West v. Russell

Thornton, J. The demurrer in this case was properly sustained. The contract on which the action is based was entered into in February, 1852. This suit was commenced on the 1st of May, 1886. [546] The intention of the contract was that the intestate of the defendant (one William McCain) should go from Pennsylvania (where the contract was made) to the gold mines in California, engage in business there, either of mining or some other employment, remain there eighteen months, or a- longer period, as should be arranged by letter or otherwise, and at the end of such period, and on his (McCain’s) return to Pennsylvania, to give McFarlane, plaintiff’s intestate, one half of what he might up to that time have made; and if McCain did not return, or died, McFarlane was to be entitled to one half, the same as if he returned. McCain came to California in 1852, but it does not appear by averment that he ever went to the mines at all; accumulated property, both real and personal, which he had at the time of his death, which occurred in Sacramento in February, 1885. We think it would be giving an unjustifiable construction to the agreement to hold that McCain, who broke his agreement, and never did go to the mines, or engage in business, in the mining regions, should be held to account to McFarlane for whatever he might make by his labor or industry, exerted elsewhere in California than in the mining regions. Further, we are of opinion, it not appearing that the period of eighteen months was ever prolonged by agreement, within a reasonable time after the lapse of the period of eighteen months from his arrival in California, McFarlane had a right to call on him for an account, and not having done so, his right to proceed against McCain, under the agreement, has been long since barred by lapse of time. Let it be conceded that McFarlane had a right, at any time during the years 1855 or 1856, to call on McCain to account. This would have given the former a reasonable time to demand an account of the latter, and upon refusal, to bring his action. The statute would [547] then have commenced to run on the 1st of January, 1857. McFarlane could not be allowed to extend the day on which the statute of limitations began to operate by his failure to call for an account. The statute thus commencing to run on the 1st of January, 1857, the period of four years (Code Civ. Proc., sec. 343), which barred the relief asked, had elapsed several times before the commencement of the action. The judgment should be affirmed. So ordered. Paterson, J., and Sharpstein, J., concurred. Searls, C. J., and Temple, J., concurred in the judgment.