Page:North Dakota Reports (vol. 48).pdf/740

 intention to cancel the contract was ever given as required by statute; that the forfeiture clause in the contract is in the nature of a penalty, and its enforcement, upon the findings, operates to penalize the defendant; that the trial court erroneously permitted the plaintiff to retain one-half of the crop for 1921; that erroneously the trial court denied to the defendant the right to make good the defaults within six months from the date of the judgment; that these errors appear upon the face of the judgment roll.

Manifestly, in the absence of a settled case, this court cannot try anew the questions of fact involved. National Cash Register Co. v. Wilson, 9 N. D. 112, 81 N. W. 285. There can be no review of the findings of fact without a settled case; the facts found by the trial court must be accepted as true. This court may determine whether the conclusions of law made by the trial court are warranted by the facts as found. Thuet v. Strong, 7 N. D. 565, 75 N. W. 922; Brown v. Skotland, 12 N. D. 445, 97 N. W. 543; Brandenburg v. Phillips, 18 N. D. 200, 202, 119 N. W. 542. The presumption obtains that the evidence supports the material facts alleged in the complaint, and that the findings are supported by the evidence. Whitney v. Akin, 19 N. D. 638, 643, 125 N. W. 470; Regent State Bank v. Grimm, 35, N. D. 290, 294, 159 N. W. 842. It may further be presumed that additional matters covered by the findings of fact and not embraced in the issues formed by the pleadings were properly determined by action of the parties at the trial. Raad v. Grant, 43 N. D. 546, 169 N. W. 588, 590. However, error appearing affirmatively in the judgment roll requires no settled case for the review thereof. Savold v. Baldwin, 27 N. D. 342, 345, 146 N. W. 544.

The contention of the defendant that the complaint is insufficient to sustain the cancellation and foreclosure of the contract as determined by the trial court is without merit. The rule is well settled that a complaint challenged for the first time upon appeal as to its sufficiency will be liberally construed, and, if any defects therein could have been remedied by amendment in the trial court, will be sustained. Ditton v. Purcell, 21 N. D. 648, 656, 132 N. W. 347, 36 L. R. A. (N. S.) 149; Jensen v. Clausen, 34 N. D. 637, 645, 159 N. W. 30. The evident intent