Alley v. Rogers

• Decision Date: 22 December 1915
• Docket Number: 591.
• Parties: ALLEY ET AL. v. ROGERS.
• Court: North Carolina Supreme Court

87 S.E. 326

170 N.C. 538

ALLEY ET AL. v. ROGERS.

No. 591.

Supreme Court of North Carolina

December 22, 1915

Appeal from Superior Court, Jackson County; Cline, Judge.

Action by Pauline Alley and others against David Rogers. From a judgment for plaintiffs on overruling defendant's exceptions to and confirming the referee's report defendant appeals. Affirmed.

In an action on open account, where the court ordered compulsory reference, and defendant duly excepted, but failed to formulate the issues arising on the exceptions to the report and file them with the exceptions, he waived his objection to the reference.

Moore & Moore, Bourne, Parker & Morrison and Theodore F. Davidson all of Asheville, for appellant.

C. C Cowan, of Sylva, and Alley & Leatherwood, of Bryson City, for appellees.

BROWN J.

We will not consider seriatim the 34 assignments of error in the record, but only those salient points determinative of the case. The action was commenced March 13, 1913. The plaintiffs complain that from the 15th day of March, 1895, until the 15th day of October, 1911, at the request of the defendant they furnished to him board, food, lodging, attendance and other necessaries, doing his mending, laundry, and furnishing food and lodging for his laborers on his farms and his many business visitors during said period, and feed for his visitors' teams, and in every year of said period the defendant made payments on the account of said services, directing the same to be credited on the running account between them, the total of which said payments amounts to $411.83, and that the services of the plaintiffs rendered to the defendant during said period were reasonably worth the sum of $2,985.03, leaving a balance due the plaintiffs of $2,573.17. The defendant answered, admitting the services rendered, and admitting that he made payments from time to time, and insists that the payments which he made were reasonably worth what the services would reasonably amount to, and attempted to plead the statute of limitations. The evidence shows that payments were made by the defendant on this account during the entire period, some in each year, the last two being the year 1912, $10, and the year 1913, $10.

1. The court ordered a compulsory reference. The defendant contends that the statute of limitations is properly pleaded in bar of a recovery, and that it was error to refer the cause before determining this plea. We doubt if the plea is well pleaded. Murray v. Barden, 132 N.C. 136, 43 S.E. 600; Lassiter v. Roper, 114 N.C. 20, 18 S.E. 946. However that may be, it is not a bar to the whole cause of action set out in the complaint. It does not necessarily bar the entire cause of action, for it is alleged that the defendant made payments upon a running and mutual account up to 1913.

As the statute of limitations in this case involves mixed questions of law and fact, it was necessary to take and state the account. Upon the facts as found by the referee, the statute does not bar a recovery. Stancell v. Burgwyn, 124 N.C. 69-71, 32 S.E. 378. In those cases where this court has held that a...