Shain v. Sresovich

Harrison, J. In 1886 J. Ivancovich & Co., plaintiff’s assignors, had a joint venture with the defendant in the importation and sale of some oranges, and on the 1st of July of that year they presented to the defendant a statement and account of the transactions relating to the venture, showing that they were indebted to him in the sum of two thousand and sixty-three dollars and fifty-one cents, and paid him that sum of money. These accounts were kept by the plaintiff’s assignors in one of their firm books, in which were also placed an account of importation of oranges by themselves on their own account. The statement of the account which was given to the defendant was prepared by the book-keeper of Ivancovich & Co., who had been in their employ for many years, and who continued to remain as their bookkeeper for several years thereafter, and who was a competent book-keeper, and entitled to full confidence for carefulness and accuracy. About the end of the year 1886 the book in which these accounts had been entered was stored away by the firm, and was not again examined until the latter part of 1890. In February, 1891, the firm made an examination of this book, and found that the account rendered to the defendant was erroneous, and that, owing to a mistake therein, they had paid him six hundred and' thirty dollars and twenty-five cents too much. Thereupon they assigned the claim to the plaintiff herein, who brought this action May 5, 1891, to recover the amount of said former payment, [405]alleging in his complaint the foregoing facts. The court below found that the cause of action was barred by the statute of limitations, and gave judgment for the defendant. The plaintiff has appealed upon the judgment-roll, without any statement or bill of exceptions.

It is contended by the appellant that he has a right to maintain the action by virtue of subdivision 4 of section 338 of the Code of Civil Procedure, which allows three years within which to bring “an action for relief on the ground of fraud or mistake. The cause of action in such case not to be deemed to have accrued until the discovery by the aggrieved party of the facts constituting the fraud .or mistake.” Fraud and mistake are by the above provisions of the statute placed in the same category, and the rules applicable to the one must govern the other. Although the provision with reference to fraud, or one similar thereto, is found in the statute of nearly if not all of the states we are not aware that a similar provision with reference to “mistake” exists in any of the states. The rule is well established that the means of knowledge is equivalent to knowledge, and that a party who has the opportunity of knowing the facts constituting the fraud of which he complains cannot be supine and inactive, and afterwards allege a want of knowledge that arose by reason of his own laches or negligence. (Wood v. Carpenter, 101 U. S. 135; Ware v. Galveston City Co., 146 U. S. 115.) The question has usually arisen in determining whether the facts alleged in the complaint are sufficient to show due diligence, or to take the case out of the statute of limitations, hut the same rule is to he applied to the facts as found after a trial.