Stewart v. McBurney

Opinion by

Mr. Justice Green :

This was an action to recover the value of services rendered by the plaintiff during a period of twenty years, to the defendant.

The defendant pleaded payment, set-off, and the statute of limitations. In reply to the plea of the statute the plaintiff gave evidence of declarations of the defendant to the effect that he would give the plaintiff a farm; and contended that, because the farm was not given, the defendant was guilty of such fraud as would prevent the running of the statute.

The court below adopted this view, and told the jury if they believed that the defendant promised the plaintiff to give him a farm for his services, and di not do it, this was a fraud upon the plaintiff, such as would prevent the running of the statute of limitations until after its discovery.

This was a strange misapplication of the doctrine that fraud is a good reply to a plea of the statute.

The evidence of the promise in this case was of the most uncertain and indefinite character. The plaintiff does not say when the promise was made, nor when the farm was to be given, nor what it was to be given for, nor whether it was to be in payment for services either in the past or in the future, nor, if it was to be given in payment for services, at what price it was to be given and taken, nor whether it was promised as a mere gratuity. But if the evidence had been free from all of these objections, and had been precise and definite in all respects, it is impossible to understand how the promise, and its breach, can in any manner be regarded as a fraud. At the best, it was not and could not be anything more than a broken promise. But a mere breach of contract is not a fraud. It is a civil wrong, for which the party injured may recover appropriate damages, but that is all. A refusal to convey a tract of land, after having contracted to do so, is no more a fraud than a refusal to pay a promissory note or a merchant’s bill for goods, sold and delivered.

There is no element of deception or of imposition in such a situation. Moreover, the plaintiff in this ease cannot aver any ignorance, either of the terms of the alleged promise, or of the fact that he had a right of action, whether for the value of his services or for breach of the special promise; and certainly he would know quite as well as the defendant when that right of action commenced. He does not allege that any concealment in this respect was practised upon him by the defendant.

When he completed six years of service he was certainly com-: petent to demand pay for his services, whether in money or in a farm. As he is presumed to know the law, he then knew that, if ho made n-o demand and brought no suit, the statute would begin to run from that time.

It is not pretended that the defendant ever misinformed him, or withheld any knowledge from him on this subject.

Where, then, is the fraud ? There is none, and it was error to hold otherwise. This whole subject was fully reviewed in the case of Sankey v. McElevey, 104 Pa. 265, 49 Am. Rep. 575. We then held that “the relation of debtor and creditor is not one of trust or confidence so as to make it the duty of the debtor to disclose to the creditor the fact or amount of his indebtedness. Mere silence or concealment by the debtor without affirmative misrepresentation will not toll the running of the statute of limitations.” Where, however, by actual fraud the debtor keeps his creditor in ignorance of the cause of action, the statute of limitations does not begin to run until the creditor had knowledge, or was put upon inquiry with means of knowledge, that such cause of action had accrued. This is sufficient.

There is no possible view of the evidence in this case which will permit the application of tire doctrine that fraud tolls the running of the statute. The assignments of error are all sustained.

Judgment reversed, and venire de novo awarded.