Martin v. McBryde , 182 N.C. 175 ( 1921 )

Wahker, J.,

after stating tbe case: It is -useless to consider tbe exceptions filed to tbe referee’s report as to tbe facts, further than to say tbat tbe judge afterwards reviewed tbe evidence and findings of fact by tbe referee, and approved and confirmed tbe same, adopting tbem as bis own. We bave repeatedly beld tbat, where this is the case, we will not review tbe judge’s final decision in this respect, where there is evidence to support tbe findings. Dorsey v. Mining Co., 177 N. C., 60, at p. 62; Maxwell v. Bank, 175 N. C., 180; Southern Spruce Co. v. Hayes, 169 N. C., 254, where this Court beld: “As said in another case, McCullers v. Cheatham, 163 N. C., 63: ‘The misfortune of tbe defendants (tbe plaintiff in tbe case at bar) in this case is tbat tbe referee has found all tbe essential facts against tbem, and when these findings were reviewed and approved by tbe judge, upon consideration of tbe report and exceptions, there being evidence to warrant tbem, we are precluded from changing tbe report in this respect, but must decide tbe case upon tbe findings of fact as made by tbe referee and approved by tbe court. . . . We will not review tbe referee’s findings of fact, which are settled, upon a consideration of tbe evidence, and approved by tbe judge, when exceptions are filed thereto, if there is some evidence to support them.’ ” Turning to McCullers v. Cheatham, supra, we find tbat tbe following cases are cited there: Boyle v. Stallings, 140 N. C., 524; Harris v. Smith, 144 N. C., 439, and cases cited; Thornton v. McNeely, ib., 622; Frey v. Lumber Co., ib., 759; Thompson v. Smith, 160 N. C., 256. There was some evidence in this case to support tbe rulings of tbe referee and judge as to tbe facts.

Now as to tbe exceptions taken to tbe referee’s conclusions of law. One ground of these exceptions is tbat they are not correct conclusions based upon tbe evidence. Tbe conclusions of law are not based upon tbe evidence, but upon tbe facts found by tbe referee; and tbe other ground, tbat tbe conclusions of law were based uj>on an erroneous finding of fact, is but saying tbat tbe facts were erroneously found by tbe referee and judge, which we bave shown is a matter not reviewable in this Court.

When tbe assignments of error are considered, they really present but two questions: First, was it error in tbe court to refuse tbe motion to nonsuit; and, second, should tbe referee and judge bave vacated tbe attachment? There may be a third question, which we also will consider, though it is not definitely and sufficiently raised by tbe defendant in bis exceptions and assignments of error, and tbat is, could tbe plaintiff sue tbe defendant, tbe latter being bis partner ? as defendant alleges and, we think, erroneously.

1. The court did not err .in refusing a nonsuit. This really involves the two questions as to the right of plaintiff to sue the defendant, and the attachment.

It is contended that the plaintiff could not sue the defendant, because they were partners and one can sue the other only for a settlement of the partnership affairs. But this, if correct generally, is not so with reference to the particular facts of this case. Here the plaintiff alleges his right to recover damages because he had, upon defendant’s request, furnished to him “goods, wares and merchandise and feed supplies in order that McBryde could carry on the business in which he was then engaged, it being the operation of a lumber and mill plant.” This is in no way connected with any partnership affair, but entirely separate therefrom, if any partnership existed, and altogether independent thereof. The following is settled, according to George on Partnership, 314 (131) :

“A partner may maintain an action at law against his copartner upon a claim due to the one from the other as individuals. The following classes of cases fall within the above rule:

“(a) Claims not connected with the partnership.

“(b) Claims for an agreed final balance.

“(c) Claims upon express personal contracts between partners.”

And Euling Case Law, vol. 20, p. 926, says: “The general rule prohibiting the bringing of suits by one partner against another until a balance is struck does not apply to all possible cases which might appear to be within its scope. The limitation may be removed by statute or agreement between the parties. Thus one partner may sue another at law on a promissory note executed by the partnership to him, where there is a statute providing that all contracts which by the common law are joint shall be construed as joint and several, and that in all cases of joint obligations of copartners and others, suits may be prosecuted against any one or more of them who are liable.” The general rule, therefore, even as between partners, is not inexorable, but has its exceptions. The case of Owen v. Meroney, 136 N. C., 475 (opinion by the Chief -Justice), as reported in 1 A. & E. Anno. Cases, 834, is an apposite one. The substance of it, as stated in the headnote to 1 A. & E. Anno. Cases, supra-, is as follows: “An action may be maintained by one partner against another to recover damages for the failure of the latter to comply with an agreement made by him as a condition precedent to the formation of the partnership.” There is a valuable note to that case at pp. 835, 836, in which, among other things, it is said: “Thus, an action -will lie for a breach of promise to furnish money or property for carrying on the partnership. A partner may recover the damages suffered by him personally, unless ascertainment of such-damages involves an examination of the partnership accounts, when the only remedy is in equity.” The note is amply supported by the citation of relevant authorities. And in Newby v. Harrell, 99 N. C., 149, this Court held: “While the general rule is that one partner cannot maintain an action against his copartner to recover money which might have been taken into account of the partnership, until after a settlement, he may sue before such settlement to recover for the wrongful conversion or destruction of the joint property, or for the loss or destruction of his individual property used in the business, resulting from the negligent use by the other partner.”

