author: SMITH, J.

text:
    The People of the State of Illinois, Plaintiff-Appellant, v. Thomas Addison, Jr., Defendant-Appellee.
    Gen. No. 10,750.
    Fourth District.
    October 6, 1966.

      Basil G. Greanias, State’s Attorney of Macon County, of Decatur, for appellant.
    Baird & Latendresse, of Decatur (Donald G. Baird, of counsel), for appellee.
   SMITH, J.

Appeal on dismissal of an indictment for forgery. It is said that there is a fatal variance between the “purport” and “tenor” clauses. In forgery indictments the instrument or “document apparently capable of defrauding another,” for obvious reasons, must somehow be described, and it can be done in two ways, either by its purport or tenor, or for that matter, by both. A “purport description” is narrative in style and describes generally the instrument in its salient aspects, while a “tenor description” is either an exact copy — xerox, etc., or typed facsimile in haec verba, as the older cases say. Here, we have examples of both clauses and there’s the rub, we are told, because they are inconsistent.

The “purport description” charges that defendant “knowingly made a check apparently capable of defrauding another, in such a manner that it purported to have been made by Marge Jones.” The “tenor description” follows immediately — “said check being in the words and figures following, to-wit:” and is a typed facsimile which discloses a check signed by “Robert A. Packer,” payable to “Marge Jones,” and continues: “and endorsed on the back thereof as follows:

“ ‘Marge Jones Jim Jones 2236 East Olive,’ ”

It is true, if we focus one eye on the so-called purport clause and the other on the tenor, a surface disparity does appear — one eye reads Marge Jones as the maker, the other, Robert A. Packer. But if we rid ourselves of this strabismus and read both descriptions as one, in the context of the forgery statute, the inconsistency vanishes and what we have is simply a check drawn by Packer, payable to Jones and endorsed by her. The action words of the statute are “makes or alters,” and it would follow necessarily that the verb “make” has to be given a very broad definition indeed, if the evil the statute is aimed at is to be remedied at all. Thus, “makes” includes “endorses,” and if so, the text of the purport and tenor clauses in this context is a charge that Jones’ endorsement was forged, which is the making of a “document,” as such is defined in § 17-3 (c) of the Criminal Code of 1961 (c 38, Ill Rev Stats 1965).

It might seem that we are overruling People v. Nickols, 391 Ill 565, 63 NE2d 759, but we are not, and of course, we shouldn’t. In Nickols, the purport clause described an instrument “apparently capable of defrauding,” while the tenor clause disclosed an instrument that wouldn’t defraud anyone. After pointing out the nonnecessity of describing an instrument by both its purport and tenor, Nickols concludes, “yet where it [the indictment] attempts to do so, the two descriptions must be consistent and it must appear from the face of the indictment that they refer to the same instrument.” Here this is so. Not only, as we have pointed out, need we not dissect this indictment, but even if we do, the hypercritical would have to agree that the purport and tenor clauses do refer to the same instrument, which is, as we have said, a check drawn by Packer, payable to Jones, and endorsed by Jones.

An indictment performs the office of advising the chargee of the charge, and it is also said that it must be explicit enough to bar a second prosecution for such offense, and while in no way belittling this office, the indictment itself, as proof that such is the case, will hardly carry the day. It is unreal to expect an indictment all by itself to stand as a bar to a second indictment for the same offense. Ordinarily, when such is suspected, evidence is heard de hors the indictment, to use lawyers’ language, and § 114-1 (d) of the Code of Criminal Procedure so provides. The Nickols’ rule is admittedly technical, and we detect a latter-day emphasis, or thrust, to use a much overworked word, that such preciosity in criminal pleading is no longer in vogue. At least we read People v. Blanchett, 33 Ill2d 527, 212 NE2d 97, as saying so, and such emphasis and holding is in accord with one purpose of the Code, to “secure simplicity in procedure.” Section 101-1, ch 38, Ill Rev Stats 1965. This indictment sets “forth the nature and elements of the offense charged,” as provided in § 111-3 of the Code in sufficient detail and consistency to meet both offices. One could, of course, conjure up, reductio ad absurdum, a great many bizarre possibilities, if purport and tenor are to be considered alone and without regard to the other. But when we read them together in the context of the forgery statute, and in the light of the very purposes for an indictment, we believe that we have here the prerequisities of a good indictment. Accordingly, the judgment below is reversed and the cause remanded with directions to reinstate the indictment.

Reversed and remanded with directions.

TRAPP, P. J. and CRAVEN, J., concur.


source: Caselaw Access Project

license: Public Domain

text:
    Shiloh L. Strouse, Plaintiff-Appellant, v. Betty L. Strouse, Defendant-Appellee.
    Gen. No. 10,763.
    Fourth District.
    October 6, 1966.
    Dunn, Dunn, Brady, Goebel, Ulbrich & Hayes, of Bloomington, for appellant.
    Campbell, Markowitz & Lawrence, of Bloomington (Robert Markowitz, of counsel), for appellee.
   SMITH, J.

This is an appeal by the father from a decree which for the first time judicially determined the custody of the three children and awarded them to the mother. Prior to this petition, the custody had been a matter of agreement between the parties and two of the children had been with the father and one with the mother. The principle contention of the appellant is that the trial court abused his discretion in uprooting the two girls, in placing the family together and that the best interests of the children do not require it.

Since Nye v. Nye, 411 Ill 408, 105 NE2d 300, the guiding star in child custody cases is the best interest of the child — a principle easy to enunciate and not so easy to apply. In the instant case, the qualifications and character of the respective parties are not in dispute nor is there any question about the adequacy and sufficiency of each home. At the time of the divorce decree in October 1963, Debra was 10 years old, Linda 8 and Roger 13/2- The father obtained the divorce on the grounds of desertion and in the property settlement agreement retained the home. No judicial determination of custody was made but the contract of the parties provided for joint custody and it was agreed “that the children shall not for any extended period of time be separated to live in different households.” The wife who had gone to live with her mother returned to the home during the daytime and looked after the children until the father returned. The wife remarried in September 1964, and a supplemental agreement was entered into whereby the girls remained with the father and Roger went to his mother with the right in the father to have the boy two weekends each month and for the month of August each year. The daughters were to reside with the father during the school year and with the mother for the months of June and July. This agreement likewise recited that “the parties feel it to be for the best interest of their said children that the children remain together as much as possible.” It will be noted that this was possible during June, July and August. It was further agreed that the children “be together on all holidays, to the extent that the same is possible.” The father remarried in May 1965, and in October of that year the mother filed her petition for custody of all three children. The parents could no longer agree on custody provisions or the right of visitation.

This case is unique in the solicitude the parents displayed for the best interests of the children and their desire that they be kept together as much as possible. A court could do no better than emulate these desirable principles by decree. It is true that the decree now requires a change of schools by one of the girls and that they, in chambers, expressed their liking for the arrangement as it had been. These are proper considerations but not conclusive. The girls were reaching puberty where the advice and counsel of their own mother outweighs a multitude of considerations. The mother is a nurse by training and a full-time mother.

The child’s preference is a proper factor to be considered by the court but per se is not sufficient standing alone to warrant a change of custody once adjudicated. Stickler v. Stickler, 57 Ill App2d 286, 206 NE2d 720. To categorically hold otherwise is to abdicate the responsibility of the court in favor of those who have neither the legal capacity nor the expertise to exercise the quality and degree of discretion required. We see no impelling reason for denying the application of this rule to instances of original adjudication as well as to change of custody cases.

The trial court relied heavily on Nye v. Nye, 411 Ill 408, 105 NE2d 300; Miner v. Miner, 11 Ill 43; Draper v. Draper, 68 Ill 17; and Jayroe v. Jayroe, 58 Ill App2d 79, 206 NE2d 266, in awarding the custody to the mother. We do not understand the court to have laid down a blanket unyielding rule but only that custody in the mother is preferred where small children, particularly daughters, are concerned, everything else being equal. The reasons behind the judicial adoption of this philosophy are sociological, and it is so stated in those cases and so long as this sociological concept is accepted, the law’s policy in this regard is no longer debatable. It seems clear to us that the trial court considered all factors and concluded, as the parties in their previous contracts had asserted, that the best interest of the children required that they be kept together if possible and feasible. The trial court saw and 'heard the witnesses. The children expressed their love for both parents. The uprooting basically requires a change of school for one girl only. The church choice of the children on this record is their own to make. We cannot say the trial court abused his discretion nor are we at liberty to set aside his decree unless it is against the manifest weight of the evidence. The judgment is affirmed.

Affirmed.

TRAPP, P. J. and CRAVEN, J., concur.


author: MR. PRESIDING JUSTICE SULLIVAN

text:
    Robert J. Flannery, et al., Plaintiffs-Appellees, v. Arthur C. Allyn, Jr., Defendant-Appellant.
    Gen. No. 50,345.
    First District, Third Division.
    October 6, 1966.

      Thomas R Mulroy, Edward W. Rothe and Lewis E. Striebeck, Jr., of Chicago (Hopkins, Sutter, Owen, Mulroy, Wentz & Davis, of counsel), for appellant.
    John J. Burns, Jr. and William J. Harte, of Chicago, for appellees.
   MR. PRESIDING JUSTICE SULLIVAN

delivered the opinion of the court.

This involves an appeal seeking to reverse judgments entered against the defendant in favor of each of the plaintiffs in the amount of $10,000 in an action of libel.

This case was previously tried and appealed to this court, and the judgments were reversed and the cause remanded to the trial court. Flannery v. Allyn, 47 Ill App2d 308, 198 NE2d 563. In the first appeal this court held that the letter of the defendant relating to the plaintiffs was a qualifiedly privileged communication and that the plaintiffs were required to prove actual malice to justify a recovery.

The defendant raises two points, (1) the trial court applied a constitutionally defective definition of actual malice, and (2) the judgments should be reversed, without remand, for lack of clear and convincing proof of actual malice.

