The record shows that on motion of the defendant an order was entered March 13, 1876, to recommit this cause to the same referee to take further testimony, instead of retrying the cause, and that the defendant have leave to file an amended answer. The order states that the reference to take further testimony was “ upon agreement o*f parties.” *633This would, seem to remove, all ground of objection to such an order, even if error could otherwise be predicated upon an order to recommit a cause to the same referee to take further proofs, where no consent was given. "Where a new trial is ' ordered, there would seem to be substantial reasons for holding that a party ordinarily has the right to have the cause tried by a new referee, who has formed no opinion upon the facts and law of the case. But, even in that case, can there be room for a doubt that the parties could consent that it should be tried by the same referee? It seems to us not. The scope of the reference here was limited to the taking of such further testimony as might be adduced to meet the new issue which it was expected would be formed by the amended answer: It certainly could not have been intended or expected that the referee would take all the testimony over again, or disregard that which he had already taken, or coniine his finding exclusively tó such additional testimony. Any such construction of the order would be unreasonable. In Bannister v. Patty’s Ex’rs, 43 Wis., 427, the cause was referred, on the application of the plaintiff, against the consent of the defendant, to the original referee, to hear, try and determine; and this court held that the circuit court did not abuse its discretion in the matter, and affirmed the order of reference.
The referee reported all of the testimony taken before him, as well upon the issues formed by the original pleadings as upon the new issue raised by the amended answer. . He also reported his findings of fact and conclusions of law. We certainly can see no error in the practice adopted, of which the defendant can complain.
In respect to the cause itself upon the merits, the referee finds, in effect, that notwithstanding the secret copartnership which existed among the biryers of wheat and farm produce at the village of Waupun, still there was a healthy competition in that trade, and that the plaintiffs paid the defendant a fair market price for whatever grain and produce he delivered to *634them daring the period specified. This being the case, the defendant surely was not injured by the “ secret nominal partnership between the said plaintiffs and all the other wheat and farm-produce dealers in the village of Waupun, which was unknown to the defendant and to the public,” and which, as the defendant alleged, “ amounted to a conspiracy,” which constituted the gravamen of the complaint set up in the amended answer. The learned counsel for the defendant insists that the finding of the referee upon this point is improbable, and contrary to all human experience; and asks us to declare that the combination among the grain dealers must have destroyed all healthy competition, and prevented the defendant from receiving a fair market price for his grain and produce. We can make no such presumption or inference against the direct weight of testimony, as we should surely do were we to so hold. The finding in this regard is abundantly sustained by the evidence, and cannot be disturbed. We need not go into any examination of the testimony upon the subject. It surely does not appear from the evidence that the defendant was injured by the alleged combination among the dealers in grain and produce at Waupun, or that it operated to his disadvantage in any way.
It is further insisted that the court below erred in allowing the plaintiffs interest on the amount which was found due them. But the plaintiffs testified to a course of dealing with the defendant by which they had received and the defendant had paid interest on the money advanced. Under these circumstances a contract for the payment of interest on advances made would be implied in law. This is familiar doctrine.
On the whole record we see nothing which would warrant a reversal of the judgment. It must therefore be affirmed.
By the Oowrt.— Judgment affirmed.