delivered the opinion of the court:
Plaintiff, the Bank and Trust Company of Arlington Heights (Bank), filed a complaint against the defendant, Arnold N. May Builders, Inc. (May), alleging that defendant had entered into an equipment lease with N.I. Systems Services, Inc. (Systems), on or about August 29, 1975; that
In response to the complаint, May filed its answer on July 7, 1978. The answer contained a number of affirmative defenses to plaintiff’s claim, including: that the lease is invalid and unenforceable because it is unconscionable; that lessor, Systems, breached certain implied warranties; and that there was a failure of consideration. The defendant, in its answer, also asserted that plaintiff Bank was not protected by the “waiver of defense” provision in the lease (to the effect thаt the lessee could not raise against the Bank, as assignee, any defense it might have against Systems) as the assignment was not taken in good faith without notice of a claim or defense.
The Bank moved to strike certain portions of the defendant’s affirmative defenses, and the trial court granted the motion. Subsequently, on August 10, 1979, plaintiff filed a motion for judgment on the pleadings, which was granted in the amount of $21,324.76 on August 27, 1979. The court denied plaintiff’s motion for prejudgment interеst, attorneys’ fees and costs. Defendant May filed a notice of appeal on September 25, 1979. Plaintiff Bank filed a cross-appeal on October 5, 1979, from that portion of the August 27, 1979, order which denied plaintiff interest, attorneys’ fees and costs.
Defendant contends on appeal that the trial court erred both in striking its defenses that the defendant did not take the assignment of the lease in question in good faith and without notice of a claim or dеfense and in granting judgment on the pleadings in favor of plaintiff.
It is well established that where the court can determine the relative rights of the parties in the subject matter solely from the pleadings, a motion for judgment on the pleadings is a proper procedure. (Johnson v. City of Evanston (1976),
The specific allegations of defendant’s answer which are in question are as follows:
“2.b That plaintiff-asignee [sic] may not use the ‘waiver of setting up defenses against assignee’ provision against defendant because:
i. Plaintiff, by its general course of dealing with Lessor and the fact that it was assigned thе instrument the same day defendant signed the Lease in a purported effort to deny defendant its valid rights in this transaction, has not taken its assignment in good faith;
ii. and plaintiff knew or should have known of claims and defenses defendant had or might hаve had against Lessor.”
Both parties point out, correctly so, that under section 9 — 206(1) of the Uniform Commercial Code the Bank, as assignee, can enforce a lessee’s waiver of defenses clause if the assigneе “takes his assignment for value, in good faith and without notice of a claim or defense * * * .” (Ill. Rev. Stat. 1977, ch. 26, par. 9 — 206(1).) The statutory requirements of section 9 — 206(1), which the Bank must satisfy to enforce the waiver-of-defenses clause, are the same conditions which a holder of a negotiable instrument must fulfill to be accorded holder in due course status under section 3 — 302(1) of the Code (Ill. Rev. Stat. 1977, ch. 26, par. 3 — 302(1)). (Personal Finance Co. v. Meredith (1976),
In support of its position that these defenses were well pleadеd and thus improperly stricken, the defendant relies on Walter E. Heller & Co. v. Convalescent Home of First Church of Deliverance (1977),
In Hellеr, the trial court struck the defendant’s amended answer and granted the plaintiff’s motion for judgment on the pleadings. The appellate court determined that the court below had erred in granting the motion to dismiss on the ground that it raised an insufficient defense as a matter of law. The reviewing court concluded that the test of good faith under the Uniform Commercial Code (Ill. Rev. Stat. 1975, ch. 26, par. 1 — 201(19)) is a subjective standard and that the defense of lack of good fаith is a factual issue which cannot be resolved purely as an issue of law. The court in Heller stated that the defense of lack of good faith was a
We do nоt read Heller to hold, as the defendant suggests, that the conclusory allegation of the lack of good faith standing alone is sufficient to raise a question of fact. Rather, we interpret Heller, as does the plaintiff, to signify that such a conclusory statement does not relieve the pleader from setting forth sufficient underlying factual allegations to support the conclusion. We note that the Heller court did not quote directly from the defendаnt’s answer or in any other way indicate what specific allegations the defendant had relied on to support its assertion that the plaintiff had not taken the assignment in good faith. Furthermore, since the Heller opinion did not disсuss whether the allegations of fact setting forth the defense of the assignee’s lack of good faith in that case were sufficient to render judgment on the pleadings improper, we do not find Heller to be helpful in the presеnt case where the sufficiency of the underlying factual allegations is the question to be determined.
In addition to its reliance on Walter E. Heller & Co. v. Convalescent Home of First Church of Deliverance (1977),
The defendant’s argument is without merit, however, since the allegations contained in defendant’s answer do not support its contention that a close relationship existed between the plaintiff Bank and the lessor. The cases from other jurisdictiоns upon which the defendant has relied do not support its position here. (E.g., Mutual Finance Co. v. Martin (Fla. 1953),
The only underlying factual allegation contained in defendant’s plеadings to support the conclusory allegation of lack of good faith and the conclusory allegation that the plaintiff knew or should have known of claims and defenses the defendant had or might have had against the lessor was the allegation that the plaintiff Bank took the assignment the same day that the defendant signed the lease. Since the same allegation was asserted in the complaint as well as in the defendant’s answer, this factuаl allegation stands admitted. Since there are no issues of fact, the resolution of the question whether plaintiff was entitled to judgment on the pleadings is properly a question of law.
In Personal Finance Co. v. Meredith (1976),
On its cross-аppeal, plaintiff Bank contends that the unpaid rent due under the written equipment lease is money due under a written instrument within the meaning of section 2 of the Interest Act (Ill. Rev. Stat. 1979, ch. 74, par. 2) and asserts that it is therefore entitled to recover interest on the $21,324.76 due. The trial court denied plaintiff’s motion for interest, attorneys’ fees and costs. The plaintiff has waived this issue. Although given an opportunity to brief the issues raised in its motion for judgment on the pleadings and motion for interest, attorneys’ fees and costs, the plaintiff instead chose to prepare and submit a draft of the judgment order in question, which denied its claims for interest, and requested, consented to and acquiesced in the entry of the judgment order by the court. Under these facts, the plaintiff is barred from raising on its cross-appeal the issue of the denial of prejudgment interest. See National Malleable Castings Co. v. Iroquois Steel & Iron Co. (1929),
For the foregoing reasons, the judgment of the Nineteenth Judicial Circuit, McHenry County, is affirmed.
Affirmed.
LINDBERG and WOODWARD, JJ., concur.