{ "id": 3612314, "name": "BEATON & ASSOCIATES, LTD., Plaintiff-Appellee, v. JOSLYN MANUFACTURING & SUPPLY COMPANY, Defendant and Counterplaintiff-Appellant (John L. McGinley, Jr., Defendant and Counterplaintiff-Appellee; Wilbur L. Beaton, Sr., et al., Counterdefendants-Appellees)", "name_abbreviation": "Beaton & Associates, Ltd. v. Joslyn Manufacturing & Supply Co.", "decision_date": "1987-07-30", "docket_number": "No. 85-3272", "first_page": "834", "last_page": "849", "citations": [ { "type": "official", "cite": "159 Ill. App. 3d 834" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "437 N.E.2d 872", "category": "reporters:state_regional", "reporter": "N.E.2d", "pin_cites": [ { "page": "883" } ], "opinion_index": 0 }, { "cite": "107 Ill. App. 3d 544", "category": "reporters:state", "reporter": "Ill. 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JOSLYN MANUFACTURING & SUPPLY COMPANY, Defendant and Counterplaintiff-Appellant (John L. McGinley, Jr., Defendant and Counterplaintiff-Appellee; Wilbur L. Beaton, Sr., et al., Counterdefendants-Appellees)." ], "opinions": [ { "text": "JUSTICE JOHNSON\ndelivered the opinion of the court:\nPlaintiff, Beaton and Associates, Ltd., brought an action in the circuit court of Cook County against defendants, the Joslyn Manufacturing and Supply Company, and John L. McGinley. Plaintiff sought damages and other relief from Joslyn for services rendered. Plaintiff alleged also that Joslyn interfered with its business relationship with McGinley. Plaintiff additionally alleged that McGinley interfered with the contract between it and Joslyn, and also that McGinley conspired with Joslyn to injure it.\nJoslyn counterclaimed, alleging that plaintiff obtained its contract through fraud. Joslyn sought damages for the common law fraud and also sought damages for statutory fraud, punitive damages, attorney fees and costs.\nThe trial court entered judgment for plaintiff only on the unpaid contract balance of $59,038.18 and entered judgment also for plaintiff on Joslyn\u2019s counterclaim. The court, however, subsequently amended its order and entered judgment for Joslyn on its counterclaim. Although the court found plaintiff guilty of common law fraud, it limited Joslyn\u2019s award to $35,170 in actual damages and denied Joslyn an additional $11,022 that it would have paid plaintiff as a result of the fraud. The court also denied Joslyn statutory fraud and punitive damages, attorney fees and costs.\nOn appeal, plaintiff and McGinley contend that the trial court erred in entering judgment for Joslyn on the counterclaim, or at least was correct in limiting Joslyn\u2019s award to the amount that Joslyn actually paid plaintiff rather than the amount it would have paid as a result of the fraud. Joslyn contends on appeal that it should not pay the unpaid contract balance due to the fraud, and that the trial court erred in limiting its award and in denying it statutory fraud and punitive damages, and attorney fees.\nWe affirm, as modified, and remand.\nThe trial court found the following facts. Joslyn operated a manufacturing plant of its Electrical Apparatus Division (EAD) at 969 West 37th Place in Chicago, Illinois. The United Steel Workers Union represented the workers at the EAD plant. In early 1979, Joslyn held contract negotiations with a local of the union. At this time, Joseph S. Washburn was a vice-president of Joslyn and its director of industrial relations. Washburn was responsible for conducting the negotiations and planning Joslyn\u2019s response to a work strike and related plant security problems.\nThe record further shows that on February 27, 1979, Washburn resigned his positions with Joslyn, but remained employed by Joslyn as an advisor and consultant to its president. Washburn continued to serve as Joslyn\u2019s chief negotiator in the labor dispute at the EAD plant. He also continued to plan for security services if a strike occurred. Washburn received a salary and health insurance benefits from Joslyn. In his written agreement, Washburn promised that he would do nothing detrimental to Joslyn\u2019s business.\nWashburn subsequently formed J. W. Associates, Inc., a privately held corporation in the business of labor consulting. Joslyn provided no offices for Washburn; he maintained offices for J. W. Associates at his home. Joslyn knew of Washburn\u2019s consulting firm.