Peabody v. Munson (211 Ill. 324, 1904)

Mr. Justice Boggs

delivered the opinion of the court:

The appellee held a promissory note made by one Conway W. Hillman for the sum of $2500, which fell due July 20, 1896, payable to the appellee, payment whereof was guaranteed by the appellant. The note was not paid by the maker. On July 22 the appellant executed his note in the sum of $2500, due in ninety days after its date, payable to the order of the appellee, and delivered the same to the appellee, which the appellee received in exchange for the note which he held against Hillman, the payment whereof the appellant had guaranteed. The appellee endorsed the Hillman note as follows : “Pay to the order of F. S. Peabody.—Chas. W. Mun-son.” The appellant did not pay the note so executed by him, and after its maturity the appellee brought this an action in assumpsit- against the appellant to recover the amount due him according to the tenor and effect of the note. The appellant pleaded the general issue and a plea that the note sued on was executed merely as an accommodation to the appellee and that the appellant derived no benefit or advantage therefrom and that there was no consideration, and also a plea of set-off. The plea of set-off alleged the insolvency of Hillman and the liability of the appellee as endorser of the note given by Hillman to appellee and which the appellee had delivered or surrendered to the appellant, as before mentioned, with the endorsement thereon, as before stated; and offered to set off such alleged liability of the appellee as endorser against the damages alleged in appellee’s declaration to have been sustained by appellee by reason of the failure of appellant to pay to appellee the note sued on. Issues were joined on the pleadings. It appears from the record that in pursuance of a stipulation of the parties the cause was referred to Edward A. Dicker to take the testimony and report the same to the court, together with his conclusions of law and fact. Subsequently the said Dicker submitted his report, as referee, of the testimony produced by the respective parties and his conclusions of law and fact deduced therefrom. The findings of the referee sustained the issues in behalf of the appellee. The appellant filed exceptions to such report, and the exceptions were heard by the court and determined adversely to his contentions. Judgment followed for the appellee in the amount of the principal and interest of the note sued upon. The appellant prosecuted an appeal to the Appellate Court for the First District, and from a judgment of affirmance entered in that court has perfected this appeal to this court.

The complaint that the trial court erred in treating the report of said Dicker as the report of a referee appointed and acting in pursuance of the provisions of section i of chapter 117 (3 Starr & Cur. Stat. 1896, p. 3363,) is groundless. In the order appointing Dicker he is described as one of the masters in chancery of the court, but his report recites he was appointed referee and that he acted in that capacity. The appellant filed exceptions to this report, in which he designated said Dicker as the referee. In these exceptions the appellant urged that the referee had reached erroneous conclusions of law and fact; that he failed to pass on questions of law submitted to him as “referee” for decision, but did not in anywise challenge the regularity of the appointment of the said Dicker as referee or question his authority to act in