Mr. Justice Baker
delivered the opinion of the Court:
It may be well to state in the outset, by way of explanation, that in February, 1884, the appellant Garrity, L. M. Hamburger and Max Hamburger commenced a co-partnership business, under the firm name of Hamburger Bros. & Co.; that the partnership agreement made provision" for the probable organization of a stock company, to be called “Hamburger Bros. Co.,” and the transfer of the capital and business of the firm to it; that the contemplated corporation was in fact formed and the firm merged in it; that afterwards the name of the corporation was changed to the “Hamburger & Garrity Co.,” and subsequently again changed to the “Hamburger Co.,” and that in February, 1886, said Garrity sold all his interest in the corporation and the business to Jonas Hamburger.
This suit was originally an action in assumpsit, brought by the Hamburger Co., appellee, against Garrity, the appellant. The declaration contained the common counts and one special count. The general issue, a plea of set-off, and other pleas, were interposed. Issues were formed, and the cause submitted to a jury for trial, and a part of the evidence introduced. The record shows that thereupon there was an imparlancebetween the court and counsel for both parties, in which counsel for appellant stated, among other things, that there would not be the slightest objection to an auditor taking the evidence that had already been given, and that then the court made and entered the following order in the case:
“It appearing to the court, from the evidence heard, that this cause involves long book accounts, and involves the casting of an account between the plaintiff and defendant, the court, of its own motion, orders that the jury be discharged; and the defendant making no objection to the accounting, it is ordered that the defendant do account with the plaintiff, and that the plaintiff do account with the defendant. And it is further ordered, that Penoyer L. Sherman be appointed auditor in this case; that he proceed immediately to hear the evidence in this cause, and that he report on the evidence with all due speed to this court, together with his conclusions thereon, finding:
“First—What were the terms of sale of the branch store from Garrity to the Hamburger & Garrity Co.
“Second—What amount, if any, is due the plaintiff, growing out of said sale and the representations made thereat.
“ Third—What amount, if any, is due the plaintiff for moneys taken in at the branch store, and either not turned over to the plaintiff, or misappropriated, or used by Garrity for purposes foreign to the objects and business of the corporation.
“Fourth—What sum, if any, was due from the Hamburger & Garrity Co. to defendant Garrity at the time of his sale to Jonas Hamburger, in February, 1886.
“Fifth—What sum, if any, was due from the defendant Garrity to the Hamburger & Garrity Co. at the date of said sale.
“Sixth—What interest Garrity had in the Hamburger & Garrity Co. at the date of said sale to Jonas Hamburger.”
It thus affirmatively appears that appellant made no objection and took no exception to the action of the court in the premises. It must be presumed that he acquiesced in and consented to the discharge of the jury, to the interlocutory order requiring each party to account with the other, to the appointment of the auditor, and to the questions to be submitted to such auditor.
The above order was made and the jury discharged on October 18, 1888. On October 30, following, the appellant moved the court to set aside the order of reference to the auditor, which was denied, but he took no exception to the ruling of the court thereon; and on the same day leave was given the appellee corporation to amend all papers and proceedings herein by changing the form of action to account, and to file an additional count to its declaration nunc pro tunc as of October 18, 1888, and a count in action of account on book account was forthwith so filed. Subsequently, and on the same day, the parties met before the auditor, and appellant made objections to proceeding further before such auditor, because the pleadings in the case were not made up; because there was no issue joined upon the declaration for an accounting ; because there was no jurisdiction in the auditor to pass upon the questions of fact submitted to him by the court; because there had been no interlocutory judgment rendered that the defendant do account in the case; because no opportunity had been given to file a plea to the declaration filed nunc pro tunc; and because there was a misjoinder of actions. The auditor directed the objections to be entered, but made no ruling thereon, and then proceeded to hear the evidence and examine and adjust the accounts between the parties. The auditor then made a final report, showing his findings upon the six propositions referred to him by the order of the' court. The appellant interposed, before the auditor, some nine exceptions, which were overruled by the auditor, and upon said exceptions being renewed before the court, upon the •coming in of the final report, they were again overruled. These exceptions probably covered, in substance, the above mentioned objections made at the first meeting before the auditor, and also questioned the right of the auditor to make findings upon disputed questions of fact, and claimed that his findings' were not justified by the evidence, and that he committed errors in the reception and exclusion of testimony.
