author: MR. JUSTICE DAVIS

text:
    People of the State of Illinois, Defendant in Error, v. Robert L. Van Hyning, Plaintiff in Error.
    Gen. No. 65-126.
    Second District.
    June 23, 1966.
    Rehearing denied and opinion modified August 31, 1966.

      Stephen A. Ellis, of Rockford, for appellant.
    William G. Clark, Attorney General, of Springfield (William R. Nash, State’s Attorney and Philip G. Rein-hard, Assistant State’s Attorney, of Rockford, of counsel), for appellee.
   MR. JUSTICE DAVIS

delivered the opinion of the court.

After a joint trial, the defendant, Robert L. Van Hyning, and William D. Lindquist, were found guilty of the offense of burglary by a jury in the Circuit Court of Winnebago County. The defendant was sentenced to the penitentiary for a period of not less than 2 nor more than 7 years. While incarcerated, he instituted the present forma pauperis proceeding which was filed in the Supreme Court, and counsel was appointed on his behalf. The Supreme Court, by order of October 19, 1965, found that no substantial constitutional issues were involved and transferred the case to this court.

The burglary in question took place at the Carlson Legion Post in Rockford in the early morning hours of July 12, 1961. Certain merchandise, medals, objects, money and papers were taken. Shortly after noon on the same day, the defendant’s probation officer and two detectives, without knowledge that the defendant had been involved in this burglary, went to an apartment which had been rented to Lindquist and the defendant, to pick upon the defendant for violating his probation. The apartment door was partly open and the defendant and Lindquist were asleep. The probation officer and the detectives entered the apartment and saw, in open view, golf clubs, whiskey, medals and other objects which were the property of the Carlson Legion Post.

The detectives and the probation officer questioned the defendant and Lindquist concerning the property and searched them — as well as the premises. They found $129 in defendant’s pocket and $114 in Lindquist’s. While the officers were searching the premises, the defendant ran out of the door and fled. Later in the afternoon he was apprehended on the roof of a building on Charles Street.

The defendant was unemployed at the time, and had worked only two weeks during the preceding month— at a salary rate of $1.25 per hour — for which he had been paid about two weeks prior to the burglary. The defendant consistently denied any complicity in the burglary.

On October 4, 1961, the defendant and Lindquist were arraigned. Counsel of his choice appeared for the defendant. Lindquist was without counsel and suggested that the court appoint defendant’s attorney to represent him. The court asked if any adverse interest would be involved, and counsel replied that he didn’t know but would have to look into the matter. The following colloquy occurred:

“THE COURT: Sometimes where there are two defendants, their interests get diverse as the case goes on. I will appoint an attorney for you. And I will carry the case the same as to both of the defendants at this time, unless you want Mr. Ingrassia to represent you at the arraignment, then you can do that.
“Is is (sic) not guilty?
“MR. INGRASSIA: Yes. Motion to quash, and plea of not guilty.
“THE COURT: All right, I will appoint Mr. Ingrassia to represent you at this point of the hearing. Then if it gets to another point, after you look into it, if it looks like there is going to be adverse interests between the two defendants, I will appoint someone else to defend the other one. There might be different defenses, or something like that. I will appoint you at this time to represent him.
“Let the record show that the defendants and each of them have been furnished with copies of the Indictment and a list of the jurors.
“Is there any motion as to the Indictments ?
“MR. INGRASSIA: Yes, your Honor, motion to quash, and we do not care to argue it.
“THE COURT: Let the record show motion to quash as to each defendant heard and overruled.”

Copies of two written statements made by Lindquist were furnished to his attorney, along with a list of the witnesses to the making and acknowledgment of each statement. At no stage of the proceedings did counsel for the defendant and Lindquist move to sever the cases for trial or to appoint another attorney for Lindquist due to the adverse interests of Van Hyning and Lindquist. The defendant’s defense was a denial of participation in the crime and that of alibi: His alibi testimony did not specifically preclude participation in the burglary with reference to the time of the offense, and no witnesses were called to testify to corroborate the alibi.

The written statements by Lindquist were substantially identical, except the statement made on July 18, 1961, implicated Frank Phillips in the burglary, and that of July 19, 1961, implicated the defendant. Lindquist also made an oral statement implicating the defendant in the burglary. The trial court held a hearing outside the presence of the jury relative to the voluntariness of each statement, and it is admitted by counsel for the defendant that the trial court properly found adversely to Lindquist on his contention of duress. All three of these statements were admitted in evidence without objection. The trial court repeatedly admonished the jury that if either Lindquist or the defendant made any statement outside the presence of the other, such statement could only be used against the person making it; and the jury was so instructed.

The indictment charged that defendant and Lindquist did break and enter into the building in question with intent to steal and carry away property of the Robert G. Carlson American Legion Post 1207, a not-for-profit corporation. The charter established that the correct corporate name was Lt. Robert C. A. Carlson Post No. 1207, The American Legion, and the court ruled that the variance was inconsequential. The defendant made an objection to the court’s ruling and challenges it on appeal. However, variances such as here set forth are not fatal. The People v. Thomas, 20 Ill2d 603, 606, 607, 170 NE2d 543 (1960); The People v. Nelson, 17 Ill2d 509, 511, 512, 162 NE2d 390 (1959).

At the trial, the property seized in the apartment and properly identified as being the property of the Carlson Legion Post was admitted in evidence without objection. It included Carlson Legion Post medals, a citation, insurance policies and a liquor license. No motion was filed at any time to suppress such evidence.

The defendant contends that the trial court erred in denying the unargued motion to quash in that the indictment did not set forth the exact situs of the burglary or the proper date thereof, which hindered defendant in preparing his case for trial and could have exposed him to double jeopardy. Since the filing of brief herein, these contentions have been decided adversely to the defendant. The People v. Blanchett, 33 Ill2d 527, 532, 533, 212 NE2d 97 (1965); The People v. Reed, 33 Ill 2d 535, 539, 540, 213 NE2d 278 (1965); People v. Trammell, 65 Ill App2d 331, 334, 335, 213 NE2d 74 (1st Dist 1966) ; People v. Heidleberg, 66 Ill App2d 169, 213 NE2d 140 (4th Dist 1965).

The defendant also urges that this court should exercise its discretionary power under section 121-9 (a) of the Criminal Code (Ill Rev Stats 1963, c 38, par 121-9 (a)) and take notice of errors committed in the trial court which, though not preserved for appeal, adversely affected his substantial rights. The portion of the section referred to provides: “Plain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the trial court.” Section 121-9 (a) embraces the philosophy that a defendant is entitled to a fair criminal trial, and if prejudicial arguments are made or other prejudicial errors occur to the extent that his substantial rights are violated and the judicial process cannot stand without deterioration, then a reviewing court may consider such assignments of error even though no objection was made in the trial court and no ruling thereon made or preserved.

Reviewing courts — prior to the enactment of the Criminal Code — had announced such philosophy and exercised such supervisory powers in proper cases. In The People v. Burson, 11 Ill2d 360, 143 NE2d 239 (1957), where counsel first raised the question of the defendant’s sanity in opening argument and again in motion for new trial, but failed to seek or obtain any ruling by the trial court on the issue of a sanity hearing, the court affirmatively exercised such power, and at pages 370 and 371 stated:

“The court may, as a matter of grace, in a case involving deprivation of life or liberty, take notice of errors appearing upon the record which deprived the accused of substantial means of enjoying a fair and impartial trial, although no exceptions were preserved or the question is imperfectly presented. (Citations.)”

Such power was likewise exercised in The People v. Bradley, 30 Ill2d 597, 198 NE2d 809 (1964) where the trial court improvidently ordered a severance; in The People v. Sprinkle, 27 Ill2d 398, 189 NE2d 295 (1963) where the conduct of the trial court was prejudicial; and in The People v. Moore, 9 Ill2d 224, 137 NE2d 246 (1956) where the State’s Attorney made a highly prejudicial argument.

However, the necessity for judicial accommodation between the exercise of such power and the orderly administration of justice, as well as the welfare and safety of the public at large, indicates that the reviewing court should exercise judicial restraint in reversing the trial court for errors not brought to its attention by customary procedures. The basic reason for the general rule that issues, points or contentions, other than those going to the court’s jurisdiction of the subject matter, or that the indictment does not charge an offense, will not be considered on appeal unless presented in the trial court and properly preserved for review, is that the trial court should not be reversed upon a ground not submitted to it and upon which it did not, and was not asked, to decide. The People v. Brand, 415 Ill 329, 337, 114 NE2d 370 (1953); People v. Triplett, 66 Ill App2d 237, 241, 213 NE2d 290 (2nd Dist 1966). Consequently, reversals where the alleged errors were not brought to the attention of the trial court must be limited to errors or defects affecting substantial rights of the defendant — errors which in themselves preclude fundamental fairness in the trial. Under the circumstances of this case, we would not be warranted in exercising our discretionary power under section 121-9 (a) of the Criminal Code.

