HK CORPORATION v. Chance

212 S.E.2d 34 (1975)

25 N.C. App. 61

H-K CORPORATION v. Charles W. CHANCE, Sr.

No. 7415SC950.

Court of Appeals of North Carolina.

March 5, 1975.

*36 Dalton & Long by W. R. Dalton, Jr., Burlington, for plaintiff.

Hemric & Hemric by H. Clay Hemric, Jr., Burlington, for defendant.

CLARK, Judge.

Whether the action of the trial court in granting the defendant's motion for directed verdict is proper depends primarily upon the admissibility of the evidence offered by the plaintiff and excluded by the trial court.

The plaintiff sought to introduce into evidence the two credit applications (Exhibits 1 and 2) made and signed by defendant's son showing the defendant as a partner in the retail clothing business; but the son testified that the defendant was not a partner, that this was his way of indicating his father's financial backing for the initial capital. The son was not a party to the action. The reports were properly excluded.

The extrajudicial declarations of an alleged partner cannot be used (except as against himself) to prove the existence of the partnership. 2 Stansbury's N.C. Evidence, § 170 (Brandis rev. 1973). Such a writing may be admissible if made in the course of business, but only after it is shown prima facie where there was a partnership. Here all oral testimony of both defendant and his son shows a denial of partnership status.

Plaintiff also sought to introduce into evidence the two Dun and Bradstreet reports (Exhibits 3 and 4), purportedly based on representations of defendant to an investigator for the firm. The alleged investigator was not a witness and defendant denied making such representations. The reports were properly excluded since they were not authenticated in any manner. See 2 Stansbury's, N.C. Evidence, § 195 (Brandis rev. 1973).

The exclusion of this evidence leaves no support to plaintiff's contention of a partnership in fact. The evidence is clear that the son left the Chance Construction Company partnership, which resulted in the dissolution under G.S. § 59-59, and that C.W.C. Enterprises was not a successor partnership. The evidence that the son was authorized to write checks on the C.W.C. Enterprises account does not constitute, in the absence of other fundamental requisites, a partnership in fact.

Nor does the evidence support the plaintiff's contention that there was a partnership by estoppel. This State has adopted *37 the Uniform Partnership Act, Article 2, Chapter 59, General Statutes of North Carolina. G.S. § 59-46, entitled "Partner By Estoppel", provides in substance that where a person represents himself as a partner (or consents to another so representing him) he is liable to a person to whom the representation is made, who, in reliance thereon, gives credit to the actual or ostensible partnership; if the representation is made in a public manner, he is liable regardless of whether the representation was known to the person extending credit.

We do not find in the evidence any representations made by the defendant personally to third-party creditors, nor do we find from the evidence any expression of consent on the part of the defendant to his son that the son could represent him to be a partner; and since the Dun and Bradstreet reports were properly excluded from evidence, there is no evidentiary support of the plaintiff's contention that representations were made in a public manner. Under these circumstances, the evidence was not sufficient to warrant submitting the case to the jury upon the theory of partnership by estoppel.

The plaintiff's remaining assignments of error relate to the rulings of the court excluding testimony, and we find that such testimony, if admitted, would not be sufficient to justify submitting the case to the jury and that such assignments of error are without merit.

Affirmed.

BROCK, C. J., and BRITT, J., concur.