Clapp v. Mills, 228 N.C. 78 (1947)

Oct. 15, 1947 · Supreme Court of North Carolina

228 N.C. 78

EDGAR R. CLAPP, Administrator c. t. a. of the Estate of ELLA CLAPP THOMPSON, Deceased, v. MARSHALL F. MILLS and VICTOR MICA COMPANY.

(Filed 15 October, 1947.)

Frauds, Statute of, § 1—

In an action to recover royalties on minerals mined, allegations that the individual defendant executed a written mining lease or contract, and that the corporate defendant was a silent partner and shared in the profits under the lease, is sufficient as against demurrer to allege liability on the part of the corporate defendant for obligations incurred 'under the contract.

Appeal by plaintiff from Clement, J., at July Term, 1947, of Mitchell.

Beversed.

Suit to recover royalties on minerals mined. Demurrer by defendant Yictor Mica Corporation was sustained, and plaintiff appealed.

Charles Hutchins and W. C. Berry for plaintiff, appellant.

Proctor & Dameron and McBee & McBee for Victor Mica Company, appellee.

DbviN, J.

Plaintiff alleged a cause of action against tbe defendant Mills under a written mining lease or contract, and also alleged that-tbe corporate defendant “was a silent partner witb its co-defendant Mills,” and shared in tbe profits under tbe lease. We tbink this allegation sufficient to import liability on tbe part of tbe corporate defendant for obligations incurred under tbe contract sued on, and to withstand a demurrer. Winston v. Lumber Co., 227 N. C., 339, 42 S. E. (2d), 218;. Blackmore v. Winders, 144 N. C., 212, 56 S. E., 874.

Tbe judgment sustaining tbe demurrer is

Beversed.