\nWilbur L. Beaton, Sr., and Wilbur L. Beaton, Jr., represented plaintiff, Beaton and Associates, Ltd., an investigation and security service firm. In early April 1979, Washburn contacted plaintiff concerning the possibility of Joslyn\u2019s obtaining from plaintiff armed guards and related strike security services. Washburn told plaintiff that he was a labor consultant, had his own business and referred to Joslyn as his client; he distributed business cards advertising J. W. Associates, Inc.\nPlaintiff chose John L. McGinley, Jr., to supervise the proposed strike security operation for the plant. McGinley had done strike security work previously for plaintiff. On April 16, 1979, Washburn, Beaton, Jr., and McGinley met and discussed security service for Joslyn during the anticipated strike. They eventually agreed that plaintiff would charge Joslyn $30 per hour for armed guards, $40 per hour for McGinley\u2019s supervision and $100 per hour for plaintiff. Plaintiff would charge Joslyn for equipment at rental cost. Plaintiff additionally charged Joslyn $500 for its survey of the plant to determine its security needs. McGinley and plaintiff eventually agreed, verbally, to a 50% division of the profits. Washburn considered two other security firms, but chose plaintiff.\nThe record further shows that Washburn, plaintiff and McGinley entered into an additional agreement on April 16, 1979. Beaton, Jr., stated that he gave a 20% bonus to those who referred business to him because the company derived its business entirely from referrals. Plaintiff paid Washburn such a fee: $6 for every hour of labor billed to Joslyn and $100 out of the strike survey fee. Joslyn did not know of this agreement; Washburn, plaintiff and McGinley did not tell Joslyn about it.\nOn May 6, 1979, the union struck Joslyn\u2019s BAD plant. Washburn notified plaintiff of the strike; plaintiff sent McGinley to the plant to establish and supervise plant security. Plaintiff billed Joslyn weekly; Joslyn\u2019s payments were weekly. Washburn reviewed the weekly invoices and Joslyn paid them at his approval. A week after the strike began, McGinley requested more money from plaintiff because he was spending more time at the plant than he anticipated. McGinley and plaintiff agreed on a $27-per-hour salary in addition to his 50% share of the profits. The hourly salary came out of plaintiff\u2019s $40-per-hour billing for McGinley\u2019s time.\nIn mid-June, Joslyn hired Fred Haynes, a labor consultant, to supervise its strike security and to cut security costs. Shortly thereafter, Joslyn terminated plaintiff\u2019s services, effective July 1, 1979. Joslyn then offered the plant security job to McGinley. McGinley told Joslyn that plaintiff owed him money and he feared that plaintiff would not pay him if he accepted the offer. Consequently, Joslyn held back payment of plaintiff\u2019s last two invoices, totalling $59,039.18, to insure that McGinley would receive his money. McGinley accepted Joslyn\u2019s offer. Plaintiff did not pay McGinley.\nBetween May 6, 1979, and July 1, 1979, Washburn received from plaintiff payments totalling $35,170 pursuant to their April 16, 1979, agreement. Had Joslyn paid plaintiff its last two invoices, plaintiff would have paid Washburn an additional $11,022. Joslyn did not know of plaintiff\u2019s payments to Washburn and no one told Joslyn about them.\nOn April 12, 1984, the trial court found the foregoing facts and entered judgment for plaintiff on the contract. The trial court found also that Joslyn did not interfere with plaintiff\u2019s business relationship with McGinley. The court likewise found that McGinley did not interfere with the contract between it and Joslyn. Additionally, the court found that plaintiff did not prove the existence of a conspiracy between McGinley and Joslyn. The trial court also entered judgment for McGinley on his counterclaim against plaintiff; the court awarded him his $27-per-hour salary, without interest, out of plaintiff\u2019s judgment against Joslyn.\nThe trial court also found for plaintiff on the counterclaim. The court did not find sufficient \u201cevidence to show that [plaintiff] knew that Washburn was not an independent labor consultant but was an employee of Joslyn.\u201d Consequently, the court found no fraud.\nOn October 9, 1985, however, the trial court amended its findings, concluding that the agreement between plaintiff and Washburn was based on constructive or common law fraud. The court reasoned that Joslyn need not show that Washburn was its employee, but rather only that he was its agent. Washburn, therefore, owed Joslyn a fiduciary duty of loyalty. Consequently, the trial court vacated its earlier judgment for plaintiff on the counterclaim and entered judgment for Joslyn.