G. E. KEITH
v.
Theado LEE and wife, Queen Lee.
No. 454.
Supreme Court of North Carolina.
May 1, 1957.*861 Sam J. Morris, Wright T. Dixon, Jr., Raleigh, for plaintiff-appellant.
Taylor & Mitchell, Raleigh, for defendants-appellees.
WINBORNE, Chief Justice.
Defendants, appellees, file in this Court demurrer ore tenus to the complaint, that is, that the complaint fails to state a cause of action. The demurrer is not well taken. It is based upon false premise that the contracts here involved create as between plaintiff and defendants an agricultural partnership. But this is not true for the statute, G.S. § 42-1, originally enacted in 1868-9, Chapter 156, Section 3, and brought through various codifications as The Code, Section 1744, Revisal Section 1982, and Consolidated Statutes, Section 2341, declares that "No lessor of property, merely by reason that he is to receive as rent or compensation for its use a share of the proceeds or net profits of the business in which it is employed, or any other uncertain consideration, shall be held a partner of the lessee."
It is true that before this statute was enacted the Supreme Court did hold in the case of Lewis v. Wilkins, 1867, 62 N.C. 303, on which appellees rely, that a relationship such as is here involved was an agricultural partnership, and that decision was followed in Curtis v. Cash, 1878, 84 N.C. 41, and in Reynolds v. Pool, 1880, 84 N.C. 37. But those decisions were explained and corrected in the light of the provisions of the statute. See Day v. Stevens, 1883, 88 N.C. 83; Belcher v. Grimsley, 1882, 88 N.C. 88; Grissom v. Pickett, 98 N.C. 54, 3 S.E. 921; Lawrence v. Weeks, 1890, 107 N.C. 119, 12 S.E. 120; State v. Keith, 126 N.C. 1114, 36 S.E. 169. And these decisions have been followed in recent years: Perkins v. Langdon, 231 N.C. 386, 57 S.E.2d 407; Johnson v. Gill, 235 N.C. 40, 68 S.E.2d 788; Moss v. Hicks, 240 N.C. 788, 83 S.E.2d 890.
In Day v. Stephens, supra, this headnote epitomizes the opinion in this manner: "The statute expressly provides that the lessor, by reason of his receiving a share of the crop, shall not be regarded as a partner of the lessee."
And in Perkins v. Langdon, supra, it is held that "The fact that lessor is to receive as rent a percentage of the proceeds or net profits of the business, does not constitute lessor a partner therein," citing G.S. § 42-1. Hence the demurrer is overruled.
Now turning to the assignments of error presented by appellants, exception to the failure of the trial judge to declare and explain the law arising on the evidence given in the case is well taken, G.S. § 1-180. Howard v. Carman, 235 N.C. 289, 69 S.E.2d 522, particularly as to what constitutes a breach of the contracts. It appears that the *862 judge stated the contentions of the parties, but inadvertently failed to declare and explain the law arising on the evidence.
For this error there must be a
New trial.