Rouss v. Ditmore

• Decision Date: 24 May 1898
• Citation: 30 S.E. 335,122 N.C. 775
• Parties: ROUSS. v. DITMORE.
• Court: North Carolina Supreme Court

30 S.E. 335

122 N.C. 775

ROUSS.

v.DITMORE.

Supreme Court of North Carolina.

May 24, 1898.

Limitations of Action—Fraud—Remedy.

1. Fraud of the vendee of goods sold and delivered, first discovered after action for the price is barred by limitations, will not revive it.

2. The remedy of the vendor of goods obtained by fraud, discovered after an action on the contract is barred, is for damages therefor.

Appeal from superior court, Swain county; Robinson, Judge.

Action by C. B. Rouss against J. H. Ditmore. From a nonsuit, plaintiff appeals. Affirmed.

R. L. Leatherwood and W. W. Jones, for appellant.

FAIRCLOTH, C. J. This action was commenced in 1895 for balance due on an account for goods sold and delivered in 1889. Defendant gave a mortgage to secure the account on real estate. He pleaded payment and statute of limitations. Plaintiff alleges in his amended complaint that defendant, with a fraudulent intent, represented that the real estate mortgaged was worth $1,500, whereas in fact it was not worth more than $50. Upon these facts his honor held that the action was barred, and proceeded no further. Nonsuit and appeal.

Acts 1889, c. 269, amends Code, § 155 (9), and subjects all actions to the same rule, whether heretofore cognizable solely in a court of equity or not. Alpha Mills v. Watertown Steam Engine Co., 116 N. C. 797, 21 S. E. 917. This action was for damages on a false warranty. The present action is not for damages for any fraudulent conduct on the part of the defendant, but is for the balance due on an account for goods sold. The amended complaint is only a reply to an effective defense pleaded, and is not the cause of action alleged in the original declaration. At common law there was no time limited to bring an action. In the course of events, the courts of equity, being impressed with the inconvenience and frequent injustice of enforcing stale demands, adopted certain periods of time after which they would presume payment or satisfaction in some way. The courts of law, in analogy, enacted statutes of limitation, and also observed the rule of presumptions which had been introduced by the courts of equity. Accordingly, St. Jac. I. superseded all previous attempts at limitations on actions, and that statute is still in force in England and in most of the states in the United States, with such modifications as to length of time, etc., as the states have desired. Statutes of limitation act merely upon the remedy, but do not extinguish or discharge the...