author: Mr. Chief Justice Sheldon

text:
    The Chicago, Burlington and Quincy Railroad Company v. Lycurgus K. Avery.

      Filed at Springfield March 26, 1884.

    1. Instruction—construed, as whether assuming a fact or singling out certain facts. In an action on the ease against a railway company, to recover for a personal injury by its employee, based on alleged negligence in using a car the couplings of which were out of repair, the court instructed the jury that if they believed, from the evidence, that the car so used was the property of a company other than the defendant, and that such car was at the time of the alleged injury, and for several months next prior thereto had been, and was, regularly and daily running into and out of defendant’s yard by the permission of the. defendant, and that at the time of the alleged injury, and for several months next prior thereto, the said car was regularly and daily controlled and handled in the defendant’s yard by the defendant, with its own engine and employees, then it was the duty of the defendant to use ordinary diligence to keep said car in a reasonably safe condition for handling, or else require and see to it (if by the use of ordinary diligence the defendant could do so) that such car was kept by its owners in such reasonably safe condition: Held, that the objection to the instruction that it assumed as a fact that the car being out of repair, and being permitted to come into the yard in an impaired condition, was the cause of the injury to plaintiff, was not well founded. Nor was it subject to the objection of singling out and giving undue prominence to a part of the facts in the case, and in omitting reference to any care as required of the plaintiff.
    2. Where the purpose of an instruction is simply to define the duty of the defendant arising out of facts supposed, and it does not purport to contain a complete hypothesis on which a plaintiff suing for an injury caused by alleged negligence can recover, it is not necessary in such instruction to refer to the duty or supposed negligence of the plaintiff.
    3. Same—confining the charge to the negligence alleged. In a suit for injury arising from negligence, when there is no proof of any other negligence than that alleged in the declaration, an instruction stating what is negligence is not erroneous, in not confining the right of recovery to the negligence alleged in the declaration.
    4. Same—modification expressing same idea more fully. An instruction to the effect that a master is not responsible for an injury to an employee for defects in the cars used, caused by wear and tear, until notified of such defects, or has had time and opportunity to learn of such defects, and to have the same repaired, was modified by adding the words, “or such defects shall have existed for such a length of time as to give the proper authorities opportunity to learn of such defect in the due discharge of their duties:” Held, that there was no error in the modification, it being but the expression of the idea in the instruction, as drawn, in a more wordy form.
    5. Master and servant—what hazard the servant takes. The negligence of fellow-servants is one of the ordinary perils of the service which one takes the hazard of in entering into any employment. But the master’s own duty to the servant is always to be performed. The neglect of that duty is not a peril which the servant assumes.
    6. Care in supplying safe instrumentalities in the doing of the work undertaken by the servant is a duty the master owes to the servant, and when the performance of that duty is devolved upon a fellow-servant, the master’s responsibility in respect of that duty still remains. In such case the negligence of the fellow-servant is the master’s neglect of duty.
    7. Same—railway corporation using cars of other companies must see that they are safe, in respect to its employees. A railway corporation, with respect to the cars of other companies which it allows to come into its yard, and which, while there, are to be moved and handled by its employees, is bound to use due diligence and care in seeing that the cars are safe to be so handled by its servants, and such railway corporation can not divest itself of this duty to its servants for their safety and protection, by a contract with such other companies whose cars are used that the latter shall keep them in repair. The general rule is, that the employer is bound to use due diligence in providing and maintaining safe machinery and instrumentalities to be handled and used by his employees, without regard to the ownership of the same.
    8. Negligence—instruction as to contributory, held bad. In an action to recover damages growing out of negligence of a railway company in the use of a freight car defective in the coupling apparatus, the court was asked to instruct the jury that although they believed, from the evidence, that the plaintiff (an employee to couple cars) had no actual knowledge of the defect in the coupling apparatus of the car, still he was not thereby excused or exempted from ordinary care and diligence; and if they believed, from the evidence, that the plaintiff so far contributed by his own negligence or want of care and caution, as, but for such negligence, the injury would not have happened, they should find for the defendant: Held, that the instruction was faulty in seeming to import that any negligence, even if slight, on the part of the plaintiff, contributing to the injury, might defeat a recovery, and ought to have been qualified by the word “ordinary,” so as to read that the plaintiff “so far contributed to the injury by his own negligence or want of ordinary care and caution.”
    Appeal from the Appellate Court for the Third District;— heard in that court on appeal from the Circuit Court of Adams county; the Hon. John H. Williams, Judge, presiding.

      Mr. J. F. Carrott, for the appellant:
    That a servant can not recover of his master where his own want of care contributed to the injury, or where by the exercise of ordinary care and prudence he might have avoided it, may now be regarded as a rule of law completely established. Illinois Central R. R. Co. v. Patterson, 69 Ill. 650; Toledo, Wabash and Western Ry. Co. v. Asbury, 84 id. 430; Toledo, Wabash and Western Ry. Co. v. Black, 88 id. 112; Austin v. Chicago, Rock Island and Pacific R. R. Co. 91 id. 35; Pennsylvania Co. v. Hankey, 93 id. 570; Ballou v. Chicago and Northwestern R. R. Co. 54 Wis. 257; Michigan Central R. R. Co. v. Smithson, 45 Mich. 212; Wabash v. St. P. and D. R. R. Co. 27 Minn. 369.
    An employee, by entering the service, takes the risk of its ordinary hazards and dangers, whether from the carelessness of co-employees, or the ordinary dangers in the use of machinery and appliances used in the business. Lovell v. Nowell, 1 C. P. Div. L. R. 161; Woodley v. M. D. Ry. Co. 2 Ex. Div. L. R. 384; Chicago and Northwestern R. R. Co. v. Ward, 61 Ill. 130; Toledo, Wabash and Western Ry. Co. v. Black, 88 id. 112; Richardson v. Cooper, id. 270; Clark v. Chicago, Burlington and Quincy R. R. Co. 92 id. 46; Smith v. Potter, 46 Mich. 258; Flannagan v. Chicago and Northwestern R. R. Co. 50 Wis. 462; Kelley v. Chicago, Milwaukee and St. Paul R. R. Co. 53 id. 74.
    Injury from coupling and uncoupling cars is a risk incident to the employment of a switchman and night foreman in a railroad yard. Lyon v. D. L. and L. M. R. R. Co. 31 Mich. 429; Michigan Central R. R. Co. v. Austin, 40 id. 249; Day v. T. C. S. and D. Ry. Co. 42 id. 523; Chicago and Northwestern R. R. Co. v. Ward, 61 Ill. 130; Toledo, Wabash and Western Ry. Co. v. Black, 88 id. 112.
    One servant can not maintain an action against the common master for an injury caused by the carelessness or negligence of another engaged in the same service. Pierce on Railroads, (2d ed.) 359; Illinois Central R. R. Co. v. Cox, 21 Ill. 23; Chicago and Alton R. R. Co. v. Murphy, 53 id. 336; St. Louis and Southeastern Ry. Co. v. Britz, 72 id. 256 ; Toledo, Wabash and Western Ry. Co. v. Durkin, 76 id. 395; Valtez v. Ohio and Mississippi Ry. Co. 85 id. 500; Richardson v. Cooper, 88 id. 270; Clark v. Chicago, Burlington and Quincy R. R. Co. 92 id. 43; Indianapolis and St. Louis R. R. Co. v. Morganstern, 106 id. 216.
    Where a servant who is injured, either through the carelessness or incompetency of a fellow-servant, or through any defective machinery furnished, had the same knowledge or means of knowledge as the master, he can not maintain an action for such injury, hut will he held to have assumed such risks. Shipp v. E. Co. R. R. Co. 9 Exch. 211; Williams v. Clough, 3 H. & N. 258; Dynen v. Leach, 40 Eng. L. & Eq. 491; Hughes v. W. St. P. R. R. Co. 27 Minn. 147; Walsh v. St. P. and D. R. R. Co. id. 369; Clark v. St. P. and S. C. R. R. Co. 28 id. 128; Hayden v. Sm. Manf. Co. 29 Conn. 559; Baylor v. D. L. and W. R. R. Co. 40 N. J. L. 23; Perigo v. Chicago, Rock Island and Pacific R. R. Co. 52 Iowa, 276; Chicago and Northwestern R. R. Co. v. Donahue, 75 Ill. 106; Pierce on Railroads, (2d ed.) p. 379, and cases cited.
    Messrs. Wheat & Marcy, for the appellee:
    Avery had the right to rely upon it that the duties of inspection and repair as to this car had been performed, and to handle it as sound when presented to him as such. Chicago and Northwestern R. R. Co. v. Swett, 45 Ill. 203; Illinois Central R. R. Co. v. Welch, 52 id. 183; Chicago and Alton R. R. Co. v. Pondrom, 51 id. 338; Chicago and Alton R. R. Co. v. Wilson, 63 id. 172; St. Louis, Vandalia and Terre Haute R. R. Co. v. Dunn, 78 id. 202; Goodfellow v. Railroad Co. 106 Mass. 462; Ford v. F. R. R. Co. 110 id. 260; Porter v. H. R. R. Co. 60 Mo. 162; Sleeper v. Sandown, 52 N. H. 252.

