
    William A. Smith, plaintiff in error, vs. Moses Summerlin, defendant in error.
    (Atlanta,
    January Term, 1873.)
    X. New Trials — Bill of Exceptions — Recital of Grounds. — Whenever the bill of exceptions contains a mere recital of the grounds taken in a motion for a new trial, and the judgment of the Court below is a general judgment overruling the motion, and nothing appears in the motion, judgment or bill of exceptions verifying the grounds as true, no assignment of error - can be founded on such grounds so as to entitle them to be heard in this Court; and the more especially is this so, where the pleadings in the case do not authorize the issues raised in such grounds.
    
      2. Partnership — Farming on Shares- — In 42 Georgia Reports, 226, the Court held that when a contract was made by a freedman and a landlord to make a crop for one year, by which the landlord was to furnish the land and stock, and the freedman to work the same, and to receive one-half of the crop made thereon, such a contract did not make them partners:
    Held, That this case comes within said decision.
    3. New Trials — Sufficiency of Evidence to Sustain Verdict — Case at Bar- — There being sufficient evidence to authorize the verdict in this case, and the Court below refusing a new trial, this Court will not interfere on that ground.
    New trial. Practice- in the Supreme Court. Partnership. Before Judge Buchannon. Coweta Superior Court. September Term, 1872.
    
