Hammond v. . Williams

3 S.E.2d 437, 215 N.C. 657, 1939 N.C. LEXIS 333

• Court: Supreme Court of North Carolina
• Decided: May 24, 1939
• Status: Published

Opinion

Winborne, J.

Careful consideration of each exceptive assignment on this appeal fails to reveal error.

Matters stressed by appellant in the main relate to controverted facts bearing on the question of the statute of limitations. Defendant contends that the mutual dealings between him and plaintiff closed on 2 January, 1934, and that no item in the account is within the three years next preceding 19 June, 1937, the date on which this action was instituted. In support of this contention, defendant contended below and offered evidence tending to show that on 2 January, 1934, individual plaintiffs took out certificate of incorporation in the name of “Hammond Brothers, Incorporated”; that they ceased to operate as a partner ship; and that a new account was opened by the corporation with defendant, which covered all subsequent transactions appearing as items in the statement of plaintiffs’ claim.

On the other hand, plaintiffs contend and offered evidence tending to show that, while it is true that a certificate of corporation was issued by the Secretary of State to Hammond Brothers, Incorporated, on 2 January, 1934, the corporation did not take over the partnership business until 1 July, 1934-, and that the last item in the mutual account was on 21 June, 1934, and within the period of three years next preceding the institution of this action. C. S., 421 and 441.

This presented a factual controversy for decision by the jury. It was fairly presented in the charge.

Defendant stresses specifically exceptions to the ruling of the court in sustaining objection to these questions:

“Q. I will ask you if that is not a statement you sent Mr. Williams after you were incorporated in 1934 for material he purchased from you?

“Q. Mr. Hammond, I will ask you what that is? A. ‘A check in connection with the corporation.’ ”

The record is silent as to what the answer would have been to the first question. Likewise the record fails to show the date of the check or other indicia relating thereto from which to determine its materiality. Under these circumstances, if the rulings of the court be erroneous, we cannot say that they are prejudicial.

Defendant excepts to this portion of the charge: “Now, gentlemen, the court instructs you that the mere fact that a person incorporates and files incorporation papers in the office of the clerk of the Superior Court and otherwise complies with the statutory laws of North Carolina does not mean, does not necessarily mean he must operate as to that particular corporation, and therefore it does not necessarily mean that because these papers were recorded they were operating as a corporation.”

The challenge is not well taken. While the statute, C. S., 1116, provides that the incorporators become a body corporate from the date the certificate of incorporation is filed in the office of the Secretary of State, Britt v. Howell, 210 N. C., 475, 187 S. E., 566, there is no presumption that the corporation is organized and doing business as such from that time. These are questions of fact which are subject to be, and may be proved as any other fact.

While not excepting to the form of the third issue, defendant excepts to various parts of the charge in which the court quoted the issue and declared the burden of proof thereon. It is assumed that the issue was so framed because the respective claims admittedly relate to the balance due on mutual, open and current account. "We do not approve tbe form, but perusal of tbe charge fails to disclose error prejudicial to defendant. Tbe court plainly charged tbe jury that tbe burden of proof on this issue was upon tbe plaintiff. With this defendant cannot complain.

Reference to other assignments is deemed unnecessary.

In tbe judgment below we find

No error.