161 Ind. 270 | Ind. | 1903
— Suit by appellant against appellee to recover money received by him as appellant’s attorney, and not paid over or accounted for. The complaint was filed September 12, 1901. Appellant charges therein that the defendant is a regular practicing attorney at law, and, as
The averments of the complaint concerning the business relations that arose and continued between the parties after the contract of employment sued on had been fully completed and terminated refer to a feature and theory of the ease independent of appellant’s claim and demand for a money judgment. They are not, therefore, within the isspe before us and will receive no further notice.
The question may be stated thus: Does the cause of action stated in the complaint present a demand for money, subject to the statute of limitation? This question must be answered in the affirmative unless the averments of the complaint make out such a trust as falls within the exclusive jurisdiction of a court of chancery. The trusts that are exempt from the operation of the statute are such only as have been created by express contract or judicial order or decree, and must be open and running in accordance with the provisions of the original compact or order at the time the action is commenced. “The trusts coming within this rule,” said this court in Raymond v. Simonson, 4 Blackf. 77, 81, “are direct trusts; technical and continuing trusts, which are not cognizable at law, but which are mere creatures of a court of equity. * * * So long as such a trust as that is continuing as a trust, acknowledged or acted upon by the parties, the statute, can not apply.” The court further says: “There are numerous eventual and possible trusts, that are raised by implication of law and otherwise, that fall within the control of the statute. Every deposit is a trust; every person who holds money to be paid to another, or to be applied to any particular or specific purpose, is a trustee, and may be sued either at law or in equity. * * * The sound rule then is, that the trusts not reached or affected, in equity
There is no averment of fraud, and we must treat the case as one into which no element of that kind enters.
The allegations of the complaint are to the effect that the plaintiff employed the defendant as his attorney to institute and prosecute against the railroad company a certain-action for damages. The employment alleged was not a general employment to perform all services required for an indefinite or for a definite period, but to perform a single and particular service, namely, the prosecution of the plaintiff’s suit to final judgment. When final judgment was rendered the contract of employment was at an end, and the trust complete. See authorities collated in 5 American Digest, 1571, §130. As an incident of the employment the defendant might properly receive payment from the judgment debtor, and, having done so, in the absence of an express contract that he should hold it to the plaintiff’s use, his possession was that of an agent, holding money due his principal, and in which case a cause of action enforceable at law arose upon an implied contract, or for money had and received for whatever amount of it was withheld from the client. Parks v. Satterthwaite, supra, p. 413. -
“The liability of an attorney for money of his client,” says an eminent author, “which has come to his hands, in the absence of fraud, is simply that of an agent or factor, and creates a simple contract debt only.” Wood, Limitations (2d ed.), §18.
Then conceding it to be the law that a statute of limitations-does not begin to run until a right of action has
It is averred in the complaint that appellee received-the $5,000 from the railroad company on December 6, 1886, and thereafter paid appellant $2,500 thereof, but failed and neglected to pay him the additional $500 as he had agreed. By appellant’s own averments he knew that appellee had received from the railroad company the amount agreed upon in satisfaction of his judgment, of which amount $3,000 was coming to him, and when he received the $2,500 he knew that appellee had in his hands and withheld $500 more due him pursuant to his employment and agreement, and which he might, upon the instant, have demanded, and set the statute of limitation going. If he failed to make the demand at that time, and stood by for fourteen years, or for any period beyond six years, without making it, he thereby became estopped from making it at all, and a demand subsequently made would be unavailing in entitling him to an action. The answer, therefore, setting up that the action did not accrue within six years, exhibited a sufficient defense to the claim for $500.
With respect to appellee’s undertaking to pay Johnson & Herr $1,250 of the money received, appellant is in no better situation to recover. Appellee made the promise after the money had been received from the railroad company, and, while in the act of accounting with appellant,
Appellant can not exonerate himself of laches by pleading and proving ignorance of nonpayment. Ho want of knowledge will excuse him that was not induced by appellee’s false representations or concealment. There is no claim that false representations were made. The averment is that “during all said time the defendant failed to inform the plaintiff that he had not paid said money over to Johnson & Herr.” We will assume, because not alleged to the contrary, that appellee was not at any time asked to give information upon the'subject, and his failure to volunteer it was not concealment. Hence, as to the $1,250 item, appellant having failed to demand payment to himself within the period of six years after he might have perfected his right of action by so doing, subjects his claim to the interposition of the six-years’ statute of limitation, and the demurrer to the third answer was properly overruled. -
Judgment affirmed.
