Reizenstein v. Marquardt

75 Iowa 294 | Iowa | 1888

Rothrock, J.

— As the cause was determined upon a demurrer, it is necessary to set out the material facts as they appear in the petition, .and the amendments thereto. They are in substance as follows: By the original petition and the first amendment it was averred that in the year 1877 the plaintiff delivered the watch in question to the defendant for repair and safe-keeping; and that he demanded the same of the defendant about March, 1887; and that defen dant gave an évasive answer to the demand ; and that a formal demand was after-wards made, and defendant failed and refused to deliver the watch. By the second amendment it was averred that said watch was delivered to the defendant for repairs; that after the repairs were made, and in the same year, at the suggestion of the defendant, the watch was left in his possession for safe-keeping; that the parties afterwards had a number of conversations about the watch, in which defendant proposed to purchase the same, but plaintiff refused to sell; that these conversations occurred about every year, or oftener; that no demand was made until about 1887, and that the defendant at no time refused to deliver the watch to plaintiff until that time; that when the demand was made defendant delivered to plaintiff a lady’s watch, which was deposited with defendant by plaintiff at the same time, and under the same contract as the watch for the conversion of which this action- was brought; that, at the time the watch in question was delivered to the defendant, the parties were intimate friends and neighbors, and that the plaintiff allowed the watch to remain in the possession of defendant because of said intimate friendship, and by reason of the confidence placed in him as a friend and neighbor. The demurrer to the petition was on the ground of the statute of limitations. The action was commenced on the twenty-fifth day of October, 1887, and actions of this kind are barred in five years from the time the cause of action accrues. Code, sec. 2529, subd. 4.

It is claimed in behalf of the appellee that the statute commenced to run at the time the deposit was made, and that, a demand of the watch not having been made within five years from the deposit, the action is barred. In other words, the claim is that no action can be maintained because demand was not made within five years after the inception of the relation of bailor and bailee between the parties. It is a general rule that a party cannot prevent the running of the statute of limitations by omitting to do some act which he might have done, or which he is required by law to do. A party, having a claim for money against a county, cannot extend the time for commencing the action by failing to present his claim to the board of supervisors. Baker v. Johnson County, 33 Iowa, 155. The same rule applies to promissory notes payable on demand. And, generally, where a right of action depends upon a demand, such demand must be made within the period prescribed by the statute of limitations. Ball v. Keokuk & N. W. Ry. Co., 62 Iowa, 753. This is the rule as to actions arising upon contracts, express or implied. See Thrall v. Mead’s Est., 40 Vt. 540; Codman v. Rogers, 10 Pick. 112; Palmer v. Palmer, 36 Mich. 488; Jameson v. Jameson, 72 Mo. 640. In Codman v. Rogers it is held that the statute will not begin to run until demand, yet, unless demand be made in a reasonable time, the plaintiff will not be entitled to relief; and a reasonable period of time is determined by the circumstances; and where no cause for delay is shown, the time is to be fixed by the statute of limitations. But the action in this case is in the nature of an action for a tort. It is not grounded upon an agreement to pay money for the watch on demand for the money. The defendant was engaged in the business of a jeweler and repairer of watches. It is alleged in the petition that the watch is very valuable, and worth some three hundred and twenty-five dollars, and that after it was repaired it was left with defendant for safe-keeping. It was not contemplated by the parties that a demand would be made immediately. If such had been the intention, it would not have been deposited for safekeeping. No right of action accrued until there was a wrongful conversion _ of the property. The rights and obligations of a bailee of personal property are very much like those of a trustee of a resulting trust in realty, and it has always been held that the statute of limitations commences to run in favor of a trustee from the time when he denies the trust, and claims the trust property as Ms own. Peters v. Jones, 35 Iowa, 512 ; Gebhart v. Sattler, 40 Iowa, 152. Upon the same principle the statute of limitations will not begin to run in favor of a bailee until he denies the bailment and converts the property to Ms own use. And the refusal to deliver the property on demand is a conversion. In our opinion, the demurrer to the petition should have been overruled.

Reversed.