Browder v. Dacosta ( 1925 )

In December, 1903, C. W. DaCosta entered into contract with R. J. Riles for the sale and purchase on the part of Riles of certain property in Duval County. J. M. Barrs represented DaCosta in the transaction. The sale was consummated and Riles paid Barrs as attorney for DaCosta cash and notes aggregating $19,189.54, after making certain disbursements as shown by statement made by Barrs to DaCosta January 27, 1904.

C. W. DaCosta died September 15, 1911, and W. W. Frazier was appointed his administrator. October 4, 1912, Frazier as administrator made demand on Barrs for the balance due the estate of DaCosta as shown by Barrs' statement, and suit was brought June 26, 1913. The declaration was filed August 4, 1913, and is in three common counts for money loaned, money received and accounts stated.

Barrs pleaded the general issue, the 2, 3, 4 and 5-year statute of limitations and payment to all counts. Demurrer to the two-year plea of statute of limitations was sustained and issue was joined on the pleas of general issue and payment February 2, 1914. In October, 1916, plaintiff filed replications to the pleas of the 3, 4 and 5-year statute of limitations. Demurrer to all these replications was overruled except as to the 3, 4 and 5-year pleas to the first count. In November, 1917, defendant filed his rejoinder denying the existence of the relation of attorney and client as charged, that he held any funds of DaCosta as trustee and that he was ever the attorney in fact for said DaCosta.

In November, 1919, Barrs' death was suggested and his executrix plaintiff in error was impleaded. Subsequent to the death of Barrs, the original plaintiff died and the present plaintiff as administrator de bonis non was substituted. Charles S. Adams, the original referee, also died, and John E. Hartridge was appointed, who, after hearing the evidence and argument of counsel, entered judgment for plaintiff in the sum of $47,916.60 as damages, the amount of principal and interest to date of finding, and $42.43 costs. Writ of error is taken to this judgment.

The main question brought here for our determination is whether or not the statute of limitation run against the claim of a client upon his attorney for money collected by such attorney in behalf of said client.

Plaintiff in error argues the affirmative of this question. The rule seems well settled that in current transactions where a client sends his attorney claims and other obligations to realize on and collections are made by the attorney and remittances are withheld beyond the statutory period, the statute of limitations will run against them. There is a wide difference of opinion as to when the statute begins to run in such cases. Some hold that where there has been no fraudulent concealment of its receipts the statute attaches at the time of collections while others hold that it runs from the time knowledge of the receipt of the money by the attorney is brought home to the client, and still others hold that there is no right of action against an attorney for money collected and the statute does not begin to run until demand or refusal to pay has been made.

These latter cases are grounded on the theory that an attorney's liability rests on the principle of agency for his client and that it would be in opposition to the nature of the trust imposed by his agency to hold him liable in an action for money collected by him until after refusal on his part to pay it over. 17 R. C. L. 768; Douglas v. Corry, 46 Ohio St., 349, 21 N.E. Rep. 440, 15 Am. St. Rep. 604 and Note; Rhines v. Evans, 66 Pa. St. 192; Goodyear Metallic Rubber Co. v. Baker's Estate, 81 Vt. 39, 69 Atl. Rep. 160, 17 L.R.A. (N.S.) 667 and Note; Ott v. Hood, 152 Wis. 97,139 N.W. Rep. 762, 44 L.R.A. (N.S.) 524, and Note.

In Goodyear Metallic Rubber Co. v. Baker's Estate, 81 Vt. 39,69 Atl. Rep. 160, 17 L.R.A. (N.S.) 667, 15 Ann. Cas. 1207, Note 1208, the prevailing rule is stated as follows: The rule adopted by the greatest number of jurisdictions is that, in the absence of misrepresentation or fraudulent concealment on the part of the attorney, the statute of limitations begins to run against an action by a client to recover money collected by his attorney from the time the collection is made or from the expiration of a reasonable time after the attorney receives the money. 17 R. C. L. 768. (See also a complete list of cases cited in Note Goodyear Metallic Rubber Co. v. Baker's Estate, 15 Ann. Cas. 1207, 17 L.R.A. (N.S.) 667, and Ott v. Hood, 44 L.R.A. (N.S.) 524, supra.)

It seems to us that the circumstances of this case lift it out of the rule applicable to the attorney in whose hands an ordinary account is placed for collection. C. W. DaCosta and Mr. Barrs had long prior to the transaction involved been intimate friends. At the time of the transaction they were living in the same apartment and Barrs, representing DaCosta, negotiated the sale by DaCosta to Riles. The entire proceeds of the sale were paid by Riles to Barrs as attorney for DaCosta, and after making certain disbursements Barrs rendered a full statement to DaCosta showing the balance due, or net proceeds. DaCosta left immediately for Tennessee for his health, where he remained two or three years, when he returned to Jacksonville and took up his residence in close proximity to Barrs. They (DaCosta and Barrs) continued to be warm friends and constant companions up to the time of DaCosta's death in 1911. It does not appear that DaCosta ever made demand on Barrs for the net proceeds of the sale to Riles, but it does appear that throughout all these years Barrs was the attorney and close personal friend and confidant of DaCosta.

This statement of facts seems to be sufficient to constitute Barrs the agent or voluntary trustee of DaCosta. That is to say, the obligation of Barrs to DaCosta was one arising out of personal confidence reposed in and voluntarily accepted by him (Barrs). There is no showing that the trust reposed in Barrs has been repudiated by him and until this is done the statute of limitations must remain inoperative in all those jurisdictions where it is otherwise effective. 17 R. C. L. 794, 958; Norton v. Bassett, 154 Cal. 411, 97 Pac. Rep. 894, 129 Am. St. Rep. 162; Story's Equity Juris. §§ 310, 311. In our State under the holding here announced Section 2927, Revised General Statutes of Florida, 1920, makes the statute of limitations inapplicable.

The judgment of the court below is therefore affirmed.

WEST, C. J., AND WHITFIELD AND STRUM, J. J., concur.