author: PRESIDING JUSTICE DOWNING

text:
    ANTHONY LABARBERA, JR., Plaintiff-Appellant, v. ROSE LABARBERA, Defendant-Appellee.
    First District (2nd Division)
    No. 82—1093
    Opinion filed July 26, 1983.
    Rehearing denied August 30, 1983.

      J. Robert Geiman, Ellen J. Kerschner, and Daina B. Van Dervort, all of Peterson, Ross, Schloerb & Seidel, of Chicago, for appellant.
    Sydney R. Marovitz, of Marovitz, Powell, Pizer & Edelstein, and John L. Leonard, of Bergstrom, Davis & Teeple, both of Chicago, for appellee.
   PRESIDING JUSTICE DOWNING

delivered the opinion of the court:

Plaintiff, Anthony LaBarbera, Jr., brought this action against his brother Joseph’s widow, defendant, Rose LaBarbera, seeking a declaration of a constructive trust over funds which belonged to their parents and were allegedly misappropriated by Joseph. Plaintiff appeals the circuit court of Cook County’s refusal to declare either an express or constructive trust, or to allow prejudgment interest on the monies allegedly due.

Plaintiff’s amended complaint averred the following: after the death of their father in 1968, Joseph, who was a licensed real estate broker, took it upon himself to manage the affairs of their mother, who died in 1978 at the age of 90 or over. On April 3, 1971, Joseph executed a document captioned “DECLARATION,” which stated that he had received from the estate of his deceased father and from his living mother the following sums:

1. The sum of $21,200 on property located on West North Avenue in Chicago, Illinois, secured by a note and mortgage;
2. Proceeds in the amount of $17,000 from the sale of property on Halsted Street in Chicago; and
3. The sum of $2,000 which he drew from his parent’s bank account.

The next paragraph in the declaration read:

“JOSEPH LABARBERA further states that he waives, relinquishes and surrenders any rights to the balance of the properties held by his mother and his brother, ANTHONY LABAR-BERA, and in the event of the death of his mother, the total sums remaining in the joint names of various parties is to be released to NANTHONY [s-ic] LABARBERA. That any differences between the sums he has received and the sums that ANTHONY LABARBERA should receive will be settled between them and Joseph LaBarbera will pay to Anthony LaBarbera the differences within a reasonable time. ***”

The document was signed by Joseph and was notarized.

The complaint further alleged that, as said funds were never accounted for, an accounting was due. Plaintiff also alleged that Joseph sold properties belonging to their parents and used the proceeds to buy real estate registered in his and defendant’s names as joint tenants, or in the alternative, registered pursuant to a declaration of trust which passed the interest solely to defendant after the death of Joseph in 1975. Plaintiff additionally averred that Joseph secured cash from certain bank accounts owned by their mother, including a certain sum from the Bank of Lincolnwood. All of the transactions mentioned were allegedly secret and for the sole benefit of Joseph and defendant, and to plaintiff’s detriment. Allegedly Joseph was in a fiduciary relationship with plaintiff, or in the alternative, acted fraudulently with respect to the transactions. Plaintiff claimed that he had previously demanded an accounting from defendant for one-half of the subject funds and that defendant refused to account for them.

Plaintiff prayed that an accounting be had of the funds secured by Joseph in derogation of the declaration of April 3, 1971; that the court impress a constructive trust on the real estate; that the court restrain defendant from transferring or disposing of the subject property and funds; and that the court grant other relief, including prejudgment interest.

During the bench trial, plaintiff testified that his parents trusted his brother Joseph and that in regards to his father’s affairs, Joseph “took care of everything.” Plaintiff worked long hours as a truck driver and “never had much to do with” his parents. He stated that he and Joseph argued after their father died and that he wanted something on paper so that “my mother and myself would be secured * * * in case of [Joseph] dying, that she wouldn’t be left out with all this money that he had in his possession.” The brothers, at Joseph’s suggestion, went to Joseph’s lawyer, Jiro Yamaguchi, and requested that he “write up something that would protect my mother, a declaration of trust.” The “DECLARATION” was drafted and executed on April 3,1971.

As to the North Avenue property listed on the declaration, plaintiff testified that in the early 1960’s, before their father died, Joseph informed plaintiff that the bank was going to foreclose on his property. Joseph asked plaintiff to accompany him to their father’s house, which plaintiff did, to request a loan of $21,200. Joseph thereupon received the money.

In regards to the Halsted Street property listed on the declaration, plaintiff testified that the property, title to which passed to the mother on the death of the father, was sold to the city of Chicago for $17,000. Joseph used the proceeds to purchase property located on Congress Street. This property was eventually sold to Cleo Howard, with Joseph retaining the proceeds.

The sum of $2,000, listed as item No. 3 on the declaration, was withdrawn by Joseph on March 7, 1970, from a bank account at the Bank of Lincolnwood which had plaintiff, Joseph and their mother listed as joint tenants. After Joseph withdrew the $2,000, he gave possession of the passbook to plaintiff, who would periodically bring the book into the bank to have interest posted. Without the passbook and without plaintiff’s knowledge, Joseph closed the account which had a balance of $9,177.54 as of April 26, 1971. Plaintiff also testified that in 1973, after signing the 1971 declaration, Joseph sold, for the sum of $5,000, a piece of property on Burling Street which had belonged to their father, and retained the proceeds.

Defendant was called by plaintiff as an adverse witness. Claiming lack of knowledge, she could not testify as to most of her husband’s dealings. Jiro Yamaguchi, Joseph’s lawyer, testified as to the circumstances surrounding the execution of the April 3, 1971 declaration. He stated that he used the term “declaration” because he “did not have the means of drawing out a full trust.” His secretary was not present and he typed the document himself. In explaining the document, Yamaguchi further stated that, “I have 2 brothers who were having an argument who were amiably settling something between them in terms of a future inheritance from their parents. *** Whether it created a trust or whether it was — would create an obligation, I wanted something on paper which both the brothers could live with.”

At the close of plaintiff’s case, the court refused to grant plaintiff’s motion for a directed verdict. The court characterized the declaration as a settlement between the prospective heirs as to the proceeds of the estates of their parents, and found that the testimony and facts of the case did not warrant the imposition of a constructive trust. Defendant’s case consisted of her sole testimony during which she denied knowledge of the declaration and said she did not receive any of the money which her husband Joseph withdrew from the Bank of Lincolnwood account.

The record established that Joseph died in 1975; that at the time of the trial, the North Avenue property was owned by Rose and used for rental income; that Rose resided in a residence at 6237 North Caldwell in the city of Chicago; and that in either 1979-1980, Rose sold property located at 5200 West La Moyne in the city of Chicago.

At the conclusion of trial, the court found that there was a breach of the April 3 declaration in that there was no proper accounting to Anthony and that he would “deny the relief requested to construe a trust.” In the final judgment order, the trial court denied all relief sought by the complaint; found that the plaintiff was not entitled to an accounting or to the impression of a constructive trust on the property listed on the “DECLARATION”; but, entered judgment in the amount of one-half of the sum of $9,177.54, the amount in the Bank of Lincolnwood account. The court refused to award prejudgment interest on the amount, as requested by plaintiff, because it found “no willfulness, wantonness or knowledge on the part of the defendant.” Plaintiff appeals from all portions of the trial court’s judgment except the monetary award in his favor.

I

A

The threshold issue to be addressed in this appeal is whether the trial court erred in refusing to impose a constructive trust over funds misappropriated by Joseph which he had obtained by virtue of the family relationship. A constructive trust will be used to compel a party who unfairly holds a property interest to convey that interest to the one to whom it justly belongs. Gravitt v. Jennings (1979), 79 Ill. App. 3d 286, 288, 398 N.E.2d 395.

Constructive trusts are generally divided into two classes: one, those arising where actual fraud is involved, and the other, those arising by virtue of the existence of a fiduciary or confidential relationship. As said in Kester v. Crilly (1950), 405 Ill. 425, 432, 91 N.E.2d 419, a confidential relationship “may be moral, social, domestic, or even personal. [Citations.] Where the relationship does not ex-1st as a matter of law, it must, however, be proved by clear and convincing evidence in order to establish a basis for raising a constructive trust.” See also Lux v. Lelija (1958), 14 Ill. 2d 540, 546, 152 N.E.2d 853; In re Estate of Ray (1972), 7 Ill. App. 3d 433, 439, 287 N.E.2d 144.

