Lucas v. Hardin, 175 N.C. 718 (1918)

May 16, 1918 · Supreme Court of North Carolina

175 N.C. 718

O. H. LUCAS, Receiver of THE KEYSTONE MEDICINE COMPANY, v. J. L. HARDIN.

(Filed 16 May, 1918.)

1. Vendor and Purchaser — Consignment—Evidence—Prima Facie Case— Trials.

Evidence that the purchaser of goods on consignment refused an accounting after demand made by the vendor, makes out a prima facie case in the latter’s action to recover the price, the defense being put upon the ground that the goods were unsatisfactory and that plaintiff had been notified they were held subject to his order.

2. Limitation of Actions — Vendor and Purchaser — Consignment.

The Statute of Limitations began to run when the relationship between the parties became adverse, in an action by the vendor to recover for goods sold and delivered on consignment.

Appeal by defendant from Cline, J., at tbe July Term, 1917, of RANDOLPH.

Tbis is an action brought by O. H. Lucas, receiver of tbe Keystone Farm Machine Company, to recover tbe value of certain plows or cultivators consigned to tbe defendant in 1907 or 1908, which were guaranteed to do good satisfactory work.

Tbe action was commenced 5 July, 1913.

Tbe defendant does not allege a counterclaim for breach of guaranty, but did offer evidence tending to prove that tbe plows or cultivators were unsatisfactory and that be notified tbe machine company in 1908 that be held them subject to its order.

Tbe plaintiff offered evidence to tbe contrary and also that no demand was made on defendant until 15 August, 1910.

Tbe jury returned tbe following verdict:

1. Were tbe cultivators in question shipped by tbe Keystone Farm and Machine Company to tbe defendant upon a consignment contract? Answer: “Yes.”

2. Is plaintiff's cause of action barred by tbe Statute of Limitations ? Answer: “No.”

3. What amount, if anything, is tbe plaintiff entitled to recover of tbe defendant? Answer: “$100.”

Tbe first issue was'answered by consent of parties, and tbe controversy was as to tbe Statute of Limitations.

Tbe defendant excepted to tbe parts of tbe charge on tbe Statute' of Limitations. Judgment was rendered in favor of tbe plaintiff on tbe verdict, and defendant appealed.

Bruce Craven and G. H. King for plaintiff.

Hammer & Moser for defendant.

Per Curiam :

When it was admitted that tbe defendant received tbe property of tbe machine company on consignment in 1907 or 1908, and evidence was offered tending to prove that be refused, after demand, to account for tbe same, tbe plaintiff made out a prima facie case and bis Honor could not do otherwise than deny tbe motion to nonsuit.

Tbe finding upon tbe plea of tbe Statute of Limitations depended upon tbe time when the relationship between tbe parties became adverse, the plaintiff contending it was in August, 1910, which was within three years of the commencement of the action, and the defendant in 1908, more than three years, and this question was submitted to the jury under instructions free from error.

No error.