*1 THE SUPREME COURT. IN Windley. Supply Oo. that the administrator prove in case tending this There is on him. imposed in the law duty failed the determination of the have been submitted to The issue should instructions. proper under

New trial. WINDLEY, D. M. MELSON WINDLEY COMPANY v. AYCOCK SUPPLY and W. S. RIDDICK. (Filed 1918.) September, Partnership Negotiable of Actions. Instruments —Seal—Limitation 1. — note, signed by partnership, promissory his one of a with seal after A firm, purchasing agent others, name, for the in behalf of the or as own a partners, though simple a contract under seal as to the other contract three-year signing, the one thus and is barred as to others as to limitations. statute of Ratification—Knowledge. 2. Same — ratify partnership subsequently In for members of a the action order seal, repel giving in the bar of one of them the firm’s note under three-year limitations, necessary it is to show that the acts the relied statute knowledge seal. on were with that the instrument was under 3. Same —Evidence—Trials. necessary seal is not to secure a lien for A note under partnership advances; only and where the evidence tends to show partners gave farming purposes, and that one of the the firm’s note under applied proceeds payment seal, farmed ahd towards the other partner note, it is not sufficient to show that the other acted with knowledge repel that the note was under the bar of the three- of limitations as to him. statute opinion. X, dissenting; Hoke, X, concurring dissenting in

Walker, Bond, February Term, 1918, ActioN tried before Jat Beaufobt, issues: upon these plaintiff, so, 1. defendant S. Riddick indebted to Is the 1910. $252, amount? Answer: with interest from November what limitations, barred statute of in tlie alleged 2. Is said defendant Answer: No. answer? consent, against M. rendered, by defendants Daniel

Judgment and Melson made the order: judge following

After verdict in the of discretion, “The as a matter of law exercise court, case on the verdict rendered this the second issue set aside orders FALL TEEM, N. O.] -Windley. v. Oo. *2 It for trial as said second issue. does so because case stand to the they have the believed opinion charged

its it should they be as it tended to prove evidence and found facts to ” ‘Yes.’ answer second issue excepts To this and plaintiff appeals. MacLean, Small, Rodman Bragaw plaintiff. & for Tooly, Harry

John H. MoMullan for defendants. personal judg- The action is to recover a purpose J. this BbowN, bond, seal, reading ment a under defendant W. S. Eiddick on against as follows: Beaufort, of N. C.

Belhavek-, County of State 1910. . 13 Date, May, $549.56. ma- On 1st from day November, 1910, or before the with interest I turity, annually, promise pay Aycock to to order of C. P. payable five for Supply forty-nine dollars, hundred and and 56-100 Company n and offset, exemptions value without the homestead all other received, by are waived as to debt evidenced this note. hereby hand and seal. D. M. my Witness WiNdley, (seal) and S. Riddick Purchasing Agent for Self Windley.

and Melson Witness: O. C. SwiNdell. for farm and advances and was secured given supplies

This bond a and crop cotton, an lien of same date corn by agricultural three during year by 1910 on farm cultivated potatoes grown as lien also the sum of partners. defendants The secured by plaintiff balance due on advances $215.88, copartnership statute of pleads years 1909. The defendant Eiddick three action was December, limitation. This commenced 7 1915. instru-

It well settled to that where a written dispute is too admit of ment behalf of partner is executed on an individual copartnership, simple firm’s name the instrument is the signs it, affixes seal to the individual firm, although contract of the it is the sealed covenant of after it. An barred on instrument partner who executed action is such time copartner- three from the the cause of action arose to the as ship members as to the individual who executed thereof, except Linthicum, C., affixed v. 100 N. instrument and the seal. Burwell 147. In v. Henry, Judge 51 N. declares the Fronebarger C., 548, Ruffin by

rule law to of the common be that one bind another partner cannot deed merely, virtue of his instru- authority partner and that such IN THE SUPEEME COURT. Oo. v.

ment, under becomes tbe deed of tbe executing alone. Tbe party discussed subject fully learnedly by Judge Battle in Fisher v. Pender, C., N. 483.

Tbe learned counsel for seeks avoid plaintiff tbe effect of tbis established to sbow tbe principle attempting defendant Riddick rati- fied tbe act of a sealed Windley executing instrument executed aby member firm, adopted of tbe wben so and ratified it becomes tbe bond of eacb member as well as of tbe one wbo executed it. v. Day Johnson, Lafferty, Ark., Notes to Bank 14 Ann. Cases, where tbe cases are collected. But these “a authorities also bold that partner cannot be with tbe charged ratification of a sealed note where it does that be appear knew be was ratifying sealed note.”

In view of these authorities we with tbe agree learned judge there is no sufficient an evidence of of tbe adoption ratification *3 instrument as covenant under seal.

It is true that testified Windley that “Riddick knew about tbe execu- tion the and papers why of were executed they firm,” for tbe but there evidence that Riddick saw tbe that papers or knew a bond under no seal bad been He knew an given. that lien bad agricultural been exe- cuted tbe for crops supplies and but as fertilizer, such an instru- seal, ment does not and require as ordinary promissory notes require no be did not know either seal, from tbe character of tbe or from papers statement that a Windley’s sealed instrument that would bind him for ten bad been executed. Neither think do we tbe evidence of pay- ments shows ratification of a sealed instrument. Tbe evidence is that Riddick tbe farm operated during 1910 and “received and applied tbe that were made.” crops Tbe answer of Riddick admits “that S.W. Riddick paid plaintiff tbe sum of $513.51 on or about 1 1911.” January, A of that part money, seems, it plaintiff applied to tbe debt of and tbe balance of tbe bond sued on.

