Moore v. Commissioners of Greene

Ruffin, J. As established by the findings of the referee, the agreement made on the second of November, 1874, between the plaintiff and the then beard of commissioners was, that the money paid by plaintiff under protest should be refunded to him “if it should be shown that there had been a mistalce in the report of the finance committee and that the sum was not in fad due from him.” Both upon principle and authority, then, we think the statute of limitations could have no application to the case. It was evidently contemplated bj’' the parties that there was to be a re-reckoning of the plaintiff’s accounts, as the tax-collector of the county, and that the rights and duties of the parties should be determined by the result of that investigation, and until this took place, there could be no breach of the contract on the part of the commissioners, and consequently no right of action could acerue to the plaintiff. In Falls v. McKnight, 3 Dev., 421, the action was upon a receipt given by the defendant in.the cause to the plaintiff’s testator, and worded as follows: “ Received of Robert Simonton, executor of James Heart, $953.24 which I have received as heir to James Heart, and if it is too much, I am to return the balance,” and it having been ascertained by arbitration and award, within the three years next before the commencement of the action, that the defendant had been overpaid, it was held that the statute did not apply until the award was made. .So in the present case, the promise was to repay the *214 amount whenever it should be ascertained by the new reckoning that the plaintiff in fact owed nothing to the county, and when that fact was ascertained and not before, did a cause, of action arise and the statute begin to run. But because there was no statute of limitations running which could bar the plaintiff's demand, it does not in the least follow that there was no limit to his rights or necessity on him to use reasonable diligence. A party will not be allowed to step over his rights to the prejudice of another, against whom he prefers a claim, and who by his delay may be injured by the loss of evidence or other means of de-fence, and if he do so, the courts will treat his claim as stale and grant him no relief upon it. In this case, after his agreement with the commissioners, it devolved upon the plaintiff to procure the proper and necessary evidence to establish his demand, and there being no time agreed upon in which this should be done, the law implied that it was to be done within a reasonable time. What that is, cannot be determined according to any precise rule, but must depend upon the circumstances of each particular case. In the absence of any unusual cause for delay, it would seem to be reasonable to require the evidence to support the claim, in a case like the present, to be sought after and procured within the time limited for bringing an action upon an accrued right. There is the same necessity for requiring diligence in the one case as the other, and an unreasonable delay should be attended with the same consequences in both. The burning of the court house in 1876 furnishes no excuse for the plaintiff's want of diligence. For even after that, he was able to procure from the public auditor's office, proofs ample to satisfy the referee of the justness of bis claim, and with equal, or greater ease could this have been done, before the destruction of the county records. Outside of this, there appears to be nothing that affords *215 the semblance of an excuse for a failure to press his demand, extending from 1874 to 1879, and we should therefore entertain no doubt upon the question of the plaintiff’s laches, if the defendants had assumed that ground in 1879, and refused to recognize the plaintiff’s demand on the score of his unreasonable delay. But instead of this, the referee finds expressly that they based their ultimate refusal to refund the plaintiff’s money, upon the ground that his proofs were insufficient to establish his claim ; and from this we are obliged to infer, that they consented to try and did try the cause upon its merits, hearing the evidence and weighing its. effects, either in a body or through the agency of a committee ; and if so, it must be taken to be a clear waiver of the plaintiff’s antecedent laches. It would be inconsistent with fair play for the defendants, after having gone into a trial with the plaintiff as to the merits of his demand, and when the weight of the testimony was found to be against them, then to complain of the plaintiff’s want of diligence in bringing his cause to a trial. As to the act of 1874-’75, ch. 243: For the reasons given in Wharton v. Commissioners, 82 N. C., 11, we think it has no application to a claim against a county, constituted as the plaintiff’s is. The defendants and their predecessors in office had notice from the beginning of its origin, nature and amount, and of the fact that it could not mature until the accuracy or inaccuracy of their previous settlement with the plaintiff could be ascertained. Such a claim falls neither within the letter nor the spirit of the act. Our conclusion upon the whole case therefore is, there being no statute of limitations which bars the plaintiff’s action, and the defendants having waived his laches, he is entitled to judgment according to the finding of the referee for the sum of $250.00 with interest from the 2nd day of November, 1874, and for costs. Error. Judgment accordingly.