judgment was not preserved in the mode designated in the statute, and that, the judgment having been affirmed in the appellate court, we have no right or authority under the statute, and under the doctrine so frequently announced by this court, to afford relief. The judgment of the appellate court is affirmed. (132 Ill. 120) signments of error which call in question the | sarily be affirmed. Tibballs v. Libby, 97 Ill. determination of the inferior or appellate 552; Hobbs v. Ferguson's Estate, 100 Ill. courts upon any controverted questions of 232; Bridge Co. v. Commissioners, 101 Ill. fact, have no application. This claim is 518; Stock-Yards v. Ferry Co., 102 Ill. 514; based upon the ground that there is no con- Fitch v. Johnson, 104 Ill. 111; Edgerton v. flict in the testimony contained in the rec- Weaver, 105 Ill. 43; Farwell v. Shove, Id. ord; that appellant did not controvert, nor 61: Hardy v. Rapp, 112 Ill. 359; Barber seek to controvert, the testimony of the wit- v. Hawley, 116 Ill. 91, 4 N. E. Rep. 770; Asnesses for appellee; and that appellee did not sociation v. Hall, 118 Ill. 169, 8 N. E. Rep. controvert, nor seek to controvert, the tes- 764: McIntyre v. Sholty, 121 Ill. 660, 13 Ñ. timony of appellant's witness; and that, E. Rep. 239; Montgomery v. Black, 124 Ill. there being no conflict in the testimony, 57, 15 N. E. Rep. 28; Bank v. Bornman, 124 there can be no controverted question of Ill. 200, 16 N. E. Rep. 210. In the case at facts; and that the only question involved bar, no exceptions were taken to the rulings is the question of law whether the uncon- of the court admitting or excluding testitroverted facts constitute a cause of action. mony, and no propositions of law were preThe fallacy of the position assumed by ap-sented to the court to be passed upon, nor pellant consists in this: that from the fact does it appear from the record that any questhat there was no conflict in the testimony of tion of law was otherwise raised. If there the various witnesses in respect to the sev-is any ground for the contention that the evieral evidentiary circumstances to which they dentiary facts in proof did not justify the conrespectively testified, the conclusion is de- clusion reached, and that there was a misapduced that there was no controverted ques-plication of the law to such facts, it must tion of fact in the case. In all cases where suffice to say such ground of objection to the the examination of witnesses is necessary, not only evidentiary facts, but also principal or ultimate facts, are involved; and the expressions, "any controverted questions of fact," and "all matters of fact in controversy," found in the statute, are broad enough to include, and have frequently been decided by this court to include, both evidentiary or subordinate facts, and the principal or ultimate facts in issue. Here, one of the principal and ultimate facts, and clearly made such by the pleadings, is the alleged fact that appellant had in its hands funds with which to pay the check drawn on it by C. J. Kershaw & Co., and appellant, by its plea, put that fact in issue; and the averment of the existence of that fact, and the denial of its existence, constituted the question thus raised "a controverted question of fact." If the claim that a judgment of the appellate court is erroneous is based upon the assumption that, admitting the facts stated in the Appeal from appellate court, first district. declaration to be true, there is no right of Bill by the Merchants' National Bank action, we are authorized to entertain assign-against N. K. Fairbank, as executor of Saments of error which question the validity of rah T. Peck, deceased. The facts out of the judgment on that ground; but if the which the suit arose are as follows: On May claim is, as is here the case, that the evidence 14, 1883, John L. Peck, the husband of deis legally insufficient to support the judg-fendant's testator, gave complainant the folment recovered, we are precluded by the stat-lowing collateral note: "$26,979.21. Chicago, ute from examining the evidence for the purpose of determining whether or not such claim is well founded. It has been held by this court in numerous cases that where a declaration alleges a good cause of action, and there is issue thereon, and a trial is had before the court without a jury, and no questions of law are raised at the trial in regard to the admission or exclusion of evidence, and no propositions of law are submitted to the court, pursuant to the statute, to be ruled upon, and the judgment entered by the trial court is affirmed by the appellate court, no question of law can arise in this court in respect to the finding of the trial court, and the judgment of the appellate court must neces FAIRBANK v. MERCHANTS' NAT. BANK. (Supreme Court of Illinois. Oct. 31, 1889.) PLEDGE-RENEWAL CORPORATE STOCK-DIVI