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hiring by the year, the right of action to recover After remarking that the plaintiff claimed to would accrue at the end of each year, and the recover the value of services for a period of statute of limitations would run from the end | twenty-five years, the court instructed the jury of each year.
that if he was entitled to recover at all it was For plaintiff in error. Messrs. George A. Jenks. for the whole services as a whole, and that the John Gilpin, G. C. Orr, George W. Guthrie and
| defendants could not take advantage of the J. P. Colter.
statute of limitations because it had not been Contra. Messrs. Richard H. Johnston and specially pleaded. Had the principle which David Barclay.
determined the case of Horbach v. Huey, supra,
| been heeded, in absence of evidence that Brown Opinion by TRUNKEY, J. Filed December | had contracted with Golden to pay him the 30, 1882.
debts owing by Brown to Golden & Neale and One of the members of a partnership, to whom Golden & Patton, the plaintiff would hardly the others have transferred their interest in the have claimed to recover said debts in this suit. partnership property and claims, cannot sue He cannot join debts which he cannot sue for and recover a debt which was owing to the firm in his own name with one which he could. in his own name: Horbach v. Huey, 4 Watts, As no declaration had been filed, ground had 455. Therefore, when a person brings suit for not been laid for a plea. The record shows no the value of his services rendered to the defend- claim for a debt barred by the statute of limitaant, he can not join and recover in such suit a tions; hence, there was no reason for specially debt owing to a partnership, of which he was a pleading it. It was well said by the learned member, for similar services, although the debt judge of the Common Pleas that “the law aims was transferred to him before commencement at the settling of men's disputes unencumbered of the suit.
with technicalities." But if the plaintiff set up In this action E. S. Golden is plaintiff, and a claim for services extending over a quarter of the only statement of his claim is, that he seeks a century, the defendants shall have the benefit "to recover for professional services and counsel of a statute of repose and quiet to defeat stale rendered by him to James E. Brown about his claims against dead men's estates as living men business generally and disbursements therein could bave when they have lost the evidence of for a number of years prior to his death." And settlement or payment. When parties go to the answer of the defendants is, that they are trial without pleadings, this act is not a waiver uninformed as to the correctness and legality of of a statutory defense to a claim as proved. such claim, and deny the same." In the agree- Such defense is not technical, is not merely ment for entry of the suit the parties stipulated formal, it is legally meritorious. Otherwise, that the "suit shall be deemed to be depending this old statute ought to be repealed. It was in like manner as if the said defendants had the duty of the court to hear any competent appeared to a summons." The claim was in- evidence to rebut that adduced by the plaintiff, definite, stating no amount of demand, nor date and to affirm the legal proposition requested by of beginning or end of services. It is neither a the defendant, to which they would have been declaration nor a statement under the Act of entitled had the cause been put at issue by 1806. Prior to the Act of March 14, 1872, P. L., proper pleadings. If, by reason of surprise, the 25, probably the verdict could not have been plaintiff was likely to suffer, he could have sustained. That act provides that no verdict taken a nonsuit; and the court has power, when shall be set aside for want of a declaration or justice demands, to withdraw a juror and conplea, but the court may at any time direct the tinue the cause. filing of a declaration and the entering of a The statute of limitations does not begin to plea wbich shall make the pleadings and record | run against the claim of an attorney for profesconform to what was tried before the jury and sional services so long as the debt which he found by the verdict. A declaration con forni- seeks to recover for his client remains unpaid : ing to what was tried would show a claim for Foster v. Jack, 4 Watts, 334. It runs against services rendered the late James E. Brown by such claim as soon as the services are finished, E. S. Golden individually, by Golden & Neale, and the relation of attorney in a litigated case and by Golden & Patton, together covering a will not prevent the claim for services generally period of twenty-five years. The case must be from being barred by the statute, though it may disposed of as if such declaration had been filed for services rendered in and during the progress and the pleas entered, under which the defense of a particular case. “Services rendered in any set up at the trial would have been heard and stage of the conduct of a single suit may well be considered.
