Bolch v. . Shuford

143 S.E. 218, 195 N.C. 660, 1928 N.C. LEXIS 176

Opinion

BeogdeN, J.

The main question involved in the appeal is whether or not a partnership existed between the plaintiff and defendant Shuford with respect to the construction of the house upon which plaintiff filed a lien.

“When the facts are undisputed, what constitutes a partnership is a question of law, and the usual, not the universal, test is participation in profits and losses attending the enterprise.” Webb v. Hicks, 123 N. C., 244, 31 S. E., 479; Kootz v. Tuvian, 118 N. C., 393, 24 S. E., 776; Lance v. Butler, 135 N. C., 422, 47 S. E., 488; Trust Co. v. Ins. Co., 173 N. C., 558, 92 S. E., 706; Machine Co. v. Morrow, 174 N. C., 198, 93 S. E., 722; Gurganus v. Mfg. Co., 189 N. C., 202, 126 S. E., 423.

However, in the case at bar the facts are in dispute. Plaintiff testified that he was not a partner and that the written agreement offered in evidence to prove the partnership did not cover the house in controversy. An issue of fact was thus sharply drawn and the question should have been submitted to the jury.

Reversed.