#### T. W. MANEY v. ROBERT GREENWOOD, T. E. BLACKSTOCKS, and JOE M. BURLISON, a Partnership.

(Filed 7 December, 1921.)

1. Partnership — Evidence.

Held, in this action upon contract, there was sufficient evidence that the defendants were partners, and liable as such, among other things, their contract among themselves, the admissions of some of them, their putting their refusal to pay the contract price upon a different ground *580than a denial of the partnership, and the admission in their answer of the allegation of the complaint that they were partners, etc.

3.Partnership — Contracts—Lumber—Evidence—Instructions—Trials. .

In an action to recover the contract price of merchantable and sound lumber, bargained, sold, and delivered to the defendant partnership, an instruction of the court placing the burden of proof on plaintiff to show that he had delivered the lumber to the defendants according to his contract was correct, there being evidence to sustain the verdict.

3. Partnership — Undisclosed Partner — Liability.

A partnership liability on a contract by one whose name is not signed thereto may be established upon competent evidence in an action thereon for the purchase price of goods sold and delivered, with the burden of proof on the plaintiff, that such person was in fact a partner in the enterprise.

4. Same — Contracts—Principal and Agent.

Where one partner enters into a contract in behalf of the partnership, without the signatures thereto of all the partners, and it is established on the trial that they were all partners in the enterprise, they will all be bound by its terms, through those who have, with the proper authority, signed the agreement in their behalf.

5. Trials — Parties—Witnesses—Comment of Counsel — Court’s Discretion —Appeal and Error.

Where a party to an action does not go upon the stand to prove or disprove material facts within their knowledge, remarks of opposing counsel to the jury as to their failure to have done so are allowable in the discretion of the trial judge, and where it does not appear that he has not abused this discretion, his action in allowing them to be made is not reviewable on appeal. '

6. Contracts — Acceptance in Part — Liability.

Where the defendant has contracted to accept lumber of a certain kind, he is liable for that part he has actually accepted under the terms of his-contract, both that expressly and impliedly accepted.

7. Instructions — Interpretation—Connected AVhole — Unconnected Parts.

The instruction of the court upon the trial of this action to recover for lumber sold and delivered, laid down the correct rules of law for the guidance of the jury, properly construing the charge as a related whole, and not as to its unconnected parts. ■

8. Same — Appeal and Error — Harmless Error.

In this action to recover for sound merchantable lumber sold and delivered under a contract, an instruction that the defendant could not reject “any,” if some of it was of the required kind, is held to mean that “all” could not be rejected if some of it was of that kind, it appearing, under a proper interpretation of the charge, as a connected whole, that this was the intention of the judge, and that the jury could not have been thereby misled, but that they so understood the charge from the context.

Appeal by defendants from Shaw, Jat the August Term, 1921, of YANCEY.

*581This action was brought to recover the price of timber, bargained and sold to the defendants, at their request, from plaintiff’s land, and also damages for the use of certain lands occupied by them' as a sawmill yard for sawing and storing timber cut from other lands. Only one issue was submitted to the jury, as follows:

“Are the defendants, or any one or more of them, and if so, which ones, indebted to the plaintiff, and if so, in what amount? Answer: 'Yes, all three, to the amount of $2,212.Y8.’ ”

Judgment upon the verdict, and.defendants appealed.

Gardner & Hamrick and Watson, Hudgins, Watson & Fonts for plaintiff.

Charles Hutchins and A. Hall Johnston for defendants.

WalKee, J.,

after stating the ease: The question in this case turned largely upon whether the defendants were partners in the transaction upon which the plaintiff declares. There was more than ample testimony to show that they were such partners. The defendant Joe M. Burlison signed the contract along with the plaintiff, and agreed to take and pay for the timber or logs which were merchantable, and which would saw out sound lumber. The codefendants, Greenwood and Black-stocks, if they were partners of Burlison would, of course, be responsible equally with him. The following are some of the facts tending to establish the copartnership between the defendants: The instrument executed by Greenwood and Blaekstocks to Burlison some time after the contract was made, the signature of Burlison and Blaekstocks to the note and the statement of Blaekstocks that they were partners at the time this contract was made and the conduct of the partners, especially when plaintiff demanded his money, and lastly the most significant fact is the admission of the partnership by defendants in paragraph one of the answer in this action.

