that he never solicited business on behalf of Jefro. He never attempted to sell any of Jefro’s products or services to defendant’s customers. The only service plaintiff performed for Jefro was that on one occasion he took a piece of equipment to Rockford.

Edward Vesely, a former employee of Motorola who was responsible for ordering test equipment, testified that Motorola was a customer of defendant. He first heard of Jefro in the second quarter of 1974 when Wright approached him offering his services as a programmer of defendant’s equipment. Motorola purchased software equipment from Jefro in May or June of 1974, and other programs were purchased in 1974 and part of 1975. Invoices and purchase orders from Jefro to Motorola were introduced into evidence.

Vesely testified that prior to December 1974, there was no connection of plaintiff to Jefro. According to Vesely, he first talked to plaintiff regarding Jefro in the fourth quarter of 1974. Vesely, plaintiff and Wright went to lunch, and plaintiff discussed the possibility of selling Motorola a holding fixture which would adapt defendant’s machine to a board being tested. Subsequently, Vesely generated a purchase requisition for a holding fixture to Jefro. Plaintiff’s name was on the purchase requisition, but it was scratched off.

According to Vesely, he talked to plaintiff a second time in the last quarter of 1974. During this meeting, plaintiff discussed delivering additional holding fixtures from Jefro to fit defendant’s systems or machines. Vesely stated that he spoke to plaintiff a third time at Motorola in February or March of 1975. Plaintiff pointed out some of the changes that could be made by interfacing defendant’s machine to the printed circuit board being tested in order to overcome some inadequacies of the fixture.

Plaintiff testified that at the first discussion with Vesely and Wright during the last quarter of 1974, they discussed defendant’s operations and the programming and fixturing of defendant’s machines for Motorola. Plaintiff did not make any solicitation regarding Jefro. When Vesely indicated that he was upset that he was not getting service or receiving programs from defendant’s office in New York, Wright suggested that he could write programs for Motorola on a part-time basis. According to plaintiff, during the second meeting with Wright and Vesely, Wright discussed some problems regarding the programs he was writing for Motorola. Wright did not make any request that Vesely purchase anything from Jefro. Plaintiff was representing defendant at this meeting. Plaintiff denied that he was at the third meeting at Motorola in February or March of 1975.

Plaintiff’s employment with defendant was terminated in January 1975. In July 1975, plaintiff sold all of his stock in Jefro to Wright.

Marilyn Kunz, an accountant, testified for plaintiff. Based on her calculations, plaintiff was owed $16,224 if plaintiff’s bonus is included in his salary. If the bonus is not included in the salary, plaintiff was owed $20,624. Kunz’s calculations were based on plaintiff’s designations of figures on defendant’s accounts receivable ledgers as being either product sales or services sales. Dan Casey, manager of accounting for defendant, testified that based on his calculations, plaintiff was owed $1754 in commissions if only Illinois customers were included. If some customers outside Illinois were included, plaintiff was owed $4973. Robert Sheedy, defendant’s expert witness, testified that he had audited Casey’s worksheets and the figures were reasonably accurate. Sheedy’s independent determination of commissions showed that plaintiff was owed $1750 if only Illinois customers were taken into account and $4000 if some out-of-State customers were taken into account.

The trial court found that plaintiff did not compete with defendant or make any solicitation on behalf of Jefro. The court also found that plaintiff was entitled to certain commissions, but that there were errors in all computations. A judgment for $10,000 was entered in favor of plaintiff.

Defendant first argues that the trial court’s finding that plaintiff did not compete with defendant is against the manifest weight of the evidence. Defendant contends that plaintiff breached the valid and enforceable restrictive covenant found in the “Confidential Information and Patent Agreement”; that plaintiff breached the common law duty of loyalty owed to defendant; and that because' of these breaches, plaintiff had no right to salary or commissions during this period of competition.

Plaintiff testified that he never solicited any business on behalf of Jefro and never attempted to sell any of Jefro’s products to defendant’s customers. According to plaintiff, the only service he performed for Jefro was that he took a piece of equipment to Rockford. There was no connection between this incidental trip and any of defendant’s customers. Although Vesely testified that plaintiff had discussed the sale of Jefro’s products to Motorola, this testimony was directly contradicted by plaintiff. Plaintiff acknowledged two meetings with Vesely but stated that he was representing defendant at these meetings. Plaintiff denied that he attended the third meeting mentioned by Vesely.

Defendant argues that Wright’s knowledge that Jefro was soliciting and performing services for defendant’s customers must be imputed to plaintiff since the knowledge of one partner is imputed to all partners (see Haywood v. Harmon (1856), 17 Ill. 477, 479; McDonald v. Western Refrigerating Co. (1890), 35 Ill. App. 283, 294). However, we do not believe that principle is controlling here where the action is between plaintiff, as employee, and defendant, as his employer. The suit is not brought by or directed against the partnership or the partners as members of the partnership. It does not relate to partnership business but, rather, involves the actions of plaintiff as an employee and whether those actions constitute improper competition with his employer.

Under all the circumstances, we conclude that the trial court’s finding that plaintiff did not compete with defendant, either during or after his employment, is not against the manifest weight of the evidence. Consequently, the finding of the trial court should not be disturbed. (National Acceptance Co. of America v. Pintura Corp. (1981), 94 Ill. App. 3d 703, 707, 418 N.E.2d 1114, 1118.) Defendant’s arguments are therefore unavailing,

Defendant next argues that the trial court’s exclusion of some of its exhibits was error. Defendant’s exhibit No. 1 consisted of plaintiff’s mileage and expense reports. The trial court refused to admit the exhibit since it had not been produced pursuant to a request to produce filed by plaintiff. Plaintiff’s request asked for documents relating to the calculation and payment of incentive pay, and it specifically defined “documents” as including expense reports. We conclude that the trial court did not abuse its discretion in determining that the mileage and expense reports should have been produced and in ruling that those reports should be excluded because of defendant’s failure to produce them.

Other exhibits were also excluded because of defendant’s failure to produce them pursuant to plaintiff’s request to produce. The request asked for “all documents relating to the calculation and payment of the ‘Incentive Pay’ of plaintiff * * 0 for the period from November 1, 1972, through and including April 30, 1975, including without limitation, purchase orders and invoices relating to " * # all other sales and service work performed by plaintiff.” Defendant maintains that the documents in question relate to sales outside plaintiff’s assigned service area. However, plaintiff’s service area was not specifically designated and was a matter for the trial court to determine. Also, the request plainly asked foV purchase orders and invoices relating to all sales and service work performed by plaintiff. Therefore, the trial court did not err in refusing to allow defendant to introduce these exhibits.

Defendant next contends that the trial court erroneously allowed plaintiff to amend his bill of particulars after trial to include additional commissions. In his bill of particulars, plaintiff set forth the sales for which he was entitled to commissions and the amount of the commissions. The documents which apparently formed the basis of plaintiff’s claims for additional commissions were produced subsequent to the filing of the bill of particulars and after plaintiff filed a motion for sanctions against defendant.

A decision to allow the amendment of a bill of particulars lies within the sound discretion of the trial court. (Brownell Improvement Co. v. Critchfield (1901), 96 Ill. App. 84, 90, aff'd (1902), 197 Ill. 61, 64 N.E. 332.) Here, we cannot say that the trial court abused its discretion, especially since the documents which were the basis of the amendment were in defendant’s possession, and therefore, defendant was not surprised.

Defendant also contends that plaintiff waived any right to commissions. Defendant bases this contention on the fact that plaintiff did not include commissions in a letter in which he set forth his financial claims against defendant. By letter, defendant had requested that plaintiff submit all of his claims against the company by February 7,1975. Plaintiff responded, stating that the only claims he had were two weeks’ severance pay, two weeks’ vacation pay and his share of the profit-sharing plan. Plaintiff testified that when he wrote this letter, he did not think of commissions as money owed immediately. He also testified that he had continually made oral requests for commissions prior to his termination. Plaintiff also explained that he only had about seven days to answer defendant’s letter, and he did not know the exact amount of commissions due. Approximately four months after sending this letter, plaintiff filed the instant suit.

Waiver occurs when a party intentionally relinquishes a known right, either expressly or by conduct inconsistent with an intent to enforce that right. (Saverslak v. Davis-Cleaver Produce Co. (7th Cir. 1979), 606 F.2d 208, 213; see Hartford Accident & Indemnity Co. v. D. F. Bast, Inc. (1978), 56 Ill. App. 3d 960, 962, 372 N.E.2d 829, 831; Kubinski & Sons, Inc. v. Dockside Development Corp. (1975), 33 Ill. App. 3d 1015, 1020, 339 N.E.2d 529, 533.) Here, the letter plaintiff sent to defendant did not contain any express waiver of plaintiff’s right to receive his commissions. Also, under the circumstances, we cannot say that the failure to list commissions in this letter constituted a waiver. Furthermore, plaintiff’s conduct does not lead to the conclusion that he was relinquishing his right to commissions. Plaintiff had been making oral requests for commissions, and then he brought this suit seeking unpaid commissions only four months after his employment was terminated. Plainly, nothing in the record indicates that plaintiff was intentionally relinquishing his right to commissions. Defendant’s argument is therefore without merit.

Defendant finally contends that the award of $10,000 to plaintiff is not supported by the evidence and is manifestly erroneous. Defendant complains that plaintiff’s evidence was impeached, and that plaintiff’s calculations were erroneous because of the characterization of some product sales as service sales, the inclusion of sales outside plaintiff’s assigned service area and the inclusion of a sale for which plaintiff should not have received credit.

