pellee for the market price upon the day when he demanded settlement. This the evidence shows they did. Appellee was not bound to receive corn in the ear, or other corn not of like quality and grade with that delivered, nor a less quantity than he delivered, and might treat the conversion of a part as an election on the part of appellants to take the whole, under the custom proved; and, if the custom was valid,-and it cannot be questioned by appellants,-they will be bound to settle with appellee for the corn stored, at the price npon the day when settlement was demanded. We are of opinion that the title to the corn delivered by appellee passed to appellants, and that they were liable to account to appellee therefor, and that recovery may be had as for goods sold and delivered. McDonald v. Brown, 16 Ill. 32; De Clerq v. Mungin, 46 II. 112. The judgment of the appellate court is affirmed.

(138 Ill. 29)

NEER V. ILLINOIS CENT. R. Co.1 (Supreme Court of Illinois. May 11, 1891.) APPELLATE PRACTICE-REVERSAL.

1. Under Rev. St. Ill. 1889, c. 110, § 88, which provides that, if any final decision of the Illinois appellate court is the result of a finding of facts different from that of the trial court; the appellate court shall recite in its final decree the facts so found, a decree reversing the judgment of the lower court, without remanding the cause or reciting the facts found, is erroneous, even though an alleged "finding of facts," not signed by any of the judges, has been filed in the cause.

2. An appellate court should not reverse a judgment without remanding the cause, unless it appears that there is no conflict in the evidence upon the material issues, and that there is no evidence tending to sustain the judgment.

Error to appellate court, third district. Gere & Philbrick, for plaintiff in error. J. S. Wolfe, for defendant in error.

MAGRUDER, J. This is an action brought by the plaintiff in error, as administratrix of the estate of her deceased husband, James A. Neer, in the circuit court of Champaign county, to recover damages against the defendant in error for the death of her said husband. The deceased was a locomotive engineer upon one of the trains of the defendant in error, and was killed on November 22, 1886, in a collision between the train on which he was so acting as engineer and another train at Savoy, a station a short distance south of Champaign. The verdict and judgment in the circuit court were in favor of the plaintiff. The appellate court has reversed the judgment of the circuit court without remanding the cause. 31 Ill. App. 126. The eighty-eighth section of the practice act provides that, "if any final determination of any cause, as specified in the preceding sections, shall be made by the appellate court, as the result wholly or in part of the finding of the facts concerning the matter in controversy, different from the finding of the court from which such cause was brought by appeal or writ of error, it shall be the duty

Reported by Louis Boisot, Jr., Esq., of the Chicago bar.

v.27N.E.no.8-45

to recite in its' decree the facts Ill. 1889, c. 110, §

of such appellate court final order, judgment, or as found," etc. Rev. St. 88. Upon looking into the record of the appellate court, we find a recital that, on June 27, 1889, "there was filed in the office of the clerk of said court a finding of facts by said court, which is in the words and figures following, to-wit, 'We find that,'" etc. Then afterwards there is a recital that on June 27, 1889, "an order was made by said court in words and figures following, to-wit." Then follows the final order or judgment of the court, which does not recite any facts as found by the court. It is the plain language of the statute that the facts as found must be recited in the judgment. We have held that the facts thus found by the appellate court must be set out, by way of recital, in the final order or judgment of the court in the same manner in which they are usually set forth and recited in decrees in chancery, and that, in this manner, they become a part and parcel of the judgment and decree itself; "and, so long as the record has an existence, there can be no controversy as to the facts upon which the decree or judgment rests." Tibballs v. Libby, 97 Ill. 552; Tenney v. Foote, 95 Ill. 99; Fitzsimmons v. Cassell, 98 Ill. 332. In the present case the paper filed in the appellate court, and called a "finding of facts," is not even signed by any of the judges of that court, nor are any of its recitals set out in the final order or judgment. The facts as found by that court "should include the facts concerning every material issue sub. mitted to the trial court." Insurance Co. v. Scammon, 123 Ill. 601, 14 N. E. Rep. 666.

