132 Ark. 32 | Ark. | 1918
(after stating the facts). The appellant testified that he never authorized anyone to collect the money on his claim for the loss of his mill, and that it was in the year 1916 when he first learned that some one had done so. He did not go to Hinkle and Carl Lee and did not know that they had collected the money. He had not been on speaking terms with Hinkle for years and had not been associated with him. He further testified that he did not know that the check had been sent- to Carl Lee until just before the bringing of the suit. He did not sign his name on the back of the check. The check itself shows on its face that appellant was one of the payees, and appellant alleges in his complaint that he never endorsed the check, and that he did not employ Carl Lee to represent him in the matter, and did not know that he had endorsed his name on the check. Carl Lee, in his answer, makes a general denial of the allegation of fraud, but he does- not specifically deny that he endorsed the name of Crissman on the check, nor does he deny that he in this way collected the money.
; We must assume, therefore, that Carl Lee endorsed the name of the appellant on the check in order to collect the .same, and that in so doing he undertook to act as the agent or attorney for the appellant. -
Since the pleadings and the evidence tended to prove that appellee Carl Lee, in collecting the money, assumed to .act as the agent of Crissman, the latter would not be barred from suing his agent or attorney for the amount so collected, provided he brought the suit within three years after he received notice of such collection. Leigh v. Williams, 64 Ark. 165.
The testimony of the appellant tends to show that he had no notice that appellee Carl Lee had collected any money for him. “It is the duty of an attorney or agent who has collected money as such to give notice of the fact to his client or principal, within a reasonable time. The statute will not commence to run unless the client has notice by some means, unless the attorney can show that the client, could, by ordinary diligence, have known of the collection. ’ ’ And the burden of showing this is on the attorney or agent. Jett v. Hempstead, 25 Ark. 462; See, also, Whitehead v. Wells, 29 Ark. 99.
It was at least a question for the jury to say whether or not, under the evidence, the appellant, by the exercise of ordinary diligence, could have known of the collection made by Carl Lee for him, and whether or not reasonable time had elapsed for the appellant to make demand upon Carl Lee for the money.
The court therefore erred in instructing the jury as a matter of law that the appellant was barred by the statute of limitations from maintaining this suit. For this error the judgment is reversed and the cause remanded for a new trial.
