Stafford, survivor, &c. vs. Richardson, 15 Wend. 302

By the Court, Savage, Ch. J. Two principal questions arise in this case ; I. At what time did the plaintiff’s cause of action accrue ? and, 2. If it accrued mofe than six years before suit brought, was there a new promise to pay, or a sufficient recognition of an existing indebtedness from which to presume a promise ? According to the case of Beardsley v. Root, 11 Johns. R. 464, the defendant had received money for the plaintiff when he had received the harness, or money’s worth, and discharged the plaintiff’s demand against Genung.

It does not appear that the defendant had any special authority to take harness or any other property on account of the plaintiff; he acted, therefore, upon his own responsibility, and comes precisely within the case above cited. Having received the plaintiff’s money, he should either have remitted it to him, or given him notice of having received it, that the plaintiff might have called for it, or ordered it to be remitted. The defendant had actually remitted fifty dollars, as appears in the case, without waiting for orders for that purpose.

Assuming that the defendant neglected to give the information to his client, and having converted to his own use his client’s money, why should he not be subjected to an action ? It is said that in Taylor v. Bates, 5 Cow. 376, it was decided that an attorney is not liable for money collected till demand made or directions to remit; that he is not in default until he receives orders from his principal. What was there said, was correct in that case, and in all similar cases.

In that case, however, the defendant was not in default in respect to remittance ; he had informed his principal of his receipt of the money, and waited for directions to remit. It is expressly said that “ no laches are shown on the part of the defendant or unwillingness to pay.” Can that be said in this case ? Assuming, as we must from the testimony, that the defendant received the property of Genung and discharged his client’s debt, and neither gave information of the receipt of the money, nor remitted it to him for sixteen years, can it be said that there was no laches ?

And yet this must be said to bring this case within the principle of the case of Taylor v. Bates. But if an attorney may shield himself from responsibility upon the ground that no demand has been made, it does not follow that the client can excuse his laches by a principle which is intended to protect from costs an agent who has acted honestly and diligently in the business of his principal.

Although the defendant may have been guilty óf negligence in this case, which would have subjected, him to a suit, the plaintiff also has been guilty of negligence by which, in an ordinary case, he would have lost his right of action. He was informed in December, 1814, that his debt against Genung would probably be collected in the ensuing winter, and yet he makes no. enquiry about it for sixteen years. Although, therefore, an attorney may protect himself from a suit by want of a demand, he is not for that reason, to be subject all his life timé to demands however stale.

If a demand was necessary in this case, the plaintiff should have made it in season to have brought his suit within six years, after the defendant had converted the property received by him to his own use. That conversion was made, according to the testimony in the year 1815 or 1816. The plaintiff, therefore, should have brought his suit within six years from that time ; and it is no excuse for him that he had made no demand. It was his own fault that he. had not put himself in a condition to sue, and he can never take advantage of his own laches.

The next question is, whether there was a sufficient promise to revive the demand. The rule of this court, since the case of Sands v. Gelston, 15 Johnson, 511, and Bell v. Morrison, 1 Peters, 351, is, that there must be either an express promise, or a clear recognition of the present existence of the demand, from which a promise may be implied. Two conversations of the defendant are relied on ; one with Genung, the other with Campbell..

In both, he made use of the same strong expression of a determination to pay the demand, if he had received it, and had not paid it over; but, in both, he strenuously denied his liability to pay it. It is immaterial for this purpose whether he denied ever having received it; or, having received it, asserted that it was paid over. The principle is this, that a debt barred by the statute connot be revived without an admission that there is a subsisting debt which the debtor is willing to pay.

It can hardly be argued, that the defendant, in either conversation, taking it all together, admitted that he had money in his hands which belonged to the plaintiff. It is said, however, that there was a conditional promise. It was this: the defendant said, if Mr. Stafford would prove to his satisfaction that the whole of their claim was paid by Genung, he would pay it; but, at the same time he declared that he did not believe Genung. This promise amounts to nothing.

It is easy for him to say that he is not satisfied ; and it may well be more difficult to satisfy him than a third person, who had had no agency in the transaction. He surely did not intend to say, that he would pay the demand, if payment was proved by Genung. He had just been informed what Genung had said about it and declared that he did not believe him. He no doubt had more confidence in his own recollection, than in Genung’s ; and he relied upon his invariable practice to pay over to his clients what belonged to them.

I consider it entirely useless to, go into an elaborate review of the numerous cases cited upon the argument. I am quite confident, not one of them will be found to conflict with the principles upon which I have put this case. The idea of a trust is not applicable to a case like this; it is the simple case of an agent receiving the money of his principal which the principal neglected to call for, until the agent is protected by the statute of limitations. No subsequent available promise having been made, the defendant is not legally liable. ■ Motion to set aside report of referees denied.