#### WARREN G. MYERS v. W. R. FOREMAN.

(Filed 17 February, 1932.)

1. Appeal and Error H b — Upon death of appellant after docketing of ai>peal his executor is allowed to he made a party under Rule 37.

In this case the appellant died after the case was docketed and the motion of his executor that it be made a party was allowed under Rules of Practice in the Supreme Court, No. 37, the motion being made before the case was called for hearing in its regular order.

2. Trial E c — In this case a new trial is awarded for the failure of the instructions to state material evidence in the case.

Where the charge of the trial court fails to state the evidence of a party relative to a material point and which directly bears on the amount recoverable, a new trial will be awarded when prejudice is shown for the failure of the charge to comply with'the provisions of C. S., 564, requiring that the trial court shall state in a plain and correct manner the evidence given in the case.

Appeal by defendant from *Oglesby, J.,*at June Special Term, 1931, of MecicleNbueg.

New trial

Plaintiff and defendant were engaged as partners, under the firm name of Warren G. Myers and Company, at Charlotte, N. C., in the business of selling machinery, supplies and equipment, from about 1 September, *2471923, to 1 January, 1930. The partnership was dissolved on 1 January, 1930. This action was begun on 3 March, 1930. Both plaintiff and defendant upon the facts alleged in their pleadings pray for an accounting between them as partners, each contending that upon a proper accounting in accordance with the terms of their partnership agreement, the other is indebted to him.

The action was first tried by a referee under an order made upon the motion of the defendant. The plaintiff excepted to this order, and thereby reserved his constitutional right to a trial by jury of the issues of fact arising upon the pleadings. G. S., 573. The referee heard the evidence offered at the trial before him by both the plaintiff and the defendant, and thereafter duly filed his report, setting out therein both his findings of fact and his conclusions of law, as required by statute, O. S., 579..

The referee found that the net profits of the partnership entered into by plaintiff and defendant in August, 1923, and dissolved on 1 January, 1930, amounted to the sum of $8,903.60, and that in accordance with the terms of the partnership agreement, the account of each partner should.be credited with one-half of this sum, to wit: $4,451.80. He also found that the plaintiff had received from the partnership the sum of $10,152, in money and merchandise, and was therefore indebted to the partnership in the sum of $5,700.20. He further found that the defendant from time to time during the existence of the partnership had loaned to it the sum of $9,360.19, in money, and that since its dissolution on 1 January, 1930, the defendant had paid a note for $1,500, which had been executed by the partnership. The aggregate of these sums is $10,860.19. The referee found that the defendant had received from the partnership during its existence the sum of $9,411.49, and that therefore the partnership is indebted to the defendant in the sum of $1,448.70.'

Hpon these findings of fact, the referee concluded that plaintiff is indebted to defendant in the sum of $3,574.45, with interest. On the report of the referee, the defendant is entitled to judgment that he recover of the plaintiff the sum of $3,574.45, with interest and costs.

Plaintiff duly excepted to the findings of fact and conclusions of law-made by the referee and set out in his report. With his exceptions to the findings of fact made by the referee, plaintiff tendered issues upon which he demanded a trial by jury. The action was thereupon tried by a jury.

The issues submitted to the jury were answered as follows:

“1. Hid the plaintiff and the defendant enter into a partnership agreement as alleged in the complaint? Answer: Yes.

2. What was the amount of the net profits from the business of said partnership? Answer: $17,000.70.

*2483. In wbat amount, if any, is defendant indebted to plaintiff as alleged in tbe complaint? Answer: $8,500.35.

4. In wbat amount, if any, is plaintiff indebted to defendant as alleged in tbe answer and cross-complaint? Answer: $2,618.”

From judgment on tbe verdict of tbe jury that plaintiff recover of tbe defendant tbe sum of $5,882.35, witb interest and costs, tbe defendant appealed to tbe Supreme Court.

*H. L. Taylor and T. L. Kirkpatrick for plaintiff.*

*Shore & Townsend for defendant.*

CONNOR, J.

After tbis appeal was docketed in tbis Court, and before it was called for bearing in its regular order, tbe defendant, *W.*R. Foreman, died. His executor, American Trust Company, voluntarily appeared in tbis Court by its counsel and moved that it be made a party defendant in tbe action, in its representative capacity. Tbe motion was allowed in accordance witb tbe Rules of Practice in tbis Court. Rule 37.

Tbe testimony of tbe witnesses who testified at tbe trial before tbe referee was reduced to writing and filed in tbe record, as required by statute. C. S., 577. Tbis testimony, together witb tbe exhibits offered by both tbe plaintiff and tbe defendant at tbe trial before tbe referee, was tbe only evidence submitted to tbe jury, in accordance witb tbe provisions of tbe statute. C. S., 573. Tbe issues appearing in tbe record were answered by tbe jury from tbis evidence, under tbe charge of tbe court. Tbe referee found that tbe net profits of tbe partnership, from its commencement in August, 1923, to its dissolution on 1 January, 1930, were $8,903.60, while tbe jury found from tbe same evidence that tbe net profits of tbe partnership during its existence were $17,000.70. On an accounting upon tbe findings by tbe referee tbe plaintiff is indebted to tbe defendant in tbe sum of $3,574.45, while on an accounting upon tbe verdict of tbe jury tbe defendant is indebted to tbe plaintiff in tbe sum of $5,882.35. Tbis wide discrepancy is due in part, we think, to tbe failure of tbe judge in bis charge to tbe jury to comply witb tbe provisions of O. S., 564. An examination of tbe charge set out in tbe transcript filed in tbis Court shows that it was not in compliance witb tbe provisions of tbe statute, in that tbe judge failed to state in a plain and correct manner tbe evidence given in tbe case, and failed to declare and explain tbe law arising on tbe evidence. No reference is made in tbe charge to tbe testimony of tbe plaintiff that be bad received from tbe partnership tbe sum of $4,400, for bis personal expenses and not for expenses incurred by him in prosecuting tbe business of tbe partnership. Conceding that tbe terms of tbe partnership agreement were as contended *249by the plaintiff and as found by the jury, this sum at least should have been deducted from plaintiff’s share of the net profits. The defendant is entitled to a new trial for the error of the court in failing to comply in its charge to the jury with the provisions of 0. S., 564. It is so ordered.

New trial.