Derrickson v. Cady ( 1847 )

Burnside, J.

Several of the errors were abandoned

in this court. Those principally insisted on will be considered.

1. In rejecting the two letters of the plaintiff to Wood. We think they ought to have been received; they were a part of the series. If a plaintiff will give time, and agree to receive partial payments from his debtor, it is surely pertinent evidence for his counsel, where he charges him with a want of diligence and neglect of his duty.

2. The defendant had pleaded the statute of limitations. It was pressed on the court, who determined that the statute of limitations did not begin to run in favour of the defendant until the dissolution of the relation of counsel and client, on the 31st of December, 1842, and that the statute would not avail as a defence. In this we think there was manifest error. It was not a trust that would be excluded from the operation of the statute. Trusts which are not affected by the statute of limitations, are those technical and continuing trusts which are not cognisable at law, but fall within the proper and exclusive jurisdiction of a court of equity: Finney v. Cochran, 1 Watts & Serg. 112. I agree that fraud will prevent the statute from running; but it is well settled that the statute will commence to run after the discovery of the fraud, or the discovery of facts imputed as fraud: Rush v. Barr, 1 Watts, 120, 7 Johns. Ch. 90, 122. In New York, it was held, that the action must be brought against the attorney for money collected within six years after he received it, or the plaintiff will be barred by the statute: and the doctrine that a trustee cannot plead the statute, does not apply to such a case: Stafford v. Richardson, 15 Wend. 302. The Pennsylvania rule, I take it, would be, for the statute to begin to run from the time the client had notice of the attorney’s receipt of the money. The English rule, in actions on the case for negligence, where the declaration alleges a breach of duty, and a special consequential damage, the cause of action is the breach of duty and not the consequential damage; and the statute runs from the time when the breach of duty is committed, and not from the time the consequential damage accrued: Howell v. Young, 8 Dowl. & Ry. 14, 5 Barn. & Cress. 259. So in an action of assumpsit for not laying out the plaintiff’s money in an annuity, or a good and sufficient security, which the defendant promised to do; held, that the statute of limitations was a good bar to the plaintiff’s recovery, as the promise of the defendant was the gist of the action, although it was commenced within the period of six years from the time it was discovered that the security was invalid, and the defendant knew it to be so at the time the annuity was granted: Brown v. Howard, 4 Moore, 508, 2 Brod. & Bing. 73. The suggestion of an arrangement with the defendants, indeed, of the release, first came from the plaintiff, as appears by the defendant’s letter to the plaintiff of the 7th of January, 1837. The release of the Meadville lots was on the 31st of January, 1838. On the 1st of February following, the defendant wrote to the plaintiff that he had got matters arranged with Wood and Sexton; he mentioned the agreement of condemnation and the arrangement of payment, but said nothing about the release. He ought to have stated the whole arrangement. But on the 23d of April, 1839, the plaintiff wrote to the defendant, “I have ever been sorry that you have relinquished the Sexton property in your village.” At this time, the plaintiff had full knowledge of the release. He does not bring his action until August Term, 1845, more than six years after he had full knowledge that the Sexton lots had been released. We are unanimously of opinion, that the statute of limitations not only operates in this ease, but that it is a bar to the plaintiff’s action and right to recover.

3. On the 31st December, 1842, the parties came to an arrangement, which-resulted in a mutual release. There is no evidence on that subject, except the paper signed by the plaintiff, viz.:

“A- CaA ) Judgment in the Common Pleas of Craw- « L. Wood and R. Sexton. ) ford County.

“ In consideration of David Derrickson releasing me from his charges as counsel for me heretofore, I do hereby release him; and he not to act as counsel for me any further, unless employed again.

“December 31, 1842. Asa Cady.”

The court claimed the exclusive right to declare the legal effect and operation of this paper, and instructed the jury that it did not embrace the present controversy; in this case it formed no defence. What, then, did it embrace ? Here was a misunderstanding between the attorney and his client. The former alleging that he had general discretionary powers, and that he had exercised his best judgment and abilities in the case. The latter denying this, and complaining of the unfortunate release of the Meadville lots, executed more than two years before. There is not an allegation in the paper book of any other point of dissatisfaction. The attorney releases his client from his charges as counsel; and for that consideration, the client releases him, from what ? Why in the case stated in the release; and he is no longer to act as his attorney in the case. As there was no ground of complaint but the one between the parties, and the case of Cady v. Wood and Sexton, stated in their mutual release, it could relate to no other matter. We all think it embraced this case, and no other; no other is mentioned or alluded to in the paper; and so the jury ought to have been instructed.

4. There is but another point in the errors assigned that I deem of any general importance, or worthy of being mentioned. When Cady discovered, in the beginning of the year 1839, that his attorney had released the Meadville lots from the lien of his judgment, in consideration of getting a condemnation on the other parts of his debtor’s estate, and an engagement to make certain payments by, on, or before a fixed period, or an execution might issue; if he meant to disregard this arrangement, and look to the attorney for the payment of the debt, he ought to have so intimated to his attorney : instead of such an intimation, he continues him as his attorney for more than two years longer, then settles with him, obtains a release of his fees, and employs another, proceeds to sell the estate of Wood and Sexton, which had been condemned, purchases it in part for his own use, and after all this, institutes this action for the balance he did not realize from the sales. We do not say the want of notice is a legal bar to the plaintiff’s right of recovery in this action, but it was unquestionably a part of the case, on which the jury ought to have been instructed on the question of damages.

Judgment reversed.