201 P.2d 302 | Nev. | 1948
The evidence adduced was brief. Upon identification of Southward's signature plaintiff was permitted to introduce, over defendant's objection, the original receipt for the bond, which read as follows:
"Reno, Nevada, June 3 — 1926
Received from Joan J. Warren the following bonds
One U.S. Steel Corporation No. 113792 — 5% — 1000.00 One Chicago Ry Co. bond No. 643 — 5% — 1000.00 One Chicago Ry Co. bond No. 644 — 5% — 1000.00 One Wabash Railroad Co. bond No. 11970 — 5% — 1000.00
Above bonds are property of Joan J. Warren and are loaned to me to be used as security for a loan. Geo M. Southward"
Plaintiff's complaint admitted that Southward had, prior to his death, returned the two Chicago Ry. company bonds, and plaintiff voluntarily dismissed as to the Wabash Railroad company's bond, which had become worthless, so that the action involved only the United States Steel Corporation bond. Plaintiff also introduced the deposition of an officer of the United States Steel Corporation showing the redemption of the bond as above recited, and rested. Counsel for plaintiff at this *697 time remarked to the court: "I might say in this connection that the plaintiff at this time is a very sick woman, and I couldn't have her here, even if she could testify; and in view of the Dead Man Rule, I don't think there is anything she could say that could be admitted, so I didn't arrange to have her here. I make that explanation as to her absence." Other facts above recited were admitted by the pleadings.
The trial court ordered the matter submitted on briefs and thereafter filed a written opinion and decision rejecting plaintiff's claim that the transaction was a bailment that created a continuing trust (whereunder it was asserted that a repudiation thereof, brought to the knowledge of the trustor, was essential to the commencement of the running of the statute of limitations) and held that the failure of Southward either to return the bond or the redemption proceeds thereof to his bailor "constituted a conversion and was in violation of the express purpose of the bailment. Therefore, the bailment ceased between 1929 and 1932, and a cause of action in favor of the plaintiff accrued," and that the action was barred by limitations. The trial court further held that even if it could be assumed that the purposes of the bailment could have continued until the divorce action, it then became the duty of the plaintiff to make a demand within a reasonable time and that such reasonable time was before the termination of the divorce action; that she was "guilty of unreasonable delay" and should have made her demand at the time of the commencement of the divorce action.
1. The respective positions of the parties with reference to the law involved appear to be the same in this court as described by the learned district judge. Both sides have argued and briefed their positions at great length and with much care and skill. Respondent insists that appellant did not make out a cause of action under any theory of her case; that even assuming proof of delivery of the bond from the receipt admitted in *698
evidence, there was no proof that the bond had not been returned; that the proof that the bond had been called, redeemed and cremated by United States Steel between November 1929 and February 1931 was entirely lacking as to the identity of the person who had surrendered it and received the money; that such person might as well have been the plaintiff as the defendant's testator. After careful consideration, however, we are satisfied that plaintiff's production of the receipt constituted sufficient prima facie evidence of her ownership of the bond and of the failure of defendant's testator to return the same or pay the value thereof. Potoker v. Klein,
"When a demand is essential, as a condition precedent to an action, it must be made in a reasonable time. The party bound to make it, can not postpone it indefinitely, and by his procrastination keep alive claims that would otherwise become dormant, and grow stale, the enforcement of which would be offensive to the policy of the law and dangerous to the rights of his adversary."
The court then explains the results that would ensue were a plaintiff permitted to delay his demand indefinitely:
"It would be a dangerous precedent; it would endanger the estates of the dead; it would render the rights of the *700 living uncertain and insecure; it would open the door for the introduction of stale claims, which it has been well said, have often more of cruelty than justice in them; and it would be violative of the policy of the statute of limitations, and defeat the purposes it was intended to accomplish, if without an explanation of the long delay in making demand, and the unwarrantable delay in bringing suit, after the fruitless demand, until Winston was dead, the statute was held not a bar."
Virtually the same thing was said in Codman v. Rogers, supra, where the plaintiff waited seventeen years before demanding an accounting. His equitable remedy was held to be barred by his laches.