      He was not bound to look for dents in the dead-wood, or to make inspection. Even if, under the circumstances, he had forgotten or overlooked, for the moment, a known or visible peril, it would not have been negligence. Snow v. Housatonic R. R. Co. 8 Allen, 441; Chicago and Northiuesiern R. R. Co. v. Jackson, 55 Ill. 492; Dorsey v. Phillips Co. 42 Wis. 583; Chicago and Iowa R. R. Co. v. Russell, 91 Ill. 302; Wedgewood v. Chicago R. R. Co. 41 Wis. 478; Chicago, Burlington and Quincy R. R. Co. v. Gregory, 58 Ill. 286; Chicago and Northwestern R. R. Co. v. Taylor, 69 id. 462; Illinois Central R. R. Co. v. Welch, 52 id. 186; Cooms v. N. B. Co. 102 Mass. 572; Spanny v. Mill Co. 62 Maine, 420; Toledo, Wabash and Western Ry. Co. v. Fredericks, 71 id. 296; Fairbank v. Haentzche, 73 id. 236.
    Peril occasioned by negligence of defendant, in respect of supplying safe instrumentalities, is not one of the “ordinary risks” assumed by the employee. Hough v. T. P. R. R. Co. 100 U. S. 213 ; Cayzer v. Taylor, 10 Gray, 282; Gregory’s case, 58 Ill. 284; Swett’s case, 45 id. 201; Ford’s case, 110 Mass. 260; Flanigan’s case, 77 Ill. 371; Abend’s case, 107 id. 50.
    The employer is bound to use due diligence in providing and maintaining safe machinery to be handled by its employees. Swett’s case, 45 Ill. 201; Shannon’s case, 43 id. 345; Jackson’s case, 55 id. 496; Thompson’s case, 56 id. 141; Conroy’s case, 78 id. 560; Estes’ case, 96 id. 472.
    The diligence required in this regard, both as to passengers and employees, is the highest consistent with the operation of the road. Chicago and Alton R. R. Co. v. Shannon, 43 Ill. 345; Toledo, Peoria and Warsaw R. R. Co. v. Conroy, 61 id. 163; Chicago and Alton R. R. Co. v. Platt, 89 id. 143.
    The defendant was bound to adopt and enforce proper rules and regulations for the safety of its employees in respect to all cars allowed to run upon its line or in its yards. Chicago, Burlington and Quincy R. R. Co. v. George, 19 Ill. 517; Chi

      cago and Northwestern R. R. Co. v. Taylor, 69 id. 465; Chicago, Burlington and Quincy R. R. Co. v. McLallen, 84 id. 114. And the burden of proof as to this is on the defendantPittsburg and Ft. Wayne R. R. Co. v. Powers, 74 Ill. 344.
   Mr. Chief Justice Sheldon

delivered the opinion of the Court:

This was an action on the case, brought by Lycurgus K. Avery, against the Chicago, Burlington and Quincy Railroad Company, to recover damages .for an injury sustained by plaintiff when attempting to uncouple a car belonging to the Keokuk, St. Louis and Northwestern Bailroad Company, then in the railroad yard of defendant, at Quincy. The declaration charges that plaintiff was an employee of defendant in its railroad yard at Quincy, and that, as such, it was his duty to couple and uncouple ears; that defendant permitted a certain car,.known as “way car No. 3,” to come into its railroad yard, and of its negligence permitted the car to be used and operated on its railroad with the appliances for coupling and uncoupling so broken as to be dangerous to one having occasion to couple or uncouple the car; that on the evening of December 16, 1879, while plaintiff was attempting to uncouple the car, his right thumb was caught and crushed by and between the dead-wood and coupling-pin of the car; that the injury was caused by the follower of the draw-bar, by which cars are coupled, being so broken that the draw-bar pushed back und.er the car, so as to bring the coupling-pin in contact with the dead-wood of the car. Plaintiff recovered, and on appeal to the Appellate Court for the Third District the judgment was affirmed, and defendant appeals to this court.

It appears that this way ear No. 3 belonged to the Keokuk, St. Louis and Northwestern Bailroad Company, and was used by its employees engaged in running the train, but at the time of the accident it was being handled by defendant’s employees. All the different railroads coming into Quincy, some six in number besides defendant’s, run their engines and trains into this railroad yard, and while there are moved and handled by defendant’s employees. Each of the different companies attends to and keeps in-repair its own rolling stock, engines, cars, etc., and the cars, engines, etc., of other companies are not under the control of defendant, and it does not make repairs for other companies unless requested to do so, each company doing its own repairing. Plaintiff had been engaged in railroad business eighteen years or more, as brakeman, switchman and conductor, and had worked for defendant, as switchman and night foreman in this railroad yard at Quincy, for five years in succession next prior to December 16, 1879, the time of the accident. His duties were to couple and uncouple cars, switch trains that came into, and make up trains that went out of, the yard. He had five switchmen, and the engineer and fireman, under his control. This train of the Keokuk, St. Louis and Northwestern Railroad Company had been running in and out of the yard a year and a half or two years, and this way car a month and a half or two months. The train ran from Quincy to Hannibal and return. The follower of this way car was broken in the railroad yard at Hannibal, Mo., on the 11th or 12th of December, 1879, and came into and ran out of the yard at Quincy every day, in this broken condition, until plaintiff was hurt.

As respects the facts of the ease, the finding of the Appellate Court upon them is conclusive on us, and we have only to do with questions of law. All such that are presented here respect the instructions to the jury.

The circuit court gave to the jury the following instructions on the part of plaintiff:

“1. If the jury believe, from the evidence, that way car No. 3, mentioned in the testimony in this case, was the property of a company other than the defendant, and that such way car, at the time of the alleged injury to the plaintiff, and for several months next prior thereto, had been, and was, regularly and daily running into and out of the defendant’s yard at Quincy, Illinois, by the permission of the defendant, and that at the time of said alleged injury, and for several months next prior thereto, the said way car was regularly and daily controlled and handled in the defendant’s said yard by the defendant, with its own engine and employees, then it was the duty of the defendant to either use ordinary diligence to keep said car in a reasonably safe condition for handling, or else to require and see to it (if by the use of ordinary diligence the defendant could do so) that such car was kept by its owners in such reasonably safe condition.
“2. If the jury believe, from the evidence, that the alleged injury to the plaintiff was occasioned by negligence of any of the officers or employees of the defendant not in the same line of duty with the plaintiff, then such negligence would be, in contemplation of law, negligence of the defendant. ”

The objection to the first instruction, that it assumes as a fact that the car being out of repair, and being permitted to come into the yard in this impaired condition, was the cause of the injury to plaintiff, is evidently not well founded. Nor do we conceive the instruction liable to the further objection urged, that it singles out and gives undue prominence to a part of the facts in the case, and omits reference to any care as required on plaintiff’s part. The purpose of the instruction is simply to define the duty of the defendant arising out of the facts supposed. It does not purport to contain a complete hypothesis on which plaintiff could recover, and it was not necessary to refer to the duty of the plaintiff.

