text:
    Sigrid Abbott, Plaintiff-Cross-Defendant-Appellee, v. Jack Abbott, Defendant-Cross-Plaintiff-Appellant.
    Gen. No. 11,194.
    Fourth District.
    September 17, 1970.

      Unger & Stewart, of Danville (John Unger, of counsel) , for appellant.
    Sebat, Swanson, Banks & Lesson, of Danville (Gill Garman, of counsel), for appellee.
   TRAPP, J.

Defendant appeals from an order adjudging him in contempt with a sentence to jail, “. . . for ten days and also remain in jail every day after the ten-day period until the child is returned to the mother.”

Plaintiff has filed a motion to dismiss the appeal from the sentence for contempt, contending that defendant cannot appeal from such until he has complied with the order directing him to deliver custody to the mother. Defendant has filed a bond approved by the trial court conditioned upon his appearance as required by law. Under Supreme Court Rule 305 such would be expected to operate as a supersedeas, c 110A, § 305, Ill Rev Stats 1969.

Plaintiff cites Garrett v. Garrett, 341 Ill 232, 173 NE 107; Wick v. Wick, 19 Ill2d 457, 167 NE2d 207 and Burns v. Burns, 35 Ill App2d 34, 181 NE2d 605. These cases do not sustain plaintiff’s motion.

In Garrett, defendant sought a writ of error upon a decree for divorce which also enjoined the disposition of real estate. At such time, the defendant was a fugitive from a sentence for contempt. This was not an appeal from such sentence. Noting that a writ of error was a new suit in which the former defendant became plaintiff, the Supreme Court exercised its discretion to refuse affirmative relief while a party in a position of a plaintiff refused to obey the order of the trial court. In Wick, defendant appealed from an order, the effect of which was to hold him in contempt. The opinion actually holds that the plaintiff wife, who had disobeyed the order of the trial court by removing the children from the state would be denied the affirmative relief of contempt proceedings against defendant. In Burns, defendant appealed from an order changing custody of a child. At such time he had been held in contempt of court. Such case does not concern the sentence for contempt and defendant was described as seeking the aid of the court in other proceedings, i. e., the custody of the child while in contempt of the trial court’s order. The motion to dismiss the appeal is denied.

A divorce complaint was filed against defendant on May 8th, 1969. At the same time the plaintiff wife filed a motion for “temporary relief,” asking, among other things, that the defendant be ordered to return the custody of a child of 16 months to her. At a hearing on June 3rd, evidence was heard to the effect that plaintiff had left defendant without word or notice, and since then had been living at a hotel of less than the best repute and working at various bars. It appears that at or about the time plaintiff left the defendant, he had placed the child with his sister and that the child remained in such custody throughout the times preceding the several hearings thereafter discussed. The evidence showed that the defendant had not sought out plaintiff to give her any money during the period since she had left him. It was defendant’s position at such hearing that it was not proper for the wife to have custody of the child while she was living under such circumstances. The plaintiff had not introduced evidence of her specific needs and the hearing on temporary support was continued for two weeks. As a part of his remarks, the court stated that there was no showing that plaintiff was unfit to have custody, and that defendant was ordered forthwith to deliver custody to the plaintiff. On June 10th, plaintiff sought a rule against defendant to show cause for failure to deliver custody and an injunction restraining proceedings concerning custody in another division of the court. The record shows no action upon the injunction. At a hearing on June 17th, the plaintiff testified that no one had brought the child to her. Defendant’s testimony is referred to hereafter. The court found defendant in contempt and sentenced him as noted.

We find no written order providing for temporary custody. The court’s oral statement that the child be delivered forthwith to the mother was made during his discussion of counsel’s arguments and of the evidence upon the issue of temporary support. The record does not suggest that the final statement of the court upon the issue of custody forthwith was addressed to defendant as distinguished from a colloquy with counsel. The opinion in People v. Kennedy, 43 Ill App2d 299, 193 NE2d 464, notes that the defendant in certain contempt proceedings was expressly and directly admonished as to the oral order of the court and further advised that a failure would make him subject to contempt.

The statement of the trial court in the record upon finding contempt that, “. . . of course the order was clearly understood,” is not a matter of judicial knowledge. Dines v. The People, 39 v App 565. In that case, a county clerk was found guilty of contempt for destroying certain ballots contrary to an order of the court filed with him as Clerk of the County Court. It was held that the judge’s stated knowledge or recollection that the clerk did know the contents of the order could not be made a part of the record, and hence, was a personal rather than a judicial knowledge. It takes but a few moments of a trial judge’s time to directly elicit from a party a response indicating that he understands the proceedings or the court’s oral orders and incorporate such into the record. People v. Lloyd Bell (Supplemental Opinion), 104 Ill App2d 479, 244 NE2d 321. The record is wanting in this respect.

The defendant also argues that there can be no finding of contempt where the party is unable to obey the order of the court. This issue remains obfuscated in this record. It appears that approximately a year prior to these hearings proceedings were instituted in another division of the circuit court concerning the dependency of this child. The court sustained objections to the questions upon the status of these proceedings in such other division. The statute, c 37, § 701-21, Ill Rev Stats 1967, reflects that the State’s Attorney is concerned in such dependency proceedings. Upon such record the trial court stated, in summary, that there was no evidence that the defendant could not comply with the order to deliver custody of the child and expressed the view that since defendant had placed the child at the home of the sister, it was up to him to get it back. It is improper to adjudge a party in contempt of court where compliance would require him to violate the law. Halverson v. Halverson, 42 Ill App2d 284, 192 NE2d 258. An order committing for contempt is erroneous where the court heard no evidence upon the issue of whether the inability to comply with the court’s order was voluntarily created. Mattioda v. Mattioda, 101 Ill App2d 475, 243 NE2d 495.

As to the portion of the sentence imposed for criminal contempt as an affront to the authority of the court, there must be proof beyond reasonable doubt. City of Chicago v. Hart Bldg. Corp., 116 Ill App2d 39, 253 NE 2d 496 and People ex rel. Chicago Bar Ass’n v. Barasch, 21 Ill2d 407,173 NE2d 417.

The final decree subsequently entered in this cause awarded a divorce to this defendant as counter-plaintiff, recognized pending judicial proceedings concerning the minor child and continued the temporary custody and placement of the child as provided in such proceedings. The portion of the order providing for jail sentence until the custody of the child was delivered to the mother is, therefore, moot. In this state of the record, no useful purpose is served by remanding for further proceedings upon the issue of criminal contempt.

We do not reach the alleged error argued upon the denial of a change of judge, and the denial of a jury trial upon the contempt aspect of the divorce proceedings. The order of the trial court is reversed.

Reversed.

SMITH, P. J. and RICHARDS, J., concur.


source: Caselaw Access Project

author: SMITH, J.

license: Public Domain

text:
    First Professional Leasing Co., an Illinois Corporation, Plaintiff-Appellee, v. James D. Kearney and Carlos F. Baker, Defendants, Carlos F. Baker, Defendant-Appellant.
    Gen. No. 11,259.
    Fourth District.
    September 17, 1970.

      John M. Roncone, of Springfield, for appellant.
    Rotter, Baldwin & Tagge, of Springfield, for appellee.
   SMITH, J.

Plaintiff confessed judgment on a demand note against the defendants for $8,333.59. Baker filed his motion to open up this judgment supported by his own affidavit and that of his attorney and tendered an answer setting forth alleged defenses on the merits. The trial court denied the motion and refused to open the judgment. It appears that the defendant, James D. Kearney, sold certain office furniture and equipment to the plaintiff for $6,400. The plaintiff then leased the equipment back to Kearney on a three-year contract and required Kearney to deposit as collateral with the written lease a demand note with some party acceptable to the plaintiff as comaker. Baker was acceptable to the plaintiff and signed the note. Kearney defaulted on his lease and judgment was taken on the note. The motion to open up the judgment was properly denied.

Defendant’s motion is based on Supreme Court Rule 276, Ill Rev Stats 1969, c 110A, § 276, which in substance provides that a motion to open a judgment by confession shall be supported by affidavit in the manner provided by Rule 191 for summary judgment and shall be accompanied by a verified answer which defendant proposes to file. If the motion and affidavit disclose a prima facie defense on the merits to the whole or a part of the plaintiff’s demand, the court shall set the motion for hearing. The requirements of Rule 191, Ill Rev Stats 1969, c 110A, § 191, are that they shall be made on the personal knowledge of the affiant, shall set forth with particularity the facts upon which the claim, counterclaim or defense is based, shall have attached thereto sworn or certified copies of all papers upon which the affiant relies, shall not consist of conclusions but of facts admissible in evidence and shall affirmatively show that the affiant if sworn as a witness can testify competently thereto. Absent conformity with these requirements, the motion to open up the judgment was properly denied.

Baker’s attorney filed an affidavit stating that at his request he had examined the file of the plaintiff, that in the file was a conveyance of the furniture and equipment from Wiley Office Equipment Company to a company whose name he did not recall, that the file further showed a bill of sale from Kearney to the plaintiff, that he advised plaintiff’s president that there was nothing in the file showing that title to the furniture and the equipment had ever vested in Kearney, that about a week later he spoke to Kearney by phone and asked him if he had ever received a bill of sale or other evidence of ownership of the furniture and equipment either prior to, at the time of, or subsequent to the execution of the bill of sale that he, Kearney, had given the plaintiff and that Kearney advised that he had not.

