23 F. 67 | U.S. Cir. Ct. | 1885
This action is brought by A. T. Green, of California, against the defendant, a corporation duly formed under the laws of
The Code of Civil Procedure, § 66, provides that the defense of the statute of limitations may be made by demurrer when it appears on the face of the complaint that the action has not been commenced within the period- prescribed by law. The contention of the defendant is that it appears from the complaint that whatever was to be paid to the plaintiff for his services in procuring a purchaser of the property was due and payable on May 31, 1875, when the service was performed, or, at the furthest, on July 26 th, when the purchaser paid the first installment of the purchase money, and the plaintiff received the two-fifths of the commission claimed by him, and that at the expiration of the six years thereafter, to-wit, July 26, 1881, the claim for the balance of $3,000 was barred by the lapse of time. The plaintiff’s answer to this proposition is that by the agreement of July 26th, the payment of his claim was postponed until the defendant should receive the remainder of the purchase money, which did not occur until January 7,1884, at which time the statute commenced to run against the claim, and not before; citing Webber v. Williams College, 23 Pick. 302; Ang. Dim. p. 111, § 120; Lichty v. Hugus, 55 Pa. St. 434; Irving v. Veitch, 3 Mees. & W. 90; According to the complaint this $3,000 was due the plaintiff at the date of this agreement, and had been since June 1st, from which time he seeks to recover interest on that sum,. Without doubt, if the arrangement made between the parties on July 26, 1875, constituted'a valid agreement, the day of payment
But it does not appear that there was any consideration for the plaintiff’s promise to delay action in the premises. The defendant neither gave nor foreboro anything in consideration of or on account of the plaintiff’s promise; while, on the other hand, the plaintiff undertook the further service of helping to obtain the remainder of the purchase money without, as appears, any compensation therefor. The promise was then a mere nudum pactum, which did not in law prevent the plaintiff from maintaining an action in the mean time to recover whatever was due him from the defendant. And from the time the plaintiff’s right to sue commenced, the statute commenced to run against it, and cut it off by June 1, 1881. As was substantially said In Chace v. Chapin, 130 Mass. 128, of a similar agreement between the maker and payee of a note to postpone the day of payment thereof, there is no advantage to the defendant nor disadvantage to the plaintiff growing out of the agreement which can constitute a consideration Cor the plaintiffs promise to postpone the payment of the sum then due him, and therefore it is not binding on him. Notwithstanding the promise, he could, at any time within six years from Juno 1,1875, have maintained an action against the defendant to recover the unpaid commission. Bee, also, Shapley v. Abbott, 42 N. Y. 447.
The cases cited by counsel for the plaintiff do not support his contention in tliis respect. In, Irving v. Veitch, supra, the agreement to postpone the payment of the defendant's notes was made on a valuable consideration. Besides, there were payments made on them within six years before the action was commenced, which circumstance of itself was sufficient evidence of an acknowledgment whereon to raise an implied promise to pay the notes. In Lichly v. Hugus, supra,\i was decided that the statute will not run against the claim of an attorney for compensation for semens unfit the undertaking in which lie is engaged is performed, or the relation of attorney and client is terminated. To the same effect is the citation from Angel, supra. But the relation of attorney and client never existed between these parties. And. however analogous the relation between them may have been to that of attorney and client, if came to an end on June 1, 1875, and the only relation that existed between them thereafter was that of debtor and creditor. Tito plaintiff was nob employed for a continuous and indefinito service, but to do a specific thing,—a job; to find a purchaser for the defendant’s land at an agreed compensation, This he did on May 31,1875, and was then entitled to his commission. Afterwards, the plaintiff, on receiving two-fifths of what was due him, agreed to wait for the payment of the remainder until the happening of a certain event.
The case of Webber v. Williams College, supra,, is not in point. The plaintiff held the note of the defendant, which would become due
The Code of Civil Procedure, § 24, provides that “no acknowledgment or promise is sufficient evidence of a new or continuing contract, ” to take a case out of the operation of the statute of limitations, “unless the same is contained in some writing, signed by the party to be charged thereby.” But I presume the rule in pleading a contract within the statute of frauds applies in this ease. It is sufficient to allege the matter according to.its tenor or legal effect, without stating that it was in writing, and if the adverse party wishes to take advantage of the statute he must aver that it was not in writing as a matter of defense or reply, as the case may be. Lamb v. Starr, Deady, 353.
Assuming, then, that the agreement of July 26th was in writing, it was in effect a valid acknowledgment of an existing debt that the defendant was willing to pay. And from this the law would imply a promise by the defendant to pay, grounded on the consideration of the antecedent liability, from which point of time the statute of limitations commenced to run against the claim anew. Bell v. Morrison, 1 Pet. 351; Ang. Lim. c. 22. The acknowledgment, however, does not take the case out of the operation of the statute prospectively, but only as to the past. It commences to run again simultaneous with the new promise, and in six years thereafter bars the remedy thereon.
The demurrer must be sustained; and it is so ordered.