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Joseph W. O'brien Co. v. Highland Lake Const. Co.

DECEMBER 13, 1972.

JOSEPH W. O'BRIEN COMPANY ET AL., PLAINTIFFS-APPELLEES,

v.

HIGHLAND LAKE CONSTRUCTION COMPANY ET AL., DEFENDANTS-APPELLANTS.



APPEAL from the Circuit Court of Cook County; the Hon. ABRAHAM W. BRUSSELL, Judge, presiding.

MR. JUSTICE BURMAN DELIVERED THE OPINION OF THE COURT:

Rehearing denied January 10, 1973.

This is an appeal from an order of the Circuit Court of Cook County granting the plaintiffs' motion for summary judgment.

The plaintiffs, Joseph W. O'Brien Company and Thomas M. Madden Co., formed a joint venture for the purpose of constructing a portion of the Dan Ryan Expressway in Chicago. In June, 1967, plaintiffs entered into a subcontract with the defendants, who are identified in the contract as "a partnership of the Highland Lake Construction Company, Inc., and Mr. Loren Scott", by the terms of which the defendants undertook a portion of the construction.

In June, 1968, plaintiffs filed a complaint in the Circuit Court of Cook County in which it was alleged that they had entered into a written subcontract agreement with the defendants Highland Lake Construction Company (hereinafter referred to as Highland Lake) and Loren Scott as joint venturers and that at the defendants' request they had advanced funds which were to be used by the defendants in meeting payroll and other miscellaneous expenses and were to be repaid out of the proceeds of the subcontract. It was further alleged that plaintiffs advanced a total of $41,397.69 in this manner and that $23,527.26 was repaid by the defendants, leaving a balance due of $17,870.43. This complaint was later amended to add a second count seeking damages for the defendants' breach of the subcontract. This count is still pending in the Circuit Court of Cook County.

Neither defendant filed an appearance or answered the complaint, and on August 8, 1968, both were adjudged in default. On September 23, 1968, the defendant, Loren Scott, moved to vacate the default and for leave to file an appearance, answer and jury demand instanter. This motion was granted. In his answer, Scott denied that he and Highland Lake were partners in a joint venture; that he, as such, had entered into a subcontract; that he had any employees in his service on the job and that he had requested that plaintiffs advance funds. He also denied that any funds had been advanced to him and that anything was due and owing to plaintiffs.

In response to a request for admissions filed by the plaintiffs pursuant to Supreme Court Rule 216(a), Scott denied that he and Highland Lake were partners and stated that he had furnished certain construction equipment to Highland Lake in return for which he was to share in the profits of the company. He admitted that he and Highland Lake had formed a joint venture, and as joint venturers had entered into the subcontract with the plaintiffs. He denied, however, that he had any employees engaged in his service, that he incurred any payroll expenses and that the plaintiffs made any advances to him. He further denied that he agreed to repay any of the funds allegedly advanced by the plaintiffs for wages, but admitted the payment to plaintiffs of $15,000 of his own funds as repayment of such advances. He admitted that he had not paid the plaintiffs the sum of $17,870.43, but denied owing them any money at all.

An affidavit by Joseph W. O'Brien, President of his company, was filed in support of plaintiffs' motion for summary judgment. Attached to the affidavit was a detailed account of the amounts billed to defendants which totaled $41,397.69. The account showed payments received of $23,527.26 and a balance due of $17,870.43. In the affidavit, O'Brien stated that he was familiar with the account and that the balance had not been paid.

On March 1, 1971, a summary judgment was entered against Scott and Highland Lake, in the sum of $17,870.43, as sought under Count I of the complaint. On March 8, an appearance was filed by new counsel for Scott, and on March 12, a motion to vacate the judgment and dismiss the action and for leave to file a supplemental affidavit in opposition to the motion for summary judgment was filed in Scott's behalf. It was alleged in the motion that the court misconstrued the relationship of the parties and their respective duties under the subcontract by failing to consider all of the pleadings, especially the answer to the plaintiffs' request for admissions, which set out Scott's lack of participation in the contract.

The supplemental affidavit set forth that Scott had not signed the subcontract as a joint venture with Highland Lake, but as an accommodation to Highland Lake so that it could get the subcontract, and that all parties, including the plaintiffs, were aware of this. It reiterated that Scott did not engage in any part of the construction work except to rent certain equipment to Highland Lake, that he had no employees in his service and had incurred no payroll expense and that he neither requested nor promised to repay any advances from the plaintiffs. Also set forth was an averment by Scott that Highland Lake had not been paid for a portion of the subcontract work and that the sum owed to Highland Lake by the plaintiffs exceeded the amount of the advance allegedly still unpaid.

On April 16, 1971, an order was entered denying the motion to vacate the summary judgment and to dismiss the complaint. The order further stated that "there is no just reason to delay the enforcement of or appeal from this order." The sole issue on appeal is whether the trial court erred in granting the motion for summary judgment.

• 1 The purpose of a motion for summary judgment is to determine whether there is a genuine issue as to any material fact. (Kobus v. The Formfit Co., 35 Ill.2d 533; McVey v. Discher, 122 Ill. App.2d 408.) The motion will be granted if it appears from the pleadings and admissions on file, together with the affidavits filed in support and opposition to the motion, that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. (Ill. Rev. Stat. 1971, ch. 110, par. 57(3); Saghin v. Romash, 122 Ill. App.2d 473.) Thus the inquiry of this court is whether the pleadings considered by the trial court discloses a genuine issue as to any material fact, and if they do not, whether the plaintiffs are entitled to judgment as a matter of law. In his brief appellant directs our attention to several issues of fact raised by the pleadings. In our view these are not material.

• 2, 3 The controlling fact in this case is the capacity in which Scott entered into the subcontract. It was alleged in paragraphs 3 and 4 of the complaint that he and Highland Lake were partners in a joint venture and that they signed the subcontract as joint venturers. This was denied by Scott in paragraphs 3 and 4 of his answer. Mere denials of fact in pleadings, however, do not create a genuine issue which will preclude the entry of a summary judgment. (Schoen v. Caterpillar Tractor Co., 103 Ill. App.2d 197; Giampa v. Sunbeam Corp., 68 Ill. App.2d 425.) In paragraph 2 of his answer to the plaintiffs' request for admissions Scott admitted "the allegations contained in Paragraph 2, 3 and 4 of the Request for Admissions of Facts". By so doing, he admitted that he formed a joint venture with Highland Lake for the purpose of entering into a subcontract with the plaintiffs and that he and Highland Lake as joint venturers entered into such a subcontract. In his supplemental affidavit in opposition to the motion for summary judgment Scott stated in several places that the subcontract which he signed is that "attached to plaintiffs' Complaint as Exhibit A". His signature appears on this document along with that of Herman Machleit, President of Highland Lake, as a signatory for "A Partnership of the Highland Lake Construction Company, Inc., * * * and Mr. Loren Scott * * *."

In his supplemental affidavit, Scott also averred that he signed the subcontract as an accommodation to Highland Lake and not with the intent that he would perform any of the work under the contract. It set forth that he had agreed to rent equipment to Highland Lake, that he had assisted it in obtaining financing by signing as surety on a note and that he signed the subcontract at the request of Herman Machleit in order to enable Highland Lake to get the subcontract. All of these events occurred prior to the signing of the subcontract, and in view of the clear language of the contract as to the capacity in which Scott signed, cannot be considered. (See Martindell v. Lake Shore National Bank, 15 Ill.2d 272; Clark v. Mallory, 185 Ill. 227.) Indeed, Scott does not contend that the language of the subcontract is ...


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