Appeal from the Circuit Court of St. Clair County; the Hon.
William B. Starnes, Judge, presiding.
JUSTICE WELCH DELIVERED THE OPINION OF THE COURT:
Rehearing denied January 14, 1985.
Plaintiffs John Schroeder and George Templeton filed their complaint in 1981 in the circuit court of St. Clair County against defendants Meier-Templeton Associates, Inc. (MTA), and Harve Meier, seeking an accounting as to commissions Mr. Schroeder and Mr. Templeton had earned while in MTA's employ and payment of those commissions yet unpaid, a declaration that Mr. Schroeder was relieved of his contractual obligations to MTA, and damages for MTA's failure to provide an accounting as required under the terms of Mr. Schroeder's contract with MTA. After a bench trial, the court entered judgment, inter alia, as follows: (a) In favor of Templeton and against MTA, $19,805.50; (b) in favor of Schroeder and against MTA, $16,036.37; (c) a "receiver" appointed to collect certain accounts receivable and deposit the sums collected with the trial court, which would then distribute said funds equally among Templeton, Schroeder and Meier; (d) a declaration that Schroeder was relieved of his obligation not to compete with MTA; and (e) that MTA pay the costs of the accounting. Each of the parties appeals from the respectively unfavorable portions of said judgment. Meier is not personally involved in this appeal.
MTA is a "manufacturer's representative" which represented various principals when it was active. These principals are manufacturers and suppliers of large items of industrial equipment which often require substantial periods of time to install. Commissions often are not paid in full until after completion of installation. MTA acted as a seller of the principals' equipment. Meier and Templeton both served MTA as officers and salesmen. Schroeder was hired as a salesman pursuant to a written employment contract. The contract required Schroeder to refrain from competing with MTA while working for MTA and for 18 months thereafter absent written consent or the retirement of Meier or Templeton. The contract also required that MTA give a written statement of good cause in the event of termination of Schroeder's employment; that Schroeder provide 30 days' written notice prior to resigning; that, in the event of termination or resignation, on the final day of Schroeder's employment MTA would provide him with a full and complete accounting reflecting what commissions had been earned as of that time that he is entitled to share in upon receipt by MTA, and that on the final day of his employment Schroeder would provide MTA with a full and complete list of all expenses for which he claimed reimbursement.
A falling out between Meier and the other two men culminated in Meier's January 26, 1981, letter of termination to Schroeder. According to Schroeder, he doubted the efficacy of that letter as a letter of termination and immediately sought legal advice which reinforced this belief. Templeton mailed his letter of resignation to Meier on January 26. Schroeder tendered his resignation on January 27, 1981, and an attorney for MTA accepted it the same day.
Schroeder and Templeton filed this action on March 20, 1981, seeking an accounting as to commissions due them, payment of the amounts due, damages for MTA's failure to render an accounting voluntarily or on demand, and a declaration that Schroeder was no longer bound by the competition clause in his contract. Schroeder and Templeton also sought prejudgment interest for the amounts owed, and moved for attorney fees and expenses under section 2-611 of the Civil Practice Law (Ill. Rev. Stat. 1981, ch. 110, par. 2-611) based on allegations and denials in MTA's answer to their complaint. MTA filed counterclaims which the court ordered severed for trial and which are not in issue in this appeal.
Meier testified at trial that shortly after Templeton and Schroeder resigned from MTA, Meier founded a corporation named Meier Technical Associates, Inc. Included in the record on appeal is a copy of a letter from Meier to one of the principals represented by MTA, announcing that MTA's name had been changed and that Meier Technical Associates would henceforward handle the business formerly handled by MTA. Meier testified that MTA continued in existence. Schroeder and Templeton testified that after leaving MTA they formed T.S. Associates and continued operating as manufacturers' representatives under that name.
Meier testified that on September 15, 1981, he sent Schroeder and Templeton an "engineer's" accounting as to the sums owed to them, together with two checks totaling $33,858.46. The trial court ordered this sum held in escrow. Schroeder and Templeton moved for release of this sum to them on the ground that their entitlement thereto was not in dispute. This motion was granted. On October 2, 1981, the trial court ordered an accounting prepared by Mr. Wamhoff, who provided accounting services for both MTA and T.S. Associates. None of the parties found the Wamhoff accounting acceptable.
