Moore v. Juvenal , 92 Pa. 484 ( 1880 )

Mr. Justice Sterrett

delivered the opinion of the court, March 1st 1880.

The breach of professional duty on which this action is founded is the omission of defendant’s testator to commence proceedings for the recovery of a claim against the Green and Coates Streets Passenger Railway Company, until after the same was barred by the Statute of Limitations.

The defence "was twofold: 1st. That the duties he owed to his clients were faithfully discharged and hence he was not liable for the loss of their claim. 2d. That this suit, having been brought more than six years after the alleged cause of action accrued, was barred by the statute.

The first branch of the defence was withdrawn from the jury,. and they were instructed to render a verdict for the plaintiffs, subject to the opinion of the court on the question of law, as to the effect of the Statute of Limitations,, raised by the defendants’ first, second, third and seventh points. The court in banc gave judgment in favor of the defendants non obstante veredicto; and thus they were not in a position to complain of the ruling of the court on the first branch of their defence.

It was agreed that the ihcts, upon which the question of law was reserved, are embodied in the opinion .of the court below; and the single question presented is whether upon the admitted facts the action was barred by the statute.

It appears that the alleged breach of duty must have occurred, if at all, prior to 1866. It is not claimed that anything was done or omitted to be done after that time whereby the plaintiffs were injured. The special damage complained of had all been done before, although it was not known or fully realized until 1870, when by the final judgment'of this court in the case of the railway company above named against the present plaintiffs in error (14 P. F. Smith 79), it was determined that the claim, with the collection of which defendants’ testator had been intrusted, was barred by the statute, because proceedings had not been commenced within six years after the right of action had accrued. The negligence complained of began after the decree of May 23d 1859, and must have been complete in six years thereafter, when the statute had run in favor of the railway company, so as to be an absolute bar to the plaintiffs’ claim in that case. The defendants’ testator, believing that the appraisement made in favor of the plaintiffs was in the nature of a legal award, and that they had twenty years within which to bring their action, delayed proceeding until the bar of the statute was complete.

In the meantime he had been frequently urged by the plaintiffs to proceed, and they were fully aware that suit was not commenced until Febuary 1867, nearly two years after their claim was in fact barred. There was no concealment, or attempt on the part of defendants’ testator to conceal the fact that the contemplated proceeding had not been commenced. In May 1866, with full knowledge of the delay that had occurred, they consulted and retained other counsel, who took an active part in commencing the suit in 1867, and conducting the same to final judgment, with the. result above stated. Although not certainly known or realized until the determination of that case in 1870, it is nevertheless the fact that the claim was barred, and thus lost prior to 1866, and all the negligence which conduced thereto had, of course, occurred before that date. It is not pretended that there was any neglect of duty thereafter by which they were prejudiced. It follows, therefore, that as soon as their claim against the railway company was barred and lost, they had a right of action against their attorney for any neglect of duty on his part, which resulted in the loss then actually sustained. This being the case, the statute commenced to run against their claim for damages, and completely barred the same in six years thereafter, unless there was something peculiar in the facts of the case to suspend its operation.

The record discloses nothing that should have such effect. There was no fraud or concealment by which the plaintiffs were misled or thrown off their guard. Aside from his dilatory conduct, their attorney acted in good faith, but with mistaken judgment. It is a mistake to suppose that the plaintiffs had no cause of action, and could not have brought this suit until after the final decision of their case against the railway company in January 1870. Where the declaration, as in this case, alleges a breach of duty and a special consequential damage, the breach of duty and not the consequential damage is the cause of action, and the statute runs from the date of the former, and not from the time the special damage is revealed or becomes definite: Wilcox et al. v. Plummer’s Exr’s, 4 Pet. 172. In Howell v. Young, 8 Dowl. & Ry. 14, which, like the case last cited, was an action against an attorney for negligence whereby the plaintiffs lost their debt, it is said, “ The loss does not constitute a fresh ground of action, but a mere measure of damages. There is no new misconduct or negligence of the attorney, and consequently there is no new cause of action.” There was nothing in the present case to have prevented the plaintiffs from bringing their suit any time within six years after their claim against the railway company was actually barred. If they had done so, every question touching their right to recover could have been determined in that action; but they not only waited until their suit against the railway company was decided against them, but they delayed for nearly five years thereafter. During all this time, covering a period of over nine years, they were aware of the facts which constitute the alleged negligence, and all that can be urged in their behalf is that, in common with their counsel, they did not know or realize the effect thereof until January 1870. Even then they would have been in time if they had brought suit promptly.

The facts of the present case bring it within the principles of Campbell v. Boggs, 12 Wright 524; Rhines v. Evans, 16 P. F. Smith 192, and Wilcox v. Plummer’s Executors, supra, in the former of which, it is held to be the duty of one who collects money, to pay it over to his principal at once, and neglect to do so, is a breach of his implied contract from which a right of action immediately springs ; and the statute begins to run then, and not from the time when notice is given of the receipt of the money, unless there be fraudulent concealment. In referring to the allegation of the plaintiffs, that they were put off their guard by the defendants’ intestate repeatedly saying to them, that there was plenty of time in which to bring their action against the railway company, the learned judge in his opinion says, “ This is not shown to have been an act of fraud on the part of the defendant. At most, it seems to have been a mistake of judgment or a misunderstanding of the law. It did not conceal from the plaintiffs that he was neglecting their business, for they were frequently urging him to bring suit against the company. ” In Rhines v. Evans, a claim in an attorney’s hands w'as lost, in consequence of neglect to properly enter a judgment ; and, in a suit brought against him more than six years after the judgment should have been entered, the statute was held to be a bar.

The fact that plaintiffs still retained defendants’ testator, as their attorney, after he had violated his implied contract with them, did not suspend the operation of the statute. They were under no obligation to do so. There was nothing to prevent them from discharging him at any time, if necessary, and commencing their action within the six years. In view of the facts as embodied in the opinion of the court below, we are of opinion, that there was no error in entering judgment for the defendants non obstante veredicto.

Judgment affirmed.