This case was before this court at the March term, 1884, and is reported in 14 Ill. App. 598, where the nature of the controversy is shown. At the October term, 1888, of the Superior Court, the proceedings shown by the following order were had:
“ Thereupon the court of its own motion enters the following order: This cause having come on tobe heard, a jury having been called and impaneled, counsel for both plaintiff and defendants having made their opening statements to the jury, and it appearing to the court from the statements of counsel made in opening their case that the issues herein involved the settling of accounts between plaintiff and defendants which are in the nature of partnership accounts and involve book accounts and the examination of many' vouchers and papers and the casting of accounts, it is ordered by the court, of its own motion, that the jury be and the same is discharged, and that the form of action is changed to that of account, and the defendants, by their attorney, in open court making no objection to this proceeding, and stating that they are willing to account to the plaintiff, and ask that the plaintiff should also account to them, it is ordered that the defendants do account with the plaintiff, and further ordered that the plaintiff do account with the defendants,and further ordered that George M. Stevens be, and he is hereby appointed auditor in this case, under the law, who shall proceed with all due speed to appoint a time of hearing and proceed with the hearing of this case, according to law, and take an account between the parties, plaintiff and defendants, and take the evidence and report the same to this court, together with his conclusions thereon, finding in particular:
“ First. What were the net profits of the business carried on under the name of the Hew Fork store at 284 and 286 West Madison street, from about February 1, 1875, to about Movember 1, 1880 ?
“ Second. What interest, if any, the plaintiff has in said net profits?
“ Third. When did the plaintiff’s interest in the net profit begin and when did it end ?
“ Fourth. What amount, if any, the defendants are now owing the plaintiff on account of such net profits ?
“ Fifth. What amount, if any, the plaintiff is owing the defendants on account of said business; to all of which the plaintiff, by his counsel, enters his exceptions herein.”
Irregular and unwarrantable as this action of the court was, the appellants, by their conduct, encouraged, and can not now complain of it. The order “that the form of action is changed to that of account ” had no effect upon it while the pleadings remained in assumpsit. Calling a thing that which it is not, does not change its nature, and in another application of the same principle, shortly to be mentioned, such incorrect nomenclature does not prevent a thing from becoming that which in its nature it is.
The only obstacle, besides such incorrect use of words, that is in the way of that order of the court being a proper order under Chap. 117, R. S., as to referees, is the absence of the agreement of the appellee to it; but the appellants can not raise that objection; therefore the action of the court, and the subsequent conduct of the cause by the parties, may be treated as governed by that chapter, even though the court and parties did not have it in mind. This view of the case does not approve the order. A court has no power to direct the parties how they shall proceed. It may permit or prevent such a conduct of the cause as the parties may wish to pursue, and visit upon. them appropriate consequences resulting from a difference of opinion as to the proper methods, but whether a party will or will not prosecute or defend, and the mode in which, if at all, he will do so, he is to determine. But this case, by the consent of the appellants, did get before Stevens, called an auditor ; in fact, a referee. Treating the case as a reference under Chap. 117, to be which it only lacked the agreement of the appellee, and the appellants being estopped upon that point, the first two objections of the appellants, based upon the form of proceedings, and the lack of pleadings in an action of account, have no application.
The third objection, that the auditor (referee) was never sworn as such, was waived by the conduct of the appellants. Their counsel knew he was a master in chancery, and began to take testimony before him as such, when he knew that the order of appointment as auditor had not reached him, and when> therefore, he must presumably have known that he had taken no new oath, and continued the proceedings before him to the end without inquiry or objection on that score: K. & S. W. R. R. v. Alfred, 3 Ill. App. 511; and besides, there is neither statute nor constitution requiring that a referee shall be sworn.
May 10, 1889, the auditor (referee) filed his report, and May 14, 1889, the appellants filed fifteen exceptions thereto, and upon the conclusion of the argument upon them, filed also nineteen propositions of law for the court to pass upon.