The affidavit of Baker was that he had examined a copy of the lease agreement prior to executing a note, that he was led by the plaintiff and Kearney to believe that the plaintiff had title to the furniture and equipment which is the subject of the lease agreement, that he was recently advised by his attorney that the examination of the plaintiff’s file failed to disclose that Kearney ever had title to the furniture and equipment and that he had been advised by his attorney that Kearney had advised the attorney that he (Kearney) had never received a bill of sale or other evidence of ownership of the furniture and equipment. He likewise stated that neither the plaintiff nor the defendant had ever owned the subject furniture and equipment and do not own such furniture and equipment and had he known this he would not have signed the note.

We recognize that the motion here considered must be viewed under liberal equitable principles and the right to present the defense upon the merits is considered an exercise of the conscience of the court. Larsh v. Green Gold Farms, Inc., 68 Ill App2d 113, 214 NE2d 924; National Blvd. Bank of Chicago v. Corydon Travel Bureau, Inc., 95 Ill App2d 281, 238 NE2d 81. There must, however, be something set up in the affidavits conforming to the requirements of Rule 191 which would trigger the conscience of the court. There is nothing in either affidavit that suggests a meritorious defense to the whole or any part of this judgment. Apparently the theory is that at the time Kearney gave the bill of sale to the plaintiff he (Kearney) had no evidence that he owned the property. The record only shows that Kearney stated that he had no bill of sale or evidence of title. The record is silent as to whether he was asked if he owned the property. Most, if not all, of Baker’s affidavit is pure hearsay or conclusions unsupported by any facts in this record. The affidavit of the attorney establishes that the plaintiff did have in his file a bill of sale from Kearney. There isn’t a single provable fact stated either in the affidavit or in the answer which undermines this bill of sale. Under the terms of the lease, the property was to have been kept and used for business purposes in Birmingham, Alabama. Baker knew this because the lease said so. There is nothing in the record that indicates that anyone else had ever claimed title to this property or ever possessed the property. Kearney defaulted on his contract. The record does not show why. Under these circumstances, there is simply nothing which suggests a meritorious defense on any part of the judgment nor that either of the affiants could testify if sworn as a witness to any facts material to a defense. Under such circumstances, the conscience of the court is not stirred and the trial court was correct in denying the motion to open up the judgment and for leave to plead.

Accordingly, the judgment must be and it is hereby affirmed.

Affirmed.

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


author: RYAN, P. J.

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Opal Ridener, Defendant-Appellant.
    Gen. No. 70-18.
    Third District.
    September 17, 1970.

      Zenon Myszkowski, of Joliet, for appellant.
    Louis R Bertani, State’s Attorney of Will County, of Joliet, for appellee.
   RYAN, P. J.

The defendant was found guilty by a jury of voluntary manslaughter and was sentenced to the State Reformatory for Women. On this appeal, she contends that the trial court erred in admitting evidence of other crimes. The crime for which she was tried occurred on May 31, 1965. Two police officers were called to the defendant’s home where they found the defendant, her wounded husband, and a 12-gauge shotgun with a discharged shell in it. The police took the defendant to the police station, where she gave a statement to the police admitting that she had shot her husband and gave the details of the argument and the violence that led to the shooting. In the meantime, her husband was taken to a hospital, where he died.

At the defendant’s trial for voluntary manslaughter, one of the officers testified that on May 8, 1965, about three weeks before the night of the shooting he had responded to another call to the defendant’s home. He was greeted at the door by the defendant and told that a family disturbance had taken place, but that all was quiet now. The officer asked to see her husband who then appeared from another room with a slight scratch on his forehead, and stated that the defendant had hit him in the head with a Coke bottle. Both the defendant and the husband told the officer that neither of them wanted to prefer any charges against the other. This incident on May 8 is the evidence of another crime about which the defendant now complains.

It appears that during the direct examination of the police officer as to the May 8 incident, the defendant made no objection to the testimony nor did the defendant ask that the same be stricken. Furthermore, the defendant on cross-examination interrogated this officer in detail concerning the May 8 incident. In light of this, we must conclude that the defendant waived any right to now complaining about the testimony of the officer containing the occurrence on May 8, 1965. People v. Luckey, 90 Ill App2d 325, 234 NE2d 26.

As in the Luckey case, supra, the defendant here also gave testimony herself concerning other previous crimes of violence which she had committed against her husband. On direct examination, the defendant told how on two separate occasions, she had previously fired a gun at her husband and wounded him. In view of her own testimony as to previous crimes of violence committed against her husband, it is difficult to see how the defendant was prejudiced by the testimony of the police officer concerning the family disturbance that happened on May 8.

Furthermore, the statement of the defendant given to the police after she had been taken to the police station on the night of the shooting conclusively established the guilt of the defendant. We cannot conceive that a different verdict could have been arrived at had the testimony of the police officer concerning the May 8 affair been omitted. In her statement she described in detail the argument with her husband; the way he had beaten her and finally how she took the shotgun which she saw standing in the closet and shot him. Where errors cornplained of could not reasonably have affected the results, the judgment should be affirmed. People v. Doyle, 76 Ill App2d 302, 222 NE2d 205.

Affirmed.

STOUDER and ALLOY, JJ., concur.


author: JUSTICE MORAN.

text:
    People of the State of Illinois, Plaintiff-Appellant, v. Donald Godbold, Defendant-Appellee.
    Gen. No. 70-19.
    Second District.
    September 17, 1970.
    William V. Jopf, State’s Attorney of DuPage County, of Wheaton, and James W. Jerz, Assistant State’s Attorney, for appellant;
    Edward Zahour, of Chicago, for appellee.
   Opinion by

JUSTICE MORAN.

Not to be published in full.


author: JUSTICE EBERSPACHER.

text:
    William Stevens, Plaintiff-Appellant, v. Eugene Ryder, Lena Ryder and Robert Pusavc, Defendants, and Checker Taxi Co., Inc., a Corporation, and Bennett Waldren, Defendants-Appellees.
    Gen. No. 52,286.
    First District, First Division.
    September 18, 1970.
    Gilmartin & Wisner, of Chicago (Richard S. Wisner and Dom J. Rizzi, of counsel), for appellant;
    Peter Fitzpatrick and George Kaye, of Chicago (Fitzpatrick & Kaye, Jesmer & Harris, of counsel), for appellees.
   Opinion by

JUSTICE EBERSPACHER.

Not to be published in full.


author: GOLDENHERSH, J.

text:
    William Kelleher, Plaintiff-Appellee, v. Toledo, Peoria & Western Railroad Company, a Corporation, Defendant-Appellant.
    Gen. No. 52,560.
    First District, First Division.
    September 18, 1970.

      Winston, Strawn, Smith & Patterson, of Chicago (George B. Christensen and Stanley A. Walton, III, of counsel), for appellant.

      Philip E. Howard and Jerome H. Torshen, of Chicago (Jerome H. Torshen, of counsel), for appellee.
   GOLDENHERSH, J.

Defendant, Toledo, Peoria & Western Railroad Company, appeals from the judgment of the Circuit Court of Cook County entered upon a jury verdict in the amount of $24,000. In this action plaintiff seeks to recover damages for personal injuries suffered when an automobile he was driving was struck by defendant’s train.

The evidence shows that Veto Street runs north and south in the Village of Chenoa, and is intersected at right angles by defendant’s main east-west line. The crossing at Veto Street contains a single main track with a spur track on either side. Parallel to, and approximately 200 feet west of Veto Street is the north-south track of the Gulf, Mobile & Ohio Railroad. A building known as the Gulf, Mobile & Ohio “tower” stands north and east of the point where defendant’s track intersects the Gulf, Mobile & Ohio. At the time of the collision plaintiff was driving south on Veto Street and defendant’s train was eastbound.

Veto Street is Chenoa’s main street. There is some conflict in the testimony but it appears that as one drives south on Veto Street the view to the west is obstructed by a row of buildings which extend from approximately 600 feet to 200 feet north of the crossing. There is then a span of approximately 50 feet where there are no buildings, and at this point a motorist has a view of defendant’s main line from slightly west of the Gulf, Mobile & Ohio tower to a point approximately 500 feet to the west of the tower. The view is again obstructed by buildings until he reaches a point approximately 15 to 20 feet north of the main track.

Defendant’s right of way extends 50 feet north of the center of the main line track or 35^ feet north of the north rail of the north spur track.

On January 24, at approximately 4:30 p. m., plaintiff, then 17 years of age, was driving an automobile south on Veto Street at a speed of 12 to 13 miles per hour. Although it had not snowed for a period of 48 hours, heavy snows totalling approximately 7 inches had fallen in the preceding three days. The weather was cold and there was “hard-packed slippery snow” on the crossing to a depth of about 2 inches. There were ruts and chuckholes of various sizes in the crossing.

When plaintiff’s vehicle was approximately 45 to 60 feet north of the main track he heard a train whistle. This was 6 to 8 seconds before the impact. He testified that approximately one-half second elapsed between his hearing the whistle and beginning to depress the brake pedal. In that half second the automobile moved 10 or 15 feet. He “pumped” the brakes, but the car continued forward in a slow skid. It crossed the north spur track and slid over the north rail of the main track where its front wheels fell into a rut or hole. Plaintiff immediately took his foot off the brake and shifted into reverse gear. Although the reverse gear engaged, the rear wheels spun on the ice and the car remained caught in the rut. When the train struck, the car had been in reverse gear for approximately two and one-half seconds.