DENDS. pledge of railroad stock, the old note and contract Where, upon renewal of a note secured by of pledge are returned, and a new contract of pledge given, the pledgee entering the transaction on its books as if the old note had been paid and a new loan made, the original contract of pledge is extinguished, and the pledgee acquires no title to dividends accruing before the renewal of the note. MAGRUDER, J., dissenting. May 14, 1883. Ninety (90) days after date I ties depreciating in value, at public or private | isfied. If the subsequent note was executed sale, at their discretion, without advertising and accepted by the respective parties for the same or giving me any notice, and to ap- that purpose, the satisfaction is complete." ply so much of the proceeds thereof to the payment of this note as may be necessary to pay the same, with all interest due thereon; and also to the payment of all expenses attending the sale of the said stock; and, in case the proceeds of the sale of said stock shall not cover the principal, interest, and expenses, I promise to pay the deficiency forthwith, after such sale. JOHN. L. PECK." The shares of stock pledged to secure this note belonged to Sarah T. Peck, and the certificates had been indorsed by her in blank. They had been originally pledged to the bank in 1880 as security for a like note of John L. Peck, which note had been several times renewed, the renewal of May 14, 1883, being the last of the series. While this stock was held by the bank, several dividends on it were paid to Sarah T. Peck, and 99 shares of additional stock were issued to her. This suit was brought to recover these dividends and the 99 shares of stock, which the bank claimed were included in the piedge. The circuit court rendered a decree for the bank, which was affirmed on appeal, and the defendant, Fairbank, appeals. Dexter, Herrick & Allen, for appellant. Wilson & Moore, for appellee. BAKER, J. The principal contention of appellant is that in the transaction of May 14, 1883, and the previous like transactions, it was the intention of the parties that the new note should be received in payment of the old; the 100 shares of stock which had been before pledged to secure the note thus paid being repledged to secure the payment of the new note. It is manifest that if this claim is well founded it is decisive of the present case. The general rule is that the mere change of the form of the indebtedness does not release the security given therefor, unless such was the intention of the parties. A renewal of the note, its reduction to a judgment, or other change, not intended to operate as a discharge of the lien, still leaves it, as between the parties, in full vigor. Rogers v. School Trustees, 46 Ill. 428; Flower v. Elwood, 66 Ill. 438. In Daniel, Neg. Inst. §1267, it is said: "It is competent for the parties to show that the bill or note was, by express agreement, received in absolute payment and discharge of the contemporaneous or precedent debt, or the contrary, or that there were facts and circumstances attendant upon the transaction from which an understanding and agreement might be inferred." In Flower v. Elwood, supra, this court said: "Whether this exchange of notes operated to discharge the mortgage, as between the parties, at least, depended upon their intention." In Yates v. Valentine, 71 Ill. 644, it was said: "When a subsequent promissory note is given for the same consideration as a former one, it is a question of fact for the determination of the jury whether the former note is thereby sat In Bank v. Bornman, 124 Ill. 200, 16 N. E. Rep. 213, it was said: "The question of whether it was intended or understood that the prior draft was paid by the acceptance of the new draft is therefore, both upon authority and principle, a question of fact, not of law, and it was competent for the jury—or, in this case, the court sitting as a jury-to consider all the attending circumstances proved, and deduce therefrom the understanding or intention of the parties in respect thereto." And, in the same case, it was further said: "If the debt is paid, the liability of the guarantor is forever gone, and cannot be revived without his consent. Those cases which seem to hold that the liability of the guarantor or surety will revive on the former or original debt will be found to relate to a state of facts where there has been a suspension of the right of action simply by reason of the extension of time to the principal debtor, the original liability of the guarantor remaining in the mean time undischarged." In Jarnagan v. Gaines, 84 Ill. 203, Jarnagan had a note secured by mortgage, and, after the institution by him of proceedings in bankruptcy against the maker, he entered into an agreement with the other creditors of the maker to dismiss the proceedings in bankruptcy, and take a new note payable