The determination of damages by a trial court sitting without a jury will not be set aside unless manifestly erroneous. (Schatz v. Abbott Laboratories, Inc. (1972), 51 Ill. 2d 143, 149, 281 N.E.2d 323, 326; Society of Mount Carmel v. Fox (1980), 90 Ill. App. 3d 537, 543, 413 N.E.2d 480, 485.) In the present case, plaintiff’s expert witness testified that plaintiff was entitled to $16,224 or $20,624, while defendant’s expert witnesses testified that plaintiff was owed $1750-$1754 or $4000-$4973. However, the trial court specifically stated that both sides made errors in their computations. The court was entitled to believe only portions of each side’s testimony; it did not have to accept either the figure offered by plaintiff or the figure offered by defendant. Based on the extensive testimony as to damages offered by both parties, there was a reasonable basis in the record for the damages awarded. The damages awarded were within the range of evidence, and we cannot say that the trial court’s

determination was manifestly erroneous. See Schatz v. Abbott Laboratories, Inc. (1972), 51 Ill. 2d 143, 149, 281 N.E.2d 323, 326; Society of Mount Carmel v. Fox (1980), 90 Ill. App. 3d 537, 544, 413 N.E.2d 480, 486. Accordingly, the judgment of the trial court is affirmed.

Affirmed.

LINN and WHITE, JJ., concur.


source: Caselaw Access Project

author: PRESIDING JUSTICE RIZZI

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. LARRY E. DAVIS, Defendant-Appellant.
    First District (3rd Division)
    No. 80-123
    Opinion filed December 30, 1981.
    Rehearing denied February 17, 1982.

      Ralph Ruebner, of State Appellate Defender’s Office, of Chicago (Cecil Singer, of Singer & Stein, of counsel), for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Michael F. Shabat, Kevin D. Sweeney, and Edward F. Cozzi, Assistant State’s Attorneys, of counsel), for the People.
   PRESIDING JUSTICE RIZZI

delivered the opinion of the court:

Defendant, Larry Davis, was convicted of armed robbery (Ill. Rev. Stat. 1977, ch. 38, par. 18—2) in a bench trial and sentenced to 12 years in the penitentiary. He contends that (1) he was not proved guilty beyond a reasonable doubt, (2) he was denied his right to a fair trial because the State suppressed evidence, (3) the court erred in admitting certain evidence against him and (4) he was denied his constitutional right to effective assistance of counsel. We affirm.

An armed robbery occurred at an automobile repair garage in Chicago, Illinois on July 26,1978. Two of the people in the garage were Henry Jeffery, the owner of the business, and his secretary, Joyce Bell. The robber fled after the incident.

Defendant initially contends that the evidence is insufficient to identify him as the robber and that he was therefore not proved guilty beyond a reasonable doubt. Jeffery identified defendant as the robber. He testified that although defendant had a sheer nylon stocking over his face, he could clearly see defendant’s features. He testified that during the robbery he was able to view defendant’s side for 1/2 minutes while he was only eight feet away. He also viewed defendant as defendant marched Bell out of his office. In addition, he saw defendant as he took money from the cash register. The testimony of Bell corroborates Jeffery’s testimony. She testified that she was able to view defendant under good lighting conditions for 2 to 3 minutes and that she could see him clearly. Under the circumstances, we conclude that the testimony of Jeffery and Bell was sufficient to prove the identity of defendant beyond a reasonable doubt.

We next address defendant’s argument that he was denied his right to a fair trial because the State suppressed evidence. At the hearing on his post-trial motion, defendant testified that when he was taken into custody for an unrelated offense on August 7, 1978, he had a pouch with him which he referred to as his briefcase. It contained bond slips, a check book, an appointment book, telephone numbers and other similar items. After defendant was informed by the police that he was being charged with the robbery involved here, the police asked him whether he had an alibi. Defendant replied that he did not know and asked to see his briefcase. A police investigator dumped out the contents of the briefcase, and defendant viewed each item. When the investigator asked defendant whether he saw what he was looking for, defendant replied, “No, I don’t want to say anything until I see a lawyer.” Defendant further testified that when he asked the investigator and an assistant State’s Attorney to return the briefcase, the assistant State’s Attorney stated, “[Y]ou will get [it] back if you beat all the charges that are against you.” Defendant testified that he informed his attorneys about the briefcase and its importance to his defense.

It was stipulated that the briefcase and its contents were never inventoried, and defendant never saw the briefcase or its contents again. Defendant contends that the briefcase was vital to his defense because it contained information that would establish his whereabouts at the time of the robbery. He also claims his right to due process was violated because the State did not produce the briefcase pursuant, to his request.

In addition to the testimony presented by defendant at the post-trial hearing, testimony was presented by defendant’s two attorneys as well as the assistant State’s Attorney who was present when the investigator gave defendant his briefcase upon his initial request. The attorney who represented defendant prior to trial testified that although defendant mentioned the briefcase the first or second time they met, he did pot indicate that the contents were important or that they would provide him with evidence of an alibi. The attorney who represented defendant at trial testified that he did not recall defendant informing him of the existence of the briefcase or that its contents would be necessary to establish an alibi defense.

The assistant State’s Attorney testified that following defendant’s arrest, the briefcase was brought to defendant by a police investigator. The assistant State’s Attorney emptied the briefcase and divided the contents into two piles. The contents included loose papers, business cards, bills from body shops and furniture stores, traffic tickets and miscellaneous papers that had no identifying marks. There was no address book, notebook or book in the bag. Defendant did not complain that anything was missing. Both defendant and the assistant State’s Attorney searched the two piles of papers looking for anything that had the date of the robbery on it, but no dates corresponded to that of the robbery. The papers were put back in the bag, which was returned to the police investigator.

We cannot condone nor criticize too severely the fact that the briefcase and its contents were not inventoried and given to defendant when requested in his notice to produce. However, the record does not demonstrate that the briefcase or its contents were material to the State’s case or the defense. In addition, defendant has not stated or demonstrated in his brief or during oral argument specifically what was in the briefcase that would aid his defense or provide him with an alibi. Under the circumstances, we conclude that the State’s failure to produce the briefcase and its contents was harmless error.

Defendant next argues that the court erred in admitting evidence that placed defendant in constructive possession of a weapon linked to the robbery. At trial, a police officer testified to a statement made by defendant during the booking procedure. The officer stated that defendant gave his address as the second floor rear apartment of 718 N. Drake. A search warrant was obtained, and a search of that apartment revealed a gun resembling a machine gun, which was admitted into evidence. One of Jeffery’s customers testified that the gun looked like one used in the robbery.

Defendant contends that the officer’s testimony should not have been admitted because it was hearsay, and that the officer’s testimony regarding defendant’s address was crucial because it was the only evidence linking defendant to the weapon. The trial court, however, determined that the testimony was admissible as an admission. An admission is a statement of independent facts which, when taken in connection with proof of other facts, may lead to an inference of guilt, but from which guilt does not necessarily follow. (People v. Walters (1979), 69 Ill. App. 3d 906, 919, 387 N.E.2d 1230, 1240.) We conclude that the trial court did not err in deciding that defendant’s statement of his address was an admission.

Defendant further argues that even if the statement was an admission, it should not have been admitted because there was no affirmative showing that defendant received Miranda warnings before telling the police his address. However, mere preliminary questions with respect to an accused’s name and address, which are part of the routine booking proceedings, do not amount to an interrogation that can be described as designed to elicit incriminating testimony or admissions. It follows that no Miranda warnings were required. People v. Stewart (1980), 84 Ill. App. 3d 855, 858-59, 406 N.E.2d 53, 55-56; People v. Fognini (1970), 47 Ill. 2d 150, 152, 265 N.E.2d 133, 134.

Next, defendant contends that the officer’s testimony should not have been admitted because the State’s response to his motion for discovery did not list the oral statement made by defendant as to his address. However, before the officer testified, the State informed defendant regarding the gist of his testimony. Defendant did not indicate any desire to seek a continuance or interview the witness. Once the officer began testifying and defendant objected, the court also asked defendant if he wanted a continuance or an opportunity to interview the witness. Defendant declined these offers. The court also asked defendant how he would be prejudiced by the late disclosure of the officer’s testimony. Defendant was unable to make specific allegations of prejudice. Under the circumstances, we conclude that even if error was committed, defendant was not prejudiced by the admission of the officer’s testimony.

Lastly, defendant contends that he was denied his constitutional right to effective assistance of counsel. He argues that his counsel failed to secure the briefcase in the State’s possession, failed to adequately prepare for trial and failed to move for a mistrial. These contentions are without merit.

In determining the competency of counsel, the focus should not be on isolated instances during the trial. Rather, the totality of the circumstances must be considered. (People v. Williams (1981), 94 Ill. App. 3d 241, 256, 418 N.E.2d 840, 851-52.) Here, the incidents noted by defendant, whether considered separately or together, do not demonstrate counsel’s ¡incompetence. Moreover, the record shows that defense counsel conducted careful cross-examinations of the State’s witnesses, made appropriate objections when necessary, moved for a directed verdict at the close of the State’s case, and presented an organized closing argument based upon the evidence. We conclude that defendant’s contention that he was denied his constitutional right to effective assistance of counsel is without merit.

Accordingly, the judgment of the trial court is affirmed.

Affirmed.

McNAMARA and WHITE, JJ„ concur.


author: JUSTICE McNAMARA

text:
    CHARLES SELON & ASSOCIATES, INC., Plaintiff-Appellant and Cross-Appellee, v. ESTATE OF JOSE AISENBERG, Deceased, Defendant-Appellee and Cross-Appellant.
    First District (3rd Division)
    No. 80-3187
    Opinion filed December 30, 1981.

      Thomas Connors, of Chicago, for appellant.
    Stephen J. Schostok, of Laser, Schostok, Kolman & Frank, of Chicago, for appellee.
   JUSTICE McNAMARA

delivered the opinion of the court:

Charles Selon & Associates, Inc., a retail jewelry concern, filed this claim against the estate of Jose Aisenberg, deceased, seeking relief from the conversion by Aisenberg, a jeweler and part owner of Wendell & Co., of gold belonging to the claimant. After a hearing, the trial court entered judgment in favor of claimant for $12,450, but claimant appeals, contending that it was entitled to additional damages and prejudgment interest. Decedent’s estate has filed a cross-appeal contending the decedent was merely acting as an agent for Wendell and that the court erred in finding personal liability in decedent.