• 1-3 We first consider MTA's contention that Schroeder and Templeton's appeal should be dismissed for want of jurisdiction because their notice of appeal states simply that they seek that the judgment of the trial court be "reversed." It is generally accepted that a notice of appeal is to be liberally construed. A notice of appeal will confer jurisdiction on an appellate court if the notice, when considered as a whole, fairly and adequately sets out the judgment complained of and the relief sought so that the successful party is advised of the nature of the appeal. (Burtell v. First Charter Service Corp. (1979), 76 Ill.2d 427, 433-34, 394 N.E.2d 380, 382-83.) The instant notice specifies the date of the judgment appealed from and seeks reversal "as prayed for" or alternatively such other relief as the court may find proper. In our view it is sufficient to confer jurisdiction upon this court.
We next consider MTA's argument that Schroeder and Templeton are barred from appealing the judgment complained of by their acceptance of amounts tendered to them by MTA, under the well-established rule that a party cannot avail himself of those parts of a decree which are beneficial to him and afterward appeal, seeking to reverse the parts of the decree unfavorable to him. (Boylan v. Boylan (1932), 349 Ill. 471, 473, 182 N.E. 614, 614-15.) Pursuant to court order, two checks totaling $33,858.46 were escrowed, then released to Schroeder and Templeton by order of the trial court pursuant to their motion. Schroeder and Templeton argue that that sum was part of MTA's obligations to them, but not part of the judgment against MTA in their favor. Our careful reading of the order signed by the trial court reveals that the escrowed sums were not included in the judgment. In any event, we find no contention by MTA that Schroeder and Templeton were not entitled to those sums. MTA's contention is without merit.
• 4 We next consider the motions this court ordered taken with the case. MTA moved to strike portions of Schroeder and Templeton's reply brief as outrageous, scandalous, impertinent, and unsupported by the record. To the extent that the matters in the briefs are not supported by the record, we will disregard them. (Keehner v. A.E. Staley Manufacturing Co. (1977), 50 Ill. App.3d 258, 261, 365 N.E.2d 275, 277.) Under the circumstances, it serves no purpose to strike any portion of the briefs.
• 5 Also taken with the case was Schroeder and Templeton's motion to substitute Meier-Technical Associates, Inc., for MTA as the real party in interest, and MTA's objection thereto. No reason appears why this issue was not raised in the trial court. We find it waived. (Trisko v. Vignola Furniture Co. (1973), 12 Ill. App.3d 1030, 1033, 299 N.E.2d 421, 424.) In any event, it does not appear that MTA has changed its name, is bankrupt, or no longer exists. (See Ill. Rev. Stat. 1983, ch. 110, par. 2-1008.) Implicit in the motion is the suggestion that MTA is no longer able to pay its debts to Schroeder and Templeton. Section 2-1008 is not designed to cope with such a situation. The motion is denied.
• 6 We next consider the points raised in Schroeder and Templeton's brief. Schroeder and Templeton argue that the trial court erred in denying their motion for summary judgment as to amounts which Mr. Wamhoff's accounting showed were owing to Schroeder and Templeton, which amounts were not disputed by MTA. We are precluded from considering Schroeder's and Templeton's contention by the well-settled rule that an order refusing to enter summary judgment is not appealable. (Bezin v. Ginsburg (1978), 59 Ill. App.3d 429, 435, 375 N.E.2d 468, 473.) Further, Schroeder and Templeton do not suggest that judgment was not ultimately rendered in their favor as to these amounts. Accordingly, the issue is also moot. See Larson v. City of Loves Park (1964), 48 Ill. App.2d 191, 193-94, 198 N.E.2d 525, 526.
• 7 Next, Schroeder and Templeton argue that the trial court erred in finding that they were not entitled to an accounting. Since they admit that an accounting was ultimately provided by MTA, this argument is apparently directed to their entitlement to damages based on MTA's wrongful refusal to render an accounting. In our opinion, the trial court's conclusion that Schroeder and Templeton were not entitled to damages on that basis was supported by the evidence of record. Templeton had no written employment contract. While Schroeder's contract called for an accounting, the court could have and did find that Meier's letter of January 26, 1981, was ineffective to terminate Schroeder's employment and that Schroeder's offered resignation the next day and MTA's acceptance thereof (in contravention of the contract's provisions governing termination) constituted a new contract and a waiver of the written contract's termination provisions. A reviewing court will not substitute its judgment for that of the trial court in a bench trial unless that judgment is against the manifest weight of the evidence. (C. Hutchinson & Co. v. E.W. Lancaster, Inc. (1983), 119 Ill. App.3d 610, 613, 456 N.E.2d 983, 985.) As to Schroeder and Templeton's ...