\nThe trial court, however, failed to find plaintiff guilty of statutory fraud. The trial court also limited Joslyn\u2019s award to the amount that Washburn actually received, $35,170; the court excluded the additional $11,022 that Washburn would have received had Joslyn paid plaintiff\u2019s last two invoices. The court also denied Joslyn punitive damages. The trial court entered an amended final judgment order on October 22, 1985, wherein it incorporated all of its prior orders and made final allocations between plaintiff and McGinley. Plaintiff, Joslyn and McGinley appeal.\nJoslyn appeals from plaintiff\u2019s judgment for the unpaid contract balance of $59,038.18, contending that it should not pay plaintiff due to its fraud. Plaintiff and McGinley dispute their liabilities on Joslyn\u2019s fraud claims and all parties dispute the trial court\u2019s disposition of those claims. We note that this was a bench trial in which the trial court heard conflicting evidence. Accordingly, we will not disturb the trial court\u2019s findings and substitute our own opinion unless its holding is against the manifest weight of the evidence. Greene v. City of Chicago (1978), 73 Ill. 2d 100, 110, 382 N.E.2d 1205, 1210, quoting Schulenburg v. Signatrol, Inc. (1967), 37 Ill. 2d 352, 356, 226 N.E.2d 624, 626.\nI\nA\nPlaintiff and McGinley first contend that the trial court erred in finding them guilty of common law fraud. They argue that to prevail in an action for fraud, a plaintiff must prove (1) that the defendant made a statement, (2) of a material nature as opposed to opinion, (3) untrue, (4) known by the person making it to be untrue, believed by him to be untrue, or made in culpable ignorance of its truth or falsity, (5) relied upon by the victim to his detriment, (6) made for the purpose of inducing reliance, and (7) such that the victim\u2019s reliance led to his injury. Further, the plaintiff must prove the first four elements by clear and convincing evidence. Gordon v. Dolin (1982), 105 Ill. App. 3d 319, 324, 434 N.E.2d 341, 345-46.\nPlaintiff and McGinley argue essentially that Washburn, rather than they, committed the fraud. Plaintiff argues that it did not intend to deceive Joslyn by its referral fee to Washburn and also that its referral fee did not injure Joslyn since the trial court found that plaintiff billed Joslyn at the going rate. McGinley argues that he made no representations to Joslyn at all, and that mere knowledge of the agreement between plaintiff and Washburn is insufficient to find him guilty of fraud.\nMany courts have used the definition of fraud that plaintiff and McGinley cite. Our supreme court, however, has described fraud generally to include all acts, omissions and concealments involving a breach of duty, trust or confidence resulting in damage to another. (Majewski v. Gallina (1959), 17 Ill. 2d 92, 99, 160 N.E.2d 783, 788.) Further, the law strictly requires from an agent honesty and loyalty to the interests of the principal. This duty prohibits an agent from not only acquiring personal interests adverse to those of the principal, but also from dealing independently of the interests of the principal to the agent\u2019s personal gain in the subject matter of the agency. Shinpaugh v. Midwest Life Insurance Co. (1961), 32 Ill. App. 2d 207, 211-12, 177 N.E.2d 426, 428-29, quoting Blanchard v. Lewis (1953), 414 Ill. 515, 524, 112 N.E.2d 167, 172.\nAn agent, thus, must keep the principal informed on all matters of which he has knowledge that pertain to the subject matter of the agency. The agent breaches this duty not only when he acts adversely to the principal\u2019s interest, but also when he conceals facts that involve the principal\u2019s advantage. (32 Ill. App. 2d 207, 213, 177 N.E.2d 426, 429.) The record in the instant case shows that Washburn was an agent for Joslyn, planning security services for Joslyn\u2019s plant on Joslyn\u2019s behalf. The trial court, therefore, correctly found that Washburn committed a fraud on Joslyn by accepting plaintiff\u2019s referral fee without informing Joslyn.\nPlaintiff and McGinley do not escape liability. If a third party \u201caccepts the fruits of fraud knowing of the means by which they were obtained he is liable even though he did not personally participate in the fraud.