Hutchinson v. Hutchinson , 49 N.C. App. 687 ( 1980 )

WELLS, Judge.

We first note that the defenses asserted by defendant are of the nature which are properly asserted in an answer. See G.S. 1A-1, Rule 12. We next note that although the trial court apparently treated defendant's motion as a motion to dismiss pursuant to G.S. 1A-1, Rule 12(b)(6), the judgment indicates that the trial court considered, in addition to plaintiffs complaint and defendant’s motion, a deposition and interrogatories and answers to interrogatories. Under these circumstances, it seems apparent that the trial court treated defendant’s motion as a motion for summary judgment. Kessing v. Mortgage Corp., 278 N.C. 523, 533, 180 S.E.2d 823, 829 (1971).

The judgment, in pertinent part, reads as follows:

1. Defendant has sufficiently pled the three year Statute of Limitations;

2. The Complaint and the contract attached thereto and sued upon show that Plaintiff’s right to institute an action for compensation under the contract for the calendar year 1975 arose on January 1,1976, and right to bring suit was barred on January 2,1979, in the absence of such action by the Defendant as would estop him from pleading the Statute of Limitations;

NOW, THEREFORE, IT IS ORDERED, ADJUDGED AND DECREED that this action is, and the same is hereby, involuntarily dismissed, with prejudice.

Plaintiff argues that G.S. 1-47(2), the ten year statute of limitations, applies to this action, and that therefore the judgment against him was erroneous and improvidently entered. Defendant concedes that if the three year statute, G.S. 1-52(1) does not apply, the judgment is in error.

The judgment of the trial court was in error. First, we hold that the contract between plaintiff and defendant is an “instrument” as that term is used in G.S. 1-47(2). See Rose v. Materials Co., 282 N.C. 643, 194 S.E.2d 521 (1973). Second, we hold that there is no ambiguity in the wording of the contract as to the intent of the parties that it be under their respective seals, Oil Corp. v. Wolfe, 297 N.C. 36, 252 S.E. 2d 809 (1979), and that plaintiff’s right to bring his action is governed by the provisions of G.S. 1-47(2), not G.S. 1-52(1). It is unnecessary for us to reach or determine plaintiffs other assignments of error.

The judgment of the trial court is

Reversed.

Judges VAUGHN and MARTIN (Robert) concur.