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Fred Nemerovski & Co. v. Barbara

MARCH 5, 1969.

FRED NEMEROVSKI, AND COMPANY, PLAINTIFF-APPELLANT,

v.

VITO BARBARA, DEFENDANT-APPELLEE AND CROSS-APPELLANT.



Appeal from the Circuit Court of Cook County; the Hon. FRANK WILSON, Judge, presiding. Reversed and remanded with directions.

MR. JUSTICE STAMOS DELIVERED THE OPINION OF THE COURT.

Rehearing denied March 31, 1969.

This is an appeal by plaintiff from an order dismissing his Second Amended Complaint. Defendant has taken a cross-appeal from an order denying him relief under section 41 of the Civil Practice Act.

Plaintiff, Fred Nemerovski, & Company, brought suit against the defendants, Vito and C. Barbara, to recover the balance due for earned premiums on certain insurance policies sold by the plaintiff to the defendants.

Plaintiff's original verified complaint alleged that there was a balance of $2,936.40 due plaintiff from defendants Vito and C. Barbara for earned premiums on insurance policies sold to the defendants. Defendants answered the complaint by denying the allegations of the complaint; defendants also filed a verified counterclaim in two counts. Count I of the counterclaim alleged that there was a balance due defendants (counterplaintiffs) in the amount of $60.82 "for return premiums due to credits, cancellations and audits" on various insurance policies sold to defendants (counterplaintiffs) by plaintiff (counterdefendant). Count II was based on section 41 of the Civil Practice Act in which defendant (counterplaintiff) sought to recover attorney fees and the costs of defending against the original complaint on the ground that plaintiff was guilty of "wrongfully pleading known untrue facts." Plaintiff (counterdefendant) filed an answer denying the allegations of the counterclaims and reaffirming his original complaint. Subsequently defendants (counterplaintiffs) amended Count I of the counterclaim alleging that the balance due was $59.60 rather than the $60.82 as originally alleged.

Various motions were filed by both parties during the course of the pretrial. As a result of these motions, C. Barbara was dismissed as a defendant on motion of the plaintiff; plaintiff was ordered to produce certain books and records for the purpose of discovery; defendant's motion for summary judgment was denied; and plaintiff was granted leave to file a Second Amended Complaint.

Plaintiff's Second Amended Complaint like the original complaint was verified. A statement of account, Exhibit "A," dated December 27, 1966, was attached to the original complaint and reflected a balance due of $2,936.40. A statement of account, Exhibit "B," was dated December 8, 1966, and attached to the Second Amended Complaint and carried forth the previous balance of $2,936.40, then listed other credits and debits reducing the balance due to $748.41. Paragraph 2 of the Amended Complaint alleged as follows:

"That since the filing of the plaintiff's first Amended Complaint herein various credits have been received from the insurance companies and there now is now due and owing from the defendants a balance of $748.41 for earned premiums on various policies of insurance issued to the defendants at their special instance and request as per itemized statements hereto attached and made a part hereof and marked Exhibit A and B."

After plaintiff had filed his Second Amended Complaint the defendant served upon plaintiff a Request to Admit Facts. Plaintiff answered certain of the requests and was excused by court order from answering others.

Defendant then filed a motion to strike the Second Amended Complaint. The motion stated in part:

"The verified Second Amended Complaint at Law states in Paragraph 2 that the credits allowed to the account of the Defendant, since the time of filing the verified First Amended Complaint at Law, were received since that time, namely, October of 1966. In a request to admit facts, filed with this court, and at a hearing on which was held February 9, 1967, the Plaintiff, under oath, admitted receipt of these credits from as far back as the year 1963. That perjury has been committed in the filing of said Complaint. Further, this Defendant states that the complaint on its face is defective and that Paragraph 2 of said complaint states that the credits in `Exhibit B' were allowed since October 1966; whereas, said `Exhibit B' shows that the credits were allowed in some instances years before."

An order was entered pursuant to defendant's motion dismissing plaintiff's Second Amended Complaint and finding against Plaintiff. Plaintiff has appealed from this order.

Defendant never filed an answer to the Second Amended Complaint nor is there any denial in the record that the defendant is not indebted to the plaintiff for the ...


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