Hooks v. . Houston

*626 Davis, J.: The first exception is to the refusal of his Honor to strike out the defendant’s answer and give judgment for the plaintiffs, upon the ground that the Justice of the Peace had no jurisdiction to settle partnership matters. This is not an action to settle- a partnership. It is to recover money alleged to be due by note, which had no connection whatever with the partnership between Kluttz and the defendant, for it appears from the statement of the case on appeal that the note was given on March 30th, 1880, and the partnership was entered into in September, 1881, more than a year thereafter. The question whether the note had been paid or not in no way depends upon the fact whether the paitnership dealings had been settled or not. If it was agreed that Thar-rell should take the place of the defendant as partner, and the cotton should be taken by Kluttz in payment of,the note, as testified to by Houston, it makes no difference, so far as the note is concerned, whether the partnership was settled or not. The testimony of the defendant tended to show, not that the note was tobe paid upon the settlement of the partnership, but by cotton belonging to the defendant then in the possession of the assignor of the plaintiffs, who took the note after its maturity. The defendant relied upon the plea of payment, and he is not seeking to establish a counterclaim growing out of unadjusted partnership dealings of which a court of a Justice of the Peace would have no jurisdiction, and the case of Love v. Rhyne, 86 N. C., 576, and cases cited by counsel for plaintiffs, have no application, and the first exception cannot be maintained. The second exception is to the exclusion of the testimony of the witness Renfrow, that upon the settlement of the partnership dealings the defendant owed Kluttz twelve cents. That could have no bearing upon the question whether the note had been discharged by the proceeds of the cotton, as testified to by the defendant, and was properly excluded. *627 The third exception is to the testimony of Mrs. Houston, as to the statement the defendant Houston made to her, when he sold out as partner, in the absence of Kluttz.. The authorities cited by counsel for plaintiffs abundantly establish the rule of evidence, that the declarations of one party made in the absence of the other are incompetent as original substantive evidence, but counsel agree that it was offered and admitted, not as substantive evidence, but only as corroborative of the witness Houston, and that it was competent for this purpose hardly needs citation of authority. State v. Whitfield, 92 N. C., 831, and authorities there cited. The last exception was to the charge of his Honor in failing to instruct the jury that there was no evidence that Kluttz agreed to take the cotton in payment of the note. There was a conflict in the evidence, and that of the defendant tended to show that the note was paid in the manner stated, and -we think his Honor submitted the question fairly and properly to the jury. Besides, the well settled rule that failure to give instructions not asked is no ground for error, the exception is a general one to the whole charge, and cannot be considered. McKinnon v. Morrison, 104 N. C., 362, and the numerous cases there cited. Affirmed.