Cunningham v. Fiske

OPINION OF THE COURT. ABBOTT, J. 1 This is an action in which the plaintiffs in error seek to recover from the defendant in error a portion of a reward which he, with others, offered through a published notice “for the discovery of all or any one of the parties concerned in the murder of Francisco Chaves, in the city of Santa Fe, on the night of May 89th, 1892” The offer was made over the names of those who joined in it, and was of the sums set against their respective names. The complaint alleged that the plaintiffs, on June 1, 1893, “discovered” certain persons, “one or all of them to have been the murderers of the said Francisco Chaves;” that on May 89, 1895, those persons were tried and convicted of said murder and were duly executed April 8, 1897. May 88, 1898, the suit in question was begun. About five years later, and about a year after the answer had been filed, which with other defences, set up the statute of limitations, the plaintiffs asked leave to so amend their complaint that it should in effect allege the discovery on or about June 1, 1893, of “evidence which led them to believe” certain persons were the murderers of said Chavez, and that said persons were on May 89, 1895, determined by verdict and judgment of court to have been such murderers. The court below refused to permit amendment as requested, and that refusal is claimed b}r the plaintiffs to have been an abuse of the discretionary power over amendments, which it is not denied the court had at that stage of the case. 2 We are unable to perceive how the refusal to allow an amendment offered at so late a day, at such a stage of the proceedings, and for the purpose stated in the motion to amend, was an abuse of discretion. Obviously,' it was intended by the proposed amendment to leave it open to the plaintiffs to claim that they “discovered” the murderers of Chaves only when they were convicted, May 88, 1895, and thus carry forward the accruing of their cause of action to a time within four years of the date when they brought suit. But the offer of the reward was not for the discovery of evidence or information which should lead to the conviction of the murderers, but for the discovery of the murderers themselves. ' The use of such language may have been inadvertant, or it may well have been that those who offered the reward did not wish to impose a condition so difficult of performance, as conviction often is. The language of the offer would justify the inference that they were willing upon the “discovery” of the murderers of the sheriff of the county, to assume the burden of securing their punishment in some way. At all events, a conviction was not, we think, essential to acceptance of and compliance with the terms of their offer. That the plaintiffs had “discovered” the murderers might have been proved without evidence of a conviction, and even against evidence of a failure to convict, since that might result from, causes entirely independent of the fact that the actual murderers were discovered and tried. The cause of action therefore accrued when the murderers were discovered, and that time, the complaint alleges was June 1, 1893. 3 The plaintiffs further allege that the offer of the reward and its acceptance by their action, made it a contract in writing, so that they had the right t'o bring-suit at any time within six years from the time when the cause of action accrued. That proposition, we think, is not sustained by the authorities and is not sound in principle. The plaintiffs, cite in support of it, Ryer v. Stockwell, 14 Cal. 134, which does adopt that view, basing its decision however, on cases which do not sustain it but only hold that the acceptance of such an offer by performance according to its terms, creates a valid contract, which unquestionably is the ease. The opposite, and, as we hold, the true’view of the law is well expressed by Worden, J., in Board of Commissioners of Marion County v. Shipley, 77 Ind., 553: “A contract cannot be said to be in writing * * * so as to run twenty years, unless the parties thereto, as well as its entire terms and stipulations, can be gathered'from the instrument itself or from some other written instrument referred to therein, without the aid of parol evidence to ascertain either. If parol evidence has to be resorted to in order to ascertain the parties to a contract or its terms, the reason for extending the period of limitation for twenty years fails; and though the contract be partly in writing, yet, as it rests partly in parol, the six-year period of limitations'applies, as well as if the contract had rested entirely in parol.” That case, which explicitly overruled a former decision of the same court, has since been followed in that state in several cases which are referred to in Hachelman v. Board of Co. Commissioners &c., 94 Ind. p. —. See also Sulbert v. Atherton, 59 Iowa, p. 91; Loving v. City of Boston, 48 Mass. p. 412. Judgment of the district court affirmed. William J. Mills, C. J., Frank W. Parker, A. J., Edward A. Mann, A. J., concur. McFie, A. J., having decided this case and Pope, A. J., having been of counsel, took no part in this decision.