The plaintiffs in their brief contend that the defendant cannot urge for the first time in the appellate court defenses based upon any constitutional issues since they were not raised in the trial court, and were not properly-preserved for review; that the defendant is restricted to the theory upon which the case was tried in the trial court, and cannot shift his theory or assume a different position in the appellate court; that the plaintiffs were members of a police force and were not public officials within the meaning and purview of the United States Supreme Court decisions, and the application of these decisions in no way applies to them; that the issue of whether the defendant was or was not guilty of actual malice is a question of fact to be determined by the jury; that actual and express malice may be shown by failure to make a proper investigation, ill will, mode and extent of publication and falsity of publication, and that since the jury was directed by defendant’s peremptory instruction, that in order for them to find in favor of the plaintiffs, they must find that the defendant was actuated by actual malice in writing the letter, it must be conceded that the jury by the verdicts in favor of the plaintiffs found that defendant was actuated by actual malice.

The pertinent facts in this case are the following: On July 21, 1958, the defendant dictated and sent the following letter to Chief George Otlewis of the Chicago Park District :

“Chief George Otlewis
Police Division
Chicago Park District
Administration Building
425 East 14th Boulevard
Chicago 5, Illinois
Prior to noon on March 23rd on the Outer Drive, the officers driving Police Car #920, license #M7716, solicited a check from my daughter, a copy of which is enclosed, when the car in which she was riding was stopped, for ‘speeding.’ When she asked the officers to whom the check should be made, they said, ‘cash, what else.’ The check was pre-dated March 22nd because the 23rd was a Sunday. Further, this solicitation was done in front of witnesses.
I regret having to advise you of this situation at such a late date, but you will note that the check was not put through the bank until the 31st, and since my daughter is away at school, and we just recently returned from a trip to Hawaii, there was no opportunity to present this matter until now. I expect disciplinary action to be taken promptly. The newspapers have not been advised, and I have no intentions at the present time of doing so.
A. C. ALLYN, JR. (signed)
A. C. ALLYN, Jr.
djd”

In July, 1958, while helping his daughter, Dorothy, balance her bank statement, the defendant, Allyn, saw a check drawn by his daughter in the amount of $15, payable to cash, and bearing an endorsement of a bar on North Clark Street. There was no other endorsement on the check. The defendant asked his daughter for an explanation. Dorothy said that she had given the check to a policeman in payment of a “fine” when a car driven by Paul Power, in which Dorothy and Sue Owens were passengers, had been stopped on the Outer Drive for speeding. Dorothy told her father that the fine was $25 but that Power had only $10, and she wrote a check for $15 to make up the difference. The testimony of the defendant and his daughter are contradictory as to whether the check was given to the policeman on the Outer Drive or outside of the Park District Police Station. However, the defendant, in his brief, under the heading “What Actually Happened” states the following:

“What Actually Happened
“What actually happened was that Paul Power did not have his driver’s license and, consequently, plaintiffs had him drive to the North Park District Station in Lincoln Park for booking. There, Officer Moore issued him a ticket for speeding and cash bail was fixed at $25. Power had only $10 and Dorothy and Sue had no money. Dorothy asked if she could write a check for the difference, but was told that the Police Department did not accept checks. She tried to cash a check in the neighborhood, but, it being Sunday morning, was unable to do so. Finally, although not a customary thing to do, Officer Flannery decided to help the young people and personally cashed her check. Power was thus able to make bond and avoid being locked up overnight.”

When Allyn’s letter was received Chief Otlewis turned it over to Captain Northen for investigation and recommendation. It was determined that plaintiffs were assigned to car 920 on March 23rd, the date referred to in the Allyn letter. An investigation was conducted and it was determined that a ticket had been issued to Power and that Power had posted bond. Captain Northen then called Chief Otlewis and said he was forwarding a report with the recommendation that the plaintiffs should be commended rather than disciplined. Captain Northen also called the defendant telling him of what he had learned, arid Allyn said that he would not be satisfied until he had checked the story with Paul Power, who was still in Canada. On July 21, 1958, Allyn was unable to reach Paul Power, the driver of the car which had been stopped for speeding, since he was in Canada and could not be reached by telephone or telegraph. After talking to Power, Allyn told Captain Northen that he would write Chief Otlewis withdrawing his complaint. On August 28, 1958, the defendant wrote the following letter to Chief Otlewis of the Chicago Park District:

“Chief George A. Otlewis
Chicago Park District
Administration Building
425 East 14th Blvd.
Chicago 5, Illinois
Please refer to my letters to you dated July 21st and July 28th of this year.
I have now had an opportunity to discuss the matters contained in those letters in detail with the driver of the vehicle. It is now clear that the apparent infraction of the rules by your officers arose from a failure on the part of the driver of the vehicle, and also on the part of the officers not to disclose to my daughter the nature of the solicitation of her check. The officers involved did generously offer to the driver of the vehicle to cash a check to permit the driver to put up the necessary bond. The bond was put up and a receipt was given therefor.
I do not think that it was wise for the officers to cash a personal check, but I must say that it was quite generous of them to do so. Thank you for your cooperation in this regard.
A. C. ALLYN, JR.
A. C. Allyn, Jr.
djd
cc: Captain John Northen”

In the previous appeal in this case it was pointed out by us that only one interpretation could be placed upon the letter, namely, that the defendant was accusing the officers of soliciting and accepting a bribe, which amounts to an imputation of the commission of a crime, and it was also held in the previous case that many police officers in the police station, who were not assigned to investigate the matter, read the defendant’s letter, and that the persons who read the letter knew that it referred to the plaintiffs. There is no doubt as to the publication of the letter.

In the previous opinion in this case, Flannery v. Allyn, supra, on page 319 we said:

“In a case where there is a qualified privilege and malice is therefore not inferred, the burden of proving malice is upon the plaintiff, and this must be proven to the satisfaction of the jury. This case must be retried because we hold that the letter was qualifiedly privileged, and therefore the jury must determine whether or not there was actual malice on the part of the defendant.”

The evidence in this case showed that it was common knowledge at the North Park Station that plaintiffs had been accused of taking a bribe, and they were shunned by their fellow officers and the wives of their fellow officers, which caused them considerable mental anguish. This despite the fact that they were completely exonerated.

The plaintiffs in their brief argue that the defendant cannot in the appellate court for the first time urge defenses which were not properly presented to the lower court, and that defendant’s failure to raise the constitutional defenses at the trial constitutes a complete waiver of such constitutional defenses. The plaintiffs also point out that the defendant at no time presented to the trial court any defenses based on constitutional issues. We believe that we must discuss this point at the outset. The constitutional issues referred to by the defendant arise out of the decision of the United States Supreme Court in New York Times Co. v. Sullivan, 376 US 254, decided March 9, 1964. This was a libel action, brought by the Montgomery, Alabama Commissioner of Police, based upon a full page advertisement appearing in the Times, which contained false statements concerning the handling of racial demonstrations by the Montgomery police. A check of the Times’ own files would have shown some of the statements in the advertisement to be false and no effort was made by the Times to confirm the factual accuracy of the statements in the advertisement. The Supreme Court of the United States in that case resolved a conflict among the libel laws of the various states regarding criticism of public officials by holding that the free speech and free press guarantees of the First Amendment to the Constitution are applicable in measuring the permissible scope of the civil libel laws of the States, and that the constitutional guarantees require a federal rule that prohibits a public official from recovering damages for a defamatory falsehood relating to his official conduct unless he proves that the statement was made with actual malice, that is, with knowledge that it was false or with reckless disregard of whether it was false or not.

A later United States Supreme Court decision, Garrison v. Louisiana, 379 US 64, held that neither intent to injure nor lack of due care was sufficient to meet the constitutional test of the Times case, and that only an intent to injure through the calculated use of a falsehood or the reckless disregard of truth would destroy the constitutional protection.

The basis of the constitutional privilege set up by the Supreme Court of the United States in the Times case, supra, related to a public official and there can be little doubt that a Commissioner of Police, who was an elected official, is a public official. The question of whether police officers or patrolmen can be considered public officials is one of the issues raised in this case on appeal, but that issue can be reached only if defendant has not waived the constitutional privilege by failing to present a defense based thereon during the trial. The case of New York Times Co. v. Sullivan, supra, was decided approximately three months prior to the second trial in this case, but apparently did not come to the attention of the attorney who tried the case for the defendant in the trial court, and the definition of malice as therein set forth was not presented to the court on the trial of this case. The question of whether the plaintiffs were public officials was not raised by the defendant, was not in issue and was not decided by the trial court in this case.

The defendant contends that plaintiffs’ instructions 4 and 7 permitted the jury to infer actual malice from circumstantial evidence, such as failure to make a proper investigation, ill will, mode and extent of publication and falsity. Plaintiffs’ instruction 4 was as follows:

“A fact may be proved by circumstantial evidence. Circumstantial evidence consists of proof of facts or circumstances which give rise to a reasonable inference of the truth of the fact sought to be proved.”

Plaintiffs’ instruction 7 was as follows:

“The Court instructs the Jury that you may take into consideration evidence, if any, of failure to make a proper investigation, ill will, mode and extent of publication and falsity as tending to show actual or express malice.”

The attorney for the defendant objected to plaintiffs’ instruction 4 on the basis that there was no circumstantial evidence in the record showing any personal animosity or ill will between the parties. This objection was overruled. The attorney for the defendant, likewise, objected to plaintiffs’ instruction 7 in that he said it was not a proper statement of the law in this case, and added, “The Appellate Court has ruled that this is a qualifiedly privileged communication and that, in order for the plaintiff to sustain his action, he must prove actual malice.” The objections to plaintiffs’ instructions 4 and 7 did not raise a constitutional privilege under the First Amendment to the Constitution of the United States. This objection, of course, would be material only if the plaintiffs were public officials.

