Whalen v. Brennan. the same hereby is, dissolved; that the plaintiff have and recover from the defendant Edward J. Brennan the sum of $3,523.25, and that the plaintiff have and recover from the defendant Thomas F. Brennan the sum of $3,100.46; that the plaintiff take and apply to his own use and benefits the following items of assets of the said firm, to-wit: Funds in the Bank of Commerce, $15.26; due from Charles F. Manderson, $1,558.40, and one horse worth, as per estimate of referee, $100; that plaintiff pay the following liabilities of the said firm, to-wit: To Andrew Murphy, $85; to Dow, $112.35; to McConnell and Orr, $50; to U. S. W. E. & P. Co., $149; amount owing for brick, $116; that the plaintiff have and recover from the defendants Edward J. Brennan and Thomas F: Brennan his costs herein, taxed at $; that the sum of $225 be allowed and taxed as costs in this cause in favor of D. D. Gregory, the referee; that the sum of $175 be allowed and taxed as costs in this action in favor of C. B. Denny, the stenographer reporting the testimony taken before said referee, and that execution be awarded against said defendants for the said several sums of judgment and costs. It is further considered, adjudged, and decreed by the court that in the event of recovery being had against the city of Omaha in the cause of action referred to in the fifth finding hereof, each of the plaintiff and the defendants shall be entitled to receive one-third of the amount so recovered from the said city of Omaha." But two objections are made to this judgment by the defendants, who are the appellants in the case: First, the allowance of the item of $917.11 for the stone for the court house retaining wall; and second, the item of $4,927.68 paid to Woodworth for curbing. On behalf of the appellee it is insisted that we cannot review the findings of the referee because there is no bill of exceptions in the case. In this, however, he is mistaken, as the bill is duly signed by the referee and is in Whalen v. Brennan. proper form. In such case the referee is the proper person to sign the bill. This question has been decided by this court a number of times. (Light v. Kennard, 11 Neb., 129; Turner v. Turner, 12 Id., 161; Gillespie v. Brown, 16 Id., 457.) The bill therefore is properly signed and certified. As no exceptions were taken to the report, the parties are presumed to be satisfied with it, and the only question for consideration is the law as applied by the court. The court below allowed the items of $917.11 and $4,927.68 upon what are known as the Woodworth contracts for stone, and these are the only items of which the defendants complain. As to the first item it is sufficient to say that the parties agreed after the report was filed that it was a subsisting debt and objections to it were in effect withdrawn. This being so, the objections to it will not be further considered. As to the item of $4,927.68 the defense, as we understand it, is that the contract was void, being against public policy. The rule no doubt is that any agreement entered into by parties for the purpose of preventing competition in the letting of public contracts is void; and a like rule obtains where the necessary tendency or effect of the contract would be to stifle competition. To have this effect, however, it must appear that the intent, effect, or necessary tendency of the contract was to stifle competition. (Breslin v. Brown, 24 O. St., 565.) In other words, in considering a contract, "it is not to be forgotten that you are not to extend arbitrarily those rules which say that a given contract is void as being against public policy, because if there is one thing which more than another public policy requires, it is that men of full age and competent understanding shall have the utmost liberty in contracting and that their contracts, where entered into freely and voluntarily, shall be held sacred and shall be enforced in courts of justice. Therefore you have this paramount public policy to consider that you are not lightly to interfere with this freedom of contract." (Jessel, M. R., in Print Clarke v. Van Court. ing, etc., Co. v. Sampson, 19 Eq. L. R. [Eng.], 462-5; 3 Am. & Eng. Ency. of Law, 875-6.) Substantially the same views were expressed by Cole, J., in Richmond v. R. Co., 26 Ia, 191. The same rule is stated in Kellogg v. Larkin, 3 Pinney [Wis.], 123, and Swann v. Swann, 21 Fed. Rep. [Ark.], 299. The finding of facts do not establish the invalidity of the contract in question, and, therefore, it is unnecessary to consider the further question whether or not an action would lie in any event between these parties for an accounting. It is evident that substantial justice has been done by the judgment of the court below, and it is affirmed. If complaint is made as to the taxation of the costs the remedy is a motion for retaxation of the same. THE other judges concur. AFFIRMED. HENRY T. CLARKE ET AL. V. ELBERT D. VAN COURT ET AL. [FILED MARCH 9, 1892.] 