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04/19/88 Sam A. Sianis, v. Susan Kay Kettler Et Al.

April 19, 1988

SAM A. SIANIS, PLAINTIFF-APPELLEE

v.

SUSAN KAY KETTLER ET AL., DEFENDANTS (DONALD F. COLBY, DEFENDANT-APPELLANT)



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, SECOND DIVISION

523 N.E.2d 157, 168 Ill. App. 3d 1071, 119 Ill. Dec. 689 1988.IL.557

Appeal from the Circuit Court of Cook County; the Hon. Kenneth J. Cohen, Judge, presiding.

APPELLATE Judges:

JUSTICE BILANDIC delivered the opinion of the court. HARTMAN, P.J., and SCARIANO, J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE BILANDIC

Plaintiff, Sam Sianis, filed a joint action for possession and rent under the Forcible Entry and Detainer Act against defendants Susan Kay Fashions, Inc. (hereinafter Corporation), Donald F. Colby (hereinafter Colby), and others. (Ill. Rev. Stat. 1985, ch. 110, par. 9-209.) After a bench trial, judgment was entered in favor of plaintiff and against the Corporation and Colby for possession. No appeal has been taken by either defendant on this count. The trial court found that an oral month-to-month lease for commercial property in Skokie, Illinois, existed between the plaintiff and Colby. Therefore, judgment for past-due rent was entered in favor of plaintiff and against Colby in the sum of $14,350 plus costs. Defendant Colby appeals.

This action involves the store premises at 3444-46 and 3462 West Dempster Avenue in Skokie, Illinois. Colby's defense is that the lease was between the Corporation and the plaintiff. The Corporation filed a responsive pleading admitting the tenancy and the delinquency in rent. Colby argues that the judgment of the trial court is against the manifest weight of the evidence and, therefore, must be reversed. At trial, defendant Colby and the Corporation were represented by the same attorney. I

At a trial without a jury, where the testimony is contradictory, the determination of the credibility of witnesses and the weight to be accorded to their testimony are matters for determination by the trial court, and its findings will not be disturbed on appeal unless they are manifestly against the weight of the evidence. (Northern Trust Co. v. City of Chicago (1954), 4 Ill. 2d 432, 436, 123 N.E.2d 330.) On appeal, the judgment is presumed to be correct and the burden is upon the party assigning error to establish such error. (Sims v. Chicago Transit Authority (1955), 7 Ill. App. 2d 21, 28, 129 N.E.2d 23.) It is not the province of the reviewing court to search the record for the purpose of discovering error. (Lester v. Bugni (1942), 316 Ill. App. 19, 26, 44 N.E.2d 68.) Here, the record supports the trial court's determination and it is not against the manifest weight of the evidence.

A

At the bench trial conducted on October 14, 1986, plaintiff testified that he was the landlord and that on or about March 1985, he met with Colby and leased the premises in question to him on an oral month-to-month basis. At this first meeting, Colby gave plaintiff a check for $1,100 drawn on Colby's personal account. On its face, the check had the following notation: "Rent -- April '85 -- 3444 Dempster." Other personal checks of Colby's were also used to pay rent. Plaintiff testified that Colby was the only person with whom he dealt. He was not aware of any Corporation. When the rent was delinquent, he discussed the matter with Colby. The Corporation was formed on August 29, 1985, months after the initial meeting with Colby. Some rent checks were drawn on the Corporation account, after it was formed, but they were always signed by Colby. There also was evidence of the use of Colby's personal checks for rent even after the Corporation was formed.

Colby was the only witness for the defense. He testified that he first met the plaintiff at the Billy Goat Tavern in Chicago in December 1984. His version was that he met plaintiff to talk about leasing the premises to the Corporation which was going to be formed. He admitted, however, that nothing appeared on his personal checks to show that payment was being made other than in his individual capacity. There was no endorsement or any note or memorandum indicating that payment was on behalf of a corporation to be formed or an existing corporation.

Defendant Colby testified that all rental payments made with his personal checks were reimbursed by the Corporation. However, none of the reimbursement checks were produced or offered in evidence.

Colby has failed to meet his burden on appeal. According to his own testimony, he first discussed the matter with plaintiff in December 1984. He claims to be the agent for a disclosed principal, the Corporation, from the very outset. Yet, the Corporation did not come into existence until about eight months later, on August 29, 1985. Colby, an experienced businessman, did not present a scintilla of documentary or corroborating evidence to ...


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