Citizens National Bank v. Gaston Farmers' Union Warehouse Co.

90 S.E. 698, 172 N.C. 602, 1916 N.C. LEXIS 356

Opinion

AlleN, J.

The plea of the statute of limitations is a plea in bar, and the court cannot order a reference when such a plea is pending except by consent. Duckworth v. Duckworth, 144 N. C., 620; Oldham v. Rieger, 145 N. C., 260.

It is also true, as the plaintiff contends, that the plea is not good if it merely states that the party pleads the statute of limitations, and that he must go further and state the facts constituting the defense. Pope v. Andrews, 90 N. C., 401; Turner v. Shuffler, 103 N. C., 642; Lassiter v. Roper, 114 N. C., 17.

We must then examine the pleadings and see if the acts are sufficiently alleged, and when doing so we must keep i'n mind that a pleading is liberally construed, and “If it can be seen from its general scope that a party has a cause of action or defense, though imperfectly alleged, the fact that it has not been stated with technical accuracy or precision will not be so taken against him as to deprive him of it.” Blackmore v. Winders, 144 N. C., 215; Brewer v. Wynne, 154 N. C., 471.

The action, is to recover damages for the conversion of personal property, and the statute applicable is that of three years.

The defendant in its plea says it “expressly pleads the statute of limitation,” and then alleges “more particularly” that for more than three years prior to the commencement of the action the plaintiff had actual knowledge that the cotton had been sold, and that it had received the proceeds of sale.

This may amount to a plea of payment, but it also contains all the facts constituting the defense of the statute of limitations, because if there was a conversion it took place prior to or at the time of the sale, and by fair intendment it is alleged that the sale was more than three years before the commencement of the action.

We are therefore of opinion that it was erroneous to order a reference with the plea of the defendant undisposed of.

Reversed.