Murry v. Smith, 8 N.C. 41, 1 Hawks 41 (1820)

June 1820 · Supreme Court of North Carolina

8 N.C. 41, 1 Hawks 41

Murry v. Smith.

From Buncombe.

A. sold to B. a tract of land on the 6th November, 1811, and took from him, in payment therefor, a bond given by Ü. to C. of which B. was tiren the holder, without endorsement to or from B. under this special agreement: that A. should sue H. in a shaft time, and, if H. failed, B. would then pay it. A. brought suit against dl. in September, 1812, tried it in October, 1815, anti failed to recover : and, in October, 1816, he sued B. and declared, first, for the price of the land sold,'and, secondly, upon the special agreement.

Meld, upon the pleas of the statute of limitations and non assumpsit, that A. could not recover upon either count: for the statute of limitations began to run from the making of the contract as laid in the first count ¡ and the laches of the Plaintiff, in not bringing suit against H. for ten months, discharged B, upon the special agreement set forth in the second.

“ Reasonable time” means, that a party sliall do'an act as soon as he conveniently can : and it seems the Court is to judge of that.

When a cause is once ordered to the Supreme Court, that Court acquires jurisdiction, and the Superior Court cannot take any further step in it. The Supreme Court, therefore, will not regard any subsequent proceedings in the Court below.

This was an action of assumpsit, in which the declaration contained many counts; but the two hereinafter mentioned were the only material ones. The first was for the sum of four hundred dollars, due from the Defendant to the Plaintiff as the balance of the price of a tract of land sold and conveyed by the latter to the former; the second was upon a special agreement of the Defendant, that in consideration of his being before that time indebted to the Plaintiff in the sum of four hundred dollars, as and for the price of a tract of land sold and conveyed by him to Smith, and that lie, tire Plaintiff, would take a bond given by one S. Hogsett to one I. C. for four hundred dollars, that became payable on the day of January, 1811, without the endorsement of the Defendant, and sue the said Hog-sett thereon, and if Hogsett should fail to pay the same, he, the Defendant, would make the said bond good, and pay to the Plaintiff the monies therein mentioned. The Plain-» tiff then averred, that he took the bond on Gth day of November, 1811, and brought suit thereon, and that Hogsett failed to pay the money, and that thereof, he gave the Defendant notice.

The jileas were “ non assumpsit” and “ the Statute of Limitations.’9

The cause came on for trial before Seawdl, J. at October term, 1818, when it appeared in evidence, that in November, 1811, the Plaintiff sold to the Defendant a tract Of land, and received the bond in the declaration mentioned in part payment ; that it purported to be signed by S. Hogsett, who was then dead, and was payable to one I. Carson, who bad not endorsed it, nor did the Defendant endorse it,* that at the time of passing it to the Plaintiff, there was a doubt of the sufficiency of the assets of Hog-sett, and it was agreed by the Defendant with the Plaintiff, that if be would bring suit in a short time, and Hog-sett failed, be, the Defendant, would pay it. The Plaintiff brought suit, in the name of Carson, in September, 1812, ail the parties living in the same county; and at October, 1815, brought the same to trial, when a verdict was rendered for Hogsett’s executor, upon the plea of non est factum. This suit was commenced on the 4th day of October, 1816. The Court charged the Jury, that as to the implied promise which the law might raise to pay the price of the land sold, the act of limitations began to run from the time of the bargain; and, therefore, barred the Plaintiff's recovering upon the first count, inasmuch as he did not bring suit until October, 1816., That to enable the Plaintiff to recover on the special agreement, he was bound to bring suit against ÍXogsett’s representative within a reasonable time; and that reasonable time meant, as soon as the party conveniently could. The Jury found a verdict for the Defendant upon both counts, and a rule was granted for a new trial, which was adjourned by the Judge to the late Supreme Court for determination.

The record, however, was not sent into the late Supreme Court, before the act of 1818 abolished it and created the present Court; and the Court below, after several continuances entered, ordered a new trial. The case came on for trial again before Mangum:, J. at April term, 1820, when the Jury, under the charge of the Court, found a verdict for the Plain tiff on the count upon the special agreement; and from the judgment rendered thereon, the Defendant appealed to this Court.

Wilson appeared for the Plaintiff, and Gaslon for the Defendant.

Haul, J.

delivered the opinion of the Court:

This suit was ordered to the Supreme Court for decision by the Superior Court of Buncombe, at' October term, 1818 ; and by that order, and the act of 1818, c. 1, this Court acquired jurisdiction over the case. The Superior Court had no. power to proceed further in it, until after the decision of this Court upon the question submitted to it. The proceedings, therefore, of April term, 1820, cannot be regarded as any part of the record upon which this Court is to pronounce judgment. We can recognize that record only which comes from the Court held in 1818.

By that, it appears tiiat the suit was bi-ought in October, 1816 — more than three years after the contract was entered into, which was in November, 1811. The Defendant hath pleaded the statute of limitations; and, in order to avoid its operation, the Plaintiff relies upon that part of the countract by which it was made his duty to bring suit against Hogsett before he could bring the present suit. ^ I am of opinion that the charge of the Judge was correct, as well as the finding of the Jury in conformity thereto. Ten months had elapsed from the time the contract was made before suit was brought against Hogsett; which was more than a reasonable time for that purpose, and cannot be supported by the contract, by which he was bound to do it in a short time. I therefore think that the Plaintiff’s claim in this action, for the money for which he sold his land to the Defendant, is not taken out of the operation of the statute of limitation. As to the circumstance of the Defendant’s having no effects in the hands of Hogsett, as evidenced by the.plea of non est factum being found for him, it may be observed, that that issue migiit have been so found for want of testimony: the subscribing witness might not have been present, or, if none, other sufficient testimony perhaps was wanting. But, if it were otherwise, there was a reason still why the obligation raised by law of suing in a reasonable time, and giving notice to Smith, should not be dispensed with, when it is recollected that Hogsett’s bond was not given to Smith, but to Carson; and if the note were not genuine, Smith might be ignorant of that fact, and would naturally look to Carson for redress. But this inquiry is unnecessary' — the Plaintiff’s delay in suing Hogsett makes it so. That delay will not admit of his availing himself of any excuse for not bringing the present action within three years after the cause thereof accrued. Let the rule for a new trial be discharged.