It is objected to the second instruction that it is too broad, in that it does not confine the right of recovery to the negligence alleged in the declaration. As applied to the facts, there not being a particle of evidence of any other negligence than that alleged in the declaration, the instruction can not be said to be erroneous in the respect named. Abstractly considered, the instruction may not be correct in admitting the idea of defendant’s liability for the negligence of a fellow-servant of plaintiff not in the same line of duty with him. The negligence of fellow-servants is one of the ordinary perils of the service which one takes the hazard of in entering into any employment. But the master’s own duty to the servant is always to be performed. The neglect of that duty is not a peril which the servant assumes, and where the performance of that duty is devolved upon a fellow-servant, the master’s liability in respect thereof still remains. Care in the supplying of safe instrumentalities in the doing of the work undertaken is the duty of the master to the servant,—hence the rule of non-liability on the part of an employer for the negligence of a fellow-servant has no application in this case, where the negligence in question is the master’s neglect of duty in the providing of safe appliances.

The objections made to the third, fourth and fifth instructions are of a similar character with the ones above named, and we consider them as sufficiently answered in what has been said.

It is insisted that the seventeenth instruction asked by defendant, as modified by the court, and so given, was inaccurate. The instruction as asked was:

“That a railroad company is not responsible for injuries to its employees, caused by the usual and ordinary wear and tear of cars, until it has been notified of the defects caused by such wear and tear, or has had time and opportunity to learn of such defects, and to have the same repaired,” etc.

The court modified the instruction by adding thereto the following: “Or such defects shall have existed for such a length of time as to give the proper authorities opportunity to learn of such defect in the due discharge of their duties.” The modification only enlarges on the effect of the length of the time of the continuance of the defect, in implying notice. It seems to be but the expression of the idea in the instruction as drawn, in a more wordy form.

The defendant asked the following instruction:

“26. The court further instructs the jury, that although they may believe, from the evidence, that the plaintiff had no actual knowledge of the defect in the coupling apparatus of the car in question, still he is not thereby excused or exempted from ordinary care and diligence, and if the jury believe, from the evidence in this ease, that the plaintiff himself so far contributed to his injury by his own negligence, or want of care and caution, as but for such negligence the injury would not have happened, then the court instructs the jury they should find for the defendant. ”

But the court refused to give said instruction as asked, and modified it by adding thereto the following: “Unless they further believe that the negligence of the plaintiff was slight in itself, and slight as compared with the negligence, if any, of the defendant, and that the injury complained of was caused by the negligence of the defendant, and that such negligence of the defendant was gross,”—and then, against the objection of the defendant, gave said instruction to the jury, as modified, and the defendant excepted.

It is said this instruction should have been given as originally drawn. We think, as drawn, it was faulty, in seeming to import that any negligence, even if slight, on the part of the plaintiff, contributory to the injury, might debar a recovery, whereas it should have been qualified by the word “ordinary, ” so as to read that the plaintiff “so far contributed to his injury by his own negligence or want of ordinary care and caution.” It is said that the words “want of care, ” when used in instructions to a jury, mean want of reasonable care, and proper care, and that defendant was entitled to a distinct instruction on this point of want of ordinary care in the plaintiff. The jury might not have understood “want of care” as meaning “want of ordinary care,” and in other instructions given the jury were abundantly informed of the necessity of ordinary care on the part of the plaintiff. No objection otherwise is taken to the modification.

It is insisted that the twenty-ninth instruction asked by defendant, and refused, stated the law correctly, and should have been given. That instruction was as follows:

“29. If you believe, from the evidence, that on the 16th day of December, 1879, other railroad companies were, and for some time previous thereto had been, running trains into the railroad yard of the defendant at Quincy, and that by the arrangement between the defendant company and said other companies, including the Keokuk and St. Louis Bail-road Company, each company was to keep its own rolling stock, engines, cars, etc., in repair, and that neither company was under any obligation to make repairs upon the rolling stock, engines, cars, etc., of any other one of said companies, and that this arrangement was known to the plaintiff while he was in the employ of the defendant company, and prior to the time of the injury complained of, then the court instructs you that the danger of being injured by the car of such other companies coming into and being in the railroad yard of the defendant company, out of repair and in a damaged condition, was one of the dangers and perils of the service which the plaintiff assumed; and if you further believe, from the evidence, that the injury sued for in this case was received by the plaintiff while he was attempting to uncouple a car belonging to the Keokuk and St. Louis Railroad Company, which said company had brought into the railroad yard of the defendant company, out of repair and in a damaged condition, then you will find a verdict for the defendant. ”

The general rule is unquestionable, that the employer is bound to use diligence in providing and maintaining safe machinery and instrumentalities to be handled by the employee. We think this obligation rested upon defendant in respect of the cars of other companies which were permitted to come into its yard, as this one was, and which while there were moved and handled by defendant’s employees, and that defendant could not divest itself of this responsibility to its own employees by such a contract with another company, as supposed in the instruction.

A general objection is made that all the instructions asked by defendant, but refused, should have been given, but nothing specific is pointed out in respect of any other one, and in looking them over we do not discover any error in the refusal.

Finding no substantial error in the record, the judgment of the Appellate Court must be affirmed.

Judgment affirmed.


source: Caselaw Access Project

author: Mr. Justice Scott

license: Public Domain

text:
    Samuel Groenendyke et al. v. Helen M. Coffeen et al.

      Filed at Springfield March 26, 1884.

    1. Chancery—master’s report—of Us sufficiency as to the subject matter of the finding. On bill by the heirs of a deceased partner against the survivor, for an account, and partition of lands held in trust by the survivor, a finding by the master in chancery, to whom the cause was referred to report his conclusions both of law and fact, that the real estate of the firm was divided on a certain day, is equivalent to a finding that all the lands of the firm were divided, and that none others were held in trust for the late firm.
    2. Same—as to the basis of the master's report—whether it sufficiently appears. Where a master’s report of a partnership account did not state how he made up his statement of the account so as to arrive at the balance due, but showed that two expert accountants had made a very careful examination of the books, and that the conclusion they reached differed widely from his own, and the court sustained an exception to his report, it was held, no error in sustaining the exception, as the record failed to show that the calculation of the accountants was on an erroneous basis, or whether the court heard other evidence, or did not examine the books.
    3. Same—;finding the facts in the decree—presumption—and what is matter of record. In a chancery case it will be presumed that the finding of the facts by the court, recited in the decree, were warranted, unless the testimony found in the record shows to the contrary. A party dissatisfied with the finding of facts upon which the decree is based, must bring the testimony before this court that will show that such facts were erroneously found, otherwise it will be presumed the findings were warranted.
    4. All depositions on file in a chancery case, and the master’s report of evidence, become a part of the record without any certificate of the court. But -when the court, in its decree, finds the facts, from the evidence and the depositions and master’s report, and the evidence found in the record does not sustain the finding, it will be presumed other evidence was heard, where there is no certificate of either the master or the court that the record contains all the evidence.
    5. Same—hooks of account—how to he preserved in the record. It being impracticable to make the books of accounts of a firm a part of the record, so that this court may consider them, only abstracts of their contents should properly be incorporated in a certificate of evidence. When the account embraces many items running for many years, it seems the court may hear the evidence of expert accountants, and receive abstracts made by them from a careful examination of the books, in stating an account.
    6. Settlement—of partnership accounts—what will amount to a settlement. It is not absolutely necessary that a balance should be struck of partnership accounts before a final settlement can be made by the parties in interest. A satisfactory conclusion on which to base a final settlement may be reached otherwise, and if such a settlement is had, there being no fraud, concealment or overreaching, in which the parties acquiesce for many years, it may be regarded as final, and a bar to a bill for an accounting.
    7. A partnership was dissolved in 1859, and one of the partners died in April, 1860, and afterward, in December, 1869, the heirs of the deceased partner, then all of age, had a settlement with the survivor, of all the partnership assets and effects, fairly made, without any fraudulent concealment, and a partition was made of the lands belonging to the firm, the heirs taking possession of their share, which settlement was acquiesced in by the heirs without any expression of dissatisfaction, until in 1875, when some of them thought they had been overreached, whereupon it was agreed the books should be submitted to two accountants, mutually selected for their skill in such matters, who, after much labor and time spent, reached a conclusion showing the settlement in 1869 was not far from right, but not being satisfactory to the heirs, they filed a bill for an account in February, 1876: Held, that these facts justified a decree finding a final settlement of the partnership matters had been made in 1869, and dismissing the bill.
    8. Stale claim—in equity. A mercantile partnership was formed between A and B in 1841, which was continued actively until 1859, when their stock of merchandise was sold, and by mutual consent their business as general partners ceased. On April 19, 1860, A died, leaving heirs, the youngest of whom became of age in 1864. On February 24,1876, the heirs of A filed a bill against B, the surviving partner, for a settlement and statement of the partnership accounts, to which an answer was filed setting up the five years’ Statute of Limitations, and also laches: Held, that aside from the Statute of Limitations, a court of equity would treat the relief sought as barred, from the staleness of the demand.
    Writ of Error to the Circuit Court of Champaign county; the Hon. C. B. Smith, Judge, presiding.
    Mr. J. O. Cunningham, for the plaintiffs in error:
    There was no final settlement of the partnership accounts or profits. No balance was ever struck. The master who stated the account found there was due to the complainants $9832.72, without allowing any interest for the eighteen years Coffeen used the firm money. By all rules governing accounts between partners, interest should have been counted upon the balance from a reasonable period from April 20, 1860. Derby v. Gage et al. 38 Ill. 27; Scroggs v. Cunningham, 81 id. 110.
    The only statute of limitations set up in the answer is the five years’ statute, which applies only to personal actions, and not to actions for the recovery of real estate. The limitation as to real actions not being pleaded, can not be availed of. Borders v. Murphy, 78 Ill. 81.
    This being an action to declare a resulting trust in favor of complainants, no time short of twenty years would prove a bar. Ryder et al. v. Emrich et al. 104 Ill. 470.
    Mr. Francis M. Wright, for the defendants in error:
    Where no bill of exceptions or certificate of evidence is found in the record, the propriety of the decree must be determined from the allegations of the bill and facts found by the court, as stated in the decree, as it must be presumed the evidence was sufficient to sustain such findings. Binkert v. Wabash Ry. Co. 98 Ill. 205.
    It was the duty of the defendants (complainants here) to preserve the whole evidence in the record if they desired to question its sufficiency to sustain the decree of the court. Morgan et al. v. Corlies, 81 Ill. 72; Thomas v. Adams, 59 id. 223.
    A party not satisfied with a decree finding the facts, can insist upon a certificate of evidence or bill of exceptions. Walker v. Abt, 83 Ill. 226; Walker v. Carey, 53 id. 470.
    Where the court in its decree finds certain facts, and the certificate of evidence does not purport to contain all the evidence, it will be presumed that the court heard proof sufficient to justify the finding, though it does not appear in the record. Corbus v. Teed, 69 Ill. 205.
    A bill for an account, by one partner against another, is barred after the lapse of five years after the dissolution of the partnership. Pierce v. McClellan, 93 Ill.245.
    Besides, the claim is stale, and will not be enforced in equity. Oakley v. Hurlbut, 100 Ill. 204; Bissell v. Lloyd, id. 214.
   Mr. Justice Scott