The defendant asserts that he was denied a fair trial in that his counsel was handicapped by having to represent both the defendant and Lindquist “in the joint trial, where the defenses were antagonistic” [sic] ; and that the statements by Lindquist implicating him were improperly allowed to reach the jury. The answer to the first part of defendant’s assertion is that it is not true factually. The defendant has failed to state any handicap which he suffered because his counsel also represented Lindquist. The defendant was represented by counsel of his choice, who was appointed by the court to represent Lindquist after the court had inquired of counsel whether their interests would be adverse, and counsel had informed the court that he did not know but would look into the matter. The appointment was made with the express statement by the court that if the interests of the defendant and Lindquist were then adverse, or later became adverse, the court would appoint someone else to defend Lindquist. During the trial, neither counsel for the defendant, the defendant, nor Lindquist, ever asserted that the interests of defendant and Lindquist were adverse. Such charge was not made by the defendant until after the jury returned its verdict of guilty.

The defendant further argues that the trial court should have ordered the deletion of all reference to defendant in Lindquist’s written implicating statement; and that the court’s failure to do so constituted prejudicial error. However, prior to the time the written statements were admitted in evidence, counsel for defendant had cross-examined a police officer who testified on behalf of the People, and had elicited from him that in his presence, Lindquist told the defendant that he (Lindquist) had implicated the defendant in the burglary. Consequently, the jury was aware of the party to whom Lindquist’s written statement of July 19, 1961, referred. Any deletion of defendant’s name therefrom would have been a useless act, and his counsel made no such request.

There is no question that a confession by one of two jointly indicted defendants is not evidence against the codefendant not making it, but that it is admissible against the confessor, if properly restricted by instruction. The competing factors to be balanced under such circumstances are the possible prejudicial effect of such confession against a codefendant, and the loss of competent and relevant evidence against a confessor. Determining a proper balance of such factors is difficult and a careful factual analysis of each case is required. As the court stated in The People v. Skelly, 409 Ill 613, 100 NE2d 915 (1951) at pages 622 and 623:

“The only practical solution seems to be to follow the general rule and admit such confessions as against the confessor only, using every precaution to avoid prejudice to the codefendant. This does not close the door to refusing to follow the rule when sufficient actual prejudice appears, and that, we think, should be done.”

In the case at bar, we find no actual prejudice to defendant because of the admission of the Lindquist statement without the deletion of defendant’s name therefrom.

The question of joint or separate trials for defendants — who are jointly indicted — has given rise to many problems. However, the law is rather clear. The statement in People v. Chapman, 66 Ill App2d 124, 214 NE2d 313 (1st Dist 1965), at page 127, is particularly applicable to the case under consideration, to wit:

“It is only when the interests of the joint defendants are in fact antagonistic that the court must grant separate trials or require separate legal representation. People v. Dolgin, 415 Ill 434, 448, 114 NE2d 389 (1953). A finding of adverse interests or incompetency or incompatibility of counsel cannot be based solely on mere assertions. People v. Wolff, 19 Ill2d 318, 322, 167 NE2d 197 (1960). Unless defendant properly establishes that a conflict of interest actually exists, or this fact becomes apparent during the trial itself, the court will not indulge in speculation to determine whether separate counsel, in the interest of justice and fair trial, is required. People v. Rose, 348 Ill 214, 180 NE 791 (1932) and People v. Bopp, 279 Ill 184, 116 NE 679 (1917).
“In the instant case, defendant raises the issue for the first time on appeal, abstractly and absent of any supporting facts. We have carefully examined the record to determine in what respect defendant could have been prejudiced or in what way his interests and those of codefendant Jones could be adverse or antagonistic. We find nothing that could indicate any such incompatibility or conflict.”

In the case at bar the lack of severance for separate trials and the circumstances complained of were not such that defendant’s substantial rights were violated and that the judicial process deteriorated because of any act or omission of his counsel or the trial court. The factual situation of this case does not call for the exercise of the supervisory powers of this reviewing court in these respects.

Lastly, the defendant raises a constitutional question and contends that his rights under the 4th Amendment to the Constitution of the United States, and under Article II, Section 6 of the Constitution of the State of Illinois, were violated when certain articles found by the law enforcement officers in the course of an unreasonable search and seizure were admitted in evidence. The record indicates that the apartment door was partly open and that certain articles of stolen property were in open view. Absent any motion to suppress or objection to the admission of such articles in evidence, the facts concerning whether they were visible through the open door were not elicited, and on this record we cannot determine that the search and seizure was unlawful.

In its order transferring this case to this court, the Supreme Court stated:

“The defendant also urges that evidence obtained through an unlawful search was admitted in evidence. No motion to suppress was made in the trial court and the claim will not be considered here.”

We can only construe this language of the transfer order to mean that such alleged error was waived by failure of the defendant to move to suppress such evidence iti the trial court. In addition, no objection was offered to the admission of such evidence in the trial court. The judgment of the trial court is accordingly affirmed.

Judgment affirmed.

MORAN, P. J. and ABRAHAMSON, J., concur.


source: Caselaw Access Project

author: MR. JUSTICE DEMPSEY

license: Public Domain

text:
    William P. Higgins, Plaintiff, Counter-Defendant Appellee, v. Thomas Higgins, et al., Defendants, Counter-Plaintiffs Appellants.
    Gen. No. 50,130.
    First District, Third Division.
    June 23, 1966.

      John H. Galgano and Patrick A. Barton, of Chicago, for appellants.
    John W. Vescelus, of Wheaton, for appellee.
   MR. JUSTICE DEMPSEY

delivered the opinion of the court.

The defendants, Thomas Higgins and his brothers and sisters, appeal from a decree of the Circuit Court which found that a partnership had existed between their deceased father, James M. Higgins, and their uncle, William P. Higgins, the plaintiff, and which further found that the partnership was the owner, in equity, of ten lots at the corner of 31st Place arid Wolcott Street in Chicago which comprised the partnership business premises. An appeal was taken to the Supreme Court which transferred the cause here.

In 1951 William P. Higgins filed a complaint for partition of five of the ten lots. As to parcel I, consisting of three lots, he alleged ownership of a one-half interest by descent from his father, J. M. Higgins, who he alleged acquired title thereto under a deed executed in 1893 and recorded in 1906. As to parcel II, consisting of two lots, he alleged ownership of a one-half interest under a deed to himself and his brother, James M. Higgins, which was executed and recorded in 1910. The defendants answered, admitting William’s interest in parcel II, but denying his interest in parcel I on the theory that the J. M. Higgins who acquired title under the 1893 deed was their father and not their grandfather. Thereafter, in 1954, William filed an amended complaint for dissolution of the partnership, an accounting, and for partition not only of the five lots involved in his original complaint, but also of five additional lots across the street which were designated as parcels III and IV. He alleged that he and his brother James formed a partnership in 1898 under the name of Higgins Bros, to carry on a cooperage business originated by their father in 1885 and that when the partnership was formed, his father, J. M. Higgins, made a gift of parcel I to the partnership. The partnership was alleged to have continued until 1935 when James died. He alleged that parcels III and IV were purchased with partnership funds for use in the partnership business, but that title thereto was taken in the name of his brother only under deeds recorded in 1916 and 1919. The defendants denied these allegations and set up the statute of limitations and laches as defenses.

Hearings before a master in chancery commenced in 1955. 7,477 pages of testimony were taken and 633 exhibits were received. The master’s report found that a partnership did exist between William and James which was dissolved in 1935 upon the death of James; that all of the lots were the property of the partnership; that the plaintiff, as surviving partner, had the duty to wind up the affairs of the partnership and liquidate the ten lots, distributing the proceeds one-half to himself and one-half to the defendants as the heirs of James. The master further found that the plaintiff was barred from an accounting of the partnership affairs by reason of laches. The decree of the chancellor incorporated all of the findings of fact made by the master and approved and confirmed his findings of fact and conclusions of law, and relief was decreed accordingly.

The appellants’ first contention is that evidence incompetent by reason of the Evidence Act (Ill Rev Stats, c 51, §§ 2 and 3 (1955)) was received and considered by the master. It appears that shortly after the plaintiff had commenced testifying on preliminary matters, the defendants objected to his competency as a witness. All of the plaintiff’s subsequent testimony was heard subject to the objection, a practice which the master found approved by Wylie v. Bushnell, 277 Ill 484, 115 NE 618 (1917) and Peck v. Peck, 16 Ill2d 268, 157 NE2d 249 (1959). In arriving at his findings of fact, the master stated that he excluded from consideration all of the testimony of the plaintiff except (1) testimony received prior to the objection; (2) testimony relating to the fact of discovery of documents, books and records of the partnership subsequent to the death of his brother; (3) testimony in identification of these papers and (4) testimony relating to the transaction of a mortgage, which was considered for the limited purpose of determining its validity as a charge against five of the lots. The master concluded that the competent evidence in the record fully supported his findings of fact.

There is no question that the master properly considered the testimony received prior to the objection and that which related to events occurring after the death of James. The propriety of the testimony as to the mortgage and the conclusion of the master and chancellor that the mortgage was invalid have not been appealed and are not involved here. The appellants contend, however, that the master permitted the plaintiff to testify (while he was identifying the documents discovered) concerning events, conversations and the circumstances surrounding the documents in violation of the statute. They do not argue that the identification of the documents by the plaintiff was improper.

