Falkner v. . Hunt .

73 N.C. 571

• Court: Supreme Court of North Carolina
• Decided: June 5, 1875
• Status: Published

Opinion

Reade, J.

This was a bill in equity urtder the old system to set up and settle a partnership, the plaintiff alleging that he and the defendant Ilnnt, had entered into an agreement, by the terms of which Hunt was to buy for them a tract of land of the defendant Young, on which was a mill-seat and mill; and they were to build the mill anew, the plaintiff doing the work and the defendant Hunt furnishing the materials and money, and out of the profits they wore to pay for the land, and reimburse Hunt for his outlays, and pay the plaintiff for his work; and then they were to share the profits or losses equally as partners; that the land was bought, mill built, was profitable. Hunt received the profits, reimbursed himself, paid all but a small balance for the land to Young, plaintiff has not been paid, and prays that the partnership may be declared, and the defendant Hunt compelled to account,; and that the land and mill be sold, and out of the proceeds .the balance to Young be paid, and that Young who still holds the title, may be compelled to make title, &c.

The answer of Hunt denies the partnership, and states the contract to have been that plaintiff and himself agreed to build the mill, and if in four years the profits paid off every thing, then the plaintiff might come in as a partner, otherwise he was to be paid a fair price for his labor, and there his connection with it was to end ; that the profits had never been sufficient to pay out; and therefore the plaintiff' i’s not a partner. As for the land, Hunt says that he bought it for himself without any agreement with the plaintiff', and prior; to the agreement to build' the mill, and he relies upon the statute making void parol contracts for the sale, &c., of land.

The cause was set for hearing and heard, and his Honor below found the facts to be ns stated in the bill, and directed an account, &c., from which the defendant Hunt appealed.

In this Court, because we preferred not to try the facts, we directed issues to be tried by a jury in Franklin county, and the jury found all the issues for the plaintiff, as his Uonorhad done, and the issues are returned to this Court.

And now at this term, George B. Harris, who says hois the assignee of Hunt and the real party in interest, moves for a new trial for causes set forth in his affidavit filed. If the.» causes set forth were sufficient if true, still we could not grant a new trial, for the reason that his affidavit is plainly contradicted by two affidavits filed by the plaintiff, so that we have to refuse the motion for the reason that the causes assigned do r.ot exist.

We are satisfied with the finding of the issues by the jury (which will be set out by the Reporter) and with the finding ■of the facts by his Honor below; and also with his ruling that the statute of frauds did not apply. And his judgment is in all things approved.

This will be certified, to the end that there may be an account of the partnership and of the balance due Young for the land, and a sale of the land, and if need be, an account of the funds in the hands of the receiver, and such further proceedings as may be necessary, and according to the course and practice of the Court.

There is no error. This will be certified.

Pee CuRiam.

Judgment affirmed.