The court gave the following two peremptory instructions at the request and on behalf of the defendant, as follows:

“Instruction #2
“The Court instructs the Jury that the letter sued upon in this case is a qualifiedly privileged communication and you are directed to find for the defendant unless you find from the evidence that defendant was actuated by actual malice in making such communication. In this connection you are instructed that the burden of proof is upon the plaintiff to establish by a preponderance of the evidence that defendant was actuated by actual malice in writing the letter. You are further instructed that actual malice means ill will or any wrongful or wicked motive which prompts or induces the act complained of.”

Instruction 9 reads as follows:

“The term ‘malice’ is applied to a wrong which is inflicted with an evil intent, design or purpose and implies that the guilty party was actuated by improper or dishonest motives and intended to perpetrate an injury or wrong on another.
“In order to sustain this action for libel, it must be proved by a greater weight of all the evidence that the letter was written by the defendant with malice and, if not so proved, you should find for the defendant.”

The court also at the defendant’s request gave the following instruction :

“Instruction #6
“ ‘Malice in fact’ means ill will towards a particular person, an actual intention to injure or defame him, and in the instance of a qualifiedly privileged communication, an action cannot be sustained without proof of actual or express malice — malice in fact.”

By these three instructions the jury was directed to find for the defendant unless it found from the evidence that the defendant was actuated by actual malice in writing the letter.

Both the plaintiffs’ and defendant’s instructions were based upon the law of Illinois relating to actual malice, and the case was tried below on that theory.

“Actual malice may be inferred from falsity, absence of proper cause or other relative circumstances, or it may be deduced from the libel itself or from the communication of which it forms a part, and all circumstances surrounding the transactions are proper for consideration, including the failure to make a proper investigation.” ILP Vol 33, Slander and Libel, § 114, page 427.

In Van Norman v. Peoria Journal-Star, Inc., 31 Ill App2d 314, 175 NE2d 805, the court said on page 327:

“The existence of actual malice may be inferred where a defamatory publication is made without proper cause or excuse, (John vs. Tribune Co., 28 Ill App2d 300, 316, 171 NE2d 432, 441) or from falsity, absence of proper cause or other relative circumstances or it may be deduced from the libel itself, or from the communication of which it forms a part.”

The court continued on page 330:

“Instruction No. 19 told the jury ‘that you may take into consideration the evidence, if any, of failure to make proper investigation, ill-will, repetition of the libel, mode and extent of publication, and falsity as tending to show actual or express malice.’ The objection to this instruction is that it improperly uses the word ‘ill-will’ and also the phrases ‘extent of publication’ and ‘a proper investigation’ and leaves to the jury too wide a latitude to conjecture whether the evidence shows actual malice. The criticism of the use of the words ‘ill-will’ and ‘extent of publication’ was not made at the conference on instructions. In Cook v. East Shore Newspapers, Inc., 327 Ill App 559, 64 NE2d 751, it is said: (p 590) ‘The existence of malice may be inferred. Actual malice may be inferred from falsity, absence of proper cause, or other relative circumstances, or it may be deduced from the libel itself, or from the communication of which it forms a part. All circumstances surrounding the transaction are proper for consideration, including the failure to make a proper investigation.’ In the instant case the defamatory article was admittedly false and there is evidence in the record of the other enumerated items which this instruction told the jury they were authorized to take into consideration in determining whether defendant was actuated by express malice. There is no merit in defendant’s objection to this instruction.”

In Cook v. East Shore Newspapers, Inc., et al., 327 Ill App 559, 590, 591, 64 NE2d 751, the court said:

“The existence of malice may be inferred. Actual malice may be inferred from falsity, absence of proper cause, or other relative circumstances, or it may be deduced from the libel itself, or from the communication of which it forms a part. All circumstances surrounding the transaction are proper for consideration, including the failure to make a proper investigation. (33 Am Jur pp 247 to 251, chapter on Libel and Slander, pars 266 and 267.) In the case of Chambers v. Leiser, 43 Wash 285, 86 Pac 627, 10 Ann Cas 270, 54 ALR 1148, the court said:
“ ‘It was therefore incumbent upon plaintiff, by means of the matters in the letter or by any other competent evidence, to show that defendant had been actuated by malice or ill will towards plaintiff, or had included in said communication false and libelous matters, not pertinent or reasonably necessary to the subject matter which it was defendant’s privilege to communicate, or that defendant had not made reasonable inquiry and investigation, but had written recklessly or knowingly, falsely and not in good faith; and upon establishing any of these matters, the plaintiff would have been entitled, on account of the presumption of malice, falsity, and injury arising from the matter libelous per se, to recover, unless the defendant should have established the truth of the letter’s libelous contents.’ ”

There can be no doubt but that this case was tried on the theory that the letter sent by the defendant was qualifiedly privileged and that actual malice had to be shown by the plaintiffs, and from the record before us it cannot be said that the defendant relied upon a constitutional privilege, and the failure of the defendant to raise constitutional defenses at the trial constituted a waiver of such constitutional defenses.

“The general rule repeatedly adhered to by the Illinois courts is that issues, points, or contentions not presented in the trial court and properly preserved for review will not be considered on appeal. Stated in another way, the action of the trial court in failing to do what it was never asked to do cannot be assigned as error.
“The general rule that questions not presented in the trial court will not be considered on appeal applies to constitutional questions. Accordingly, the question of the constitutionality or validity of a statute, or the question of the constitutionality or validity of a municipal ordinance, or rule of the court, will not be considered by the reviewing court where the question was not raised in the trial court.” ILP Vol 2, Appeal and Error, § 181.

In Pennsylvania E. Co. v. Illinois Brick Co., 297 US 447, the Supreme Court found that no constitutional question was, by answer, motion or otherwise, expressly raised in the trial court. The case was taken directly to the Supreme Court of Illinois and was transferred by that court to the appellate court. The order of transfer did not specify the grounds on which it was based, but the petitioner stated that the Supreme Court necessarily held the constitutional questions had not been properly raised and that on the oral argument, the Chief Justice stated that the transfer would be made because of petitioner’s failure properly to raise and preserve the constitutional questions. The court then stated: “As the highest court of the State declined to consider them because not raised in the circuit court or presented to it in accordance with practice that unquestionably was well established and reasonable, this court is without jurisdiction to consider either of them.”

In Kioutas v. City of Chicago, 59 Ill App2d 441, 208 NE2d 587, this court held that a party will not be permitted to argue on appeal a defense not interposed by his answer, and further, the theory upon which the case is tried below may not be changed on review.

In Curtis Pub. Co. v. Butts, 351 F2d 702, the court held that a defendant waived any right it may have on appeal to challenge the verdict and judgment on any of the constitutional grounds appearing in New York Times Co. v. Sullivan, 376 US 254, where it had failed to raise the defenses based on constitutional issues in the trial court. The court in the Butts case, supra, on page 711 said:

“Without expressing any opinion as to whether Times fundamentally changed the substantive law applicable to libel cases, or whether the charge on malice given by the trial court was adequate under Times, or whether Butts was the kind of ‘public official’ contemplated by Times, or whether a reversal might otherwise be required if the constitutional issues had been timely presented, we hold that Curtis has clearly waived any right it may have had to challenge the verdict and judgment on any of the constitutional grounds asserted in Times.”

See also Department of Public Works and Buildings v. The Chicago Title and Trust Co., 408 Ill 41, 95 NE2d 903; Zelney v. Murphy, 387 Ill 492, 56 NE2d 754; People v. Lipski, 390 Ill 70, 60 NE2d 422.

The court in giving defendant’s instruction #2, herein-before set forth, defined actual malice as meaning ill will or any wrongful or wicked motive which prompts or induces the act complained of. That instruction was not based upon Times’ definition of actual malice, namely, that the defamatory falsehood relating to a public official is constitutionally privileged unless plaintiff proves actual malice on the part of the defendant, that is, with knowledge of its falsity or with reckless disregard of whether it was false or not. We must, in view of the foregoing, conclude that the constitutional privilege sought to be urged by the defendant at this time has been waived by his failure to preserve the question by answer, motion, or in any other manner, in the trial court.

It will be unnecessary for the purpose of this opinion, therefore, to decide whether the two plaintiffs, who were policemen, come within the category of public officials, as was contemplated by the Supreme Court of the United States in New York Times Co. v. Sullivan, supra.

We next consider the question whether the evidence adduced by the plaintiffs in this case was, as a matter of law, sufficient to support a finding of actual malice by the jury.

The defendant contends that the trial court’s definition of malice was grossly insufficient in that the court instructed the jury that it could take into consideration “failure to make the proper investigation,” “ill will,” “mode and extent of publication,” and “falsity” as tending to show actual or expressed malice. The defendant also contended that the only proper instruction would have been that set forth in New York Times Co. v. Sullivan, supra, wherein the Supreme Court said on page 279:

“The constitutional guarantees require, we think, a federal rule that prohibits a public official from recovering damages for a defamatory falsehood relating to his official conduct unless he proves that the statement was made with ‘actual malice’— that is, with knowledge that it was false or with reckless disregard of whether it was false or not.”

As we have heretofore pointed out, the constitutional privilege was waived in this case, and the case was tried on the basis of actual malice as defined by Illinois courts. In our previous opinion in this case (Flannery v. Allyn, 47 Ill App2d 308, 319, 198 NE2d 563), we cited from the case of Gassett v. Gilbert, 6 Gray (Mass) 94, 54 ALE 1149, wherein the following was said:

“The sole duty of the court, therefore, in such cases, is to determine whether the occasion, in the absence of actual malice, would justify the publication. If so, then it is incumbent on the plaintiff to prove the existence of malice, in order to sustain his action; and this must be shown to the satisfaction of the jury, whose exclusive province it is to pass upon the question. But it is not necessary to prove it by extrinsic evidence. It may be inferred from the relation of the parties, the circumstances attending the publication, and even from the terms of the publication itself.”