Appellant cites the case of Reizenstein v. Marquardt,
In Shaw v. Silloway,
Whitehurst v. Duffy,
"This principle is, however, subject to the well-recognized exception that `if the only act necessary to perfect the plaintiff's cause of action is one to be performed by the plaintiff, and he is under no restraint or disability in the performance of such act, he cannot indefinitely suspend the statute of limitations by delaying performance of that act. It is not the policy of the *702 law to permit a party against whom the statute runs to defeat its operation by neglecting to do an act which devolves upon him in order to perfect his remedy against another.' 34 Am.Jur., Limitations of Actions, sec. 116, p. 96. See, also, 6 Williston on Contracts, Rev.Ed., sec. 2041, pp. 5718, 5719; 37 C.J., Limitations of Actions, sec. 324, pp. 953, 954."
Later the court discusses in some detail the two conflicting rules of law prevailing in the United States as to when the cause of action accrues for the purpose of setting the statute of limitations in motion. One view is that this period commences "as soon as the creditor, by his own act and in spite of the debtor, can make the demand payable." The leading case in support of this theory is cited as Palmer v. Palmer,
"We are of opinion that the true principle is that the time when the demand must be made depends upon the construction to be put upon the contract in each case. If the contract requires a demand without language referring to the time when the demand is to be made, it is as if the words `within a reasonable time' were found in it. What is a reasonable time is a question of *703
law, to be determined with reference to the nature of the contract and the probable intention of the parties as indicated by it. Where there is nothing to indicate an expectation that a demand is to be made quickly, or that there is to be delay in making it, we are of opinion that the time limited for bringing such an action after the cause of action accrues should ordinarily be treated as the time within which a demand must be made. See Jameson v. Jameson,
In Whitney v. Cheshire R. Co.,
Wehrle v. Mercantile National Bank,
In Cobb v. Wallace, 5 Cold, Tenn., 539, 98 Am.Dec. 435, a case decided in 1868 but cited in many of the cases referred to, supra, and in which the written contract in question consisted simply of a receipt for a barge loaded with coal with an agreement to pay $3 per day therefor until returned, the court said:
"In cases of bailment, where the contract is indefinite as to the time of its continuance, the bailee has not the arbitrary and exclusive right to determine at what time it shall terminate. If the bailment is for an explicitly declared purpose, it terminates whenever that purpose is accomplished. If the time be not fixed by agreement, or by the nature of the object to be accomplished, then the bailee must return the property whenever called upon, after a reasonable time; and what time is reasonable must be determined by the circumstances of each particular case: 2 Parsons on Contracts, 128, 129." *705
4, 5. Appellant cites Levy v. Ryland,
Stephens v. Crawford,
"A bailor's right of action against his bailee accrues at the time of the latter's breach of duty under the contract of bailment, and the statute of limitations then begins to run. Unless the term of the bailment is limited, no lapse of time bars the bailor's right to the property, and his right of action does not accrue, and the statute does not begin to run, until denial of the bailment and conversion of the property by the bailee or some one claiming under him. To set the statute in motion there must be some act of the bailee inconsistent with the bailment, and changing the nature of his holding, such as a refusal to deliver on demand."
This, however, does not touch upon the rule above discussed to the effect that where the cause of action does not arise until a demand and refusal and it is within the plaintiff's power to make such demand, the statute will commence to run after the lapse of a reasonable *706 time to be determined by the nature of the contract and the circumstances surrounding it.
A case of much interest but to which time permits only a brief reference is Thompson v. Whitaker Iron Co.,
"Statutes of limitation are vital to the welfare of society, and are favored in law. They are found and approved in all systems of enlightened jurisprudence. They promote repose by giving security and stability to human affairs. Important policy lies at their foundation. They stimulate to activity, and punish negligence. While time is constantly destroying the evidence of rights, they supply its place by a presumption which renders proof unnecessary. Mere delay, extending to the limit prescribed, is itself a conclusive bar. The bane and antidote go together." *707
It will be seen from the foregoing authorities4 that the learned district judge, in holding that the cause of action growing out of the conversion was barred by the statute of limitations and further that there was an unreasonable delay on the part of the plaintiff in asserting her rights or in making a demand, particularly with reference to her divorce action, was properly guided by the rules enunciated, whether we consider the matter from the angle of the conversion or under appellant's theory of bailment or appellant's theory of trust or appellant's theory of contract. To make this more understandable, it is necessary to consider both the express and implied rights and obligations of the parties under the contract or receipt which is the sole evidence of plaintiff's rights.
