Gerry v. Dunham

Dickerson, J. Case charging the defendant with making a false disclosure, as trustee, whereby the plaintiff lost his debt against the principal debtor. R. S., c. 86, § 77. • The cause of action accrued more than six years before the commencement of this suit. The defendant relies upon the statute of limitations. R. S., c. 81, § 105. To this the plaintiff replies, that the statute does not attach, because of the defendant’s fraudulent concealment of the cause of action from him. R. S., c. 81, § 107. The case calls for a construction of this section, which is as follows : “ If any person, hable to an action, mentioned in this chapter, fraudulently conceals the cause of such action from the person entitled thereto, . . . the action may be commenced at any time within six years after the person entitled thereto discovers that he has just cause of action.” The cause of action consists in the false ansivers given by defendant in his disclosures as trustee ; and the question is, whether the defendant “ fraudulently concealed the cause of such action ” [339] from the plaintiff. If he did, it is conceded that the action is not barred by the statute of limitations ; if he did not, it is. The fraudulent concealment, if any, consisted in the perjury of the defendant, which also constituted the cause of action. In his disclosure as trustee the defendant denied that he was indebted to the principal debtor, though he then well knew that he owed him a very considerable sum. As the debtor had absconded from the State, and the defendant refused to pay him until the latter recovered judgment against him, it is apparent that the defendant committed the perjury for the fraudulent purpose of holding the debtor’s property as his own. There were, therefore, the perjury and the fraudulent purpose. Was there superadded thereto a concealment of the cause of action, that is, of the perjury ? There was no corporeal object to be concealed, but simply a mental one, a knowledge of the fact of the perjury. By his fraudulent representations concerning the relation of debtor and creditor then subsisting between him and the plaintiff’s debtor, the defendant furnished the plaintiff with a cause of action against him, and by’withholding from him all knowledge of the falsity of such representations he at the same time concealed from him the cause of action. The word “ conceal,” according to the best lexicographers, signifies to withhold, or keep secret mental facts from another’s knowledge, as well as to hide or secrete physical objects from sight or observation. Viewed in the former sense of this word, the defendant’s conduct clearly amounted to a concealment of the cause of action; ho falsified the facts in the case, and concealed the knowledge that he had done so. If there was a concealment of the cause of action, there can he no question, as we have seen, that it was fraudulent. It is not necessary that the fraudulent concealment should occur subsequently to the time the cause of action accrued. There is no such provision in the terms of the statute, nor does it admit of such construction; both may tako place at the same time. It is not the purpose of the statute to protect a man in the enjoyment of the fruits of a .fraudulent transaction, unless lie should conceal the fraud subsequently to its commission, tbougli be may liave done so at its [340] inception. A guilty party cannot thus take advantage of his own wrong. The viety we have taken of the case is sustained by the authorities cited by the plaintiff’s counsel. Cole v. McGlathey, 9 Greenl. 193; The First Massachusetts Turnpike Cor. v. Field, 3 Mass. 201; Way v. Cutting, 26 N. H. 187. Judgment for Plaintiff. Appleton, C. J.; Cutting, Barrows, Danforth, and Tapley, JJ., concurred.