perceived, relates to the $411.54, amount of counter-shafting, etc. Whether this material was furnished by the plaintiff to the defendants upon their order, and was delivered to them in their own wagons, were facts which have been settled by the lower courts, and are not reviewable here. The only questions of law presented for determination arise upon the court's refusal to give the following instructions:

"(1) If the jury further believe from the evidence in this case that the defendants entered into a contract with Harvey Cockell by which he was to furnish and erect for them one of his clay crushers and stone extractors, and that the plaintiff undertook and assumed to construct and erect the same for and on account of the said Cockell, then the jury are instructed that the said plaintiff cannot, by bringing suit against the said defendants for the work and materials so furnished in the erection and construction of the said machine, escape the obligations and duties imposed by the guaranty and undertaking of the said Cockell, if he made any such guaranty. (2) If the jury believe from the evidence that the plaintiff, either separately or jointly with Cockell, undertook to furnish and erect the machinery in question for the defendants, under a guaranty that it should accomplish certain work, then the jury are instructed that the plaintiff cannot recover from the defendants, in this suit, for any part of the work and machinery so furnished, unless the jury believe from the evidence that the plaintiff or the said Cockell have complied with the terms of the guaranty and undertaking aforesaid, unless the jury further believe from the evidence that the defendants have otherwise used and appropriated some part of the machinery or materials thus furnished by the plaintiff; and then the jury are instructed that the recovery of the said plaintiff will be limited to the value of such parts as were thus appropriated and used, and the jury are instructed that against this the said defendants have the right to recoup, deduct, and set off any sum which they may have expended in carrying out the undertaking and agreement of the said plaintiff or the said Cockell, and any loss, damage, or expense which they may have incurred in attempting to carry out this undertaking, or by reason of the failure and defect in the working thereof while so undertaking to carry it out.

Neither of said instructions accurately states the law as applicable to the facts in the case, and hence they were both properly refused. With respect to the first instruction, it is to be borne in mind this suit is not brought by Cockell to recover the price of the machine. If it had been, the defendants would clearly have been entitled to recoup, under the general issue, whatever damages they may have sustained by reason of a breach of the warranty. If, as is assumed by the instructions, suit was brought in the name of the Excelsior Iron-works for the work and materials furnished in the erection and construction of the machine, which would be simply an action in the name of the company for the value of the machine itself, it is very clear the breach of the guaranty by Cockell could not be set up by way of defense in such a suit, for Cockell is not a party to the suit, and his liability on the guaranty could not for that reason be determined in it. The controverted question of fact upon which the case turned was whether the plaintiff had sold and delivered to the defendants certain specific articles sued for. If it had, then the defendants were liable for them, whether Cockell had performed his contract or not. On the other hand, if the articles sued for were materials furnished by the company to Cockell, then the action was brought against the wrong party, and the court should have instructed the jury to find for the defendants, as in case of nonsuit. It is as clear as anything can be the defendants could not, by way of set-off, recoupment, or otherwise, avail themselves in the present action of any claim or cause of action

they might have had against Cockell, and hence an instruction relating to his liability under the guaranty was improper. The evident tendency of such an instruction was to mislead the jury, and it was therefore properly refused.

For the reasons already stated, the second instruction is also bad. It is not only obnoxious to the objections pointed out in the first, but it is objectionable in other respects. It tells the jury that if the machinery sued for was guarantied by the plaintiff, either separately, or jointly with Cockell, to accomplish certain results, which it had failed to do, there could be no recovery for such machinery, except so far as it had been actually used, etc. Now, there is not a particle of evidence tending to show that the plaintiff separately guarantied anything. The written guaranty offered in evidence shows upon its face that it was made by Cockell alone; nor do we think there is any evidence tending to show there was a joint undertaking on the part of the plaintiff and Cockell, as contemplated by the instructions. If such were the case, it is clear the action as brought could not be maintained, on the ground Cockell was not made a co-plaintiff, and the plaintiff in such case should have been nonsuited at the trial for that reason. In other words, the case, upon the hypothesis stated in the instruction, should have been taken from the jury altogether.

In conclusion, we feel constrained to call attention to the imperfect manner in which the abstracts have been prepared. They do not fairly represent the case as shown in the record. By reason of this, much unnecessary labor has been imposed upon the court, and particularly the writer of this opinion. Judgment affirmed.

(115 Ill. 530)

FORDYCE and others v. SHRIVER and others.
Filed January 25, 1886.

EQUITY PRACTICE - HEARING ON BILL AND ANSWER-ANSWER TAKEN AS TRUE
-REFERENCE TO MASTER.

Where a cause is submitted for hearing on the bill and answer, the answer is to be taken as true. In such case, where the cause is referred to a master to state an account and report the evidence, he is not required to report his conclusions upon collateral matters not raised by the issues.

Appeal from appellate court, Second district.