The statutes of this State in regard to actions of account have extended the right of action, enlarged the jurisdiction of the courts, and increased the powers of auditors. (Rev. Stat. 1874, chap. 2.) Under the statute (sec. 2) the action of account may be sustained on book account.
Section 6 of the act in question is as follows: “If the defendant in an action of account shall plead in defense any plea, which being true he ought not to account, the issue thereon may be tried by a jury; and if the verdict be found against him, or if such defendant shall not appear, or appearing shall confess that he ought to account with the plaintiff, the court shall render judgment that he do account.”
When appellant acquiesced in the conclusion of the court that the case involved long book accounts, and the casting of an account between himself and the appellee, and “made no objection to an accounting,” the case, in substance, did not stand otherwise than it would if he had confessed that “he ought to account.” When the determination is reached by verdict, confession or otherwise, that a defendant “ought to account,” then the interlocutory judgment “that he do account” follows logically and as a matter of course. The order that was entered by the court, “it is ordered that the defendant do account with the plaintiff, and that plaintiff do account with the defendant,” was virtually a judgment quod computet, and it determined nothing beyond a liability to account. Lee v. Abrams, 12 Ill. 111.
The court had jurisdiction of the persons of both the plaintiff and the defendant, and jurisdiction of the subject matter of the controversy between them, and this regardless of the question whether the declaration was in assumpsit or in an action of account. It had ample authority to allow the amendments changing the form of action, and to permit the filing of a count in account.
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Mr. Justice Baker
delivered the opinion of the Court:
It may be well to state in the outset, by way of explanation, that in February, 1884, the appellant Garrity, L. M. Hamburger and Max Hamburger commenced a co-partnership business, under the firm name of Hamburger Bros. & Co.; that the partnership agreement made provision" for the probable organization of a stock company, to be called “Hamburger Bros. Co.,” and the transfer of the capital and business of the firm to it; that the contemplated corporation was in fact formed and the firm merged in it; that afterwards the name of the corporation was changed to the “Hamburger & Garrity Co.,” and subsequently again changed to the “Hamburger Co.,” and that in February, 1886, said Garrity sold all his interest in the corporation and the business to Jonas Hamburger.
This suit was originally an action in assumpsit, brought by the Hamburger Co., appellee, against Garrity, the appellant. The declaration contained the common counts and one special count. The general issue, a plea of set-off, and other pleas, were interposed. Issues were formed, and the cause submitted to a jury for trial, and a part of the evidence introduced. The record shows that thereupon there was an imparlancebetween the court and counsel for both parties, in which counsel for appellant stated, among other things, that there would not be the slightest objection to an auditor taking the evidence that had already been given, and that then the court made and entered the following order in the case:
“It appearing to the court, from the evidence heard, that this cause involves long book accounts, and involves the casting of an account between the plaintiff and defendant, the court, of its own motion, orders that the jury be discharged; and the defendant making no objection to the accounting, it is ordered that the defendant do account with the plaintiff, and that the plaintiff do account with the defendant. And it is further ordered, that Penoyer L. Sherman be appointed auditor in this case; that he proceed immediately to hear the evidence in this cause, and that he report on the evidence with all due speed to this court, together with his conclusions thereon, finding:
“First—What were the terms of sale of the branch store from Garrity to the Hamburger & Garrity Co.
“Second—What amount, if any, is due the plaintiff, growing out of said sale and the representations made thereat.
“ Third—What amount, if any, is due the plaintiff for moneys taken in at the branch store, and either not turned over to the plaintiff, or misappropriated, or used by Garrity for purposes foreign to the objects and business of the corporation.
“Fourth—What sum, if any, was due from the Hamburger & Garrity Co. to defendant Garrity at the time of his sale to Jonas Hamburger, in February, 1886.
“Fifth—What sum, if any, was due from the defendant Garrity to the Hamburger & Garrity Co. at the date of said sale.
