Waugh v. Schlenk

Pillsbury, J. It appears from the certificate of evidence that the only testimony heard by the court was that reported by the special master, and that the decree was passed upon his report, the bill and exhibits and the default of the defendant. The report of the master shows that after the dissolution of the firm the parties referred their partnership accounts to arbitrators, and the accounts were by them adjusted, except the question of the rental of the shop and premises, and as to that matter no agreement was reached, and by mutual agreement it was reserved from the effect of the settlement. The only testimony bearing upon the question of the rent is . that of the complainant. "When asked to state what the understanding was as to the rent during the partnership he answered : “That during the partnership I was to pay $100 rent to the partnership. When the factory closed up, the nail mill having stopped, I told Mr. Waugh that I would quit, for the reason that I could not pay the $100 rent while the factory was stopped. Thereupon Mr. Waugh agreed with me that during the stoppage of the factory I was to pay no rent. In consideration of the release of the rent during the stoppage, I was to act as watchman of the property and keep the same in order, and also to work on a building which was being put up, for all of which I was to receive no pay except the release of the rent. I am a wood worker and did carpenter work on said building. “ I acted as watchman for the property, kept the same in order, fed the stock of the firm during the stoppage of the factory, for all of which services I have never received any pay. In the arbitration the whole rents were charged to me by Mr. Waugh, and I have never received any part thereof, and I am now suing to recover my part of said partnership rents during said stoppage. The factory was stopped nine months and ten days, for which I am entitled to §50 per month, being one-half of the total monthly rental due the partnership and retained by said Mr. Waugh. The amount of my share of the rents during the stoppage being §166.67, was retained by Mr. Waugh and is now due and unpaid, and has been due since the 5th day of January, 1878.” It is seen from this testimony of the complainant that if the account should be taken upon the basis of the contract of co-partnership there was nothing owing to him by the defendant. The defendant retained no more for the rent than he was entitled to under the written contract, and it is only by virtue of a subsequent verbal agreement that the complainant has any ground for a decree in his favor. There is nothing in the hill that would- apprise the defendant that the complainant would rely upon any other contract than the one attached thereto as an exhibit; indeed, the bill limits the right of the.complainant to have the partnership matter settled and adjusted “as provided in and hv the said articles of co-partnership.” If the hill had been answered, denying any indebtedness as charged, it is not perceived how a decree could pass for a specified amount, upon the present proof, without an amendment to the bill. The bill is not of. that character that authorizes the court to enter a final decree pro confesso for substantial relief, as under its allegations it is necessary to take proofs to determine the state of accounts between the parties. A default of the defendant in a bill in chancery admits the facts properly alleged in the bill and nothing more. Thompson v. Dearborn, 107 Ill. 87. It is said in Frye’s case, 5 Gilm. 336, that the defendant, by failing to answer, admits only such allegations as are contained in the bill, and the complainants would have been permitted to prove had an answer been filed; and as the complainants would not have been allowed to prove any substantive facts not alleged in the bill, in case an answer had been put in, they can not insist that any such are admitted for want of an answer. It is noticed that in this case all the evidence is preserved in the record, and if it does not authorize a decree for the complainant under his bill, it is clear that the defendant can have the same advantage upon error as though a like decree had been rendered upon answer denying the allegations of . the bill. The proof here shows a case not only variant from the averments in the bill, but directly in opposition thereto, as from it it is clear that nothing was due the complainant upon the contract set out and relied upon in the bill as a basis of recovery; and the holding of the court in Parkhurst v. Race, 100 Ill. 558, that “ it is error for the court to find a fact not alleged in the pleadings of the parties, but stated directly the reverse and against the entire evidence preserved in the record,” would seem to be applicable to the record before ns. It is a rule of practice so familiar to every lawyer, that it requires no citation of authorities in its support, that the allegations and proofs must correspond and mutually support each other, and although a .good case may appear in the evidence^ yet if it be substantially variant from that stated in the bill, relief can not be granted. And where the facts found are preserved in the record, either by recitals in the decree or by certificate of evidence, this rule will ap ply in cases where a default has been entered as well as upon a hearing upon issues formed by answer. Objection is also taken to the action of the court in vacating the reference to the regular master and appointing a special one to take testimony. It does not appear from the record why this change was made, and in ‘ such case we must presume the court had sufficient reason for its action. Farnsworth v. Strasler, 12 Ill. 482. It is also insisted that the stipulation contained in the articles of co-partnership that any dispute between the parties should be settled by arbitration, deprives a court of equity of its jurisdiction. We do not so understand the law. Ho consent of the parties can confer upon a court the power to adjudicate upon the rights of parties where the law does not confer it; neither can the agreement of parties deprive the court of a jurisdiction conferred by the law when either of the parties seeks its aid to determine his rights. Courts can not allow their jurisdiction to be thus destroyed, and if in invoking it the complainant violates his contract, the defendant will be left to his remedy in some appropriate proceeding, but will not be allowed to plead such contract in bar of the jurisdiction of thp court. For the reason stated, that the proof does not sustain the hill, the decree will be reversed and the cause remanded with leave to complainant to amend his bill if he shall be so advised, and the defendant to answer, and for further proceedings. Decree reversed.