Campbell v. Whoriskey
| Decision Date | 05 January 1898 |
| Citation | 170 Mass. 63,48 N.E. 1070 |
| Parties | CAMPBELL v. WHORISKEY. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
John
F. Cronan, for plaintiff.
Freeman Hunt, for defendant.
The questions in this case arise under the statute of limitations. The only evidence at the trial was the plaintiff's testimony, and the defendant's only request was for a ruling that the plaintiff could not recover. This was refused, and the jury were instructed that her case was proved, and were directed to return a verdict in her favor. Exceptions were taken to the ruling, as well as to the refusal to rule. In its broadest scope, the exception to the ruling would seem to raise the question whether the judge could direct a verdict for the plaintiff upon her oral testimony, inasmuch as he could not tell whether the jury would believe some part of her statement, or the whole of it or none of it. But no such question has been argued by counsel on either side, and we are of opinion that the question was not intended to be raised. The defendant's request for a ruling was plainly predicated upon an assumption that the plaintiff's testimony was true, and we think the judge and the parties must have understood that the ruling was to be made, and afterwards that it was made on the same assumption; otherwise, inasmuch as the burden of proof was on the plaintiff, the judge certainly would have submitted her testimony to the jury. Treating the case as the parties have treated it in argument, we will consider the law applicable to such a state of facts as the plaintiff disclosed by her testimony.
She came to this country in 1869, went into service, and saved money from her wages. The defendant is her second cousin, and having confidence in him, and knowing him to be a man of considerable property, she placed $30 of her money in his hands in 1871. She let him have other sums from time to time of which he kept an account in a book. Afterwards he gave her a paper as follows: When she first gave him money, he asked her to let him have it "sooner than to bank it." This is her language: "He said he would give me bank interest, and keep it safe for me until I wanted it." The other money was left with him in small sums under a similar arrangement. When asked why she let him have it, she answered: "To keep it until I wanted it; to save it until I wanted it." In another answer she said: She also said that when he gave her the paper, on August 25, 1877, she told him she would take care of the rest herself, and he told her to "take care of the rest of the money, not for any bad use," and what she saved after that she "put in another bank in Chelsea." She saw him frequently, but had no further conversation about the money until December, 1890, when she asked him for it. She has asked for it at other times since, but has received no part of it. This suit was brought on February 2, 1895. The question is whether her claim is barred by the statute of limitations.
We think it clear that he was not to be liable to a suit for the money until the arrangement under which he was retaining and using it was terminated by the plaintiff. His promise was not like that of the maker of a promissory note payable on demand, but was an undertaking to pay within a reasonable time after a demand. Her cause of action, in the sense of a present right to maintain a suit, did not accrue until she had demanded the money. Little v. Blunt, 9 Pick. 490, 491, Codman v. Rogers, 10 Pick. 111-119.
The defendant relies upon the doctrine, which has been stated by many courts, that a person who is entitled to a payment after a demand which he may make when he chooses is bound to make a demand within a reasonable time in order to preserve his rights as against the statute of limitations. The law in regard to this subject was considered, and the authorities were referred to, in Shaw v. Silloway, 145 Mass 503, 14 N.E. 783, where it is said that the question whether in such cases a demand must be made within a reasonable time, and whether six years should ordinarily be considered as a reasonable time, has not been determined in Massachusetts. It is to be noticed that the bar of the statute of limitations differs from laches in suits in equity, inasmuch as it does not depend on equitable considerations in the particular case, but upon an express provision of statute which is to be construed in the usual way. Where a demand must be made before bringing an action, it is plain that, in a strict sense, the cause of action does not accrue until after the demand. Whether the creditor's rights may be lost by delay in making a demand when no time is fixed for it is a question which is answered differently in different jurisdictions. It has sometimes been held, or seemingly assumed, that, even if many years are permitted to elapse without a demand, the statute will not begin to run until the demand is made. Holmes v. Kerrison, 2 Taunt. 323; Thorpe v. Booth, Ryan & M. 388; Thorpe v. Coombe, 8 Dowl. & R. 347; Stanton v. Stanton, 37 Vt. 411; Rhind v. Hyndman, 54 Md. 527; Girard Bank v. Bank of Penn Tp., 39 Pa.St. 92. See Thrall v. Meade's Estate, 40 Vt. 540. Under this doctrine, carried to its extreme limit, a liability to a suit upon a claim might continue for an indefinitely long time. The extreme doctrine in the other direction is that the "cause of action accrues for the purpose of setting the statute in motion as soon as the creditor, by his own act, in spite of the debtor, can make the demand payable." Ware v. Hewey, 57 Me. 391; Sanford v. Lancaster, 81 Me. 434, 17 A. 402; Palmer v. Palmer, 36 Mich....
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