Francis & Brother v. W. J. & J. G. Edwards & Co.

• Decision Date: 30 June 1877
• Citation: 77 N.C. 271
• Court: North Carolina Supreme Court
• Parties: FRANCIS & BROTHER v. W. J. & J. G. EDWARDS & CO.

77 N.C. 271

FRANCIS & BROTHER

v.W. J. & J. G. EDWARDS & CO.

Supreme Court of North Carolina.

June Term, 1877.

CIVIL ACTION tried at Fall Term, 1876, of NORTHAMPTON Superior Court, before Watts, J.

This action was brought to recover $394.56 balance due, alleged to have been furnished the defendants at their request, and paid on a certain draft drawn by them. The defendants denied that this draft was drawn by their authority or for their benefit, and alleged that one J. M. Edwards without their knowledge had shipped five bales of cotton to plaintiffs; and after learning that said shipment had been made, they wrote to the plaintiffs to sell the same and remit proceeds to them, but the plaintiffs failed so to do; and that they never had transacted business under the firm name of W. J. & J. G. Edwards & Co. Wherefore they demanded judgment for amount of proceeds of said sale, which was set up as a counter-claim.

The testimony of the witnesses for the plaintiffs was as follows: W. J. Rogers testified, that from about 1867 to 1873, he was engaged in the commission business in the City of Norfolk, and during that time the defendants were cultivating together a farm in Southampton County, Va., and had frequent dealings with them up to the time he left Norfolk in 1872, and always understood that the firm was composed of the defendants and no one else; that he understood one J. M. Edwards lived on the farm and attended to it for the defendants, and that while doing business as aforesaid, the defendants instructed him not to pay any drafts for money drawn by said J. M. Edwards, out of their funds, and that W. S. Francis, one of the plaintiffs, being a clerk of witness, was directed to make a note of this instruction on the books of the firm of which witness was a member. J. T. Atkins testified, that before this action was commenced he was working on the gin at the home place of W. J. Edwards, in North Carolina, when J. M. Edwards came there under the influence of liquor, and told W. J. Edwards he must go to the house and settle with the hands; that he (J. M. E.) was interested as well as W. J. Edwards, and that W. J. did go to the house.

The plaintiffs then offered to prove that a draft,--“No. 269. Norfolk, Va., Feb. 27th, 1873. The Exchange National Bank of Norfolk, Va., Pay to W. J. & J. G. Edwards & Co. or bearer, five hundred dollars. Francis & Brother,”-- was delivered to J. M. Edwards, and that the amount thereof was paid to him by the drawee. The defendants objected to this evidence on the ground; (1) it was not responsive to the allegation, inasmuch as it was not alleged in the complaint, either that the money was furnished to J. M. Edwards, or that he was a co-partner of defendants; and (2) that the plaintiffs had introduced no evidence to connect J. M. Edwards with the defendants, either as a partner or as an agent authorized to bind them by his contract.

The Court being of opinion with the defendants excluded this evidence and the plaintiffs asked to be allowed to submit to a nonsuit. To this the defendants also objected, and claimed the right to introduce evidence to establish their counter claim. The Court being of opinion with the plaintiffs on this point, directed a judgment of non-suit to be entered; and thereupon the plaintiffs appealed from the ruling of His Honor excluding said evidence, and the defendants appealed from the judgment of non-suit.

Messrs. D. A. Barnes and J. B. Batchelor, for plaintiffs .

Messrs. W. W. Peebles and R. B. Peebles, for defendants .

BYNUM, J.

Before evidence could be received that J. M. Edwards had collected the money on the check of Francis & Brother as the agent of the firm of W. J. & J. G. Edwards & Co., the agency had first to be established, aliunde the declarations of J. M. Edwards himself; and it was incumbent on the Judge to determine whether there was a prima facie case of agency established, so as to render the acts and declarations of such person, the acts and declarations of those whose agent he is alleged to have been. Williams v. Williamson, 6 Ire. 281; Munroe v. Stutts, 9 Ire. 49. No such case of agency was established in this case and for several reasons:

1. The only partnership proved was by the evidence of Rogers, and that was between W. J. & J. G. Edwards in relation to the farm in Southampton, Virginia; whereas the only evidence offered to connect J. M. Edwards with this firm, was that of Atkins, but this evidence related only to the North Carolina farm, which belonged to W. J. Edwards. Therefore giving full force to the declarations of J. M. in the presence of W. J. Edwards and taking the silence of the latter in respect thereto as an admission of all that was alleged by the declarant, the whole amount of it would be, that J. M. & W. J. Edwards were working the North Carolina farm as partners or in some other connection. But as the action is not against this firm, but another--W. J. & J. G. Edwards & Co.,--this evidence does not establish or tend to establish the alleged agency.

2. The silence of a party is not an assent to statements made in his presence, unless the...