Spaulding v. Farwell

• Decision Date: 05 June 1879
• Citation: 70 Me. 17
• Parties: HENRY SPAULDING & another, administrators, in equity, v. NATHAN A. FARWELL & others.
• Court: Maine Supreme Court

70 Me. 17

HENRY SPAULDING & another, administrators, in equity, v. NATHAN A. FARWELL & others.

Supreme Judicial Court of Maine.

June 5, 1879

BILL IN EQUITY, heard on bill, answer and proofs.

The bill is dated May 15, 1869, and was brought by William McLoon, of Rockland, in the county of Knox, merchant, now deceased, and is prosecuted by the plaintiffs as his legal representatives.The facts are recited in the opinion.

A P. Gould, for the plaintiffs.

Peter Thacher, for defendants(Farwell and Cobb), contended that inasmuch as the statute of limitations has been specifically pleaded, by incorporation of such plea in the answer under the rules of court, it is a bar to plaintiffs' recovery; and cited 2 Greenl. Ev., (4 ed.) § 34.Farnum v. Brooks,9 Pick. 242.Johnson v. Ames,11 Pick. 181.Dodge v. Essex Ins. Co.,12 Gray 71.Story Eq Juris.(4 ed.) § 751.

Courts of equity never interfere to grant either relief or discovery after an unreasonable lapse of time, such as this case presents.Story Eq. Plead. (4 ed.) § 756, a.Reed v. Wilkinson,2 Wash.(C. C.) 93.Clementson v. Williams,8 Cranch. 72.Bell v. Morrison,1 Pet. 351.Jones v. Moore,5 Binn. 580.Bangs v. Hall,2 Pick. 368.Gardner v. Tudor,8 Pick. 206.Bailey v. Crane,21 Pick. 323.Phelps v. Stewart,12 Vt. 263.

In the view taken by the court, other citations in the very elaborate brief of the defendants' counsel are deemed unnecessary.

LIBBEY J.

The complainant in his bill alleges that he and the defendants were owners in common of the ship Amelia from the first day of May, 1862, to the first day of June, 1863, when she was sold by the owners; that the portion owned by each was as follows: the complainant, Farwell and Cobb owned one-eighth each, Timothy Williams and Austin Williams one-fourth each, and Titcomb and Sumner one-sixteenth each; that during all that time, and for a long time previous thereto, sad Farwell was duly appointed and constituted agent for the ship and acted as ship's husband; that between said first day of May, 1862, and the first day of June, 1863, the ship earned large sums of money, which came into the hands of said Farwell as agent as aforesaid, but he is unable to state how much, as no account thereof has been rendered to him by said Farwell, though he has been informed portions thereof were divided among the other part owners of the ship, but in what proportions and in what sums he is unable to state.

And he further alleges that he is informed and believes that there is a large sum due from said Cobb to said owners, and especially to him, for the freight upon, or the proceeds of, a cargo of lime which was shipped from Rockland to New Orleans on board said ship, during said period.

The prayer of the bill is that the defendants may be required to account with the complainant, and pay over to him his share of the net earnings of the ship.

The bill was commenced May 15, 1869.

The defendant Farwell, in his answer, admits the ownership of the ship, and that he was agent thereof and acted as ship's husband as alleged in the bill; and alleges that as such agent he accounted with the complainant and the other owners for the earnings of said ship received by him, May 13, 1860, and paid over to the complainant his just proportion thereof; that he made the disbursements and received the earnings of the ship in his said capacity from that time to May 9, 1862, when the accounts were adjusted, and a balance was found due the owners of $2,579.33, the complainant's share thereof being $322.39, as appears by an account annexed marked A; that he continued to make the disbursements and received the earnings of the ship in his said capacity till November 4, 1862, when the accounts were again adjusted, and there was found due the owners the further sum of $4,968.60, the complainant's share thereof being $621.07, as appears by the account annexed marked B; that on said May 9, 1862, and November 4, 1862, he accounted with all the owners except the complainant for the sums then found due, and paid to each his proportional share thereof.He admits that he did not pay over to the complainant his share of said sums, and has not paid him such share or any part thereof; and he alleges that on said May 9 and November 4he did expressly decline and refuse to pay to the complainant the sums aforesaid which became due to him on those days.He further alleges that all the earnings of said ship which came into his hands from November 4, 1862, to June 1, 1863, were accounted for and divided among the owners, and that he paid to the complainant his just proportion thereof.

In bar of the complainant's right to an account he sets up the statute of limitations.

The defendant Cobb, in his answer, admits the ownership of the ship as stated in the bill, and admits that in July, 1862, certain funds belonging to the assignees of the cargo of lime shipped in said vessel to New Orleans came into his hands; and on or about September 1, 1862, he appropriated $1,200 thereof as the net profit of said cargo, belonging to the ship, and divided the same among the owners, and in the fall of that year paid over to some of the owners their share thereof; that the complainant's share was $150, which he did not pay and has not paid over to him.He alleges that, since the bill was brought, the complainant informed him that he did not claim to recover anything of him in this suit; that he had no claim against him, and that the only reason why he was made a defendant was because it was necessary as he was a part owner.He does not allege that he had ever informed the complainant that he had received said sum, or had any money in his hands belonging to him.He also sets up the statute of limitations as a bar to the complainant's right to an account.

No question arises as to the other defendants.

The contention between the parties is whether the suit is barred by limitation, or the complainant has lost his right to maintain it by reason of his laches.

It is claimed by the learned counsel for the defendants that this suit in equity is analogous to an action of account at law between co-tenants, which, it is said,...