\u201d (Moore v. Pinkert (1961), 28 Ill. App. 320, 333, 171 N.E.2d 73, 78.) Plaintiff and McGinley accepted the fruits of Washburn\u2019s fraud; they received the Joslyn plant security project from Washburn. Plaintiff argues that Washburn had nearly nothing to do with Joslyn hiring it; rather, Joslyn\u2019s plant manager hired it. Plaintiff and McGinley additionally argue that they did not know, and that a court should not have expected them to know, that Washburn was Joslyn\u2019s agent, owing fiduciary duties to Joslyn. Thus, plaintiff and McGinley argue, they did not receive the Joslyn project based on Washburn\u2019s fraud.\nThe record shows, however, that plaintiff and McGinley knew that Washburn acted on behalf of Joslyn. Washburn contacted plaintiff and negotiated with it; Joslyn\u2019s plant manager merely ratified Washburn\u2019s selection. The trial court\u2019s finding that plaintiff received the Joslyn security project as a result of its referral fee to Washburn, whom plaintiff and McGinley knew to be Joslyn\u2019s agent, was not against the manifest weight of the evidence.\nMcGinley also accepted the fruits of Washburn\u2019s fraud; he received his position when plaintiff received the Joslyn project. Thus, both plaintiff and McGinley accepted employment from Joslyn through Washburn as a result of the secret referral fee. We hold, therefore, that the trial court\u2019s ruling, finding plaintiff and McGinley guilty of common law fraud against Joslyn, is not against the manifest weight of the evidence.\nB\nThe trial court also found plaintiff and McGinley guilty of constructive fraud. Courts may infer fraud from the relationship of the parties or from the surrounding circumstances regardless of any actual dishonest purpose. We have defined this type of fraud, constructive fraud, as any act, statement or omission that amounts to positive fraud or that courts construe as fraud because of its detrimental effect upon public interests and public or private confidence. Constructive fraud requires neither actual dishonesty nor intent to deceive. It is a breach of a legal or equitable duty that the law declares fraudulent because of its tendency to deceive others, irrespective of the moral guilt of the wrongdoer. In re Estate of Neprozatis (1978), 62 Ill. App. 3d 563, 568, 378 N.E.2d 1345, 1349.\nPlaintiff and McGinley are both guilty of constructive fraud. The record shows that Washburn breached his fiduciary duty to Joslyn and, thus, is guilty of constructive fraud. Further, plaintiff and McGinley also are guilty of the constructive fraud because they accepted the fruits of the fraud, the Joslyn security project, knowing that they received it as a result of the fraud. (Moore v. Pinkert (1961), 28 Ill. App. 2d 320, 333, 171 N.E.2d 73, 78.) We hold that the trial court\u2019s ruling, finding plaintiff and McGinley guilty of constructive fraud against Joslyn, in addition to common law fraud, is not against the manifest weight of the evidence.\nII\nJoslyn contends that since plaintiff and McGinley are guilty of common law and constructive fraud, then (A) it should not pay plaintiff the unpaid contract balance of $59,038.18. Joslyn additionally contends that the trial court erred in (B) limiting its award to the $35,170 that plaintiff actually paid Washburn and excluding the additional $11,022 that Washburn would have received had Joslyn paid plaintiff\u2019s last two invoices, (C) denying it punitive damages, and (D) denying it damages under the Illinois Consumer Fraud and Deceptive Business Practices Act (Ill. Rev. Stat. 1983, ch. 121\u00bd, par. 261 et seq.).\nA\nJoslyn contends that it should not pay plaintiff the unpaid contract balance of $59,038.28 due to the common law and constructive fraud. One induced to contract through the fraud of another may elect to rescind the contract and recover the consideration paid, or affirm the contract and recover the difference between the property received and what he or she would have received but for the fraud. (In re Estate of Neprozatis (1978), 62 Ill. App. 3d 563, 570, 378 N.E.2d 1345, 1351.) In this case, plaintiff\u2019s payments to Washburn represent the difference between the value of the security services Joslyn received, including Washburn\u2019s misconduct in obtaining those services, and what Joslyn would have received but for the fraud.\nJoslyn contends, however, that the amount of plaintiff\u2019s referral fee to Washburn is a minimal and insufficient measure of damages. Joslyn argues essentially that since plaintiff paid Washburn in return for the security project, the negotiations between plaintiff and Washburn for plaintiff\u2019s billing were a sham and that plaintiff probably inflated its rates. Thus, Joslyn argues, it should not pay the unpaid contract balance since plaintiff probably inflated it due to its fraud.