delivered the opinion of the court.
Appellant presents but two grounds of error :
First. That the adultery charge was not proved.
Second. That the court had no jurisdiction to decree a partnership, none having been alleged; and had there been such an allegation, he was not justified by the proof in so finding.
First. The chancellor heard the evidence of the witnesses who were sworn and examined in open court. The allegations of adultery were denied by appellant and by the co-respondent. Her character for chastity was declared to be good by many witnesses. On the other hand, twelve witnesses testify.to acts of familiarity, to situations and to admissions, which need not be here set out, tending to prove the charge. The rule in such a case, following a long line of prior decisions, is laid down in Arnold v. N. W. Telephone Co., 199 Ill. 204, as follows:
“ This testimony was conflicting, and the conclusions to be drawn from it depended largely upon the credit which should be accorded to the different witnesses and to the weight and value of their testimony. The chancellor had, therefore, superior opportunities for forming an opinion of the relative merit and weight of the testimony given, by the several witnesses, whom he saw and heard testify. When a chancery cause is so heard, and the evidence is conflicting, the findings of the chancellor will not be reversed unless it is clear and palpable that he fell into error.”
We have gone over the evidence with much care, and, upon this point, we are satisfied with the conclusion reached by the chancellor.
Second. The decree finds that the husband and wife were partners in the business carried on by the former; that at the inception of the business she put into it $5,600 in money and goods; and decrees that she be repaid such sum of $5,600, and then receive one-half of the remainder of the assets as and for her own property.
It is urged that even if the evidence tends to support such finding, which is denied, the court had no jurisdiction to enter the decree, because it is not responsive to the pleadings.
The theory of the bill is, that the wife owned the entire business and its assets. It prays the court to ascertain her interest in the same and to decree it to be her separate property.
The theory of the answer is, that the husband is the sole owner of said business and of its assets.
The court found with neither party. It determined that she originally contributed $5,600 to the business, and that the husband and wife were copartners therein. Based upon this finding' the distribution ordered is equitable and just. The fact that the chancellor calls the business a partnership, if error, is not reversible error, if in other particulars the decree is within the allegations of the bill and the evidence, as shown by the record.
Sec. 17, Ch. 40, R. S., “ Divorce,” provides :
“ Whenever a divorce is granted, if it shall appear to the court that either party holds the title to property equitably belonging to the other, the court may compel conveyance thereof to be made to the party entitled to the same, upon such terms as it shall deem equitable.”
The evident intent of the law-making power, by virtue of this section, was to invest the chancellor with full power to settle and adjust the property rights of the parties. (Becklenberg v. Becklenberg, 102 Ill. App. 504; Cutler v. Cutler, 188 Ill. 285.) Strict practice required that the bill be amended to conform its allegations to the findings of the chancellor; but such an amendment is not essential nor jurisdictional. It is a general rule, at law and in equity, that a plaintiff may be permitted to recover a part only of what he claims; that he shall not be turned out of court when the proofs fix his right of recovery, but lessen its measure from that averred in his pleading. (Bogan v. Daughdrill, 51 Ala. 312; Breckenridge v. Ostrom, 79 Ill. 71.) If the plaintiff in a suit at law be content, the defendant can not complain that the verdict is too small. Reid v. Houston, 20 Ill. App. 48; Wolf v. The Goodhue F. I. Co., 43 Barb. 400; Luey v. Bundy, 9 N. H. 298.
The evidence sustains the finding that the money with which the business was started in 1873 belonged to the wife; that for years the business was carried on in her name; and that the increase up to the time he took exclusive possession, was the product of their united labor.
Believing that the decree of the Circuit Court does substantial justice between these parties, it is affirmed.