delivered the opinion of the Court:

The bill in this case was brought by Samuel Groenendyke, Ellen Groenendyke and Mary McKee, heirs at law of Samuel Groenendyke, Sr., deceased, against Michael D. Coffeen, since deceased, asking to have an account taken in favor of complainants, of the partnership matters of the firm which was composed of Samuel Groenendyke, Sr., since deceased, and defendant, and also asking to have a trust declared in their favor, as heirs of the deceased partner, in one-half of certain lands alleged to have been purchased with funds belonging to the firm, but the title to which was taken in the name of defendant, and that partition might be made of such lands according to the interests of the respective parties. It is stated in the bill the partnership was constituted by a verbal agreement; that it was to last for an indefinite time, and was for the purpose of carrying on a general mercantile business, buying stock, and kindred business. Under that agreement business was commenced in 1841, and it is alleged it continued until the death of Groenendyke, which occurred on the 19th of April, 1860. It is alleged in the bill, the firm, during its continuance, accumulated a large amount of personal assets and real estate; that defendant was the active member of the firm, and as such had charge of the books of the concern during the continuance of the co-partnership, and since the dissolution has had the control of the books as surviving partner, and that the books show no balancing of accounts or settlement between the partners, or between the survivor and the representatives of the deceased partner. It is also charged there never has been any settlement made of such partnership matters from the date of the formation of the firm down to the time of filing the bill, and that defendant has always refused to account with complainants, although often called upon and entreated to account with them. Another important allegation in the bill, and one, as the sequel will show, about which much controversy exists, is, that on or about the 1st of November, 1869, defendant falsely represented unto the administrator of the deceased partner, and to complainants, that the amount due from him as surviving partner was only the sum of $10,000, and also that he had purchased certain lands described, in his own name and in the name of the firm, and none others, and that relying upon such representations, and believing them to be true, complainants did consent to a partition of such lands, and received a conveyance from defendant for a part of such lands, and that since receiving such conveyance complainants have taken actual possession of the lands conveyed to them, and made valuable improvements thereon. Other specific allegations are contained in the bill, but in the view taken of the case it will not be necessary to state what they are in order to an understanding of the discussion that is to follow. The general prayer for relief is, that an account of the personal assets and profits of the firm may be taken, and also that a trust in the lands described may be declared in favor of complainants, and also that an account be taken of the profits arising from such lands.

The answer of defendant admits a partnership was formed between himself and Samuel Groenendyke, for carrying on a general mercantile business; that as such partners they commenced business in 1841, and continued until 1859, when they sold their stock of goods, and that then their business as general merchants ceased, and that a dissolution of such partnership took place by mutual consent in 1859, before the death of Groenendyke, which occurred at the time stated in the bill. It is also averred in the answer of defendant that before the death of Groenendyke the partnership matters were settled, as far as possible, and were kept settled as between the partners until the death of Groenendyke, at which time the assets of the firm unsettled consisted mostly of desperate claims, and lands. Defendant denies by his answer that he has refused to account with complainants, but says he was always ready, and has importuned them to settle with him the partnership matters, and make a final winding up of the same, and that on December 1, 1869, complainants did settle with him as surviving partner, and received a full and fair division of the personal assets, after all liabilities are taken into consideration, which sum amounted to $10,000; that at that time amicable partition was made between complainants and defendant by mutual conveyances of all lands of the co-partnership, after a full and fair investigation and disclosure, which was a fair and just division,—not induced by any false representations by defendant, who concealed no knowledge of facts pertaining to assets of the co-partnership from complainants,—and also avers the matters complained of by complainants in their bill did not occur within five years next before the filing of the bill, and for that reason they should be barred. Other matters are contained in the answer, but it will not, perhaps, be necessary to make any further statement. After replication to the answer was filed, the cause was referred to the master in chancery, “who was ordered to state conclusions of law and fact herein, and to state account. ” At a subsequent term of court, after the cause was referred to him, the master in chancery made and filed his report, in which he stated his “conclusions of law and fact, ” also stated the amount he found to be due from defendant to complainants, and although he was not directed by the court to take evidence, he appended thereto a report of testimony, paged “from A to No. 370, with exhibits attached.” The report of the master as to his conclusions of law and fact is quite elaborate, and is no doubt the result of .much patient labor and careful consideration. Numerous exceptions to the findings of the master were filed, both by complainants and defendant, all of which were overruled by the master, except, upon exception taken by defendant, he made a correction as to the amount due from defendant to complainants. On the final hearing the court overruled all of the exceptions taken to the master’s report by complainants, and sustained all the exceptions taken thereto by defendant, but in all other respects the master’s report was approved; and the court thereupon found, from the evidence, that on December 1, 1869, complainants and defendant had a full, fair and just settlement and division of all the real and personal estate pertaining to the firm, which was accepted and acted upon by all the parties from that time to the filing of the bill; that the matters set up in the bill are stale, and of such a character that the lapse of time does, in equity, bar complainants from asserting the same in a court of equity; that defendant had been guilty of no fraud or concealment; that the allegations of the bill are not sustained by the proof; that the equities of the ease are with defendant, and thereupon the court entered a decree dismissing the bill for want of equity. The decree seems to have been rendered on the 13th day of April, 1878. Since then defendant, Michael D. Coffeen, has died, and the writ of error on which the case was brought to this court was sued out on the 26th day of February, 1883.

Of the findings by the master those contained in the ninth and twenty-fifth paragraphs are the most important, and are those about which the contest hinges. In the ninth division it is recited the master found the real estate of the firm was divided December 1, 1869, and in the twenty-fifth division that he found the balance due from defendant to complainants, December 1, 1869, to be $11,040.22. But by a subsequent report the latter finding was corrected, so that the master stated the amount due from defendant to complainants at the date mentioned was $9832.72. The reason for not allowing any interest on the amount found to be due from defendant to complainants, either before or after December 1, 1869, was, the master found that both parties had shown a great degree of carelessness about arriving at a final settlement so long after the dissolution of the firm, when no impediment lay in the way; and because he found no balance had been struck before 1875, and there never having been a time when the parties could have known what amount was due, the master was of opinion the Statute of Limitations had not barred the suit. The master, however, found that all parties evinced gross negligence and unpardonable laches in making no attempt at final settlement until 1869, when a fruitless attempt was made.