Nor should the judgment of the trial court be reversed without remanding the cause, unless the appellate court would be justified in finding for the defendant if it were sitting in the place of the trial judge; that is to say, unless it appear that there is no conflict in the evidence upon the material issues, and unless it appear that there is no evidence tending to sustain the issues on the part of the plaintiff. Insurance Co. v. Scammon, 126 Ill. 355, 18 N. E. Rep. 562. Otherwise the plaintiff would be deprived of the constitutional right to a jury trial, by the substitution of the judgment of the appellate court for the judgment of the jury. Where there is in the evidence a real controversy of fact, the question of fact must be left to the jury. Where the evidence given at the trial, with all the inferences which the jury could justifiably draw from it, was so insufficient to support their verdict that the trial court would have been warranted in directing them to find for the defendant, but failed so to do, then, and then only, can the appellate court reverse without remanding; because, in such case, it merely renders the judgment that should have been rendered in the trial court. surance Co. v. Scammon, supra. Since no facts found by the appellate court are recited in its final judgment of reversal, as shown by the present record, such judgment is erroneous, and should be reversed, and the cause remanded to the appellate court to render a judgment de novo; and if that court should still be of opinion

In

that, on the record before it, the judgment of the circuit court should be reversed, judgment of reversal should be entered, and the facts found upon which the judgment of the appellate court is predicated, as respects all the questions contested in the circuit court, should be recited and set out in such judgment. The judgment is reversed, and the cause remanded to the appellate court for the third district for further proceedings in conformity with this opinion, and leave is given to withdraw the record of the circuit court filed in this court, for the purpose of refiling it in the appellate court. Judgment reversed.

1. The defendant in a criminal case was present when a verdict was rendered against him and a motion for a new trial was made, but absented himself during the remainder of the term. Final judgment was rendered at that term during his absence, which judgment was afterwards reversed, and a new judgment entered on the verdict at a subsequent term. Held that, as no leave to file a bill of exceptions had been given at the trial term, the court could not at the subsequent term allow a bill of exceptions as to mat ters occurring at the trial term.

2. Upon writ of error to the second judgment, the decision of the supreme court upon the previous writ of error is conclusive as to all matters that should have been considered at that time.

3. Where the supreme court, after reversing a judgment because rendered in the absence of the defendant, directs the trial court to "pronounce sentence upon the defendant in accordance with the verdict," the trial court has no power to allow the defendant credit for the time spent by him in the penitentiary before the reversal.

Error to circuit court, Macon county. John J. Rea and Johns & Randolph, for plaintiff in error. George Hunt, Atty. Gen., for the People.

SCHOLFIELD, C. J. This is a writ of error to the circuit court of Macon county. The attorney general pleads that as to all matters recited in this record as occurring prior to our June term, 1889, this identical record was before us on a writ of error sued out by this plaintiff in error to that term; that this plaintiff in error thereupon assigned errors on that record, in which there was joinder in error on be half of the people; that this court rendered judgment in that suit on the 31st of October, 1889, reversing the judgment of the circuit court of Macon county, and remanding the cause to that court, with directions to it to pronounce sentence upon the plaintiff in error in accordance with the verdict, the plaintiff in error being for that purpose personally present in court to receive such sentence; and that, as to all matters recited in this record as occurring subsequent to our June term, 1889, they are strictly in conformity with that mandate of this court, and so that the matters as to which errors are assigned

Reported by Louis Boisot, Jr., Esq., of the Chicago bar.

on this record are res adjudicata in this court. The plaintiff in error replies that he was not present in open court at the September term, 1888, of the Macon circuit court, when he was sentenced by that court, and that no leave was then given him to file a bill of exceptions, and no bill of exceptions was then filed in said cause, and that therefore there was no bill of exceptions in the record before this court, which could be considered by the court at our June term, 1889; but that at the September term, 1889, of the Macon circuit court he was personally present in that court when sentence was pronounced up. on him pursuant to the mandate of this court, and he thereupon presented the bill of exceptions copied into the present record, which was allowed and signed by the judge. The attorney general demurred to the replication, and he also moved to strike from the record that part of the bill of exceptions which recites the evi dence given upon the trial and rulings in the case prior to our June term, 1889. The questions thus presented will be considered together.

