Driggers v. Commercial Credit Corp.
| Decision Date | 01 December 1976 |
| Docket Number | No. 7618SC434,7618SC434 |
| Citation | 230 S.E.2d 201,31 N.C.App. 561 |
| Parties | Harold E. DRIGGERS v. COMMERCIAL CREDIT CORPORATION et al. |
| Court | North Carolina Court of Appeals |
Max D. Ballinger, Greensboro, for plaintiff.
Smith, Moore, Smith, Schell & Hunter, by J. Donald Cowan, Jr., Greensboro, for defendant Commercial Credit Corp.
The only question properly before us for review is the interpretation placed upon G.S. 1A--1, Rule 13(a), by the trial judge. We express no opinion upon Driggers' allegations of fraud or the alleged damages arising therefrom.
The pertinent provisions of G.S. 1A--1, Rule 13(a), are:
'A pleading shall state as a counterclaim any claim which at the time of serving the pleading the pleader has against any opposing party, if it arises out of the transaction or occurrence that is the subject matter of the opposing party's claim . . .'
As can be seen, the rule refers to a claim which the pleader has at the time of serving the pleading.
Driggers' answer in the prior action was served on 19 November 1973. On 1 February 1974 Driggers sought a copy of the contract sued upon by Commercial Credit. Finally in January 1975 an order was entered requiring Commercial Credit to produce the contract. Instead of producing the contract signed by Driggers, Commercial Credit produced a 'duplicate' which contained a carbon impression of Driggers' signature. It was under the terms of this 'duplicate' contract that Commercial Credit was proceeding in its action against Driggers. It was not until the day of trial in February 1975 that Driggers learned of the difference between the terms of the contract that he had signed and the terms of the 'duplicate' contract which had been inserted to obtain the carbon impression of his signature. As soon as this difference in terms was brought to light, Commercial Credit submitted to a voluntary dismissal of its action with prejudice.
In North Carolina an action for fraud accrues when the aggrieved party discovers the facts constituting the fraud, G.S. 1--52(9), or when, in the exercise of reasonable diligence, such facts should have been discovered. Wilson v. Development Co., 276 N.C. 198, 171 S.E.2d 873 (1970). There is nothing in the record before us to suggest that Driggers knew or should have known, at the time he filed his pleading in the former action, of the existence of the 'duplicate' contract containing terms different from the one that he signed. Indeed, it was not until the day of...
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Town of Apex v. Rubin
...Rules of Civil Procedure is determined based on its maturity at the time of pleading. See, e.g., Driggers v. Commercial Credit Corp. , 31 N.C. App. 561, 564-65, 230 S.E.2d 201, 203 (1976) ("Where a cause of action, arising out of the transaction or occurrence that is the subject matter of t......
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COUNTRY CLUB v. US Fidelity & Guar. Co.
...observed that the plaintiffs "cannot be expected to plead that which they did not know." Id. Likewise, in Driggers v. Commercial Credit Corp., 31 N.C.App. 561, 230 S.E.2d 201 (1976), we held Since there is no showing that [plaintiff] knew or by the exercise of reasonable diligence should ha......
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Johnson v. Phoenix Mut. Life Ins. Co., 7821SC1130
...statute accrues from the time a reasonable person would be put on notice of the facts constituting fraud. Driggers v. Commercial Credit Corp., 31 N.C.App. 561, 230 S.E.2d 201 (1976). Whether a plaintiff should have discovered these facts more than three years prior to the institution of the......
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...counterclaim, such supplemental pleading is not mandated and failure to do so will not bar the claim.Driggers v. Commercial Credit Corp.,31 N.C.App. 561, 564–65, 230 S.E.2d 201, 203 (1976) (emphasis added).Here, plaintiff brought a claim for breach of the separation agreement. A claim for b......