Fleming v. Culbert

• Citation: 46 Pa. 498
• Court: United States State Supreme Court of Pennsylvania
• Decision Date: 10 March 1864
• Parties: Fleming <I>versus</I> Culbert, Administrator of Fleming.

46 Pa. 498

Fleming versus Culbert, Administrator of Fleming.

Supreme Court of Pennsylvania.

March 10, 1864.

ERROR to the District Court for the city and county of Philadelphia.

F. Carroll Brewster and Egbert K. Nichols, for plaintiff in error, contended that Johnston v. Humphries, 14 S. & R. 394 (relied upon by the learned judge in the court below), had been virtually overruled by Mann v. Warner, 4 Whart. 455, and Lyon v. Maclay, 1 Watts 271. To exempt a trust from the operation of the statute, it must be a direct trust, and one belonging exclusively to the jurisdiction of a court of equity: Kinney's Ex'rs. v. McClure, 1 Rand. 284; Kane v. Bloodgood, 7 Johns. Ch. R. 90.

R. H. McGrath and Samuel Hood, for defendant in error, insisted that where a confidential relation existed between parties, like that in the case at bar, the statute could not be invoked: Harrisburg Bank v. Forster, 8 Watts 12; Riddle v. Murphy, 7 S. & R. 235; McDowell v. Potter, 8 Barr 189.

The opinion of the court was delivered, March 10th 1864, by WOODWARD, C. J.

In the case of Glenn v. Cuttle, 2 Grant's Cases 273, it was held that the neglect of an attorney in fact to pay over the money of his principal within a reasonable time after its collection, was a breach of duty for which an action would lie without previous demand, and that the Statute of Limitations begins to run against the principal from the time his right of action accrues. But if there be fraudulent concealment on the part of the attorney, as, for example, if he give false or evasive answers to the inquiries of his client or principal, the statute begins to run only from discovery of the fraud.

How well these conclusions stand upon reason and authority may be seen by reference to that case. It was a carefully considered case, and I am not aware that it has been questioned or doubted in the ten years that have elapsed since it was decided. If it is to be followed, it leaves but a single question for our consideration in the case now before us, which question is, whether the attorney's investment of his principal's money in bonds and mortgages in his own name was a fraudulent concealment.

The Flemings were brothers. Samuel lived in Ireland, William here. Both were interested in the estate of Robert Fleming, another brother, who died here, and whose estate was here. Samuel gave William a letter of attorney, dated 30th August 1852, to receive and remit his (Samuel's) distributive share of Robert's estate. It is stated that a distribution account of Robert's administrators was filed December 16th 1853, the date, we presume, at which William received Samuel's share. No demand or inquiry on the part of Samuel was shown — no correspondence between the brothers was exhibited, but the judge states, that instead of remitting the money in the mode directed, he invested it in bonds and mortgages in his own name. The mode directed for the remittance was by bills of exchange on London, and was prescribed, it is presumed, when the letter of attorney was given. Samuel died in Ireland without ever coming to this country, and this action by his administrator was brought in 1862 — some eight or nine years after receipt of the money. The Statute of Limitations was pleaded, but overruled, and the plaintiff below got a verdict for $2329.86.

The only question presented is, whether the investment of moneys in bonds and mortgages by an attorney in fact, instead of remitting them abroad, as instructed, was fraudulent concealment.

A majority of the court think it was not. We hold that it was no more a fraudulent concealment than if the attorney had kept the money in his own pocket or bank account. A breach of duty it undoubtedly was. He ought to have remitted the funds as directed. And because he was suable for this breach of duty, the statute, which always acts on the remedy and not the right, began to run when the action might have been brought. To arrest its progress the plaintiff should have shown a fraudulent concealment of the moneys, which we think was not done, by showing a safe investment of them. The moneys came from an administered estate, and were paid to the...