In Adair v. Timblin, 186 Ill App 133, the court stated that to find that a communication is qualifiedly privileged means no more than that the occasion of making it rebuts the prima facie inference of malice arising from the publication, and places on the plaintiff the onus of proving malice in fact; but not proving it by extrinsic evidence only; he has still the right to require that the alleged libel itself be submitted to the jury to judge whether there is evidence of malice on the face of it.

In the letter of July 21, 1958, addressed to Chief Otlewis the defendant accused the plaintiffs of soliciting the check from his daughter, and then made the inference that there had been no traffic violation which would have justified the plaintiffs stopping the car, since he placed the word “speeding” in quotes. There is no evidence in this case that Paul Power was not speeding at the time he was stopped by the plaintiffs on the Outer Drive. The defendant then proceeded in his letter to state “when she asked the officers to whom the check should be made, they said, ‘cash, what else.’ ” There is no evidence in this case that the police officers used the phrase “cash, what else.”

The testimony of Dorothy Allyn and Sue Owens, the other occupant of the car, was that when the officer had agreed to cash Dorothy Allyn’s check she asked how the check should be made out and the officer said to make it out to cash. The defendant must have known that the phrase “cash, what else” was not correct, or there would have been some evidence offered in the trial of this case to cover that phrase. It was possible for the jury to believe that by using that type of language the defendant sought to do harm to the plaintiffs, and was motivated by actual malice. The defendant in the same letter stated, “I expect disciplinary action to be taken promptly,” and “The newspapers have not been advised, and I have no intentions at the present time of doing so,” which would tend to show that the defendant had already adjudicated the guilt of the plaintiffs in his mind. The implication in the letter is clear that if the plaintiffs were not disciplined the defendant was going to divulge his story to the newspapers, and that Chief Otlewis should take immediate action. Even the letter of August 28, 1958, written by the defendant to Chief Otlewis, after the defendant had determined that the plaintiffs had not been guilty of any wrongdoing but had done a favor for his. daughter, could have been construed by the jury as showing actual malice. In it the defendant said, “It is now clear that the apparent infraction of the rules by your officers arose from a failure on the part of the driver of the vehicle, and also on the part of the officers not to disclose to my daughter the nature of the solicitation of her check.” The evidence does not disclose that any rule of the Police Department had been violated. One of the plaintiffs testified that the Desk Sergeant cashed as many as twelve checks a day, depending upon the persons. Also, the accusation by the defendant in his second letter to Chief Otlewis, wherein he again refers to the “solicitation of her check,” could have been construed by the jury as evidence of malice on the part of the defendant. All of the evidence in this case, including the testimony of Dorothy Allyn and Sue Owens, was to the effect that the police officers had not solicited the check but that Dorothy Allyn suggested and volunteered to give a check.

In a pretrial deposition of the defendant, which was read at the trial, the following questions were asked:

“Q Was it your intention, if you knew at the time they put up the money to make bond, you would never have written that letter ?
A I would not have written that precise letter, no.
Q You would not ask in the letter these men be subjected to disciplinary action?
A I am not sure exactly what I would have written.
Q Mr. Allyn, would you have written that letter to Chief Otlewis that these men be subjected to discipline when they had done a favor for Mr. Power and indirectly to your daughter?
A I have no idea what I would have written to them. I think I would have written them.
Q And asked for disciplinary action ?
A That is possible, but I don’t know.”

As was pointed out in the previous opinion in this case, (Flannery v. Allyn, 47 III App2d 308, 319, 198 NE2d 563) “In a case where there is a qualified privilege and malice is therefore not inferred, the burden of proving malice is upon the plaintiff, and this must be proven to the satisfaction of the jury. This case must be retried because we hold that the letter was qualifiedly privileged, and therefore the jury must determine whether or not there was actual malice on the part of the defendant.” This the jury has done and the court properly entered judgments on the verdict.

Judgments affirmed.

SCHWARTZ and DEMPSEY, JJ., concur.


author: JUSTICE BURKE.

text:
    Anthony Lango, Plaintiff-Appellant, v. Division Paint & Garden Supply Co., a Corporation, Goshen Churn & Ladder, Inc., a Corporation, and Milo Lang, Defendants-Appellees.
    Gen. No. 49,440.
    First District, Second Division.
    October 11, 1966.

      Philip H. Corboy and James P. Chapman, of Chicago, for appellant; Tom L. Yates, of Chicago (Carl E. Abrahamson, of counsel), for appellees.
   Opinion by

JUSTICE BURKE.

Not to be published in full.


author: PRESIDING JUSTICE BRYANT.

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Keith Robert Adell, Defendant-Appellant.
    Gen. No. 50,385.
    First District, Second Division.
    October 11, 1966.
    Gerald W. Getty, Public Defender of Cook County, of Chicago (Marshall A. Patner, Frederick F. Cohn and James J. Doherty, Assistant Public Defenders, of counsel), for appellant; Daniel P. Ward, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and Truman Larrey, Assistant State’s Attorneys, of counsel), for appellee.
   Opinion by

PRESIDING JUSTICE BRYANT.

Not to be published in full.


author: MR. PRESIDING JUSTICE BRYANT BURKE, J.,

text:
    Jayne Blowitz, Plaintiff-Appellee, v. Milroy R. Blowitz, Defendant-Appellant.
    Gen. Nos. 50,829, 50,830, 51,159.
    First District, Second Division.
    October 11, 1966.
    Rehearing denied November 3, 1966.

      Leon C. Wexler, of Chicago, for appellant.
    L. Louis Karton and Marovity, Powell & Pizer, of Chicago, for appellee.
   MR. PRESIDING JUSTICE BRYANT

delivered the opinion of the court.

This appeal comes from the Circuit Court of Cook County. Defendant-appellant is appealing both the order reinstating an original grant of $500 per month alimony and the order granting $750 for attorney’s fees incurred by the wife in answering this appeal. The relevant facts are as follows: Milroy R. and Jayne Blowitz were married for twelve years before their divorce in 1960. At the time the divorce decree was handed down Jayne Blowitz was awarded the sum of $500 per month as alimony. Three years later, on October 29, 1963, Mrs. Blowitz agreed to a temporary reduction of the alimony payments to $150 per month. This temporary reduction was extended from time to time until June 11, 1965, when the order from which this appeal is taken was handed down, reinstating the $500 per month alimony as agreed to by the parties at the time of the original divorce decree.

Our law is clear as to the nature of alimony. Alimony is based on the social and economic theory that a man must support his wife. It is carved out of the husband’s estate or earnings. It does not arise from any business transaction, or out of contract, but from the relation of marriage. It is founded not'on contract, but on the natural and legal duty of the husband to support his wife. The general obligation to support is made specific by the decree of the court of appropriate jurisdiction. Maginnis v. Maginnis, 323 Ill 113, 153 NE 654; Herrick v. Herrick, 319 Ill 146,149 NE 820.

Our law relating to the modification of the divorce decree as to alimony is also clear. In Larson v. Larson, 21 Ill App2d 264, 157 NE2d 689, the court said (p 693) :

“The court has power to modify the alimony award whenever substantial changes in the conditions and circumstances of the parties render modification necessary, Garrett v. Garrett, 252 Ill 318, 96 NE 882; Evar v. Evar, 330 Ill App 247, 70 NE2d 442. Such award cannot be altered unless it is shown that the conditions and circumstances of the parties have changed materially since the decree was rendered, Smith v. Smith, 334 Ill 370, 166 NE 85; Buehler v. Buehler, 329 Ill App 239, 67 NE2d 708.”

In Gregory v. Gregory, 52 Ill App2d 262, 202 NE 2d 139, the court said (p 142):

“While the court may not change the amount past due under a decree of the court, it does have the power to modify the terms of a decree as to alimony and maintenance as shall appear reasonable and proper, the modification to apply to future payments. Chapter 40, Section 19, Illinois Revised Statutes. Our courts have laid down the rules upon which such modification shall be made. It must be shown that conditions and circumstances of the parties have materially changed since the entry of the decree, so as to make the modification equitable. Mayes v. Mayes, 23 Ill App2d 513, 163 NE2d 235; Cole v. Cole, 142 Ill 19, 31 NE 109, 19 LRA 811; Cahill v. Cahill, 316 Ill App 324, 45 NE2d 69; Herrick v. Herrick, 319 Ill 146, 149 NE 820; Chalmers v. Chalmers, 31 Ill App2d 1, 175 NE2d 613. When substantial changes in the conditions and circumstances of the parties render modification necessary, the court has the power to so modify. Larson v. Larson, 21 Ill App2d 264, 157 NE2d 689; Garrett v. Garrett, 252 Ill 318, 96 NE 882. The power to modify the decree is a continuing power to be exercised in accordance with the needs and circumstances of the parties. Larson v. Larson, 21 Ill App2d 264, 157 NE2d 689; De La Cour v. De La Cour, 363 Ill 545, 2 NE2d 896. The courts cannot arbitrarily or capriciously alter or change decrees involving alimony or support money. There must be changes in the conditions and circumstances of the parties.”

Defendant’s theory of this case is that a change in circumstances has taken place which warrants a continuance of the reduction in his alimony. It is his contention that the trial court erred in reinstating the original award. The facts which defendant relies on to support his position are as follows: Defendant had suffered two coronaries; he has had the expense of paying his son’s tuition at the Latin School in the amount of $1,000 annually, and has suffered financial reverses both from the termination of his law partnership and from the lack of success of a business venture. Approximately three years before the hearing at which the alimony award was reinstated, the defendant had opened a psychiatric hospital. At the time of the commencement of this project defendant had a net worth of well over $200,000. Since that time it is claimed that the hospital has suffered reverses because of which defendant has pledged his assets to the Continental Illinois Bank. Since the termination of his law practice, defendant has sustained a loss of income from that source, leaving him with a total spendable income, which he claims is approximately $7,000 annually, as opposed to an income of around $45,000 in 1960.

