99 Iowa 292 | Iowa | 1896
It appears from the averments of the petition that the plaintiff is the son of Andrew W. Mather, who was a soldier in the war of the rebellion, and who died while in the military service. The plaintiff was about three years old at th§ time of his father’s death, and, under the laws of the United
The facts relied upon by the’ plaintiff, and set forth in the petition, to avoid the limitation, are, in substance, that the defendant was required to render a truthful account of the amount of money received by him, and that the plaintiff trusted his guardian and believed his representations, and had no reason to believe that he was deceiving plaintiff as to the amount of money received. And there is the further general statement that defendant fraudulently concealed from plaintiff the true amount received by him, and fraudulently kept from plaintiff the pension drafts and other papers showing the amount received, and by said fraudulent concealment and representations prevented plaintiff from obtaining knowledge of the facts, and the true amount received; that plaintiff
The above is a fair statement of the substance of the petition, omitting repetition and unimportant averments. The demurrer was upon the ground that the petition shows upon its faee that the action is barred by the statute of limitations. It was held in the case of District Township of Boomer v. French, 40 Iowa, 601, “that where the party against whom a cause of action existed in favor of another, by fraud or actual fraudulent concealment, prevented such other 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 diligence, have been discovered.”' This rule has since been followed in a number of other cases. See Carrier v. Railway Co., 79 Iowa, 80 (44 N. W. Rep. 203), and cases there cited. Proper diligence must be exercised to discover the alleged fraud. Humphreys v. Mattoon, 43 Iowa, 556; Brunson v. Ballou, 70 Iowa, 34 (29 N. W. Rep. 794); Laird v. Kilbourne, 70 Iowa, 83 (30 N. W. Rep. 9). Applying that rule to the facts of this case, it is very plain that the demurrer was properly sustained. The allegations of the petition are in general terms, to the effect the defendant was guilty of fraud by concealment. There are no facts set forth in the petition from which it can be said that the plaintiff’ could not at any time- within five years after the settlement, have obtained from the pension office a correct