author: PRESIDING JUSTICE SEIDENFELD

text:
    CRANE ERECTORS AND RIGGERS, INC., Plaintiff-Appellee, v. LA SALLE NATIONAL BANK, Trustee, et al., Defendants (The Great West Life Assurance Company, Defendant-Appellant).
    Second District
    No. 2—83—0688
    Opinion filed July 13, 1984.

      Gregory R. Pool, Stuart I. Finkle, Elizabeth C. McGinnity, and Sandra Maki, all of Chicago Title Insurance Co., of Chicago, for appellant.
    John W. Demling, of Demling & Eckhardt, of Glen Ellyn, for appellee.
   PRESIDING JUSTICE SEIDENFELD

delivered the opinion of the court:

Crane Erectors and Riggers, Inc. (Crane), filed suit to enforce its claim for lien for the value of services performed in assembling, erecting and installing an overhead crane in a warehouse. As material here, the suit named as defendants Lefco, Inc., Leffingwell Steel Company, The Great West Life Assurance Company (Great West) and the La Salle National Bank, as trustee (La Salle). La Salle is named as the owner of the property and Great West is named as its successor in title. The trial court entered summary judgment for Crane, awarding a mechanics’ lien in the amount of $17,832.22. Great West appeals.

The facts are established by the pleadings, affidavits, answers to interrogatories and a deposition.

On October 26, 1981, Crane received a purchase order from Lefco accepting its proposal to provide:

“labor, tools and equipment to receive and unload from truck shipment and immediately install, mechanically and electrically, one (1), 25 ton capacity, cab operated 80’ 0” span, double girder, motor driven, top running P & H crane weighing approximately 100,300#.
* * *
Also included is the installation of 240’ of 3 conductor, enclosed figure-8-bar main line electrification system with bolted brackets.
* * *
*** to furnish, fabricate, deliver and install 135# crane rails with accessories for the 240’ long runway. Alignment for proper span and parallelism is included. Estimated shipping weight 25,665#.”

The proposal was sent to Leffingwell Steel Company, but was accepted by Lefco, Inc., at the same address. The contract price was $32,107.

Lefco occupied a wholesale steel warehouse in which the crane was to be used to move rolls of steel. La Salle held title to the property under Trust No. 44679, for the beneficial interest of Leffingwell Steel Company. Great West, which subsequently purchased the property, concedes that Lefco entered the contract with Leffingwell’s knowledge and consent.

Louis E Bodee, the president of Crane, testified in his deposition taken May 31, 1983, “I very reasonably believe” that the crane was leased from a “leasing company.” The parties agree that Crane did not supply the crane. No lease, however, has been offered or introduced.

Bodee described the work. Crane installed two rails overhead about 45 feet above the floor, approximately 80 feet apart and running the length of the building. The building is designed with “runway beams or girders,” which are supported by building columns and which have been sized to support the crane runway rails. The rails are attached to the runway beams with a “J” fastener which permits adjustment of the rails laterally.

The crane “to some extent” is built on the runway. First the rails are shipped in and installed. They are in 39-foot sections and are spliced together to make a 240-foot length of rail. The crane is then unloaded in parts, as received. It goes up in components. The crane consists of a “cab on a trolley.” The trolley is a lifting mechanism, on wheels, which runs back and forth on two girders. It has a hoist and some controls. Power conductors, similar to overhead wires which electrical street cars employ, are installed along the runway. The crane runs over the whole 240-foot length.

The crane is used to handle rolls of steel, to off-load them from rail cars or flat-bed trailers, and to place them into or remove them from storage.

Bodee testified that “[i]t would probably be impractical to move this crane.” However, he also testified that removal could be accomplished without material damage to the building.

The affidavit from La Salle states that Great West contracted to purchase the property from Leffingwell March 9, 1981, and purchased by deed dated January 8,1982.

Work was performed between January 4 and February 15, 1982. Upon completion, Crane billed Lefco for $32,832.22. Leffingwell Steel, not Lefco, paid $15,000. When $17,832.22 remained due, Crane filed its mechanics’ lien claim June 10, 1982, within four months of completion of work. Crane bases its lien claim solely on the labor and materials expended to install the crane, not on the crane itself. It filed a complaint to foreclose the lien June 24, 1983, within two years of completion of work, against all the parties named in this suit.

Lefco and Leffingwell Steel defaulted, and judgment was entered against them March 22,1983.

Crane moved for summary judgment supported by its complaint; Great West filed a cross-motion for summary judgment supported by a memorandum and affidavit. The trial court granted summary judgment for Crane.

Great West contends that (1) the leased machinery, fixtures and apparatus constituting the operating crane are not permanent fixtures and that the work performed in installing the leased items is not lien-able; (2) they, as subsequent purchasers without record notice of the mechanics’ lien, are not bound; (3) genuine issues of material fact remain which preclude summary judgment. In addition to arguing that the labor and material involved is lienable and that it is established by the facts, Crane makes the alternative argument that it would, in any event, be entitled to an equitable application of the payments already made to that portion of the work found to be nonlienable.

I

The factors to be considered in determining whether equipment has become a fixture, and thus “lienable,” so that the realty to which it has been affixed can be subjected to a mechanics’ lien claim, are: (1) the nature of its attachment to the realty, (2) its adaptation to and necessity for the purposes for which the premises are devoted, and (3) whether it was intended that the item in question should be considered part of the realty. (Fehr Construction Co. v. Postal System (1919), 288 Ill. 634, 642; B. Kreisman & Co. v. First Arlington National Bank (1980), 91 Ill. App. 3d 847, 852.) Intention is the preeminent factor, the other considerations being primarily evidences of intent. (Owings v. Estes (1912), 256 Ill. 553, 556; Kreisman & Co. v. First Arlington National Bank (1980), 91 Ill. App. 3d 847, 852.) The fact that an item can be removed without material injury to the realty does not of itself destroy its lienability. (Owings v. Estes (1912), 256 Ill. 553, 555; Wanzer v. Smorgas-Brickan Developers, Inc. (1970), 130 Ill. App. 2d 378, 385-86.) That an item may be removed does not conclusively establish that it is a trade fixture where it is clear that there is an intention permanently to improve the property by its installation. (See Dual Temp Installations, Inc. v. Chicago Title & Trust Co. (1976), 41 Ill. App. 3d 415, 417-18.) Parties may, however, contract to evidence an intention that the title to chattels which become annexed to realty does not pass and that they retain their character as trade fixtures until paid for; this agreement is binding upon the parties to the agreement where no rights of third parties are unfairly affected. Jones v. Jos. Greenspon’s Son Pipe Corp. (1943), 381 Ill. 615, 619-20.

Great West argues that the mere fact an item is leased requires that the item remain personalty and prevents a lien claim based on it. However, we have been furnished no authority to that effect. On the contrary, whether the parties intend an item to remain personalty or to become realty may be shown by the terms of a title-withholding agreement, such as a lease, a conditional sales contract, or a lease-purchase agreement, but the fact of such an agreement, alone, does not determine intent as a matter of law. Cf. Ayrshire Coal Co. v. Property Tax Appeal Board (1974), 19 Ill. App. 3d 41, 46 (conditional sales agreement, covering heavy mining equipment, characterized by court as bookkeeping).

Even if the item is substantially annexed to the realty, the vendee or lessee cannot unilaterally overcome the contractual agreement that the item shall remain a trade fixture, and the court cannot transfer title from vendor to vendee, nor from lessor to lessee, on the strength of such a unilateral act. (Jones v. Jos. Greenspon’s Son Pipe Co. (1943), 381 Ill. 615, 619-20.) Third parties with notice of a title-retention agreement can be bound by it. (Jones v. Jos. Greenspon’s Son Pipe Co. (1943), 381 Ill. 615, 621-22 (tenant-vendee and vendor agreed oil casing remained personalty under a conditional sales contract and landlord had notice); National Bank of the Republic v. Wells-Jackson Corp. (1934), 358 Ill. 356, 364 (tenant-vendee and vendor agreed sprinkler system remained personalty and landlord had notice).) However, while Crane recognizes that, at some unspecified time, its chief officer, Bodee, knew that the crane was leased, there is no evidence before us that Crane had notice of any agreement that it was to remain a trade fixture after installation.