There is conflicting testimony as to the speed of the train, and admittedly it was approximately 2 hours behind schedule. There was a great deal of testimony as to ruts and depressions in the crossing, but this testimony and the pleadings will be reviewed only to the extent necessary to a discussion of the issues raised in this appeal.

Defendant contends the trial court erred in denying its motions to strike and for directed verdict with respect to paragraphs 6(f) and 6(g) of plaintiff’s complaint, as amended. These paragraphs charge defendant with negligence because it failed to clear and remove snow and ice from the crossing and its approach, and failed to spread abrasive material on the snow-covered crossing and approach. It argues there is no duty on its part to do those things.

It is not necessary, upon the record in this case, to decide the abstract question of whether defendant owed a duty, specifically, to remove snow and ice from the crossing and its approach, or to spread abrasive material upon the snow-covered areas. Plaintiff’s complaint, as amended, charges 18 specific acts of negligence, of which four were stricken, one was stricken in part, and three were withdrawn. It is not disputed that defendant owed a duty to maintain the crossing and the approach thereto in a reasonably safe condition, McElligott v. Illinois Cent. R. Co., 37 Ill2d 459, 227 NE2d 764. The complaint charges, and the evidence shows, the presence of ruts and chuckholes over a long period of time. Harry Meints, defendant’s section laborer, testified that defendant had difficulty over a long period with a rut adjacent to the north rail of the main line track, that it was fixed repeatedly but “the cars would whip that right out.” He described this rut as three feet in length, north to south, and one foot in width, east to west. Upon the evidence adduced, whether defendant’s failure to remove ice and snow or spread abrasive material was negligence which contributed to defendant’s failure to make the crossing reasonably safe for the traveling public was for the jury.

Defendant next contends the court erred in denying its motions for directed verdict, and argues that as a matter of law the snowpacked condition of the street was the proximate cause of the collision. In support of its contentions, it cites Berg v. New York Cent. R Co., 391 Ill 52, 62 NE2d 676; McElligott v. Illinois Central R. Co., 37 Ill2d 459, 227 NE2d 764, and cases decided by United States Courts of Appeals on the basis of Indiana, Nebraska, and Iowa law. We have examined these authorities and find them clearly distinguishable. Here, the evidence would support a finding of deep ruts in the crossing, excessive speed on the part of the train, failure to comply with the statutes relative to whistles and bells, and obstruction of plaintiff’s view to the west of Veto Street. Plaintiff’s testimony shows he was driving with his vent window open in order to listen for trains, as he drove south on Veto Street he looked to his right at all points where there was a view to the west, the view through the open space approximately 200 feet north of the crossing was obstructed by parked trucks, he was 50 feet north of the main line when he heard the whistle, at that point there is no view to the west, and he was 15 to 18 feet north of the main line track when he saw the train, at which time it was 375 feet west of Veto Street traveling at a speed of 55 miles per hour. Under these circumstances, we cannot say as a matter of law that the presence of ice and snow was the sole cause of plaintiff’s injury.

With respect to the Berg case upon which defendant bases the greater part of its argument that the presence of ice and snow on the crossing, and not defendant’s negligence, was the proximate cause of the collision, it is noted that it is cited without comment in a case decided under the law of Indiana (Hart v. Wabash R. Co., 177 F 2d 492, CA 7th), and distinguished in three opinions of the Appellate Court of Illinois (Langston v. Chicago & N. W. Ry. Co., 330 Ill App 260, 269, 70 NE2d 852; Comiskey v. Engel, 339 Ill App 309, 315-318, 89 NE2d 845; Marquardt v. Cernocky, 18 Ill App2d 135, 147, 151 NE2d 109. In our opinion, the facts in the case before us are so clearly distinguishable from those in Berg as to require no further comment.

Defendant contends the evidence establishes plaintiff was guilty of contributory negligence as a matter of law. We have reviewed plaintiff’s testimony with respect to what occurred as he approached the crossing. This testimony is sufficient to present an issue of fact and supports the jury’s special finding that plaintiff acted with due care for his own safety.

Defendant contends the trial court erred in permitting plaintiff, over its objection, to testify that on the day of the occurrence he observed that the Gulf, Mobile & Ohio crossing in another part of Chenoa had been cleared of snow. The transcript shows defendant made a general objection which raised only the issues of relevancy and materiality, Johnson v. Bennett, 395 Ill 389, 69 NE2d 899, and not the questions which defendant now urges as grounds for reversal.

Defendant further contends the trial court erred in admitting testimony that prior to the occurrence the crossing was protected by a bell and a flagman. What we have said in the preceding paragraph is applicable here and the error, if any, was not properly preserved.

Defendant complains of the giving of plaintiff’s instructions 17 and 20. Instruction 17 correctly instructed the jury that defendant’s duty was to so maintain its crossings and approaches as to make them reasonably safe as to persons and property. McElligott v. Illinois Cent. R. Co. (supra). Plaintiff’s Instruction 20 is in the form of IPI 20.01, and the record contains evidence from which the jury could have found defendant guilty of each of the acts of negligence therein enumerated.

Defendant complains of the trial court’s refusal to give its instructions No. 18, 18a and 10. None of them is in IPI, all are argumentative in form, and the trial court did not err in refusing them.

Defendant finally contends the trial court erred in refusing to direct verdicts on plaintiff’s allegations of excessive speed and failure to properly blow a whistle, or ring a bell. There is sufficient testimony in this record to support these charges of acts of negligence, and the court correctly submitted them to the jury.

We find no reversible error, and the judgment of the Circuit Court of Cook County is affirmed.

Judgment affirmed.

MORAN and EBERSPACHER, JJ., concur.


author: MORAN, P. J.

text:
    Ralph Hurst, Plaintiff, v. Stanley Papierz, et al., Defendants. Robert Rauth, Counterclaimant-Appellant, v. Stanley Papierz, et al., Counterdefendants-Appellees.
    Gen. No. 53,331.
    First District, First Division.
    September 18, 1970.

      Thomas D. Nash, Jr. and Robert M. Ahern, of Chicago, for appellant.
    Paul C. Ross and Harry G. Fins, of Chicago, for appellees.
   MORAN, P. J.

This action was initiated by Ralph Hurst to establish his ownership of a one-third interest with Stanley Papierz and Robert Rauth in an apartment project known as the Villa Venice Apartments located in LaGrange, Illinois. Defendant Robert Rauth filed a counterclaim against Stanley Papierz, Theresa Papierz, S. P. Construction, Inc., Stanley Papierz Builders, Inc., LaGrange State Bank, as trustee under Trust No. 180, and Baird & Warner, Inc., asserting a 30% interest as a joint venturer with Stanley Papierz in the same project. The cause was referred to a Master who took evidence and recommended that Hurst’s complaint and Rauth’s counterclaim be dismissed for failure to prove the material allegations therein. The Chancellor overruled all exceptions to the Master’s report and entered a decree dismissing the complaint and counterclaim and assessing costs among all parties. Rauth only appeals from that portion of the decree dismissing his counterclaim. Hurst does not appeal.

In January, 1963, Hurst and Papierz were introduced and discussed the possibility of constructing apartment buildings on one of three land sites proposed by Hurst. The testimony is conflicting as to whether Papierz was to advance a down payment of 5% of the purchase price of the land, or whether he was to advance all capital necessary for deposits on the land, building permits and any other initial costs. Shortly thereafter, Rauth, Papierz’s brother-in-law, was invited to participate. At one point the three met in Papierz’s attorney’s office to discuss the legal aspects and each of their duties with respect to the project. Numerous meetings and phone calls followed, until it was learned that the three original land sites could not be purchased. Hurst and Rauth testified that Papierz agreed to continue the same arrangement with respect to any other suitable property that might be found. Papierz denied this assertion. Some time later Hurst located some ground in LaGrange, Illinois, owned by a man named Eiserman, on which the apartments were eventually built and which is the subject matter of this litigation. All three parties met with Eiserman and negotiated on several occasions before they purchased the property. Eventually, it was agreed in late May or early June to purchase the property for $210,000. Throughout this time, Rauth and Hurst had been spending two or three days each week on preliminary matters in furtherance of the project. The sale was conducted through an escrow with Chicago Title and Trust Company, with Papierz making a down payment of $17,500 with S. P. Construction, Inc. as grantee. Papierz, Rauth and Hurst all signed a written waiver of commission in connection with this sale on June 10,1963. At the time of the escrow agreement Rauth owned 30% of the stock of S. P. Construction, Inc., and Stanley Papierz and Theresa Papierz, his wife, owned the remainder. This arrangement will be discussed more fully in the course of this opinion.

