#### PIEDMONT SUPPLY COMPANY, INC., v. FRED ROZZELL, NOLEN ROZZELL AND BERLEY H. CROUCH, Doing Business Under the Trade Name of CATAWBA PUMP COMPANY.

(Filed 21 May, 1952.)

1. Partnership § 6b—

Where there is evidence that a firm of the same name did business in two separate cities and that defendant partner appeared to be interested in the business at both places, his motion to nonsuit in an action on an account due by the firm at either place is properly denied.

2. Same—

Where defendant partner alleges and offers evidence that there were two separate firms doing business in separate cities and that he was a partner in only one of them, it is reversible error for the court to charge that he admitted partnership in the firm and that the same concern was doing-business in both cities.

3. Appeal and Error § 6c (6) —

While ordinarily a misstatement of a fact in evidence must be called to the trial court’s attention in apt time, where the misstatement is of material fact not shown in evidence it constitutes reversible error.

Appeal by defendant Berley H. Crouch from *Phillips, J.,*and a jury, September 1951 Term, Catawba.

Civil action to recover upon two accounts.

The plaintiff brought this action against the defendants, Fred Rozzell, Nolen Rozzell and Berley BE. Crouch, alleging that said defendants were partners trading as Catawba Pump Company. To the complaint was attached two accounts marked exhibit “A,” one in the name of Catawba Pump Company, Hickory, N. C., which showed a balance due of $2,100.56, and the other in the name of Catawba Pump Company, Newton, N. C., which showed a balance due of $405.84. The plaintiff sought to recover of all the defendants the balance due upon both of said accounts. Only the defendant Berley H. Crouch filed an answer. His further answer and defense admits, “That there have been, for more than a year, two firms engaged in the plumbing business in Catawba County known as ‘Catawba Pump Company,’ one being situated in the city of Newton and one being situated in the city of Hickory; that the two said firms are in every way completely separate from each other, have different owners, are and always have been operated separately, and are in nowise connected with each other.” Appellant in his further answer and defense also concedes “that he is a partner in the firm of Catawba Pump Company of Newton, and that this said firm does owe the plaintiff some money, . . .” He denies all other material allegations of the complaint.

As the first item of evidence, the plaintiff offered as an admission from appellant’s answer the following: “That there have been, for more than *632a year, two firms engaged in business in Catawba County, known as 'Catawba Pump Company/ one in Hickory, one in Newton/’ and “Tbat tbe defendant admits tbat be is a partner in tbe Catawba Pump Company of Newton, and tbat tbis said firm does owe to tbe plaintiff some money.”

Plaintiff offered other evidence tending to establish tbe relationship of appellant as a partner in tbe Catawba Pump Company and tbat tbe partnership did business both in Newton and in Hickory. Plaintiff concluded its evidence with tbe introduction of an itemized statement showing a balance of $2,100.56 on tbe account charged to Catawba Pump Company, Hickory, N. C., and a balance of $405.84 on tbe account charged to tbe Catawba Pump Company, Newton, N. C.

Appellant testified tbat be was not a partner in tbe firm known as Catawba Pump Company at Hickory. He asserted tbat bis only connection with tbe Hickory firm was to work as a plumber on some jobs at $1.50 an hour, plus 10% of tbe profit after payment of material used on each job. He admitted in bis testimony tbat be bad purchased a one-fourth interest in tbe Newton Pump Company and in payment therefor executed bis note for $800.00, but tbat be bad nothing to do with tbe change of tbe name to Catawba Pump Company.

At tbe conclusion of tbe plaintiff’s evidence and again at tbe conclusion of all tbe evidence, appellant demurred to tbe evidence and moved for judgment as of nonsuit. To tbe action of tbe court in overruling these motions, tbe defendant excepted.

