
    
      William Brassfield vs. George W. Brown.
    
    Action to recover damages for breach of copartnership agreement. Verdiot for plaintiff; and new trial ordered for want of sufficient evidence to sustain it.
    
      Before Frost, J. at Charleston, October Term, 1850.
    The report of his Honor, the presiding Judge, is as follows.
    “ This was an action to recover damages for the breach of a copartnership agreement. The breach alleged was, that the defendant, without the consent of the plaintiff, dissolved the partnership, and excluded the plaintiff from a participation of the profits, before the expiration of the term, limited by the contract of partnership, for its continuance. The questions in issue were, first, what definite term, if any, was, by the agreement of the parties, stipulated for the continnance of the partnership; and, secondly, was it, or not, dissolved with the consent of the-plaintiff? The grounds of appeal present no exceptions to the instructions, in the circuit court, to the jury, on points of law. The appeal being, in effect, a motion for a new trial, on the evidence, requires a tedious detail of the testimony. Nearly all of the plaintiff’s testimony was in writing, and may be referred to for the purpose of correcting or supplying any imperfect statement in this report.
    “ George W. Munday, examined by commission, stated that, at Lexington, Ky. in 1841, he can’t say the date, but thinks in the latter part of the spring, he was present at two conversations between the parties. In the last, an agreement was concluded, that the plaintiff was to go to Charleston, and take charge of the defendant’s stables, in the fall of the same year; the copartnership to continue two or three years, the witness could not say which. He did not recollect what was the agreement about the rent of the stables; but his impression was, that the personal services of the plaintiff were to go, to a considerable extent, if not entirely, in payment of the rent, He did not recollect that the plaintiff was to pay a dollar, or contribute any thing, except his personal services. The stables were to. be put in, by the de~ fendant, as a part of the stock; and the plaintiff’s services were to be set off against the rent, to a considerable amount, if not entirely.
    “ Cross-examined. — He went to Charleston, with stock, and put up at the stables of Brown & Co. He saw Brown every day. His acquaintance with Brown was as limited as with Brassfield. Some days before the agreement was concluded, he had conversations with both of the parties, who seemed desirous, of the partnership. The meetings between the witness and the parties, at which the conversations occurred, were not concerted, but casual. He understood the difference between the parties was $> 100; it was proposed to split the difference; he did not understand how the difference arose. The partnership was to commence the 1st of August, 1841, to the best of his recollection. He understood the conversation to be a final agreement between the parties. He saw no written agreement, and heard of none.
    “The deposition of Patrick Brady, in a cause pending between the parties in the court of equity, were read. The witness attended to the stables, and made entries in the books, by the plaintiff’s directions. Both the parties were occupied about the stables when he went there. The plaintiff went to Kentucky in June, 1843. The witness was left in charge of the stables, as he had been the year before. When the plaintiff left, the last time, he said he could not inform the witness what his future compensation should be, because Brown was in New York. Brassfield expected to return to Charleston. He bought grain, and paid for it, and directed the witness to call on Kin-loch for what more might be necessary. Brown returned from New York on the 18th June; and, the next day, he told the witness Brassfield had nothing more to do with the stables; that the business would, thereafter, be conducted in Brown’s name. The witness paid various sums to Brown within a short period after this. He remained with Brown until the fall, and then turned over the books to Hieronimus, who locked them up, and refused to let the witness have the key, or access to the books, except at night. He told H. the money of Brassfield and Brown was mixed up in the books; but H. would not give him access to the books by day, and he refused to resort to them at night. Brown was often about the stables, not merely stopping and chatting. Brassfield hired a servant from Lord, until he should return in the fall. The witness was employed at $20 per month, from July, 1842. The witness expected that Brass-field would return in the fall of 1843, from the hiring of Lord’s negro, and other circumstances. He never heard Brassfield say he was going to .rent the stables until after his return,' and then he spoke of wishing to return to Charleston. Brassfield never spoke of a change in the business before he left Charleston. The witness did not know of the copartnership between Brown and Brassfield. The first intimation the witness had of any copartnership, was when Brassfield said he could not increase his wages, on account of Brown’s absence.
    