Charles Selon, a principal of the claimant, deposited 67.75 ounces of pure gold with decedent. At the time of the transfer decedent signed a document which indicated that the gold was to be returned to the claimant in 60 days. The upper right hand corner of the document read “to Wendell & Co., 5 N. Wabash.” Decedent placed his home address and telephone number beneath his own signature. Nowhere on the document did he indicate an agency or representative relationship with Wendell.

Barry Sloan, an employee of the claimant, testified that oh more than one occasion between the expiration of the 60-day period and decedent’s death he heard conversations between Selon and decedent regarding the gold. On each occasion, in response to Selon’s inquiry as to when the gold would be returned, decedent said, “Don’t worry.”

Irving Hirsch, formerly part owner and now sole owner of Wendell, and Donna F. Miller, the company bookkeeper, both testified to having heard a similar conversation between Selon and decedent. Hirsch further testified that when he asked decedent about the gold, decedent replied, “I will take care of it.” Miller testified that when she made a similar inquiry decedent responded that it was personal and none of her business. Hirsch and Miller stated that Wendell had done business with claimant for a long time but had never received pure gold from him. Both witnesses also stated that this transaction was never entered on Wendell’s books, but Hirsch admitted that company transactions had been kept off the books in the past.

The gold was not returned when the 60 days expired. Ten months later decedent died. Six months after the death claimant filed the claim against the estate.

We initially consider the issues raised by the estate in its cross-appeal. The estate first argues that the court erred in finding decedent personally liable for conversion. The estate urges that decedent accepted the gold and signed the document solely in his capacity as a duly authorized agent for Wendell and that he assumed no personal liability with regard to the bailment created thereby. In support of this position the estate maintains that the document was an unambiguous agreement between claimant and Wendell to create a bailment and that the trial court erred when it admitted parol evidence to vary the meaning of the document so as to impose liability on the decedent. An examination of the document reveals that the estate’s contention is without merit.

In order for an agent to avoid personal liability on a contract which he signs on behalf of the principal, the agent must disclose not only the identity of the principal but also the existence of the agency relationship. (Wheeler v. Reed (1864), 36 Ill. 81; Vander Wagen Bros., Inc. v. Barnes (1973), 15 Ill. App. 3d 550, 304 N.E.2d 663.) The document in question is ambiguous in that it bears both the name of the alleged principal Wendell, and the signature of decedent, but omits any reference to an agency relationship. (Maywood-Proviso State Bank v. Sotos (1981), 95 Ill. App. 3d 155, 419 N.E.2d 668; First National Bank v. Achilli (1973), 14 Ill. App. 3d 1, 301 N.E.2d 739.) This ambiguity presented a question of fact which justified the hearing of parol evidence to determine the capacity in which the parties intended the decedent to sign. (First National Bank of Elgin v. Achilli.) The trial court did not err in imposing personal liability on decedent.

The estate also contends that Irving Hirsch was an incompetent witness under the Dead Man’s Act (Ill. Rev. Stat. 1979, ch. 51, par. 2), and that the trial court erred in permitting him to testify. The Dead Man’s Act, in pertinent part, provides that no person directly interested in the action .shall be allowed to testify to any conversation with the deceased.

In the present cas.e, we need not reach the issue of whether Hirsch was a person directly interested in the action so as to render him incompetent under the Act. The only portion of his testimony which can be challenged under the claim of error concerns his conversation with decedent in which the latter in response to a question about the gold stated that he would take care of it. Both Sloan and Miller testified to the same or similar conversations with the decedent, and the trial court expressly found Miller to be a credible witness. The testimony of Hirsch was merely cumulative and at worst harmless error.

The estate’s final contention on its cross-appeal is that the trial court committed reversible error when it conducted its own examination of certain witnesses.

A trial judge has the right to question witnesses in order to elicit the truth or to seek clarification of material issues which seem obscure. (People v. Palmer (1963), 27 Ill. 2d 311, 189 N.E.2d 265.) The propriety of such examination must be determined by the circumstances of each case and rests largely in the discretion of the trial court. This is especially true where the case is tried without a jury and the danger of prejudice is lessened. People v. Palmer; People v. Costello (1981), 95 Ill. App. 3d 680, 420 N.E.2d 592.

Here in a matter tried without a jury, the trial court asked questions of Sloan and Miller eliciting facts about who was present at the conversations with decedent and the exact words which were used by the parties. The questions were appropriate to the trial court’s role as finder of fact and were proper.

We next consider the issues raised by claimant in the initial appeal. Both parties agree that the date of conversion was the last day of the 60-day period. Claimant contends, however, that the trial court erred in ruling that damages were fixed as a matter of law at that date. Instead claimant urges that it is entitled to damages equal to the highest market price for 67.75 ounces of gold reached between the date of conversion and the date of judgment.

In Illinois the general rule in a conversion action is that damages are set at the date of conversion. (Sturges v. Keith (1870), 57 Ill. 451.) The theory urged by claimant is based on an exception to this general rule, once recognized by Illinois courts, which applied where the subject matter of a conversion action was stock. It was thought that nothing short of allowing the plaintiff market value at the time of trial could completely indemnify him. The exception was based on the premises that the plaintiff originally obtained the stock for a permanent investment and would have kept it until the time of trial. (Sturges v. Keith.) The Sturges court recognized the arbitrary and speculative nature of this premise and rejected the exception entirely. It applied the general rule and set damages for the conversion of stock at the date of its conversion notwithstanding its subsequent increase in value. This is still the law in Illinois today. Jensen v. Chicago & Western Indiana R.R. Co. (1981), 94 Ill. App. 3d 915, 419 N.E.2d 578; Weiland Tool & Manufacturing Co. v. Whitney (1968), 100 Ill. App. 2d 116, 241 N.E.2d 533, rev’d on other grounds (1969) , 44 Ill. 2d 105, 251 N.E.2d 242.

Alternatively, claimant argues, citing Bushnell v. Curtis (1925), 236 Ill. App. 89, that damages should be assessed at the highest market price reached during a reasonable time following conversion, and that it should be given the opportunity to offer evidence as to what constituted a reasonable time. Claimant’s reliance on Bushnell for this alternative theory is misplaced. Although the court in that case, by way of dicta, did mention alternative theories for computing damages, it involved a suit for breach of contract, and the court applied the standard measure of damages in a contract case. In the present case, the trial court’s fixing of damages at the time and place of conversion was proper and under the circumstances, fair to both sides.

Claimant finally contends that the trial court erred in failing to award it prejudgment interest. Although claimant did not raise this issue at any time prior to its motion for a new trial, it argues that interest is an inherent component of a damages award in a conversion case and ought to be awarded as a matter of right.

In Illinois the right to prejudgment interest in a conversion action arises only where authorized by statute. (Jensen v. Chicago & Western Indiana R.R. Co.) Section 2 of the Interest Act provides in relevant part that interest shall be allowed on “money withheld by an unreasonable and vexatious delay of payment.” (Ill. Rev. Stat. 1979, ch. 74, par. 2.) This provision has been extended to include property withheld where such property has been wrongfully taken or taken and converted into money or its equivalent. (Illinois Central R.R. Co. v. Cobb, Blaisdell & Co. (1874), 72 Ill. 148; Jensen v. Chicago & Western Indiana R.R. Co.) Thus prejudgment interest is warranted in a conversion action where there has been an unreasonable and vexatious delay of payment.

In the present case there was a delay of payment in that the gold was not returned to claimant within 60 days. There must more than delay, however, to bring an action within the Act. (Cooper v. Brogni (1964), 50 Ill. App. 2d 70, 199 N.E.2d 619.) Whether that delay was unreasonable and vexatious is a question of fact to be determined by the trial court. (Edens View Realty & Investment, Inc. v. Heritage Enterprises, Inc. (1980), 87 Ill. App. 3d 480, 408 N.E.2d 1069.) We will not disturb that determination unless it is contrary to the manifest weight of the evidence. (Hamilton v. American Gage & Machine Corp. (1976), 35 Ill. App. 3d 845, 342 N.E.2d 758.) There is nothing in the record to support claimant’s contention that decedent’s failure to return the gold was unreasonable and vexatious. Nor is there evidence that the estate was responsible for claimant’s failure to bring the action prior to 16 months after the date of the conversion. Thereafter the delay was caused by the litigation itself. Merely conducting a defense, where there is an honest dispute as to the existence of a legal obligation, does not constitute an unreasonable and vexatious delay unless the plaintiff can establish conduct by a litigant which approximates actual fraud. (Edens View Realty & Investment, Inc. v. Heritage Enterprises, Inc.; Kespohl v. Northern Trust Co. (1970), 131 Ill. App. 2d 188, 266 N.E.2d 371.) No such conduct was shown in the present case. The trial court neither erred nor abused its discretion when it failed to award prejudgment interest.

For the reasons stated, the judgment of the circuit court of Cook County in favor of claimant and against the estate in the amount of $12,450 is affirmed.

Judgment affirmed.

McGILLICUDDY and WHITE, JJ„ concur.


text:
      In re DARRIN VAUGHT, a Minor.—(THE PEOPLE OF THE STATE OF ILLINOIS, Petitioner-Appellee, v. DARRIN VAUGHT, Respondent-Appellant.)
    First District (3rd Division)
    No. 80-3274
    Opinion filed December 30, 1981.

      James J. Doherty, Public Defender, of Chicago (Frances Sowa, Assistant Public Defender, of counsel), for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Michael Shabat, Kevin Sweeney, and Richard J. Consentino, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE McNAMARA

delivered the opinion of the court:

The juvenile division of the circuit court of Cook County adjudged respondent, a minor, to be delinquent on the charge of attempt robbery. At a subsequent disposition hearing the court committed respondent to the Department of Corrections. On appeal respondent contends that the juvenile court lacked jurisdiction to make a finding of delinquency and to order his commitment since his father was not given notice of the proceedings. Respondent was represented by appointed counsel who, along with respondent’s mother, was present at both hearings. The father’s name was indicated on the petition but no mailing address was listed other than “Bremen, Ky.” At no time in the juvenile court did counsel or respondent assert that the father should have been served. Nor does respondent challenge the fairness of the hearings.