We agree with the appellants in their contention. The testimony of the plaintiff considered by the master should have been limited to preliminary proof necessary to establish the authenticity of the documentary evidence. Cf. Rude v. Seibert, 22 Ill App2d 477, 161 NE2d 39 (1959); Ailing v. Brazee, 27 Ill App 595 (1888). But the mere presence of incompetent testimony in the record does not constitute reversible error, if there is sufficient competent evidence to support the master’s conclusion. Miller v. Ousley, 334 Ill 183, 165 NE 629 (1929). We will, therefore, consider only the competent evidence in the record, applying thereto the rule that the findings of the master, when approved by the chancellor, will not be disturbed unless they are against the manifest weight of the evidence. Gallagher v. Girote, 23 Ill2d 170, 177 NE2d 103 (1961); Barker v. Barker, 36 Ill App2d 20, 183 NE2d 518 (1962); Pedi v. Jagiencarz, 25 Ill App2d 467, 167 NE2d 447 (1960).

The plaintiff’s evidence mainly consists of the retained documents and records of the Higgins Bros, business, the examination of adverse witnesses and the facts elicited on cross-examination of the defendants’ witnesses. This evidence discloses that J. M. Higgins, the father of the plaintiff and the grandfather of the defendants, was a cooper. The earliest retained record is a business card describing him as a dealer (singular) in secondhand barrels and coopers’ stock on 34th Street in Chicago. The business moved about 1893 to the premises on 31st Place which comprises parcel I of the real estate involved here, and a business card of that era shows this place of business, carries the telephone number Yards 795 and states that the business was established in 1885. In 1885 William was 11 years old and his brother James was 17.

In 1893 J. M. Higgins moved his residence to the 31st Place address and William moved with him. James moved to this address with his wife when the cooperage shop on the premises was completed. William resided there until his marriage, but James continued to live there until his death and his residence was also the office of the business.

J. M. Higgins died in 1903 but prior to his death there had been a change in the structure of the business. A bankbook of 1902 relates to the account of Higgins Bros, with the address of the firm being the 31st Place address. The earliest business card of Higgins Bros, carries the same telephone number as that of J. M. Higgins at the same address, describes their business as wholesale dealers (plural) and bears the statement that the business was founded in 1885. From these facts, the master concluded that Higgins Bros, as a business entity succeeded to the business of J. M. Higgins prior to his death.

As to the relationship of the plaintiff and his brother in the business of Higgins Bros., documents in evidence disclose: (1) a lease of premises on Archer Avenue to William and James (these premises were described on a business card of Higgins Bros, as one of the addresses of the business); (2) a statement to their bank, signed by William and James, opening an account under the name of Higgins Bros., wherein they described themselves as the only members of the firm or copartnership; (3) various bank loans where the brothers were joint obligors, correspondence concerning the lpans addressed to both brothers, and a charge to the account of Higgins Bros, applied as a credit against one of their joint notes; (4) expired insurance policies on the buildings, horses and automobiles of Higgins Bros., and billings thereon to James and William, including in some of them reference to the brothers doing business as Higgins Bros.; (5) billings by the telephone company to James and William for the firm telephone; (6) a lawsuit against both brothers doing business as Higgins Bros.; (7) another suit where James was sued individually as doing business as Higgins Bros, (as to this suit there was a receipt from the creditor to William evidencing part payment of the claim) and (8) although most of the books of Higgins Bros, had been destroyed, one entry in the handwriting of the firm bookkeeper established an equal sharing of profits for the year 1918 for income tax purposes.

There is, of course, evidence to the contrary. There are numerous records from the years immediately prior to the death of James which tend to show that he carried on business individually under the name of Higgins Bros. There is the testimony of witnesses, chiefly employees of Higgins Bros, and dealers in the same line of business, who testified in the main that William was an employee and that James was the boss and that they dealt with James as the sole owner of the business. However, they also admitted that they had no firsthand knowledge of the private business relationship between the brothers. There is also the evidence that in making an application for public assistance in 1941, William stated that he had been employed by his brother as a cooper from 1925 to 1935 and prior to that time was in the cooperage business for himself. Such an admission is not conclusive and may be considered by the trier of fact in connection with all the evidence in the case. Dufield v. Cross, 12 Ill 397 (1851); Ayers v. Metcalf, 39 Ill 307 (1866). It is not conclusive here where the defendants’ witnesses testified to his unbroken connection with the Higgins Bros, business since the 1890’s.

There is sufficient evidence in the record to show a sharing of the profits of the business of Higgins Bros., a holding out to the business world of a partnership relation, and an agreement between the brothers to be partners in the business. The finding of the master that a partnership existed was not against the manifest weight of the evidence.

The evidence shows that James was the dominant figure in the partnership. He was older, better educated, resided on the business premises and gave orders to his brother. For many years his wife was the firm’s bookkeeper. He had complete charge of the business office and of the financial affairs of the partnership while William was supervisor of the yard and drivers. The evidence further shows that to some extent James overreached his brother in financial affairs, particularly when in 1910 he attempted to have the title to parcel II of the real estate conveyed into his own name, although both he and his brother had signed the contract for its purchase.

As to parcels III and IV of the real estate, the evidence shows a conveyance to James and his wife. It further shows that the premises were used exclusively in the business of Higgins Bros., that insurance premiums and real estate taxes thereon were paid by Higgins Bros., that insurance proceeds from a fire loss on these premises were paid to Higgins Bros, and used to reconstruct the improvements. It further shows that in 1921 both brothers protested a proposed local improvement, signing their names as co-owners of all the premises involved in this litigation. No direct proof exists as to the source of funds for the purchase of these parcels, and the contracts for their purchase were made by James individually. However, we think the inference is strong that the premises were bought exclusively for use in the partnership business and paid for with partnership funds, bearing in mind both the previous attempt by James to have parcel II conveyed into his own name despite his brother’s contract interest, and the subsequent charging of the expenses on these parcels to the partnership.

The statute provides that unless the contrary intention appears, property acquired with partnership funds is partnership property. Ill Rev Stats c 106½, par 8(2) (1955). In Korziuk v. Korziuk, 13 Ill2d 238, 148 NE2d 727 (1958) the court stated the following:

“Where real estate is bought with partnership funds for partnership purposes, and is applied to partnership uses or entered or carried on the account of the firm as a partnership asset, it is deemed to be firm property and, in such cases, it makes no difference in a court of equity, whether the title is in all the partners, in one of them, or in a stranger. If the real estate is purchased with partnership funds, the party holding the legal title will be regarded as holding it subject to a resulting trust in favor of the firm furnishing the money.”

We think the competent evidence in the record brings the present case within the above rule and that the finding of the master that these lots were partnership property was not against the manifest weight of the evidence.

Much of the same evidence is relevant to the question of whether parcel I was firm property. As to this parcel, the plaintiff seeks to raise a constructive trust to prevent the heirs of James from obtaining the benefit of any advantage secured by reason of his breach of fiduciary duty and fraud. Compton v. Compton, 414 Ill 149, 111 NE2d 109 (1953). The evidence we have mentioned shows that James occupied a fiduciary relationship toward his brother by reason of his dominant position in the partnership and his control over its financial affairs. The evidence of the plaintiff tends to show an abuse of this relationship both in claiming title to the parcel individually and in appropriating partnership assets for its maintenance. Once the fiduciary relationship is shown to exist, the burden of proving by convincing evidence the propriety, fairness and validity of the acquisition of the title is upon the fiduciary. Tarpoff v. Karandjeff, 17 Ill2d 462, 162 NE2d 1 (1959).

This burden the appellants attempt to meet by showing that the J. M. Higgins who acquired title to this parcel in 1893 was their father. This was prior to the formation of the partnership, and proof of their contention would negate the existence of any fiduciary duty in respect to this parcel. They introduced evidence tending to show that their father’s signature appeared on a trust deed and trust deed note executed contemporaneously with the execution of the deed to the parcel, and that their father and mother unquestionably signed another trust deed upon the parcel in 1902 during the lifetime of the senior J. M. Higgins. However, the trust deed note signed by James M. Higgins and payable to the grantor recited on the reverse side of the note payment by J. M. Higgins. The master found that James never signed his name in that form and that the note was not conclusive proof that he was the grantee. Moreover, for a period after 1938 five of the lots, including parcel I, were leased and the rental was paid to the plaintiff. In addition, the family and business circumstances existing in 1893 tend to support a conclusion that the grandfather was the grantee in the deed, and there is also a presumption that where a father and son have the same name, and a conveyance leaves it uncertain whether the grant is to one or the other, in the absence of proof to the contrary, the father will be presumed to be the grantee. Doty v. Doty, 159 Ill 46, 42 NE 174 (1895). In our opinion, the evidence as to this parcel would support a finding in favor of either party, and we are unable to say that the master’s and chancellor’s findings are against the manifest weight of the evidence.

The defendants’ next contention is that laches and the five year statute of limitations (Ill Rev Stats, c 83, par 16 (1955)) applicable to actions to establish resulting and constructive trusts bar the plaintiff’s action. (Schreiner v. City of Chicago, 406 Ill 75, 92 NE2d 133 (1950)). The master and chancellor found that laches barred the plaintiff’s claim for an accounting from the beginning of the partnership to its dissolution in 1935, and the defendants contend that this finding should also bar the action to impress a trust on the partnership real estate. However, this finding was based upon the futility of ordering an accounting as of the time of the dissolution of the partnership in 1935 because the books and records were largely lost or destroyed and the witnesses deceased, as well as upon the plaintiff’s delay in prosecuting his claim particularly in view of the fact that he had many of the remaining records in his possession since 1937. The same considerations are not necessarily applicable to an action to impose a trust upon the real estate.

