MOORE v. PALMER.

the jury in passing upon the real issue involved as to the liability of Eudy's estate, notwithstanding the caution of the

court.

If Palmer had denied his liability, it would have been sufficient to establish it for the plaintiffs to have shown by him that he ordered the goods without requiring him to state for whom he ordered them. In this case, the judge could have admitted the testimony in a way so as to have charged Palmer, if he had denied his liability and it was necessary to charge him, without, at the same time, injuriously affecting Eudy's estate. The proof, of a partnership as against Palmer, so as to charge him as a member of the firm, would necessarily involve the finding by the jury that there was a partnership between Palmer and Eudy and in this way the estate of Eudy may have been prejudiced. The proof should have been so confined as to have related solely to Palmer's individual liability. If Palmer ordered and received the goods, he was liable, whether he was a partner or not. It is apparent, I think, that the testimony of Moore and Palmer was not admitted merely to show a delivery of the goods to Palmer and the value thereof.

If the jury did not base their verdict on the testimony of the witnesses Moore and Palmer, I do not see upon what testimony they found that the goods had been sold to Palmer and Eudy. The testimony of Charles Palmer, the only other witness in the case, except Ragon, who testified about an entirely different matter, related to the partnership and not to the sale and delivery of the goods.

The judge ruled out all of the testimony of the witnesses Moore and Palmer, so far as it tended to charge Eudy's estate with liability, and, having done so, no testimony remained upon which to base a verdict as to the sale and delivery of the goods to the firm, Charles Palmer, as we have said, testifying only to the partnership.

MOORE v. PALMER.

It follows, therefore, that there was no evidence of the sale and delivery of the goods, so far as Eudy was concerned, and it would seem that the motion of the defendant in the court below to dismiss the complaint under the statute should have been granted, and there was error in not doing so, for which a new trial should be awarded.

DOUGLAS, J., concurs in the concurring opinion of WALKER, J.

CLARK, C. J., dissenting. This is an action to recover $235.63 for goods and merchandise sold to the defendant James Palmer and John Eudy (the testator of defendant Moon) trading and doing business as partners. One Charles Palmer testified without objection that he knew Eudy and had on many occasions gone with him from his home to the Lindsay mine, where his father (the other defendant) was cleaning out the same; there were engaged in cleaning out the mine ten or a dozen laborers; that several times Eudy had stated to him that he and defendant James Palmer were partners in opening up and developing the Lindsay mine for sale, and that they were to bear the expenses equally and share the profits on the same basis; that Eudy did not want to be known in the transaction; that he had often heard the testator, Eudy, giving instructions to parties working in and around the mine as to what to do and how to do it.

The plaintiff testified, without exception, that he had repeatedly seen the testator Eudy about the (Lindsay) mine, which was being cleaned out; that he had repeatedly heard him giving orders to the employees there working under defendant, Palmer, that he had repeatedly carried Eudy there, gone with him from his home, where Eudy boarded, to the mine; that the bill sued on was for goods furnished to laborers working for Palmer and Eudy and were furnished upon the order of Palmer; that the balance due, deducting

mer.

MOORE v. PALMER.

payment, was $235.63, with interest from April, 1897. None of these things were "transactions or communications" between the plaintiff and deceased. Gray v. Cooper, 65 N. C., 183; Cowan v. Layburn, 116 N. C., 526; Johnson v. Rich, 118 N. C., 270. The evidence was competent, and the judge further told the jury they could only consider the evidence as to whom he sold the goods as affecting the liability of PalIt is true that the first assignment of errors recites the admission of other evidence which would be objectionable, but such recital goes for naught unless the "case on appeal" as settled sets out that such evidence was in fact admitted. Walker v. Scott, 106 N. C., 56; Merrell v. Whitmire, 110 N. C., 367; Luttrell v. Martin, 112 N. C., 593. Otherwise a party could always get a new trial by reciting as facts matters which do not appear in the "case on appeal." State v. Dixon, 131 N. C., 813; Patterson v. Mills, 121 N. C., 268.

