WILKES v. CLARK, 12 N.C. 178 (1827)

HENRY WILKES v. WILLIAM M. CLARK.

Supreme Court of North Carolina
July Term, 1827.

From Hertford.

In an action of assumpsit against a carrier for damage to goods, a dormant partner need not join.

THE defendant had a boat commanded by one of his slaves, plying for freight on the river Roanoke, and a quantity of corn was shipped on board and delivered to the slave by one John Wilkes, to be carried to Plymouth for the customary freight. In this John Wilkes acted as agent for (179) the owner or owners, and it did not appear that any express agreement was made between him and the slave, or that the shipment was known either to the owners of the corn or of the boat. The corn having been damaged, this action was brought, in which the plaintiff declared in assumpsit; and on the trial, before the late Judge Paxton, the fact of the delivery and loss of the corn being shown, the defendant’s counsel read the deposition of one W. H. Pugh, and, insisting that upon the facts therein stated, Pugh was joint owner of the corn, and should have been joined in the action, moved for a nonsuit. The material statement in this deposition was that the plaintiff bought the corn of John Wilkes, and some time before the shipment told Pugh that he should have to pay for it before he could get it to market, and was not in funds to do so; Pugh offered to let him have money to pay for one-half of the corn, upon an agreement that the plaintiff should received and dispose of the corn in his own name as though Pugh had no interest in it, and after the sale should return the money with one-half the profits. To this proposal the plaintiff agreed, and received

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the money from Pugh. The advance of money was not a gift or a loan, but was put into the plaintiff’s hands to pay for half the corn, the money and half the profits to be returned as stated above, and the witness said that in the event of loss he should have felt himself bound in honor to sustain half of it. The whole of the transaction between the plaintiff and Pugh was entirely private.

The presiding judge refused to direct a nonsuit, and instructed the jury to find for the plaintiff, who accordingly had a verdict and judgment. Hogg and Badger for defendant.

(181) Gaston for the plaintiff.

TAYLOR, C. J.

The question to be decided in this case is whether the Superior Court erred in refusing to instruct the jury that Pugh had such an interest in the corn that he should have joined in the action brought by Wilkes, and that Wilkes alone could not maintain it; and my opinion on the case and Pugh’s deposition is that there was no error committed by the court in refusing this instruction.

The agreement made between the plaintiff and Pugh took place one or two months after the former had purchased the corn from John Wilkes, and it was a part of that agreement that the plaintiff was to receive and dispose of the corn, in his own name, in the same manner as if Pugh had nothing to do with it. The agreement to this effect was private between them, and Pugh thinks it was unknown to any other person. It was consequently unknown to John Wilkes when he shipped (182) the corn, who must have believed that he was acting as the agent of and for the sole account of the plaintiff Henry Wilkes. If, therefore, when he made the shipment, an express contract had been made between him and the carrier, it must have been made in the name of his brother, and would have inured to his benefit, for the law will only imply that which it may be supposed the parties would have expressed had they defined the terms of the agreement.

It follows that John Wilkes was the agent for the plaintiff alone, and that the latter was unknown in the contract of shipment. The case then falls within the rule that the party with whom the contract was made may alone sustain the action, although it turn out that another person, whose name is not mentioned, is secretly interested. Thus in Lloyd v. Archbole, 2 Taunton, 324, it was held that it is no ground of nonsuit, in an action on a contract, that a dormant partner, who is not

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privy to the contract and is not party to the suit, partakes of the benefit of the contract, and therefore ought to be joined as plaintiff; the Court in that case holding that the only ostensible partner who made the contract was the only proper plaintiff; for the only acting partner might owe much money to the defendant, which the defendant might set-off; but if the plaintiff and the dormant partner had sued, that debt of the acting partner could not be set-off. “If you can find out a dormant partner defendant, you may make him pay, because he has had the benefit of your work; but a person with whom you have no privity of communication in your contract shall not sue you.” Ibid. To the same effect are the cases cited from 2 Esp., ch. 468; 1 M. and S., 249, and several others.

Upon general principles I think that Pugh was a partner with the plaintiff, for though nothing was expressed relative to a possible loss, yet he who takes a moiety of the (183) profits shall by operation of law be made liable to the losses; and since by sharing the profits he lessens that fund which is properly liable to the creditors for the payment of the debts, he is justly responsible to them. In such a case it is not competent for a person having an interest in the profits to withdraw his share from the liability, and deny his being a partner. The question in many cases is susceptible of different views, whether considered in relation to the parties themselves or to third persons dealing with them. There may be a partnership as respects third persons, when the transaction would not be considered such among the parties themselves. Indeed, there may be cases in which it is the undoubted intention of the parties to the contract that they should not be partners, as that one is to contribute neither labor nor money, nor to receive any of the profits; yet if by lending his name as a partner he gives credit to the house, he cannot, as against creditors, deny his being a partner, otherwise the greatest frauds might be practiced. But it is needless to pursue this inquiry, for though I think that Pugh would have been considered as a partner in respect to creditors, I am of opinion that he cannot join in the action as plaintiff, for the reasons above stated.

PER CURIAM. Judgment affirmed.

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