4. The testimony proffered by defendants in contradiction to the evidence of fraud not to be credible.
5. Defendants' conduct was willful, wanton and knowingly fraudulent.
6. "The measure of damages in an action for fraud is determined from the loss to the plaintiff rather than from the gain to the defendant." HGN Corp. v. Chamberlain, Hrdlicka, White, Johnson, 642 F. Supp. 1443, 1451 (N.D.Ill. 1986), citing Martin v. Allstate Insurance Co., 92 Ill.App.3d 829, 835, 416 N.E.2d 347, 352, 48 Ill. Dec. 316 (1st Dist. 1981). Accordingly, we find that plaintiff has been damaged in the amount of $ 154,759.90 due to its payments for scrap materials which were never received.
7. Under Illinois law, "civil conspiracy giving rise to a cause of action is a combination of two or more persons to accomplish a concerted action, either a lawful purpose by unlawful means or an unlawful purpose by lawful means." Zokoych v. Spalding, 36 Ill.App.3d 654, 344 N.E.2d 805, 816 (1st Dist. 1976) (citation omitted). See also United States v. President, 591 F. Supp. 1313, 1319 (N.D.Ill. 1984).
8. "A conspiracy to defraud is rarely susceptible of direct proof, but nearly always comes from the nature of things, and is established by circumstantial evidence and legitimate inferences arising therefrom." Zokoych v. Spalding, 36 Ill. App. 3d 654, 344 N.E.2d 805, 816.
9. Defendants combined with Wolfe and Yagelski for the specific and unlawful purpose of defrauding NISSCO. The direct and circumstantial evidence presented establishes an agreement between the defendants, Wolfe and Yagelski to create false documentation of a fictitious scrap metal transaction. The goal of this conspiracy was to induce NISSCO to issue funds for material which was never delivered.
10. Pursuant to this scheme, defendants prepared false invoices and submitted them to NISSCO for payment. In addition, the defendants accepted, endorsed, presented and deposited checks issued by NISSCO as a result of the fraudulent scheme. These actions constituted overt acts in furtherance of the conspiracy to defraud NISSCO.
11. Testimony proffered by the defendants is not credible.
12. Defendants willfully, wantonly and knowingly participated in a conspiracy to defraud NISSCO. As a result of this conspiracy, NISSCO sustained damages in the amount of $ 154,759.90.
13. Illinois law provides that punitive damages may be awarded in a fraud case in order to punish the defendant and deter future fraudulent conduct. The decision to award punitive damages is a matter of the court's discretion. Obermaier v. Obermaier, 128 Ill.App.3d 602, 470 N.E.2d 1047, 1053, 83 Ill. Dec. 627 (1st Dist. 1984).
14. We find that, in light of the defendants' willful, knowing and wanton actions, punitive damages in the amount of $ 100.00 are appropriate
for the purposes of punishing these defendants and deterring the commission of like offenses.
Accordingly, the Court orders that judgment be entered in favor of the plaintiff and against all of the defendants in the amount of $ 154,759.90 in actual damages, $ 100.00 punitive damages, for a total damage award of $ 154,879.90, plus statutory interest and costs. It is so ordered.
DATED September 6, 1989