Beury Bros. Coal & Coke Co. v. Fayette County Court
| Decision Date | 21 September 1915 |
| Citation | 87 S.E. 258,76 W.Va. 610 |
| Parties | BEURY BROS. COAL & COKE CO. v. FAYETTE COUNTY COURT. |
| Court | West Virginia Supreme Court |
Submitted September 1, 1915.
Rehearing Denied Dec. 17, 1915.
Syllabus by the Court.
Demand which is prerequisite to the right to bring an action against a county court, must be made within a reasonable time to avoid the effect of the statute of limitations. A party cannot delay demand indefinitely.
In the absence of facts or circumstances excusing delay, the time fixed by the statute as a bar to the action will be considered as reasonable, and the statute will begin to run from the end of such period.
Error to Circuit Court, Fayette County.
Action by the Beury Bros. Coal & Coke Company against the County Court of Fayette County. Judgment for plaintiff for less than claimed, and it brings error. Affirmed.
R. T Hubard, Jr., and F. N. Bacon, both of Fayetteville, for plaintiff in error.
C. R Summerfield and E. R. French, both of Fayetteville, for defendant in error.
This proceeding is by motion pursuant to notice, as provided by chapter 121, § 6 (sec. 4726), Code 1913, to recover judgment against the county court of Fayette county for an alleged balance of $2,829.93, on account for material furnished and labor performed, at its instance and request, upon a certain public road in said county known as the "Beury Road." Plaintiff's claim is evidenced by an account of debits and credits extending through a period of years the first item of which bears date July 31, 1902, and the last January 31, 1914. It is agreed (1) that the account, both as to the items and their dates, is correct; (2) that it was first presented to the county court for payment on the 13th of July, 1914, and payment refused; and (3) that the account is chargeable against the road fund of Sewell Mountain District, and that, at the time demand was made, there were no funds in the county treasury to the credit of said district with which the account could have been paid. Defendant pleaded the statute of limitations, and the case was submitted to the court in lieu of a jury. The court held all items of the account, prior to and including the one of date May 31, 1909, to be barred, and rendered judgment for plaintiff for the sum of the items subsequent to that date, which amounted to $696.70.
The sole question presented is whether or not the court has properly applied the statute of limitations. The limitation upon an action on an open account is five years. Counsel for plaintiff contends that its right of action did not accrue until demand was made, and that there is no limitation upon its right to make the demand, but the court held otherwise. Section 41, c. 39 (serial section 1591), Code 1913, prohibits the bringing of a suit against a county court on a claim founded on contract, except it be upon an order on the county treasury, until such claim has been presented to such county court and has been disallowed by it in whole or in part.
Statutes of limitations are intended for repose, and they should be given such reasonable construction as to effectuate the evident purpose of the Legislature. It was clearly not the legislative intent, in enacting the statute above cited, to permit a party having a claim against a county court to prolong indefinitely his right of action by neglecting to present it to the court for payment. It was within plaintiff's power to perfect his right of action at the end of any fiscal year, upon any yearly balance due it. The record discloses no cause for delay in making the necessary demand. Notwith-standing the simplicity of the question presented, the decisions on it are in hopeless conflict. The rule universally applied in case of notes for money, payable on demand, is to treat the note as payable at once, giving an immediate right of action. In such case the statute begins to run at the date of the transaction. 25 Cyc. 1205. But that rule is not applicable here because of the positive rule of the statute requiring presentation and refusal of the claim before suit.
The conflict in the decisions arises in those cases where, on account of the character of the transaction or the relationship of the parties, no immediate demand was contemplated. In such cases some courts hold the statute does not begin to run until demand, however long deferred. See Miller v. Hinds County, 68 Miss. 88, 8 So. 269; City of Guthrie v. Lumber Co., 9 Okl. 464, 60 P. 247. Some courts have taken the opposite extreme. For instance, the court of Michigan holds the right to make demand is itself barred if not made within the period fixed as a bar to the action. Palmer v. Palmer, 36 Mich. 487, 24 Am.Rep. 605. But a majority of the courts, as well as the better considered cases, we think, hold that where a previous demand is necessary to give a right of action, and there is nothing to indicate that the parties contemplated that demand should be made quickly or remotely, demand must be made within a reasonable time, which is generally held, by analogy, to be the period of limitation prescribed for the action. A leading case in this country, adopting this rule, is Codman v. Rogers, 10 Pick. 112. Judge Wilde, in his opinion in that case, at page 119, says:
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