Hudson v. Kimbrough , 74 Miss. 341 ( 1896 )

Woods, J.,

delivered the opinion of the court.

In a limited and narrow sense, the relation subsisting between the attorney and client, as shown in the case at hand, in which is involved only the collection of a single claim, may be characterized as one of trust, but it is not of the class of express and continuing trusts covered by the principles announced in Livermore v. Johnson, 27 Miss., 284; Buckner v. Colcote, 28 Miss., 432; and Edwards v. Gibbs, 39 Miss., 166, which are cited by and relied upon by the learned counsel for appellant. This relationship of client and attorney is created by contract, and for any breach of duty under such contract the attorney is liable to his client, and such liability begins immediately upon the breach of the contract, and the statute of limitations begins to run from the date of the breach, ordinarily. Of course, if there was fraudulent concealment of this breach by the attorney, under § 2679, code of 1880, the statute would begin to run from the time of the discovery of the fraudulent concealment, or from the time when reasonable diligence would have discovered the fraudulent concealment.

Now, what are the facts as they are stated in the bill of appellant? These, namely: That a claim was placed in the hands of the attorney for collection, by appellant, and that, in April, 1883, the attorney collected one hundred dollars on said claim, but fraudulently concealed the fact of such collection from his client, and, in support of this charge of fraudulent concealment, certain allegations of the bill, which are admitted by the demurrer, are relied upon, viz.: (1) That in June, 1883, two months only after the collection of the one hundred dollars had been made, he wrote his client that no collection had been made, though the land had been sold (as the necessary implication from this letter, and a former one, dated March, 1882, both being made exhibits to the bill, sold at execution sale to satisfy the client’s judgment obtained on the claim held by the attorney for collection, and for cash), but that the bidder at the sale had not yet paid the purchase price; and (2) that during the session of the legislature of this state, of 1884, which we judicially know began very early in the month of January of that year, the attorney again, in person, informed his client that nothing had been collected, but that when he (the attorney) returned home he would collect the judgment and remit, but, the petition avers, the attorney never did remit, and he did not enter any credit upon the judgment roll of the proper county, in which judgment was rendered, and in which the collection was made.

The further facts are, that the attorney died in March, 1889, without remitting the collection, and without any further communication in reference thereto, and that the claim of appellant, on which this suit is based, was probated against the deceased attorney’s estate, on the second day of March, 1891, when the running of tie statute of limitation was thereby arrested.

We thus have a period of about seven years and two months from the date of the last false and fraudulent statement made in Jackson in January, 1884, to the date of the probate of the claim in March, 1891, without any efforts on the client’s part to discover the fraudulent concealment of the collection by the attorney. It goes almost without saying that the client is entitled to a reasonable time within which to move to discover the fraudulent conduct of the attorney; but it goes also equally without saying that the client cannot wait indefinitely, through all the remainder of the attorney’s life, and two years afterward, before reasonable diligence will require him to begin to examine and inquire. Here we have in this case a client, for four years and two months after the bar of the statute would, in ordinary cases have been complete, doing absolutely nothing to discover the fraudulent concealment. But the dilatoriness of the client is even worse than that. Knowing that a j udgment had been obtained on his claim held by his attorney for collection, he actually did nothing to ascertain what had been done with his judgment for more than seven years after the last act of fraudulent concealment until he probated his claim and suspended the running of the statute. In other words, he did nothing until the very judgment obtained by his attorney on the claim had itself been barred by the statute.

The question we are considering is examined in the very early case of Stafford v. Richardson, 15 Wend., 302, and in the later cases of Downey v. Gerard, 24 Pa. St., 52, and Campbell’s Admr. v. Boggs, 48 Pa. St., 524, and the opinions in these cases were in line with the views we have advanced. The opinion in the last named case is singularly lucid, logical and convincing, leaving little or nothing further to be said. The still later case of Rhines v. Evans, 16 P. F. Smith (Pa.), 192, follows Campbells Admr. v. Boggs, and, in the application of the principles of law to the facts of Rhines’ case, illuminates our way in the case before us. But there is no room for contention in this state, in view of what was said and held in Cook et al. v. Rives, 13 Smed. & M., 328. The conclusion of the court in that case that even fraudulent concealment, by an attornej'', of the cause of action would not take a case out of the statute, will no longer be followed now, because the exception of fraudulent concealment is engrafted on our present statute of limitations in express terms, and we give effect to the present statute as written. We hold, however, that on the facts disclosed by the transcript before us, reasonable diligence to discover the fraudulent concealment is not shown, and the bar of the statute applies.

Affirmed.