#### NORTH CAROLINA COTTON GROWERS CO-OPERATIVE ASSOCIATION v. J. W. TILLERY.

(Filed 28 October, 1931.)

1. Agriculture E c — In this case held: evidence failed to show that marketing association sold prior to time stipulated in contract.

In an action brought by the Cotton Cooperative Association against one of its members to recover an amount alleged to have been overpaid the member on his cotton, the member admitted the overpayment but set up a counterclaim alleging that the association was to sell his cotton in its “long pool” and that the .discretion of the association was limited under the contract to selling in a period of time not less than four nor more than twenty-four months from date of delivery, and that the association sold prior to the expiration of the four months, resulting in loss to the member, but the only evidence introduced by the member in support of the counterclaim was the report of the average price of cotton during the period, Held: the evidence created only a conjecture or speculation as to whether the association had sold the cotton prior to the expiration of the four months, and a directed verdict for the plaintiff was not error.

2. Appeal and Error J g — Where answer to one issue determines controversy exceptions relating to other issues are immaterial.

Where the verdict of the jury upon one issue determines the rights of the parties it is not necessary to consider exceptions relating to another issue, SemWe: where a counterclaim setting up a separate and distinct cause of action is alleged in an amended answer the statute of limitations runs until the filing of the amended answer containing such new matter.

Civil action, before Moore, Special Judge, at March Term, 1931, of Wake.

It was alleged by the plaintiff and evidence was offered in support of the allegations, that during the year 1925 the defendant pooled a certain quantity of cotton with the plaintiff to be sold by the plaintiff in the same manner as the cotton of all other members was marketed. It was further alleged that in making settlement for the 1925 crop the plaintiff had overpaid the defendant in the sum of $5,097.90, and this action was instituted for recovery of such overpayment. The suit was instituted on 16 April, 1929. The defendant filed an answer in November, 1929, setting up a counterclaim, based upon the theory that the plaintiff in violation of the agreement to hold the cotton of defendant in the “long pool” sold the same in March, 1926, when the market was low, whereas, at a later date the price of cotton had increased to approximately twenty cents a pound, and that, as a result thereof, the defendant suffered a loss of a large amount of money by reason of failure of plaintiff to exercise reasonable diligence, skill and care in marketing *532tbe crop of defendant member, and in violation of tbe agreement between tbe parties. Thereafter on 18 November, 1930, tbe defendant filed an amendment to tbe answer amending tbe counterclaim so as to claim damages for tbe failure of plaintiff to market tbe 1926 crop of cotton. To tbe amended answer tbe plaintiff filed a reply pleading tbe statute of limitations. At tbe trial tbe defendant admitted that be was indebted to tbe plaintiff in tbe sum of $5,097.90 and interest thereon, thus narrowing tbe controversy to a determination of tbe counterclaim set up in tbe amended answer. Tbe evidence tended to show that on 3 December, 1926, tbe defendant, who was a member of plaintiff Market Association signed an agreement placing bis cotton with tbe plaintiff and directing that bis 1926 crop be placed in tbe “long pool,” to be marketed in a period of time, probably six to twenty-four months in tbe discretion of tbe directors.” Tbe plaintiff sold tbe cotton from time to time, sending accounts of sale to tbe defendant, but it appears that tbe defendant lost these accounts or they were destroyed by fire. Tbe cotton was shipped in September and on 22 July, 1927, tbe plaintiff sent a statement of tbe settlement to tbe defendant of tbe 1926 cotton crop. This statement shows that tbe cotton was sold in lots from time to time for various prices, tbe lowest price that any lot brought being apparently .1004 cents per pound and tbe highest price being apparently .1623 cents per pound. There was nothing to show tbe grade of tbe cotton except that 199 bales were below middling, and that tbe average price was thirty-three points below middling. Tbe defendant attempted to prove tbe price of cotton by offering evidence of tbe average price of cotton during tbe various months of 1927 as shown by tbe tabulated report kept by Barbee and Company, cotton brokers of Baleigb. Tbe defendant further offered a bulletin showing tbe monthly price for cotton for tbe year 1927, published by tbe Department of Agriculture of North Carolina.

Tbe following issues were submitted to tbe jury:

1. “In what amount, if any, is tbe defendant indebted to tbe plaintiff by virtue of tbe matters alleged in tbe pleadings in this action?”

2. “In what amount, if any, is tbe plaintiff indebted to tbe defendant on bis alleged counterclaim?”

3. “Is tbe defendant’s alleged cause of action set out in bis counterclaim barred by tbe statute of limitations?”

Tbe trial judge instructed tbe jury to answer tbe second issue “nothing,” and tbe third issue “yes.”

From judgment upon tbe verdict tbe defendant appealed.

Burgess & Baker and Biggs & Broughton for plaintiff.

E. L. Travis for defendant.

*533BeogdeN, J.

Tbe contract between tbe parties witb respect to tbe 1926 cotton crop of defendant specified tbat tbe cotton was to be placed in tbe “long pool,” to be marketed in a period of time, probably six to twenty-four months in tbe discretion of tbe directors.” Tbe defendant contends tbat tbe “discretion of tbe directors” was limited by tbe language of tbe contract so tbat tbey could not sell in less tban six months and must sell within twenty-four months. Conceding, though not deciding, tbat tbe interpretation of tbe contract urged by defendant, is correct, nevertheless it does not appear tbat tbe cotton was sold in less tban six months from tbe time it was placed in tbe long pool. All tbe record discloses is tbat a final statement was submitted by tbe plaintiff to defendant on 22 July, 1927. Hence it necessarily follows tbat tbe cotton was sold sometime prior to tbat date.

Tbe defendant, however, undertakes to establish tbe date of sale by attempting to offer evidence showing either tbe average price of cotton during tbe year 1927 on certain dates, or tbe monthly price of cotton during tbe year 1927, but such proof, at most, raises a haze of conjecture and a fog of speculation, and does not constitute evidence of tbe necessary and vital facts. Therefore, tbe instruction given by tbe trial judge on tbe second issue was correct.

As tbe ruling upon tbe second issue determines tbe merit of tbe controversy, it is not deemed necessary to decide whether tbe defendant’s counterclaim, set up in tbe amended answer, for damages sustained by tbe negligent handling of tbe 1926 crop, is barred by tbe statute of limitations. It is said in 37 C. J., page 1082, section 522, tbat: “Where a counterclaim or set-off is pleaded in an amended answer or plea, and not in tbe original, tbe statute runs against it until tbe filing of tbe amended answer.” This declaration of law finds direct and unequivocal support in Christmas v. Mitchell, 38 N. C., 535; Gill v. Young, 88 N. C., 58; Hester v. Mullen, 107 N. C., 724, 12 S. E., 447, and Sams v. Price, 121 N. C., 392, 28 S. E., 486. The theory upon which tbe decisions turn is tbat tbe amendment introduces a separate and distinct cause of action and such cause of action so alleged is subject to any and all legal defenses tbat tbe adverse party may interpose, including tbe statute of limitations. See, also, R. R. v. Dill, 171 N. C., 176, 88 S. E., 144; Jones v. Vanstory, 200 N. C., 582. Implications to tbe contrary may be deduced from Brumble v. Brown, 71 N. C., 513.

No error.