      “ For the purpose of making competent certain declarations of Brassfield, affirming the terms of the copartnership, according to his interest in the issue, the plaintiff produced and read the bill in equity, filed by Brown vs. Brassfield. The statement in the bill was, that Brown entered into partnership with Brassfield, in the business of stabling; that the rent of the stables agreed upon was $2,100, to be equally charged to the partners. That Brassfield did give his personal attention to the business; and the rent was reduced to $800, in consideration of his personal services. The copartnership was to continue from year to year, until it should be dissolved by mutual consent. It continued until June, 1843, when it was dissolved by mutual consent. The bill charged that the defendant had had the sole management, received the income, and paid the debts; that defendant had come to no settlement with the complainant, although often desired; and that a balance of $1500 was due by defendant to complainant, on account of the copartnership.
    “ The deposition of Patrick Brady was then continued. He said that Brassfield had got hay and oats from Kinloch & Philips; He, Brady, got hay, &c. until Brown returned. There were then in the stables, corn, hay, oats, &c. He told Brown he had kept an account since the 1st of June.
    “ Preston West's deposition in Equity. A conversation was held between the witness and Brown and Brassfield, about the witness and Brassfield hiring the stables from Brown. He thinks that a person, to take charge of Brown’s stables, and keep the books, ought to receive f>30 to $40 per month.
    
      Cross-examined. — The witness and Brassfield spoke of taking the stables. He knew Brassfield in Lexington ; he lived respectably ; was esteemed ; did not own property, rented ; closed his business when he came to Charleston. Knew Brassfield keeping stables in Charleston; did not know Brown and Brassfield were partners. Sixteen hundred dollars is as much rent as the stables are worth.
    “ In reply. — Brassfield could stable sixty horses in Lexington. Witness don’t know if he made money. He kept there a private boarding house, and did so in Charleston.
    “ William C. Ferrell, deposition in Equity. A bail writ was issued against Brassfield, at the suit of Brown, the 27th June, 1844, for rent of the stables from the 1st of June, 1841, to the 1st of June, 1843, at $800 per annum.- It was entered in the sheriff’s office the 28th June; on that day, or the next, the witness was authorized to let Brassfield go at large, until further orders. On the 5th July, Brassfield gave bail.
    