Plaintiffs in error and defendants in error on September 1, 1873, entered into articles of copartnership. The articles provide, and both the master and the court below found, that this copartnership, styled I. B. Santee & Co., was composed of three parts or parties, the first party consisting of J. B. Fordyce and John G. Fordyce; the second party of J. L. Garrison and M. J. Garrison; and the third party of A. J. Santee, I. B. Santee, and S. H. Shriver. All were non-residents of the state, except I. B. Santee, one of the members of the third party to the articles of copartnership, who resided in and carried on the business of the copartnership at Cornell, Livingston county, Illinois. The master found. that I. B. Santee, the member of the party of the third part, to whom the

business of the compound partnership was intrusted, by mismanagement, caused a total loss of $18,517.18, for one-third of which the party of the third part were jointly liable to the party of the first part, and for another third to the party of the second part. To this finding of the master exceptions were taken, which were sustained by the court. The court found "that the total loss only amounted to $12,039.46; * * * that I. B. Santee conducted the business in a grossly careless, reckless, and negligent manner; * * * that said loss of $12,039.46 was due to the carelessness, recklessness, and negligence of I. B. Santee, and that he should account to J. B. and J. G. Fordyce, the party of the first part) for $4,013.15, (being one-third of the loss,) to J. L. and M. J. Garrison, the party of the second part, for $4,013.15, (being also one-third of the loss,) and to A. J. Santee and S. H. Shriver for $2,675.44, (being two-thirds of the one-third of the loss.) The decree was affirmed in the appellate court, from which the appellants brought the case to this court. Bull, Strawn & Ruger, for appellants. James Morrow, Jr., for appellees.

TUNNICLIFF, J. 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 overvaluation of the old stock of goods, of $3,055.85, 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 articles to furnish one-third of the capital, and share one-third of the profits and losses jointly, that, 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 articles 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 mutual consent of the other members of the firm; and J. L. 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, that no mention

should be made of it in the written articles, or in any conversation relating to the business. We do not think a fair construction of the articles 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 act 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 charges 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 case could be submitted to the court on bill and answer, except as to stating the account, and that was offered 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 the 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 overvaluation, 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 to 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 a partner in this firm. It is admitted, however, in his answer, that he was, and that cannot be controverted now. It is sufficient to say that there are no errors in this record of which plaintiffs in error can complain, and the judgment of the appellate court is affirmed.

(115 III. 558)

CULVER v. COLEHOUR.

Filed January 25, 1886.

1. CONTINUANCE-ENGAGEMENT OF COUNSEL IN ANOTHER COURT-ATTENDING CALL IN ANOTHER COURT NOT ENOUGH.

The facts in this case are held not to show an abuse of discretion in refusing a continuance on the ground that counsel was engaged in another case in a different court. The facts are held to show that counsel was engaged in attending the call in another court, and not actually engaged in conducting the case.

2. TRIAL-JURY TRIAL-BURNT RECORD ACTS.

In a proceeding under the burnt record acts (2 Starr & C. St. c. 116) a jury trial is not contemplated by the statute, and is not indispensable.

Appeal from appellate court, First district.

McCagg & Culver, for appellant.

Edward Roby, for appellee.

SCHOLFIELD, J. The ground upon which the motion to vacate and set aside the decree of the twenty-fourth of June was based, was an oral statement, made in court by Culver, and by agreement of parties accepted as his affidavit, to the effect that he was not present at the hearing because of his actual and necessary engagement at the circuit court of the United States, at the same time, in arguing and resisting an application by the United States of America for an injunction against the Chicago Ball Club and the city of Chicago. The bill of exceptions shows that on the sixteenth of April, A. D. 1884, Culver being present in court at the time, the court set this cause down for hearing on Monday morning, June 23, A. D. 1884, the witnesses then to be examined and crossexamined in open court. At the time thus set for hearing, the petitioner announced to the court his readiness to proceed, but Culver was not present, and, on a representation being made by his clerk to the court. that he was then actually engaged in an argument of a motion for an injunction in the circuit court of the United States, the court announced that, inasmuch as the argument for an injunction in the United States court could not continue through the entire day, the case would then be passed, another case be taken up for trial, and this case be again called after the termination of that trial; and the court gave notice that, inasmuch as the judge could not watch the progress of trials in the United States circuit court, it would be necessary for some one representing Culver to be constantly present in court if any further postponement should be desired. After the noon recess, the law partner of Culver appeared in court, and represented to the court that, although Culver had not, up to that time, been actually engaged in the United States circuit court, yet that he had been employed to resist an application by the United States of America for an injunction against the Chicago Ball Club and the city of Chicago, which application he had been notified would be made on that day, and it was expected to be heard by the court as soon as the court should dispose of pending motions in other cases. The counsel for the petitioner then informed the court that he had been twice in the United States circuit court during the day, and left there at 15 minutes before 2; that then the judge was only about half through with his motions, and it was not probable that Culver's case would be reached. that afternoon; that the witnesses for the petitioner were all present; that having come fourteen miles, and one of them being a justice of the peace, having public duties to perform at his office, it would be very inconvenient and burdensome to keep them there for another day. The law partner of Culver informed the court that the case in the United States circuit court was more important to the clients of Culver than this case was to Culver, and that he would not be present in court during that afternoon. The court thereupon announced that the case would be taken up on the next morning, (Tuesday, June 24, A. D. 1884,) after concluding the trial that was then pending; and that if Culver should then