in two years from date without interest; and it was held, in the absence of proof of any distinct intention that the mortgage should be released, that the taking of such new note, under the circumstances, would operate as a release of the mortgage. In Tucker v. Conwell, 67 Ill. 552, Conwell had sold to Croskery a quarter section of land, and Croskery, to secure the purchase money, executed notes and a mortgage on the land. Croskery sold the land to one Berry, who also gave to him his notes and a mortgage, and he transferred them to Conwell. In May, 1857, Berry sold the west half of the quarter section to one Shubert, and Conwell received Shubert's notes for one-half of the amount of Berry's notes, and released said west half from all prior incumbrances. Shubert, in February, 1859, sold said west half to one Morris, and he mortgaged it to Conwell and one Walker, to secure the payment of his promissory notes given for purchase money. In August, 1857, Berry sold the east half of the quarter section to one Adkins, who gave Berry a mortgage on the land to secure the purchase money. In August, 1858, Adkins sold to Morris, who mortgaged the whole quarter section to Parker, Russell & Co., and subsequently conveyed to Beaman and others, composing that firm, the east half, and they afterward foreclosed their mortgage against Morris and others, and Parker, Russell & Co. became the purchasers of the entire quarter section at a sale made by the master in chancery, and, the land not being redeemed, obtained a deed, and afterwards sold the land to Tucker and others. Walker and Han- tional shares of stock, yet it is not perceived cock, to whom the Berry notes were assigned, how that changes the case. When it took filed a bill and obtained a decree against this written contract of pledge, it understood Berry and Morris, and sold the land, and it as taking in pledge the 100 shares only. Conwell became the purchaser, and after- The evidence of the vice-president of the wards obtained a master's deed. In Au- bank, who seems to have acted in these varigust, 1867, the lands were sold under a judg- ous transactions on behalf of the bank, is ment in scire facias against Croskery on corroborative of this. In speaking of these the note last falling due on his purchase, 100 shares, he says: "I know, as a matter of and Conwell became the purchaser at that fact, that on February 10, 1883, the stock sale. It was held that the Croskery note and was quoted so that the stock was worth more mortgage were fully discharged and satisfied than the indebtedness which we held; that is before the scire facias was brought, and this all that I cared to know." It also appears court there said: "Why take new mortgages from his testimony, in that connection, that at each sale if it was not understood those he did not pay any attention to the value of the formerly given were then released? If Con- stock from the last-mentioned date until aftwell relied on the Croskery notes and mort- er May 14, 1883. By the terms of the congage, we can see no reason for new notes tract it was also "this stock"-the 100 shares and mortgages. They in no wise increased which was then taken in pledge as security the security. If the land was worth the for the Peck & Bausher debt. What else do debt, its collection could be enforced upon we find in the written contract that shows that security as effectually as by taking new the then present intention and understanding mortgages. The Croskery mortgage was a of the parties? The power of sale contains lien on the land prior to all others, and could this language: "I hereby give the said bank not be bettered by taking others on the same authority to sell the above-described securiproperty." ties, or any part thereof, on the maturity of this note," etc. Why "hereby give" a power of sale, if the like authority theretofore given was not understood to be then revoked and released? And the subject of the power so given was stated to be "the above-described securities," i. e., the 100 shares of stock, and not shares of stock additional thereto, or any other or different securities. And the power further provided that the proceeds of sale are to be applied "to the payment of this note," not to the payment of an antecedent indebtedness from John L. Peck to the bank. Jones on Pledges, 157, it is said: "Parol evidence is not admissible to contradict the contract of pledge, such as a statement in a promissory note that certain stock had been transferred as collateral security. * * The rule that oral evidence cannot be admitted to alter a written contract is applicable, and must prevail." * In The reasoning in Tucker v. Conwell seems to be peculiarly applicable to the transactions involved in the case at bar. The mere renewal of the John L. Peck notes and of the Peck & Bausher notes would not have had the effect of releasing