The State ex rel. Patterson v. Tittmann
| Citation | 35 S.W. 579,134 Mo. 162 |
| Parties | The State ex rel. Patterson v. Tittmann, Administrator, et al.; Lucas, Appellant |
| Decision Date | 05 May 1896 |
| Court | United States State Supreme Court of Missouri |
Appeal from St. Louis City Circuit Court. -- Hon. Jacob Klein Judge.
Affirmed.
Transferred from St. Louis Court of Appeals.
Lee & Ellis and Montague Lyon for appellant.
(1) The plea of the statute of limitations, contained in the appellant's amended answer, should have been sustained. Revised Statutes, 1889, secs. 183, 5329; Johnson v Smith's Adm'r, 27 Mo. 591; Coleman v Willi, 46 Mo. 236; State ex rel. v. Hoshaw, 86 Mo. 193; Bent v. Priest, 86 Mo. 475; State v. Blake, 2 Ohio St. 147; Bridges v. Blake, 106 Ind. 332; Auchaumpaugh v. Schmidt, 70 Iowa 642; Ratcliff v. Leunig, 30 Ind. 289; Bonham v. People, 102 Ill. 434; Glass v. Woolf's Adm'r, 82 Ala. 281; Mann v. Everts, 64 Wis. 372. (2) The court erred in giving the instruction asked by the respondent, for the reason that the appellant's liability could only be determined by the strict terms of his obligation, and he was not liable for the expenses and counsel fees incurred by the respondent relator in the prosecution of the suit in equity. 1 Brandt on Suretyship and Guaranty [2 Ed.], sec. 93, p. 134; Haeussler v. Bank, 23 Mo.App. 282; Mann v. Everts, 64 Wis. 372; State v. Cutting, 2 Ohio St. 1; Kennison v. Taylor, 18 N.H. 220; State to use v. Bishop, 24 Md. 310; Bank v. Downer, 27 Vt. 539; Henry v. Davis, 123 Mass. 345; Hallock v. Belcher, 42 Barb. 199; Oelrichs v. Spain, 15 Wall. 211; Douglass v. Ferriss, 138 N.Y. 192; Clark v. Montgomery, 23 Barb. (N. Y.) 464.
Orr, Christie & Bruce for respondent.
(1) The plea of the statute of limitations is without merit. If there be a breach of a bond or of covenants in a deed of warranty, the cause of action on account thereof does not accrue until there exists the right of substantial recovery. Miller v. Woodward, 8 Mo. 169; Finney v. State to use, 9 Mo. 227; Chambers v. Smith, 23 Mo. 174; Burton v. Rutherford, 49 Mo. 255; Singleton v. Townsend, 45 Mo. 379; Jameson v. Jameson, 72 Mo. 640; Tenny v. Lasly, 80 Mo. 664. (2) The instruction given is a correct statement of the law as applied to the facts established at the trial. In law it was appellant's duty to protect the relator against loss or damage arising directly from the unfaithfulness of Horner as his curator. Since the relator was bound to institute a suit for the defense of his title, which suit was rendered necessary by reason of his curator's unfaithfulness, the appellant, having been notified of the suit, and having approved of it, is liable for the costs incurred therein, including counsel fees. Strong v. Ins. Co., 62 Mo. 299; Ins. Co. v. Ins. Co., 1 Sto. 458; Hastee v. DePeyster, 3 Haines, 190; Robins v. Chicago, 4 Wall. 657; Co. v. Hayden, 117 Mass. 433; Sedgwick, Meas. Dam. [8 Ed.], sec. 236; Mors LeBlanch v. Wilson, L. R. 8 C. P. 227; Dubois v. Hermance, 56 N.Y. 673; Kip v. Brigham, 7 Johnson (N. Y.), 168; Byerson v. Chapman, 66 Me. 557; Spelman v. Terry, 74 N.Y. 451; Kansas City Hotel Co. v. Sauer, 65 Mo. 280; Robertson v. Bemon, 2 Bush (Ky.), 301; Hadsell v. Hancock, 3 Gray, 526; 1 Sutherland on Damages [2 Ed.], secs. 83, 88.
This case came into the supreme court by transfer from the St. Louis court of appeals upon a division of opinion, shown by the official report, 54 Mo.App. 490.
The action is to recover damages for breach of a curator's bond wherein the defendant appellant, Mr. Lucas, is one of the sureties. The administrator of the curator is also defendant, but as he did not appeal we shall treat the appellant as sole defendant.
Liability for the alleged breach of the bond was denied in the circuit court, and the statute of limitations was also interposed.
