BARDEN V. HORNTHAL.

The court charged the jury, if they believed the evidence they would render a verdict for balance due on note, and defendant excepted. Verdict for plaintiff; judgment, and defendant excepted and appealed.

Gaylord & Gaylord for plaintiff.

Shepherd & Shepherd and Ward & Grimes for defendant.

HOKE, J., after stating the facts: Our statutes on negotiable instruments (Revisal 1905, sec. 2345) enact that the provisions of the law shall not apply to such instruments made and delivered prior to 8 March, 1899; and the note sued on having been executed on 27 February, 1899, the rights of the parties to this controversy are unaffected by the statute, and must be so considered and determined. Viewed in that aspect, our decisions are to the effect that when a third person writes his name on the back of a negotiable instrument before delivery to the payee, and with a view to give additional credit to the maker, it is open to the original parties, and as between themselves, to show the intent and exact nature of the obligation assumed, whether as joint promissor and guarantor or as first and second endorser, etc.; and in the absence of such qualifying testimony the law will presume that such person signed his name as co-maker, and in any event as surety, that being the relationship of the defendant alleged in the complaint. Lilly v. Baker, 88 N. C., 151; Tredwell v. Blount, 86 N. C., 33; Hoffman v. Moore, 82 N. C., 313; Baker v. Robinson, 63 N. C., 191; Good v. Martin, 95 U. S., 90.

In Lilly v. Baker, supra, Ashe, J., speaking to these questions, said: "Whether a party who endorses a note in blank is to be held to be an original promissor, endorser or guarantor will depend upon the time of the endorsement and the character of the instrument endorsed: as, for instance, if a note, whether negotiable or not, is endorsed at the same time the note itself is made, the endorser ought to be held as original promissor or maker of the note. But where the note is endorsed after its delivery to the payee, whether the endorser is to be held as an endorser or guarantor, will depend upon the character of the note. If it is a note not negotiable, he is held to be a guarantor; but if it is a negotiable note and is endorsed in blank by a third person, not being the payee, or a prior endorsee through them, in the absence of any controlling proof it is presumed that such person means to bind himself in the character of an endorser, and not otherwise, and precisely in the order and manner in which he stands on the Story, supra, pp. 473-480."

note.

And in Good v. Martin, 95 U. S., supra, the Court held as fol

BARDEN . HORNTHAL.

lows: "1. In a suit upon a promissory note the court below charged the jury that if the defendant, without making any statement of his intention in so doing, wrote his name on the back of the note before its delivery to the payee, he is presumed to have done so as the surety of the maker, for his accommodation, and to give him credit with the payee; and that, if such presumption is not rebutted by the evidence, he is liable on the note as maker. Held, that the charge was not erroneous."

A correct application of these principles to the facts presented fully sustains the decision of his Honor below in refusing to nonsuit the plaintiff, and the charge as given to the jury. On the trial the note was presented, showing the amount originally due, and a number of partial payments entered thereon as credits. The fact was proved that the defendant L. H. Hornthal wrote his name on the back of the note; and the pleadings which were introduced in evidence contain by fair intendment an admission by defendant that he so wrote his name before delivery to the payee, and to enable his co-defendant, L. P. Hornthal, to obtain the money that plaintiff then loaned him. On these facts, and in the absence of any testimony tending to restrict or qualify the nature of defendant's obligation, the court, under the authorities cited, was fully justified in charging the jury, if they believed the testimony, they would render a verdict for plaintiff, there being no dispute as to the amount due on the note in case defendant was liable.

It is earnestly contended for defendant that the presumption. which usually obtains, to the effect that an undated endorsement, when there is no evidence to the contrary, will be presumed to have been the same date as the note, does not apply as between the original parties to the instrument, but only arises in favor of third persons; and when a negotiable instrument has been put in circulation by regular and proper endorsement, and that, in the present case, in the absence of direct evidence as to the time of the endorsement, the form of the instrument should control. But, in our opinion, the case does not call for or permit the determination of this interesting question, for the reason that the pleadings contain by fair intendment a clear admission on the part of the defendant that he wrote his name on the back of the paper before delivery to the payee, and to assist his co-defendant in obtaining the loan; and where this appears, then all evidence restrictive of the signer's obligation must come from him.

As said by Chief Justice Smith, in Hoffman v. Moore, supra, "The legal effect of such a signing ought to be, and, we think, is, fixed and definite, when the security is assigned, and for like reasons should be, when, as in the present case, it is delivered un

BAKER 7. BROWN.

explained to the payee, and the legal liability of the endorsers not left contingent upon an unexpressed and unknown understanding among themselves. But however this may be, it is clear the evidence restrictive of the implied obligation must come from the parties who are charged. Not only was no such testimony produced, but the evidence tended to show that the plaintiff accepted the note under the belief that the signers were all sureties for the debt. The charge of the court was almost in the very words upon which, in Baker v. Robinson, supra, the decision was made, holding the endorsers responsible as sureties for the maker."

Decided intimation is given in this last case (Hoffman v. Moore) that the provision of the Code of 1883, being chapter 6, section 50, making all endorsers liable as sureties unless otherwise plainly expressed in the endorsement, "does not apply to the facts presented here, but only to endorsements in the strict sense of commercial law, and by means of which a negotiable instrument is put in circulation." This, too, is an interesting question, the decision of which is not required for the determination of the present appeal, and the section of the Code mentioned and the decisions predicated thereon cited by plaintiff are not therefore referred to or dwelt upon.