1. There was an abundance of evidence to warrant the jury in finding that Greenwood and Blaekstocks were partners with Burlison, and certainly enough to go to the jury, and the jury has so found. Greenwood and Blaekstocks did not refuse to pay the plaintiff on the ground that they were not partners with him, but stated that the logs did not come up to the contract, and Blaekstocks said that the reason Burlison signed his name to the note was that they were partners “over there” at that time, and this is reinforced by the conveyance from Greenwood and Blaekstocks to Burlison and other proof of the partnership, as, for instance, the admission in the answer, as above noted, that the three composed the partnership. There is no' substantial merit in this exeep-tion.

*5822. The court charged the jury that the burden of proof was on the plaintiff to show that he had complied with the terms of the contract in every respect, and there was also evidence by the witness agreed upon by the plaintiff and defendant to do the measuring of the logs, that he had scaled out all defects and left the logs so that they would saw out sound lumber. Taking the charge of the court altogether, it shows that it was absolutely fair to the defendants.

3. The court stated the contentions of the plaintiff as to the partnership, and also charged the jury that if plaintiff had shown by the greater weight of the evidence that, though Blackstocks and Greenwood may not have signed the contract, they were really interested with Burlison, as partners, in the logs conveyed by the contract, that they were going to manufacture them together, and thus engage in the joint enterprise, and that Burlison only represented them, then, and in that event, not only would Burlison be responsible to the plaintiff, but the other two defendants would be liable to him for all merchantable logs plaintiff delivered to the defendant’s yards, the designated place of delivery, provided plaintiff complied with his contract.

4. Counsel do not state enough of the charge of the court to show just what the judge meant when he said that the defendants had not gone on the stand, and when the charge is read, as fo this point, it will be seen that the court was giving the contentions of the defendants, and that it was not necessary for them to go upon the stand, since they contended that the logs were not up to the contract. But if defendants failed to prove material facts which they could have shown by their own testimony, their failure to become witnesses was the subject of fair comment. Goodman v. Sapp, 102 N. C., 477; S. v. Turner, 171 N. C., 803; 16 Cyc., 1062; Powell v. Strickland, 163 N. C., 393.

5. It was not denied that the defendants sawed a portion of the logs into lumber, and, of course, this was an acceptance of a portion of the logs, at least, and the court was warranted in so charging to this effect.

6. The court charged the jury that Burlison could not reject all of the logs, but only such part as came up to the contract he would have to take. This was the correct rule of law applicable to the case.

7. There is nothing in the charge to sustain this exception, and the same has been fully answered in the remarks above. "When all the charge is taken and construed together, as it should be, the rule of law was correctly laid down by the court.

8. We can see no error in this exception. The court charged the jury, at all times, that the burden of proof was on the plaintiff to satisfy them by the greater weight of the evidence that he had complied with the terms of the contract, which had been offered in evidence, before they *583could answer tbe issue in favor of him, and if be failed to satisfy tbe jury by tbe greater weight of tbe evidence, tbey should answer tbe issue against tbe plaintiff.

That part of tbe charge, as to accepting a part of the timber being equivalent to an acceptance of all, was evidently meant to be confined to tbe merchantable timber, or such as complied with tbe description of tbe contract, and it was not intended to say that an acceptance of tbe merchantable timber would bind tbe defendants to take tbe whole lot whether of that kind or not. We could not possibly attribute any such meaning to tbe very learned and accurate presiding judge, and, besides, tbe context discloses tbe real meaning to be that defendants were bound only to take tbe timber, which was of tbe kind tbey contracted to receive and pay for, and could not reject “any” if some of it was of that description, tbe word “any” being palpably used for “all,” and tbe jury could not, as intelligent men, have otherwise understood tbe language of tbe court, even though tbe phraseology may not have accorded with tbe highest and best standard of expression. Tbe charge must be taken and construed as a whole, in tbe same connected way it was delivered to tbe jury, and we must not trust to mere conjecture that tbey may, perhaps, have misunderstood, and thus have been misled, but it should clearly so appear before we can reverse for that reason. It would not be fair to tbe judge to select only one isolated passage in bis instructions, but each clause should be considered in the light of what precedes and follows it, so that we may look at tbe charge in its entirety. This has always been tbe rule here and elsewhere, for it is tbe essence of reason and justice. S. v. Exum, 138 N. C., 599; Kornegay v. R. R., 154 N. C., 389; In re Hinton’s Will, 180 N. C., 206, 213.