the pledges given for the security of those notes. The shares of stock could as easily and as effectually have been sold under the first pledge which was made of them for the payment of the combined indebtedness as under any of the subsequent pledges made, or the pledge of May 14, 1883. In fact, such first pledge would much more certainly have afforded a sufficient security and remedy; for under it, beyond any chance for cavil or controversy, the dividends which had been declared and might be declared upon the stock, from the date of the pledge until a sale was made under the power given, would have accrued to the pledgee, and that question would have been The conduct of the bank at the time the eliminated. Then why take new pledges at note of May 14, 1883, was given, is consistent the time of the execution of each new note, with and corroborative of the view that the if it was not understood the pledges formerly new note and the new contract of pledge given were then released? Mark the lan- were then understood by the parties to be guage of the contract made on May 14, 1883: substituted for the old note and old contract "Having deposited with said bank, as collat- of pledge. Not only the note then falling eral security, certificates for one hundred due, but the written contract of pledge which shares of the stock of the Chicago City Rail-accompanied it, were surrendered to the makway Company. This stock is also held as er of the note. Such surrender was prima collateral security for note of Peck & Bau- facie evidence the note was paid and the colsher." This contract was accepted by the lateral security released. Flower v. Elwood, bank, and it must be presumed it expressed the supra. In Yates v. Valentine, supra, the then existing intention of the parties. What court, in speaking of the surrender of an old was it that was pledged for the John L. Peck note on the making of a new note given for indebtedness? One hundred shares of stock, the same consideration, said: "We can conand not said shares; and also the 12 dividends ceive of no act showing more decisively that which had during the preceding three years it was intended by the parties that the note been declared and paid thereon; and also was satisfied, and should be canceled. It 99 additional shares of stock that had there- was intended that the defendant should tofore been issued by the railway company. thereafter be bound by the terms of the notes If it be granted the bank did not at that time then given, and the old note was given him know of these dividends, or of these addi-that it might cease to exist as an evidence of indebtedness against him." Of course, the during the almost three years that the 100 fact that in the Yates and Valentine Case shares of stock were held as a pledge; and the the new notes were made payable to a third bank and its officers are presumed to have party rendered the circumstance of the sur-known the law, and that if the first contract render of much more probative force to show the antecedent debt was satisfied than the mere circumstance of the surrender of the old note would be in a case like this, where the payee of the old note was also the payee of the new note. So, also, if here the former contract of pledge had been retained when the old note was given up, the presumption would clearly be that the old security was not released, but remained in full vigor for the security of the new note given. But, it being a question of intention, the fact that the old contract of security as well as the old evidence of indebtedness was returned to the maker, and a new contract of pledge with a new power of sale as well as new note substituted therefor, adds to the force of the circumstance of surrender, the principle that is announced in Tucker v. Conwell, supra. of pledge was a continuous and never released contract of pledge, as is now contended, said bank, as pledgee of the stock, was entitled to receive, as a part of its security, the accruing dividends upon such stock so in its possession. But it did not attempt to collect such dividends, made no inquiries in regard thereto, and did not even take the trouble of notifying the railway company of its interest in the stock by having it transferred to it on the books of the company, as it might readily have done, or otherwise. Such conduct on the part of a pledgee of the business knowledge and capacity of appellee, and of ordinary prudence, is only explicable upon the supposition that the bank and its officials understood the contract for collateral security existing between it and John L. Peck was not one and a continuing contract, extending from August, 1880, but that, on the contrary thereof, they understood the contract of pledge was from time to time released, and a by agreement of parties, and that they were satisfied with the arrangement thus made, and content