Burkhimer v. Gealy

• Decision Date: 16 January 1979
• Docket Number: No. 7825SC198,7825SC198
• Court: North Carolina Court of Appeals
• Parties: Walton Peter BURKHIMER v. Don R. GEALY, Individually, Don R. Gealy, Executor of the Estate of Mrs. Don R. Gealy, Daycoa, Inc., a corporation, and Premier Products, Inc., a corporation.

Page 678

250 S.E.2d 678

39 N.C.App. 450

Walton Peter BURKHIMER v. Don R. GEALY, Individually, Don R. Gealy, Executor of the Estate of Mrs. Don R. Gealy, Daycoa, Inc., a corporation, and Premier Products, Inc. a corporation.

No. 7825SC198.

Court of Appeals of North Carolina.

Jan. 16, 1979.

Townsend, Todd & Vanderbloemen by Bruce W. Vanderbloemen, Lenoir, for defendants-appellees.

HARRY C. MARTIN, Judge.

Plaintiff did not produce any evidence to prove a contract of employment with the defendants Don R. Gealy, Don R. Gealy, Executor of the Estate of Mrs. Don R. Gealy, or Premier Products, Inc. Plaintiff does not argue to the contrary in his brief. The trial judge properly dismissed plaintiff's claims against these defendants.

The trial judge directed verdict for defendant Daycoa, Inc. on plaintiff's claims for damages. Plaintiff assigns this as error. Plaintiff's claims for damages are based upon the alleged breaches occurring Before 17 December 1971 and for damages based upon the alleged breach of the life employment contract After 17 December 1971. The damages claimed Prior to 17 December 1971 are based upon breach of the terms of the alleged contract throughout the employment period from 23 August 1963 until 17 December 1971 as to commissions, overrides, infringement of territory, and fringe benefits. The incidents giving rise to these alleged breaches occurred Prior to the termination of plaintiff's employment on 17 December 1971. Defendant Daycoa, Inc. asserted the statute of limitations. An affirmative defense of the applicable statute of limitations places the burden of proof upon plaintiff to show his action was commenced within the statutory period. Willetts v. Willetts, 254 N.C. 136, 118 S.E.2d 548 (1961). Plaintiff commenced his action 17 December 1974. The statute of limitations for breach of contract is three years. N.C. Gen. Stat. 1-52. Plaintiff's claim for damages resulting from incidents occurring Before 17 December 1971 is barred by the statute of limitations.

Plaintiff maintains that because the defendant was absent from the state, Section 21 of Chapter 1 of the General Statutes of North Carolina applies to prevent the running of the statute of limitations during the defendant's absence. The burden of proof is upon plaintiff to show that defendant comes within the purview of N.C.G.S. 1-21. From the evidence produced by plaintiff at trial, he did not meet this burden. Therefore, we do not reach the question of squaring N.C.G.S. 1-21 with the Long Arm Statute, N.C.G.S. 1-75.4, on this appeal. See Duke University v. Chestnut, 28 N.C.App. 568, 221 S.E.2d 895 (1976); 12 Wake Forest L. Rev. 1041 (1976). Plaintiff's assignment of error as to the directed verdict on the claim for damages prior to 17 December 1971 is overruled.

The statute of limitations as to plaintiff's claim for damages resulting from the termination of his employment contract On 17 December 1971 has not run because the action was commenced within three years from the date the alleged breach occurred. Plaintiff's claim for damages On and After 17 December 1971 is discussed below.

The damages claimed On and After 17 December 1971 are based upon the breach of an alleged employment contract for life. Plaintiff first had to present evidence to establish the existence of the life contract. The trial judge properly directed a verdict on this claim because there was insufficient evidence to go to the jury. All evidence on this question consisted of the following testimony of plaintiff:

With respect to question 13(b), that is, the term of my contract, the answer I filed in my answers to the interrogatories was: "continuing." I did not explain the word "continuing." Just a moment ago I testified on direct examination that my employment was for my natural life. My answer to question 13. (b), "continuing," seemed similar to for my natural life.

According to the agreement I entered into with Mr. Willis and Mr. Pylant for Daycoa my employment with Daycoa was to be for life, that was a term I stated for employment with them. After I stated the term, I mailed them a letter dated September 17, 1963, Plaintiff's Exhibit No. 3. On 20 September Mr. Breidenbach wrote me the letter which is defendants' Exhibit No. 2. I also received with that letter a salesman's agreement and territory that I signed and sent back with my letter, defendants' Exhibit No. 3. The September 20 letter of Mr. Breidenback doesn't have the terms and conditions that I say were agreed to, not all of them, including the term about life employment. It does say, though, that the terms shall remain in force for a minimum of one year providing I am representing Daycoa, and shall continue in force during sales representation unless changed by mutual agreement. It doesn't say for life, except it says by mutual agreement. As to whether I contend that makes a contract for life, it certainly makes it until we agreed to part, at least, and as long as sales representation, as long as I am still representing them.

Pertinent terms of plaintiff's letter to defendant on 17 September 1963: "(T) hat this agreement shall continue for the rest of my natural life or until terminated by mutual agreement."

Pertinent terms of defendant's letter to plaintiff on 20 September 1963: "(T) hese terms shall remain in force for a minimum of one year provided you are representing Daycoa and shall continue in force during sales representation unless changed by mutual agreement."

Defendant rejected terms of plaintiff's letter of 17 September 1963 by its response of 20 September...