Cloyd v. Reynolds

• Decision Date: 10 October 1910
• Docket Number: 225-1909
• Citation: 44 Pa.Super. 81
• Parties: Cloyd, Appellant, v. Reynolds
• Court: Pennsylvania Superior Court

44 Pa.Super. 81

Cloyd, Appellant, v. Reynolds

No. 225-1909

Superior Court of Pennsylvania

October 10, 1910

Submitted October 29, 1909.

Appeal by plaintiff, from order of C.P. Huntingdon Co.-1909, No. 23 refusing to take off nonsuit in case of D. M. Cloyd v. H. P Reynolds.

Assumpsit for money had and received from the sale of a horse. Before Woods, P. J.

The facts are stated in the opinion of the Superior Court.

At the trial the court refused to admit under objection and exception certain letters written by the defendant to the plaintiff, offered for the purpose of showing that the defendant had represented to the plaintiff that the horse in question had been killed on a railroad.

The court entered a compulsory nonsuit which it subsequently refused to take off.

Errors assigned were various rulings on evidence and order refusing to take off nonsuit.

H. H Waite and Howard L. Henderson, for appellant. -- Defendant was not entitled to the benefit of the statute of limitations: Kalin v. Wehrle, 36 Pa.Super. 305; Smith v. Blachley, 188 Pa. 550; Sankey v. McElevey, 104 Pa. 265.

Chas. C. Brewster and Thos. F. Bailey, for appellee. -- Where more than six years have elapsed from the date of the collection, the onus probandi to take such a case out of the statute, is on the plaintiff: Campbell v. Boggs, 48 Pa. 524.

Mere silence or concealment by the debtor without affirmative misrepresentation will not toll the running of the statute of limitations: Sankey v. McElevey, 104 Pa. 265.

In Fleming v. Culbert, 46 Pa. 498, it is held that constructive fraud simply is not sufficient to toll the running of the statute: Scranton Gas & Water Co. v. Iron & Coal Co., 167 Pa. 136; Ritchey's Est., 8 Pa.Super. 527; Hostetter v. Hollinger, 117 Pa. 606.

Before Rice, P. J., Henderson, Morrison, Orlady, Head, Beaver and Porter, JJ.

OPINION

PORTER, J.

The plaintiff, in January, 1902, at Dublin, Virginia, delivered to the defendant a stallion to be sold by the latter upon commission. The horse was to be taken by the defendant to his place of business in Huntingdon county, __ Pa. __, and there sold if a satisfactory price could be obtained. Reynolds, under the provisions of the written agreement, was to sell the horse " at a price that he deems fit so that the colt shall pay to D. M. Cloyd the full sum of five hundred dollars and whatever part of the profits over that amount is mutually satisfactory." " In case of the death of the colt the said Reynolds shall not be held responsible for the $ 500, and the said D. M. Cloyd shall not be held responsible for any expense incurred on the colt." The oral evidence established that Reynolds took the horse to Huntingdon county, __ Pa. __, and there, on February 4, 1902, sold him to Trexler Bros. for the sum of $ 700 and received the purchase money for him. The plaintiff brought this action to recover the price of the horse on April 9, 1908. The court below upon the trial held that the statute of limitations was a bar to plaintiff's claim and entered a judgment of compulsory nonsuit which it subsequently refused to take off.

The plaintiff testified at the trial that the defendant had never informed him that the horse had been sold. He also offered certain letters of the defendant to him which contained actual misrepresentations of the facts and were manifestly intended to lead the plaintiff to believe that the horse had been killed, while still the property of the plaintiff, while in process of transportation to the state of West Virginia, where the defendant represented that he had shipped him for the purpose of making a sale. The court below excluded these letters, which ruling is the subject of several of the specifications of error. When the defendant sold the horse he became the debtor of the plaintiff, and while that relation is not ordinarily one of trust or confidence so as to make it the duty of the...