Patterson v. . Allen

Seawell, J. The defendant here insists that the plaintiff has sued for the conversion of certain lumber belonging to him and, defendant having interposed the plea of the statute of limitations, a payment to the plaintiff subsequent to the conversion would not have the effect of repelling the bar of the statute, since, as defendant contends, the action is in tort and not ex contractu. It is well established, however, that “when a man’s property has been wrongfully converted, . . . the owner is allowed to waive the tort and sue on contract.” Sanders v. Ragan, 172 N. C., 612, 616; Stroud v. Ins. Co., 148 N. C., 54, 56. Reading the complaint, it might in its terms be considered sufficient in an action on the implied contract, and we think, if necessary to sustain the judgment, it should be so considered. It is doubtful whether the plaintiff’s cause of action could be properly grounded on conversion, since there had been no division of the lumber, and the part to which he might have had the right to immediate possession was not identified. Rooks v. Moore, 44 N. C., 1. The instructions given to the jury, as to the effect of partial payment in repelling the statute of limitations, were free from error in this view of the case, and appropriate both to the pleadings and the evidence. The defendant objected to questions propounded to him on cross-examination relating to his purpose in pleading the statute of limitations. The plea of the statute of limitations is neither criminal nor immoral, and where a witness has interposed such a plea in another case, this cannot be used as evidence to impeach him. Cecil v. Henderson, 119 N. C., 422. In this case, however, we do not think that counsel for plaintiff went beyond the latitude allowed in cross-examination by asking the defendant as to the bona fides of his plea. It proved not a very successful method of “purging the conscience” of the defendant, but we do not consider it reversible error. The objections to portions of the testimony of Leo Carr are, we think, not tenable. The witness denied any independent recollection of the matters upon which he was called to testify. As the tally sheets identified by him were not evidence of themselves, he could not be permitted to read them and relay their contents to the jury. We think that the jury was not misled by the remarks of the judge excluding this evidence. We have examined the other exceptions in the record and are unable to find a satisfactory reason for disturbing the result in this case. We find No error.