Opinion
(June Term, 1845.)
1. A mother who had money belonging to her children advanced the money to the defendant for the purpose of his purchasing negroes in North Carolina and delivering them to her in Georgia, where she resided: Held, that she could maintain this action for the money so advanced, in her own name, the defendant never having bought the negroes, and not having been advised that a part of the money belonged to her children.
2. Held, secondly, that though the plaintiff admitted he had received a part of the money by an attachment in Georgia, the defendant could not say the contract was merged in a judgment unless he produced the record of the attachment in Georgia.
3. Held, thirdly, that in such a case as this the statute of limitations did not apply until after a demand by the plaintiffs on the defendant.
4. If the act of 1815 will not bar, by the lapse of three years, where the defendant is an agent, neither will the act of 1826, because there must be a cause of action subsisting before the time under either statute can commence running.
APPEAL from COLUMBUS, Spring Term, 1845; Pearson, J.
(601) Warren Winslow for plaintiffs.
Strange for defendant.
Assumpsit, for money had and received to the use of the plaintiffs. Pleas: "Non assumpsit, and the statute of limitations." The case appeared to be this: in 1832, the plaintiff, Unicia, then the widow of one McCullough, and a resident of the State of Georgia, placed (598) in the hands of the defendant $700, that he might purchase for her two negro boys in North Carolina, where he was then going, and bring them out to her in Georgia. She told him that if the said sum of money should not be enough she would thank him to make up the balance, and she would repay him when he got back, to which he assented. The defendant came to North Carolina and never returned to Georgia. Mrs. McCollough married Buchanan in 1835. A demand was made on the defendant for $536, in the Spring of 1843; and this action was brought on 2 September, 1843. When the plaintiff, Buchanan, demanded the said sum of money, he admitted that he had received the residue of the $700, out of the effects of the defendant, by an attachment in Georgia. He said that the money belonged to his wife's two children, by a former husband, and that she had been obliged to account with them for it.
It was insisted by the defendant, on the trial (1) That the action should have been brought in the names of the two children, (2) That as the plaintiff admitted he had received a part of the claim, under an attachment in Georgia, the jury should infer that the whole simple contract debt was merged in the judgment on that attachment, (3) That the acts of limitation of 1815 and 1826 barred the plaintiff's claim. Under the charge of the judge the jury found for the plaintiffs, and the defendant appealed.
First. The charge of his Honor, as to the capacity of the mother to bring the action, we think was right. The defendant was the agent of the mother, and he received the money from her, as her money, to purchase slaves for her benefit. It does not appear, that the defendant, at that time he received the money, had any notice that the two children had any interest in it. It had no ear-mark and, therefore, he could not be held liable for it.
Second. The defendant insisted, that the jury should have inferred, as Buchanan admitted he received a part of the debt under an attachment in Georgia, that he had in fact and in law received the whole. The judge told the jury that there was no evidence from which they could make any such inference, and that the plaintiffs were entitled to a verdict for the balance not received. This, we think was right. The defendant did not produce any record of a judgment in an attachment suit in Georgia to show that the simple contract between the parties had been merged in the judgment.
Third. The defendant relied on the act of limitation. The court charged that, although the plaintiffs might, after a reasonable time, have brought an action of assumpsit against the defendant for a breach of a special undertaking on his part to purchase the said two negro boys, that did not prevent them from considering the defendant as their agent, up to the demand of the money, which took place within less than three years before the bringing of this action; that until the demand, the act of limitations did not commence running, as the possession of the agent was not adverse, but was the possession of the (602) principal; and that the cause of action was not complete until a demand. All the judge said seems to us to be correct. If the defendant had purchased the two negro boys for the plaintiffs, as he had promised, they would not have been considered his negroes; they must in law have been held by him as the bailee of the plaintiffs, and, therefore, the act of limitations would not have run against the plaintiffs. So we think that the money with which he was to purchase the slaves, being placed in his hands as agent by way of trust, remained in the same way, unaffected by the statute of limitations until the demand, or the bringing of the attachment in Georgia, if any was ever brought there, which doth not appear in the cause by any proper evidence. If the act of 1715 does not bar, by the lapse of three years, where the defendant is an agent, neither will the act of 1826, because there must be a cause of action existing before the time when either of the said acts can commence running. And before the demand by parol in North Carolina, or by suit in Georgia, there was no cause of action existing in this case.
PER CURIAM. No error.
Cited: Northcot v. Casper, 41 N.C. 311; Carroway v. Cox, 44 N.C. 176.
(603)