
    Allison v. Gilton.
    Upon the preparation of the report of a, referee, under the Act of May 24, 1874, counsel accepted notice in writing, at the end of the report, “ that the foregoing decision would he filed ” on a day named. Subsequently, the referee, after • adding an explanatory supplement to his decision, filed it on the day designated.No notice by the prothonotary of the filing of the report was given, as required by the Act of April 22,1874, to the parties or their attorneys. Exceptions were filed by the plaintiff before the referee, which were dismissed. Judgment was entered upon the referee’s report. On writ of error, the plaintiff assigned for error the failure of the prothonotary to give notice; that the referee’s findings of facts and conclusions of law were not separately and distinctly stated; and that the exceptions were dismissed without hearing argument. Held, that, inasmuch as the record showed that notice of the intended filing of the report was accepted by the plaintiff, notice by the prothonotary was unnecessary. JHeld, also, that the plaintiff’s other allegations were not sustained by the record.
    The report of a referee, as to finding of facts, is entitled to the same weight as the verdict of a jury.
    Jan. 24, 1889.
    Error, No. 208, July T. 1888, to C. P. No. 3,. Phila. Co., to review a judgment on tbe report of a referee under Act of May 14, 1874, by Tbos. N. Allison against Jas. ~W. Hilton, at Sept. T. 1884, No. 117.
    Tbe suit was originally a judgment entered in said court on Oct. 24, 1884, upon tbe single bill, under seal, of tbe defendant, in favor of tbe plaintiff, dated March 6, 1884, for $550, payable April 13, 1884, with interest from Nov. 2, 1883, with five per cent.for collecting. Tbe judgment was opened by tbe court and an issue was framed wbicb was twice tried and verdicts rendered each time, but new trials were ordered.
    Tbe agreement of reference was as follows :
    “And, now, March 7, 1887, it is hereby agreed that the above entitled action be referred to John W. Patton, Esq., as referee, under tbe Act of May 14, 1874, with tbe further provision that either party shall be at liberty to prove any proper claim be may have against tbe other, tbe pleadings as far as they would restrict this to be disregarded, as it is hereby intended to have a full settlement and determination of all matters and transactions between tbe said parties to this agreement. And as it appears by record that one Peter Byrne has, upon petition, been allowed to intervene for tbe purpose of defending tbe above suit, it is further stipulated that this agreement shall notbe binding upon either of tbe above-named parties until properly executed by said Peter Byrne; tbe reference, however, being limited to claims, demands, and cross-demands arising between said Thomas N. Allison and John’ W. Gilton.” ;
    Tbe agreement was signed by all tbe parties named.
    Tbe report of the referee was as follows, as far as tbe questions raised by tbe assignments of error are concerned : ¡I,
    “ It would be more easy to discuss the weight of tbe evidence: in detail, and to assign the reason for each conclusion of fact, and to try to justify tbe finding, than simply to write the same without explanation; but this does not seem to be tbe meaning of tbe statute, and, as far as it can be carried into effect, it is tbe purpose of the referee to give briefly tbe results of anxious reflection upon tbe evidence, aided by bis impressions at tbe time tbe witnesses testified. It is difficult in tbis case to separate and distinguish conclusions of law and fact, but tbe referee bas reached tbe following:
    “Findings ok Fact.
    “ 1. The plaintiff is a conveyancer, real estate agent, and dealer. Tbe defendant is a bricklayer. They bad, from time to time, engaged in business transactions with each other, including building operations on Flemming Street and on Jefferson Street, in Philadelphia; and the accounts between them, except in, regard to tbe ■erection of two bouses on Sumac Street, in Wissahickon, were set-fled and adjusted (upon some date not fixed by tbe evidence), and a '•balance of $271.16 was admitted to be, and still is, owing by tbe jplaintiff to tbe defendant.
    “2. There was, however, another transaction between them. They agreed, in the year 1882, to build two bouses on Sumac street, at their joint expense, one of which, when finished, was to be tbe property of Mr. Allison, and tbe other was to belong to Mr. Gilton. Each advanced money in tbe payment of bills for tbe two- bouses, and Mr. Gilton did tbe bricklaying work on both. Tbe construction of tbe buildings was slow, but tbe delay, in view of all tbe facts of tbe case, was not caused by tbe negligence of tbe defendant.”
    After stating accounts, in paragraphs 3, 4 and 5, tbe referee continued:
    “ 5. On April 22, 1884, tbe plaintiff gave the defendant tbe following writing:
    “ ‘ Whereas, I have deposited in Manayunk Bank for discount a note of John W. Gilton for $595; and, whereas, I bold a judgment note of J. W. Gilton for $550. Now tbis is to certify that said judgment is held as security for payment of said note of $595, and that if said note of $595 is paid on maturity by said J. W. Gilton, then I am to deliver said judgment to him without delay; and if ■said note of $595 is not paid, then I am to bold said judgment in part payment thereof and-am to file same and have power to collect isame in order to secure myself.
    “(Signed,) ‘THOMAS N. ALLISON.’
    “ When tbe said note for $595 became due, tbe defendant paid $2,p0 on account of it and renewed for $395 for fifteen days from Aug. 11, 1884. The new note was protested, was paid by tbe defendant on Sept. 10, 1884, but tbe judgment note was never demanded by him, and a few days after tbe note for $395 was paid, tbe defendant procured tbe plaintiff’s endorsement on a note,for $295, which last note bas never been paid. And tbe referee further finds that the judgment note was held by Mr. Allison as security for tbe promissory notes set out as part of bis claim in tbis case as a standing security.
    