      11 Patrick Brady. — Additional deposition. He states that, while Brassfield occupied the stables, a part of a mule lot, a valuable appendage to the stables, was taken away.
    “ John Brady. — Deposition in Equity. Brown and Brass-field, with the aid of Hieronimus, were endeavoring to settle their accounts. They were employed for eight or ten days in June or July, 1844. They had been engaged at a settlement ten days before H. came; they ‘split’ about the rent; the witness then heard of Brassfield’s arrest. He has known the stables since 1838, and was employed as agent of Brown & Co. since January, 1839. He was employed by Brown. By usage, the stable year ends the 1st of June; stable hands are employed till that period; and after that, the stables are closed until the drove season commences. Brassfield kept the stables open all the summer. He left Charleston in June; the witness was Brown’s agent during his absence. He received no notice from Brassfield of his intention to give up the stables. He did not know of any copartnership; Brown did not tell him. There was no copartnership account in the books; he was Brown’s book-keeper. Nothing was done but to take an account of the oats and hay, which was taken by the witness the day after Brown left Charleston. The brother of witness took charge of the stables, as agent of the owner, whoever, he might be. Brown went to Kentucky in May, 1841. The witness received a letter from him, dated September, 1841. The difference between the parties was, that Brown demanded from Brassfield rent, at $800 per annum, and half of the profits. Brassfield refused, saying that would leave him nothing. There was no talk about copartnership, only about the rent. Brassfield left Charleston in 1843, a few days after Brown had gone. Brown claimed a rent of $1600; this was objected to by Brassfield; he does not recollect the time. It is the impression of the witness that Brassfield admitted to him that the agreement was, that Brown should receive rent $800 per annum, and half of the profits. The witness rebuked him for the folly of his bargain. This was after the accounts for a settlement were produced.
    “ George F. Kinloch, sworn.- — Knows Brassfield and Brown. In 1841-2-3, the witness was a corn dealer. He supplied Brown’s stables while Brassfield was there, by Brassfield’s order. He did not know Brown was a partner of Brassfield. Brassfield left Charleston the 3d or 4th June, 1843. Supplies were furnished to the stables, for a short time, until Brown took possession, by Brady’s orders, pursuant to Brassfield’s direction. He has been paid by Brassfield'. Brown brought Brassfield, and introduced him to witness’s house, in the fall of 1841. Brown did not then say they were partners; he always denied the partnership, until the suit in equity. He introduced Brassfield as conducting the stables on his own account. Brown never admitted to the witness that he was a partner of Brassfield. At first, after the difficulty, he insisted that he was not a partner. Brassfield returned in the winter of 1843, during the session of the Legislature. He informed Brassfield that Brown had taken possession of the stables; he supposed Brassfield was not before informed of that fact. Since the rupture, Brassfield has been in very reduced circumstances. The witness went to Macon for him, to attend to this suit, and he could not pay his expenses to Charleston. He is Brassfield’s bail.
    “ Cross-examined. — Brown returned to Charleston about the 18th or 20th of June.
    “For the Defence — George W. Grouget. — Deposition in equity. Brown left Charleston the 26th May, 1843, for the North; Brassfield and witness accompanied him to the boat; Brown said to Brassfield, if you take the stables, you are to leave a writing to that effect with Brady; and if he did not, he was to make a settlement with Brady of the copartnership, to the 1st of June. He inferred that there had been a partnership; that was the first intimation he had of it. Buford arrived the 12th September, 1841, and Brassfield the 24th or 27th. Before Brassfield arrived, Brown directed the stables to be put in order for Buford. When Brassfield arrived, he asked the witness if he was ready to give up the stables, and witness replied, he was directed to do so. Brassfisld asked him if he knew the contract about the stables; Brassfield said only he, (B.) and Brown knew it. In the conversation in the steamboat yard, Brassfield agreed to take the stables on his own account, or give them up to Brown on the 1st of June, 1843, and make a final settlement with Brady. He understood Brassfield to say, he could not then give an answer, on account of West’s proposed partnership. The conversation was continued in the steamboat cabin. Brassfield left Charleston, that year, before Brown returned from the North. He understood Brassfield to say, that unless West became his partner, he could not take the stables.
    “ Cross-examined. — He joined Brassfield and Brown at the comer of Market and Church streets; McKenzie was with them; McKenzie left them at the market; Brown and Brass-field were conversing about business; he only noticed what was said about the stables; the conversation was continued to the boat, and in it. He supposed it was intended he should hear. He had heard of the proposed partnership of Brassfield and West. He understood Brassfield to say, he would either take the stables and leave the writing, or make a settlement with Brady. Patrick Brady was clerk at the stables. Witness never heard Brown say, before that time, that he was a partner of Brassfield. From 1840 to 1847, witness was Brown’s clerk. He attended to the out-door business of the wharf. Before Brassfield arrived, he had nothing to do with the wharf.
    “ William T. Hieronimus. — Deposition in equity. He was called by Brown and Brassfield to settle their accounts, in June, 1844. Both were present, and the books produced. The greater part of the entries were in Brassfield’s writing. Book A, 1 to 27, is in witness’s writing, and is a statement of the account between Brassfield and Brown. He went through all the items in the books, and set down in the Book A, what both admitted to be correct. The books were admitted by B. and B. as containing partnership accounts. It was admitted, by both parties, that the profits were to be shared equally. The account in book A, was made from several books, to the 1st of June, 1843. The witness did not draw the lines in the cash book. When he returned in the fall of 1843, he left Brassfield in Kentucky. He understood, from both Brown and Brassfield, that the partnership terminated the 1st June, 1843. At the time of settlement, the articles at page 13 were left at a valuation in the stables. John Laurens’s and several other accounts were brought into the settlement, as closed the 1st June, 1843, although they were continued beyond that time. He does not recollect that Brassfield contended for a continuation of the partnership beyond the 1st of June, 1843. The witness took charge of the stables on the'3d of October, 1843, as the agent of Brown. It was not intimated Brassfield had any interest in the stables. Brassfield was then in Kentucky, and did not return until the 14th December, 1843. He brought sixteen mules and four horses, put up at the stables, and was charged as any other drover. He did not then claim any interest in the stables. He kept horses there from December, 1843, to June, 1844. He brought with him two boys, who were hired by witness, and their wages credited. What prevented a settlement was, Brown claimed $800 per annum rent; and Brassfield claimed $850 to be paid to him out of the profits. The witness rented the stables at $2500 per annum, for two years prior to 1841. He received $700 per annum for keeping the stables for Brown. When the statement in book A was made, Brassfield was under arrest.
    
