Baucum v. Streater, 50 N.C. 70, 5 Jones 70 (1857)

Dec. 1857 · Supreme Court of North Carolina

50 N.C. 70, 5 Jones 70

HENRY BAUCUM v. JAMES F. STREATER et al.

The statute of limitations;to an action for the breach of a warranty of soundness, does not begin to run from the time when an injury befáis the purchaser in consequence of the unsoundness, but from, the date of the contract.

ActioN of assuMpsit, tried before Pekson, J., at the- Fall Term, 185Y, of Union Superior Court.

The plaintiff purchased the slave, Mary, from the defendants, on 14th January, 1852, with a written contract of soundness, and five days afterwards he sold her to Mrs. Livingston with a like warranty of soundness. She brought suit against him for a breach of the warranty, and at fall term, 1855, of Montgomery Superior Court, recovered a judgment against him for such breach. He produced, in evidence, a record of this recovery, and contended that the' statute of limitations only began to run from the date of such recovery, as he was not before that time advised of the slave’s unsoundness.

The Court intimated an opinion that the cause of action arose immediately upon the making the warranty, and that, three years having elapsed from that date, the right of action was barred.

Plaintiff, in submission to the opinion of the Court, took a nonsuit and appealed.

No counsel appeared for the plaintiff in this Court.

Ashe, for the defendants.

Nash, C. J.

The action is in Assumpsit to recover damages for a false warranty of soundness of a negro woman named Mary. The contract of warranty was made on 14th of January, 1852, and the writ issued on the 2nd day of October, 1855. The defendant relies on the statute of limitations. The sole question for us to decide is, when did the plaintiff’s right of action accrue ? The plaintiff sold Mary to a Mrs. Livingston, who sued him for a breach of his contract, and recovered judgment at fall term, 1855, of Montgomery Superior Court. If his right of action accrued from the date of that j udgment, then the statute does not bar; if on the breach of the contract, then the statute is a bar. The action is on a contract of soundness, and if the slave was, at the time of its execution, unsound, the contract was instanter broken, and the cause of action then accrued to the plaintiff. It is not at this day an open question, whether the statute begins to run from the breach of the contract; the case of Wilcox v. Plummer, 4 Peters’ Rep. 177, is full authority. The action was against an attorney for breach of duty in the management of a suit at law entrusted to him by the plaintiff. The Court say, where an attorney is chargeable with negligence, or un-skilfulness, his contract is violated, and the action may be brought immediately, and the damage sustained by the plaintiff is not the cause of action. The Court, there, refer to the case of Battley v. Faulkner, 3 B. and A. 288, as being in accordance with their decision.

The plaintiff brought bis action too late, and the statute of limitations is a bar. There is no error.

Pee Cueiam, Judgment affirmed.