# Moore v. Palmer > Supreme Court of North Carolina · June 11, 1903 · 132 N.C. 969 URL: https://www.frixlaw.com/law-library/cases/6694526 ## Case - **Full name:** MOORE v. PALMER - **Court:** Supreme Court of North Carolina - **Decided:** June 11, 1903 - **Citations:** 132 N.C. 969 - **Precedential status:** Published - **Opinion:** Dissent by Clark - **Judges:** Clark, Douglas, Montgomery, Walker - **Cited by:** 5 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/6694526 ## Opinion text 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 ho parties working in and around the mine as to what ho 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 *976 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 Palmer. It 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 Pahner, 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 *977 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 bad 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. 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 cases. 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 *978 it from the jury and told them not to consider it against Eudy. Fertilizer Co. v. Rippy, 128 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. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/6694526. Public record. Not legal advice.