We find no error in the record, and the judgment below is affirmed.

No error.

GEORGE W. BAKER v. WALTER R. BROWN.

(Filed 15 September, 1909.)

1. Appeal and Error-Estoppel-Res Judicata-Evidence.

When the contents of records in a former suit, upon which a plea in estoppel or res judicata is based, do not appear on appeal, the Supreme Court will not pass upon the question as there is no evidence to support the plea.

2. Evidence-Nonsuit-Limitations of Action.

Without deciding whether a motion to nonsuit upon the evidence is the proper method of raising the question of the bar of the statute of limitations, the motion will be denied when there is conflicting evidence upon the issue.

3. Partnership-Trusts and Trustees.

Partners stand in a fiduciary relationship to each other, and ordinarily the rules and tests applicable to trustees are applicable to their conduct towards each other.

BAKER V. BROWN.

4. Same-Limitations of Actions.

When one partner receives the assets of the firm for the purpose of paying its debts and settling its affairs he acts as a trustee or agent for his co-partner, and when such relationship is shown to exist without evidence that it had been terminated, it is not error to refuse a motion to nonsuit under the plea of the statute of limitations.

5. Instructions-Evidence-Questions for Jury.

An instruction, "If you find by the greater weight of the testimony that the plaintiff's evidence on the fourth issue is not positive and supported, then you will answer that issue 'Yes,'" is properly refused as invading the province of the jury to pass upon the weight and sufficiency of the evidence.

6. Partnership-Evidence-Transactions.

In an action to dissolve a partnership it was not error in the trial court to refuse to dismiss the action as to a certain line of business, when there was evidence that it was embraced in the partnership dealings and which was germane to the issue.

7. Jurors-Improper Conduct-Court's Discretion.

While it is not proper conduct for a party litigant to talk to a juror sitting in his cause, it is within the discretion of the trial judge to set the verdict aside, and his decision is not reviewable, when he had not said anything relating to the cause then being tried, and when it was found by the judge and appears to be harmless in its effect.

8. Motions-Set Aside Verdict-Additional Evidence-Court's Discretion.

When the trial judge has heard the evidence adduced upon a motion to set aside a verdict because of the improper conduct of a party in talking to a juror in his cause, it is within his discretion to refuse additional evidence, and his decision is not reviewable.

APPEAL from Peebles, J., May Term, 1909, of Beaufort.

B. B. Winborne and J. B. Martin for plaintiff.
Winston & Matthews for defendant.

WALKER, J. This action was brought by the plaintiff to dissolve a partnership existing between him and the defendant, and for an account and settlement of the business and affairs of the partnership. There was evidence tending to show that the parties were engaged, as partners, in conducting "a general mercantile, sawmill and lumber business." The defendant averred in his answer and introduced evidence to show that the firm was engaged only in a mercantile business and that the "sawmill and lumber dealings" were not a part of the transactions of the firm. He also alleged that the partnership was dissolved in 1899, more than three years before this action was commenced, and pleaded

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the statute of limitations in bar of the action. The plaintiff alleged that the firm was not dissolved in 1899 and never had been dissolved, but that the business was discontinued and he took possession of its assets for the purpose of paying its outstanding debts and liabilities. The defendant also averred that the plaintiff had agreed with him to take the assets of the partnership and assume and pay its debts. There was a controversy between the parties as to whether the "hotel and lot at Kelford" were purchased with funds belonging to the firm, but this matter was settled, as will appear by the judgment, and is eliminated from the case. The plaintiff set up the records in former suits as an estoppel or res judicata, but these records are not before us and their contents do not in any way appear. This defense, therefore, fails because there is no evidence to sustain it. The defendant moved to nonsuit the plaintiff, which motion was overruled.

The defendant then requested the court to charge the jury as follows: "The defendant contends that the plaintiff's evidence is uncertain, not strong, not positive, and that it is not supported by other witnesses. He also contends that his evidence is clear and positive, and that it is supported by disinterested witnesses. That is for you (the jury) to determine. The law has a rule for weighing all testimony. If witnesses are in all respects of equal character and credit, the law attaches greater weight to the evidence of the witness who is positive and supported than it does to the evidence of one who is doubtful or undecided and unsupported. With the rules of law as your guide, you are to ascertain the quality and character of the evidence in this case."

This the court gave, but refused to give the rest of the instruction as requested and which is as follows: "If you find by the greater weight of the testimony that plaintiff's testimony on the fourth issue is not positive and is unsupported, and that the defendant's evidence is positive and supported, then you will answer that issue 'Yes.'"

The court submitted certain issues to the jury, which, with the answers thereto, are as follows:

1. "Is the plaintiff's cause of action barred by the statute of limitations?" Answer: "No."

2. "Was the lumber plant and its business, including the purchase and manufacture of timber and lumber, embraced in the partnership of Baker & Brown?" Answer: "Yes."

3. "Were the hotel and lot at Kelford purchased with any of the funds of the partnership of Baker & Brown, in whole or in part?" Answer: "Yes; in part."