King Iron Bridge & Mfg. Co. v. Otoe County

• Decision Date: 04 June 1886
• Citation: 27 F. 800
• Court: U.S. District Court — District of Nebraska
• Parties: KING IRON BRIDGE & MANUF'G CO. v. COUNTY OF OTOE.

27 F. 800

KING IRON BRIDGE & MANUF'G CO. v. COUNTY OF OTOE.

United States Circuit Court, D. Nebraska.

June 4, 1886

N. S Harwood, for plaintiff.

J. C Watson, for defendant.

DUNDY J.

When a claim against a county has been audited, and warrants have been drawn on the treasury therefor, and such warrants have been accepted by the creditor, he must present them to the treasury for payment before he can properly sue the county thereon. When presented to the treasurer for payment and payment is refused, the right to sue becomes complete and absolute, and the lawful holder of the warrants can then proceed to have his claim reduced to judgment. There was nothing whatever in the way of Z. King, the payee, or the plaintiff, his assignee, suing on said warrants at any time after the fifteenth day of January, 1879. The cause of action had accrued on both the warrants at that time, and the statute of limitations commences to run as soon as the cause of action accrues. We have this provision in our statute of limitations, on which the defendant relies:

'Civil actions, other than for the recovery of real property, can only be brought within the following periods after the cause of action shall have accrued: * * * Within five years, an action upon a specialty, or any agreement, contract, or promise in writing, or foreign judgment. ' See sections 9, 10, pt. 2, Code Civil Proc.

This suit was commenced nearly seven years after the cause of action accrued. It seems to me to come fully within the provisions of the section of the Code above quoted. The action was not brought in time. The statute of limitations is therefore well pleaded. It follows that the demurrer to the answer must be overruled.

The plaintiff may, at its option, take leave to reply, or dismiss this action without prejudice, in 10 days. So ordered.

NOTE.

Statutes of limitations are statutes of repose, Hurley v. Cox, (Neb.) 2 N.W.Rep. 705; Letson v. Kenyon, (Kan.) 1 Pac.Rep. 562; Taylor v. Miles, 5 Kan. 499; Elder v. Dyer, 26 Kan. 604, and are enacted upon the presumption that one having a well-founded claim will not delay enforcing it beyond a reasonable time if he has the power to sue. Such reasonable time is therefore defined and allowed. But the basis of the presumption is gone whenever the ability to resort to the court has been taken away; for in such a case the creditor has not the time within which to bring his suit that the statute contemplated he should have. Greenwald v. Appell, 17 F. 140.

The object of the statute is to suppress fraudulent and stale claims, and prevent them from showing up at great distances of time, and surprising the parties or their representatives when all the proper vouchers and evidence are lost, or the facts have become obscure from the lapse of time, or the defective memory or death or removal of witnesses. Hurley v. Cox, (Neb.) 2 N.W.Rep. 705; Spring v. Gray, 5 Mason, 523.

Where a statute of limitations provided that in cases where the cause of action had already accrued at the passage of the act a party should have the whole period prescribed by the act, after its passage, in which to commence action, and by another act of the same legislative session it was provided that said statute and others should take effect at a day subsequent to the date of their actual passage and approval by the governor, it was held that the period of limitation did not begin to run until the statute took effect, as provided in the second act. Schneider v. Hussey, (Idaho,) 1 Pac.Rep. 343; Rogers v. Vass, 6 Iowa, 408.

1. AGENTS. As a general rule the statute of limitations does not commence to run in favor of an agent and against his principal until the principal has knowledge of some wrong committed by the agent inconsistent with the principal's rights. Perry v. Smith, (Kan.) 2 Pac.Rep. 784; Green v. Williams, 21 Kan. 64; Auld v. Butcher, 22 Kan. 400; Kane v. Cook, 8 Cal. 449; Ang. Lim. Sec. 179 et seq.; 7 Wait, Act. & Def. 238.

But it has been held that where an agent is appointed to collect money and remit, after deducting his reasonable charges, and fails to do so after a reasonable time, the statute of limitations commences to run. Mast v. Easton, (Minn.) 22 N.W. 253. See Stacy v. Graham, 14 N.Y. 492; Lillie v. Hoyt, 5 Hill, 395; Hart's Appeal, 32 Conn.

520; Campbell's Adm'rs v. Boggs, 48 Pa.St. 524; Denton's Ex'rs v. Embury, 10 Ark. 228; Estes v. Stokes, 2 Rich.Law. 133; Mitchell v. McLemore, 9 Tex. 151; Hawkins v. Walker, 4 Yerg. 188.

The fact that the principal did not know when the claim was collected, and hence did not know that the agent had failed in the performance of his duty, and that a right of action had accrued, will not effect the running of the statute. Mast v. Easton, (Minn.) 22 N.W. 253; Cock v. Van Etten, 12 Minn. 522, (Gil. 431.)