      “ Cross-examined. — He considered the partnership ended the 1st June, 1843. Neither said it extended beyond that time.
    “ James TV. Gray, Master in Equity, sworn. — The books mentioned by H. are before him for a settlement of the partnership accounts.
    
      “ Cross-examined. — The testimony of both parties is incomplete. Brown claims $3421, including rent. Brassfield claims $714.
    “EVIDENCE FOR THE PlAIP TIFF-IN REPLY.-Arch. McKenzie, sworn. Brown, Brassfield and Grouget, called at his store, on their way to the boat. He went with them; Brown and Brassfield walked together; at Dn Porcher’s corner, he is almost certain Grouget left the party; witness went along with B. and B. to the corner of Market, and Church streets, and then parted with them; Brown was on his way to the boat; Grouget was walking with witness; he did not hear the conversation between B. and B.
    “ Cross-examined. — He thinks that after Grouget left them, he joined B. and B.; Brown had called to take leave of him, and he walked a short distance with Brown. It is very possible that Grouget might have joined Brown and Brassfield, at the corner of Church and Market streets; the witness took leave of B. at the market, and in going back to his store, turned his back on Brown and Brassfield.
    
      “ Quachenbush,, sworn. — Recollects the parties passing his store, at the corner of Church and Cumberland streets. He recollects Brown, McKenzie, and Grouget, but not Brassfield. Grouget said Brown was bound for the North, and he was seeing him off. He can’t say how long Grouget stayed at his store ; some few minutes, he supposes; Grouget took a drink; he thinks Grouget went towards Brown’s wharf, at the foot Of Queen street.
    “ Cross-examined. — He was a tenant of Brown; he knew Grouget well; Grouget said he was seeing Brown off-; he thinks Grouget came to the door on Cumberland street; he thinks when Grouget left,-he went down Cumberland street; he could go down Cumberland street and overtake Brown in the market, as easily as to go by Church street.
    “ John Myerhouse. — Deposition'. He was present when Brown and Brassfield came into the steamboat yard, in May, 1843. He did not see Grouget; he saw Brown and Brassfield enter the yard; Brassfield returned from the boat with witness ; witness staid until the boat left; he thinks B. and B. stopped at the head of the wharf; he left his omnibus with a boy, and went to the boat; he is sure Grouget did not come with B. and B.; some person may have entered the yard unobserved by witness; the boat did not stay long.
    “In submitting the case to the jury, a summary of the evidence was presented to them, with observations respecting its ■effect on the issues made in the case. Their attention was directed to the omission of the plaintiff to produce any evidence of the profits of the two first years of the partnership, whereby the damages of the plaintiff, for his alleged exclusion, during the last year, might be estimated; and also to a consideration of the loss the plaintiff might have sustained, by breaking up his business-in Lexington, to engage in the partnership with the defendánt, in Charleston, by reason that the defendant had prematurely dissolved the partnership a year before the end of the term, which the plaintiff contended had been agreed upon for its continuance. They returned a verdict of $ 1250 damages for the plaintiff.”
    
