This is an action brought by plaintiff in error, hereinafter styled plaintiff, against the defendants in error, hereinafter styled defendants, alleging that about the first of January, 1894, the plaintiff and defendants entered into an agreement and contract of copartnership at (Ray Center, Nebraska; the business of said copartnеrship to be to purchase, own and control a printing outfit then known as “The Progress,” a newspaper outfit at Clay ('enter, Nebraska, and to publish said newspaper. That each member of said copartnership was to put into the business the sum of $127.20, which money was to be used in the purchase of the printing outfit, above described, the payment of the indebtedness due upon the same, and also to pay one claim due to the plaintiff from the former owners of said printing outfit, in the sum of $312.50. That they proceeded to and did purchase said printing outfit, and did run said newspaper. That the defendants have failed, neglectеd and refused to pay in the amount of money agreed to at the time, and have never paid into said partnership any other sum except the amоunt of $87.50 each; that they have neglected, failed and refused to pay any portion of the amount due to the plaintiff, and that, by reason of said failurе, there is due and owing from the defendants to flu* plaintiff the said sum of $312.50, for which amount he prays judgment.
The matters in controversy in this case were, on May
“This cause coming on further to be heard, now come the parties tо this action, in open court, and consent to the order or ruling of the court as follows: ‘Order setting aside report of referee made November 11, .1901, is sеt aside.’ Case set down for hearing upon report of referee and objections thereto, and motion for new trial. Court to act upon objeсtions at present term of court and to enter final decision for merits, whatever the decision upon objections and upon the testimony taken befоre the referee. Rights of both parties to a bill of exceptions to be fully protected, and all the above by consent of parties, in opеn court, and this cause submitted to the court on report of referee, under above stipulation.”
On March 13, 1903, the court entered its findings and decree, in which it sеt aside the findings and conclusions of
The reason assigned by the court for setting aside the findings of the referee is that said findings were contrary to the clear weight of the evidence. Plaintiff contends that this is not so; that there is ample evidence in the record to sustain the findings of the referee, and that the court erred in setting the same aside. It is urged by defendants that plaintiff can not make such contention in this court, for the reason that, by the agreement, in open court, entered into December 17, 1902, hereinbefore set out, plaintiff consented to the submission of the case to the court upon the evidence taken by the referee, and that the court might make its own findings upon the merits, regardless of its rulings on the objections to the report of the referee. If the contention of the dеfendants is sound, then, the only question for this court to determine is, whether the evidence sustains the finding and judgment of the court. An examination of the record leads us tо the conclusion that this contention of defendants is correct. After the order of the court entered November 11, 1901, setting aside the findings of the refereе and granting a new trial, the parties seem to have been preparing for another trial of the case, which is shown by the settlement with the referee on November 15, and the filing of a reply and issuance of a subpoena on December 16, 1902. On December 17, when the parties were all in court, and, evidently, аfter discussing the mal ter, and all agreeing that the evidence taken before the referee was all the evidence that could be introduced in the case, and, in order to avoid the trouble, time and expense of another trial, it was agreed between them that the matter be submitted to the court upоn the evidence contained in the report of the referee, and that the court should make such findings on the merits as it deemed proper. The cоurt’s entry made at that time is not as explicit as it might have been. The language is, “Case set
“And now, on this same day, this cause coming on further to be heard (the parties having agreed in open court that, in case the findings of the referee should be set aside, the court should make the proper findings upon the evidence as reported by the referee and pronounce judgment thеreon), upon the evidence and arguments of counsel, and the court, being fully advised in the premises, doth find generally in favor of the defendants,” etc.
We think this lаnguage-of the court conclusively shows the true action and intention of the parties on that occasion. ' This being so, then, the only question for our consideration is, whether or not the court erred in its findings and judgment. While we are unable entirely to concur in the view of the district court in holding that the findings of the referee were against the clear weight of the e\idence, we are unable to say that the court’s own findings are not sustained by the evidence. The evidence, in our judgment, was conflicting, and, having been submitted to the district court by the parties, and the court having made its findings thereon, those findings must stand.
We recommend that the judgment be affirmed.
AFFIRMED.