Bradford v. McCormick

71 Iowa 129 | Iowa | 1887

Seevers, J.

It is insisted by counsel for the appellees that a right of action accrued upon the payment of’ the money to the justice, and, as more than three years had elapsed when the action was commenced, it is therefore barred under section 2529 of the Code. Counsel for the plain tiff concede that the action is barred under that section, unless it appears that the justice fraudulently concealed from the plaintiff the fact that the money had been received. Counsel for the appellant further concede that the action is not saved by Code, § 2530, but that the rule contended for exists independent of the statute, And it was so held in District Township of Boomer v. French, 40 Iowa, 601, in which case the rule is thus stated: “That, when the party against whom a cause of action existed in favor of another, by fraud or actual fraudulent concealment prevented another from obtaining knowledge thereof, the statute would only commence to run from the time the right of action was discovered, or might, by the use of due diligence, have been discovered.” Many authorities are cited in support of this rule, and it “applies when the cause of action does not grow out of the fraud alleged, but exists independently of it, and is governed by the general statute of limitations.” In Findley v. Stewart, 46 Iowa, 655, it is also said, by Day, J., speaking for the court: “Now, while it is true that mere ignorance of their right upon the part of those entitled to the land would not prevent the statute of limitations from running, yet that effect is produced when this ignorance arises through the fraudulent acts of him in whose aid the statute is invoked.” It is true, the statute in this case is pleaded by the sureties, and they have not been guilty of any fraud; but they, without doubt, we think, are bound by the fraudulent conduct of the principal defendant. The liability of a surety is dependent upon the liability of the principal. The ordinary rule is, if the principal is bound, so is the surety. Charles v. Haskins, 14 Iowa, 471 ; Boone Co. v. Jones, 54 Id., 699.

The plaintiff testified that in July, 1882, and afterwards, in 1883, he made inquiry of the justice whether anything had been paid on said judgment, and"he was told there had not. The justice so wrote the plaintiff on more than one occasion. There is no evidence .contradictory to that of the plaintiff. This, we think, is a fraudulent concealment of a material fact. The money had been paid, and the justice so knew, and he was bound, upon inquiry being made by plaintiff, to so state. Instead of so doing, he told a willful and deliberate falsehood, and thereby the plaintiff was deceived. It is true that when the money was paid the justice made an appropriate entry of such fact on his docket, and if the plaintiff had inspected it he would have discovered such fact. It is also true that such docket is a book which all persons, interested at least, have the right to examine, and therefore it is insisted that, because the plaintiff failed to do so, the action is barred for the reason that he “ might, by the use of diligence,” have discovered that the money had been paid to the justice. We, however, think that the plaintiff had the right to rely on what the justice told him. Ordinarily, this is all that any one would do. The most careful business man, we think, would ordinarily rely- on such information.

It is insisted that fraud is not sufficiently pleaded; but we think otherwise. Conceding, then, that the cause of action accrued when the money was received by the justice, we do not think it is barred under section 2529 of the Code, and that the court erred in so holding.

Reversed.