Newby v. Hahrell

• Decision Date: 27 February 1888
• Court: North Carolina Supreme Court
• Parties: Newby v. Hahrell et al.

5 S.E. 284

(99 N.C. 149)

Newby

v.Hahrell et al.

Supreme Court of North Carolina.

February 27, 1888.

1. Partnership—Rights inter Se—Tort of Copartner.

One partner may maintain an action against a copartner for injury to his separate and individual property, used in the copartnership business, if such injury is the result of the negligence or tort of the copartner.

2. Jubt—Disqualification of Talesman—Code N. C. § 1733—Regular Juror.

Code N. C. § 1733, provides that "it shall be a disqualification and ground of challenge to any tales juror that such juror has acted in the same court as grand, petit, or tales juror within two years next preceding such term of the court." The juror objected to was at the regular panel, and the court had told the jurors, the night before, that the talesmen were discharged, and such of the regular panel as wished to do so might go home, and would not be required to return, but that those who remained would be in attendance upon the court next day. The juror challenged did not go home, and was in court next morning, and was called into the jury-box by the sheriff. Held, that this juror was still a regular juror, and the disqualification did not apply to him.

3. Trial—Instructions—Request for Special Charge—Substantial Compliance. The court is not required to give instructions, though proper and such as the party is entitled to, in the very terms asked; and if such as are asked for, to which the party is entitled, are embodied, substantially, in the charge as given, it is not error.

4. Same—Issues.

When there is no evidence bearing upon an issue asked to be submitted to the jury, it will not be submitted to them.

5. Same.

The refusal of the court to submit to the jury an issue not raised by any controverted facts was proper.

6. Appeal—Assignment of Errors.

An exception to the entire charge of the court as set out in the record, without specifying or pointing out the errors therein or the grounds of exception, is too indefinite, and will not be considered.

Appeal from superior court, Perquimans county; Graves, Judge.

This was an action brought by the plaintiff, George D. Newby, against his copartners, S. B. Harrell and C. W. Harrell, for damages sustained by the burning of his gin-house, etc. Judgment for plaintiff, and defendants appeal.

T. G. Skinner, for plaintiff. John Gatling, for defendants.

Davis, J. Civil action tried before Graves, J., at fall term, 1887, of the superior court of Perquimans county, to recover damages alleged to have been sustained by the burning of gin, gin-house, etc. In August, 1883, the plaintiff and defendants entered into an agreement "to run a gin at G. D. Newby's house jointly." They were to buy the wood and the bagging and ties jointly. The defendants were to furnish an engine and fireman, and two hands to perform any work in connection with the ginning. The plaintiff was to furnish a house and gin and press and three hands, —fit up the gin and press and house at his own expense; but the defendants were to furnish "the money, if he should need it, to run the whole business, at 8 per cent, interest upon the amount used." The plaintiff was also to furnish "his own oil and fixtures to gin, "etc., and the defendants were to furnish "oil and fixtures to engine, " etc. The plaintiff was to have control, and "give it his attention, " and the gin was to be responsible for repairs done on the same. They were to divide the profits equally. They continued to operate under this contract till November 6, 1885, with one modification, to-wit: In the summer of 1884, the plaintiff being about to leave his farm to live in Hertford, told defendants that he would have to hire some one to take his place, to which they agreed; and he did hire a man, but, the defendants having complained that he was not competent, the plaintiff discharged him, and employed another at once, who remained till the fire. The engine and appliances in use at the time of the fire were the same that had been used constantly since the contract was entered into. The property was destroyed by fire about November 5, 1885. The defendants introduced evidence tending to show that the engine and appliances, including spark-arrester and smoke-stack, were complete, and of the proper kind; that they did not live at or near the gin, and that no notice or complaint of any defect in the engine, spark-arrester, or other appliances was made to them till two days before the fire, when they were informed by the man in charge in Newby's place that the engine needed work; that they im-mediately sent one Coppage, who was a competent machinist, to work on the same; and that he, on the day before the fire, put it in proper condition, and no other complaint was made. They further offered evidence tending to show that the house furnished by plaintiff was not a proper and sufficient one; that the roof was decayed and inflammable; that they complained of its condition, but that the plaintiff failed to remedy the same; and that the fire occurred because of its condition. The plaintiff offered evidence tending to show that there was no spark-arrester, and that the fire was the result of its absence; that notice and complaint was made to the defendants of the condition of the engine a month before they sent Coppage to work on the engine, and that Coppage was incompetent, and that, when such complaint was made, the defendant S. B. Harrell promised to provide the engine with a spark-arrester at once, and failed to do so at all; that the plaintiff knew nothing about machinery; that the defendants had sole management of the engine while ginning cotton on the plaintiff's premises, and that the defendant C. W. Harrell was present at the fire; that the house and roof were repaired at the commencement of the business, and were in proper condition; and that no complaint was made by the defendants that they were not in proper condition. The only negligence of which any evidence was offered by plaintiff was as to the engine.

The defendants asked the court to charge as follows: "That the plaintiff and defendants were partners at the time of the fire, and the plaintiff cannot recover in this action if the parties were partners at the time of the fire, and the plaintiff knew that there was no spark-arrester, if there was none, and that there was danger because there was none, and failed to notify the defendants of the danger, but continued, with this knowledge, to use the engine without it, he cannot recover in this action; nor can he recover though he notified the defendants, if the defendants on receiving the information did all that a prudent man ought to have done to have the danger removed. By the terms of the contract, the control of the business and engine was in the plaintiff; and if he failed to notify the defendants that the engine was dangerous because of the absence of the spark-arrester, or to remedy the same, but continued to work it in that condition, he cannot recover in this action. Although the partners retained the title of the property, yet during the continuance of the copartnership the property belonged to the copartnership, and was under control of the plaintiff. If the plaintiff occupied and acquiesced in the engine and appliances furnished by defendants, with full knowledge of these defects, if they existed, he cannot recover in this action." The court refused to give the charge requested, except so far as is embodied in the charge given as hereinafter set out. Defendants excepted. This is the first exception.

The court charged as follows: "(1) The construction of the written...