Johnson Cotton Co. v. Alex Sprunt & Co.

BnoGDEN, J. 1. Was there sufficient evidence of identity of the cotton to be submitted to the jury? 2. Is the claim of plaintiff barred by the statute of limitations ? *421 The plaintiff alleged that tbe agricultural lien, executed by Jernigan and wife, covered “their crops of cotton raised by them during* the year 1926.” The evidence tended to show: (a) that Jernigan, during the year 1926, had about thirty-five acres in cotton, and that the yield “averaged a bale to the acre”; (b) that the defendant carried “a heap of bales” to the gin at night: (c) there were twenty-six bales of cotton in Jernigan’s yard, which were carried to Wilmington and sold to the defendant; (d) Jernigan did not have any other crop during the year of 1926 except cotton. Discussing the question of identity of cotton in Long v. Hall, 91 N. C., 286, 2 S. E., 229, the Court said: “It was the duty of plaintiff to show, affirmatively, by a preponderance of evidence, that it was the identical cotton, and if the evidence presented any question on that point, it was for the jury to weigh and determine.” Applying the principle of law, the Court is of the opinion that there was some evidence that the cotton in controversy was raised by Jernigan during the year 1926. Plaintiff contends that the statute of limitations applicable is C. S., 441, subsection 9, and that the sale of the cotton was not discovered until 1930. Hence, the statute of limitations would run from the discovery of the fraud, and, as suit was brought in June, 1930, the action can be maintained. However, there is no allegation and no proof that the defendant committed a fraud or participated therein or did any act to conceal the purchase of the cotton or to prevent the disclosure of all the facts surrounding the transaction. Hence, as to the defendant, the cause of action having accrued more than three years before the suit was brought, the judgment of nonsuit was correctly entered. Dunn v. Beaman, 126 N. C., 766, 36 S. E., 172. Affirmed.