Factors to be considered in determining whether such a confidential relationship exists are: the degree of kinship of the parties, the disparity in age, health, mental condition, education and business experience between them and the degree of trust placed in the dominant party. (Kester v. Crilly (1950), 405 Ill. 425, 432, 91 N.E.2d 419; Desiderato v. Sullivan (1980), 84 Ill. App. 3d 1117, 1121, 406 N.E.2d 116, appeal denied (1980), 81 Ill. 2d 590.) In this case, the family relationship was close — that is, between parent and child and between two siblings — Joseph was a real estate broker while his father was a laborer, his mother a housewife, and plaintiff a truck driver. Plaintiff also testified at trial that their parents “looked up to and trusted Joseph.”

Normally, proof of a confidential relationship requires a showing that one party has reposed trust and confidence in another who then gains influence or superiority over the other. (Edwards v. Miller (1978), 61 Ill. App. 3d 1023, 1027, 378 N.E.2d 583.) A party generally proves the existence of a confidential relationship by establishing facts of an antecedent relationship which gives rise to trust and confidence reposed in another. Ray v. Winter (1977), 67 Ill. 2d 296, 304, 367 N.E.2d 678.

In this case, plaintiff presented unrebutted evidence that after the death of their 87-year-old father in 1968, Joseph handled the affairs of their aged mother. Plaintiff and Joseph argued about the share of their parent’s money that Joseph was receiving and, in 1971, Joseph suggested that they see his attorney. The declaration which the attorney prepared at the brothers’ instructions and which Joseph signed was, in our opinion, an acknowledgment by Joseph that plaintiff was entitled to a portion of their parent’s estate. In that document, Joseph agreed that any differences between the money he had already received and the amount plaintiff should receive from their mother’s estate after she died would be settled between them and Joseph would pay the difference. By causing the document to be drafted and then signing it, Joseph admitted that he had received funds which, in part, might properly belong to plaintiff.

Keeping in mind that in determining whether to impose a constructive trust, we must consider the principles of equity, good conscience and unjust enrichment, if any (City of Chicago v. Roppolo (1983), 113 Ill. App. 3d 602, 609, 447 N.E.2d 870), we conclude that the facts of this case warrant the imposition of a constructive trust over one-half of the funds listed in the April 3, 1971, declaration. We further hold that the constructive trust should also extend to one-half of the sum of $5,000 which represents proceeds which Joseph retained from the sale of the property on Burling Street in 1973. We reach this conclusion based on the admission by Joseph, the personal relationship that existed in this family, the obvious moral obligations which arise from this relationship, and the unjust enrichment that Joseph received by virtue of this relationship.

In the record before us, Anthony, Sr., the father, died in 1968 at age 87. Concetta, the mother, died in 1978 at the age of 90 or over. In 1970, Concetta could not sign her name. Joseph was a licensed real estate broker and managed the affairs of the parents. Plaintiff was a truck driver. When questioning Joseph about the monies which had come into his possession, plaintiff was concerned not only about their aged mother, but also the right of Joseph to retain the funds. It is obvious Joseph realized the problem and took plaintiff to Joseph’s attorney where he acknowledged his duty to account to plaintiff for what he had received. Joseph, however, did nothing further prior to his death in 1975. Two years later, this litigation commenced on behalf of Concetta, the aged mother. We think the existence of the confidential relationship between Joseph and the parents created a presumption of influence which was acknowledged by Joseph when he signed the declaration. The record does not show any evidence to rebut the presumption of influence. The record establishes the factors, as herein-above set forth, which are traditionally used in determining whether a confidential relationship exists. While we acknowledge that the opinion of the trier of fact must be given especially great weight in a constructive trust case (Whewell v. Cox (1977), 54 Ill. App. 3d 179, 184, 369 N.E.2d 330, appeal denied (1978), 71 Ill. 2d 601), we hold that the trial court’s finding in this case was against the manifest weight of the evidence.

To. summarize, we find that the constructive trust should be imposed on the following items, in addition to the $9,177.54 in the original judgment:

$21,200 — North Avenue property;
$17,000 — proceeds from sale of 1429 North Halsted;
$ 2,000 — proceeds from Bank of Lincolnwood;
$ 5,000 — proceeds from 1840 North Burling.

B

Having reached the decision that a constructive trust should be imposed over the subject funds, we now must consider whether this remedy may be applied against defendant, Joseph’s surviving spouse. No evidence was presented which showed defendant took any part in, or had any knowledge of, Joseph’s actions involved in this suit. On the other hand, a claimant in a constructive trust can follow property to a gratuitous transferee, who did not have knowledge of the claim of equitable ownership, if that person is not a bona fide purchaser. (5 Scott, Trusts sec. 510, at 3595 (3d ed. 1967); of Cusack v. Cusack (1929), 253 Ill. App. 288, 308, rev’d on other grounds (1930), 339 Ill. 108, where the court recognized that as a general rule, a trust may be enforced against a trustee’s heir or devisee who acquires the trust funds either with notice of the trust equities or without consideration.) Under Illinois law, a fund impressed with a trust may be traced into a fund of commingled money. Brown & Williamson Tobacco Corp. v. First National Bank (7th Cir. 1974), 504 F.2d 998, 1002, citing People ex rel. Nelson v. Bates (1933), 351 Ill. 439, 184 N.E. 597.

In this case, plaintiff requests a money judgment in the amount of $22,600 (which represents one-half of the contested items listed above), plus prejudgment interest. We conclude plaintiff has the right to elect to receive a money judgment (see Bogert, Trusts & Trustees sec. 867, at 72 (2d ed. 1982)) based upon the record of this case.

II

Plaintiff also contends that the trial court erred in not construing the April 3 document as an express trust. In view of our holding above, it is not necessary to discuss this issue.

III

Plaintiff lastly claims that in the event that this court were to declare that either an express or constructive trust exists, he is entitled to prejudgment interest on the amount of the award at the rate of 5% per annum. The date from which his interest should be calculated, plaintiff contends, is April 3, 1971, the date when Joseph acknowledged that he had received the sums listed in the declaration.

In Illinois, there are four instances where interest is to be allowed without agreement by the parties: (1) on money lent or advanced for the use of another; (2) on money due on the settlement of account from the day of liquidating accounts between the parties and ascertaining the balance; (3) on money received to the use of another and retained without the owner’s knowledge; and (4) on money withheld by an unreasonable and vexatious delay of payment. (Continental National Bank & Trust Co. v. Olney National Bank (7th Cir. 1929), 33 F.2d 437, 440; Ill. Rev. Stat. 1981, ch. 17, par. 6402.) Citing Smith v. Dravo Corp. (7th Cir. 1953), 208 F.2d 388, plaintiff advances the proposition that the area of trusts is an example of an exception to strict adherence to the statutory provision. In that case, the court noted that in Illinois “where a fiduciary or confidential relationship exists and is violated, interest upon the recovery may be allowed irrespective of statute.” (Smith v. Dravo Corf. (7th Cir. 1953), 208 F.2d 388, 391, see also Duncan v. Dazey (1925), 318 Ill. 500, 527, 149 N.E. 495.) Courts have allowed interest on recoveries only when warranted by equitable considerations. Smith v. Dravo Corp. (7th Cir. 1953), 208 F.2d 388, 391.

In this case, plaintiff seeks to recover a portion of his parent’s estate from his brother Joseph’s widow. Joseph predeceased his mother, therefore his obligation to settle any differences between his inheritance and plaintiff’s was not determined or due before his death. Joseph died in 1975 without providing a method of carrying out his obligation to plaintiff. The mother died intestate in 1978. Upon her death in 1978, without any previous settlement of this trust, plaintiff’s rights could then be determined. We believe Joseph had the use of this money to the detriment of plaintiff for a number of years. Based upon the equitable consideration noted in Smith, we conclude plaintiff is entitled to prejudgment interest from the date of the mother’s death.

CONCLUSION

For the reasons set forth herein, we affirm that portion of the judgment of the circuit court of Cook County granting plaintiff one-half of $9,177.54 and reverse the balance of said judgment. We remand the cause to the circuit court of Cook County with directions that the said court enter a revised judgment to include one-half of the $45,200 set forth herein in section IA, plus the one-half of the $9,177.54, and prejudgment interest on the total ($27,188.77) from the date of the death of Concetta LaBarbera.

Affirmed in part; reversed and remanded in part with directions.

STAMOS and HARTMAN, JJ., concur.

