*1 1141 Island & 319, 1043; Rock Chicago, v. 372 N.E.2d Dollison Pacific 588; Estate In re R.R. 355 N.E.2d (1976), Co. 42 Ill. 3d sub appeal denied 254 N.E.2d Liebling 2d Morgan v. 43 Ill. 2d Bassi Liebling (1970), nom. Gardner v. 625; Page v. (1965), 32 Ill. 2d Ill. App. 208 N.E.2d denied not, does presumption This (1935), 362 Ill. 199 N.E. Keeves establishing prima plaintiff from the burden relieve the (1976), 42 R.R. Co. (Dollison Chicago, facie case Rock Island & Pacific failed to Department, which 588), and the by Bethune produce any any money received showing evidence channeling business from Sutcliffe return for Bethune’s here. failed to do so patients, connection with Medicare-Medicaid affirming Depart- trial court Accordingly, judgment ment’s order is reversed.
Reversed.
LINN, P. J., JOHNSON, J., concur. McERLEAN, BANK OF NEAL A. NATIONAL Plaintiff-Appellant, v. UNION CHICAGO, (THE BANK OF OLYMPIA FIRST SUBURBAN Defendant. — FIELDS, Defendant-Appellee.) Division) (2nd
First 79-2427 District No. 25, 1980. Opinion filed November *2 Frost, appellant. of Chicago, Michael James Mullin, Stafford, (Epton, Chicago Mary Randall E. Server and F. both Druth, Segal Ltd., counsel), & appellee. Mr. opinion HARTMAN of the court: delivered the JUSTICE chancery,
In counts II and III five-count plaintiff A. Bank of Neal McErlean defendant First Suburban sued Olympia (hereinafter “Suburban”) Fields1 an oral and for breach of written up contract to credit extend to McErlean a line of for breach of fiduciary him and relationship established between Suburban. com- appeals McErlean the dismissal of his amended from plaint and the He also denial of leave to a second amended file appeals denying first subsequent dismissing from order him an appeal. extension of time within which to file the record on affirm. I,
Realleging pleading certain in count contained further, alia, asserted, 15,1976, in count II he July that: on inter applied carpentry company Suburban for loan of to start a notes; pay off various financial personal submitted to Suburban a *3 statement; was told that a not to exceed Suburban would extend loan $50,000 trust; if assigned proposed he his in a to beneficial interest land to Suburban that only assign he would the for a line of beneficial interest $100,000; contract”; credit of toup agreed this Suburban McErlean “to and his then wife transferred in a to Suburban their beneficial interest credit; certain land trust proposed as collateral for the line of his wife signed guarantee $100,000; a of loans not to exceed one Suburban’s officers him perfectly, told that his credit and the bank checked out $100,000 credit; $20,000 would extend to him on the line of he borrowed August 12,1976, and, “in on agreement”; accordance with the terms the 26,1978, or about August to Suburban refused to extend additional credit him thereby and “breached its and contract.” McErlean written] [oral concluded count II with a prayer specific performance of the contract money and damages. III,
In count in alleged, pleading McErlean addition to over the facts stated, hereinbefore that the terms of the contract into between entered parties the trust, fiduciary relationship established a of confidence and Bank, I, V, party Union National IV this named counts and is not a to defendant appeal. and that funds Suburban’s refusal extend to McErlean additional to beyond $20,000 interest, protected constituted interference with his fraud, relationship and a of trust and violation of the aforementioned were exemplary damages attorney’s confidence. Actual and and fees requested. therein among complaint,
Certain exhibits were attached to the amended First which were in a following: assignment an of beneficial interests Suburban, by signed National Bank agreement of Blue Island trust to Suburban, security McErlean for a president and the vice as collateral $100,000 payable certain note amount of to the order of Suburban 5, 19762; August dated “to the extent of personal guarantee of loans of_% $100,000 annum,” signed by with interest at Isabelle per the rate McErlean, credit; to enable Neal McErlean to obtain said extent annum, promissory payable to per note sum at 9%interest Suburban, 9, 1976, signed August February dated payable by McErlean; August Neal McErlean dated and a letter from Suburban to 26, 1976, stating that of the loan Suburban had learned consummation precipitate (another lender) payoff would demand on the Union Bank Bank, present McErlean’s that Suburban borrowings from Union submitted money would therefore until McErlean not advance additional involved corporations current financial in which he was statements of all and a copy of his 1975Federal income tax return. 27,1977, July
Suburban to strike and dismiss the moved on On equitable relief. legal for failure to state a claim for either March and dismissed the trial court allowed Suburban’s motion the order complaint. reconsider and vacate McErlean then moved to No draft of of dismissaland for leave to file a second amended the court. proposed proffered second was court this 1979. April denied motion on 16,1979. Pursuant May A McErlean on appeal notice of was filed 110A, 309(3)), par. ch. Supreme 309(3) (Ill. Court Rule Rev. Stat. because appeal Suburban dismiss the on November moved to requested nor McErlean the record on timely had not filed (Ill. Rev. Court Rule Supreme extension of time accordance with date, 110A, moved for 326). Stat. On same par. ch. record time to file the given extend leave to file a motion to motion, unable that he had been instanter. In McErlean stated the documents appeal because complete praecipe a record on or file *4 file, and he the court not locate stamped, his file were not date he could files. He reviewing Suburban’s by prepare praecipe was unable to problem, and that he further stated that he had advised Suburban of 2 expected by Significantly, appears McErlean. drawn or no such note to have been
1145
16, 1979,
court record
promptly
praecipe
filed a
on November
after the
2,
Suburban’s
granted
had been located on
1979. The court
November
trial
Although
309(3) previously
motion to dismiss.
