Menges v. Frick

• Decision Date: 17 May 1873
• Citation: 73 Pa. 137
• Parties: Menges <I>et al. versus</I> Frick <I>et al.</I>
• Court: Pennsylvania Supreme Court

73 Pa. 137

Menges et al. versus Frick et al.

Supreme Court of Pennsylvania.

January 29, 1873.

May 17, 1873.

January 29th 1873.

Before READ, C. J., AGNEW, WILLIAMS and MERCUR, JJ. SHARSWOOD, J., at Nisi Prius

Error to the Court of Common Pleas of Union county: No. 77½, to July Term 1872.

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G. F. Miller (with whom was J. Porter), for plaintiffs in error. —In computing the time for the running of the Statute of Limitations, the day on which the debt fell due is to be excluded: Overton v. Tyler, 3 Barr 346; Sims v. Hampton, 1 S. & R. 411; Cromelien v. Brink, 5 Casey 522; Pugh v. Duke of Leeds, Cowper 714; Webb v. Fairmaner, 3 M. & W. 473; Young v. Higgon, 6 Id. 49; Robinson v. Waddington, 13 A. & E. (N. S.) 753: Green's Appeal, 6 W. & S. 327; Marks v. Russel, 4 Wright 372.

J. M. Linn, for defendants in error.—The suit must be commenced within six years from the time the cause of action accrues: Vanhorn v. Scott, 4 Casey 316; Overton v. Tracey, 14 S. & R. 311. This is, therefore, to be taken to be the understanding of the parties: Thompson v. Ketcham, 8 Johns. 189. The presumption is that payment for goods sold is to be on demand: Warren v. Wheeler, 8 Metc. 97. The statute runs from the date of a note payable on demand: Tidd's Prac. 17; Taylor v. Whitman, 3 Grant 138; Girard Bank v. Penn Township Bank, 3 Wright 92; 2 Kent Com. 496. The defendants had not the whole of October 6th to pay, but were bound to pay immediately: Presbrey v. Williams, 15 Mass. 193; Glassington v. Rawlins, 3 East 407.

The opinion of the court was delivered May 17th 1873, by WILLIAMS, J.

The only question necessary to be considered in this case is, was the plaintiffs' action barred by the Statute of Limitations? The last item of timber in the account sued on was delivered on the 6th of October 1862, and the action was commenced on the 6th of October 1868. The act provides that actions for account shall be commenced and sued "within six years next after the cause of such actions or suit, and not after." There can be no doubt that the cause of action in this case arose on the day the timber was delivered. If that day is to be excluded from the reckoning, the six years had not expired when the suit was commenced. But why, even if the words of the act are to receive a strict and literal construction, should it not be excluded? "Within six years next after the cause of action or suit," as applied to the facts of this case, must necessarily mean within six years next after the day on which the timber was delivered. The day of the delivery must, therefore, be excluded in counting the time within which the action may be brought. If suit may be commenced within six years next after the day on which the cause of action arose, then it is too plain for argument that that day is not to be included in the computation. But if there could be any doubt as to the proper construction and meaning of the act, the rule must now be regarded as settled that when an Act of Assembly requires...