Green v. Coos Bay Wagon-Road Co.

• Decision Date: 02 March 1885
• Citation: 23 F. 67
• Parties: GREEN v. COOS BAY WAGON ROAD CO.
• Court: U.S. District Court — District of Oregon

23 F. 67

GREEN v. COOS BAY WAGON ROAD CO.

United States Circuit Court, D. Oregon.

March 2, 1885

Thomas N. Strong, for plaintiff.

James F. Watson and Edward B. Watson, for defendant.

DEADY J.

This action is brought by A. T. Green, of California, against the defendant, a corporation duly formed under the laws of Oregon, to recover the sum of $3,000, with interest from June 1, 1875, amounting to $2,825. The action was commenced on November 10, 1884; and it is alleged in the complaint that on April 17, 1875, the defendant was the owner of 96,325 acres of land in Douglas and Coos counties, and this state, for 35,533 acres of which it had a patent from the United States and was entitled to a patent for the remainder; that the defendant then agreed with the plaintiff that if he would find a purchaser for said lands, it would pay him a commission of $5,000; that the plaintiff accepted said proposition, and afterwards, on May 31, 1875, the plaintiff found a person who purchased said lands of the defendant at one dollar per acre, and paid for the patented portion thereof at once, and agreed to pay for the remainder as soon as the patent was issued therefor; that on July 26, 1875, the defendant paid the plaintiff on account of sum of $2,000, and requested him 'to wait for the payment' of the remaining $3,000 until it received the balance of the purchase price, to which he agreed; that the plaintiff at the same time agreed to, and afterwards did, assist the defendant to get the remainder of said purchase price, which was paid to it on January 7, 1884; and that on January 12th, the plaintiff duly demanded of the defendant payment of said $3,000, with legal interest thereon from June 1, 1875, which it refused. The defendant demurs, for that 'it appears on the face of the complaint that said action was not commenced within the time prescribed by law,' and 'is barred by the statute of limitations.'

The Code of Civil Procedure, Sec. 66, provides that the defense of the statute of limitations may be made by demurrer when it appears on the face of the complaint that the action has not been commenced within the period prescribed by law. The contention of the defendant is that it appears from the complaint that whatever was to be paid to the plaintiff for his services in procuring a purchaser of the property was due and payable on May 31, 1875, when the service was performed or, at the furthest, on July 26th, when the purchaser paid the first installment of the purchase money, and the plaintiff received the two-fifths of the commission claimed by him, and that at the expiration of the six years thereafter, to-wit, July 26, 1881, the claim for the balance of $3,000 was barred by the lapse of time. The plaintiff's answer to this proposition is that by the agreement of July 26th, the payment of his claim was postponed until the defendant should receive the remainder of the purchase money, which did not occur until January 7 1884, at which time the statute commenced to run against the claim, and not before; citing Webber v. Williams College, 23 Pick. 302; Ang. Lim. p. 111, Sec. 120; Lichty v. Hugus, 55 Pa.St. 434; Irving v. Veitch, 3 Mees.& W. 90. According to the complaint this $3,000 was due the plaintiff at the date of this agreement, and had been since June 1st, from which time he seeks to recover interest on that sum. Without doubt, if the arrangement made between the parties on July 26, 1875, constituted a valid agreement, the day of payment was postponed until January 7, 1884, and the statute did not commence to run until that time.

But it does not appear that there was any consideration for the plaintiff' ' promise to delay action in the premises. The defendant neither gave nor forebore anything in consideration of or on account of the plaintiff'' promise; while, on the other hand, the plaintiff undertook the further service of helping to obtain the remainder of the purchase money without, as appears, any compensation therefor. The promise was then a mere nudum pactum, which did not in law prevent the plaintiff from maintaining an action in the mean time to recover whatever was due him from the defendant. And from the time the plaintiff's right to sue commenced, the statute commenced to run against it, and cut it off by June 1, 1881. As was substantially said in Chace v. Chapin, 130 Mass. 128, of a similar agreement between the maker and payee of a note to postpone the day of payment thereof, there is no advantage to the defendant nor disadvantage to the plaintiff growing out of the agreement which can constituted a consideration for the plaintiff's promise to postpone the payment of the sum then due him, and therefore it is not binding on him. Notwithstanding the promise, he could, at any time within six years from June 1, 1875, have maintained an action against the defendant to recover the unpaid commission. See, also, Shapley v. Abbott, 42 N.Y. 447.

The cases cited by counsel for the plaintiff do not support his contention in this respect. In Irving v. Veitch, supra,...