Opinion
June Term, 1850.
Where money had been received by an agent, a demand or a misapplication of the money is necessary before an action can be brought, and the statute of limitations only begins to run from the time of such demand.
APPEAL from the Superior Court of Law of PASQUOTANK, at Spring Term, 1850, Ellis, J., presiding.
Health for plaintiffs.
W. N. H. Smith for defendant.
This was action of assumpsit, brought to recover the sum of $61.19, with interest on the same from 15 March, 1842. The plaintiffs proved by their agent that on 15 March, 1842, the defendant received from them a note to collect as their agent; that the note was the property of the plaintiffs and was originally drawn payable to one.
For the purpose of repelling the plea of the statute of limitations and showing the collection of the note by the defendant, the plaintiffs called a witness who swore that, as the attorney of the plaintiffs, he called on the defendant several times within three years before the beginning of this suit, and, in the name of the plaintiffs, demanded payment of the money; that the defendant said he had collected the money. This witness also stated that the defendant raised no objection to paying said money, and never pretended that he had ever paid, previous to that time, until the last time he called upon him, when he pretended that the plaintiffs had collected the amount of this claim from another person, against whom he had brought a suit. (78) He did not say in this conversation that he had paid the money himself, but that he was a surety with others of the persons sued, and that the said sureties paid the said claim. The witness said that this allegation of payment was made only in the last conversation they had on the subject, and that the said claim had not been collected in the said suit. The court charged the jury that, if they believed the witness, the plaintiffs were entitled to recover; that the words used by the defendant, when taken in connection with the other evidence, was an acknowledgment of an existing debt, from which the law would imply a promise. The jury returned a verdict for the plaintiffs. Defendant moved for a rule for a new trial. Rule granted and discharged. Judgment of the court was rendered, from which defendant prayed an appeal to the Supreme Court, which was granted.
It is deemed unnecessary to decide the question upon which the opinion of the judge below was given. From the statements of the case, the point did not arise. The plaintiffs had put into the hands of the defendant for collection a promissory note, and the action is brought for collecting the money and not paying it over. Among other defenses, the defendant relied upon the statute of limitations. The complaint is not for a breach of duty in collecting, not for undertaking and entering upon an agency, for a compensation, and then either failing to perform it, or performing it so negligently that an injury was sustained by the plaintiffs; but for the money secured by the note, which the plaintiffs allege the defendant had received. The plea of the statute of limitations assumes or admits that the money had been received by the defendant, but when it is accompanied by the general issue, as in this (79) case, it does not exempt the plaintiffs from the obligation to prove it. Accordingly, the plaintiffs did not rely upon this assumption, but gave in evidence the admission of the defendant that he had received it. The admission was made within three years next before the bringing of the action, and when, for the first time, as far as the case discloses, the money was demanded of him. The defendant was a collecting agent of the plaintiffs to receive the money. His reception, then, was a rightful one; and to give the plaintiffs a right of action for its detention a demand or evidence of the misapplication of the money was necessary ( Potter v. Sturges, 12 N.C. 79; White v. Miller, 20 N.C. 50; S. v. Sugg, 25 N.C. 96); and from the time of the demand the statute began to run. Strike out the admission of the defendant and the demand then made, and there was no evidence in the case that the money ever had been received by him or of any demand upon him. And according to that admission, the money might have been received by him the day before. The length of time in which the claim for collection has been in the hands of an agent may, under the circumstances, be evidence both of the collection of the money and its use by him. But the case does not state the length of time the note put into the hands of the defendant had to run, or whether it was then at maturity. We are merely informed that the money had been received by him, and that within three years before the bringing of the action, at which time also the demand was made. The statute never was set in motion, according to the case, until the time mentioned in the statute.
PER CURIAM. Judgment affirmed.
Cited: Carroway v. Cox, 44 N.C. 176; Comrs. v. Lash, 89 N.C. 168; Bryant v. Peebles, 92 N.C. 177; Moore v. Garner, 101 N.C. 378.
(80)