Wimberly v. Washington Furniture Stores, Inc.

6 S.E.2d 512, 216 N.C. 732, 1940 N.C. LEXIS 375

• Court: Supreme Court of North Carolina
• Decided: January 3, 1940
• Status: Published

Opinion

Stacy, C. J.

In reference cases, the findings of fact, approved or made by the judge of the Superior Court, if supported by any competent evidence, are not subject to review on appeal, unless some error of law has been committed in connection therewith. Dent v. Mica Co., 212 N. C., 241, 193 S. E., 165; Corbett v. R. R., 205 N. C., 85, 170 S. E., 129; Wallace v. Benner, 200 N. C., 124, 156 S. E., 795.

The principal question presented is whether plaintiff has offered sufficient evidence to repel the plea of the three-year statute of limitations, C. S., 441, subsection 9, it appearing that the fraud of which the plaintiff complains occurred in December, 1931, and tbis action was instituted 23 September, 1937. Tbe plaintiff testifies tbat be did not learn of tbe fraud until about 19 August, 1936, when be undertook to sell bis stock in tbe old corporation. Tbe new corporation “continued witb tbe same stock of merchandise and bad tbe same manager.” There was only a slight change in name. Even after tbe plaintiff discovered tbat a new corporation bad been formed, be could find no record of tbe dissolution of tbe old or bow it ceased to exist.

Tbe authorities are to tbe effect tbat, in an action grounded on fraud, tbe statute of limitations begins to run from tbe discovery of tbe fraud or from tbe time it should have been discovered in tbe exercise of reasonable diligence. Peacock v. Barnes, 142 N. C., 215, 55 S. E., 99; Stancill v. Norville, 203 N. C., 457, 166 S. E., 319; Ollis v. Board of Education, 210 N. C., 489, 187 S. E., 772.

Tested by tbis standard, there is evidence on tbe record to support tbe referee’s finding which has been approved by tbe judge of tbe Superior Court, tbat tbe plaintiff’s cause of action is not barred by laches. It results, therefore, tbat tbe judgment must be upheld.

Affirmed.