Rhines's v. Evans

• Decision Date: 03 January 1871
• Citation: 66 Pa. 192
• Parties: Rhines's Administrators <I>versus</I> Evans.
• Court: Pennsylvania Supreme Court

66 Pa. 192

Rhines's Administrators versus Evans.

Supreme Court of Pennsylvania.

October 20, 1870.

January 3, 1871.

October 20th 1870.

Before THOMPSON, C. J., READ, AGNEW, SHARSWOOD and WILLIAMS, JJ.

Error to the Court of Common Pleas of Jefferson county: No. 127, to October and November Term 1870 G. R. Jenks, for plaintiffs in error, cited Zacharias v. Zacharias, 11 Harris 454; Morrison v. Mullin, 10 Casey 17; Vanhorn v. Scott, 4 Id. 317; Foster v. Jack, 4 Watts 340; McCoon v. Galbraith, 5 Casey 295; McDowell v. Potter, 8 Barr 190; Glenn v. Cuttle, 2 Grant 273; Campbell v. Boggs, 12 Wright 526.

There was no argument nor paper-book for the defendant in error.

The opinion of the court was delivered, January 3d 1871, by AGNEW, J.

On the 10th of February 1858, J. B. Evans, Esq., gave his receipt to A. S. Rhines for a due-bill on Lukins & Beeson of Rochester, Pa., dated October 30th 1857, for $365, for collection. Evans is called attorney in the paper-book; but whether he is an attorney at law does not appear, and is perhaps not very material: Campbell v. Boggs, 12 Wright 524. So far as we learn from the paper-book, nothing whatever appears to have been done by Evans toward the collection of the money. It appears, however, from the testimony of Lukins, that there was an understanding that the due-bill might be renewed in the following spring by a note; and Lukins & Beeson actually gave their note at four months, dated May 13th 1858, for $372.30, payable to the order of A. P. Rhines at the Merchants' and Manufacturers' Bank of Pittsburg. J. S. Piehl, the person who called on Lukins & Beeson and got the new note, acted without authority, and did not surrender the due-bill, for the reason, probably, that it was in the possession of Evans. The new note was endorsed by John A. Myler, as he says, as an accommodation endorser, and was paid by Lukins & Beeson at maturity. Lukins & Beeson considered themselves absolved from further liability, and Lukins, who was examined in 1869, said that they, Lukins & Beeson, would take any legal means to prevent collection. The Statute of Limitations was then a protection to them. During all this time we hear nothing of Evans, and of nothing done by him to collect the due-bill. This action is assumpsit, brought by Rhines against Evans on his undertaking of the 10th of February 1858, and was commenced on the 27th of July 1865. The court below held that the action was barred by the Statute of Limitations, and this is the only error assigned. How the second note came to be paid at the bank without the endorsement of Rhines, to whose order it was drawn, does not appear; but it is presumable, if it had been endorsed by him or by his authority, Evans would have shown it, and thus absolved himself. As the case stands, then, Evans took no step whatever to collect the due-bill of $365, and Rhines has lost his money. Under these circumstances, when did the Statute of Limitations begin to run? All the authorities agree in this, that it began when the cause of action first arose — that is, when Evans first became liable to Rhines for neglecting to collect the money: Campbell's Adm'rs v. Boggs, 12 Wright 524; Downey v. Garard, 12 Harris 52; Morrison's Adm'rs v. Mullin, 10 Casey 17; Barton v. Dickens, 12 Wright 518. But when did Evans become liable to Rhines for a neglect of duty? It is clear he did not at the date of the receipt, for that would allow no time to perform the duty. Clearly a reasonable time must be allowed to begin. The attorney must be invested with some discretion in the absence of peremptory instructions. As remarked by the present Chief Justice, Morrison's Administrator v. Mullin, supra, "to give effect to the spirit of the statute, the law sometimes, in the absence of stipulation by the parties, fixes the time when the cause of action shall be taken to have accrued, by the diligence required of the party. When the time for doing an act necessarily precedent to bringing a suit is indefinite, it allows a reasonable time. When that reasonable time has elapsed, the duty of diligence begins."

What is a reasonable time is a question most frequently dependent on circumstances, and therefore to be submitted in such cases to the jury. In the case of...