Upon the above evidence there was certainly more than a scintilla to show that Palmer and Eudy were partners, and that the plaintiff sold the goods to Palmer to be used in the business in which, as Charles Palmer testified, Eudy admitted he was a partner. It was therefore not error to refuse

to non-suit the plaintiff.

James Palmer, defendant, testified that he and Eudy were partners and that the plaintiff furnished the goods on his order to be used by the firm in cleaning out the mine. The judge subsequently withdrew this evidence from the jury and told them not to consider it as affecting Eudy's estate "or in any way bearing upon the question whether he was a partner of Palmer and should be excluded, and should be considered by them only so far as it affected the defendant Palmer himself." The decisions are numerous and recent that if incompetent evidence is admitted the error can be cured by withdrawing the evidence and telling the jury not to consider it. Wilson v. M'f'g Co., 120 N. C., 94, and

MOORE v. PALMER.

cases there collected; Crenshaw v. Johnson, 120 N. C., 270; State v. Apple, 121 N. C., 584; Waters v. Waters, 125 N. C., 591; State v. Ellsworth, 130 N. C., 691.

It is contended however that as Palmer had not answered, this evidence was unnecessary as to him, but the court restricted it to him, and if unnecessary the other defendant could not complain. In fact, it was not unnecessary as to Palmer, for though he had filed no answer the plaintiff still had to prove the delivery and value of the articles as against him, for at most the plaintiff could only have taken judgment by default and inquiry against him for failure to file answer.

cases.

Nothing is more usual than when there are two or more defendants for evidence to be admitted against one or more, which evidence the jury are told not to consider against the other defendants, and this is true both in criminal and civil The admissions of one defendant are admissible to show a partnership as against himself "to prove his own membership, who were his co-partners, and the scope of business," though incompetent against others alleged to be partners in the same action. Abbott Trial Ev., 259(14); 2 Rice on Ev., Sec. 450, citing numerous cases; 2 Greenleaf Ev., (16 Ed.), Sec. 484. Even in joint trials for fornication and adultery it is held that the admissions of one party are competent against that person "where the jury are instructed that such admissions can only be considered upon the guilt of the party making them." State v. Rinehardt, 106 N. C., 787; State v. Cutshall, 109 N. C., 764; 26 Am. St. Rep., 599. So in murder riot and other offences, when two or more are on trial, the admissions or confessions of one that he and the others named committed the act charged, have always been admitted against him, though the jury are instructed not to consider the evidence against the other defendants.

The evidence of Palmer was competent to show the partnership as against himself, though the judge properly withdrew

Vol. 132-62

LAMB v. LITTMAN.

it from the jury and told them not to consider it against Eudy. Fertilizer Co. v. Rippy, 123 N. C., 656; S. C. 124 N. C., 651.

On cross examination James Palmer testified that Brown, Eudy's executor, (since deceased) had said he was going to pay the account sued on and the defendant excepted. This was not a transaction or communication with one deceased to fix his estate with any liability, and was competent to rebut the plea of the Statute of Limitations. Brown's personal representative is not a party to this action.

The other exceptions are without merit and require no discussion.

LAMB v. LITTMAN.

(Filed June 11, 1903.)

1. WITNESSES-Reputation-Evidence.

The reputation of a man may be proved only by those who know it, and this applies equally whether it be his general reputation for truth and honesty or any special fitness for any employment for which he may be engaged.

2. MASTER AND SERVANT-Employer and Employee-Vice-Principal— Fellow-Servant.

A vice-principal is one who has such a control over those who act under him that they have a just reason to believe that a failure or refusal to obey the superior will or may be followed by a discharge.

3. EVIDENCE--Negligence.

In an action by an employee for injuries sustained by being pushed against machinery, it is competent as explaining the nature of the injury to show that the machine was not cased.

4. EVIDENCE-Negligence-Harmless Error.

In an action by an employee for injuries sustained by being pushed against machinery, evidence that the machinery was secondhand is irrelevant, and if admitted is harmless.