Defendant would like to have this court believe that he has only $7,000 spendable income annually. From the meager abstract about which we will have more to say later, it is impossible to determine exactly what defendant’s income is. However, it is most clear that defendant in this case has not been forced to reduce the style of living he has been accustomed to because of his alleged impecunious situation. Defendant still lives at 3950 Lake Shore Drive at an annual rent of $3,300 ($275 per month). Defendant still owns a Thunderbird automobile, and he still keeps a horse, and he is still paying his son’s education expenses. Defendant testified that he had to borrow money to maintain this standard of living. Yet, this defendant has been unable to pay his wife even the $150 per month that is called for under the modified decree.

From this set of facts, it cannot be said that the trial court abused its discretion when it reinstated the original award. For this court to ascertain the true state of defendant’s affairs we would be required to search the record because of the meagerness of the appellant’s abstract. A court of review is not required to go to the record to affirm. Richman Chemical Co. v. Lowenthal, 16 Ill App2d 568, 149 NE2d 351. Furthermore, appellant’s statement that the appellee can easily correct any error he feels exists in the abstract by filing a supplemental abstract is worthy of censure by this court. Appellants cannot sidestep the obligation of filing a sufficient abstract because Rule 6 permits the appellee to file an additional abstract. Gribben v. Interstate Motor Freight System Co., 38 Ill App2d 123, 186 NE2d 100.

However, even if we take defendant’s statements as to his finances as true, he has still failed to make out a case where he should be entitled to a reduction in his alimony payments. We reiterate that alimony arises from the relationship of marriage and is founded upon the natural and legal duty of the husband to support the wife. Maginnis v. Maginnis, supra. It is true that in the proper situation our courts will grant a reduction in alimony payments. Mayes v. Mayes, supra; Cahill v. Cahill, supra; Herrick v. Herrick, supra, and Chalmers v. Chalmers, supra. But the cases where relief has been granted have been cases where the change in circumstances is fortuitous and not brought on by the party seeking the reduction.

In Page v. Page, 32 Ill App2d 422, 178 NE2d 129, for example, the defendant at the time of the divorce decree was a highly successful physician employed by Standard Oil. Subsequent to the divorce decree defendant was operated upon for a partial gastrectomy, which resulted in a restriction of his activities, including the termination of his relationship with Standard Oil, and an uncontradicted reduction in his estimated income. In this case the court granted a reduction in the alimony award. Much the same situation prevailed in Herrick v. Herrick, supra. In that case the defendant was in good health at the time of the decree and was employed by the University of Chicago as a professor. Because of illness defendant incurred large bills for medical and traveling expenses and was forced to resign his position at the university. Again, the order affirming a reduction in alimony payments was affirmed.

Our courts have been sympathetic to pleas for a reduction in alimony payments where some fortuitous occurrence has diminished the ability of the husband to meet his obligation to his former wife. But where the change in circumstances has been brought about by the actions of the husband the courts have refused to allow a reduction. In Chalmers v. Chalmers, 31 Ill App2d 1, 175 NE2d 613, the court denied a prayer for a reduction in alimony where the defendant had remarried and had had a child by this second marriage, stating,

“From a legal standpoint, the first come(s) first and (the) second come(s) second. In other words, the first obligations must be met before the second obligations can or will be considered. The changes in conditions or circumstances should be involuntary and not voluntary. To hold that a defendant, charged by a decree to pay alimony to a former wife, could change the amount to be paid by involving himself with other obligations, would be to nullify the decrees and orders of the court.”

And in Hoover v. Hoover, 307 Ill App 590, 30 NE2d 940, the court likewise denied a modification of the alimony award, where it was shown that the illness that had reduced defendant’s earning power and ability to meet his obligation to his wife, had been brought on by his involvement in an illicit affair. The record in this case showed that the defendant had not only brought this illness upon himself but that he had given no consideration to the preservation of his estate for the benefit of his former wife.

While there is not a hint of immoral conduct on the part of the defendant in this case, it is clear that he has not given a thought to the interests of his former wife or to the obligation he has towards her. He has tied up his assets in a venture which his auditors advised him not to become involved with. And yet he has been unwilling to reduce his own standard of living so that he might comply with the decree that bound him to contribute to the support of his former wife. This is certainly not a case where the broad discretion of the Chancellor was abused.

Defendant also appeals the ruling of the Chancellor in regard to the allowance of attorney’s fees, incurred by the wife in the answering of this appeal. It is well settled that the allowance of attorney’s fees rests within the sound discretion of the trial court and will not be set aside absent a clear showing of abuse. Page v. Page, supra; Canady v. Canady, 30 Ill2d 440, 197 NE2d 42. Defendant’s contention that the attorney’s fees should not be allowed because of the lack of good faith of the plaintiff has absolutely no merit. Defendant was the party who began these proceedings when he first requested a modification of the alimony award. He is not to be heard to contest the awarding of attorney’s fees incurred in the exercise of the rights of the wife. If there has been a lack of good faith in these proceedings it is the opinion of the Court that such lack has been on the part of the defendant.

For the above reasons the order of the trial court is affirmed.

Order affirmed.

LYONS, J., concurs.

BURKE, J.,

concurs in part:

Under the changed financial and earnings position of the defendant the monthly payments of alimony should be reduced to $250. The attorney’s fees set by the Chancellor are reasonable.


text:
    People of the State of Illinois, Plaintiff-Appellee, v. Charles Bibbs, Defendant-Appellant.
    Gen. No. 51,316.
    First District, Second Division.
    October 11, 1966.
    Alan M. Kahn, of Chicago, for appellant; Daniel P. Ward, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and Ronald Sandler, of counsel), for appellee.
   Opinion by

JUSTICE BURKE.

Not to be published in full.


author: JUSTICE DEMPSEY.

text:
    Charlotte Neumann, Plaintiff-Appellant, v. Vernon Ellars, Defendant-Appellee.
    Gen. No. 50,760.
    First District, Third Division.
    October 13, 1966.

      Michael J. Guinan, of Chicago, for appellant; Patrick J. Muldowney, of Chicago, for appellee.
   Opinion by

JUSTICE DEMPSEY.

Not to be published

in full.


author: MR. JUSTICE DEMPSEY

text:
    Leonard Besinger, Plaintiff-Appellant, v. National Tea Company, an Illinois Corporation, Defendant-Appellee.
    Gen. No. 50,832.
    First District, Third Division.
    October 13, 1966.

      Herrick, Vette, McNeill & McElroy, of Chicago (William T. McNeill, Ray W. Fick, Jr., and Robert W. Singer, of counsel), for appellant.
    Kirkland, Ellis, Hodson, Chaff etz & Masters, of Chicago (William J. Lederer, Max E. Wildman and Donald E. Vacin, of counsel), for appellee.
   MR. JUSTICE DEMPSEY

delivered the opinion of the court.

In a two-count complaint the plaintiff, Leonard Besinger, sought in count I specific performance of a contract by the defendant, National Tea Co., and in count II damages for breach of the contract. The defendant moved to dismiss both counts. The chancellor sustained the motion to dismiss count I and denied the motion as to count n. The plaintiff appealed following the express finding by the court that there was no just reason for delaying appeal from the order of dismissal.

Besinger is the beneficial owner of vacant real property located in Carpentersville, Illinois. He entered into negotiations with the National Tea Co. to lease his property for use as a supermarket and a discount store. As a result of the negotiations he mailed a written commitment to the company in June 1961, and the company in July 1961 sent him a telegram accepting his leasing commitment and all its items and conditions. Thereupon Besinger prepared a draft lease and submitted it to the company which returned it with the request that it be signed by his trustee as lessor and then sent back to the company for execution. Besinger did this but the company did not execute the lease. After much delay, explanations by the company for the delay and further negotiations, Besinger made two written demands that the lease be signed. Finally, at the end of December 1961, the company returned the lease unsigned.

The commitment to lease provided that the company would construct a fully enclosed commercial building with an area of not less than 93,000 square feet suitable for a food supermarket or discount store. The term of the lease was to be for 15 years, with three options of renewal for terms of five years each. At the termination of the lease the building and all improvements were to become the sole property of Besinger. The building to be constructed was described as follows:

“. . . Lessee . . . shall construct ... a fully improved commercial building . . . having a fully enclosed area of not less than ninety-three thousand (93,000) square feet and suitable for use as a food supermarket or discount store. The Building shall be of as good or better quality and workmanship as the commercial building recently constructed for and a portion of which is presently operated by lessee as a food supermarket in Rolling Meadows, Illinois.”

The lease also provided that:

“Prior to the time that Lessee shall commence construction of the Building, Lessee shall submit the plans and specifications for the Building to Lessor for Lessor’s approval. Lessee shall also at its sole expense construct, provide, furnish and maintain a parking lot area suitable for the operation of the Building to be constructed by Lessee, and any and all outbuildings, service areas, driveways, and all other structures necessary and suitable for the conduct of Lessee’s business.”

The chancellor stated that he could not decree specific performance because under settled law and the circumstances of the case he was not authorized to supervise the detailed planning and construction of the “fully improved commercial building” which the lease required National Tea to build. Besinger argues that the chancellor erred in his conclusions that a decree of specific performance would necessitate extensive supervision of the construction and that he was not authorized to undertake such supervision.

The chancellor and the parties below proceeded on the assumption that there was an enforceable contract, for the motion to dismiss admitted the facts well pleaded by the complaint. Consequently, the existence of a binding lease agreement is not in issue on appeal; the issue is whether the lease is subject to specific performance.