Great West argues that it was Crane’s burden to produce the lease in support of its claim that it was not precluded from securing a mechanics’ lien to the leased items. We disagree. A mechanics’ lien claimant has the burden of proving every element necessary to establish the lien. (See, e.g., Condee, Inc. v. Chrisman (1976), 38 Ill. App. 3d 729, 730.) However, the burden shifts when the claimant proves that the labor and material are furnished to improve the premises (see Ill. Rev. Stat. 1983, ch. 82, par. 1), and the owner at the time of the work or its successor claims that, under an agreement within the knowledge of the owner, items upon which the work is done were intended to be trade fixtures and not lienable. “The burden of producing evidence, chiefly, if not entirely, within the control of an adverse party, rests upon such party if he would deny the existence of claimed facts.” (Belding v. Belding (1934), 358 Ill. 216, 220; Southwest Federal Savings & Loan Association v. Cosmopolitan National Bank (1959), 23 Ill. App. 2d 174, 180-81; Wohl v. Yelen (1959), 22 Ill. App. 2d 455, 459.) The “true rule” has been noted: “ '*** an article which is affixed to the land, even slightly, is to be considered as part of the land unless the circumstances are such as to show that the article was intended all along to continue a chattel, the onus *** lying on those who contend that it is a chattel.’ ” Owings v. Estes (1912), 256 Ill. 553, 555.

There is proof of substantial physical annexation to the real estate of the rails, the assembled crane, and the necessary power supply which are the subject of the claimed work. The crane exceeds 100,000 pounds in weight. The rails weigh 135 pounds per yard; 160 yards of rail were fastened to overhead runways which were part of the building and designed to support the load of the rails. The crane spans 80 feet and runs the 240-foot length of the warehouse. While it is possible that the equipment can be removed without material damage to the building, it is impractical to do so.

There are other facts which allow a reasonable inference that the parties intended the crane to be a fixture. First, Leffingwell Steel Company, which is shown to be the landlord of Lefco, made the $15,000 payments on account of the work to Crane. Where a landlord makes payments for an item installed by the tenants, a fair presumption arises that, as between the landlord and tenant, the parties intend a permanent fixture. (Miller v. Reed (1973), 13 Ill. App. 3d 1074, 1077; Schmeling v. Rockford Amusement Co. (1910), 154 Ill. App. 308, 314.) Second, it is conceded that the crane remained in place and in use through the transfer of the building from Leffingwell to Great West and from Great West to a subsequent purchaser. The fact that the crane remained in the building after the transfer of ownership supports a similar inference that the parties intend a permanent fixture. Cf. Kenny v. T. L. Arzt Foundry Co. (1941), 308 Ill. App. 251, 259, 262 (heavy machinery, including a large overhead crane, which remained in foundry building during transfer pursuant to bankruptcy proceedings, were held to be fixtures).

In reviewing the grant of a motion for summary judgment all well-pleaded uncontroverted allegations and inferences to be drawn from them are taken as true. (Colwell Systems, Inc. v. Henson (1983), 117 Ill. App. 3d 113, 118; Bishop v. Sears Roebuck & Co. (1969), 105 Ill. App. 2d 333, 335.) Crane’s complaint establishes that it installed the crane, received $15,000 on account of its work, and that it is owed $17,838.22. The record establishes that Leffingwell Steel owned the beneficial interest in the realty and sold it to Great West. The work done and the degree of annexation are established. Great West’s answer does not controvert any allegations. It neither admits nor denies but demands strict proof thereof. It admits ownership. It also concedes in its brief that Leffingwell consented to Crane’s work. We therefore conclude that no genuine issue of material fact exists and that Crane was entitled to the summary judgment as a matter of law. See Ill. Rev. Stat. 1983, ch. 110, par. 2 — 1005.

II

Great West has claimed that it was not bound by Crane’s mechanics’ lien claim because it is a subsequent purchaser which took without notice of the lien. We find this to be without merit. There is no dispute that Crane properly perfected its lien within the four-month period required under the statute to enforce its lien against subsequent purchasers and brought suit within the two-year period required. (Ill. Rev. Stat. 1983, ch. 82, pars. 7, 9.) Proof of actual notice is not relevant if the claimant has properly filed. In re Application of Bickel (1922), 301 Ill. 484, 491.

III

In the view we have taken we do not reach Crane’s alternative argument that even if the work done to install the crane is found not to be lienable, the doctrine of equitable application of payments applies, so that Crane may have the $15,000 already received allocated to nonlienable items and the additional amount due to lienable items. But see Schmeling v. Rockford Amusement Co. (1910), 154 Ill. App. 308, 312; B. Kreisman & Co. v. First Arlington National Bank (1980), 91 Ill. App. 3d 847, 854.

The judgment of the circuit court of Du Page County is affirmed.

Affirmed.

LINDBERG and HOPE, JJ., concur.


source: Caselaw Access Project

author: JUSTICE UNVERZAGT

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. GEORGE S. THOMPSON, Defendant-Appellant.
    Second District
    No. 2—83—0406
    Opinion filed July 12, 1984.

      Peter B. Nolte, and Sreenan & Cain, P.C., both of Rockford, for appellant.
    Daniel Doyle, State’s Attorney, of Rockford (Phyllis J. Perko and William L. Browers, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE UNVERZAGT

delivered the opinion of the court:

George Scott Thompson, defendant, was convicted by a jury in the circuit court of Winnebago County of the offense of armed robbery (Ill. Rev. Stat. 1981, ch. 38, par. 18 — 2), and sentenced by the trial court to six years in the Department of Corrections. On appeal, he raises these issues: (1) whether the information charging armed robbery was fatally defective for failing to allege one of the mental states of intent, knowledge, recklessness, or negligence; (2) whether refusal of an instruction defining the defense of intoxication denied defendant a fair trial; (3) whether the refusal of an instruction defining the term “dangerous weapon” denied the defendant a fair trial; (4) whether the court erred in excluding the testimony of the defendant’s expert witness at trial; and (5) whether the court erred in denying defendant’s motion to suppress the defendant’s post-arrest statements.

The defendant was convicted on accountability principles of the armed robbery of a clerk at a Stop-N-Go store in the city of Rockford.

Lenora White, the clerk at the Stop-N-Go, testified that on December 7, 1981, at approximately 7:30 p.m., two young men came into the store. They were later identified during trial as Robert Ligh-thart and Paul Higgs. She said they looked at some adult magazines, bought a bag of potato chips and left the store. Shortly afterward, Lighthart returned with another larger young man who had not been in the store before. He was identified during trial as the defendant. Lighthart pointed a gun at White and told her to give him all of the money which she had in her hand and in the cash register. She testified the defendant did not say or do anything, but merely stood behind Lighthart. Lighthart and the defendant then left the store.

A nearby resident, Wesley Larson, testified that he observed the defendant and Lighthart running out of the store, getting into an automobile, and leaving. He wrote down the license plate number, took it to the Stop-N-Go store, and the police were notified. The license plate number was broadcast over the police radio, and Rockford police officer Getty observed a car with the license number of the suspect vehicle parked in the parking lot of the One-Stop Pharmacy on Auburn Street. Officer Getty radioed for back-up, while observing three white males exit the pharmacy and enter the car, which was already occupied by one individual. When back-up officers arrived, the occupants of the car were taken into custody. The defendant, who was in the driver’s seat of the car, stated in response to a question that the car was his. The car was searched on the scene, and a .177-caliber pellet gun was found under the front seat of the car on the passenger side. The defendant was searched and $52.25 was found in his pocket. The defendant was brought to the police station, where he was interviewed by Detective Randall Oldenburger. The defendant refused to sign the rights waiver, but agreed to talk to the detective. After relating his version of events to the detective, Oldenburger testified he had the defendant repeat his story while he typed it verbatim.

The statement was admitted during trial. In the statement, the defendant relates that he, Bob Lighthart, Paul Higgs, and Terry Bahl-ing were driving around during the afternoon drinking beer. During that time they talked about armed robbery, and the defendant produced a pellet gun which he had in the car. Lighthart said that he would try a robbery with the gun, because none of the rest of the group had the guts. In defendant’s statement, he admits that he and Lighthart went in the store, and that Lighthart had the gun. He took it out of the waistband of his pants, told the lady to hang up the phone, and said: “Give us all the money in the cash register.” They took the money and returned to the car and went driving around. They went to the One-Stop Pharmacy to get cigarettes, at which time the police arrested them.

