Commonwealth v. Folz

23 Pa. Super. 558 | Pa. Super. Ct. | 1903

Opinion by

Smith, J.,

If money be placed by one person in the hands of another, to be paid to a third, the latter may recover it by an action against the second. In the absence of any qualifying condition, the right of action accrues upon the receipt of the money by the intermediary, and the statute of limitations then begins to run. This is so, even though the beneficiary is ignorant of the transaction: Hostetter v. Hollinger, 117 Pa. 606. And where the depositor has, from the date of the deposit, a right to recall the money before it reaches the beneficiary, his right of action accrues at that date, and the statute then begins to run against him. Since the statute runs against a beneficiary ignorant of his right, a fortiori it must run against a depositor with full knowledge of it. That the latter neglects to ascertain whether the duty intrusted to the intermediary has been performed, the means of discovery being within his reach, cannot affect the operation of the statute : Lewey v. H. C. Frick Coke Co., 166 Pa. 536.

In the ease before us, it is a finding of fact, not questioned by the appellant, that the relation between the plaintiff: and the defendant, when the money was placed by the former in the hands of the latter, was that of principal and agent. At any time before payment by the defendant to the mortgage creditor, the plaintiff had a right to revoke the agency and recall the money. It was the duty of the agent to use the money as directed, or return it to the principal. Though this duty was in the nature of a trust, it was but a constructive trust, involving only the payment of a fixed sum, and an action for its recovery, by either the principal or the mortgage creditor, was clearly within the statute of limitations. As against both, in the absence of any qualifying circumstance, or fraudulent concealment, the statute ran from the agent’s receipt of the money, and here the referee finds no such circumstance or concealment. The plaintiff’s ignorance of the defendant’s breach of duty was due to laches, since an examination of the record would have shown that the mortgage remained unsatisfied. In addition to this, it is a finding of fact that the plaintiff, in the conduct of its business, kept a “ title plant,” showing all mortgages on lands in the city, with date of satisfaction, and also a book in which were noted all incumbrances not satisfied at the time of settlement, as to which satisfaction was to be entered. It is a further finding of fact that part of the money placed in the defendant’s hands was to satisfy another mortgage of $2,000, and that, less than a month later, this was satisfied and the satisfied mortgage shown to the plaintiff. The failure to show, in like manner, satisfaction of the $1,000 mortgage, should in the natural course of business have led to inquiry on the subject, through which the plaintiff would have learned of the defendant’s breach of duty.

While the money was received by the defendant November 9, 1892, the mortgage which remained unsatisfied was not due until February 2, 1895. It does not appear, from the findings of fact, when satisfaction was to be obtained. It does appear, however, that other mortgages not due were satisfied, and from an earlier agreement on the subject, between the plaintiff and the defendant, it may be inferred that the holder of this mortgage was willing to accept present payment. It certainly seems improbable that the plaintiff proposed to forego the use of the money for more than two years, by leaving it in the defendant’s hands to be paid on the maturity of the debt. On this point the declaration avers that the money was placed in the hands of the defendant on the express trust and confidence that he would forthwith appropriate the same in payment and satisfaction of the mortgage. As against the plaintiff, at least, we may accept this statement of the time fixed for performance by the defendant; and this leaves no doubt respecting the time at which the statute of limitations began to run.

Cases in which, on a sale of land, the payment of an incumbrance is assumed by the vendee, who makes default, and the, vendor, more than six years afterward, is required to pay it, are clearly distinguishable from the case in hand. While a principal may revoke the authority given to an agent, and recall the money before its payment to the beneficiary, a vendor has no corresponding power over the purchase money retained by the vendee to meet an incumbrance. He cannot rescind the agreement under which this money is held, and demand its payment to himself; nor, until he has been required to pay the incumbrance, can he demand reimbursement by the vendee. He has no right of action against the vendee until such payment, and the statute of limitations runs only from its date.

Judgment affirmed.