\nA plaintiff, as the party seeking to recover, has the burden not only to establish that he or she sustained damages, but also to establish a reasonable basis for computing those damages. A court may not award damages based on speculation or conjecture. Further, a reviewing court will not disturb the trial court\u2019s findings as to damages unless those findings are against the manifest weight of the evidence. Schoeneweis v. Herrin (1982), 110 Ill. App. 3d 800, 808, 443 N.E.2d 36, 42.\nIn the instant case, the trial court found that plaintiff\u2019s charges to Joslyn were reasonable and \u201cwithin the limits customarily charged within the industry.\u201d Joslyn contends, however, that we should disregard the trial court\u2019s finding \u201cas legally irrelevant.\u201d This, of course, we cannot do. After reviewing the record, we conclude that the trial court\u2019s finding that plaintiff did not overcharge Joslyn was not against the manifest weight of the evidence. Further, the total of plaintiff\u2019s payments to Washburn is based on neither speculation nor conjecture; it represents a reasonable basis for computing Joslyn\u2019s damages. Therefore, we hold that the total of plaintiff\u2019s payments to Washburn, representing the difference between the value of the security services Joslyn received, including Washburn\u2019s misconduct in obtaining those services, and what Joslyn would have received but for the fraud, is the proper measure of Joslyn\u2019s damages.\nB\nAs a result of this reasoning and conclusion, we must agree with Joslyn that the trial court should have included in its award of $35,170 the $11,022 that Washburn would have received had Joslyn paid plaintiff\u2019s last two invoices. The total of these two amounts, $46,192, represents the difference between the value of the security services that Joslyn received, including Washburn\u2019s misconduct in obtaining those services, and what Joslyn would have received but for the fraud. In re Estate of Neprozatis (1978), 62 Ill. App. 3d 563, 570, 378 N.E.2d 1345, 1351.\nC\nJoslyn contends that the trial court erred in denying it punitive damages. Punitive or exemplary damages are not favored in the law. Our courts allow them only when a wrongful act is accompanied by aggravated circumstances, including fraud, willfulness, wantonness, or malice. Courts award punitive damages to punish a defendant, teaching him not to repeat his intentional, deliberate and outrageous conduct, and to deter others from similar conduct. (Anvil Investment Ltd. Partnership v. Thornhill Condominiums, Ltd. (1980), 85 Ill. App. 3d 1108, 1118-19, 407 N.E.2d 645, 652-53.) Further, the decision to award punitive damages is left to the trier of fact; a reviewing court will not disturb its decision absent an abuse of discretion. 85 Ill. App. 3d 1108, 1121, 407 N.E.2d 645, 654.\nAfter reviewing the record, we conclude that punitive damages are inappropriate in the instant case. Although a court may allow punitive damages based on fraud, the fraud must be an aggravated circumstance. The trial court found plaintiff and McGinley guilty of fraud; Joslyn\u2019s action was based on their fraud. Thus, compensatory damages are sufficient punishment. Knierim v. Izzo (1961), 22 Ill. 2d 73, 87-88, 174 N.E.2d 157, 165.\nJoslyn contends that fraud is a sufficient and independent basis for an award of punitive damages, citing Four \u201cS\u201d Alliance, Inc. v. American National Bank & Trust Co. (1982), 104 Ill. App. 3d 636, 640, 432 N.E.2d 1213, 1217, relying on Laughlin v. Hopkinson (1920), 292 Ill. 80, 126 N.E. 591. In each of those cases, however, the court concluded that the defendant\u2019s fraud was sufficiently aggravated to justify an award of punitive damages. (104 Ill. App. 3d 636, 640-41, 432 N.E.2d 1213, 1217.) Plaintiff and McGinley\u2019s fraud against Joslyn, while sufficient to support an action for damages, does not possess any aggravated circumstances to justify an additional recovery. We note that Joslyn alleges that plaintiff and McGinley are guilty of conspiracy, an aggravated circumstance. The trial court did not find any conspiracy in this case and, after reviewing the record, we cannot say that its decision was against the manifest weight of the evidence. We hold that the trial court did not abuse its discretion in denying punitive damages to Joslyn.