Page:North Dakota Reports (vol. 2).pdf/197

 more, 24 Pac. Rep. 1091; Campbell v. Carnahon, 13 S. W. Rep. 1098; Odom v. Woodward, 11 8. W. Rep. 925; Insurance Co. v. Hayden, 13 8. W. Rep. 585; Gas Co. v. Insurance Co., 71 Wis. 454; Columbus v. Strassuer, 25 N. E. Rep. 65; Partridge v. Ryan, 25 N. E. Rep. 627; in re Crawford, 113 N. Y. 560. It will be presumed that improper evidence was discarded from his consideration by the trial court or referee when deciding the case. Wilson v. Railroad Co., 21 N. E. Rep. 1015; Creager v. Douglass, 77 Tex. 484; Railroad Co. v. Lewis, 20 Pac. Rep. 310; State v. Denoon, 11 8. E. Rep. 1003. A judgment will not be reversed on account of errors where the whole record discloses that substantial justice has been done. State v. Finney, 25 N. E. Rep. 544. If the partnership contract was illegal, it is well-settled that the illegality of a contract, if relied upon as a defense, must be pleaded. Railroad Co. v. Miller, 21 N. W. Rep. 452; Norton v. Blum, 39 Ohio St. 145; Suit v. Woodhall, 116 Mass. 547; Cardoze v. Swift, 113 Mass. 250. A defendant who has not pleaded illegality in the contract sued on, has no right to offer evidence of such illegality, or even to avail himself of it when disclosed in plaintiff's testimony, if the court does not refuse to entertain the case. Granger v. Ilsley, 2 Gray 521; Bradford v. Tinkham, 6 Gray 494; Libby v. Downey, 5 Allen 299; Goss v. Austin, 11 Allen 525. It is well settled that after the illegal contract has been executed, one party in possession of all the gains and profits resulting from the illicit, traffic and transaction, will not be tolerated to interpose the objection that the business that produced the fund was in violation of law. Gilliam v. Brown, 43 Miss. 641; Farmer v. Russel, 1B. & P. Rep. 296; Tenant v. Elliott, 1 B. & P. Rep. 3; McBlair v. Gibbs, 58 U. S. 232; Kinsman v. Parkhurst, 59 U. S. 385; Bank v. Bank, 16 Wall. 483; Brooks v. Martin, 2 Wall. 70; Pfeuffer v. Maltby, 54 Tex. 454 The relations of partners are that of trustees for each other. Each member of a partnership must account to it for everything that he receives on account, thereof. When appellant received the profits of the concern he acted in a fiduciary capacity, and an implied contract arose that he would account therefor. Compiled Laws, N. D., §§ 3911, 3934, 4036, 4038, Betts v. Letcher, 46 N. W. Rep. 198.