The record contains sufficient information for the appellate court to have reviewed the issue of the validity of the loan agreement. (See Harris v. Algonquin Ready Mix, Inc. (1974), 59 Ill.2d 445, 450, where this court reviewed the issue of validity of a loan agreement made after the appellate court reached its decision but before this court granted leave to appeal. See also 58 Ill.2d R. 366(a)(5), (b)(1), (b)(2)(iii).

Application of the repayment provision of the agreement, as written and intended by intervenors and plaintiff, would result in a monetary recovery by plaintiff in an amount greater than that which the jury determined to be his total measure of damages; plaintiff would be required to repay only $15,000 of the $20,000 advanced by intervenors, thus retaining $5,000 which, when added to the $35,000 owed by the defendant school district under the jury's verdict, would give plaintiff a total recovery of $40,000. This result and the peculiar repayment provision here in question have not been expressly disapproved in any of the court's prior cases dealing with loan agreements ( Rucker v. Norfolk Western Ry. Co. (1979), 77 Ill.2d 434, 441; Kerns v. Engelke (1979), 76 Ill.2d 154, 167-71; Casson v. Nash (1978), 74 Ill.2d 164, 168-70; Gatto v. Walgreen Drug Co. (1975), 61 Ill.2d 513, 520-23; Harris v. Algonquin Ready Mix, Inc. (1974), 59 Ill.2d 445, 451-52; Reese v. Chicago, Burlington Quincy R.R. Co. (1973), 55 Ill.2d 356, 361-65), but double recovery is a result which has been condemned in other contexts. (See, e.g., Peterson v. Lou Bachrodt Chevrolet Co. (1979), 76 Ill.2d 353, 362 (a plaintiff may not recover for the value of services obtained without expense, obligation or liability); McFadden v. St. Paul Coal Co. (1914), 263 Ill. 441, 443-45 (availability of remedies under two statutes does not allow double recovery for the same injury).) To the extent that the agreement of intervenors and plaintiff would allow double recovery, we refuse to give it that effect, regardless of the intentions of the contracting parties.

In Gulf, Mobile Ohio R.R. Co. v. Arthur Dixon Transfer Co., 343 Ill. App. 148, citing John Griffiths Son Co. as authority, the appellate court expanded the concept of implied indemnification among tortfeasors by applying the active-passive negligence doctrine. The rule as discussed and applied by many appellate court opinions was finally recognized by this court in Chicago Illinois Midland Ry. Co. v. Evans Construction Co., 32 Ill.2d 600, and later in Miller v. DeWitt, 37 Ill.2d 273, Muhlbauer v. Kruzel, 39 Ill.2d 226, Carver v. Grossman, 55 Ill.2d 507, and Harris v. Algonquin Ready Mix, Inc., 59 Ill.2d 445. This court has candidly recognized that the concept of implied indemnity, based on the active-passive negligence doctrine, "has been utilized to mitigate the harsh effects that could result from an inflexible application of this judicially created bar to contribution."

In the seminal case of Reese v. Chicago, Burlington Quincy R.R. Co. (1973), 55 Ill.2d 356, 303 N.E.2d 382, our supreme court approved a loan agreement between a plaintiff and one of several joint tortfeasors, where the agreement was reached prior to judgment, it was disclosed, and the nonsettling defendants had the opportunity to test the effect of the agreement on the testimony of the witnesses and on their case. Later, in Kerns v. Engelke (1979), 76 Ill.2d 154, 390 N.E.2d 859, the supreme court relied on its prior holdings in Reese and in Harris v. Algonquin Ready Mix, Inc. (1974), 59 Ill.2d 445, 332 N.E.2d 58, stating: "`Examination of our opinion in [ Reese] clearly shows that the "loan agreement" was made prior to trial before liability of the multiple defendants could be adjudicated.