After the death of James, his son Frank, with the tacit acquiescence of the other children of James, operated the business. Frank told William that his brothers and sisters agreed that Frank should continue to run his deceased father’s share. The master found that no new partnership was formed between William and Frank, but that the business continued under the name of Higgins Bros. This relationship continued until 1945 when William dissociated himself from the business entirely. Frank was dominant in his relationship and handled the income and profits of the business. During a part of this period William received rents from five of the lots, while the business was carried on from the remaining five lots. Throughout this relationship, William’s participation in the business and his income therefrom grew successively less. In 1946 and 1947 he requested his share of the profits, but was told by Frank that there were none. Finally, in 1949, he proposed that the real estate and business be sold. Frank then told him that he had no interest in either the property or the business. This repudiation instigated the instant action.

Frank Higgins’ statement as to his own authority to continue running his father’s share of the business was both an inducement to let the business continue and a representation that William Higgins had an interest in the business and his interest would be recognized. Although it was William’s duty as the surviving partner to liquidate the business, economic conditions at that time, his own lack of education, legal knowledge and experience in any other business, taken together with the assurance that the business would continue and his interest therein continue, excuse his failure to do so. Under these circumstances, we think the statute of limitations and laches were tolled until the time Frank denied that William had an interest in the property. We consider Frank’s assurances in the light of his subsequent denial, to be a misrepresentation of his true position; his true position is evidenced by a voluntary tax foreclosure proceeding instituted by him in 1947 to which William was not a party although an owner of record to two of the lots foreclosed. The applicable rule is stated in Anderson v. Lybeck, 15 Ill2d 227, 154 NE2d 259 (1958):

“Where beneficiaries of an implied or constructive trust are assured of the acknowledgment and continuance of the trust, the Statute of Limitations will not apply, and where that assurance amounts to a misrepresentation or fraud, the bar of the statute or laches will not apply until after the discovery of the fraud.”

This action was commenced within a reasonable time after the plaintiff discovered that the defendants were denying that he had an interest in the ten lots, and the chancellor was correct in finding that the plaintiff’s claim was barred neither by laches nor by the statute of limitations. The decree of the Circuit Court is affirmed.

Affirmed.

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


author: MR. PRESIDING JUSTICE SULLIVAN

text:
    Rudopi Zanbetiz, a/k/a Rodopi Zambetis, Plaintiff, v. Trans World Airlines, Inc., a Corporation, City of Chicago, a Municipal Corporation and United States Fidelity and Guaranty Company, a Corporation, Defendants. Rudopi Zanbetiz, a/k/a Rodopi Zambetis, Plaintiff-Appellant, v. City of Chicago, a Municipal Corporation, and United States Fidelity and Guaranty Company, a Corporation, Defendants-Appellees.
    Gen. No. 50,539.
    First District, Third Division.
    June 23, 1966.

      Herbert P. Veldenz, of Chicago (Herbert P. Veldenz, Vera E. Cuthbert and George J. Laird, of counsel), for appellant.
    Berchem, Schwantes & Thuma, of Chicago, for appellee.
   MR. PRESIDING JUSTICE SULLIVAN

delivered the opinion of the court.

This case involves an appeal by plaintiff from judgment orders sustaining the motions of the City of Chicago and United States Fidelity and Guaranty Company to strike an amended complaint, and dismissing the amended complaint as to them.

Plaintiff raises the following points: (1) that the motions of the defendants did not comply with section 45 of the Civil Practice Act, and (2) that where a complaint sets forth ultimate facts which point to an imposition through deception upon a legal right possessed by a plaintiff, the complaint states a cause of action.

For a clear understanding of the case, the pertinent allegations of the amended complaint are herein summarized.

Count I alleged that the defendant, City of Chicago, owned, operated and controlled the Chicago O’Hare International Airport, together with the facilities thereon. That Trans World Airlines, Inc., was a public carrier for hire and used and availed itself of the facilities at Chicago O’Hare International Airport. That the plaintiff arrived at the airport on a TWA plane and while using an escalator to obtain her luggage fell, incurring injuries. The plaintiff also alleged that she was at all times in the exercise of ordinary care for her own safety. The amended complaint further alleged that the defendant, City of Chicago, was guilty of acts of negligence or omission which caused the injury to the plaintiff. Other allegations of negligence were asserted against Trans World Airlines, Inc.

Count II of the amended complaint alleged: 1. That on November 17, 1962, the plaintiff was a citizen of the country of Greece and arrived at Chicago O’Hare International Airport to visit relatives in this country. 2. That plaintiff was injured on the premises and notified defendant, Trans World Airlines, Inc. of said injury. 3. That plaintiff did not know that Chicago O’Hare International Airport was owned, operated and controlled by the City of Chicago. 4. That subsequent to said date and on various occasions plaintiff was visited by an investigator or adjuster representing the defendant, United States Fidelity and Guaranty Company, a corporation, and said investigator or adjuster discussed settlement of plaintiff’s claim. 5. That said investigator or adjuster, as agent and servant of defendant, City of Chicago, and United States Fidelity and Guaranty Company, acting within the full scope of his employment, at no time informed the plaintiff that Trans World Airlines, Inc. was not the owner of the said airport, or that the defendant, United States Fidelity and Guaranty Company represented and was acting on behalf of the defendant, City of Chicago. 6. That on March 9, 1964, the plaintiff was informed by the defendants, United States Fidelity and Guaranty Company and City of Chicago that her claim was being denied because of her failure to comply with the statutory notice of injury to the City of Chicago within a six-month period. 7. That said notice from said defendants was the first information the plaintiff had received that her claim might be against someone other than Trans World Airlines, Inc. 8. That the actions of the investigator or adjuster of the defendant, United States Fidelity and Guaranty Company, acting within the full force and scope of his employment as agent of the said defendant, and defendant, City of Chicago, were made to deceive and did deceive the plaintiff, as a result of which the plaintiff has been greatly damaged and deprived of whatever cause of action she might have had at law against the City of Chicago as a result of the negligence of the defendant, City of Chicago.

The original complaint was filed on November 12, 1964, and after motions to dismiss were filed by both the City of Chicago and United States Fidelity and Guaranty Company, the plaintiff obtained leave and filed the amended complaint on January 7, 1965. The defendant, City of Chicago, thereafter filed a motion to dismiss the amended complaint, setting forth that there was no compliance with chapter 24, section 1-4-2, of the Illinois Revised Statutes, entitled Notice of Injury, and is thus barred by virtue of section 1-4-3 of chapter 24. The motion also set forth that the summons initiating the action was taken out on November 12, 1964, more than one year following the accrual of the action and is thus barred by chapter 24, section 1-4-1. The motion also stated, as a further reason for the motion to dismiss, that the allegations of the plaintiff’s amended complaint do not state a cause of action against this defendant.

The motion of the United States Fidelity and Guaranty Company to strike set forth that the complaint failed to state a cause of action against that defendant; that the complaint alleges merely conclusions of the pleader and not ultimate facts, and that the complaint on its face shows a lack of due care and diligence on the part of the plaintiff to inform herself of the proper parties defendant. This motion was permitted by order of court to stand as a motion to strike Count II of the amended complaint.

The motions of both City of Chicago and United States Fidelity and Guaranty Company to dismiss the amended complaint were sustained and orders dismissing the amended complaint as to both of the defendants were entered.

Trans World Airlines, Inc. filed an answer to the amended complaint and is still a party to this proceeding in the trial court.

The orders dismissing the amended complaint contained appropriate language to the effect that there was no just reason for delay of enforcement and appeal of the orders.

The plaintiff first argues the deficiencies in both motions and points out that under section 45 of the Illinois Practice Act (Ill Rev Stats 1963, c 110, § 45) a motion to strike and dismiss must specifically point out the defects complained of and a motion to dismiss on the ground that the complaint is insufficient in law must point out where the complaint is insufficient. The motion of the City of Chicago specifically pointed out the failure of the plaintiff to notify the City of Chicago within six months from the date of such injury, and other information required by statute, (Ill Rev Stats 1963, c 24, par 1-4-2,) and, likewise, was specific in pointing out that upon the failure to give such notice, as provided, any such civil action commenced against a municipality shall be dismissed and that said party shall be forever barred from suing. (Ill Rev Stats 1963, c 24, par 1-4-3.) Said motion was specific, also, in pointing out that under section 1-4-1 of c 24 (Ill Rev Stats 1963, c 24, par 1-4-1), the action was not initiated within one year after the cause of action accrued.

The motion of the City of Chicago, in stating that the allegations of plaintiff’s amended complaint do not state a cause of action against the City of Chicago, did not comply with the provisions of section 45 of the Illinois Practice Act (Ill Rev Stats 1963, c 110, § 45) in that it failed to point out wherein the amended complaint was insufficient as a matter of law. The motion of United States Fidelity and Guaranty Company to dismiss the amended complaint was, likewise, in general terms and failed to point where the amended complaint was insufficient. However, the record in this case fails to disclose that any objection to the insufficiency of the motions was made in the trial court.

