Lead Opinion
Thе complaint plainly stated a cause of action on contract accrued to plaintiff more than sis years before the commencement of the action. A demand was not necessary to perfect such cause, provided defendant had a reasonable time to account to his client. It ripened as soon as the attorney breached his duty inhering in his agreement to remit to plaintiff the proceeds of the note, or notify her of readiness to pay within a reasonable time after the money was received. That is elementary. Mechem, Agency, § 530.
It is often said, in'adjudicated cases of this kind, that no cause of action аrises except upon demand and refusal to pay, so one is liable to indulge in the idea that there is an unconditional rule to that effect. Such rule presupposes that the collector» has, treasonably, notified his principal of the collection add only waits opportunity to pay over the money, personally, or remit the same in such manner as such principal may direct. The client need not, in order to protect his interests, in such circumstances as here, keep in touch with the attorney’s office in order to demand the money. He may wait for notice, relying upon the duty to give such notice within a reasonable time, and in case of failure he may sue without further ceremony. The delay completes the cause of action as perfectly as demand and refusal. Mechem, Agency, § 531.
Appellant’s counsel contend that there was an efficient postponement of the limitation upon her right and cite authorities elsewhere, some to the general effect that, fraudulent concеalment supersedes the positive terms of such a law, the court, thus engrafting a condition upon the written law, and some based on the condition being expressly stated in the statute, — overlooking the fact that the whole subject has been several times covered by adjudications of this court showing that our statute is unconditional in its letter and that it does not admit of change by construction or displacement by fraud or estoppel. A cause of action on contract, whether for damages or otherwise, commences to run from the time of the breach, whether the facts are known to the party having the right or not and if the latter, whether through ignorancе, neglect, or mistake of such party or fraud of his adversary. There is no exception. Boyd v. Mut. F. Asso.
The inexorable nature of our statutes of limitations is most emphatically illustrated by Pietsch v. Milbrath, supra, and, in effect, by all the other cited cases, by use therein of this language from Bank of Hartford Co. v. Waterman,
“Ignorance of his rights on the part of the person against whom the statute has begun tо run, will not suspend its oper*101 ation. He may discover bis injury too late to take advantage of the appropriate remedy. Such is one of the occasional hardships necessarily incident to a law arbitrarily making legal remedies contingent on mere lapse of time. . . . Strong equitable considerations in favor of the present plaintiffs seem, however, to grow out of the fact, that they were actually betrayed into ignorance of their rights by the wrongful acts of the defendant himself. ... It is palpably unjust for the defendant to set up the statute as a defense under such circumstances; to do so is in one sense taking advantage of his own wrong. Yet it is difficult to see that he is not, by the clear provisions of the statute itself, protected in so doing. . . . Lord Campbell properly suggested, relative to a controversy not unlike the present, that ‘hard eases must not make bad law.’ ... If the dictum of Lord MaNSPIeld that ‘there may be cases which fraud will take out of the statute of limitations,’ were confirmed by direct adjudication, we should be reluctant to withhold thе application of the doctrine in the present instance.”
That seems, at first blush, to be counter to the rule that there is “no wrong without a remedy,” but that valuable maxim deals with only such transgressions as are, by the law of the land, of sufficient dignity to merit judicial interference. That which is, by such law, right, is not wrong within the basic maxim of such judicial remedies. “Courts must regard wrongs, not remediable because of the statute, as not wrongs at all, at least of any greater dignity than those breaches of moral obligations which must always be left to be redressed in other ways than by judicial tribunals, they not being within the maxim ‘There is no wrong without a remedy.’ ” Rowell v. Smith,
The language of the last quotation may well challenge the attention of respondent in this case. There may be purely moral transgressions quite as perilous to the transgressor as any judicially remediable infraction of legal or equitable rights. “The way of the transgressor is hard” is a maxim of universal application. It apрlies to the morally delinquent as well as to the wrongdoer who can be judicially punished. True, he may sometimes “boldly confess his wrong and defy his adversary in any judicial forum,” but there is the high court which is above human creation and there is the court of conscience and of public opinion. Notwithstanding all the exultation of victory one mаy indulge in, shielded by the statute, he must in the end bow, most humbly, before those other tribunals, and the inevitability of it must make him pause before it is too late, for the penalties are sure to come in some way, vindicating the maxim that “The way of the transgressor is hard,” even where the maxim “There is no wrong without a remedy” is conditional, unlike the former which is not.