The Master’s Report as it pertains to the dispute between Rauth and Papierz is in pertinent part as follows:

“After Eiserman agreed to sell the LaGrange property for $210,000.00, Eiserman and Papierz further agreed that the sale of the property be through an escrow with Chicago Title and Trust Company as the escrowee and that a down payment of $17,500.00 be made by the parties at the time the escrow was opened; in addition, it was also agreed that Papierz, Hurst and Rauth were to execute written waivers of commission in connection with the LaGrange project. Papierz testified that he told Hurst that he expected him (Hurst) to come up with the balance of the land loan to complete the project after Papierz deposited the required $17,500.00, and that if he did not, it could very well be that the said $17,500.00 would be defaulted. Papierz further testified that Hurst stated that he would have the balance of the land loan within three days, all of which Hurst denies. Hurst did not come up with the balance of the land loan within the prescribed time and, because of that, Papierz told Hurst his services were no longer needed for this venture and offered Hurst $1,500.00 for the alleged services he rendered which Hurst refused and caused the amended complaint to be filed.
“Between June 1 and June 14, 1963, prior to the date that the escrow was opened with Chicago Title and Trust Company, as escrowee, there was a conference between Papierz and Rauth as to Rauth’s alleged interest in the LaGrange site. The testimony is conflicting again because Papierz testified that he offered to sell Rauth thirty per cent of S P Construction Company for $10,000.00 and that if the financing could be handled through S P Construction Company, then Rauth would have a thirty per cent of the LaGrange property; if not, then the arrangement would be off. Theresa Papierz, wife of Stanley Papierz, was present and testified to the same substance. Papierz further testified that Rauth was actually issued a certificate of thirty shares representing thirty per cent of S P Construction Company; that payments for the said certificate were made from time to time by Rauth and that a balance of $675.00 is still unpaid. Rauth’s testimony is in direct conflict with Papierz’s as Rauth contends there was no such condition placed on his thirty per cent of the LaGrange project as evidenced by his thirty shares of S P Construction Company stock, as the net worth of S P Construction Company was only $30,000.00.
“After the escrow was opened and after it was discovered that Hurst was unable to supply the necessary land loan commitments to pay off Eiserman, Rauth and Papierz, individually and together, attempted to find land financing; that from June through October, 1963, approximately twenty financial institutions were visited by them in behalf of S P Construction Company. The evidence further disclosed that when Papierz was unable to pay the balance of the land purchase to Eiserman in the sum of $192,500.00 within the time period set forth in escrow due to Hurst’s inability to get the necessary land loan financing, Eiserman agreed to various extensions providing Papierz pay the interest for each extension; that extensions for payment were agreed to be paid in October or November, 1963, upon Papierz paying $900.00 interest per month for each monthly extension period, and that Eiserman notified Papierz there would be no further extensions after that time and that he required payment in full or have a default entered.
“The various interest payment checks to Eiserman were paid by Stanley Papierz Builders, Inc., the corporation owned solely by Stanley Papierz and Theresa Papierz. All during this time the evidence further discloses that Rauth, besides attempting to secure financing on behalf of S P Construction Company, spent several days per week in Papierz’s office dealing with subcontractors who were desirous of submitting bids on the LaGrange project.
U 97
Findings of Fact
((
“3. That Stanley Papierz and Theresa Papierz, his wife, own all of the stock of Stanley Papierz Builders, Inc. that Stanley Papierz and Theresa Papierz, his wife, own all of the stock of S P Construction Company with the exception of thirty per cent which was sold to Robert Rauth in June, 1963, for $10,000.00; that the net worth of S P Construction Company is valued at approximately $30,000.00.
“18. That prior to the date of the opening of the escrow the Master finds from the greater weight of the evidence presented, taking into consideration testimony of all the witnesses, that Papierz did offer and did sell Robert Rauth thirty per cent of S P Construction Company for $10,000.00 so that Rauth might have a thirty per cent interest in the La Grange project, providing S P Construction Company would be able to underwrite the financing land loan for the project. No evidence was offered by Rauth that Papierz was to contribute any of his personal assets to finance S P Construction Co., in carrying the LaGrange site — the only evidence was that Rauth was to and did purchase thirty (30) shares of S P Construction Co. stock.
“19. The Master finds that Rauth was issued thirty shares of S & P Construction Company and that payments towards the $10,000.00 were made by Rauth and that a small balance is still unpaid.”

In his answer to Rauth’s counterclaim, Papierz denies that he entered into an agreement with either Hurst or Rauth, but pleads further that he advised Hurst and Rauth that if they could obtain the necessary financing, he would put up the necessary cash not to exceed 5% of the purchase price and would give Hurst and Rauth an interest of 30% each in the project. Papierz did not attempt to prove this allegation, but instead at trial he testified that Rauth’s interest in the project was predicated on the ability of S. P. Construction, Inc. to “swing or handle” the financing of Villa Venice on the strength of its own resources. This defense was never pleaded. Rauth argues that since Papierz did not prove his pleaded defense and since he did not plead the defense which he attempted to prove, that he is now left with no defense at all, relying on the rule that a party cannot avail himself of any manner of defense not stated in the answer, even though it appears in the evidence, citing Jewett v. Sweet, 178 Ill 96, 52 NE 962; Potter v. Fon du Lac Park List., 337 Ill 111, 168 NE 908, and other cases. However, Rauth did not initially object to Papierz’s testimony concerning this condition and in fact, he rebutted that testimony with his testimony that no such condition existed, with the letter of Mrs. Papierz that they had agreed to submit financial statements, and with the testimony of Maria Grenet that financial statements were prepared in connection with obtaining financing for the project. Consequently, he has not been surprised or prejudiced by this variance and he will be deemed to have waived his objection since this variance could have been corrected by an amended pleading at trial. See Ill Rev Stats 1967, c 110, § 43(4), which states that “the facts constituting any affirmative defense . . . which if not expressly stated in the pleading would be likely to take the opposite party by surprise, must be plainly set forth in the answer or reply.” (Emphasis added.)

Rauth further contends that the Master erred in holding that he had the burden of proving that his interest in the agreement was conditioned upon S. P. Construction, Inc. being able to underwrite the loan, thus erroneously requiring him to disprove an affirmative defense. The Master found, “Similarly, the burden of proof is upon Rauth to establish his alleged interest in the LaGrange project due to his ownership of 30% of S. P. Construction Company stock. The Master concludes that the testimony of Papierz and Rauth is conflicting, particularly whether Rauth’s interest in the project was conditioned upon S. P. Construction Company being able to underwrite its own land loan. In the case at bar, the testimony of Papierz and Rauth are diametrically opposed as to this proviso, consequently, the testimony offered by Rauth is not clear and convincing as to lead to one conclusion.”

The test of what constitutes an affirmative defense was discussed in Cunningham v. City of Sullivan, 15 Ill App2d 561, 147 NE2d 200. In that case, the court stated: “At common law and under the codes the test of whether a defense is affirmative ... is whether the defense gives color to the opposing party’s claim and then asserts new matter by which the apparent right is defeated. The admission of the apparent right is infer-able from the affirmative defense.” Applying. that test to the case before us, we believe that the defense sought to be proved by Papierz, that the agreement whereby Rauth was to have a 30% interest in Villa Venice as evidenced by the thirty shares of S. P. Construction, Inc. stock conditioned on that company being able to underwrite its land financing alone, essentially admits the alleged contract to form a joint venture, but sets up new matter that the contract was conditional, seeking to negate its legal effect. Accordingly, we hold that the condition precedent sought to be proved by Papierz at trial is an affirmative defense which Papierz had the burden of proving and the Master erred in placing this burden of proof on Rauth. The condition asserted by Papierz does not constitute merely a denial because it does not negate any essential element of Rauth’s prima facie case.

Rauth also contends that the Master erred in finding there was no joint venture between him and Papierz.

. . In a court of equity, the substance of the transaction, and not the form, is to be regarded in the determination of the rights of the parties. A joint adventure may be established without any specific formal agreement to enter into a joint enterprise; it may be implied or proved by facts and circumstances showing such an enterprise was in fact entered into. It is the nature of the enterprise undertaken that controls, not the form of the agreement. If a joint enterprise be proved either by direct evidence of a mutual agreement, or by proof of facts and circumstances from which it is made to appear that such enterprise was entered into, the law fixes the rights of the parties.” Ditis v. Ahlvin Const. Corp., 408 Ill 416 at 425, 97 NE2d 244.

It is undisputed that Papierz and Eauth made an agreement concerning the construction of the Villa Venice Apartments and that Eauth was to have a 30% interest in the project. It is undisputed that Eauth paid $10,000 for thirty shares of S. P. Construction, Inc., and that this corporation under their agreement was supposed to take title to the property. It is undisputed that the deal to purchase the Eiserman property was made with S. P. Construction, Inc. as purchaser and Judge Eiserman and his wife as sellers on June 14, 1963, and that Eauth put in many days working on the venture from June until November, 1963. In fact, the Master found that both Papierz and Eauth made a concentrated effort to get land loan commitments for S. P. Construction, Inc. by contacting a large number of financial institutions.

In our opinion, the foregoing undisputed evidence established a joint venture as a matter of law, unless the agreement was conditioned upon S. P. Construction, Inc. being able to obtain the loan commitment from its own resources as claimed by Papierz.

Ordinarily, in an action between joint adventurers, the burden of proof as to a certain fact rests on the party who affirmatively alleges or claims that it exists, this being true in respect to such matters as the existence of a joint adventure, the termination of the venture, the realization of profits which should be accounted for and distributed, etc. 48 CJS 853. However, the Master held that Eauth had the burden of proving by clear and convincing evidence that his interest in the proposed project was not conditioned upon S. P. Construction, Inc. being able to obtain financing for the whole project completely upon its own resources. In doing this, the Master put the burden of proof on this issue on the wrong party. Papierz affirmatively claimed the condition and he has the burden of proving it.

We now consider whether under all the evidence in this case Papierz has sustained his burden of proving that the project was conditioned upon S. P. Construction, Inc. being able to obtain all of the financing for the project with its own resources. This will require a rather detailed analysis of the evidence offered by the principal witnesses who testified on this aspect of the case.