May 25, 1889, the court announced its decision overruling the exceptions and confirming the report, and the case stood over to May 28, 1889, to give time for counsel to prepare the judgment form. On that day the counsel for appellants came in with a motion for the court to hear the evidence read, to pass upon and decide the various objections to it, and quash or approve the report. This motion the court refused to entertain or permit to be filed, on the ground that the case had been heard and decided.
Perhaps the appellants had the right to file the motion and have it sustained or denied, but if it had been denied on the same ground upon which it was rejected, the result would have been the same, and the appellants are not injured by the method adopted.
On the hearing of the exceptions the appellants called Stevens as a witness, and this is a part of his testimony:
“What is your name?
“ George M. Stevens.
“ Are you the gentleman to whom this case was referred as referee?
“I am.
“Were you ever sworn as referee in the case ?
“I believe not.
“ Between the counsel what was the understanding upon which the evidence was received there with respect to the objections that were made to evidence that went in ?
“ It was agreed between the attorneys on both sides, I believe, that the objections should be made to any questions asked, taken down by the reporter, but that the referee would not pass upon the questions. They should be reserved in the testimony when it came before the court, if either party wanted to raise the question.”
And as to this agreement the appellants’ brief says “ there is no dispute about this fact.” This extract from the examination of Stevens is significant as showing that the distinction between an auditor in an action of account, and a referee under Chap. 117, had been lost sight of, and that the counsel for the appellants had, perhaps without reflection, felt himself to be in the position of counsel for a party to a cause which had been properly referred; had adapted himself to that position, and adopted such a course of proceedings as in his judgment was for the interest of his clients. There is little room to doubt that any mode of trial of the pending issue, other than that before the jury which had been just sworn, was welcome to him at the time the reference was made.
How, with such an agreement as is recited in that testimony, it is trifling with judicial procedure to hold that any exception would lie to the report, unless the report itself shows affirmatively that a wrong result has been reached. The parties have no right to heap upon the court the labor» to avoid which is the purpose of the reference.
All attorneys here are also solicitors in chancery, and familiar with the practice of courts of equity, where no exception to the report of a master will be heard by the court, unless the same matter has been made the ground of objection before the master, and his review .of it asked. Hurd v. Goodrich, 59 Ill. 450; Prince v. Cutler, 69 Ill. 267.
The appointment of a referee to try a common law controversy stands upon the same reason as the reference to a master of a similar controversy in chancery, and the proceedings, founded upon the same necessity, should be similar.
The loudest complaint here is that Stevens received the incompetent testimony of one Levy, as to what was generally understood in the Hew York store as to the interest of the appellee; eulogizes him by name, and immediately follows with the statement, that “ After examining all the evidence taken, and the books of the defendants, I think, from all the evidence and the circumstances as shown by these books, that the plaintiff is correct in his claims,” etc.
It is not possible to know that if Levy had not testified the result would not have been the same. Indeed, from the brief for the appellants, it is a plausible conjecture that their counsel thinks it would, if nobody had testified. The other evidence in the case is such that, as this court held when the case was here before, the question of partnership and the specific terms of the contract between the parties was for the jury to pass upon. The fact that Stevens goes out of his way to repeat in his report the testimony of Levy, and speaks in his praise, does raise the suspicion that he attached weight to that testimony, but it is, after all, only an inference, and not an inevitable one, that he did. The parties have no right to frame rules for the conduct of business so loose as to impose upon the court labor that does not belong to it to perform, and then ask relief from the consequences, at least unless it appears with certainty that injustice has been done.
The agreement that the referee should not pass upon objections made, was of necessity an agreement that he should receive what was offered. He was prevented by the act of the appellants from rejecting the testimony of Levy. The reception of that testimony is therefore not by itself alone a ground of exception to the report. Ho just complaint can be made that the referee made his report “after examining all the evidence taken,” for that evidence ought to be the basis of his report.
It comes, then, to this: Shall his report be set aside because he reports the incompetent testimony and praises the witness, without any statement of what, in his judgment, was proved by that testimony, or what effect it had upon the result reached ?
