Hoch v. Young, 8210SC937

• Decision Date: 02 August 1983
• Docket Number: No. 8210SC937,8210SC937
• Citation: Hoch v. Young, 305 S.E.2d 201, 63 N.C.App. 480 (N.C. App. 1983)
• Court: North Carolina Court of Appeals
• Parties: Arthur M. HOCH v. Herbert C. YOUNG.

Page 201

305 S.E.2d 201

63 N.C.App. 480

Arthur M. HOCH v.Herbert C. YOUNG.

No. 8210SC937.

Court of Appeals of North Carolina.

Aug. 2, 1983.

Harrell & Titus by Bernard A. Harrell and Richard C. Titus, Raleigh, for plaintiff-appellee.

Poyner, Geraghty, Hartsfield & Townsend by David W. Long and Cecil W. Harrison, Jr., Raleigh, for defendant-appellant.

WEBB, Judge.

The question presented for review on this appeal is whether the trial court, at the first trial of this matter, erred in failing to grant defendant's motions for a directed verdict and judgment notwithstanding the verdict.

Defendant offers the following two grounds in support of his contention that the court erred in denying his motions: (1)plaintiff's own evidence established that his cause of action for conversion was barred by the three-year statute of limitations set out in G.S. 1-52(4), and (2)plaintiff failed to offer evidence as to the fair market value of the converted stock as of the date of the conversion.We do not agree and find no error in the court's denial of defendant's motions.

Defendant argues the statute of limitations began to run when plaintiff learned in either late 1976 or early 1977 that defendant had possession of plaintiff's stock certificate endorsed in blank.If the statute of limitations had been triggered at that point, then plaintiff's action would be barred because it was not filed until over three years later on 9 October 1980.Plaintiff maintains the limitation period did not begin until September 1980, the date he made demand for the return of his stock certificate.We agree with plaintiff that there was sufficient evidence for the jury to find that the statute of limitations did not begin to run until September 1980.

There is no evidence that when defendant informed plaintiff that he had possession of the certificate, that he indicated any intention to retain the same against plaintiff's rights or to convert it to his own use.Rather, the conversation between the parties served only to notify plaintiff of the location of his certificate subsequent to the imprisonment of Mr. Hudson.Defendant testified that he"received Mr. Hoch's stock certificate in the mail.There was nothing with the certificate and I do not know who mailed it ...."Since it appears defendant came into possession of the certificate lawfully, the following applies:

"Where there has been no wrongful taking or disposal of the goods, and the defendant has merely come rightfully into possession and then refused to surrender them, demand and refusal are necessary to the existence of the tort.When demand is made, and absolute, unqualified refusal to surrender, which puts the plaintiff to the necessity of force or a lawsuit to recover his own property, is of course a conversion."

Prosser, The Law of Torts 4th, § 15 at pp. 89-90(1971).

Similarly, Dr. Robert E. Lee in his book North Carolina Law of...