Appeal from the Circuit Court of Cook County; the Hon. ALBERT
E. HALLETT, Judge, presiding. Affirmed.
MR. JUSTICE DEMPSEY DELIVERED THE OPINION OF THE COURT.
The defendants, Thomas Higgins and his brothers and sisters, appeal from a decree of the Circuit Court which found that a partnership had existed between their deceased father, James M. Higgins, and their uncle, William P. Higgins, the plaintiff, and which further found that the partnership was the owner, in equity, of ten lots at the corner of 31st Place and Wolcott Street in Chicago which comprised the partnership business premises. An appeal was taken to the Supreme Court which transferred the cause here.
In 1951 William P. Higgins filed a complaint for partition of five of the ten lots. As to parcel I, consisting of three lots, he alleged ownership of a one-half interest by descent from his father, J.M. Higgins, who he alleged acquired title thereto under a deed executed in 1893 and recorded in 1906. As to parcel II, consisting of two lots, he alleged ownership of a one-half interest under a deed to himself and his brother, James M. Higgins, which was executed and recorded in 1910. The defendants answered, admitting William's interest in parcel II, but denying his interest in parcel I on the theory that the J.M. Higgins who acquired title under the 1893 deed was their father and not their grandfather. Thereafter, in 1954, William filed an amended complaint for dissolution of the partnership, an accounting, and for partition not only of the five lots involved in his original complaint, but also of five additional lots across the street which were designated as parcels III and IV. He alleged that he and his brother James formed a partnership in 1898 under the name of Higgins Bros. to carry on a cooperage business originated by their father in 1885 and that when the partnership was formed, his father, J.M. Higgins, made a gift of parcel I to the partnership. The partnership was alleged to have continued until 1935 when James died. He alleged that parcels III and IV were purchased with partnership funds for use in the partnership business, but that title thereto was taken in the name of his brother only under deeds recorded in 1916 and 1919. The defendants denied these allegations and set up the statute of limitations and laches as defenses.
Hearings before a master in chancery commenced in 1955. 7,477 pages of testimony were taken and 633 exhibits were received. The master's report found that a partnership did exist between William and James which was dissolved in 1935 upon the death of James; that all of the lots were the property of the partnership; that the plaintiff, as surviving partner, had the duty to wind up the affairs of the partnership and liquidate the ten lots, distributing the proceeds one-half to himself and one-half to the defendants as the heirs of James. The master further found that the plaintiff was barred from an accounting of the partnership affairs by reason of laches. The decree of the chancellor incorporated all of the findings of fact made by the master and approved and confirmed his findings of fact and conclusions of law, and relief was decreed accordingly.
The appellants' first contention is that evidence incompetent by reason of the Evidence Act (Ill Rev Stats, c 51, §§ 2 and 3 (1955)) was received and considered by the master. It appears that shortly after the plaintiff had commenced testifying on preliminary matters, the defendants objected to his competency as a witness. All of the plaintiff's subsequent testimony was heard subject to the objection, a practice which the master found approved by Wylie v. Bushnell, 277 Ill. 484, 115 N.E. 618 (1917) and Peck v. Peck, 16 Ill.2d 268, 157 N.E.2d 249 (1959). In arriving at his findings of fact, the master stated that he excluded from consideration all of the testimony of the plaintiff except (1) testimony received prior to the objection; (2) testimony relating to the fact of discovery of documents, books and records of the partnership subsequent to the death of his brother; (3) testimony in identification of these papers and (4) testimony relating to the transaction of a mortgage, which was considered for the limited purpose of determining its validity as a charge against five of the lots. The master concluded that the competent evidence in the record fully supported his findings of fact.
There is no question that the master properly considered the testimony received prior to the objection and that which related to events occurring after the death of James. The propriety of the testimony as to the mortgage and the conclusion of the master and chancellor that the mortgage was invalid have not been appealed and are not involved here. The appellants contend, however, that the master permitted the plaintiff to testify (while he was identifying the documents discovered) concerning events, conversations and the circumstances surrounding the documents in violation of the statute. They do not argue that the identification of the documents by the plaintiff was improper.