At trial, the defendant stated that some of the things in his statement were not precisely the things that he told Detective Olden-burger, but that he could really not remember all of what he told him that night because he was so intoxicated. The defendant’s testimony at trial essentially was that early on the morning of December 7, Terry Bahling came over to his house and from there called Robert Lighthart and Paul Higgs and asked them to come over. The four of them then drove to the Central Park Tap and purchased a case of beer. They proceeded to the defendant’s brother’s house where they drank beer and played games until approximately 3:30 in the afternoon. During that time, between noon and 3 p.m., the defendant testified he drank about 12 cans of beer. The four men left the defendant’s brother’s at approximately 3:30 and went to the Central Park Tap to purchase another case of beer. They then drove around drinking the beer for some time.

Lighthart told the defendant to pull the car over in an area near the Stop-N-Go store on North Main Street. Lighthart said he wanted to do a robbery, and the other three occupants in the car wanted no part of it. Lighthart and Higgs then went into the Stop-N-Go, and defendant and Bahling stayed in the car. About 10 minutes later, Lighthart and Higgs returned, and the four of them sat in the car for about another 20 minutes. Lighthart began calling the defendant names and accusing him of being a “chicken,” and told the defendant that he did not have to do anything in the store except walk in. Defendant walked with Lighthart toward the store, but stopped and said he had changed his mind and was not going in. After Lighthart began calling him more names, he proceeded to follow Lighthart into the store and stood behind Lighthart while he pointed a gun at the cashier and told her to give him all the money. Defendant testified he did not say anything or threaten the cashier in any way, and that he was drunk and scared to death at the time. The defendant testified the pellet gun was not operable because there were no pellets in it, and the carbon dioxide cartridge which provided the propellant for the pellets had been empty for a year, and that the inner barrel was not in place and that without it, it could not be fired. Defendant also testified that although it was a pellet gun, he had previously used it only to shoot BB’s.

The defendant argues the information was fatally defective for failing to include one of the mental states as required by section 4 — 3 of the Criminal Code of 1961 (Ill. Rev. Stat. 1983, ch. 38, par. 4 — 3). The amended information charged:

“That on the 7th day of December, 1981, in the County of Winnebago and State of Illinois, GEORGE S. THOMPSON committed the offense of Armed Robbery, in that he, by threatening the imminent use of force or by the use of force and while carrying on or about his person a dangerous weapon, to-wit: a certain gun, took certain United States currency from the person or presence of Lenora J. White ***.”

The original information, which was dismissed, had included the phrase: “[in that he] knowingly and intentionally, [by threatening, etc.].” When the amended information was filed, defendant orally moved to dismiss the information for failure to include a mental state. That motion was denied. His subsequent motion on the same ground for directed verdict at the end of the State’s case and at the close of all the evidence was denied, as were his motions in arrest of judgment and for a new trial.

Defendant acknowledges neither the robbery nor armed robbery statute contains any language specifically requiring that the defendant act with a certain mental state. (Ill. Rev. Stat. 1983, ch. 38, pars. 18— 1, 18 — 2.) Nevertheless, in the absence of any indication of a legislative purpose to impose absolute liability (see Ill. Rev. Stat. 1983, ch. 38, par. 4 — 9), he contends one of the mental states described in sections 4 — 4 through 4 — 7 must be alleged or the charge is legally insufficient under section 111 — 3 and cannot withstand a motion to dismiss. Ill. Rev. Stat. 1983, ch. 38, par. 111 — 3.

In support, he cites People v. Leach (1972), 3 Ill. App. 3d 389, a case in which the court inter alia held an information charging mob action (Ill. Rev. Stat. 1983, ch. 38, par. 25 — 1), a general intent crime, was fatally defective for failing to allege one of the mental states in sections 4 — 4 through 4 — 7. A later case involving the same mob action issue, People v. Grant (1981), 101 Ill. App. 3d 43, which relied on Leach, is also cited in support here.

The State asserts defendant’s claim in this regard is refuted by the supreme court’s decision in People v. Banks (1979), 75 Ill. 2d 383, and an earlier case, People v. Hayes (1972), 52 Ill. 2d 170. The State acknowledges the issue addressed in Banks was whether the indictment was deficient for failure to include the allegation that the defendant intended to permanently deprive the victim of the use or benefit of the property. Nevertheless, it asserts that issue is so closely related to the issue of the mental state at bar that Banks should be considered dispositive. The State additionally argues the Hayes case considered the precise issue here, and determined lack of the allegation that the defendant committed the offense with intent or knowledge was not fatal, since the words of the armed robbery statute so far particularize the offense that, by use of the statutory words alone, an accused is apprised with reasonable certainty of the precise offense with which he is charged.

The defendant replies that Banks should be narrowly construed as dispositive only with regard to the allegation concerning an accused’s intent to permanently deprive the victims of the use or benefit of their property. He distinguishes Hayes, correctly so, on the basis the court there was reviewing the insufficiency of the information under the standard applied when the complaint is attacked for the first time on appeal. That is, the complaint is sufficient if it apprised the accused of the precise offense charged with sufficient specificity to prepare his defense and allow pleading a resulting conviction as a bar to a future prosecution arising out of the same conduct. (People v. Gilmore (1976), 63 Ill. 2d 23, 29.) However, when the complaint is attacked either by pretrial motion or in a motion in arrest of judgment, the complaint must meet the stringent requirements of section 111 — 3 of the Code of Criminal Procedure of 1963. People v. Gilmore (1976), 63 Ill. 2d 23, 29; see also People v. Miller (1983), 116 Ill. App. 3d 361, 367-68.

The defendant’s argument fails to establish the court below erred on the basis he asserts. We note that the mental state of negligence as defined in section 4 — 7 has no application here, because neither the armed robbery nor robbery statute describes a particular mental state. In such cases, section 4 — 3(b) provides any mental state defined in sections 4 — 4, 4 — 5, or 4 — 6 is applicable. Section 4 — 7 notably has been omitted from the realm of possible mental states.

Defendant’s argument fails to give effect to the plain language of the statutes at issue here: section 4 — 3 of the Criminal Code of 1961 (Ill. Rev. Stat. 1983, ch. 38, par. 4 — 3) and section 111 — 3 of the Code of Criminal-Procedure of 1963. (Ill. Rev. Stat. 1983, ch. 38, par. Ill— 3.) In pertinent part, section 4 — 3 provides:

“(a) A person is not guilty of an offense, *** unless, *** he acts while having one of the mental states described in Sections 4 — 4 through 4 — 7.” (Emphasis added.)

Defendant’s argument superimposes the above requirement on the provision of section 111 — 3 which, in pertinent part, is that:

“(a) A charge shall be in writing and allege the commission of an offense by:
* * *
(3) Setting forth the nature and elements of the offense charged; ***.”

Defendant then views the resulting product as a hybrid which requires that one of the mental states described in sections 4 — 4 through 4 — 6 must be alleged in the charging instrument, otherwise it. is fatally defective.

Section 111 — 3 has been construed to mean, however, that a charge is sufficient to withstand a motion to dismiss or a motion in arrest of judgment if the indictment or information sufficiently states the necessary elements of the offense so that by the language used the defendant is apprised with reasonable certainty of the precise offenses of which he is charged. (People v. Miles (1981), 96 Ill. App. 3d 721.) The purpose of the requirements of section 111 — 3, drawn pursuant to due process principles, is to make certain that the accused will be adequately informed of the nature and elements of the offense charged against him so that he may be able to prepare his defense and protect himself from double jeopardy by subsequent prosecutions for the same offense. (People v. Graves (1982), 107 Ill. App. 3d 449.) When the defendant properly raises the issue of the sufficiency of the information in the trial court, as here, the information must be scrutinized to determine whether it conforms to the statutory requirements of section 111 — 3. (People v. Hockaday (1982), 93 Ill. 2d 279, 281.) Specifically, then, the issue here is whether the information sets forth the nature and elements of the offense.

The elements of the offense of robbery are deprivation of a person’s property, in his presence, through force or intimidation. (People v. McCarty (1981), 101 Ill. App. 3d 355, aff’d in part and rev’d in part on other grounds (1983), 94 Ill. 2d 28, 33.) Armed robbery is the commission of robbery with the addition of the element “while ‘armed with a dangerous weapon.’ ” 94 Ill. 2d 28, 33.

Neither the robbery nor the armed robbery statute sets forth a specific intent element, and the supreme court in People v. Banks (1979), 75 Ill. 2d 383, overruling its previous decision in People v. White (1977), 67 Ill. 2d 107, reaffirmed what it considered was a matter of legislative prerogative as construed by a line of prior Illinois cases, to-wit: that robbery is a general intent crime.

