Maney v. Greenwood

Decision Date07 December 1921
Docket Number515.
Citation109 S.E. 636,182 N.C. 579
PartiesMANEY v. GREENWOOD ET AL.
CourtNorth Carolina Supreme Court

Appeal from Superior Court, Yancey County; Shaw, Judge.

Action by T. W. Maney against Robert Greenwood and others, trading under the firm name of Greenwood, Burlison & Blackstocks. Judgment for plaintiff, and defendants appeal. No error.

The court has the power and duty to check counsel when abusing his privilege in commenting on witnesses and their testimony and on the conduct of parties to the action.

This action was brought to recover the price of timber, bargained and sold to the defendants, at their request, from plaintiff's land, and also damages for the use of certain lands occupied by them as a sawmill yard for sawing and storing timber cut from other lands. Only one issue was submitted to the jury, as follows:

"Are the defendants, or any one, or more, of them, and if so which ones, indebted to the plaintiff, and, if so, in what amount? Answer: Yes, all three, to the amount of $2,212.78."

Judgment upon the verdict, and defendants appealed.

Charles Hutchins, of Burnsville, and A. Hall Johnston, of Asheville for appellants.

Gardner & Hamrick and Watson, Hudgins, Watson & Fouts, all of Burnsville, for appellee.

WALKER J. (after stating the facts as above).

The question in this case turned largely upon whether the defendants were partners in the transaction upon which the plaintiff declares. There was more than ample testimony to show that they were such partners. The defendant Joe M. Burlison signed the contract along with the plaintiff, and agreed to take and pay for the timber or logs which were merchantable, and which would saw out sound lumber. The codefendants, Greenwood and Blackstocks, if they were partners of Burlison, would, of course, be responsible equally with him. The following are some of the facts tending to establish the copartnership between the defendants: The instrument executed by Greenwood and Blackstocks to Burlison some time after the contract was made; the signature of Burlison and Blackstocks to the note; and the statement of Blackstocks that they were partners at the time this contract was made; and the conduct of the partners, especially when plaintiff demanded his money; and, lastly the most significant fact is the admission of the partnership by defendants in paragraph 1 of the answer in this action.

First. There was an abundance of evidence to warrant the jury in finding that Greenwood and Blackstocks were partners with Burlison, and certainly enough to go to the jury, and the jury has so found. Greenwood and Blackstocks did not refuse to pay the plaintiff on the ground that they were not partners with him, but stated that the logs did not come up to the contract, and Blackstocks said that the reason Burlison signed his name to the note was that they were partners "over there" at that time, and this is reinforced by the conveyance from Greenwood and Blackstocks to Burlison and other proof of the partnership, as, for instance, the admission in the answer, as above noted, that the three composed the partnership. There is no substantial merit in this exception.

Second. The court charged the jury that the burden of proof was on the plaintiff to show that he had complied with the terms of the contract in every respect, and there was also evidence by the witness, agreed upon by the plaintiff and defendant to do the measuring of the logs, that he had scaled out all defects and left the logs so that they would saw out sound lumber. Taking the charge of the court all together, it shows that it was absolutely fair to the defendants.

Third. The court stated the contentions of the plaintiff as to the partnership, and also charged the jury that, if plaintiff had shown by the greater weight of the evidence that, though Blackstocks and Greenwood may not have signed the contract, they were really interested with Burlison, as partners, in the logs conveyed by the contract, that they were going to manufacture them together, and thus engage in the joint enterprise, and that Burlison only represented them, then, and in that event, not only would Burlison be responsible to the plaintiff, but the other two defendants would be liable to him for all merchantable logs plaintiff delivered to the defendant's yards, the designated place of delivery, provided plaintiff complied with his contract.

Fourth. Counsel do not state enough of the charge of the court to show just what the judge meant when he said that the defendants had not gone on the stand; and, when the charge is read as to this point, it will be seen that the court was giving the contentions of the defendants, and that it was not necessary for them to go upon the stand, since they contended that the logs were not up to the contract. But if defendants failed to prove material facts which they could have shown by their own testimony, their failure to become witnesses was the subject of fair comment. Goodman v. Sapp, 102 N.C. 477, 9 S.E. 483; State v. Turner, 171 N.C. 803, 88 S.E. 523; 16 Cyc. 1062; Powell v. Strickland, 163 N.C. 393, 79 S.E. 872, Ann. Cas. 1915B, 709.

Fifth. It was not denied that the defendants sawed a portion of the logs into lumber, and, of course, this was an acceptance of a portion of the logs at least, and the court was warranted in so charging to this effect.

Sixth. The court charged the jury that Burlison could not reject all of the logs, but only such part as came up to the contract he would have to take. This was the correct rule of law applicable to the case.

Seventh. There is nothing in the charge to sustain this exception and the same has been fully answered in the remarks above. When all the charge is taken and construed together, as it should be the rule of law was correctly laid down by the court.

Eighth. We can see no error in this exception. The court charged the jury, at all times, that the burden of proof was on the plaintiff to satisfy them by the greater weight of the evidence that he had complied with the terms of the contract, which had been offered in evidence, before they could answer the issue in favor of him, and if he failed to satisfy the jury by the greater weight of the evidence, they should answer the issue against the plaintiff.

That part of the charge, as to accepting a part of the timber being equivalent to an acceptance of all, was evidently meant to be confined to the merchantable timber, or such as complied with the description of the contract, and it was not intended to say that an acceptance of the merchantable timber would bind the defendants to take the whole lot, whether of that kind or not. We could not possibly attribute any such meaning to the very learned, and accurate, presiding judge and, besides, the context discloses the real meaning to be that defendants were bound only to take the timber, which was of the kind they contracted to receive and pay for, and could not reject "any" if some of it was of that description, the word "any" being palpably used for "all," and the jury could not, as intelligent men, have otherwise understood the language of the court, even though the phraseology may not have accorded with the...

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2 cases
  • State v. Love
    • United States
    • North Carolina Supreme Court
    • June 3, 1925
    ...N.C. 132, 85 S.E. 298; Massey v. Alston, 173 N.C. 225, 91 S.E. 964; Holt v. Oval Oak Mfg. Co., 177 N.C. 170, 98 S.E. 369; Maney v. Greenwood, 182 N.C. 579, 109 S.E. 636; Brown v. Hillsboro, 185 N.C. 374, 117 S.E. The court below has the sound discretion to withdraw or strike out improper ev......
  • Lamborn & Co. v. Hollingsworth & Hatch
    • United States
    • North Carolina Supreme Court
    • March 21, 1928
    ... ... Ore ... Co., 65 N.C. 563; State v. Tyson, 133 N.C. 698, ... 45 S.E. 838; State v. Davenport, 156 N.C. 597, 72 ... S.E. 7; Maney v. Greenwood, 182 N.C. 579, 109 S.E ... 636. Thus, in Massey v. Alston, 173 N.C. 215, 91 ... S.E. 964, Walker, J., delivering the opinion, ... ...

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