Imágenes de páginas
PDF
EPUB

by the sheriff, is not ipso facto a payment of the judgment upon which the execution issued; nor can it be considered paid until there be an actual payment, or a final appropriation of the money, so as to enable the defendant to resort by action to a co-defendant or a cosurety, for contribution; and in such cases the statute then only begins to run.1

1 Lytle v. Mehabby, 8 Watts (Penn.), R. 267; Rodman v. Hedden, supra. [In Massachusetts, where it is provided by statute, that an equity of redemption may be sold on execution, and that a bill in equity to redeem the same may be brought within one year after the sale, the time is to be reckoned from the actual sale, and not from the commencement of the levy. Houghton v. Field, 2 Cush. (Mass.), 141. The tenant is liable to his landlord for mesne profits when he surrenders possession, and from that time the statute runs. Doe v. Jones, 6 B. Mon. (Ken.), 388. For other cases illustrative of the question as to when the cause of action accrues, see post, Ch. XXVII.]

CHAPTER XIII.

TORTS QUASI EX CONTRACTU.

§ 136. It has been before shown, that the action of assumpsit will, in all cases, lie for damages resulting from torts quasi ex contractu, such as malfeasance, misfeasance, and non-feasance. The rule in such cases is, that the cause of action arises immediately on the happening of the default, and is not postponed to the damage thereby occasioned. It is true, that Lord Kenyon said, in an action against an attorney for a defect in the memorial of an annuity, arising from his negligence, by which the plaintiff lost the benefit of his annuity, and the money paid for the same, that the inclination of his opinion was (though he had not made up his mind upon it), that the plea of the statute was insufficient, on the ground that the damage was within six years.2 But the law has since been well settled in England, agreeably to the rule above stated, and in this country also. Thus, in England, in an action against an attorney for negligence in not investing the plaintiff's money on a good security, the default having happened more than six years before the action was brought, it was held, that the remedy was barred, though the discovery of the default was within six years. The same principle was enforced in a case in the Supreme Court of New York. In this case, the defendant had agreed to remove his goods from a warehouse in 1803, but neglected to do so; and in consequence of which, the plaintiff, in 1806, was obliged to pay damages to the person to whom he had sold it. The cause of action, it was determined, accrued when the defendant neg

1 See ante, Ch. IX. § 71.

2 4 Esp. R. 18.

3 Brown v. Howard, 4 Moore, R. 508; s. c. 2 B. & Bing. R. 73. Other English cases, Howell v. Young, 5 Barn. & Cres. R. 259; Battley v. Faulkner, 3 Barn. & Ald. R. 288. [Cook v. Rives, 13 S. & M. (Missis.), 328. But in Pennsylvania it has been recently held, that the statute does not begin to run till the negligence comes to the knowledge of the client. Derrickson v. Cady, 7 Barr (Penn.), 27. And see post, § 139.]

lected to remove the goods, in 1803, and not when the plaintiff was obliged to pay damages in 1806.1

§ 137. The gist of an action of assumpsit for the violation of a special contract, is the breach of such contract, and not any resulting, or collateral damage occasioned thereby. The statute runs, therefore, from the time when the contract is broken, and not from the period when any damage arising therefrom is sustained by the plaintiff; and although such damage accrue within six years, the action is defeated by the statute, if the contract was broken beyond that period. Where A, under a contract to deliver spring wheat, delivered to B winter wheat; and B having again sold the same as spring wheat, had, in consequence, been compelled by action to pay damages to his vendee, and afterwards sued A in assumpsit, for his breach of contract, alleging, as a special injury, the damages so recovered; it was held, that although the special damage occurred within six years, yet, as the breach of the contract had happened, and was known to B more than six years before that period, the statute of limitations was a bar to his action. In this case, Mr. Justice Bailey said, "that this was an action for a breach of contract, and the cause of action arises at the time when the contract is broken. Since that time certain damages have resulted from that breach of contract. The breach of the contract, however, is the gist of the action, and the special damage is stated merely as a measure of the damages resulting from that cause of action. One of the objects of the statute, was, that actions should be brought to trial at a period of time when the defendant could be prepared, with his witnesses, to meet the charge, which

1 M'Kerras v. Gardner, 3 Johns. (N. Y.), R. 137. [A agreed to sell the plaintiff's negro in another State, collect his hire, and on his return pay off a certain judgment. He returned to the State but did not pay off the judgment, and it was held, that the statute began to run against the plaintiff's demand upon him, at the time of his return. Baines v. William, 3 Ired. (N. C.), 481. But where a sheriff collected part of an execution, but failed to indorse the amount thereon, and afterwards collected the whole, but, upon the representation of the execution debtor that he had already paid a part, promised, if it were so, to refund the amount previously paid, it was held, that the statute of limitations began to run from the time of the promise, and not from the time of receiving the money, or from the time of the failure to pay it over. Tarkington v. Hassell, 5. Ired. (N. C.), 359.]

2 Howell v. Young, 5 Barn. & Cres. R. 259; Rankin v. Woodworth, 3 Penn. R. 48. [Smith v. Fox, 6 Hare, 386; s. c. 12 Jur. 130.]

