115 Ill. 530 | Ill. | 1886
delivered the opinion of the Court:
It is insisted for plaintiffs in error that the court below erred in not sustaining their exceptions to the master’s report, —in other words, in deducting from the losses that part thereof arising from an over-valuation of the old stock of goods, of $3055.85, and in not decreeing that Shriver and A. J. Santee, jointly with I. B. Santee, as parties of the third part, to the agreement, should make good the losses of the Fordyces and Garrisons. It "is argued by their counsel that because Shriver and A. J. Santee and I. B. Santee agreed in the article to furnish one-third of the capital, and share one-third of the profits and losses jointly, therefore Shriver and A. J. Santee became, by implication, as matter of law, "liable for any losses the firm might sustain by reason of the business having been placed in charge of I. B. Santee, and by him recklessly and wrongfully managed, as they claim. We do not think such a conclusion properly drawn from their undertaking. All they agreed to do was to furnish, with I. B. Santee, one-third of the capital, and share with him one-third of the profits or losses. There is nothing in the article of agreement showing that it was agreed or understood that I. B. Santee was to have the charge or management of the business, much less that Shriver and A. J. Santee were the cause of his being made superintendent of it, or that they were to be responsible for his acts. The bill avers that I. B. Santee was placed in general charge of the business by the mutual consent of the other members of the firm, and J. B. Garrison testifies that he had a conversation with I. B. Santee, J. B. Fordyce, A. J. Santee, S. H. Shriver, and M. J. Garrison, upstairs in the store of M. J. Garrison, at Wadestown, West Virginia, and that it was agreed that I. B. Santee would become a member of the firm and conduct the business, and that he left the same day for Cornell,—August, 1873.
It is hardly probable that if there was any agreement or expectation that Shriver and A. J. Santee were to be responsible for the acts of I. B. Santee in conducting the business, no mention should be made of it in the written article or in any conversation relating to the business. We do not think a fair construction of the article of agreement warrants the holding that as a matter of law or fact they assumed or are liable for any such responsibility. Besides, the bill is not framed with a view of making Shriver and A. J. Santee accountable to the other partners for any losses the firm sustained by the wrongful acts or mismanagement of its affairs by I. B. Santee. There is no claim of that kind in the bill, and no prayer that they may be so charged in stating the account. Indeed, there are no specific allegations in the bill that the firm had sustained any losses by reason of his recklessness, mismanagement, or inattention to business. The general charge of negligence, carelessness, and the like, were made, we presume, with a view of showing that he was not a suitable person to be left in charge of the business, and as a reason why a receiver should be appointed. But even if these charges were sufficient, they are all denied in the answer, and to which no replication was filed. The answer admitted enough to authorize the appointment of a receiver, and for this reason probably no replication was deemed necessary, and that the ease could be submitted to the court on bill and answer, except as to stating the account, and that was referred to the master. When a case is submitted for hearing on bill and answer, the answer is to be taken as true. Such being the state of the record, and the case being referred to the master to state tlie account and report the evidence, it is not •required of him that he should report his conclusions or determine the liability of parties upon collateral matters not raised by the issues.
It. was not error for the court not to make I. B. Santee account for losses of the firm in purchasing an old stock of goods at an over-valuation, when he was not responsible for the- purchase. Whether there was error in the rendition of •the decree against I. B. Santee, is not directly before us as to him, as he has not appealed, prosecuted a writ of error, or assigned cross-errors upon the record. For the same reason we need not notice the observations of his counsel that he was not á partner in this firm. It is admitted, however, in his answer, that, he was, and that can not be controverted now. It is sufficient to say that there are no errors in this record of which plaintiffs in error can complain,g and the judgment of the Appellate Court is affirmed.
Judgment affirmed,.