Illstad v. Anderson
| Decision Date | 14 August 1891 |
| Citation | 49 N.W. 659,2 N.D. 167 |
| Court | North Dakota Supreme Court |
APPEAL from district court, Grand Forks County; Hon. CHARLES F TEMPLETON, Judge.
Action by Thomas Illstad against Edward Anderson for a dissolution of a co-partnership and an accounting. Judgment for plaintiff. Defendant appealed. Affirmed.
Affirmed.
A. J O'Keefe and O. H. Boyeson, for appellant.
Bangs & Fisk, for respondent.
A. J O'Keefe, for appellant:
The order of reference should have directed the referee as to whether he was to hear and try the case or simply to take an account between the parties, and if the reference was to take the account only he had no power to pass upon its validity or upon objections made. Sutt v. Wegner, 43 N.W. 167; in re May, 6 N.Y.S. 356; Fox v. Moyer, 54 N.Y. 125; Gill v. Russell, 23 Minn. 362; Brotherton v. Brotherton, 15 N.W. 347; Scott v. Williams, 14 Ab. Pr. 70. The order of reference should direct the referee to find facts if that was the intent of the court when the order was made. Bigne v. Danie, 21 P. 52. If it does not his findings are void. Royal v. Baer, 17 Ind. 332; Thornburg v. Alleman, 17 Ind. 434; Board of Trustees v. Huston, 12 Ind. 276. On the other hand if the referee was appointed to hear, try and determine the action by findings, it was error if he neglected to pass upon objections taken, make rulings and allow exceptions that might afterwards be heard and considered by the court. Wallace v. Douglas, 9 S.E. 453; Leigh Stove Co. v. Colby, 24 N.E. 282; Belts v. Selcher, 46 N.W. 193; Hall v. Able, 10 N.Y. 581. He has exclusive jurisdiction to pass on exceptions just as a judge has in a case submitted to him. Railroad Co. v. Moyer, 17 A. 461; Woodruff v. Dickie, 31 How. Pr. 164; Hoyt v. Hoyt, 8 Bosw. 511. The referee cannot reserve his decisions on questions raised and make his rulings after the case has been submitted. Bloss v. Morrison, 47 Hun 218. The referee was guilty of error in failing to make rulings, if he had the power to hear the case and make findings. And if he had not that power, he was then guilty of error in assuming the functions of a trial court and finding facts and conclusions of law. He was acting in one capacity or the other, and in either capacity he was guilty of error, which prejudiced the defendant and deprived him of a fair trial. Peck v. York, 47 Barb. 131; Clussman v. Merkel, 3 Bosw. 402; Brooks v. Christopher, 5 Duer 216; Smith v. Kobbe, 59 Barb. 289; Wagner v. Finch, 65 Barb. 493; Barren v. Sanford, 1 Hun 625; Lathrop v. Brainhill, 3 Hun 394; Kerslak v. Schoonmaker, 1 Hun 436. For these errors of the referee a new trial should have been granted. Beach v. Cooke, 86 Am. Dec. 260; Allen v. Way, 7 Barb. 585. On the point of the improper admission of certain evidence before the referee appellant cites Meyers v. Betts, 5 Denio 81; Monble v. Sykes, 2 So. Rep. 701; Rabette v. Orr, 3 So. Rep. 420; Clark v. Crandall, 3 Barb. 612; De la Reva v. Berreysa, 2 Cal. 195; Phelps v. Peabody, 7 Cal. 50; Goodrich v. Mayor, 5 Cal. 430; Plant v. Fleming, 20 Cal. 92. Appellant denies that a partnership existed, but granting this to be the fact the plaintiff cannot recover, because he seeks to recover profits made from the sale of intoxicating liquors, sold, so far as he is concerned, without a license, and hence illegally, and the law will not aid him in recovering. State v. Commissioners, 22 Fla. 1; Mitchell v. Scott, 62 N.H. 596. Holding that a landlord cannot recover rent for a building used for the sale of intoxicating liquors without a license. Adams v. Hackett, 59 Am. Dec. 376; Webb v. Fulchire, 40 Id 419; Lemon v. Grosskopff, 99 Id 65; O'Donnell v. Sweeney, 36 Id 336; Miller v. Davidson, 44 Id 417; Gravier v. Carroby, 36 Id 608. Where the law prohibits a business without a license, and one contracts to exercise such calling and has no license, he cannot sue upon the contract. De Well v. Lander, 39 N.W. 349. The imposition of a penalty for doing an act implies prohibition, and a contract based upon the performance of such an act is void. Solomon v. Dreschler, 4 Minn. 278; Ingersoll v. Randall, 14 Minn. 400. This action is in effect an action to recover the profits made by him on the sale of intoxicating liquors sold without a license, and he cannot recover. Melchior v. McCarthy, 31 Wis. 252; Insurance Co. v. Harvey, 11 Wis. 394; Clemens v. Clemens, 9 Am. Rep. 709; Gregory v. Wilson, 13 Am. Rep. 451; King v. Winants, 17 Am. Rep. 11; Hardy v. Stonebraker, 31 Wis. 647; Griffith v. Wells, 17 N. Y. Com. Law 339.
