The appellee commenced this action in assumpsit, but on the trial before the jury the court, by the consent of both parties, changed it to an action of account, gave the appellee leave to file another account, and referred the cause to an auditor.
This occurred October 18, 1888. October 29th, the parties appeared before the auditor, and the appellant then objected before him to further proceeding.
The next day the appellant moved the court to set aside the order referring the case to an auditor, but took no exception on the denial of his motion. He did not except to leave then given to the appellees to file their declaration mmcypro tunc, as of October 18th, but it is immaterial as of what date it is filed, the conduct of the case not being at all affected thereby. The objection that there was no interlocutory judgment to account is without merit, as the appellant had consented, before the case was referred, to account.
The net result of the auditor’s examination of the accounts between the parties was a balance against the appellant of §1,238.29, for which judgment was entered against him. That balance was made up of money which the auditor found that the appellant had received, which had not been charged upon the books of the appellees, and of an overcharge which the auditor found that the appellant had made upon goods sold by him to the appellees.
Whether these were proper charges depended upon evidence, and the position of the appellant is that the auditor could not decide upon disputed facts, but could only state an account upon undisputed items; that upon issues of fact, to be settled by evidence, he was entitled to a jury.
It is doubtless the law that whatever ground the party who is called upon to account has upon which to resist the taking of an account at all—as that he never was in such a relation with his adversary as authorizes calling him to account, or that he has been released or discharged from the duty to account by the act of the parties, or operation of law, should be pleaded before the court, under the 6th section of the act in regard to the action of account. Upon an issue formed on such a plea, he is entitled to a trial by jury. But the appellant in this case consented to account, and before the auditor; whatever inquiry was necessary to ascertain the state of accounts between the parties, upon the items properly chargeable to them, respectively, in that relation to each other with reference to which the account was being taken, the auditor had authority to make, either by the examination of witnesses, or books and papers, or both. Sections 9, 10 and 12 of the act; Lee v. Abrams, 12 Ill. 111.
This view disposes of a large part of appellant’s argument here. The items allowed by the auditor are supported by such evidence as makes his finding, like the verdict of a jury under similar conditions, final.
The real grievances of the appellant are that his claim for a salary at the rate of $5,000 per year was disallowed, as was also a large sum to his credit upon the books of the appellees when he sold out to Jonas Hamburger.
For an understanding of these matters a statement of facts becomes necessary.
In February, 1884, the appellant, L. M. Hamburger, and JMax Hamburger, formed a co-partnership, and the articles of agreement, which contemplated that it would be turned into a corporation, provided that the appellant might draw out of the business $5,000 per year, and each of the others $12,000, but neither should have a salary. In those articles it was agreed that they should be the basis of the by-laws of the corporation when formed.
The corporation was afterward formed; and the appellant put in evidence one, and only one, by-law. L. M. Hamburger had gone out of the business. This by-law referring to Max Hamburger and the appellant was: “ Said Hamburger and Garrity may draw and receive from said company, as follows: ” Then followed Garrity $5,000, and Hamburger $ 2,000 per year. On this he claims that $5,000 per year was his salary as president of the company. It is not necessary to consider how this claim would stand if it affirmatively appeared that there was no other by-law relating to the matter. The record shows that the appellees put in evidence six other by-laws, but they are not copied.
It has .always been the law of this State, that if a bill of exceptions did not state that it contained ail the evidence, a court of review would presume that the decision of the lower court, which could be, was justified by evidence not shown, if that shown was not sufficient. Rogers v. Hall, 3 Scam. 5.
It is very probable that some one of the omitted by-laws, in pursuance of the provisions of the partnership agreement, negatives the claim for salary.
On the 19th of February, 1886, the appellant sold his interest, as shown by an instrument, as follows:
“In consideration of the sum of twenty-five hundred dollars ($2,500) cash in hand, paid me by Jonas Hamburger, and other good and valuable considerations, the receiptof which is hereby acknowledged, I do hereby sell, assign, transfer and set over to the said Jonas Hamburger all my right, title and interest of whatsoever kind or character in and to the corporation known as the Hamburger Bros. Co., and the Hamburger Garrity Co., and the business thereof. In witness thereof I have hereunto set my hand and seal, this 19th day of February, 1886.
“P. L. Garrity. [seal]”
And took a bond of indemnity as follows:
“In consideration of the purchase this day made by Jonas Hamburger of all the interest rights of Patrick L. Garrity in and to the corporation and business of the Hamburger Bros. Co. and the Hamburger & Garrity Company, and of one do» lar and other good and valuable considerations to us paid by the said Patrick L. Garrity, the receipt of which is hereby acknowledged, we, the undersigned, do hereby jointly and severally promise to pay and discharge the obligations of the said Patrick L. Garrity now existing and represented as follows, to wit: The note executed by the Hamburger Bros. Co. to Minnie E. Hamburger, upon which suit is now pending in the Superior Court, Cook County, and the subsequent guarantee of the said note by the said Garrity, and notes executed by the said Garrity and Max Hamburger, payable to the order of L. M. Hamburger, the notes executed by the said Hamburger & Garrity Co. to the First National Bank of Chicago, and indorsed by the said Garrity and Max Hamburger, and a judgment against the said Hamburger Bros, in favor of Fernandez and others, heretofore obtained in the Superior Court of Cook County; and we further promise and agree- and guarantee to prosecute and defend all law suits and litigations of every character that may arise from or from out of this indebtedness and obligation at our expense, and to save and keep harmless the said Patrick L. Garrity, his heirs and assigns, from all loss, liability or expense by reason thereof, or any or either thereof. The foregoing shall be binding upon our heirs, administrators or assigns.
“In witness whereof, we have hereunto set our names and seals this 19th day of February, 1886.
“ Jonas Hambuegee, [seal.]
“ Max Hambuegee, [seal.] ”
The record does not show that any certificates of stock" in either of the corporations mentioned had ever issued; the interests of the parties were determined by the books. There is testimony that the appellant, in the negotiations preliminary to the sale, looked at his account on the books, and said that if he should retire from the concern entirely, and sell out his good will, and all his interest of every description, stock and everything, he wanted $8,000, or $4,000 more than was coming to him. In fact he did get $8,000, although the bill of sale recites only $2,500.
At that time there was to his credit on the books a trifle over $4,000. In the account, of which that was the balance in his favor, he had been charged with $4,000 which had been borrowed from the First National Bank on a note to the bank mentioned in the bond of indemnity, which money had been put to the credit of the appellee, and by it checked out as a loan to appellant. After the sale, the appellant paid to the appellees the interest on that loan from December 1, 1885, to February 20, 1886, that interest not having been charged to him. It is now claimed by the appellant that Jonas Hamburger was bound by the terms of the bond of indemnity to pay that note, and by his so doing, the charge of the $4,000 to the appellant on the boobs of the appellee would no longer be a proper charge, but should go to his credit in the account taken by the auditor.
It is clear that the sale by the appellant to Jonas Hamburger was of all the beneficial interest the appellant had in anything concerning the appellees, and that the bond of indemnity was not intended to affect the relations between Jonas Hamburger and the appellees, but to save the appellant harmless from future claims. The record does not show, nor is there any presumption, that the auditor was not sworn, and the objection of the appellant on that point has nothing to stand upon. The result seems to have been in accordance with the respective rights of the parties, and the irregularities in the proceedings consented to by the appellant, and the judgment is therefore affirmed.
Judgment affirmed.