18 F.2d 908 (6th Cir. 1927), 4741, Woolsey v. Trimble

Docket Nº:4741.
Citation:18 F.2d 908
Case Date:April 11, 1927
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit

Page 908

18 F.2d 908 (6th Cir. 1927)




No. 4741.

United States Court of Appeals, Sixth Circuit.

April 11, 1927

James M. Barrie, of Cincinnati, Ohio (Clore, Schwab & McCaslin, of Cincinnati, Ohio, on the brief), for plaintiff in error.

Herbert Shaffer, of Cincinnati, Ohio (Waite, Schindel & Bayless, of Cincinnati, Ohio, on the brief), for defendants in error.

Before DONAHUE and MOORMAN, Circuit Judges, and WESTENHAVER, District judge.

WESTENHAVER, District Judge.

Plaintiff in error, also plaintiff below, sued at law upon a written instrument reading as follows:

'May 29, 1899.

'Received this day $10,000 (ten thousand dollars) from Kate T. Woolsey, trustee, to be invested in syndicate shares of the 'Old Kentucky mine' situated in Placer Co., Cal., of which E. L. Ford is now president. In case of my death, this money is to be returned to K. T. Woolsey, trustee, immediately. This will entitle K. T. W. to 18,000 shares of the mining stock in above mine.

'(Signed) R. J. Trimble.'

R. J. Trimble died June 14, 1924. This action was begun July 30, 1925. The amended petition alleges that Trimble died before he had invested the money in syndicate shares of the Old Kentucky mine; that no such company or corporation was ever organized or existed; that no stock or shares therein were

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ever issued, nor was any such stock or shares ever delivered to the plaintiff; and that the money had never been repaid. The only demand alleged is one made upon defendant after the death of said Trimble. No other facts are stated to bring the cause of action within any of the exceptions to the statute of limitations, or to repel the common-law presumption of payment.

Defendant demurred to the petition, which demurrer was sustained, on the ground that the statutes of limitation barred the action. A second amended petition was tendered, declaring on the same written contract, but averaging that the contract required that the $10,000 should be repaid at Trimble's death. Opportunity was offered plaintiff to show by affidavits or otherwise that some contract existed, other than the one originally declared on, and, in default of such showing, the second amended petition was stricken from the files. Final judgment in defendants' favor was thereupon rendered.

Although the order striking the second amended petition from the files is assigned as error, the case was presented in this court solely upon the question whether the statute of limitations was applicable. It was not suggested that any other facts existed, not pleaded or stated, bearing upon this question. In view of the concessions implied from this attitude, we deem it within our province to consider and dispose of the question as presented, without giving attention to technical questions of practice. See Reading Steel Castings Co. v. United States, 268 U.S. 186, 188, 45 S.Ct. 469, 69 L.Ed. 907.

The action being at law, the Ohio practice should be followed, It is settled in that state that the defense of the statute of limitations may be raised by demurrer. If the cause of action stated is apparently barred, it is incumbent upon the plaintiff to state such additional facts, if any existed, as will obviate the bar or bring the plaintiff within any of the exceptions which toll the running of the statute. 2 Bates, New Pleading, p. 2050; Zuellig v. Hemerlie, 60 Ohio St. 27, 53, N.E. 447, 71 Am.St.Rep. 707.

The distinction between actions at law and suits in equity having been abolished in Ohio, the Ohio statute of limitations applies uniformly to all causes of action. Section 11218, G.C. The sections pertinent to the present case are 11236 and 11221. The first is, in substance, that no provisions of the statute of limitations shall apply 'in the case of a continuing and subsisting trust. ' The second provides that an action upon 'an agreement, contract or promise in writing shall be brought within fifteen years after the cause thereof accrued. ' Under the first, the question is whether a continuing and subsisting trust is shown by the facts pleaded. Under the second, the question is when the cause of action upon the facts stated, may be held to have accrued. Both inquiries require an exact understanding of the contract and cause of action set forth and pleaded.

The written instrument is in form a receipt for $10,000. The money was delivered and received to be invested in syndicate shares of a described mine. Plaintiff was to get in return for the money so delivered 18,000 shares of stock in said mine. An obligation was imposed upon Trimble to apply the money to the designated purpose and to account for and deliver the shares. If the investment was made, the property in the shares would be in plaintiff. Until so invested, the money was in Trimble's...

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