{ "id": 2853293, "name": "ITT Abrasive Products Company, Plaintiff-Appellee, v. John W. Lewis, Secretary of State, Defendant-Appellant", "name_abbreviation": "ITT Abrasive Products Co. v. Lewis", "decision_date": "1973-05-18", "docket_number": "No. 56894", "first_page": "83", "last_page": "87", "citations": [ { "type": "official", "cite": "12 Ill. App. 3d 83" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "150 N.E.2d 818", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "14 Ill.2d 111", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2768938 ], "opinion_index": 0, "case_paths": [ "/ill-2d/14/0111-01" ] }, { "cite": "82 N.E.2d 393", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "335 Ill. App. 519", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 5021477 ], "opinion_index": 0, "case_paths": [ "/ill-app/335/0519-01" ] }, { "cite": "298 Ill. App. 625", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 5614116, 5614344, 5616205, 5614253, 5614672 ], "opinion_index": 0, "case_paths": [ "/ill-app/298/0625-01", "/ill-app/298/0625-03", "/ill-app/298/0625-02", "/ill-app/298/0625-04", "/ill-app/298/0625-05" ] }, { "cite": "206 Ill.App. 406", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 5397647 ], "opinion_index": 0, "case_paths": [ "/ill-app/206/0406-01" ] }, { "cite": "186 N.E.2d 390", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "38 Ill.App.2d 38", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 5255651 ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/38/0038-01" ] }, { "cite": "229 Ill. App. 133", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 3072243 ], "opinion_index": 0, "case_paths": [ "/ill-app/229/0133-01" ] }, { "cite": "262 N.E.2d 833", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "128 Ill.App.2d 139", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 2652739 ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/128/0139-01" ] }, { "cite": "149 N.E.2d 641", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "17 Ill.App.2d 230", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 5184502 ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/17/0230-01" ] }, { "cite": "43 N.E.2d 575", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "315 Ill. App. 623", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 5646550 ], "pin_cites": [ { "page": "639, 640" } ], "opinion_index": 0, "case_paths": [ "/ill-app/315/0623-01" ] } ], "analysis": { "cardinality": 536, "char_count": 9646, "ocr_confidence": 0.754, "pagerank": { "raw": 1.5113474812531902e-07, "percentile": 0.667546447688649 }, "sha256": "6e2b0014602325d61c41630481d512c5b40958afce6633c602a6f961b035abf6", "simhash": "1:937516c33d42bc6b", "word_count": 1590 }, "last_updated": "2023-07-14T15:56:16.526311+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "ITT Abrasive Products Company, Plaintiff-Appellee, v. John W. Lewis, Secretary of State, Defendant-Appellant." ], "opinions": [ { "text": "Mr. PRESIDING JUSTICE DRUCKER\ndelivered the opinion of the coxirt:\nDefendant appeals from a judgment granting plaintiff\u2019s prayer that it be permitted to pay its 1967 Illinois franchise taxes and license fees on the basis of what is commonly referred to as the \u201cin state-out of state\u201d apportionment formula. Defendant contends that plaintiff was under obligation to pay such taxes and fees on the basis of its entire stated capital and paid-in surplus.\nThe facts were stipulated to by the parties and in relevant part are as follows:\n1. Prior to December 31, 1966, Plaintiff, ITT ABRASIVE PRODUCTS COMPANY, a Corporation of Michigan, hereinafter referred to as \u2018ABRASIVE\u2019 was known as STERLING GRINDING WHEEL COMPANY, a Michigan Corporation, hereinafter referred to as \u2018STERLING\u2019. Its stated capital was $50,000 and it had no paid-in surplus.\n2. Also prior to December 31, 1968, THE PENINSULAR GRINDING WHEEL COMPANY, a Corporation of Michigan, hereinafter referred to as \u2018PENINSULAR\u2019 had a stated capital of $25,000 with no paid-in surplus.\n3. For the years through December 1966, both these corporations filed annual reports and paid the minimum Franchise Tax under the Illinois Business Corporation Act based upon the election of the respective corporations to pay such Tax based on their entire stated capital and paid-in surplus.