to hold the 100 shares of stock only as security, and to waive the right to the dividend which had accrued in the lifetime of each several contract of pledge. So, also, the conduct of appellee after the 14th of May, 1883, as well as its conduct at and before that date, was consistent with and corroborative of the theory of separate and distinct contracts of pledge, accompanied by a release of the preceding pledge, and a waiver of its rights thereunder. The note and contract, with power of sale, dated May 14, 1883, with the indorsments thereon, is in evidence. There is indorsed thereon, under the Another circumstance of concurrent corroboration, entitled at least to some weight and consideration, as being consistent with the theory of appellant, is the fact that pre-new contract of pledge substituted therefor cisely the same entries of credit and debit were entered by the bank upon its books as if the old note had been paid the bank in money, and a new loan made, and the amount paid the borrower in currency. The same reasoning which is applicable to the transaction of May 14, 1883, also has like application to the similar transactions which took place prior to that date. The conduct of appellee antecedent to May 14, 1883, as well as its conduct at that time, was also consistent with and corroborative of the view each making of a new note and new written contract of pledge was understood and regarded by the parties to be a new debt and new pledge, and payment of the old debt and cancellation of the old pledge. It is manifest from such pre-date of July 12, 1884, the following credit: vious conduct of the bank, and the whole "Net proceeds from the sale of the within course of dealing between the parties, and 100 shares of stock of Chicago City Railfrom the testimony of the vice-president of way Co., $24,687.40." The reference here the bank, that appellee deemed the 100 shares by the word "within" is to the note, and of railway stock as not only ample security contract for collateral security and power of for the John L. Peck indebtedness, but also sale found in the instrument of May 14, 1883, as affording some security, in addition to showing it was under that contract and that held in the shape of lard and stearine re-power that appellee acted in making sale of ceipts, for the firm indebtedness of Peck & the stock, and that it made the sale for Bausher. The bank may have had no notice or the payment of that note. The reference knowledge that the railway company had is- also by the words, "the within 100 shares sued any additional shares of stock to its stock- of stock," etc., is to the 100 shares menholders during the time the 100 shares of stock tioned in the note, and referred to in the were in its possession as collateral security, power by the words, "the above-described seand may have had no information in respect to curities," and other like expressions, as the the dividends made by the company during "collateral security" which was deposited that time and paid to appellant's testate, but with appellee, and as the subject of the powit must have known, or at least have had good er which it held and exercised. Still another cause for knowing or supposing, that a street- corroborative circumstance of after conduct railway company in the city of Chicago, lo- is that on October 31, 1884, it caused the folcated as the lines of the Chicago City Railway lowing indorsement to be made on the note: Company were, and of its capital, financial "Balance due and in judgment, $2,855.62. standing, and bulk of business, must, in the Charged to profit and loss, October 31, 1884;" nature of things, have earned and declared and also caused like indorsements to be made dividends of some kind, and to some amount, on the two Peck & Bausher notes. The Appeal from appellate court, first district. Bill for an accounting of partnership business, brought in the superior court of Cook county by Joseph Gregg against G. M. Hord. The decree of the superior court upon the master's report was affirmed by the appellate court. Complainant appeals. F. J. Smith & Helmer, for appellant. E. A. Otis, for appellee. uncontradicted evidence is that Sarah L. with another party, he would leave the firm. Held, Peck, who had collected the dividends upon that this showed that the writer of the letter had dissolved the firm without the other's consent. the stock, and who had subscribed for and dissolved the firm without the other's consent. 