Eauth testified that he had a conversation in early June with Stanley and Theresa Papierz and Theresa suggested that instead of forming a new corporation they would put the project into S. P. Construction, Inc. because this was an existing company and it would save the cost of starting a new corporation. Stanley Papierz agreed with this proposal. Eauth received his certificate for thirty shares of S. P. Construction, Inc. stock on June 10, 1963, when Theresa handed him his stock certificate and told him that he was lucky to be able to get in on a project of this type for only a $10,000 investment.

A few weeks after the trust agreement was signed at the LaGrange State Bank, which was the 12th or 14th of December, 1963, Eauth had a conversation on “the 22nd of December or so” with Papierz. Papierz told Eauth at this time that the project was getting too big, that he had too much money involved out of his pocket and that he no longer wanted Eauth in the project. He told Eauth he was willing to buy back his stock in S. P. Construction, Inc. for $10,000, and he would give him a $6,000 salary or some other type fee for all the work Eauth had done in bringing Villa Venice to a reality.

Rauth refused, and Papierz told him that he would take what he is offered or he would get nothing. He told Papierz that they had an agreement. “I own thirty shares of stock in S. P. Construction Company. A deal is a deal. And Mr. Papierz said, ‘I decided there will be no more deal and you get out of the picture.’ ” Rauth told Papierz, “I have thirty shares of stock,” and Papierz told Rauth “that I could take my stock and . . . .” He testified that Papierz further said that “the project will be put in Stanley Papierz Builders and not in S. P. Construction.” Rauth told Papierz that the papers were signed, the applications were signed and they had a deal they were going to go through with. Papierz said, “You will take what I give you or you will get nothing,” and that was the extent of the conversation. Rauth continued to appear at the offices of Stanley Papierz Builders until the middle of January, and then he stopped coming in.

Maria Grenet testified on behalf of Rauth that she was employed by Stanley Papierz Builders, Inc. in March of 1963 as an accountant and worked there for three years, until May of 1966; that she was also familiar with the corporation known as S. P. Construction, Inc. She received her salary from Stanley Papierz Builders, Inc., and was not an employee of S. P. Construction, Inc. She did all the bookkeeping work, and in the year 1963 she prepared at least four financial statements for Stanley Papierz Builders, Inc. The first of these was around May or June, the second in July or August, and the third around October or November. She prepared one every three months. These were prepared at the request of Theresa Papierz. “They said they wanted to know how their business was going and at other times because they needed a financial statement for financial purposes.”

Paul Reynolds, an expert in the field of mortgage financing, testified on behalf of Rauth that it was his opinion that a corporation with the limited resources of S. P. Construction, Inc. could never have obtained on its own either a mortgage or construction loan in an amount necessary to finance the project.

Stanley Papierz testified that about the time the escrow was opened with Judge Eiserman at the Chicago Title and Trust Company, he and his wife, Theresa, had a conversation with Rauth regarding the project on about the 8th, 10th or 12th of June in the kitchen of his home. He told Rauth what happened with Hurst, that “Ralph” had lied about the land loan, and Rauth told him that he knew that all the time. He knew that Ralph was no good and that he was right to begin with about him. Rauth then asked Papierz what he could do for him and “I told him that I would sell him 30% of S. P. Construction and that he and I would roll up our sleeves and I would go to escrow with Judge Eiserman. I told him that I would make a contract with Judge Eiserman on S. P. Construction and he and I would roll up our sleeves. That is, we would roll up our sleeves and start looking for land loans. I told him that if we could find land on S. P. Construction and if we can swing this deal on S. P. Construction, then Bob will have himself 30% of Villa Venice Apartments. And I also told him, ‘Bob, if we cannot swing this deal on S. P. Construction, you understand that not only you might lose money, but that I will, too.’ ” Rauth said that he was very grateful and he understood that very clearly and Papierz sold him 30% of S. P. Construction, Inc. for $10,000 and Rauth was issued a certificate for thirty shares of S. P. Construction, Inc. stock. That stock was issued on or about June 10, 1963 and represents 30 % of the total shares of S. P. Construction, Inc. He and his wife own the remainder of the shares.

He and Rauth then contacted lending institutions together and Rauth went to see other lending institutions on his own during July, August, September, October and November. Rauth was also coming into the office three or four times a week for about four hours a day.

Papierz was then asked about his answer to Rauth’s counterclaim and the following ensued: “The document entitled ‘Answer to Counterclaim’ filed on December 7, 1964, with the Clerk of the Circuit Court bears my signature. This document was prepared by my attorneys at the time, Castle, Brintlinger, Carey and Filter, and particularly by Mr. Thomas Carey. This document was prepared in accordance with the information I gave my lawyers. This document was under oath and I signed it.” The sworn answer to the counterclaim was shown to Mr. Papierz and he was asked to read Paragraph 8 thereof.

MASTER: “If he doesn’t understand it all he has to do is say so. That’s the reason I asked him to read the question again to him.”
ANSWER: “I am sorry, sir, I can’t understand this language at all. No, I am not an attorney, I am a builder.”
Q. “Isn’t it a fact, Mr. Papierz, that what you are saying in Paragraph 8 is that the condition was imposed upon Rauth that he obtain the financing for S P ?”
A. “No, I just don’t understand his language here, Judge, in this paper here at all. I probably — if it probably would be put a little bit more clearly to me, maybe I would understand. This is the kind of a pleading that I have no idea what those things say there. See, my attorney wrote this thing, asked me to sign it. I signed it without reading it and that is usually the case.”

In August of 1963, Papierz received a commitment from Baird & Warner for a construction loan in the amount of $615,000 for the construction of the middle section of the proposed project, which consisted of five buildings. He did not know where the money came from, but the contractors were getting paid from Baird & Warner. Judge Eiserman was paid for the land in November of 1963. The loans from LaGrange State Bank and Mergreen Company were presently paid in full. Baird & Warner paid off the LaGrange State Bank and Mergreen Company. Mergreen was paid off almost at the end of 1964 and the LaGrange State Bank probably in May or April of 1964.

Papierz submitted to some of the lending institutions his financial statement, those of S. P. Construction, Inc. and of Stanley Papierz, Builders, Inc.

In November, 1963, he learned from Mr. Cummins, a Vice President of the LaGrange State Bank that S. P. Construction, Inc. was not strong enough for that particular project, but they would give him a loan for one section if he would pledge Stanley Papierz Builders’ assets and his personal assets. After his conversation with Cummins, he told Rauth he was no longer in the deal. It was the middle or end of November and it was after he had obtained the first commitment from Baird & Warner for a mortgage in the amount of $615,000 and at that time he also had the promise of the LaGrange State Bank and Mergreen that he would have the money if he pledged all of Stanley Papierz’s buildings.

He told Rauth that he had been to the LaGrange Bank that afternoon. His wife brought him a piece of paper that showed that they had almost $70,000 invested in the venture in LaGrange and the situation was very hopeless. He told Rauth exactly what Mr. Cummins had told him, “that if I pledge all of my holdings that I will have the loan.” He said to Rauth, “Bob, do you recall what we were discussing back in June, that if S P cannot swing it, either we are going to lose money or something will have to happen? Well, this is the case of something is going to happen, because we will lose. You will lose your $10,000 and I will lose $70,000. Stanley Papierz Builders must step in.” He then said, “If I pledge all of my assets, there wouldn’t have to be any loss of $70,000.” He told Rauth that he was not going to pledge his assets and Stanley Papierz Builders’ assets and even his life insurance policies for S. P. Construction, Inc. Rauth said, “I understand it and I understood it in June when you told me that.” He told Rauth that if he wanted, he would buy the shares from Rauth and besides that, he would give him $6,000. Rauth said he did not want it, that he wanted 30 % of S. P. Construction, Inc. because if another opportunity came up and S. P. Construction, Inc. could swing any future apartments, he wanted to be in on it and that is where they ended and ended as friends. Rauth kept coming around until the end of January when he filed suit. Rauth said to Papierz, “You keep my $10,000.00, Stanley. I don’t want the $6,000.00 either.” That was after Rauth put in the time from June until November.

Theresa Papierz testified concerning the original agreement between Stanley Papierz and Rauth and also as to what transpired when Papierz dismissed Rauth from the project. Her testimony was substantially the same as her husband’s.

Joyce Kobylarz, Stanley Papierz’s secretary, testified on behalf of Papierz that about the middle of November, 1963, she had a conversation with Rauth who was talking to a subcontractor and she said, “Mr. Papierz told me that you were not going to be talking to subcontractors any more. That I should handle this.” Rauth said, “Well, Joyce, that’s all right. I know that I’m out of the deal. S. P. can’t swing it, but I want to help Stanley if I can. I would like to see this thing through for him as long as I am here. I would like to talk to him.” He then continued during the month of December in her presence to interview subcontractors. He also came into the office during January and he would interview and talk to subcontractors then.

Walden Cummins, Jr., Senior Vice President of the La Grange State Bank, who in November of 1963 was its Vice President and Trust Officer, testified on behalf of Papierz that he first met Stanley Papierz in the bank about the first day of October, 1963, accompanied by a Mr. Robbins. He next met him about two weeks later when he came into the bank by himself. He first met Robert Rauth about the first week of November, 1963, when Mr. Papierz brought him in and introduced him as his brother-in-law. At that time there was a conversation between himself, Papierz and Rauth. By that time the financing arrangement had been worked out. He further testified, “I gave Mr. Rauth and Mr. Papierz a list of documents needed in order to secure the financing, which they, Mr. Papierz and Mr. Robbins, had requested.” There was a general conversation about the location of these documents and a timetable to get them together. The documents that he said he needed were the deeds to fifteen or sixteen residential properties in Arlington Heights, an office building owned by Papierz or his company, and the documentation with reference to the land on which the apartment building project was subsequently built.