Taking, as we are required to by the familiar rule of pleading applicable in such case, the averment in the replication most strongly against the pleader, it appears here that plaintiff in error was present in court during the trial, and when verdict was rendered, and when motion for a new trial was made, and that he then, before his motion for a new trial was overruled and sentence was pronounced against him, willfully absented himself from the court, and thereafter remained absent therefrom during the remainder of the term. The judgment rendered at that term, though erroneous in respect to rendering judgment on the verdict of the jury in the absence of the plaintiff in error, was not void; and it was a final judgment, leaving nothing undisposed of which can be said to have been continued by operation of law until the next term. Inasmuch, therefore, as no leave was giv. en at that term to present a bill of exceptions in the case at a subsequent term, the court was without such jurisdiction of the case as could enable it to sign a bill of exceptions at a subsequent term of the court, and therefore the bill of exceptions signed at the September term, 1889, of that court, as to matters occurring prior to that term, cannot be considered as any part of this record. Dougherty v. People, i18 Ill. 160, 8 N. E. Rep. 673; Railway Co. v. People, 106 Ill. 652. Plaintiff in error had every opportunity that the law allows to a party to prepare and present a bill of exceptions at the September term, 1888, and that he did not avail of it is solely because of his own willful neglect. The only record that can be now before us properly, and the record before us at our June term, 1889, are in legal effect identical as to all matters occurring in connection with the case prior to that term. We have repeatedly held that we will not hear a case piecemeal, and that a party will not be allowed to have one part of the record of a trial and judgment heard as one case in this court at one time and another part of it heard as another case

at a different time in this court. Our judgment upon the record before us at our June term, 1889, whether right or wrong, is therefore conclusive as to every question that was or ought to have been considered upon that record; and under that judgment the circuit court of Macon county had no discretion to render any other judgment than that it did render. Washburn & M. Manuf'g Co. v. Chicago G. W. F. Co., 119 Ill. 34, 6 N. E. Rep. 191: St. Patrick's Catholic Chuch v. Daly, 116 III. 76, 4 N. E. Rep. 241; Ogden v. Larrabee, 70 II. 510; Reed v. West, Id. 479; Kingsbury v. Buckner, Id. 514; Newberry v. Blatchford, 106 Ill. 590; Hook v. Richeson, 115 III. 431, 5 N. E. Rep. 98. The demurrer is sustained to the replication, and the motion to strike out the bill of exceptions is sustained. This leaves nothing before us as to which error is assigned. The contention that the court erred in not crediting plaintiff in error with the time he had served in the penitentiary before the reversal of the judgment rendered at the September term, 1888, has nothing in the record to sustain it. Our mandate to the circuit court was to "pronounce sentence upon the defendant in accordance with the verdict, the defendant being for that purpose present in court to receive such sentence. Harris v. People, 130 Ill. 465, 22 N. E. Rep. 826. This admitted of no deduction for previous confinement in the penitentiary, even if the record contained evidence in that respect; but it does not. The judgment is affirmed.

(138 Ill. 55)

"

SNELL V. DE LAND.1

--

(Supreme Court of Illinois. May 11, 1891.) EQUITY PRACTICE ACCOUNTING EXCEPTIONSREVIEW ON APPEAL-MASTER'S REPORT. 1. Where, in a suit for an accounting between partners, the decree allows the complainant compensation for his services, the objection that the bill does not allege an agreement to pay compensation comes too late when made for the first time on appeal, after the existence of such agreement has been denied by the answer, and a great deal of testimony has been taken in regard to it without objection.

2. It is proper for a master, who has been appointed to state an account, to state in the body of his report the result of the accounting, with the items rejected, and to refer to schedules filed with the report for the particular items entering into the account.

3. The fact that such schedules do not appear in the record on appeal is no ground for reversing the decree, where it is clear that the schedules were before the trial court.

4. An exception to the aggregate amount of items in the account as stated by the master, and to "any part thereof," without designating any particular item or any ruling of the master, is too general to be availing.