In Banks, the court noted the Committee Comments to section 18 — 1 (robbery) unquestionably state there is no requirement of a specific intent:

“ ‘This section codifies the law in Illinois on robbery and retains the same penalty. No change is intended. *** No intent element is stated as the taking by force or threat of force is the gist of the offense and no intent need be charged. (See People v. Emerling, 341 Ill. 424, 173 N.E. 474 (1930).)’ ” People v. Banks (1979), 75 Ill. 2d 383, 391-92.

Although defendant seeks to distinguish Banks on the basis that that case dealt with the intent to permanently deprive a victim of the use or benefit of his property, he does not here suggest exactly what other intent he believes should have been charged. Section 4 — 3 has been construed to mean that if the statutory definition of an offense includes a mental state with which the act is committed as an element of the offense, that knowledge or mental state must be alleged in the indictment charging such offense. (People v. Mager (1976), 35 Ill. App. 3d 306, 308; People v. Edge (1950), 406 Ill. 490, 493.) No intent or mental state is included in the definition of the offense of robbery or armed robbery. When no particular mental state is applicable, as here, the State’s burden for showing a mens rea may be satisfied by showing that the defendant acted with any of the mental states in sections 4 — 4 through 4 — 7. (People v. McMullen (1980), 91 Ill. App. 3d 184, 190.) The defendant here has not challenged the sufficiency of the proof, and the issue presented here must be determined in the procedural context in which it was presented to the court below and which the defendant argues here; that is, by way of a motion to dismiss and in arrest of judgment. As previously noted, in order to withstand a motion to dismiss the charging instrument must comply with the stringent requirements of section 111 — 3. This court in People v. Whe-lan (1971), 132 Ill. App. 2d 2, found that an indictment for armed robbery was not insufficient for failing to charge any mental state. The defendant there had contended the indictment was insufficient under section 111 — 3 because no intent or knowledge was charged. The Whelan court relied on People v. Emerling (1930), 341 Ill. 424, and People v. Johnson (1931), 343 Ill. 273. Those cases were revitalized as a result of the supreme court’s decision in People v. Banks. In addition to holding that robbery is a general intent crime, the information in Banks was also found to be sufficient to state the offense of robbery. The count charging robbery in the indictment had been chai-lenged in a motion to dismiss on the intent issue and had been granted by the circuit court. The supreme court reversed and remanded, however, and, citing People v. Beck (1976), 42 Ill. App. 3d 923, found that it would be “contrary to reason and experience” to assume that the indictment was insufficient to inform the defendant of the precise charge against him, or “that the intent to deprive a person of his or her property could not be inferred from the language employed.” (People v. Banks (1979), 75 Ill. 2d 383, 393.) The indictment in Banks was for robbery and the language employed was: “ ‘in that [the defendants] did take property, being two (2) rings from the person or presence of Zilphia Lauderdale, by the use of force’ on August 11, 1975.” (75 Ill. 2d 383, 386.) The language employed here, save for the specific difference in facts and the inclusion of the “armed with a dangerous weapon” element, was as sufficient as that in Banks. Here, it would also be contrary to reason and experience to find the information at bar was insufficient to allow the defendant to prepare a defense to the charge or to plead a judgment as a bar to a future prosecution for the same offense.

We distinguish People v. Leach (1972), 3 Ill. App. 3d 389, cited by the defendant, along with the case which relied on Leach, People v. Grant (1981), 101 Ill. App. 3d 43, primarily on the basis of their facts, since Leach did not involve armed robbery and, secondarily, on the basis that in Leach it is not clear the sufficiency of the complaint was analyzed strictly on the basis of section 111 — 3; that is, what must be charged, as opposed to whether one may be guilty of an offense as provided in section 4 — 3. Beyond that, the language of the complaint in Leach was not so particularized as that at bar so as to allow inference of the defendant’s intent there. The complaint did not specify how the defendant in that case “ ‘did by the use of force and violence disturb the public peace ***.’ ” (People v. Leach (1972), 3 Ill. App. 3d 389, 392.) Here, the defendant’s active intent to deprive another person of her property is readily inferable from the language of the information.

We conclude the information properly stated an offense, and the court did not err in denying the defendant’s motions to dismiss and in arrest of judgment.

Defendant next asserts he was denied a fair trial due to certain errors in instructions. He first notes that the court, although conceding at the post-trial motion hearing that the defense of intoxication would have been available to him since he was “charged with armed robbery by accountability,” nevertheless the court determined that he had failed to prove his defense of intoxication and, therefore, refused to give the instruction.

Defendant argues he need only have presented slight evidence of an affirmative defense in order to be entitled to a jury instruction on that theory of his defense. (People v. Bratcher (1976), 63 Ill. 2d 534; People v. Helm (1973), 9 Ill. App. 3d 143; People v. Wallace (1981), 100 Ill. App. 3d 424.) He notes the State admitted in its post-trial memo that “it is clear the defendant presented some evidence of intoxication.” Defendant asserts it was improper for the court to weigh the evidence presented, since the only issue before the court was whether the defendant had presented “some evidence” of intoxication.

The State argues first the defendant has waived this issue by failing to renew his request for the intoxication instruction after he had adduced the evidence he claims supported the giving of the instruction. (People v. Underwood (1978), 72 Ill. 2d 124.) The instruction conference here was held after the State rested, and before the defendant had presented his case. Alternatively, the State argues the court was correct in determining that the evidence failed to show that the defendant was so intoxicated as to render him incapable of any mental action, “such as forming the specific intent to commit the crime,” and that the instruction was therefore not warranted.

The issue was not waived by the defendant’s failure to renew his request for the instruction, and People v. Underwood, cited by the State, does not support a finding of waiver here. The record clearly shows the court initially refused the instruction, not because of any deficiency in the quantum of evidence, but because it believed as a matter of law that the defense of voluntary intoxication was not available to a defendant charged with a general intent crime such as armed robbery. On that point, the court was correct. See People v. Rosas (1981), 102 Ill. App. 3d 113; People v. Brumfield (1979), 72 Ill. App. 3d 107; People v. Baker (1979), 72 Ill. App. 3d 682.

At the post-trial hearing, however, the court apparently accepted the defendant’s argument that the fact the defendant was convicted of the armed robbery on the basis of accountability, which requires a finding of specific intent (Ill. Rev. Stat. 1983, ch. 38, par. 5 — 2(c)), “with the intent to promote or facilitate such commission [of the offense], ***”; thus, the defense of voluntary intoxication was available to him, and the jury should have been instructed as to that offense. Although the court acknowledged that accountability is not an offense, but merely an alternative to the nature of proof required to convict (see People v. Buffington (1977), 51 Ill. App. 3d 899), it nevertheless found that because it required specific intent, the defense of voluntary intoxication was available to the defendant to negate the intent element of accountability. Despite that, the court determined that the evidence did not show the defendant was so intoxicated as to have negatived the specific intent. Consequently, the court denied the defendant’s motion for a new trial.

We will, as the parties have, assume arguendo that the court’s finding was correct that the defense of voluntary intoxication would have been available to the defendant in order to negate the specific intent required in order to sustain the conviction for armed robbery under accountability principles. In determining whether a trial court abused its discretion in deciding a motion for a new trial, the reviewing court will consider whether the jury’s verdict was supported by the evidence and whether the losing party was denied a fair trial. (Reidelberger v. Highland Body Shop, Inc. (1981), 83 Ill. 2d 545, 549.) The court’s decision will not be disturbed unless a manifest abuse of discretion can be shown. People v. Smith (1978), 59 Ill. App. 3d 480.

Based on our review of the record, we conclude no abuse of the court’s discretion is evident, and the defendant was not denied a fair trial. The court below observed that although the defendant testified he was drunk, he nevertheless was able to testify with clarity and in detail about the events before, during, and after the armed robbery. The court noted the defendant’s testimony that Lighthart called him names, “a chicken,” and so forth, because he did not want to participate in the robbery, and that the defendant testified that he “got mad” and proceeded to go into the store after Lighthart. Later, the defendant testified Lighthart gave him money from the robbery.