“Sixth—What interest Garrity had in the Hamburger & Garrity Co. at the date of said sale to Jonas Hamburger.”
It thus affirmatively appears that appellant made no objection and took no exception to the action of the court in the premises. It must be presumed that he acquiesced in and consented to the discharge of the jury, to the interlocutory order requiring each party to account with the other, to the appointment of the auditor, and to the questions to be submitted to such auditor.
The above order was made and the jury discharged on October 18, 1888. On October 30, following, the appellant moved the court to set aside the order of reference to the auditor, which was denied, but he took no exception to the ruling of the court thereon; and on the same day leave was given the appellee corporation to amend all papers and proceedings herein by changing the form of action to account, and to file an additional count to its declaration nunc pro tunc as of October 18, 1888, and a count in action of account on book account was forthwith so filed. Subsequently, and on the same day, the parties met before the auditor, and appellant made objections to proceeding further before such auditor, because the pleadings in the case were not made up; because there was no issue joined upon the declaration for an accounting ; because there was no jurisdiction in the auditor to pass upon the questions of fact submitted to him by the court; because there had been no interlocutory judgment rendered that the defendant do account in the case; because no opportunity had been given to file a plea to the declaration filed nunc pro tunc; and because there was a misjoinder of actions. The auditor directed the objections to be entered, but made no ruling thereon, and then proceeded to hear the evidence and examine and adjust the accounts between the parties. The auditor then made a final report, showing his findings upon the six propositions referred to him by the order of the' court. The appellant interposed, before the auditor, some nine exceptions, which were overruled by the auditor, and upon said exceptions being renewed before the court, upon the •coming in of the final report, they were again overruled. These exceptions probably covered, in substance, the above mentioned objections made at the first meeting before the auditor, and also questioned the right of the auditor to make findings upon disputed questions of fact, and claimed that his findings' were not justified by the evidence, and that he committed errors in the reception and exclusion of testimony.
The statutes of this State in regard to actions of account have extended the right of action, enlarged the jurisdiction of the courts, and increased the powers of auditors. (Rev. Stat. 1874, chap. 2.) Under the statute (sec. 2) the action of account may be sustained on book account.
Section 6 of the act in question is as follows: “If the defendant in an action of account shall plead in defense any plea, which being true he ought not to account, the issue thereon may be tried by a jury; and if the verdict be found against him, or if such defendant shall not appear, or appearing shall confess that he ought to account with the plaintiff, the court shall render judgment that he do account.”
When appellant acquiesced in the conclusion of the court that the case involved long book accounts, and the casting of an account between himself and the appellee, and “made no objection to an accounting,” the case, in substance, did not stand otherwise than it would if he had confessed that “he ought to account.” When the determination is reached by verdict, confession or otherwise, that a defendant “ought to account,” then the interlocutory judgment “that he do account” follows logically and as a matter of course. The order that was entered by the court, “it is ordered that the defendant do account with the plaintiff, and that plaintiff do account with the defendant,” was virtually a judgment quod computet, and it determined nothing beyond a liability to account. Lee v. Abrams, 12 Ill. 111.
The court had jurisdiction of the persons of both the plaintiff and the defendant, and jurisdiction of the subject matter of the controversy between them, and this regardless of the question whether the declaration was in assumpsit or in an action of account. It had ample authority to allow the amendments changing the form of action, and to permit the filing of a count in account. (Statute of Amendments and Jeofails, sec. 1; Practice act, Rev. Stat. chap. 110, sec. 24.) It was a matter of sound discretion with the court to allow the new count to be filed nunc pro tunc as of October 18, 1888, and when filed it related back and took effect as of that date. The procedure adopted on October 18 for the settlement of the litigation pending between the parties was that provided by law for actions of account, and the effect of the amendments and of the filing of a declaration in account nunc pro tune was to bring about and preserve a correspondence between the pleadings in the case and the form of. procedure followed therein.