      The original suit was filed February 24, 1977, by Anthony, Jr., individually and as conservator of the estate of Concetta LaBarbera, an incompetent. Concetta, their mother, died in 1978. On February 18, 1982, the letters of conservatorship of Anthony, Jr. were cancelled. An amended complaint was filed February 18, 1982.

      We were advised during oral argument that plaintiff’s mother died without a will. We therefore conclude that plaintiff’s claim to one-half of his parent’s estate, although not specifically stated in his complaint, is based upon his statutory intestate share as provided in the descent and distribution provision of the Illinois Probate Act of 1975. Ill. Rev. Stat. 1981, ch. 110½, par. 2—1(b).


source: Caselaw Access Project

author: JUSTICE LORENZ

license: Public Domain

text:
    GEORGE L. KROLL, Plaintiff-Appellee, v. SUGAR SUPPLY CORPORATION, Defendant-Appellant.
    First District (5th Division)
    No. 82—1428
    Opinion filed July 22, 1983.
    Rehearing denied August 24, 1983.

      Jon R. Lind, Paul W. Schroeder, and John W. Treece, all of Isham, Lincoln & Beale, of Chicago, for appellant.
    Harvey J. Barnett, of Barnett and Beigel, Ltd., of Chicago, for appellee.
   JUSTICE LORENZ

delivered the opinion of the court:

Defendant appeals from a summary judgment which ordered it to pay plaintiff a 1978 employment bonus of $164,560. According to defendant, the trial court misinterpreted the pertinent employment agreement, and it was improper to enter summary judgment because there are genuine issues concerning material facts. We find no merit in these arguments, and we affirm.

The parties agree that almost all the material facts are undisputed, and the following facts are material to our decision:

Plaintiff entered into a three-year employment agreement with Sugar Supply Corporation (Old Sugar Supply) on December 30, 1975. This agreement obligated Old Sugar Supply to pay plaintiff an annual bonus based on its pre-tax net operating income. However, on January 3, 1978, Old Sugar Supply sold most of its assets (including its corporate name) to the defendant RHM Food Ingredients, Inc. Defendant then changed its name to Sugar Supply Corporation (New Sugar Supply), and Old Sugar Supply changed its name to M. L. Hamilton & Co.

The purchase agreement between Old and New Sugar Supply provided that the purchaser would “assume” certain obligations, including plaintiff’s employment contract, and plaintiff worked for New Sugar Supply throughout 1978. Although New Sugar Supply agrees that it owes plaintiff a 1978 bonus based on its 1978 pretax net operating income, plaintiff contends that defendant breached the employment agreement by improperly calculating the amount of his 1978 bonus. Explanation of the precise nature of the dispute requires examination of this contract in light of accounting principles which the parties inform us are undisputed.

Paragraph 4 of the 1975 employment agreement between plaintiff and Old Sugar Supply provides that for three years plaintiff would receive an annual bonus based oh the pretax net operating income of “the corporation.” The agreement further specifies that plaintiff’s bonus is to be calculated by taking the pretax net operating income of “the corporation” (minus certain income such as profits from investments and the sale of capital assets), then subtracting $833,333 and multiplying the result by 12%.

Paragraph 4 also provides that the pretax net operating income of “the corporation” shall be determined by using the First-In/First-Out (FIFO) method of accounting. Under this method, the products which a business sells from its inventory of merchandise are assumed, for accounting purposes, to be the products which it first purchased. Thus, earnings on a sale are calculated by subtracting from the sale price the cost of the products which the seller first purchased.

Although, under the provisions of paragraph 4, plaintiff’s bonus was to be based upon his employer’s income as calculated by using the FIFO method, New Sugar Supply used the Last-In/First-Out (LIFO) method of accounting during 1978. When LIFO is used to calculate earnings from sales, the cost of products sold from inventory are assumed to be the cost of the products which the seller most recently purchased. Earnings derived from a sale are calculated by subtracting from the sale price the cost of the products most recently purchased by the seller. Therefore, LIFO accounting is often used during periods of inflation because the amount of income realized from a sale will be less than the amount of income as calculated under FIFO accounting. In other words, when LIFO accounting is used during periods of inflation it defers income by “embedding” earnings in the corporation’s inventory.

Defendant’s 1978 income was initially calculated by using LIFO accounting, but as noted above, determination of plaintiff’s bonus required use of FIFO accounting. Defendant agrees, however, that conversion from LIFO to FIFO accounting is accomplished by taking a firm’s income (as calculated on a LIFO basis) and adding to this figure the difference between the “LIFO reserve” which the firm had at the beginning and end of its fiscal year. “LIFO reserve” is the amount of income which a business has been able to defer (i.e., “embed” in its inventory) by using LIFO rather than FIFO accounting during a period of inflation.

It is further undisputed that until a new business begins making sales it does not have any income which can be deferred or “embedded” in its inventory as LIFO reserve. Therefore, as a new business which first obtained an inventory when it purchased the assets of Old Sugar Supply on January 3, 1978, New Sugar Supply started the year with a LIFO reserve of zero. At the end of 1978, however, New Sugar Supply had a LIFO reserve of $2,231,780. Accordingly, using these undisputed accounting principles to compute the corporation’s 1978 income on a FIFO basis, its LIFO-basis income must be added to the difference between its year-beginning LIFO reserve of zero and its year-end LIFO reserve of $2,231,708. In short, under application of these undisputed accounting principles, New Sugar Supply’s FIFO-basis pretax net operating income for 1978 is calculated by adding $2,231,708 to its pretax net operating income as determined on a LIFO basis.

The dispute in the present case centers on the fact that instead of using its own 1978 year-beginning LIFO reserve of zero, New Sugar Supply or its accountants decided to use (as the firm’s year-beginning LIFO reserve) the 1977 year-end LIFO reserve of Old Sugar Supply: $880,395. Consequently, by ignoring its own year-beginning LIFO reserve and substituting instead the year-end LIFO reserve of Old Sugar Supply, New Sugar Supply lopped $880,395 off its 1978 FIFO-basis income.

New Sugar Supply concedes that it owes plaintiff a bonus based on its 1978 pretax net operating income (as defined in paragraph 4 of the 1975 employment agreement), and the difference between the amount of this bonus as calculated by plaintiff and defendant— $105,647 — depends upon whether plaintiff’s employment agreement was breached when New Sugar Supply calculated its income by using the LIFO reserve of another party — Old Sugar Supply.

Plaintiff’s motion for summary judgment asserted that the unambiguous language of the bonus provision required New Sugar Supply to use its own LIFO reserve figures when calculating its FIFO-basis pretax net operating income. The trial court agreed, and entered judgment for plaintiff.

Opinion

Defendant initially argues that the 1975 employment contract contains a “latent ambiguity” because it does not explicitly specify how to calculate plaintiff’s bonus in the event his original employer sold its assets to a third-party and transferred his employment agreement to the purchaser. According to defendant, parol evidence shows that the original contracting parties (plaintiff and Old Sugar Supply) intended that in the event of a sale of assets plus a transfer of plaintiff’s employment contract, plaintiff’s new employer would be entitled to usé the old employer’s LIFO reserve when calculating the bonus owed to plaintiff by the new employer.

Additionally, focusing again on the alleged intent of plaintiff and Old Sugar Supply in 1975, defendant argues that reading the contract “as a whole” shows that the parties intended to disregard separate corporate identities in the event Old Sugar Supply sold its assets to another corporation and transferred plaintiff’s employment contract to the purchaser. Still further, defendant argues that the same conclusion must be reached by giving the “most reasonable” construction to the allegedly ambiguous 1975 agreement.

As will be explained below, proper consideration of these arguments depends upon resolution of an issue which defendant raised in the trial court and which it briefly refers to in a footnote to its opening appellate brief.

Responding to plaintiff’s motion for summary judgment, defendant argued that under the assumption of obligations provided in the 1978 purchase agreement between Old and New Sugar Supply, plaintiff’s 1978 bonus under the 1975 employment agreement “should be determined by reference to the ‘pre-tax net operating income’ of Old Sugar Supply, the party to that agreement.” Since the record contains no indication of Old Sugar Supply’s 1978 income, defendant concluded that plaintiff failed to show that he was entitled to summary judgment.

In response to this argument, plaintiff contended that the “assumption” provided in the 1978 purchase agreement resulted in a substituted contract in which “New Sugar Supply became ‘the corporation’ defined in the terms of the employment agreement, and it was obligated to pay Kroll his bonus based upon the pre-tax net operating income of New Sugar Supply.”

