Gilbraith & Co. v. L. Lineberger & Co.

The plaintiffs were entitled to the first instruction asked for. Having "Lineberger Co." over his store door was some evidence that Fleming was the agent of the defendants to sell their cotton yarn and sheeting, and that fact together with the fact that Mason, an avowed agent of the defendant, from time to time delivered cotton yarn and sheeting to Fleming by the wagon load, and received from him return loads of bacon, lard and other country produce, that this country produce was produce by Fleming as the agent, and in the name of the defendants, and that one of the defendants had visited Greenville and of course knew how things were being done was some evidence that Fleming was the agent of the defendants to buy country produce for them. So his Honor erred in refusing to instruct the jury that if the defendants permitted Fleming to hold himself out to the public as their agent, that constituted an agency, and "Fleming's acts done within the scope of the business in which he was engaged" were binding on the defendants. But upon examining the plaintiffs' account, which is a part of the complaint, we find but three items of country produce furnished, to-wit: bacon and flour, in all $118; and one credit for feathers received $175 on the 12th of November, 1860, leaving a balance at that date of $57 in the defendants' favor.

After this, plaintiffs let Fleming have, November 19th, cash, $75; November 29th, cash, $60.89; December 12th, one overcoat, $10.50. In this way, the balance is put against defendants. There is no proof whatever that the defendants permitted Fleming to hold himself out as their agent, to borrow money or to buy ready-made clothing, and if his Honor had charged as requested, that the acts of Fleming done within the scope of the business bound the defendants, this would have excluded the cash items and the over-coat, and left the balance in favor of defendants, as the credit for feathers had been entered before this latter dealing.

It is clear therefore that the plaintiffs could not have been prejudiced by the error of the Judge, and on the whole, the verdict meets the justice of the case, and we are not at liberty to disturb it.

His Honor did not err in refusing to charge that the evidence established a copartnership between the defendants and Fleming. There is not a single feature of a co-partnership presented by any view in which the matter can be looked at.

There is no community of interest in "the profit and loss." The defendants sold the yarn and sheeting to Fleming at factory prices, received country produce in payment, and had no concern whatever with the subsequent disposition that Fleming might make of the yarn and sheeting; if he sold at a higher price, it was his gain; if obliged to sell for a less price, it was his loss; in short, there is nothing in the evidence to give color to the suggestion of a copartnership. The matter will not admit of discussion.

No error.

PER CURIAM. Judgment affirmed.