Hilton v. McDowell

• Decision Date: 31 October 1882
• Citation: 87 N.C. 364
• Court: North Carolina Supreme Court
• Parties: S. H. HILTON v. R. J. MCDOWELL and others.

87 N.C. 364

S. H. HILTON

v.R. J. MCDOWELL and others.

Supreme Court of North Carolina.

October Term, 1882.

CIVIL ACTION tried at Spring Term, 1882, of MECKLENBURG Superior Court, before Gudger, J. Defendants appealed.

Messrs. Bynum & Grier, for plaintiff .

Messrs. Wilson & Son, for defendants .

RUFFIN, J.

In this case a single exception was taken in the court below, and that one was so faintly argued by counsel here as virtually to amount to its abandonment.

The plaintiff sues upon an account alleged to be due him from the defendants, as partners, for lumber furnished them for use at their gold mine, and the only question is, whether by his proofs of the partnership he had prepared the way for the admission of the declarations of one of the parties as evidence against another.

Being examined as a witness, the plaintiff testified that he had an interview with the defendant, Miller, prior to his undertaking to furnish the lumber; that Miller asked him whether he had seen Richardson, and at the same time said to him, “We will want a large lot of lumber and if you will sell it right we will take a good deal.” He also told witness that he would find Richardson at the Central Hotel in Charlotte. The witness sought Richardson and found him at the place designated, and made a contract with him for the delivery of the lumber. It was then proposed to ask the witness, touching his conversation with Richardson in regard to the contract as evidence against the defendant, Miller, to which the defendants objected upon the ground that no sufficient proof of the existence of the copartnership had been offered. The court, however, held otherwise, and admitted the evidence--though only as against the defendant Miller.

It cannot be seriously doubted that the declarations of Miller to the plaintiff, furnished some evidence of the fact that he was to be jointly interested with Richardson in the purchase of the lumber; and this being so, it was incumbent on the judge to determine the question, at least, so far as to say whether there was such prima facie evidence of the copartnership as to render competent the declarations of one against the other--and from his decision as to this preliminary matter, there can be no appeal, and consequently there was no error committed.

We take this occasion once more to call the attention of the Bench and Bar to the manner of stating cases on appeal, and urge upon them the propriety of making their statements less...