It is urged that the result of filing a count in account was to produce a misjoinder of the action of account with assumpsit, and that there being such misjoinder of counts, the declaration is bad in arrest of judgment or upon error. The true view to take of the matter is, that the filing of the declaration in account, taken in connection with the leave to amend, and judgment to account, and order appointing an auditor, was an abandonment of the counts in assumpsit, and an elimination of them from the suit, and a substitution of the declaration in account in their place and stead. When the declaration in account was filed, there was no occasion or place for interposing any plea thereto or making up any issue thereon. In such action, the only plea in bar which can be interposed before the court is one which shows that the defendant is not then liable to account to the plaintiff. (Lee v. Abrams, supra.) Here, the fact that the defendant was so liable to account stood already admitted upon the record. An interlocutory judgment quod computet had already been rendered, and the liability to account being conceded, it was the only judgment that could be entered upon a declaration in account prior to the coming in of the auditor’s report, and the final judgment then entered would be based on the auditor’s report, and only indirectly upon the declaration. Section 16 of the statute under examination provides, in express terms, “no formal pleading shall be allowed to be filed before the auditors who may be appointed to take and state an account between the parties in an action of account.” Long prior to the enactment of this section this court held, in Lee v. Abrams, supra, that the better practice was for the parties not to make up formal pleadings in stating their accounts before the auditor. In this suit, the judgment quod computet was that each party account with the other, and so, without any formal pleadings in regard to the particular matters of which an account was to be taken, defendant could get the benefit, before the auditor, of any items to which he was entitled, whether by way of set-off, payment, or otherwise, and could deny any items claimed by the plaintiff; and so, appellant can take nothing by his objections that the pleadings in the cause were not made up, that no issue was joined on the declaration in account, and that he had no opportunity to plead thereto.
A point is made, that it does not appear from the record, that the auditor was sworn. The statute provides that the auditor, before he enters upon his duties, shall be'sworn faithfully and impartially to take and state the account between the parties, and make report to the court. This objection was not made either in the Superior Court or before the auditor. In this action at law, and in the absence of any showing otherwise, it must be presumed that the statutory requirement that the auditor should take a prescribed oath was duly complied with. Even if there was no such presumption, yet the conduct of appellant in making no objection, either before the auditor or in the trial court, that the oath had not been taken, and in introducing testimony before the auditor, would be a waiver of that defect in the proceedings. Pardridge et al. v. Ryan, 134 Ill. 247.
• It is claimed that the order of reference to the auditor is radically wrong, since it requires disputed questions of fact and of law to be passed upon and decided by such auditor; that the order, in its terms, is a direct invasion of the right to have questions of fact in actions at common law tried by a jury, and that there was no authority in the_ auditor to decide contested facts. As we have heretofore seen, it must be presumed, from the record of the proceedings had in the premises, that the appellant acquiesced in and consented to the discharge of the jury, and the reference to the auditor, and the questions to be submitted to such auditor. The statute gives to auditors authority to administer oaths and affirmations to witnesses, and to take the testimony of witnesses, and to examine either or all of the parties on oath, and to compel the attendance of witnesses and production of books and papers, and to liquidate and adjust the accounts, and state the balance, and to whom due. It is manifest that the act contemplates that auditors shall have the power to hear evidence and pass upon questions of fact. It must be held, that when appellant acquiesced in and consented to the reference and the questions to be submitted to the auditor, it was, in substance, a waiver of the right of trial by jury, in respect to the matters of fact involved in such questions. Even if we should assume that such acquiescence and assent were not a waiver of the constitutional right of a trial by jury of any issue of fact that might arise in the hearing before the auditor, yet we think that if any issue of fact so arose upon which appellant desired to take the verdict of a jury, it was incumbent upon him, prior to the introduction of the evidence in regard thereto and the findings of the auditor thereon, to claim such right of jury trial in respect to the particular matter, and ask to have such question of fact certified by the auditor to the court, and there decided by a jury. Appellant not.having thus claimed any jury issues before the auditor pending the hearing and prior to the time the auditor made his findings, it was too late, after the auditor had announced his findings and made his final report, to file exceptions and insist that there were questions of fact involved in the case which should have been passed upon by a jury. To allow appellant so to do would be to permit him to lie by and avail himself of the findings of the auditor if they were in his favor, and object to the same and insist upon another and a jury trial if they were against him.