Error to appellate court, third district. Thos. F. Tipton, for plaintiff in error. Moore & Warner, for defendant in error.

SHOPE, J. This is a bill filed by the appellee, in the De Witt circuit court, for a settlement of alleged partnership affairs, and for a division of assets of the firm. It is alleged that about January 1, 1875, the

Reported by Louis Boisot, Jr., Esq., of the Chicago bar.

parties entered into a copartnership for an indefinite time for the purpose of buying, selling, improving, farming, and leasing land, and doing a general trading business, by which they were to contribute equally in time, labor, and money, and share equally in profits and losses; that in pursuance thereof they purchased certain lands described, in Shelby and De Witt counties, 123 mules, and other personal property, consisting of farming implements, etc.; that they have expended and received large sums of money in and from the business; that complainant has paid more, and received less, than his share; and defendant has paid less, and received more, than his; and that they cannot settle the affairs of the copartnership between themselves. It prays for a dissolution, for a partition and division of the property on hand, and for an accounting under the direction of the court, and for general relief, etc. The answer of appellant admitted the purchase, jointly, of the property mentioned, and for the purposes stated in the bill, but denied that there was ever a partnership in respect to it, or that he was indebted to the complainant on account of it, or of any business growing out of it, or had refused to account and settle with him of and concerning the same, and expressed his consent to a partition and division of the property, and to an accounting, as prayed by the bill. He also filed a cross-bill, alleging a balance due him, and the neglect and refusal of the complainant in the original bill to account, and asking affirmative relief. Under orders entered by consent of the parties, the real estate and personal property on hand were partitioned and divided, and the incumbrances on the land apportioned between them, to their satisfaction; and a special master, agreed on, was appointed to take the proofs and state an account. It appears from the record, and the court found, that the parties had a settlement in the year 1877, but not afterwards. Many items claimed on each side were contested, but the principal conflict was in reference to the relation of the parties. Appellee had been in the control and use of the land jointly owned by them; and what was the character and extent of his liability for the use of appellant's half; whether he was to be charged as tenant in common, as trustee, or copartner; and whether he was entitled to compensation for services in conducting the business, and for money expended in improvements, etc.,-were the principal matters of contention. Appellant insisted that he and appellee were not partners, and that appellee was liable to him for the reasonable rental value of his half of the land, without regard to the amount received, and had no right to payment for services or improvements; and if it should be found that he was a partner, appellee would be entitled to no compensation without an express contract to that effect, and that there was no such agreement. Appellee contended that they were partners; that there was an express agreement for compensation; and that, being a partner, he was liable only for the exercise of good faith and reasonable diligence

in the management of the affairs of the copartnership, and for net profits realized. The cause was referred to a special master selected by the parties, who, after taking the proofs, declined to pass upon the question of partnership, for the reason that he was not a lawyer, and filed his report, stating the account and the alternative; showing, if they were held partners, a balance due from appellee to appellant of $56.03, and disallowing the claim of appellee for compensation; and if they were not partners, a balance owing to appellant from appellee of $4,179.07. Exceptions were filed by both parties, none of which were allowed by the master. Upon hearing, the court found that in respect of the matters and affairs in controversy the parties were partners; sustained an exception to so much of the report as disallowed appellee compensation, and found him entitled thereto; and added to the account of appellant the sum of $630, as being part of such compensation equitably due from and to be paid by him; and restated the balance by finding due from appellant to appellee $573.97 being the amount allowed as compensation to be paid by appellant, less the $56.03 found by the master to be due to appellant on his accounting between the parties as partners. The court overruled all of the exceptions, and rendered a decree accordingly. This decree was affirmed by the appellate court. 32 Ill. App. 68.

No good purpose can be served by a discussion of the evidence at length, and it will suffice that we have carefully considered it, and are of opinion that the preponderance supports the decree both as to the fact of partnership, and that an ex. press agreement was made for compensation to appellee for his management and control of the partnership affairs. We cannot say, therefore, that the court erred in its findings in these respects, or in fixing the amount of the compensation to be charged to appellant's account. The finding was as between the partners, and it was entirely proper for the court to render its decree against appellant for his half of the service, instead of charging the gross amount of compensation to the firm, and then decreeing that appellant pay one-half of it.