The foregoing is not intended to cast discredit, in general, upon pleading the statute of limitations. It has a necessary place in our social state and judicial system, yet there are circumstances where it is unconscionable to plead it, notwithstanding it is right, in law and equity, by legislative standards to do so. That it cannot be avoided for еquitable reasons, it must be understood, is a matter of legislative rather than judicial creation. The former, with conditional limitations as to constitutional rights, is the supreme and infallible judge of what shall be the test of right conduct in the relations between members, of society. However, the very pleading of the statute and insisting upon it might be such an infrаction of duty as to create an offense, by itself, in the field where integrity is so essential as in case of an at-
While it seems best, under the circumstances of this case, to say what has been said, since on the face of the record the respondent stands confessing receipt and retention of his client’s money, and defying her to obtain redress, we must assume that he has some better defense and used the summary one of the statutory bar rather as a convenience or as a justifiable necessity becаuse of undisclosed facts. If the outcome happens that all circumstances must be judicially inquired into, it will, perhaps, be the better for both parties.
The foregoing sufficiently shows that the cause of action here does not fall within sub. 7, sec. 4222, Stats., providing that “An action for relief on the ground of fraud in a case which was on and before the twenty-eighth day of February A. D. one thousand eight hundred and fifty-seven, cognizable solely by the court of chancery. The cause of action in such case is not deemed to have accrued until the discovery, by the aggrieved party, of the facts constituting the fraud.” First, this is not an action for relief upon the ground of fraud; second, such an action, within the meaning of the statute, was not at the time solely cognizable in equity. The word “action” has reference to the remediable right. If a violated right was formerly remediable at law or in equity, then, in case of either form of action being resorted to, it is not within the saving grace of the statute. That is, when the bar is complete at law it is also complete in equity. The mere form of аction, as to a matter remediable in either one field or the other, .does not affect the question. Figge v. Bergenthal,
The facts disclosed have challenged our attention as to whether aрpellant does not state an existing cause of action for redress for a remediable wrong committed subsequent to the breach upon which the statute has run. Such a breach is possible between trustee and cestui que trust or parties sustaining similar relations, as indicated in Ludington v. Patton,
It is considered that the rule stated applies here, so far as the complaint goes. It shows the breach of duty. Does it go far enough to show, at least inferentially, that pecuniary loss was caused to appellant by the breach ? That requires the fact to be pleaded that appellant reasonably relied upon the false representations made to her and so lost her claim. Ordinarily, in an action for damages for fraudulent representation, the pleader states in terms, that he relied upon the alleged false representation. But no technical method of pleading the matter is nеcessary. If the fact be stated, substantially, that is sufficient under the rule which applies, in general, under our liberal system of pleading. True, reliance upon fraudulent representations or failure to disclose, being of prime importance in testing the sufficiency of a complaint in an action for damages for fraud, the courts hаve been accustomed to look for some express allegation on the subject. Careful pleaders have been accustomed to exercise efficient care not to omit it. In Francois v. Cady L. Co.
In this we do not fail to appreciate, as is thought, what was said in Ludington v. Patton,
By the Court. — The order is affirmed, and causе remanded for further proceedings according to law.
Dissenting Opinion
(dissenting in part). Under the liberal rules for the construction of pleadings which this court has adopted and which it generally follows, it should be held that the complaint in this case contains sufficient by way of averment to state a cause of action for damages for false representations. The complaint alleges that defendant repeatedly informed the plaintiff that the note had not been collected, and, further, that she did not know that it had been collected until November, 1910, whereupon demand was made, etc. The implication may fairly be drawn from these averments that plaintiff did not bring her action within the six-year period because of the false representations. If this is true, she necessarily relied on them, and the. order should be reversed.