regarded as rendered in pursuance of the same contract; but advice or services at different statute. Corporations and many natural pertimes, and respecting various matters, cannot.” sons employ attorneys to advise and counsel in When an attorney advises or renders services all their business. For such services the attorrespecting some matters of business, it does not ney is entitled to payment, when there is no prevent the statute from running against bis express contract, within a reasonable time; this claim for other finished services: Hale v. Ard, is implied, and a reasonable time would not ex48 Pa. St., 22. The doctrine of that case accords ceed a year. The statute bars the claim of an with Lichty v. Hughs, 55 Id., 434, for Hughs' attorney as it does the claims of other persons, claim was for services in a single suit.
when his services may be measured in a similar When the firm of Golden & Neale was con- way as the services of others. It does not begin stituted, and the relationship of attorney and to run against bis claim for conducting a suit client between them and Brown began, Golden until the end of his services in that case; por had a right of action against Brown for his would it against his claim for other special prior individual services. It is a familiar prin services until it was finished. And if any other ciple that the statute begins to run when the person be employed to do a specific thing, and right of action is complete. That the statute a long time elapses in the doing of it, the statbegan to run against the individual claim of ute does not begin to run against his claim until Golden when the services of the firm com- the work is completed. An attorney may remenced, and that it began to run against a debt cover for advice and counsel rendered to the owing to Golden & Neale, March 31, 1871, is too defendant upon the implied contract; so may a clear for doubt.
man who keeps books, superintends a mill, or For services in a large number of suits, and does other business for another, and there is no for some other services, the plaintiff was paid reason why one should be expected out of the in full. He gave receipts, particularly specify-operation of the statute by judicial authority, ing the service, the last bearing date July 9, 1880. when all alike are within its provisions. The In some instances he sent his account with re-first, third and fourth assignments of error are quest for immediate settlement; the last is dated sustained. June 24, 1878. These receipts tend to show that Tbat portion of the charge which is the subthe parties contemplated prompt payment for ject of the third assignment, undoubtedly was, any particular services, and should be consid- and ought to have been understood by the jury ered with other evidence respecting the demand as an instruction that defendant could not have in this suit. The plaintiff avers that he had the benefit of the statute of limitations because been the general and legal adviser of Mr. Brown it had not been pleaded. It follows that the for over twenty-five years; that his employment answer to the defendant's fourth, fifth and sixth was not limited nor affected by lapse of time, I points was at once an affirmance of the proposinor obstructed by the commencement or ending tions, and an instruction that they should not of years." There was no evidence of an express be applied in the determination of the case. So agreement. Mr. Brown's business was large far as those points are consistent with the prinand varied and intricate, and the plaintiff was ciples hereinbefore stated, they should have his trusted legal adviser and counselor. Al been affirmed without such instruction, though the plaintiff disclaims an implied bir- The plaintiff, defendant in error, urged that ing by the year, his witness, called to prove the the first four assignments ought not to be convalue of his services, estimated that value by sidered, because an exception to the general the year. It was quite natural they should. charge is not allowed by the rules of court in When men are employed without an express the county of Armstrong. In fact, the court contract, and continue in service for a long sealed a bill of exceptions to the charge, and time, it is commonly understood that the bir- this places it in the bill of exceptions, and we ing is by the year, unless the circumstances in- are bound to consider the alleged errors. It is dicate a less period. None would infer, from frequent that judges seal a bill to the whole the fact that an agent, or book-keeper, or sales-charge in districts having similar rules, for the man, bad continued in the services of his em- judges are generally willing to aid counsel in ployer half a lifetime, that he had no right to their efforts to have a review of any supposed demand and sue for past services until the end error. And if they were not, counsel would of his employment. In case of such long con- soon avail the statute and bring the whole tinued services the statute would bar a claim charge into the record in every case, to the end for all outside six years immediately before that it may be reviewed without exception be commencement of the action, unless there was ing noted or sealed. evidence to take it out of the operation of the James Mosgrove's letter to Neale, and Wil**-------- ----- ---liam Pollock's, entering into the recognizance, 1882, to the date of the distribution by the audevidence that the writ of error was taken out by itor. The auditor allowed the claim. Exceptheir authority. They have not discontinued tions were taken to this allowance, which were the suit, nor is their certificate, dated October sustained by the court below (FUTHEY, P. J.,) 31, 1882, “a motion to quash the writ of error;" and the report recommitted to the auditor for but is one of the many things in the proceed correction. ings showing the difficulties in their position. This appeal was taken to the final decree of On one hand they are bound to faithfully per- the court. form their duties as administrators of the estate; For appellant, Wm. M. Hayes, Esq. on the other, as is manifest, they believe the Contra, A. P. Reid, Esq. plaintiff's demand is just. As the widow and legatees or heirs protested against acquiescence
Opinion by GORDON, J. Filed February 26, in the result of the trial and urged that a writ
1883. of error be purchased, it was at least prudent The appellant held the bond of Carlton J. to comply with their request. A judgment ob- Passinore, the testator, for the sum of $5,000, tained against administrators, in some circum- / which was secured by a mortgage on certain of stances, will not protect them in suffering the the real estate of the obligor. Some time after judgment to stand and paying it out of moneys the death of Carlton J. Passmore, his executor of the estate. We are of opinion that there is and legatee, Wills Passmore, acting under the no cause for quasbing the writ.