In Yellen v. Bloom, 326 Ill App 134, 61 NE2d 269, on page 138, the court said:

“Plaintiff asserts that defendants’ motions to strike and dismiss are not sufficient in law. Rule 42 of the municipal court of Chicago requires all objections to pleadings to be raised by motion, which shall point out specifically the defects complained of, and that where the motion is to dismiss, or for judgment, or to strike the pleading, because it is insufficient in law, it (the motion) must specify wherein such pleading is insufficient. The rule is substantially the same as sec 45 of the Civil Practice Act (par 169, ch 110, Ill Rev Stat 1943 (Jones Ill Stats Ann 104.045)). The statute and the rules indicate that motions to dismiss or to strike are required to be in writing, for they speak of the ‘filing of the motion.’ In the instant case the notice stated that motions would be made and the motions were made. However, they were not in writing. The clerk in making the record wrote the motions as they appeared in the notices, or as they were stated orally. The oral motions were heard without objection as to form. At this time plaintiff cannot be heard to complain. The record recites that the court was fully advised in the premises. The better and safer practice is to file written motions.” (Emphasis supplied.)

Numerous cases have been cited by the plaintiff and both defendants regarding the insufficiency and sufficiency of the motions, but we believe it would serve no purpose to discuss the many cases cited, inasmuch as no objections to the form or sufficiency of the motions were raised in the trial court. Since the sufficiency of the motions was not attacked in the trial court, objections to them cannot be raised here for the first time on appeal.

We now come to the question of whether the amended complaint stated a cause of action. On a motion to strike and to dismiss, the pleading is construed most strongly against the pleader. Stedman v. Spiros, 23 Ill App2d 69, 161 NE2d 590; Washington v. Courtesy Motor Sales, Inc., 48 Ill App2d 380, 199 NE2d 263; Delta Die Casting Co. v. Village of Schiller Park, 17 Ill App2d 543, 150 NE2d 843.

An examination of the amended complaint satisfies us that the action of the trial court in dismissing the amended complaint as to the City of Chicago and United States Fidelity and Guaranty Company was correct. The amended complaint, after alleging the injury and notice to Trans World Airlines, Inc., and the fact that the plaintiff was not aware that Chicago O’Hare International Airport was owned, operated and controlled by the City of Chicago, alleges in paragraph 4 that subsequent to said date (the date of injury) and on various occasions, plaintiff was visited by an investigator representing the defendant, United States Fidelity and Guaranty Company, and the investigator discussed settlement of plaintiff’s claim. The amended complaint failed to allege when the investigator or adjuster visited the plaintiff other than to state that it was subsequent to the date of the accident. If the first visit of the investigator was more than six months after the accident, and by construing the pleading most strongly against the pleader such could be the case, then nothing the investigator said to the plaintiff or did would have been of any consequence for the reason that the time for serving the notice, required by the Cities and Villages Act, upon the defendant, City of Chicago, would have expired, and nothing could be done to correct the failure to serve such a notice within the six month period.

But let us now look to the other allegations of the amended complaint. An attempt has been made to allege a cause of action based on fraud. In Katzin v. Nabco Liquidating Co., 323 Ill App 286, 55 NE2d 409, it was stated that it is settled law that a motion to strike is in the nature of a general demurrer and it admits the truth only of facts properly pleaded, as distinguished from conclusions and every allegation is to be taken most strongly against the pleader. The amended complaint alleges that the plaintiff assumed that Trans World Airlines, Inc. owned and controlled the O’Hare International Airport, but it does not allege that the plaintiff communicated her assumption to the defendants. The plaintiff, according to the amended complaint, did not ask the agent of the defendants who was the owner of the airport. The conclusion by the plaintiff that Trans World Airlines, Inc. owned and operated the airport was not induced by the representative of the defendants. The amended complaint does not allege that the representative of the defendants knew that the plaintiff had the belief that Trans World Airlines, Inc. owned or controlled the airport. The plaintiff relies to some extent on the case of Peterson v. Yacktman, 25 Ill App2d 208, 166 NE2d 452. On page 213 in that case the court said:

“In the case of Bennett v. Hodge, 374 Ill 326, at 331, the court restated the classical elements of fraud as follows:
“ Tt is agreed all of the following elements must be proved in an action based on fraud: (1) The misrepresentation must be of a statement of fact; (2) it must be made for the purpose of influencing the other party to act; (3) it must be untrue; (4) the party making the statement must know or believe it to be untrue; (5) the person to whom it is made must believe and rely on the statement; (6) the statement must be material.’ ”

In the case before us there is no allegation that the representative of the defendants made any representation or misrepresentation as to the ownership of the O’Hare International Airport either by his action or in writing or orally. The allegation in the amended complaint that the representative of the defendants at no time informed the plaintiff that Trans World Airlines, Inc. was not the owner of the airport, or that the United States Fidelity and Guaranty Company represented and was acting on behalf of the defendant, City of Chicago, is not a* charge of concealment which would be actionable unless there was a legal obligation on the part of the investigator to so inform the plaintiff.

In 23 Am Jur, Fraud & Deceit, p 852, § 77, the following statement appears: “Where there is no obligation to speak, silence cannot be termed ‘suppression’ and is not fraud. Either party may, therefore, be innocently silent as to matters upon which each may openly exercise his judgment.” The amended complaint fails to allege that there was any discussion concerning ownership or control of O’Hare International Airport, or that the plaintiff at any time made inquiry respecting the ownership or control. Furthermore, there is no allegation to the effect that plaintiff told the representative of the defendants that she thought Trans World Airlines, Inc. owned or controlled the premises, and that he remained silent. In Ringel v. Pearson, 306 Ill App 285, 293, 28 NE2d 576, the court said: “It is a well-recognized rule that one who seeks relief on account of fraudulent statements must have relied upon such statements.” Here no statements were allegedly made regarding the ownership of O’Hare International Airport, and mere silence by the investigator on the subject cannot be construed as a fraudulent representation.

In Kohl v. Lindley, 39 Ill 195, it was claimed that the seller by silence falsely represented the condition of a quantity of hay, and on page 201 the court said: “To make the mere suppression of a fact, such a fraud as will justify a court in declaring the contract void, we believe the more modern and more correct doctrine to be, there must be something more than a failure to communicate facts within the knowledge of the party selling — there must be concealment, and that may consist in withholding the information when it is asked for, or by making use of some device to mislead, thus involving act and intention.”

Failure to volunteer information does not constitute fraud. The public records were available to the plaintiff from which she could obtain information as to ownership of the airport. In Champion v. Woods, 79 Cal 17, 21 P 534, 535, the court said: “It is a general principle that if the means of knowledge be at hand, and equally available to both parties, and the subject-matter be open to inspection to both alike, and there be no fiduciary or confidential relation, and no warranty of the facts, the injured party must show that he has availed himself of the means of information existing at the time of the transaction before he will be heard to say that he was deceived by the misrepresentations of the other party.” Since no fiduciary or confidential relation existed here, and there was no warranty of the facts, and the plaintiff did not show that she availed herself of the means of information (the public records) existing at the time, she cannot now claim that she was deceived by any acts of the defendants’ representative. See also Villareal v. Trevino, 30 Ill App2d 77, 173 NE2d 582.

We conclude that the amended complaint failed to allege a cause of action for fraud and deceit, and the orders of the trial court dismissing the defendants, City of Chicago and United States Fidelity and Guaranty Company, are therefore affirmed.

Affirmed.

SCHWARTZ and DEMPSEY, JJ., concur.


author: MR. JUSTICE SCHWARTZ

text:
    Community Savings and Loan Association, a Corporation, Plaintiff-Appellant, v. The Cosmopolitan National Bank of Chicago, a National Banking Association, as Trustee Under Trust No. 9731 dated April 18, 1960, John Borghi, et al., Defendants-Appellees.
    Gen. No. 50,677.
    First District, Third Division.
    June 23, 1966.
    Rehearing denied July 14, 1966.

      Henry T. Synek and David I. Herbst, of Chicago, for appellant.
    Benedek & Benedek and Norman Crawford, of Chicago, for John Borghi, appellee.
   MR. JUSTICE SCHWARTZ

delivered the opinion of the court.

This case involves a dispute over the distribution of rents collected by a receiver of mortgaged premises during the one-year period of redemption following a foreclosure sale. Community Savings and Loan Association (Association), the mortgagee, has appealed from a judgment for $6,733.04 entered against it and in favor of John Borghi, sole holder of the beneficial interest under a land trust in which Cosmopolitan National Bank of Chicago (Bank), the mortgagor, was trustee. The judgment was rendered in a proceeding pursuant to section 72 of the Civil Practice Act and was an aftermath of proceedings to foreclose the mortgage given by the Bank to the Association. At the outset of the foreclosure proceedings a receiver had been appointed, and in due course pursuant to a decree of foreclosure a sale was had at which the Association bid in the property for the full amount of the indebtedness. At the expiration of the period of redemption the receiver had on hand the sum of $8,233.04. On July 2, 1964, the court entered an order which recited that the cause came on to be heard upon the motion of the Association for approval of the receiver’s report, setting the receiver’s fees, directing the receiver to turn over the balance of the funds on hand to the Association, and for the discharge of the receiver. The order concluded that all persons in interest had been duly served with notice and that the court had been fully advised in the premises. As a matter of fact no notice was served on the Bank or on Borghi, the real party in interest, whose appearance and answer had been duly filed in the foreclosure suit long prior to the entry of the order. The court in the July 2 order allowed the receiver $1,500 and ordered that he forthwith pay to the Association the balance of the cash on hand, to apply on the payment of the 1962 and 1963 real estate taxes, both of which were then delinquent. The Association thereafter paid the taxes.

