Western Rail Road v. Avery

64 N.C. 491

• Court: Supreme Court of North Carolina
• Decided: June 5, 1870
• Status: Published

Opinion

Settle, J.

We are of opinion that the method prescribed for the collection of stock by the ninth section of the charter, is not an exclusive, but a cumulative remedy, and that the company had its option to pursue the course there pointed out, or to sue the defendant upon his personal liability. If the charter had provided that no other remedy should be pursued, or if there had been a general law to that effect, the first position of the defendant could have been maintained, but in the absence of such provisions the law is settled, that the remedy given by the charter is only additional to the common law remedy; 1 Redfield on Railways, 162.

Upon the second point we have had more difficulty, but after a careful examination of authorities, we have arrived at the conclusion, that the statute of limitations commenced to run on each instalment, from the day upon which the call for its payment was made. When the defendant became a stockholder, he agreed to pay such instalments as the board of directors might, from time to time, call for, and when he failed to do so, he at once became liable, not only to the remedy prescribed by the ninth section of the charter, but also to an action of assumpsit for such instalments as had been demanded and were then due. The company elected to waive the remedy given by the charter. Of course then, the statute commenced to run when the cause of action accrued, to-wit: as to each instalment, when it became due by the call of the company: 3 Parsons on Contr. 93. If a bill ■or note be payable by instalments, the statute begins to run from the date of each instalment respectively: Gray v. Pindar. 2 B. & P. 427.

As there was error in the instructions of his Honor on this point, the defendant is entitled to a venire de novo.

Let this be certified.

Per Curiam. Venire de novo.