1. Trial: PLEADING: EVIDENCE. On the trial of a cause, where the answer of the defendants was a general denial, the court refused to permit proof of an affirmative defense until "the issues are perfected in the case," evidently referring to an amended answer which was soon afterwards filed. Held, That the ruling of the court was not erroneous. 2. The sixth and seventh paragraphs of the amended answer contained matter in the nature of a counterclaim. A motion was made to strike both paragraphs out, "for the reason that they do not state proper causes of defense." The motion as to the sixth paragraph was overruled, but the record failed to show any ruling as to the seventh, and testimony was admited to prove the facts stated therein. Held, That error did not affirmatively appear. 3. : Clarke v. Van Court. Where the answer raised questions as to the nature of the contract entered into by the parties, and the quality of the article delivered under it, to which a reply was filed, the plaintiff in rebuttal may contradict or explain the testimony introduced to sustain the answer. 4. Instructions set out in the record, held, applicable to the testimony. ERROR to the district court for Douglas county. Tried below before Doane, J. John L. Webster, for plaintiffs in error, cited: Vanslyck v. Mills, 34 Ia., 375; Frederick v. Ballard, 16 Neb., 559; Fisk v. Tank, 12 Wis., 306; Pa. R. Co. v. Titusville, 71 Pa. St., 350; Sutherland on Damages, pp. 401-403; Passenger v. Thornburn, 34 N. Y., 634. Bradley & De Lamatre, contra. MAXWELL, CH. J. This action was brought in the district court of Douglas county, by the defendants in error against the plaintiffs in error, to recover a balance of $1,846.24 due upon an account. The original answer was a general denial. On the trial of the cause an amended petition was filed and also an amended answer. The fourth, fifth, sixth, and seventh paragraphs of which are as follows: "These defendants, further answering, say that said plaintiffs, on or about the 18th day of August, 1887, made their contract in writing of that date, by which they agreed to furnish to the defendants screened gravel at $2 per yard, unscreened gravel at 90 cents, and sand at 80 cents per yard, to be used by the defendants in paving in the city of Lincoln, and further say that said plaintiff's furnished to said defendants, under said contract, gravel and sand for a few days only and then refused and neglected to comply with said contract and refused to furnish any further sand Clarke v. Van Court. or gravel under said contract; that shortly thereafter, and about the 1st of September, 1887, said plaintiffs made a new contract with the defendants, agreeing to furnish to the defendants screened gravel, to be used for paving purposes in the city of Lincoln, at $2.25 per yard, and that almost immediately thereafter said plaintiffs refused, neglected, and failed to comply with said contract, and refused and neglected to furnish screened gravel under said contract for the use of these defendants. "Fifth-Defendants, further answering, say that thereafter said plaintiffs made a third proposition to these defendants to furnish unscreened gravel free on board the cars at Lincoln, to be used in paving by these defendants, at $1.50 per yard, and then guaranteed and warranted that said unscreened gravel would yield fifty per cent of screened gravel, and notwithstanding said last named contract, in violation of the guarantee and warranty of the plaintiffs as last above set forth, said plaintiffs did ship a large quantity of gravel to the defendants at Lincoln, but which unscreened gravel was almost wholly useless and valueless for the purpose for which the defendants had contracted for the same, and almost wholly useless and valueless for the purpose of paving, and which unscreened gravel so shipped did not contain fifty per cent of gravel and would not and did not yield fifty per cent of screened gravel, but that the same only contained about ten per cent of gravel, and that the defendants were put to great expense, to-wit, about the sum of $600, in trying to separate the gravel from the sand, and that said unscreened gravel so furnished by the said plaintiffs to these defendants at Lincoln was not in compliance with the terms and conditions of said contract, and of which fact the defendants frequently notified said plaintiffs, and that said unscreened gravel so furnished was of a market value of not exceeding 90 cents per yard. "Sixth-These defendants, further answering, say that |