Manufacturers' Nat. Bank v. Perry
| Decision Date | 23 March 1887 |
| Citation | 11 N.E. 81,144 Mass. 313 |
| Parties | MANUFACTURERS' NAT. BANK v. PERRY. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
C.M. Perry, for defendant.
The statute of limitations pleaded by the defendant is a bar. Union Bank v. Knapp, 3 Pick. 96; Sturgis v Preston, 134 Mass. 372. The relation of defendant to the plaintiff was that of a depositor, which is not a fiduciary relation, but simply that of a debtor. In this respect the case differs from Atlantic Nat. Bank v. Harris, 118 Mass. 147. Concealment by mere silence is not enough. There must be some trick or contrivance intended to exclude suspicion and prevent inquiry. Wood v. Carpenter, 101 U.S. 135, 143. The evidence was insufficient in not proving the circumstances of the discovery. Wood v Carpenter, 101 U.S. 135, 143. If it be admitted that a demand upon the defendant is not a condition precedent to the plaintiff's right of action, still defendant claims that it was no part of his duty to go to the plaintiff, at any inconvenience to himself, in order to repay this sum. He was in no default till demand was made upon him, and until default he ought not to be charged with interest. The allowance of interest prior to the date of the writ was erroneous. Dill v. Wareham, 7 Metc. 438, 448; Earle v. Bickford, 6 Allen, 549, 551. It is only when a party has fraudulently obtained money that he is chargeable with interest from the time of his so obtaining it.
M Story, for plaintiff.
The court found as a fact that the defendant had fraudulently concealed the cause of action from the plaintiff, and that therefore, the statute was no bar. Pub.St. c. 197, § 14. The first question is whether there was any evidence to sustain this finding. The second question is whether the plaintiff is entitled to interest from February 28, 1879, or only from the date of the writ. There was abundant evidence of a fraudulent concealment to sustain the court's finding. The evidence showed, not merely simple concealment, but actual falsehood and active fraud. The offense of the defendant is not morally distinguishable from those which the law deems criminal, and it may be doubted whether it is distinguishable legally. Com. v. Mason, 105 Mass. 163; Com. v. Titus, 116 Mass. 42. Certainly the evidence was abundantly sufficient, both in law and in fact, to sustain the finding of the court. Atlantic Nat. Bank v. Harris, 118 Mass. 147. The court properly allowed interest from February 28, 1879. The demand was all that in the nature of things was possible. Had no demand been made, the interest should be allowed, at least, from the date of the fraudulent concealment. This concealment was a fraud which prevents a demand, and the defendant cannot profit by it. To hold otherwise would be to permit the defendant to secure the free use of the plaintiff's money so long as his fraud was successful. Wood v. Robbins, 11 Mass. 503; Atlantic Nat. Bank v. Harris, 118 Mass. 147.
OPINION
On February 24, 1879, the plaintiff, by mistake, overpaid to the defendant, on a check drawn by him, the sum of $200. A right of action then accrued to the plaintiff to recover it back. The writ in this case is dated December 4 1885, and therefore the action is barred by the statute of limitations, unless the defendant fraudulently concealed the cause of action from the plaintiff. Pub.St. c. 197, § 14. But the evidence is clear and decisive that there was such a fraudulent concealment. It shows that the overpayment was made to one Harper, a clerk of the defendant; that, upon his return to the defendant's store on the same day, Harper discovered the mistake, notified the defendant of it, and requested the defendant to allow him to return it to the plaintiff, and the defendant refused. Upon Harper's next visit to the bank, within a few days, the bank teller asked him if he had been overpaid, and he denied it. Harper reported this to the defendant, who, as the court was justified in finding, approved it, and afterwards kept the money without ever giving notice to the plaintiff. Here was a case of active fraud and dishonesty on the part of the defendant, by which the fact that he had received the money was concealed from the plaintiff. We need not inquire whether, from his relation to the bank, his mere silence and concealment of the fact of the overpayment would not of itself be sufficient evidence of a fraudulent concealment within the statute. He went further than this. His directions to his clerk not to notify the bank, and his approval and adoption of the lie told by the clerk to the bank teller, were active steps taken by him to prevent the bank from discovering the fact that he had received the money. The superior court was required to find upon the evidence that...
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