Zachary v. . Phillips

8 S.E. 359, 101 N.C. 571

• Court: Supreme Court of North Carolina
• Decided: September 5, 1888
• Status: Published

Opinion

Merrimon, J.

The plaintiff testified that he received the-letter objected to on the trial from the defendants — from one-as much as from the other, and from both — and no objection was made that he did not receive it from the defendant Wilson. It purported to be the letter of both, had reference to the beef cattle mentioned, and their joint business and liability in that respect. It was therefore some evidence of such partnership of the defendants as that alleged, subject to explanation and contradiction by controverting evidence,

The objection to the instruction of the Court to the jury was unfounded. It was not contended, in the answer or on the trial that the defendant Wilson paid anything on account of the indebtedness alleged in the complaint — it was denied that he was a partner and at all liable. The second issue-fully embraced the question raised* by the pleading as to payment. The burden of proof as to that was plainly on the defendant Phillips, and as well on the other defendant if he insisted on the defence of payment.

There is no error. Affirmed.