\n4. Pursuant to an agreement of merger dated December 15, 1966, effective December 31, 1966, entered into between STERLING and PENINSULAR, PENINSULAR was merged into STERLING and the stated capital of STERLING, whose name was changed by the agreement of merger to ITT ABRASIVE PRODUCTS COMPANY, remained at $50,000.\n5. PENINSULAR was later dissolved as a corporation in the State of Michigan and was withdrawn from doing business in the State of Illinois, and proper notification was given the defendant herein.\n6. The records of the defendant disclose that it received on February 28, 1967, an Annual Report (* * # ABRASIVE\u2019S Exhibit 3) in the name of STERLING which set forth a stated capital of $50,000 and no paid-in surplus. In this Annual Report ABRASIVE elected to be taxed on its entire stated capital of $50,000 and no paid-in surplus. The records of ABRASIVE disclose that another Annual Report (* * * ABRASIVE\u2019S Exhibit 4) was ostensibly mailed on February 21, 1967, to the defendant. The records of defendant do not reflect the receipt of Exhibit 4 in which ABRASIVE elected to be taxed on an \u2018in state out of state\u2019 basis, the alternative method.\n# * #\n11. On June 24, 1968, ABRASIVE executed and forwarded to Defendant its Supplemental Annual Report for the year 1968, * * * setting forth a stated capital of $50,000 and paid-in surplus of $4,547,460 for a total of $4,597,460, and in said report elected to be taxed on the \u2018in state out of state\u2019 basis.\u201d\nBased upon the facts set forth in paragraph 6 above, the trial court concluded that there was a presumption that plaintiff\u2019s other annual report (Abrasive\u2019s Exhibit 4) requesting taxation on the basis of the apportionment formula had been received by defendant and that this presumption had not been rebutted by the fact that defendant\u2019s records failed to show that said report was received. The court, as noted, then ordered that plaintiff be permitted to pay its taxes and fees based upon said apportionment formula. Defendant contests the aforesaid conclusion. Opinion\nThe rule of law relied upon by the trial court is set forth in Talmage v. Union Central Life Insurance Co., 315 Ill. App. 623, 639, 640, 43 N.E.2d 575, wherein the court stated:\n\u201cThe rule is that proof of the due mailing of a letter raises the presumption of its receipt, and when the receipt thereof is denied, the only effect is to raise an issue of fact.\u201d\nSee Loving v. Allstate Insurance Co., 17 Ill.App.2d 230, 149 N.E.2d 641; Werdell v. Turzynski, 128 Ill.App.2d 139, 262 N.E.2d 833.\nBut in order to invoke the cited presumption there must be proof that the letter, or report here (Abrasive\u2019s Exhibit 4), was duly mailed. In this case the only proof to this effect was the statement set forth in Paragraph 6 of the stipulation of facts that the records of plaintiff \u201cdisclose that another Annual Report [Abrasive\u2019s Exhibit 4] * # # was ostensibly mailed on February 21, 1967, to the defendant.\u201d (Our emphasis.)\nIn construing the terms of a stipulation, as in construing the terms of a contract, the main objective of the court is to determine the intention of the parties. Pearce v. Walker, 229 Ill. App. 133. Each word must be given its ordinary meaning. State Toll Highioay Com. v. Boyle & Co., 38 Ill.App.2d 38, 186 N.E.2d 390.\nThe use of the word \u201costensibly\u201d in the stipulation is of significance here. It is defined in Webster\u2019s Third New International Dictionary (unabridged 1964 ed.), p. 1597, as:\n\u201cla: capable of being shown: * * *. 2: professing genuineness and sincerity but often concealing the real aspects behind a plausible facade * *\nIn the context of the law of partnership and agency \u201costensible\u201d takes on the following meanings (Black\u2019s Law Dictionary (4th ed. 1968), p. 1252):\n\u201cOSTENSIBLE AGENCY. An implied or presumptive agency, which exists where one, * # *, induces another to believe that a third person is his agent, though he never in fact employed him. # # #\nOSTENSIBLE PARTNER. One whose name appears to the world as such, though he have no interest in the firm. #\nBased on the foregoing definitions, it is evident that the parties did not stipulate that Abrasive\u2019s Exhibit 4 (the other annual report) had in fact been duly mailed, but only that plaintiff\u2019s records showed that said report was \u201ccapable of being shown\u201d to have been mailed, or \u201cpresumably\u201d mailed. If the parties had intended to stipulate that the report was in fact mailed, they could have simply deleted the word \u201costensibly\u201d from the stipulation.