2. BANKRUPTCY. The statute of limitations is no bar to proof in bankruptcy if it had not run against the claim at the commencement of the proceedings in bankruptcy, In re McKinney, 15 F. 912; and no lapse of time will prevent the proof of the claim before the register, up to the final distribution of dividends. If it is so barred by the statute before the adjudication, it will remain barred, and the claim cannot be proven. In re Graves, 9 Fed.Rep. 816.

3. BILLS, ETC. In a suit by the drawee of a bill of exchange against an indorser, where such bill was drawn by the treasurer of the United States, and the name of the payee forged, the statute of limitations does not begin to run until judgment has been obtained by the United States against the drawee. Merchants' Nat. Bank of Baltimore v. First Nat. Bank of Baltimore, 3 Fed.Rep. 66.

a. Claims Payable on Demand. Where no time is specified within which a loan of money is to be repaid, the presumption of the law is that it was to be paid on demand, and the statute of limitations commences to run from the time of the loan. Dorland v. Dorland, (Cal.) 5 Pac.Rep. 77; Ang. Lim. Sec. 95.

On a due-bill without day of payment a cause of action accrues on delivery, and the statute begins to run. Douglass v. Sargent, (Kan.) 4 Pac.Rep. 861. See Palmer v. Palmer, 36 Mich. 487; Herrick v. Woolverton, 41 N.Y. 581; Wheeler v. Warner, 47 N.Y. 519; Stover v. Hamilton, 21 Grat. 273; Bowman v. McChesney, 22 Grat. 609.

In an action to recover from a bank a general deposit, the statute does not commence to run until a demand, unless the demand has been in some way dispensed with. Branch v. Dawson, (Minn.) 23 N.W. 552.

And the same is true of an 'especial deposit.' Smiley v. Fry, (N.Y.) 3 N.E.Rep. 186.

4. BONDS. a. Administrator's Bond. The liability of a surety on an administrator's or executor's bond is not fixed, and no cause of action arises thereon until there is a judicial ascertainment of the default of the principal, and from this time the statute of limitations begins to run. Alexander v. Bryan, 4 Sup.Ct.Rep. 107.

This judicial ascertainment must be something more than the mere auditing of the accounts. There must be a decree ordering payment, on which process to collect can issue against the principal. Id.

b. Appeal-Bonds. The statute commences to run in favor of sureties on an undertaking on appeal from the date of the affirmance of the judgment to which it relates. Clark v. Smith, (Cal.) 6 Pac.Rep. 732; Crane v. Weymouth, 54 Cal. 480; Castro v. Clarke, 29 Cal. 11.

c. Guardian's Bond. The statute commences to run against suit on guardian's bond when the person ceases to be guardian. Probate Judge v. Stevenson (Mich.) 21 N.W. 348; and in case of a default, a right of action first accrues to the ward when amount of such default is ascertained by the court in the settlement of the guardian's final account, and from this time the statute runs. Ball v. La Clair (Neb.) 22 N.W. 118.

d. Public Officer's Bond. The statute does not commence to run in favor of sureties on the bond of a public officer until the liability of their principal has been fixed. Lawrence v. Doolan, (Cal.) 5 Pac.Rep. 484.

And it has been held that where an assessment of damages for a right of way is paid to a sheriff, the statute begins to run against an action on sheriff's bond to recover such assessment when the time fixed by law for appeal has expired. Lower v. Miller, (Iowa,) 23 N.W. 897.

5. BOOK-ACCOUNTS. On the settlement of a book-account it has been held that the statute of limitations begins to run from the time the account is settled, and not from the time of the discovery of facts showing that such settlement was fraudulently made. Kirby v. Lake Shore & M.S.R. Co., 14 F. 261.

On an open, mutual account the statute does not commence to run until the date of the last item charged. Hannon v. Engelmann, (Wis.) 5 N.W.Rep. 791.

Where an open account is closed by an agreement that certain parties shall assume payment, the statute runs from the date of such agreement. Hammond v. Hale, (Iowa,) 15 N.W. 585.

But where the items of an account are all charged against one party it is not a mutual account, Fitzpatrick v. Henry, (Wis.) 16 N.W. 606; Butler v. Kirby, 53 Wis. 188; S.C. 10 N.W. 373; Ang. Lim. Secs. 148, 149; and each item will stand, as regards the running of the statute, as though it stood alone. Courson's Ex'rs v. Courson, 19 Ohio St. 454. See Blair v. Drew, 6 N.H. 235; Smith v. Dawson, 10 B.Mon. 112; Craighead v. Bank, 7 Yerg. 399; Lowe v. Dowborn, 26 Tex. 507; Cottam v. Partridge, 4 Man. & G. 271; Williams v. Griffiths, 2 Cromp., M. & R. 45; Tanner v. Stuart, 6 Barn. & C. 603; Bell v. Morrison, 1 Pet. 351.

6. CONTRIBUTION. On an action for contribution by one of the sureties on a note against whom a judgment has been taken for the full amount, the statute begins to run from the date of the payment of such judgment. Preston v. Gould (Iowa,) 19 N.W. 834....