authority of an order of the Orphans' Court, Judgment reversed and venire facias de novo sold the real estate for the payment of debts and awarded.
This sale was confirmed December 12, 1881, YEATMAN'S APPEAL.
and on the 8th of May, 1882, the executor paid
over to Yeatman the full amount of the principal Where the real estate of a solvent decedent is sold by of his bond, but refused to pay the interest acorder of court for the payment of debts, interest on
cruing between those dates. Before the auditor, liens does not stop at the date of confirmation of the sale, but when the money is paid to the debtor.
who was appointed to make distribution of the Per GORDON, J.-If the estate were insolvent, the interest
money raised from the sale above mentioned, would cease at the date of the confirmation of the sale. the appellant presented a claim for this interest, Ramsey's Appeal, 4 W., 71; Brownsville Bank's Appeal, $128.90, and had it allowed. To this allowance 15 Norris, 347, and Curlisle Bank v. Barnett, 3 W. & S.,
an exception was taken, which was sustained 248, discussed and applied.
in the court below, on the ground that the inAppeal from the decree of the Orphans' Court terest on the bond ceased at the time of the conof Chester county.
firmation of the executor's sale. Had the estate Carlton J. Passmore died testate, seized of of Passmore been insolvent, the doctrine ascertain real estate which was sold, on the appli- sumed by the court below would have been uncation of the executor, who was also a legatee, exceptionable, for, in that event it would have by order of the court, to pay debts. The pur- bad the support of all the authorities from Ramchaser was also a legatee. The personal prop- | sey's Appeal, 4 W., 71, down to the case of the erty was sufficient to pay all the debts except a Brownsville Bank, 15 Norris, 347. But Passmortgage of $5,000 wbich was a lien on the real more's estate was entirely solvent and the sale estate sold. The sale was confirmed December was not made on motion of the mortgagee, but 11, 1881. On May 8, 1882, the executor paid the upon the motion of the executor and for the appellant the amount of bis mortgage with in- purpose of the settlement of the estate. Under terest to the date of the confirmation of the sale. these circumstances we cannot understand why A deed to the purchaser was made about April the appellant was not entitled to his whole 1, 1882, when the purchase money was to be claim, debt and interest. There is a very good paid. The account of the executor showed a reason why a defendant, as in Strohecker v. considerable balance, after payment of all debts, Farmers' Bank, 6 Watts, 96, should not be which was payable to legatees under the follow- charged with interest after the return day of an ing provision of the will: “I leave to William's executor levied upon his property, for the credboys all of my property, to be divided between itor has thereby paid himself by a sale of his them, share and share alike * * * after all my debtor's goods or lands, and the money thus debts are paid." The appellant presented the made is then in the hands of the sheriff' who bond accompanying this mortgage before the occupies the position of a trustee or bailiff for auditor on distribution (John H. Brinton, Esy.,) | the plaintiff. If, however, as is admitted in the and claimed interest thereon from December 11, I case cited, the defendant, by his interference, delays the payment of the money to the plain- estate which be represented; hence there is no tiff, he is chargeable with the accruing interest. reason why the appellant should not have had So, as in Ramsey's Appeal, 4 W., 71, where the full payment of his claim, debt and interest. lands of an insolvent estate are sold for the pay- The decree of the court below, so far as it susment of debts, there is also a good reason why tains the exception to the auditor's report awardthe interest upon those debts should stop upon ing to the appellant the sum of $128.90, the the confirmation of the sale, for the fund then amount of interest due on his bond after Debelongs to the creditors, and they are entitled cember 12, 1882, is now reversed and set aside to distribution as of that time; hence, there is at the cost of the appellee, and the auditor's no fund left for the payment of subsequently report, as to that amount, is now restored and accruing interest. But even this rule, as we confirmed. find by the Brownsville Bank case, above cited, has its exception, for it was there ruled that
LYON V. KURTZ. when the fund continues to draw interest after the date of the confirmation of the sale, the
