Opinion
(August Term, 1847.)
Where two partners entered into a covenant that one of them should receive a salary for managing the business: Held, that this salary must be paid out of the partnership funds.
APPEAL from BURKE Spring Term, 1846; Pearson, J.
Covenant; the breach assigned was the nonpayment of $450. The execution of the convenant was not denied, and it was read in evidence. The defendant's counsel moved to nonsuit the plaintiff upon the ground that the convenant amounted to an article of copartnership and that the $450 for the nonpayment of which the convenant was alleged to have been broken was to be allowed out of the funds of the copartnership, and did not constitute such a demand as would support this action. The question was reserved. It was proven that the plaintiff had ceased to act as manager some short time before the end of the year, by mutual consent; in consequence of which the jury, in assessing the damages upon the breach assigned, made a deduction from the $450 which was the amount of damages claimed. There was a verdict for the plaintiff, subject to be set aside and a nonsuit to be entered upon the question reserved. The court being of opinion with the defendant on the question reserved, the verdict was set aside and a nonsuit entered, from which the plaintiff appealed.
The following is the convenant referred to:
STATE OF NORTH CAROLINA — BURKE COUNTY. 27 December, 1841.
James B. Upton and H. G. Weaver hereby enter into an article of agreement for the next year (1842). James B. Upton, of the first part, has privilege of working twenty hands on "the McKenzie mine," (459) paying the fifth part of the gold that is made for toll. H. G. Weaver, of the second part, has the privilege of putting in four hands at a valuation, bearing a proportionable part of the expenses attached thereto; the said Upton, of the first part, bargains and agrees to give me, the said Weaver, of the second part, $450 to manage the business, which I agree to manage according to the best of my judgment, making true returns of all the gold make by me. The mine is to be worked according to the lease. We make our seals," etc. Signed and sealed by James B. Upton and H. G. Weaver.
Gaither for plaintiff.
N.W. Woodfin for defendant.
Weaver and Upton, on 16 December, 1840, leased of one McKenzie a tract of land for three years to mine for gold; the rent was to be one-sixth part of the gold that should be obtained by the lessees. On 27 December, 1841, the lessees entered into the agreement under their seals mentioned in the case. Upton was to work twenty hands and Weaver four hands, "bearing a proportionable part of the expenses attached thereto. The said Upton, of the first part, bargains and agrees to give me, the said Weaver, of the second part, $450 to manage the business, which I agree to manage according to the best of my judgment." It seems to us that the agreement was one of partnership; and the law being well settled that the acting and business partner is never entitled to claim pay of the firm for his services unless he stipulates for it in the articles of copartnership or otherwise the parties therefore agreed that Weaver should manage the business and Upton, the other partner, agreed to give him $450 "to manage the business." Weaver was to bear his proportion of the expenses of managing and working the mine. The salary of the superintendent was a part of the expenses of the firm; and the firm ought, according to the true construction of the articles, to bear this expense in proportion to the number of hands each partner worked in the mine. The words, "the said Upton bargains and agrees to give me, the said Weaver, $450 to manage the business," only denoted the assent of Upton (460) that Weaver, although a partner, should be paid for his services $450. The parties were stipulating concerning the partnership business, and the terms on which it was to be carried on, and, among others, that Upton bargained and agreed to let Weaver have $450 for his services that lear. It seems to us that it would be against justice and right to construe the covenant to be an agreement by Upton that he would pay that sum out of his own pocket. We think that it was an item in the expenses account of the firm, and that the firm should pay it.
PER CURIAM. Affirmed.