      “ The plaintiff has requested answers upon the following points for ruling:
    “ 7. The evidence showing that the item of $578.83 claimed by defendant, includes the cost of rebuilding a portion or all of the work for which it is charged, which settled for want of a sufficient foundation, and the defendant not having separated the same so that the amount expended in said rebuilding could be deducted, nor offered any evidence to show the cause thereof, the referee cannot allow any portion of the said item. Answered in the negative.
    “ Conclusion ok Law.
    “ 1. The amount of the judgment note cannot affect the decision in this case, because the sum found to be due by the defendant to the plaintiff is less than any that can be reached by an assessment of damages upon said judgment note, and also because it is the intent of the agreement of reference that the judgment shall be a security for whatever amount may be determined under the provision ‘ that either party shall be at liberty to prove any proper claim he may have against the other, . . . as it is hereby intended to have a full settlement and determination of all matters and transactions between the said parties to this agreement.’ . . .
    “But, 3d, as the paper which showed that the judgment note was held as security for the note of $595, stipulated that it was only upon payment at maturity of the promissory' note that the judgment note was to be delivered to the maker, and as, in point of fact, the said promissory note was not really paid and the judgment note was retained by Mr. Allison, it may be inferred, even apart from his testimony (which was that the judgment was to stand for security for other indebtedness) that there was no payment within the intent of the parties.
    “4. The finding has been stated that, in point of fact, the defendant did not cause a loss by gross negligence, lack of skill,, or wilful misconduct. Only a loss due to such failure could render the defendant liable. Marsh’s Ap., 69 Pa. 30.
    “ If, however, the referee had found that the defendant had wantonly delayed the work of the buildings, it is his opinion that there was not offered before him such satisfactory evidence of the period of lost time and of pecuniary injury as to enable him to liquidate the alleged damages.
    “5. The referee has already decided that in point of fact there was no agreement to pay either party for services rendered in the joint business of building the two houses, and also that no separate services worthy of compensation were rendered; but as a matter of law he is of the opinion that the relationship between Mr. Allison and Mr. Gilton was of such a nature that if valuable services had been rendered by either, no promise to pay for the same could arise by implication. Each partner was bound to devote his skill and labor to the common interest of the concern.
    “ 6. The last conclusion is that, from the accounts stated in paragraphs 1, 3 and 4 of findings of facts above, it appears that the defendant is indebted to the plaintiff in the sum of $3,358.70 And that the plaintiff is indebted to the defendant.
    Admitted balance on individual account, $271.16
    And balance on joint account, 3,039.05 3,310.21
    $48.49
    “In consideration of the relations of the parties, and the involved accounts between them, the defendant should not be charged with any interest.
    “.The decision, therefore, is that the plaintiff recover from the defendant the sum of forty-eight dollars and forty-nine cents, without interest, and judgment should be entered in favor of the plaintiff for said sum, with costs.
    “And he c files this decision with what pertains to it.’ ”
    Counsel for all the parties signed the following agreement Feb. 21, 1888:
    “We hereby accept service of notice that the foregoing c decision ’ will be filed on the fifth day of March, 1888.”
    The referee added the following, at the end of his report:
    “After the foregoing paper was written, the attention of the referee was called by Mr. Dolman, counsel for the plaintiff, to the allegation that the defendant (Gilton) had not been debited with the moneys received on account from Mr. Allison [naming the amounts].
    “ These have been allowed by the referee, as charged in the plaintiff’s bill of particulars; but no separate additional - credit was given to the plaintiff as against the amount claimed in the defendant’s bill of particulars, because the referee understood that these items were outside of the charges made in said bill by the defendant for money expended in the joint operation. The referee, however, although it is true that the decision must be filed in the prothonotary’s office, and exceptions thereto must also be filed in the prothonotary’s office, and cannot be first considered by the referee, was of the opinion that, before the report went out of his hands, he had a right to call the parties and open the question for the purpose of correcting any mistake, upon the ground that, although the power of the referee is at an end at the expiration of the sixty days allowed for the filing of his decision, yet, while the papers are in his hands, it is his right, and also his duty, if he have any doubt, to insist upon such further evidence and argument as will enable him to ascertain the truth. The two annexed letters from the attorneys for the defendant confirms the view of the facts taken by the referee, and, upon consideration, he files the foregoing paper as originally written. This case illustrates the difficulty of trying to settle a suit in equity under the form of an issue framed upon the opening of a judgment.”
    The report of the referee was filed March 5,1888. Exceptions were filed April 2, 1888, which were overruled as follows, by the referee:
    