It is objected, however, that "there is no allegation in the bill setting up an agreement to pay compensation for such service," and therefore that portion of the decree was erroneous. It is obvious no such point was made in the circuit court. Indeed, counsel for appellant, in his brief filed in this and the appellate court, states that "the substantial disputed questions of fact are, among others: (1) As to whether appellant and appellee agreed to form a copartnership, and buy and sell these lands and mules. (2) Did appellant agree to pay to appellee compensation for his services, as alleged in the bill." The liability of appellant to appellee is charged. in the bill in general terms, and the prayer is for an accounting between them, and for general relief. It is denied both in the answer and cross-bills filed in the case that any agreement was made between the parties for the payment of such com

pensation. The great mass of the evidence relates to this question, and it is apparent that it was hotly contested. No objection was made before the master, or to the court, or attention called to the want of such specific allegation in the bill. The allegations and proofs are not inconsistent. If the bill was not sufficiently specific in its allegations to admit the evidence, it was at any time subject to amendment; and it was the duty of appellant, if he desired to insist thereon, by objec tion to the testimony, or in some other way, to call the attention of the court thereto.

It is next urged that the decree should be reversed because the master failed to return an itemized account of the claims of the parties; that is, it is said that with very few exceptions, specifically named in the report, it passes upon the accounts en masse, finding the balances merely. The report as contained in the record is subject to criticism, and is in violation of the rule laid down in McClay v. Norris, 4 Gilman, 370, and Gage v. Arndt, 121 Ill. 496, 13 N. E. Rep. 138, in that it fails to state the items allowed and disallowed by the mas. ter. No exception was filed to the report questioning its sufficiency in the respect mentioned. If the report is so made up that the parties may not know what items enter into the statement of account, and what disposition is made of them by the master, so that exceptions to this ruling may be filed, the court should, upon proper exception to the report, recommit it to the master with instructions to conform to the proper practice. No such order was here necessary, if it had been asked for. It appears that the master adopted the practice of stating the result of the accounting, with items rejected, in the body of his report, and referring to schedules filed therewith for particular items entering into the account. This practice is sanctioned in Daniels, Ch. 1302, and approved by this court in Craig v. McKinney, 72 Ill. 314. The mode adopted is not, however, material, so that the items of account are in some convenient way designated, and the master's ruling thereon made sufficiently to appear. By order of the court, the parties made out and filed with the master itemized statements of their respective accounts, showing debits and credits. Appellee presented three separate statements,-one, the De Witt county lands (Mitchell tract) account; one, the Shelby county land account; and one, the account of the purchase of the mules, etc., by the firm, and which are designated in the master's report as Exhibits "A," "B," and "C" thereto. Appellant presented his account, which is designated as his “Exhibit A." These exhibits do not appear in this record, but are referred to in the body of the master's report, by their respective designation, as indicating what was allowed or disallowed by him, and items are mentioned in the report as having been deducted or disallowed. It is clear these exhibits accompanying the report were before the circuit court. If this could otherwise be doubted, it conclusively appears by the exceptions filed by ap.

pellant, as follows: (1) That the special master finds, in case the contention of the complainant that he and the respondent were copartners in the Mitchell farm, the Shelby county lands, and the mule account, and that the same was managed and operated by the complainant for the firm, that the said complainant should be allowed the full amount of

