#### HENDERSON G. WEAVER *vs.*JAMES B. UPTON.

Where two partners entered into a covenant that one of them should receive a salary for managing the business; *Held,*that this salary must *be*paid out of the partnership funds.

Appeal from the Superior Court of Law of Burke County, at tbe Spring Term 1846, his-Honor Judge Peak-son presiding.

This was an action of covenantthe breach assigned was the non-payment of $450.

The execution of the covenant was not denied and *it*was read in evidence. The *defendant’s counsel moved*to-non-suit the plaintiff, upon the ground that the covenant amounted to an article of copartnership, and that the $450-, for the non-payment of which, the covenant was alleged to have been broken, was to be allowed out of the funds of the copartnership, and did not constitute such a demand as would support this action. The question was reserved. It was proven that the plaintiff had ceased to act as manager, some short time before the end of the year, by mutual consent; in consequence of which the jury, in assessing the damages upon the breach assigned, made a deduction from the $450- which was the amount of damages claimed. There was a verdict for the plaintiff subject to be set aside and a non-suit to be entered upon the question reserved.

The Court being of opinion with the defendant upon the question reserved, the verdict was set aside and a non-suit entered, from which the plaintiff appealed.

The following is the covenant referred to :■

« STATE OF NORTH *CAROLINA*— Burke *County*— December 27th, 1841. James B. Upton and H. G. Weaver hereby enter into an article of agreement for the next year (1842.) James *B.*Upton, of the first part, hao the privilege of working twenty hands on “ the McKenzie mine,” paying. *461the fifth part.of the gold that is made, for toll. H. G. Weaver, of the second part, has the privilege of putting in four hands at valuation, bearing a propor-tionable part of the expense attached thereto; the said Upton, of the first part, bargains and agrees to give me the said Weaver of the second part four hundred and fifty dollars to manage the business, which I agree to manage according to the best of my judgment, making true returns of all the gold made by me ; the mine is to be worked 'according to the lease. We make our Beals,” &c. Signed aad sealed by James B. Upton and H. G. Weaver.

*Gaither,*for tbe plaintiff.

*N. W, Woodjia,*for tbe defendant.

Daniel, J.

Weaver and Upton, on the 16th of December, 1840, leased of one McKenzie a tract of land for three years to mine for gold; the rent was to be one sixth part of the gold, that should be obtained by the lessees. On the 27th of December, 1841, the lessees entered into the agreement under their seals, mentioned in the case. Upton was to work twenty hands, and Weaver four hands, “ bearing a proportionable part of the expense attached thereto. The said Upton, of the-first part, bargains and agrees to give me, the said Weaver, of the second part, four hundred and fifty dollars to manage the business, which I agree to manage according to the best of my judgment.” It seems to us, that the agreement was one of partnership ; and the law being well settled, that the acting and business partner is never entitled to claim pay of the firm for his services, unless he stipulates for it in the articles of copartnership or otherwise *4*the parties therefore agreed, that Weaver should manage the business, and Upton, the other partner, agreed to give him $450 “to manage the business.” Weaver was to bear his proportion of the expense of managing and working the mine. The salary of the superintendent was a part of the expense of the firm. And the -firm ought, according to the true construction of the articles, to bear this expense in proportion to the number of hands each partner worked in the mine. The words “ The said Upton bar*462gains and agrees to give me the said Weaver $450 to manage the business,” only denoted the assent of Upton, that Weaver, although a partner, should be paid for his services $450. The parties were stipulating concerning the partnership business, and the terms on which it was to be carried on; and among others, that Upton bargained and agreed to let Weaver have $450 for his services that year. It seems to us, that it would be against j ustice and right, to construe the covenant to be an agreement by Upton, that he would pay that sum out of his own pocket. We think that it was an item in the expense account of the firm and that the firm should pay it.

Pnii Curiam. Judgment affirmed.