dissenting:
I disagree with the majority that the circuit court properly dismissed this case based on the statute of limitations, no estoppel, no novation and no consideration. I must take exception with the trial court’s findings that (1), no joint venture relationship existed between Kemnetz and Brach (2), that Brach was a stranger to the original undertaking and (3), that Brach did not benefit from the original undertaking, because I believe that all three findings are contrary to the evidence.
I take exception to the trial court’s findings that no joint venture existed between Kemnetz and Brach because the existence of a joint venture had been determined in a previous proceeding between Barker, Brach and Kemnetz. In Barker v. Kemnetz et al., 73-8-1145-CH, the circuit court of La Salle county entered an order making the following finding
“4. That defendant, Leonard Kemnetz, owned a one-half interest in the Glenwood Ranch venture and that said venture was being operated as a joint venture between Leonard Kemnetz and Kenneth Brach ***”
In direct conflict with the former finding Judge Wagner stated in this case “The fact that some judge in a proceeding where some of these people or maybe all of them, I don’t know, were involved in a finding that there is a joint venture that existed doesn’t mean that there’s a general partnership with the power to bind the other parties by contract.” On the contrary that is exactly what the previous finding does mean. A joint venture creates a mutual agency between the parties (Bachewicz v. American National Bank & Trust Co. (1979), 75 Ill. App. 3d 252, 393 N.E.2d 652), and general partnership principles govern joint ventures.
The doctrine of estoppel by verdict mandates that this trial judge accept the finding of a previous court if the finding of a specific fact in a former proceeding is material and controlling to the decision in both cases. (18 Ill. L. & Prac. Estoppel sec. 4, at 67 (1956).) The finding that a joint venture existed in the first proceeding, the transcript of which was admitted into evidence in this case, was material and controlling because it defined the equitable interest awarded to Barker. The fact that a joint venture existed between Brach and Kemnetz is certainly material and controlling here because it is determinative of Brach’s authority to act on behalf of his partner, Kemnetz. The doctrine of estoppel by verdict applies not only to parties to the initial proceeding (Kemnetz, Barker and Brach) but to anyone with whom they were in privity. Therefore, the doctrine of estoppel by verdict mandates that this trial court recognize the joint venture relationship and the mutual agency which arose between the joint adventurers.
Admittedly there was no written agreement between Kemnetz and Brach defining their authority to act on each other’s behalf. However, when no express authority was created, the court in Soft Water Service, Inc. v. M. Suson Enterprises, Inc. (1976), 39 Ill. App. 3d 1035, 351 N.E.2d 264, looked to who benefited from the transaction and implied authority by ratification. The court stated “retaining the benefits of a transaction with full knowledge of all material facts is tantamount to ratification.” (39 Ill. App. 3d 1035, 1038, 351 N.E.2d 264, 267.) Although the trial court found that Brach did not benefit from the original survey, the testimony of Sexton certainly indicates that Brach did benefit. The survey was being used by Brach as a partner in the new Glenwood Farms joint venture for the purpose for which it was intended — to subdivide Glenwood Farms. Brach asked Sexton to do “additional” work, not to make an annexation plat. Brach obviously knew that Sexton had not been paid for the original survey, and contrary to the trial court’s findings that Brach paid $3,000 for the “additional” work alone, the evidence clearly indicates that Brach acknowledged that the entire $9,223.52 was owed Sexton and agreed to pay it all. Twice after May 25, 1973, Brach agreed to pay the balance. This certainly does not support a finding that Brach was a stranger to the original transaction, nor does it even remotely suggest that Brach did not benefit from the original survey.
Therefore, I would have reversed the trial court because Brach benefited from the original survey as a joint adventurer with Kemnetz and, therefore, had authority to act on behalf of Kemnetz in stating the account as of May 25, 1973. No original liability was thereby created and the statute of limitations did not run as to the account. Therefore, Kemnetz would certainly be liable under an account stated theory. Brach would be liable on a general contract theory because the evidence shows that in early May 1973 he entered into an agreement with Sexton whereby Sexton was to do “additional work” on the Glenwood Farms project and Brach agreed to pay for the additional work as well as pay for Sexton’s work on the original survey of which he was a beneficiary. Therefore, I believe that the trial court also erred in not finding a new contract with consideration, a finding which would have made Brach liable for all of Sexton’s work on the original survey as of May 25, 1973. The Statute of Frauds would be no bar to this oral agreement because such an oral promise must be regarded as an original undertaking when supported by new and valuable consideration and is, therefore, not merely a promise to pay the debt of another and is not within the Statute of Frauds (Oscar H. Wilke, Inc. v. Vinci (1968), 96 Ill. App. 2d 189, 237 N.E.2d 768.) Therefore, I also find the trial court’s finding that Brach’s promise was to pay $3,000 for the additional work alone totally unsupported by the evidence and contrary to the intent of the parties. In my opinion the circuit court erred in dismissing this cause at the close of plaintiff’s case.