25 Pa. 154 | Pa. | 1855
We think the plaintiff is too late in seeking the correction of this mistake. And he cannot excuse his delay on the ground that he did not discover it till recently; for he might have discovered it the next day after it was made if he had attended to it, and he ought then to have insisted on its correction. Here is nine years’ delay. But it is urged that he did not pay his share of the legacy until four or five years ago, and that he could not sue for a contribution until he had paid. Admit this, still the nonpayment was his own affair; he might delay payment as long as the legatees would let him, without perpetuating his right to correct the mistake made between him and others. The legacies seem to have fallen due in 1842, when David arrived at age, and then arose the duty of contribution, and the share of each was defined at the settlement in 1843. Either might have paid his share at once, and then he could have sued for a correction in assumpsit, and it is admitted that in that case he must have sued within six years.
Possibly the delay of payment might delay the right of action for the correction; but a party cannot stop the running of the statute of limitations by his own negligence, or by any arrangements for his own convenience. The right of action must be taken to have vested when the mistake was made, for then he might have paid; and then, by the will, the legacies ought to have been paid; then the law raised the duty and implied the promise of correction. This implied promise being simultaneous with the mistake, the statute began to run then, unless it was suspended by some matter which the claimant could not control.
Judgment reversed and a new trial awarded.
