Jones v. Call

• Decision Date: 31 October 1885
• Citation: 93 N.C. 170
• Court: North Carolina Supreme Court
• Parties: E. P. JONES v. MANFRED CALL, et al.

93 N.C. 170

E. P. JONES

v.MANFRED CALL, et al.

Supreme Court of North Carolina.

October Term, 1885.

This was a CIVIL ACTION, tried before McKoy, Judge, at Spring Term, 1884, of the Superior Court of GUILFORD county.

There was a verdict and judgment thereon for the plaintiff, from which the defendant Call appealed.

The plaintiff's action is to recover compensation for services rendered in an agency undertaken and prosecuted to introduce to public favor, and make sale, of certain machines used in the manufacture of tobacco, which had been invented by, and patented to the defendant J. L. Jones, and by him assigned to the defendant Call, to secure an indebtedness due to him.

The complaint alleges that at the time of the transfer of the patent rights, it was agreed between the parties thereto, that the assignor might still manufacture and sell the machines as before, and pay over to the assignee Call, the net proceeds, which were to be applied in reduction of the secured debt, until it was paid off, when the patents were to be restored; that accordingly the said Jones entered upon the business in Richmond, and by and with the knowledge and consent of Call, employed the plaintiff for the purpose of advertising and selling the machines as they were made, and he at once set out in the execution of the assumed agency; that the defendant Glenn afterwards acquired under contract with Jones, an interest in the patents; and in February, 1878, associated himself with the other defendants, assuming all outstanding liabilities of the common concern with them; that the plaintiff, with the knowledge and consent of defendants Call and Glenn, and at the request of the said J. L. Jones, who had authority from them to retain him in their service, continued in the work of his agency with great success and profit to them, until the last of November, 1878, when his operations were put an end to and his agency revoked by Call, whereby he was prevented from securing an interest in the patents, which he was to have as soon as the profits were sufficient to discharge the debt and exonerate the patents from liability therefor; that the net proceeds of the sales were duly accounted for and paid over to the defendant Call by his associates, the plaintiff only receiving an inconsiderable sum, not in excess of two hundred dollars in remuneration for his services.

At Fall Term, 1881, when the complaint was filed, the defendant Call put in a demurrer thereto, assigning certain specified causes, which were overruled, as was stated on the argument here, but on this point the record is silent, and at the same term his answer was filed, which in legal sequence supersedes the demurrer.

The answer controverted the material allegation of the complaint upon which the plaintiff's right of action depended, and issues were eliminated therefrom and submitted to the jury, twelve in number, whereof those numbered from 1 to 7 were offered by the plaintiff, and five numbered from 8 to 12 by the defendant.

1st. Was the plaintiff employed by the defendant John L. Jones and the defendant Call, to sell, advertise and introduce upon the market the machines referred to in the complaint?

2nd. Did the plaintiff render services to the said defendants according to his said contract with them, and if so, what was the value of his services so rendered?

3rd. Was the plaintiff employed by the said defendants and R. W. Glenn, so to sell, advertise and introduce said machines, after the last named became interested in the patents?

4th. Did the plaintiff render services to said defendants and Glenn according to his undertaking with them, and if so, what was the value of such services?

5th. Was there a contract between plaintiff and the defendants Jones and Call, or either of them, whereby the plaintiff was to acquire an interest in the patents referred to in the complaint?

6th. Was such interest damaged, and if so, was it by conduct of defendant Call?

7th. If so, to what amount?

8th. Was defendant Call a partner with defendant J. L. Jones?

9th. Was defendant Call a partner with R. W. Glenn?

10th. Was defendant Call a partner with J. L. Jones and R. W. Glenn?

11th. If employed, and plaintiff rendered service to said J. L. Jones and Call, how much has been paid plaintiff for such services up to fifth February, 1878?

12th. If employed, and plaintiff rendered services to J. L. Jones and Call and Glenn to October, 1878, how much had been paid plaintiff for said service?

The Court, by consent, wrote the answer to the 5th issue thus: “Statute of frauds pleaded by defendant. The jury need not answer.” And, with like consent, answers to issues 6 and 7 were dispensed with.

