Mitchell v. Mclemore

• Decision Date: 01 January 1852
• Citation: 9 Tex. 151
• Parties: MITCHELL, ADM'R, v. MCLEMORE.
• Court: Texas Supreme Court

9 Tex. 151

MITCHELL, ADM'R,

v.MCLEMORE.

Supreme Court of Texas.

1852.

Without reviewing or attempting to reconcile the cases on this subject, (the necessity or not of demand before suit against an agent or factor,) it may be stated as a general rule that where the money is due, or where the action is for a precedent debt or duty, no demand is necessary. (Note 35.)

An agent or factor cannot be liable until he has disobeyed his orders, either actually or impliedly, by some act or omission inconsistent with his duty to his principal. This he cannot do until he has been called upon or has received the instructions of his principal, where there is an understanding, either express or implied from custom and usage in the particular case, that he is not to pay the money or render an account until requested or instructed by his principal. But where there is not such an understanding, either express or implied, it is the duty of the agent to pay the money or to account within a reasonable time; and on his failure to do so an action will lie without a previous demand.

It has been said that the statute of limitations does not commence to run in favor of an agent or factor until after a demand; but this is in cases only where a previous demand is necessary before suit: where such demand is not necessary, the statute runs from the time when the suit could have been maintained.

Appeal from Navarro. The appellee filed his petition in the District Court on the 28th day of September, 1850, setting forth that on the 18th day of November, 1839, the defendant's intestate executed to the plaintiff his receipt, whereby he acknowledged the receipt from the plaintiff of four hundred and fifty dollars, to be by him invested in the paying government fees for Texas scrip placed in his hands for location; that he thereby became bound to apply the money to the purpose mentioned in the receipt, or, if he failed to do so, to refund it to the plaintiff; and that he had failed to apply the money agreeably to his undertaking or to account for it to the plaintiff.

The statute of limitations was pleaded, to which the plaintiff excepted, and his exceptions were sustained by the court. There was judgment for the plaintiff, and the defendant appealed, the appeal being sent to Austin by consent of parties.

F. L. Barziza and A. M. Lewis, for appellant.

E. H. Tarrant, J. P. Henderson, and J. E. Cravens, for appellee.

LIPSCOMB, J., did not sit in this case.

WHEELER, J.

The principal question is whether the cause of action was barred by the statute of limitations.

The relation between the parties to the receipt was that of principal and agent, and the principle applicable to the case is the same as in the cases of agency and factorage. In these cases, where money has been collected by an agent for his principal, or an attorney for his client, or where goods have been consigned to a factor for sale, there has been some at least apparent contrariety of opinions as to whether an action will lie until after demand, and consequently whether the statute of limitations will commence to run in favor of the agent or consignee till that time. (1 Taunt. R., 571; 12 Mod. R., 444; 3 Gill & Johns. R., 422; 15 Wend. R., 302; 5 Hill, (N. Y.) R., 395; 7 Greenl. R., 298; Angell on Lim., 178, ch. 17,)

Without reviewing or attempting to reconcile the cases on this subject, it may be stated as a general rule that where the money is due and payable immediately, or where the action is for a precedent debt or duty, no demand is necessary. (1 Chit. Pl., 329, Am. ed. of 1840.)

In the case of Stafford v. Richardson, (15 Wend. R., 304,) the Supreme Court of New York held that in an action against an attorney for money collected by him, the fact that a demand was not made within six years before suit brought would not prevent the running of the statute; that if a demand was necessary the plaintiff should have made it in season to have brought this suit within six years after the default of the defendant. And in Lillie v. Hoyt, (5 Hill, 395,) the same court held that it is the duty of a mere collecting agent who receives money on account of his principal to pay it over within a reasonable time, and if it be not so paid the principal may maintain an action for it without any previous demand. A foreign factor receiving the proceeds of sales made by him it was considered is not liable to an action until after demand.

The law upon the subject of the liability of factors to suit without demand underwent a full and clear exposition by Chief Justice Parker in giving the opinion of the Supreme Court of Massachusetts in the case of Clark v. Moody. (17 Mass. R., 145.) It is there shown that even in the case of foreign factors a demand is not in all cases necessary. “The general rule laid down in the books,” it was said, “is that when goods are delivered to a factor to be sold and disposed of for his principal the law implies a promise on the part of the factor that he will render an account of them whenever called upon by the principal, and if he...