McMillan v. Reaume

Grant, J.

(after stating the facts). 1. The princi *3 pal and most important question arises upon the statute of limitations. That portion of the statute applicable to the case is as follows:

‘ ‘ If, in any action duly commenced within the time limited in this chapter and allowed therefor, * * * the writ be abated, or the action otherwise avoided or defeated, * * * for any matter of form, or if, after a verdict for the plaintiff, the judgment shall be arrested, or * * * shall be reversed on a writ of error, the plaintiff may commence a new action for the same cause at any time within one year after the abatement or other determination of the original suit, or after the reversal of the. judgment therein.” 3 Comp. Laws, § 9738.

The only suit determined within one year prior to the commencement of this suit was that upon the common counts, which was determined in May, 1897, and this suit was commenced in April, 1898, — within one year after the final determination of the former suit. This suit was not •a determination upon the merits. The merits were not entered upon. The plaintiff and her counsel believed that they could try the merits of the controversy in an action of assumpsit, instead of tort. No testimony was taken. After the opening statement, the court held that the plaintiff’s suit was planted upon a mistaken view of the law; in other words, plaintiff had mistaken her form of remedy.

We think the statute clearly covers such a case. Our ■statute of limitations was borrowed from that of Massachusetts. It was said by the supreme court of that State, speaking through Chief Justice Shaw:

“This is a remedial statute, both in its enacting and qualifying clauses, and should have such construction as will best carry into effect the intent of the legislature; * * * and the presumption [of payment] does not arise if the creditor resorts to legal diligence to recover his debt within the time limited. ”

That court therefore held that, where the first letters of administration were held to be a nullity, and a second suit was commenced within one year after that decision, and *4 more than six years after the debt accrued, the new suit could be maintained. Coffin v. Cottle, 16 Pick. 383 , 385.

It is not an infrequent occurrence for attorneys to make a mistake in the form of the remedy. Where they have acted in good faith, the- statute should be held to apply. So, where an action upon, contract was defeated on demurrer to a declaration in a suit at law, a bill in equity was held maintainable under this statute. Taft v. Stow, 167 Mass. 363 ( 45 N. E. 752 ); Phelps v. Wood, 9 Vt. 399 ; Spear v. Newell, 13 Vt. 288 .

2. Without entering into details, we think there was sufficient evidence to justify the submission of the question of fraud to the jury. If there was any substantial conflict of evidence, it belonged to the jury; and we think there was.

3. The court instructed the jury that, if they should find for the plaintiff, the measure of damages would be the difference between what the property sold for and. what her interest really was; i. e., the difference between what she actually received and what her interest was worth. It is contended that plaintiff knew that her share was worth much more than she received for it, and that, therefore, the true measure of damages would be the difference between what her interest was worth and what she was led to believe it to be worth. While there is evidence that plaintiff knew that, aside from debts, the value of the widow’s dower, ■ and expense of litigation, the value of the estate was more than $4,500, yet her claim is based upon the theory that these defendants induced her to believe that $4,500 was all her interest was in fact worth. Furthermore, counsel for the defendants preferred no request for instruction upon this point. The rule laid down by the court is the usual measure of damages. If the defendants contended that there was anything in the peculiar circumstances of this case to bring it without the general rule, it was their duty to call the attention of the court to the matter. We think the instruction correct.

The judgment is affirmed.

The other Justices concurred.