One exception,—the sixth of the series,—taken by complainants to the master’s report is, that he did not find, from the evidence, certain lands described in the bill were held in trust by defendant for the firm, and were not taken into consideration or included in the partition of the lands of the firm between its surviving partner and complainants. As has been seen, the master did find “that the real estate of the firm was divided December 1, 1869, ” and that is equivalent to a finding that all the lands of the firm were divided, and that none others were held in trust for the firm or complainants. Unless the sixth of the series of exceptions taken by complainants to the master’s report is broad enough to cover it, there was really no exception to that finding of the master as to the division of the real estate that belonged to the firm ; but treating it as an exception to this paragraph of the report, it was overruled by the master, and his ruling in that respect was sustained by the court on the final hearing of the cause. The sufficiency of the testimony to sustain that ruling of the master, and of the court, in that regard, will be considered further on.

Defendant excepted to the finding of the amount due from him to complainants, as stated in the twenty-fifth division of the original report, and also to the supplemental report on-the same subject, which exception was sustained by the court. Complaint is made the court erred in its ruling on that portion of the master’s report, and the point made has been the subject of elaborate argument by counsel. This branch of the case will also be considered further on, with the principal question in the case.-

As has been seen, after ruling upon the exceptions to the master’s report, taken hy the respective parties, the court proceeded further, and found that on the first day of December, 1869, complainants and defendant made a full, fair and just settlement and division of all the affairs, estate, real and personal and mixed, choses in action and assets whatsoever, of and pertaining to the late partnership heretofore existing between Samuel Groenendyke, Sr., since deceased, and defendant, and that such settlement and division were accepted and acquiesced in by the parties herein, and acted upon by them as a final settlement, and rights accrued thereunder from that time to the filing of the bill herein.

The errors assigned call in question the correctness of the rulings of the court on the exceptions taken by the respective parties to the master’s report, and also the findings of fact by the court in the decree, and as they all raise the same principal questions, it will be most convenient to consider them together. The questions arising on the record, as counsel state them, are, first, was anything due from defendant, as surviving partner, to complainants, out of the personal assets of the late firm of M. D. Coffeen & Co., at the time of filing the bill; second, did defendant purchase any of the lands described in the bill with money of the firm, the title to which he took in his own name, and appropriated to his own use; and third, were the matters claimed by complainants in their bill, or any of them, in fact barred by any statute, and did the court properly declare them to be stale. It will be perceived these are questions of fact, and no doubt they were determined by the trial court on evidence heard by it. This court can only reconsider them as questions of fact, depending for solution upon evidence. The rule is a familiar one that it will be presumed the findings of the chancellor touching facts recited in the decree as having been found by him, were warranted, unless the testimony found in the record shows to the contrary. A party dissatisfied with the findings of fact upon which the decree is based must bring the testimony before this court that will show that such facts were erroneously found, otherwise this court will presume the evidence warranted the findings of fact as recited in the decree.

The decision of this case might be placed on the ground it does not appear from any certificate of evidence, or otherwise, that all the evidence heard by the circuit court on final hearing of the cause is contained in the record. Unless that fact was made to appear this court could not say the facts recited in the decree were not well found. Undoubtedly the rule is that all depositions on file in the cause, and the master’s report of evidence, become a part of the record in a chancery cause, without any certificate of the court declaring them to be a part of the record. Under that rule the evidence reported by the master in this ease may be considered as a part of the record, notwithstanding-there is no certificate of the court to that effect. The practice in such matters is well understood, but the difficulty is it does not appear, from anything in this record, that the master’s report contains all the evidence heard, either by the master or the court. Neither the court nor the master certifies that it does. It is quite apparent from an inspection of the record, that testimony other than that contained in the report must have been considered, both by the master and the court. On the first branch of the ease, was anything due from the surviving partner to complainants out of the personal assets ? The master found a certain sum was due. Although the master does not state how he arrived at that conclusion, it must have been reached by a personal examination of the books of the firm, or from the testimony of expert accountants who had made examinations, and made abstracts of their contents. But this court can not ascertain, from an examination of the master’s report, how that result was, in fact, reached. Of course the books of the firm are not made a part of the record, and it would be impracticable to make them a part of it, or for this court to consider them if they were so made a part of the record. Only abstracts of their contents could properly be incorporated in a certificate of evidence. The trial court sustained an exception to the master’s report as to the amount found to be due to complainants. That must have been done for some reason arising out of the evidence. It might be the court, on final hearing of the cause, heard the testimony of expert accountants who had made examinations of the books, and made abstracts of their contents, and in that way determined the sum found by the master was not correct, and if so, that evidence should have been preserved in the record. The only testimony of that character contained in the master’s report is that given by the witnesses as to what Conkey and Wilson did in 1876, and that is neither full nor specific enough to give any very clear understanding of the contents of the books. The same reasoning will apply with equal force to the two other branches of the case argued by counsel.

It will be observed the master found that before the commencement of the suit no balance had ever been struck showing the condition of the firm books. It was not absolutely necessary a balance should have been struck, to a final settlement. A satisfactory conclusion on which to base a settlement might have been reached otherwise. As has been seen, the master found the effort made to effect a final settlement, on December 1, 1869, was a fruitless attempt. To that finding the court not only sustained an exception, but went further, and found, by its decree, that on the 1st day of December, 1869, there was a full, fair and just settlement and division of the real and personal estate of the late firm, made between complainants and the surviving partner. That must have been done on evidence heard by the court. Whether all the evidence heard by the court on this phase of the case is contained in the master’s report of the evidence, does not appear from any certificate of the court, or otherwise. That would be a sufficient reason for an affirmance of the decree in this respect. Unless all the evidence heard by the trial court was preserved in the record, in some manner known to the practice in such cases, this court will presume the evidence warranted the finding of fact, as was done by the decree.

It may be conceded the master’s report contains all the evidence heard either by the master or the circuit court, and still it does not appear the decree was erroneous. First, in respect to the ruling of the court in sustaining an exception as to the finding of the master as to the amount due from defendant to complainants, how is it shown the decree in that particular is not warranted by the evidence? The master does not state how he made up his statement of the accounts between the partners, so as to arrive at the balance due. It may have been, and doubtless was, from a personal examination of the books. But his report contains testimony to the effect two expert accountants had made very careful examinations of the books, and the conclusion they reached differs widely from his own. It is said their calculations rest on an erroneous basis. No evidence to that effect is discovered in the record. So far as the testimony shows what was done by these accountants, no objection is perceived to it. It may be the court regarded their testimony as being more satisfactory, and based its decree upon it. Second, but concerning the finding of the circuit court touching the alleged settlement of December 1, 1869, there is still less reason to be dissatisfied with it, on the evidence contained in the report submitted. On this branch of the case the evidence has been carefully examined, for it is thought to be the controlling question arising on the record. It is somewhat conflicting, but the weight of the evidence would seem to be in favor of the conclusiveness of that settlement, as well as its justness. The basis agreed upon for adjusting the accounts was not far out of the way. For the time being it was acquiesced in by all parties. The heirs took possession of the lands conveyed to them, and made valuable improvements thereon, and also appropriated to their own use the personal assets that came to them on the division that was made. No dissatisfaction appears to have been expressed in regard to it until 1875, when the heirs, or some of them, thought they had been overreached in that settlement. It was then agreed the books : should be submitted to the examination of two accountants, who were agreed upon by the parties, and who were selected for their skill in such matters. Every facility was afforded them, and these accountants bestowed a great deal of labor upon the firm books, and after many days spent, in that work they reached a conclusion, which they communicated to the parties, in writing, but it. was not satisfactory to complainants. Some evidence was given tending to show it was agreed the conclusion that should be reached by the accountants should be absolutely binding on the parties, as an arbitration, but complainants disclaim any conclusive effect of that examination of the books, and filed their bill for an account as though no such examination had been made. The bill is not framed with a view to have a decree for the amount found due by the accountants who examined the books in 1875. If it was an arbitration, or a submission in the nature of an arbitration, and was obligatory on all parties, it is apprehended the remedy upon it would be at law. The partnership accounts, in the aggregate, were, perhaps, not less than $100,000,—certainly quite a large sum,—and the most importance that can now be attached to the examination of the books made in 1875, is, that it shows the settlement made in 1869 was not far from right,—certainly that it worked no serious injury to complainants. There is no controversy as to the fact an effort was made in 1869 to effect a final settlement between the heirs of the deceased partner (all of whom were then of age) and the surviving partner. The complaint is, the surviving partner concealed information from the heirs, or that he did not make that full disclosure to them that was important to an understanding of their rights, and for that reason the attempted settlement ought not to be binding upon them, in equity. As before remarked, there is no satisfactory evidence he concealed anything within his knowledge that would have been beneficial to the heirs of his deceased partner. He placed the books of the concern where they could have been examined with that care that would have disclosed their interests in the personal assets, and certainly equity and good conscience did not require him to do more.

