#### NANCY E. GATES v. A. MAX.

(Decided November 7, 1899.)

Demurrer Under Act 1897, Chap. 109, (Since Amended, Act 1899, Chap. 181) — Evidence of Plaintiff, How Considered — -Tax Boohs — Declarations of Parly in Possession.

1. In cases of demurrer and motions to dismiss under Act of 1897, the evidence must he taken most strongly against defendant.

2. If there is more than a scintilla of evidence tending to prove the plaintiff’s contention, it must be submitted to the jury.

3. Tax book admissible evidence to go before the jury, entitled to some weight, it may be slight, but to be determined by them.

4. Declarations of a party in possession of property are admissible for the purpose of qualifying such possession, but not for the sole purpose of fixing pecuniary responsibility upon a third party, not then present.

Civil ActioN instituted in Justice’s Court of Dubham; County, for recovery of $60 rent of store for 1897, and heard on appeal before Bryan, J., at January Term, 1899.

*140At the close of plaintiff’s evidence, the defendant demurred thereto, under the Act of 1897, cbap. 109.

His Honor sustained the demurrer, and rendered judgment as of nonsuit, against the plaintiff, who excepted, and appealed to the Supreme Court.

The evidence and points raised are stated in the opinion.

Messrs. Winston & Fullerfor plaintiff (appellant).

Messrs. Boone, Bryant & Biggs, for defendant.

Douglas, J.

This was an action brought before a Justice of the Peace to recover rent, appealed to the Superior Court, and thence to this Court. In the court below, at the conclusion of the plaintiff’s testimony, the defendant demurred to the evidence, under chap. 109 of the Laws of 1897. The Court being of opinion that there was not sufficient evidence to go to the jury, sustained the demurrer, and dismissed the action.

While not necessary in the consideration of this case, it may be noted that the Legislature has amended the Act of 1897, by chap. 131 of the Laws 1899, to meet the suggestions of this Court as expressed in Purnell v. Railroad, 122 N. C., 832, 835; Manufacturing Co., v. Railroad, 122 N. C., 881, 888; Cox v. Railroad, 123 N. C., 604, 606, and other cases. The only question now before us is, whether there was more than a scintilla of evidence for the consideration of the jury. The rule to be followed in all such cases is clearly laid down by Justice Fuecites in delivering the opinion of the Court in Johnson v. Railway, 122 N. C., 955, 958, as follows: “In cases of demurrer and motions to dismiss under the Act of 1897, the evidence must be taken most strongly against the defendant. Every fact that it reasonably tends to prove must be taken as proved, as the jury might so find.” Citing *141 Bazemore v. Mountain, 121 N. C., 59; Spruill v. Ins. Co., 120 N. C., 141; Ice Co. v. Railroad, 122 N. C., 881, and Whitley v. Railroad.

'This has become the settled rule of this Court, by a long line of decisions, extending from Avery v. Sexton, 35 N. C., 247, to Cogdell v. Railroad, 124 N. C., 302.

It is equally well settled that if there is more than a scintilla of evidence tending to prove the plaintiff’s contention, it must be submitted to the jury, who alone can pass upon the weight of the evidence. Cable v. Railroad Co., 122 N. C., 892; Cox v. Railroad Co., 123 N. C., 604, 607, and cases therein cited.

The plaintiff testified, in her own behalf, as follows: “That she owned a store near South Lowell. That it was occupied in 1896 by Somers & Son,and also a portion of 1897. The contract of 1896 was $125 a year, payable monthly. There was no change in 1897. Max did not notify me of any change. I had no other contract with Max. In 1896 Max questioned me very closely as to the class of goods that could be sold at my store. In 1897 Somers & Son remained two or three months. My store was vacant the rest of the year 1897. I did not get any rent for 1897. The rent for 1896 was collected by law. Max said he did not want his name known in this business. I had no dealing with Somers & Son. I rented the store to A. Max. In that contract Max became surety for Somers & Son. I understood him to say he would put a clerk out there. I owed E. C. Geer, and transferred the note for rent signed by 'Somers & Son, and Max as surety, to them. I think I signed one paper and Max one. Both papers were signed at the same time. Max had to pay Geer a part of that note because he was surety. The contract was never changed. I did not sue for $125 for 1897. I sued for $60 for 1897, I brought suit *142after the change made by my husband and Mr. Geer. I had no conversation with Mr. Max after 1896, when he signed the note.”

W. S. Terry, for plaintiff, testified that “he knows that store. He was there early in 1891, and saw many wagons there. Jacobson was there, and seemed to be boss. Andrews was there also. Jacobson is in Max’s employ. They commenced taking goods down, and had them all down next morning. Jacobson sold some of the goods at private sale. He left none in the store. Drove off toward Durham. They also took Somers’s horse and wagon.”

