23 Mo. App. 20 | Mo. Ct. App. | 1886
I. On this record this judgment was manifestly for the wrong party. The plaintiff’s cause of action accrued in 1867, whereas this suit was not brought until 1883, more than sixteen years after it might have been instituted. Under the statute it was barred in five years. But plaintiff contends that it is saved by section 3244, Revised Statutes, which provides, that: “If any person, by absconding or concealing himself, or by any other improper act, prevent the commencement of an action, such action may be commenced within the time herein limited, after the commencement of such action shall have ceased to be so prevented.”
The reply only alleges that defendant concealed from plaintiff the facts alleged in the petition; that, is to say, the defendant concealed from plaintiff the fact that he had received from Adamson certain vouchers, and the fact that defendant had collected the money thereon.
This is nothing more, in substance, than an affirmation that defendant had collected money and that plaintiff was ignorant thereof, as an excuse for not bringing- action to recover it within the time limited by the statute of limitations.
It has been the uniform construction of this statute that it was not designed to protect plaintiffs who were simply ignorant of the existence of the facts entitling
It was not designed to impose upon the debtors the obligation of going to their creditors and offer to confess judgment or acknowledge a liability before they can invoke the statute of limitations.
The evidence in this case shows that plaintiff, as early as 1866, was in possession of the knowledge that the voucher had been issued, and that defendant had placed it in the hands of Bray for collection. The means of information as to whether it had been collected were as accessible to plaintiff as to defendant. A simple inquiry of Bray would have enabled plaintiff to learn all about it, and the fact, presumably, that Suthlerland had it. And if not satisfied with the information derived from Bray, a letter to the department at Washington City would have informed him whether or not the money had been paid. The defendant gave him all the information lie had, or at least there is not one word in this record to show that defendant had knowingly misstated a single fact to plaintiff. As the plaintiff was advised of defendant’s relation to this matter, and of the necessity of a collection at Washington City, the defendant being a mere mandatory without hire, it was not to be expected that he would conduct the collection in person by going to Washington City. In the very nature of the case, and the almost universally known method of making such collections, the plaintiff knew that it had to be conducted by a sub-agent. And when advised of the fact that the voucher had been committed to Bray for such purpose, the plaintiff, by not objecting, acquiesced in the selection. In such case the sub-agent became as
It is- true the evidence shows that defendant executed to Sutherland a power of attorney, by which he was enabled to make the collection. But the petition is not framed upon any misconduct in this respect, nor does the reply impute any concealment of this fact by defendant as the basis of recovery; and if it had the proof would not have warranted a recovery based thereon.
II. But plaintiff contends that under the general issue the defendant is confined singly to the question : Bid he receive the money % And when plaintiff showed that defendant’s attorney, Sutherland, had collected the voucher, his case was made. The general denial has no such restricted office in this case. Under it the defendant was entitled to make any proof which included a fact within the terms of the allegations, necessary to support the plaintiff’s case. Northrup et al. v. Insurance Co., 47 Mo. 444. Under the general issue the defendant might prove any fact which went to show that plaintiff never had a cause of action against him. Greenway v. James, 34 Mo. 328.
Especially was it competent for the defendant, after it became necessary to support plaintiff’s case, that he should prove the fact of the power of attorney to Sutherland, and Sutherland’s collection, to show, as part of the res gestae, how the power of attorney came to be executed, and defendant’s ignorance of its existence, and the fact of payment to Sutherland.
As counsel for plaintiff contends, it was not' required of him that he should aver in his petition the manner or means of collection by defendant, as that was matter of evidence, and as the defendant cannot be held to anticipate the line of evidence the plaintiff may pursue, he must, ex necessitate, be permitted to meet such proof under the general issue. Lain v.
Unless the defendant, at the time of his coversations with the widow and plaintiff, concerning the voucher, knew that he had given the power of attorney to Sutherland, and that Sutherland had collected the money, how was it possible for him to conceal the fact from plaintiff % The statute admits of no such absurdity.
III. It is unnecessary to review the instructions. The court tried the case on a wrong theory. The instructions given entirely ignored the defence of the statute of limitations. An instruction which authorizes a recovery should embrace all the issues, which there is any evidence to support. Fitzgerald v. Haywood, 50 Mo. 516 ; Raysdown v. Trumbo, 52 Mo. 35; Porter v. Harrison, 52 Mo. 524.
The court should, on another trial, in explicit terms advise the jury, that under the evidence the plaintiff’s cause of action is barred, and he cannot recover, unless the plaintiff has satisfied their minds from the evidence that plaintiff, by some improper act of the defendant, was kept in ignorance of the facts, whereby he was prevented from bringing his action until the time he •did; and that mere proof of ignorance on the part of plaintiff that the money had been collected by Sutherland, will not warrant the jury in finding the existence •of the required improper conduct on defendant’s part.
■ The jury should also be told, that if they find from the evidence that defendant undertook the sale of the ■horses, and the collection of the voucher as an accommodation to Adamson, and that he gave the voucher to Bray for collection, and informed plaintiff of this fact, and that he executed the power of attorney to Sutherland under the belief that it was to Bray, and in good faith told the plaintiff that Bray had not collected the money, and was ignorant of the fact that Sutherland had'collected it, the jury should find for the defendant.
IY. As to the competency of the widow to testify
The judgment of the circuit court is reversed, and the cause is remanded for further proceeding conform- ■ ably herewith.