Carithers v. Jarrell

By the Court.

Benning, J.

delivering the opinion.

As to the first ground:

There was sufficient evidence to authorize the charge* There was evidence that it was the practice of the partners ■to divide between them the toll grain as it was received.

The practice of doing a thing by persons, is some evidence that they do the thing by agreement. If not, the whole doctrine of usage is without foundation,

As to second ground:

That a partnership may happen to be in debt, does not give the right to one of the partners to prevent the other from taking possession of the partnership property. Partnership property belongs to the partners, and one partner has not more control over it than another.

Admitting, then, that one of these partners had the right to withdraw his consent to the division of the toll, what would the withdrawal of the consent have amounted to? The other had still as much right to take possession of the toll as he bad.

As to the third ground:

There was not any evidence to suppo.rt the request referred to in this ground. The answer of Carithers shows that he had satisfied the miller. If so, the firm owed the miller nothing.

As to the fourth ground :

The answer of the miller, Delay, contained an admission that Carithers had satisfied him, and that he no longer looked to the firm for his pay.

[2.] This admission was evidence in favor of Carithers, against Jarrell. It is what would be sufficient to protect Jarrell in any suit that might be brought against him, or him and his partner, Carithers, by the miller for his wages. At least, it is what would be evidence for Jarrell in such a suit.

To the extent, then, of this admission of the miller, we think that the miller’s answer was evidence for Carithers on the point, whether he had settled with the miller.

And as in this particular we differ with the Court below, we are compelled to grant a new trial.

As to the fifth and last ground, the Court below was obviously right.