
    BARRETT v. McCRUMMEN.
    (Filed April 2, 1901.)
    1. INSTRUCTIONS — Exceptions and Objections — Appeal.
    Instructions can not be objected to for the first time on appeal.
    2. PARTNERSHIP — Torts.
    If one partner commits a tort, the partnership will not be bound, unless it be either authorized or adopted by the firm, or be within the proper scope or business of the partnership.
    3. PARTNERSHIP — Individual Liability.
    
    Where a partnership is sued, no judgment can be had against the individual members.
    4. EVIDENCE — Sufficiency—Partnership.
    Where there is not any sufficient evidence on a point to submit to the jury, the Court should so charge.
    
      AotioN by R. A. Barrett against M. D. McCrummen, Duncan McCrummen and Malcom McCrummen, trading as M. D. McCrummen & Co., heard by Judge Frederick Moore and a jury, at January Term, 1901, of Moore County Superior Court. From a judgment for the plaintiff, the defendant appealed.
    
      Beatuell <& Burns, for the plaintiff.
    
      Blade & Adams, for the defendants.
   Montgomeby, J.

This action was brought to recover damages for the destruction of personal property belonging to the plaintiff by fire alleged to have been kindled by the defendants in their own woods, and by them negligently permitted to spread to the lands of the plaintiff.

The summons was issued against and served on the three defendants, who were described as trading “as M. D. Mc-Crummen & Co.” In the complaint there is no allegation of the partnership, the pleader seemingly intending to hold the defendants liable both as partners and individuals. The issues were as follows: (1) Did the defendants set fire to certain woods as alleged in the compláint? (2) Did the defendants negligently permit said fire to spread to and burn the property of the plaintiff as alleged in the complaint? The defendants, after the evidence was in, requested the Court to instruct the jury “that the defendants having been sued as a partnership, the jury can not return a verdict against the individual members of the firm, or either of them,” and the instruction was given. Whether that instruction was correct or not, is not before us for determination, for, as we have said, it was given at the defendants’ request, and the plaintiff filed no exception. But in connection with that instruction the defendant made exception to another instruction of the Court, which was in these words: “If you find from the evidence that Duncan McCrummen set out the fire which the defendants afterwards negligently permitted to spread to the property of the plaintiff and burn it, and at the time of setting ont the fire the defendants M. D.' McCrnmmen and Malcom McCrnmmen knew that the fire was being set ont, and caused or procured it to be set out, you should answer the first and second issues in favor of the plaintiff, although you should further find from the evidence that they did not set out the fire while acting within the scope of the partnership business.”

There was no inconsistency between the instructions; the one was, that, because the partnership had been sued no judgment could be had against the individual members; the other was that if one of the partners did the negligent act and the other two knew that the fire was being set out, and caused or procured it to be set out, the first and second issues should be answered affirmatively, although the fire was not set out as an act within the scope of the partnership business. That was a correct charge. “As to torts not committed in the course of the partnership business, it is very clear that the partnership is not liable therefor in its social character unless indeed they are assented to or accepted as the act of the partnership.” Story on Partnership, section 166. If one partner commits a tort the partnership will not be bound unless it be either authorized or adopted by the firm, or be within the proper scope or business of the partnership. The defendant in his brief insists that his Honor committed error when he instructed the jury in these words, “And in no view of the case can you return a verdict against one of the defendants unless you return it against all.” However that may be, there was no exception to it by the defendant. The defendants were father and two sons and all engaged in a mercantile -business as partners; and it is probable that no exception was intended to be made at the trial; anyway, none was made.

The defendants requested one instruction which was refused, but which ought to have been given, and that was, “That there is no sufficient evidence that tbe plaintiff’s property was destroyed by any act or negligence of tbe defendants, or either of them, while acting within the scope of the partnership business.” The evidence was voluminous, but it has been carefully examined by the Court, and we find that there is not a line of it going to show that the land on which the fire originated was used in any way whatever for partnership purposes or was in the least connected with the business of the firm — that business being simply one for the sale of general merchandise.

Eor the errors pointed out there must be a new trial.

Error.  