Wear v. Skinner

• Decision Date: 02 March 1877
• Citation: 46 Md. 257
• Parties: JAMES H. WEAR v. TRUMAN SKINNER.
• Court: Maryland Court of Appeals

46 Md. 257

JAMES H. WEAR v. TRUMAN SKINNER.

Court of Appeals of Maryland

March 2, 1877

APPEAL from the Superior Court of Baltimore City.

The case is sufficiently stated in the opinion of the Court.

Exception.--At the trial the plaintiff offered the three following prayers:

1. The plaintiff prays the Court to instruct the jury, that if they find from the evidence, that the plaintiff, Wear, and the defendant, Skinner, were members of the firm of Skinner Neale & Co., and that the said Wear was not an active member of said firm, but that its business was conducted by said Skinner and Irvin Neale; and if they shall further find, that while said firm was so conducting its business, the defendant, Skinner, induced the said Wear to consent that the said firm of Skinner, Neale & Co., should become bound in any way for the accommodation of said Skinner, upon a note or notes made by said Skinner, for money alleged by said Skinner, to be due from him to other persons as mentioned in evidence; and if they shall further find, that said Skinner in order to procure said endorsement of, or other use of the name of Skinner, Neale & Co. on said note or notes represented that the persons to whom said money was alleged to be due, had demanded that he, the said Skinner, should secure the payment of the same, by giving his note or notes therefor, with an endorser or surety on said note or notes and if they shall further find, that the representations by which said Skinner procured such endorsement, or other use of the name of Skinner, Neale & Co. on such note or notes were untrue, then the procurement by said Skinner, of such use of the name of Skinner, Neale & Co. on said note or notes, was a fraud upon said Wear.

2. If the jury shall find the facts stated in the plaintiff's first prayer, and shall further find that said Skinner, (after so procuring the consent of said Wear to the use of the name of Skinner, Neale & Co., on the note or notes of said Skinner, as mentioned in said first prayer, for the accommodation of said Skinner,) made use of the obligation which said Wear had contracted, by such use of the name of Skinner, Neale & Company on said note or notes, for the purpose of compelling said Wear to assign to him, the said Skinner, the interest of said Wear in the firm of Skinner, Neale & Co., by threatening said Wear, that unless he, the said Wear, would make such assignment, and accept in payment therefor, the note of Wm. G. Wear, offered in evidence, he, the said Skinner, would suffer his note or notes, on which the name of Skinner, Neale & Co. had so been procured to be used, to be protested for non-payment, so as to make said Wear liable as a member of Skinner, Neale & Co., for the payment of said note or notes. And if they shall further find that said Wear was induced to make the assignment to said Skinner, of his, the said Wear's interest in Skinner, Neale & Co., by such threat of said Skinner, and that said Wear but for such threat, and but for the fear on his part, caused by the acts and declarations of said Skinner, would not have assigned his interest in said firm of Skinner, Neale & Co. to said Skinner, and would not have accepted the note of W. G. Wear in payment for said interest, then the assignment of the interest of said Wear, in said firm of Skinner, Neale & Co., was fraudulently procured by said Skinner, and the plaintiff is entitled to recover such loss as the jury may find that he has sustained, by reason of said assignment of his said interest in the firm of Skinner, Neale & Co., provided the jury shall find the facts stated in the plaintiff's third prayer.

3. If the jury shall find the facts stated in the two preceding prayers of the plaintiff, being his first and second prayers, and shall further find that the use of the name of Skinner, Neale & Co. on the note or notes of the said Skinner, was procured by the said Skinner, in the manner set forth in the first prayer, and that the said Skinner made use of the obligation incurred by said Wear, by such use of the name of Skinner, Neale & Co. on said note or notes, in the manner set forth in the plaintiff's second prayer; and if the jury shall further find that the plaintiff, at the time he consented to allow the name of Skinner, Neale & Co., to be used in any manner as security for the payment of the note or notes of said Skinner, as set forth in the plaintiff's first prayer, believed and acted upon the representations of said Skinner, by which said Skinner procured the use of the name of Skinner, Neale & Co. on said notes, as mentioned in the plaintiff's first prayer; and if the jury shall further find, that the plaintiff was prevented by the acts of said Skinner, done for the purpose, from discovering that the said use of the name of Skinner, Neale & Co. on said note or notes of said Skinner, had been procured by said Skinner in the manner set forth in the plaintiff's first prayer, until within three years before the institution of this suit, and until within three years from the time, when the plaintiff by usual and ordinary diligence under the circumstances of the case, might have ascertained said fraud, then the Statute of Limitations is no bar to the plaintiff's recovery.

