#### A. L. JACKSON and L. G. COOPER, Receivers, v. INTERNATIONAL HARVESTER COMPANY et al.

(Filed 1 October, 1924.)

1. Evidence — Nonsuit—Trials.

Upon a motion to nonsuit upon tbe plaintiff’s evidence, tbe evidence must be viewed in tbe light most favorable to tbe plaintiff.

2. Limitation of Actions — Actions—Principal and Agent.

Tbe burden of proof is on tbe plaintiff to show that bis cause of action is not barred by tbe statute of limitations wben tbe defendant sets up tbis plea as a bar thereto; and where a principal has been sued, and after tbe statute has run against his agent, tbe plea of tbe statute is available to tbe latter.

*276Appeal by plaintiffs from Demids, J., at May Term, 1924, of Pitt.

Civil action to recover for an alleged breach of warranty and fraud in tbe sale of an automobile truck.

Prom a judgment of nonsuit entered at tbe close of all tbe evidence, plaintiffs appeal.

P. R. Sines and, Julius Brown for plaintiffs.

F. G. James & Son and S. 0. Garter for defendants.

Stacy, J.

Without stating tbe facts, wbicb are somewhat complicated and make a rather long story, we are convinced, from a careful perusal of tbe record, viewing tbe evidence in its most favorable light for plaintiffs, tbe accepted position on a motion to nonsuit, that tbe case was properly dismissed or nonsuited.

Suffice it to say, tbe action was originally instituted against tbe International Harvester Company of America as sole defendant. Upon the trial, plaintiffs’ counsel, Mr. Hines, learning that bis witnesses would not say they were agents of .the defendant as be bad been led to believe they would, stated that be “looked around and saw be was in a bad fix” — meaning that plaintiffs were thereby unable to prove their case; whereupon he asked tbe court to order a mistrial and allow him to bring said witnesses in and make them parties defendant, to tbe end that be might charge them with fraud in the sale of said truck and also with breach of warranty. This was done, but not until four and a half years after the alleged cause of action for breach of warranty arose.

There was no evidence of any fraud on the second hearing, from which this appeal is prosecuted. The following is taken from the record: “In answer to an inquiry from the court, attorneys for plaintiff stated that they didn’t consider there was sufficient evidence of fraud to submit such an-issue to the jury.” The new defendants interposed a plea of the statute of limitations in bar of plaintiff’s right to recover as against them. The trial court held the plea to be good, and this ruling must be approved. In the face of such a plea the burden was on the plaintiffs to show that the suit, as against the defendants making the plea, was brought within three years from the time of the accrual of the cause of action against them, or that otherwise it was not barred. Rankin v. Oates, 183 N. C., 517; Tillery v. Lumber Co., 172 N. C., 296. Having failed to make out a valid cause of action against any of the defendants, the judgment of nonsuit was properly entered.

Affirmed.