Cossack v. Burgwyn

• Decision Date: 09 February 1893
• Citation: 16 S.E. 900,112 N.C. 304
• Parties: COSSACK et al. v. BURGWYN.
• Court: North Carolina Supreme Court

16 S.E. 900

112 N.C. 304

COSSACK et al. v. BURGWYN.

Supreme Court of North Carolina

February 9, 1893

Appeal from superior court, Vance county; BRYAN, Judge.

Action by Cossack & Co. against W. H. S. Burgwyn to recover an amount due plaintiffs from the Henderson Tobacco Company, in which plaintiffs allege defendant was a partner. Judgment for defendant. Plaintiffs appeal. New trial.

Where a person advanced money to a manufacturing partnership, to enable it to carry out a contract to manufacture a commodity and, by the agreement under which the loan was made, the repayment thereof, as between the parties, could only be enforced against the profits arising from the contract to carry out which the loan was made, the trial court erred in holding that there was no evidence to fix on such person the liability of a partner in such manufacturing concern.

The following issues were submitted to the jury: (1) Is the defendant company indebted to plaintiffs, and, if so, in what sum? (2) Was W. H. S. Burgwyn a partner in the Henderson Tobacco Company when said debt was contracted? Several contracts were introduced by the plaintiffs for the purpose of showing the relationship existing between the said Burgwyn and Dangerfield, Jenkins, and others, trading under the name of the Henderson Tobacco Company. It appears that the said Burgwyn indorsed a note of $5,000 for the said firm, and also agreed to advance it as much as $5,000 during the 12 months succeeding the date of the contract of the 20th of December 1889. On the same day, and in pursuance of said contract, the said firm executed to Burgwyn a bill of sale of its stock machinery, etc., for the purpose of securing the said indorsement and advances. One of the objects, at least, of the indorsement and advances was to enable the said firm to perform a certain contract which it had entered into with one Thomas H. Blacknall, by which it was to manufacture a large amount of smoking tobacco of certain specified brands, and the said Blacknall, was to sell it at a price which would net the company an estimated profit of $39,000. The contract with Burgwyn further provides that the said firm shall do all its "collecting of drafts for sales of tobacco, and other banking business, through the said Burgwyn's bank," at the usual bank charges; that it shall make a monthly exhibit to said Burgwyn, by showing its books, etc., "of the condition and workings of its business;" and the members of said firm further agreed not to enter "upon or engage in other business for the next year other than the carrying out of the said contract with the said Thos. H Blacknall." After stating that the indorsed note and advances shall be paid, the contract further provides (paragraph 9) that the said parties shall give their note to said Burgwyn "for the sum of five thousand dollars, due one year from date, on which said monthly payments of five hundred dollars shall be indorsed as they are respectively paid." The other contracts relate to changes in the firm, and other matters subsequently occurring, which are not material to the determination of the case. No testimony was introduced in behalf of the defendant Burgwyn, but it was in evidence that on an examination before the clerk he was asked the following question: "Please state what was the consideration of the $5,000 note of December 20, 1889, due one year after date, of Dangerfield and Jenkins, to you?" He answered "that the note of December 20 1889, for $5,000, was executed in pursuance of ...