As to tbe failure of tbe defendants to take tbe stand as witnesses in their own behalf, tbe case of Goodman v. Sapp, 102 N. C., 477, furnishes a full answer to this objection, but as this practice does not seem to be well understood, we will refer more particularly to some of tbe authorities. Tbe power and duty of tbe court to check counsel when abusing bis privilege in commenting on witnesses and their testimony, and on tbe conduct of parties to the action, is clearly settled by many decisions. Very soon after tbe change by statute, allowing parties to actions to testify, it was adjudged that the mere fact that a party, plaintiff or defendant, did not testify in bis own behalf was not tbe proper subject of comment. In Devries v. Phillips, 63 N. C., 53, tbe court was asked to charge tbe jury: “That inasmuch' as. tbe defendant was a competent witness, tbe fact that be did not offer himself as a witness in bis own behalf, authorized tbe jury to presume tbe facts against him. His Honor declined to give tbe instruction, but charged tbe jury that tbey might consider the circumstances and give to it what weight tbey might *584think proper.” In commenting on this ruling, Reticle, J., said: “It is true, as a rule of evidence, tbat when, in the investigation of a case, facts are proved against a party which it is apparent he might explain, and he withholds the explanation, the facts are to be taken most strongly against him.” . . . “We conclude that the fact that a party does not offer himself as a witness, standing alone, allows the jury to presume nothing for or against him, and can only be the subject of comment as to its propriety or necessity in any given case, according to the circumstances, as the introduction or nonintroduction of any other witness might be commented on.” In Gragg v. Wagner, 77 N. C., 246, but three persons were present at the bargain and execution of the deed in controversy — -the plaintiff, the draftsman, and the defendant. The two former were examined on behalf of the plaintiff. The defendant was not present, but was in the State of Oregon, and it was not alleged that he knew the facts other and different, in connection with the execution of the deed, from those testified to by the witnesses present, and counsel was not permitted to comment upon the fact that he had not offered himself as a witness. The Court held that it is the privilege, and not the duty, of a party to an action to offer himself as a witness in his ovro. behalf, and he is not the proper subject for unfriendly criticism, because he declines to exercise a privilege conferred upon him for his own benefit merely. The fact is not the subject of comment at all; certainly not, unless under very peculiar circumstances, which must necessarily be passed upon by the judge presiding at the trial, as a matter of sound discretion. Only an abuse of that legal discretion is reviewable here. Peebles v. Horton, 64 N. C., 374; S. v. Williams, 65 N. C., 505; Jenkins v. Ore Co., 65 N. C., 563; S. v. Bryan, 89 N. C., 531; S. v. Sugg, 89 N. C., 527; Guy v. Manuel, 89 N. C., 83; S. v. Rogers, 94 N. C., 860, and Chambers v. Greenwood, 68 N. C., 274, and numerous other authorities, settle the general principle that the extent to which counsel may comment upon witnesses and parties “must be left, ordinarily, to the sound discretion of the judge who tries the case, and this Court will not review his discretion, unless it is apparent that the impropriety of counsel was gross and calculated to prejudice the jury.” It was said by Reade, J., in Chambers v. Greenwood, supra, that “the mere manner of conducting the trial below is, and ought to be, so much within the discretion of the presiding judge that an alleged irregularity must be palpable, and the consequences important, to induce us to interfere. And this is held in citing and approving Devries v. Phillips, supra, where it is stated that his introduction or nonintroduction should be the subject of comment only as the introduction or nonintroduction of other witnesses might be. We think this is the necessary result of the change made by The Code, sec. 1350. It will be noted that there is a difference between The Code, *585sec. 1350, wbicb relates to civil actions, and section 1353, wbicb relates to criminal actions. In tbe latter it is expressly declared tbat a failure of tbe defendant to testify “shall not create any presumption against bim.” Tbe reason for tbe difference readily suggests itself. Tbe doctrine laid down is not in conflict witb Wilson v. White, 80 N. C., 280; Greenlee v. Greenlee, 93 N. C., 278; Kerchner v. McRae, 80 N. C., 219, or Blackwell v. McElwee, 96 N. C., 71. If tbe defendant in tbe present case bad bad any witness present wbo was cognizant of and could bave contradicted tbe damaging facts testified to, and failed to introduce sucb witness, we tbink it would bave been tbe subject of proper comment, and tbe ruling of his Honor in this respect does not entitle tbe defendant to a new trial. See, also, Yarborough v. Hughes, 139 N. C., 199; Powell v. Strickland, supra, and Stone v. Texas Co., 180 N. C., 546.

It seems tbat Goodman v. Sapp, supra, and tbe later cases approving it, has settled tbe law in this respect, notwithstanding tbe varying and not altogether consistent expressions used in some of tbe previous decisions cited above.

¥e bave examined tbe record witb care, and can find no reason to disturb tbe verdict of tbe jury or tbe judgment of tbe court below. On tbe contrary, we are of tbe opinion tbat tbe case has been properly, fairly, and correctly tried, and tbat tbe jury drew thé right conclusion from tbe evidence.

No error.