Parsons v. Gunter

147 S.E.2d 162 (1966)

266 N.C. 731

B. W. PARSONS v. Josef K. GUNTER and Gunter and Cooke, Inc., a corporation.

No. 280.

Supreme Court of North Carolina.

March 18, 1966.

*164 Ervin, Horack, Snepp & McCartha and William E. Underwood, Jr., Charlotte, for plaintiff, appellant.

Nye, Winders & Mitchell, Durham, for defendants, appellees.

WILLIAM B. RODMAN, Emergency Justice.

Plaintiff's sole exception and assignment of error is to the rendition of the judgment. He does not challenge the finding of fact that the contract was breached in May 1960. That finding is based on plaintiff's testimony that "he (Gunter) was forming Gunter and Cooke Company to sell these drives. This was not in keeping with our agreement made April 3, and so I saw that these drives would be beyond my control if he went out with Gunter and Cooke Corporation just to sell them."

Thereafter some machines were sold by defendants. Plaintiff and Gunter had a conference in Charlotte in May 1960 with respect to these sales. Plaintiff demanded an accounting of the proceeds derived from these sales. After a discussion of the differences between the parties, plaintiff "expressed to him (Gunter) my displeasure in his selling these drives, which wasn't in keeping with our original agreement, and also I asked him where I stood in the matterthat is, in the Gunter & Cooke thing I didn't want any part of. He said that there was not enough room for both of us in selling these card drives." Plaintiff then inquired what his position would be if he should terminate his employment with Woods. Whereupon Gunter replied: "There is still no room for you in the sale of these card drives."

When defendants asserted the statute of limitations as a defense, plaintiff had the burden of overcoming the plea. Jewell v. Price, 264 N.C. 459, 142 S.E.2d 1; Willetts v. Willetts, 254 N.C. 136, 118 S.E.2d 548; Speas v. Ford, 253 N.C. 770, 117 S.E.2d 784.

Plaintiff's evidence established the fact that Gunter in January and May told plaintiff, in language which could not be misunderstood, that Gunter had disclaimed any obligation which plaintiff could assert based on the contract for the utilization of Gunter's idea for the cotton card drives. This disavowal started the statute of limitations to run. Bennett v. Anson Bank & Trust Co., 265 N.C. 148, 143 S.E.2d 312; Solon Lodge, etc. v. Ionic Lodge, Free, etc., 245 N.C. 281, 95 S.E.2d 921; Sheppard v. Sykes, 227 N.C. 606, 44 S.E.2d 54; Teachey v. Gurley, 214 N.C. 288, 199 S.E. 83; Booth v. Hayde, 228 Ark. 244, 307 S.W.2d 227.

More than three years elapsed after plaintiff was put on notice of Gunter's disavowal of any obligation to plaintiff and the institution of this action. The right to maintain the action is barred. G.S. § 1-52.

We find nothing in the evidence to support plaintiff's contention that the applicable statute is 10 years, G.S. § 1-56, because defendants are trustees of a constructive or resulting trust. The evidence does not establish any confidential relationship and reliance on that relationship by plaintiff. To the contrary, the evidence coming from his own lips is to the effect that he was during the entire period seeking to defeat a successful use of Gunter's idea.

The judgment is

Affirmed.

MOORE, J., not sitting.

PLESS, J., took no part in the consideration or decision of this case.