A proceeding is void if the court lacks jurisdiction either of the subject matter or of the person. (Wood v. First National Bank (1943), 383 Ill. 515, 50 N.E.2d 830.) Jurisdiction of the subject matter “is the power to adjudge concerning the general question involved, and if a complaint states a case belonging to a general class over which the authority of the court extends, the jurisdiction attaches ° * (383 Ill. 515, 522.) The circuit courts have original jurisdiction of all justiciable matters. (In re Sexton (1981), 84 Ill. 2d 312, 418 N.E.2d 729.) The Juvenile Court Act makes proceedings concerning the delinquency of minors justiciable in the circuit courts. (Ill. Rev. Stat. 1979, ch. 37, par. 702—1.) Although a statute dictates the procedures to be employed in certain proceedings, the mandatory nature of the provision is not necessarily a limitation on the court’s subject matter jurisdiction. (See In re Sexton.) The court here, of course, had jurisdiction of the subject matter.

Jurisdiction of the person is the court’s power to bind a particular person to its judgment and requires in part that the defendant be given sufficient notice. (Mullane v. Central Hanover Bank & Trust Co. (1950), 339 U.S. 306, 94 L. Ed. 865, 70 S. Ct. 652.) A defendant or unnamed party who was never served and who never appeared in the proceedings but whose rights were directly adjudicated therein may attack the judgment either directly or collaterally as void for failure to obtain jurisdiction over his person. (Sullivan v. Merchants Property Insurance Co. (1979), 68 Ill. App. 3d 260, 385 N.E.2d 897.) But failure to join such an indispensable party does not deprive the court of jurisdiction over the parties properly before it. (In re J. W. (1981), 87 Ill. 2d 56; Morrison v. New Orleans Public Service Inc. (5th Cir. 1969), 415 F.2d 419.) Hence, where a failure to join an indispensable party is brought to the attention of the reviewing court the appropriate course is to vacate the judgment and to order that the indispensable party be joined, not because the trial court lacked jurisdiction over the joined parties, but because fairness to the nonjoined party dictates such a result. Ill. Rev. Stat. 1979, ch. 110, par. 26.

Whether a party is truly indispensable depends on whether the individual has a present and substantial interest, as opposed to a mere expectancy, in the matter being litigated. (Bovinett v. Rollberg (1979), 73 Ill. App. 3d 490, 392 N.E.2d 27.) Hence, our supreme court recently held that the “unknown” father of an illegitimate child who, of course, did not have custody of the child was not an indispensable party to delinquency proceedings where the custodial mother was present. (In re J. W.) The court noted that commitment of the child did not deprive the father of any substantial interest since the child was not previously in the father’s custody. The court also stated that the father’s speculative right to be made a party was outweighed by the countervailing consideration of the child’s right to a speedy determination. The court further noted that a possible mistake to proceed in the absence of an indispensable party who may later attack the judgment does not, in any event, deprive the court of jurisdiction over the parties before it. The court finally held that the provisions of the Juvenile Court Act did not confer on the father the right to notice the absence of which would require a reversal of the judgment.

The Act provides for notice to parents, legal guardians dr custodians, and when necessary, the nearest relative. (Ill. Rev. Stat. 1979, ch. 37, pars. 704—1, 704—3, 704—4.) An exception to the general notice requirement, however, is contained in section 4—4(2):

“Notice by publication is not required in any case when the person alleged to have legal custody of the minor has been served with summons personally or by certified mail, but the court may not issue any order or judgment against any person who cannot be served with process other than by publication unless notice by publication is given or unless that person appears.” (Ill. Rev. Stat. 1979, ch. 37, par. 704-4(2).)

The court in In re J. W. concluded that notice to the mother who had actual custody triggered this exception, obviating the need for notice to the absent father.

Applying these principles, we examine the propriety of the trial court’s jurisdiction over the relevant persons in the present matter. Respondent and his mother appeared in court and testified. The court had jurisdiction over their persons. (In re J. W.) The court never obtained jurisdiction over the father, since he was not served. We therefore must determine whether the father was an indispensable party whose status would require a vacatur of the judgment and his joinder upon remand.

While it is always preferable to join all interested persons and especially parents, we believe that, under the facts of this case, the father was not indispensable to the adjudication and disposition of delinquency. The mother had actual custody of the respondent. The record discloses that, at least immediately preceding the offense, respondent was not living with the father in Kentucky, since a few days prior to the offense, respondent was placed on supervision in Cook County. The record is silent as to what interest of the absentee father would be affected by the adjudication. Moreover, unlike proceedings involving custody or neglect, a delinquency proceeding is not a direct attack on the right to custody, and is not considered a permanent deprivation of all parental rights. (Cf. United States v. Watts (10th Cir. 1975, 513 F.2d 5.) As In re J. W., the interest of the nonresident father was outweighed by respondent’s right to a speedy determination.

Nor does the Juvenile Court Act require that the absent father be joined. A custodial parent, the mother, was present at the proceedings thereby obviating the necessity of notice to the absent father. (In re J. W.) We do not believe, as respondent suggests, that the caveat contained in section 4—4 that the court shall not issue an order against a person unless he is served or appears as applicable here since we have stated that a delinquency disposition is not. an order directly imposed against the absentee father. The order or judgment to which the caveat applies must be one directly and expressly against an individual such as an order of protection pursuant to section 5—5, the violation of which results in a finding of contempt. (Ill. Rev. Stat. 1979, ch. 37, par. 705—6.) The Act does not mandate notice to the absentee father in the present case.

Respondent nevertheless maintains that this matter is governed by the holding in In re Gault (1967), 387 U.S. 1, 18 L. Ed. 2d 527, 87 S. Ct. 1428. There, an adjudication of delinquency was reversed not on the basis of the trial court’s lack of jurisdiction, but on the basis of the denial of fairness to the minor during the proceedings as a result of untimely and inadequate notice to him and his parents. The boy’s mother was given oral •and cursory notice that a hearing pertaining to her son would be held the following day. Neither the parents nor the minor were informed of a right to counsel. No counsel was present, no transcript of proceedings was made, and no witnesses were heard. Hence, the minor was denied the fairness which would have attached had he and his parents been given the opportunity to prepare a defense. Unlike the minor in Gault, however, the present respondent was represented by counsel at all times, and he does not claim that the procedures at his hearing were in any way unfair. Respondent’s hearing was fair, and reversal is not required by virtue of the failure to serve notice on the absent father.

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

Judgment affirmed.

McGILLICUDDY and WHITE, JJ., concur.


text:
    MARGARET M. PASIERB, Adm’r of the Estate of John Pasierb, III, Plaintiff-Appellant, v. HANOVER PARK PARK DISTRICT, Defendant-Appellee.
    First District (3rd Division)
    No. 81-688
    Opinion filed December 30, 1981.

      John R. Fielding, of Chicago, for appellant.
    Judge, Drew, Cipolla & Kurnik, Ltd., of Park Ridge (Jay S. Judge, of counsel), for appellee.
   JUSTICE McNAMARA

delivered the opinion of the court:

Margaret M. Pasierb, administrator of the Estate of John Pasierb III, brought this action to recover damages for the wrongful death of her 7-year-old son by drowning in a creek on the property of defendant Hanover Park Park District. The trial court granted defendant’s motion to strike and dismiss the complaint, but gave plaintiff leave to file an amended complaint. Plaintiff elected to stand on her complaint, and appeals the order of dismissal. The sole issue is whether the complaint states a cause of action.

Plaintiff’s complaint recited that on December 20,1978, the deceased was in a park owned and controlled by defendant. A creek in the park was covered by a thin layer of ice upon which snow had accumulated. The snow covered the creek and the ground so as to make it impossible to discern the location of the creek. The boy died from exposure after he became entrapped under a crust of ice covering the creek. The complaint further alleged that the condition was knowingly unsafe and that defendant could have cured the unsafe condition either by posting warnings, providing a barrier or cleaning the ground.

Defendant’s motion to dismiss characterized the creek as a drainage ditch. It maintained that, as a matter of law, it had no duty to protect or warn children of the condition on its premises since the ditch covered with snow was an obvious, common condition the danger of which children were deemed to be aware.

Where an owner of land knows, or should know, that young children frequent the vicinity of a known defective structure or a dangerous agency existing on the land, the owner has a duty to remedy or otherwise protect children from injury resulting from it. (Kahn v. James Burton Co. (1955), 5 Ill. 2d 614, 126 N.E.2d 836.)-Whether the agency is sufficiently dangerous to trigger the duty in the owner depends on whether the risks attendant to the condition are obvious and ones which children generally would be expected to appreciate and avoid. (Prince v. Wolf (1981), 93 Ill. App. 3d 505, 417 N.E.2d 679.) In the Restatement (Second) of Torts §339, Comment j, at 203 (1966), it is stated:

“There are many dangers, such as those of fire and water, or of falling from a height, which under ordinary conditions may reasonably be expected to be fully understood and appreciated by any child of an age to be allowed at large.”

Hence, in Prince v. Wolf, it was held that water in which an infant drowned was not an appropriate dangerous condition since children should know that drowning is a risk attendant to swimming. Similarly, in Corcoran v. Village of Libertyville (1978), 73 Ill. 2d 316, 328, 383 N.E.2d 177, the court held that a ditch into which a child fell to his death was not a sufficiently dangerous condition since the risk of falling into a ditch, “a risk which is incident to any common ditch or obvious depression in the ground [is one] which children generally would be expected to recognize and appreciate.” (Emphasis added.)