      “The Act of Assembly provides that the decision of the referee is, in like manner and to the same extent, to be subject to exceptions as in cases to be. submitted to the court. The referee, therefore, assumes that it is in accordance with the proper practice for him to pass upon the said exceptions.
    “ It is deemed unnecessary to make any addition to the report originally filed, except a brief explanation in reference to the 12th and 13th exceptions. In regard to what is. called a “ supplemental report,” and to the letters of defendant’s counsel, mentioned in one of those exceptions, it may be said that, in adding these to the report, there was no intention to affect the decision previously written.
    “ The referee, solely from the desire to do justice to the plaintiff in case of a mistake, which it was alleged had been made in regard to the items stated in the paper, tried to secure, by the consent of all parties, a reopening of the case. It was not agreed to, and the referee so stated in the paper of which complaint is made in the twelfth exception. It may be that it was an error to annex that to the original report but it did not alter the previous findings, either of law or fact, and cannot injure the plaintiff.
    
      “ The referee declines to make any modification of his decision, and, so far as he has the power to do so, overrules said exceptions of the plaintiff, and affirms the original report.”
    The plaintiff alleged in his paper book that these exceptions were dismissed by the referee without hearing argument.
    
      The assignments of error specified, 1, the failure of the prothonotary to give notice of the filing of the referee’s decision as provided by the Act of Assembly; 2, the action of the referee in not separately and distinctly stating the findings of fact and the conclusions of law; 3, in not including in the findings of fact all the material facts of the case; 4, in refusing the plaintiff’s seventh point, quoting it; and, 5, in deciding upon and dismissing plaintiff’s exceptions without hearing argument.
    
      James P. Dolmam,, for plaintiff in error.
    No notice was given by the prothonotary as required by the Act of April 22, 1874, P. L. 109, Purd. 1364; Marr v. Marr, 103 Pa. 463; Sweigard v. Wilson, 106 Pa. 207.
    If the plaintiff had relied upon his reading of the decision at the time he accepted service of notice of the filing thereof, he would have been without any notice whatever of a very material portion of it, and it was only a precautionary re-examination, for the purpose of verifying his notes, before filing exceptions, that led to its discovery.
    The proceeding being a statutory one, the provisions of the statute are imperative and must be strictly followed, and parties cannot either intentionally or ignorantly vary or dispense with them.
    