Appellant excepts and assigns as error certain portions of tbe charge, among which are tbe following: “Now, tbe defendant Berley H. Crouch contends here tbat be withdrew from tbe partnership in October 1949. He says be was a member of tbe partnership in Newton under tbe same name, doing business in Newton, and tbat tbe same concern was doing business in Hickory, and tbat be withdrew from tbe partnership in October 1949.” . . . “Tbe court instructs you tbat if you believe tbe evidence offered by tbe plaintiff and tbe defendant on tbe first issue, and find tbe evidence to be true on tbe issue which is — "Was tbe defendant Berley H. Crouch a member of tbe partnership and doing business as tbe Catawba Pump Company? — then tbe court instructs you tbat you will answer issue #1 yes.” . . . “Tbe defendant Berley H. Crouch admits tbat be bought a one-fourth interest and paid $800.00 for it and was a member of tbe firm. Whether tbe firm bad one or more places of business is immaterial because tbe defendant bad tbe right to show tbat be was a partner only in tbe Newton branch, only one-fourth interest in tbe Newton branch and only responsible for tbat amount, and then tbe public would have known if they bad bad notice tbat bis was only a one-fourth interest in tbe Newton branch and bad nothing to do with tbe Hickory branch, otherwise tbe public bad tbe right to deal with them as one concern in two *633branches, each being responsible for both places. If you believe the evidence in this case as testified to by the witnesses you will answer the first issue yes.” y

From an adverse verdict and judgment, the defendant Berley H. Crouch excepted and appealed, assigning errors.

*Willis & Geitner for plaintiff, appellee.*

*F. Murray Tate, Jr., and Theodore F. Cummings for defendant, appellant.*

YalbNtiNb, J.

The appellant assigns as errors, (1) the action of the trial judge in overruling his demurrer and denying his motion for judgment as of nonsuit; and (2) certain portions of the charge on the ground (a) that the trial judge included in his charge statements of fact neither admitted nor shown by the evidence, and (b) that the charge amounted to a peremptory instruction for the plaintiff on the first issue, although the evidence of plaintiff and defendant was in sharp conflict.

Under our decisions, there was sufficient evidence to repel the motion for judgment as in case of nonsuit and to require the submission of the case to the jury upon appropriate issues and a proper charge. *Graham v. Gas. Co.,*231 N.C. 680, 58 S.E. 2d 757; *Donlop v. Snyder,*234 N.C. 627; *Powell v. Lloyd,*234 N.C. 481.

There is, however, reversible error in the charge. When his Honor in referring to appellant’s testimony stated to the jury, “He says he was a member of the partnership in Newton under the same name, doing business in Newton, and that the same concern was doing business in Hickory,” he was in error. Nowhere in the evidence does it appear that the appellant ever admitted that he was a partner in the Catawba Pump Company at Hickory. His evidence all tends to show that the two businesses were separate firms, that he was a partner owning a one-fourth interest in the Catawba Pump Company at Newton, but not a partner in the firm of the same name at Hickory. Indeed, the first item of plaintiff’s evidence asserts that there were two partnerships by the same name, one located in Hickory and the other in Newton.

The applicable rule of law is, while an inaccurate statement of facts contained in the evidence should be called to the attention of the court in order that the error might be corrected, a statement of a material fact not shown in the evidence constitutes reversible error. *Steelman v. Benfield,*228 N.C. 651, 46 S.E. 2d 829; *S. v. Wyont,*218 N.C. 505, 11 S.E. 2d 473; *S. v. Love,*187 N.C. 32, 121 S.E. 20; *Smith v. Hosiery Mill,*212 N.C. 661, 194 S.E. 83; *Curlee v. Scales,*223 N.C. 788, 28 S.E. 2d 576.

There was some evidence that the appellant was a partner in the Catawba Pump Company and that this firm did business both in Hickory *634and in Newton, but tbis was denied by tbe appellant and upon sucb conflicting evidence a peremptory instruction in favor of tbe plaintiff was erroneous. *Boutten v. R. R.,*128 N.C. 337, 38 S.E. 920; R. *R. v. Lumber Co.,*185 N.C. 227, 117 S.E. 50; *Porter v. Construction Co.,*195 N.C. 328, 142 S.E. 27; *Kearney v. Thomas,*225 N.C. 156, 33 S.E. 2d 871; *Perry v. Trust Co.,*226 N.C. 667, 40 S.E. 2d 116; *Morris v. Tate,*230 N.C. 29, 51 S.E. 2d 892; *Stallings v. Insurance Co.,*231 N.C. 732, 58 S.E. 2d 716.

For tbe errors pointed out, there must be a new trial, and it is so ordered.

New trial.