I cannot agree with the conclusions reached in the foregoing opinion based upon the theory that Hagerman, Schoneberger and Schulte were joint adventurers or partners for a limited purpose. So far as Hagerman is concerned, his bill of complaint is not framed on that theory. On the contrary, his bill sets out only a joint adventure or partnership between himself and Schoneberger for their mutual benefit. By Hagerman's bill he and Schoneberger were apparently each to emerge with a half interest in the property to be bought by one or both of them and improved by their joint efforts. Schulte is described only in a separate written contract with Schoneberger, and the bill proceeds on the theory that Schulte never had any interest in the joint adventure of Hagerman and Schoneberger except to receive the purchase price of the lots bought from him and the money which he had advanced to complete the building and put it in operation. Thus, so far as Hagerman is concerned, it is apparent that his bill of complaint failed to state a joint adventure or partnership which included Schulte. Hagerman, to recover at all, must recover on the *Page 34 case made by his bill, and cannot state one case in his bill and make a different one by the proof. (Howard v. Burns,279 Ill. 256; Sharkey v. Sisson, 310 id. 98.) Therefore, as to Hagerman, the relief granted by the superior court was not warranted either by the law as applied to the facts or by the allegations of the bill.
A consideration of the claims made by Schoneberger reveals that his position rests almost entirely upon the proposition that a joint adventure and fiduciary relationship existed between the three parties. But an examination of the evidence shows conclusively that the parties themselves did not so regard their relationship. Hagerman and Schoneberger both testified that they were partners in the undertaking, but there is no testimony by anyone that Schulte was a partner. Thus, Schoneberger said: "Hagerman and I were partners. Schulte was to watch that everything was taken care of. He was working for himself." And further: "Hagerman and I agreed we were fifty-fifty partners and were to buy the lots from Schulte for $20,000 clear, he to turn over the title in fee and advance any money that was necessary until the loan was made." Hagerman's testimony likewise shows that his partnership agreement was with Schoneberger. The record shows that Hagerman and Schoneberger attempted to borrow $140,000 on the lots and building without putting any money in it themselves, and by erecting the building for $117,750 or less they expected to own the equity as tenants in common, but when they started construction and found they could only borrow $115,000 on it they were forced to rely upon Schulte for practically all of the additional financing. From all the evidence in the record it is clearly apparent that Schulte was dealing for himself in order to protect his investment in the land and the money necessarily advanced to erect the building and that he was not a joint adventurer with either Hagerman or Schoneberger, who were co-partners for expected profits which did not materialize. Notwithstanding *Page 35 the fact that the paper title to the real estate was shuffled about at different times from Schulte and wife to Hagerman, thence to Schoneberger, and later back to Schulte and wife again, it is undisputed that Schulte was the real owner of the lots at all times, that no money consideration passed for the deeds from the Schultes to Hagerman and thence to the Schonebergers, and that Schoneberger was a mere dummy or straw-man, whose principal contribution was that of lending his name for the vesting of title during the financing and construction period. Schoneberger testified that he had told Schulte he could have a deed any time he wanted it, and did not hesitate to re-convey the property back to Schulte in 1918 for a valid consideration, consisting of about $1000, to re-pay him for money advanced and the release by Schulte of a mortgage on Schoneberger's home. This in itself was evidence of an accounting or settlement between Schulte and Schoneberger. At this time Schoneberger made no claim to any further interest in the property. In fact, he did not claim any interest until 1924, nearly six years later. Schoneberger was made a party to Hagerman's original bill in 1921 and was personally served with process at that time but suffered a default to be taken against him. It was not until October 21, 1924, that he asked to have this default set aside and was given leave to file his answer and cross-bill, by which he claimed a half interest in the land and 58-flat building. The record further shows that in May, 1920, while a witness in another court proceeding, Schoneberger was particularly questioned regarding this 58-flat building and then said he had no interest in it. As contrasted with the admitted nominal interest which Schoneberger had in the property, the evidence shows that Schulte not only furnished the ten lots (which had cost him $15,000) at a stipulated price of $20,000, for which he took a second mortgage, but also advanced the money required above the $115,000 borrowed to complete the building and gave three months of his time *Page 36 to supervise its completion. Schulte was the only one who had any substantial investment in the property outside of the mortgagees who held the $115,000 loan, which he has since paid off. Schoneberger voluntarily re-conveyed his paper title to Schulte in 1918, and at that time was apparently reimbursed for any money he had advanced in the undertaking. At no time did Schoneberger have any such substantial interest as would entitle him to a conveyance of an undivided one-half interest in this valuable property which he claimed under his cross-bill. Under these circumstances it seems highly inequitable to disturb the finding of the chancellor, who held that Schoneberger Was neither entitled to specific performance nor to an accounting, and dismissed his cross-bill.
The record further shows that Hagerman abandoned the superintending of the building over three months before its completion and thereafter spent most of his time on other jobs. With money advanced by Schulte, and under his general supervision, the building was substantially completed in October, 1917. For a period of nearly three and one-half years after the completion of the building neither Hagerman nor Schoneberger ever suggested that they, or either of them, were entitled to any interest in the building. As an explanation of Hagerman's leaving the job over three months before it was completed, the master found "it was evident that the building cost would run over $117,750, so he [Hagerman] would earn nothing by staying." The proof shows that Hagerman abandoned the work and failed both to complete the job at the price stated and within the time stipulated. There can be no relief by enforcement of a contract where the complainant has failed to perform his part thereof or has abandoned the contract.Lasher v. Loeffler, 190 Ill. 150; Weingaertner v. Pabst, 115 id. 412; King v. Walrath, 313 id. 551;Stuckrath v. Briggs Turivas, 329 id. 555. *Page 37
The contract between Hagerman and Schoneberger could not have been specifically enforced by Schulte against Hagerman, not only because Schulte was not a party to it but also because it was essentially a contract for personal services. Since it was not enforceable against Hagerman it likewise cannot be enforced specifically against Schoneberger or Schulte. Before specific performance of a contract to convey real estate can be enforced the contract must be capable of enforcement by either party as against the other. (Welty v. Jacobs, 171 Ill. 624; Ulrey v.Keith, 237 id. 284; Barker v. Hauberg, 325 id. 538.) The inability of Schulte to obtain relief by specific performance is only another reason why it is now inequitable to grant relief to Hagerman against Schulte.
For the reasons briefly stated I believe that Hagerman's amended bill should have been dismissed for want of equity.