The defendant Call moved to submit the following issues, to-wit:

1st. Did Manfred Call, the defendant, employ E. P. Jones, the plaintiff, as his agent to advertise and sell the machines during any portion of the years 1877 and 1878?

2nd. If so, did the plaintiff render the services, and what were such services worth?

3rd. If he was so employed and rendered such services, was he paid for the same out of the proceeds of the sales of the machines or otherwise?

The Court refused the motion, and defendant Call excepted.

The defendant Call, who alone seemed to contest his liability to the plaintiff, insisted before the jury in substance, that no contract had been shown by which he had employed or was bound to pay for the plaintiff's services, and if any such was entered into between him and the other defendants, it was not with his sanction or concurrence; nor were there any such partnership relations formed between them as in law would authorize them, or either of them, to contract for and bind him in the premises.

The defendant Call asked the following instructions in writing to be given to the jury:

1st. That if the jury should believe from the evidence that E. P. Jones was not employed as an agent to sell machines, but rendered such services voluntarily and not intending to charge for same at the time, expecting to receive for such services an interest in the patents and real estate in Greensboro, then he cannot recover in this action of defendant Call.

2nd. That if the jury should believe from the evidence, that E. P. Jones was employed as a sub-agent for the sale of machinery, and was to be paid out of the gross sales, then the plaintiff cannot recover of the defendant Call in this action.

The Court gave these instructions as requested, but added after the second instruction as follows, to-wit: “Unless the defendant Call violated his agreement, and wrongfully prevented him from getting pay for his services in accordance with the first understanding and agreement, that if Call should have violated his contract and destroyed his chances of getting pay, the plaintiff could recover what his services were reasonably worth.” To this addition of the Court to the instructions prayed the defendant Call excepted.

The Court, among other things, charged the jury: If there was a co-partnership, then the employment of an agent to transact the business of the co-partnership, by one partner, will bind all the partners. If employed by the authorized agent of Manfred Call, while acting within the scope of the authority conferred by said Manfred Call upon said agent, then Manfred Call would be bound by the act and employment of said agent just as if employed by Call himself.

Whether there was a co-partnership or not, depended upon the question, whether it is shown to the jury that Manfred Call did share or participate in the profits of the manufacture of the tobacco machines described in the complaint, for the ordinary test of a person being a partner, is his participation in the profits of the business, and there can be no instance in which there can be a participation in them “as profits,” in which every person having a right to share in them, is not thereby rendered a partner.

The jury found all the issues in favor of the plaintiff.

The defendant Manfred Call moved for a new trial and a venire de novo.

Motion was overruled, and the Court gave judgment upon the verdict. The defendant appealed.

The following are the grounds of appeal:

1. That the Court allowed the witness E. P. Jones to speak of the contents of a written notice of date Dec. 11, 1877, purporting to revoke his agency, in the absence of the paper itself, no sufficient ground having been laid for the same by giving notice, so that parol evidence might have been given of the contents.

2. That the Court allowed copies of two letters dated Oct. 11th, 1878, addressed by Call to Tanner & Co., to be read in evidence to the jury after objection, without requiring the production of the originals on notice to produce them.

3. The introduction of letters dated May 3, 1878, addressed to R. W. Glenn, in reference to sale of patents in Europe, on the ground that it was irrelevant to the issues.

4. The exclusion by the Court of a portion of the deposition of Moses Call, as set out in the fourth exception to the evidence in the case.

5. That the Court added to the second of the written instructions asked for by the defendant Call, the words “unless the defendant Call violated his agreement and wrongfully prevented him from getting pay for his services in accordance with the first understanding and agreement. That if Call should have violated his contract and destroyed his chances for getting pay, the plaintiff could recover what his services were reasonably worth.”

6. That the Court refused the motion of defendant to strike out the issues which had theretofore been drawn up under the direction of the Court as the proper issues of the case, and submit in lieu thereof the three issues then proposed by the defendant, set out in the case.

7. That the Court did not charge the jury as requested by the defendant Call, that there was no evidence of any contract, expressed or implied, between the plaintiff and himself by which he became liable to pay for plaintiff's...