Little v. Little

• Decision Date: 21 August 1891
• Citation: 2 N.D. 175,49 N.W. 736
• Parties: Little v. Little, (two cases.)
• Court: North Dakota Supreme Court

2 N.D. 175

49 N.W. 736

Little

v.Little, (two cases.)

Supreme Court of North Dakota.

Aug. 21, 1891.

Syllabus by the Court.

1. Referee's report examined, and the findings held to be supported by the testimony.

2. Where copartners, who have had differences arising out of their joint business, voluntarily and at arms-length enter into a written contract dissolving their partnership relations, and by its terms make full and detailed arrangements for a separation and a division of their joint property, and provide fully for the payment of the firm debts, held that, in the absence of allegation and proof to the contrary, all of such differences will be presumed to have been merged and adjusted by the contract of dissolution.

3. Held, further, that in the absence of proper allegations and proof that such contract was obtained by duress or fraud, or was entered into under a mistake of fact, such contract will not be set aside on the sole ground that one of the parties did not read the same or know the contents before it was signed.

4. The referee made his report embracing findings, whereupon the plaintiff moved for judgment thereon. Defendant opposed the application, but did not raise the point that an order confirming the report had not been previously made. The trial court on such application did not direct the entry of judgment, but resubmitted the case to the referee, and, after taking additional evidence, the referee made his final report embracing his findings. Plaintiff applied for judgment based upon the final report. Defendant's counsel did not appear, but duly waived notice of such final application for judgment, and at no time in the court below raised the point that the final application for judgment was not preceded by an order confirming the report of the referee. Held, that defendant has waived the irregularity, if such it was, and cannot raise the point for the first time in this court.

5. Whether, under existing statutes, in cases like this, it is proper practice to procure an order confirming the referee's report before applying for judgment, not decided.

Appeal from district court, Traill county; Charles F. Templeton, Judge.

Actions by Samuel Little against Helen M. Little for the recovery of money due on dissolution of a partnership. Judgment for plaintiff. Defendant appeals. Affirmed.

A. B. Levisee, ( M. A. Hildreth, of counsel,) for appellant. Carmody & Leslie, for respondent

Wallin, J.

After the two above-entitled actions were at issue they were consolidated by an order of the district court, and, without objection, were tried as a single action in equity for an accounting between partners. In the action first begun the complaint states in effect that plaintiff and defendant entered into a copartnership, and instituted a business as retail merchants and saloon-keepers at Caledonia, on February 15, 1886, and that said firm continued in business until September 10, 1886, at which time it is alleged that the firm dissolved by mutual consent. It is further stated in the complaint that by agreement of the parties, reduced to writing, said defendant put into said concern as a part of her capital stock certain book-accounts and notes. By the terms of said agreement it was stipulated that any part of said book-accounts and notes which might not be collected at the stipulated time at which the firm was to be dissolved should be charged to the defendant. The complaint charged that when the firm dissolved (September 10, 1886) a part of said book-accounts and notes, of the face value of $566.79, was uncollected. Plaintiff demanded judgment for one-half of said sum, to-wit, for $283.39, with interest. Defendant answered the complaint, and admitted the formation and dissolution of the firm at the time stated in the complaint, but specially denied that the dissolution of the firm was by mutual consent, and alleges that the same was forcibly dissolved by plaintiff, to her damage in the sum of $500, which defendant pleads as a counter-claim. As a 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 as a 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 refrence 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 therefor, directed that said action be again referred to said referee to find certain additional facts, which were specified in the order, and also to find all facts necessary to definitely settle the issues raised by the pleadings and report the same to the court. In obedience to the said last-mentioned directions of the court, the referee, in the presence of the parties, represented by counsel, took additional evidence, and subsequently reported all of the evidence to the court, together with certain findings based upon all the evidence adduced, which findings are as follows:

“That the defendant, Helen M. Little,...