Quinn v. Gross

24 Or. 147 | Or. | 1893

Mr. Justice Moore

delivered the opinion of the court:

The appellant contends that the motion for a nonsuit should have been allowed, because, first, no case was made to prevent the statute from running; and, second, there was no competent evidence to establish plaintiff's claim.

1. It is a well-established principle of law that a cause of action against an agent does not accrue until demand is made: Buswell, Limitations, § 323. In Taylor v. Bates, 6 Cow. 376, it was held that an attorney was not liable to an action for money collected for another, till demand made, or directions to remit, and that he was not in default till he received orders from his principal. In Leake v. Sutherland, 25 Ark. 219, it was held that the agent was not hound to account to the principal until a time fixed by the stipulation of his agency, or a demand made by the principal. It is the duty of an attorney or agent who has collected money on account of his client or principal, to give notice within a reasonable time of the fact: Story, Agency, § 208. When the principal has received such notice he is bound to .make demand for it within a resonable time; and if he omits to do so, he puts the statute in motion, and when he suffers the time which it limits to expire without bringing suit, is concluded by his laches: Jett v. Hempstead, 25 Ark. 463. In State v. Sims, 76 Ind. 328, it was held that the principal’s money in the agent’s hands was, in the absence of any allegation of proof, presumed to have been lawfully collected; and that before it could be recovered from the agent a demand must have been made, which must be alleged and proved. If the money was unlawfully collected, however, no demand Was necessary. A distinction seems to be made between general and special agents. If the agency be general or continuing, the statute would not commence to run until the termination of the agency; but if the agency were special, and related to special transactions, in regard to which the agent had received special authority, then the statute would begin to run from each transaction: Hopkins v. Hopkins, 53 Am. Dec. 664.

2. Applying these rules to the case at bar, it appears that the plaintiff by her power of attorney appointed her father as her agent to dispose of her property in Oregon and elsewhere, and to manage and care for the proceeds thereof. This instrument, by its terms, made the testator the general agent of the plaintiff. The agency was a continuing one, and the statute would not commence to run until it was terminated, or until the agent had notified the principal that the proceeds of the sale of her property were at her disposal, and then, if she failed to demand it within the statutory period, her right of action would be barred. The agency being general and continuing, the money received by the testator on account of the sale of plaintiff’s land must, in the absence of proof of the termination of such agency, be considered as held by him for her use and benefit.

3. The record shows that before this action was commenced the plaintiff had demanded the allowance of her claim, which had been denied, and this demand she alleges and proves. Section 1134, Hill’s Code, provides that no claim which shall have been rejected shall be allowed by any court except upon competent evidence other than the testimony of the claimant. The record shows that plaintiff introduced in evidence copies of the following records: The United States patent to her mother; her power of attorney to her father; and the deed to W. S. Ladd. She then offered in evidence letters from her father to her, and testified that since the execution of the power of attorney he had sent her only forty-seven dollars. When the plaintiff had established the agency, and the sale of her property by the agent, she had made her case, and the burden then shifted to the defendant to show that the agency had been terminated more than six years prior to the commencement of the action: Jett v. Hempstead, 25 Ark. 463. The defendant having offered no testimony upon that subject, it is clear that the plaintiff’s claim was established by competent evidence without her testimony.

4. The instruction of the court to the jury, that “In general, when an agent has transacted business for his principal, especially when he has received money belonging to his principal, he should make report of those facts at the earliest convenient time to the principal, unless there is something in the agreement between them which excuses the agent from rendering such account; and at all events it is the duty of the agent, when a demand is made by the principal for an account, or for the payment of money received by him, to respond according to the nature of the demand; and if he fails to do so, he cannot claim the benefit of the statute of limitations unless the conduct of the principal may have been such as to excuse him. But in order that the principal may be subject to the operation of the statute upon his claim, he must have had knowledge, either by direct notice from the agent, or by some other means, of the facts that the agent has received money and holds it for his benefit,” clearly enunciates the law applicable to the case; and the refusal of the following instruction, — “Before you can find for the plaintiff in this cause you must not only believe that the land was sold by Quinn as alleged, and that he kept the purchase price, but you must also believe that the plaintiff did not know of such sale as she alleged, and further, that she was prevented from getting knowledge of such sale by some wrongful act done by Terence Quinn,” — asked by the defendant, was correct. The agency being a continuing one, plaintiff had a right to expect that in case her property had been sold the proceeds were being managed by her father for her benefit.

The judgment of the court below will be affirmed.