Reid v. Barnhart, 54 N.C. 142, 1 Jones Eq. 142 (1853)

Dec. 1853 · Supreme Court of North Carolina

54 N.C. 142, 1 Jones Eq. 142

GEORGE REID, against GEORGE BARNHART, AND OTHERS.

When several persons enter into a partnership to work a gold mine, the terms being, that each one should work personally, or in case of sickness or indispesable business, should send one of his own while family, and divide the gains daily: Upon an issue whether one had been, received as a substitute on a particular day, what one of the partners said to such persons recognizing him in that character, in the presence of the others, without dissent from them, is competent evidence.

When this Court sends down an issue to be tried in the Superior Court, and exceptions are taken to such trial, it is the proper practice for the Judge below to present the questions raised to this Court, in order that the party objecting may have an opportunity of moving that the issue may be again sent.

This cause was transmitted to tlie Supreme Court, from the Court of Equity, of Cabarrus County, at-Term,-.

The bill is filed by G-eorge Reid, against George Barn-hart, Robert Motley, Andrew Hartsell and John Reid, the younger. The case is: that John Reid, the elder, was the owner of a gold mine in the county of Cabarrus, and in the month, of November, 1834, he granted permission to his son and sons-in-law (who were the plaintiffs and defendants, and three others) to work the mines upon the following terms: They were daily to pay him (the father) one-third part of the gold found, and the residue of each day’s gains was to be divided equally among those who worked on the several days. The son and sons-in-law were themselves to do the work personally, unless they should be kept away, at any time, by sickness or indispensable business, in which case, one so absent should be at liberty to send one of his white family as a hand in his place. The son and sons-in-law agreed to work the mine upon those terms, and proceeded to do so accordingly. On the 20th of November, 1834, the four defendants attended at the mine, and went on to work in person; the plaintiff, and the three other sons-in-law, not being there. But the plaintiff being necessarly detained at home, sent Arthur Reid, his son, to work in his stead that day, and Arthur worked accordingly, as the plaintiff alleges. Shortly after the operations of the day were begun, one of the defendants found'a large lump of gold weighing about nine pounds, a\oirdupois weight, which, after paying to the father his share, the defendants divided among themselves.

The bill was filed by the plaintiff, claiming from the defendants an equal share of the gold found on that day, upon the ground that his son was sent by him, as his substitute, as he had a right to do, as he was an able and sufficient hand, out of his own family, and at all events, that he had been accepted by the defendants as a hand, and had been set to work in his father’s place.

The answer admits, that Arthur Reid was at the mine on the day mentioned, and at work, but the defendants say he worked by himself, and for himself, and not with, or for, them, and they deny that they did receive him as a hand on account of his father, or that they would have done so, in ..as much, as they alleged, he was too young to do a man’s ■work.

Upon the point thus in dispute, there was much conflict in the depositions, so much so, as to induce the Court to .direct issues to be tried in the Superior C .urt of Giba rus: 1st, whether Arthur Reid was received by the defendants .as a hand to work in the stead and lieu of his father, before the finding of the piece of gold on the 20th day of ^November, 1834, and 2ndiy, if lie wore so received, whether he had been discharged upon the finding of the piece .of gold.

.On the trial of the issues, Judge Bathe presiding, several witnesses were offered by the plaintiff, to prove that Arthur Reid was at the mine, at work, on the day in question, and that he was, at one time, sent to some distance by one of the defendants, (but which is not stated,) for an implement used in the mine, called a dipper, and that, while he was gone, the defendant Motley complained, “ that he staid too long, and said that Arthur must be smarter, or he would send him home, and that George Reid (the plaintiff) should come himself or send a better hand.” This was objected to, as evidence against the other defendants, on the ground that one partner could not receive another person as ¡partner .without the concurrence of his co-partners. But it was received by the Court, and the jury found upon that and other evidence both the issues in favor of the plaintiff .against all the defendants.

His Honor thereupon stated the ease so as .to present the ■ question, and enable the .defendants to .move this Court, to direct the issues to be tried over again, if the Court should he of opinion that the evidence was not proper against the defendants, and the defendants’ counsel made that motion •

Ruffin, C. J.

We are of opinion that his Honor rightly admitted the evidence. It is not a question about the admission of a stranger into the partnership, by one of the partners, without consulting his companions; for there is no pretence that Arthur Reid was to become a partner, or entitled even to wages for his labor from the defendants.

The father was the partner, and he had become so by agreement with all the defendants; and the only question was, whether he had complied with his contract, so as to entitle him to a share of the gains, by sending a competent hand in his stead, as provided for on the agreement. The plaintiff says he did, and to establish it, he says the defendants themselves accepted the person he sent as a hand for him. It is surely evidence of the fact of acceptance, that the young man was engaged openly in the work, and that one of the defendants, from the deference due to his years, or superior skill, undertook to direct the operations of this person, for the common good: spoke of him as his father’s substitute, no one ati the time making objection to the hand, nor to the acts or declarations of the person thus assuming authority over the hand. Such circumstances tend, certainly, to show that all concerned recognised Arthur as the substitute of his father.

The Court therefore is satisfied with the result of the trial. It entitles the plaintiff to the decree he asks, and it must be referred to the Clerk, to take an account of the sum due to the plaintiff in the premises, and enquire which of the defendants holds the fond.

Decree accordingly.

* This cause was decided at-term, 1845, but omitted to be reported.