Davis v. Coburn

• Court: Supreme Judicial Court of Massachusetts
• Writing for the Court: Soule, J.
• Citation: Davis v. Coburn, 128 Mass. 377 (Mass. 1880)
• Decision Date: 26 February 1880
• Parties: John Davis, administrator, v. Luther W. Coburn

128 Mass. 377

John Davis, administrator, v. Luther W. Coburn

Supreme Court of Massachusetts

February 26, 1880

Argued July 24, 1879

Middlesex. Contract by the administrator of the estate of Frederick A. Coburn. Writ dated February 26, 1877. The declaration contained three counts. The first count was for money had and received to the use of the plaintiff's intestate. The second count alleged that the intestate in 1851 sent from California to the defendant the sum of $ 2000 that the defendant received the same, and agreed to invest it for the use of the intestate, and afterwards did invest it for the use of the intestate and received interest thereon that the plaintiff was duly appointed administrator of his intestate's estate and demanded payment of the defendant, who refused to pay the same. The third count was for money lent. The answer, among other defences, set up the statute of limitations. Trial in the Superior Court, without a jury, before Allen J., who allowed a bill of exceptions in substance as follows:

The plaintiff's intestate, who was the brother of the defendant, went from this Commonwealth to California in 1849, and resided there until his death in 1859. The defendant has always resided in this Commonwealth. The plaintiff was duly appointed administrator, and gave the usual bond and notice in September 1874, and in the spring of 1876 made a demand upon the defendant. The plaintiff relied upon evidence tending to prove that the defendant received from the intestate, in 1852, $ 1000 in gold, which the defendant retained and invested; and introduced no direct evidence of any contract or conditions under which the money was received, but relied upon circumstances to show the character in which the defendant held the money.

The defendant testified that he let the intestate have $ 100 to pay his passage to California; that the intestate then said to him, that, if he had good luck, he would send him as much more, and that he might send enough more to make the defendant rich; that, in 1852, the intestate sent from California about $ 1000 by a messenger, who delivered it to the defendant, saying, "Your brother Frederick sent this to you," and, at the same time, handed the defendant a letter from the intestate, saying, "This letter will tell you what to do with it;" that the letter had been in the defendant's possession within about a year; that it was now lost and could not be found, though diligent search had been made for it; and that the defendant knew and could prove its contents, and had a copy of the letter. But the defendant did not offer to prove the contents of the letter.

The defendant's counsel put to him the following questions: "Did you suppose and believe, when you received the gold, that it was intended to be given to you by your brother in payment of the $ 100, which he borrowed of you, and in fulfilment of his promise which he made when he borrowed the money?" "And did you so accept it?" "And have you ever since used it in that belief?"

The plaintiff objected to these questions, but not on account of their form, and the judge excluded them.

The judge found that the intestate sent to the defendant $ 900, to keep and invest for him; that the defendant received the money and invested it in his own name, keeping it separate from other moneys for two or three years, and after that mingling it with his own moneys, in various investments, keeping no separate account of the principal and income, and treating it as his own.

The defendant asked the judge to rule, that the action was barred by the statute of limitations; and that, if the action could be maintained, the defendant could not be charged with interest before the time of the plaintiff's demand. But the judge ruled, that the action was not so barred; that the defendant received the $ 900 in trust to invest and keep for the intestate; that the cause of action did not accrue against the defendant until the plaintiff's demand upon him; and that the defendant was liable for the $ 900, and the income received thereon by him to the time of the demand, after deducting proper allowance for his services; and found for the plaintiff in the sum of $ 2362. The defendant alleged exceptions.

Exceptions sustained.

J. N. Marshall & M. L. Hamblet, for the defendant.

G. F. Richardson, for the plaintiff.

Soule J. Colt & Endicott, JJ., absent.

OPINION

Soule, J.

This case comes to us on exceptions to rulings of the judge before whom it was tried in the Superior Court, on certain matters of law. His findings of fact are not open to revision, but are conclusive; and we cannot consider the question whether they are warranted by the evidence before him and not reported to us.

It was found in the Superior Court that the money, for which, with its accumulations, the plaintiff sues, was sent to the defendant to keep and invest for the plaintiff's intestate. It was found, therefore, that it came to the defendant's hands, under an express trust. It remained in his hands without notice from him to the intestate of any repudiation of the trust during the life of the intestate and no notice of such repudiation was given to the plaintiff till he demanded the money and the defendant refused to pay it. Under these circumstances and findings, it was correctly ruled at the trial that the action, though begun nearly twenty-five years after the money was received by the defendant, and about eighteen years after the death of the intestate, was not barred by the statute of limitations, it having been begun about two and a half years after the plaintiff was appointed administrator, and within two years after he demanded the money of the defendant. Express trusts in...