Blackstone Guano Co. v. Ball

ClaeesoN, J. This is a civil action brought by plaintiff, a corporation, against the defendants to recover the sum of $466.50, and interest, *535 due by note dated 15 May, 1929, due at five months made to plaintiff. Said note signed “W. Gr. Ball and Company, by A. W. Perry, manager.” W. Gr. Ball and A. W. Perry were partners engaged in the mercantile business, selling fertilizer, etc. The note was given for a car of fertilizer bought by defendants from plaintiff. A. W. Perry testified, in part: “Yes, sir, we received the car of fertilizer for the company. Yes, sir, it was sold by me for the company. Yes, sir, the proceeds were used for the company and by the company.” W. G. Bergman testified, in part: “I am vice-president and manager of the Blaekstone Guano Company. This check was received by our firm. It was for a car of fertilizer shipped to W. G. Ball and Company. It is for $466.50. That check was put in the bank in the due course of our business and deposits. It was not paid. During the year 1929, we sold W. G. Ball and Company, certain fertilizer. We had carried on cash transactions prior to this. What we termed cash. Yes, sir, we did sell them on credit, and had credit trade with them. This note was delivered to me. It was delivered to Blaekstone Guano Company, by mail from W. G. Ball and Company, A. W. Perry, manager. The amount is $466.50. Yes, sir, it was to take care of a check which the bank charged to our account. The check was duly deposited by us. We made demands on W. G. Ball and Company for the payment of this note when it became due. I didn’t call on Mr. Ball personally at its actual maturity, but my letter addressed to W. G. Ball, at Alert, N. C., dated 22 January, 1930. This letter tells we are drawing draft against him. About the time of our letter we received one from Mr. Ball asking us for a statement of the business with W. G. Ball and Company for the years 1928 and 1929, and stating in his letter that the firm was in the process of dissolution.” The defendant, W. G. Ball, admitted the partnership, but contended that he notified plaintiff “in express terms more than once, that no sale of fertilizer could be made to said firm, except for cash, and that the defendant, A. W. Perry, had no right or authority to purchase any fertilizer in the name of the firm on credit.” The defendant, W. G. Ball, contended further that the court below erred in excluding testimony on his part as to the nature of the agreement with Perry in regard to dealing on a cash basis. He would have testified: “We were to handle fertilizer, hay and galvanized roofing on a cash basis, everything to be paid for before it was ever unloaded, not a dime’s worth to be unloaded until paid for — that was our agreement.” But we find the following in the record as testified to by Ball: “Q. Did you give Mr. Perry any authority to buy or sell anything on credit? Ans.: No, sir, I did not. Q. Did you have a distinct agreement not to buy or sell anything on credit? Ans.: Yes, sir, that was our agree *536 ment. Mr. Perry sent a man from tbe Blackstone Guano Company down there to see me one day, Mr. Chambers, and he tried to sell me a car of fertilizer — thought I would be interested. Kept insisting, said Mr. Perry said if I would buy one car, said he would double the order. I said I haven’t got the money. I said don’t sell me or him neither unless you get the money. Yes, sir, I told him that Mr. Perry had no authority to buy anything on credit; that was in 1928, the last of March the representative came to see me one more time. He just came by there and tried to sell me some fertilizer. I told him I was not interested. I didn’t have any money. I didn’t have anything to do with the business over there in the selling line." If there was any error in the exclusion of the evidence, we think the defendant Ball substantially got the benefit of the evidence from his subsequent testimony above, which was admitted (Nichols v. Bradshaw, 195 N. C., 763) ; but, from the view we take of this case, this evidence was immaterial. An exception and assignment of error was to the effect: “Defendant tenders evidence to show that the firm got no benefit from the fertilizer.” The record does not disclose what the evidence was; therefore the assignment of error cannot be sustained. Campbell v. R. R., ante, at p. 109. The fact that the firm is in the hands of a receiver, and Mr. Perry has been indicted, is not relevant to this issue. In Johnson v. Bernheim, 76 N. C., at p. 140, is the following: “But even in that ease if the terms are violated, as if a partner buy on time when he ought to buy for cash and the thing bought come into the partnership and the partnership take the benefit, the partnership must pay for it.” See same case, 86 N. C., 339. The defendant contends “That the court was in error in giving instructions here complained of. The case of Sladen v. Lance, 151 N. C., 493, is almost on all-fours with the instant case.” In Oakley v. Morrow, 176 N. C., at p. 136, we find: “The contract in question here was for labor performed and money lent to the firm during the year to enable it to carry on its ordinary business, and, in the absence of any facts or circumstances creating an estoppel, defendant is liable by reason of his position as member of the firm, and whether plaintiff knew of his effort and purpose to withdraw or not. Johnson v. Bernheim, 86 N. C., 339. In the case of Sladen v. Lance, 151 N. C., 492, it is not opposed, but in direct recognition of the principle. That was the case of a partnership which, by its terms, imposed special restrictions on the power of the partner who made the contract, and it was held that a creditor selling to the firm with knowledge of these restrictions was bound by them; but in our case, as stated, the defendant *537 is a general partner; tbe contracts were made witb a member Laving full powers, and tbe firm bas received full consideration.” See Machine Co. v. Morrow, 174 N. C., 198. Tbe undisputed evidence in tbe record is to tbe effect that tbe defendants partners received tbe car of fertilizer purchased by A. W. Perry for tbe company, and “tbe proceeds were used for tbe company and by tbe company.” Tbe partnership got tbe benefit of tbe fertilizer and must pay for it. “Tbe firm bas received full consideration.” From tbe facts in this case, tbe charge of tbe court below was correct. In tbe judgment of tbe court below, we find No error.