66 Pa. 192 | Pa. | 1870
The opinion of the court was delivered, January 3d 1871, by
— On the 10th of February 1858, J. B, Evans, Esq., gave his receipt to A. S. Rhines for a due-bill on Lukins & Bee-
What is a reasonable time is a (question most frequently dependent on circumstances, and therefore to be submitted in such cases to the jury. In the case of Livingston v. Oox, 6 Barr 360, a suit against an attorney for neglect of duty, six months’ failure to commence a suit against a debtor in failing circumstances seems to have been held an unreasonable time, and the plaintiff Cox recovered against Livingston. And where the duty is immediate, as in the-collection of money, the right of action accrues and the statute begins to run from the time of the attorney’s receipt of the money, even though he gives no notice of its collection, the law deeming it gross negligence on part of the creditor to neglect to make inquiry for six years, unless the attorney has been guilty of concealment or of some act to put his client off his guard. Such is the modern doctrine qualifying and to some extent overruling McDowell et ux. v. Potter, 8 Barr 189, and some previous cases. See Campbell’s Administrator v. Boggs, 12 Wright 524, Downey v. Garard, 12 Harris 52, and authorities therein cited. The same duty of diligence on part of the creditor to prevent the bar of the statute, is to be found in analogous cases; as where a call for instalments under a subscription to stock is necessary: Railroad Co. v. Byers, 8 Casey 22. See also Morrison v. Mullin, supra. Let us examine, then, in view of these principles, the facts of the case before us. Evans received the note for collection on the 10th of February 1858, and this suit was not commenced against him until seven years and five months had elapsed. Was the period of one year and five months sufficient to enable the court to say as a matter of law, that the delay by Evans for that time to take any steps toward collection was unreasonable ? Doubtless it was in the power of Rhines to show, if the facts were so, that during this time Evans had proceeded diligently, and that the lack of diligence occurred afterward during the period of the remaining six years; or to show that Evans had given him false information or otherwise misled him, and thus to prevent the bar of the statute. But as the case stands before us Evans did nothing whatever, and Rhines remained quiescent during this whole period of seven years and five months. Under these circumstances what was to be left to the jury ? There were no facts, no circumstances to enable them' to determine the reasonableness or unreasonableness of the delay-except the mere lapse of time, and this was fully within the knowledge of the court. It became, therefore, a question of law for the court to decide, and surely it is not a difficult question to determine, for
The plaintiff in error contends that the understanding testified to by Lukins that Lukins & Beeson were to have an extension of time on the due-bill and the giving of the new note which fell due on the 13th September 1858, were a sufficient excuse for the delay until September 1858, leaving but ten months intervening before suit brought, and that this is not an unreasonable time to delay before proceeding to collect the money. But there is no evidence that the fact of the renewal was known either to the plaintiff or the defendant, or that the defendant was postponed by it. Had the plaintiff consented to it, that itself would have discharged, the defendant, for the renewed note was paid at maturity. If the renewed note had anything to do with Evans’s delay in proceeding on the original due-bill, it does not appear, while if he had taken prompt steps the new note would have been discovered, and if given by Lukins & Beeson without the plaintiff’s authority, they could have been pursued on the due-bill in time to prevent the claim of the plaintiff against them from being barred by the Statute of Limitations. From these views it is evident that the judgment of the court must be affirmed, not, however, because the statute began to run from the date of the receipt, but because the negligence of Evans was so great, that, standing unredeemed by any facts or circumstances in the case, the court was bound to say to the jury that the period of delay of seventeen months was unreasonable, and the statute had barred the plaintiff’s action before he began his suit.
Judgment affirmed.