Page:North Dakota Reports (vol. 2).pdf/209

 out of the alleged wrongful removal of a part of the goods from the store building are, in contemplation of the law, merged in the agreement whereby the parties, by their own voluntary and deliberate act, undertook to adjust and wind up their own business affairs, and finally settle the basis upon which the concern and its business and effects should be disposed of. The solemn agreements of the parties cannot be disregarded by the courts, and the judgment of the trial court in effect declares that the stipulations made by the partners concering their business affairs should be made effectual. We cannot disturb such a judgment.

We need consider only one other matter. It is assigned as error that “no motion was ever made by the plaintiff to confirm the report of the referee.” We think this point is not available to the defendant. As has been shown, the referee made two distinct reports to the trial court, embracing both evidence and findings. Application was made for judgment in favor of the plaintiff and based upon the first report. The defendant appeared, and opposed the application, but the report discloses no objection on the ground that the report of the referee had not been previously confirmed by an order of the court. The trial court sent the case back to the referee, and, after taking additional evidence, the referee made a final report of his findings and all of the evidence. Plaintiff then made application for judgment based upon the final report. Defendant’s counsel waived notice of the final application, and thus voluntarily absented himself from court at a time when he might have been heard upon any objection which he had to the entry of judgment. No exception to the action of the court in entering judgment without an order confirming the report has been saved, and we are clear that the point is waived, and cannot be raised in this court for the first time. We do not wish to be understood as holding, and do not hold, that in cases such as this the report of a referee must be confirmed by a separate order before the trial court can direct judgment to be entered upon the report. We only decide that defendant is not in a position to raise the question. We have examined the other assignments of error and we think none of them will