Falls v. . McKnight , 14 N.C. 421 ( 1832 )

"Received of Robert Simonton, executor of James Heart, $953.24, which I have received as an heir of James Heart, and if it is too much, I am to return the balance. "JAMES McKNIGHT."

Plea — the statute of limitations.

On the trial, before Daniel, J., at IREDELL, on the fall circuit of 1831, the defendant having made out a prima facie case in support of his plea, the plaintiffs, to rebut the defense, proved that a petition was pending in the county court of Iredell against Simonton, by the next of kin of James Heart; that in the year 1828 it was agreed between the plaintiffs and the next of kin, of whom the defendant was one, that the suit by petition should be referred to an arbitrator, "with power and authority to allow the said executors (the plaintiffs) such credits (422) for all receipts in their hands which, in his opinion, they would be allowed by law or equity"; that in pursuance of this submission, the arbitrator by his award found that the defendant had been over paid the sum of $905. Judgment was entered according to the award, which was made within three years of the commencement of the action.

His Honor instructed the jury that the submission and award prevented the defendant from availing himself of the statute of limitations, and a verdict being returned for the plaintiffs, the defendant appealed. The receipt given by the defendant to Simonton contains a promise to account with him if the sum received by the defendant exceeded that due by Simonton. We will leave out of the question what would be the effect of a long delay on the part of Simonton, and his then by his own motion without the cooperation of the defendant, fixing the amount of these claims, and demanding the balance according to the terms of the receipt. I say it is unnecessary to examine such a case with respect to the statute of limitations, for this is a very different one. So far from the adjustment of those claims, and the proof of the fact that they fall short of the defendant's accountable receipt, being the sole act of Simonton or his executors, they were forced on his executors by the active agency of the defendant, who was a plaintiff in the petition for an adjustment of the accounts, and brings to view by his act the fact which shows conclusively the amount of his claim on Heart's estate, viz.: by an award of an arbitrator of his own choosing, according to which a judgment was entered in the suit wherein the defendant was one of the plaintiffs, and the present plaintiffs were defendants, which judgment stands in full form. After this, can the defendant say that a cause of action did not accrue upon that receipt within three years next before the bringing of the action, when it (423) was brought within a few months after the confirmation of the award? I disregard all that was said about the effects of agreeing to submit, upon Heart's estate, to arbitration. It is sufficient to state that in this case there is a promise to pay, should the sum mentioned in the receipt exceed the defendant's interest in that estate, and that has been ascertained by the defendant. When it was thus ascertained, the present cause of action arose.

PER CURIAM. Judgment affirmed.

Cited: Moore v. Commissioners, 87 N.C. 213.