Van Housen v. Copeland

Mr. Presiding Justice Windes delivered the opinion of the court. The abstract of the record does not comply with the rule of this court requiring the appealing party to furnish a complete abstract or abridgment of the record. The first 714 pages of the so-called abstract filed is of 875 pages of the record, and is substantially a printed copy of the record instead of an abstract; 411 pages of the record are not abstracted; there is no reference even in the abstract to these pages, though they contain a great mass of documentary evidence, and twenty-five pages of the testimony of witnesses. The failure to make a sufficient abstract is sufficient reason for affirming the decree. Gibler v. City of Mattoon, 167 Ill. 18; City of Chicago v. Fitzgerald, 75 Ill. App. 176. We have, however, considered the merits, so far as we have been able to do so in view of the imperfect abstract. Appellant’s counsel claims there are many discrepancies in the accounts which have not been fully digested by the special commissioner, but has not been sufficiently lucid in his arguments to enable us to detect any errors of the commissioner in that regard. The only matters pointed out by counsel are as to the cost of the buildings, the failure of the commissioner to establish the identity of vouchers and bills presented, and to determine what checks represented receipted bills in whole or in part; that he wrongfully credited Copeland & McSorley $2,500 for their services, and that the commissioner erred in computing interest on the amount found to be in appellant’s hands, while he did not charge appellees with interest on the amount found to be in their hands. The further contention is made that the change in the agreement of February 28,1888, if made, was void, as being without consideration and because it is within the statute of frauds. That the change was made, is established by the finding of the commissioner, approved by the court, which we can not say is manifestly against the weight of the evidence and should not be disturbed. Miltimore v. Ferry, 171 Ill. 219. The statute of frauds has no application in this case. The property, though lands, is in equity considered personalty. Morrill v. Colehour, 82 Ill. 618; Speyer v. Des Jardins, 144 Ill. 648; Allison v. Perry, 130 Ill. 13; Roby v. Colehour, 135 Ill. 300. In the last case the court say, “ The law does not require that the agreement of a copartnership shall be in writing to enable the firm to purchase lands. Where a partnership is constituted under a parol agreement, it may be shown that its property consists of land, and it may own, possess and enjoy the same;” and held that though the title to the land was held by two partners, the third could not, under plea of the statute of frauds, defeat a recovery on notes given by him to his partners for his share of the purchase price of the land. The agreement of February 28,1888, did not dissolve the partnership—only provided for different shares in the partnership lands from the original agreement, and the subsequent agreement again changed the manner of division between the partners. The $1,000 to be paid Yan Housen was a sufficient consideration. In the Speyer case, supra, the court say: “ That an agreement for a partnership for the purpose of dealing and trading in lands for profit, is not within the statute, and that the fact of the existence of the partnership and the extent of each party’s interest may be shown by parol, is now quite generally accepted as the established doctrine ” (citing numerous cases). As to the claim that the commissioner failed to establish the identity of vouchers and bills presented, and to determine what checks represented receipted bills in whole or in part, counsel has failed in his argument to point out any particulars in this respect wherein the commissioner erred, ,and we can not be expected to go through the details of a great mass of documentary evidence, not abstracted, in order to find any such alleged errors of the commissioner. The finding of the court and master that it was agreed that Copeland & McSórley should be paid a reasonable compensation for their services in constructing the buildings, and that their reasonable compensation "was agreed to be $2,500, and was not to be charged against the buildings, but paid by Yan Housen and W. L. Copeland, is not against the manifest weight of the evidence, and the same is true as to the finding that Yan Housen was to be allowed $1,000 for his services, which was not to be charged against the buildings, but to complainants. There is error in the commissioner’s computation of interest. Appellant was allowed interest at seven per cent per annum on his advances made for the benefit of the popartnership prior to January 1,1889, up to the time he was reimbursed for such advances from the proceeds of the sale of the property March 14,1890, which we think was proper. The commissioner found that at this latter date there was in appellant’s hands, over and above all his advances and interest, partnership funds amounting to $3,506.43, of which amount he was entitled for his services to $1,000, and should be charged with interest at five per cent per annum on the balance, $2,506.43, up to the date of the report. The commissioner also found that there was in the hands of Copeland & Mc-Sorley on March 14,1890, the sum of $3,116.76 of partnership funds, of which amount they were entitled to $2,500 for their services, but he did not charge them with interest on the balance, $616.76, as he did appellant. This was an error of $53.97 as to the amounts found due the appellees, respectively. The amount decreed to W. L. Copeland is too small by $53.97, and the amounts decreed to F. W. Copeland and McSorlejr are each too large by $53.97. Inasmuch as W. L. Copeland does not complain of the decree in his favor, the error in favor of the other two appellees only will be corrected by a decree in this court affirming the decree of the Superior Court, except as to the amounts to be paid to each of. the appellees F. W. Copeland and McSorley, which shall be made $1,179.43, instead of $1,233.40, to each of them, making the total amount to be paid by appellant $2,650.64, instead of $2,758.57, as directed by the Superior Court. Because of the imperfect abstract made by appellant, he should pay all costs, and it is so decreed. Affirmed in part and decree in this court.