46 S.E.2d 565 | N.C. | 1948
The plaintiff, W. B. Coppersmith, and his brother, Elisha Coppersmith, Sr., during the year 1927 were engaged as partners in the business of farming, raising and selling irish potatoes. During the summer of 1927 a quantity of the potatoes so produced were sold and delivered to the defendant, it is alleged, the total purchase price amounting to $5,500, *546 upon which the defendant paid $2,000 in 1928, the balance remaining unpaid. During the intervening years before the commencement of this suit it is in evidence that Upton on several occasions promised to pay the balance due for the potatoes but never did so.
Meantime, in the year 1928, Elisha Coppersmith, Sr., died, leaving surviving him a widow, Mrs. Attie Coppersmith, and two children, Elisha Coppersmith and Mrs. Irma Hopkins, all coplaintiffs in this action.
The estate of Elisha Coppersmith, Sr., other than the interest he is alleged to have had in the item sued upon, has been fully administered and settlement made with his heirs and distributees.
Plaintiff joined with him the widow and children of Elisha Coppersmith, Sr., above named, brought this suit against Upton, a resident of Virginia, for the recovery of the balance due upon the purchase price of the potatoes and, in aid of the service and jurisdiction, attached lands of the defendant in Pasquotank County, where the suit was brought. Complaint was filed setting up above pertinent facts.
The defendant answered, admitting the purchase of a quantity of the potatoes from the plaintiff by L. J. Upton Company, a corporation of which he was president, but denying that he was in business on his own account, or that he had, personally, bought any potatoes from plaintiff; and averring that the corporation had failed and gone out of business shortly after 1928, and that its records have been destroyed.
The defendant denied that plaintiff had made any claim upon him as alleged in his complaint and pleaded that the plaintiff is estopped by reason of his laches from now asserting the claim.
Upon the trial the plaintiffs' having offered evidence in support of their contentions, rested their case. The defendant did not demur to the evidence, but moved for judgment of nonsuit upon the ground that the cause of action of the plaintiffs, if any, was in the surviving partner, W. B. Coppersmith, and he had not qualified as such under the statute and had no right to maintain this suit, he had not given the above mentioned bond. The court, being of that opinion, sustained the motion of defendant upon that ground, over the objection and exception of the plaintiffs. Thereupon the court signed the judgment of nonsuit, to which the plaintiffs objected, and excepted, and appealed, assigning error.
Succession to property by virtue of survivorship in joint tenancy was abolished by an early statute, now, with some amendment, G.S.,
To be read in connection with this section respecting settlement of the partnership affairs by the surviving partner, is G.S.,
The first question presented by the appellant is whether the giving of this bond is a condition precedent to the maintenance of an action by the surviving partner to recover debts due the partnership at the time of its dissolution by death of one of them. The affirmative view, we are aware, has been judicially adopted in several jurisdiction where, as here, survivorship, as an incident of joint tenancy, has been preserved with respect to partnership property and power given to the surviving partner to settle the affairs of the partnership, and a bond required of him in connection with that administration. Apparently the question has never been raised here. Typical expression of the view that the filing of the bond is a condition precedent to the maintenance of the action may be found inCampbell v. Bohan,
Conceding that the extraterritorial statutes may be comparable to our own, nevertheless a study of our own laws, read in pari materia, leads us to a contrary conclusion.
The purpose of the statute, G.S.,
Moreover, it seems apparent that the giving of the bond cannot be regarded as a condition precedent to the maintenance of the action, for the reason that Section
The second question presented is that of laches in the institution and maintenance of the suit. The doctrine of laches, or want of diligence in the assertion of a claim, is ordinarily regarded as an equitable defense, and it has been held that the plea is not tenable in a court of law and on a legal demand, "the court being governed by the statute of limitations"; 19 Am. Jur., p. 339, Sec. 49; U.S. v. Mack,
The judgment of nonsuit is reversed and the cause is remanded to the Superior Court of Pasquotank County for action in accordance with this opinion.
Reversed and remanded.