(1) The first exception, apparent in the record but not urged in the argument, is to the refusal of the court to submit the three additional issues proposed by defendant to the jury.
These present in a more summary form the inquiries contained in the others, and their rejection can be in no manner prejudicial to the defense. The elements in the controversy with Call are his employing the *Page 169 plaintiff, directly or through an agent, and his having entered into such relations with J. L. Jones as in law confers upon the latter the authority to contract for both.
These are embodied in the issues upon which the jury have passed.
2. It was in evidence that the revocation by Call of the agency exercised by the plaintiff was in writing, and defendant objected to parol evidence of its contents in the absence of the original. Thereupon the plaintiff, who was on examination for himself, then stated that on receiving it he was provoked and threw it down on the floor in Cardwell's machine shop in Richmond, and his impression is that he tore it in pieces; that he has never seen it since and does not know where the paper now is, but that he has not made any search.
The witness was then allowed to speak of the contents, and to this ruling the defendant excepted.
The evidence of the destruction or loss of a paper preliminary to letting in proof of its contents is addressed to the court and not to the jury, and the finding when there is any evidence is equally conclusive upon this Court.
"The object of the proof," is the comment of a learned author, "is merely to establish a reasonable presumption of the loss of the instrument, and this is a preliminary inquiry addressed to the judge. If the paper wassupposed to be of little value or account, a less degree of diligence will be demanded, as it will be aided by the presumption of loss which these circumstances afford." 1 Greenl. Evi., sec. 558.
The examination discloses evidence, we might say cogent evidence, of the destruction of the writing, but if ever so slender, (179) the judgment of the court that it establishes the fact is conclusive upon the appeal. S. v. Efler, 85 N.C. 585; Branton v. O'Briant, ante, 99, with numerous references in the opinion.
Again, the writing was but a notice, and the rule requiring the production of the writing itself as the best proof of what it contains does not extend to mere notices, which persons are not expected to preserve. 1 Greenl. Evi., sec. 561; S. v. Credle, 91 N.C. 640.
The suggestion of the absence of proof of the letter being in the handwriting of the defendant Call, or bearing his signature, cannot be entertained, since manifestly the objection to the receiving the parol proof rests upon a supposed insufficient showing of the loss, and this objection alone is before us. Bridgers v. Bridgers, 69 N.C. 451; Kidderv. McIlhenny, 81 N.C. 123; Williams v. Kivett, 82 N.C. 111; Gidney v.Moore, 86 N.C. 485.
Besides, the writing seems only to show a revocation of agency, a fact not in dispute, nor the subject of just complaint. *Page 170
3. The exception to the introduction of two letters written and signed by the defendant Call, addressed to W. E. Tanner Co., and bearing the same date, 11 October, 1878, has been withdrawn, and will not be considered.
4. The objection to the admission of a letter from defendant to R. W. Glenn at Richmond on 3 May, 1878, is based upon its alleged irrelevancy and tendency to mislead the jury.
This letter represents the interest taken by the writer in the machines and his desire to extend the sales, and the distinct recognition of the agency in these matters of his father, Moses Call, and so far sheds some light upon the transactions under investigation. But if the statements are irrelevant, we discover nothing in them tending to mislead or prejudice the jury, and where these do not coexist, the admission of irrelevant evidence does not become an assignable error. Carrier v. Jones,68 N.C. 130; Bank v. McKethan, 84 N.C. 582; Comrs. v. Lash,89 N.C. 159; S. v. Arnold, 35 N.C. 184; Gaylord v. Respass, 92 N.C. 554.
(180) 5. The defendant proposed to read to the jury a portion of the deposition of Moses Call taken in the cause, and detailing a conversation between the witness and the defendant J. L. Jones, which, on objection, was held to be incompetent, and the defendant excepted.
The case prepared and sent up by the appellant is accompanied with several exceptions, which do not seem to have been passed on by the judge. These must be consequently deemed to have been accepted and the case modified accordingly, as is held in the case of Owens v. Phelps,92 N.C. 231.
In those exceptions it is stated that after the ruling out of the evidence, and upon certain explanations of the purpose of its introduction, "the plaintiff withdrew his objection and the evidence was admitted."
6. The two instructions asked were given — the first in the form proposed, and the other, to wit, "If the jury should believe from the evidence that E. P. Jones, the plaintiff, was employed as a subagent for the sale of machinery, and was to be paid out of the gross sales, then the plaintiff cannot recover of the defendant Call in this action" — with the subjoined qualification, "unless the defendant Call violated his agreement and wrongfully prevented him from getting pay for his services," etc., as stated more particularly in the record. There is no error in this addition to the charge, and it would have been improper without it. If the plaintiff, as a subagent, was in the active performance of duty, and was to look to the gross sales of the machines for his compensation, the interference of the defendant whereby he was prevented from carrying on his work, and thus providing the means for his *Page 171 compensation, would remit him to his claim upon a quantum meruit, or otherwise he would be without remedy.
