Nowell v. Great Atlantic & Pacific Tea Company

108 S.E.2d 889 (1959) 250 N.C. 575

William McKee NOWELL and wife, Sarah Blanche Nowell,
v.
GREAT ATLANTIC & PACIFIC TEA COMPANY, a Corporation, and P. S. West Construction Company, Inc., a Corporation.

No. 451.

Supreme Court of North Carolina.

June 12, 1959.

James & Speight, W. C. Brewer, Jr., Greenville, for defendant P. S. West Construction Co., Inc., appellant.

Thomas W. Ruffin, Raleigh, for plaintiffs, appellees.

HIGGINS, Justice.

The plaintiffs' evidence disclosed the action against the Tea Company was not brought within three years from the time it accrued. The evidence established the Tea Company's plea in bar. Nonsuit was required. The appellant interposed a like plea which the court overruled. Assignment of Error No. 2 challenges this ruling.

The appellant has contended the nonsuit should have been entered upon two grounds: First, the allegations and the evidence showed that R. L. Taylor, engineer for the Tea Company, was also the agent of the plaintiffs and, as such, had supervised the construction and, with full knowledge of the manner in which the work had been done, accepted the structures. Second, the suit was not brought within three years from the time the action accrued. However, the plaintiff's pleadings and evidence disclosed that before the appellant completed the construction work the plaintiffs had complained of the defects in the walls, roof, and windows. Prior to the time the work was completed and the Tea Company entered into possession, the plaintiffs, by their complaints and objections, gave notice that they did not waive the defects. They relied on the assurances given by the appellant on March 8, 1951, that necessary corrections would be made. "My company will be entirely responsible and we will remedy the situation, if it should occur."

The efforts of the appellant to correct the structural defects continued at intervals until February 22, 1954. On that date, for the first time, the appellant gave notice, "We will assume no further responsibility for this condition." Thus the evidence fails to support the contention the plaintiffs accepted the building and foreclosed their right to have the defects corrected. Their conduct in pressing for repairs denied the claim that Taylor had unconditionally accepted the structure and waived the defects.

The appellant, however, placed its main reliance for nonsuit on the ground the construction was completed, possession was delivered, and the contract price paid on April 1, 1951. The plaintiffs delayed bringing this action until August 23, 1956. Therefore, the defendant contends its plea of the statute of limitation should have been sustained, and a judgment of nonsuit entered. The appellant cites as authority the following: Shearin v. Lloyd, 246 N.C. 363, 98 S.E.2d 508; Lester v. McLean, 242 N.C. 390, 87 S.E.2d 886; Lewis v. Shaver, 236 N.C. 510, 73 S.E.2d 320; Vail v. Vail, 233 N.C. 109, 63 S.E.2d 202; Aydlett v. Major & Loomis Co., 211 N.C. 548, 191 S.E. 31; Peal v. Martin, 207 N.C. 106, 176 S.E. 282; Town of Franklin v. Franks, 205 N.C. 96, 170 S.E. 113; Burgin v. Smith, 151 N.C. 561, 66 S.E. 607.

A statute of limitation operates as a complete defense, not for lack of merit, but for security against the attempt to assert a stale claim. "Statutes of limitations are inflexible and unyielding. They operate inexorably without reference to the merits of plaintiff's cause of action. They are statutes of repose, intended to require that litigation be initiated within the prescribed time or not at all." Shearin v. Lloyd, supra [246 N.C. 363, 98 S.E.2d 514].

The lapse of time, when properly pleaded, is a technical legal defense. Nevertheless, equity will deny the right to assert that defense when delay has been induced by acts, representations, or conduct, the repudiation of which would amount to a breach of good faith. "The doctrine of equitable estoppel is based on an application of the golden rule to the everyday affairs of men. It requires that one should do unto others as, in equity and good conscience, he would have them do unto him, if their positions were reversed. * * * Its compulsion is one of fair play." McNeely v. Walters, 211 N.C. 112, 189 S.E. 114, 115. The plaintiffs have pleaded the facts showing equitable estoppel in stating their cause of action in the complaint. Having pleaded them once, it was not necessary to repeat them by reply.

The plaintiffs argue they accepted in good faith the defendant's statement: "We have found the trouble and made the necessary corrections. * * * My company will be entirely responsible and we will remedy the situation, if it should occur." They relied upon the promise and did not sue while efforts to correct the structural errors were under way. The appellant, by its promises, invited the delay and should not complain that the invitation was accepted.

However, on February 22, 1954, for the first time, the appellant gave notice it would assume no further responsibility. Suit was brought within less than three years from the date of that notice. Smith v. Gordon, 204 N.C. 695, 169 S.E. 634.

The evidence was sufficient to go to the jury on the second issue. The jury's answer was conclusive. The plaintiffs' right to avoid the statutory bar by matters in pais is recognized in many cases, among them: Peek v. Wachovia Bank & Trust Co., 242 N.C. 1, 86 S.E.2d 745; Hawkins v. M. & J. Finance Corp., 238 N.C. 174, 77 S.E.2d 669; Washington v. McLawhorn, 237 N.C. 449, 75 S.E.2d 402; Long v. Trantham, 226 N.C. 510, 39 S.E.2d 384; Small v. Dorsett, 223 N.C. 754, 28 S.E.2d 514; Scott v. Bryan, 210 N.C. 478, 187 S.E. 756; Bank of Canton & Trust Co. v. Clark, 198 N.C. 169, 151 S.E. 102; Wells v. Crumpler, 182 N.C. 350, 109 S.E. 49; Boddie v. Bond, 154 N.C. 359, 70 S.E. 824.

The defendant's only assignment of error is to the court's refusal to nonsuit. If the evidence was sufficient to support the issues and the issues were sufficient to support the judgment, the motion to nonsuit was properly denied. The contract was admitted. The evidence before the jury was sufficient to warrant the finding (1) that the contract was breached, (2) that the action was not barred, and (3) that the plaintiff suffered some damage. The issues and the jury's answers to them are sufficient to sustain the judgment.

No error.