Roller v. McKinney, 159 N.C. 319 (1912)

May 22, 1912 · Supreme Court of North Carolina
159 N.C. 319


(Filed 22 May, 1912.)

1. New Tria! — Newly Discovered Evidence — Cumulative Evidence— Appeal and Error.

The newly discovered evidence upon which a motion for a new trial is based in this case, being mostly cumulative and having very little bearing upon the controlling issue, the motion is denied.

2. Pleadings — Motion to Strike Out — Impanelment of Jury — Practice.

A motion to strike out portions of the pleadings comes too late if made after the jury has been impaneled to try the cause, and should be denied.

3. Partnership — Action of Debt — Parties—Pleadings.

A partner cannot recover on a note owned by the partnership, in an action thereon brought solely in his own name, for all the partners are necessary parties, and the action must be brought in the partnership name. The answer in this case denied the ownership of the plaintiff, and Brewer v. Abernathy, ante, 283, cited and distinguished.

Appeal from Foushee, J., at January Term, 1912, of McDowell.

Civil action. Tbe action was tried by tbe plaintiff against these defendants to recover judgment upon certain notes which the plaintiff alleged he had purchased for value before maturity. These issues were submitted to the jury:

1. Were the defendants, and each of them, induced to sign the notes in question by fraud, as alleged in the answer? Answer: Yes, except as to T. M. McKinney.

2. Is the plaintiff a purchaser of said notes for value and without notice of said fraud? Answer: No.

3. Is the plaintiff the owner of the notes sued on? Answer: No.

From the judgment rendered, the plaintiff appealed.

The facts are sufficiently stated in the opinion of the Court by Mr. Justice Brown.

Bless & Winborne for the plaintiff.

S. J. Ervin for the defendant.

*320Brown, J.

We have' considered tbe motion for a new trial upon tbe ground of newly discovered evidence submitted by tbe plaintiff, and we are of opinion tbat tbe motion should not be granted. Tbe evidence offered was mostly cumulative, and bas very little bearing upon tbe third issue, upon which we think tbe case turns. u

After tbe jury was impaneled, tbe plaintiff moved to strike out a portion of paragraphs 2, 3, 4, and 5 of tbe defendant’s answer, which tbe court overruled, and tbe plaintiff excepted. We think bis Honor properly overruled tbe motion, as it came too late after tbe impaneling of tbe jury; but even if bis ruling was erroneous, it was harmless error.

There are thirty-one assignments of error relating to tbe different issues passed upon'by tbe jury,'but we think exception No. 17, which is to tbe charge of bis Honor relating to tbe third issue, is tbe only assignment of error necessary to be considered, as tbat assignment relates to tbe third issue, upon which we think tbe case turns. A portion of tbe charge excepted to is as follows:

“If you find tbat in purchasing said notes tbe plaintiff was not acting for himself alone, but for tbe partnership, and purchased them as tbe agent of tbe firm, then you will answer tbe third issue No.’ ”

This action is instituted by tbe plaintiff individually to recover on three notes of $1,000 each, executed by tbe defendants to Baubard Brothers, for tbe purchase of a horse, and tbe plaintiff claims to be purchaser for value and without notice of any defect or infirmity in tbe notes, or of tbe alleged fraud by which tbe defendants claim the execution of the notes was procured.

There are several defenses set up in the answer. Among others, it is alleged in tbe answer tbat tbe plaintiff is not the owner of the notes sued on, and that he is not the real party in interest, in whose name tbe suit must be brought. Vaughan v. Davenport, post, 369.

There is abundant evidence in tbe record tending t'o prove tbat if tbe note was purchased at all for value, it was purchased in behalf of tbe partnership, of which the plaintiff was simply a member.

*321If this is true, as tbe jury bave found, tben tbe plaintiff was not tbe sole owner of tbe note, and bad no right to maintain tbe action in bis own name as an individual. Heaton v. Wilson, 123 N. C., 398, in wliicb case it is beld tbat it is tbe general rule tbat in all suits relating to a partnership, all tbe partners are necessary parties, and the action must be brought in tbe name of tbe partnership.

This case at bar is to be distinguished from Brewer v. Abernathy, ante, 283. In tbat case tbe point was attempted to be raised under a motion to nonsuit after tbe evidence was all in, and had not been pleaded either hf way of demurrer or answer. In this case it is specially pleaded in tbe answer tbat tbe note sued on was tbe property of tbe partnership, and not tbe individual property of this plaintiff.

We think, therefore, tbe instruction of bis Honor was correct, and inasmuch as tbe jury bave found tbe third issue in favor of the defendant, it terminates tbe action so far as this plaintiff as an individual is concerned.