North Carolina Cotton Growers Co-Operative Ass'n v. Tillery

*533 BeogdeN, J. Tbe contract between tbe parties witb respect to tbe 1926 cotton crop of defendant specified tbat tbe cotton was to be placed in tbe “long pool,” to be marketed in a period of time, probably six to twenty-four months in tbe discretion of tbe directors.” Tbe defendant contends tbat tbe “discretion of tbe directors” was limited by tbe language of tbe contract so tbat tbey could not sell in less tban six months and must sell within twenty-four months. Conceding, though not deciding, tbat tbe interpretation of tbe contract urged by defendant, is correct, nevertheless it does not appear tbat tbe cotton was sold in less tban six months from tbe time it was placed in tbe long pool. All tbe record discloses is tbat a final statement was submitted by tbe plaintiff to defendant on 22 July, 1927. Hence it necessarily follows tbat tbe cotton was sold sometime prior to tbat date. Tbe defendant, however, undertakes to establish tbe date of sale by attempting to offer evidence showing either tbe average price of cotton during tbe year 1927 on certain dates, or tbe monthly price of cotton during tbe year 1927, but such proof, at most, raises a haze of conjecture and a fog of speculation, and does not constitute evidence of tbe necessary and vital facts. Therefore, tbe instruction given by tbe trial judge on tbe second issue was correct. As tbe ruling upon tbe second issue determines tbe merit of tbe controversy, it is not deemed necessary to decide whether tbe defendant’s counterclaim, set up in tbe amended answer, for damages sustained by tbe negligent handling of tbe 1926 crop, is barred by tbe statute of limitations. It is said in 37 C. J., page 1082, section 522, tbat: “Where a counterclaim or set-off is pleaded in an amended answer or plea, and not in tbe original, tbe statute runs against it until tbe filing of tbe amended answer.” This declaration of law finds direct and unequivocal support in Christmas v. Mitchell, 38 N. C., 535; Gill v. Young, 88 N. C., 58; Hester v. Mullen, 107 N. C., 724, 12 S. E., 447, and Sams v. Price, 121 N. C., 392, 28 S. E., 486. The theory upon which tbe decisions turn is tbat tbe amendment introduces a separate and distinct cause of action and such cause of action so alleged is subject to any and all legal defenses tbat tbe adverse party may interpose, including tbe statute of limitations. See, also, R. R. v. Dill, 171 N. C., 176, 88 S. E., 144; Jones v. Vanstory, 200 N. C., 582. Implications to tbe contrary may be deduced from Brumble v. Brown, 71 N. C., 513. No error.