Besinger initially contends that this issue was not before the chancellor. It is his position that the relief sought in the specific performance count was simply a decree finding a binding contract between the parties and an order directing National Tea to sign the lease. He suggests that if this relief were granted the issue of specific performance of the terms of the lease would probably never come before the chancellor because the defendant would likely abide by a finding that a binding contract existed and, if it would not, the plaintiff conceivably would accept ground rent as damages.

The chancellor’s decision that the motion to dismiss required him to rule on the availability of specific performance was correct. By his complaint the plaintiff did more than seek a judicial determination of the existence of the lease agreement and of his rights under it; he sought affirmative relief which ultimately could take the form either of specific performance or monetary damages. Both forms of relief are available only after the existence of a binding contract has been shown, and once that showing has been made it is difficult to perceive utility in requiring the defendant to sign the lease. Rather, the next and obvious question is which form of relief is available to the plaintiff, and it is this question which the chancellor answered.

The plaintiff’s first point is that a decree of specific performance would not require extensive supervision of the construction. He emphasizes that the building would be constructed by the defendant for its own use and occupancy for a term of at least 15 years, and notes that the defendant’s food stores are nationally recognized by their distinctive design. His conclusion is that if specific performance were granted, the building which the defendant would construct would necessarily have to be well built and suitable for its intended purpose. And to minimize the need for court supervision, the plaintiff has stated in his brief and in oral argument before us that the building plans and specifications (which the lease requires to be submitted to him for approval) will be approved, as long as they are for a building of the size and type specified in the lease.

The plaintiff’s second point is closely related to his first one: it is that even if some degree of judicial supervision would be required, in the circumstances of the case the chancellor should have granted specific performance. He states that the modern tendency is for equity to decree specific performance when the amount of supervision necessary is not excessive and a plaintiff cannot be adequately compensated by damages, and urges that this rationale applies to the instant case because the type of building, its purpose and square foot area are clearly established by the lease and because the value of his remainder interest in the building cannot accurately be estimated.

The terms of a contract which a party seeks to enforce must be certain and clear so that the chancellor can order the specific things contracted to be done. Sluka v. Bielicki, 335 Ill 202, 167 NE 90 (1929); London v. Doering, 325 Ill 589, 156 NE 793 (1927). Although the lease in question sets forth the type of building to be constructed, the purpose for which it shall be usable, its minimum enclosed area and a standard of quality and workmanship which it must meet, it does not specify the design of the building, the nature and quality of the construction materials or the nature and quality of the heating, lighting or plumbing systems. It does not specify the nature and number of the outbuildings and the “other structures necessary and suitable for the conduct of Lessee’s [National’s] business,” nor does it specify the number and location of the service areas and driveways to be built. Obviously these are matters which must be settled before erection of the building is possible. Due to the absence of specifications and plans, the chancellor would be unable to order the construction of a particular building or determine that the resultant building constituted no greater benefit to the plaintiff than he had bargained for and no greater burden on the defendant than it had assumed. Hence, the relief of specific performance was properly denied.

The plaintiff has found no Illinois case wherein specific performance of a building contract was decreed, and has cited as persuasive authority Daniel v. Kensington Homes, Inc., 232 Md 1, 192 A2d 114 (1963), Grayson-Robinson Stores v. Iris Const. Corp., 8 NY2d 133, 202 NYS2d 303, 168 NE2d 377 (1960); Brummel v. Clifton Realty Co., Inc., 146 Md 56, 125 A 905 (1924) and Wolverhampton v. Emmons, 1 QB 515, 6 BRC 900 (1901). None of these authorities bears directly on the instant case. In Daniel a contractual provision requiring the defendant to develop land in accordance with the requirements of several governmental agencies was held not too uncertain for specific performance because the requirements could be ascertained from the agencies. In the Grayson-Robinson Stores case the plans and specifications for the building were completed or practically completed. In the Brummel ease a vendor was ordered to comply with the terms of a contract which listed certain repairs to be made to an unfinished house; however, the court noted that the work remaining to be done was clearly defined. In the Wolverhampton case the parties had agreed upon plans which specifically defined the elevation and form of the building, the construction material and the other particulars.

Besinger’s stated willingness to abide by the defendant’s judgment in the designing of the building was neither set out in the complaint nor presented to the chancellor, and his declaration before this court is not binding on him. Since his remainder interest in the building constituted a considerable portion of the consideration given him for the lease, it is likely that in the preparation of the building plans and specifications the interests of the plaintiff and defendant would conflict. In view of the adverse interests of the parties it is improbable that agreement on all the necessary details could be reached without some intervention by the chancellor. This he recognized he should not do, for when the parties have failed to agree on all the material provisions of a contract, the chancellor cannot supply what they have left unprovided. Barnes v. Ludington, 51 Ill App 90 (1893). Even if the plans and specifications had been agreed upon it is doubtful whether specific performance would be available, for the decree would necessitate constant and prolonged judicial supervision of the construction operations. See Nelson v. McCabe Development Co., 343 Ill App 264, 98 NE2d 142 (1951); Harley v. Sanitary Dist. of Chicago, 54 Ill App 337 (1894) and the discussion in Ambassador Foods Corp. v. Montgomery Ward & Co., 43 Ill App2d 100 at 105-107, 192 NE2d 572 at 575, 576 (1963).

The chancellor properly left the plaintiff to his remedy at law. The order dismissing count I of the complaint is affirmed.

Affirmed.

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


author: MR. PRESIDING JUSTICE DRUCKER

text:
    First Finance Company, Plaintiff-Appellee, v. Hugh Ross and Margaret M. Ross, Individually and d/b/a Triangle Refrigeration Engineers, Defendants-Appellants.
    Gen. No. 50,710.
    First District, Fourth Division.
    October 7, 1966.
    Carl J. Greenberg, of Chicago, for appellants.
    Masor, Baime & Gainer, of Chicago, for appellee.
   MR. PRESIDING JUSTICE DRUCKER

delivered the opinion of the court.

Defendants appeal from the denial of their petition for a new trial under section 72 of the Civil Practice Act (Ill Rev Stats, 1963, c 110, § 72).

After a bench trial the defendants were found to have converted plaintiff’s property and judgment was entered in the amount of $12,000 plus costs. In addition, the court made a special finding that malice was the gist of the action against one of the defendants, Hugh Ross. In their petition defendants allege that the testimony of plaintiff’s sole witness was perjured.

The issues presented in this appeal are moot since the aforesaid judgment was reversed by this court [First Finance Co. v. Ross, 75 Ill App2d 403]. Therefore the appeal is dismissed.

Appeal dismissed.

ENGLISH and McCORMICK, JJ., concur.


text:
    First Finance Company, Plaintiff-Appellee, v. Hugh Ross and Margaret M. Ross, Individually and d/b/a Triangle Refrigeration Engineers, Defendants-Appellants.
    Gen. No. 51,218.
    First District, Fourth Division.
    October 7, 1966.

      Carl J. Greenberg, of Chicago, for appellants.
    Masor, Baime & Gainer, of Chicago, for appellee.
   MR. PRESIDING JUSTICE DRUCKER

delivered the opinion of the court.

This is an appeal from the denial of defendants’ post-trial motion either (1) that judgment in favor of the plaintiff be vacated and judgment be entered for the defendants, or (2) that a new trial be granted.

After a bench trial the defendants were found to have converted plaintiff’s property and judgment was entered in the amount of $12,000 plus costs. In addition, the court made a special finding that malice was the gist of the action against one of the defendants, Hugh Ross. Defendants’ appeal was dismissed (First Finance Co. v. Ross, 64 Ill App2d 474, 211 NE2d 588) but their petition for leave to appeal was granted.

According to the relevant evidence adduced at the trial by plaintiff, the defendants were engaged in the appliance business, doing business as Triangle Refrigeration Engineers; they sold various appliances to retail establishments by conditional sale contracts; the contracts were then discounted to the plaintiff with recourse; subsequently various purchasers of appliances under the aforesaid conditional sale contracts were in default and plaintiff looked to the defendants for recourse. Defendants agreed to pay the amounts due under these contracts and executed a promissory note therefor on December 29, 1959, in the amount of $16,487. At that time the parties executed a document designated as a “trust receipt” which provides in relevant part that:

The Undersigned [referring to defendants] hereby acknowledges receipt this date from you of the property, hereinafter called “Trust Property” (as per List attached) and which is part of the collateral covering a certain promissory Note held by you ....
The undersigned agrees as follows:
3. That . . . upon . . . demand the undersigned will:
a. Return the Trust Property to said First Finance Company, or
b. Account to said First Finance Company for the proceeds thereof ....

It is undisputed that plaintiff retained the conditional sale contracts. Subsequently the defendants defaulted upon their payments under the promissory note and plaintiff demanded the return of the “trust property,” to which the defendants replied that they had no knowledge of the location thereof.

Plaintiff has the burden of proving all of the elements necessary to constitute a conversion. Ritz-Central Motors, Inc. v. Vanderwoude, 5 Ill App2d 231, 124 NE2d 662. The essence of a conversion is the wrongful deprivation of possession to one entitled to possession. Donn v. Auto Dealers Inv. Co., 318 Ill App 95, 47 NE2d 568. However, a demand on one not in possession of property does not make the failure to deliver to the true owner conversion, in the absence of any wrongful exercise of dominion by the one on whom the demand was made. Wembach Corp. v. Emigrant Industrial Sav. Bank, 264 App Div 161, 34 NYS2d 688. In the instant case the provision in the so-called trust receipt to the effect that defendants acknowledged receipt of the property in question is purely legal fiction. There is no evidence that plaintiff had possession of the appliances at the time of the execution of the aforesaid document. Therefore possession of the appliances could not have been transferred by it to the defendants at that time. Nor is there evidence that defendants possessed the appliances at the time of or subsequent to the execution of the “trust receipt.” Although plaintiff’s witness testified that he saw various appliances in the defendants’ warehouse prior to December 29, there is no evidence that defendants had actual possession of any of the appliances on December 29 (the date of execution of the “trust receipt”) or at the time demand was made therefor by the plaintiff or at any time in the interim.

