{
  "id": 8523523,
  "name": "RAYMOND H. HUTCHINSON v. THOMAS HUTCHINSON",
  "name_abbreviation": "Hutchinson v. Hutchinson",
  "decision_date": "1980-12-02",
  "docket_number": "No. 8025SC480",
  "first_page": "687",
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      "cite": "278 N.C. 523",
      "category": "reporters:state",
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          "page": "533"
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  "last_updated": "2023-07-14T18:45:37.060516+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
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  "casebody": {
    "judges": [
      "Judges VAUGHN and MARTIN (Robert) concur."
    ],
    "parties": [
      "RAYMOND H. HUTCHINSON v. THOMAS HUTCHINSON"
    ],
    "opinions": [
      {
        "text": "WELLS, Judge.\nWe first note that the defenses asserted by defendant are of the nature which are properly asserted in an answer. See G.S. 1A-1, Rule 12. We next note that although the trial court apparently treated defendant's motion as a motion to dismiss pursuant to G.S. 1A-1, Rule 12(b)(6), the judgment indicates that the trial court considered, in addition to plaintiffs complaint and defendant\u2019s motion, a deposition and interrogatories and answers to interrogatories. Under these circumstances, it seems apparent that the trial court treated defendant\u2019s motion as a motion for summary judgment. Kessing v. Mortgage Corp., 278 N.C. 523, 533, 180 S.E.2d 823, 829 (1971).\nThe judgment, in pertinent part, reads as follows:\n1. Defendant has sufficiently pled the three year Statute of Limitations;\n2. The Complaint and the contract attached thereto and sued upon show that Plaintiff\u2019s right to institute an action for compensation under the contract for the calendar year 1975 arose on January 1,1976, and right to bring suit was barred on January 2,1979, in the absence of such action by the Defendant as would estop him from pleading the Statute of Limitations;\nNOW, THEREFORE, IT IS ORDERED, ADJUDGED AND DECREED that this action is, and the same is hereby, involuntarily dismissed, with prejudice.\nPlaintiff argues that G.S. 1-47(2), the ten year statute of limitations, applies to this action, and that therefore the judgment against him was erroneous and improvidently entered. Defendant concedes that if the three year statute, G.S. 1-52(1) does not apply, the judgment is in error.\nThe judgment of the trial court was in error. First, we hold that the contract between plaintiff and defendant is an \u201cinstrument\u201d as that term is used in G.S. 1-47(2). See Rose v. Materials Co., 282 N.C. 643, 194 S.E.2d 521 (1973). Second, we hold that there is no ambiguity in the wording of the contract as to the intent of the parties that it be under their respective seals, Oil Corp. v. Wolfe, 297 N.C. 36, 252 S.E. 2d 809 (1979), and that plaintiff\u2019s right to bring his action is governed by the provisions of G.S. 1-47(2), not G.S. 1-52(1). It is unnecessary for us to reach or determine plaintiffs other assignments of error.\nThe judgment of the trial court is\nReversed.\nJudges VAUGHN and MARTIN (Robert) concur.",
        "type": "majority",
        "author": "WELLS, Judge."
      }
    ],
    "attorneys": [
      "Beal & Beal, P.A., by Beverly T. Beal, for the plaintiff appellant.",
      "Tate, Young & Morphis, by E. Murray Tate, Jr., for defendant appellee."
    ],
    "corrections": "",
    "head_matter": "RAYMOND H. HUTCHINSON v. THOMAS HUTCHINSON\nNo. 8025SC480\n(Filed 2 December 1980)\nLimitation of Actions \u00a7 4.6\u2014 sealed contract \u2014 10 year statute of limitations applicable\nThe parties\u2019 contract for the management and division of profits of a business was an instrument within the meaning of G.S. 1-47(2), and the contract was under seal so that the 10 year statute of limitations applied in plaintiffs action to recover his full share of the profits of the business for the year 1975.\nAPPEAL by plaintiff from Grist, Judge. Judgment entered 7 January 1980 in Superior Court, CALDWELL County. Heard in the Court of Appeals 12 November 1980.\nPlaintiff Raymond H. Hutchinson initiated this action by the filing of a complaint in which he alleged that plaintiff and defendant, Thomas Hutchinson, had entered into a contract involving the management and division of profits of a business enterprise. A copy of the contract was attached to the complaint and it was incorporated in the complaint by reference. The concluding paragraph in the contract is as follows:\nIN TESTIMONY WHEREOF, said parties hereto do hereunto set their hands and seals in duplicate originals one of which is retained by each of the parties hereto the day and year first above written.\nThe contract was signed by plaintiff and defendant. Following each signature the word \u201cSEAL\u201d appeared in parentheses. The contract was dated 29 January 1966 and was not limited as to duration. Plaintiff alleged that defendant had breached, the agreement by denying plaintiff his full share of the profits of the business for the year 1975.\nDefendant\u2019s responsive pleading was a motion, in which he moved that the \u201cmatter be dismissed as a matter of law\u201d. In his motion, defendant asserted four defenses: the statute of limitations as set forth in G.S. 1-52(1); accord and satisfaction; estoppel; and laches.\nNo other pleadings or motions appear in the record. On 7 January 1980, the trial court entered judgment for defendant, dismissing the action with prejudice.\nBeal & Beal, P.A., by Beverly T. Beal, for the plaintiff appellant.\nTate, Young & Morphis, by E. Murray Tate, Jr., for defendant appellee."
  },
  "file_name": "0687-01",
  "first_page_order": 713,
  "last_page_order": 716
}