The result of the auditor’s examination of the accounts between the parties was the finding of a balance of $1138.29 due the appellee from appellant,.and for that amount judgment was rendered by the Superior Court. Questions of fact are quite elaborately discussed in the briefs and arguments filed by counsel, but by the judgment of affirmance in the Appellate Court all questions of fact are, in this action at law,eliminated from the record. The settled doctrine is, that in an action such as this the judgment of the Appellate Court is final both in respect to the principal and ultimate facts upon which the right of recovery or ground of defense is claimed or based, and in respect to the evidentiary and subordinate facts which are mere evidence of such principal facts. Hamburg-American Packet Co. v. Gattman, 127 Ill. 598, and cases cited.
One of the claims made by appellant upon the accounting was, that he was entitled to draw from the appellee corporation a salary of $5000 per year, from April 24, 1884, until February 19, 1886. The report of the auditor in that behalf was, that the claim for salary was not sustained, and the report in that regard was approved by the nisi prius court. It appears from the bill of exceptions that one of the articles of the co-partnership agreement originally entered into by Garrity and two of the Hamburgers, provided that Garrity should have the right to draw out of the business $5000 a year, and each of said Hamburgers $12,000 a year; that another of the articles provided that neither party to the agreement should be entitled to any salary for services rendered; and that still another article made provision that “this memorandum shall be the basis for by-laws for such corporation,”—meaning the corporation proposed to be formed. The bill of exceptions also shows that a by-law of the corporation was read in evidence, as follows: “Said Hamburger and Garrity may draw and receive from said company as follows: P. L. Garrity, $5000, etc., per year; Max Hamburger, $12,000 per year/’ etc. The bill of exceptions also shows that the appellee offered in evidence certain other specified sections of the by-laws of the corporation, and that the same were admitted in evidence ; but said last mentioned by-laws are not to be found copied into the transcript of the record.
The bill of exceptions states, at the close of the testimony: “This was and is all the testimony offered or received upon the trial of said cause by either party.” The Appellate Court, in passing upon this matter, say: “The record shows that appellees put in evidence six other by-laws, but they are not •copied. It has always been the law of the State, that if a bill of exceptions did not state that it contained all the evidence, a court of review would presume that the decision of the lower court which could be was justified by evidence not shown, if that shown was not sufficient. (Rogers v. Hall, 3 Scam. 5.) It is very probable that some one of the omitted by-laws negatives the claim for salary in pursuance of the provision of the partnership agreement. ” It is urged by appellant that the Appellate Court, in thus holding, erred as to a matter of law.
The bill of exceptions is somewhat ambiguous in its terms. The expression, “this was and is all the testimony offered or received,” etc., is broad enough in its scope to include the ■other by-laws which another portion of the bill of exceptions states were both offered and admitted in evidence. All the testimony that is either set out or mentioned in the prior portions of the bill of exceptions, including the designated by-laws, is the antecedent of the pronoun “this.” The language of this court in the case cited by the Appellate Court (Rogers v. Hall, 3 Scam. 5,) is here much in point. It was there said: “The bill of exceptions is not to be considered as a writing of the judge, but is to be esteemed as a pleading of the party alleging the exception, and if liable to the charge of ambiguity, uncertainty or omission, it ought, like any other pleading, to be construed most strongly against the party who prepared it. The appellant must be responsible for all uncertainty and omission in his bill of exceptions, because he could and ought to have written out the evidence truly and according to the fact. * * * If it now fails to appear that injustice has been done, it is the fault of the plaintiff himself, in not stating, as he might have done, the whole of the testimony in his bill of exceptions. The party guilty of the omission must be the sufferer, and not the opposite party.” We think the Appellate Court took a substantially correct view of the matter, since it affirmatively appeared, from the bill of exceptions, that evidence which probably bore on the question in issue was introduced at the hearing but was not copied into the bill of exceptions.
Some irregularities appear upon the face of the record, but we find no manifest error therein.
The judgment of the Appellate Court is therefore affirmed.
Judgment affirmed.