Eller v. . Church , 121 N.C. 269 ( 1897 )

This was a civil action, begun before a justice of the peace and tried on appeal in Superior Court, to recover on the following receipt or contract: "Received of B. F. Eller, administrator d. b. n. of Peter Eller, deceased, the sum of $5.93, $553.80, being payments in full of the principal, interest and costs in the following judgments on the Superior Court docket of Wilkes County, which have been assigned to me (specifying the judgments), the same having been assigned to me; and should it turn out that I have received more than is due me in law, or that there are any prior liens having precedence over the above judgments, then I am to refund to the said B. F. Eller, administrator, the amount overpaid. Given under my hand and seal, this 22 August, 1881. A. M. Church (Seal)."

The plaintiff introduced a record of the Superior Court, showing (271) a judgment obtained in 1894 against him, as such administrator, by one J. S. Huffman. This judgment was rendered on a former judgment obtained in a justice's court in October, 1878. To the second action the plaintiff practically made no defense, and allowed judgment to be taken against him for the full amount. In the suit at bar the defendant pleaded the statute of limitations. The case on appeal states that "His Honor instructed the jury that, from the evidence introduced, the plaintiff was entitled to recover, and the findings of the jury were in accordance with the instructions of his Honor." While this is not very explicit, we presume that his Honor charged the jury that, if they believed the evidence, the plaintiff was entitled to recover, as a matter of law, there being no conflict of testimony. Under no circumstances could he havedirected a verdict in favor of the plaintiff, upon whom rested the burden of proof. S. v. Shule, 32 N.C. 153; Spruill v. Ins. Co., 120 N.C. 141. But assuming that the charge was free from this objection, we think there was error in his Honor's instruction as to his conclusion of law. The causalitis in this action is the covenant of the defendant contained in the receipt of 22 August, 1881, above set forth, and the statute began to run thereon as soon as it "turned out" that the defendant had received more than was due to him in law, or that there were prior liens. The only construction we can give to the words "turn out" is that they mean when those facts, if existing, were discovered by the plaintiff, or might have been discovered with reasonable diligence. The judgment now set up by the plaintiff was based on a former judgment, rendered in October, 1878, before the receipt of 22 August, 1881, was given. Therefore, the plaintiff could at once have demanded of the defendant the pro rata contribution he is now seeking to recover.

It is unnecessary to cite authority to show that the statute begins to run when the plaintiff is at liberty to sue, being then under no disability. More than ten years having elapsed before the bringing (272) of this suit since the receipt was given, and after the plaintiff could have ascertained with reasonable diligence the existence of the outstanding debt now set up, his action is barred by the statute of limitations.

The fact that he voluntarily permitted a judgment to be taken against him in 1894 on a justice's judgment, so clearly barred, does not alter or renew the liability of the defendant, who was a judgment creditor and neither an heir nor devisee.

Error. Cited: Cable v. R. R., 122 N.C. 898; Cox v. R. R., 123 N.C. 607;Gates v. Max, 125 N.C. 143; Mfg. Co. v. R. R., 128 N.C. 285; Mfg. Co.v. Bank, 130 N.C. 609; Edwards v. Lemmons, 136 N.C. 331; Dunn v. Dunn,137 N.C. 535.