APPEAL from the Circuit Court of Cook County; the Hon. RAYMOND
K. BERG, Judge, presiding.
MR. JUSTICE ROMITI DELIVERED THE OPINION OF THE COURT:
In this action the plaintiff, James Murphy, a former lieutenant in the Chicago Police Department, sought issuance of a writ of mandamus to compel payment of his salary for the period of his suspension from the department. Defendants in the suit were the Chicago Police Board and the following city officials: James Rochford, who was then superintendent of police, Clark Burrus, city comptroller, and Joseph Bertrand, city treasurer. Defendants moved to strike and dismiss the complaint and also moved for summary judgment. Following a hearing on the motions the trial court granted summary judgment for defendants. Plaintiff has appealed from that order, basing that appeal generally on three assertions: (1) summary judgment was improperly granted on the basis of a release which was void for lack of consideration; (2) the suit was not barred by laches; (3) this suit should have been governed under res judicata principles by a prior Federal decision.
We reverse and remand for trial.
• 1 On review of an order granting summary judgment we must determine whether the trial court correctly determined that no genuine issue of material fact remained for trial; if no such issue remained, then we must determine whether judgment was correctly entered for the movant. (Joseph W. O'Brien Co. v. Highland Lake Construction Co. (1972), 9 Ill. App.3d 408, 292 N.E.2d 205.) To that end we will summarize the facts before the trial court as established by the pleadings.
On July 22, 1972, plaintiff was suspended by the superintendent of police for allegedly violating certain rules of conduct of the Chicago Police Department. The alleged violations stemmed from plaintiff's pleading of the Fifth Amendment and refusal to testify before a Federal grand jury on June 21, 1972. The suspension continued until plaintiff resigned from the department on January 7, 1973. Plaintiff, whose monthly salary was $1,608, was not paid for the period of his suspension.
On January 24, 1973 the plaintiff signed the following release:
"For and in consideration of the sum of one dollar ($1.00) to me in hand paid and other good and valuable considerations, the receipt of which is hereby acknowledged, I hereby release and waive any and all claims for salary, rights of action or causes of action which I have or may have against the City of Chicago, arising out of any thing done or left undone from the beginning of the world down to the signing of these presents, and particularly because of my resignation from the office or position of lieutenant in the Department of Police of the City of Chicago on or about the 8th day of January A.D. 1973, and for all salary and compensation during the period from 22 July 1972 to and including the date of 8 January 1973."
After plaintiff's resignation a suit was filed by six other police officers and by the Confederation of Police (C.O.P.) on behalf of its members challenging the propriety of suspensions and firings of those six officers. The departmental actions against those officers were based on alleged violations of the same rules involved in plaintiff's suspension, and also arose out of invocation of the Fifth Amendment privilege against self-incrimination before a grand jury. The suit was filed in the Federal District Court of the Northern District of Illinois, and resulted in an injunction requiring the defendants (officials of the Police Department, including Superintendent Conlisk, and members of the Police Board), to reinstate the plaintiffs to their jobs with payment of back wages. Defendants were additionally enjoined and restrained from "penalizing plaintiffs in any way for their assertion of their rights against self-incrimination * * *." The judgment was affirmed on appeal by the United States Court of Appeals for the Seventh Circuit on November 29, 1973. Certiorari was denied by the United States Supreme Court on April 22, 1974. (Confederation of Police v. Conlisk (7th Cir. 1973), 489 F.2d 891, cert. denied (1974), 416 U.S. 956, 40 L.Ed.2d 307, 94 S.Ct. 1971 (hereinafter Conlisk.)) In his pleadings plaintiff stated that he was a member of the C.O.P. at "all times relevant."
Plaintiff instituted this action on August 20, 1974.
• 2, 3 The order of the trial court was clearly based on the release signed by the plaintiff. Plaintiff generally alleges that the release was invalid for lack of consideration, specifically arguing that the recited consideration of one dollar was as a matter of law insufficient to support his waiver of his salary for the period of his suspension. But plaintiff is relying on an inapplicable, although correct, legal doctrine, that "* * * payment of a part of a fixed and certain demand which is due and not in dispute is no satisfaction of the whole debt, even where the creditor agrees to receive a part for the whole and gives a receipt for the whole demand." (Ostrander v. Scott (1896), 161 Ill. 339, 345, 43 N.E. 1089, 1090; cited in Mederacke v. Becker (1970), 129 Ill. App.2d 434, 263 N.E.2d 257.) As the court in Ostrander went on to state, "[This rule] has no application to the honest settlement of unliquidated or disputed demands. * * * [I]f the balance due is disputed and the subject of an honest settlement and adjustment by the parties, such settlement will bar a recovery." (Ostrander, 161 Ill. 339, 345, 43 N.E. 1089, 1090.) At the time plaintiff signed the release, it was not established that any salary was due him for the period of his suspension. The Federal suit which he now claims established his right to that salary had not even been commenced at that time. Therefore, plaintiff's salary claim was in dispute and subject to a valid settlement for a lesser amount at the time he signed the release. In such a situation the courts generally will not inquire into the sufficiency of the consideration. Wickstrom v. Vern E. Alden Co. (1968), 99 Ill. App.2d 254, 240 N.E.2d 401.
Ordinarily then, the consideration cited, "one dollar * * * and other good and valuable considerations," would be presumed to be adequate. But, in the hearing on this motion before the trial court, counsel for defendants chose to elaborate on the nature of the consideration involved. The test of a motion for summary judgment is in the entire record. (Klesath v. Barber (1972), 4 Ill. App.3d 86, 280 N.E.2d 283.) Therefore, we have reviewed the record of that hearing. At that hearing defendants' counsel stated:
"The Court understands valuable consideration. In other words, not proceeding to go to trial and let [sic] him resign and he [sic] would withdraw all of the charges before him before the Board. That is the consideration he was seeking, because even if he resigned, he could have been charged, tried, and convicted * * *."
• 4, 5 These representations of fact by defendants' attorney strongly suggest that part of the consideration for the release signed by plaintiff was an agreement not to prosecute him. An agreement not to prosecute is void because it is against public policy, as well as possibly constituting a criminal offense. (Griner v. Griner (1976), 34 Ill. App.3d 792, 340 N.E.2d 304; Williamsen v. Jernberg (1968), 99 Ill. App.2d 371, 240 N.E.2d 758; Ill. Rev. Stat. 1975, ch. 38, par. 32-1; also see Boyd v. Adams (7th Cir. 1975), 513 F.2d 83.) Clearly, such an agreement could not constitute valid consideration for the release. Nor could the recited consideration of one dollar suffice, for it is not logically separable from the ...