Page:North Dakota Reports (vol. 2).pdf/202

 Actions by Samuel Little against Helen M. Little for the recovery of money due on dissolution of a partnership. Judgment for plaintiff. Defendant appeals. Affirmed.

A. B. Levisee (M. A. Hildreth, of counsel), for appellant:

Plaintiff could not sue fora money judgment, as there had been no settlement of the firm accounts. Bates on Partner- ship, Vol. 2, § 849 and cases cited; Harkell v. Adams, 7 Pick. 59; Williams v. Henshaw, 12 Pick. 378; Carey v. Bruth, 2 Caines 293; Murry v. Bogart, 14 Johns. 318; Paine v. Thatcher, 25 Wend. 450; McGilvray v. More, 23 Pac. Rep. 96. The wrongful acts of the plaintiff in this case dissolved the partnership. Story on Partnership, 272; Soloman v. Hollander, ‘21 N. W. Rep. 336. The rendering of the statement of account was not conclusive upon the defendant. Rehill v. McTaque, 5 Cent. Rep. 704; Collyer’s Law of Partnership, § 298; 1 Story, Equity, § 523; Bates on Partnership, Vol. 2, § 959 and cases there cited. Defendant was entitled to affirmative relief without setting up a counter-claim. Hutchinson v. Paige, 29 N. W. Rep. 908; Scott v. Pinkerton, 3 Edw., Ch. 70; Boyd v. Foot, 2 Bos, 100; Johnson v. Butler, 31 N. J. Eq. 35; Atkinson v. Cosh, 79 Ill. 53.

Carmody & Leslie, for respondent:

If a settled account is impeached for errors, particular errors must be stated and proved. Lindlie on Partnership, Vol. 2, §§ 513 and 514, and cases cited. Findings of fact will not be disturbed where there is any evidence to sustain them. Where the evidence is conflicting the findings will not be disturbed. Bottsford v. Sweet, 13 N. W. Rep. 385; Rohe v. Pearson, 14 Pa. St. 297; Chambers v. Appleton, 5 N. E. Rep. 442; Bourgeois v. Shingle, 34 N. W. Rep. 96; Lyons v. Harris, 34 N. W. Rep. 864; Vittoe v. Richardson, 12 N. W. Rep. 603; Kumler v. Ferguson, 7 Minn. 442; Hardware Co. v. Wolter, 3 S. W. Rep. 865; Moore v. Ligon, 3 S. E. Rep. 572; City of Winona v. Huff, 11 Minn. 119; Carroll v. Little, 40 N. W. Rep. 582; Hardy v. Scott, 26 W. Va. 710; Boyd v. Gunnison, 14 W. Va. 1; Graham v. Graham, 21 W. Va 698. Where the bill of ex-