Boyer v. Barrows

HENSHAW, J.

A demurrer, setting up the bar of the statute of limitations (Code Civ. Proc., sec. 339, subd. 1), was interposed to plaintiff’s amended complaint and sustained. From the judgment which followed he appeals. The complaint averred the following facts: Plaintiff and defendant, both attorneys at law, had for a client one Captain White, and agreed that they would divide equally between them the fees which they might receive for legal services rendered him. Services were rendered. In August, 1903, during the absence of the plaintiff from the state, and without his knowledge, the defendant received and accepted from White the sum of one thousand dollars in full payment for these legal services. Defendant kept and used all this money.

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Thereafter, in September, 1903, defendant wrote to plaintiff, who was still absent from the state, to the effect that he had collected nothing and that there was no prospect of his collecting anything from Captain White. On the seventeenth day of April, 1907, at San Francisco, plaintiff for the first time learned of the receipt by defendant of the one thousand dollars, and made demand upon him for one-half thereof. Defendant then and there paid plaintiff sixty dollars on account of the five hundred dollars to which plaintiff was entitled, and though frequently requested so to do defendant has failed, neglected, and refused to pay the remainder of the sum due plaintiff. Plaintiff demanded judgment against the defendant for the sum of four hundred and forty dollars with legal interest and costs. This action was commenced on April 16, 1910-—-more than two years after the date of the discovery by plaintiff of defendant’s reception of the money and deception in reference thereto. Plaintiff insists that his action is that contemplated by subdivision 4, section 338 of the Code of Civil Procedure, and that he is within the three years’ time limit therein fixed.

If plaintiff’s action is “an action for relief on the ground of fraud’’ he is right in his contention. But is it such an action? Clearly not. In tenor, terms, and effect the complaint charges upon the original liability, that original liability arising from the duty of the defendant to pay to plaintiff one-half of the moneys which he received. No relief of any kind is asked against the defendant because of his fraud. True, the effect of the fraudulent concealment from plaintiff of his right of action raised an estoppel against the defendant which would prevent him from pleading the statute of limitations against plaintiff’s action if timely brought after discovery of the fraud; or in other words during the time that plaintiff was the victim of defendant’s concealment the statute of limitations did not run against his right of action. But he asserts that he made full discovery on the seventeenth day of April, 1907. The statute of limitations then immediately began to run against his right of action. Eliminating for the moment all consideration of fraud, what statute of limitations is applicable to the case ? Clearly that declared in section 339, subdivision 1, which limits to within two years the right of action upon a contract, obligation, or liability not founded upon an instrument in writing. It matters not