We would also point out that the list attached to the “trust receipt” showed that some of the property in question was located at the addresses of buyers under the conditional sale contracts. It also referred generally to property in other conditional sale contracts, describing the seller, purchaser and date of purchase. Additionally, all of the conditional sale contracts were retained by plaintiff after execution of the “trust receipt”; all of them specified the names and addresses of the purchasers of the appliances sold thereunder; and there is no evidence that the appliances were removed therefrom by, or at the direction of, defendants.

A judgment of conversion cannot be predicated upon a legal fiction which is rebutted by the evidence. There is no evidence that the defendants wrongfully exercised dominion over the appliances in question. Therefore the judgment of the trial courc is reversed.

Judgment reversed.

ENGLISH and McCORMICK, JJ., concfar.

       Defendants have also filed an appeal, 75 Ill App2d 402, from the denial of their petition for a new trial under section 72 of the Civil Practice Act (Ill Rev Stats, 1963, c 110, § 72) in which they allege that the testimony of plaintiff’s sole witness was perjured.


author: MR. JUSTICE McCORMICK

text:
    Jessie Mae Johnson, by Rosetta Pittman, Conservator to Collect, Plaintiff-Appellant, v. D. J. Thomas, Defendant-Appellee.
    Gen. No. 50,472.
    First District, Fourth Division.
    October 7, 1966.

      Joseph E. Fitzgerald, of Chicago, for appellant.
    Crooks & O’Meara, of Chicago, for appellee.
   MR. JUSTICE McCORMICK

delivered the opinion of the court.

Plaintiff filed a complaint November 2, 1962, alleging that on February 2, 1962, she had been bitten by a rat at the premises she occupied under an oral tenancy by the month from the defendant. She alleged that the defendant failed to eradicate vermin from the premises and keep the premises in repair, resulting in alleged damages. The defendant filed an answer on December 7, 1962, admitting that the plaintiff was residing in the premises on a verbal month-to-month lease at the time of the alleged occurrence, and denying all the other allegations of the complaint. On December 17, 1962, the defendant filed interrogatories which were answered by the plaintiff on February 13,1963.

On June 24, 1964, on the motion of defendant, an order was entered in the trial court reciting that notice had been served on the plaintiff and that the plaintiff be “given 60 days within which to present herself to Defendant’s Attorney — at a time to be agreed upon — and give her discovery deposition testimony.” On October 13, 1964 [apparently on motion of defendant, although the notice which appears in the record bears no signature, nor is there any indication that the notice was ever served on the plaintiff, or that there was at any time an agreement between the plaintiff and defendant of a time at which the deposition should be taken], the trial court entered an order that “if Plaintiff does not appear and give her deposition testimony within 60 days hereof, that Pf’s suit be, and the same will thereby, dismissed automatically without further notice.” On December 16, 1964, the trial court entered the following order:

“The above cause being heard pursuant to Order of Court dated October 13, 1964, and it being represented to the Court that said order relating to certain discovery has not been complied with;
“It is hereby ordered that plaintiff’s complaint be, and is hereby, dismissed, that Plaintiff take nothing by her suit, that the defendant shall go hence without day and that judgment be, and is hereby, entered in favor of the defendant and he shall have execution for his costs.”

The appeal which is now before this court was taken from that order by the filing of a notice of appeal on February 15, 1965. The order appealed from was a final, appealable order.

Before us the plaintiff urges that the orders of the trial court entered on June 24 and October 13, 1964, were not in compliance with the rule of the Supreme Court [Supreme Court Rule 19-6, Ill Rev Stats 1961 and 1963, c 110, § 101.19-6(1)] which provides:

“A party desiring to take the deposition of any person upon oral examination shall serve notice in writing a reasonable time in advance on the other parties. The notice shall state the name or descriptive title of the officer before whom the deposition is to be taken, the time and place for taking the deposition, the name and address of each person to be examined, if known, or, if the name is not known, a general description sufficient to identify him or the particular class or group to which he belongs, and whether the deposition is for purposes of discovery or for use in evidence. . . .”

As we have pointed out, the order of June 24, 1964, merely provided that the plaintiff was given 60 days to present herself to defendant’s attorney, at some time to be agreed on, and have her deposition taken. There is no indication that there was any time agreed on, nor is there anything further in the record with reference to that particular order. The order of October 13, even if we would consider it a proper order in spite of the omissions in the notice, provided that the plaintiff must appear and give her deposition within 60 days. There is no indication of the person before whom the deposition should be taken, nor the time; therefore, it can be said that the orders are lacking in the specificity necessary as a predicate for the imposition of sanctions for failure of compliance. In his brief the defendant has cited Supreme Court Rule 19-12(3) [Ill Rev Stats 1961 and 1963, c 110, §101.19-12(3)], which states that on failure to comply with the rules with reference to depositions, the court may dismiss the complaint; and has cited a number of cases supporting that rule, none of which can be considered applicable because of the form of the order entered in the trial court. The order was erroneous.

On February 10, 1965 [five days prior to the filing of the notice of appeal], Rosetta Pittman, conservator to collect, filed a petition stating that the plaintiff was insane and incompetent; that she had been committed as an insane person to the Manteno State Hospital on November 23, 1963, and had resided at that hospital ever since. The petitioner also recited her appointment as conservator to collect, and prayed that the orders entered by the court on October 13 and December 16, 1964, be vacated, and that the petitioner be given leave to file an amended complaint as conservator to collect.

The petition must be interpreted as a petition brought under section 72 of the Civil Practice Act [Ill Rev Stats 1965, c 110, § 72], which provides that relief sought from final orders, judgments and decrees, after 30 days from entry thereof may be had on a petition, and that under such petition all relief which had been formerly obtainable under other writs and bills could now be obtained. Section 72 provides:

“(2) The petition must be filed in the same proceeding in which the order, judgment or decree was entered but is not a continuation thereof.
“(4) The filing of a petition under this section does not affect the order, judgment or decree, or suspend its operation.”

Thus, the remedy afforded by section 72 is in addition to that available by appeal. The two routes do not conflict but may be considered parallel and both may be followed simultaneously. In re Estate of Schwarz, 63 Ill App2d 456, 460, 212 NE2d 329 at 331. Thus, neither the pendency nor the abandonment of a petition under section 72 would affect the appealability of the judgment in question. The petition in this case did not affect the judgment nor suspend its operation. The notice of appeal having been filed in apt time, only the judgment of December 16, 1964 is now before us. The petition and the issues it may have raised are not. After so holding, any other questions with reference to such petion will not be considered.

The order of the trial court dismissing plaintiff’s cause of action and entering judgment in favor of the defendant was erroneous. The order and judgment are reversed, and the cause is remanded to the Circuit Court of Cook County for further proceedings not inconsistent with this opinion.

Reversed and remanded.

DRUCKER, P. J. and ENGLISH, J., concur.


author: JUSTICE MORAN.

text:
    In the Matter of the Estate of Glen Hoover, Deceased. Claims of James Riley Hargis and Alpha Toomey, v. Mary Weinbrenner, Executor.
    Gen. No. 66-43.
    Fifth District.
    October 22, 1966.
    Miller & Pfaff, of Salem, for appellant; Raemer & Albright, of Salem, for appellees.
   Opinion by

JUSTICE MORAN.

Not to be published in full.


author: MORAN, J.

text:
    Herbert G. Wickenhauser, Plaintiff-Appellee, v. Virgil Selhime and Mildred Selhime, Defendants-Appellants, John W. Lock and Dorothy M. Lock, Defendants.
    Gen. No. 65-103.
    Fifth District.
    October 13, 1966.
    Rehearing denied November 18, 1966.

      Emerson Baetz, of Alton, for appellants.
    Green & Hoagland, of Alton (Robert B. Maucker, of counsel), for appellee.
   MORAN, J.

Defendants Virgil Selhime and Mildred Selhime, the contract sellers, appeal from an adverse judgment of the trial court in a suit for specific performance of a contract to convey real estate, John W. Lock and Dorothy M. Lock who purchased the real estate involved in the suit after the contract between plaintiff-appellee Herbert G. Wickenhauser and the Selhimes was entered into, were joined as defendants in the trial court.

The trial court, after hearing the evidence and reviewing the briefs filed by all of the parties, wrote an extensive opinion and order finding for the plaintiff and ordering all of the defendants to convey the real estate to the plaintiff. Defendants Lock do not appeal from the judgment of the trial court.

Defendants-appellants contend (1) that since the contract of sale under which plaintiff sued contained a provision that time was to be considered as of its essence and since plaintiff did not sue within that time, plaintiff’s suit for specific performance of the contract must fail because there was no waiver of the time provision under the evidence in this case, and (2) that since plaintiff once refused a title tendered by the vendor under the contract, he cannot now sue for specific performance so as to compel the vendors to convey to him the title he once declined.

The principal question before this tribunal is whether or not there was an evidentiary basis for the judgment of the trial court.

On April 3, 1964, the plaintiff, Herbert G. Wickenhauser, entered into a contract with the defendants Virgil Selhime and Mildred Selhime to purchase the following described property:

“2703 Godfrey Road, Township of Godfrey, better known as Selhime’s Restaurant, brick building and land, approximately 138' fronting Godfrey Road, approximately 200'deep . . .

The contract, partly printed and partly typewritten, recited that $6,700 had been received as “part payment” and that if the remaining $60,300 were paid within thirty days a conveyance would be made.

The contract contained a printed provision that “should the title to the property not prove good, then (the) $6,700 (would) be refunded, (b)ut should the said Herbert G. Wickenhauser fail to perform this contract on his part promptly at the time and in the manner above specified (time being of the essence of this contract), then the above $6,700 shall be forfeited by him as liquidated damages, and the above contract shall be and become null and void.”

