Anderson v. Gottlieb ( 1907 )

Mr. Presiding Justice Baker

delivered the opinion of the court.

The contention that the decree should be reversed because no order referring the cross-bill to the master was entered until after the proofs had been taken and the draft report prepared, cannot be sustained. The cross-bill and the answer thereto were filed before any proofs were taken by the master. The parties appeared and took testimony upon the issues made by the cross-bill and answer thereto, as well as the issues made by the bill and the answer thereto. In the ease cited by counsel for appellants in support of this contention, it was said: “Of course if there is an appearance and participation in the 'taking of evidence without an order, parties cannot question the authority of the master to act.” When the order of May 31st was entered requiring the master to “pass upon and report to the court upon the claims of Hober Gottlieb upon the evidence already taken,” complainants made no objection, no application to the court to so amend the order as to permit them to offer further evidence. They did not, in their objections to the master’s draft report, include an objection that the master had found and reported the amount of damages sustained by the cross-complainant when such matter was not within the order of reference.

We find nothing in the evidence to estop ISTober Gottlieb from asserting his claim for damages sustained by him by reason of the failure of complainants to carry out their contract at the time therein specified. He could not after accepting material after the time agreed upon for its delivery, or accepting materials inferior in quality or different from the materials agreed to be furnished, refuse to pay for the same, but such payment does not estop him from asserting his claim to damages for a breach of the contract. We think the evidence in the record supports and warrants the finding contained in the decree as to the damages sustained by the cross-complainant Hober Gottlieb. We do not think that cross-complainant and appellee Hober Gottlieb has any just cause of complaint because the decree in his favor was not for a larger amount.

The decree of the Superior Court will he affirmed and the costs of the additional abstract filed by appellees will be taxed as a part of appellees’ costs.

Affirmed.