bis account as shown by Exhibit C, with the exceptions made in said report, when there is not sufficient evidence of the correctness of the items of the account. (2) That the special master erred in allowing the account of $8,795.47, Exhibit B, (Mitchell account,) or any part thereof. (3) The respondent excepts to the allowance of $10,730.15, or any part thereof. Exhibit | A, (Shelby county land.)" It is manifest that the court and counsel were specifically advised of the items allowed and disallowed. It is, however, said that without such itemized accounting counsel cannot properly present appellant's case in this court. If such is the case, appellant alone is at fault. If the exhibits were inadvertently omitted from the record, the transcript could have been amended. If they were detached from the report and lost, upon application to the circuit court they could have been supplied. It affirmatively appears that the report, when passed upon by the circuit court, was complete, and conformed to the requirements of chancery practice. Moreover, no specific exceptions were filed to any of the items entering into the accounting by the master. As seen by reference to the exceptions, they were to the aggregate amount of the items contained in the exhibits, respectively, and to "any part thereof." These aggregate amounts are set out in the report, with even more particularity than in the exceptions. The exceptions fail to point out or designate any item which the appellant desires to except to, or any ruling of the master deemed to be erroneous. The effect was to bring the whole case before the court, and compel a hearing as to each item of the account. By this practice the purpose and object of the reference to the master to state the account would be defeated. We would, under such exceptions, be required to examine into and restate the account precisely as if no accounting had been had before the master. There being no exception to any item, or to any specific ruling of the master, objection thereto must be deemed to have been waived. The court was justified in overruling the general exception filed. The judgment of the appellate court, affirming the decree of the circuit court, will be affirmed.

(137 Ill. 504)

WARRICK V SMITH.1

(Supreme Court of Illinois. May 11, 1891.) REFORMATION OF DEED-MUTUAL MISTAKE-AGENT -ESTOPPEL.

1. Where the reservation of growing crops, which has been agreed to by both vendor and vendee, is omitted from the deed by mistake of the scrivener, who is acting as agent for both

1 Reported by Louis Boisot, Jr., Esq., of the Chicago bar.

parties, the deed may be reformed, since the mistake of the agent is the mistake of both his principals.

2. A vendee who has paid money to the agent of his vendor, for the purpose of inducing the agent to assist him in the transaction, is estopped to deny that the agent is his agent in the transaction.

Error to appellate court, third district. dolph, for plaintiff in error. I. A. Buckingham and Johns & RanMills Bros., for defendant in error.

MAGRUDER, J. This is a bill filed in the circuit court of Macon county by appellee against appellant to reform a deed, and to enjoin the prosecution of a replevin suit. The decree of the circuit court and the judgment of the appellate court were in favor of the present appellee.

In September, 1888, the complainant below, Sexton E. Smith, sold to the defendant below, Silas E. Warrick, 290 acres of laud for $11,200. At the time of the sale Warrick was occupying 160 acres of the land as tenant of Smith. Jordan L. Smith was tenant of the other 130 acres, the term of the lease being that he should deliver to his landlord, Sexton E. Smith, twofifths of all the grain raised during the year 1888. In making the sale, S. E. Smith and Warrick did not meet each other, and some ill feeling seemed to exist between them. S. E. Smith had placed the land for sale in the hands of Hiram Johnson, a member of the real-estate firm of Johnson & Dwight, of Decatur. Johnson had been a farmer for many years in Shelby county, and had been a neighbor and friend of S. E. Smith, and had gone to Decatur, and become engaged in the real-estate business, a little less than two years before September, 1888. As Smith's agent, he conducted the negotiations for the sale of the land to Warrick. These negotiations lasted from about the 6th to the 17th day of September, 1888. On the latter day the deed conveying the land to Warrick, which had been previously drawn by Johnson, was executed by Smith and wife, and was afterwards recorded by Johnson on September 20, 1888. The deed bears date September 17th, and is the usual statutory form of a warranty deed. It contains no provision as to the crops then growing or grown upon the land conveyed. On December 3, 1888, Warrick commenced a replevin suit in said circuit court against Sexton E. Smith, and the tenant Jordan L. Smith, for the possession of the rent corn and hay due the landlord from the crop of Jordan L. Smith. This replevin suit is the one above referred to. The bill alleges that the crops then growing or grown upon the land were reserved from the sale by the express agreement of the parties, but that a mistake was made in not inserting a reservation of such crops in the deed. The object of the bill is to so reform the deed as to reserve the crops. In such cases as this, where the proof of a mutual mistake is clear and satisfactory, equity will reform the contract, so as to make it conform to the intention of the parties. 1 Story, Eq. Jur. § 152. We have examined the evidence with some care. The parties agreed, in advance of the execution of the deed, that the vendor should