[2-4] We agree with the appellants in their contention. The testimony of the plaintiff considered by the master should have been limited to preliminary proof necessary to establish the authenticity of the documentary evidence. Cf. Rude v. Seibert, 22 Ill. App.2d 477, 161 N.E.2d 39 (1959); Alling v. Brazee, 27 Ill. App. 595 (1888). But the mere presence of incompetent testimony in the record does not constitute reversible error, if there is sufficient competent evidence to support the master's conclusion. Miller v. Ousley, 334 Ill. 183, 165 N.E. 629 (1929). We will, therefore, consider only the competent evidence in the record, applying thereto the rule that the findings of the master, when approved by the chancellor, will not be disturbed unless they are against the manifest weight of the evidence. Gallagher v. Girote, 23 Ill.2d 170, 177 N.E.2d 103 (1961); Barker v. Barker, 36 Ill. App.2d 20, 183 N.E.2d 518 (1962); Pedi v. Jagiencarz, 25 Ill. App.2d 467, 167 N.E.2d 447 (1960).
The plaintiff's evidence mainly consists of the retained documents and records of the Higgins Bros. business, the examination of adverse witnesses and the facts elicited on cross-examination of the defendants' witnesses. This evidence discloses that J.M. Higgins, the father of the plaintiff and the grandfather of the defendants, was a cooper. The earliest retained record is a business card describing him as a dealer (singular) in secondhand barrels and coopers' stock on 34th Street in Chicago. The business moved about 1893 to the premises on 31st Place which comprises parcel I of the real estate involved here, and a business card of that era shows this place of business, carries the telephone number Yards 795 and states that the business was established in 1885. In 1885 William was 11 years old and his brother James was 17.
In 1893 J.M. Higgins moved his residence to the 31st Place address and William moved with him. James moved to this address with his wife when the cooperage shop on the premises was completed. William resided there until his marriage, but James continued to live there until his death and his residence was also the office of the business.
J.M. Higgins died in 1903 but prior to his death there had been a change in the structure of the business. A bankbook of 1902 relates to the account of Higgins Bros. with the address of the firm being the 31st Place address. The earliest business card of Higgins Bros. carries the same telephone number as that of J.M. Higgins at the same address, describes their business as wholesale dealers (plural) and bears the statement that the business was founded in 1885. From these facts, the master concluded that Higgins Bros. as a business entity succeeded to the business of J.M. Higgins prior to his death.
As to the relationship of the plaintiff and his brother in the business of Higgins Bros., documents in evidence disclose: (1) a lease of premises on Archer Avenue to William and James (these premises were described on a business card of Higgins Bros. as one of the addresses of the business); (2) a statement to their bank, signed by William and James, opening an account under the name of Higgins Bros., wherein they described themselves as the only members of the firm or copartnership; (3) various bank loans where the brothers were joint obligors, correspondence concerning the loans addressed to both brothers, and a charge to the account of Higgins Bros. applied as a credit against one of their joint notes; (4) expired insurance policies on the buildings, horses and automobiles of Higgins Bros., and billings thereon to James and William, including in some of them reference to the brothers doing business as Higgins Bros.; (5) billings by the telephone company to James and William for the firm telephone; (6) a lawsuit against both brothers doing business as Higgins Bros.; (7) another suit where James was sued individually as doing business as Higgins Bros. (as to this suit there was a receipt from the creditor to William evidencing part payment of the claim) and (8) although most of the books of Higgins Bros. had been destroyed, one entry in the handwriting of the firm bookkeeper established an equal sharing of profits for the year 1918 for income tax purposes.
There is, of course, evidence to the contrary. There are numerous records from the years immediately prior to the death of James which tend to show that he carried on business individually under the name of Higgins Bros. There is the testimony of witnesses, chiefly employees of Higgins Bros. and dealers in the same line of business, who testified in the main that William was an employee and that James was the boss and that they dealt with James as the sole owner of the business. However, they also admitted that they had no firsthand knowledge of the private business relationship between the brothers. There is also the evidence that in making an application for public assistance in 1941, William stated that he had been employed by his brother as a cooper from 1925 to 1935 and prior to that time was in the cooperage business for himself. Such an admission is not conclusive and may be considered by the trier of fact in connection with all the evidence in the case. Dufield v. Cross, 12 Ill. 397 (1851); Ayers v. Metcalf, 39 Ill. 307 (1866). It is not conclusive here where the defendants' witnesses testified to his unbroken connection with the Higgins Bros. business since the 1890's.
There is sufficient evidence in the record to show a sharing of the profits of the business of Higgins Bros., a holding out to the business world of a partnership relation, and an agreement between the brothers to be partners in the business. The finding of the master that a partnership existed was not against the manifest weight of the evidence.
The evidence shows that James was the dominant figure in the partnership. He was older, better educated, resided on the business premises and gave orders to his brother. For many years his wife was the firm's bookkeeper. He had complete charge of the business office and of the financial affairs of the partnership while William was supervisor of the yard and drivers. The evidence further shows that to some extent James overreached his brother in financial affairs, particularly when in 1910 he attempted to have the title ...