\nThus, the fact which the court relied upon (due mailing) to invoke the presumption was not in evidence. Under these circumstances it was error for it to have concluded that Abrasive\u2019s Exhibit 4 had been received by defendant. See People v. Roy, 206 Ill.App. 406; Meyer v. Krug, 298 Ill. App. 625, 19 N.E.2d Ill. (abst.); State Bank of East Moline v. Standaert, 335 Ill. App. 519, 82 N.E.2d 393. Roy at page 412 referred to this as basing a presumption on a presumption. Therefore, the only report which may be deemed to have been filed by plaintiff in 1967 is the annual report, Abrasive\u2019s Exhibit 3, in which it requested to be taxed on the basis of its entire stated capital and paid-in surplus.\nWhile all the arguments of the parties, pro and con, have related to the question treated with above concerning a report (Exhibit 4) which plaintiff claims was mailed on February 21, 1967, this approach may well be beside the point. If it were to be hypothesized, arguendo, that such a report had been received by defendant, it would presumptively have been received prior to February 28, 1967. Yet the stipulation is clear that on that date a report (Exhibit 3) was in fact received based on plaintiff\u2019s entire stated capital and paid-in surplus. That being so, the later report (Exhibit 3) would be considered as amending or superseding the earlier one (Exhibit 4) and would be controlling in any event.\nFinally, we note the record shows that plaintiff paid a franchise tax bill of $25 on May 24, 1967, and a supplemental bill of $75 on September 1, 1967, both of which were based upon its entire stated capital and paid-in surplus (although said figures were grossly understated considering the figures set forth in the stipulation of facts). These payments made three and six months after filing of the report give added confirmation to the efficacy of Exhibit 3 and, in themselves, go far toward defeating plaintiffs argument relying on its alleged filing of a report electing a different basis for payment of its taxes.\nThe cause is remanded with directions to vacate the judgment and enter judgment for defendant in the amount determined by computing the respective taxes and fees for the year 1967 on the basis of plaintiffs entire stated capital and paid-in surplus.\nReversed and remanded with directions.\nENGLISH and LORENZ, JJ., concur.\nThe relevant statutory provisions are sections 136 and 139 of the Business Corporation Act (Ill. Rev. Stat. 1967, ch. 32, pars. 157.136 and 157.139), which in part provide that a foreign corporation will have its franchise taxes and license fees computed on an \u201cin state-out of state\u201d apportionment formula unless, as section 139 provides:\n\u201c(a) If the corporation elects in its annual report in any year to pay its franchise tax upon the sum of its entire stated capital and paid-in surplus, all franchise taxes accruing against the corporation after the filing of said annual report shall be assessed acordingly, until the corporation, elects otherwise (1) in a subsequent annual report filed on or before June 25 of said year and before payment of its annual franchise tax or supplemental annual franchise tax, * * *.\u201d\nAn amendment to an annual report filed after June 25 which seeks to change the basis of computing said taxes and fees is not effective. U.S. Borax Corp. v. Carpentier, 14 Ill.2d 111, 150 N.E.2d 818.\nAbrasive\u2019s Exhibit 3 bears a notation: \u201cPd. $25.00 on 5/24/67.\u201d", "type": "majority", "author": "Mr. PRESIDING JUSTICE DRUCKER" } ], "attorneys": [ "William J. Scott, Attorney General, of Chicago, (Francis T. Crowe and Samuel E. Hirsch, Assistant Attorneys General, of counsel,) for appellant.", "John A. McElligott, of Chicago, (Henry J. McDonald, of counsel,) for appellee." ], "corrections": "", "head_matter": "ITT Abrasive Products Company, Plaintiff-Appellee, v. John W. Lewis, Secretary of State, Defendant-Appellant.\n(No. 56894;\nFirst District (5th Division)\nMay 18, 1973.\nWilliam J. Scott, Attorney General, of Chicago, (Francis T. Crowe and Samuel E. Hirsch, Assistant Attorneys General, of counsel,) for appellant.\nJohn A. McElligott, of Chicago, (Henry J. McDonald, of counsel,) for appellee." }, "file_name": "0083-01", "first_page_order": 103, "last_page_order": 107 }