122 Ill. 536 | Ill. | 1887
delivered the opinion of the Court:
This bill, filed by appellant, Bonney, assignee of Edward G-. Bowzer, seeks an accounting in respect to the partnership affairs of the late firm of C. H. Crowell & Co., of which Charles H. Crowell and said Edward Gr. Bowzer were the co-partners.
It is alleged in the bill, that the co-partnership theretofore ■existing between Crowell and Bowzer “was terminated and ended by the mutual acts, consent and acquiescence of both parties,” on the 21st day of May, 1879. It is also alleged, that there was an attempt at accounting between the co-partners, and that Bowzer, in good faith, believed there was a settlement of the partnership affairs, in which it was agreed there was due Mm from Crowell $1230.06. There is no allegation in the bill that the eo-partnersMp existed for any purpose after that date, but on the contrary, it is fairly inferable, from the allegations of the bill, that there was a final and complete dissolution of the co-partnership. It is not" material that we should now determine whether the balance due Bowzer was agreed upon or not. If it was, there bemg no extension of time of payment, it became immediately payable; and if not so agreed upon, immediately upon the dissolution of the firm either party might have brought an action against the other partner, and compelled the settlement and adjustment of their partnership affairs. Taking the charge in the bill as true,— that no such settlement or adjustment was, in fact, made,— Bowzer had the right, either by bill in chancery or by action of account, to proceed at once to adjust the partnership affairs between himself and Crowell.
The fifth clause of section 2, chapter 2, of the Revised Statutes, in force July 1,1874, is: “The action of account may be-sustained * * * by one or more co-partner or co-partners, against the other co-partner or co-partners, to settle and adjust, their co-partnership accounts and dealings.” It is manifest that in either event,—that is, whether there was an adjustment of the account or not,—the right of action in respect to tMs claim accrued upon dissolution of the co-partnership, May 21,1879. Upon the dissolution, all that remained to be done, as shown by the bill, was to adjust the account of the partners with each other. Whatever claim either had against the other was a, money demand, simply.
Section 15 of the Limitation act, (Starr & Curtis, 1552,) provides: “Actions on unwritten contracts, * * * and all civil actions not otherwise provided for, shall be commenced within five years next after the cause of action accrued.” No-limitation is specifically provided for the action of account, and the five years’ limitation therefore applies. Quayle et al. v. Guild, Admr. 91 Ill. 378.
This bill was filed January 20, 1885, more than five years after the cause of action accrued, and it is clear that the right of action at law was then barred, and it is, as said by this court in Hancock v. Harper, 86 Ill. 445, well settled, that where courts of law and equity have concurrent jurisdiction, a claim barred at law will be barred in equity. Courts of equity, says Justice Story, (1 Eq. Jur. sec. 529,) govern themselves by the same limitation as to entertaining bills for account, “as are prescribed by the Statute of Limitations, in regard to suits in courts of common law, in matters of account;” and “in so doing they do not act, in cases of this sort, so much upon the ground of analogy to the Statute of Limitations, as positively in obedience to such statute.” And this rule obtains on bills for account by one partner against another, as in other cases of bills for account. Quayle et al. v. Guild, Admr. supra, and authorities cited.
In the cases cited, of Hancock v. Harper, and the later case of Quayle et al. v. Guild, Admr., which was a bill filed for account between partners, and presenting the question now being considered, the authorities are reviewed, and the conclusion there reached disposes of the case at bar, unless some one or more of the matters set up in the bill will stop the running of the statute, or, in equity, should take the case out of its operation. It is insisted, with great earnestness, that the statute should commence only from November 2, 1884, when the circuit court rendered judgment against Bowzer on his appeal from the county court, for the reason that he, for the first time, then discovered and became “convinced” that he was mistaken in supposing that the occurrences of May 21,1819, between himself and Crowell, were an adjustment of the amount due him; or, at most, could not be held to have commenced to run until March 1, 1883, when the administrator of Crowell repudiated such supposed settlement. It is alleged that Bowzer, in good faith, believed there was an accounting between himself and Crowell, and the balance agreed upon in his favor, of $1230.06, and acted on that belief in presenting his claim, in the probate court against the estate of Crowell, and subsequently prosecuting his appeal to the circuit court.
It is apparent from what has preceded, that the statute commenced to run May 21, 1879, during the lifetime of Crowell, who died December 18, 1881,—substantially two years and seven months after the cause of action accrued. Where a. statute begins to run, it is not arrested by subsequent disability, unless expressly so provided in the statute. So the-death of a party debtor will not stop the running of the Statute-, of Limitations. Wood on Limitations, 10; Baker v. Brown, 18 Ill. 91; The People v. White, 11 id. 350; Shelburne, Exr. v. Robinson, 3 Gilm. 598.
