Ellison v. Peck

Brown, President. The first objection taken by the appellants to the decree is, that the report of the commissioner on which the decree is based, was not retained in the commissioner’s office ten days, nor filed with the clerk of the court thirty days before the case was heard. Code 1860, chap. 175, sec. 10. The decree shows the ease was heard on the said report, (to which there were no exceptions), and was argued by counsel. The appellants must therefore be taken to have waived all objection on that score at the hearing, and cannot [490] be beard in the appellate court to raise that objection for the first time. 2 Schoales & Lefroy, 711, Chamby vs. Lord Durany and others. By the contract sued on and made an exhibit in the bill, the Appellants were to pay the appellee ten per cent, on the amount gained to them, which was to be paid pro rata by each, as each should be gainer; and in the event of a compromise, appellee was to be paid a reasonable fee for his services. The report of the commissioner ascertains the amount due under the contract from the appellants to the appellee to be ten per cent on 24,800 dollars and 34 cents, with interest from the 24th day of May, 1860, to be paid severally and respectively, as follows, to-wit: by John A. Ellison ten per cent, on 9,165 dollars and 15 cents, by Archibald B. Ellison ten per cent, on 10,406 dollars and 57 cents, by IsTarcissa P. Ellison ten per cent, on 5,224 dollars and 62 cents, with-interest thereon respectively from the 24th day of May, 1860, as aforesaid. The contract is several and not joint; Ludlow vs. McCrea, and others, 1 Wend., 129; 1 Parsons on Contracts, 11, 14, 22, 24; Story’s Eq’ty PI., sections 447-8. The decree, however, is joint and not several, whereby each is made liable for all. . I think, therefore, it is erroneous and should be reversed for that cause, with costs to the appellants, and a decree entered for the appellee against the appellants in severalty, in conformity with said report, for the sums respectively therein found due from each of them, and for costs in that behalf. Maxwell, J., concurred. DECREE REVERSED.