On the other hand, an instrumentality, although not in itself dangerous, may become dangerous when joined with other nondangerous instrumentalities or surroundings. (Novak v. C. M. S. Builders & Developers (1980), 83 Ill. App. 3d 761, 404 N.E.2d 918; Skaggs v. Junis (1960), 27 Ill. App. 2d 251, 169 N.E.2d 684.) Our supreme court recently accepted this principle when it stated in Corcoran:

“Under certain circumstances, the condition of a ditch in its surroundings may enhance the risks of injury to unsuspecting children and, in fact, be a danger to children. A ditch may pose such a danger because of its depth or because it is hidden from view or for other reasons.” 73 Ill. 2d 316, 328.

In the present case, we believe that the complaint alleged a sufficiently dangerous condition to withstand a motion to dismiss. Plaintiff charged that a creek in the park, frozen over with a thin layer of ice, was completely concealed by a layer of snow which made it impossible to discern the location of the creek. We believe the risks involved in a completely concealed creek in a park are not the type “which children generally would be expected to recognize and appreciate.” Corcoran v. Village of Libertyville.

Nor do we believe that the fact that the concealing agent is a natural one dictates a dismissal of the present complaint. The touchstone of liability in the Kahn-type cases is not the distinction between natural or artificial but is instead the foreseeability of harm to children. (Corcoran v. Village of Libertyville.) It is foreseeable that a child who plays in a park where a water-filled drainage ditch is hidden from view is likely to encounter the ditch unintentionally and suffer injury thereby.

Defendant nevertheless maintains that the case is governed by the well-settled principle that parents bear primary responsibility for the care of their children. (Driscoll v. C. Rasmussen Corp. (1966), 35 Ill. 2d 74, 219 N.E.2d 483; Prince v. Wolf.) Certainly, parents can teach children not to scale heights or play with fire or swim in bodies of water. But to have prevented the death of the child in this case, his parents would have been compelled to teach him that wherever he steps in a park there may be lurking, hidden from view, a creek or ditch underfoot. Even an adult, however, may recover from a landowner for failing to warn of or make safe a hidden dangerous condition on the land which causes him injury. (See Geraghty v. Burr Oak Lanes, Inc. (1955), 5 Ill. 2d 153, 125 N.E.2d 47; Cogswell v. Norfolk & Western Ry. Co. (1976), 43 Ill. App. 3d 444, 357 N.E.2d 217.) Accordingly, we hold that the present complaint alleges a sufficiently dangerous condition to trigger a landowner’s duty to children on the premises.

Relying on some slip-and-fall-on-the-ice-and-snow cases (see, e.g., Lansing v. County of McLean (1978), 69 Ill. 2d 562, 372 N.E.2d 822), defendant also contends that the imposition of a duty in the present case would be too great a burden on the landowner. Lansing merely reiterated the rule that there is no duty to remove or warn about the danger of slipping and sliding wherever and whenever a natural accumulation of snow falls. That principle appropriately recognizes that since the danger, the slippery nature of ice or snow, conceivably exists wherever snow or water may fall, a duty to remedy such a danger would be all-encompassing. In the present case, however, the danger exists not in the snow, wherever it may fall, but in the ditch filled with water which was hidden by the snow. Hence, unlike the slip-and-fall snow cases, the present case involves the particularized duty of making known the existence of a specific hidden danger on the land.

Nor is imposition of such a duty comparable to a duty to make all bodies of water “boy-proof,” as defendant suggests. Where a body of water is visible, the danger of drowning is apparent to the child and therefore, the landowner need not entirely close or guard such bodies against a determined child knowingly gaining access. (Wood v. Consumers Co. (1948), 334 Ill. App. 530, 79 N.E.2d 826.) But the present case involves an unsuspecting child who could not avoid the ditch because it could not be seen. The correlative duty, therefore, is not to make the creek “boy-proof” but instead to make the existence of and location of the creek known.

For the reasons stated, the judgment of the circuit court of Cook County dismissing the complaint is reversed and the cause is remanded for further proceedings consistent with the holdings of this opinion.

Reversed and remanded.

RIZZI, P. J., and McGILLICUDDY, J„ concur.


text:
    ROBERT PARRILLO, Plaintiff-Appellant, v. 1300 LAKE SHORE DRIVE CONDOMINIUM, Defendant-Appellee.
    First District (3rd Division)
    No. 81-894
    Opinion filed December 30, 1981.

      Alvin R. Becker and Ann T. Scannell, both of Chicago, for appellant.
    Roger L. Price and Aviva Meridian Kaiser, both of Aaron, Schimberg, Hess, Rusnak, Deutsch & Gilbert, of Chicago, for appellee.
   JUSTICE McNAMARA

delivered the opinion of the court:

Plaintiff Robert Parrillo, owner of a condominium unit, brought this action, in three counts, seeking relief from the refusal by defendant 1300 Lake Shore Drive Condominium to permit him to construct an addition to his unit. The trial court granted defendant’s motion to dismiss and entered judgment for defendant on all three counts. Plaintiff did not seek to amend his complaint but moved for reconsideration of the judgment as it applied to count III. Plaintiff appeals from the trial court’s denial of that motion and its dismissal of count III. The facts as revealed by the pleadings are as follows.

Plaintiff sought defendant’s permission to construct an addition to his condominium unit by which one of two adjoining terraces would have been converted into a-bedroom. The terrace was part of an area designated by the condominium declaration as common elements. Plaintiff had an easement, however, entitling him to the exclusive use of the terrace. Count III of the complaint alleged that defendant was estopped from denying plaintiff’s request by reason of several acts committed by its board of directors. It charged that the board requested plaintiff to submit architectural drawings of his proposal and then arbitrarily rejected his plans after his compliance with the request. After plaintiff submitted a revised proposal, the board requested that he submit a legal opinion. Plaintiff’s compliance with this request again resulted in a denial by the board.

Defendant’s motion to dismiss count III urged that it not only failed “to allege the essential elements of an estoppel action,” but that it sought relief barred by operation of law. In determining the sufficiency of count III, we shall address ourselves to the various arguments offered by defendant.

Defendant first urges that the board lacked power to grant plaintiff’s request because the proposed construction would have violated section 8 of the Condominium Property Act. (Ill. Rev. Stat. 1979, ch. 30, par. 308.) That section provides in relevant part:

“As long ¿s the property is subject to the provisions of this Act the common elements shall * * * remain undivided, and no unit owner shall bring any action for partition or division of the common elements.”

There is no dispute that the terrace in question is part of the common elements. Citing two cases from other jurisdictions, Makeever v. Lyle (1980), 125 Ariz. 384, 609 P.2d 1084, and Grimes v. Moreland (1974), 41 Ohio Misc. 69, 322 N.E.2d 699, defendants argue that in essence plaintiff was seeking a partition or division of the common elements within the meaning of section 8. In both cases the courts found the construction of fixed objects on common areas for the exclusive use of less than all unit owners to constitute a taking which unlawfully deprived the remaining unit owners of the use of common elements without their consent. Unlike the present case, however, the parties had no prior right to the exclusive use of the area in question. Furthermore, this court has held that the word “undivided” as it appears in section 8 must be construed with reference to legal title in property. (Mission Hills Condominium M-4 Association v. Penachio (1981), 97 Ill. App. 3d 305, 422 N.E.2d 1125.) Plaintiff in the present case does not seek an alteration of the legal title to the property in question. Rather, he seeks to make improvements on a common element area to which he already has an exclusive easement. A physical division of common elements caused by an improvement made thereon does not in itself constitute a “partition” or “division” of the kind prohibited by section 8. Mission Hills Condominium M-4 Association v. Penachio.

Defendant next urges that the relief sought by plaintiff would contravene sections 4 and 6 of the Condominium Property Act. Section 4 provides in pertinent part:

“The declaration shall set forth the following particulars: « « «
(e) The percentage of ownership interest in the common elements allocated to each unit. Such percentages shall be computed by taking as a basis the value of each unit in relation to the value of the property as a wholé, and having once been determined and set forth as herein provided, such percentages shall remain constant unless otherwise provided in this Act or thereafter changed by agreement of all unit owners.” (Emphasis added.) (Ill. Rev. Stat. 1979, ch. 30, par. 304.)

Section 6 of the Condominium Property Act provides in relevant part:

“Each unit owner shall be entitled to the percentage of ownership in the common elements appertaining to such unit as computed and set forth in the declaration pursuant to subsection (c) of Section 4 hereof, and ownership of such unit and of the owner’s corresponding percentage of ownership in the common elements shall not be separated, except as provided in this Act, nor, except by the recording of an amended declaration and amended plat approved in writing by all unit owners, shall any unit, by deed, plat, court decree or otherwise, be subdivided or in any other manner separated into tracts or parcels different from the whole unit as shown on the plat, except as provided in this Act.” Ill. Rev. Stat. 1979, ch. 30, par. 306.

Citing Stuewe v. Lauletta (1981), 93 Ill. App. 3d 1029, 418 N.E.2d 138, defendant maintains that plaintiff’s proposed alteration would diminish the common elements owned by each other unit owner in violation of sections 4 and 6. Like in the present case, that condominium declaration designated certain common element areas as being for the exclusive use (parking spaces) of particular owners. Unlike the present case, however, the area in question was not so designated. When the defendant was later given an exclusive use easement over this general common element area, the Stuewe court found the common elements owned by each other owner to have been diminished thereby. Here plaintiff sought merely to improve a common area to which he already held an exclusive use easement. Thus the common elements available to the other unit owners would remain the same.

Likewise, defendant’s claim that the enhanced value of plaintiff’s unit would necessitate a reallocation of the percentages of ownership in the common elements, is without merit. In accord with the express language of section 4, those percentages, once determined, remain, absent an agreement by all unit owners.

Defendant also points out that the holder of an easement has no right to make improvements thereon if such improvements materially alter the character of the easement so as to interfere with the use and enjoyment of the servient estate by its owner. (Triplett v. Bueckman (1976), 40 Ill. App. 3d 379, 352 N.E.2d 458.) Such interference, however, is not evident from the pleadings and would constitute an issue of fact. Furthermore, according to the condominium declaration, improvements to common elements by unit owners are not forbidden but merely require approval of the board. The relief sought by plaintiff is not barred by operation of law.

