Lee v. Rowley, 4 Ill. App. 218 (1879)

July 16, 1879 · Illinois Appellate Court

4 Ill. App. 218

B. G. Lee, Adm’r, etc. v. Warren B. Rowley et al.

Master in chancery—Pees—Stating an account;—The limit of fees of a Master in Chancery for stating and reporting an account is ten dollars. The decree in this case is affirmed, except as to the amount allowed for Master’s fees, and the costs are divided between the parties.

Appeal from the Circuit Court of Will county; the Hon. Francis Goodspeed, Judge, presiding.

Opinion filed July 16, 1879.

Messrs. Hill & Dibbell, for apjiellant;

that no greater fee than ten dollars could be allowed, cited Rev. Stat. 1874, Chap. 53, § 20; City of Joliet v. Twohey, 1 Bradwell, 483; Harvey v. Harvey, 87 Ill. 57.

Messrs. Garnsey & Knox, for appellees;

that this court will only consider questions arising on exceptions to the Master’s report, cited Hurd v. Goodrich, 59 Ill. 450; Prince v. Cutler, 69 Ill. 267.

Where a contract is ambiguous, the court will consider the acts of the parties as indicating their intention: Leavers v. Cleary, 75 Ill. 349.

Damages not claimed in the pleading cannot he recovered: James v. McKernon, 5 Johns. 543; Underhill v. Van Cortlandt, 2 Johns. Ch. 335; Caldwell v. Seiber, 7 Paige, 489; Paige v. Greeley, 75 Ill. 400; Daniel’s Ch. Pr. 992.

As to the admissibility of account books as evidence: Boyer v. Sweet, 3 Scam. 120; Dodson v. Sears, 25 Ill. 513; Humphreys v. Spear, 15 Ill. 275; McCormick v. Elston, 16 Ill. 205; Waggeman v. Peters, 22 Ill. 42.

The court may allow such compensation to the Master as seems just: Rev. Stat. 1887, 497.

Per Curiam.

We have examined the record in this case carefully, and find that in approving the Master’s report and overruling exception 5 and 7 thereto (the overruling of which is assigned for error in this court), the court below committed no error. We think, after a full consideration of the entire case, that there is no error in the record, except as to that portion of the order of the Circuit Court in which there is allowed to J. L. O’Donnell, Special Master, and to Horace Weeks, Master, $25.00 each, for stating and reporting each an account.

The limit of the Master’s fee in such case is ten dollars, and the court below erred in allowing $25 to each Master for this service. Statute 1874, page 511, Sec. 20, item 6; Harvey et al. v. Harvey, ex’r, 87 Ill. 54.

We cannot then do otherwise than to affirm the decree in all respects, save as to $15 each of said Master’s allowance, which, as to such excess, the decree is reversed, and the costs we divide equally between these parties.

Ordered: that the decree in this cause be affirmed in all things except the order of the court below in allowing to J. L. O’Donnell, Special Master, twenty-five dollars, and also allowing Horace Weeks, Master, twenty-five dollars for services in making out Master’s report, which is affirmed only as to ten dollars each, and reversed as to $15 each..

It is further ordered, that each party to this suit, the appellant and appellees, pay one-half the costs of this court.