#### JAMES P. FOSTER to the use of H. D. CARRIER v. COLUMBUS MILLS.

Where A promised, in writing, to pay a sum certain, “ after deducting a bill of expenses that B has against A & Co.” it was Held that the proper enquiry was, whether B had a ground of charge against A & Co. for expenses and the amount thereof, and not whether B intended to make a charge against A (ffis brother) when the expenses were incurred.

This Was action of assumpsit, tried before Heatii, J., at the last Spring Term of Rutherford Superior Court.

The plaintiff declared on the following instrument of writing: “Six months after date, I promise to pay James P. Poster or bearer, four hundred and seventy-three dollars, for value received of him; after deducting the bill of expenses that Govan Mills has against Columbus Mills and James P. Poster & Co. 20th Dec. ’53.

Columbus Mills.”

The plaintiff proved the defendant’s signature and rested the case.

The defendant proved by his brother, Govan Mills, that he, *607witness, was selling slaves in the south-west in 1852; that he went to Columbus, Mississippi, and there met the defendant with some fifteen slaves, and finding them badly clad, he bought, and with his own means paid for clothing for them to the amount of eighty dollars; at the defendant’s request, witness took charge of the slaves for sale, and sold them— ome for cash and some on a credit, and handed over the money and notes to the defendant, and that in further prosecution of the business, he incurred a bill of expenses, amounting, in all, to §375, including the $80 already stated; that there was no agreement between his brother and himself about these expenditures, but that they were all necessary to the business of making a favorable sale of the slaves; that he supposed at the time, he was doing all this for the defendant against whom he kept no account, and did not intend at the the time to charge him for these expenditures and services. Witness admitted (no objection being made) that he told Carrier before he bought the note, that he had no bill of expenses to be deducted therefrom, and repeated on this examination, that he had no bill of expenses or account. He further proved that the plaintiff, Foster, was also at Columbus when he furnished the clothing ; that he went along and assisted in the sale of the slaves; that he did not then know that Foster had any interest in the slaves, but*afterwards learned from him that he had an interest in two of them. There was no other proof of a copartnership.

Upon this state of facts, the Judge charged the jury, that the plaintiff was entitled to recover the principal and interest of his claim against the defendant — less the amount of expenses which Govan Mills had against Columbus Mills and James P. Foster & Co., provided James P. Foster and the defendant constituted the firm, and there were such expenses incurred and outstanding; that if they believed there was such a firm, and these expenses were made by Govan Mills, and were outstanding at the making of the instrument, the defendant was entitled to a deduction to that amount, and it *608was for them to ascertain such amount. The plaintiff excepted.

Yerdict for the plaintiff for the note and interest, deducting $375 on account of the expenses therein referred to. Judgment and appeal by the plaintiff.

Shipp and Merrvrricm, for the plaintiff.

Gaither, Dielsson and Avery, for the defendant.

Manly, J.

The instrument upon which this action has been brought was rightly construed, as we think, in the Court below.

Some such relation as copartners or part-owners of a portion of the negroes at least, subsisted between the parties. But to what property it applied, or in what proportions they were respectively interested, it is not material, as it seems to us, to enquire. The terms of the note are, to pay the sum mentioned in its face, “ after deducting the bill of expenses that Go van Mills has against Columbus Mills and James P. Poster & Co.,” and the proper construction of these terms is, that they amount only to a promise to pay the balance after deducting such expenses as may have been incurred by Go-van Mills for Columbus Mills and James P. Poster & Co.

We do n»t think it pertinent to the true issue between the parties to enquire, whether a bill or charge of these expenses was made against any one. The expenses were incurred and the amount is susceptible of proof, and there is no assumpsit to pay a cent beyond the balance.

Upon the supposition that Govan Mills intended to make a present to his brother, as he intended no such thing to the plaintiff, the only way in which his purpose can be carried into, effect is by deducting the sum of expenses from the note; otherwise the expenditure would enure to the benefit of Poster as well as Mills. But all this we think immaterial. The parties must stand or fall by the contract, and that is, as we have already said, to pay the balance after deducting expenses.

*609What occurred between Govan Mills and Carrier has, as we concceive, no bearing upon the issue.

.The substance .of the charge below was in conformity with this view of the case. There is no error.

Per Curiam,

. Judgment affirmed.