The next time he saw Rauth, Rauth came in alone with the documents that he had requested and left them with him. He brought in the deeds to the property, the Chicago Title and Trust Guarantee policies and the contract between the seller of the LaGrange property and the buyer. He continued to see both of them until about December 1, 1963. After Rauth brought in the documents, Rauth, Papierz and Cummins had a conversation in late October of 1963. He testified, “I had been furnished with the documentation previously testified to by the time of this particular conversation. I had an opportunity to review it and told them that . . . .” (There was an objection.) He continued after another question, “I remember talking with both Mr. Papierz and Mr. Rauth, in substance stating that I had reviewed this documentation and that it appeared satisfactory to form the basis of collateral for the loan that Mr. Papierz had originally asked for.” He then was asked if there was any conversation in relation to S. P. Construction, Inc., and he answered, “The conversation was an observation of myself. I said, ‘S. P. Construction Company is not financially strong enough to support this loan request.’ ”

He testified on cross-examination that S. P. Construction, Inc. and Stanley Papierz Builders, Inc. combined, were not sufficiently strong financially to warrant such a loan, and that he would not have recommended making the loan if the interim loan commitment in the amount of $615,000 had not already been obtained from Baird & Warner, Inc. because, he testified, the bank contemplated being paid off through the funds provided by the construction loan, and not by any funds of Papierz.

The following evidence is inconsistent with Papierz’s contention that it was understood at the outset that all financing for the project was to be done solely through the assets of S. P. Construction, Inc.:

(1) The initial down payment of $17,500 was made by Stanley Papierz Builders, Inc. and all of the other expenses for the project were paid by Stanley Papierz Builders, Inc. from the time of the signing of the contract until all of the financing was completed.

(2) The testimony of Paul Reynolds, an expert in mortgage financing, tended to prove that a corporation with the limited resources of S. P. Construction, Inc. could not have obtained on its own the necessary financing for the project. Prior to June 10, 1963, S. P. Construction, Inc. was a dormant corporation wholly owned by Stanley and Theresa Papierz. Its entire assets consisted of equity in three single-family dwellings in Arlington Heights, worth approximately $30,000. It had no office, no employees and maintained an average bank balance of a few hundred dollars.

(3) The undisputed evidence that the personal financial statements of Stanley Papierz and Theresa Papierz and the financial statements of Stanley Papierz Builders, Inc. were submitted to different financial institutions from June, 1963 until November, 1963, for the purpose of obtaining financing.

(4) The affirmative defense claimed in Papierz’s answer to Rauth’s counterclaim was a different defense than he asserted at the trial. This was tantamount to an admission that his trial version was not true. However, it was not conclusive on this issue, but remained with all of the other evidence to be considered on the subject.

(5) On cross-examination Theresa Papierz was confronted with a letter she wrote to Rauth several months after suit was filed in which she said:

“. . . Let me refresh your memory, we (Stanley and Theresa) were to invest $17,000.00 for the permits, plus our financial statement, plus necessary labor. . . .”

In our opinion, Stanley Papierz has failed to sustain his burden of proof that Rauth’s interest in the proposed apartment project was conditioned upon all of the financing being done through S. P. Construction, Inc.

Nor do we accept Stanley Papierz’s and Theresa Papierz’s testimony that Rauth willingly agreed to step out of the project when Papierz informed him that the deal was off.

We do not find clear and convincing Stanley Papierz’s testimony that the situation was “hopeless” and that he had to use everything to put the deal through, when at the same time he knew that the loan at the LaGrange State Bank was to be paid from the construction loan commitment already received from Baird & Warner and when he knew that the LaGrange State Bank was making the loan on the basis of that commitment rather than his pledged assets.

Nor do we find clear and convincing the Papierz testimony that Rauth agreeably stepped out of the apartment project, declined the return of his own money in exchange for his stock and turned down a $6,000 profit in the hope that he might finance an apartment project through S. P. Construction, Inc. sometime in the future. This, after he had just been told that he was out of the present project because S. P. Construction, Inc. was not strong enough to finance a loan on its own recources and that Stanley Papierz Builders, Inc. would have to step in.

We conclude that Papierz and Rauth were joint adventurers and as such, Papierz occupied a fiduciary relation to Rauth as a matter of law. Consequently, the transaction whereby Papierz acquired Rauth’s 30% interest in the apartment project was presumptively fraudulent and void. The burden was then on Papierz to show by clear and convincing evidence that he exercised good faith in appropriating Rauth’s interest. In Carroll v. Caldwell, 12 I112d 487, 147 NE2d 69, the court said at 498:

“Defendant concedes, as all authorities hold, that joint adventurers, as a matter of law, stand in a fiduciary relationship to each other and have the duty to act for the benefit of the other as to matters within the scope of the relation. (See: 30 Am Jur, Joint Adventures, Sec 34; 48 CJS Joint Adventures, Sec 5; Restatement of Trusts, Sec 2.) The relationship ordinarily precludes one of them from purchasing or leasing property to the enterprise either for himself or another in the absence of a full disclosure of his associates.”

In Hagerman v. Schulte, 349 Ill 11, 181 NE 677, the court said at page 30:

“Since the sharers in the joint adventure sustained a fiduciary relation, each one to all the rest, their dealings with one another were subject to the rule that where one who sustains a fiduciary relationship to another acquires from that other an interest in the property in regard to which the fiduciary relation exists, the burden rests upon the one acquiring the interest to show by clear and convincing evidence that he exercised perfect good faith in the transaction by which his interest was acquired. Transactions between persons in this relation are presumptively fraudulent and void. Courts of equity scrutinize them very closely and before such a contract will be permitted to stand the proof must be clear that good faith has been exercised and confidence has not been betrayed.”

In June, Papierz agreed with Rauth to develop the Villa Venice project jointly as coventurers, with Rauth owning a 30% interest. Six months later, Papierz and his wife were the owners of all the property, which was the subject matter of the venture. Gone was Rauth’s 30% interest, and lost was the time which he had spent on the project. In our opinion, the burden was on Papierz to show by clear and convincing evidence that he exercised good faith in the transaction. This he failed to do.

Then, too, Stanley Papierz and Theresa Papierz were the directors of and wholly controlled both S. P. Construction, Inc. and Stanley Papierz Builders, Inc. As President of S. P. Construction, Inc., Stanley Papierz directed the LaGrange State Bank to convey title to the Villa Venice Apartment property to Stanley Papierz Builders, Inc., a corporation wholly owned by himself and his wife, although the contract to purchase the property was between Eiserman and S. P. Construction, Inc. Under these circumstances, the transaction was constructively fraudulent and the burden of showing its fairness and propriety was cast upon Stanley and Theresa Papierz. Winger v. Chicago City Bank & Trust Co., 394 Ill 94, 67 NE2d 265; Shlensky v. South Parkway Bldg. Corp., 19 Ill2d 268, 166 NE2d 793.

For the foregoing reasons, we find that the equities in this case are with the counterclaimant Robert Rauth and against the counterdefendants Stanley Papierz, Theresa Papierz and Stanley Papierz Builders, Inc.

This case is reversed and remanded to the Circuit Court of Cook County, Illinois, with directions to enter a decree (1) directing the conveyance by Stanley Papierz Builders, Inc. to S. P. Construction, Inc., of the property described in paragraph 11 of the Rauth counterclaim; (2) granting Rauth the relief sought in paragraphs (b), (c), (d) and (e) of the prayer for relief sought in his counterclaim; (3) entering such further orders as may be just and equitable; and (4) vacating its order assessing the Master’s fees and reassessing them in the light of this opinion.

Judgment reversed and cause remanded with directions.

EBERSPACHER and GOLDENHERSH, JJ., concur.


author: MR. JUSTICE SMITH

text:
    Garcia International Corporation, Plaintiff-Appellant, v. Cosmos Shipping Co., Inc., et al., Defendants-Appellees.
    Gen. No. 53,670.
    First District, First Division.
    September 18, 1970.
    Rothschild, Stevens, Barry & Myers, of Chicago, for appellant.
    John M. Bowlus and Sheli Z. Rosenberg, of Chicago (Cotton, Watt, Jones, King & Bowlus, of counsel), for appellee.
   MR. JUSTICE SMITH

delivered the opinion of this court.

This suit arises out of the loss sustained by the plaintiff when nineteen cases of spark plugs became lost, strayed or stolen in Manila in the Philippine Islands. Plaintiff sued its own ocean freight forwarder (Cosmos), the ocean carrier (Orient), and the agent of the ocean carrier (Midland) for the damages. In a bench trial, the trial court entered judgment for all defendants. There is no appeal from the judgment in favor of Orient or Midland and their liability is at rest. Plaintiff insists that the judgment in favor of Cosmos is in error because Cosmos had a duty to insure this cargo, failed in that duty and as a consequence the damage to this plaintiff was sustained. We affirm the judgment of the trial court.