The findings of fact by a referee under the Act of May 14, creditor is entitled to his proportionate share
1874, are conclusive, and cannot be reviewed by the
Supreme Court upon writ of error. thereof. Nor is the case of the Carlisle Bank v. 1
As to payments on account the general rule is that the Barnett, 3 W. & S., 248, without force as author
law will appropriate in the manner most beneficial to ity in the question before us. There Barnett the creditor, to an unsecured or partially secured acwas compelled to pay the accruing interest on
count rather than to one fully secured, and if there be
no such difference, then to the earliest open items of the obligation, in wbich he was surety, though
the account. by a previous decree of the court there had been
Where A, made his promissory note to the order of B., awarded to the bank the full amount of its claim who indorsed it, and it was then placed by A, in the from a fund raised upon a collateral judgment.
hands of C. for negotiation, and C. forwarded it before But, as was said by Mr. Justice SERGEANT in
maturity to D., in Philadelphia, with whom he had a
running account, and C. afterwards became insolvent, that case, this appropriation would have been
| Held, that in the absence of notice of outstanding equities payment had it been immediately available, between A. and C.) D. could maintain an action upon but as it was locked up in court, and was not the note against B., the indorser, to recover a balance inimediately available, there was no payment
due from ('., upon the running account. until the money came into the possession of the Error to the Court of Common Pleas, No. 2, bank; hence the liability of the parties to the of Allegheny county. original obligation continued.
This was an action by W. W. Kurtz, doing The same language may well be applied to business as W. W. Kurtz & Co., against William the case in hand. By the executor's sale, there M. Lyon upon a promissory note for $5,000, was more than enough money raised to have dated March 12, 1874, payable four months after satisfied Yeatman's lien, and, bad it been im- date, made by James B. Lyon & Co, to the order mediately applied to the payment of that lien, 1 of William M. Lyon, and by him indorsed. By there would have been an end to all controversy. agreement of counsel the cause was submitted But it was not so applied; the appellant had to to the decision of George W. Guthrie, Esq., await the motion of the executor, and so it hap- under the Act of Assembly approved May 14, pened that the claim remained un paid until | 1874. some six months after the confirmation of the The referee in his opinion says, inter alia: sale. On what principle, then, is Yeatman to The making, indorsement and protest of the be made to forfeit a substantial part of his bond? | note at maturity are not controverted; the quesOr how can his debt be said to have been paid tion in the case is whether plaintiff is a bona before he got the money for it? It is true this fide holder. was an official sale, and by it the lien of the On March 13, 1874, the note in suit was remortgage was extinguished, but what of that? | ceived by plaintiff from Hill & Co.; at the close
It did not extinguish the debt secured by the of the business that day, Hill & Co.'s account mortgage; that remained until it was paid, so was overdrawn $4,506.77. Between that date that, in effect, the sale had no more significance and April 2, 1874, the plaintiff advanced to them than if it had been made under a power in the at various dates, $5,375.42, and Hill & Co. paid will. It was made for the settlement of a solvent on account of their indebtedness to him $3,800.21, estate; the money went to the executor, and it leaving a balance due on that day of $6,073.98, was only through him that Yeatman could re- which was subsequently reduced by payments ceive it. The delay was caused by no act of the on account to $2,623.04, no part of which has appellant, nor by a judicial necessity, but by ever been paid. the executor and for the convenience of the The evidence shows that the note in suit was
indorsed by William M. Lyon, for the accom- 2. If the referee refuses to find as requested in modation of James B. Lyon & Co.; that the the previous point, then the referee is requested latter delivered it to George B. Hill & Co. to be to find that Kurtz & Co, can only recover on sold for them, and that they have received only said note the amount shown to have been paid $1,000 on account of it, which sum was advanced by Hill to J. B. Lyon on partial account thereof, by George B. Hill and Co. when the note was viz., $1,000. Answer.-Refused. delivered to them.
