Brady v. Garrett , 66 S.W.2d 502 ( 1933 )

On Motion for Rehearing. Appellants, in their motion for rehearing, insist that in our former opinion we did not take into consideration some of the important matters urged by them, and, for example, they refer to the plea of limitation and to the plea of laches.

As regards the question of limitation we think we very clearly passed upon that question and in disposing thereof we said: "The assignments raising the question of the statute of limitations are therefore overruled." We fail to see how we could have been more explicit.

The question of laches, while being included in appellants' proposition No. 3, along with the question of the two-year statute of limitations, was not stressed in their brief with the same force with which the question is here presented, and we felt that our discussion on the question of limitations was sufficient.

In order that there may be no doubt as to our position on the question of laches as applied to this case, we have decided to write specifically on that question.

"Laches" is inexcusable delay in asserting a right; an implied waiver arising from knowledge of existing conditions and an acquiescence in them; such neglect to assert a right as, taken in conjunction with lapse of time, more or less great, and other circumstances causing prejudice to an adverse party, operates as a bar in a court of equity; such delay in enforcing one's rights as works disadvantage to another. 21 C.J. § 211, pp. 210, 211.

It is generally accepted that the doctrine of laches is, not like limitation, a mere matter of time, but is principally a question of the inequity of permitting a claim to be enforced; this inequity being founded on some change in the condition or relations of the property or the parties. Since lapse of time has a tendency to obscure evidence, and often makes it impossible to discover the truth, it is, of course, one of the elements to be considered by the court in applying laches to stale claims, but it is only one, and while important, it is not ordinarily the controlling or most important one. Hence, it has been said, laches in legal significance is not mere delay, but delay that works a disadvantage to another. 10 R.C.L. § 143, p. 396.

On this question we find the following announcement in 21 C.J. § 219, pp. 223-225: "To constitute a defense, the delay must have been such as practically to preclude the court from arriving at a safe conclusion as to the truth of the matters in controversy, and thus make the doing of equity doubtful or impossible, as through loss, or obscuration of evidence of the transaction in issue, or there must have occurred in the meantime a change in conditions that would render it inequitable to enforce the right asserted, or, as commonly phrased, the delay must have worked injury, prejudice or disadvantage to defendant or others adversely interested, or plaintiff must have abandoned or waived his right, or acquiesced in the assertion or operation of the adverse right, or lost his own by estoppel; or sufficient time must have elapsed to create or justify a presumption against the existence or validity of plaintiff's right; or a presumption that if plaintiff was ever possessed of a right, it has been abandoned or waived or has been satisfied, or that in consequence of the delay the adverse party would be inequitably prejudiced by the enforcement of the right asserted. There are indeed cases in which the courts have apparently or avowedly applied the doctrine of stale demand in its strict sense, and have denied relief because of mere delay on the part of plaintiff in seeking to enforce his rights. Read in the light of the peculiar facts under consideration, however, as all judicial opinions must be read, such decisions may be explained and harmonized on one theory or another with the prevailing rule that mere delay does not of itself bar equitable relief."

In accord with the above rules, the mere lapse of time here would not alone prevent the action by appellee.

From the fact that the pistol came into the hands of Powers under a contract of bailment and that it was used for about fourteen years thereafter for the purposes for which it had been loaned to him, we do not feel that the delay here was such as to practically preclude the court from arriving at a safe conclusion as to the truth of the matter and doing equity therein; that there was such a change in conditions as would render it inequitable to enforce Mrs. Garrett's rights to the pistol in question; that the delay was not sufficient to indicate that she had abandoned her right to the pistol; and, in the absence of a showing that she had knowledge of an adverse claim by Powers, she could not be said to have acquiesced in his claim of ownership.

It is contended, however, by appellants that the record shows knowledge on the part of Pat Garrett of an adverse claim by Powers, and that, he being Mrs. Garrett's agent, such knowledge should be and will be imputed to her.

The rule imputing notice is based upon the theory that it is the duty of the agent to communicate to his principal the knowledge possessed by him relating to the subject-matter of the agency, material to the principal's protection and interests, and the presumption that he has performed this duty. Mechem on Agency (2d Ed.) § 1815, p. 1399, and also upon the fiction of the legal identity of principal and agent. 2 C.J. § 542, pp. 859-862. This rule does not prevail where the conduct of the agent is such as to raise a clear presumption that he would not communicate the facts to his principal. 21 R.C.L. § 24, p. 843; 2 C.J. § 542, p. 863; Mechem on Agency, supra.

In the case at bar we find that Pat Garrett, conceding that his agency had not terminated at the time he attempted to give Powers the pistol, in so doing was acting adversely to the interest of Mrs. Garrett, and it certainly could not be presumed that he would advise her of the attempted gift by him in view of the fact that he had several years before given the pistol to her.

It is also well established that the question of laches is addressed to the sound discretion of the chancellor, and his decision will not be disturbed on appeal unless it is so clearly wrong as to amount to an abuse of discretion. 21 C.J. § 217, pp. 217-219; 10 R.C.L. § 146, p. 399.

We do not feel that, under the peculiar facts of this case, the trial court's decision should be disturbed.

The motion is accordingly overruled.

HIGGINS, J., did not sit in this case.