Gatto v. Calumet Flexicore Corp. (1976), 425 U.S. 936, 48 L.Ed.2d 178, 96 S.Ct. 1669, it determined that a loan agreement which had been entered into during trial but not disclosed until appeal was invalid as the safeguards afforded other defendants as set out in Reese, 55 Ill.2d 356, 364, 303 N.E.2d 382, 387, could not be utilized by them if the loan agreement was kept secret. Again, in Harris v. Algonquin Ready Mix, Inc. (1974), 59 Ill.2d 445, 322 N.E.2d 58, the court invalidated a loan agreement entered into between plaintiff and one defendant after the appellate court decision but before the supreme court granted leave to appeal. In the circumstances of that case the agreement was found by the court to be equivalent to an assignment of a personal injury judgment on appeal.

Categorizing negligence as active or passive involves making a "qualitative distinction between the negligence of two tortfeasors." ( Harris v. Algonquin Ready Mix, Inc. (1974), 59 Ill.2d 445, 449, 322 N.E.2d 58, 60; Chicago Illinois Midland Ry. Co. v. Evans Construction Co. (1965), 32 Ill.2d 600, 603, 208 N.E.2d 573, 574; 21 Ill. L. Prac. Indemnity § 33 (1958).) One who is actively negligent has been called the "more culpable party."

We think that the court's analysis in Reese is equally applicable to the loan agreement involved here, despite the difference that in this case the agreement was not executed until after trial and judgment. In Harris v. Algonquin Ready Mix, Inc., 59 Ill.2d 445, 322 N.E.2d 58 (1975), however, the supreme court seems to have reconsidered the broad approval given to the loan agreement in Reese. The plaintiff in Harris, an employee of Pre-Cast Building Sections, Inc. (Pre-Cast), was injured when a crane, operating on land owned by Algonquin Ready Mix, Inc. (Algonquin), transmitted an electrical charge from a high-voltage power line of Commonwealth Edison Company (Edison).

Rather, we believe that under Carver v. Grossman the proper focus is on whether the conduct of the party seeking indemnification significantly contributed to the harm caused so as not to warrant shifting the entire burden of damages, and therefore is active negligence prohibiting indemnification. Harris v. Algonquin Ready Mix, Inc., 59 Ill.2d 445, 449, 322 N.E.2d 58, 61 (1974); Warzynski v. Village of Dolton, 23 Ill. App.3d 50, 63, 317 N.E.2d 694, 703 (1974); St. Joseph Hospital v. Corbetta Construction Co., 21 Ill.App.3d 925, 959-960, 316 N.E.2d 51, 75-76 (1974). Accordingly, in light of the evidence discussed above, the district court properly directed a verdict in favor of American Smelting because a contrary conclusion that Marion Power was not actively negligent could never stand.

The measure of recovery is different: indemnity is all or nothing, while absent inability to respond in damages by other culpable parties, no party is liable to make contribution beyond his pro rata share of the common liability as measured by the extent to which his acts or omissions, whatever their nature, proximately caused the injury (Ill. Rev. Stat. 1979, ch. 70, par. 303; Dowd, Questions Under Comparative Negligence Law, 65 Chi. B. Rec. 98, 102 (1983)). In addition, the absence of a qualitative difference in the nature of the conduct of the guilty parties will defeat a claim for indemnification ( Harris v. Algonquin Ready Mix, Inc. (1974), 59 Ill.2d 445, 449), while it is not fatal to a claim for contribution, except, perhaps, where made so by a statute creating a special standard of conduct and absolute liability for its breach. In short, contribution and indemnification are distinct theories of recovery, and an order dismissing a count seeking either one is not rendered unappealable by the survival of a count seeking the other.

(See 426 U.S. 696, 709, 723 n. 15, 724, 49 L.Ed.2d 151, 163, 170 n. 15, 171, 96 S.Ct. 2372, 2380, 2387 n. 15.) For the same reason we cannot now entertain the defendants' contention that the property held by the foreign corporations is, under their constitution and bylaws, controlled individually by their members, and is not in fact diocesan property. Moreover, even assuming that the judgment below somehow deprived the corporations of a property interest, we fail to see how Dionisije or his co-defendants were thereby prejudiced or aggrieved. Harris v. Algonquin Ready Mix, Inc. (1974), 59 Ill.2d 445, 451. On the remand the defendants also asserted a right to be reimbursed for "improvements" in the Pennsylvania property which are said to have enhanced its value.