Bowman v. Sanborn, 18 N.H. 205

Bowman v. Sanborn

18 N.H. 205 | Superior Court of New Hampshire | 1846

Parker, C. J.

The declaration presents the simple case of a claim to recover for mon.eydiad and received by the defendant’s testator, for the use of the plaintiff, June 1, 1837. To this there is a plea of the statute of limitations.

Prom the replication it appears that the action had its" origin ,in the partnership transactions of the plaintiff and the defendants’ testator, as far back as 1831, and before that time, the partnership having been dissolved in that year; and the suit is to recover a sum which the plaintiff *207alleges in fact belonged to him on the settlement of the concern, but which he says he did not receive, because the deceased partner falsely and fraudulently concealed the financial interests of the partnership, representing and affirming that the partnership was indebted to certain persons in certain large sums of money, by reason of which the plaintiff paid out of the funds of the partnership to the deceased partner a large sum of money, to liquidate and discharge those supposed debts; that the deceased partner received the money on that representation, when in fact, as the plaintiif avers, nothing was due from the partnership. And he alleges that he had no knowledge of such fraudulent and false concealment and false representations, until within six years, nor before the decease of the partner, the defendants’ testator, who made them.

To this replication the defendants demur. If the alleged fraud and concealment were in the course of the partnership transactions, before and distinct from the settlement, on the dissolution of the partnership, and by means of it the testator received more than his share of the partnership funds, a question might arise whether the remedy of the plaintiif, if he have any, is not exclusively in equity. But the allegation here seems to be that the fraud occurred in the settlement, upon the dissolution. The partnership concerns, it seems, are settled. Assumpsit will lie in favor of one partner to recover from the other a balance due upon the final settlement; and it may well be that it will lie to recover a sum which one partner has received, through his fraud and concealment, upon such settlement, and which in fact belongs to the other; the affairs of the partnership being adjusted and settled, except so far as such liability exists. We do not determine how that may be. That question may, perhaps, be presented when the precise facts are ascertained.

The question at the present time is, not whether the *208plaintiff, supposing him to be entitled to relief, has his remedy in law or in equity; but, supposing him to have had a right of action at law,' as he alleges, whether that right is barred by the statute of limitations. That is the only answer set up by the defendants’ plea. The plaintiff, notwithstanding the lapse of six years, which he admits, attempts^ to avoid the operation of the plea, by alleging that the cause of action has its origin in the fraud and fraudulent concealment of the defendants’ testator, and that he had no knowledge of the fraud until within six years of the commencement of the action.

Upon the question whether fraud and concealment are sufficient to take a case out of the statute, the authorities are conflicting. 3 Mass. 201, First Mass. Turnpike v. Field; 3 Pick. 74, Welsh v. Fish; 4 Yeates 109, Jones v. Conway; 5 Mason 7, Sherwood v. Sutton; 3 Vt. 212, Payne v. Hathaway; Aug. on Lim. 195; 20 Johns. 33, 49, Troup v. Smith; 16 Wend. 460, McCree v. Purmort; 17 Wend. 202, Allen v. Mille; 24 Wend. 587, Humbert v. Trinity Church.

A,distinction has been taken, in this respect, between mere want of knowledge of the cause of action by the party seeking to recover, and concealment of it by the party sought to be charged. It has been held that an allegation .that the plaintiff had no knowledge of the cause of action is not sufficient, and it is said that the existence of the cause must have been fraudulently concealed by the defendant. 9 Green. 131, Cole v. McGlathry; 9 Vt. 110, 115, 116, Smith v. Bishop; 9 Pick. 213, Farnum v. Brooks; 5 Barn. & Cres. 149, Granger v. Gray. But it appears to us that it is not necessary that there should be concealment of the existence of the cause of action farther than such concealment is shown by fraudulent representations respecting, and concealment of, the facts out of which the cause of action arises, which is substantially this case. There maybe a fraudulent concealment of the *209cause of action at and subsequent to the time when it accrues, without prior fraudulent representations.

We are of opinion that where oné party fraudulently makes a representation respecting facts which give to the other party a cause of action against him, or fraudulently conceals such facts, by means of wbicli the latter is led to believe that such cause of action does not exist, until within six years prior to tbe commencement of his action, that is a sufficient answer to a plea of the statute of limitations. Whether such fraud takes the case out of the statute, or whether it constitutes a case not within the statute, because one not within the contemplation of the legislature, and so not within the scope of the statute, we need not determine at this time.

Judgment for the plaintiff on the demurrer.