In the fall of 1962, the plaintiff purchased the spark plugs from an Ohio supplier for the purpose of resale to a customer or customers in Manila. Plaintiff paid $9,-627.72 for the spark plugs. The resale to plaintiff’s Manila customer was to be financed through the medium of letters of credit. Arrangements for shipment of the goods from Chicago to Manila were made by the defendant-Cosmos with the carrier-Orient through its agent-Midland. Letters of credit to the original customer of the plaintiff expired. Plaintiff ordered the shipment held. The spark plugs were nevertheless delivered to the pier in Chicago and in error loaded on board the Orient. To remove them involved moving several tons of cargo and Orient was unwilling to do this without pay. The ultimate outcome of all of this was an agreement among the parties that if letters of credit could not be reestablished in Manila, Orient would return the shipment to Chicago at plaintiff’s request and without expense. There was no such request. Instead, plaintiff devoted its energies to obtaining different customers in Manila and its president spent some time in the Islands for that purpose. When the goods reached Manila, they were discharged to the customs officials of the Philippines on about the 3rd day of February, 1963. At that time, a formal original negotiable bill of lading was issued to Garcia at its request. At this point, the plaintiff was put into the documentary possession of the goods through its possession of the negotiable bill of lading which it had requested and received and, as we shall see, was insured.

It appears that the plaintiff received what it had bargained for from Cosmos so far as the original transportation of the goods was concerned when the goods were discharged to customs in the Philippines and the plaintiff was supplied with documentary possession of the goods through its possession of the negotiable bill of lading which it had requested and received. As abstracted, plaintiff’s president testified as to the original undertaking of Cosmos.

“On the instructions to Cosmos, the words ‘as per Letter of Credit’ followed after the printed word ‘Insurance.’ The Letters of Credit referred simply to a cost and freight and did not require insurance. Prior to the shipment of the goods, this was a straight cost and freight contract, and if the goods were going to be insured at that point, it would have been the obligation of the buyer in Manila. Insofar as the relationship between Garcia International and Cosmos is concerned, ‘Cosmos did not have a duty prior to shipment to insure this cargo.’ Prior to shipment, there was no agreement between Garcia International and Cosmos with respect to insurance other than as contained on the shipping instructions. In the latter part of 1962, in a conversation with Mr. Jensen of Cosmos Insurance Company, Mr. Jensen told me that if letters of credit could not be obtained, the steamship company had agreed to return the goods to the United States free of charge.”

This testimony of Mr. Garcia as abstracted is borne out by the documentary evidence in the record. The record is likewise clear that there are apparently two types of contracts. One is termed “C&F Contract” which means “cost and freight” — the second is termed “GIF Contract” which means “cost, insurance and freight.” The record shows that the original contract here isused was a C&F contract and no obligation for insurance arose under it.

In January, 1963, while the spark plugs were enroute to Manila, plaintiff obtained a new buyer. This was a GIF transaction and on January 25, 1963, a standard marine insurance policy was effected by Cosmos covering the shipment. Plaintiff’s president so testified and the policy so shows. The contract between the plaintiff and Cosmos stated: “6. Instructions ‘to insure against all risks’ will be construed to mean to insure against ordinary marine risks only, subject to the conditions of the insurance policy under which such insurance is effected. If insurance against any other risks, such as theft, pilferage, leakage, breakage, fresh water damages, ship’s sweat, rust, nondelivery, contact with other cargo, or against any other risk or loss is desired by the Sender, then special written instructions must be received by the Company in sufficient time prior to forwarding to effect the same.” There was no written request for these other risks. The policy effected on January 25, 1963, complied with the first proviso and there appear to be no other further or additional written instructions from the plaintiff to Cosmos. Accordingly, Cosmos had at this point complied with its contractual obligations to Garcia for this insurance was in full force and effect on the date the goods were delivered in Manila and for fifteen days thereafter. Again, letters of credit went awry and the goods were not picked up at customs. At this time, plaintiff was in full possession of the goods through the bill of lading and as late as May, 1963, the goods were in the custody of the customs officials of the Philippines. Up to this point, the goods were safe and Cosmos had fully complied with its instructions. Its obligations to the plaintiff up to this point had been fully performed. It is thus clear that any loss from nondelivery of the goods as of May, 1963, was due to the failure of letters of credit and not the failure of anyone to insure.

We have some difficulty in molding out of subsequent events either a promise or a duty either express or implied for Cornos to insure. We have previously noted the terms and conditions upon which Cosmos accepted this shipment so far as an instruction “to insure against all risks” is concerned. Paragraph five of these terms and conditions likewise provided “If for any reason the goods are held in warehouse, or elsewhere, the same will not be covered by any insurance, unless the Company receives written instructions from the Sender in which event the Company will use reasonable efforts to effect the insurance desired, at Sender’s expense.” We have been unable to find in this record any such written request. It is, of course, true that the record shows that Cosmos contacted its insurance carrier to see whether or not the policy could be extended. Since this request was made after the expiration of policy, a survey was required. The survey was requested and it was unsatisfactory for the very simple reason that the survey organization was not able to locate the spark plugs. It appears, likewise, in the record from a letter dated in November, 1963, that spark plugs similar to these were being sold locally and the plaintiff was advised of that fact. The record likewise shows that Cosmos filed a claim against the ocean carrier and its agent and that the claim was denied. The policy which it sought to extend granted protection against “assailing thieves.” Had it been extended, therefore, it is doubtful that it would have supplied any protection to the plaintiff as it has been held that the term “assailing thieves” does not include the loss of property from a simple theft in the absence of some accompanying violence or force. 44 Am Jur2d, § 1371; Swift v. American Universal Ins. Co., 349 Mass 637,212 NE2d 448,19 ALR3d 1145.

In the face of the specific written terms and conditions under which Cosmos accepted this shipment, it is difficult to find a duty specifically requiring insurance coverage for the loss here shown. Actually, there is nothing in this record to specifically indicate what happened to the spark plugs, where they are, or whether any policy obtainable by Cosmos would have covered the nature of the loss incurred. We have previously pointed out in this opinion that when the goods were delivered in Manila and the bill of lading was issued to Garcia, the goods then belonged to the plaintiff. It was then its obligation to protect its own property. Its written contract with Cosmos did not require the latter to carry insurance that would have covered the specific loss here in a warehouse. It made no written request that Cosmos obtain such a policy. There is no showing that such a policy would have been obtainable without a survey. Plaintiff relies either on a wrongful shipping of the goods or a wrongful failure to extend the policy. There is nothing in this record that shows that the proximate cause of the damage to the plaintiff was the wrongful shipping to Manila. Indeed, it was Orient who inadvertently shipped the goods after notice not to do so. The inability of Cosmos to carry out its obligation resulted not from the wrongful shipping, but from the inability of the plaintiff’s purchasers to maintain letters of credit. Likewise, this record fails to show a duty on the part of Cosmos to obtain all coverage insurance. There is testimony that plaintiff orally requested that Cosmos “fully protect” the shipment and general assurances by Cosmos “not to worry,” as it was the responsibility of the carrier. There was no written request for it. The testimony shows no promise, express or implied, on the part of Cosmos. Such being true, the damage must rest where it properly belongs. The plaintiff neither requested the return of the goods by Orient, as it might well have done, nor did it request in writing total insurance coverage against risks while the goods were in the warehouse. The loss if any, therefore, was the failure on the part of the plaintiff to protect its own property. The judgment of the trial court is supported by an excellent memorandum opinion as well as the record in this case. It is affirmed.

Affirmed.

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


text:
    Samuel A. Libert, Plaintiff-Appellee, v. Stanley Turzynski, Defendant-Appellant.
    Gen. No. 53,842.
    First District, First Division.
    September 18, 1970.

      Goldberg, Orlinsky, Freedkin and Goldberg, of Chicago (Harold Orlinsky, of counsel), for appellant.
    Marovitz, Powell and Pizer, of Chicago (Harold Marovitz, of counsel), for appellee.
   GOLDENHERSH, J.

Defendant, Stanley Turzynski, appeals from the order of the Circuit Court of Cook County denying his petition brought under section 72 of the Civil Practice Act (c 110, § 72, Ill Rev Stats 1967) to set aside an order of default and a judgment entered upon a jury verdict in the amount of $15,000.

Defendant contends that “substantial justice” requires that the ex parte judgment be set aside, and the trial court erred in failing to grant him relief pursuant to section 72.

On August 6, 1963, plaintiff, a physician, filed a complaint for libel against defendant, a physician, alleging that defendant had published a letter or document containing defamatory statements in regard to plaintiff. The transaction out of which the difficulties between these parties arose is reviewed in Turzynski v. Libert, 122 Ill App2d 352, 259 NE2d 295. Defendant, represented by counsel, filed an answer denying the allegations of the complaint.

On October 22, 1964, by leave of court, Raymond I. Suekoff appeared as attorney for defendant in substitution for defendant’s original attorney, David E. Bradshaw. On April 19, 1965, Raymond I. Suekoff was granted leave to withdraw as defendant’s attorney. On April 30, 1965, by leave of court, attorney Stanley Werdell entered his appearance for defendant. On January 11, 1967, at the pretrial conference, Raymond I. Suekoff was given leave to reappear for defendant. On December 15, 1967, Edelstein & Lewis, attorneys, requested and were granted, leave to file their appearance as attorneys of record for defendant. On January 30, 1968, Edelstein & Lewis moved for leave to withdraw as the attorneys for defendant and their motion was allowed. Defendant’s petition and supporting affidavit state that on September 20, 1968, upon becoming aware of the fact that his last attorneys had withdrawn he filed in the record the following note:

“Please notify the defendant Stanley Turzynski
6165 Archer Chicago 38/ Ill. PO 7-7373
“if this case will come up before the defendant will retain an attorney.
Thank you”

On October 9, 1968, the matter was called for trial before the Honorable William Barth. Defendant failed to appear. The court attempted to call defendant by telephone, but was unable to complete the call. The record reflects that the court unwittingly transposed digits in the defendant’s telephone number, calling PO 7-3773 instead of PO 7-7373. The court then directed that the jury find for the plaintiff against defendant for $15,000 and costs, and that malice was the gist of the action. Judgment was entered on the verdict.

