Price v. Edwards

Decision Date12 November 1919
Docket Number410.
Citation101 S.E. 33,178 N.C. 493
CourtNorth Carolina Supreme Court

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

Action by J. R. Price and J. H. Edwards, administrators of S. J Edwards, deceased,, and J. H. Edwards, individually, against J. S. Edwards, Mrs. Alice G. Hill, and Mrs. J. E. Moore. Judgment for plaintiffs and defendants Hill and Moore appeal. No error.

A witness can testify as to conversation had with deceased person where he is called by opposing party to testify against his own interest.

This proceeding was brought by the administrator for a final settlement of the estate of S. J. Edwards, the decedent; J H. Edwards suing as administrator and in his individual capacity. The intestate left no lineal descendants. His brothers and sisters are J. H. Edwards, one of the plaintiffs, J. S. Edwards, Mrs. J. E. Moore and Mrs. Alice G Hill who are his next of kin and the distributees of his estate.

S. J Edwards, at the time of his death, was conducting a mercantile business, in the town of Oakboro in the name of S J. Edwards. His brother, J. H. Edwards, claimed to be a partner in said business and to own a one-third interest in the same. The defendants Mrs. J. E. Moore and Mrs. Alice G. Hill filed answers in which they denied that J. H. Edwards was a partner in said business. They also pleaded chapter 77 Public Laws of 1913, in bar of J. H. Edwards' right to recover as such partner, even if it should be found that he owned a one-third interest in said business.

The court submitted two issues to the jury as follows:

"(1) Was the plaintiff J. H. Edwards a partner owning a one-third interest in the business conducted by S. J. Edwards at the time of his death, as alleged by J. H. Edwards?

(2) If so, did the partnership do business in the name of S. J. Edwards without filing in the office of the clerk of the superior court of Stanly county a certificate conforming to the requirement of chapter 77 of the Public Laws of 1913, as alleged by the defendants?"

Both issues were answered "Yes."

The other matters embraced in the complaint were reserved to be referred to some one to take evidence and make report of his findings. Some, if not all, of these matters, were afterwards settled by agreement filed in the record.

The court entered the following judgment:

"It is therefore ordered and adjudged that the plaintiff J. H. Edwards was a partner, owning one-third interest in the business conducted by S. J. Edwards at the time of his death, as alleged by J. H. Edwards. It is further ordered that the administrators of S. J. Edwards, deceased, pay the said J. H. Edwards one-third of the proceeds of the said partnership business before final distribution is made, not to exceed one-third of $5,005.49. This cause is retained for further directions."

There was an agreement as to the settling of certain matters not affected by the questions in this appeal.

Judgment was entered upon the verdict, and the defendants Mrs. Hill and Mrs. Moore appealed.

Stack, Parker & Craig, of Monroe, for appellant Mrs. L.J. Moore.

Brock & Henry, of Wadesboro, for appellant Mrs. Alice Hill.

Smith & Gooch, of Albermarle, for appellees.

WALKER, J. [ 1] The first exception must be overruled.

1. The evidence of J.S. Edwards, had a tendency to establish the existence of the partnership and was therefore relevant. ( Gaylord v. Respass, 92 N.C. 553; Fraley v. Fraley, 150 N.C. 507, 64 S.E. 381); and the witness was competent as he was testifying against his own interest. He is not disqualified in such a case. Bunn v. Todd, 107 N.C. 266, 11 S.E. 1043, Tredwell v. Graham, 88 N.C. 208, Weinstein v. Patrick, 75 N.C. 344, and Seals v. Seals, 165 N.C. 409, 81 S.E. 613, Ann.Cas. 1915D, 134, where the subject is fully discussed. In the Tredwell Case, supra, it was said:

"Notwithstanding that statute, a party may be called to testify touching such a transaction by the opposite party and when against his own interest."

In Weinstein v. Patrick, supra, the court said:

"It would seem that there could be no objection against allowing" a witness "to testify against his own interest."

And in Seals v. Seals, supra:

"It is not within the spirit or letter of the statute, as his own interest is supposed to be a sufficient protection of the opposite party against false or fabricated testimony. This appears to be well settled by the cases. Harris Seals, the witness, proposed to testify against his own interest, as his brother would get the land and exclude him, if the jury should be influenced by his testimony."

