Hyman v. Gray, 49 N.C. 155, 4 Jones 155 (1856)

Dec. 1856 · Supreme Court of North Carolina

49 N.C. 155, 4 Jones 155

KENNETH HYMAN, ADM’R, vs. HENRY GRAY.

Where one sues as administrator, he is not bound to produce his letters of administration on the trial.

Where one receives money as an agent, no cause of action accrues until a demand is made, and consequently, the statute of limitations runs only from that time.

Where an agent has money in his hands, and when demanded, denies his obligation to pay, there is no principle upon which he can be charged, with interest further back than the time of such demand.

Assumpsit, tried before Peesoe, Judge, at the Spring Term, 1856, of Martin Superior Court.

In 1840, the defendant received, in the way of the compromise of a law-suit, a sum of money in which his brothers and sisters, and their children, were interested, as well as himself. In compromising the suit, and receiving the money, the defendant acted as the agent of the next of kin of one Pearce, from whose estate it was derived. Among these next of ldn was the plaintiff’s testator, William Rhodes, who was the only child of Catharine, a sister of the said Pearce. His mother and himself had removed from the State some years before the death of Pearce, and she and her husband both died before her brother. It was reported that William, the son, was also dead, without leaving- issue, the defendant, &c., being bis next of kin. Under this impression, his share was distributed and paid over to these next of kin. It turned out, however, that William was not dead when the money was distributed, but had only died a year or two before this suit was brought. The plaintiff having administered on the estate of William Rhodes, demanded his share of the money, but the defendant replied, “ he had paid over all in his hands and had receipts for the same,” and added, “ if he had not paid it, it was out of date so, he refused to pay.

Upon this state of the case, the defendant’s counsel asked his Honor to instruct the jury, 1st. That the plaintiff could not recover, because he had not produced the record of his appointment as administrator.

2nd. That as William Rhodes was living when the defendant received the money, his cause of action then accrued, and that the statute of limitations began to run from that time.

But the Court charged, that the cause of action did not accrue until a demand was made, and the statute did not begin to run till that time. He further charged, that if, when the demand was made, he denied the obligation to pay the money, and refused it, the defendant would be liable for interest from the time he received it in 1840. Defendant excepted.

Verdict for the plaintiff. Judgment and appeal.

Donnell, for plaintiff.

Winston, Jr., for defendant.

Pearson, J.

1. Where a plaintiff sues as administrator, “ proferí” of his letters of administration must be made in the declaration, and the defendant may crave “ oyer,” but the plaintiff is not bound to produce them at the trial. This is a familiar rule of pleading.

2. The defendant, having received the money as the agent of the plaintiff, was not bound to seek him for the purpose of paying it over; so, we agree with his Honor, that the cause of action did not accrue until a demand; consequently tbe statute of limitations did not begin to run until the demand.

3. It is clear, as tlie defendant was in no default until the demand, if he had then paid over the money, he would not have been chargeable with interest. We can see no principal upon which .he can be charged with interest, except from the date of the demand. Because of the fact, that instead of paying the money, when called on, he said, “ he had paid it, or, if not, it was out of date, and he should not pay it,” he was wrong, and was put in default from that time; but how it can have relation back, we are unable to see. If it did relate back so as to terminate the agency, and give the plaintiff a cause of action, and thereby entitle him to interest, it would necessarily have the further effect of letting in the statute of limitations.

There is error in regard to the interest, and, as the case is presented, we are not able to enter j udgment for the proper amount, but must direct a venire de novo.

Pee OuexaM. ' Judgment reversed.