54 Kan. 537 | Kan. | 1895
The opinion of the court was delivered by
Aultman, Miller & Co. held a note against Peter Newman for $77, and 10 per cent, interest, dated July 6,1880, due November 1,1881. In August, 1881, the plaintiff in error made a trade with Newman for his homestead, and in part payment therefor executed the following writing:
“ Phillipsburg, Kas., August 5, 1881.
This is to certify, that I, George W. Stinson, have this day agreed to pay for Peter Newman a certain promissory note of*538 $77 principal, and interest thereon, not exceeding 12 percent, per annum, dated November, 1880, and given to Aultman, Miller & Co., and due one year after date.
George W. Stinson.
S. W. McElroy.”
On the 2d day of May, 1889, Aultman, Miller & Co. brought this action against Stinson to recover the amount of the Newman note, under the written agreement copied above. The petition, after alleging the execution of the note and the written agreement of Stinson assuming the payment thereof, states that Stinson was acting as agent and attorney for the plaintiffs for collecting notes and claims in Phillips county at the time of making said agreement, and until about the 22d day of October, 1883; that a short time before the note became due, it was forwarded to him for collection; that he held the same in his possession until about the 22d day of December, 1883, when it was returned to the plaintiffs with the report that Newman had left Phillips county, and that his whereabouts were unknown to the defendant; that Stinson fraudulently concealed from the plaintiffs the existence of said agreement; that the plaintiffs had made diligent search for Newman, but failed to find him until July, 1888, when they first learned of the existence of said written agreement.
It will be observed that more than seven years elapsed after the maturity of the Newman note before the commencement of this action, during all of which time it is shown that the defendant resided in Phillips county. The theory of the plaintiffs is, that the statute of limitations did not begin to run until the discovery of the existence of the written agreement; that Stinson sustained a fiduciary relation to the plaintiffs as their attorney and collecting agent, and that, when the note came into his hands for collection, he was bound to inform them of all the facts within his knowledge affecting their rights. That it is the duty of an attorney to act with the utmost good faith toward his client, cannot be questioned for a moment. That he should inform his client of every fact
While there are in the record statements of witnesses to the effect that the plaintiffs used all diligence to find Newman after his removal from Phillips county, we think the showing not very satisfactory. It is shown that he went to Nemaha county; that his post-office address was Pawnte City, Neb. The jury find that his residence there was open, visible, and notorious. The note, after it was taken out of the hands of the defendant, was placed in the hands of other attorneys at Phillipsburg. In June, 1884, it was returned to the company’s office in Akron, Ohio, and in July of that year was sent to attorneys at Pawnee City, Nebraska, which was then Newman’s post-office address.
We do not think the showing of diligence especially commendable, or such as to make this case one of unusual hardship. The special verdict of the jury shows that the plaintiffs’ cause of action was barred by the statute of limitations, and we are therefore compelled to reverse the judgment and direct a judgment for the defendant.