Brokerage Resources, Inc. v. Jordan

• Decision Date: 21 January 1980
• Docket Number: No. 78-1582,78-1582
• Citation: 35 Ill.Dec. 940,80 Ill.App.3d 605,400 N.E.2d 77
• Parties: , 35 Ill.Dec. 940 BROKERAGE RESOURCES, INC., an Illinois Corporation, Plaintiff-Appellee, v. Tom JORDAN d/b/a Claim Prevention Division, Defendant-Appellant, and Jordan Service, Inc., an Illinois Corporation, Defendant.
• Court: United States Appellate Court of Illinois

Page 77

400 N.E.2d 77

80 Ill.App.3d 605, 35 Ill.Dec. 940

BROKERAGE RESOURCES, INC., an Illinois Corporation, Plaintiff-Appellee, v. Tom JORDAN d/b/a Claim Prevention Division, Defendant-Appellant and Jordan Service, Inc., an Illinois Corporation, Defendant.

No. 78-1582.

Appellate Court of Illinois, First District, First Division.

Jan. 21, 1980.

John Peter Curielli and Terrence M. Jordan, Chicago, for defendant-appellant.

Charles L. Wolberg and Rappaport & Meyer, Chicago, for plaintiff-appellee.

O'CONNOR, Justice:

Brokerage Resources, Inc., plaintiff, brought this action against Tom Jordan d/b/a Claim Prevention Division (Jordan) and Jordan Service, Inc. (Jordan Service), defendants, to recover $8,866, which defendants allegedly owed plaintiff for providing certain insurance for defendants at their request. Defendants denied that they owed plaintiff this amount and, as an affirmative defense, alleged that they were separate and distinct entities, that the amount claimed by plaintiff was not a joint obligation and that they had requested a separation of the billing, which plaintiff had refused to do. A bench trial was held, during which the court heard testimony, although no report of proceedings has been included in the record on appeal. On June 13, 1978, the court entered judgment for plaintiff against Jordan for $8,866, and dismissed Jordan Service from the case. The judgment order states that, having heard the evidence and arguments of counsel and being fully advised in the premises, the court finds for plaintiff and against Jordan. Jordan appeals from the judgment against him. No issue is raised concerning Jordan Service's dismissal.

Jordan first contends that plaintiff failed to reply to defendants' affirmative defense, and thereby admitted the defendants' allegation that the amount claimed by plaintiff was not defendants' joint obligation. (See Ill.Rev.Stat.1977, ch. 110, pars. 32, 40(2).) Therefore, Jordan argues, the judgment against him must be reversed and the cause remanded, because he only could be liable for the entire $8,866 claimed by plaintiff if this amount was defendants' joint obligation. Plaintiff maintains that this affirmative allegation was a legal conclusion and not an allegation of fact and that its failure to reply did not constitute an admission.

Assuming, arguendo, that defendants' allegation that their obligation was not joint was an allegation of fact and not a legal conclusion, the record, nevertheless, indicates that plaintiff's failure to reply did not constitute an admission. The judgment order states that the court heard the evidence and arguments of counsel, and Jordan, in his motion to vacate the judgment, asserted that his liability if any, "must be found to exist separate and apart from the liability owed by the defendant, Jordan Service, Inc." This implies that Jordan defended this action in part on the theory that he was not liable to plaintiff for the entire $8,866 because his obligation was separate from that of Jordan Service, Inc. Furthermore, there is nothing in the record which indicates that defendants at any time prior to or during trial raised an issue before the trial court concerning plaintiff's failure to reply to their affirmative defense. Under these circumstances, Jordan cannot now assert that plaintiff admitted the truth of defendants' affirmative defense by failing to reply to it. Franks v. North Shore Farms, Inc. (1969), 115 Ill.App.2d 57, 253 N.E.2d 45; First Federal Savings & Loan Association of Chicago v. American National Bank & Trust Co. of Chicago (1968), 100 Ill.App.2d 460, 241 N.E.2d 615.

Jordan also contends that the judgment against him for the entire amount claimed by plaintiff was against the manifest weight of the evidence. The evidence, Jordan urges, shows that he and Jordan Service were liable, if at all, for separate amounts, because the total $8,866 claimed by plaintiff was not defendants' joint obligation. Furthermore, Jordan argues, section 1 of the Statute of Frauds (Ill.Rev.Stat.1977, ch. 59, par. 1) states that "(n)o action shall be brought, whereby to charge * * * the defendant upon any special promise to answer for the debt, default or miscarriage of another person, * * * unless the promise * * * upon which such action shall be brought, or some memorandum or note thereof, shall be in writing, and signed by the party to be charged therewith, or some other person thereunto by him lawfully authorized." Jordan maintains that this section of the Statute of Frauds requires that the judgment against him for the entire $8,866 be reversed and the cause remanded, because there was never presented into evidence a written undertaking signed by him to pay for Jordan Service's debt to plaintiff.

Plaintiff argues that because no report of proceedings has been filed in this court, it must be presumed that the judgment entered by the trial court is correct. Also, plaintiff maintains that a report of proceedings would show that Jordan was jointly liable for the full amount of plaintiff's claim, because the report of proceedings would establish that, at Jordan's request, his business and Jordan Service's business were jointly covered under the insurance policies provided by plaintiff, which made the premiums less for defendants than the premiums would have been on separate policies covering each business. Plaintiff further contends that defendant's argument concerning the Statute of Frauds is irrelevant here, "because (Jordan) was the principal in the transaction and not a guarantor."

In Illinois, joint contractual obligations generally "shall be taken and held to be joint and several obligations and covenants." (Ill.Rev.Stat.1977, ch. 76, par. 3.) Whether a contractual obligation is joint and several, or only several, depends upon the intentions of the parties, as revealed by the language of the contract and the subject matter to which it relates. (Filosa v. Pecora (1974), 18 Ill.App.3d 123, 309 N.E.2d 356; 17 Am.Jur.2d Contracts §§ 298-300 (1964).) Parties to a contract are more likely to have a joint and several contractual obligation if they have a joint or identical interest in the contract or its subject matter, instead of diverse interests. (17 Am.Jur.2d Contracts §§ 298-300 (1964).) If two or more parties to a contract owe a joint and several duty of performance to another party to the contract and the duty is not performed, each may be liable for the entire damages resulting from the failure to perform. (See Pleasure Driveway & Park District of Peoria v. Jones (1977), 51 Ill.App.3d 182, 9 Ill.Dec. 677, 367 N.E.2d 111; 23 A Ill. L. & P. Judgments § 382 (1979); 17 Am.Jur.2d Contracts §§ 298-300 (1964...