Providence Mach. Co. v. Browning

• Decision Date: 30 June 1905
• Parties: PROVIDENCE MACH. CO. v. BROWNING et al.
• Court: South Carolina Supreme Court

52 S.E. 117

72 S.C. 424

PROVIDENCE MACH. CO. v. BROWNING et al.

Supreme Court of South Carolina

June 30, 1905

On Rehearing, October 7, 1905.

Appeal from Common Pleas Circuit Court of Laurens County; Watts Judge.

Action by the Providence Machine Company against M. E. Browning and others. From judgment for defendants, plaintiff appeals. Reversed.

N. B Dial and F. P. McGowan, for appellant. Ferguson & Featherstone and H. J. Haynesworth, for respondents.

GARY A. J.

Upon the third trial of this case, the jury rendered a verdict in favor of the defendant Mrs M. E. Browning. The facts of the case are fully set out in the opinions of the court upon the former appeals, reported in 68 S.C. 1, 46 S.E. 550, and 70 S.C. 148, 49 S.E. 325.

1. The first exception is as follows: "(1) Because his honor Judge Watts, erred in excluding the testimony offered at the trial by the plaintiff, as follows: Striking out or excluding the following statement of L. W. C. Blalock, a witness for the defendant, on cross-examination: 'Q. Had you any conversation with your father about the mills? A. Yes, sir. I told him my idea about building a mill, and he wanted me to make a larger mill. Told me if I would make it a 10,000 spindle mill, he would help me if I took sister in'--the object of the testimony being to show the conduct of James and L. W. C. Blalock, two of the partners, in projecting the enterprise on the plan of associating Mrs. Browning as a partner; the error being in excluding circumstantial evidence bearing upon the formation and identity of the members of the partnership of the Goldville Manufacturing Company." Mrs. Browning was not present when the conversation took place, and the testimony was therefore irrelevant. Furthermore, it tended to show that she was not a member of the partnership at the time of the conversation.

2. The second exception is as follows: "(2) Excluding the testimony of L. W. C. Blalock, a witness for the defendant on cross-examination, as to the management of Mrs. M. E. Browning's land at Goldville, and the disposition of her land, crops, and material in connection with organizing, building, and equipping the cotton mill of the Goldville Manufacturing Company, the object of the testimony being to show that Mrs. Browning's property, with her knowledge and consent, was applied to the organization, building, or equipping of the Goldville Manufacturing Company; the error of the exclusion being to prevent the plaintiff from showing the existence of a silent or a dormant partner, by contribution to the capital stock." Testimony substantially the same as that mentioned in the exception was afterwards introduced in evidence without objection, and really the facts do not seem to have been in dispute. Under these circumstances there was no prejudicial error.

The third exception is as follows: "(3) Excluding the testimony of L. W. C. Blalock, a witness for the defendant, on cross-examination, as to how much stock Mrs. Browning was to have in the corporation of the Goldville Manufacturing Company, the object being to show the relation of Mrs. Browning to the partnership, by her relation to the company, upon the principle of connection between effect and cause; the error being prejudicial in excluding circumstantial evidence tending to show her relation to the partnership." His honor, the presiding judge, permitted the introduction of the testimony for the purpose which the appellant contended rendered it admissible.

The fourth exception was abandoned.

The fifth exception is as follows: "(5) In excluding the testimony of L. W. C. Blalock, on cross-examination, as follows: 'Q. What was the indebtedness of the corporation (Goldville Manufacturing Company)?'-- the object of the testimony being to show the amount of debts at the time of incorporation and the identity of projectors of the corporation who contracted debts; the error being the exclusion of circumstantial evidence relating to the partnership." The question arose as follows: "Q. I believe you said, a while ago, the Goldville Manufacturing Company went through bankruptcy--don't you know the Goldville Manufacturing Company was sold? A. Yes, sir. Q. So that corporation is not now in existence at all? A. No, sir. Q. What was the indebtedness of that corporation?" The question had reference to the indebtedness at the time of its bankruptcy, and not to indebtedness at the time of incorporation as set out in the exception.

3. The sixth exception is as follows: "(6) in permitting Mrs. Browning, as a witness, to answer the following question, against plaintiff's objection: "State whether or not you consented to the variation of this contract, if there was a variation?'--the error being the assumption of the existence of an issuable question of law and not of fact, and propounding to the witness a question of law and not of fact." Consent may be given in express terms, or it may be implied from facts and circumstances. The question evidently related to the giving of consent in express terms, and this involved a question of fact.

The seventh exception was abandoned.

4. The eighth exception is as follows: "(8) Because his honor, Judge Watts, erred in charging the jury as follows: 'If there was no agreement between Mrs. Browning and Mr. Blalock, as alleged in the complaint, if there was no mutual agreement to embark in an undertaking, and if she did not agree to enter into a contract with them and go into business with them and share profits and losses, then she was not a partner'--the errors being (a) that there was an allegation of a partnership agreement in the complaint; (b) that it left the impression upon the jury, which was prejudicial, that it was necessary to the status of partnership that a mutual agreement should be entered into between the parties specifically stipulating that they should go into business and share the profits and losses as between them; (c) that, while such specific and express agreement would constitute partnership, such a status could exist between two or more persons without any agreement to that effect, as by contributing labor, capital, or skill to some lawful undertaking for the common benefit of the persons interested." There cannot be a partnership without an agreement, express or implied. Furthermore, that part of the charge mentioned in the exception must be construed in connection with the entire charge, which shows that there was no error.

5. The ninth exception is as follows: "(9) He erred in charging the jury as follows: 'But if she simply turned a plantation or a house or anything of that sort over to him to let him rent it or collect the rent, or anything of that sort, then she could not be bound by anything that he did which was in excess of the authority. If Mrs. Browning was owner of a tract of land, and did not give Mr. Blalock authority more than to take charge and rent the land out or to do what he pleased, and that was the extent of his authority, then she could not be bound by anything he did for her, other than within the scope of that authority. You cannot make any one a partner against their will'--the errors being (a) a charge upon the facts, or in respect to matters of fact proven in the case, in violation of article 5, § 26, of the state Constitution, and making a hypothetical statement of a part of the testimony in the case and drawing a conclusion therefrom that Mrs. Browning was not a partner, in regard to the use of her lands, products and materials by her agents, L. W. C. and Jas. S. Blalock, in contributing to the capital stock of the Goldville Manufacturing Company." The charge contained a correct proposition of law, and the statement of the facts therein mentioned was not prejudicial to the appellant .

6. The tenth, eleventh, and twelfth exceptions merely...