Rule
authorized
after
appeal
appeal
court to dismiss an
file the record on
for failure to
326, an
expiration of the
in
Court Rule
periods
Supreme
time
delineated
1979,
amendment,
15,
adopted July
October
and effective
Therefore,
21,
(3).
delay filing
in
the
eliminated subsection
on November
Ill. Ann.
longer ground
by
record was no
for
the circuit court.
dismissal
Notes,
Stat.,
110A,
309,
at
par.
ch.
and Practice
Supplement to Historical
(Smith-Hurd
1980).
Supp.
on
filing
McErlean’s motion to
of the record
extend the time
have been
made
the trial court on November
should
(1957),11
timely
(see
made in
reviewing
the
court
In re Estate Meirink
561,
Ill.
Ill.
N.E.2d
and First Finance Co. v. Ross
588).
suggestion
extenuating
211 N.E.2d
His
circum
stances in
unpersuasive
that he was unable
record is
to locate
court
several reasons. He had access
files and could have
to Suburban’s
register,
consulted the circuit court
which he could have
docket and
from
prepared a praecipe.
right
reviewing
He had the
court for an
to move the
pursuant
extension of time
He
neglected
to Rule
which he
to do.
could
missing
have moved the circuit court for
record
restoration
the intervening
(see,
time
e.g.,
par.
Rev. Stat.
ch.
1 et
seq.). Restoration
here would have been
the fact that there
facilitated
report
no
of proceedings to
reconstruct. McErlean’scontention
he did
pursue any
not
of these alternatives because Suburban was advised
Notwithstanding
situation and
objected
never
is insufficient.
foregoing
without
under amended Rule
the trial court was
authority to dismiss
its merits.
appeal.
to consider the case on
elect
935, 937,407
People
Ray
See
Marbly (1980),
v. Winter
67 Ill. 2d
The dismissal of the must affirmed. The lawsuit was correct and be complaint amended specific per did not state a of action for cause damages formance or allege sufficiently as failed to a loan commitment definite to agreement. constitute an enforceable It is clear that McErlean was to sign personal any actually note for amounts borrowed before $20,000, Suburban gave any subsequently him money. When he borrowed such a Although assignment note was of the beneficial executed. it, allegation appears interest the Blue Island Bank trust refers to no complaint signed such a note charging that McErlean ever for a loan of such exhibit is annexed to the no No purporting document has to be a contract to loan been otherwise pleaded or attached as an to the exhibit. Allegations that an appear the amended to the effect *5 “* * * a line of himto extend officer of Suburban would [McErlean] * * * II, par. complaint, count (amended [$100,000]” credit not to exceed “* * * oral and into a contract both 14), had entered parties and that the * * *” II, 17) that line of par. for count (amended complaint, written of appears to be a reflection line of credit” alleged credit. The “extended in the by Isabelle language guaranty signed personal * “* * said time to time to from request that Suburban extend form of * * * of to the extent proper may such as said Bank deem Debtor credit * ** equity in law or cognizable contract elements of a [$100,000] No guaranty or in the appear a contract as the essential terms of such would elsewhere, These terms pleaded. any nor are such elements credit; the include, of of the line example, the intended duration for such emanating from any loan applicable charged rate of interest to be ascertained; be such interest would agreement, an or the basis for how maturity of such contemplated what duration or date or dates were i.e., contemplated, loans; repayment what rate of and mode or repayment if repayable be or whether the entire amount would v. Parkview (See, e.g., Fleming acceptable. installments would be 6, 8, 333 N.E.2d 3d Colonial Manor Investment Co. of the allegations elements from The absence of such material attached, as as the absence well any or of the exhibits drawn, them can be respect to any bases from which inferences with an enforceable allege that McErlean has failed impel the conclusion Center, Ill. (1969),111 Inc. contract. Shell Co. v. Model Food Lee 235,250 666. Association, Realty Co. v. HNC Inc.