It will not be necessary to the present decision to determine the question discussed, whether a bill for an account, brought by one partner against another, will be barred unless brought within five years after dissolution of the co-partnership ; but it may be fairly said the matters alleged in this bill are stale, and for that reason equity will treat them as barred, whether coming directly within the purview of any statute of limitation or not. The answer makes that issue, and upon the facts appearing, it is a conclusion of law the claim of complainants insisted .upon is stale, and relief as to the matters contained in the bill might, for that reason, be very properly withheld. The partnership commenced in 1841, and continued actively until 1859, when their stock of merchandise was sold, and by mutual consent their business as general merchants ceased at that time. Whether the firm was then dissolved is a matter of no consequence. It was certainly dissolved on the death of one of the partners, which occurred on the 19th day of April, 1860. The bill was not filed until the 24th of February, 1876. A period of nearly sixteen years had then elapsed since the dissolution of the partnership took place. The youngest heir of the deceased partner had become of age nearly or quite twelve years before the bill was filed. It appears from the master’s report, the books of the concern have always been open, both before and since the dissolution, to all the parties, and complainants could have had them examined at any time by persons skilled in that kind of labor. , The master also found as a fact that “no impediment seems to have been in the way” of a final settlement of the partnership during all that long period that was suffered to elapse. That conclusion is fully warranted by the testimony submitted with his report. No reasonable excuse is shown for the unusual delay that has intervened. None of the parties, since 1864, were under any disabilities, and if unsettled matters pertaining to the partnership existed, complainants should have elected to proceed in apt time. That they did not do. Oakley v. Hurlbut, 100 Ill.204; Bissell v. Lloyd, id. 214.

The decree of the circuit court will be affirmed.

Decree affirmed.


author: Mr. Justice Mulkey

text:
    S. S. Stearns v. William Cope.

      Filed at Springfield March 26, 1884.

    1. Pleading—of the declaration—in suit on arbitration bond. In an action on an arbitration bond, for not performing its condition, it is not necessary for the declaration to set out the submission, and aver that the arbitrators considered and decided all matters submitted to them. It is sufficient to aver generally that the differences agreed to be arbitrated, as recited in the condition of the bond, were in fact submitted to the arbitrators; that the arbitrators, in pursuance of such submission, made and published their award, setting it out, and that the principal obligor, upon request, refused to abide by and perform it.
    2. Pleading and pbaotioe—carrying demurrer back—exception to the rule. While it is a general rule of pleading that the court will carry a demurrer back and sustain it to the first faulty pleading in the line of the pleading demurred to, yet the rule has its exceptions, one of which is, that the court will not carry the demurrer back to a pleading of the adverse party to which a demurrer has already been overruled.
    3. Same—waiver of demurrer—by pleading over. A party by. pleading over waives his demurrer, and admits the sufficiency of the pleading to which the demurrer was interposed.
    4. Same—defects reached by motion in arrest of judgment after demurrer overruled. If a declaration is so fatally defective as not to support a judgment for the plaintiff, the defect may be availed of by a motion in arrest of judgment, even after a demurrer thereto has been overruled.

      5. Practice in the Supreme Court—as to what may he assigned as error. A party can not be heard to complain of an error that works him no injury, or is in his favor; and this principle applies with the same force to arbitrations as it does to proceedings in a court of justice.
    6. Arbitration and award—of the award—ñts requisites, os showing that all matters submitted are determined. Where several distinct matters, not consisting of mere money demands, are submitted to arbitration, the arbitrators must consider, and by their award finally settle and dispose of, all such matters in difference; and this must appear from the award itself, or it will be void.
    7. But when the controversy relates to cross money demands, whether in suit or not, or where, in any case, the circumstances are such that the arbitrators will be warranted in requiring the party who, upon the whole, appears to be in default, to pay to the other a sum of money in gross, it is not necessary, nor is it the better practice, for the award to show upon its face how the result was reached,—or, in other words, how each item of their respective demands was disposed of. In such case the awarding of a gross sum of money will be presumed to be a full adjustment of all matters of difference embraced in the submission.
    8. Same—although the award be void in part, may be good otherwise. The law is well settled that when an award is good in part and bad in part, and the two parts are severable and not in any manner dependent on each other, the award may be sustained in so far as it is valid, and rejected as to the residue.
    9. Same—suit upon arbitration bond—failure of arbitrators to pass on all matters submitted, is a matter of defence. In an action on an arbitration bond, if the arbitrators failed to consider all the matters submitted, and such failure was not occasioned by the neglect of the complaining party to furnish the necessary proof relating thereto, this is a matter of defence to be set up by a proper plea. Whether arbitrators have done their duty in this respect is a question of fact.
    10. Same—as to awarding costs, when no costs are claimed. In an action upon an arbitration bond, conditioned for the performance of an award when made, in which no costs of arbitration were sought to be recovered, but only the sum of money awarded from the principal in the bond to the plaintiff, the defendant (the surety) pleaded that the arbitrators, in awarding costs against the principal obligor, exceeded their power and authority under the terms of the submission, whereby the whole award was void: Held, that the plea presented no defence to the action, and was bad on demurrer.
    11. Pleading and evidence—not necessary to prove matters admitted by the pleadings. In an action upon an arbitration bond, where the execution of the bond and submission are not put in issue by the pleas, there is no occasion for introducing them in evidence at all.

      Appeal from the Appellate Court for the Third District;—heard in that court on appeal from the Circuit Court of McDonough county; the Hon. John H. Williams, Judge, presiding.
    William Cope brought to the February term of the McDonough circuit court an action of debt upon an arbitration bond, against Francis T. Emery and S. S. Stearns, the latter being a surety thereon. The bond is in the penal sum of $6000, and is subject to a condition wherein it is recited that certain differences had arisen between Emery and Cope, which they, by articles of agreement, had that day agreed to submit to the arbitrament and award of certain arbitrators therein mentioned, and that if the said Emery, his executors, etc., should abide by and perform the award, and should pay to Cope, his executors, etc., whatever sum of money might be awarded to him, or them, by the said arbitrators, or a majority of them, the bond was to be void.
    Emery not being served with process, Stearns filed three pleas to the declaration, which contained but one count. The first alleges that the arbitrators did not make an award according to the submission in the declaration mentioned. The second plea is 'like the first, except that it sets up, by way of recital, the details of the submission with greater particularity, and then concludes with the averment that the arbitrators refused to hear and determine of and concerning the matters submitted to them, specifying the particulars wherein they had failed to do so. The third plea, after setting out a part of the arbitration proceedings, including the award of the arbitrators, wherein it appears they required Emery to pay a specified sum of money and the costs of arbitration, then avers “that said arbitrators, in and by their said award, in the awarding of costs against said Emery exceeded their power and authority under and 'by virtue of their said submission, wherefore the whole of said award made by said arbitrators under said submission is wholly null and void, ” etc. Issues of fact were joined on the first and second pleas, and the court sustained a demurrer to the third. By agreement of parties, the cause was tried by the court without a jury, resulting in a judgment for plaintiff of $1383, the amount of the award, which, on appeal to the Appellate Court for the Third District, was affirmed, and the case comes here by appeal from that court.
    Mr. E. E. Chesney, Mr. C. F. Wheat, and Messrs. Prentiss & Bailey, for the appellant:
    Where several matters of difference are submitted, if the arbitrators omit to decide any one of them, the award is void. Randall v. Randall, 7 East, 81; Emery v. Hitchcock, 12 Wend. 156; Karthaus v. Ferrer, 1 Pet. 222; Houston v. Pollard, 9 Metc. 164 ; Shirley v. Shattuck, 4 Cush. 472; Hayward v. Phillips, 1 N. & P. 288; Whetstone v. Thomas, 25 Ill. 361; Busse v. Agnew, 10 Bradw. 530.
    This being so, the declaration should have set out the submission, and averred that the arbitrators considered and acted upon all the matters in it, and the demurrer to the third plea should have been carried back and sustained to the declaration.
    An award is not like a judgment, settling all differences between the parties. If the arbitrators did not decide upon the counter claim or all the specific matters submitted, it is no bar. Pritchard v. Daley, 73 Ill. 523.
    Arbitrators appointed by a submission at common law have no authority to award concerning costs, unless the submission gives it. Peters v. Pierce, 8 Mass. 399; Ailing v. Munson, 2 Conn. 696; Vose v. Howe, 13 Metc. 243; Shirley v. Shattuck, 4 Cush. 470.
    An award is invalid unless it comprehends all the matters submitted. Wright v. Wright, 5 Cow. 197; Hubbard v. Fair-

