Wilson v. Miller

| Va. | Sep 21, 1905

HaeeisoN, J.,

delivered tbe opinion of tbe court.

Having removed from tbe county of Rockbridge, Va., to tbe State of Oregon, tbe appellees, on December 19, 1881, executed a power of attorney appointing tbe appellant tbeir attorney in fact to sell and convey .all real estate owned by tbem in tbe county.of Rockbridge, and to collect tbe proceeds; also to demand, sue for, and collect all debts, rents, accounts, and other claims wbicb might be due, payable, and owing to tbe appellees in tbe county of Rockbridge. Tbe power and authority vested in tbe appellant by this instrument was full .and complete to do any and all things in tbe premises that tbe grantors could perform if present in person.

The appellant assumed tbe duties and obligations thus imposed upon him, and, from tbe date of bis authority in 1881 to tbe year 1898, was from time to time collecting rents, selling real estate, wood, railroad ties, etc., and disbursing tbe proceeds in expenses of various kinds and in remittances to tbe appellees. During .all of this time appellant rendered no account, and made no settlement of any kind. A continuous and frequent correspondence was kept up between tbe parties — on tbe part of appellees, chiefly demanding money and urging tbe business forward to a conclusion, and on tbe part of tbe appellant excusing bis tardiness and promising to make remittances.

In 1898, in response to demands for information and for a settlement, appellant rendered bis first account, covering tbe entire period of bis agency and involving innumerable items. This statement of bis transactions as agent for tbe appellees brought tbe latter in debt to tbe appellant in tbe sum of $177.54. Shortly after this account was rendered, appellees placed tbe matter in tbe bands of counsel, who filed tbe bill in this cause asking for a discovery, and a proper settlement of the accounts of appellant as their agent, charging that he had not rendered a correct account, and had failed to make proper returns of the collections made by him.

The record clearly shows this allegation of the bill to be well founded. The result of the litigation was a decree in favor of the appellees for $377.54, with interest from October 4, 1898, the date of the termination of the agency.

The demurrer to the bill was properly overruled. There is no merit in the contention that equity is without jurisdiction. This is not a case of a single money demand which might be enforced in a court of law, nor indeed of mutual demands merely, but it is a case involving a trust. It involves a complicated settlement of the accounts of an agent occupying a position of trust and confidence, where a discovery is called for and necessary, and the remedy, if any at law would be far from plain, simple and free from difficulty. The jurisdiction of a court of equity in such a case is well established. Simmons v. Simmons’ Admr., 33 Gratt. 451; Thornton v. Thornton, 31 Gratt. 212; Coffman v. Sangston, 21 Gratt. 263; Segar v. Parrish, 20 Gratt. 680; Zetelle v. Myers, 19 Gratt. 62" court="Va." date_filed="1869-01-15" href="https://app.midpage.ai/document/zetelle-v-myers-8481710?utm_source=webapp" opinion_id="8481710">19 Gratt. 62.

We are further of opinion that there was no error in the action of the court in refusing to apply the statute of limitations relied on by appellant. As a general rule, when there is an undertaking or agency which requires a continuation of services, the statute of limitations does not begin to run until the termination of the undertaking or agency. Wood on Limitations (Ed. 1883), sec. 123; Rowan v. Chenoweth, 49 W. Va. 287" court="W. Va." date_filed="1901-03-23" href="https://app.midpage.ai/document/rowan-v-chenoweth-8174963?utm_source=webapp" opinion_id="8174963">49 W. Va. 287, 38 S. E. 545; Riverview Land Co. v. Dance & Co., 98 Va. 238, 35 S.E. 720" court="Va." date_filed="1900-03-29" href="https://app.midpage.ai/document/riverview-land-co-v-dance--co-6810257?utm_source=webapp" opinion_id="6810257">35 S. E. 720.

There is nothing in the facts of the case to take it from under the influence of the general rule mentioned. The services of appellant were continuous under the power of attorney from 1881 to 1898 when the relation of agent was ended, and he had not then completed- the work for which he was appointed, for part of the real estate was still unsold. His principals lived in a distant State where they could give no personal attention to the matter, necessitating reliance by them upon him for a faithful discharge of the trust he had assumed as their agent. The record shows that the transactions of the appellant were very numerous, involving a long and complicated account, the details of which were known .alone to him. The case is clearly one governed by the general rule, where the statute does not begin to run until the termination of the undertaking or agency.

Hpon the whole case, we are of opinion that there is no error in the decrees appealed from, and they must he affirmed.

Affirmed.