White v. Century Gold Mining & Milling Co.

78 P. 868 | Utah | 1904

BASKIN, C. J.

This case was tried by the court without a jury. Upon the trial the court in its findings of fact found, in substance, that between the dates of October 1, 1897, and July 21, 1898, the defendant received from plaintiff the sum of $2,410.13 to and for the use and benefit of defendant, which said defendant agreed to repay to the plaintiff ont of its first profits; that the defendant, between the dates just mentioned, also, respectively, received from a number of other persons named various sums of money, which it also agreed to repay out of its first profits, and that each of the other persons named, before the commencement of this suit, assigned and transferred his claim for the money so received from him to the plaintiff; that during the month of October, 1903, and particularly on the 27th day of October, 1903, “the plaintiff demanded payment from the defendant of the sums so received, as aforesaid but that it has not paid any of said sums nor any part thereof ; that during the months of September and October, 1903, the defendant company paid two dividends to its stockholders of $1,500 each, and that on October 30, 1903, a third dividend was declared for the sum of $1,-500, which was paid on November 2, 1903; that said defendant, between the dates of April 30, 1903, and October 30,1903, did earn a profit in a sum greater than the aggregate of plaintiff’s claims above specified; that the defendant made no profits before April, 1903; that a reasonable time for the payment of said sum of money had elapsed at the time the first dividend was paid, to-wit, during the month of September, 1903; that plaintiff is entitled to interest on said sums of money from the 27th day of October, 1903, at the rate of 8 per cent per annum; that the statute of limitations has not run until the lapse of a reasonable length of-time; and that none of the allegations of defendant’s answer are sustained by the testimony, except the allegation that defendant is and was at all times mentioned a corporation of Utah.” These findings of fact are fully supported by the evidence. Judgment for the amount of said sums, with interest, was rendered for the plaintiff.

In Busby v. Mining Company, 27 Utah 230, 75 Pac. 725, and McIntyre v. Ajax Min. Co., 20 Utah 323, 60 Pac. 552, obligations of the same character were involved as those in the case at bar, and this court in both those cases held that a right of action accrued within a reasonable time after the creation of the obligations. "We reaffirm the decision in those cases, and hold that under the findings of fact the obligations in question matured within a reasonable time after their creation; and before the institution of the pending suit.

The defendant pleaded the statute of limitations, and insists in its brief that the action was barred before the suit was instituted. The question as to whether or not a reasonable time had elapsed before the suit was brought, was one of fact for the court, and it found that a reasonable time had elapsed before the time the first dividend was paid during the month of September, 1903, but did not find definitely the date when it had elapsed, nor is the date shown by the record. The statute of limitations, pleaded by the defendant, could not begin to run until a reasonable time after the creation of the obligation had elapsed. The burden of proving that the action was barred was upon the defendant, and, therefore, as it neither appears from the findings of the court or from the record at what date a reasonable time elapsed, the defendants plea of the statute of limitations cannot prevail.

It is ordered that the judgment be affirmed, with costs.

BARTCH and McCARTY, JJ., concur.