In Willowood Condominium of a 1249, alleging a breach brought (5th 1976), Cir. 531 F.2d suit was failed alleged contract make a loan. contract or commitment to from a commercial in two letters specifications because there were no would be $4.7 million loan on a lender as to how and when interest repayment and adjusted paid the method of disbursement or and in Willowood parties though Even principal were left unresolved. rate, was considered provision interest agreed upon floating interest major were deemed These omitted terms vague support too a contract. contention with McErlean’s and material in contrast Willowood customary and is by what they may be determined are minor and contexts, specification that the In reveal reasonable. other the cases non, of a qua if not the sine significant, is charged interest rates to be Continental See, Lignoul rel. money. e.g., contract to loan Illinois ex 1167, 1975), Supp. 409 F. Ill. (N.D. Co. Illinois National Bank & Trust 176;Independent 1178, 1975),536F.2d (7th Cir. part, part rev'd in aff’d 1976),534 F.2d (D.C. Cir. Smith Bankers America v. Association of 948. properly challenged complaint, reviewing analyzing
In as true must be taken facts allegations pleaded and well pleaded motion; purposes for the to dismiss admitted the face of motion exists, of credit that a line or allegations that a contract broad both a contract extended, entered into parties had be or that the would facts, legal are mere written, supporting in the absence of oral and (1976),34Ill. (Pollack v. Co. conclusions. Marathon Oil (1971),1 v. Koblus Corp. 341 N.E.2d Kraftco 575.) No (1971),49 Ill. 2d 274 N.E.2d denied complaint as in the instant implied, expressly pleaded, any are nor can be referred, particularly, previously which have to the material terms to we significant these interest, light In repayment. terms of duration and omissions, we find no error in the dismissal partially oral, partially oral purports plead insofar as *6 written, in future. money contract to loan the in the interest of beneficial assignment
McErlean maintains that the
made the line
submitted
personal guaranty
Blue Island Bank trust and the
will not
Generally, equity
of credit irrevocable and unconditional.
to lend
agreements
of
specific performance
countenance an action for
(See,
Cohn v.
money
e.g.,
in
exceptional
the absence of
circumstances.
Corbin,
Contracts
(1885),115 Ill.
3 N.E.
5A
Mitchel
§1152
rule, usually
(1964).)
exceptions to that
apparently
alludes to
cases, where,
upon
in
the
recognized in
reliance
construction loan
substantially
future,
promise
money
putative
to loan
in
the
borrower
the
Annot.,
As
(1978).)
1121-29
we
changes position. (See
82 A.L.R.3d
noted,
loaned unless
money
have
it is evident that
was to have been
no
executed;
such
no
personal
specific
and until
notes for
amounts were
$20,000note
alleged
except
notes are
for the
negotiated,
to have been
to,
concededly received
previously referred
for which McErlean
demonstrate,
Further,
money.
in
cases
persuasive
as the facts
the more
specifically
agreements
money in the future have been found
to loan
change of
in
has been a substantial
only
enforceable
cases not
where there
contemplates the terms
position,
agreement
initial
but also where the
(See, e.g., Vande
upon
agreements
which future
will be consummated.
183:
534 P.2d
(1975),
venter v.
271 Ore.
Dale Construction Co.
$29,850
per
at 7%
agreement
approved
make VA
loan
the sum of
to
(1972),
years;
Savings
annum for 30
v.
& Loan Association
Leben Nassau
312
(1972),34 N.Y.2d
40
Div.
337 N.Y.S.2d
aff'd
loan a
to
mortgage
obligating
N.E.2d 180:
commitment
defendant
Mutual
years;
of 30
Cuna
specific
per year
period
sum at 6%interest
for a
413:
450 P.2d
(1969),
9 Ariz.
Society Dominguez
Insurance
v.
specific
$4,114,
payable
agreement
principal to be
to loan
interest and
months;
v. South
City Camden
monthly
a term of 60
installments for
$8,250,000
Jersey
Port Com.
