65 S.E. 520 | N.C. | 1909
This action was brought by the plaintiff to dissolve a partnership existing between him and the defendant, and for an account and settlement of the business and affairs of the partnership. There was evidence tending to show that the parties were engaged, as partners, in conducting "a general mercantile, sawmill and lumber business." The defendant averred in his answer and introduced evidence to show that the firm was engaged only in a mercantile business and that the "sawmill and lumber dealings" were not a part of the transactions of the firm. He also alleged that the partnership was dissolved in 1899, more than three years before this action was commenced, and pleaded the statute of limitations in bar of the action. The plaintiff alleged that the firm was not dissolved in 1899 and never had (14) been dissolved, but that the business was discontinued and he took possession of its assets for the purpose of paying its outstanding debts and liabilities. The defendant also averred that the plaintiff had agreed with him to take the assets of the partnership and assume and pay its debts. There was a controversy between the parties as to whether the "hotel and lot at Kelford" were purchased with funds belonging to the firm, but this matter was settled, as will appear by the judgment, and is eliminated from the case. The plaintiff set up the records in former suits as an estoppel or res judicata, but these records are not before us and their contents do not in any way appear. This defense, therefore, fails because there is no evidence to sustain it.
The defendant moved to nonsuit the plaintiff, which motion was overruled.
The defendant then requested the court to charge the jury as follows: "The defendant contends that the plaintiff's evidence is uncertain, not *14 strong, not positive, and that it is not supported by other witnesses. He also contends that his evidence is clear and positive, and that it is supported by disinterested witnesses. That is for you (the jury) to determine. The law has a rule for weighing all testimony. If witnesses are in all respects of equal character and credit, the law attaches greater weight to the evidence of the witness who is positive and supported than it does to the evidence of one who is doubtful or undecided and unsupported. With the rules of law as your guide, you are to ascertain the quality and character of the evidence in this case."
This the court gave, but refused to give the rest of the instruction as requested and which is as follows: "If you find by the greater weight of the testimony that plaintiff's testimony on the fourth issue is not positive and is unsupported, and that the defendant's evidence is positive and supported, then you will answer that issue `Yes.'"
The court submitted certain issues to the jury, which, with the answers thereto, are as follows:
1. Is the plaintiff's cause of action barred by the statute of limitations? Answer: No.
2. Was the lumber plant and its business, including the purchase and manufacture of timber and lumber, embraced in the partnership of Baker Brown? Answer: Yes.
3. Were the hotel and lot at Kelford purchased with any of the funds of the partnership of Baker Brown, in whole or in part? Answer: Yes; in part.
4. Was there a dissolution and settlement of the partnership, (15) and did Baker, the plaintiff, agree to assume the debts of the partnership, take the property of the firm and other property, and release Brown, defendant, from all liability on account of said partnership? Answer: No.
5. Did the plaintiff, Baker, receive from his partner, Brown, sufficient assets of the firm of Baker Brown to pay the debts of said firm? Answer: No.
Upon motion of the plaintiff, the answer to the third issue was set aside, and the plaintiff consented that said issue should be answered No, which was done.
There was evidence supporting the respective contentions of the parties in respect to the issues submitted by the court. The defendant moved for a new trial; the motion was overruled and judgment entered upon the verdict for the plaintiff. The defendant, in apt time, excepted to the several rulings of the court, which were adverse to him, and appealed from the judgment.
The defendant's motion to nonsuit the plaintiff, because the action is barred by the statute of limitations, was properly overruled. If *15 this be the proper method of raising that question, as to which we express no opinion, there was abundant evidence to show that the action was not barred. Indeed, there was scarcely any evidence to the contrary. If there was such evidence, it was the province of the jury to pass upon the conflicting proof and determine, under instructions of the court, as to the law, whether the action was barred.
It is well settled by the authorities that partners stand in a fiduciary relation toward each other. The same rule and tests are applied to the conduct of partners as are ordinarily applicable to that of trustees. In law the functions, rights and duties of partners, in a great measure, comprehend those both of trustees and agents. We so held in Pattersonv. Lilly,
The court properly rejected the latter portion of the instruction which the defendant requested to be given to the jury in regard to the nature of the evidence adduced by the parties and the weight to which it was entitled. It was for the jury to pass upon the weight of the testimony and its sufficiency to establish any particular fact, and not for (17) the Court. Indeed, the instruction given by the court in response to the prayer was quite as favorable to the defendant as the law permitted it to be, and he has no reason to complain that a part of the instruction was omitted.
The refusal of the court to dismiss the action "as to the dealings in lumber and timber" was not erroneous, as there was some evidence that they were transactions of the partnership.
The defendant moved to set aside the verdict because the plaintiff had talked to one of the jurors. This was not proper conduct on the part of the plaintiff, when unexplained, but the evidence shows that it was inadvertent and that what he said did not even remotely relate to the case tried by the jury of which he was a member, and was utterly harmless. It had no influence whatever upon the jury or the juror with whom the plaintiff talked, and the court so finds the facts to be. As was said by JudgePearson, in S. v. Tilghman, 33 N.C. at p. 552, "Perhaps it would have been well had his Honor, in his discretion, set aside the verdict and given a new trial as a rebuke to the jury and an assertion of the principle that trials must not only be fair, but above suspicion. This, however, was a matter of discretion, which we have no right to reverse. Our inquiry is, was the misconduct and irregularity such as to vitiate the verdict, to make it in law null and void and no verdict?" *17
That case is an authority for the position that, under the facts of this case, the motion for a new trial was addressed to the sound discretion of the court. "When the circumstances are such as merely to put suspicion on the verdict by showing, not that there was, but that there might have been undue influence brought to bear upon the jury, because there was opportunity and a chance for it, it is a matter within the discretion of the presiding judge; but if the fact be that undue influence was brought to bear upon the jury, as if they were fed at the charge of the prosecutor or prisoner, then it would be otherwise." S. v. Brittain,
The request of the plaintiff that he be allowed to offer additional testimony after the motion to set aside the verdict had been heard upon evidence already introduced, and had been finally submitted to the judge for his consideration and decision, was clearly a matter within his discretion, and its refusal is not subject to review in this Court.
Upon a review of the whole case, we find no error in the rulings and judgment of the court.
No error.
Cited: Lewis v. Fountain,