And the defendant offered the following prayer.

1. The defendant by his counsel, prays the Court to instruct the jury, that the plaintiff has offered no evidence legally sufficient to maintain his replication to the defendant's second plea, and their verdict must therefore be for the defendant.

And the defendant offered four other prayers which were afterwards withdrawn, and are consequently omitted, and also offered the following exception to the plaintiff's prayers.

The defendant excepts to all of the prayers of the plaintiff, because among other reasons, there is no evidence in the cause to sustain the same or any of them.

The Court, (DOBBIN, J.,) granted the defendant's first prayer, and refused all the prayers of the plaintiff, assigning as the reason for such refusal the granting of the defendant's first prayer, and the withdrawal of the cause from the jury by the granting of said prayer. The plaintiff excepted.

The jury rendered a verdict for the defendent, and judgment was entered accordingly. The plaintiff appealed.

The cause was argued before BARTOL, C.J., STEWART, BOWIE, GRASON, MILLER, ALVEY and ROBINSON, J.

Charles Marshall, for the appellant.

The Court below decided that although the cause of action itself arise from fraud practiced by the defendant upon the plaintiff, and that fraud be not found out by the plaintiff until within three years before the institution of the suit, yet, unless there be evidence of some other distinct fraud whereby knowledge of the right of action for fraud was concealed from the plaintiff, the replication is not supported.

It is respectfully submitted that this is not the correct rule, and that if, as in this case, the right of action arises from the fraud of the defendant, such fraud may at one and the same time, give a right to sue, and conceal that right from the party entitled to it, so as to support the replication, without any other or different act of fraudulent concealment by the defendant.

This would seem to be right if we regard the reason of the common law rule in those Courts that permitted such a replication at law, as well as the reason of our Statute.

A right of action for fraud, pre-supposes a successful fraud, and a successful fraud assumes that it is concealed from the victim of it, not merely unknown to him.

A man cannot defraud another without concealment or deception of some kind. It may be said of fraud as of art; " fraus est et celare fraudem."

The reason of the rule of law and of the Statute is, that it would be most unjust and subversive of good morals, to permit a man to defend himself on the ground that he had not been sued in time, when he had, by his own fraud, prevented his victim from knowing that he was liable to be sued.

If then the cause of action itself be for fraud, and no such cause of action could arise except by the success of the defendant in deceiving the plaintiff, and there can be no successful deception without concealment, it is difficult to see why a new and additional act of fraud to continue the concealment should be required to sustain the replication. Bailey vs. Glover, 21 Wallace, 342; Massachusetts Turnpike Co. vs. Field, 3 Mass., 201; Homer vs. Fish, 1 Pickering, 435; Welles vs. Fish, 3 Pick., 74; Sherwood vs. Sutton, 5 Mason, 143; Booth vs. Lord Warrington, 4 Brown's Parliamentary Cases, 163; South Sea Company vs. Wymondsell, 3 Peere Williams, 143; Hovenden vs. Lord Annesley, 2 Sch. & Lef., 634; Stearns vs. Page, 7 Howard, 819; Moore vs. Greene, 19 Howard, 69; Snodgrass vs. Bank, &c., 25 Ala., 161; Gregg vs. Sayre's Lessee, 11 Curtis, 82; Moss vs. Riddle & Co., 2 Curtis, 290.

S. T. Wallis, for the appellee.

The fraud allowed by the Act of 1868, to be set up in bar of limitations must be a specific, substantive fraud, apart from, and superadded to, the fraud which is the cause of action. It must be a fraud practiced after the cause of action has arisen, and for the purpose of keeping the injured party from finding out that he has such cause of action.

This is the language of the Act properly construed, and the opposite construction would be equivalent to ruling, that the Statute of Limitations does not apply to cases of fraud. Rice vs. Burt, 4 Cushing, 208; Smith vs. Bishop, 9 Vermont, 110-115; Clark vs. Hougham, 2 Barn. & Creswell, 149, (9 E. C. L., 48;) Granger vs. George, 5 Barn. & Cres., 149-152, (11 E. C. L., 185;) Stanley vs. Stanton, 36 Indiana, 449; and see Clarke's Adm'r vs. Marriott's Adm'r, 9 Gill, 338, adopting 2 Greenleaf's Evidence, 448.

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