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that this last point was not made before the clerk. The case on appeal is as fully before the judge as if it had been originally returned before him. Ch. 276, Laws 1887, amending The Code, Sec. 255. See Clark's Code, 3d Ed., pp. 266, 267; Faison v. Williams, 121 N. C., 152, and cases there cited; Roseman v. Roseman, 127 N. C., at p. 497.

No Error.


(Filed April 21, 1903.)

1. LIMITATIONS OF ACTIONS—Accrual of Cause of Action— Vendor and Purchaser.

In an action to recover money paid for the purchase price of land, the statute of limitation begins to run at the time the payment is made, the vendor having had no title.

2. LIMITATIONS OF ACTIONS-Married Women-Trusts-Trustees—


Where the statute of limitation begins to run against a trustee or an undisclosed agent acting as principal, it is not suspended by the subsequent appearance of a married woman as cestui que trust or as the undisclosed principal.

3. LIMITATIONS OF ACTIONS-Fraud-Mistake-The Code, Sec. 155,

Subsec. 9.

That the title of land attempted to be conveyed by a mortgagor is a failure, is not such a mistake as to prevent the running of the statute of limitation.

PETITION to rehear this case, reported in 130 N. C., 62. Petition dismissed.

A. O. Gaylord and Shepherd & Shepherd, for the petitioner.

H. S. Ward and Battle & Mordecai, in opposition.

CLARK, C. J. This is a petition of the plaintiff to rehear this case decided, 130 N. C., 62, where the facts are stated.


Without further reconsidering the former opinion it is sufficient to say that the Statute of Limitations is a complete bar to the petitioner. Ayers bought in his own name and without disclosing any agency, and if he was in fact the undisclosed agent of Mrs. Barden, the statute began to run against him, and against her as well, whenever he had a right to recover back the money paid. If he ever possessed such right, he had it immediately upon payment by him of the money. The alleged cause of action is the sale by Stickney of land to which he had no title. Ayers claims that having paid the money without consideration the law raises an implied promise to repay it. That payment was made 30 January, 1888, and this action was not begun till 13 February, 1901.

If Ayers was trustee, instead of being the agent of an undisclosed principal, the same rule would apply, for the Statute of Limitations having begun to run against a trustee or an undisclosed agent who is acting as principal, it is not suspended by the subsequent coming forward of a married woman as cestui que trust or as the undisclosed principal. Among many cases it is sufficient to cite Miller v. Leigh, 35 Md., 396; 6 Am. Dec., 417; Huntingdon v. Knox, 7 Cush., 371; Traube v. Milliken, 57 Me., 63; 2 Am. Rep., 14; Clark on Cont., 742; Pollock on Cont., 228, noted and cases cited; Sims v. Bond, 5 B. & Ad., 393. An action for money had and received accrues immediately upon receipt of the money. Sweat v. Arrington, 3 N. C., 129; Wood Lim., 328; Bishop v. Little, 3 Me., 405; Furloy v. Stone, 12 R. I., 437.

This is an action to recover money, and not land, hence the statute runs from the payment of the money. The Code, Sec., 155 (9), has no application, for there is no evidence or allegation of fraud or mistake. Stickney sold the piece of land he intended to sell and under a bona fide belief that he had a legal right to do so. That he did not make a good title

Vol. 132-27


is not a "mistake" within the meaning of this section. Petition Dismissed.

CONNOR, J., having been of counsel did not sit on the hearing of this case.


1. NEGLIGENCE-Contributory Negligence-Issues-Questions for Jury. In an action for personal injuries, evidence being offered by the defendant to show contributory negligence and no evidence being offered by the plaintiff on that issue, such question is for the jury.

2. CONTRIBUTORY NEGLIGENCE-Negligence-Evidence-Sufficiency of Evidence.

In this action for personal injuries, the evidence is sufficient to justify the finding by the jury that the defendant is guilty of negligence and the plaintiff not guilty of contributory negligence.

3. NEW TRIAL-Verdict-Setting Aside Verdict-Jury-Presumptions-Findings of Court.

A refusal of a trial judge to set aside a verdict for the reason that a juror was alleged to have been asleep during the trial, will not be reviewed where the trial judge does not find the facts and it will be presumed that the refusal was warranted by the facts.

ACTION by H. N. Pharr, administrator, against the Atlanta & Charlotte Air Line Railway Company, heard by Judge Thomas J. Shaw and a jury, at January Term, 1903, of the Superior Court of MECKLENBURG County. From a judg ment for the plaintiff, the defendant appealed.

Jones & Tillett, for the plaintiff.

George F. Bason, for the defendant.

WALKER, J. The plaintiff's intestate was a brakeman in the employment of the defendant's lessee, the Southern Rail

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way Company, at the time he is alleged to have been killed by the negligence of the latter.. A freight train on its way from Spencer to Charlotte had reached a point on the line of the lessee's railway, called "The Junction," and it was the duty of the intestate at that place to uncouple the train between cars 20 and 21 for the purpose of having the cars of the rear section transferred to another track. In order to do so, it was necessary for the engineer to move the train back and slack on the pin so that it could be removed, and the intestate gave a signal to the engineer to come back, which he did, and the pin was removed with the lever. The intestate signaled the engineer to go forward, and then stepped between the cars "to put the air" on the rear section, which had started down the grade, and just as he "reached over the draw-bar" for this purpose, he was caught between the cars and thrown under the wheels of car 20 and killed.

The principal exception in the case relates to the charge of the court upon the second issue, there being no exception to the charge upon the first issue. The disputed question arising between the parties on the second issue was, whether, at the time the intestate went between the cars to apply the brakes to the rear section, the rear car of the first section was standing still or moving, it being conceded that if it was not moving at the time, the intestate was not guilty of negligence in going between the cars to apply the brakes and stop the rear section which was then moving down the grade in a northerly direction.

In the consideration of this question, it must be remembered that contributory negligence is an affirmative defense, expressly made so by statute, and consequently the burden is always on the defendant to establish it. It follows that if there is any evidence introduced by the defendant to sustain the plea, the jury must pass upon the credibility of the witnesses and the weight of the testimony, and this is true



even though the defendant introduced proof tending to show contributory negligence and the plaintiff offered no proof at all upon the issue. The law does not presume the existence of negligence or contributory negligence, and requires the party with whom is the affirmative of the issue to prove it by the greater weight of the evidence. In this case, therefore, if the defendant's evidence tended to show that the first section of the train was moving when the intestate went between the cars to apply the brakes, it was for the jury to pass upon this evidence and to accept or reject it. The jury were not bound to believe the witnesses of the defendant or required to find that there was contributory negligence until the defendant by the proof in the case had satisfied them that it did exist, and the plaintiff was not called upon to prove the negative of that issue. The laboring oar was with the defendant. The witness Russell was asked whether the front section of the train stopped, and replied that he did not know and could not say whether it did or not. In Edwards v. Railroad, 129 N. C., 78, this court ruled that the testimony of a witness that he did not hear the bell or whistle of an engine as it approached a crossing, he being in hearing distance, was proper evidence to be submitted to the jury upon the question whether the bell was rung or the whistle sounded, and was sufficient to establish a verdict in favor of the plaintiff, as it tended to establish the fact in issue in his favor. The testimony of the witness in that case was not essentially different from that of the witness Russell in this case. The latter was standing within a few feet of the train assisting the intestate and in full view of the cars, and testified that the rear section had moved back and down the grade, but that he did not know whether the front section moved or not. He had as good opportunity to know whether the front section was moving or not, when the intestate was between the cars, as he had with regard to the rear section, and the jury could well

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