The defendant’s argument that he need only have presented slight evidence of his intoxication is relevant for purposes -of determining whether the burden of proof shifted to the State. (Ill. Rev. Stat. 1983, ch. 38, par. 3 — 2.) “ ‘Slight evidence’ ” will justify an instruction on a given defense (People v. Chatman (1982), 110 Ill. App. 3d 19, 22), and the defendant is entitled to instruction on any defense shown by the evidence; the court may not weigh the evidence in making a determination as to whether an instruction on the defense is warranted. (People v. Bryson (1980), 85 Ill. App. 3d 448; People v. Boisvert (1975), 27 Ill. App. 3d 35.) However, in order to negate specific intent, the defendant’s intoxication must have been so extreme that it entirely suspended his power of reason; there is no “ ‘diminished capacity’ ” defense. (People v. Fuller (1980), 91 Ill. App. 3d 922, 927.) Merely being drunk or intoxicated is insufficient to create a defense of intoxication. (People v. Moon (1982), 107 Ill. App. 3d 568.) Where the evidence on the record indicates that the defendant acted with any purpose or rationality or remembered the offense with clarity or detail, voluntary intoxication is not an available defense. (People v. Nichols (1981), 96 Ill. App. 3d 354.) Errors in giving or refusing of instructions do not always justify reversal where the evidence of a defendant’s guilt is so clear and convincing that a jury could not reasonably have found the defendant not guilty. People v. Jones (1979), 81 Ill. 2d 1.

Assuming, arguendo, it was not error for the court to have concluded that the defense was available as a matter of law, the evidence nevertheless fails to show the defendant’s intoxication was so extreme as to have negated the specific intent required to sustain his conviction under accountability principles, and the jury could not reasonably have found him not guilty even if it had been instructed as to the intoxication defense.

We conclude the court did not abuse its discretion in denying defendant’s motion for a new trial, nor was he denied a fair trial.

Next, we consider the “dangerous weapon” instruction. The defendant tendered, and the court refused, these instructions:

“A dangerous weapon is a weapon that is likely to cause death or great bodily harm to another person.
* * *
An object or an instrument which is not inherently dangerous may be a dangerous weapon depending on the manner of its use and the circumstances of the case. IPI Grim. 2d 4.17.
* * *
An object or an instrument which appears to be inherently dangerous may not be a dangerous weapon depending on the manner of its use and the circumstances of the case.
* * *
An object or an instrument which is not inherently dangerous may be a dangerous weapon depending on the manner of its use and the circumstances of the case.
An object or an instrument which appears to be inherently dangerous may not be a dangerous weapon depending on the manner of its use and the circumstances of the case.”

Defendant argues it was reversible error for the court to have refused his instructions because they were correct statements of the law, and because the jury was left to speculate as to whether or not the weapon used here — an inoperable unloaded .177-caliber pellet gun— was a dangerous weapon. Defendant’s position below was that the weapon was not dangerous, in view of its inoperability, and in order for it to have been considered a dangerous weapon it would have to have been shown either that Lighthart actually used or threatened to use the weapon as a bludgeon or club, or was in such a position as to have been able to use the gun in that manner at the time he demanded the money from the victim of the armed robbery.

The defendant’s argument here is untenable. In People v. Skelton (1980), 83 Ill. 2d 58, the authority for Illinois Pattern Jury Instruction (IPI), Criminal, No. 4.17 (2d ed. 1981), set forth above, it was stated:

“Most, if not all, unloaded real guns and many toy guns, because of their size and weight, could be used in deadly fashion as bludgeons. Since the robbery victim could be quite badly hurt or even killed by such weapons if used in that fashion, it seems to us they can properly be classified as dangerous weapons although they were not in fact used in that manner during the commission of the particular offense. It suffices that the potential for such use is present; the victim need not provoke its actual use in such manner.” (Emphasis added.) People v. Skelton (1980), 83 Ill. 2d 58, 66.

Consequently, it is the weapon’s potential for inflicting deadly or serious harm which is at issue, and not whether the weapon was, in fact, used or threatened to be used in a dangerous, deadly fashion, such as in the nature of a bludgeon.

Whether a weapon is dangerous is generally a question of fact to be decided by the trier of fact, here, the jury. However, where the character of the weapon is such as to admit of only one conclusion, the question becomes one of law for the court. (83 Ill. 2d 58, 66.) The weapon here was a .177-caliber pellet gun. During closing argument, defense counsel stated:

“I certainly agree that an object of this weight and size if used as a club or a bludgeon is a deadly or a dangerous weapon if it’s used that way.”

Despite the fact the weapon in question has not been submitted for examination to this court, it was produced at trial and was viewed by the jury. Since Skelton holds it is the object’s potential for deadly use rather than the actual use as such (an objective test), which qualifies it for classification as a dangerous weapon, it is clear from the evidence, as well as counsel’s comments during closing argument, that the pellet gun here was such a weapon, even though there was evidence that it was unloaded and inoperable since it was missing a carbon dioxide cartridge. Other cases have also found pellet guns could be dangerous weapons due to their potential use as bludgeons. People v. Martinico (1981), 101 Ill. App. 3d 250; People v. Greer (1977), 53 Ill. App. 3d 675.

The court here expressed its belief during the instruction conference that the instructions tendered by the defendant did not accurately reflect the law, and indicated that it would instruct the jury on the question if an instruction were drafted which properly reflected the law. The defendant failed to follow up on the court’s invitation. Although the court’s duty to make certain the jury is instructed on the elements of the offense is well established (see People v. Parks (1976), 65 Ill. 2d 132), all errors in jury instructions do not require reversal. As noted by the State, both it and the defendant extensively argued their theories as to whether the pellet gun here could be considered a dangerous weapon. Defense counsel apparently acquiesced in this irregular procedure rather than tendering a further instruction or instructions which would have met with the court’s approval.

Given the clear state of the evidence as to the character of the weapon, including in no small part defense counsel’s comments during closing argument, we do not see how the jury could have found the weapon not dangerous under the Skelton test. Consequently, we conclude the instructional error may be deemed harmless, and no reversal is warranted. People v. Jones (1979), 81 Ill. 2d 1; cf. People v. Ogunsola (1981), 87 Ill. 2d 216, 223 (where the court found it could not conclude that a properly instructed jury might not have acquitted the defendant).

The defendant next argues it was error for the court to have excluded, by granting the State’s pretrial motion in limine, the testimony of Doctor Frank Cushing. The doctor testified for the defendant at the motion to suppress hearing, and the defendant asked that that testimony be considered his offer of proof at trial. He contends here the doctor’s testimony was relevant as showing the circumstances surrounding the defendant’s confession, thus going to its credibility, and would also have been relevant to his intoxication defense.

The State correctly asserts the defendant should be deemed to have waived the issue of the admission of the evidence insofar as it may have been relevant to the credibility of his confession, since the defendant offered the evidence at trial in support of his intoxication defense, not as being relevant to the credibility of his confession. It is well established that a different theory of admissibility than that which was offered at trial below may not be argued on appeal. (People v. Miller (1977), 55 Ill. App. 3d 136; People v. Walker (1974), 22 Ill. App. 3d 711, 715-16.) Additionally, as the State points out, the defendant at trial did not attempt to establish that his statement was given involuntarily, only that the statement which was admitted contained inaccuracies in that it did not reflect what the defendant told Detective Oldenburger. Oldenburger was called on rebuttal at trial, and testified that he typed the statement as the defendant told it to him, line by line.

The circumstances of the instant case distinguish it from the case cited by the defendant in support of his contention, People v. Scott (1963), 28 Ill. 2d 131. In that case, the defendant tried repeatedly to present evidence to the jury that he signed the confession which was admitted in evidence as a result of offers from the police that the case would be dropped or he would receive probation if he would agree to sign the statement in order to clear up the case. All of defendant’s efforts to present this evidence to the jury were unsuccessful. The supreme court reversed and remanded the cause for a new trial, since it found that even though a confession has been admitted in evidence, the defendant still has a right to present evidence which affects the credibility or weight to be given the confession by the jury. In the case at bar, the State’s motion in limine sought to preclude the doctor’s testimony on the basis the crime of armed robbery was a general intent crime, and that the defense of voluntary intoxication is available only where the offense charged is a specific intent crime. Apparently the defendant did not dispute that the evidence was being offered for that purpose, since he did not argue any other theory of admissibility of the evidence, and the court granted the State’s motion in limine. Consequently, the defendant may not now argue the doctor’s testimony should have been admitted on the basis that it would be relevant to the credibility of the defendant’s confession.

Further, no prejudice to the defendant is seen as the result of the court’s ruling excluding the testimony, in view of the fact the defendant testified at the suppression hearing that he knew he had the right to remain silent, yet he talked with Detective Oldenburger, and did not point out any errors in the statement which he made to the detective, after it was reduced to writing and after he himself read and signed it.

