White ex rel. Joyner v. Pool, 49 N.C. 293, 4 Jones 293 (1857)

June 1857 · Supreme Court of North Carolina

49 N.C. 293, 4 Jones 293

WHITE & JOYNER to the use of WILLIS JOYNER v. S. B. POOL.

A cabinet-maker agreed with a merchant to make an article of furniture and deliver it to the latter in payment of a debt which he owed the merchant. After the article was begun, the mechanic went into co-partnership with another, and the two finished and delivered it. Held, that this new firm had no right to make a new charge and recover for the price of the property, but that it was subject to the terms of the original special contract.

Assumpsit, tried before Ellis, J., at tbe Spring Term, 1857, of Hertford Superior Court.

The plaintiffs proved on the trial that they were co-partners in the business of cabinet-making, and jointly -owned all the stock in trade, including the bureau in question, which they had made. That this bureau was delivered to the defendant, and was worth thirty-six dollars. The action was brought for the price of the piece of furniture.

The defendant proposed to prove, as a defence to the action, that before the formation of the co-partnership above mentioned, the plaintiff White was indebted to the firm of S. B. Pool & Co., in a sum greater than the value of the bureau above stated, that the defendant Pool was the active and managing partner of the firm, and that he contracted with White, still before his partnership with Joyner, that the said White should make and deliver to him a bureau, at the price of thirty dollars, which was to be taken in discharge,pro tanto, of the debt which he owed Pool & Go.; that White commenced making the article contracted for, but before he finished it Joyner became his partner, and it was completed by them jointly, and delivered to the defendant as above stated. This evidence was objected to by the plaintiffs and rejected by the Court. Defendant excepted.

Yerdict and judgment for plaintiffs, and appeal by the defendant.

B. F. Moore, for plaintiffs.

Winston, Jr., for defendant.

Battle, J.

The testimony offered by the defendant was, we think, admissible under the general issue, non asswnpsit, to prove that he had never promised in manner and form as set forth in the plaintiffs’ declaration. Its purpose was to show that the defendant had made a special contract for the bureau with one, only, of the plaintiffs ; and surely he had no right to vary that contract without the consent of the defendant; especially when such variance was to have the effect of defeating the main object which he had in view in making it. If the defendant had paid for the article of furniture at the time when he ordered it from the plaintiff White, the injustice of permitting the latter to compel a second payment by taking in a partner, would have been obvious, and yet there is no difference in principle between tbat case and tire present. Here White owed the defendant, and it was to secure the debt that he agreed to take the bureau. That purpose the law will not permit to be defeated by the debtor’s taking into partnership another person with whom tire defendant had never had any communication.

The case of Norment v. Johnston, 10 Ire. Rep. 89, which is the only authority referred to and relied' upon by the counsel for the plaintiffs, does not, in our estimation, aid their case. The principle therein decided was, that one partner could not, by a contract with another person, charge what was shown to be his individual debt to that person,".upon the firm, without the consent of the other members of the firm. Surely that does not prove that an individual party to a contract can convert that contract into one with a firm, without the consent, and to the prejudice, of the other party.

Our conclusion is, that the testimony proposed, if true, was a complete defence against the action, and consequently, the Court erred in rejecting it. There must be a venvre de novo.

Per Curiam. Judgment reversed.