The claim of Bowzer was filed in the probate court August. 21, 1882, eight months after Crowell’s decease, but was not brought on for hearing in the probate court until March 1,. 1883, over six months after its filing. The claim was then rejected by the probate court, and Bowzer appealed to the-circuit court, where it was finally heard November 2, 1884, about a year and nine months after the appeal. There is no attempt in the bill to account for these delays, or any of them, nor is it alleged that they were not at Bowzer’s instance or occasioned by his act or conduct.
It is to be remembered there is no allegation of misrepresentation, concealment or other fraudulent practices by any one, whereby, or in consequence of which, Bowzer was misled,, either as to his rights or the remedy he should pursue to enforce them. All parties, so far as appears, acted in the most perfect good faith, and Bowzer had equal knowledge with Crowell in respect of the partnership affairs and of all that took place at the time of the dissolution of the firm. No act or declaration of Crowell, or any one representing him, is charged, to have in any way influenced Bowzer, who knew every fact, relating to his claim against Crowell, and, so far as appears, had the necessary evidence to establish it. There is no pretense that he was mistaken as to any fact,- but that he came to a wrong conclusion as to the effect of the acts of himself and Crowell on the 21st of May, 1879.
It is clear that the mistake of Bowzer, if he was mistaken, was purely through his own neglect and inattention to the affairs relating to the partnership. There is no pretense that Bowzer took the usual and ordinary precautions of taking the advice of counsel even, either as to his rights or as to the remedy to be pursued. 1 It may well be, as alleged, that he acted in good faith upon his belief; but good faith alone, without the exercise of reasonable diligence, will not entitle him to relief in a court of equity. It is said that nothing can call forth a court of equity into activity but conscience, good faith and reasonable diligence. In the absence of fraud or concealment, before a court of equity will interfere because of the mistake of a party, even as to a matter of fact, the mistake must be such as the exercise of ordinary diligence would not have prevented.
It may be said that Bowzer was not bound to use greater diligence in prosecuting his claim, for the reason that he had five years within which to have brought his action, and that no laches could be attributed to him during that period. It is undoubtedly true that the statutory period of five years would bar his claim, and he might have filed a bill or brought his action of account at any time within that period; but he is here seeking to remove the disability to the maintenance of his bill created by the bar of the statute. If he had prosecuted his case in the circuit court with reasonable diligence even, after his appeal from the probate court, this question would have been settled long prior to the completion of the bar.. It is apparent that the failure of Bowzer to discover his mistakes, both as to his rights and his remedy, is not shown by the bill to have been without negligence on his part. In other words, the bill wholly fails to show that he acted with diligence in his endeavor to ascertain the truth. If he or his assignee, therefore, must suffer, it is because they have not made such a ease by-their bill as will call into activity a court of conscience. Conner et al. v. Goodman, 104 Ill. 365.
While mistake is an independent head of equity jurisdiction, it has been repeatedly held that a mistake or misapprehension of the law will not entitle the party to relief in a court of equity. (Goltra v. Sanasack, 53 Ill. 456; Ruffner v. McConnel et al. 17 id. 213 ; Shafer v. Davis, 13 id. 396; Sterns v. Page, 7 How. 829; Weed v. Weed, 94 N. Y. 243.) To this general rule there are' exceptions, comprising a very large class of cases, where a person has acted in respect of his property or estate under a misapprehension of his existing legal right or liability; but it will be found, upon examination of those cases, that the case here under consideration does not fall within the rule announced. 2 Pomeroy’s Eq. 849, and authorities.
It is further argued by counsel for appellant, that his claim is entitled, by analogy, to the benefit of section 25 of the Limitation act, which provides that where, during the pendency of a suit, the statutory period has passed, and the plaintiff is afterward non-suited, one year shall be allowed from the time of such non-suit within which to commence an action. This case comes within no provision of that section. The claimant in the proceeding in the probate court, which was subsequently appealed to the circuit court, was not non-suited, but a judgment was rendered against him in that action. The case was finally tried in the circuit court before a jury, a verdict was rendered in favor of the estate, and judgment was entered upon the verdict. If that court had jurisdiction, and it could be contended that that proceeding was an election of the remedy of Bowzer, equity would not interpose to relieve him from the effect of his choice, and the judgment there rendered would be a bar to his assertion of his claim in another forum. Penn v. Reynolds, 23 Gratt. 518; Story’s Eq. 1572.
The demurrer to the bill was properly sustained, and thp ■ judgment of the Appellate Court will accordingly be affirmed.
Judgment affirmed.