Tbis no payment is evidence of because it ratification, appear does not that Riddick knew that tbe instrument was under seal before be made it, and, further, because payment tbe was one Riddick was to compelled make. He was undoubtedly bound by tbe and tbe lien, law itself compelled tbe application of tbe crops to tbe discharge of such lien. It is an indictable offense to refuse willfully apply to so them and otherwise dispose of them.

It may appear on tbe next trial that Riddick knew of tbe character of tbe instrument and that be adopted and ratified it as a instru- sealed ment, but tbe evidence on tbe last trial was not sufficient it. to establish Tbe order granting new trial on second issue is

Affirmed. TEEM, FALL

(cid:127)N. 0.] v. Oo. at that there is least some think J., dissenting: "We Walker, ahd the instruments —the note knew the sealed S. Eiddick of that W. sealed alike. D. M. Wind- and signed there of them lien —for were two in the business. Eiddick were parties and S. ley, Windley, Melson papers in 1910 and executed the bought D. fertilizers Windley M. the mem- the firm and one of for the agent under a seal to his own name Eiddick,” superin- farm who it. the over bers of He then “turned M. told it, Windley received D. time, and when he tended it after that “these," firm —the the note and papers him that he had executed those description but answering lien. There were no other papers the note. He further testi- on money Eiddick question. paid now these me papers by execution fied, “Mr. Eiddick knew about the large to a money Eiddick paid for the firm.” why were executed they if he not it would did note, strange he amount that on credit so the note and lien that proper require production the usual on the note. This is he on or at least them, entered men. by prudent such business way doing universal almost knew execution of the Eiddick of the O. P. also testified that Aycock contention, There is no at time made payment. he papers than referring any papers were other be, cannot the witnesses Windley did know that Eiddick testified that he the note and lien. contradicted papers and executed the for it. He bought guano had jury, was for the witnesses, testimony but this conflict the other inference well draw the not for the court to settle. The could had testified, had Eiddick seen Aycock from what Windley his called to had been contents, including or their papers, existence of having knowledge we of one speak attention. When *4 also nature and knowledge to him of its thing thereby impute we parts. of its component characteristics or been

If he knew that note and lien had the witnesses had said that it as that was not evidence there be room to contend given, might and definite reference words, of but those are not knowledge had annexed to the name made to that the seals very papers was these of Windley. Direct have verdicts on less evidence more than once.

We sustained by fair not but the matter be left to inference required, may evidence is It would be and unusual that a man should conduct jury. strange for months under written instruments and important operations know their a' loose ask to see them or not contents. It would be very way to transact business and should not be inferred unless clear may of the fact. Juries take such matters into consideration proof His draw conclusions therefrom in connection with other their facts. he had told of in testi- papers all, denial that been at the face of the IN THE SUPREME COURT. 22 v. R. R.

Belch mony of two witnesses, credible was not favorable to him. Even tbougb slight, be a fair inference can be drawn from it of the exist ence of the fact to be it go jury. to the S. v. proved, Fanning, N. 94 940. It is not insufficient because it is weak. S. 115 C., v. Kiger, C.,N. 746. And those were criminal cases. But is this case taken out conjecture of realm of the definite reference papers”— to "these is, controversy. those in There can be doubt that no the defendant justly owes the debt. The so found, there no exception by him.

R. L. AIR BELCH SEABOARD LINE RAILROAD COMPANY.

(Filed September, 1918.) Employer Employee Employers’ 1. Master and Lia- Servant — —Federal bility Act —Statutes. Employers’ Liability Act, Stat., Supp., Anno., The Federal Fed. p. regulating physical injuries employees suits for or death rail- of of engaged by commerce, wrong- roads while as common carriers of interstate fully negligence agents officers, employees caused or of such carriers, machinery, etc., negligence cars, engines,- appliances, or of reason in their essentially negli- so modifies common-law actions of gence coming provisions properly regarded all suits under its are as statutory controlling liability and affords rule exclusive of liability, suits of this character instances it in which excludes well as liability imposed. in which those is 2. Actions —Time for Commencement —Limitation of Actions. Employers’ Liability Act, providing Section 6 of the Federal no action shall be maintained under this act unless commenced within two years day accrued, from the the cause of action is not in strictness a stat- affecting only remedy, statutory ute of limitation is but condition liability affecting complied right the claimant’s which action must have b'een may with in order that he sustain it. 3. Same —Nonsuit. Revisal, 370, allowing brought sec. a new action be within twelve nonsuit, inoperative Employers’ months after bility where the Federal Lia- subject-matter, Act controls the and will not be affect allowed to requiring, exception modification, section of the Federal act without or coming provisions that actions within its shall not be maintained there- day under unless within two from commenced cause *5 accrued; may action and the State statute extend the time of com- mencing greater period such action for a of time than the Federal statute allows.