7. The objection to the issues as made up by both parties and the refusal to admit those proposed in substitution is equally untenable. The first are more in detail, but they present the questions of fact upon the affirmative finding of which, as offered by the plaintiff, his action depends, while those offered by the defendant embody his (181) matters of defense.
8. The point most earnestly pressed was that while there was no evidence of a direct contract of the defendant with the plaintiff for his employment, nor of any one else with his authority, it was left to the jury to find such contract.
This exception makes it necessary to look into the evidence, and if there was any to be left to the jury, for if there was, they alone were to determine its sufficiency to establish the fact.
The plaintiff testified: "I was employed by Moses Call, father of defendant, whom Manfred Call told me was his agent to attend to his business. Manfred Call told me in Greensboro, and told me his father was his agent; he only came out to see what you gentlemen were doing, but his father was the agent who would attend to the matters."
The witness also testified that "some $11,000 went to pay Call on the debt in about 17 months."
That after the recalling the agency the defendant received Glenn as an interested associate with them in the continued prosecution of the business of making and selling the machines, under an agreement for the same appropriation of the net proceeds of sale, and the plaintiff then went on selling up to 2 December, 1878, Glenn saying, "If you are going to quit, I will not have anything to do with it."
It is true that the testimony of the defendant directly conflicts with that of the plaintiff, and he explicitly denies that he ever employed the plaintiff or authorized his employment as agent by any one else, while it is not disputed that defendant did notify the plaintiff not to make or sell the machines, thus to some extent exercising the rights of a principal in the matter.
These considerations were properly for the jury, and with them, they were left in the charge.
The next exception is to the instruction which submitted to the jury the question of copartnership between the defendant and J. L. Jones, and afterwards, upon the admission of Glenn, between them and him. (182)
Now the second series of issues were all framed by the defendant's counsel, and do not arise out of the allegations of the complaint, while those of the plaintiff were directed to an enquiry as to the joint *Page 172 employment of the plaintiff by Call and the others during his alleged association with Jones, as with Glenn when he became interested in the business.
The affirmative finding upon these issues imposed an equal obligation growing out of contract upon each, and this result is irrespective of the question whether their relations, inter sese, were those of partners or not. They had a common interest in advancing the business — rendering it successful and remunerative — and in securing an agency to this end. Besides this, according to the plaintiff's testimony, a large sum in receipts from sales passed into the hands of Call, without deduction in payment of plaintiff's services, through which the moneys were earned, and to which Call was not entitled until those services were paid for.
If all the issues relating to the partnership relations of the parties were found for the defendant it would not affect the findings upon the joint contract nor impair the right of action and recovery of what is due the agent, which are independent of the supposed firm relations, which become material only when the employment is the contract of one partner and is to bind the others, in the absence of their direct assent.
This view renders unimportant the instructions asked and those given upon the questions of partnership, unless they may have influenced the jury in their verdict responsive to the issues submitted for the plaintiff. What is required to constitute a copartnership and what facts make members of it are matters of law, while the jury find the constituting facts by which the relation is formed. A participation in the profits and losses of a business in which persons engage is the ordinary test. We are not prepared to say there was no evidence of these underlying conditions, so that error is imputed to the court in leaving the question under explanation to be passed on by the jury. But if an error, (183) does it enter into and vitiate the finding of the contract?
In a careful review of the case, though not without some hesitancy, we have come to the conclusion that as the inquiry does not arise out of the complaint nor is essential to the cause of action set out, and comes from the defense, even an erroneous ruling upon the point, which cannot be seen to have prejudiced the action of the jury in passing upon the other issues, ought not to be allowed to disturb the result reached as to them.
Without protracting the discussion further, already and necessarily pursued to great length, our opinion is that there is no error that warrants the setting aside of the verdict and awarding a venire de novo. The judgment is therefore affirmed.
No error. Affirmed. *Page 173 Cited: McCanless v. Flinchum, 98 N.C. 364; Leak v. Covington,99 N.C. 564; S. v. Eller, 104 N.C. 856; FertilizerCo. v. Reams, 105 N.C. 297; S. v. Parker, 106 N.C. 712;McMillan v. Bailey, 112 N.C. 586; Jeter v. Burgwyn, ibid, 159;Cummings v. Hoffman, 113 N.C. 268; Lyman v. Ramseur, ibid, 504;Roberts v. Partridge, 118 N.C. 357; Webb v. Hicks,123 N.C. 247; Ludwick v. Penny, 158 N.C. 113; Rennv. R. R., 170 N.C. 141; Holloman v. R. R., 172 N.C. 375;S. v. Freeman, 183 N.C. 747; Martin v. Bush, 199 N.C. 99.