The threshold question in the present case, therefore, is whether, in 1978, New Sugar Supply merely assumed the duty of paying plaintiff a bonus based on the 1978 income of Old Sugar Supply, or whether the parties created a new contract, with a substituted obligor, under a novation. We start by examining the doctrine of novation.

“ ‘Novation’ may be broadly defined as a substitution of a new contract or obligation for an old one which is thereby extinguished. More specifically, it is the substitution by mutual agreement of one debtor or of one creditor for another, whereby the old debt is extinguished, or the substitution of a new debt or obligation for an existing one, which is thereby extinguished. A novation is a mode of extinguishing one contract or obligation by another, that is, the substitution, not of a new paper or note, but of a new obligation in lieu of an old one, the effect of which is to pay, dissolve, or otherwise discharge it.” 15 Williston on Contracts sec. 1865, at 585-86 (3d ed. 1972); see also Restatement (Second) of Contracts secs. 279, 280 (1979); and Kiefer v. Reis (1928), 331 Ill. 38, 43.

Consequently, if there was a novation in 1978, the original agreement with Old Sugar Supply was discharged and replaced by a new agreement in which defendant was substituted as “the corporation” in the bonus provision of the employment agreement. Defendant therefore would be obligated to pay plaintiff a 1978 bonus based on defendant’s own 1978 income, rather than the 1978 income of Old Sugar Supply.

Intent to create a novation can be implied from the circumstances of a transaction or the subsequent conduct of the parties. (Burnett v. West Madison State Bank (1940), 375 Ill. 402, 410.) Moreover, even though the 1978 purchase agreement does not clearly state whether the parties intended to create a novation or merely to delegate certain contract duties to New Sugar Supply, “ ‘[i]t is a familiar rule of construction, that where the terms of an agreement are in any respect doubtful or uncertain and the parties to it have, by their own conduct, placed a construction upon it which is reasonable, such construction will be adopted by the courts, in the event of litigation concerning it.’ ” Pocius v. Halvorsen (1963), 30 Ill. 2d 73, 81, quoting People ex rel. Attorney General v. Murphy (1886), 119 Ill. 159, 166.

Applying these principles to the record in the present case, we find that there is no genuine issue of material fact, and that the trial court properly concluded that the parties created a novation in which New Sugar Supply became a substituted obligor. “Under section 57 of the Civil Practice Act (Ill. Rev. Stat. 1979, ch. 110, par. 57 [now recodified as section 2—1005 of the Code of Civil Procedure (Ill. Rev. Stat. 1981, ch. 110, par. 2—1005)], summary judgment will be granted only if the pleadings, affidavits and depositions on file reveal that there is no genuine issue of material fact and that the movant is entitled to judgment as a matter of law.” (Murphy v. Urso (1981), 88 Ill. 2d 444, 463-64.) Moreover, “[i]t may be stated generally that if what is contained in the pleadings and affidavits would have constituted all of the evidence before the court and upon such evidence there would be nothing left to go to a jury, and the court would be required to direct a verdict, then a summary judgment should be entered.” Fooden v. Board of Governors (1971), 48 Ill. 2d 580, 587.

The depositions and admissions contained in the record show that when New Sugar Supply calculated plaintiff’s 1978 bonus, it relied entirely on its own income figures (except for the disputed year-beginning LIFO reserve). Through its conduct, New Sugar Supply manifested an understanding that it had been substituted as the obligor under plaintiff’s employment agreement. Moreover, by going to work for New Sugar Supply plaintiff manifested the same understanding. The intent of the parties concerning the 1978 purchase agreement, as evidenced by their conduct, is reasonable, and it must be adopted by the courts in the absence of countervailing evidence. We have not been referred to any such countervailing evidence, however, and we find that plaintiff has established there is no genuine dispute concerning the fact that (a) plaintiff’s original employment agreement was discharged in 1978, and (b) defendant is liable to plaintiff as a substituted obligor under a novation.

Having considered this threshold question, defendant’s arguments concerning contract construction are easily resolved. As noted above, defendant focuses on the 1975 agreement between plaintiff and Old Sugar Supply, asserting that there is a “latent ambiguity” in this agreement because it does not expressly specify how plaintiff’s bonus is to be calculated in the event the contract is assigned to an entity which purchases Old Sugar Supply’s assets. Defendant further contends that parol evidence, plus a discerning reading of the entire contract, show that plaintiff and Old Sugar Supply intended that New Sugar Supply could disregard separate corporate identities when calculating plaintiff’s 1978 bonus.

However, as we concluded above, this case concerns an alleged breach of the 1978 substituted contract between plaintiff and defendant, and it is not relevant to try to ascertain the intent of the parties to the discharged 1975 agreement. “Contracts must be construed and given effect with reference to the intention of the parties at the time of entering into them” (Cedar Park Cemetery Association, Inc. v. Village of Calumet Park (1947), 398 Ill. 324, 335), and the relevant intent in this case is the intent of plaintiff and defendant when they entered into a substituted contract in 1978. Defendant mistakenly assumes that the 1975 contract was merely assigned to defendant, rather than being discharged, and defendant’s arguments miss the mark because they focus on the intent of the parties to the 1975 agreement.

Focusing on the substituted contract (rather than the discharged contract), there is no “latent ambiguity.” The clear and unambiguous language of the substituted contract requires defendant, as “the corporation,” to pay plaintiff a 1978 bonus which is based on defendant’s own 1978 financial figures. Computing this bonus by using the LIFO reserve of a third-party such as Old Sugar Supply is improper because the resulting figure does not represent defendant’s own income.

We have carefully examined the substituted contract, reading it “as a whole,” and we find no indication that the parties intended to permit defendant to calculate its income by using the profit figures of a third party. Therefore, even though defendant asserts that it would be “more reasonable” to construe the pertinent agreement in a manner which would permit it to save more than $100,000, “[c]ourts may not, because a more equitable result might be reached thereby, construe into a contract provisions which are not there.” Abingdon Bank & Trust Co. v. Bulkeley (1945), 390 Ill. 582, 591.

Several other arguments must be briefly mentioned. Defendant contends that the trial court erred by (1) refusing to consider parol evidence adduced by defendant in support of its arguments, and (2) by striking affidavits attached to its post-judgment motion. In reaching our decision, however, we have considered the relevant portions of this material, and the alleged errors are, at most, harmless.

Finally, defendant argues that summary judgment was improper because a portion of the employment agreement states that “[t]he pre-tax net operating income shall be determined by the certified public accountants regularly retained by the corporation, and their determination shall be binding and conclusive on the parties hereto.”

In determining plaintiff’s 1978 bonus, New Sugar Supply’s accountants used Old Sugar Supply’s 1977 year-end FIFO reserve when calculating New Sugar Supply’s 1978 FIFO-basis income. Thus, defendant concludes and the accountants’ decision is binding and conclusive.

We agree that defendant’s 1978 LIFO-basis income, as calculated by the corporation’s accountants, is binding and conclusive. And we agree that the figure given by the accountants as defendant’s 1978 year-end LIFO reserve is also controlling. But what is neither binding nor controlling is the accountants’ interpretation of the employment agreement as requiring or permitting them to calculate plaintiff’s 1978 bonus by using the LIFO reserve figures of a third-party.

The unambiguous language of the bonus provision required use of defendant’s own financial figures when calculating plaintiff’s bonus. Using Old Sugar Supply’s LIFO reserve to calculate New Sugar Supply’s FIFO-basis income violated the employment agreement because it resulted in a hybrid figure which only partially reflected New Sugar Supply’s income.

The question of whether Old Sugar Supply’s 1977 year-end LIFO reserve could be used in calculating New Sugar Supply’s 1978 income is a question of law concerning contract interpretation, not a bookkeeping question for accountants. As noted above, this question must be resolved in plaintiff’s favor, and the accountants’ conclusion on this question of law is neither binding nor conclusive on plaintiff or the courts.

Based on all the reasons given above, the judgment of the circuit court of Cook County is affirmed.

Affirmed.

SULLIVAN and MEJDA, JJ., concur.


author: JUSTICE GOLDBERG

text:
    WILLIAM D. BRACKETT, Plaintiff, v. F. THOMAS SEDLACEK et al., Defendants—(Mid-America National Bank of Chicago, Intervenor-Appellant; Stuart Kaiserman, Receiver-Appellee; Lawrence Swibel, Appellee; Butler Products Company, Intervenor-Appellee).
    First District (1st Division)
    Nos. 82—2373, 82—2469 cons.
    Opinion filed August 8, 1983.