2. On bill for an accounting between partners, received the 99 additional shares of stock, at where it appears that both partners had daily acthat time had ample property to respond to cess to the firm books, and had struck repeated any demand made upon her growing out of plaint or objection till after the firm was dissolved, balances of the partnership accounts without comsaid dividends and said additional stock. If it is proper for the master to state the account acwhen the note of May 14, 1883, was executed, cording to the entries in the books, though these and a new pledge of the 100 shares of stock are not in accord with the written agreement of made, and a new power of sale given, the in-modification of the agreement is conflicting. copartnership, and though the evidence as to any tention was to release and abrogate the former pledge and prior power of sale, then it would seem it is immaterial whether the new note then given is regarded as a payment of the antecedent indebtedness or not; for, even if we assume the old indebtedness continued notwithstanding the giving of the new note, the case is one where, by the agreement of parties, a security given for an indebtedness is canceled, and another security therefor substituted. We do not regard the case of Campbell v. Trotter, 100 Ill. 281, cited by appellee, as here in point; for there the new mortgage was designed by the parties as a continuation of the lien of the first mortgage, while here we find the fact to be that it was the intention of the parties the old lien should be released and a new lien taken in its place. Here there were successive pledges of the same property, and the bank is only entitled to the benefit of the last pledge. We think, however, that the circumstances in proof, when considered in the light of what was done in respect to the security, sustain the contention of appellant that at each of the transactions here involved the subsequent note was intended by the parties to be in satisfaction and payment of the former note. As, however, Mrs. Peck, after the last pledge of the 100 shares of stock, collected from the railway company one dividend that accrued upon said stock, and said dividend belonged to the bank as a part of its security, appellant should be held to account as executor for said dividend. SHOPE, C. J. The questions presented by this record are principally questions of fact, and arise upon exceptions to the report of the master. The first exception was that the master found that the firm was dissolved by the act of the complainant, and not with the consent of the defendant. We think the evidence fully warranted him in such finding. On the 30th of March, 1886, complainant had an interview with defendant with relation to his leaving the firm. On the next day he wrote the defendant as follows: "As I told you yesterday, a certain party has offered me ample capital if I would start in business on the 1st of May next. I have given the matter careful consideration, and have concluded to embrace the opportunity, and leave your firm on the first of May next, or sooner, if we can't get along pleasantly till then." In connection with the other facts and circumstances proved, this letter, we think, warranted the finding of the master, and the decree of the court approving the same. The second exception is to the finding of The view we have taken of the case obvi- the master that the complainant was not enates the necessity of considering the question titled to any credit for office and clerical exraised by appellant that has especial reference penses and stationery bills, which had been to that portion of the decree of the trial court charged to the southern shipping account by which ordered him to transfer to appellee as the defendant, as it is claimed, in violation pledgee the 99 shares of additional stock. of the partnership agreement. It appears For the reasons we have stated, the judg- that the southern shipping account was ment of the appellate court and the decree of charged with various sums of money paid the circuit court are reversed, and the cause for salaries of clerks, book-keepers, errand is remanded to the latter court, with direc-boys, stenographers, etc., aggregating $4,tions to enter a decree in conformity with the views herein expressed. MAGRUDER, J., (dissenting.) I think the judgment of the appellate court in this case ought to be affirmed. (129 Ill. 613) GREGG v. HORD. (Supreme Court of Illinois. Oct. 31, 1889.) DISSOLUTION OF PARTNERSHIP-ACCOUNTING. 1. On the day after two copartners had had a conversation about dissolving the firm, one of them wrote to the other that, having an offer to go in 095.05; and it is contended that, as it was stipulated in the original articles of copartnership that Hord was to pay all office and clerical expenses and stationery bills, this sum should have been charged to him, and not to the shipping account of Gregg & Hord, and that, as the master adopted the entry from these books of account, Gregg was thereby compelled to pay one-half of these changes wrongfully, and that the court erred in approving the report of the master in that respect. All the items of the account to which objection is made were entered in the books in which the partnership accounts |