      The defendant appealed, and now moved for a nonsuit, or new trial, on the grounds :
    1. That the plaintiff’s action was for the alleged breach of an agreement of partnership; and that the plaintiff proved neither the agreement, nor the breach, as laid.
    2. That, by the evidence, there was an agreement for a partnership from year to year, and a dissolution at the end of the second year, by consent of plaintiff. That if it was a partnership from year to year, the defendant had a right to dissolve it at the end of the year ; and if the dissolution was with consent of plaintiff, it was immaterial when the partnership would expire by its own limitation.’
    3. That the partnership was dissolved in June, 1843, and plaintiff acquiesced, and never complained of the dissolution until April, 1847; and that such acquiescence was a bar to his action.
    4. That the verdict is without evidence, and against his Hon- or’s directions in point of law.
    
      Petigru &• King, for the motion.
    
      Magrath, contra.
   Ouria, per

Whitner, J.

The grounds made in the brief lead this Court to look into the facts of the case; the verdict of the jury being challenged, because, as is alleged, wholly unauthorized by testimony.

A just appreciation of the value of jury trials is entertained, and not the slightest disposition is felt, therefore, on the part of the Court, to encroach upon the province of juries. Cases sometimes arise, however, when it is indispensable to the ends of justice that the sound legal discretion of the Court should be exercised in granting a new trial, although the matter of complaint be the action of the jury. Notwithstanding the peculiar and decided advantages of this tribunal, causes inseparable from its nature will occasionally operate very prejudicially. General rules for the special superintendence to be exercised, however desirable, may be admitted to be impracticable. Interference, supervision, occasional control on the part of the Court, may lead to some diversity of practice ; but stern, unbending uniformity in sustaining, under all circumstances, a verdict of a jury, would be still more 'dangerous and unsatisfactory. But I need not vindicate this Court, certainly, from any imputation, because of improper interference with the province of the jury. The reply to suitors appealing from the verdict of a jury, has become almost a stereotype.

The case under consideration was an action to recover dam-ges for the breach of a co-partnership agreement. It was therefore alleged to be founded on contract. The plain tiff was bound to make out his case ; to make a prima, facie shewing of the nature and terms of the agreement, and some measure whereby damages might be awarded. In this case it was material and indispensable to establish the co-partnership during the year commencing in the summer of 1843. This was the starting point. The proof was from a single witness, present at two conversations between the partiés, when an agreement was concluded. The co-partnership to continue two or three years, the witness could not say which. These conversations he said were not concerted, but casual. The terms of the agreement were not well .understood by him, though, to the best of his recollection, the co-partnership was to commence on 1st August, 1841. This testimony, it will be perceived, leaves the fact wholly uncertain; his information was vague, and recollection indistinct, and on the precise point as to duration, whether it was two or three years, could only say it was one or the other. An alternative, according to all rules of evidence, is construed most strongly against him who affirms. But in addition there were other facts and circumstances, arising out of the plaintiff’s own shewing, decidedly adverse to the conclusion as to the duration of the co-partnership for the year in question. So palpable was the failure to establish this point, the main hinge of the case, that a Bill filed in Equity by defendant, and made testimony against him, because sworn to by him, was introduced. Yet this bill itself was at least double-edged, for whilst it established the fact of co-partnership, it as clearly denied its continuance, closing it by its own terms, before the year that could avail the plaintiff. In this view no reference is made to the strong, if not conclusive testimony, offered by defendant, growing out of the conduct and admissions of plaintiff, as well as other facts, to negative this allegation, because the present purpose is to ascertain all that was offered bearing on this point; not to weigh conflicting testimony.

The proof as to damages was equally defective, so far as brought to the view of this Court, and in the measure adopted there would seem to have been the wildest caprice.

The legal point suggested in the argument, against the continuance of the co-partnership for the term of years alleged, will not now be considered. The facts of the case not being shewn, the point does not arise. This Court has been constrained to conclude that the verdict of the jury, in this case, was not only against the weight of testimony, but without any sufficient evidence to warrant it; and on • the grounds made in the brief, therefore, the motion for a new trial is granted.

O’Neall, Evans and Wardlaw, JJ. concurred.

Motion granted.  