Johnston v. McCain

Opinion, Me. Justice Geeen : We think the learned court below adopted an inadequate view of the relation between Gilpin and Johnston, and was thus misled into an erroneous application of the statute of limitations. The relation assumed a very definite shape when, in June, 1868, Johnston executed and delivered an elaborate and carefully drawn letter of attorney to Gilpin, which was undoubtedly accepted and acted upon by Gilpin for a number of years afterwards. Indeed, there is no proof that the relation thus established was terminated at the time of Gilpin’s death, in 1883. The relation of attorney and client commenced when, on the eleventh day of June, 1866, Gilpin entered up a judgment for Johnston against William F. Johnston for seven thousand dollars. On that judgment he issued execution to March term 1868, and levied, on five tracts of land in Armstrong county, all of which were sold by the sheriff to John W. Johnston at prices the aggregate of which was five thousand dollars. On the eleventh, of June, 1868, Johnston executed and delivered to Gilpin a letter of attorney, wherein, after reciting the entering of the judgment and issue of execution, and sale by the sheriff to Johnston of the said five tracts of land, and the conveyance of the tracts to him by the sheriff, the letter of attorney further recited that contracts of sale for some of the tracts had been made by the former owner, William F. Johnston, and that portions of the purchase money had been paid to him. The letter of attorney then declared that John W. Johnston ratified and confirmed the said contracts, and the payments that had been [536] made under them, and next appointed John Gilpin his attorney to enter into possession of such of the tracts as were not sold by W. F. Johnston prior to the sheriff’s sales, and to grant, bargain, and sell the same, or any part thereof, at such price and on such terms as he should think proper; and until the sales, to rent the same for such rent as he might be able to obtain, and to ask, demand, and receive all such sums of money as may be due, or may become due, upon any of the contracts made by W. F. Johnston, and also to receive any sums of money which may become due upon any sales made by Gilpin as attorney for J. W. Johnston; and to make, execute, and deliver all deeds and conveyances in the name of J. W. Johnston for lands sold by Gilpin as attorney, with full power and authority to do all acts which could be done by J. W. Johnston. The principal further directed his attorney to disburse, distribute, and pay over all moneys which from time to time he might receive from said lands, or on account of any contracts relating thereto, in manner following: “ First, to pay all taxes, costs, surveyor’s charges, officer’s costs, and all charges incurred, or which from time'to time may be incurred, in taking care of, conveying, protecting, or selling said lands, or in collecting any of the purchase money or proceeds of or from the same ; and, second, to pay over and distribute any balance remaining, or which may remain, after paying said expenses, to and among the persons, or their respective representatives, named as plaintiffs or cestuis que trust in the two causes or judgments hereinbefore mentioned, such distribution to be made among said plaintiffs or cestuis que trust or their respective representatives, pro rata and in proportion to the interest or portion or amount of said judgments owned or held by or for them, respectively.” On the trial, it was proved that Gilpin had sold at various times some of the tracts of land mentioned in the letter of attorney, and had collected sums of money which were paid to him on account of such sales; also, that he had collected other sums on account of contracts whicfi had been made by William F. Johnston, and ratified by John W. Johnston. An account was given in evidence made out by Gilpin, in his own handwriting, and entitled “ John Gilpin, in ace’t with creditors of Wm. F. Johnston;” and it contained entries beginning May 29, 1868, and ending February, 1882, the very last item [537] being, check to W. D. Patton, 25th February, 1882, 1596.90. In this account, Gilpin charged himself with items of money received from parties who had bought tracts from either W. F. Johnston, or from Gilpin as attorney of John W. Johnston. They were in various amounts, received from different persons, and at various times, between May 29, 1868, and November, 1881. He also took credit for a number of items of costs, taxes, surveyor’s charges, expenses, and commissions to himself, and also for a few sums paid to John W. Johnston, and called dividends. The first of these dividend payments was entered as having been paid to J. W. Johnston in April, 1871, and the last in February, 1882, $1,690.50. The account was never closed, but remained open on both sides at the time of Gilpin’s death. The items on neither side were footed up. This statement or account was admitted in evidence, but the court below, saying that it was not proved that Gilpin furnished it to Johnston or his attorney, and, even if it had been proved to have been delivered by Gilpin to Johnston or his attorney, it would not be sufficient to take the case out of the statute of limitations, directed the jury to find that the defendant is not liable to account to the plaintiff in this action. This ruling entirely overlooked the fact of the relation between the parties. It is beyond question that Gilpin was acting throughout as attorney at law and attorney in fact for Johnston. As attorney at law, he entered up the seven thousand