Page:North Dakota Reports (vol. 2).pdf/207

 parties hereto, one-half to each. That to collect the same without a sale of such accounts would take several months and years, and prevent the affairs of such partnership from being finally settled for several years. I further find that the dissolution of such partnership as finally consummated was fair and open, and amicably adjusted and satisfactorily executed at the time of such final contract of dissolution and determination thereof; that no fraud was practiced by either party in bringing about that settlement or dissolution, and that while an unhappy and unfriendly spirit of unfriendship existed between the parties at the time, yet I find that there was no violence of gestures or force of language used by the plaintiff sufficient in its character to set aside the settlement and dissolution of the affairs of said firm as stated. Respectfully submitted. J. F. Selby, referee.”

Defendant prepared and submitted to the referee a series of proposed findings, embracing both law and fact, but the same were refused by the referee, and not found, to which refusal defendant duly excepted. Defendant also excepted to the findings of fact as reported by the referee, and specified wherein, as defendant claimed, the findings of the referee were not justified by the evidence. These specifications and exceptions were allowed, and the same, with the report and the testimony, are all properly before this court. Subsequent to the filing of the referee’s final report, as above set out, the plaintiff made application to the trial court for judgment in his favor, based upon such final report. The defendant by her counsel expressly and in writing waived notice of plaintiff's said application for judgment. The trial court entered judgment in substantial conformity to the findings embodied in the report of the referee. Defendant appeals from the judgment.

We have carefully read and examined all the evidence offered in the case, and are convinced that it tends strongly to sustain and justify the findings reported by the referee. The evidence is conclusive and the decisive fact is conceded that the parties entered into a formal agreement in writing, whereby, on the 22d day of July, 1886, they agreed not only to dissolve the then existing co-partnership, but in the same instrument, undertook