Moore v. . Garner

Smith, C. J., (after stating the case.) There seems to have been no separate issue as to the statutory bar, and as the only exception taken to the charge of the Judge is directed to his instructions on that part of the defence, we must understand it to have been allowed under the broad and comprehensive terms of the issue that was submitted and answered by the jury- There can be no question of the correctness of the proposition which places on a plaintiff, when the lapse of time is relied on as a bar to the suit, the burden of showing that it was begun within the limits of the statute. The former system of pleading required á replication, averring that the action was begun in time. The force of the objection lies -to so much of the direction given to the jury as requires the plaintiff to “show that the demand was made before bringing this action,” of which no evidencehad been offered— an instruction unavoidably leading to an adverse verdict. The rule in this State, though disowned in many others, undoubtedly is that a demand must be made of a collecting agent, whose duty it is to pay over moneys received to his principal, when he has such, before he becomes amenable to an action; and this has been held, in the case of constables, in Potter v. Sturges, 1 Dev., 79; White v. Miller, 3 D. &. B., 55; Willis v. Sugg, 3 Ired., 96, and Kivett v. Massey, 63 N. C., 240, and in the case of other agencies for collections, in Waring *378 v. Richardson, 11 Ired., 77; Hyman v. Gray, 4 Jones, 155; Patterson v. Lilly, 90 N. C., 82, and Bryant v. Peebles, 92 N. C., 176. But the rule is not absolue and without qualification, but rests primarily upon the supposition that the agent has the fund, and is not in default until an opportunity is afforded, upon the demand of his principal, to pay it over to him. If he has misused the money, that act itself is a breach of the obligation, and exposes the agent to an immediate suit, and in this case no precedent demand is necessary, but only evidence of the misapplication. Waring v. Richardson, supra, and other cases. In Bryant v. Peebles, already cited, as to the necessity of a demand before action, the Court say, “ that such demand must be made of a collecting agent who has the money, until which the action will not lie, nor will the statute of limitations begin to run.” In Waddell v. Swann, 91 N. C., 108, Merrimon, J., uses this language in the opinion : “ Ordinarily, under the contract of agency the agent is entitled to be notified by his principal to deliver to him the money or other thing in his hands, as the agent, the object being to give him an opportunity to 'do so without action. This notice or demand implies, and is given upon the supposition, that the agent recognizes the relation between himself and his principal, and that he will freely do his duty as required. But if he denies the agency, what purpose could a demand serve ? It would be useless and nugato^n” 'The same doctrine is repeated in passing upon the 2d exception in Wiley v. Logan, 95 N. C., 358. If the contract created an agency to collect and convert the rockaway into money (and such was the view of defendant’s counsel), in order to render necessary a demand before suit, it did not, as the plaintiff contends, stop there, but the intestate was to discharge the judgments by thus using the money,. *379 and some evidence of this is derived from the conversation had between the parties to the action since the death of Robert Garner. If this application of the moneys received was to be made, and was not made — for the judgments were-not satisfied, but are being enforced as still subsisting debts— the action would lie. This aspect of the case seems to have been ignored in the charge, and the case submitted to the jury as one of a mere collecting agency. If the funds were to be used in paying the judgments, as they belonged to the intestate the appropriation would be ipso facto made as ruled in Ruffin v. Harrison, 81 N. C., 208, affirmed on the re-hearing in 86 N. C., 190, and satisfaction should have been entered. The intestate did not thus apply them, and his administrator denies any obligation to do so, and is pressing payment. There is error in the Judge's assuming the agency to be one where the demand is necessary, and that it was indispensable to the maintenance of the suit, instead of leaving the jury to determine the kind and character of the intestate’s undertaking. There is error, and the judgment must be reversed. Error.