Dunnigan testified for plaintiff: “I saw this file of papers in Max’s store in Durham. I got them from A. Max. He told me that he had some accounts he wanted me to collect. Said they came from the comer store (Gates’s store). I collected some of the accounts, and paid over the money to Max. The accounts were put in my hands for collection December 8, 1897.”

W. G. Gates, husband of plaintiff, testified: “In the fall of 1896, about Christmas, I was in Max’s store. I asked him if they wanted the store for the next year. Max said ‘see Somers, and any arrangement you make with him will be satisfactory to me.’ In a few days I saw .Somers.When we reached the store Somers said they couldn’t afford to pay the rent they had been paying. I told him I would take $60 rather than let the house stay vacant. He said he would have to see his ‘boss’.That night I saw Max and told him I had seen Somers, and let him have it at $60. He said, ‘I am glad you did.’ ”

Geer, for plaintiff, testified: “I went with Gates to the store to see Somers and son. I think he told me what Max had said before he went out there. Somers said he would have to reduce the rent. He could not tell until he saw his *143'boss/ until he saw his master. He called him also his partner.”

We think that this evidence, of which there is certainly more than a scintilla, taken in the light most favorable to the plaintiff, tended to prove her contention that the defendant had a substantial interest in the business, thus making Som-ers either an agent or a partner.

The defendant further contends that as there is evidence to the effect that the plaintiff had assigned the rent in question to Geer, she has no further interest in the subject matter of the action. This does not appear in the testimony of the plaintiff herself, and hence can not be taken as an admission. She was admittedly the owner of the storehouse, and is therefore prima facie entitled to the rents. If the defendant relies upon a transfer of the rents to prevent her recovery, he must prove such a transfer. It can not be found by the Court on a motion to dismiss, for this would be the finding of an affirmative fact, which can be done only by the jury. In White v. Railroad, 121 N. C., 484, 489, this Court, speaking by Justice Fueches, lays down the following rule: “The Court can never find, nor direct an affirmative finding of the jury.” Citing State v. Shule, 32 N. C., 153.

Again in Bank v. School Committee, 121 N. C., 107, 109, Justice Eubches, speaking for the Court, says: “But no matter how strong and uficontradictory the evidence is in support of the issue, the Court can not withdraw such issue from the jury and direct an affirmative finding. To do this is to violate the Act of 1796 — sec. 413 of The Code.” Citing State v. Shule, supra; Hardison v. Railroad, 120 N. C., 492; Spruill v. Insurance Co., 120 N. C., 141; White v. Railroad, 121 N. C., 484. This doctrine has been repeatedly reaffirmed. Collins v. Swanson, 121 N. C., 67; Eller v. Church, Ibid, 269; Cable v. Railroad, 122 N. C., 892; Cox *144 v. Railroad, 123 N. C., 604; Dunn v. Railroad, 124 N. C., 252.

As to the first exception to the evidence, we think that the tax book should have been admitted to go to the jury for what it was worth. Austin v. King, 97 N. C., 339; Faulcon v. Johnson, 102 N. C., 264; Ruffin v. Overby, 105 N. C., 78; Pasley v. Richardson, 119 N. C., 449; Bernhardt v. Brown, 122 N. C., 587; Ridley v. Railroad, 124 N. C., 37. Such evidence is generally said to be slight, but it still has some weight to be determined by the jury.

As to the exclusion of the evidence of Somers as to the ownership of the property, we have had some difficulty in coming to a conclusion. The general rule is that declarations of a party in possession of property are admissible for the purpose of qualifying such possession; but we do not think that the authorities go to the extent of allowing such evidence for the sole purpose of fixing a pecuniary responsibility upon a third party, not then present. To what extent such declarations may be aided upon a new trial by evidence tending to show agency or partnership, we are not prepared to say, as the question is not now before us.

The plaintiff offered in evidence this remarkable contract of rental, which was excluded: “Durham, N. C., June 27, 1898. This certifies that I, Squire Thomas, have rented from A. Max the following goods: One suit of clothes and shirts, for which I promise to pay 25 cents cash, and $1.50 per week until the amount of $8 has been paid. Any neglect on my part to pay said rent when due shall entitle said A.' Max or his assigns to repossess said articles without hinderance or process of law, I forfeiting all that has been paid on said article as rent for and during the time said property has been in my possession; and I further agree to -protect and keep in good order the above-named article, and I will not *145move said article without written consent of A. Max or bis assigns. After all obligations are settled as per agreement, a bill of sale will be given of all the goods. (Signed) Squire Thomas, Agent L. Somers & Son.”

As the matter is presented to us, we do not see its relevancy, although admitting its interest as illustrating a phase of business methods that has hitherto never been brought to our attention. For reasons stated above a new trial must be ordered.

New trial.