Dunn v. . Brewer

44 S.E.2d 353, 228 N.C. 43, 1947 N.C. LEXIS 533

• Court: Supreme Court of North Carolina
• Decided: October 8, 1947
• Status: Published

Opinion

Stacy, O. J.

The appeal poses the question whether the plaintiff is entitled to judgment against the estate of E. B. Brewer. The trial court answered in the negative, and we approve. Plaintiff is discontent with his limited recovery against the estate of Lucinda Brewer.

Recovery was properly denied on plaintiff’s alleged contract as against the estate of E. B. Brewer, because it rests in parol and is not subject to specific enforcement. Coley v. Dalrymple, 225 N. C., 67, 33 S. E. (2d), 477; Neal v. Trust Co., 224 N. C., 103, 29 S. E. (2d), 206; Daughtry v. Daughtry, 223 N. C., 528, 27 S. E. (2d), 446; Price v. Askins, 212 N. C., 583, 194 S. E., 284.

Recovery was likewise properly denied as against the estate of E. B. Brewer on assumpsit or quantum meruit, since the action was instituted more than nine years after the right accrued and the defendants have interposed a plea of the three-years statute of limitations. G. S., 1-52; Wood v. Wood, 186 N. C., 559, 120 S. E., 194; McCurry v. Purgason, 170 N. C., 463, 87 S. E., 244, Ann. Cas. 1918-A, 907; Miller v. Lash, 85 N. C., 52, 39 Am. Rep., 678; McIntosh on Procedure, 161.

There was no error in disallowing the plaintiff’s claim as against the estate of E. B. Brewer.

Affirmed.