The defendant argues secondarily that the doctor’s testimony concerning the defendant’s mental processes when intoxicated and the fact that he “is a follower who could be easily persuaded and might not fully understand the consequences of his actions at all times” was relevant to the defense in this case. At argument on the motion in limine, however, defense counsel stated Doctor Cushing would “be testifying to George’s [the defendant] very limited mental capacity and his borderline retarded abilities to comprehend either verbal or written communications.” Testimony as to either of those topics would not have established a legal defense to the charge of armed robbery, and defendant cites no authority in support of his argument that Doctor Cushing’s testimony would have been relevant to his defense.

We conclude the exclusion at trial of Doctor Cushing’s proffered testimony was not error.

Defendant’s last contention is that the court erred in denying his motion to suppress his post-arrest statement. He asserts that the court’s conclusion he knowingly and voluntarily waived his fifth amendment rights was against the manifest weight of the evidence, and must be reversed. He characterizes the evidence at the suppression hearing as having presented the court “with a 19-year-old man, with extremely low intelligence, a border-line retardate, who could not assimilate or understand words read to him and who had been drinking all day when questioned by an experienced police detective at 11 p.m., two-and-one-half hours after his arrest; a young man who testified that he did not understand the import of the rights waiver read to him.” Defendant asserts that in light of defendant’s low IQ (84) and his auditory processing deficit as testified to by Doctor Cushing, it is “certainly probably true” that he did not understand the rights read to him: As the State points out, the defendant’s low intelligence by itself is insufficient to establish one’s lack of ability to understand or waive Miranda rights. (See, e.g., People v. Gonzales (1974), 22 Ill. App. 3d 83, 86; People v. Hentz (1979), 75 Ill. App. 3d 526; People v. Hester (1968), 39 Ill. 2d 489, 500.) The State asserts more than enough evidence was adduced by the State to sustain its burden of proof.

The trial court need not be satisfied beyond a reasonable doubt that the waiver was voluntary (People v. Raitano (1980), 81 Ill. App. 3d 373); it is sufficient if voluntariness is shown by a preponderance of the evidence. (People v. Sizemore (1981), 97 Ill. App. 3d 1088; People v. Cozzi (1981), 93 Ill. App. 3d 94.) Further, the trial court’s determination that there has been a voluntary waiver of rights is not to be disturbed unless it is against the manifest weight of the evidence. People v. Marek (1980), 92 Ill. App. 3d 746.

Detective Oldenburger testified at the suppression hearing about the warning procedure he followed. He asked the defendant to read the first line of the written waiver form (which defendant denies occurred), then read the succeeding paragraphs to the defendant, receiving after each paragraph defendant’s affirmative response that he understood what the detective had just read to him. Although the defendant refused to sign the written waiver form, he agreed to talk to the detective. Testimony conflicted as to whether his refusal to sign the waiver form was because his mother told him not to sign anything (detective’s testimony), or because she told him not to sign anything he did not understand (defendant’s testimony). The defendant admitted on cross-examination that he knew that he had the right to remain silent. Although he testified later at trial that the statement he signed was incorrect because it did not reflect precisely what he told the detective, he admitted he had read the statement, had signed it, and had not told the detective that certain parts of it were wrong.

At a hearing to suppress a confession, it is the trial court’s responsibility to determine credibility of witnesses, and the competency of the confession and the trial court’s decision will not be reversed unless it is contrary to the manifest weight of the evidence. (People v. Lewis (1979), 75 Ill. App. 3d 259.) In determining the voluntariness of the confession, the trial court was entitled to consider the totality of the circumstances. (People v. Underwood (1982), 108 Ill. App. 3d 846.) The defendant here has failed to show that the court’s determination was against the manifest weight of the evidence, and we conclude no reversal is warranted.

The judgment of the circuit court of Winnebago County is affirmed.

Affirmed.

HOPF and LINDBERG, JJ., concur.


author: JUSTICE JONES

text:
    JACK L. CHUBB, Plaintiff-Appellant, v. AMAX COAL COMPANY, INC., et al., Defendants-Appellees.
    Fifth District
    No. 5—83—0641
    Opinion filed July 11, 1984.

      Robert L. Douglas, Fred W. Johnson, and Karen L. Burkybile, all of Law Offices of Robert L. Douglas, of Robinson, for appellant.
    George W. Woodcock, of Woodcock, Kline & Kaid, of Mt. Carmel, for ap-pellees.
   JUSTICE JONES

delivered the opinion of the court:

Plaintiff, Jack Chubb, brought the instant action for disability benefits under a group insurance policy issued to his employer, Amax Coal Company, Inc. (Amax), by Connecticut General Life Insurance Company (Connecticut General). The defendants, Amax and Connecticut General, moved for dismissal of the complaint by reason of a release executed by the plaintiff in settlement of his previous claim for total and permanent disability benefits under the same policy. The trial court granted the motion to dismiss, finding that the release was effective to bar all claims by the plaintiff under the policy in question, including those arising after the execution of the release. On appeal the plaintiff contends that the subject release was limited to claims in existence at the time of its execution and that the court thus erred in dismissing his complaint for benefits for a subsequent unrelated disability.

While the record in the instant case is incomplete due to the summary nature of the proceeding, it appears that the plaintiff had been employed by Amax for a period of time prior to 1981. Early in 1981 he made a claim under group long-term disability policy No. 041635, issued by Connecticut General to Amax for the benefit of its employees. He subsequently filed suit in Federal court on this claim, which was based upon his alleged total and permanent disability. The suit was settled by the parties, and the plaintiff received a payment of $57,000, representing 80% of the then present value of the policy benefits for total and permanent disability until the age of 65. In consideration for this payment, the plaintiff, on April 6, 1981, executed the release that is involved in this appeal.

Shortly thereafter, on August 31, 1981, the plaintiff returned to work for Amax and continued in this employment through March 31, 1983. During this time Amax deducted $450.12 from the plaintiff’s salary, which represented the plaintiff’s contributions on premiums to Connecticut General for its group disability coverage. On July 7, 1983, the plaintiff filed the instant complaint in which he alleged that he had suffered a myocardial infarction and was totally disabled as a result. The plaintiff alleged that, pursuant to the terms of the policy provided by Amax through Connecticut General, he was entitled to monthly payments of $1,992 for so long as he remained disabled.

In their motion to dismiss the plaintiff’s complaint, the defendants set forth the release that had been executed by the plaintiff on April 6, 1981. This release stated in pertinent part:

“RELEASE
FOR AND IN CONSIDERATION of the sum of Fifty Seven Thousand Dollars ($57,000.00) *** Jack L. Chubb executes and agrees to the terms of this Release:
1. Jack L. Chubb hereby releases and forever discharges Connecticut General Life Insurance Company *** from any and all claims, demands, obligations, or causes of action of any nature whatsoever *** including, but not limited to, all claims, obligations or causes of action in any way connected with or arising out of:
(a) Group Long Term Disability Policy No. 041635 issued by Connecticut General to Amax Coal Companies, Inc. insuring its employees, ***
and/or
(b) Civil Action No. 80 — 4212 filed in the U.S. District Court for the Southern District of Illinois, styled ’Jack L. Chubb v. Amax Coal Companies, Inc., and Connecticut General Life Insurance Company, Hartford, Connecticut.’
* * *
6. Jack L. Chubb expressly waives and assumes the risk of any and all claims, demands, obligations or causes of action for damages or other relief arising out of any matter described in paragraph 1 which exist as of this date but which he does not know or suspect to exist in his favor, whether through ignorance, oversight, error, negligence or otherwise, and which, if known, would materially affect his decision to enter this Release.” (Emphasis added.)

Amax additionally tendered a refund of the plaintiff’s premium payments to him, but these payments were placed in escrow pending the outcome of the case.

Pursuant to the defendants’ motion the trial court dismissed the plaintiff’s complaint with prejudice. The court reasoned that the release executed by the plaintiff barred him from asserting any claim or cause of action under group long-term disability policy No. 041635 and that “[t]his finding of no liability owed by [Connecticut General] pertained[ed] to matters arising after the date of the release, as well as matters arising prior to the date of the release, insofar as any claim *** would be based upon [policy No. 041635].” While noting that the condition claimed in the instant case was different from that which was the subject of the release, the court observed, nevertheless, that “the language of said release involve[d] any claims arising out of said policy, and was not limited to the specific condition or injury referred to in paragraph 1(b) of said release.” Thus, the court ruled, since the claim set forth in the plaintiff’s complaint pertained to policy No. 041635, it had been released by virtue of the release of April 6, 1981.

