
    9912
    KYKER v. SMITH.
    (96 S. E. 256.)
    1. Evidence—Memorandum—Conclusiveness.—To recover price of carload of hogs sold, it was not necessary for plaintiff to introduce memorandum of sale in evidence, so that variance between memorandum and plaintiff’s testimony was immaterial.
    2. Partnership •—■ Direction op Verdict — Evidence. —Where plaintiff testified his partner had no interest in account sued on, Court properly denied defendant’s motion for directed verdict on ground suit was brought in plaintiff’s name and that testimony showed account belonged to partnership, while under Code only real party in interest can sue.
    Before PkuriPoy, J., Abbeville, Spring term, 1917.
    Affirmed.
    Action by J. M. Kyker against Enoch Smith. From judgment for plaintiff, defendant appeals.
    
      Messrs. Gray don & Gray don, for appellant,
    submit: It was error in the Court to refuse to direct a verdict in favor of defendant, when it appeared from plaintiff’s testimony 
      
      that the account sued on was the joint property of one Ferguson, and plaintiff: Code of Procedure, sec. 160; 78 S. C. 302; 106 S. C. 495. There being no dispute as to the facts which showed that the matter involved was a partnership transaction, the Judge should have construed the testimony, and not have left the question to the jury: 75 S. C. 105; 145 U. S. 611-620; 68 S. C. 9; 68 S. C. 198.
    
      Mr. D. IT. Hill, for respondent,
    cites: As to the admission in evidence of a memorandum of the transaction made by a third party: 47 Cal. 294; P. R. A. 521. As to the admission of testimony purely cumulative or irrelevant: 72 S. C. 120; 63 S. C. 571; 72 S. C. 350; 76 S. C. 275; 75 S. C. 116; 75 S. C. 129; 75 S. C. 334; 75 S. C. 201. As to the refusal of the motion for a directed verdict for defendant' 44 S. C. 316; 21 S. C. 93; 99 S. C. 421. The question of partnership was purely a matter for the jury: 68 S. C. 8; 52 S. C. 84.
    July 2, 1918.
   The opinion of the Court was delivered by

Mr. Chief Justice Gary.

This is an action to recover the sum of $496.23, the alleged price of a carload of hogs, which the complaint alleges were sold by the plaintiff to the defendant, but which he alleges were taken by him to be sold for the best advantage possible, and the money, after paying expenses, turned over to the plaintiff. The defendant also alleges that the hogs were diseased, and that he only realized the sum of $100 from the sale of them, which sum he was willing to pay to plaintiff.

The plaintiff offered to introduce in evidence the following instrument of writing:

M. E. Smith in account with Eerguson Bros. Stock Yard, T. M. Ferguson, Mg’r. J. M. Kyker, Bluff Road, near Union Depot. * * * Jan. 4, 1915. To 51 hogs, 6,015, at 8%, $496.23.

The defendant’s attorney objected to the introduction of the writing, on the grounds that: “It purports to be a bill made out by some third party, and turned over to the plaintiff. He does not know whether it is correct or not. It is not made out at Mr. Smith’s direction.”

The testimony tends to show that the defendant was present and had notice of the form in which the memorandum was prepared. He does not claim that he was misled in any respect. The plaintiff testified that he sold the hogs to the defendant, at the price named in the comnlaint; that the defendant had refused to pay for them; that the account was still due and owing; and that the hogs were free from disease.

It was not necessary for the plaintiff to introduce the memorandum in evidence, in order to recover the price of the hogs; and the variance between the memorandum and the plaintiff’s .testimony was immaterial.

The record contains the following statement: “Plaintiff closed his case. The defendant moved to direct a verdict, on the ground that the suit was brought in the name of Kyker; but the testimony showed that the account belonged to Kyker and Ferguson, that it was a partnership matter, and that under the Code only the real party in interest could sue. The defendant, therefore, asked the Court to direct a verdict in his favor. The Court ruled as follows: I think that the motion cannot be sustained, for the reason that the witness testified that Mr. Ferguson had no interest in the account, that he owned it, and that the money was owing to him. While he did say that he was in partnership with him, he went on to say: I don’t remember his exact words, but he testified that the money was owing to him and that Mr. Ferguson had no interest in it, but I shall charge the jury with reference to that matter, as to whether or not he owned it, and it is a question of fact for them to determine.”

The reasons assigned by his Honor, the presiding Judge, in refusing the motion, are satisfactory to this Court.

Affirmed.  