Falkner v. Hunt

• Decision Date: 30 June 1875
• Court: North Carolina Supreme Court
• Parties: NOEL J. FALKNER v. SAMUEL R. HUNT and others.

73 N.C. 571

NOEL J. FALKNER

v.SAMUEL R. HUNT and others.

Supreme Court of North Carolina.

June Term, 1875.

Where, upon the hearing of a Bill in Equity under our former system, this Court sends down issues to be tried by a jury, and the jury finds the issues in favor of the plaintiff, and afterwards A, assignee of the defendants, upon affidavit moves the Court for a new trial, the motion will not be granted where the affidavit of A is contradicted by two affidavits of the plaintiff, although the matter alleged in the affidavit of A be sufficient ground for a new trial.

Where A and B entered into an agreement by the terms of which B was to buy a tract of land of C, on which was a mill seat and mill, and they were to build the mill anew, A was to do the work and B to furnish the material and money, and out of the profits they were to pay for the land and reimburse B for his outlay, and pay the plaintiff for his work, and afterwards they were to share the profits or losses equally as partners, and in pursuance of the agreement the land was bought and the mill built, and became profitable, and B received the profits, reimbursed himself and paid for the land: Held, That A was entitled to an account as a partner, and that it was not necessary that the contract should be in writing.

This was a BILL IN EQUITY, under our former system, and was heard upon appeal in this Court at January Term, 1873, when upon the hearing the following issues of fact were sent to the Superior Court of Franklin county to be tried:

1. Whether said Hunt purchased said land in pursuance and execution of said contract entered into between him and said Falkner before the said purchase, that said Hunt should purchase the same and he and said Falkner should erect a mill and carry on the milling business on said land, or whether it was after said Hunt purchased said land that he entered into a contract with said Falkner in relation to building a mill and carrying on the milling business on the said land?

2. Whether it was agreed between said Hunt and said Falkner in their contract relating to building said mill and carrying on the milling business on said land, that first deducting the ordinary expenses out of the profits of said mill, after paying, out of the residue of said profits, for said land and the work in building the said mill, and the timber and irons used in building the same, then upon the completion of said payment, whenever it might happen, the whole of said land and the said mill should be held by said Hunt and said Falkner as equal partners?

3. Or whether it was agreed between the said Hunt and the said Falkner in their contract relating to building said mill and carrying on the milling business on said land, that if at the end of four years, when the last payment for said land fell due, the said mill had made enough to pay for the cost of the mill and land, with interest thereon, for the cost of building, for the timber and irons and other fixtures, the miller's wages, and for every other expense in building and conducting the mill up to that time, then said Falkner might come in as a partner; but if at the end of four years it failed to do so, then said Falkner should have...