McCoon v. Galbraith

The opinion of the court was delivered, by Lowrie, J. We think that this action ought to be treated as commenced to November Term, 1852, for that is the agreement of the parties. Within six years before (27th February, 1847), Galbraith had written to the plaintiffs, expressing his ignorance of the state of the case, informing them that collaterals had been placed in the defendant’s hands, but not saying that any payment had been made to them, and promising to ascertain and inform them farther. In July he wrote again that he was still without information, and promising to obtain and communicate it. Long before that his partner had collected the most of the claim, and Galbraith is in law chargeable with a knowledge of this, and therefore he must be treated as not revealing it when called upon, but promising to do so, and not until then, at least, could the statute of limitations begin to run. We are not very sure that Graham is a party appearing to this suit; but however this may be, the letters of Galbraith are evidence against his late firm, if he had power to act for both in settling up the business, and the statute had not already run when they were written. He seems to have thought that he had such power. Besides this, the balance of the claim collected and paid over by Galbraith, in 1848, shows that the matter in which he and his partner were employed, was not terminated until then; for the dissolution of their partnership did not dissolve their relation to their client. The plaintiffs could look to them both for the duty confided to them both. For partial collections made and communicated to their clients, perhaps the statute would run from the time of the notice. But without this, the statute would not run until the case was terminated by complete success or failure, or until the termination of the relation of attorney and client in the given case: 4 Watts 334. Judgment reversed and a new trial awarded.