In considering the plaintiff’s appeal from this judgment, we note initially that we are aware of no case that has addressed the situation here presented. The plaintiff contends that the release in question should not be construed to bar his claim for a subsequent unrelated injury that was not within the contemplation of the parties when the release was executed. While, as both the defendants and the trial court'have pointed out, the plaintiff’s release, by its terms, discharged the defendants of all liability arising under policy No. 041635, we decline to hold that the release was effective to bar new claims, not in existence at the time of the release, that arose after the plaintiff became re-employed by Amax and again came within the coverage of its employees’ group disability policy. As will be seen, this result follows from an application of general rules of construction regarding releases as well as from considerations of public policy.

It is well settled that a release, being a contract whereby a party abandons a claim to a person against whom that claim exists, is subject to rules governing the construction of contracts. (Murphy v. S-M Delaware, Inc. (1981), 95 Ill. App. 3d 562, 420 N.E.2d 456.) The intention of the parties, therefore, controls the scope and effect of the release, and this intent is discerned from the language used and the circumstances of the transaction. (Whitehead v. Fleet Towing Co. (1982), 110 Ill. App. 3d 759, 442 N.E.2d 1362.) It is similarly stated that a release, no matter how broad its terms, will not be construed to include claims not within the contemplation of the parties (Murphy v. S-M Delaware, Inc. (1981), 95 Ill. App. 3d 562, 420 N.E.2d 456), and, where the language of the release is directed to claims then in existence, it will not be extended to cover claims that may arise in the future. LaGrange Federal Savings & Loan Association v. Rock River Corp. (1981), 97 Ill. App. 3d 712, 423 N.E.2d 496; Keeran v. Wahl Co. (1943), 320 Ill. App. 457, 51 N.E.2d 598.

While the plaintiff makes an initial argument that the release in question was a special release limited to the particular injury and cause of action that was the subject of his prior suit, the language contained in paragraph one of the release is plenary in its terms and is not limited by reference to the suit then pending between the parties. Indeed, by paragraph six of the release, the plaintiff expressly waived all claims arising under the policy that were in existence as of the date of the release, including those of which he was unaware at the time. Moreover, Connecticut General’s payment to the plaintiff representing the present value of benefits for total and permanent disability to age 65 showed that the parties intended the release to cover all claims then held by the plaintiff under the policy. Thus, both the language and circumstances of the release support the conclusion that it was effective to bar all claims by the plaintiff, whether known or unknown, that existed under the policy as of the date of the release.

Notwithstanding this express release of claims in existence but unsuspected by the plaintiff, the defendants urge a construction of the release as barring the instant claim that arose after the execution of the release. Here, again, reference must be made to the intention of the parties, as a release ordinarily includes only claims in existence at the time it is executed (see 76 C.J.S. Release sec. 53 (1952); Havighurst, Principles of Construction and the Parol Evidence Rule as Applied to Releases, 60 Nw. U. L. Rev. 599, 611 (1965) (hereinafter Havighurst, Construction of Releases)), and claims that originate subsequent to its execution are not discharged absent a clear expression of intent to that effect. Rotberg v. Dodwell & Co. (2d Cir. 1945), 152 F.2d 100; Rensink v. Wallenfang (1959), 8 Wis. 2d 206, 99 N.W.2d 196; see W.J. Perryman & Co. v. Penn Mutual Fire Insurance Co. (5th Cir. 1963), 324 F.2d 791.

In the instant case there is no indication that the parties considered the possibility of future claims arising under the policy from unrelated causes after the execution of the release. Indeed, at the time of the release, the plaintiff was no longer covered by the policy in question because he had ceased his employment with Amax, and, by virtue of his claim for total and permanent disability benefits, it appeared that his unemployment would continue indefinitely. Connecticut General thus had no reason to suppose that the plaintiff would again come within coverage of the policy so as to make a new claim or to provide for that possibility in the release executed by the plaintiff. Moreover, the express reference in paragraph six to claims under the policy that “exist as of this date” implicitly limited the release of future claims to those that were in existence but unsuspected by the plaintiff, as such a provision would have been unnecessary if the general language of paragraph one had been intended to include every possible future claim under the policy. The general language of paragraph one, therefore, should not be construed to bar the instant claim under the policy for a disability that occurred after the date of the release where the language and circumstances of the release did not reflect the parties’ intent to that effect. Cf. Rensink v. Wallenfang (1959), 8 Wis. 2d 206, 99 N.W.2d 196 (release executed by wife in suit for injuries in auto accident, covering all claims she “might have” resulting from accident, did not bar action for subsequent death of husband as a result of accident).

This construction of the release is further justified by considerations of public policy regarding the effect of the release on the parties’ future relationship. As noted in legal commentary on the subject of releases, a release covering all claims that might later arise between the parties “would constitute a consent to the foregoing of legal protection for the future and would plainly be against public policy.” (Havighurst, Construction of Releases, at 616.) In the specific context of disability insurance, it has been observed that “if [an] insurer were relieved absolutely of [all] liability for any future accidents, the coverage might as well be terminated, as it [would have] become a nullity.” 3 Appleman, Insurance sec. 1670, at 472 (1967).

In the instant case the plaintiff’s coverage under policy No. 041635 derived from his employment relationship with Amax. Despite the settlement of his previous claim under that policy, when the plaintiff became re-employed by Amax he again came within the group of employees covered by policy No. 041635. To hold that the plaintiff was precluded from bringing any claim for disability under that policy would render this coverage a nullity and would deprive the plaintiff of any legal recourse on the policy after the parties had again entered into a contract of insurance. Because of the nature of a group insurance policy as a blanket policy covering all employees who come within its eligibility requirements (see Aetna Life Insurance Co. v. Messier (M.D. Pa. 1959), 173 F. Supp. 90; 44 Am. Jur. 2d Insurance sec. 1842 (2d ed. 1982); see also Ill. Rev. Stat. 1983, ch. 73, pars. 979, 979a), the plaintiff, upon re-employment, should not be denied coverage based upon the fortuitous circumstance that this coverage was provided by the same group policy under which he had released his prior claim. The plaintiff, therefore, will not be presumed to have relinquished his rights under the policy that arose upon his re-employment where such would be contrary to public policy.

Despite our holding, however, that the plaintiff is entitled to make another claim under the policy in question, the fact that he has already received benefits under that policy cannot be disregarded. The plaintiff’s benefits are governed by the parties’ contract of insurance, and where he has been paid for one total and permanent disability, this would seem to preclude another such recovery under the contract. (See 3 Appleman, Insurance sec. 1670, at 476-77 (1967).) If, upon remand, then, the plaintiff is found to have been totally and permanently disabled by his present condition, the defendant insurer may be allowed to offset the benefits due under the present policy by the amount already paid to the plaintiff for his previous total and permanent disability.

Since the plaintiff’s previous coverage under the policy in question had terminated upon cessation of his employment with Amax, his rights upon re-employment would be governed by the policy in effect at the time of re-employment. (19 Couch, Insurance sec. 82:99 (2d ed. 1983); see Williams v. Sun Life Assurance Co. (1940), 235 Mo. App., 741, 148 S.W.2d 112.) Thus, in his present claim for total and permanent disability benefits, the plaintiff would be entitled to any increased benefits provided by the policy in effect at that time. In addition, if our interpretation of the amount of the previous settlement is correct from the sparse record before us, the plaintiff would also be able to reach the other 20% of policy benefits for total and permanent disability that he had foregone in compromising his earlier claim.

The result here reached would give the plaintiff the benefit of his renewed contractual relationship "with the defendant while preventing a double recovery of amounts due under the policy. We note in passing that the net effect of this approach would be comparable to the situation where, rather than making a lump sum payment of benefits for total and permanent disability, the insurer pays monthly benefits that are terminated upon a showing that the insured has recovered from the disability and resumed employment. (See generally 15 Couch, Insurance secs. 53:114 through 53:117 (2d ed. 1983); Greenberg v. Metropolitan Life Insurance Co. (1942), 379 Ill. 421, 41 N.E.2d 495 (under insurance policy providing for monthly payments for total and permanent disability, insurer protects itself in case of recovery of insured by policy provision requiring periodic proof of continuance of disability).)

For the reasons stated in this opinion we reverse the judgment of the trial court and remand for further proceedings.

Reversed and remanded.

