White v. Century Gold Min. & Mill. Co.

• Decision Date: 10 December 1904
• Docket Number: 1572
• Citation: 28 Utah 331,78 P. 868
• Parties: JOHN T. WHITE, Respondent, v. THE CENTURY GOLD MINING & MILLING COMPANY, a Corporation, Appellant
• Court: Utah Supreme Court

78 P. 868

28 Utah 331

JOHN T. WHITE, Respondent, v. THE CENTURY GOLD MINING & MILLING COMPANY, a Corporation, Appellant

No. 1572

Supreme Court of Utah

December 10, 1904

Appeal from the Third District Court, Salt Lake County.--Hon. T. D Lewis, Judge.

Action to recover money loaned. From a judgment in favor of the plaintiff, the defendant appealed.

AFFIRMED.

C. S Price, Esq., and Messrs. Henderson, Pierce, Critchlow &amp Barrette for appellant.

The court erred in rendering judgment in favor of this plaintiff and against the defendant for the reason that if the plaintiff has any right of recovery it must be only upon an accounting with this defendant and on behalf of all persons holding such claims, in respect to the profits, if any, made by this defendant, in order that the same may be distributed ratably and in order of their advancements.

We contend that this plaintiff is not entitled to the payment of his claim in full, to the exclusion of those stockholders similarly situated, and who from plaintiff's own testimony are entitled to prorate in said fund, but that plaintiff's remedy is and was by a suit in equity against said defendant demanding an accounting on behalf of himself and all other stockholders similarly situated in order that the fund out of which the payments upon such obligations are to be made, might be prorated equitably among all the stockholders standing in like relation to this defendant. Shepherd v. Guernsey, 9 Paige 356; Deg v Deg, 2 Williams 416; 1 Pomeroy, Equity Jurisprudence, sec. 407; 1 Story on Equity Jurisprudence (13 Ed.), sec. 64, p. 67.

Applying the rule that "Equality is Equity," this action cannot be maintained, and should therefore be dismissed.

Our next contention is, that even assuming, for the sake of our argument, that plaintiff's remedy is an action at law, his claim is barred by the provisions of section 2875, and the provisions of section 2876, of the Revised Statutes of the State of Utah 1898, for the reason that it appears from the evidence and the receipts introduced in evidence show that the first advancements were made in the early part of October, 1897, and that this action was commenced on October 27, 1903, making it a period of over six years from the date of the first advancements; and that the date of the other advancements was during the year 1898, and not later than August 1st, 1898, which would make a period of five years since the date of the last advancements and the filing of the complaint.

In the case of Busby v. The Century Gold Mining Co., 27 Utah 230, 75 P. 725, this court decided that the indebtedness as evidenced by the instruments sued upon in this action was a debt absolute, and was created when the money was loaned and its payment did not depend upon the happening of a certain contingency.

In that case the lower court allowed interest from the date of the advancement, even though the contract was silent as to interest and there was no agreement to pay interest; this in itself fixed the maturity of the indebtedness at the date of the advancement, or in other words it was treated by the court, in respect to interest and maturity, as a note payable on demand. This defendant, who was defendant in that case, argued in its brief and seriously contended in that case that the lower court erred in allowing interest from the date of the advancement because, as defendant contended, the debt had not matured; and where a contract is silent as to interest, it can not be exacted until the maturity of the contract. Notwithstanding defendant's position in the Busby case, and notwithstanding the fact that the plaintiff in that case relied upon the theory of the lapse of a reasonable time, this court nevertheless allowed interest from the date of advancement instead of from the expiration of the more than two year period, and held that the debt was absolute.

The general rule is that, a note payable on demand, is due immediately, without an actual demand, and that the statute commences to run at once. O'Neil v. Magner (Cal.), 22 P. 876; Brummagim v. Tallaut, 29 Cal. 506; Cousins v. Partridge, 79 Cal. 228; Story on Promissory Notes, sec. 29; Wood on Limitations, sec. 124.

Messrs. McGurrin & Gustin for respondent.

According to the construction placed upon these loans by this court in the Busby case they were to be repaid within a reasonable time: that is, after the expiration of a reasonable time they were due and payable and until a reasonable time has elapsed, of course, no action could be maintained for their recovery.

The first loan was made October 16, 1897, the last on August 1 1898. The respondent filed his first action on October 6, 1902. Upon the trial thereof, however, the appellant claimed that at the time...