The news & observer. [volume] (Raleigh, N.C.) 1894-current, 1905-11-16


he owned no interest in the property
involved was properly rejected.
r.. ID. EubankS vs.. AlSpaugh ct al. APP
peilants: from IredeIl: Affirmed.
In an action by a. superintendent of
a cotton mill against his employers
for damages for his wrongful dis
charge before the termination of the
contract period of employment, the
defendant denied that the plaintiff
was wrongfully discharged and alleged
by way of further defense and as a
counter claim TO the demand for
damages, that the plaintiff was en-
tircly incompetent to perform the
duties he had undertaken and that
they had right to discharge him on
that account. On the trial the judge
below charged, as requested by the
plaintiff that 1.-The burden is upon the
defendants to show that the plaintiff
was not capable and efficient in the
performance Of his duties under the
contract, and if the jury should find
by a greater weight of the evidence
that the plaintiff was not an expert
in the departments of carding and
spinning, yet if the jury should
further find by a greater weight of
the evidence that the defendants had
notice of this fact, at or before the
time they employed the plaintiff, that
the plaintiff was not an expert carder
and spinner, if such was the fact, IT
would not excuse the defendants from
dischargng the plaintiff, and if the
jury find that the plaintiff was dis
charged and for this cause this would
be a breach of the contract on the
part of the defendants" Defendants
excepted to such instruction because
Cd the burden was Wrongfully put
on the defendants: CD because there
was no evidence that the defendants
knew of the plaintiffs incOmpetency
before the contract Of employment.
Held. /. The contract Of en-
ployment and the discharge by the
defendants being established, the law
places the burden of Justification on
the defendants and the charge Of the
court on this point was correct.
=. While there was no evidence set
out in the record that defendants had
notice Of the lack of competency of
plaintiff as an expert carder and spin
ner, there was testimony that the de-
PENDANTS only enquired as to plain
lifts capacity as a weaver, the mis-
take in the charge on this point is not
reversible error, for the reason that
the mistake is not on any essential
Or controlling feature of the defense.
There was no contract that the plain
tiff should be so expert in carding and
spinning and no allegation or evidence
Of such requirement, but only that
the plaintiff was employed TO super
intend that and other departments
of the mill.
There was evidence that it was not
necessary that a superintendent should
be expert in all departments Of mill
and that while il was better for him
to be such expert many mills are
-tIna fr1l NNh "a
endant is not such expert In
mother part of the charge, in re-
iponSe to request of defendants, the
3ourt gave defendants the full benefit
# their defense, in inStructlng the
jury that eff the jury shall find from
the greater weight of the evidence
hat il was necessary for a Superln-
tendent of defendants mill, to sue
cessfully operate the same, to under
stand carding, spinning and weaving
in order to intelligently direct those
under him in those departments, and
should further find from the evidence
hat the plaintiff did not sufficiently
understand carding and spinning 20 en-
able him to direct those i'll charge of
their departments and that he did not
inteligently direct and instruct those
placed in charge of the carding and
spinning on account of lack of skill
una kIlONleuSt Oh lllS part, tlitIl i
charge you that this was a violation OF
the contract on the part of the plain
tiff and the defendants had the right
20 discharge him from their employ
ment. and the plaintiff is entitled to
recover nothing in his action
il. ,. Shepherd vs.. jerry Newton. from
FOrsythe. New trial.
Plaintiff sued defends II for moneys
alleged to be due MIN as landlord for
the rent of a house. There was evil
dence tending to sh NV that defendant
mad paid a considerable sum by way
Of rent and that he had paid some
thing thereon and promised 10 pay
balance after leaving the house. De-
PENDANT testified that his 1authar had
gone into the house tn rough exchange
If houses with another reuter-. That he
never rented the house iToru plaintiff
and such rent as he had paid he p2id
Tor his mother. The court directed
non-suit for plaintiff, holding that the
facts put the case within Code section
1862, the Statute If Fra:tIS.
Held: When a defendant h:.s made
a contract a promise, otherwise bird
ing. and seeks protection II he
statute, it must be shown that th4
lebt is that of third person. If the
debt claimed is an original obligation
of the defendant, or il the creditor,
IN accepting the oDliga ton Or promise
of the defendant and II. consideration
thereof has released a third person
who was the ori-;l lal debtor, the
statute does not apply.
c. w. Bunker, Administrator, vs. Ade-
laide Bunker 1t III, appellants. Re
VefSed.
Action for construction Of viii
and accounting brought III 1886. There
we're several references AMI re-refer~
ances for accounting, etc, and i'll 1900
Judgment was entered which WAS paid
by the defendant. The case on appeal
arises on a motion of plaintiff asking
that the case be enStaIc1 tor fur Ii
er proceedings and al order by The
court for another reference to ;>sctr-
tain rents and profits and to provide
for the payment of certain costs aris-
ing in litigation about the and, Whit II
nad been allowed by former referees
but not allowed on the oCcasiCn cf
judgment to which plaintiffs at time
excepted but did not appeal.
Held: Where a judgment Is rep-
dered which decides ease upon its
merits without reservation Tor oIhcr
or further directions of :he court it
S final and cannot be re-ot ened for
any cause.
(. II. Clark, Appellant. VS.. City Of