\nD\nJoslyn contends that the trial court erred in denying it compensatory and punitive damages, attorney fees and costs under the Illinois Consumer Fraud and Deceptive Business Practices Act (the Act). (Ill. Rev. Stat. 1983, ch. 121\u00bd, par. 261 et seq.) The act is regulatory and remedial, intended to curb a variety of fraudulent abuses and to provide a remedy to persons thereby injured. Its purpose is to protect Illinois consumers, borrowers and businessmen against fraud, unfair methods of competition and other unfair and deceptive business practices. Frahm v. Urkovich (1983), 113 Ill. App. 3d 580, 584, 447 N.E.2d 1007, 1010, quoting Scott v. Association for Childbirth at Home, International (1981), 88 Ill. 2d 279, 288, 430 N.E.2d 1012, 1017.\nWe have held, however, that liability under the Act is not completely open-ended. Rather, the Act was \u201cintended to reach practices of the type which affect consumers generally and is not available as an additional remedy to redress a purely private wrong.\u201d (Frahm v. Vrkovich (1983), 113 Ill. App. 3d 580, 585-86, 447 N.E.2d 1007, 1011.) Joslyn bases its claims on a purely private wrong. We hold, therefore, that the trial court did not abuse its discretion in denying statutory fraud damages to Joslyn.\nIn sum, we uphold the trial court\u2019s findings and conclusions as to Joslyn\u2019s fraud damages. For the aforementioned reasons, however, we increase the amount of Joslyn\u2019s damages from $35,170 to $46,192. 107 Ill. 2d R. 366(a)(5).\nIll\nMcGinley next raises several issues concerning plaintiff. McGinley contends that the trial court erred in (A) finding that he was to receive half of the profits of the Joslyn security project, (B) allowing plaintiff to deduct its attorney fees from the profits before computing his share, and (C) denying him prejudgment interest on his share of the judgment against Joslyn.\nA\nMcGinley first contends that the trial court erred in finding that he was to receive half of the profits from the Joslyn security project. Rather, McGinley argues that he and plaintiff agreed that he would receive a salary of $27 per hour as his compensation. The trial court found, however, that McGinley and plaintiff verbally agreed to a 50% division of the profits. After reviewing the record, we cannot say that its finding was against the manifest weight of the evidence.\nB\nMcGinley next contends that the trial court erred in allowing plaintiff to deduct its attorney fees from the profits before computing his share. Plaintiff contends that the trial court erred in reducing its award of attorney fees.\nWe note at the outset that plaintiff assumes that the trial court found it and McGinley to be partners. Plaintiff bases this assumption on the court\u2019s finding that they agreed to share the profits from the Joslyn security project. Plaintiff and McGinley\u2019s relationship was, rather, a joint venture, which is still governed by the legal rules applicable to partnerships. (Ruskin v. Rodgers (1979), 79 Ill. App. 3d 941, 949-50, 399 N.E.2d 623, 629-30.) Our supreme court has held that where a partnership was sued after dissolution, a partner can properly charge to the partnership his expenses for the costs and attorney fees in defending the action, if the expenses were reasonable, necessary and for the benefit of the firm. Brownell v. Steere (1889), 128 Ill. 209, 214, 21 N.E. 3, 4.\nApplying this principle to the instant case, we conclude that plaintiff cannot recover attorney fees. Plaintiff argued that it is entitled to attorney fees and costs because it litigated the present action to obtain, for the benefit of it and McGinley, the unpaid balance of its fees, for which it received judgment. McGinley, however, did not consent to plaintiff\u2019s bringing this action. Further, plaintiff not only sued Joslyn to recover the unpaid balance of its fees, but it also sued McGinley, seeking damages. Plaintiff brought this action for its own benefit. We will not require McGinley to share plaintiff\u2019s expenses.\nPlaintiff invokes the \u201cequitable fund\u201d doctrine to justify its award of attorney fees out of the profits. The doctrine refers to a court\u2019s directing an allowance of attorney fees to be paid from a fund within the court\u2019s control, which one of the parties created and preserved by its legal action and which benefitted others similarly situated. Board of Education of Community Unit School District No. 303 v. County Board of Kane (1976), 35 Ill. App. 3d 684, 689-90, 342 N.E.2d 223, 227.