      Feiwell, Galper & Lasky, of Chicago (Daniel C. Meenan, Jr., Craig P. Ehrlich, and Nancy M. Barrett, of counsel), for appellant.
    Jenner & Block, of Chicago (Ronald R. Peterson and Alan Raphael, of counsel), for appellee Butler Products Co.
    Hopkins & Sutter, of Chicago (Lawrence B. Swibel and Albert C. Maulé, of counsel), for appellees Stuart Kaiserman and Lawrence Swibel.
   JUSTICE GOLDBERG

delivered the opinion of the court:

This appeal presents a controversy regarding the payment of expenses resulting from a receivership. The trial court ordered a dissolution of OSLA Communication Services Corporation (Osla) and appointed Stuart Kaiserman as its receiver. Mid-America National Bank of Chicago (Mid-America) appeals from two orders requiring the payment of receivership expenses.

Mid-America was a secured creditor of Osla, having loaned it $350,000. In November 1976, Mid-America perfected a security interest in a van and in certain electronic equipment belonging to Osla. In October 1978, Osla was declared to be in default, and Mid-America instituted a replevin action to recover its collateral from the premises of Butler Products Company (Butler). This action, however, was not pursued to completion.

Osla was in the business of videotaping basketball games for television stations. At the time of the dissolution, there were a number of contracts for services outstanding. The receiver was authorized to carry on the business, and did so for a short time. The receiver attempted to carry out Osla’s contract obligations and to sell the business as a going concern. Mid-America did not file any objections to this continued operation of Osla. Mid-America attempted to assist the receiver by providing the names of interested parties as possible purchasers.

No sale materialized. On June 16, 1980, the trial court authorized the receiver to proceed with an auction of Osla’s assets. In addition, the trial court ordered that any proceeds derived from the auction were to be deposited with the trial court until all administrative expenses of the receivership were satisfied. On the same day, Mid-America filed a petition to intervene in the action and a complaint for a declaratory judgment to establish its rights as a lien creditor with a perfected security interest in the van and the other equipment. Although Mid-America did not formally intervene until June 16, 1980, it was fully advised of the actions of the receiver from the time of his appointment.

On July 23, 1980, the receiver conducted an auction sale of Osla’s property. Twenty-two bidders were present, including Mid-America and RCA, another secured creditor. Mid-America and RCA bid $70,500 and $78,000 respectively, not in cash but as a credit upon their respective liens. As a result, the auction generated only $14,795 in actual cash. The receiver’s final report indicates that, if the secured creditors had not bid their liens, an additional $148,000 in cash bids would have been accepted by the receiver. The receiver testified at a hearing on fees that he would not have conducted the auction had he known the secured creditors intended to bid by a credit upon their liens.

On January 20, 1981, the receiver filed his final report and a motion for payment of fees. The receiver’s attorney also filed a motion for payment of fees. The receiver’s final report listed a balance of $598.27 in the receivership bank account. Both fee motions included detailed time and activity summaries. The receiver requested a total of $13,029 in fees. In addition to his own fees, the receiver requested $44,007.54 in administrative expenses, including $40,000 for a claim for rent filed by Butler. The receiver’s attorney requested a $9,006.25 in fees.

In July 1981, RCA entered into a settlement agreement with the receiver. It paid $16,000 for administrative expenses. Of this, $5,000 was applied to Butler’s rent claim, $3,000 was applied to the receiver’s fee, $3,000 to the receiver’s attorney fees, and $1,803.50 was applied to the claim of an insurance company.

Subsequently, on March 8, 1982, both the receiver and his attorney filed amended petitions for fees. The receiver requested $12,000 in his petition, representing a net increase of $1,971. The attorney sought an additional $6,000.

On August 25, 1982, the trial court held a hearing on the petitions for fees filed by the receiver and his attorney. The receiver and his attorney testified, as did David Murphy, attorney for RCA. Mid-America did not offer any evidence to support its objections to the fee petitions. On August 31, 1982, the trial court, having heard the arguments of the parties, and having considered the factual and legal memoranda submitted, entered an order requiring Mid-America to pay the receiver and his attorney $7,500 each and to pay $1,803.50 to an insurance company. On September 14, 1982, after a second hearing, the trial court entered another order requiring Mid-America to pay $20,000 to Butler. Mid-America has appealed from both orders.

Mid-America argues that the trial court erred in requiring it to pay a portion of the fees and expenses requested by the receiver and his attorney. Mid-America also urges that it should not have been required to pay $20,000 to Butler for use and occupation.

I

Payments of fees and administrative expenses of a receiver and his attorney are usually made from the income generated by the receivership property. (Rosenblatt v. Michigan Avenue National Bank (1979), 70 Ill. App. 3d 1039, 1043, 389 N.E.2d 182, 187, appeal denied (1979), 79 Ill. 2d 617.) Where this income is insufficient to pay the receiver and his attorney, an appropriate share of these expenses will be borne by a lienholder who consents to the appointment of the receiver. Rosenblatt v. Michigan Avenue National Bank (1979), 70 Ill. App. 3d 1039, 1044.

Here, Mid-America was fully aware of the appointment of the receiver, but made no objection thereto. In fact, Mid-America accepted the services of the receiver. We find, therefore, that the trial court properly charged Mid-America with a portion of the fees and expenses requested by the receiver and his attorney.

Mid-America contends it was charged with an amount greater than its appropriate share. Mid-America was ordered to pay $7,500 each to the receiver and to his attorney. The original petitions for fees filed by the receiver and his attorney sought $13,029 and $9,006.25, respectively.

The test for determining whether an award of receiver’s fees is excessive is whether there has been a clear abuse of discretion. (Plote, Inc. v. Minnesota Alden Corp. (1981), 95 Ill. App. 3d 5, 7, 419 N.E.2d 492.) The burden rested initially upon the receiver and his attorney to present sufficient evidence of the reasonableness of the fees to allow the trial court (Plote, Inc. v. Minnesota Alden Corp. (1981), 95 Ill. App. 3d 5, 7):

“to make a reasoned decision based on the applicable law. *** In the typical case, where a petition for fees is supported by a time sheet which details the receiver’s activities, and which shows other factors relevant to an award of fees, this can be sufficient to establish that the fees requested are reasonable.”

When sufficient evidence of reasonableness has thus been presented, the burden shifts to the respondent to show that the fees are not reasonable. Plote, Inc. v. Minnesota Alden Corp. (1981), 95 Ill. App. 3d 5, 7.

In the instant case, both the receiver and his attorney furnished the trial court with detailed time and activity summaries. In each case, the work for which fees were requested was carefully identified. We conclude, therefore, that the trial court did not abuse its discretion in the amount of fees awarded to the receiver and his attorney. Since Mid-America did not present any evidence to show that the fees requested were unreasonable, or that the portion charged to them was greater than their fair share, “there is nothing to rebut the trial court’s conclusion that the [receiver and attorney] fees were reasonable.” Piote, Inc. v. Minnesota Alden Corp. (1981), 95 Ill. App. 3d 5, 8.

II

The petition filed by the receiver included a request for payment of $40,000 to Butler for use and occupancy of premises owned by Butler during the period of the receivership. However, as Mid-America points out, Butler actually claimed it should receive rent of $30,000 plus expenses of $4,300 for cleaning the premises. The trial court ordered Mid-America to pay Butler $20,000. Mid-America argues that the trial court erred in ordering this payment because Butler presented no evidence as to the reasonable value of any storage services it provided.

Mid-America concedes it is willing to pay reasonable storage charges. Thus, as Butler correctly points out, the only remaining issue is whether the trial court’s award of $20,000 to Butler was manifestly against the weight of the evidence. Peterson v. Prince (1981), 102 Ill. App. 3d 220, 225, 430 N.E.2d 297.

Mid-America argues for the first time in this court that Butler’s claim was unreasonable. Throughout the trial, and in its prehearing memorandum, submitted prior to the September 14, 1982, hearing on Butler’s claim, Mid-America did not contest the amount of Butler’s claim. It contended simply that the receiver, rather than Mid-America, should pay the claim. Mid-America’s failure to raise the issue in the trial court or offer evidence concerning the reasonableness of the rental claim precludes it from raising the point in this appeal. See Shell Oil Co. v. Department of Revenue (1983), 95 Ill. 2d 541, 550, 449 N.E.2d 65, and cases there cited.

