Voss v. Bachop

By the Court, Kingman, C. J. This suit was commenced on the 24th day of August, 1868. It appears from the petition that on the 6th day of August, 1864, the defendant below was a practicing attorney in Ford county, in the state of Illinois; and that at that date the plaintiff below placed in his hands for collection certain claims, and that on the 18th day of November, 1864, the same were collected by the said attorney, amounting to the sum of $1,572.00; that the plaintiff resided in Alleghany City, Pennsylvania, and that the communications between the parties were by letter; that the defendant falsely and fraudulently represented that the money had not been collected, and continued to so represent after he came to Kansas in 1865; that the plaintiff’ never discovered that the money had [67] •been collected until tbe 18th day of November, 1866; and that from the first date up to this last, the relation of attorney and client continued to exist between the plaintiff and defendant. The defendant demurred, thereby raising the question of the applicability of the statute of limitations. The demurrer was overruled, and this ruling it is deemed is erroneous. Practice : Demuner. The facts stated in the petition which we substantially set forth above, must on the demurrer be taken as true, and the only question is whether the statute of limitations operates as a bar in such a case. Limitation of Actons. And this question will be determined by ascertaining when the. right of action accrued, for at that time the statute began to run. Attorney and cnent. • The current of authorities seem to aeree with ' ° much uniformity that an attorney is not liable to an action for money collected without a previous demand, or without the existence of such facts as amount to a waiver of a demand. See Taylor v. Bates, 5 Cowen, 376; 6 Cowen, 596; 3 Barb., 584; 5 Hill, 399; 4 Ala., 494; 2 Pike, 402; 4 Greenleaf and note, 532. Limitations: Exceptions, In McDowell v. Potter [8 Barr, 1891 it was held that the statute of limitations against a claim on an attorney for money collected began to run from the time the client had knowledge or the means of knowledge that the money had been collected, and that the burden, of proving such knowledge was on the attorney. The court say further, “ an attorney stands in a fiduciary character, and before he can be permitted to avail, himself of this defense, he must prove that he has performed his duty,” and that dúty >vas to give his client notice of the fact that he had collected the money. [68] While the case Stafford v. Richardson [15 Wendell, 805] seems to hold a contrary doctrine, though it is not broad enough to uphold the demurrer in this case. If it be conceded, as we think it must, both on reason and on the authorities, that ho action can be maintained against an attorney till after a demand made, or acts that are equivalent to a waiver of demand, it follows that he cannot be protected by the statute till such demand.. See the opinion of the court in Lillie v. Hoyt, 5 Hill, 398. We are therefore of opinion that no right of action accrued in this case until within two years of the bringing of the suit. It is to be observed, to the credit of the profession, that our researches show but very few cases in the courts where the liability of attorneys for money collected have passed under review, and those under circumstances appealing strongly to the equity of the court in favor of the attorney, and to some extent, perhaps, modifying the ruling of the court, as in the case of Stafford v. Richardson, supra. Cause of Action : Demand. We think we may safely draw from the gen-o o ^ <_> eral eurrent 0f authorities these deductions : That it is the duty of the attorney, when he has collected money, to notify his client of the fact, and that no action lies against him for money collected by him for his client until a demand has been made, or acts amounting to a waiver have been done by the attorney, and that in the Evidence: Presumptions. absence of proof the law will presume both notice and demand made in proper and reasonable time, and that the statute of limitations will begin to run from the lapse of a reasonable time after the money has been collected in such cases, upon the presumption that the demand has been made. Thus it will [69] be seen that the law makes ample provision for the protection of the client and the safety of the attorney. Fraudui.ext concealment, But in the case before ns the presumptions of x notice and demand are overthrown by the facts in the case. The plaintiff in error, by the statements of the petition, should be estopped by his own acts from setting up the statute. It was his own misrepresentations that prevented a demand, his own bad faith to one who had reposed confidence in him, that delayed the assertion of the claim. In the case of Cutting v. Way [20 N. H., 190] the chief justice well observes: “The principle of natural justice and of positive law that precludes a party from deriving a benefit from his own ■wrong, has from an early period been applied by courts, both of law and equity, to the construction of the statutes of limitations. It has accordingly been repeatedly held that a party shall not be protected -by the lapse of time during which he has, by his own fraud, prevented the party whom he has injured from asserting his rights at law, and that he against whom the statute bar is interposed may avoid it by showing that he has been kept in ignorance of his claim till within the period limited by law for bringing his suit by the fraudulent practices of the party setting up the defense.” With these views it will be unnecessary to examine the other points raised in the briefs, although we are not at all convinced that a like conclusion would not be reached by resting the case upon the last clause of section 22 of the code. The decision must be affirmed. All the justices concurring.