Cock v. Van Etten

• Decision Date: 01 January 1867
• Parties: CATHARINE COCK v. ISAAC VAN ETTEN.
• Court: Minnesota Supreme Court

12 Minn. 431

CATHARINE COCK

v. ISAAC VAN ETTEN.

Supreme Court of Minnesota.

Appeal by defendant from a judgment of the district court, Ramsey county.

Brisbin & Warner, for appellant

I. V. D. Heard, for respondent.

WILSON, C. J.

This case commenced in the district court of Ramsey county, was tried by a referee, who found and reported: "That on the twenty-fourth day of September, 1852, at Goshen, in the state of New York, the place of residence of the plaintiff, the plaintiff placed in the hands of the defendant, a resident of St. Paul, in this state, the sum of $700, which money the defendant was to loan out and keep at interest in the state of Minnesota, for and on behalf of the plaintiff, and as her agent in this behalf, in such manner as the defendant would deem most secure, so that the plaintiff should get the interest thereon annually. * * * That on the thirteenth of November, 1852, the defendant, as such agent, loaned to one Joseph W. Babcock the sum of $200 for the plaintiff, under the aforesaid arrangement," which the plaintiff afterwards collected. "That the defendant put the plaintiff's money and his own, and that of other parties for whom he was loaning money, into a common fund, and with the exception of said loan to Babcock did not loan the plaintiff's said money separately for her or in her own name, but loaned the same as his own money, and for his own use and benefit, intending to become personally responsible to the plaintiff. * * * That the plaintiff never authorized the defendant to invest said money except in her own name, and for her own benefit and account, * * * and did not know that her said money had been so used or invested by the defendant, until after the commencement of this action." The referee also found "that the defendant's compensation for attending to said business was not agreed upon at the time said money was so placed in his hands, but it was subsequently agreed by both parties that the defendant might retain for such compensation all interest that might accrue thereon over 20 per cent. per annum. That the defendant paid to the plaintiff, under the said contract, the sums following, viz.: April 20, 1855, $300; March 11, 1856, $140; June 16, 1857, $140; which said sum, $580, was intended as payment in full of all interest that the plaintiff was entitled to receive on account of her said $700, pursuant to the aforesaid arrangement, up to June 16, 1857, and that the defendant has paid to the plaintiff no other or further sum whatever."

As a conclusion of law the referee finds that "the plaintiff not having authorized the investment of her said funds by the defendant on his own account, for his benefit, as aforesaid, and not knowing that the same had been invested otherwise than was provided in said contract, until within six years prior to the commencement of this action, her right to recover in this action is not barred by the statute of limitations." The question decisive of the case is whether the action is barred by the statute of limitations. The statute bearing on this point reads: "Actions can only be commenced within the period prescribed in this chapter after the cause of action shall have accrued within six years: (1) An action upon a contract or other obligation, express or implied. * * * (6) An action for relief on the ground of fraud; the cause of action in such case not to be deemed to have accrued until the discovery by the aggrieved party of the facts constituting the fraud."

This action falls under one of these subdivisions: if under the first, I think it is barred by the statute. The evidence fully justifies the finding of the referee "that the plaintiff never authorized the defendant to invest said money except in her own name and for her own benefit and account." Under such circumstances the appropriation of the money to his own use, and loaning it in his own name, were a conversion, and entitled the plaintiff to sue for and recover it at once, without demand, — Farrand v. Hurlbut, 7 Minn. 479, (Gil. 383,) — and the right of action being then perfect, the statute commenced to run against a suit on the contract. Hemp v. Garland, 4 Ad. & E. (N. S.) 519.

The statute is specific that an action can only be commenced within six years after the cause of action shall have accrued. The courts have no dispensing power in favor of parties who do not discover their rights until their remedy is gone. The exceptions to the general rule specified in the statute clearly show that none else were intended. See Addison, Cont. (2d Am. Ed.) 1207-8, and cases cited in notes; Granger v. George, 5 Barn. & Cress. 150. See, also, Troup v. Smith, 20 Johns. 33.

But I am inclined to the view that this case may be classed under...