APPEAL from the Circuit Court of Cook County; the Hon. JAMES
L. OAKEY, JR., Judge, presiding.
MR. JUSTICE EGAN DELIVERED THE OPINION OF THE COURT:
The plaintiff, Cardinal, filed a complaint in the First Municipal District of the circuit court against the defendant E.L. Trendel, alleging that the defendant accepted the sum of $5000 from the plaintiff and executed a receipt by the terms of which the defendant accepted the money as a deposit on the purchase of certain real estate; and that the defendant failed to convey the real estate and failed to return the money. The complaint, which is on a Municipal District form used in contract actions, does not expressly allege that Trendel agreed to do anything. The defendant answered and filed a third-party complaint against Sam Caravello alleging that he took the $5000 from the plaintiff at the request of Caravello and forwarded it to an escrow pursuant to the instructions of Caravello; that the title to the property was taken in the name of the other parties named by Caravello; that Cardinal's failure to acquire title was due to the fraud of Caravello; and that, if Trendel was liable to Cardinal, he should have a judgment against Caravello. Caravello answered that the money received by Trendel was advanced by Cardinal as a loan to Caravello to purchase the lot; that the plaintiff had confessed judgment against Caravello; and that the $5000 advanced was included in the judgment itself. After a bench trial, judgment was entered for the plaintiff, Cardinal, on the original complaint and for the counter-defendant, Caravello, on the third-party complaint. The defendant, Trendel, appeals from both judgments and contends that the evidence does not support either judgment and that the court erred in refusing admission in evidence of an exhibit.
Cardinal had purchased his home from Caravello in 1958, and in 1965 Cardinal recommended Caravello as a homebuilder to his daughter, who informed him that Caravello "had his back against the wall." Cardinal testified that he loaned Caravello a total of $22,000. Three notes given by Caravello to Cardinal dated July 1 and July 11 of 1966, and July 20, 1967, totaling $33,300 were introduced into evidence. Caravello called Cardinal and told him that he could get a good return on an investment in a lot. Cardinal went with Caravello and looked at lot 17 and told him he was "interested."
Trendel was president of a building development company which also sold real estate. The company owned 105 lots, one of which is lot 17, comprising Cedar Glen subdivision in Arlington Heights. In 1963, he entered into a contract to sell all of the lots to McKay-Nealis Builders, Inc. McKay-Nealis forfeited and was allowed to rescind except as to certain lots, including lot 17, the title to which McKay-Nealis had already acquired. Trendel then entered into a contract with Caravello, who was president of B & G Builders, for the purchase of the forfeited residential lots which had not already been conveyed to McKay-Nealis. Caravello subsequently forfeited but was allowed to continue working on the lots upon which construction had begun. In 1966, he came to Trendel periodically, requesting conveyance of individual lots for which he had a buyer. In the spring, Caravello called Trendel and told him he had a buyer for lot 17 but did not mention his name. After learning from McKay-Nealis' attorney that the purchase price was $6000, he so informed Caravello. On July 7, 1966, Caravello and Cardinal came to Trendel's office. At that meeting, Trendel received a $5000 check made out by Cardinal and gave him, pursuant to Caravello's direction, a signed receipt which reads as follows:
"Received of Mr. Alphonse Cardinal $5,000.00 as deposit on lot 17 in Block 5, Cedar Glen Subdivision. One Thousand Dollars to be paid upon closing.
At the time he showed Cardinal the lot, Caravello had a contract to build a home on that lot with Leonard and Ann Schinkoeth. He testified that he did not remember if he told Cardinal that he was building on the lot for the Schinkoeths. Trendel sent the check to his attorney and told him to hold it until he learned what "they" wanted. About a month after the meeting, Caravello called Trendel and told him that he had begun building on the lot and wanted the deed to be made out to the Schinkoeths. Trendel then advised his attorneys, who deposited the $5000 check and a quitclaim deed from Trendel's company in the title escrow. Caravello was present at the closing, and McKay-Nealis conveyed to the Schinkoeths. Trendel got none of the proceeds of the sale. Caravello testified that he was paid for both the house and lot under the contract but that he did not pay Cardinal the $5000 he "advanced." Cardinal testified he was putting up the money as an investment but that there were no definite terms agreed upon by him and Caravello.
In the early part of 1967, Cardinal asked Caravello if anything had been built on the lot, and Caravello told him he didn't know anything about it. Since he did not believe Caravello, he went to the lot and saw an occupied residence on it. Neither Caravello nor Trendel ever asked him for the $1000 to complete the transaction.
On March 14, 1968, Cardinal confessed judgment in the County Law Division on the notes of Caravello in the sum of $35,047.50. That judgment was vacated, and on March 31, 1971, judgment was entered in the amount of $22,025. This suit was also filed on March 14, 1968, in the First Municipal District.
A letter dated May 2, 1968, was sent by the attorneys for Cardinal to the attorneys for Caravello which reads as follows:
I have had the Cardinals in my office yesterday and gone over their account with Caravello. After allowing the Caravello credit for the $12,000.00 note, the account stands as follows:
7-11-66 Note $11,300.00 7-20-66 Note 10,000.00 9-23-66 Check cash 2,000.00 7- 7-66 Check to Trendel ...