In.the interest of completeness, however, we add that Butler did in fact present sufficient evidence of the reasonableness of its claim so as to put the burden upon Mid-America. Although Mid-America did not present a transcript of the September 14, 1982, hearing to this court, Butler did append a copy of the applicable lease to its prehearing memorandum. In the absence of specific evidence of reasonable value of the use and occupancy of the premises it is presumed that the fair rental value is the amount of rent fixed in the lease. (In re Schnabel (7th Cir. 1980), 612 F.2d 315, 318. See also Annot., 43 A.L.R. 734 (1926).) Mid-America presented no evidence to rebut this presumption.

In its reply brief, Mid-America urges that Butler failed to consider $5,000 which it received as part of the settlement with RCA and $2,000 which was paid to Butler by the receiver. The parties all agree that these payments were made to Butler. However, there was no evidence, and this court is totally uninformed, as to whether the trial court in reducing payment from Mid-America to Butler to $20,000 has already given credit for these payments. Consequently, we find ourselves unable to reduce the amount to be paid by Mid-America from the amount of $20,000 allowed by the trial court.

Mid-America’s reliance upon Makeel v. Hotchkiss (1901); 190 Ill. 311, 60 N.E. 524, and Darling v. Cornstalk Products Co. (E.D. Ill. 1931), 54 F.2d 670, is misplaced. Both cases involve unusual circumstances not found in the instant case.

In Makeel, a receiver sought payment of expenses incurred in operating a hotel management company after expiration of a lease which stated his rights were subject to the rights of a purchaser at a foreclosure sale. The party sought to be charged, Hotchkiss, had not consented to the appointment of Makeel as receiver, but had commenced and prosecuted to foreclosure and sale another suit in another court, in which he had sought the appointment of a receiver of his own.

In the instant case, however, Mid-America impliedly consented to the appointment of the receiver by sitting back while the mechanism of the receivership operated and also by participating at the auction conducted by the receiver. Mid-America admits it was fully aware of the activities of the receiver from the inception of the receivership. Thus, Mid-America was properly charged with a portion of Butler’s use and occupancy claim.

In Darling, a case involving Federal receivership law, a warehouseman sought to have his claim for storage charges accorded a priority equal to that of the receiver’s certificates and other expenses of administration. The charges stemmed from the storage of a comparatively small amount of raw material which had been placed in the warehouseman’s care prior to the appointment of the receiver. The expense was manifestly not one authorized by the receiver. In addition, the warehouseman had waited 15 months before asserting his claim, during which time the charges sought had grown to an amount over 2½ times the value of the goods stored. Lastly, there had been no showing that the storage of this small amount of raw material had in any way benefited the fund sought to be charged.

Here, Butler’s claim for use and occupancy was timely filed. The claim stemmed from the storage of the entire physical assets of Osla corporation, a fact which could not have escaped Mid-America’s attention. The amount sought by Butler was substantially less than the value of the stored equipment in which Mid-America held a security interest. Lastly, the storage of this equipment inured to the benefit of Mid-America.

Thus neither of these cases provides any support for Mid-America’s attempt to avoid payment of that portion of the use and occupancy claim which the trial court in its discretion ordered them to pay.

For the foregoing reasons, the orders appealed from are affirmed.

Orders affirmed.

BUCKLEY, P.J., and CAMPBELL, J., concur.


author: JUSTICE MEJDA

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. TERRY YOUNG, Defendant-Appellant.
    First District (5th Division)
    No. 81—2526
    Opinion filed July 29, 1983.

      James J. Doherty, Public Defender, of Chicago (Gerald T. Winiecki, Assistant Public Defender, of counsel), for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat, David A. Shapiro, and Edward Barron, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE MEJDA

delivered the opinion of the court:

Defendant was charged with armed violence, unlawful use of weapons, and the murder of Michael Jackson. Following a bench trial, the trial court entered a finding of guilty as to armed violence and unlawful use of weapons and continued the case for sentencing. On the next date the court entered a finding of guilty of murder and imposed sentence of 10 years only for armed violence. Thereafter, pursuant to a supervisory order of the Illinois Supreme Court, the trial court entered judgment on the murder conviction, imposed a sentence of 20 years thereon, and vacated the armed violence conviction. Defendant appeals.

The issues presented are whether: (1) the finding of guilty entered on April 15, 1981, constituted an acquittal of the charge of murder; (2) defendant’s right against double jeopardy was violated; and (3) the State failed to prove guilt beyond a reasonable doubt.

Michael Jennings, witness for the State, testified that just prior to the shooting he was on his front porch with Michael Jackson and several other persons. A car drove up and Edward Clerk and defendant got out. Clerk walked up to Jackson and said, “Hey, man, I heard you been looking for me,” then slapped Jackson with the .25-caliber handgun he was holding. As Jackson stepped back, Clerk fired the gun at him. Jackson then pulled out a .38-caliber handgun and fired at Clerk. As Clerk fell to the ground, Jackson began running. Until the shots were exchanged, defendant stood 12 to 14 feet from Clerk and 10 to 12 feet from Jackson, while holding a sawed-off shotgun. After Jackson shot Clerk, defendant fired the shotgun in the general direction of Jackson, then picked up the .25-caliber handgun and fired it toward Jackson, who by then was running away from where defendant stood. The evidence showed that Clerk died from a gunshot wound in the head inflicted by a .38-caliber handgun. Jackson’s body was found approximately one block from the scene of the shootings. He died as a result of a bullet from a .25-caliber gun entering his chest and traveling to his heart.

In a written statement made at the police station after the shooting and read in court defendant stated that Jackson had first tried to hit Clerk, that Jackson first pulled a gun and shot Clerk, and that when defendant picked up Clerk’s gun Jackson shot at him and only then did defendant fire at Jackson.

A defense witness testified to substantially the same chain of occurrences as the State’s witness. He said that Clerk approached Jackson, hit him in the face, and then shot him. Jackson then shot Clerk.

On April 15, 1981, after closing arguments, the court stated that “under the evidence and facts as elicited here, while the defendant did not fire any fatal shot the defendant has been proven to be legally accountable for the actions of Edward Clerk. Were Clerk here and alive Clerk would definitely be guilty of murder.” The court then entered a finding of guilty as to armed violence and unlawful use of weapons, ordered a presentence investigation, and continued the case to May 20,1981, for sentencing.

On May 20 the court stated:

“There was a finding of guilty of Armed Violence and Unlawful Use of Weapons.
Since the finding, and since the completion of the trial, an Advanced Sheet Opinion has come down which causes me to think that, perhaps, improvidently I did not complete the record.
The advance opinion in question is People versus Donald Ellis in 93 Illinois Appellate Third, a First District case.
So, just to complete the record and, in fact, correct any inadvertent omissions, the Court does enter a finding of guilty of murder without going to a judgment of conviction.”

The court then conducted a sentencing hearing only as to armed violence and then stated “The cause of death testified to as to Jackson was the bullet fired by Clerk, so actually there is one death here that the Defendant is accountable for and that is the death of Jackson.” After finding that the offense of unlawful use of weapons was included and merged in the offense of armed violence, defendant was then sentenced only as to armed violence to a 10-year term.

On September 24, 1981, the Illinois Supreme Court entered a supervisory order which vacated the May 20, 1981, sentence and directed the trial judge “to enter a judgment of conviction pursuant to his finding of guilty of the offense of murder, and to enter sentence thereon” and further “to reconsider the sentence entered on May 20, 1981, in light of People v. King (1977), 66 Ill. 2d 551.” (People ex rel. Daley v. Samuels, No. 55464.) On October 14, 1981, the trial court pursuant to the order entered judgment and sentenced defendant to a term of 20 years for murder and vacated the conviction and sentence of May 20, 1981, imposed for armed violence. Defendant appeals.

Opinion

Defendant first contends that the court’s April 15, 1981, finding of guilty of armed violence and unlawful use of weapons operated as an acquittal of the charge of murder and, therefore, the conviction for murder violated his constitutional right against double jeopardy. The State responds that on April 15, 1981, the court found defendant guilty of murder and on May 20, 1981, merely clarified this finding prior to final judgment.