      man, 29 Ill. 90; Tucker v. Page, 69 id. 181; Watson on Arbitrations, 121.
    ■ A plea of no award, means according to the submission. Fisher v. Pimbley, 11 East, 193.
    Mr. W. H. Neece, and Messrs. Tunnicliff & Bacon, for the appellee:
    No costs were sought to be recovered. The arbitrators had the right, as an incident to the authority conferred, to pass upon the question of costs; but if they had not, that part of the award relating to costs was surplusage, and void to that extent. An award may be good in part, and void in part. Nichols v. Rensselaer County Ins. Co. 22 Wend. 125; Strong v. Ferguson, 14 Johns. 162; Cox v. Jagger, 2 Cow. 638; Bacon v. Goodrich, 1 id. 117; Doke v. James, 4 N. Y. 568; Boughton v. Seamans, 16 id. 392; Lyle v. Rodgers, 5 Wheat. 394; Hartland v. Henry, 44 Vt. 593; Witcher v. Witcher, 49 N. H. 176; Brown v. Warnock, 5 Dana, 492.
    In the absence of fraud the law will presume the arbitrators considered all the evidence, and allowed such items to the respective parties as they considered proven. Hadaway v. Kelly, 78 Ill. 286.
   Mr. Justice Mulkey

delivered the opinion of the Court:

Several questions of law arise on this record, none of which present any serious difficulty. We will consider first the ruling of the court in sustaining the demurrer to the third plea. . This plea is framed, as we suppose, upon the theory tlie award is void as to the costs of arbitration, either because of the uncertainty of the amount required to be paid, or on the ground they were not embraced within the submission, and that the arbitrators therefore had no power or authority to make any award concerning them, and that being void in part it is void as a whole. In the view we take of the question it is not necessary to stop to consider whether arbitrators, as a mere incident to their power to adjust and determine the matters embraced in the submission, may not make such an order in respect to costs, for it may be conceded for the purposes of the present inquiry that the award, so far as the costs are concerned, is invalid on both the grounds suggested, and yet it does not necessarily follow the plea presented any defence to the action. The costs are not sought to be recovered in this suit, and the fact the award concerning them is invalid,—conceding it to be so,— does not, in our judgment, afford any reason why the residue of the award, to which that objection does not apply, should not be performed. The fact that the award is invalid to that extent but relieves Emery and his surety from the payment of a sum of money they would otherwise have to pay, hence, so far as this suit is concerned, neither of them has any right to complain. If by this suit Emery were seeking to recover from Cope for a refusal to perform some requirement of the award on his part, and the latter, instead of Emery or his surety, was now urging this objection, and putting his refusal to perform on the ground it would be unj ust to make him fully perform the award on his part, when, by reason of its illegality in the respect mentioned, it could not be fully enforced on the other side, and the law is as is assumed by the plea, a different question would be presented. In the case supposed, the defence would have at least the merit of plausibility, but under the facts as here shown, the plea clearly presented no defence to the action, and the demurrer to it was properly sustained. It is a rule of law, as well as of common sense, that a party will not be heard to complain of an error that works him no injury. A fortiori, he can not take advantage of such an error when, as is the case here, it is manifestly in his own interest. This principle applies with the same force to arbitrations that it does to proceedings in courts of justice. (6 Wait’s Actions and Defences, 526.) The law is well settled that where an award is good in part and bad in part, and the two parts are severable, and not in any manner dependent on each other, the award may be sustained in'so far as it is valid, and rejected as to the residue. Ibid. 548.

It is urged, however, that conceding the third plea was bad, the demurrer should have been carried back and sustained to the declaration. If, as contended, the declaration is bad in substance, the appellant should have stood by the demurrer which the court overruled, to the declaration itself. While it is a general rule of pleading that the court will, on demurrer, regard the whole record as open, and carry the demurrer back and sustain it to the first faulty pleading in the line of the pleading demurred to, yet this rule has a number of well defined exceptions, one of which is, the court will not, in carrying the demurrer back, sustain it to a pleading of the adverse party to which a demurrer thereto has already been overruled. (Culver v. Third National Bank, 64 Ill. 528.) The party demurring, by pleading over, waives the demurrer, and admits the sufficiency of the pleading to which the demurrer was interposed. Walker v. Welch, 14 Ill. 277; American Express Co. v. Pinckney, 29 id. 392.

If, however, a declaration is so totally defective as not to support the judgment, that may be availed of by a motion in arrest, even after a demurrer thereto has been overruled, and the defendant has pleaded over. By the motion in arrest, in this case, the sufficiency of the declaration to sustain the judgment is therefore directly presented. The objection urged to the declaration is, that it should have set out the submission, and then averred “that the arbitrators considered and decided all matters submitted to them. ” This was not necessary. The action is on the bond, and not on the award, and therefore it was sufficient for the plaintiff to aver generally that the differences agreed to be arbitrated, as recited in the conditions of the bond, were in fact submitted to the arbitrators; that the arbitrators, in pursuance of such submission, made out and published their award, setting it out, and that Emery, upon request, refused to abide by and perform it. This the declaration does, and we think it is sufficient to put the defendant on his defence. In short, we are of opinion the declaration is not only good on a motion in arrest of judgment, but upon general demurrer also. If the arbitrators did not consider all the matters of difference between the parties, as is claimed, and such failure was not occasioned by the neglect of the complaining party to furnish the necessary proof relating thereto, that was matter of defence, and should have been, as it really was, presented by proper pleas. Whether the arbitrators did their duty in this respect was a matter of fact for the consideration of the judge who tried the cause, and the Appellate Court, which has been conclusively settled against the appellant, and it is hardly necessary for us to say we are not permitted to reconsider it here.

It is also objected the trial court erred in admitting in evidence the bond, submission and award. We perceive no force in any of the reasons assigned for the exclusion of these instruments of evidence, or either of them. So far as the bond and the submission are concerned, their execution was admitted by the pleadings, hence there was no occasion for introducing them in evidence at all; but as to the award, the contention is, that it is absolutely void, because it does not show affirmatively the particular matters passed upon by the arbitrators, and that they were all the matters embraced in the submission, and being void, for this and other reasons heretofore stated, the so-called award should have been excluded. We fully recognize the rule that where several distinct matters, not consisting of mere money demands, are submitted to arbitration, the arbitrators must consider, and by their award finally settle and dispose of, all such matters in difference; and this must appear from the award itself. (Tucker v. Paige, 69 Ill. 179; Buntain v. Curtis, 27 id. 374.) For instance, if the controversy and submission relate to the ownership of several distinct pieces of property, and the arbitrators, notwithstanding evidence is offered by the parties as to all of them, should nevertheless only pass upon and determine the question of title as to one or more of the pieces, without making any disposition of the controversy as to the others, the award in such case would be clearly void. Many other illustrations of the principle might be given, but this one will suffice. Where, however, the controversy relates, as.in the present case, to cross money demands, whether in suit or not, .or where, in any case, the circumstances are such that the arbitrators will be warranted in requiring the party who, upon the whole, appears to be in default, to pay to the other a gross sum of money, it is not necessary, nor is it the better practice, for the award to show upon its face just how the result was reached,—or, in other words, how each item of their respective demands was disposed of. It is sufficient if the award is responsive to, and is fairly embraced within, the submission. The awarding of a gross sum of money in such case will be presumed to be a complete adjustment of all matters of difference embraced in the submission, and this view is well sustained by authority. Weed v. Ellis, 3 Caines, 253; Baspole’s case, 8 Co. 97b; Wahmough v. Holgate, 2 Vent. 221; Patton v. Baird, 7 Ired. (N. C.) Eq. 255; Blossom v. Van Amringe, 63 N. C. 65.

