Appeal from the Circuit Court of Macon County; the Hon. FRANK
J. GOLLINGS, Judge, presiding. Affirmed.
Rehearing denied August 22, 1968.
Plaintiff appeals from an order denying summary judgment and from a decree entered upon his amended complaint to cancel an agreement for sale of real estate and to recover back as earnest money payment, $2,000 with interest. The parties have elected to treat the contract as rescinded, and the sole issue is the recovery of the down payment. This appeal was filed in the Supreme Court, which ordered transfer here.
The amended complaint joined the defendants, LeBeau, husband and wife, hereinafter designated LeBeau, and one Doss, an attorney. As to the latter, the trial court, upon motion, entered judgment on the pleadings on August 23, 1962. No finding was made within the terms and provisions of chapter 110, § 50(2), Ill. Rev Stats 1961, (now Supreme Court Rule 304, chapter 110A, § 304, Ill Rev Stats 1967). No appeal has been taken from the judgment order as to Doss.
While the action purports to be founded upon a written contract for the sale of real estate, the allegations of the pleadings concerned acts and arrangements not set out in such agreement. It is alleged that the contract was drawn under the direction and supervision of Doss. By its terms LeBeau acknowledged the receipt of the down payment of $2,000.
The complaint alleged that plaintiff made his check payable to Doss individually, but as agent of LeBeau until certain conditions affecting the closing of the sale had been met and Doss was notified to cash the check, i.e., the check was expressly subject to reaching an agreement for the sale of certain furniture, and there are allegations that there was a condition that Doss negotiate a loan for the benefit of LeBeau for the purpose of removing the lien of an existing mortgage. The complaint alleges failure to meet the conditions and that plaintiff never notified Doss to cash the check. As an exhibit, the check, dated September 12, 1959, shows that it was endorsed by Doss in his own name on September 22, 1959. The complaint at issue alleges the cashing of the check and in the alternative, appropriation of the proceeds by either Doss or LeBeau, or both of them.
In answer to certain interrogatories submitted by Doss, the plaintiff said:
"The $2,000.00 was paid conditionally by a check made payable to Attorney Dwight H. Doss, expressly made `subject to agreement on furniture,' and delivered to Dwight H. Doss to be held by him until the agreement on the furniture was worked out and agreed to by plaintiff and the sellers and a loan to the LeBeaus or some financial arrangement to enable them to clear up a mortgage on the said property was made by Doss."
Thereafter, the trial court, on Doss' motion, dismissed the complaint as to him and ordered that the plaintiff take nothing by his suit, and that Doss go hence without day.
LeBeau filed answer setting forth as affirmative defense to the complaint that Doss was acting as agent or attorney for all parties to the contract, and that more particularly he was acting in a fiduciary capacity as escrow agent for the parties, that Doss cashed the check without the authority of any contract party, and that LeBeau did not receive any part of the proceeds. Plaintiff made no reply to such answer.
While plaintiff argues that Doss was the attorney for LeBeau in drawing the agreement, such was not, in fact, alleged. It is alleged that he supervised the drafting. It is argued that the answer of LeBeau admitted that Doss received the check as agent of the sellers. The allegation of agency deemed admitted is not supported by anything in the written agreement and is asserted as a conclusion of the pleader rather than as matters of fact sufficient to create an agency. The amended complaint itself alleges conditions to the contract that were not in the written agreement and the absence of authority given by plaintiff to cash the check. We have noted the answer of plaintiff to the interrogatory and that there was no reply to the affirmative defense alleging the status of Doss as fiduciary or agent for plaintiff.
Plaintiff urges that a reply to the affirmative defense was not required because the amended complaint alleged, albeit in the form of a conclusion, that Doss was agent for LeBeau. There was no motion by plaintiff to strike the claim of defense made affirmatively.
Since the written agreement made no reference to Doss as agent of LeBeau, the affirmative defense was not simply an argumentative denial of the terms of a written agreement, but introduced new matter. Mandel v. Jordan, 57 Ill. App.2d 276, 207 N.E.2d 12; Allwood v. Cahill, 382 Ill. 511, 47 N.E.2d 698.
[2-4] The granting or the denial of plaintiff's motion for summary judgment depends upon whether or not the pleadings, interrogatories and affidavits disclose the existence of an issue of material fact. The right to summary judgment should be free from doubt. Harp v. Gulf, M. & O.R. Co., 66 Ill. App.2d 33, 213 N.E.2d 632; RCA Service Co. v. A B Fireproofing Co., 84 Ill. App.2d 82, 228 N.E.2d 151. The affidavit in support of plaintiff's motion for summary judgment is made by his attorney and essentially recites the allegations of the complaint rather than facts which would be admissible as evidence. The amended complaint at issue alleges delivery of the check payable to Doss personally upon conditions to be controlled by the plaintiff. Plaintiff's answer to interrogatories, as well as the affirmative defense alleged and the affidavit of ...