18 D.C. 608 (D.C.D.C. 1888), 8348, Jackson v. Combs

Docket Nº:In Equity. 8348.
Citation:18 D.C. 608
Opinion Judge:Mr. Chief Justice BINGHAM.
Party Name:JAMES JACKSON, JR., v. EMMA M. COMBS AND COLUMBUS ALEXANDER.
Attorney:Mr. F. E. ALEXANDER for plaintiff. Messrs. NATHANIEL WILSON and ROBERT CHRISTY for defendants.
Case Date:October 15, 1888
Court:Supreme Court of District of Columbia
 
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Page 608

18 D.C. 608 (D.C.D.C. 1888)

JAMES JACKSON, JR.,

v.

EMMA M. COMBS AND COLUMBUS ALEXANDER.

In Equity. No. 8348.

Supreme Court, District of Columbia.

October 15, 1888

1. Under an agreement to pay a sum of money out of the proceeds of a claim of the promisor against the United States as soon as the same shall be collected, there is no legal obligation on the part of the promisor to make known to the promisee the fact of the collection of the fund, and his failure to do so will not prevent the running of the Statute of Limitations from the date of its collection.

2. In such a case the rule is that unless by virtue of the contract itself, or some relation of the parties, the defendant is under a duty to make known the fact of payment, mere silence amounting to nothing more than non-action is not such a fraud upon the plaintiff as entitles him to complain of it; but it seems it would be otherwise if he were guilty of any act the tendency of which would be to deceive the plaintiff.

APPEAL from a decree of the special term dismissing a bill filed to procure the sale of a decedent's realty to satisfy an alleged indebtedness, the personalty being insufficient to pay the same.

THE FACTS are stated in the opinion.

Mr. F. E. ALEXANDER for plaintiff.

Messrs. NATHANIEL WILSON and ROBERT CHRISTY for defendants.

OPINION

Mr. Chief Justice BINGHAM.

From the bill of complaint it appears that one Joseph Combs, having a claim amounting to $82,000 against the United States, growing out of a seizure by the Government, in 1863, of a steamer of which he was the owner, employed one William Fitch, a claim agent at Washington, to collect the claim. The contract of employment was prepared in writing by J. M. Yznaga, the stepson and attorney of Combs.

This contract, which was limited in time, expired by its own limitation. Thereupon another contract, unlimited as to time, was entered into between Combs and Fitch on the 31st of January, 1868.

The agreement was also prepared and put in writing by Combs' attorney and stepson, J. M. Yznaga.

The plaintiff avers that Fitch spent considerable time and money in the preparation of papers and prosecution of the claim against the Government, but that in June, 1868, he, Fitch, at the earnest solicitation of Combs and his friends, consented to relinquish this contract, in consideration that Combs, with one S. G...

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