The principle of double jeopardy prohibits subjecting an individual to trial and possible conviction more than once for an alleged offense. (Green v. United States (1957), 355 U.S. 184, 187, 2 L. Ed. 2d 199, 204, 78 S. Ct. 221, 223; see Illinois v. Vitale (1980), 447 U.S. 410, 65 L. Ed. 2d 228, 100 S. Ct. 2260; Ill. Rev. Stat. 1981, ch. 38, par. 3—4.) The constitutional prohibition protects against: (1) a second prosecution for the same offense after acquittal; (2) a second prosecution for the same offense after conviction; and (3) multiple punishments for the same offense. (North Carolina v. Pearce (1969), 395 U.S. 711, 23 L. Ed. 2d 656, 89 S. Ct. 2072; People v. Gray (1977), 69 Ill. 2d 44, 50-51, 370 N.E.2d 797, 799, cert. denied (1978), 435 U.S. 1013, 56 L. Ed. 2d 395, 98 S. Ct. 1887.) We are here concerned with the first of these prohibitions.

Defendant bases his double jeopardy argument on the principle that a conviction on one of several counts in an information or indictment without reference to the other counts is an acquittal as to all other counts. (People v. Bybee (1956), 9 Ill. 2d 214, 137 N.E.2d 251; People v. Smithka (1934), 356 Ill. 624, 191 N.E. 211; People v. Weil (1909), 243 Ill. 208, 90 N.E. 731; see also People v. Gray.) Central to defendant’s argument is his conclusion that the entry on April 15 in the written memorandum of orders finding defendant guilty of armed violence and unlawful use of weapons operated as a conviction and, without reference to the murder charge, implicitly operated as an acquittal of murder. We disagree with defendant’s premise and with his conclusion.

Defendant construes the findings of the court entered on April 15 to operate as convictions and, implicitly, as an acquittal. “Acquittal” means a verdict or finding of not guilty of an offense, rendered by a legally constituted jury or by a court without a jury. (Ill. Rev. Stat. 1981, ch. 38, par. 2—1.) “Conviction” means a judgment of conviction or sentence entered upon a plea of guilty or upon a verdict or finding of guilty of an offense, rendered by a legally constituted jury or by a court without a jury. (Ill. Rev. Stat. 1981, ch. 38, pars. 2—5, 1005—1—5.) “Judgment” means an adjudication by the court that the defendant is guilty or not guilty and if the adjudication is that the defendant is guilty it includes the sentence pronounced by the court. (Ill. Rev. Stat. 1981, ch. 38, pars. 102—14, 1005—112.) The final judgment in a criminal case is the imposition of sentence. (People v. Dixon (1982), 91 Ill. 2d 346, 438 N.E.2d 180.) The pronouncement of the sentence is the act which embodies the judgment of the court. (People v. Allen (1978), 71 Ill. 2d 378, 375 N.E.2d 1283.) The sentence is a necessary part of a complete judgment of guilt. (People v. Vaughn (1981), 92 Ill. App. 3d 913, 416 N.E.2d 681.) In the absence of a sentence a judgment of conviction is not final. In re J.N. (1982), 91 Ill. 2d 122, 435 N.E.2d 473; People v. Warship (1974), 59 Ill. 2d 125, 319 N.E.2d 507; People v. Surges (1981), 101 Ill. App. 3d 962, 428 N.E.2d 1012.

The rules that specify when jeopardy attaches and that prohibit retrial of an acquitted defendant “should not be applied mechanically when the interests they protect are not endangered and when their mechanical application would frustrate society’s interest in enforcing its criminal laws. Illinois v. Somerville (1973), 410 U.S. 458, 463, 35 L. Ed. 2d 425, 430, 93 S. Ct. 1066, 1070.” (People v. Deems (1980), 81 Ill. 2d 384, 388, 410 N.E.2d 8, 10, cert. denied (1981), 450 U.S. 925, 67 L. Ed. 2d 355, 101 S. Ct. 1378.) In Deems the court affirmed the appellate court judgment reversing a dismissal of a subsequent indictment on double jeopardy grounds and vacated a prior “acquittal” judgment stating that “the word ‘acquittal’ ‘has no talismanic quality for purposes of the Double Jeopardy Clause’ (Serfass v. United States (1975), 420 U.S. 377, 392, 43 L. Ed. 2d 265, 276, 95 S. Ct. 1055, 1064), and what constitutes an acquittal for purposes of the double jeopardy clause is not necessarily controlled by the form of the judge’s action (United States v. Martin Linen Supply Co. (1977), 430 U.S. 564, 571, 51 L. Ed. 2d 642, 651, 97 S. Ct. 1349, 1354), or what the judge calls it (United States v. Jorn (1971), 400 U.S. 470, 478 n.7, 27 L. Ed. 2d 543, 552 n.7, 91 S. Ct. 547, 554 n.7; United States v. Scott (1978), 437 U.S. 82, 96, 57 L. Ed. 2d 65, 77, 98 S. Ct. 2187, 2196).” 81 Ill. 2d 384, 388-89, 410 N.E.2d 8, 10.

In People v. Jones (1979), 75 Ill. App. 3d 945, 393 N.E.2d 1372, cert. denied (1980), 449 U.S. 847, 66 L. Ed. 2d 56, 101 S. Ct. 132, defendant claimed that the trial court’s dismissal of an original indictment in response to defendant’s motion for acquittal constituted an acquittal barring reindictment under section 3 — 4(a)(1) of the Criminal Code of 1961 (Ill. Rev. Stat. 1977, ch. 38, par. 3—4(a)(1)). There the handwritten order dated July 13 stated that the defendant’s motions were granted but on August 8 the trial court vacated the prior order, denied acquittal and dismissed the indictment. The appellate court held that even if there had been no subsequent order vacating the order granting defendant’s motion for acquittal, it would hold the defendant not acquitted, as the substantive effect of the order was a dismissal of the indictment; further, that the indictment in no way represented a “ ‘resolution of any of the factual elements of the offense charged’ ” (75 Ill. App. 3d 945, 947, 393 N.E.2d 1372, 1374) and was therefore not tantamount to an acquittal. The court noted that the United States Supreme Court in United States v. Scott (1978), 437 U.S. 82, 97, 57 L. Ed. 2d 65, 78, 98 S. Ct. 2187, 2196-97, quoting from United States v. Martin Linen Supply Co. (1977), 430 U.S. 564, 571, 51 L. Ed. 2d 642, 651, 97 S. Ct. 1349, 1355, stated: “ ‘a defendant is acquitted only when “the ruling of the judge, whatever its label, actually represents a resolution [in the defendant’s favor], correct or not, of some or all of the factual elements of the offense charged.” ’ ” (75 Ill. App. 3d 945, 947, 393 N.E.2d 1372, 1374.) The trial judge’s characterization of his own action cannot control the classification of the action. United States v. Scott (1978), 437 U.S. 82, 96, 57 L. Ed. 2d 65, 77, 98 S. Ct. 2187, 2196.

An examination of the trial court’s findings on April 15 in the instant case, even if limited arguendo to the written memorandum of guilty as to armed violence and unlawful use of weapons, did not constitute a judgment of conviction of those charges in the absence of a sentence being imposed. Neither did the court then make a finding of not guilty of murder, either in its oral or written findings. On the contrary, although no written finding as to murder was entered in the written memorandum of orders, the court did then expressly state on the record that defendant was proven legally accountable for the action of Clerk who, if alive, would definitely be guilty of murder. This statement can in no way be considered a ruling which represents a resolution in defendant’s favor of some or all of the factual elements of the murder charge. To adopt defendant’s reasoning we would in effect have to say that the inference of acquittal of murder arising from the silence of the written memorandum of orders was strong enough to overcome the express contrary finding stated by the trial judge on the murder charge. (See People v. Bybee (1956), 9 Ill. 2d 214, 224, 137 N.E.2d 251, 256.) This we cannot do. Furthermore, the principle of an implicit acquittal did not become operative on April 15 because no convictions had then been entered on the other charges in the absence of any sentence thereon. Without such convictions, there was no implicit or equivalent acquittal on the murder charge. Moreover, the April 15 record clearly contradicts any implicit or equivalent finding of an acquittal as to murder, but instead it expressly resolves the factual elements of accountability as to the offense against defendant rather than in his favor.