More than thirty days after the entry of the order Borghi filed a petition under section 72, seeking to have the order set aside. The petition alleged that no notice of the motion for entry of the order had been given to Borghi or his attorney. It further alleged that had due notice been given, the court would not have ordered any further payments to the Association, as the indebtedness due it had been satisfied out of the proceeds of the sale of the mortgaged property. Petitioner prayed that the court vacate the order of July 2, 1964, and that it direct the Association to account and pay to the petitioner, as owner of the equity of redemption, the sums received by the Association from the receiver and award judgment in the sum of $6,733.04 in favor of petitioner and against the Association. The court at first was of the opinion that the order should not be vacated and so decided, but in due time came to a contrary conclusion and on motion entered the judgment from which this appeal is taken.

The Association contends that the July 2 order was merely in compliance with an order entered on April 8, 1963, appointing the receiver; that the April 8 order directed the receiver to pay taxes; and that because Borghi failed to object to that order, failed to move to vacate or modify it, failed to appeal from it, and failed to notify the receiver that he would be held responsible for funds applied to the payment of taxes, he is estopped by laches or res judicata from “indirectly attacking said order of April 8, 1963 by attacking the order entered on July 2,1964.”

For a full understanding of the case it is necessary to set out the facts in some detail. In 1962 the Bank, as trustee under a land trust, signed a note for $50,000 payable to the Association and executed a mortgage and assignment of rents to secure the debt. The note obligated the mortgagor to pay along with each monthly installment of principal and interest one-twelfth of the estimated taxes and assessments on the mortgaged property and neither the mortgagor nor any person beneficially interested in the property was subject to personal liability.

In February, 1963, the Association brought suit to foreclose the mortgage, alleging default in the payment of principal and interest. In its complaint, an accounting of sums due the Association was sought, including principal and interest in the sum of $49,781.30, attorneys’ fees of $3,000, future expenses, and “such other sums of money as plaintiff will be obliged to advance for the payment of taxes and special assessments.” The petitioner, the Bank and other parties interested in the premises appeared and defended.

On April 8, 1963, on motion of the Association for the appointment of a receiver pendente lite, a temporary receiver was appointed to take possession of the property and to “have the usual powers of receivers in like cases, including the power to rent said premises and to collect the rents thereof, and out of the income from said premises to maintain the same in necessary repair, to keep the same insured, to pay taxes, assessments and water rates thereon, all without requiring separate and further orders from this Court for each such expenditure and to hold the net proceeds subject to the further order of this Court.” This order will hereinafter be referred to as the April 8 order.

On May 7, 1963, the Association filed an affidavit pursuant to statute (Ill Rev Stats, c 95, § 22b (1963)) that the sum of $53,366.28 was due and owing for principal, interest, attorneys’ fees and expenses, and that in addition further sums would become due for title expenses, court costs, “Receiver’s fees, and such other sums for repairs and maintenance . . . which likewise will become a charge under and by virtue of the terms of said mortgage.” It is significant that the affidavit, unlike the complaint, set forth no claim for taxes. The foreclosure decree was entered on the same date, fixing the amount of the lien at $53,366.28. Like the affidavit, the decree made no allowance for taxes so that unpaid taxes were not declared in the decree to be a part of the lien of the mortgage.

On June 6, 1963, the Association bid in the property at the Master’s Sale for $54,069.39. The court entered a decree confirming the Master’s report and finding that after deducting the costs and fees involved in the sale, there was no deficiency due the Association. The decree also reserved jurisdiction of the cause “for the purpose of appointing a receiver of the premises . . . during the running of the period of redemption, in case application is made for such appointment, and in case the court decides .that a receiver should be appointed.” However, the temporary receiver who had been appointed by virtue of the April 8, 1963 order remained in possession until June 6, 1964, the date of the expiration of the statutory period of redemption, and no other receiver was ever appointed.

On July 2, 1964, without notice having been given to any interested parties, the receiver’s first and final report and account was filed and confirmed by the court. The Association nevertheless was present. The report represented that a Master’s Deed had been issued to the Association and possession of the premises surrendered to it and that during the receiver’s possession the sum of $10,177.50 in rents had been collected and disbursements of $1,939.46 had been made for “maintenance and current expenses,” leaving a balance of $8,233.04. The report further represented that 1962 and 1963 real estate taxes on the premises were unpaid and that “pursuant to an order of court heretofore entered, [the receiver] was obligated to pay such taxes” and “that in lieu of the payment of such taxes he requests an order of court directing him to turn the funds over to the plaintiff herein [the Association] for the purpose of payment of such taxes.” A receiver’s fee of $1,500 was awarded and the court ordered the balance, $6,733.-04, to be paid to the Association as requested, reciting, however, that the distribution was made on motion of the Association. The Association applied the sum, together with its own funds, to the payment of some $15,-000 in back taxes for 1962 and 1963, the lien for which had attached before the foreclosure sale.

On October 29, 1964, Borghi filed a petition under section 72 of the Civil Practice Act, alleging lack of notice and asking that the court modify the order of July 2, 1964, by directing that the Association pay to him as the owner of the equity of redemption all sums of money which it received from the receiver pursuant to the order. After initially denying the petition, as before stated, the court found the issues in favor of the petitioner and entered the judgment in question.

The controlling principles of law have been well settled for generations and are not here in dispute. The purchaser at a judicial sale takes the property subject to all outstanding liens thereon. Davis v. Dale, 150 Ill 239, 37 NE 215. After the sale and during the running of the period of redemption (see Ill Rev Stats, c 77, § 18 (1965)), the possession and enjoyment of the premises remain with the owner of the equity of redemption, subject to the right of the mortgagee, if so provided in the mortgage or otherwise, to have possession and enjoyment insofar as necessary to satisfy the debt. Standish v. Musgrove, 223 Ill 500, 506, 79 NE 161; Chicago Joint Stock Land Bank v. McCambridge, 343 Ill 456, 461, 175 NE 834. In Davis v. Dale, supra, these principles were applied to prevent a receiver from applying sums collected as rents and profits during the period of redemption to the payment of taxes that accrued during the same period. The court in that case emphasized that the purchaser at the foreclosure sale “took the estate . . . subject to all prior liens to which it would have been subject in the hands of the mortgagor” and that absent redemption, any payment of taxes by the receiver would inure to the benefit of the purchaser. (Pages 244, 245.) In Bothman v. Lindstrom, 221 Ill App 262, 266, 267, this rule was applied to taxes that accrued before the foreclosure sale, as in the instant case. See Stevens v. Hadfield, 196 Ill 253, 256, 63 NE 633; 2 Reeves, Illinois Mortgages, § 564; cf. Powell v. Voight, 348 Ill 605, 608, 609, 181 NE 403; Builder’s Bond & Mortgage Co. v. Bickley, 274 Ill App 638, 646, 647; Verst v. Fore man-State Trust & Savings Bank, 270 Ill App 484, 486 (dictum).

The Association admits that this is the law, but it earnestly argues that the April 8 order obligated the receiver to pay taxes and in reliance thereon it assumed that the property would be conveyed to the Association free of tax liens. It argues that the petitioner who was party defendant and who was in court when the order of April 8 was entered had a duty to object to or appeal from the order appointing the receiver or so much of it as directed the payment of taxes, and that his failure to do so bars his present claim either because he is guilty of laches or because the April 8 order is res judicata of the issues here involved. This is a misunderstanding of the nature of that order. It did not create an obligation on the part of the receiver to pay taxes, but granted him authority to do so along with authority to make other disbursements that might be necessary in the performance of his duties.

The procedures at a foreclosure sale must be on the assumption that the bidding will be competitive. A purchaser at such a sale, whether he be a stranger, a mortgagee or a creditor, cannot expect that the property would by virtue of such an order be acquired free of all tax liens and base his bid on that assumption. If the order had affirmatively directed that taxes on the property were to be paid out of funds in the hands of the receiver, it is by no means implausible that other bidders would have been attracted to bid at a price higher than that paid by the Association. Furthermore, it is difficult to see any basis on which the petitioner might have contested the April 8 order because a mortgagee has a well established right to a receiver pendente lite if necessary to protect his security, with the powers there provided. See Ill Rev Stats, c 95, § 23.6(G) (1963). It is true that the continued possession by the temporary receiver after the foreclosure sale might have been successfully challenged by the petitioner, but his failure so to do in no way prejudiced the Association, whose bid by that time had been made and accepted.

The Association relies on Reardon v. Youngquist, 189 Ill App 3, where a receiver was sought to be surcharged for certain allegedly improper disbursements, including a tax payment made pursuant to a court order which explicitly directed the payment of a specific sum for a specific tax. The court held that the receiver could not be made personally liable since the interested parties had been given notice to the order to pay the tax in question and did not object. Failure to object, the court said, “savors of an attempt to entrap the receiver. . . .” (P 13.) In the instant case the April 8 order authorized but did not direct the payment of taxes and did not designate a particular tax that had fallen due and should be paid. A general order, such as that herein entered, cannot be the basis for a claim of entrapment. It is clear that the receiver did not rely on that order, but after the sale applied to the court for permission to pay over the sum in question to the Association. Moreover, it was the Association, not the receiver, which paid the taxes and against which judgment was asked and entered. There is no basis for extending to the Association the special protections which were afforded to a receiver, an officer of the court, under the circumstances present in the Reardon case, hereinbefore discussed.