Defendant correctly asserts, however, that plaintiff has failed to allege the essential elements of an estoppel action. Although pleadings are to be liberally construed and formál allegations are unnecessary, a complaint must allege facts necessary to state a cause of action. (Zamouski v. Gerrard (1971), 1 Ill. App. 3d 890, 275 N.E.2d 429.) We need not recite here the elements necessary to invoke the principle of estoppel. See Stewart v. O’Bryan (1977), 50 Ill. App. 3d 108, 365 N.E.2d 1019.

Both in the trial court and in this court, however, plaintiff has urged that even if count III is. deficient, the trial court erred in granting defendant’s motion to dismiss because it was deficient at law. Section 45 of the Civil Practice Act (Ill. Rev. Stat. 1979, ch. 110, par. 45) requires that a motion to dismiss point out specifically why a pleading is thought to be deficient. (Lee v. Conroy (1973), 13 Ill. App. 3d 694, 300 N.E.2d 505.) The purpose of this requirement is to give the party against whom the motion is directed an opportunity to cure the objection by amending the pleading. (People ex rel. Spicer v. Coleman (1979), 72 Ill. App. 3d 631, 391 N.E.2d 46.) In the present case it was not enough for defendant merely to assert that count III failed “to allege the essential elements of an estoppel action” without specifically pointing out wherein the complaint was deficient. Therefore it was error for the trial court to deny plaintiff’s motion for reconsideration in which he alleged the inadequacy of defendant’s motion. Since it is not apparent that plaintiff would be unable to amend count III so as to state a cause of action, he should be given that opportunity. Lee v. Conroy.

For the reasons stated, the order dismissing count III of plaintiff’s complaint is reversed and the cause is remanded for further proceedings consistent with the holding of this opinion.

Order reversed and remanded.

RIZZI, P. J., and McGILLICUDDY, J., concur.


text:
    CHRISTINE BERQUIST et al., Petitioners-Appellees, v. STANLEY KUSPER, Clerk of Cook County, et al., Respondents-Appellants.
    First District (3rd Division)
    No. 81-1558
    Opinion filed December 30, 1981.
    Sheldon Gardner and George C. Pontikes, both of Foss, Schuman & Drake, of Chicago (Celeste Kralovec, law student, of counsel), for appellants.

      Peter A. Felice, of Chicago (Richard H. Schmack, of counsel), for appellees.
   PRESIDING JUSTICE RIZZI

delivered the opinion of the court:

Petitioners Christine Berquist and Milton Tlapa, unsuccessful candidates for the office of alderman in the City of Countryside, filed petitions for discovery recounts which were denied by the Canvassing Board of the City of Countryside. Petitioners then filed this action for declaratory judgment, mandamus and election contest against respondents Stanley Kusper, Clerk of Cook County, Illinois, and Walter Klimcke, Carl Le Gant and Robert Peck, individually and as members of the Canvassing Board of the City of Countryside, in which they asked the court to order discovery recounts. The trial court ordered that discovery recounts be conducted. We reverse.

Petitioner Berquist was a candidate for the office of alderman of the 2d ward of Countryside. The 2d ward is comprised of two precincts. Petitioner Tlapa was a candidate for the office of alderman of the 1st ward of Countryside. The 1st ward is comprised of three precincts. The election was held on April 7, 1981. Both petitioners lost the election, but both of them received votes greater in number than 95% of the votes received by the proclaimed winners in their wards.

Pursuant to section 22—9.1 of the Election Code (Ill. Rev. Stat. 1979, ch. 46, par. 22—9.1), petitioners filed petitions for discovery recounts. The petitions did not contain any allegations of impropriety in the elections. The petitions were rejected by the Canvassing Board based on the language of section 22—9.1 of the Election Code which provides for a discovery recount “in specified election districts or precincts, not exceeding 25% of the total number of election districts or precincts.” (Ill. Rev. Stat. 1979, ch. 46, par. 22—9.1.) Petitioners also received correspondence from respondent Kusper, stating that his office would do nothing further regarding the petitions because it had received a letter from the Canvassing Board denying petitioners’ requests for discovery recounts.

Petitioners filed the instant action in which they asked the trial court to construe section 22—9.1 of the Election Code as it applies to them. The court found that the statute did not provide for a discovery recount in this case, but that under the equitable powers of the court, justice required that a discovery recount be allowed. The court ordered that the Canvassing Board reconvene and conduct a discovery recount in the requested precinct in each ward.

Respondents argue that petitioners are not entitled to a recount under section 22—9.1 of the Election Code, and therefore, the trial court improperly ordered that a recount be taken. Section 22—9.1 provides:

• ■ “Within 5 days after proclamation of the results of any canvass declaring persons elected to any office * * *, the following persons may file a petition for discovery:
(a) any candidate who, in the entire area in which votes may be cast for the office for which he is a candidate, received votes equal in number to at least 95% of the number of votes cast for any successful candidate for the same office; tf « «
A petition under this Section shall be filed with the county clerk (or circuit court where the City Election Law applies) for purposes of discovery only. The petition shall ask that ballots, voting machines, or ballot cards * * * shall be counted in specified election districts or precincts, not exceeding 25% of the total number of election districts or precincts within the jurisdiction of such clerk or judge.” (Ill. Rev. Stat. 1979, ch. 46, par. 22—9.1.)

Respondents contend that since a candidate may only have a recount in 25% of the precincts, it is not possible to allow a discovery recount in a district with less than four precincts. Therefore, they maintain that since each petitioner is from a ward with less than four precincts, petitioners’ requests for discovery recounts should be denied.

Petitioners, on the other hand, read the language “25% of the total election districts within the jurisdiction of such clerk or judge” to mean 25% of the precincts in suburban Cook County. They argue that since there are 2,444 such precincts, no candidate may seek a recount of more than 611 precincts. Thus, petitioners maintain that the Canvassing Board improperly denied the discovery recount petitions since petitioners here only asked for a recount of one precinct each.

We agree with respondents that petitioners are not entitled to a discovery recount under the statute. We believe that the statute requires a discovery recount of 25% of the precincts within the jurisdiction of the clerk or judge in which votes were cast for a particular office. Petitioners’ interpretation of the statute tortures the purpose of inserting such a limitation on the number of precincts in which votes could be recounted. As respondents suggest, petitioners’ reading of the statute would mean that the legislature only intended to limit discovery in elections such as County-wide elections. We do not believe that this is what the legislature intended. Rather, we believe that it intended the limitation to apply only to the precincts or election districts involved in the election and not to the county or suburban Cook County as a whole. Thus, our reading of the statute leads us to conclude that if votes are cast in fewer than four precincts, there cannot be a discovery recount.

Although we agree with the trial court that the statute does not authorize a recount in this case, we cannot agree that the trial court had the equitable power to order a recount. Petitioners argue that while matters pertaining to elections are generally deemed to be purely political questions outside the scope of equitable jurisdiction (7 Ill. L. & Prac. Chancery §66 (1954)), that principle is irrelevant here. They contend that it is not relevant because they did not request equitable relief and because the court actually granted the legal remedy of mandamus. However, the record discloses otherwise. In their complaint, petitioners requested “such other and further relief as equity may require.” Also, in its order, the court specifically stated that “under the equitable powers of the Court, justice requires that a discovery recount be allowed.”

Generally, in the absence of statutory authority, courts have no power to order a recount of ballots. (29 C J.S. Elections §289, at 760-61 (1965); 26 Am. Jur. 2d Elections §355, at 171 (1966); Annot., 71 A.L.R. 435 (1931).) The statute here does not allow for a discovery recount under the circumstances of the case. Consequently, the trial court did not have any equitable power to order a discovery recount.

Petitioners also argue that section 22—9.1, as applied by the Canvassing Board, operates to deny them equal protection. However, petitioners did not make this constitutional argument in the trial court, and therefore, the issue is not before us. Moreover, even if petitioners were successful in this argument, they would not be afforded the relief they requested.

Accordingly, the order of the trial court is reversed.

Reversed.

McNAMARA and McGILLICUDDY, JJ., concur.

       Both petitioners only requested a recount of one precinct. Under their theory, they would be entitled to a recount of all precincts involved since there were less than 611 precincts.


text:
    MICHAEL CORBITT et al., Plaintiffs-Appellees, v. THE PRESIDENT OF THE VILLAGE OF WILLOW SPRINGS et al., Defendants-Appellants.
    First District (3rd Division)
    No. 81-1674
    Opinion filed December 30,1981.

      Goldstine and Broida, Ltd., of Summitt (Ronald J. Broida and Richard J. Skrodzki, of counsel), for appellants.
    Jenna Lynn Schoeneman, of Barnett, Ettinger, Glass, Berkson & Braverman, Ltd., of Chicago (Dennis A. Berkson, of counsel), for appellees.
   PRESIDING JUSTICE RIZZI

delivered the opinion of the court:

Plaintiff Michael Corbitt is the chief of police for the Village of Willow Springs, and the other plaintiffs are members of the Willow Springs police department. Defendant Frank Militello is the president of Willow Springs, and defendant James Ross is the man appointed by Militello to replace Corbitt as chief of police. The remaining defendants comprise the Board of Trustees of the Village of Willow Springs. Plaintiffs filed suit to permanently enjoin defendants from removing them from their positions with the police department without a due process hearing, from interfering with plaintiffs as they performed their duties, from failing to pay plaintiffs the salaries or benefits attendant to their employment, and from taking control or possession of property belonging to Corbitt in his position as chief of police. Defendants counterclaimed for injunctive relief, seeking to have plaintiffs removed from their positions with the police department and to prevent them from harassing defendants or interfering with them as they carried out their official duties. The trial court entered a judgment for permanent injunction in favor of plaintiffs, granting them the relief requested in their complaint. Defendants’ counterclaim for injunctive relief was denied.