Bangs & Fisk, for respondent:
Where the record admits of two interpretations, that one which will sustain the ruling of the court below will be adopted. Railroad Co. v. Cowgill, 24 P. 475. Appellant objected to the referee making any rulings whatever, and hence cannot predicate error upon his failure to do so. A party cannot assign that for error which he himself has invited the court to commit. State v. Beaty, 25 Mo.App. 214; Chambers v. Walker, 6 S.E. 165; Golder v. Mueller, 22 Ill. 527. Objections made before the referee and not renewed before the court, are deemed abandoned. Fox v. Moyer, 54 N.Y. 125; Gill v. Russell, 23 Minn. 362; Railroad Co. v. Moyer, 17 A. 461. A report of a referee and the rulings of a trial judge will be presumed to be correct until the contrary is shown. West v. Von Tuyl, 23 N.E. 450. The findings of a court or referee are conclusive as to the facts found, if there is any evidence tending to establish such facts. Runnels v. Moffat, 41 N.W. 224; Burtel v. Mathias, 24 P. 913; Bank v. Judson, 25 N.E. 392; Morgan v. Botsford, 46 N.W. 230; Yocum v. Haskins, 46 N.W. 1063; Holmes v. Roper, 32 N.Y.S. Rep. 470; Musgrove v. Buckley, 21 N.E. 1021; Ensign v. Ensign, 120 N.Y. 655. And this rule applies in equitable as well as legal actions. Wells v. Wells, 24 P. 752. The conclusions of a master in matters of fact have every reasonable presumption in their favor. Callaghan v. Myers, 9 S.Ct. 177; Wilson v. Railroad Co., 21 N.E. 1015. No exception will lie to the allowance of a leading question by a referee. O'Neill v. Howe, 31 N.Y.S. Rep. 272. The admission of incompetent or mere cumulative evidence is not prejudicial error where the same facts are established by competent evidence. People v. Lattimore, 24 P. 1091; Campbell v. Carnahon, 13 S.W. 1098; Odom v. Woodward, 11 S.W. 925; Insurance Co. v. Hayden, 13 S.W. 585; Gas Co. v. Insurance Co., 71 Wis. 454; Columbus v. Strassuer, 25 N.E. 65; Partridge v. Ryan, 25 N.E. 627; in re Crawford, 113 N.Y. 560. It will be presumed that improper evidence was discarded from his consideration by the trial court or referee when deciding the case. Wilson v. Railroad Co., 21 N.E. 1015; Creager v. Douglass, 77 Tex. 484; Railroad Co. v. Lewis, 20 P. 310; State v. Denoon, 11 S.E. 1003. A judgment will not be reversed on account of errors where the whole record discloses that substantial justice has been done. State v. Finney, 25 N.E. 544. If the partnership contract was illegal, it is well settled that the illegality of a contract, if relied upon as a defense, must be pleaded. Railroad Co. v. Miller, 21 N.W. 452; Norton v. Blum, 39 Ohio St. 145; Suit v. Woodhall, 116 Mass. 547; Cardoze v. Swift, 113 Mass. 250. A defendant who has not pleaded illegality in the contract sued on, has no right to offer evidence of such illegality, or even to avail himself of it when disclosed in plaintiff's testimony, if the court does not refuse to entertain the case. Granger v. Ilsley, 2 Gray 521; Bradford v. Tinkham, 6 Gray 494; Libby v. Downey, 5 Allen 299; Goss v. Austin, 11 Allen 525. It is well settled that after the illegal contract has been executed, one party in possession of all the gains and profits resulting from the illicit traffic and transaction, will not be tolerated to interpose the objection that the business that produced the fund was in violation of law. Gilliam v. Brown, 43 Miss. 641; Farmer v. Russel, 1 B. & P. Rep. 296; Tenant v. Elliott, 1 B. & P. Rep. 3; McBlair v. Gibbs, 58 U.S. 232; Kinsman v. Parkhurst, 59 U.S. 385; Bank v. Bank, 16 Wall. 483; Brooks v. Martin, 2 Wall. 70; Pfeuffer v. Maltby, 54 Tex. 454. The relations of partners are that of trustees for each other. Each member of a partnership must account to it for everything that he receives on account. thereof. When appellant received the profits of the concern he acted in a fiduciary capacity, and an implied contract arose that he would account therefor. Compiled Laws, N. D., §§ 3911, 3934, 4036, 4038, Betts v. Letcher, 46 N.W. 198.
OPINION
The opinion of the court was delivered by
Most of the alleged errors in the case are not properly before us. The action was for dissolution of a co-partnership between plaintiff and defendant. The issues coming on for trial at a regular term, the court made an order of reference, referring the action to a referee, "with the usual powers." One of the errors assigned is the action of the referee in reporting findings of fact and conclusions of law. It is insisted that the order of reference is not broad enough to warrant the exercise by the referee of such power. The answer to this claim, is the consent of the defendant and appellant made in open court, that the case be referred "to take testimony and report." In all cases it is the duty of the referee to report the evidence, and the word "report" in the consent is unnecessary, unless it be construed as embracing the report of findings of fact and conclusions of law. Moreover, the order in terms referred the action, i. e., the whole case, and was not limited to any specific issue or fact. Where the order is upon consent, it may direct the reference to...
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