    *Moses Summerlin commenced proceedings on a laborer’s lien against William A. Smith for the sum of $500 00. The defendant filed an affidavit of illegality, upon the following grounds, to-wit: “That plaintiff in ñ. fa. failed to perform his contract upon which said fi. fa. was founded; that this deponent, upon a fair settlement with plaintiff, does not owe him anything.”
    The following evidence was introduced upon the trial:
    The plaintiff testified as follows: Worked for defendant on his farm during the year 1870; cultivated seventy-five or eighty acres of land — partly in corn and partly in cotton; in the cultivation of the land, there were engaged plaintiff and five or six hands employed by him; the land produced eight bales of cotton, weighing from four hundred and fifty to five hundred pounds, one hundred and forty barrels of corn, and twenty-three hundred bundles of fodder, weighing from one and a quarter to one and a half pounds each; one half of said produce belonged to plaintiff and the other half to defendant; the defendant has kept all the' produce except the shucks; plaintiff demanded his proportion, but defendant refused to deliver; plaintiff owed the defendant, as near as he knew, $60 00, for provisions furnished during the year 1870; plaintiff cultivated the land in a farmer-like manner, except for about three weeks, when it fell back a little; this was caused by the death of plaintiff’s wife; ploughed the corn and cotton three times; a portion of the corn made was destroyed by the stock of defendant; defendant turned eleven head of horses and mules into the field worked by the plaintiff; said stock and a number of cows and other cattle ran upon said field constantly for two months.
    Toby Summerlin, the son of the plaintiff, corroborated his father’s testimony.
    M. Saloshin' testified, that cotton was worth, in December, 1870, from twelve and a half to fourteen cents; corn was worth from $1 00 to $1 10 per bushel.
    Foster Arnold corroborated the preceding witness, and testified *further, that fodder was worth from $1 25 to $1 50 per hundred.
    The plaintiff introduced the written contract between him and defendant, as follows:
    “COWETA COUNTY — State oe Georgia.
    “Know all men by these presents, that I, William A. Smith, have contracted with Moses Summerlin this day. I, William A. Smith, do hereby agree to furnish (stock) three mules and feed for the mules, and (75) seventy-five acres of land, to be laid off by the said W. A. Smith, a certain portion to be planted in corn and a portion in cotton, as directed by the said W. A. Smith, being left to his discretion; he also agrees to furnish a team and wagon for gathering and hauling on the farm and tools necessary to prepare and cultivate the land. Moses Summerlin (colored) agrees to furnish the hands and do all the labor necessary to making safe and cultivating well the said number of acres of land, and- to be gathered in time, corn to be gathered and hauled up to Mr. Smith’s and shucked and measured; Summerlin (freedman) to have one-half and Smith the other, and shucks the same way. The cotton to be hauled to my gin and ginned at the customary rates of ginning, then hauled to town, and a division of the cotton or money, as we may think proper, the hauling -to be equally paid by both. The bacon to be furnished to Mose at (26) twenty-six cents per pound. Directions in cultivating to be given by W. A. Smith. This agreement agreed and entered into this January 22d, 1870.
    (Signed) “W. A. SMITH,
    “MOSE X SUMMERLIN.
    mark.
    Test: “J. N. Vineyard,
    “G. W. Penn."
    “P. S. All tools to be returned or paid for by the twenty-fifth day of December, 1870, this agreed upon.
    (Signed) “W. A. Smith,
    Ms
    TStamp! “Mose x SummEREIn.”
    mark.
    428 *The following evidence was introduced for the defendant :
    Arthur Latimore, sworn: Saw the land cultivated by plaintiff in January, 1871; did not see it in .1870; a portion is bottom and the balance upland. The crop was not cultivated well. Saw a portion of the cotton raised; it was dirty and wet; had to be moved in the gin house and scattered to dry before it could be ginned; while in a heap it was so hot that witness could hardly hold his hand in it; judges that the land was not well cultivated from the size of the stalks, from the fact that bamboo briers had grown up in some parts of the cotton field, and from the quantity of grass in the corn. There were about one thousand good bundles of fodder; the balance was the same as worthless; it had been injured by the stock tearing it out of the stacks and by being badly put up.
    The defendant testified as follows: Furnished the stock and feed according to contract, but plaintiff did not cultivate the land in a farmerlike manner. He plowed the corn twice after it was up, with an interval of five weeks. The cotton was not more than one-half cultivated. Defendants furnished to plaintiff provisions and other things to the amount of $127 00. Defendant did the ginning and paid for ties and bagging, which, together with hauling the cotton to market, was worth $4500. The cotton was damaged on account of not having been picked in time. It was beat out of the bolls by rain and became black and dirty. It was thrown into heaps in the field and rained upon. There were only six light bales made, aggregating two thousand seven hundred and fifty pounds, and the highest offer made for them in the markets of Sharpsburg and Newnan was eight cents per pound. There were two hundred and sixty bushels of corn made. Twelve acres of the twenty-four cultivated in corn was as good bottom as there is in the country, and ought to have made, under proper cultivation, fifty bushels to the acre. The stock did not destroy more than about twelve or fifteen bushels of corn. The defendant was damaged by the manner in which the plaintiff cultivated the land at least the amount of his (plaintiff’s) interest in the crop. Never refused to let ^plaintiff have a wagon to haul up corn. Plaintiff applied for a wagon on one occasion to haul cotton when defendant’s wagon was engaged, -and he told plaintiff he could get it the next day. The plaintiff and’ his son applied for a wagon twice to haul up corn; replied that he would'have the com hauled when it suited him. The corn was gathered by the middle of October and tne cotton by the middle of December. The plaintiff commenced to pull corn before notifying defendant; told him to stop and he obeyed. Defendant had the corn which was made hauled to his crib, except the- first gathering. There were sixty bushels of this lot, of which the plaintiff got his half. The second gathering amounted to two hundred bushels. Plaintiff did demand one-half of the corn, but never did demand any portion of the cotton; he left before the same was ginned or even hauled to the gin. Never told the plaintiff to leave his yard, and that if he came back he would kill him.
    Plaintiff recalled: . Asked defendant three times for a wagon to haul cotton, and was refused. Asked him several times for a wagon to haul corn, and was refused. Defendant only came once to the field where the hands were picking. Defendant ordered plaintiff out of the yard, and told him that if he came back he (defendant) would kill him. The reason that defendant threatened to shoot him was because the plaintiff applied to him to divide the corn after the same was hauled dp into the lot.' This was the reason why plaintiff failed to help shuck and crib the corn.
    Toby Summerlyn corroborated plaintiff in his testimony as to the refusal of defendant to furnish a wagon.
    R. M. Hackney, sworn: Witness, as sheriff, levied the lien fi. fa. in this writ; defendant showed to him two different cribs of corn, and said it was the corn raised by the plaintiff. Some of the corn seemed to have been bitten; some was as fine as witness ever saw. Noticed around the cribs a pile or two of rotten and short corn.
    The jury returned a verdict for the plaintiff for $113 18. ' ^Whereupon the defendant moved for a new trial upon several grounds, only two of which it is necessary to set forth:
    1st. Because the Court erred in refusing to dismiss plaintiff’s case, on the ground that the defendant and plaintiff were partners, and because the plaintiff was not a laborer, and was therefore not entitled to a laborer’s lien.
    2d. Because the verdict was contrary to the evidence.
    The motion was overruled, and the defendant excepted upon each of the grounds therein taken.
    There was nothing in the record or bill of exceptions which identified the grounds taken in the motion for a new trial, which were also the grounds of exception, as being true.
    W. F. Wright; W. A. Turner, for plaintiff in error.
    J. B. S. Davis, for defendant.
    