Plaintiff Corbitt became chief of police of Willow Springs in 1973. He was appointed by the village president with the advice and consent of the Village Board of Trustees. Thereafter, he was reappointed for successive one year terms. In May of 1978, Village President Richard Dombrowski gave Corbitt a commission card which showed Corbitt’s term running from May 1,1978, to “cause.” Plaintiffs Bonello and Fontani, both full-time employees of the police department, also received cards showing terms running until cause. The minutes from Village Board meetings show that these plaintiffs were still appointed on an annual basis by the village president after they had received these commission cards. The rémaining plaintiffs are part-time police employees, appointed on an annual basis. The latest commission cards issued to these plaintiffs show their terms of employment as expiring on either April 30, 1981, or May 1, 1981.

On May 22, 1980, the Willow Springs Board of Trustees adopted Ordinance No. 80-6. The ordinance established a Personnel Review Board having jurisdiction over all village employees, including members of the police department. The Board was given the responsibility of holding hearings when charges which could result in a reprimand, suspension or removal were brought against any member of the fire or police department or any other village agency. Following a hearing, the Personnel Review Board would give a written report of its findings to the Village Board, which had the final authority to determine any disciplinary action. The ordinance further provided that the village employees were entitled to receive notice of the hearing and a copy of the complaint. Further, the ordinance accorded the employees the right to be represented by counsel, to present witnesses and to cross-examine witnesses called by the opposing party. Dombrowski appointed members of the Personnel Review Board in March of 1981, shortly before his term as president expired.

On April 28,1981, the newly elected president and Board of Trustees of Willow Springs met. They enacted Ordinance No. 81-WS-3, which effectively repealed Ordinance No. 80-6. The new ordinance provides that the president shall have the power to remove or discharge the chief of police by filing with the Board of Trustees the reasons for such action, and the removal or discharge shall become effective when approved by that board. All other employees of the police department shall be hired and discharged by the president with the approval of the Board of Trustees. After this new ordinance was adopted, President Militello appointed defendant Ross as chief of police to replace Corbitt, and he also hired other employees for the police department to replace the remaining plaintiffs. Plaintiffs refused to relinquish their positions, and this suit followed.

According to plaintiffs, the trial court was correct in ruling in their favor because they had a constitutionally protected property interest in their continued employment until they were removed for cause. Plaintiffs contend that on April 28, 1981, the village president and trustees attempted to remove, discharge and replace plaintiffs without regard to plaintiffs’ constitutional rights to due process. According to plaintiffs, defendants attempted to accomplish this scheme by replacing Ordinance No. 80-6 with Ordinance No. 81-WS-3, which did not provide procedural due process rights for employees of the police department. Also, they appointed a new police chief and other police employees to replace plaintiffs, although no charges had been filed against plaintiffs and they had not been accorded the due process rights of notice and a hearing to which they were entitled.

In deciding whether plaintiffs’ due process rights have been violated, we must first determine whether plaintiffs have a property interest. (See Polyvend, Inc. v. Puckorius (1979), 77 Ill. 2d 287, 294, 395 N.E.2d 1376, 1378-79.) Property interests are not created by the constitution. Rather, they are created by an independent source such as State laws, local ordinances or mutually explicit understandings. (Board of Regents v. Roth (1972), 408 U.S. 564, 577, 33 L. Ed. 2d 548, 561, 92 S. Ct. 2701, 2709; Leis v. Flynt (1979), 439 U.S. 438, 442, 58 L. Ed. 2d 717, 722, 99 S. Ct. 698, 700.) To have a property interest in a benefit, a person clearly must have more than a unilateral expectation of it. He must, instead, have a legitimate enforceable claim of entitlement to it. (Board of Regents v. Roth (1972), 408 U.S. 564, 577, 33 L. Ed. 2d 548, 561, 92 S. Ct. 2701, 2709; see also Perry v. Sindermann (1972), 408 U.S. 593, 601, 33 L. Ed. 2d 570, 580, 92 S. Ct. 2694, 2699.) Moreover, the plaintiff has the burden of proving his legitimate enforceable claim of entitlement. Newby v. Board of Education (1977), 53 Ill. App. 3d 835, 836-37, 368 N.E.2d 1306, 1307.

In the present case, plaintiffs stipulated to the fact that the Village of Willow Springs has never had a civil service regimen or a board of fire and police commissioners. Instead, plaintiffs claim that their entitlement to continued employment arose from case law, local ordinances and contractual rights. Plaintiffs contend that they were not hired for a fixed term of employment but for a term to continue indefinitely absent a showing of sufficient cause for discharge. In support of this contention, plaintiffs rely upon the commission cards issued to them, Ordinance No. 80-6, and the Police and Fire Committee, which allegedly accorded due process rights to policemen prior to the enactment of Ordinance No. 80-6. We conclude, however, that these circumstances are inadequate to establish a legitimate enforceable claim of entitlement to continued employment in plaintiffs.

The commission cards issued to plaintiffs are insufficient to establish a protectable property interest. Turning first to the circumstances surrounding Corbitt’s term of office, the testimony shows that from 1973 until 1978, Corbitt was appointed to successive one-year terms as chief of police. In May of 1978, he received the commission card which showed his term of office as running until “cause” from President Dombrowski. The card was signed by Dombrowski and the village clerk. Despite the existence of this card, Corbitt was reappointed as chief of police by Dombrowski at Village Board meetings in each succeeding year. These annual reappointments are inconsistent with Corbitt’s claim of entitlement to continued employment absent discharge for cause.

Moreover, under section 3—7—2 of the Illinois Municipal Code (Ill. Rev. Stat. 1979, ch. 24, par. 3—7—2) the village president is authorized to appoint all officers of the Village with the advice and consent of the Board of Trustees. The term of office of such appointees may not exceed that of the president, except as otherwise may be provided in the Municipal Code. In addition, section 1—18—3 of the Village Code of Willow Springs provides that the term of office of appointed officers is one year. Nothing in the record shows that Dombrowski had the authority to extend Corbitt’s term indefinitely. Under these circumstances, there are no State laws, local ordinances or mutually explicit understandings which support Corbitt’s claim of a protected property interest. (See Leis v. Flynt (1979), 439 U.S. 438, 442, 58 L. Ed. 2d 717, 722, 99 S. Ct. 698, 700.) Corbitt was not rehired at the end of the term of the president who appointed him. While Corbitt may have had “an abstract need or desire” to be reappointed, he did not have a legitimate enforceable claim of entitlement thereto. Board of Regents v. Roth (1972), 408 U.S. 564, 577, 33 L. Ed. 2d 548, 561, 92 S. Ct. 2701, 2709.

For the same reasons, we conclude that the commission cards issued to the remaining plaintiffs failed to establish a protectable property interest. Section 1—18—3 of the Village Code of Willow Springs gives village employees the same term of employment as appointed officers, that is, a one year term. Thus, the commission cards given to Fontani and Bonello showing their terms running until cause violated this section of the Code. Additionally, like Corbitt, these plaintiffs were reappointed to the police department by President Dombrowski at Village Board meetings even after the “cause” commission cards had been issued. As for the rest of the plaintiffs, their latest commission cards show that their terms expired either April 30, 1981, or May 1, 1981. Therefore, the commission cards did not create a protectable property interest.

Plaintiffs’ reliance on Ordinance No. 80-6 and the Police and Fire Committee as factors supporting their claim of a property interest in their employment is untenable. Plaintiffs state in their brief that the Police and Fire Committee as well as the police department rules and regulations and the employee policy and procedural manual established a code of conduct and provided for charges to be brought and a hearing to be held prior to dismissal for failure to adhere to the code. According to plaintiffs, Ordinance No. 80-6 codified these prior attempts of the Village to set due process guidelines. Plaintiffs claim that their constitutional rights to due process as protected by the fourteenth amendment have therefore been violated.

Plaintiffs’ argument overlooks the two-step procedure used to analyze the protection afforded by the fourteenth amendment. First, it must be determined whether the asserted interest is encompassed within the fourteenth amendment’s protection of life, liberty or property. If protected interests are implicated, then a determination must be made as to what procedures constitute due process of law. (See Ingraham v. Wright (1977), 430 U.S. 651, 672, 51 L. Ed. 2d 711, 731, 97 S. Ct. 1401, 1413.) The arguments proffered by plaintiffs in regard to Ordinance No. 80-6 and its predecessors, while relevant to the second stage of due process analysis, are not germane to a consideration of the prerequisite first stage. The ordinance does not create a legitimate expectation of continued employment absent discharge for cause; rather, it provides procedural due process guidelines to protect village employees during their term of employment. Since plaintiffs have no legitimate enforceable claim of entitlement to continued employment absent discharge for cause, plaintiffs’ argument is without merit.

In view of our conclusion, we need not address the other issues raised on appeal. Accordingly, the judgment of the trial court is reversed.

Reversed.

McGILLICUDDY and WHITE, JJ., concur.


author: PRESIDING JUSTICE CAMPBELL

text:
    PODOLSKY AND ASSOCIATES, LTD., et al., Plaintiffs-Appellants, v. CITY PRODUCTS CORPORATION, Defendant-Appellee.
    First District (1st Division)
    No. 80-2134
    Opinion filed December 31,1981.
    Robert C. Keck, Jr., and Ruben Castillo, both of Jenner & Block, of Chicago, for appellants.
    Frank M. Covey, Jr., Bruce H. Schoumacher, and William P. McCaughan, all of McDermott, Will & Emery, of Chicago, for appellee.
   PRESIDING JUSTICE CAMPBELL

delivered the opinion of the court:

Plaintiffs, Podolsky and Associates, Ltd., and James H. Burns Co., Inc., licensed real estate brokers, filed an amended complaint against defendant City Products Corporation on September 26, 1979, seeking recovery of real estate brokerage commissions in the amount of $85,266.41, pursuant to a written agreement with defendant. Plaintiffs and defendant moved for summary judgment, and the trial court granted defendant’s motion for summary judgment and denied plaintiffs’ motion. Plaintiffs have appealed.

