Page:North Dakota Reports (vol. 2).pdf/201

 Samuel Little, Plaintiff and Respondent v. HELEN M. Little, Defendant and Appellant.

Dissolution of Partnership—Effect of Settlement—Setting Aside Contract.

1. Referee’s report examined, and the findings held to be supported by the testimony.

2 Where co-partners, who have had differences arising out of their joint business, voluntarily and at arms length enter into a written contract dissolving their partnership relations, and by its terms make full and detailed arrangements for a separation and a division of their joint property, and provide fully for the payment of the firm debts, held that, in the absence of allegation and proof to the contrary, all of such differences will be presumed to have been merged and adjusted by the contract of dissolution.

3. Held further, that in the absence of proper allegations and proof that such contract was obtained by duress or fraud, or was entered into under a mistake of fact, such contract will not be set aside on the sole ground that one of the parties did not read the same or know the contents before it was signed.

54 [sic]. The referee made his report embracing findings, whereupon the plaintit? moved for jugment thereon. Defendant opposed the application, but did not raise the point that an order confirming the report had not been previovely made. The trial court on such ap- plication did not direct the entry of judgment, but resubmitted the case to the referee, and, after taking additional evidence, the referee made his final report embracing his findings. Plaintiff applied for judgment based upon the final report. Defendant's counsel did not appear, but duly waived notice of such final application for judgment, and at no time in the court below raised the point that the final application for judgment was not preceded by an order confirming the report of the referee. Held, that defendant has waived the irregularity, if such it was, and cannot raise the point for the first time in this court.

5. Whether, under existing statutes, in cases like this, it is proper practice to procure an order confirming the referee's report before applying for judgment, not decided.

(Opinion Filed Aug. 21, 1891.)

APPEAL from district court, Traill county; Hon. Charles F. Templeton, Judge.

A. B. Levisee (M. A. Hildreth, of counsel), for appellant. Carmody & Leslie, for respondent.