The Selhimes had listed this property for sale with Frank Wickenhauser, a real estate broker in Alton, Illinois, and Herbert G. Wickenhauser purchased the property through this agency. Herbert Wickenhauser, the purchaser, obtained an abstract of title to the property purchased and hired Bruce Quackenbush, an Alton lawyer, to examine it for him. Quackenbush found that there was a five-foot “spite strip” or tract of land five feet wide, running between a street known as Tibbett Street, to the east or rear of the Selhimes’ land and the Selhimes’ land itself.

At the inception of the transaction Selhime had told Frank Wickenhauser that Harry Marshall, an Alton lawyer, was his attorney; and when Herbert received Quackenbush’s opinion he got in touch with Frank who, in turn, communicated with Marshall. Herbert, Frank and Marshall then had a conference the day following the date of Quackenbush’s opinion, April 21, 1964. At this meeting, according to Marshall’s testimony, Herbert said the five-foot strip was of significance to him, because he wanted ingress to and egress from the land he was buying in respect of Tibbett Street. But Marshall stated that in his view the contract with the Selhimes obliged them to convey only what they owned; and that the five-foot strip was not within the description.

Another meeting was held May 14, 1964. This was attended by Virgil Selhime, Harry Marshall, his attorney, and Frank and Herbert Wickenhauser. There was a difference in the testimony of the persons attending as to what transpired. Selhime and Marshall, his attorney, testified that Marshall drew out a deed, previously signed and acknowledged by Selhime and his wife, and tendered it to Herbert, but that Herbert refused it. Herbert and Frank denied that a deed was tendered. All parties agreed, however, that Marshall had said that Selhime was willing to convey what he owned, i. e., the land without the five-foot strip or rights across it, but that Herbert refused at that time, insisting that title to the five-foot strip be given him, or that some arrangement be made for a right-of-way over it, as a condition to his accepting conveyance from the Selhimes and paying them their money.

Herbert testified that the next thing he said was, “It’s up to you folks,” and that he then turned on his heel and walked out of the meeting. Selhime said that he slammed the door and walked out after calling him, Selhime, a liar.

Five days later Herbert talked to Marshall on the telephone. Marshall then asked him again if he would accept the deed, adding that the Selhimes considered that the agreement had been breached by his failure to accept it. Herbert simply said, “My position is not changed.”

Herbert testified that about a week after the May 14 meeting, Frank approached him for a contribution towards clearing up the five-foot strip, and that he, Herbert, said he would pay $250 towards it. Marshall testified that on May 25 Frank told him Herbert might be willing to share costs in connection with the five-foot strip. Marshall also testified that through June of 1964 he had conversations with Frank and one Wisenflu, who appeared to own an interest in the five-foot strip, and with one Ritchie Gibbons, a title insurance representative, about insurance on the five-foot strip title.

On July 15, 1964, Selhime and his wife contracted to sell the property in dispute to "the defendants Lock. On July 24, 1964, the Selhimes, through their attorney, Marshall, wrote Herbert Wickenhauser as follows:

You are hereby notified that pursuant to the terms of that certain contract dated April 3, 1964, between Virgil E. Selhime and Mildred Selhime, as sellers, and Herbert G. Wickenhauser as buyer, for the sale of property in the Town of Godfrey, in the County of Madison and State of Illinois, described therein as 2703 Godfrey Road, Township of Godfrey, the sellers elect to cancel and terminate the same because of nonperformance of the terms thereof, on the part of the buyer, and demand of buyer the sum of $6,700 as liquidated damages to be forfeited by buyer, all as provided in said contract.

On August 4, 1964, Herbert Wickenhauser, through his attorneys, Green and Hoagland, of Alton, Illinois, responded in writing as follows:

As attorneys for Herbert G. Wickenhauser, we acknowledge receipt of your letter of July 24, 1964.
In the first place, your attempted cancellation and termination of the contract dated April 3, 1964, between Virgil E. Selhime and Mildred Selhime, as Sellers, and Herbert G. Wickenhauser, as Buyer, for the sale of the property in the Town of Godfrey, Madison County, Illinois, described as 2703 Godfrey Road, is completely and entirely rejected. There is no provision whatsoever in said contract for cancellation and termination by the Sellers.
Herbert G. Wickenhauser has stood ready at all times to comply with the terms of the contract when the Sellers should tender a good and sufficient Warranty Deed of Conveyance. To date such tender has not been made.
You are hereby advised that Herbert G. Wickenhauser now stands ready to comply with the terms of the contract and you may consider this a demand on his part that your clients, Virgil E. Selhime and Mildred Selhime deliver to him a good and sufficient Warranty Deed of Conveyance immediately.
It is noted that a copy of your letter was addressed to Frank Wickenhauser. Therefore, a copy of this letter is being forwarded to Frank Wickenhauser advising him of Herbert G. Wickenhauser’s readiness to comply with the terms of the contract. In the event Frank Wickenhauser still has the part payment of $6,700 in his possession, he is instructed to retain the same until the Sellers have complied with the contract.

In the meanwhile, on July 29, 1964, the Selhimes had conveyed the property to the defendants Lock.

On September 23, 1964, Herbert Wickenhauser filed suit against the Selhimes and the Locks, seeking specific performance of his contract with the Selhimes. After trial, the court found for the plaintiff and ordered the Selhimes and the Locks to convey the property to Herbert Wickenhauser upon his payment of $60,300, the unpaid balance of the purchase price.

Following the overruling of motions for rehearing, this appeal followed.

It is to be noted that Herbert Wickenhauser’s suit and the decree in his favor, cover the principal property only; nothing is mentioned, claimed or adjudged concerning the disputed five-foot strip.

The trial court reviewed the evidence and held that the time provision in the contract was waived, saying:

The evidence, without dispute, shows that the parties did not abide by the 30-day time limit in the contract. The 30 days would have expired on May 3, 1964. The first meeting, as testified to by Harry Marshall, attorney for defendants Selhimes, was held on April 21, 1964 and plaintiff, Frank Wickenhauser, and Marshall were present, and the question of the 5' strip was the primary topic. No further meetings were held until May 14, 1964, which meeting was called by Harry Marshall. While Marshall said he either had a deed in his hand, or laid it on his desk, it is apparent that the intention of the parties was that defendants Selhimes were ready to tender a deed, whenever plaintiff was ready to accept the property.
There is no question from the evidence that defendants Selhimes’ attorney attempted to check into the 5' strip; that in the various descriptions used, more distance east and west was set forth than appeared in the description contained in the abstract; and that access had been used to the east by defendants and their customers, including the Storck Cleaners.
It is, therefore, concluded from the evidence that access to the rear of the property into Tibbetts Street was considered, and that the immediate area to the east of said property was considered a part of Tibbetts Street for the simple reason, defendant Virgil Selhime said he never knew the 5' strip was there; that the parties were attempting to do something about the 5' strip and, the time limit, in the contract for sale was not insisted upon, and neither party made a tender of performance within said 30-day period.
After the expiration of the 30-day time limit in the contract for sale, a meeting was held by all parties concerned, numerous phone calls were made, and this continued up and into July 1964. Defendants never did give plaintiff any notice orally or in writing of any termination, or forfeiture of the contract. The only thing that was done, appears conclusively by the testimony of Virgil Selhime, when he said at the meeting on May 14,1964 to plaintiff:
“That Marshall said we were ready to tender a deed if he was ready to accept the property.”
It is the opinion of the court that each of the parties mutually negated the requirement of time being of the essence of the agreement, and by Defendants’ Selhime failure to give any notice of forfeiture, or termination of the contract and a reasonable time within which to perform, no termination was ever effected.
It is true that on July 24, 1964, Harry Marshall, as attorney for defendants, Selhimes, did send a letter, but this was after he had prepared a contract to sell the property to defendants Lock, for the same monetary consideration, which agreement was dated July 15, 1964, (Defendants’ Lock Exhibit 1) and a deed was signed on July 29,1964.
This said letter of July 24, 1964 did not give any time for plaintiff to perform, and any tender of performance by plaintiff would have been a useless gesture.

We believe there was ample evidence to justify the trial court’s finding that the time provision in the contract was waived and that therefore no termination of the contract could be effected by the Selhimes until they gave plaintiff a notice of forfeiture or termination of the contract and a reasonable time to perform. Christopher v. West, 409 Ill 181, 98 NE2d 722; Kingsley v. Roeder, 2 Ill2d 131, 117 NE2d 82.

Appellants rely upon the conversation of May 14, 1964, at the office of Harry Marshall, attorney for the Selhimes, to sustain their contention that plaintiff is precluded from specific performance because he refused tender of title to the property in question at that meeting. The trial court found that neither party treated the meeting of May 14, 1964, as an abandonment of the contract; that negotiations between the parties continued through May and June of 1964; that defendants’ lawyer had continuously tried to get title to the five-foot strip in question or title insurance for the whole premises; that plaintiff was advised of these efforts and even offered to contribute part of the expense money.

We therefore find that there was an evidentiary basis for the finding of the trial court that neither party had abandoned the contract and that the trial court was correct in concluding that the Selhimes “did nothing about enforcing the contract until they had another buyer signed to a written instrument who was not interested in the 5' strip, although he was informed about it by defendant, Virgil Selhime.”

The determination of this case depends largely upon the facts to be found in the record. In such situations the findings and judgment of the trial court in chancery and non jury cases will not be disturbed by the reviewing court if there is any evidence in the record to support such findings. Where a cause is heard by a chancellor without a jury, his conclusions on the facts are entitled to the same weight as a jury verdict. Brown v. Zimmerman, 18 Ill2d 94, 163 NE2d 518.

For the foregoing reasons the judgment' of the Circuit Court of Madison County is affirmed.

Judgment affirmed.

GOLDENHERSH and EBERSPACHER, JJ., concur.