Reed Coal Co. v. Fain

Walker, J., after stating the case: The instructions requested by the plaintiff were substantially given by the court, and more strongly in plaintiff’s favor than if the language of the prayers had been adopted. It is not necessary that the court should use the words of the prayer, and an instruction, in answer to a request, is sufficiently responsive if it contains the substance of it, and does not weaken its force. Baker v. R. R., 144 N. C., 36; Marcom v. R. R., 165 N. C., 259. There is another *648 rule in regard to instructions of tbe court, that they are to be construed as a whole. “We are not permitted to select detached portions of the charge, even if in themselves subject to criticism, and assign error to them, when, if considered with the other parts of the charge, they are readily explained and the charge in its entirety appears to be correct. Each portion of the charge must be construed with reference to what precedes and follows it, and this is the only reasonable rule to adopt.” Kornegay v. R. R., 154 N. C., 392; In re Drainage District, 162 N. C., 127. It also is a familiar rule that if a party desires a more particular charge-on any given question, or to present by an instruction any special phase of the case arising upon the evidence, he should bring the matter to the attention of the court by a special instruction. Simmons v. Davenport, 140 N. C., 407; Gay v. Mitchell, 146 N. C., 509. We are sure that the jury under the evidence and instructions of the court have reached the right conclusion upon the legal merits of the case. They have evidently found, considering the- evidence and the charge, that the contract for the purchase of the car-loads of coal, for the price of which this action was brought, was not that of the firm of Fain & Howell, but the sole contract of the defendant Howell, and judgment has been rendered against him, as he did not contest the plaintiff’s right to a recovery against himself. A car-load of coal had been purchased by the firm in August, 1910, for the private consumption of the partners and the firm, and not for resale. The partnership had not gone outside its usual and regular line of business as a drug firm to engage-in the purchase and sale of coal. They bought the car-load just as any other private consumer would buy one for his own use, and not for the purpose of selling it and making a profit. The plaintiff, by the letter-heads, must have known that Fain & Howell were conducting a drug and not a coal business, and they would hardly need such a large quantity of coal for such a purpose. At any' rate, the jury could take this view of the matter, and it seems that they did so. There is really no evidence that Fain profited in the least by the purchase of the coal, which was made by Howell for the sole benefit of himself or the joint benefit of himself and L. F. Beal, nor does it appear that Fain or the firm of Fain & Howell used any of the coal or received any benefit therefrom. There was.no express authority given to Howell to buy the coal. Mr. George in his work on Partnership (1897), p. 213, thus states the principle as to the liability of a partnership for the acts of a member of the firm done under an implied authorization: “Prima facie, a partner has implied authority to bind the firm by any act necessary for carrying-on the business in the ordinary manner. Unless limited by agreement between the partners, this implied authority is actual; when it is so limited, such authority is only apparent. A partner has power to bind the *649 firm by any act wit-bin bis express or implied authority, either actual or only apparent, provided the person with whom be deals acts bona fide, and without notice of the limitation of bis authority.” Winship v. Bank, 5 Peters (U. S.), 529, 560; Irwin v. Williar, 110 U. S., 499. Chief Justice Marshall in the Winship case states the general rules relating to the liability of a partnership for acts of the partners with his usual force and accuracy. The implied authority of a single partner does not extend to transactions beyond the scope and objects of the partnership. 'These large and repeated orders for the shipment of coal are not such as are ordinarily made in the conduct of a drug business, as usually carried on among the people generally, but the jury have settled that question against the plaintiff, and he must be satisfied with the judgment against the defendant, who was the real customer and as such solely responsible to it. No error.