WELCH, P.J., and KASSERMAN, J., concur.


author: PRESIDING JUSTICE WELCH

text:
    REGAL PACKAGE LIQUOR, INC., Plaintiff-Appellee, v. J.R.D., INC., Defendant-Appellant.
    Fifth District
    No. 5—84—0064
    Opinion filed July 17, 1984.
    Rehearing denied August 7, 1984.

      Robert Mays, of East St. Louis, for appellant.
    Earle McCaskill, of East St. Louis, for appellee.
   PRESIDING JUSTICE WELCH

delivered the opinion of the court:

This interlocutory appeal pursuant to Supreme Court Rule 308 (87 Ill. 2d R. 308) is taken from an order of the circuit court of St. Clair County. The following question of law was identified for our review: Can a reinstated corporation maintain a forcible entry and detainer action based on a real estate installment contract entered into by the corporation while dissolved, if the action was filed when the corporation was dissolved? We hold that it can, if the action was brought within certain time limits.

The question presented by this appeal involves a dissolved corporation which is “reinstated.” Reinstatement of a corporation refers to a procedure which follows the involuntary dissolution of a corporation for failure to file annual reports or pay fees. (Ill. Rev. Stat. 1983, ch. 32, par. 157.82a.) That procedure should be distinguished from the revocation of voluntary dissolution proceedings (see Ill. Rev. Stat. 1983, ch. 32, pars. 157.79a-157.79d) and the vacation of an order of dissolution under section 82 of the Business Corporation Act of 1933 (Ill. Rev. Stat. 1983, ch. 32, par. 157.82), which concerns fraudulent practices or excessive authority of business corporations. By the language of its order, the trial court has limited our inquiry to the situation in which a corporation is dissolved for failure to file annual reports or pay fees and is reinstated after entering into a real estate contract and bringing a forcible entry and detainer action based on that contract.

Before answering the substantive issues in this case, we must first discuss a shortcoming in the record on appeal. Although both parties refer in their briefs to a number of documents apparently filed in the trial court, the only document certified by the clerk of the circuit court and attached to the defendant’s application for leave to appeal was the trial court’s order specifying the question of law to be determined. Supreme Court Rule 308(c) (82 Ill. 2d R. 308(c)) requires an application for leave to appeal to be accompanied “by a copy, certified by the clerk of the trial court, of the order appealed from and of the other parts of the trial court record necessary for the determination” of the application. Those documents not certified and attached to the application are therefore not part of the record on appeal (see Stony Island Church of Christ v. Stephens (1977), 54 Ill. App. 3d 662, 369 N.E.2d 1313) and need not be considered, especially in the absence of a stipulation of the parties (87 Ill. 2d R. 329) or a motion to amend the record. This result is not changed by the inclusion of the missing documents in the appendices to the parties’ briefs, because attachments to briefs not otherwise before the reviewing court cannot be used to supplement the record. (Tomlen Group, Ltd. v. Goldfarb (1981), 101 Ill. App. 3d 154, 157, 426 N.E.2d 1047, 1049.) Nonetheless, the single document which is properly before us is a sufficient, if brief, record upon which we may determine this appeal.

Normally, upon the dissolution of a corporation, it is no longer able to maintain an action, absent a statutory exception, and all matters pending at the time of the dissolution abate. (People v. Mazzone (1978), 74 Ill. 2d 44, 383 N.E.2d 947.) A dissolved corporation may institute an action within two years of dissolution (Ill. Rev. Stat. 1983, ch. 32, par. 157.94), even if its reinstatement occurs after the expiration of the applicable limitations period (Amman Food & Liquor, Inc. v. Heritage Insurance Co. (1978), 65 Ill. App. 3d 140, 382 N.E.2d 562). It may even institute an action more than two years after its dissolution as long as it is reinstated within the appropriate limitations period. (Kaybill Corp., Inc. v. Cherne (1974), 24 Ill. App. 3d 309, 320 N.E.2d 598.) In the latter instance, reinstatement retroactively restores the status of the corporation. For the purposes of commencing and maintaining suit, it “is as though the corporation were never under any legal disability.” 24 Ill. App. 3d 309, 314-15, 320 N.E.2d 598, 603.

A more difficult question is whether that reinstatement also validates contracts entered into during the period of corporate dissolution. The wording of the Business Corporation Act of 1933 provides no obvious answer. Under section 92 of the Act (Ill. Rev. Stat. 1983, ch. 32, par. 157.92), a corporation which is dissolved for not filing reports or paying fees “shall cease to exist.” Section 82a (Ill. Rev. Stat. 1983, ch. 32, par. 157.82a), governing reinstatement, does not say that reinstatement retroactively validates corporate actions undertaken during the period of dissolution. Neither does it prohibit reinstatement from having such an effect. That provision is simply silent on the question before us.

J.B. Wolfe, Inc. v. Salkind (1949), 3 N.J. 312, 70 A.2d 72, furnishes some guidance. The relevant statute in that case provided that the powers granted by law to a corporation would be “inoperative and void” if the corporation did not pay its State taxes. Upon payment of delinquent taxes, the corporation would be reinstated “and entitled to all its franchises and privileges.” As in our Business Corporation Act, the New Jersey statute did not indicate whether reinstatement would relate back to the date of dissolution and validate corporation action taken during the interim.

The court held that a corporation which had entered into a contract while dissolved could maintain an action for breach after it was reinstated. In explaining one of the reasons for its decision, the court observed that the object of the statutes in question was to raise revenue for the State. But, the other party to the contract with the dissolved corporation is a stranger to the dealings between the corporation and the State. The court concluded that it would therefore be inequitable for that other party to avoid its obligations to the corporation by pointing to the corporation’s derelictions with respect to the State, especially when its default has been cured by subsequent compliance with statutory requirements.

We find the reasoning of SalJcind and similar cases (see Annot., 13 A.L.R.2d 1220 (1950)) persuasive. The purpose of those provisions of the Business Corporation Act of 1933 relating to corporate reports and fees are for the benefit of the State and public. It would not serve that purpose to allow those provisions to be used as a defense to an action brought by a delinquent corporation to enforce a contract. As a result, we decide that reinstatement of a dissolved corporation pursuant to section 82a of the Business Corporation Act of 1933 relates back to the date of dissolution, in general, so as to validate corporate contracts entered into during the interim.

This rule is not without exceptions. For example, reinstatement will not be used to substitute worthless corporate liability for valuable personal liability. (Estate of Plepel v. Industrial Metals, Inc. (1983), 115 Ill. App. 3d 803, 450 N.E.2d 1244.) Otherwise, a former officer of a dissolved corporation could obtain credit and subsequently shift his personal liability to the corporation simply by filing overdue reports or paying delinquent fees.

The exception discussed in Plepel does not apply to a corporation which seeks to enforce a contract entered into during the corporation’s dissolution. The contract which is the basis for the instant forcible entry and detainer action would thus be validated by the plaintiff corporation’s reinstatement. An action in forcible entry and detainer may be maintained against a contract purchaser of land who has failed to comply with his agreement and withholds possession after receiving a written demand from the person entitled to possession. (Ill. Rev. Stat. 1981, ch. 110, par. 9 — 102; Village of Rosemont v. Chicago Title & Trust Co. (1982), 111 Ill. App. 3d 610, 613, 444 N.E.2d 598, 600.) Given the inadequacy of the record on appeal, we are unable to determine whether the pleadings and other documents show that such is the case here. But if it is, and if the other conditions discussed above have been met, the plaintiff may maintain its action.

Parenthetically, we observe that the problems of statutory interpretation posed by this case will not arise under the Business Corporation Act of 1983, effective July 1, 1984 (Ill. Rev. Stat., 1983 Supp., ch. 32, par. 1.01 et seq.). Under the Act, a corporation may be administratively dissolved for failure to file reports, pay fees or maintain a registered agent in Illinois. (Ill. Rev. Stat., 1983 Supp., ch. 32, par. 12.35.) The corporation may then apply for reinstatement, and upon the issuance of a certificate of reinstatement by the Secretary of State, “the corporate existence shall be deemed to have continued without interruption from the date of the issuance of the certificate of dissolution, and the corporation shall stand revived with such powers, duties and obligations as if it had not been dissolved; and all acts and proceedings of its officers, directors and shareholders, acting or purporting to act as such, which would have been legal and valid but for such dissolution, shall stand ratified and confirmed.” Ill. Rev. Stat., 1983 Supp., ch. 32, par. 12.45(d).

For the foregoing reasons, this cause is remanded to the circuit court of St. Clair County for further proceedings consistent with this opinion.

Remanded.

JONES and KASSERMAN, JJ., concur.