The May 20 proceeding which included the entry of a finding of guilty of murder was consistent with the April 15 finding and was not a second prosecution for the same offense after an acquittal. The concept of double jeopardy has application only in cases of subsequent prosecutions. (People v. Gabler (1969), 111 Ill. App. 2d 121, 249 N.E.2d 340, cert. denied (1970), 397 U.S. 971, 25 L. Ed. 2d 266, 90 S. Ct. 1087.) In the instant case the court on April 15, 1981, ordered a presentence investigation and continued the matter for sentencing on May 20. It is significant that this procedure did not provide the prosecution a “second crack” and there was nothing in the procedure (the postponement) that unfairly subjected the defendant to the embarrassment, expense and ordeal of a second trial. The burdens, if any, are more akin to those resulting from a judge’s permissible request for post-trial briefing or argument following a bench trial rather than to the defense of a full-blown second trial, and to the extent that the court made supplemental findings—albeit sua sponte — on the record, it did so without violating the constraints of the double jeopardy clause. (See United States v. DiFrancesco (1980), 449 U.S. 117, 140-41, 66 L. Ed. 2d 328, 348, 101 S. Ct. 426, 439.) The proceedings on April 15 and May 20 actually constituted a continuing single process. (See United States v. DiFrancesco (1980), 449 U.S. 117, 141, 66 L. Ed. 2d 328, 348, 101 S. Ct. 426, 439, citing Swisher v. Brady (1978), 438 U.S. 204, 57 L. Ed. 2d 705, 98 S. Ct. 2699.) “ ‘The Constitution does not require that sentencing should be a game in which a wrong move by the judge means immunity for the prisoner.’ [Citations.] What the judge had done ‘did not twice put [defendant] in jeopardy for the same offense.’ ” (United States v. DiFrancesco (1980), 449 U.S. 117, 135, 66 L. Ed. 2d 328, 344, 101 S. Ct. 426, 436.) Viewed with an eye to all the circumstances of the proceedings (see People v. Ward (1978), 72 Ill. 2d 379, 381 N.E.2d 256), we conclude that the defendant’s conviction on the murder charge did not violate defendant’s right against double jeopardy.

Defendant’s reliance on Green v. United States (1957), 355 U.S. 184, 2 L. Ed. 2d 199, 78 S. Ct. 221, 223, is not well taken. The jury there received instructions on first and second degree murder. Following a verdict of guilty of second degree murder, the trial court entered judgment, dismissed the jury, and imposed sentence. Following a reversal and remand, defendant was convicted of first degree murder and sentenced to death. The verdict of guilty of second degree murder at the first trial was held to be an “implicit acquittal” on the charge of murder in the first degree and, therefore, defendant’s second trial for first degree murder violated the double jeopardy clause. Unlike the instant case, a “conviction” in Green had resulted on the other (second degree) charge when sentence was imposed, thereby resulting in the implicit acquittal as to first degree murder.

Defendant also relies on cases holding that the granting of a motion to direct a verdict is an acquittal, the legal effect of which is to bar under double jeopardy principles its vacation or reversal. (People v. Stout (1982), 108 Ill. App. 3d 96, 438 N.E.2d 952; In re L.R. (1982), 106 Ill. App. 3d 244, 435 N.E.2d 908; People v. Hutchinson (1975), 26 Ill. App. 3d 368, 325 N.E.2d 115; People v. Gallas (1966), 77 Ill. App. 2d 132, 221 N.E.2d 782.) These cases are also distinguishable from the instant case and are not here applicable. A directed verdict of acquittal constitutes a final adjudication on the merits of those charges affected by the motion (In re L.R.) and the granting of a motion to direct a verdict is an acquittal sufficient even if a judgment of acquittal is not entered thereon. (People v. Stout; People v. King (1974), 17 Ill. App. 3d 1064, 309 N.E.2d 598.) This again is unlike a finding or verdict of guilty where the sentence is indispensable to its finality.

Defendant also contends that the State failed to prove defendant guilty of murder and armed violence beyond a reasonable doubt. In its findings of fact, the trial court determined that Clerk fired the shot which killed Jackson and, at the time such shot was fired, defendant was standing 10 to 12 feet from Jackson and was holding a sawed-off shotgun. Upon the evidence presented herein, defendant was found guilty of murder and armed violence on a theory of accountability. However, the conviction for armed violence was vacated on October 14, 1981, and is therefore not further considered.

In order to establish defendant’s legal accountability the State must prove beyond a reasonable doubt that: (1) defendant solicited, aided, abetted, agreed or attempted to aid another person in the planning or commission of the offense; (2) such participation must have taken place either before or during the commission of the offense; and (3) such participation must have been with the concurrent, specific intent to promote or facilitate the commission of the offense. (People v. Freeman (1981), 101 Ill. App. 3d 1014, 428 N.E.2d 1073; People v. Ramirez (1968), 93 Ill. App. 2d 404, 236 N.E.2d 284.) Although mere presence at the scene of an offense or mere acquiescence in another’s actions is ordinarily insufficient to establish accountability, one may be held to aid and abet without physically participating in the overt act. (People v. Gray (1980), 87 Ill. App. 3d 142, 408 N.E.2d 1150, cert. denied (1981), 450 U.S. 1032, 68 L. Ed. 2d 228, 101 S. Ct. 1745.) If the evidence shows that defendant was present at the scene of the offense without disapproving or opposing it, the trier of fact may consider this conduct along with other circumstances in determining whether defendant assented to the commission of the offense and thereby aided and abetted the actor. (People v. Nugara (1968), 39 Ill. 2d 482, 236 N.E.2d 693, cert. denied (1968), 393 U.S. 925, 21 L. Ed. 2d 261, 89 S. Ct. 257; People v. Crutcher (1979), 72 Ill. App. 3d 239, 390 N.E.2d 571.) Although accountability requires that the assistance of the person to be held accountable must occur prior to or during the commission of the crime, such assistance can be inferred from conduct which occurs after the event. (People v. Gray; People v. Clifford (1976), 38 Ill. App. 3d 915, 349 N.E.2d 922.) The State is deemed to have met its burden of proving defendant’s specific intent to promote or facilitate the commission of the crime where it proves “ ‘beyond a reasonable doubt that defendant shared the criminal intent of the principal, or that there was a community of unlawful purpose.’ ” (People v. Hill (1977), 53 Ill. App. 3d 280, 284, 368 N.E.2d 714, 717; People v. Ramirez.) Proof of community or purpose need not be expressly stated but may be inferred from the circumstances surrounding the commission of the act. People v. Tate (1976), 63 Ill. 2d 105, 345 N.E.2d 480; People v. Gray; People v. Hunter (1979), 69 Ill. App. 3d 732, 387 N.E.2d 1018.

The evidence concerning the circumstances surrounding the fatal shooting supports the finding of defendant’s accountability. The evidence is undisputed that defendant accompanied Clerk to the scene of the confrontation which led to Jackson’s death. Although he did not fire the fatal shot, defendant was armed with a sawed-off shotgun when he exited the automobile with Clerk and took a position not far from him. After Clerk was felled, defendant took Clerk’s gun and fired a shot at the retreating Jackson, then fired his shotgun in the same direction. Contrary to defendant’s contention, the State proved more than mere presence. It proved that defendant had the specific intent to promote or facilitate the commission of the offense and, either before or during the commission of the offense, acted in some way to aid another person in the planning or the commission of the offense. We conclude that the evidence is sufficient to establish accountability of the defendant for murder and shows no reasonable doubt of defendant’s guilt.

Defendant’s contention that the existence of contradictory testimony is sufficient to show that he was not found guilty beyond a reasonable doubt is without merit. A conflict in testimony does not in itself establish a reasonable doubt of guilt. (People v. Owens (1977), 46 Ill. App. 3d 978, 361 N.E.2d 644.) It is the responsibility of the trier of fact to determine the credibility of the witnesses, the weight to be given their testimony and the inferences to be drawn from the evidence. (People v. Akis (1976), 63 Ill. 2d 296, 347 N.E.2d 733; People v. Garner (1981), 102 Ill. App. 3d 755, 430 N.E.2d 320.) Where the evidence is merely conflicting a court of review will not substitute its judgment for that of the trier of fact unless it is shown to be manifestly erroneous. (People v. Akis.) We do not find that to be the case as presented here.

For the reasons stated above, the judgment of the trial court is affirmed.

Affirmed.

WILSON, P.J., and LORENZ, J., concur.

      Defendant correctly states that People v. Ellis (1981), 93 Ill. App. 3d 79, 416 N.E.2d 1174, has not particular relevance. However, it is noted that People v. Ellis (1981), 93 Ill. App. 3d 981, 418 N.E.2d 88, dealt with a similar issue of accountability. Both were recent First District cases, decided respectively on February 3, 1981, and March 5, 1981.