Browder v. Da Costa
| Decision Date | 22 June 1925 |
| Citation | 91 Fla. 1,109 So. 448 |
| Parties | BROWDER v. DA COSTA. |
| Court | Florida Supreme Court |
Rehearing Denied Aug. 10, 1926.
En Banc.
Error to Circuit Court, Duval County; John E. Hartridge, Referee.
Action by W. W. Frazier, administrator of the estate of Chas. W. Da Costa, deceased, against J. M. Barrs, to recover money on a contract. On the death of defendant Barrs, Lydia Barrs Browder, as executrix, was substituted as defendant, and, on the death of the administrator, A. J. Da Costa, as administrator de bonis non of the estate of Chas W. Da Costa deceased, was substituted as plaintiff. Judgment for plaintiff, and defendant brings error.
Affirmed.
On Petition for Rehearing.
Syllabus by the Court
In current transactions in which client sends attorney claims and other obligations to realize on, statute of limitations will run against remittances held by attorney beyond statutory period. In current transactions, where a client sends his attorney claims and other obligations to realize on, and collections are made by the attorney, and remittances are withheld beyond the statutory period, the statute of limitation will run against them. There is a wide difference of opinion as to when the statute begins to run in such cases. Some hold that, where there has been no fraudulent concealment of its receipts, the statute attaches at the time of collection, while others hold that it runs from the time knowledge of receipt of the money by the attorney is brought home to the client, and still others hold that there is no right of action against an attorney for money collected, and the statute does not begin to run until demand or refusal to pay has been made.
Majority rule is that, in absence of misrepresentation or fraudulent concealment, statute of limitations runs against action to recover money collected from time of collection or expiration of reasonable time after collector receives money. The rule adopted by the greatest number of jurisdictions is that, in the absence of misrepresentation or fraudulent concealment on the part of the attorney, the statute of limitation begins to run against an action by a client to recover money collected by the attorney from the time collection is made or from the expiration of a reasonable time after the attorney receives the money.
Statute of limitation does not apply to one accepting trust arising out of personal confidence reposed in, and voluntarily accepted by, him, even though trust has been repudiated by trustee (Rev. Gen. St. 1920, § 2927). In this state, the statute of limitations does not apply to one accepting a trust arising out of personal confidence reposed in, and voluntarily accepted by, him, even though such trust has been repudiated by the trustee. Section 2927, Rev. Gen. Stats 1920 of Florida.
When witness is not permitted to answer question objected to unless question plainly shows that answer would be relevant party propounding question should make sufficient proffer of what he intends to prove by answer to question (Rev. Gen. St. 1920, § 2705). When an objection is sustained to a question, and the witness is not permitted to answer, unless it plainly appears from the question propounded that the answer of the witness would be relevant to the issues, it is the duty of the party propounding the question to make a sufficient proffer of what he intends to prove by the witness in answer to the objectionable question, so that the court below, and subsequently this court, can determine whether or not the proposed evidence would be material.
John T. G. Crawford, of Jacksonville, for plaintiff in error.
Cromwell Gibbons, of Jacksonville, for defendant in error.
In December, 1903, C. W. Da Costa entered into contract with R. J. Riles for the sale and purchase on the part of Riles of certain property in Duval county. J. M. Barrs represented Da Costa in the transaction. The sale was consummated, and Riles paid Barrs as attorney for Da Costa cash and notes aggregating $19,189.54, after making certain disbursements, as shown by statement made by Barrs to Da Costa January 27, 1904.
C. W. Da Costa died September 15, 1911, and W. W. Frazier was appointed his administrator. October 4, 1912, Frazier, as administrator, made demand on Barrs for the balance due the estate of Da Costa, as shown by Barrs' statement, and suit was brought June 26, 1913. The declaration was filed August 4, 1913, and is in three common counts for money loaned, money received, and accounts stated.
Barrs pleaded the general issue, the two, three, four, and five year statute of limitations, and payment to all counts. Demurrer to the two-year plea of statute of limitations was sustained, and issue was joined on the pleas of general issue and payment February 2, 1914. In October, 1916, plaintiff filed replications to the pleas of the three, four, and five year statute of limitations. Demurrer to all these replications was overruled, except as to the three, four, and five year pleas to the first count. In November, 1917, defendant filed his rejoinder, denying the existence of the relation of attorney and client as charged, that he held any funds of Da Costa as trustee, and that he was ever the attorney in fact for said Da Costa.
In November, 1919, Barrs' death was suggested, and his executrix plaintiff in error was impleaded. Subsequent to the death of Barrs, the original plaintiff died, and the present plaintiff as administrator de bonis non was substituted. Charles S. Adams, the original referee, also died, and John E. Hartridge was appointed, who, after hearing the evidence and argument of counsel, entered judgment for plaintiff in the sum of $47,916.60 as damages, the amount of principal and interest to date of finding, and $42.43 costs. Writ of error is taken to this judgment.
The main question brought here for our determination is whether or not the statutes of limitation run against the claim of a client upon his attorney for money collected by such attorney in behalf of said client.
Plaintiff in error argues the affirmative of this question. The rule seems well settled that in current transactions, where a client sends his attorney claims and other obligations to realize on, and collections are made by the attorney, and remittances are withheld beyond the statutory period, the statute of limitations will run against them. There is a wide difference of opinion as to when the statute begins to run in such cases. Some hold that, where there has been no fraudulent concealment of its receipts, the statute attaches at the time of collection, while others hold that it runs from the time knowledge of receipt of the money by the attorney is brought home to the client, and still others hold that there is no right of action against an attorney for money collected, and the statute does not begin to run until demand or refusal to pay has been made.
These latter cases are grounded on the theory that an attorney's liability rests on the principle of agency for his client, and that it would be in opposition to the nature of the trust imposed by his agency to hold him liable in an action for money collected by him until after refusal on his part to pay it over. 17 R. C. L. 768; Douglas v. Corry, 46 Ohio St. 349, 21 N.E. 440, 15 Am. St. Rep. 604, and note; Rhines v. Evans, 66 Pa. 192, 5 Am. Rep. 364; Goodyear Metallic Rubber Co. v. Baker's Estate, 81 Vt. 39, 69 A. 160, 17 L. R. A. (N. S.) 667, and note, 15 Ann. Cas. 1207; Ott v. Hood, 152 Wis. 97, 139 N.W. 762, 44 L. R. A. (N. S.) 524, and note, Ann. Cas. 1914C, 636.
In Goodyear Metallic Rubber Co. v. Baker's Estate, 81 Vt. 39, 69 A. 160, 17 L. R. A. (N. S.) 667, 15 Ann. Cas. 1207, note 1208, the prevailing rule is stated as follows: The rule adopted by the greatest number of jurisdictions is that, in the absence of misrepresentation or fraudulent concealment on the part of the attorney, the statute of limitations begins to run against an action by a client to recover money collected by his attorney from the time the collection is made or from the expiration of a reasonable time after the attorney receives the money. 17 R. C. L. 768. See, also, a complete list of cases cited in note, Goodyear Metallic Rubber Co. v. Baker's Estate, 17 L. R. A. (N. S.) 667, 15 Ann. Cas. 1207, and Ott v. Hood, 44 L. R. A. (N. S.) 524, supra.
It seems to us that the circumstances of this case lift it out of the rule applicable to the attorney in whose hands an ordinary account is placed for collection. C. W. Da Costa and Mr. Barrs had long prior to the transaction involved been intimate friends. At the time of the transaction they were living in the same apartment, and Barrs, representing Da Costa, negotiated the sale by Da Costa to Riles. The entire proceeds of the sale were paid by Riles to Barrs as...
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