      
      New Trials — Bill of Exceptions — Recital of Grounds. — Where the record shows that the court below did not certify objections which were alleged grounds for a new trial, to be true, this court cannot consider the same as having been made. DeVaughn v. McLeroy, 82 Ga. 700, 10 S. E. Rep. 211, citing principal case.
      Same — Same—Same.—It must affirmatively appear by the judge’s certificate on the motion itself or by an affirmative recital in the bill of exceptions that the .grounds taken are true, or they cannot be considered by this court. Puffer v. Peabody, 59 Ga. 295; Central Railroad, etc., Co. v. Sears, 59 Ga. 436; Loudon v. Coleman, 59 Gá. 653; Flanders v. Maynard, 58 Ga. 56; Smith y. Summerlin, 48 Ga. 425; Flournoy v. Wardlaw, 67 Ga. 378.
      Same — Rule Nisi — Recital of Objections. — “Since the case of Olive v. Herrington, 33 Ga. 580, it is well -settled law that the recitals in the rule 'nisi, when the objection has been insisted on here by- counsel at the proper time, have stood in need of further verification, whether the rule nisi was granted or not, unless the lower court went further and gave the rule absolute.” Thompson v. Georgia Railroad, etc., Co., 55 Ga. 464. Principal case cited with approval.
    
    
      
      Partnership — Farming on Shares. — Where a party agrees to cultivate a farm, manage the same, keep all the fences in repair and to do all that is required to be done by a farm manager, receiving oner, fourth of what is made on said farm; the other party agreeing to furnish a certain number of acres of land, team, farming utensils, and supplies for the laborers; such an agreement does not constitute a partnership. Cherry v. Strong, 96 Ga. 183, 22 S. E. Rep. 707. Principal case cited with approval.
      Same — Same.—Where a cropper is employed to cultivate a farm on certain terms, for which he is to receive a certain share of the crop when made, the landlord reserving possession of same until advances made are paid back, such contract does not constitute a partnership. Holloway v. Brinkley, 42 Ga. 226; Gurr v. Martin, 73 Ga. 531.
      Same. — See generally, title Partnership. Ency. Dig. Ga. Rep., vol. 10, p. 182.
    
    
      
      Same — Same—Principal Case Distinguished. — Holifield v. White, 52 Ga. 567, is distinguished from the cases of Holloway v. Brinkley, 42 Ga. 226; Smith v. Summerlin, 48 Ga. 425. Here White was to furnish the land and stock, and Royal the labor and pay for it. This made, as they rated it, each of them equal contributors towards the farming adventure into which they had agreed to enter. After that they were to bear equally the expense of feeding the stock and laborers, and all other plantation expenses, and thus'make a crop, ■which was to be theirs equally, and to be divided between them. There was something more in this than a common interest in the profits. Holifield v. White, 52 Ga. 568.
      Same. — See also, principal case cited with approval in foot-note to Holloway v. Brinkley, 42 Ga. 226.
    
   Trippe, Judge.

It has been frequently decided by this Court that the grounds recited in a motion for a new trial must be verified either in the motion itself, or in the bill of exceptions, or elsewhere in the record, or certificate of the Judge, as being true, especially if the decision of the Court on the motion is a general judgment, simply overruling or refusing the same. The reason of this rule is made more obvious where the issues that are presented in such grounds are not authorized by the pleadings.

We think that the decision in Holloway vs. Brinkley, 42 Georgia, 226, governs this case.

Nor was the verdict so unsupported by evidence as to call for the interference of this Court in controlling the discretion of the Court below in refusing a new trial on that ground.

Judgment affirmed.  