197 S.E. 168 | N.C. | 1938
The plaintiff sued to recover an amount claimed to be due him as the value of lumber manufactured from logs cut upon his premises by defendant, under a contract whereby plaintiff was to receive one-half of the lumber cut. He alleged that the defendant wrongfully disposed of the lumber and at a later date paid him $10.00 on account.
The defendant denied the contract as stated, and alleged that he cut the timber under an agreement to pay $2.00 a thousand feet for it, which he paid in full. He also pleaded the statute of limitations.
Both parties introduced evidence in support of these contentions.
From the judgment upon a verdict in favor of the plaintiff, the defendant appealed. *633 The defendant here insists that the plaintiff has sued for the conversion of certain lumber belonging to him and, defendant having interposed the plea of the statute of limitations, a payment to the plaintiff subsequent to the conversion would not have the effect of repelling the bar of the statute, since, as defendant contends, the action is in tort and not ex contractu.
It is well established, however, that "when a man's property has been wrongfully converted, . . . the owner is allowed to waive the tort and sue on contract." Sanders v. Ragan,
It is doubtful whether the plaintiff's cause of action could be properly grounded on conversion, since there had been no division of the lumber, and the part to which he might have had the right to immediate possession was not identified. Rooks v. Moore,
The instructions given to the jury, as to the effect of partial payment in repelling the statute of limitations, were free from error in this view of the case, and appropriate both to the pleadings and the evidence.
The defendant objected to questions propounded to him on cross-examination relating to his purpose in pleading the statute of limitations.
The plea of the statute of limitations is neither criminal nor immoral, and where a witness has interposed such a plea in another case, this cannot be used as evidence to impeach him. Cecil v. Henderson,
The objections to portions of the testimony of Leo Carr are, we think, not tenable. The witness denied any independent recollection of the matters upon which he was called to testify. As the tally sheets identified by him were not evidence of themselves, he could not be permitted to read them and relay their contents to the jury. We think that the jury was not misled by the remarks of the judge excluding this evidence.
We have examined the other exceptions in the record and are unable to find a satisfactory reason for disturbing the result in this case. We find
No error. *634