Pugh v. Newbern, (No.19.)

• Decision Date: 23 February 1927
• Docket Number: (No.19.)
• Citation: 136 S.E. 707
• Court: North Carolina Supreme Court
• Parties: PUGH. v. NEWBERN.

136 S.E. 707

(193 N.C. 258)

PUGH.

v.NEWBERN.

(No.19.)

Supreme Court of North Carolina.

Feb. 23, 1927.

Appeal from Superior Court, Camden County; Nunn, Judge.

Action by B. N. Pugh against J. R. New-bern. Plaintiff secured an order of arrest for defendant, and from an order denying motion to vacate the order of arrest and to discharge defendant and his sureties, defendant appeals. Reversed.

The plaintiff alleged: That he and the defendant, entered into a partnership agreement in January, 1926, for the purpose of contracting with farmers to raise Irish potatoes for said partnership during the year of 1926. That they were to pay the farmers raising potatoes a certain price and should furnish the potatoes, fertilizers, barrels, and barrel covers in equal amounts. That the potatoes should be shipped in the name of the defendant, who was to receive the proceeds from the sale thereof, and that out of the proceeds, after deducting the full amount of expenses for fertilizer, potatoes, barrels, and barrel covers, that the profit should be equally divided between the plaintiff and the defendant, and any loss should be borne equally. That according to the terms of the agreement the plaintiff was to furnish fertilizer and the defendant was to furnish potatoes at cost, and that each of said partners should pay one-half the other expenses. It was further alleged, on the part of plaintiff: That there were outstanding debts for potatoes and barrels and other expenses amounting to several thousand dollars, and that the defendant collected the proceeds from the sale of potatoes, amounting to $22,244.47, and has "wrongfully and unlawfully converted the same to his own use and refused to pay over to the plaintiff the amount due upon the indebtedness under the contract and to the plaintiff his part thereof. That he claims that he has spent the money and has not applied it as he was compelled to do under the contract and under the law, " and that the defendant "has wrongfully and unlawfully and fraudulently taken the proceeds from the said potatoes and converted the same to his own use and used the same for his own purposes." The plaintiff further alleged:

"That it is necessary to have an account taken of the dealings between the plaintiff and the defendant showing the amount that is due to the different parties under the contract in this case. That a balance shall be struck showing the amount of funds in the hands of defendant under this contract, and that judgment should be rendered against him in favor of plaintiff for the full amount of moneys in his hands wrongfully, unlawfully, and fraudulently converted to his own use, and that the proceeds therefrom shall be used first to pay any amounts that may be due to the parties under this contract for raising the potatoes, for barrels furnished, for hauling, and for fertilizer, and, after the payment thereof, for one-half the net proceeds under this contract between the plaintiff and the defendant.

"Wherefore, the plaintiff prays the court that an account be taken showing the amounts advanced by each party, the amounts due under this contract to various parties, the amount of money received by the defendant, the amount he has paid out, and that judgment shall be rendered against him for $12,000, the amountdue to the plaintiff, and for the cost of this action, and for such other and further relief as the nature and circumstances of the case may demand."

The defendant answered, admitting the contract of partnership and that the potatoes were to be sold in the name of the defendant, and that the net profit, after the payment of all expenses and the usual commission for making sales, should be divided equally between the plaintiff and the defendant, and, further, that certain moneys were expended by the parties under the supervision of the plaintiff, who "has failed and refused to render a statement or account thereof"; that "at the time of said dealings between said parties, the plaintiff was engaged in selling seed potatoes, barrels, and barrel covers as well as fertilizer, on his own account and for his individual profit, and was further engaged in buying Irish potatoes for and on account of this defendant; that, after said contract was made, the defendant not only furnished and delivered plaintiff barrels, covers, and seed potatoes, * * * but also a large number of barrels of seed potatoes and barrel covers in addition thereto, * * * and because of plaintiff's failure to render a statement or account of his dealings as aforesaid, the defendant has no knowledge or information sufficient to form a belief as to the number or value of the barrels of seed potatoes or barrel covers used to carry said contract into effect; * * * that during the period of dealings between himself and the plaintiff he has turned over to the plaintiff from time to time large sums of money for which, as aforesaid, plaintiff has failed to render to the defendant any statement or account."

The defendant further denied that he has failed or refused to pay over to the plaintiff any amount due him, and avers "that no portion is or can be due to the plaintiff until there has been a full accounting and settlement of the partnership affairs so as to ascertain...