103 Mo. App. 251 | Mo. Ct. App. | 1903
— The defendants are sureties on the official bond of W. H. Hawkins, a notary public of Nod-away county, and plaintiff brought this action against them for the malfeasance of Hawkins in falsely certifying that he had taken the acknowledgment to a certain deed of trust (which he had forged) to secure the payment of a note of $1,000 to the plaintiff. The judgment in the trial court was for plaintiff.
The defense of the surety defendants is that the statute governing notaries and their duties prescribes that no suit shall be instituted against a notary or his sureties more than three years after the ‘ ‘ cause of action accrued.” Sec. 8836, R. S'. 1899. It is conceded that at the time this action was instituted more than three years had elapsed since the forgery of the deed of trust and the making of the false certificate. But plaintiff seeks to avoid the apparent running of the statute by showng that the notary fraudulently and corruptly concealed his act for a long space of time. That he paid interest to plaintiff on the sum which he pretended he had loaned for him, pretending that the person he represented as the borrower had left it with him to pay to plaintiff; and in other ways kept alive in plaintiff the implicit belief that the loan had really been made and that the deed of trust, including .the certificate of acknowledgment, was genuine. That within one year after he learned of the notary’s gross fraud and deception he brought the present action. The question is, when did the cause of action accrue? The contention of the parties is this: Defendants insist that it accrued when the notary made the false certificate; and plaintiff insists that it did not accrue until he discovered the fraud and concealment. Our conclusion is that it accrued when plaintiff discovered the fraud; or, when, by proper diligence as an ordinarily prudent man, he, under the circumstances, should have discovered it.
Our general statute of limitations declares that its provisions shall not apply to cases where the defendant’s
In Revelle v. Railroad, 74 Mo. 438, the Supreme Court held that the time in which an action should be brought against a railroad for double damages for killing stock was governed by a special statute of limitations and on that account was, by the general statute itself, excluded from the influence of the latter statute; and that the action must be brought within the three years, regardless of the railroad’s fraudulent concealment of the killing. But that statute (Section 1710, Revised Statutes 1879) provided that the action should be “commenced within three years after the commission of the offense, and not after,” whereas the statute now under consideration prescribes, as already said, that the suit must be brought within three years after the cause of action accrued. That statute left no room for construction since it fixed upon the time by naming a specific and definite period, while this statute uses an expression, “cause of action accrued,” which leaves something to be determined more than a mere calculation of time.
After full consideration we have concluded that the cause of action did not accrue so as to enable the notary to take advantage of it, so long as his fraudulent concealment prevented plaintiff from knowing, in the exercise of the diligence which an ordinarily prudent man under the same circumstances would have exercised, that he had a cause of action. One of the theories which sup
Notwithstanding we approve of the view taken of the matters foregoing by the learned trial judge, we find that the judgment should be reversed for the reason that the jury were not required in plaintiff’s instructions to pass upon the question whether plaintiff could have dis-' •covered the fraud sooner than he did by the exercise of reasonable diligence. That inquiry was wholly omitted.
The instructions offered for defendant were properly refused. They were too peremptory in tone. The jury should be left to judge from all the circumstances whether plaintiff, acting as a man of ordinary prudence and diligence, would have discovered the fraudulent concealment. It may be that a retrial might disclose that
The judgment is reversed and cause remanded.