182 N.C. 579 | N.C. | 1921
after stating the ease: The question in this case turned largely upon whether the defendants were partners in the transaction upon which the plaintiff declares. There was more than ample testimony to show that they were such partners. The defendant Joe M. Burlison signed the contract along with the plaintiff, and agreed to take and pay for the timber or logs which were merchantable, and which would saw out sound lumber. The codefendants, Greenwood and Black-stocks, if they were partners of Burlison would, of course, be responsible equally with him. The following are some of the facts tending to establish the copartnership between the defendants: The instrument executed by Greenwood and Blaekstocks to Burlison some time after the contract was made, the signature of Burlison and Blaekstocks to the note and the statement of Blaekstocks that they were partners at the time this contract was made and the conduct of the partners, especially when plaintiff demanded his money, and lastly the most significant fact is the admission of the partnership by defendants in paragraph one of the answer in this action.
1. There was an abundance of evidence to warrant the jury in finding that Greenwood and Blaekstocks were partners with Burlison, and certainly enough to go to the jury, and the jury has so found. Greenwood and Blaekstocks did not refuse to pay the plaintiff on the ground that they were not partners with him, but stated that the logs did not come up to the contract, and Blaekstocks said that the reason Burlison signed his name to the note was that they were partners “over there” at that time, and this is reinforced by the conveyance from Greenwood and Blaekstocks to Burlison and other proof of the partnership, as, for instance, the admission in the answer, as above noted, that the three composed the partnership. There is no' substantial merit in this exeep-tion.
3. The court stated the contentions of the plaintiff as to the partnership, and also charged the jury that if plaintiff had shown by the greater weight of the evidence that, though Blackstocks and Greenwood may not have signed the contract, they were really interested with Burlison, as partners, in the logs conveyed by the contract, that they were going to manufacture them together, and thus engage in the joint enterprise, and that Burlison only represented them, then, and in that event, not only would Burlison be responsible to the plaintiff, but the other two defendants would be liable to him for all merchantable logs plaintiff delivered to the defendant’s yards, the designated place of delivery, provided plaintiff complied with his contract.
4. Counsel do not state enough of the charge of the court to show just what the judge meant when he said that the defendants had not gone on the stand, and when the charge is read, as fo this point, it will be seen that the court was giving the contentions of the defendants, and that it was not necessary for them to go upon the stand, since they contended that the logs were not up to the contract. But if defendants failed to prove material facts which they could have shown by their own testimony, their failure to become witnesses was the subject of fair comment. Goodman v. Sapp, 102 N. C., 477; S. v. Turner, 171 N. C., 803; 16 Cyc., 1062; Powell v. Strickland, 163 N. C., 393.
5. It was not denied that the defendants sawed a portion of the logs into lumber, and, of course, this was an acceptance of a portion of the logs, at least, and the court was warranted in so charging to this effect.
6. The court charged the jury that Burlison could not reject all of the logs, but only such part as came up to the contract he would have to take. This was the correct rule of law applicable to the case.
7. There is nothing in the charge to sustain this exception, and the same has been fully answered in the remarks above. "When all the charge is taken and construed together, as it should be, the rule of law was correctly laid down by the court.
8. We can see no error in this exception. The court charged the jury, at all times, that the burden of proof was on the plaintiff to satisfy them by the greater weight of the evidence that he had complied with the terms of the contract, which had been offered in evidence, before they
That part of tbe charge, as to accepting a part of the timber being equivalent to an acceptance of all, was evidently meant to be confined to tbe merchantable timber, or such as complied with tbe description of tbe contract, and it was not intended to say that an acceptance of tbe merchantable timber would bind tbe defendants to take tbe whole lot whether of that kind or not. We could not possibly attribute any such meaning to tbe very learned and accurate presiding judge, and, besides, tbe context discloses tbe real meaning to be that defendants were bound only to take tbe timber, which was of tbe kind tbey contracted to receive and pay for, and could not reject “any” if some of it was of that description, tbe word “any” being palpably used for “all,” and tbe jury could not, as intelligent men, have otherwise understood tbe language of tbe court, even though tbe phraseology may not have accorded with tbe highest and best standard of expression. Tbe charge must be taken and construed as a whole, in tbe same connected way it was delivered to tbe jury, and we must not trust to mere conjecture that tbey may, perhaps, have misunderstood, and thus have been misled, but it should clearly so appear before we can reverse for that reason. It would not be fair to tbe judge to select only one isolated passage in bis instructions, but each clause should be considered in the light of what precedes and follows it, so that we may look at tbe charge in its entirety. This has always been tbe rule here and elsewhere, for it is tbe essence of reason and justice. S. v. Exum, 138 N. C., 599; Kornegay v. R. R., 154 N. C., 389; In re Hinton’s Will, 180 N. C., 206, 213.
As to tbe failure of tbe defendants to take tbe stand as witnesses in their own behalf, tbe case of Goodman v. Sapp, 102 N. C., 477, furnishes a full answer to this objection, but as this practice does not seem to be well understood, we will refer more particularly to some of tbe authorities. Tbe power and duty of tbe court to check counsel when abusing bis privilege in commenting on witnesses and their testimony, and on tbe conduct of parties to the action, is clearly settled by many decisions. Very soon after tbe change by statute, allowing parties to actions to testify, it was adjudged that the mere fact that a party, plaintiff or defendant, did not testify in bis own behalf was not tbe proper subject of comment. In Devries v. Phillips, 63 N. C., 53, tbe court was asked to charge tbe jury: “That inasmuch' as. tbe defendant was a competent witness, tbe fact that be did not offer himself as a witness in bis own behalf, authorized tbe jury to presume tbe facts against him. His Honor declined to give tbe instruction, but charged tbe jury that tbey might consider the circumstances and give to it what weight tbey might
It seems tbat Goodman v. Sapp, supra, and tbe later cases approving it, has settled tbe law in this respect, notwithstanding tbe varying and not altogether consistent expressions used in some of tbe previous decisions cited above.
¥e bave examined tbe record witb care, and can find no reason to disturb tbe verdict of tbe jury or tbe judgment of tbe court below. On tbe contrary, we are of tbe opinion tbat tbe case has been properly, fairly, and correctly tried, and tbat tbe jury drew thé right conclusion from tbe evidence.
No error.