dissenting.
I respectfully dissent because it appears unequivocally as a matter of law from the complaint, contract, pretrial order, and all the other documents of record, that the three-year statute of limitations, G.S. 1-52(1), had run before the plaintiff filed his lawsuit in the Superior Court upon a claim of breach of contract.
The undisputed facts show a contract entered into on 23 February 1973. By the terms of paragraph six, money benefits were:
To be paid to any member that retires on disability provided; he has qualified and is receiving disability payments under the Federal Social Security Law.
By the terms of paragraph seven:
*124The payments herein pledged are to be made within thirty (30) days of the . . . retirement of the member ....
The plaintiff received personal injuries in the line of duty in an automobile accident which resulted in his left leg being amputated on 20 February 1975. The plaintiff retired on disability on 30 June 1975. The Federal Social Security Administration found the plaintiff eligible and qualified for its benefits from 2 July 1973 through 31 December 1976. This lawsuit was filed on 18 December 1981. Applying these uncontroverted facts to the terms of the contract, I would hold that the payment to plaintiff should have been made within 30 days of his retirement. No payment was made. By 1 August 1975 the plaintiff knew the contract would not be performed. Nonperformance is a breach of contract which tolls the running of the statute of limitations. The plaintiff waited approximately 5 years and 6 months to file his action, and, therefore, it is barred by law.
Other facts show that on 25 July 1978 plaintiff requested a hearing before the Voluntary Pledge Committee seeking benefits. On 18 December 1978, after a meeting on 15 December 1981 in which the plaintiff testified, the Pledge Committee denied any benefit or relief to plaintiff. As I read the majority opinion it is this date of denial by the Committee which began the running of the statute of limitations. The action was filed in Superior Court on 18 December 1981, which is the last day of the 3 years from 18 December 1978. This position in my view overlooks the 5V2 years of known nonperformance.
There was no contractual duty to have a hearing, such as the one in December 1978, before filing the suit in Superior Court. Also, no administrative hearing to determine benefit eligibility was required because neither the contract nor the defendants come under the provisions of the Administrative Procedure Act, G.S. 150A-1 et seq. All the law required of this plaintiff in order to enforce the performance of this contract was to file his claim in court within three years. It is beyond our powers to inquire into how deserving the plaintiff may be or into whether the right or wrong conclusion was reached in the December 1978 Pledge Committee meeting. Likewise, it becomes immaterial and unnecessary for us to consider the defendants’ other exceptions and assignments of error, such as, whether the North Carolina State *125Highway Patrol Voluntary Pledge Committee is a legal entity, and whether estoppel, waiver, or failure to join necessary parties may apply in this case.
Briefly, the case law which supports this dissent may be found in Acceptance Corp. v. Spencer, 268 N.C. 1, 149 S.E. 2d 570 (1966); Sechrest v. Furniture Co., 264 N.C. 216, 141 S.E. 2d 292 (1964); Lewis v. Shaver, 236 N.C. 510, 73 S.E. 2d 320 (1952); Hall v. Hood, 208 N.C. 59, 179 S.E. 27 (1935); Gordon v. Fredle, 206 N.C. 734, 175 S.E. 126 (1934); Mast v. Sapp, 140 N.C. 533, 53 S.E. 350 (1906); and see also 3 Strong, N.C. Index 3d, Contracts, § 21.1, p. 416. In substance, these cases hold that the cause of action begins to run when the breach occurs, that nonperformance of a contract constitutes a breach, and that a party is immediately at liberty to sue for breach for nonperformance. As was said in Lewis v. Shaver, supra, at 513, 73 S.E. 2d at 322, “the mere lack of knowledge of the facts constituting a cause of action does not postpone the running of the statute.”
I would vote to reverse.