The claim that the arbitrators considered and passed upon the matters involved in Cope’s suit against Emery, and not upon those involved in the latter’s suit against Cope, is wholly unwarranted by anything appearing on the face of the award, or other papers in the cause. The award makes no special reference to either of the cases, and so far as anything appears on the face of it, there is just as much to show one was considered as the other. The presumption is that the matters in controversy in both suits were considered and fully determined by the arbitrators, as expressed in their award, and, as before shown, this fact having been put directly in issue by the pleadings, it must be regarded as conclusively settled against the appellant.

The judgment will be affirmed.

Judgment affirmed.


author: Mr. Justice Scholfield

text:
    Peter J. Clevinger et al. v. Timothy Ross et al.

      Filed at Springfield March 26, 1884.

    1. Sale under trust deed—of the notice—after promise to make demand before sale. Where the agent of the legal holder of a note secured by deed of trust containing a power of sale, and also agent of the trustee, promised the owner of the land, upon whom rested the duty to pay the note, after its maturity, that it need not then be paid until demand thereafter was made, and that such owner should have personal notice when payment should be required, and the trustee, without any personal notice or demand of payment, at the request of the holder of the note, advertised the property for sale in a newspaper published in a remote part of the county, having but a limited circulation outside of the township where it was published, and a sale was made by the trustee of the land to a son of the legal holder of the note,' and a brother of the trustee, it was held, that the sale was invalid, and was properly set aside at the costs of the defendants.
    2. In such a case, after having lulled the party who was to pay the note into security, the holder of the note could not, in violation of his promise, proceed to have the mortgaged property sold without personal notice; and the pretended notice by publication was a sheer mockery, and was in fact no notice, the publication being so made as to avoid giving notice.
    3. Same—setting aside sale on terms—whether redemption will be required. On bill filed to set aside a trustee’s sale of land under a power in a trust deed, on the ground of its having been fraudulently made, in violation of an express promise, and for want of proper notice, there is no error in not requiring the complainant to pay the money necessary to redeem from the trust deed, where no cross-bill is filed by the creditor.
    4. Notice—by possession of land. The possession of mortgaged premises is notice of the occupant’s equities to a person purchasing the same at a trustee’s sale under a power of sale, and such purchaser takes subject to whatever equitable rights the party in possession may have to avoid the sale.

      Writ of Error to the Circuit Court of Champaign county; the Hon. C. B. Smith, Judge, presiding.
    Messrs. Gere & Beardsley, for the plaintiffs in error:
    Where a sale is made in accordance with the requirements of a trust deed, the conveyance of the trustee to the purchaser is good, unless the sale is fraudulently -or unfairly made. Bloom v. Renssalaer, 15 Ill. 507; Heath v. Hall, 60 id. 344.
    This sale is attacked upon the ground of fraud and collusion. The burden of proof is upon the parties making the charge to prove it. Brush v. Sherman, 80 Ill. 160; Dempster v. West, 69 id. 613.
    The charge is, a fraudulent conspiracy to deprive complainant of his property without notice, and that defendants, to effect this purpose, caused the notice of sale to be published in the “Home Enterprise. ” There is no proof as to conspiracy, and the circulation of the paper was shown to be over five hundred. It does not appear that there is any other paper published in the county which has a larger circulation, nor that there is any other paper published in the county. No personal notice was necessary. It was waived in the trust deed. Princeton Loan and Trust Co. v. Munson, 60 Ill. 371; Jones on Mortgages, sec. 1821.
    In fact, no notice at all would be necessary, unless required by statute, or by the trust deed itself. Davey v. Durant, 1 DeG. & J. 535; Jones on Mortgages, sec. 1821.
    No particular newspaper being designated, the trustee or mortgagee may select any suitable medium for publication, at his discretion, observing the general requirements of the trust, that he act in fairness and in good faith. It is not requisite that he should select the paper of the largest circulation, or of any particular class or character. A publication in a law and advertising journal of limited circulation has been held to be proper. Jones on Mortgages, sec. 1835 ; Kellogg v. Carrico, 47 Mo. 157; Benkendorf v. Vincens, 52 id. 441.

      There was no extension of time made. There was no writing made, nor any subsequent payment of interest offered or accepted. The conversation had was not sufficient to make a binding contract. Yates v. Hackenthal, 57 Ill. 534; Jones on Mortgages, see. 1825.
    There is no evidence that Charles H. Clevinger was not a' bona fide purchaser, and as such he has acquired a valid title. Jones on Mortgages, sec. 1898; Hamilton v. Lubuke, 51 Ill. 415; Jackson v. Henry, 10 Johns. 185.
    The court erred in setting aside the sale without ordering payment to be made. The party, to have such sale set aside, must tender or offer to pay the amount justly due. Saunders v. Frost, 5 Pick. 259; Bank of South Carolina v. Rose, 1 Strobh. Eq. 257; Hooper v. Bailey, 28 Miss. 328.
    Mr. E. L. Sweet, for the defendants in error:
    The acts and promises of the cestui que trust were such as to beguile an ordinary man into a sense of security, and to believe that the power of sale would not be exercised without giving him a further opportunity to pay. The trustee was the trustee of both parties, and it was as much his duty to take care of the residuary interest of the estate as to make the debt. The immediate purchaser at such a sale must take notice. Cassell v. Ross, 33 Ill. 244; Reeves v. Allen, 5 Gilm. 236.
    In this case there was an evident attempt to fulfill the letter without observing the spirit of the contract as to giving notice of the sale. The paper selected had comparatively no circulation in the town where the parties resided and the land was. Meacham v. Steele, 93 Ill. 135.
   Mr. Justice Scholfield

delivered the opinion of the Court:

This case differs in no essential feature from Webber v. Curtiss et al. 104 Ill. 309. Briefly, the case made is this; A trust deed is executed to secure the payment of a promissory note, with a proviso that in default of payment at the maturity of the note, on application of the legal holder of the note, the trustee shall sell the premises described in the deed, after having given thirty days’ previous notice of the time and place of sale by publication in any of the weekly newspapers published in the English language in Champaign county, etc. After the maturity of the note the agent of the legal holder thereof, and also of the trustee, promises the party then owning the land, and upon whom the burden of paying the note rests, that the note need not be paid when due, but shall remain unpaid until demand thereafter shall be made for that purpose, and that such party shall have personal notice when payment will be required thereafter. Then after so promising, by such agent, the legal holder of the note requests the trustee to proceed to sell, and he thereupon advertises the sale in a newspaper published in as remote a part of the county from where the land lies as is possible, which has no circulation in that township, and but a limited one in any part of the county outside of the township in which it is published. The sale is made pursuant to such publication, without any actual notice to the party upon whom the burden of paying rests, and a deed is executed to the purchaser, who is a son of the legal holder of the note, and a brother of the trustee. Meanwhile, the party upon whom rests the burden of paying, was in the actual possession of the property, claiming that under the promise made by the agent of the legal holder of the note, and of the trustee, he was entitled to personal notice before there could be any valid sale.

We think it clear the sale was invalid. The trustee was not caused to proceed promptly to sell upon default, and the legal owner of the note could not be allowed to have a sale, after having promised not to do so without personal notice, upon a secret publication. This would be allowing parties to make profit from their own falsehoods and faithlessness. This pretended notice is a sheer mockery. It is not a notice. It is a publication so made as to avoid giving notice. The court very properly set the sale aside, and since those condemned to the payment of costs were all in the wrong we perceive no error in that regard.

There was no cross-bill filed by Charles Clevinger, and hence there was no error in not decreeing in his favor for redemption money. Charles Clevinger is not an innocent purchaser without notice. The possession of the defendants in error was enough to require him to ascertain the extent of their rights before purchasing.

The decree is affirmed.

Decree affirmed.