Following the receipt for the bonds is the statement, as noted: "Above bonds are property of Joan J. Warren and are loaned to me to be used as security for a loan." First the title of appellant is acknowledged. On the other hand, the acceptance of the receipt is an acknowledgment of Southward's rightful possession for the purpose indicated. When "used" as security for a loan such "use" necessarily implied delivery as a pledge or collateral security. It implied that Southward would deliver the same as security for the payment of a promissory note or other written obligation. This in turn implied that Southward's loan from his lender would necessarily be for a term — whether thirty days, sixty days, six months, a year or longer. It implied that he would in due course repay such loan, redeem the bonds and return them to appellant. There is nothing to imply that he might use the bonds for a series of *708 successive loans. The receipt certainly recognized the possibility that Southward might find it impossible to pay off the loan and redeem and return the bonds; that Southward's lender might be compelled, on failure of Southward to pay his note when due, to realize upon the security. The receipt or contract in question may be said to permit the further implication that if such loss of the bonds through action of Southward's lender occurred, Southward would pay the value thereof to appellant. Such implication is justified by the clear recital that the delivery was a loan, which negatives the thought of a gift or the conclusion that Southward's loss of the bonds through sale thereof by his lender would absolve him from further liability to appellant. The further implication may be clearly drawn that Southward would not sell the bonds and appropriate to himself the proceeds of such sale. His use was limited to the purpose of securing a loan. Through all of the specified and implied rights and liabilities of Southward as above recited, runs the further implication that the contemplated acts occur within a reasonable time. Applying these expressed and implied provisions to the situation, we find the following: Plaintiff lent the bonds to defendant's testator in 1926. She married him a month later. Sometime in the approximate calendar year of 1930 U.S. Steel Corporation redeemed the bond for $1,100, paid presumably to Southward or his assignee or pledgee. Southward deserted plaintiff in 1933, up to which time they had apparently lived together as man and wife. She divorced him in 1935, upon his voluntary submission to the jurisdiction of the court. He died in 1946, in which year she filed her claim against his estate. In view of this situation it is not strange that plaintiff felt impelled to make sundry allegations in her original and amended complaint — that under the agreement "said bonds were to be later returned to plaintiff on demand, or, that said deceased would pay plaintiff on demand the face value of any bonds not so returned; * * * that no demand for *709 return of said bonds or for payment has been made; * * * that no demand was made by plaintiff upon the deceased during his lifetime for the return of said bonds or for payment of the value thereof by reason of the fact that plaintiff was informed and believed said deceased was unable to make return thereof and was wholly without means to pay the value of same." And in her reply (defendant's answer having pleaded limitations, laches and estoppel) she alleged "that for some time prior to and on June 3, 1926 plaintiff and said George M. Southward were engaged to be married to each other; that the facts alleged * * * constituted said decedent a trustee * * * and that in his lifetime said decedent never repudiated said trust and no demand was ever made upon [him]"; also that he was absent from the state for periods aggregating more than eight years. As to which, if any, of these allegations were proved, we refer to our earlier statement of the complete case made by plaintiff.
6, 7. Both under the rule of law fixing a reasonable time for demand and suit and the rule of equity barring relief on account of her laches, we are satisfied that the judgment of the district court was correct. As to the defense of estoppel we do not find it necessary to comment, except in the relation such equitable defense bears to the defense of laches. In this regard, however, see Walker v. Walker,
The judgment and the order denying plaintiff's motion for a new trial are hereby affirmed with costs.
EATHER, C.J., and HORSEY, J., concur.