The findings of the referee were as follows: Clearly this would be a good defense to a suit 1. That the note in suit was indorsed by Wm. on the note for all except the sum of $1,000 so M. Lyon for the accommodation of James B. advanced, with interest, unless the plaintiff is | Lyon & Co. a bona fide holder of the same.
2. That said note was delivered by said James After the receipt of the note, the plaintiff, as B. Lyon & Co. to George B. Hill & Co., bankers already stated, advanced to George B. Hill & and brokers, doing a business in the city of Co. $5,375.42, and the evidence shows that these Pittsburgh, for the purpose of procuring the advances were made on the faith of the securi
same to be discounted for them, and that they ties left with him by the said George B. Hill &
received from said George B. Hill & Co., on acCo., including the note in suit, and that he
count of said note, the sum of $1,000, and no would not have made these advances but for more. these securities.
3. That said George B. Hill & Co. sent said It is true that after the receipt of the note, note to W. W. Kurtz, the plaintiff, a banker George B. Hill & Co. paid plaintiff more money and broker, in the city of Philadelphia, doing than he advanced, but these were general pay- / business under the firm name of W. W. Kurtz ments on account, without any appropriation & Co., for sale and credit for account of said being made by either party; in such cases, the George B. Hill & Co. general rule is that the law will appropriate in
4. That the plaintiff received said note from the manner most beneficial to the creditor, to George B. Hill & Co. for sale and credit as aforean unsecured or partially secured account, rather
said, in good faith, in the ordinary course of than to one fully secured, and if there be no
business and without notice that they were not such difference, then to the earliest open items
the owners thereof, and on the faith of said note of the account. On both grounds, the payments
and before its maturity, made advances to said made by George B. Hill & Co., after the delivery
George B. Hill & Co., of which there still reof the note in suit, should be appropriated to
mains due and unpaid the sum of $2,623.04, the advances made before, for the plaintiff holds
which advances were also made in good faith no security of any value for those advances, and
| and without notice as aforesaid. they are the earliest open items in the account; |
And the referee finds, as matter of law, that and the surplus only to the reduction of the ad
said plaintiff is entitled to retain said note for vances made after the receipt of the note. The
the balance of the advances made by him on plaintiff, therefore, is a holder for value to the
account thereof. extent of the balance of the advances so made.
Award in favor of plaintiff in the sum of The note is in the form of an ordinary nego
$2,623.04, with interest from July 15, 1874, and tiable note; there is nothing on its face to excite
protest fees. suspicion, and the plaintiff received it before
To this finding exceptions were filed by the maturity and paid value for it.
defendant, which were dismissed by the referee, The burden is therefore on the defendant to
and judgment entered for the plaintiff'; wheremake out his defense; this, in the opinion of the
upon defendant took this writ, assigning for referee, he has failed to do.
error the answers of the referee to the points Defendant's counsel requested the referee to
submitted (ut supra), and also that the referee find, as matter of fact, from the evidence, inter
erred in finding that Kurtz & Co. were entitled alia, (5) That Kurtz & Co. were aware that
to a banker's lien on said note, and had a right these notes, including the one in suit, were the
to maintain an action on the same for the property of James B. Lyon & Co., and not the
amount of the balance due them from George property of George B. Hill & Co. Answer.
B. Hill & Co. This point is refused.
Defendant's counsel also requested the referee For plaintiff in error, Geo. Shiras, Jr., Esq., to find, as matter of law, (1) That Kurtz & Co. cited Dickerson v. Wason, 47 N. Y., 439 ; had no right to appropriate said note or its pro- Lawrence v. The Stonington Bank, 6 Com, 521 ; ceeds to the account of George B. Hill. An- Van Amee v. Bank of Troy, 8 Barbour, 312; swer.-Refused.
Jones & Co. v. Milliken, 5 Wright, 252; The