If parties on a trial before a jury should agree that all objections to evidence should be overruled by the judge, and reserved for use upon a motion for a new trial by the losing party, no court would consent to be so trifled with. In principle it is the same thing as is condemned in St. L., A. & T. H. R. R. Co. v. Thomas, 85 Ill. 464, and Smith v. Kimball, 128 Ill. 583. One Graham was a witness on the former trial, but had since left the State. What he then testified was competent, and properly admitted now. 1 Gr. Ev., Sec. 163; 1 Tay. Ev., 429.
Exceptions to the report of the referee, that he received incompetent testimony, objections to which the parties agreed he should not pass upon, will not lie. Whatever surplusage his report contains, not so connected in terms with the other matter that it may not be stricken out without changing the meaning of what is left, may be rejected. And so treating his report, his finding upon the main issue between the parties stands, like the verdict of a jury upon conflicting evidence, as a finality.
As to some minor matters, it is clear from the evidence reported that the result is wrong. The appellants were entitled to a credit for taxes and insurance beyond what they received to the amount of §542.49. All the exceptions relating to other matters were properly overruled. The offer of propositions of law for the court to act upon was irregular, and it makes no difference what that action was.
The judgment is, for the failure to credit appellants enough for taxes and insurance, reversed and the cause remanded, unless the appellee shall, within twenty days after the filing of this opinion, remit $542.49 of the judgment, in which case the judgment will be affirmed for the' residue, $8,725.99.
In either event the appellants recover their costs here.
Reversed and remanded upon certain conditions.
Garnett, J.To sustain the practice adopted by the Superior Court on the last trial of this case, is a task attended with some difficulty, but as it was forced upon the appellee against his protest and was approved by appellants, the opinion of the majority of the court does no injustice to appellants in denying them relief from errors they invited. But that consideration does not apply to the incompetent evidence of Levy.
Appellee’s action was brought to recover a share of the profits of appellants’ dry goods store, from February, 1875, to October 11, 1880. Appellants claimed that the agreement to share the profits with appellee was made about September 1, 1878. A large part of the profits were alleged to have accrued between February, 1875, and September 1, 1878.
On the hearing before Stevens, the witness Levy, introduced for the plaintiff, testified that he was employed in the store from April or May, 1875, to September or October, 1878. He was interrogated by plaintiff’s attorney, as follows :
“Did you learn of or hear during the time you were there, anything said upon the subject of Mr. Byan having any interest in the profits of Pardridge’s store ? ”
The question was objected to by defendants’ attorney on the ground of incompetency and irrelevancy. The auditor did not then rule upon the admissibility of the evidence, stipulation having been made between the parties that the objections made to evidence should be noted and not passed upon by the auditor, but reserved for the determination of the court. The witness answered, “ It was so generally understood; we always supposed that was the case.” One of the appellants’ exceptions to the auditor’s report was devoted to an attack on the admission of the evidence, but the exception was overruled by the court, on the ground that the evidence, though incompetent, was immaterial, and did not appear to have influenced the auditor. In this the court was clearly mistaken, as the auditor in his report takes the pains to re-produce, verbatim, the question and answer referred to, and then refers to the evidence of the witness in terms of special commendation. This, however, would not be the cause for reversal, if the record presented such a preponderance of evidence in favor of plaintiff on that point, as to make it clear that a new trial must terminate in the same judgment. Ho such condition of things can be found in the record.
There is difficulty in estimating whether the weight of the evidence fixes February, 1875, or September, 1878, as the time when the agreement to share the profits was made. A verdict for either party on this evidence, by a jury correctly instructed, could not be disturbed on the ground that it was contrary to the evidence.
Levy entered the store as an employe in April or May, 1875, and left there in September or October, 1878; and as he “always supposed” that Ryan had an interest in the profits, liis supposition must naturally be referred to the entire period of his employment, and so had a strong tendency in the mind of the auditor, or referee, to make the date of the agreement at least as early as April or May, 1875.
■The evidence, being purely hearsay and incompetent, should not have been made the foundation for the finding of a material fact. Whatever departure from approved practice may have been encouraged by appellants, they were entitled to a trial on the competent evidence only, which the record affirmatively shows has not been accorded to them. For this reason I dissent from the conclusion of the majority of the court on this point.