Citizens' Nat. Bank Of Gastonia v. Gaston County Farmers' Union Warehouse Co

• Decision Date: 29 November 1916
• Docket Number: (No. 450.)
• Citation: 90 S.E. 698
• Court: North Carolina Supreme Court
• Parties: CITIZENS' NAT. BANK OF GASTONIA. v. GASTON COUNTY FARMERS' UNION WAREHOUSE CO. et al.

(172 N.C. 602)

90 S.E. 698

CITIZENS' NAT. BANK OF GASTONIA.

v.GASTON COUNTY FARMERS' UNION WAREHOUSE CO. et al.

(No. 450.)

Supreme Court of North Carolina.

Nov. 29, 1916.

Appeal from Superior Court, Gaston County; Carter, Judge.

Action by the Citizens' National Bank of Gastonia against the Gaston County Farmers' Union Warehouse Company and others. From an order of reference, the plea of limitations having been held insufficient, defendants appeal. Reversed.

This is an action to recover damages for a conversion of cotton; the plaintiff claiming under warehouse receipts issued by the defendants.

The defendant, after answering the different allegations of the complaint, filed the following plea as a part of its answer:

"For further answer and defense, the defendant warehouse company expressly pleads the statute of limitation, laches, and estoppel, alleging more particularly that for more than three years next before the beginning of this action, and for more than a reasonable length of time, the plaintiff bank had actual knowledge and repeated notice that the warehouse receipts sued upon in this action were valueless, and should he surrendered to the defendant warehouse company for cancellation, the plaintiff having received proceeds from the sale of cotton evidenced thereby; that the plaintiff bank failed to make any proper demand within reasonable time after notice upon the said defendant warehouse company."

His honor held that the statute of limitations was not sufficiently pleaded, and ordered a reference over the objection of the defendant, who excepted and appealed.

S. J. Durham, of Gastonia, and Margaret Berry and E. R. Preston, both of Charlotte, for appellant.

Mangum & Woltz, of Gastonia, for appellee.

ALLEN, J. [1] The plea of the statute of limitations is a plea in bar, and the court cannot order a reference when such a plea is pending except by consent. Duckworth v. Duckworth, 144 N. C. 620, 57 S. E. 396; Oldham v. Rieger, 145 N. C. 260, 58 S. E. 1091.

It Is also true, as the plaintiff contends, that the plea is not good if it merely states that the party pleads the statute of limitations, and that he must go further and state the facts constituting the defense. Pope v. Andrews, 90 N. C. 401; Turner v. Shuffler, 108 N. C. 642, 13 S. E. 243; Lassiter v. Roper, 114 N. C. 17, 18 S. E. 946.

We must then examine the pleading and see if the facts are sufficiently alleged, and, when doing so, we must keep in mind that a pleading is liberally construed,...