\nThe award of fees under the doctrine is similar to an action in quantum meruit; the person seeking compensation has, by his or her actions, benefitted another and seeks payment for the value of the service performed. The rationale for awarding attorney fees to a plaintiff who brought the underlying suit is that, by bringing the suit, he or she has performed a service benefitting other class members. A court measures the reasonable value of a plaintiff\u2019s service by his or her expenses incurred on behalf of the class. (35 Ill. App. 3d 684, 690, 342 N.E.2d 223, 227, quoting Lindy Brothers Builders, Inc. v. American Radiator & Standard Sanitary Corp. (3rd Cir. 1973), 487 F.2d 161, 165.) Plaintiff argues that it incurred expenses in securing the judgment against Joslyn, which it shares with McGinley. McGinley, thus, should bear his proportionate expense in securing the fund.\nThe equitable fund doctrine should not apply to the case at bar. A plaintiff may not recover attorney fees under the doctrine when he or she knowingly renders the services for an unwilling recipient. (Tenney v. American Family Mutual Insurance Co. (1984), 128 Ill. App. 3d 121, 124, 470 N.E.2d 6, 9.) The record here shows that McGinley has always been represented by his own attorney. McGinley\u2019s award of half of the profits was due entirely to his own litigation efforts. We will not require McGinley to compensate plaintiff for its attempt to deprive him of his share of the profits. We hold that it would be inequitable to apply the doctrine to the instant case. We vacate the trial court\u2019s award of attorney fees to plaintiff, paid out of the profits from the Joslyn project.\nC\nMcGinley lastly contends that the trial court erred in denying him prejudgment interest on his share of the judgment against Joslyn. Decisions concerning the award of prejudgment interest under section 2 of the Interest Act (Ill. Rev. Stat. 1983, ch. 17, par. 6402) are questions of fact, and we will not disturb their determination on review unless against the manifest weight of the evidence. (Pietka v. Chelco Corp. (1982), 107 Ill. App. 3d 544, 558, 437 N.E.2d 872, 883.) After reviewing the record, we cannot say that the trial court\u2019s decision was incorrect.\nIn sum, we affirm the trial court\u2019s (1) finding that plaintiff and McGinley are guilty of common law and constructive fraud, (2) judgment for plaintiff and McGinley on the unpaid contract balance of $59,038.18, (3) judgment for Joslyn on its common law and constructive fraud claims, but increased from $35,170 to $46,192, (4) denial of Joslyn\u2019s claims for punitive and statutory fraud damages, (5) finding that McGinley was to receive half of the profits from the Joslyn project, and (6) denial of McGinley\u2019s claim for prejudgment interest. We also vacate the trial court\u2019s award of attorney fees to plaintiff, paid out of the profits.\nFor the foregoing reasons, we affirm the judgment of the circuit court of Cook County, as modified by this opinion. We remand the cause to the trial court solely for the purpose of recalculating the parties\u2019 damages consistent with our modifications.\nAffirmed as modified and remanded.\nMcMORROW, P.J., and LINN, J., concur.", "type": "majority", "author": "JUSTICE JOHNSON" } ], "attorneys": [ "Reuben & Proctor, of Chicago (William G. Schopf, Jr., and Andrew Butz, of counsel), for appellant.", "Patrick J. Leston, Ltd., of Glen Ellyn (Patrick J. Leston and Maureen C. Strauts, of counsel), for appellee John L. McGinley, Jr.", "Clausen, Miller, Gorman, Caffrey & Witous, of Chicago (James T. Ferrini, Paul D. Sheldon, and Ivar R. Azeris, of counsel), for other appellees." ], "corrections": "", "head_matter": "BEATON & ASSOCIATES, LTD., Plaintiff-Appellee, v. JOSLYN MANUFACTURING & SUPPLY COMPANY, Defendant and Counterplaintiff-Appellant (John L. McGinley, Jr., Defendant and Counterplaintiff-Appellee; Wilbur L. Beaton, Sr., et al., Counterdefendants-Appellees).\nFirst District (4th Division)\nNo. 85 \u2014 3272\nOpinion filed July 30, 1987.\nRehearing denied September 22, 1987.\nReuben & Proctor, of Chicago (William G. Schopf, Jr., and Andrew Butz, of counsel), for appellant.\nPatrick J. Leston, Ltd., of Glen Ellyn (Patrick J. Leston and Maureen C. Strauts, of counsel), for appellee John L. McGinley, Jr.\nClausen, Miller, Gorman, Caffrey & Witous, of Chicago (James T. Ferrini, Paul D. Sheldon, and Ivar R. Azeris, of counsel), for other appellees." }, "file_name": "0834-01", "first_page_order": 856, "last_page_order": 871 }