Deming v. Haney

Wright, J. limitation, veuaor and ’ vendee. The theory of the court below, without doubt, was, that defendant was liable for a breach of his undertaking, from and after the 1st of November, 1866, and that the plaintiff’s right of action was complete. By allowing six per cent on the amount paid from that time to date of judgment, and adding a small tax bill, provided for in the bond, we have just about th¿ amount of the judgment. So that plaintiff received the consideration money paid, with interest from the time uf the breach. And that he t o) was entitled to at least this much, is not denied, and could not well be, provided his claim is not barred, in whole or in part, by the statute of limitations. We cannot agree with appellant’s counsel, that this is an action for money had and received. On the contrary, we understand that the pleader states the facts, sets out the written agreement, a compliance with its terms on his part, the breach on defendants, and then claims so much as damages. It is true that he limits his claim to the consideration paid, and some small sums for improvements. The latter were not allowed. And the fact that he did not claim and did not recover more or other damages, should not be allowed to bar his action, if in fact it was commenced in time. Actions founded on unwritten contracts must, under [80] the statute, be brought within five years, and those founded on written contracts, within ten years, after their causes accrue, and not afterward. Kev. § 2740. This was founded upon the written contract, as we understand it, and was commenced within ten years from the time of the last payment, and, of course, within the same time after the demand for a deed and the refusal. On the latter date the contract was broken-; then the statute attached, for the plaintiff could have commenced this action. Defendant’s undertaking was to make a deed, not, it is true, upon demand, and yet, without a demand, plaintiff could not have treated the contract as violated and recovered damages for the breach. This being his contract, it is not as though he had given a note for money payable on demand (in which case the statute would run from the date of the note), but rather a case where there was no liability until demand, on which the statute would run, not from the time of the promise, but of demand. In other words, the ten years is to be counted from ¿he time when plaintiff could have commenced his action; and, as this was less than the statutory period, it was not barred. 3 Parsons on Contracts, 90; Little v. Blunt, 9 Pick. 490; 2 Greenl. Ev. § 435; Picquet v. Curtis, 1 Sumner, 478; Sweet v. Irish, 36 Barb. 467; Eames v. Savage, 14 Mass. 425; Odlin v. Greenleaf, 3 N. H. 270; 2 Penn. 446. And as he recovers for defendant’s breach of his bond, it makes no difference that nothing wa.s said therein about the third note. He undertook to convéy, failed to do so, and, though nothing had been said about notes or payments, plaintiff, for such failure, was at least entitled to the sum by him paid, with interest. The recovery is for the breach of the written agreement, and not as though plaintiff was suing for money had and received. • Affirmed.