II. The defendants contend that plaintiff J.H. Edwards cannot recover his interest of one-third in the partnership property as a member of the firm, because he and his partner, the intestate, had formed the partnership and transacted its business under an assumed name, or under a designation, name, or style other than the real name, or names, of the individual or individuals owning, conducting, or transacting such business, without complying with the provisions of Public Laws of 1913, c. 77, and especially without filing a certificate in the office of the clerk of the superior court, setting forth the name under which the business was conducted, with the full names and address of the persons owning and conducting the same. We think it is apparent from the terms of the statute, when it is read and considered as a whole, and with special reference to its qualifications and restrictions, that it does not apply to a case like this one, where no question arises as to the rights of third persons; but the only question is whether one partner is entitled to his share of the partnership effects, in an action brought to settle and distribute the estate of a deceased partner. No good reason can be assigned, or, at least, none has been suggested, why such a statute should defeat the recovery of his share by the living partner, where no third person is involved, but only the partners themselves in relation to transactions wholly inter se. The intent and object of the statute was to require notice to be given to the business world of the facts required to be set out in the certificate, to the end that people dealing with a firm may be fully informed as to its membership, and know with whom they are trading, and what is the character of the firm, and the reliability and responsibility of those composing it. An examination of the case of Courtney v. Parker, 173 N.C. 479, 92 S.E. 324, which construed the statute in relation to a sale of building material and the right of the plaintiffs, a partnership, which had not complied with the statute, to recover the price thereof, will show that this is true. It is there said that it is "a police regulation to protect the general public, as heretofore stated, from fraud and imposition." There was no sufficient reason for safeguarding the interests of the partners as between themselves, as there was for protecting the general public against deception, imposition, and fraud so easily practiced when it is kept in ignorance of the essential facts enumerated in the statute. Granting that the case may come within the letter of the law it certainly is not within its meaning and palpable design. This assertion of title to property is not, therefore, met and answered by the rule that the law will not lend its aid in enforcing a claim founded on its own violation, as we have particularly stated in Marshall v. Dicks, 175 N.C. 41, 94 S.E. 514; McNeill v. Railroad Co., 135 N.C. 733, 47 S.E. 765, 67 L.R.A. 227; Vinegar Co. v. Hawn, 149 N.C. 357, 63 S.E. 78. Nor must the plaintiff necessarily show a violation of the law in stating his cause of action or inproving it, as in Liquor Co. v. Johnson, 161 N.C. 76, 76 S.E. 625; Wittkowsky v. Baruch, 127 N.C. 313, 37 S.E. 449; King v. Winants, 71 N.C. 469, 17 Am.Rep. 11.

It must be borne in mind that the business of this partnership was not, in itself, illegal, nor was the prosecution of it. The partners, on the contrary, were engaged in a perfectly legitimate and lawful enterprise. It seems impossible to suppose for a moment that the Legislature, sagacious as it is and endowed, in the highest degree, with practical wisdom and practical common sense, would enact a statute, which would do so much evil and so little good, as to a clearly innocent and harmless undertaking. the language must be exceedingly plain and unmistakable to lead us to such a conclusion. But we have a recent decision upon the subject, Jennette v. Coppersmith, 176 N.C. 82, 97 S.E. 54, in which this court, in referring to and reviewing Courtney v. Parker, supra, said:

"While the court felt constrained to give this construction, on the ground, chiefly, that the act was a police regulation designed and intended to protect the general public from fraud and imposition, under such an interpretation the act is of such highly penal character that it should not be extended or held to include cases that do not come clearly within its provision."

In the Jeannette Case, the firm name was "Jeannette Bros. Company," and the court held that this was not an assumed name within the meaning of the statute, as would a purely fictitious name be. And more especially defining the words "assumed name," it was said by Justice Hoke, to be one that "gives the impress of an act calculated to mislead or baffle inquiry," and further that-

"The title of plaintiffs' firm, Jeannette Bros. Company, being a partnership conducted under that name and style, giving as it did the true surname of its members, affording a reasonable and sufficient guide to correct knowledge of the individuals composing the firm, should not be considered an 'assumed' name, within the meaning and purpose of...

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