The only issue presented for review is whether a broker who has found a tenant for a landlord is entitled to recover the commissions the landlord contracted to pay the broker upon the tenant’s exercise of the renewal options in the lease, where the act of the landlord in entering into a new and different contract with the tenant has eliminated the exercise of the renewal options.

The undisputed facts set forth in the pleadings and supporting affidavits established that on April 1, 1968, defendant City Products Corporation leased commercial property located at 1600 Busse Road, Elk Grove Village, Illinois (the property), from Exchange National Bank as trustee. Herst-Allen Co., a subsidiary of defendant, occupied the property. The lease of April 1,1968, had a base term of 15 years commencing November 1, 1968, with five options to renew by successive extensions of five years each. In early 1972, defendant and Herst-Allen Co. decided that neither had further use for the property, and defendant made known to a number of real estate brokers, including plaintiff Podolsky and Associates, Ltd. (Podolsky), that it was interested in securing a subtenant for the property. Podolsky showed the property to Mazda Motors of America, Inc. (Mazda), and negotiations for a sublease between defendant and Mazda ensued. On June 7, 1972, defendant executed a written agreement to pay Podolsky and James H. Burns Co., Inc. (Burns), an affiliated real estate broker, a commission of $53,424 in the event a sublease of the property was executed between defendant and Mazda. The agreement also provided that plaintiffs would receive additional commissions totalling $85,266.41 when the renewal options of the sublease were exercised. These options paralleled defendant’s prime lease and could extend the sublease a total of 25 years. Plaintiffs were successful in procuring Mazda as a subtenant of defendant, and on June 27, 1972, defendant and Mazda executed a sublease for the property. Pursuant to the written commission agreement defendant paid plaintiffs $53,424 for the original term of the sublease.

On February 7, 1975, Mazda assigned its sublease to Mazda Motors of America (Central), Inc. (Mazda Central), an affiliate of Mazda, with defendant’s consent. In the spring of 1978, Mazda Central decided to assign or sublease its interest in the property, and negotiations were entered into with Baird & Warner Mortgage & Realty Trust for the assignment of Mazda Central’s leasehold interest to it. On August 14,1978, an agreement was entered between defendant and Mazda Central which provided for the transfer of defendant’s interest in the property to Mazda Central for the sum of $168,000. This transaction was consummated September 1, 1978, when defendant assigned its prime lease to Mazda Central. That same day Mazda Central assigned the prime lease and the sublease to the 1600 Busse Joint Venture, a joint venture of Baird & Warner, Inc., and LNC Development Corporation. Plaintiffs brought this action to recover the real estate brokerage commissions they would have been entitled to if the five options to renew had been exercised. In granting defendant’s motion for summary judgment the trial court held that absent any allegation of fraud, the only way to enforce the contract was by its terms, and that the terms had not been met.

Plaintiffs urge that defendant became liable to them for the renewal commissions it expressly agreed to pay, as a matter of law, when defendant terminated the sublease with Mazda Central, rendering impossible the exercise of the renewal options therein. Plaintiffs rely on a principle of contract law set forth in Eggan v. Simonds (1962), 34 Ill. App. 2d 316, 181 N.E.2d 354, where the court stated:

“A party who deliberately prevents the fulfillment of a condition on which his liability under a contract depends cannot take advantage of his own conduct and claim that the failure of the fulfillment of the condition defeats his liability. [Citation.] A party cannot take advantage of a condition precedent the performance of which he has rendered impossible.” (34 Ill. App. 2d 316, 320, 181 N.E.2d 354, 356. See 5 Williston, Contracts §677, at 224 (3d ed. 1961).)

Plaintiffs contend that Illinois courts have consistently applied this doctrine to protect brokers’ commissions by finding that a broker’s commission conditioned upon the consummation of a transaction is earned if the transaction fails due to the actions of the principal. (Western Pride Builders, Inc. v. Zicha (1974), 23 Ill. App. 3d 770, 320 N.E.2d 181; Haas v. Cohen (1973), 10 Ill. App. 3d 896, 295 N.E.2d 28.) Plaintiffs also urge that defendant is liable to them for the renewal commissions even though the sublease was not renewed because defendant entered into a new transaction with the subtenant procured by plaintiffs. Both parties assert that Illinois courts have not considered whether a landlord is liable for renewal commissions which the landlord has expressly agreed to pay where the landlord has terminated the old lease and made a new lease arrangement with the tenant before the commencement of the renewal periods provided in the commission agreement. However, plaintiffs allege that other jurisdictions, notably New York, Ohio, New Jersey, Kentucky, Massachusetts, Pennsylvania, Louisiana, and Delaware, have considered this issue and awarded brokers their renewal commissions under such circumstances. (Spivak v. Madison-54th Realty Co. (1969), 60 Misc. 2d 483, 303 N.Y.S.2d 128; William P. Zinn & Co. v. Shawnee Pottery Co. (S.D. Ohio 1955), 148 F. Supp. 322; Consolidated Realty Co. v. Graves (1942), 291 Ky. 456, 165 S.W.2d 26; Louis Schlesinger Co. v. Kresge Foundation (D. N.J. 1964), 236 F. Supp. 373; Leitner v. Foster (1932), 280 Mass. 128, 181 N.E. 857; Rosenblum v. Lurie (1937), 128 Pa. Super. 480, 194 A. 204; Zuzak v. Querbes (La. App. 1939), 193 So. 258; and Emmett S. Hickman Co. v. American Realty Enterprises, Inc. (Del. Super. 1971), 277 A.2d 688.) Plaintiffs urge this court to follow those decisions of the jurisdictions they rely on and find that defendant is liable to them for the renewal commissions because defendant, pursuant to its new transaction with the subtenant, received a bargained for lump sum payment acceptable to it in lieu of the continued income it would have realized under the lease renewals.

Defendant urges that the trial court properly granted its motion for summary judgment and denied that of plaintiffs because this case is not one in which an offeror prevented the fulfillment of a condition precedent, but rather a case concerning real estate brokerage commissions controlled by Illinois law which is that a broker is entitled to commissions only where he either (1) is the procuring cause of a transaction, or (2) is entitled to commissions under the terms of a contract. (Bennett v. Seay (1979), 73 Ill. App. 3d 944, 392 N.E.2d 609.) Contrary to plaintiffs’ contentions, defendant claims that renewal of the sublease is not a condition precedent to liability, but a contingency upon which liability depends. (Lighthart v. Lindstrom. (1975), 24 Ill. App. 3d 918, 322 N.E.2d 70.) In the instant case the brokerage commission agreement between the parties provided that in the event Mazda executed a sublease with defendant, defendant would pay plaintiffs a commission of $53,424. The sublease was executed and the initial commission was paid. The agreement further provided that defendant would pay plaintiffs a specified amount within 90 days after the exercise of each five-year option to renew the sublease. This agreement governs plaintiffs’ right to receive additional commissions, and since the subtenant never exercised any renewal options, defendant claims that plaintiffs never became entitled to additional commissions. (Bennett v. Seay (1979), 73 Ill. App. 3d 944.) Moreover, plaintiffs played no part in the negotiations between defendant and Mazda Central for the subsequent assignment to Mazda Central of the prime lease. Bennett v. Seay.

We have examined the Illinois cases cited by plaintiffs and the cases cited from other jurisdictions, and we do not find these cases supportive of plaintiffs’ position. The parties have not called to our attention any Illinois cases where the issue of renewal commissions was discussed. The decisions in both Western Pride Builders, Inc. v. Zicha (1974), 23 Ill. App. 3d 770, and Haas v. Cohen (1973), 10 Ill. App. 3d 896, were based on a finding that the broker had been the procuring cause of a sale by producing a buyer who was ready, willing and able to purchase, and by virtue thereof the broker could not be subsequently deprived of his commission when the owner completed the transaction himself or through another broker. Plaintiffs herein were not involved in the assignment transaction between defendant and Mazda Central and do not allege that they were the procuring cause of the assignment of the prime lease from defendant to Mazda Central. Moreover, we find the Eggan case supportive of defendant’s position. In Eggan v. Simonds (1962), 34 Ill. App. 2d 316, the trial court held that the plaintiff had acted in bad faith in repudiating the agreement which was the subject of the lawsuit, and could not benefit from his act of bad faith. The reasoning expressed in Eggan was employed by the New York, Massachusetts, and Delaware courts to award renewal brokerage commissions in the absence of the exercise of options to renew where the respective trial courts found that bad faith efforts on the part of the landlord were the cause of nonrenewals. (Spivak v. Madison-54th Realty Co.; Leitner v. Foster; Emmett S. Hickman Co. v. American Realty Enterprises, Inc.) The other cases cited by plaintiffs are inapposite, for in those cases renewal commissions were awarded because the landlord-tenant relationship persisted albeit on different terms, whereas the landlord-tenant relationship herein has been terminated. (William P. Zinn & Co. v. Shawnee Pottery Co.; Consolidated Realty Co. v. Graves; Louis Schlesinger Co. v. Kresge Foundation; Rosenblum v. Lurie; Zuzak v. Querbes.) The record in the instant matter supports defendant’s contention that the complained-of transaction between defendant and its tenant was based on business judgment and undertaken in good faith. There is no suggestion that the broker was the target of the assignment transaction, or that it was entered in an attempt to deprive the broker of its commission. Plaintiffs have not alleged fraud or bad faith on the part of defendant, and in the absence of such allegations, the contract between the parties must be enforced by its terms. (Bennett v. Seay (1979), 73 Ill. App. 3d 944; Nardi, Pain & Podolsky, Inc. v. Vignola Furniture Co. (1967), 80 Ill. App. 2d 220, 224 N.E.2d 649.) Accordingly, the judgment of the circuit court of Cook County is affirmed.

Affirmed.

GOLDBERG and O’CONNOR, JJ„ concur.