Contrary to McErlean’s further insistence that the advancement Suburban, 9%, made to him by paid on which at he interest part performance constitutes irregularities sufficient to cure agreement under the alleged complaint, facts the amended the advance having itself, completed constituted a transaction within the terms of extended, note therein executed do apply, they alleged not nor are to have any other loan any agreement. (See to be made or to future Red other Wing (7th 1947), Shoe Co. v. Cir. 164 F.2d Shepherd Safety Corp. Shoe 415,418-19.) alleged agreements The effort on into convert the an option which accepted by part performance of the loan for option similarly misses the mark. An is and is also contract required (Friedman contain the essential attributes of a contract. Development Management Group, Inc. No in the amended option pleaded contract was
complaint,
is
any
option
any
nor
reference to an
contract to be found
respect
exhibits attached
with
option
thereto. The authorities cited
contracts are inapposite to the circumstances of this case. Nor are we able
any
to find
similarity
upon,
between the documents relied
made, in
hypothecation
the amended
which resemble an
*7
agreement
this
bring
for which
as
case
McErlean now contends so
within the
such
instrument.
authority
regard
cited with
to the effect of
III
paragraphs
The
19 and 20 of count
contained
"* * *
of the contract
simply charge
amended
that
the terms
fiduciary
entered
plaintiff
into between
and Suburban established
* * *”
relationship;
relationship
and a
of confidence and trust
which was
$100,000.
violated
grant
Suburban’s
loans to the extent of
failure to
Fiduciary relationships may
reposed by
is
one
arise where confidence
influence,
party
the other
such as
party who exercises domination and
client,
between
like relation
attorney
principal
agent,
or other
(In
ships as
re Estate
developed by
alleged.
facts and circumstances
65.)
nothing
find
Nelson
132Ill.
N.E.2d
from which
borrower
lender and
dealings
inherent in business
between
facts
absence of
relationship in the
springs
cognizable fiduciary
inferred.
may be
such a connection
pleaded
circumstances
from which
therefore,
III,
proper.
also
The dismissalof count
was
first
amend
leave to
was denied
parties agree
Both
that McErlean
made
of the denial
mention
complaint, although
explicit
no
hearing
transcript of
no
The record contains
the trial court’s order.
for the
was tendered
on the motion. No second amended
in the first
the defects
effectuating a cure of
court’s consideration
its
abused
held to have
cannot be
The trial court
circum
under these
to amend
denying
discretion in
McErlean’s leave
Ill.
(1980),83
(Volvo
v. Gibson
Corp.
stances.
America
where, as
Further,
properly
is
denied
leave to amend
a viable cause
here,
plead
will be unable
apparent
plaintiff
is
that
(1977),52
People
Egan
action.
19v.
ex rel. Council
For the reasons the be affirmed. County dismissing action must the cause of Affirmed. DOWNING,
PERLIN, J., J., P. concur. OF REHEARING* OPINION ON DENIAL SUPPLEMENTAL Mr. of the court: opinion DOWNING delivered the JUSTICE regarding the petition point Aero’s rehearing raised technical Casati’s of whether opinion’s reference to the trial court’s resolution II, B.) This part agency (See section to sell was revocable at will. supplemental opinion point. addresses that finding of a
Aero contends this the trial court’s court’s reference to one of finding contract as irrevocable at Aero’swill misconstrued nevertheless, but, fact. finding Aero claims the trial court’s was one of law incorrect severable. because the record indicates the contract was
We note at on anticipated the outset that Aero never raised or Rather, the issue by implication of contract severability. Aero contended * original opinion is found at 90 Ill. 3d 530. *8 only
that the agency coupled irrevocable one with an interest. Aero was did recognize not holding partially law bilateral contract performed that a prior breached performance supports recovery the time for full of profits by contracted an or injured party agent for be he otherwise. See Lake Michigan Ry. (1894), Shore & 152 Ill. Southern Co. v. Richards 773; 38 N.E. City v. 20 Ill. Izzo Loves Park 125, 155 Williston, §§1301,1397 (3d see Contracts generally 1968). ed. contract,
Part B of section at the II reasons that the instant bilateral petitioner market, time supported property by removed the from the was Casati’s consideration will. and therefore was not revocable at Casati’s was buyers. money consideration The was solicit tenants “bonus” to be paid upon presentation buyer. of an unconditional Aero concedes Casati’s employment supervise upon was predicated construction record, compensation. The is silent as to whether compensated Casati’s consideration in the form solicitation was to be solely from the both. money, or from the “bonus” consideration, nonseverable compensation nature of Casati’s there- for, establish a will. agency contract which is revocable at not Andros Realty Hansen N.E.2d 664. Co.
The trial court’s at will conclusion that the contract not revocable is supported by necessarily beyond went record. Such a determination the four opinion recognizes corners of the the determination contract. Our as one light weight of fact which is reviewable in manifest brief, Although evidence. B is part our treatment of the our issue opinion citation Casati’s authority adequately our con indicates and, therefore, support sideration was not severable was sufficient agency irrevocable to sell. That to sell was breached Aero. agency appropriate Accordingly, anticipatory repudiation the doctrine of is an theory hereby deny which Aero’s may recovery. under Casati seek petition rehearing. petition rehearing
Aero’s denied. PERLIN, JJ.,
STAMOS and concur.