Laws, § 5090, subsec. 2. No such specification having been made, it was the duty of the trial court to disregard the point on the motion for new trial, and this we must assume he did in denying the motion for new trial. A third reason for our ruling is the failure of the defendant to renew his motion to dismiss after he had finished his case, the motion having been made at the close of plaintiff's case. Bowman v. Eppinger, 1 N. D. 21, 44 N. W. Rep. 1000. There was a substantial conflict in the evidence on the question of partnership, and therefore the finding that there was a co-partnership between plaintiff and defendant will not be disturbed. The judgment is affirmed. All concur.
Wallin, J. (concurring.) The opinion of the court in this case, as formulated by the chief justice meets with my approval. For reasons stated in the opinion of the court, the appellant is not in a position to avail himself of the irregularities of practice occurring at the trial. In the interests of a sound practice, however, I deem it proper to add, as my individual opinion, that the order of reference in this case is very faulty. An order sending a case to a referee “with the usual powers” is blind and confusing, and necessarily so in view of the obvious fact that the “usual powers” of a referee will depend wholly upon what the referee is to doin the particular case. The referee’s powers are defined and limited, not only by the statute, but by the terms of the order of reference. In all cases the order of reference should be clear and explicit with respect to the duties required of the referee. If the court making the order desires the referee to determine the action and report findings of law and fact as well as the evidence, it should be so stated in the order; if less than this is intended, the limited nature of the referee’s duties should be clearly defined by the order of submission.
