Hancock v. Southgate

ClaeksoN, J.

The main assignments of errors by the defendant T. S. Southgate are: (1) refusal to nonsuit plaintiffs at close of plaintiffs’ evidence; (2) refusal to nonsuit plaintiffs at close of all the evidence.

No summons has been served on J. C. Malbon and Elias Ethridge. The defendant G. D. Potter was served with summons, but filed no answer, and admits liability. The only question involved in this appeal is the liability of T. S. Southgate.

The evidence, taken in a light most favorable to plaintiffs, on the motion of nonsuit, at the close of all the evidence, was circumstantial. There were many circumstances pointing to the fact that T. S. South-gate was a partner in the business and that he obtained beneficial results from the transaction. These circumstances, standing alone, would not be sufficient, but taken all together, and the further fact that he obtained some benefit from the fertilizer, would, under the evidence in this case, *282 entitle tbe plaintiffs to bave tbe matter submitted to tbe jury. From tbe facts and circumstances tbe jury might reasonably infer that tbe defendant Southgate was a partner. There was more than a scintilla of evidence of this fact. Where there is awy evidence to support plaintiff’s claim it is tbe duty of a judge to submit it to tbe jury, and tbe weight of such evidence is for tbe jury to determine. Tbe court below was correct in refusing to nonsuit at tbe close of all tbe evidence.

Stacy, J., in Harper v. Supply Co., 184 N. C., 205 , says: “Tbe defendants rely chiefly upon their exception to tbe refusal of the court to grant their motion for judgment as of nonsuit, made first at tbe close of tbe plaintiff’s evidence, and renewed at tbe close of all tbe evidence. Tbe first exception has been waived by tbe defendants.

Smith v. Pritchard, 173 N. C., 720 . They bad tbe right to rely on tbe weakness of tbe plaintiff’s evidence when she rested her case; but, having elected to offer testimony in their own behalf, they did so cum onere, and only their exception noted at tbe close of all tbe evidence may now be urged or considered,” citing C. S., 567;

Blackman v. Woodmen of World, 184 N. C., 75 ;

S. v. Killian, 173 N. C., 792 .

In Williams v. Mfg. Co., 177 N. C., 515 , Walker, J., says: “There was evidence given for tbe defendant which conflicted with that introduced by tbe plaintiff, but tbe jury alone could settle this conflict; and while tbe plaintiff did not make out a strong case, but rather a weak one, when we review all of the facts in concourse, we cannot withdraw tbe case from tbe jury, who are tbe triers 6f tbe facts, if there is any evidence reasonably tending to support tbe plaintiff’s allegations,” citing Witikowsky v. Wasson, 71 N. C., 451 ;

Byrd v. Express Co., 139 N. C., 273 , and cases cited.

Tbe defendant Southgate complains of tbe charge of tbe court below in bis other exceptions. We bave examined tbe record carefully and can find no reversible error. Tbe whole matter was left to tbe jury — ■ tbe burden of tbe greater weight of tbe evidence put on plaintiffs by tbe court below — and tbe jury found tbe issues for tbe plaintiffs. Tbe jury is responsible for tbe findings of fact, tbe court can only declare tbe law. We can find no error in 'law.

Tbe judgment seems to be drawn in conformity with C. S., sec. 497, subsec. 1, which is as follows: “If tbe action is against defendants jointly indebted upon contract, be may proceed against tbe defendants served, unless the court otherwise directs, and if he recovers judgment it may be entered against all tbe defendants thus jointly indebted, so far only as that it may be enforced against the joint property of all and tbe separate property of tbe defendants served, and if they are subject to arrest, against tbe persons of tbe defendants served.”

Tbe judgment of tbe court below is affirmed.

No error.