The Association took the property subject to tax liens and has attempted to pay the taxes owing thereon with money which in law belongs to the petitioner. It argues that by the judgment appealed from, the petitioner has been unjustly enriched at its expense because the property is not worth the price bid for it. There is no evidence in the record to support this assertion and even if true, we could not make this unique departure from the law and say in substance that while the purchaser has bid $54,069.39, the property is worth less and hence the court will direct that the difference be made up out of funds in the hands of the receiver. It might be fireside equity, but not law. If there is any windfall to the petitioner, it cannot be attributed to any improper act on his part.

Judgment affirmed.

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


author: MR. JUSTICE MCCORMICK

text:
    Christian P. Roder, Plaintiff-Appellant, v. Paul C. Dobbs, d/b/a Embassy Roofing and Insulation Co., Defendant-Appellee.
    Gen. No. 49,870.
    First District, Fourth Division.
    June 24, 1966.

      Coghlan, Coghlan and Joyce, of Chicago (Thomas J. Joyce, of counsel), for appellant.
    Howard and French, of Chicago (Richard G. French, of counsel), for appellee.
   MR. JUSTICE MCCORMICK

delivered the opinion of the court.

Christian P. Roder, plaintiff, brought an action under the Illinois Structural Work Act (Ill Rev Stats 1965, c 48, §§ 60, 69). In his complaint he alleges that on July 17, 1958, Paul C. Dobbs, the defendant, was engaged in the business of repairing roofs on buildings and that on and before July 17, the defendant, by his servants, was repairing a roof on a building located at 8821 North Damen Avenue; that while thus engaged, defendant “was in complete control and was supervising the work which was being done on said building”; that at the time servants of defendant were using ladders placed against the exterior of the building in order to gain access to the roof; that the plaintiff was a sheet metal worker engaged in other repair work on the building; that the plaintiff was lawfully on the premises in performance of his work, and that while he was ascending the ladders they collapsed, causing the plaintiff to fall and sustain injuries.

It is also alleged that “in connection with said repair work, it was the duty of the defendant to provide ladders to gain access to the roof of the building, which were erected, constructed and maintained in a safe, suitable and proper manner, and erected, constructed, placed, and maintained so as to give proper protection to the life and limb of the plaintiff herein, in accordance with the applicable provisions” of the Illinois Structural Work Act. It is further alleged that the defendant violated the provisions of the statute and “wilfully failed, refused and neglected to have the said combination of ladders erected and maintained in a safe, suitable, and proper manner, so as to give proper and adequate protection to the . . . plaintiff herein, while he was in the performance of his duties on the said ladders.”

At the close of the plaintiff’s case the trial judge directed a verdict in favor of defendant and entered a judgment from which plaintiff appeals. The single issue presented to this court is whether the evidence considered in the light most favorable to the plaintiff would be sufficient to support a finding in his favor.

The plaintiff testified that he operated a small shop which engaged in sheet metal work; that he had been in that business for forty years; that he had entered into a contract with the owner of a building located on North Damen Avenue, in Chicago, in which contract he had agreed to remove the old rain gutters from the building and to install new ones. The plaintiff further testified that the owner of the building had entered into another contract with the defendant to put a roof on the building, and that there was an agreement with the owner to have a roofer there at the time when the plaintiff would be there, in order to save money; that the date set for the work to be done was July 16, 1958. The plaintiff further testified that he was not working under the supervision of anyone; that he had never spoken with the defendant or any of his employees with reference to the use of the ladders, and that none of them asked him to leave a ladder for them.

Continuing his testimony, plaintiff said that on July 16, 1958, the date on which he assumed the parties were to start their respective work, he went to the work site without taking a ladder with him, expecting or hoping to find that defendant’s crew had already arrived and had supplied a ladder. Plaintiff found no other workers there, so he returned to his shop and procured a set of extension ladders, then returned to the work site. He stated that he had tested the rungs of the ladder before using it and had found the ladder to be sturdy and safe. He placed the ladder against the building and used it several times while completing his work on the gutter system of the house. By 10:30 a. m. the same day he had installed the gutters. He did not know whether or not the defendant’s crew was going to show up, so he tied the extension ladder to the gutter on the roof of the house with sash cords. The plaintiff testified that he left the ladder there “in case the roofers didn’t show up, so I could go back up and plastic the gutters” to make them waterproof. Plaintiff did not at any time plastic the gutters.

Plaintiff’s brother testified that he had been employed in the sheet metal business installing gutters on roofs for about sixteen years; and that there was a custom between sheet metal tradesmen and roofing tradesmen to use just one ladder to get to the roofs. Thomas Brown testified on behalf of the plaintiff that he had worked as a roofer on jobs where other tradesmen were working concurrently, or at the same time, and that he had observed roofers and sheet metal workers gain access to roofs by the use of ladders. He further testified that “It’s a very common thing for anybody just to come over and ask us to use it or ask us to use our ladder and do such, either going up to a roof or coming down.”

The plaintiff testified that he returned to the work site at about noon on July 16, that he saw one man going up the ladder with a rope, and saw one man on the roof. Plaintiff stated that during his experience in working on gutters and around roofs he had noticed that roofers used a rope for bringing materials up to the roof. He testified that he returned to the site at about 2:00 or 2:30 p. m.; that he noticed there had been a fire which had burned the tires off the tar pot; and that defendant’s equipment was being moved east on Berenice Street. Plaintiff testified that he returned to the job site the next day, July 17, at about 3:30 p. m.; that since there was no one there he assumed the job was done, and he decided to take his ladder down; that in order to do that it was necessary to untie the sash cord with which he had attached the ladder to the roof; that he started up the ladder, put his left foot on the sixth rung, and when he put his weight on it the rung fell out and he fell to the ground. He testified that he saw the rung lying in front of the ladder, and that “it was about 18 inches long, and it looked very jagged on both ends.” (The rung of the ladder was not produced in court and plaintiff testified that the ladder had been destroyed.)

A witness who lived in the building which was being repaired, and whose family owned the building, testified that it was understood that the gutter men and the roofing men would arrange the date when they would repair the roof and gutters; that she had noticed the plaintiff had left his ladder standing against the house, and that it was the only ladder there.

The plaintiff claims that the court should have permitted the case to go to the jury. He argues that the question of who had charge of the work should have been submitted to the jury. The defendant argues that since the plaintiff was a contractor on the job who had owned, installed and maintained the ladders in question, plaintiff was one of those persons in charge of the work within the meaning of the Illinois Structural Work Act. The defendant also contends that the plaintiff failed to prove that the defendant was in charge of the work at the time the plaintiff was injured, and that the plaintiff failed to prove that defendant committed a wilful or knowing violation of the Act (Ill Rev Stats 1965, c 48, § § 60, 69). The pertinent portions of that Act are:

“60. § 1. ... all scaffolds, hoists, cranes, stays, ladders . . . erected ... by any person, firm or corporation in this State for the use in the erection, repairing, alteration, removal or painting of any . . . building . . . shall be erected and constructed, in a safe, suitable and proper manner, and shall be so erected and constructed, placed and operated as to give proper and adequate protection to the life and limb of any person or persons employed or engaged thereon, . . .
“69. § 9. Any owner, contractor, sub-contractor, foreman or other person having charge of the erection, construction, repairing, alteration, removal or painting of any building ... or other structure within the provisions of this act, shall comply with all the terms thereof, and any such owner, contractor, sub-contractor, foreman or other person violating any of the provisions of this act shall upon conviction thereof be fined not less than $25, nor more than $500 or imprisoned for not less than three months nor more than two years or both fined and imprisoned in the discretion of the court.
a
“For any injury to person or property, occasioned by any wilful violations of this act, or wilful failure to comply with any of its provisions, a right of action shall accrue to the party injured, for any direct damages sustained thereby; . .

The first question to be determined is whether or not, at the time of the accident on July 17, 1958, defendant had charge of the repairing or alteration of the building in question; and if so, did he knowingly violate the Act by erecting an unsafe ladder? The phrase, “having charge of,” involves a question of statutory consideration. In Gannon v. Chicago, M., St. P. & P. Ry. Co., 22 Ill2d 305, 175 NE2d 785, a complete history of the Structural Work Act is given, together with the interpretations that are laid down by the courts up to the time of the filing of the decision. In that case the court cited and quoted with approval from Schmid v. United States, 154 F Supp 81, in which the court said:

“It was not the intention of the legislature that the owner should be liable regardless of who was in charge of the work, but to hold the person in charge of the work responsible regardless of whether it was the owner, contractor, sub-contractor, foreman, or other person having charge of the building project. This can be the only logical conclusion. If the legislature intended otherwise, certainly more appropriate and clearer and less ambiguous language could have been used.”

In the Gannon case the court, in construing the statutory phrase, “having charge of the erection, construction, repairing, alteration, removal or painting of any building, bridge, viaduct or other structure within the provisions of this act,” said that the words “having charge of,” as far as owners, subcontractors, contractors and foremen are concerned, are the heart of the provision. The court further discussed in full the history of the Structural Work Act and stated that from this history it is evident that that Act was originally enacted to give some protection to structural workers engaged in extra hazardous work at a time when there was no Workmen’s Compensation Act.