On December 19, 1968, defendant, by his present attorneys, filed a petition pursuant to section 72 of the Civil Practice Act to vacate the judgment of October 9, 1968. The petition was supported by his affidavit alleging that he had no notice of the trial setting, his first notice of the judgment was on December 11, 1968, when he was served with an execution, and he has a meritorious defense to the action. The plaintiff did not file a responsive pleading.

On January 7, 1969, a hearing on the petition was held before the trial judge. No testimony was taken, and the petition was denied.

A petition under section 72 to set aside a default judgment must set forth sufficient facts to show a meritorious defense and due diligence on the part of the petitioner. Burkett v. Downey, 102 Ill App2d 373, 242 NE2d 901.

Defendant’s petition states that he has a meritorious defense to the plaintiff’s cause of action, alleging, inter alia, that the alleged defamatory matter was not communicated to a third person. In the absence of a responsive pleading to defendant’s petition, the facts well pleaded must be taken as true. Elfman v. Evanston Bus Co., 27 Ill2d 609, 190 NE2d 348; Stidham v. Pappas, 78 Ill App2d 402, 222 NE2d 318. An essential element of libel is a publication by the author, Ginsburg v. Black, 237 F2d 790, and prima facie, defendant’s petition shows a meritorious defense.

The question remains whether the defendant pleaded sufficient facts in. his petition and accompanying affidavit to show that his failure to appear was not occasioned by a lack of due diligence on his part.

The tendency for liberal construction of section 72 is well established, “Since the opinion in Ellman v. De Ruiter, 412 Ill 285, and continuing with Elfman v. Evanston Bus Co., 27 Ill2d 609, there has been a liberal trend to relieve litigants who without negligence have suffered default and ex parte judgments and dismissals against them.” Stidham v. Pappas, 78 Ill App2d 402, 406, 222 NE2d 318.

Defendant, in his petition and accompanying affidavit, states he had no knowledge of the fact that his attorneys had withdrawn until September 20, 1968, some nineteen days before the case was called for trial. He further states that when he discovered he was no longer represented by counsel he inquired of a deputy clerk as to how he might protect himself until he was able to engage counsel. The clerk advised him he would receive notice of any setting if he left a note in the court file with his name and address requesting that he receive notification. Upon the pleadings, these allegations must be regarded as true.

It is apparent from the record that defendant knew how to engage counsel and the necessity for so doing. It is equally apparent that there is some basis for the deputy clerk’s advice that he would be notified if the case were set for trial.

The court stated at the time of the hearing on the petition to vacate the judgment that: “I called him (defendant) on the morning of the trial. I have got a note on it, at this number PO 7-3773 ... I never proceed with a case even where there is no lawyer’s appearance on a file until I try to get in touch with the defendant.” The court also stated that he regarded this as only fair, and he went to the extreme of calling all of the defendant’s previous attorneys before he entered the order of default.

In Elfman v. Evanston Bus Co. (supra), the Supreme Court has said at page 613, “a petition filed under section 72, such as we have here, invokes the equitable powers of the court, as justice and fairness require, to the end that one may not enforce a default judgment attended by unfair, unjust or unconscionable circumstances.” While the law is clear that when one acts upon the advice of a deputy clerk, he does so at his own peril, Bernier v. Schaefer, Ill2d 525, 144 NE2d 577, and that litigants must assume the burden of following their cases in courts, Thompson v. Carson Pirie Scott & Co., 106 Ill App2d 463, 245 NE2d 131, it appears that in this instance the advice given by the deputy clerk was correct, and only the happenstance of the transposed digits in defendant’s telephone number precluded his receiving notice of the setting.

In Lynch v. Illinois Hospital Services, Inc., 38 Ill App2d 470, 187 NE2d 330, the Appellate Court said at page 475, “A default should be entered when, as a last resort, it is necessary to give the plaintiff his just demand. It should be set aside when it will not cause a hardship upon the plaintiff to go to trial on the merits.”

Although in that case the court acted upon a petition based upon section 50 of the Practice Act, we are of the opinion that the rule therein enunciated should apply here.

The record reflects that this was the first setting of the case and does not show that the frequent substitution of counsel in any manner delayed its being set for trial. The clerk of the circuit court did not comply with section 50.1 of the Civil Practice Act, defendant acted promptly upon being served with execution and it does not appear that setting aside the default so that the action may be tried on its merits will cause plaintiff undue hardship.

For the reasons set forth the judgment is reversed and the cause is remanded to the Circuit Court of Cook County with directions to vacate the judgment, set aside the order of default and reinstate the cause on the trial docket.

Judgment reversed and cause remanded with directions.

MORAN and EBERSPACHER, JJ., concur.


author: TRAPP, J.

text:
    Luther Friestedt, Plaintiff-Appellant, v. Chicago Transit Authority, a Municipal Corporation, Defendant-Appellee.
    Gen. No. 53,855.
    First District, First Division.
    September 18, 1970.

      Alan E. Morrill and Robert A. Sprecher, of Chicago (Morrill, Koutsky, Klomann & Chuhak, and Crowley, Sprecher, Barrett & Karaba, of counsel), for appellant.
    George J. Schaller, O. R. Hamlink, Jerome F. Dixon, and Edmund J. Burke, of Chicago, for appellee.
   TRAPP, J.

At a bench trial upon a complaint for personal injuries, the court found for the defendant at the close of plaintiff’s evidence. Plaintiff appeals, urging that the court erroneously interpreted the allegations of the complaint and erroneously denied motions to amend the complaint prior to trial and subsequently to conform to the proof.

The complaint alleged that the defendant owned and maintained, “. . . a certain Elevated Station . . . ,” and undertook to allege a duty:

. . to maintain said Elevated Station on the loading platform thereof in a safe and proper condition, but notwithstanding said duty the defendant negligently and carelessly permitted the platform to become unsafe and dangerous and that among other things, snow and ice were allowed to accumulate on said platform.”

In subparagraphs it was undertaken to allege negligently permitting snow and ice to accumulate and negligently failing to adequately remove snow and ice from “said platform.” Upon the date of trial, immediately prior to commencing testimony, plaintiff made an oral motion to amend:

. . to show the ice within this body, within the ‘L’ car itself and the accumulation thereof.”

Plaintiff argues that chapter 110, § 46, Ill Rev Stats 1967, is designed to permit liberal amendment of pleadings. No written amendment was submitted to the court. It is impossible to determine from such statement in the record whether the proposed amendment sought to plead that there was ice within the “L” car in addition to ice on the platform, or in lieu of such ice on the platform.

Upon objection, the trial court denied such motion. Colloquy between court and counsel discloses that plaintiff had known of the fact proposed to be pleaded by amendment for five years. The court expressed the opinion that the defendant had a right to rely upon allegations pleaded and that plaintiff had slept on his rights. We agree.

The evidence discloses that plaintiff, being approximately 57 years of age, had suffered a stroke sometime prior to this event and that there was some residual paralysis of his right arm and right leg. He used a cane to assist his walking. There is no evidence at all upon the issue of ice or snow on the platform of the “Elevated Station.”

Plaintiff’s testimony is limited to the statement:

“I put my right foot into the door and as I was going to come with my left foot, when my right foot gave way and I slipped and went between the car and the platform.”

He further testified that as he waited to be extricated, he saw ice on the “threshold” of the car. This is not described in terms of whether the ice covered the threshold or whether it was at a place where he, in fact, did step.

The lighting in the area was described as good and plaintiff saw no ice as he entered the car.

In the aspect of amendment to pleadings to conform with the proof, the court upon this record was authorized to deny a motion to amend under the provisions of chapter 110, § 46(3), Ill Rev Stats 1967. As the trial court noted, the testimony is that the impaired leg gave way. There is no testimony that plaintiff slipped on the ice said to have been subsequently seen on the unspecified portion of the “threshold.”

In Ennis v. Illinois State Bank of Quincy, 111 Ill App2d 71, 248 NE2d 534, the court considered the statute upon amendment of pleadings in several aspects. It was there said that upon a motion to amend the pleadings the court may consider whether there were previous opportunities to amend and that the motion may be denied where the record shows no valid reason for the failure to make timely amendment. This is particularly true where the amendment is prejudicial or would alter the nature and quality of proof required to defend the action. In the second aspect of permitting amendment to conform to the proof, it was said that the materiality of the amendment to the proof already produced must be apparent. See also McCartney v. McCartney, 8 Ill2d 494, 134 NE2d 789. The conclusion of the trial court that there is no evidence that plaintiff slipped upon ice is not contrary to the manifest weight of the evidence. The discretion of the trial court in denying an amendment will not be disturbed upon appeal unless there is a clear and manifest abuse of such discretion. Stevenson v. Matson, 107 Ill App2d 65, 246 NE2d 38.

Plaintiff now argues that in “railroad parlance” loading platform means the portion of the railroad car where the passengers enter. This seems to be an unreasonable position in view of the complaint containing repeated references to the loading platform of a particular and identified station.

The judgment of the trial court is affirmed.

Affirmed.

CRAVEN, P. J. and SMITH, J., concur.