95 S.E. 904 | N.C. | 1918
This is an action brought by O. H. Lucas, receiver of the Keystone Farm Machine Company, to recover the value of certain plows or cultivators consigned to the defendant in 1907 or 1908, which were guaranteed to do good satisfactory work.
The action was commenced 5 July 1913.
The defendant does not allege a counterclaim for breach of guaranty, but did offer evidence tending to prove that the plows or cultivators were unsatisfactory and that he notified the machine company in 1908 that he held them subject to its order.
The jury returned the following verdict:
1. Were the cultivators in question shipped by the Keystone Farm and Machine Company to the defendant upon a consignment contract? Answer: "Yes."
2. Is plaintiff's cause of action barred by the Statute of Limitations? Answer: "No."
3. What amount, if anything, is the plaintiff entitled to recover of the defendant? Answer: "$100."
The first issue was answered by consent of parties, and the controversy was as to the Statute of Limitations.
The defendant excepted to the parts of the charge on the Statute of Limitations. Judgment was rendered in favor of the plaintiff on the verdict, and defendant appealed. When it was admitted that the defendant received the property of the machine company on consignment in 1907 or 1908, and evidence was offered tending to prove that he refused, after demand, to account for the same, the plaintiff made out a prima facie case and his Honor could not do otherwise than deny the motion to nonsuit.
The finding upon the plea of the Statute of Limitations depended upon the time when the relationship between the parties became adverse, the plaintiff contending it was in August, 1910, which was within three years of the commencement of the action, and the (720) defendant in 1908, more than three years, and this question was submitted to the jury under instructions free from error.
No error.