      “ The facts found by the court should be separately and distinctly stated with at least as much precision and particularity as are required in a special verdict, and then, after answering tbe points, if any are submitted, the conclusions of law applicable to the facts should be clearly stated. When, as in this case, to some extent, the facts are blended with the conclusions of law, neither the letter nor the spirit of the Act is complied with.” Foreman v. Hosler, 94 Pa. 418; Ellis v. Lane, 85 Pa. 265; Butterfield v. Lathrop, 71 Pa. 229; Marr v. Marr, 103 Pa. 463; Sweigard v. Wilson, 106 Pa. 207; Harris v. Hay, 111 Pa. 562; Vansyckel v. Stewart, 77 Pa. 124.
    An examination of the alleged findings of facts shows that, instead of being a distinct statement of the facts, it is largely devoted to detailing the reasons which influenced the referee in reaching his conclusions. The entire supplement added to the decision, after notice of the filing thereof had been accepted, is not classified, but does not seem properly to belong to either the findings of fact or the conclusiohs of law.
    Many disputed facts in the case have not been found by the referee either one way or the other. The facts relating to the item of $578.83 have not been mentioned by the referee from one end of his report to the other, though he has ruled upon a point of law presented by the plaintiff in reference to this item of defendant’s claim.
    A special verdict must include all the facts. Tuigg v. Tracey, 104 Pa. 493; Sweigard v. Wilson, supra; Com. v. Grimes, 116 Pa. 450; Vansyckel v. Stewart, supra.
    The conclusions of law are not as this court has repeatedly said they should be. The third conclusion of law is an example of this ; combining -inference, argument, and evidence. See, especially, Harris v. Hay, supra.
    The defendant could not charge the plaintiff with half the cost of rebuilding a chimney which fell, because the defendant neglected to make its foundation strong enough. It resulted entirely from his own negligence. Bindley on Partnership, * 760 ; McIlreath v. Margetson, 4 Doug. 278. As the defendant did not show what portion of said item consisted of the charge for such rebuilding, the referee should have rejected it all.
    If the proper practice is for the referee to act upon the exceptions without affording the parties an opportunity of being heard, they are deprived of a valuable means of review without which a great injustice may often unintentionally be committed. “As an appeal or writ of error lies directly from the decision of the referee to the supreme court, it is important that every right of review which would have been enjoyed in cases submitted to the court, should be protected.” Marr v. Marr, 103 Pa. 463.
    As the Act of May 14, 1874, provides that the power of the referee over the case shall end with the entry of judgment, no application for relief could be made' to him.
    
      Fred'k A. Sobernheimer, with him, William Gorman, for defendant in error.
    The findings of a referee, as to facts, are similar to the findings of a jury, and hence no reversal upon those findings, so long as they are untainted by fraud. Brown v. Dempsey, Pa. 243.
    The statutory notice was waived by the parties’ attorneys signing the acceptance of the notice of filing on a certain day. And no notice is required to be given upon filing the decision upon the exceptions. The purpose of the notice is to give the opportunity of filing exceptions within the thirty days, and as the plaintiff did file exceptions, he was not injured.
    This suit being a settlement of accounts, and each side having presented long bills of amounts claimed, and testimony in support of each item in the bill, naturally the only question for the referee was whether the item claimed was proper or not, and thus the restating of the accounts was a part of the findings of facts.
    The referee found as a fact that it was no fault of Gilton, that the work was done as it was. This answers the fourth assignment.
    The record does not show that there was no argument upon the exceptions. None of the cases that have been decided under the reference Act disclose the fact that any argument ever took place before the referee upon the exceptions to his report.
    Ten days are given, by Act of 1869, after the report is entered, to file exceptions thereto, which, the court says, was intended by the Legislature as a substitute for bills of exceptions to the charge of a court, and their answers to points presented. Butterfield v. Lathrop, 71 Pa. 225, approved in City v. Linnard, 97 Pa. 249. The Act of 1874 is similar, except thirty days are allowed for exception.
    Feb. 4, 1889.
   Per Curiam,

The plaintiff complains that no notice of the filing of the referee’s decision was given to the prothonotary, as provided by the Act of Assembly. This would be a serious matter if the plaintiff had not received actual notice. The record shows that notice of the intended filing of the report was accepted by the plaintiff, and, as the only object of the Act was to provide notice, it is difficult to see how the omission of the prothonotary has injured him. There are numerous instances where actual notice covers omissions of this character. Thus, an unrecorded mortgage is good, as against a subsequent recorded mortgage, where the second mortgage has notice of the first mortgage. This disposes of the first assignment. The second and third allege that the findings of fact and conclusions of law are not separately and distinctly stated. In this the plaintiff is not sustained by the record, nor is there any merit in the fourth assignment. It refers to a question of-fact, and there is nothing before us to show that it was incorrectly decided. The decision of the referee is entitled to the same weight as the verdict of a jury. It is sufficient to say in regard to the last assignment that there is nothing in the record to show that the referee dismissed the exceptions without hearing an argument, except the unsupported averment in the assignment itself.

Judgment affirmed.

W. T. B.  