" Doughty v. Sullivan, 661 A.2d 1112, 1123 (Me. 1995). Similarly, in Swift Co. v. Dollahan, 2 Ill. App. 2d 574, 588, 120 N.E.2d 249, 256 (1954), the Third District says: "The promise implied at common law to repay money loaned was limited to repaiyment of principal [citation]." If, according to the Third District, the common law implies a promise to repay a loan, the lender's right of recovery apparently does not depend on the lender's ability to prove the terms of repayment.

That issue was not raised by American Family in the trial court and for that reason we do not address it. See Swift Co. v. Dollahan, 2 Ill. App. 2d 574, 120 N.E.2d 249 (1954) (providing that even though a plaintiff failed to attach to its complaint a copy of the written contract upon which the action was based, the issue was not raised prior to appeal and was thus waived). Third, American Family asserts that the order affirming the arbitration award should be vacated because Cleeland was not entitled to receive monetary relief on an application to compel arbitration.

In other words, we are reviewing the record, not the theories of counsel or those relied on by the court below. Swift Co. v. Dollahan, 2 Ill. App. 2d 574, 599, 120 N.E.2d 249 (1954) (legal sufficiency of pleading is decided on basis of record, rather than on theories of counsel or those indulged by court below). Therefore, we will consider the theories presented by Bianchi in her appellate brief.

Initially, we reject plaintiff's argument that defendants waived the issue of proximate causation by failing to raise it in their motion for summary judgment. ( Swift Co. v. Dollahan (1954), 2 Ill. App.2d 574, 587, 120 N.E.2d 249 (defendants waived argument by failing to specify it in their motion to dismiss).) The record here shows that defendants clearly raised this issue in their reply memorandum and that plaintiff's attorney vigorously addressed the issue during the hearing on the motion.

By answering and proceeding to trial, defendant waived objections to deficiencies in plaintiff's pleading which were curable by amendment. See Burks Drywall, Inc. v. Washington Bank Trust Co. (1982), 110 Ill. App.3d 569, 572, 442 N.E.2d 648, 651; Swift Co. v. Dollahan (1954), 2 Ill. App.2d 574, 587, 120 N.E.2d 249, 255; see also Champaign National Bank v. Illinois Power Co. (1984), 125 Ill. App.3d 424, 428-29, 465 N.E.2d 1016, 1019. Moreover, as plaintiff asserts, defendant was bound by its admission of the allegations in paragraph 4 of plaintiff's complaint.

However, it is not necessary that there be an express agreement to repay a loan, as an agreement to repay may be implied from the circumstances. Reifeiss v. Barnes, 192 S.W.2d 427, 430 (Mo.App. 1946); Swift Co. v. Dollahan, 2 Ill. App.2d 574, 120 N.E.2d 249, 256 (1954); Nelson v. Pedersen, 361 Mass. 392, 280 N.E.2d 431, 432 (1972); 58 C.J.S. Money Lent § 2(b), p. 876 (1948). It is not disputed that the "advances" were a loan to defendant.

We shall therefore consider plaintiffs' waiver argument on appeal. • 3 Plaintiffs cite Pieszchalski v. Oslager (1984), 128 Ill. App.3d 437, and Swift Co. v. Dollahan (1954), 2 Ill. App.2d 574, in support of their contention that Falcone and Darien Gynecology waived any objection to the complaint by filing an answer. In Pieszchalski, however, the court specifically noted that defendants had not sought leave to withdraw their answer.

Nevertheless, the error has not been properly preserved. It has long been the law in this State that if a motion to dismiss because of legal insufficiency (formerly section 45 of the Civil Practice Act (Ill. Rev. Stat. 1979, ch. 110, par. 45) now codified as section 2-615 of the Code of Civil Procedure (Ill. Rev. Stat. 1981, ch. 110, par. 2-615)) be denied, the defendant waives the insufficiency by pleading over. ( Swift Co. v. Dollahan (1954), 2 Ill. App.2d 574, 587, 120 N.E.2d 249.) The same is not true of a motion for involuntary dismissal based upon certain defects (formerly section 48 of the Civil Practice Act (Ill. Rev. Stat. 1979, ch. 110, par. 48) now codified as section 2-619 of the Code of Civil Procedure (Ill. Rev. Stat. 1981, ch. 110, par. 2-619)).

( Cain v. American National Bank Trust Co. (1975), 26 Ill. App.3d 574, 586.) In Swift Co. v. Dollahan (1954), 2 Ill. App.2d 574, 583, the court stated: "A motion to dismiss, as was true of the demurrer under our former practice, raises only a question of law as to the legal sufficiency of the pleading to which it is directed. * * * Since the facts stated in the pleading are admitted by the motion, the maker of the motion cannot at the same time contravert the admitted facts, either by assertions in his motion or by affidavit or other means.

A bad alternative does not affect a good one. Ill. Rev. Stat. 1977, ch. 110, par. 43(2). The defendant in Swift Co. v. Dollahan (1954), 2 Ill. App.2d 574, 120 N.E.2d 249, presented the identical argument. There the plaintiff sought, in two separate counts, to recover on a note and to recover on a loan which was in the same amount.