8 Battley v. Faulkner, 3 Barn. & Ald. R. 288.

[ocr errors]

would not be the case if the action might be postponed to an indefinite period." He then put the following case, to show what the consequences might be, if the party was bound only to sue out his writ, at the time when the measure of damages was ascertained, and not when the contract was broken. "Suppose the present plaintiff had sold the wheat to S and he had sold it again to A, and A to B, and B to C; then suppose C to wait for five years, and then to bring an action against B and recover; and that at the end of five years more B should bring an action against A, and that A at the end of another five years, brought an action against S, and that S took five years more before he brought his action against the present plaintiff. Then each party having acquired a new five years after the original transaction, brings an action against the present defendant." It was by putting an extreme case, he said, that the propriety of a rule was often tried.1

1 [The doctrine as stated in the text has been recently applied in what the court thought a case of extreme hardship upon the plaintiff. The facts were, that the defendant had contracted to sell the plaintiff a quantity of salt, but the salt having been destroyed, upon the plaintiff's demand for delivery, the defendant purposely prolonged negotiations till the statutory limitation for bringing the action had expired, and then refused, whereupon the plaintiff brought suit. It was held, that the action was barred, and that it should have been brought within six years from the demand, as the non-delivery at that time was a breach of the contract. East India Co. v. Paul, 1 Eng. L. & Eq. 44. Lord Campbell, who delivered the opinion of the court, held the following language::- “It would have been very satisfactory to us if, consistently with the rules of law, we could have found evidence to show that any cause of action stated in the declaration arose to the plaintiff within six years before the commencement of his suit. There seems no doubt that the defendants have broken their contract with him, and that if he had commenced his action against them in February, 1832, instead of agreeing to the inquiry, which was conducted so tediously, he would have been entitled to damages equivalent to the salt which remained undelivered. But this inquiry, through the fault of the company's servants, was not terminated till the 16th May, 1838. Almost as soon as the final refusal of the company to return any part of the purchase-money was communicated to the plaintiff, he commenced the present action. It will, therefore, be an extreme hardship on him, if, by reason of this delay, which they occasioned, they may successfully defend themselves by pleading the statute of limitations. But it is the duty of all courts of justice to take care, for the general good of the community, that hard cases do not make bad law. Upon the special counts of the declaration, the cause of action disclosed is the refusal to deliver the residue of the salt purchased and paid for. When did this accrue? From that point of time the statute of limitations began to run, and when it once began to run nothing could stop it, so that, in six years thereafter, the right of suit was barred. The rule is firmly established, that in assumpsit the breach of contract is the cause of action, and that the statute runs from the time of the breach, even where there is fraud on the part of the defendant. That is laid down in Battley v. Faulkner, 3 B. & Ald. 288; Short v. Macarthy, id. 626; and Brown v. Howard, 2 Br. &

§ 138. Where a note was indorsed by the holders to a bank for collection, whose notary negligently omitted to charge a prior indorser, by giving notice of non-payment, and the bank was sued by their indorsers for neglect, and compelled to pay damages; it was held, in an action of assumpsit against the notary, that the cause of action arose immediately on the omission. The bank, therefore, not having sued till more than six years after, were barred by the statute. And this, though the former suit and recovery thereon against, and payment of damages by the bank to the holders, were all within six years of the suit against the notary.1

§ 139. A promissory note was, by the plaintiff, placed in the hands of an attorney for collection, and the circumstances of his management were, that he instituted an action of assumpsit thereon against the drawer on the 7th of May, 1820, but neglected to do so against the indorser. The drawer proved insolvent. On the 8th of February, 1821, the attorney sued the indorser, but committed a fatal mistake by a misnomer of the plaintiff; upon which, after passing through the successive courts of the State, the judgment of nonsuit was finally rendered against the plaintiff. Before that time, the action against the indorser was barred by the statute of North Carolina (the time being three years), on the 9th November, 1822. The suit was instituted on the 27th January, 1825. The questions in the case were, whether the statute commenced running when the error was committed in the commencement of the action against the indorser; or whether it commenced from the time that the damage was developed and became definite. It was held, that the statute began to run from the time of committing the error by the misnomer in the action against the indorser.2 The same was held in an action against an attorney for negligence in Alabama.3

§ 140. In an action on a bond given for the liberty of the jail yard, in which there was proof of two breaches, at different periods,

B. 73. When the plaintiff tried to obtain the 10,000 maunds of salt, and he was told by the agents of the company that there was no salt in the golahs to deliver to him, the contract was undoubtedly broken, and the cause of action had accrued."]

1 Bank of Utica v. Childs, 6 Cowen (N. Y.), R. 238. And see also, Niagara Bank

v. Plumb, 9 Wend. (N. Y.), R. 287; [The Governor v. Gordon, 15 Ala. 72].

2 Wilcox v. Executors of Plummer, 4 Peters (U. S.), R. 172.

3 Murdis v. Shackelford, 4 Ala. R. 495. [But see ante, § 136, note.]

[ocr errors]
« AnteriorContinuar »