If the plaintiff, who happens to be a partner, can recover on a promissory note given by the firm to him individually, or for damages suffered by him in the same way, and resulting from a breach of contract, or a tort, there is no conceivable reason why he cannot recover here for the sale of goods, wares and merchandise sold or supplied to defendant, even if the two were partners in the supply business (which is denied), because the goods were furnished to defendant personally for the express purpose of enabling him to supply his hands who were operating his mill plant, with which the plaintiff had no connection, except as bookkeeper. The debt due the plaintiff was, in no sense, an item in any partnership account, and the case in no view falls within the principle invoked by the defendant.

Now as to the lien of plaintiff, under the contract with the defendant set forth in the case. The judge did not discharge the attachment on the merits, but he was evidently proceeding, or at least in analogy to the proceeding for a discharge, as authorized by the statute (Pell’s Revisal, vol. 1, secs. 774 and 775), and the bond required by the judge, and given by the defendant in place of the 400,000 feet of lumber, was so conditioned as to requirfe the defendant “to pay any such judgment in the action as plaintiff may recover against him therein,” in addition to the bond being held to secure any lien which plaintiff had on the lumber, for which the bond was a substitute, the object of all this being to release the property attached so that defendant or the receiver could use it in the prosecution of the business. It would be a clear perversion of the true intent and purpose for which the bond was allowed to be filed, as an accommodation to the defendant so that he might use the property attached or the lumber held in lieu of it, if we should hold otherwise. We must decide according to the letter and spirit of the transaction, and not let the defendant take advantage of his own repudiation of his agreement, upon the faith of which he, or the receiver, secured the release of the attached property and afterwards of the lumber, so that the work of the mill might proceed.

The referee, in his admirable report upon the facts and the law, has found as a fact that the defendant being involved in serious financial difficulties, and being much embarrassed, there being many recorded judgments against him, and while he was in fear of executions being issued against his property, was shipping lumber from Garland, N. 0., to points outside the State as rapidly as possible, which had the effect of hindering, delaying and defrauding his creditors, and such was his intention. The defendant does not say in his exceptions that there was no evidence of those facts, but that they were found by the referee contrary to the evidence'. We have already discussed the character of such an exception where the referee’s findings have been considered and approved by the judge on exceptions filed to the referee’s report. However, there was some evidence to support the findings.

Attention is called by.the appellee to the fact that there was no exception taken to the orders of the court as to the lumber or the bond of $5,000, and also to the special condition of the bond requiring any judgment recovered to be paid. The attachment being regular and valid, and intended to bring the defendant before the court to answer in the cause, and the defendant having answered, and the receiver intervened for the purpose of discharging the attachment, for the special purpose just mentioned, and substituting security therefor, first, in the form of lumber, and, second, by bond in lieu thereof, it is apparent that it is too late now to claim that the same security, in the form of a lien on the lumber, was not transferred to the bond when it was given in place of that lien, and further that defendant has waived any defect in the attachment (if there was any, and we concur with the referee that there was not), by appearing and pleading to the merits, and further that the court did not vacate the attachment because of any defect therein, or because of insufficient grounds for issuing it, but simply, at the request of defendant and the receiver that it be done, so that the prosecution of the -mill business, then in the hands of the receiver, would no longer be interrupted. It was held in Rocky Mount Mills v. R. R., 119 N. C., 693 (affirming order of Soke, J., refusing to vacate an attachment), that “Where a defendant, brought into court on attachment process, subsequently entered a general appearance and filed an answer to the merits, a motion to dismiss the attachment on the ground that it would not lie under the statute was properly refused as immaterial.” In Symons v. Northern, 49 N. C., 241, Battle, J., said: “A defendant may come into court without process, and confess a judgment (Farley v. Lea, 20 N. C., 307), and we cannot perceive any reason why he may not come in, in the same way, and accept the plaintiff’s declaration and plead to it. If this be so, why may he not appear and plead upon the defective process? Tbe main object o£ tbe leading process is to bring tbe defendant into court, and if be does not cboose to object in limine to tbe manner in wbicb be bas been brought in, it would be wrong to allow bim to do so after be bas, by bis acts, admitted bimself to be there, ready to defend himself against tbe plaintiff’s action.” Toms v. Warson, 66 N. C., 417. And in Price v. Sharp, 24 N. C., 417, it was held that “In an attachment tbe defendant by accepting a declaration and pleading to tbe merits, waives all objections to any defects in tbe process.” It, perhaps, may be useless to state that a lien is acquired by tbe levy of an attachment (McMillan v. Parsons, 52 N. C., 163), as such a proposition will hardly be gainsaid. C. S., 767. Tbe lien of tbe original levy created by tbe statute was not destroyed or vacated, but is now represented by tbe bond of tbe defendants, a new form of security, to be sure, but only as a substitute for tbe old, upon wbicb tbe plaintiff is entitled to judgment for tbe satisfaction of bis debt. Tbe report of Referee Herring was properly approved and confirmed by tbe court in its judgment, wbicb will not be disturbed.

Having taken this view, it is unnecessary to discuss tbe question as to tbe alleged laborers’ and mechanics’ lien arising from possession of tbe metal checks.

We find no error.

Affirmed.