The actual controversy at the present time lies in a narrow compass.
The appellant became surety for the curator, in 1874, upon a bond in the sum of $ 50,000, conditioned for the faithful discharge of duty by the curator, according to law.
The relator in this action was the minor to whose use the bond was given. The bond was duly approved in the probate court, and the curator installed.
A considerable property came into the curator's charge. Among the assets was a note secured by a deed of trust upon real estate in St. Louis. In 1881 it became necessary to buy this real estate at a sale under the deed of trust, to protect the interests of the ward's estate. The curator took the title in his own name at that sale. Shortly afterwards he borrowed $ 2,500 upon it, conveying his ostensible title to secure his own note for that sum.
In 1882 the curator made a quit-claim deed to transfer the land to his ward.
In 1885 the ward reached full age. In 1886 the curator died, without a final settlement. His administrator published in 1886 the statutory notice for the presentment of claims against his estate.
In April, 1887, the ward first learned of the condition of the title, as above described, and that the holder of the individual note of the curator intended to proceed to enforce the deed of trust for non-payment of the note which it secured.
Meanwhile there had been a final settlement of the ward's estate by the curator's administrator, and a judgment of discharge therein in January, 1887.
In September, 1887, the relator began a suit against the holder of the note so secured, the administrator of the curator and others, the nature of which suit fully appears from the report thereof in the supreme court: Patterson v. Booth (1891) 103 Mo. 402 (15 S.W. 543). Its general purpose was to set aside the incumbrance put upon the land by the curator, and to open the final settlement of the ward's estate so that there should be no bar to plaintiff's right to proper relief upon the facts.
That suit was successful, as the final report indicates. At its outset plaintiff notified the sureties on the curator's bond aforesaid of the suit, and that they would be looked to for indemnity for all damages that would result from the deed of trust sought to be set aside; and he further requested them to defend plaintiff against the claim based on that deed of trust. Accordingly, a member of the St. Louis bar, representing the surety, now appellant, conferred with plaintiff's counsel in that case, approved the course taken in bringing the suit, and participated in the later proceedings, the direction of which was largely left to the counsel for plaintiff.
That case closed with the judgment in the supreme court in February, 1891, reported 103 Mo. 402. This action was begun in May of that year.
In the prosecution of the former suit plaintiff incurred and paid the following items of expense:
It is conceded that these charges were reasonable; but defendant's liability for the same is contested.
Plaintiff in the case at bar had a verdict for $ 644.37 (including interest) in the trial court, from which the defendant, surety, duly appealed.
It is not necessary to give any fuller statement. The learned opinions delivered in the court of appeals (54 Mo.App. 490) and in the Patterson-Booth case furnish any further details of fact needed to understand the points in judgment.
Defendant relies on the short, or administration, bar applying to demands against estates of deceased persons.
The act on which relator founds this suit was done by the curator in 1882; the notice for presentation of demands against the curator's estate was published in 1886; while this suit was brought in 1891. Defendant argues that any claim against the curator is barred, and hence that all such claims against his sureties are barred.
It is true that section 184 (R. S. 1889) creates a bar to the presentation of ordinary demands against estates at the close of the periods named; but that section has been held inapplicable to causes of action which did not accrue until after the administration closed. Finney v. State to use (1845) 9 Mo. 223; Tenny's Adm'r v. Lasley's Adm'r (1883) 80 Mo. 664.
It has been considered, moreover, that while a cause of action upon a covenant accrues upon the occurrence of any breach thereof, the statute of limitation is not set in motion where such breach is merely formal, so as to prevent recovery of substantial damages subsequently resulting; but that the statute begins to run as to those damages from the time they occur. Dickson v. Desire's Adm'r (1856) 23 Mo. 151; Chambers' Adm'r v. Smith's Adm'r (1856) 23 Mo. 174.
In respect of bonds to secure the performance of duty by guardians or curators, the damages resulting from each breach of the bond constitute a distinct cause of action. R. S. 1889, secs. 889, 877, 866, 867.
The act of the curator in putting an incumbrance on the legal title would have been harmless to relator had the note for $ 2,500 thereby secured been paid by the curator, before any loss resulted to relator on account thereof.
Under the Missouri cases above noted (and others cited below, which present applications of the same principle to different facts) we hold that until the relator began to be subject to an actual loss on account of the curator's act in question, relator's right to sue for such loss should not be held to have accrued, within the meaning of any of our statutes of limitation. State ex rel. v. Finn (1889) 98...
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