dollar judgment against W. F. Johnston in favor of J. W. Johnston. Nearly two years later he issued execution upon it, and sold five tracts of land, which he bought in for his client for five thousand dollars. He then accepted a letter of attorney from his client, authorizing him to take possession of the lands, to sell them, to rent them in the meantime, to collect the rent, purchase money, and the moneys due on contracts which had been made by W. F. Johnston and ratified by J. W. Johnston; to pay all costs, charges, expenses, and taxes out of the proceeds, and finally to make distribution in a mode expressed in the letter of attorney. No distinction was made between Gilpin’s duties as attorney at law and attorney in fact, and in point of fact his duties partook of the nature of both. It is not necessary to consider the subject of any such distinction, because the rules as to the application of the statute of [538] limitations are the same in both. It is sufficient to say, so far as the admissibility of the account is concerned, that it was in Gilpin’s own handwriting, and therefore was evidence against him. The entries themselves manifestly related to the properties described in the letter of attorney, and whether they did- or not was for the jury, and not for the court. The account on its face was not closed, and it did not embrace all the properties which Gilpin was to sell. Whether he had sold them all, and had not accounted for all the proceeds, or whether he had not completed the sales, it was an open account, not settled, and in either event the questions arising were for the jury to determine, and not for the court. Being an open and unsettled account of unfinished business between an attorney in fact or at law and the principal or client, the statute did not run. In McCoon v. Galbraith, 29 Pa. 293, we held that for partial collections made by an attorney, and communicated to his client, the statute would run from the time of notice; but without notice, the statute would not begin to run until-the case was terminated, or until the termination of the relation of attorney and client in the particular case. In Campbell v. Boggs, 48 Pa. 524, Woodward J., in delivering the opinion of the court, said: “ I confess I see no adequate ground for a distinction between attorneys in fact and attorneys at law. Diligence and skill in the collection, and promptness and fidelity in the paying over moneys, is required of both. It is reasonable, therefore, that they should have the same measure of protection from the statute of limitations.....Where the professional relation involves a series of acts and duties, an attorney is not suable until the relation is dissolved.” In Foster v. Jack, 4 W. 334, Gibson, C. J., discussing the question as to when the statute commenced to run against the claim of an attorney at law for professional services against his client, said: “ When, then, shall his action accrue or the statute run? Not before demand made or ‘the professional relation be dissolved.” In Mosgrove v. Golden, 101 Pa. 605, we said: “ The statute bars the claim of an attorney as it does the claims of other persons, when his services may be measured in a similar way as the services of others. It does not begin to run against his claim for conducting a suit until the end of his service in that case, nor would it against his claim for any other special service [539] until it was finished; and if any other person be employed to do a specific thing, and a long time elapses in the doing of it, the statute does not begin to run against his claim until the work is completed.” In the case of Schoch v. Garrett, 69 Pa. 144, we held that a claim of a daughter against her father’s estate for eleven years’ services, under an express contract for compensation to continue until his death, was not barred until six years after her father’s death, on the ground that the contract was entire, and the statute would not begin to run until its completion. Upon the authority of any or all the foregoing cases, it seems quite plain that the statute would not be a bar against the plaintiff in the present action, upon the testimony as it was developed on the trial. Gilpin was both attorney at law and in fact for Johnston in the service which he undertook. By the very terms of the letter of attorney under which he acted, he was to take possession of the whole five tracts of land in question ; he was to sell them all, in such way and upon such terms as he saw fit. In the meantime, and before sale, he was to rent them, and collect the rents; he was to collect all the purchase money of all the sales, and also the balance of purchase money due under previous contracts' of sale made by W. F. Johnston. He was also to pay all costs, taxes, expenses, and charges; and, finally, he was to make distribution of the remaining proceeds to and among certain persons enumerated, and in certain proportions mentioned. By the very necessity of the case, the service would be, as it was, continuous, protracted, complicated, involving numerous items and the absolute necessity of an account, and the final act of distribution could not be performed until all the properties were sold, and all the moneys collected. That time had not arrived when John Gilpin died. His death terminated the relation, and in four years and three months from that time the present action was brought. It was within the statutory period, under all the decisions; and therefore, the court below was in error in the instruction to the jury to find for the defendant. Judgment reversed, and venire de novo awarded.