Rowsey v. Lynch

• Decision Date: 31 January 1876
• Citation: 61 Mo. 560
• Parties: CHARLES A. ROWSEY, Appellant, v. PATRICK LYNCH, Respondent.
• Court: Missouri Supreme Court

61 Mo. 560

CHARLES A. ROWSEY, Appellant,

v.PATRICK LYNCH, Respondent.

Supreme Court of Missouri.

January Term, 1876.

Appeal from St. Louis Circuit Court.

Hitchcock, Lubke & Player, for Appellant.

I. This being a suit upon an instrument of writing under seal, plaintiff had ten years within which to bring his action. (Martin vs. Knapp, 45 Mo., 48.)

II. This action was brought in 1870, and no cause of action accrued to plaintiff until 1862, when his property was sold to pay the debts of the firm of Rowsey & Lynch, because: [ a.] Defendant's agreement was “to pay off and discharge all the liabilities of the late firm of Rowsey & Lynch,” etc. This agreement put the plaintiff, the retiring partner, in the place of a surety only for the payment of the partnership debts, and rendered him a specialty creditor when his property was taken to pay those debts, and not before. (Lindley Part., 714; Pars. Part., 421; Sto., Part., § 158; Rogers vs. Man, 4 Dowl. & Lowndes, 66; Peyton vs. Lewis, 12 B. Mon., 356:) [ b.] A surety can never call on his principal to reimburse him until actual payment of money for him. It is not enough that there has been judgment against him. (Ang. Lim., §§ 131, 132.) [ c.] If there had been no such agreement as the one sued on, the fact that judgment had been recovered against plaintiff for a partnership debt, would not have given him a right of action against defendant for the proportion of the debt, he was bound under the partnership articles to bear; such an action would not accrue to him until actual payment of the money. (Pars. Part., 287, and note.) The only change that the agreement sued on made in the status of the parties was, that defendant became obliged to pay all the partnership debts of Rowsey & Lynch, instead of one-half.

Bakewell & Farish, for Respondent.

I. We claim, 1st. That the suit was barred in five years.

2d. That, if barred in ten years, the statute of limitations is a good defense, because, in cases of contract the statute attaches as soon as the contract is broken. (2 Greenl. Ev., § 435.)

II. The breach occurred here when the bond was delivered, or at least after the lapse of a reasonable time. Beyond controversy there was a breach on the 18th of February, 1856, when judgment was obtained by Poland & Henry against plaintiff and defendant here. (Hurlst. Bonds, 7 Law Lib., pp. 41-43, s. p.; 2 Pars. Cont., 535, 661-2.)

The statute begins to run from the time of the breach of duty, and not from the time of damage accruing. The right to sue is perfect, even if the damages be not liquidated, and the statute begins to run from the time that a cause of action arises. (Howell vs. Young, 5 B. & C., 269; Battley vs. Faulkner, 3 B. & Ald., 288; Short vs. McCarthy, 3 B. & C., 626; Betts vs. Norris, 21 Me., 315; Traup vs. Smith, 20 Johns., 33; Miller vs. Adams, 16 Mass., 456; Stafford vs. Richardson, 15 Wend., 302; Bank of Utica vs. Child, 6 Cow., 238; 6 Strob., 344; Wilcox vs. Plummer, 4 Pet., 172.)

And it makes no difference what the form of the action is, provided it is substantially for breach of duty. (Howell vs. Young, 5 B. & Ald., 259; Same vs. Same, 2 C. & P., 238; Granger vs. George, 5 B. & C., 149; Battley vs. Faulkner, supra; Argall vs. Bryant, 1 Sandf., 98; Fetter vs. Beale, 1 Sack., 11; Caliar vs. Bradford, 13 Mass., 169; Wilcox vs. Ex'r of Plummer, supra; Brooks vs. Enderly, 2 Brod. & B., 70; Kern vs. Schoomaker, 4 Ohio., 331.)

The cases where the statute does not begin to run until actual damage accrues as a consequence of some previous act, are wholly where the act is not tortious or injurious in itself, and becomes so only by reason of the consequences which result sometime after. (Robert vs. Read, 16 East., 215; Gillon vs. Bedington, 1 Car. & P. 541.)

HOUGH, Judge, delivered the opinion of the court.

Prior to January 1st, 1855, the plaintiff and the defendant were co-partners, doing business under the firm name of Rowsey & Lynch. On that day one McCadden was admitted as a partner, and the style of the firm became Rowsey, Lynch & Co. Thereafter the plaintiff sold and transferred to said Lynch and McCadden all his interest in the assets of the firm of Rowsey & Lynch, and also in the firm of Rowsey, Lynch & Co., and on the 28th day of February, 1855, the parties entered into an agreement under seal, which contained, with others, the following stipulation: “Said Lynch & McCadden also agree to pay off and discharge all the liabilities of the late firm of Rowsey & Lynch, as the same appeared on the books of that firm on the 1st day of January, 1855, and of which a schedule was made at that date, on the formation of the new co-partnership of Rowsey, Lynch & Co.”

In the schedule of liabilities mentioned in the foregoing stipulation were three promissory notes made by Rowsey & Lynch, each for the sum of $1,360.79, payable respectively in two, three and four months, to the order of Poland & Henry. The date of the execution of these notes is not given, but it is evident they were dated at or before January 1st, 1855. At all events they were not paid at maturity by Lynch & McCadden, and on November 1st, 1855, Poland & Henry instituted suit thereon against Rowsey & Lynch, both of whom were personally served, and on the 22d day of February, 1856, judgment was rendered against them for the sum of $4,326.04, which judgment was, on the 21st of April, 1858, affirmed on appeal.

On the 2d day of October, 1858, execution was issued on this judgment and levied upon certain real estate belonging to the plaintiff Rowsey, which was sold on November 8th, 1862, for the sum of $2,813, which amount was on the same day credited on said judgment.

On the 10th day of November, 1870, the plaintiff instituted the present action against the defendant in the circuit court of St. Louis county, for the breach of the covenant hereinbefore recited, committed by him in failing to pay the notes of Rowsey & Lynch to Poland & Henry. It was admitted that the agreement,...