Goodyear Metallic Rubber Co. v. Baker's Estate

Rowell, C. J.

The intestate, an attorney, brought suit for the plaintiff against the New England Insurance Co., and therein recovered and collected a judgment, but never notified the plaintiff of the collection, nor did the New England Co. notify it until after the intestate’s death. Both fraud and fraudulent intent on the part of the intestate are expressly negatived by the findings.

This is assumpsit for the money thus collected. The Statute of Limitations is pleaded. Fraudulent concealment of the collection by silence is replied. There is no rejoinder. It was stipulated below that if the plaintiff is entitled to recover on the facts found, it should have judgment for so much with interest thereon for such a time.

The cases differ as to when a client can sue his attorney for monéy collected and not paid over. All agree, however, that the attorney is not to be subjected to the annoyance and expense of a suit the moment he receives the money. Some say that a demand is necessary, or directions to remit, if the attorney is not guilty of laches, has not converted the money to his own use, and is not otherwise in fault in not paying. Taylor v. Bates, 5 Cow. 379 ; Stafford v. Richardson, 15 Wend. 305 . Others say that the statute begins to run from the time the money should have been paid over, in the absence of fraudulent *42 concealment. Douglas v. Corry, 46 Ohio St. 349 , 15 Am. St.Rep. 604. Eliminating fraudulent concealment for present purposes, we think this the better rule, and more consonant with legal principles, for it is the duty of an attorney to pay over promptly, which he impliedly agrees to do; and if he does not, it is a breach of his contract, and in assumpsit the breach is the cause of action, and the statute begins to run from the time of the breach, if there is nothing to stay it. This rule means that he is to pay 'over in a reasonable time in the circumstances of the case.

The intestate died six years and three months after the money was collected. If a reasonable time to pay it over did not elapse thirty days before his death, then, by statute, the action is not barred, if otherwise it would be.

But whether a reasonable time had then elapsed or not was a question of fact for the court, as it does not appear that but a single fact was involved in it, and not a combination of facts and circumstances. Whitcomb v. Denio, 52 Vt. 382 . But the facts certified up do not show that the court found that fact either way; and while this Court will presume in favor of the judgment that the court below inferred such facts from those certified up as it ought to have inferred, or as it fairly might have inferred, — Chamberlin v. Whitney, 65 Vt. 488 , — yet there is nothing in the record from which that court could have fairly inferred and found that a reasonable time did elapse thirty days before the death of the testator, for there is nothing in the record relevant to that question except the mere lapse of two months, without negativing the existence of other relevant facts and circumstances that might have been present, such as sickness, press of other business, necessary absence from home, and the like.

The defendant, therefore, on which rests the burden of proof, has failed to establish the statutory bar.

As to the claim presented on appeal not being the one presented to the commissioners, nothing appears of 'which we can take cognizance.

Judgment reversed, and judgment for the plaintiff for $500, with interest thereon from Nov. 13, 1896 to Dec. 19, 1904, as per stipulation, and costs in this Court and below. Let a certificate go down.