Page:North Dakota Reports (vol. 2).pdf/204

 counter-claim. Asa basis of the counter claim defendant charged, in effect, that at the time said firm was instituted, and for years prior thereto, defendant had been engaged in the business of a merchant at Caledonia, and had a large and profitable trade there; and further charges that plaintiff “during all the time he was a partner in said firm, did in various and sundry ways, by word of mouth, and by acts at various and sundry times, use and exert all the influence his position and opportunity gave him to alienate the former established customers and friends of this defendant, to depopularize this defendant as a merchant, and to impair, injure and ruin the good name, credit and business prospects of this defendant as a merchant,” etc. The complaint in the second action was substantially the same as in the first, with the additional statement that when the firm dissolved it owned notes and book accounts to the amount of $1,128; that all the debts of the firm were paid; and that plaintiff had demanded an accounting and that defendant had refused to account. Plaintiff prayed for an accounting and for a division or sale of the assets of the firm. The answer put the material averments of the complaint in issue, except that it admits the formation and dissolution of the firm; that the debts of the firm are paid; and that the firm owns notes, book accounts, and other property subject to division. The plaintiff served a reply to each answer, putting the new matter pleaded asa counter-claim in issue. The actions being at issue and upon the trial calendar, the district court, without objection, so far as appears of record, ordered that a reference be made in the consolidated action, and directed that the same be referred to J. F. Selby, Esq., an attorney at law, to find and report the facts and the testimony herein to the trial court.

At the time and place agreed upon, the parties, represented by their counsel, appeared before the referee, and the testimony on both sides was taken and duly submitted to the referee, whereupon the referee made his report of the testimony and the findings of fact thereon. Upon the coming in of the report a motion was made for judgment thereon, whereupon the trial court, after an examination of the report, and deeming the same incomplete, and upon motion of plaintiff's counsel