BURKE v. DAVIS, 81 F. 907

WOODS, Circuit Judge (after stating the facts as above). In the absence of exceptions to the report, there can be no inquiry into the correctness of the master’s findings of fact; but whether the proper decree was entered upon the report is nevertheless open to consideration. The master’s mistaken apprehension of the legal consequences of the facts reported, as Daniell states it, “may be opened to further directions, without exceptions.” 2 Daniell, Ch. Prac. p. 1310; Hayes v. Hammond, 162 Ill. 133, 44 N. E. 422.

The recommendation of the-master that a decree should he entered for the defendant for the amount reported due him in addition to the fixed wages agreed upon- was erroneous, both because it was not claimed in the answer and because it was not in accord with the agreement found to have been made between the parties, under which the services supposed to entitle the defendant to further compensation were rendered. The answer sets up only an agreement for a share in the profits, but that contention, the report says, was abandoned, and no different claim was substituted.

The agreement found to have been actually made was that Davis should receive for the first three months $10 per week and after that $15 per week, with the promise of additional compensation provided he proved himself competent and valuable. Under this agreement the defendant served and received compensation at the specific rates stipulated until June 30, 1891, when, according to the answer, he demanded an accounting and a settlement of the share of the profits due him.

It is not found that any other agreement between the parties, either for a share in the profits or for other form of compensation than that stated, was made, except that in 1890 the appellant offered to pay a further sum of $500, of which one-half had been paid.

There is, therefore, no justification in the facts reported, when reasonably interpreted, for the belief with which the master declared himself impressed that it was the intention of the parties that, after the expiration of the three months of trial, the defendant should receive such compensation for the balance of the ‘term of his service as the character of his work and his devotion to the interests of the complainant should entitle him to.

That is not .consistent either with the answer or with the master’s own statement of the agreement made, in which no term of service was stipulated; and, instead of the time of trial being limited to three months, it was agreed that after the expiration of that period the compensation should, he a fixed sum per week, until the parties should agree upon additional compensation, which, in the indefinite way stated, the appellant. promised should be done.

The alternative recommendation of the master that the defendant should be allowed to recover the sum of $250, if not awarded the larger sum,, rests upon an indefinite and inadequate statement of facts, and has no support in the answer. it is contended on behalf of appellant that the relief awarded the defendant was affirmative in its nature, and could not be granted upon an answer, and that, being of a purely legal character, the defendant’s demand could not be made the subject of a cross bill; but these are questions which we need not consider.

Upon the facts found the appellee at most has a demand for only $250, and that not. being set up in the answer need not be considered. It appears (hat the appellant is a citizen of London, England, but it is not shown that he is a nonresident or insolvent, and that appellee may not obtain adequate relief in a suit at law in the local courts. On the contrary, it was asserted at the hearing, and in the briefs, and not denied, that such a suit has been brought: and is pending.

It follows that the court erred in requiring that, as a condition precedent to the enforcement of the relief awarded Mm, the appellant should pay the sum named in the decree to the defendant, and also In adjudging against the appellant a part of the costs of the suit. The decree is therefore reversed, and the cause remanded, with directions to enter a decree for the appellant not inconsistent with this opinion.