24 Kan. 497 | Kan. | 1880
This is a case in which to a charge of conduct unprofessional and dishonest, the defendant pleads the statute of limitations as the single barrier to plaintiff’s right to relief. The facts are these: In 1874, plaintiff was an accommodation indorser upon a note executed to the brother of defendant, but which in fact belonged to defendant. Suit was brought upon this note. Pending the suit, at the request of defendant, plaintiff paid him several hundred dollars, upon his promise to credit that amount upon the claim, and take judgment for only the balance. There being no defense, no answer had been interposed. Notwithstanding the receipt of the money and the agreement, defendant took judgment for the whole amount due upon the face of the paper. The maker being insolvent, the principal burden of payment rested upon the plaintiff. Soon after the entry of judgment, plaintiff ascertained that it had been entered for the wrong amount, and spoke about it to defendant, who promised to make the correction, and allow the prior payment in the final settlement of the judgment. Payments were made from time to time, and the defendant frequently repeated his promise. This ran along until over four years had passed, when defendant refused to credit that payment, and demanded the full balance due upon the face of the judgment. True, defendant offered to credit the payment, provided plaintiff would pay an exorbitant, illegal and usurious interest, to wit, 18 per cent, per annum, but the condition was simply a different manner of expressing the refusal.' Thereupon plaintiff, after payment of all save a sum equal to the amount paid before judgment and improperly incorporated in it, brought injunction to stay the further collection. Upon these facts alone plaintiff does not question the sufficiency of the statute of limitations as a defense. He knew of the wrong shortly after its perpetration, and for many years took no legal measures to redress it. His action was one for relief on the ground
But the contention is, that this is a peculiar case — that other facts appear which excuse plaintiff’s delay, and give him a right to relief, notwithstanding the lapse of time. These facts are, that defendant was the attorney of the Kansas Loan and Trust Company, of which plaintiff was president, and, to quote from the petition, “That on account of such relationship, the said F. G. Hentig occupied a very close and confidential business relation with this plaintiff, occupying the same office as the Kansas Loan arid Trust Company, and as this plaintiff did; that for some years previous there were intimate relations in financial transactions between said F. G. Hentig and this plaintiff, and said Hentig, on account of these associations and transactions, had been and was a confidential adviser of this plaintiff; and said plaintiff further avers that on account of said intimate and confidential relationship existing between said F. G. Hentig and this plaintiff, that said plaintiff had a right to and did rely upon the representations made by the said F. G. Hentig, that said payment so as aforesaid made would be credited upon the judgment rendered in said action, and that on account of such reliance this plaintiff did not move to set aside said judgment and have said credit allowed. And said plaintiff further avers and believes that said Hentig made the representations heretofore set up, and used his confidential relation with the intent to mislead this plaintiff and to defraud him of his rights in the premises, and to prevent said plaintiff from having said judgment opened up and set aside.”
Do these facts take the case out of the general rule? They doubtless paint with a deeper shade of black the moral qualities of defendant’s acts, but do they prolong or increase plaintiff’s legal or equitable rights? The question is not, ought the defendant to suffer for his misdeeds, for in all cases of fraud the wrong-doer deserves punishment, no mat
The judgment will be affirmed.