In the instant case the ladder was brought to the building and placed in position against the wall by plaintiff. He left it there because, since he had no information as to when defendant would repair the roof, the plaintiff felt it would be necessary for him to put plastic on the gutters if the defendant did not show up at the job. There was no agreement with the defendant concerning the use of plaintiff’s ladder, nor does it appear from plaintiff’s testimony that he placed any reliance upon the custom which was said to exist between sheet metal tradesmen and roofing tradesmen to use just one ladder to get to the roof.

The evidence of the plaintiff further indicates that he left the premises about 10:30 a. m.; that he returned at about noon on about the same day, when he saw a man going up the ladder with a rope; that the purpose of the rope was to aid in bringing materials up to the roof; that he again came to the work site at about 2:00 or 2:30 p. m., at which time defendant’s workmen, because of a fire in their tar pot, had stopped work and apparently did not reappear that day. The defendant testified that the work of putting a new roof on the building was not completed because of the fire in the tar pot, and that his men could not have returned on July 17, because they did not have a tar kettle at that time. Under those circumstances it could be found as a matter of law that when defendant’s employees left the site on July 16 they were no longer in charge of the work.

The plaintiff argues strenuously that the ladder rung must have been broken by defendant’s employees. This argument is based on the testimony of Nick Roder, brother of plaintiff, that he picked up the ladder rung and “it looked like it was broken and set right back in there.” The statement made by that witness is definitely a conclusion, and it is not corroborated by any other testimony in the record. On July 17 the plaintiff had full charge of the work and could have removed the ladder if he so desired.

In order to establish a case for the plaintiff, even if there was evidence that the defendant had charge of the work at the time of the accident, it would be necessary for the plaintiff to prove that the ladder was knowingly impaired by the defendant. The evidence in the record indicates that the defendant was using the ladder only for a period some time after 10:30 a. m. until approximately 2:00 p. m., and the only testimony with reference to defendant’s use of the ladder is that of the plaintiff who saw one man going to the roof by use of the ladder. The defendant, as an adverse witness, testified that he had a four-man crew on the job, one of whom tended the tar kettle, and the other three were on the roof. There is nothing in the evidence from which any inference could be drawn that the defendant used the ladder for the purpose of carrying heavy weights to the roof. Consequently, there is no evidence whatsoever in the record that the ladder was knowingly impaired by the defendant.

In Burger v. Van Severen, 39 Ill App2d 205, 188 NE2d 373, a suit was brought by the plaintiff to recover damages for injuries when the scaffold upon which he was working collapsed. He filed suit against the defendant, Van Severen, who had erected the scaffold, and against the general contractor, Rock Island Lumber Company. The jury returned a verdict against the defendant, but awarded no damages. The motions of plaintiff and defendant were overruled and judgment entered upon the verdict. In that case the Rock Island Lumber Company had executed a contract with the owner of the property to put new shingles and a new gutter on his house. The lumber company sublet the gutter work to the plaintiff ■and sublet the shingling to the defendant. The defendant commenced work on April 13, 1960, and in order to lay shingles on the roof he erected a scaffold. Plaintiff went to the work site to find out whether he could use defendant’s scaffold in doing his gutter repair work. The evidence is that the - defendant informed him he could do so and that the plaintiff and his helper used defendant’s scaffold to install a section of gutter; that the scaffold collapsed and the plaintiff fell to the ground. In a cross-appeal the defendant contended that the trial court erred in denying his motion for a judgment in favor of defendant on the issue of liability, and in support of that contention he argued that the defendant was not an employee but an independent unrelated subcontractor, and that plaintiff was therefore not within the intended protection of the Illinois Structural Work Act. The court distinguished the Gannon case on the ground not only that in the Burger case the defendant was a subcontractor while the defendant in the Gannon case was the owner, but also because of defendant’s participation in the work being done and his responsibility for and his control over the scaffold. The court said:

“In the case before us, the defendant was a subcontractor participating in a phase of the alterations which required a scaffold. He was the party who built the scaffold and was responsible for its safe construction and use. Under these facts, the defendant had charge of the work within the meaning and provisions of the Illinois Structural Work Act, supra. Lawler v. Pepper Const. Co., 33 Ill App 2d 188, 178 NE2d 687.”

In Lawler v. Pepper Const. Co., 33 Ill App2d 188, 178 NE2d 687, which was an action for personal injuries arising out of the Illinois Structural Work Act, the verdict was for the plaintiff. Defendant had appealed on the grounds that he did not have charge of the work within the meaning of the statute; that there was no evidence of wilful violation as required by the statute; that the verdict was against the manifest weight of the evidence; and that the court erred in admitting evidence and in refusing instructions.

Pepper Construction Company, defendant, was a subcontractor engaged by the American Glass Company to assist it in remodeling fifteen store windows on the State Street side of the Marshall Field & Company store in Chicago. The pattern of operation was for American to remove the glass from the windows, then Pepper would take out the old sashes and molding from around the windows and the transoms above the windows, and do other preparatory work. After this was done metal workers employed by American would install new sashes and other workmen would complete the job. James Lawler, the plaintiff, was one of the metal workers.

As part of its contract Pepper erected barricades four feet out on the sidewalk, around the open windows, and Pepper constructed a wooden scaffold in order to do the work which took three days for each window. When the window was completed the scaffold was dismantled and rebuilt as a second window was started. At the end of one Friday afternoon, Pepper had finished a window and notified American that the sheet metal workers could proceed. The Pepper foreman testified that he had instructed his carpenters to disassemble the scaffold and placed lumber inside the store window. He said he saw this done before he left the job. At 8:00 o’clock on Saturday morning Lawler and two other metal workers entered the barricade. They testified that the scaffold was in place so they used it as two of them had done, in the presence of Pepper’s foreman, on other occasions. After about three hours, when they were on the platform the scaffold sagged, and Lawler, who was in the middle, fell backwards and was injured. Pepper’s foreman denied seeing employees of American Glass use the scaffold and said they had no permission to do so. He said he thought the scaffold had been disassembled Friday afternoon but when he came back Monday morning it was assembled and one of the braces was hanging loose.

The first ground urged for reversal was that Pepper did not have charge of the work within the meaning of the statute. The defendant sought to come within the interpretation given the statute in Gannon v. Chicago, M., St. P. & P. Ry. Co., 22 Ill2d 305, 175 NE2d 785, in which case it was held that a property owner who exercised no control over the scaffolds and ladders used in construction work on its premises and no control over the manner in which the work was done could not have been deemed to have charge of the work under the terms of the Act. The court pointed out that the facts in the Lawler case differ widely from those in Gannon inasmuch as Pepper was a subcontractor and the defendant in Gannon was an owner, and also because of Pepper’s participation in the work being done and its responsibility for and its control over the scaffold. The court also took the view that the jury could have found that the employees of American had used the Pepper scaffold during the course of remodeling the windows; that Pepper had left its scaffold up on Friday, knowing that the metal workers would be following it on the job, and that this was equivalent to an invitation to them to continue using it. “Pepper was a subcontractor participating in a phase of the alteration which required a scaffold; it was the party who built the scaffold and was responsible for its safe construction and use. Under these facts Pepper had charge of the alteration within the meaning and the provisions of the Act.”

With reference to the question as to whether or not there was a wilful violation as required by the statute, the court in Lawler pointed out that the words “wilful violations” in the Act have been construed to be synonymous with the words “knowing violations.” (Citing Gannon and Kennerly v. Shell Oil Co., 13 Ill2d 431, 150 NE 2d 134.) The court held that from the evidence the jury could have concluded that dangerous defects existed in the scaffold which were either known to the defendant or, because it built and used the scaffold, could have been known through the exercise of reasonable care. The judgment of the trial court was affirmed.

In our opinion, the Lawler case is controlling in the instant case. Plaintiff did not prove, as he alleged in his complaint, “that the defendant at the time of the accident was in complete control or was supervising the work which was being done on said building.” The plaintiff alleged in his complaint that the servants of the defendant were using a combination of ladders to gain access to the roof of the building. He failed to prove that “on the date and at the location stated, the defendant wilfully violated the provisions of the statute aforesaid, and he wilfully failed, refused and neglected to have the said combination of ladders erected and maintained in a safe, suitable, and proper manner, so as to give proper and adequate protection to the life and limb of the plaintiff herein, while he was in the performance of his duties on the said ladders, so as to prevent any injury to the plaintiff.”

From a consideration of all the evidence in the case before us it is apparent that at the time when the plaintiff began to ascend the ladder for the purpose of taking it away, he and he alone was in charge of the work, and consequently of the ladder which he himself had erected.

The judgment of the Circuit Court is affirmed.

Affirmed.

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

       The plaintiff testified that he had seen an employee of the defendant going up the ladder with a rope, and that from his experience the rope was carried to the roof to be used for bringing materials to the roof. There is nothing in the testimony to the effect that any of the defendant’s workmen used the ladder while carrying any materials.


author: JUSTICE ABRAHAMSON.

text:
    Brookhaven Plaza Corporation, Plaintiff-Appellant, v. County of DuPage, a Body Politic and Corporate, Defendant-Appellee.
    Gen. No. 65-95.
    Second District.
    June 29, 1966.
    Jack M. Siegel and Ross, Hardies, O’Keefe, Babcock, McDugald & Parsons, all of Chicago, for appellant; William V. Hopf, State’s Attorney, and Edward Van de Houten, Jr., Assistant State’s Attorney, of Wheaton, for appellee.
   Opinion by

JUSTICE ABRAHAMSON.

Not to be published in full.