Freeman v. Ingerson

Blair, J.

William O. Freeman, the plaintiff above named, commenced an action of assumpsit in justice’s court against the defendant, Stephen S. Ingerson, July 27, 1903, whereupon the defendant filed a plea of the general issue and gave notice of the defense of the statute of limitations. The case was tried in justice’s court, where a verdict of no cause of action was rendered, and came into the circuit court for the county of Barry by appeal, where, upon the second trial of the same, a verdict was rendered in favor of the plaintiff and against the defendant for $135.94, and judgment duly entered, and defendant appeals.

Prior to the 14th day of December, 1885, the defendant and one Simon Overholt were engaged in the grain elevator business in the village of Nashville, Barry county, Mich., being associated together under the firm name of Ingerson & Co. The plaintiff in this case was a farmer, owning a farm in the vicinity of Nashville, and stored with Ingerson & Co., on or before the 14th day of December, 1885, 1054-4- bushels of wheat, taking therefor a wheat check, as follows:

“Nashville, Mich., December 14, 1885.

“ Wheat check.

“ Barry & Downing, Bankers.

“ William O. Freeman has stored in our elevator 105-44 bushels of No. 1 white wheat, subject to his order of sale on or before July 1st, 1886.

“ Ingerson & Co.”

The defendant was engaged in the grain business from July, 1881, to February, 1887. The firm of Ingerson & Co. continued to February, 1887, at which time the defendant sold his interest to Henry Reynolds and the defendant had no further interest in said firm of Ingerson & Co. after February, 1887, except to settle up the business of the firm. Át the time of the dissolution of the co-partnership of Ingerson & Co. notice was published for three successive weeks in the Nashville News, a newspaper published in the village of Nashville, as follows:

“ Inasmuch as there is a change in the firm of Ingerson & Company, all notes due and outstanding accounts must be promptly settled, also all stored grain must be sold by March 12, 1887.

“ Ingerson & Company.”

The plaintiff made no demand on this cheek until the 24th day of August, 1897, and then delayed the commencement of suit until the 27th day of July, 1903, or 5 years and 11 months after demand.

The books of the firm of Ingerson & Co., pertaining to the grain trade, were left in the care of Mr. Overholt in the office which had been maintained in connection with the grain business. The defendant never saw the books after the time he settled up the business of Ingerson & Overholt. They were left with Mr. Overholt, who died somewhere in Ohio six years at least prior to the trial of this case. Search was made for the books in various places, but after diligent search and inquiry nothing could be ascertained of the books in question or of their whereabouts.

We think that the rule supported by the greater weight of authority is that, where a demand is necessary to create a cause of action, such demand must be made within a reasonable time, which, by apalogy to the statute of limitation, will be deemed to be six years. Kimball v. Kimball, 16 Mich. 220; Palmer v. Palmer, 36 Mich. 493; Smith v. Smith’s Estate, 91 Mich. 10; Jewell v. Jewell’s Estate, 139 Mich. 578; In re Emmons’ Estate, 142 Mich. 299; Atchison, etc., R. Co. v. Township of Burlingame, 36 Kan. 628; Codman v. Rogers, 10 Pick. (Mass.) 119; Pittsburgh, etc., R. Co. v. Byers, 32 Pa. 22; Ball v. Railway Co., 62 Iowa, 753; 9 Am. & Eng. Enc. Law (2d Ed.), p. 214; 19 Am. & Eng. Enc. Law (2d Ed.), pp. 193, 194, 196, 211; 13 Cyc. p. 808. We do not find in this record any special circumstances to excuse the making of such demand. On the contrary, it clearly appears that there was a conversion of this wheat, to the knowledge of plaintiff, in 1887. Counsel for plaintiff state, at page 1 of their brief, that—

“After Mr. Ingerson, the defendant, went out of the elevator business, in 1887, and after Mr. Freeman noticed that Mr. Reynolds was conducting the elevator business, he claims that he went to Mr. Ingerson, the defendant, and asked him what he had done with his stored wheat; that he (Ingerson) stated that he had turned it over to Mr. Reynolds.”

Upon any view which can be taken of the facts of this case, the statute of limitations had run against the plaintiff’s cause of action, and the verdict should have been directed for the defendant.

The judgment is reversed, and no new trial granted.

Grant, Montgomery, Ostrander, and Hooker, JJ., concurred.