Wilcox v. Executors of Plummer/Opinion of the Court

Mr Webster for the defendant.

The question is, whether the statute of limitations was not a sufficient bar to both counts in the declaration?To consider them separately. The first count alleges, that no suit was brought against the indorser, until he was discharged by the act of limitations; which was on the 9th of November 1822. Mr Plummer received this note for collection on the 28th of January 1820. He sued the drawer of the note, and had judgment in August 1820; but obtained no satisfaction, the drawer having failed. According to the allegations on this count, he then delayed more than two years before he took any steps against the indorser. This was negligence clear and actionable. He should have used all reasonable diligence, and as soon as he intermitted that diligence, he was liable to an action for neglect. The cause of action against him is, his omitting to sue the indorser so soon as he ought to have sued him; and the true question is, when did this cause of action arise?

The plaintiff contends, that this cause of action arose when the indorser was discharged by lapse of time; but this cannot be maintained. Suppose there had been no statute of limitations by which an indorser would have been discharged, would not an action have lain against Mr Plummer for not suing him? He had a reasonable time, according to the course of the courts, and the practice of the country, within which to sue the indorser; and if he did not sue within such reasonable time, he himself was subject to a suit for negligence.

He had promised to use all common diligence to collect the note. Uncommon delay was a breach of that promise, and a case of action. It is not at all material to this cause of action, whether the full extent of damage was then ascertained or not ascertained. It was enough that there was a cause of action. From that moment the statute began to run. The law regards the time when the cause of action arises, not the time when the degree of injury, more or less, is made manifest; and when the cause of action is a breach of promise or neglect of duty, the right to sue arises immediately on that breach of promise or neglect of duty; and this right to sue is not suspended, until subsequent events shall show the amount of damage or loss. This may be shown at the time of trial; or indeed if it be not actually ascertained at the time of trial, the jury must still judge of the case as they can, and assess damages according to their discretion.

A rule different from this would be attended with one of two consequences, either no action could be brought in such a case until the full amount of injury was ascertained; or a fresh and substantive cause of action would arise on every new addition to the probability of loss.

The cases are clear and decisive to show that in such cases as this, the cause of action arises with the original neglect. Short vs. M'Carthy, 3 Barn. & Ald. 626, 630, 3 Eng. Com. Law Rep. 403. Battley et al. vs. Faulkner et al. 3 B. & A. 288, 3 Eng. Com. Law Rep. 289. Howell vs. Young, 5 B. & C. 254, 11 Eng. Com. Law Rep. 219. 2 Saunders on Pleading and Evid. 645.

Howel vs. Young is much like this case. It was an action against an attorney for negligence, where no loss actually resulted, and where the negligence itself was not discovered for some years. The court held the action accrued from the time of the breach of duty. There the action was case; but the court looked to the real nature of the transaction, and applied the statute to it, disregarding the form of action. Holroyd, Justice, said, 'the loss does not constitute a fresh ground of action, but a mere measure of damages. There is no new misconduct or negligence of the attorney, and consequently there is no new cause of action.' This language is strictly applicable to the case before the court. Omitting to sue, beyond a reasonable time, Mr Plummer was guilty of negligence; a cause of action had then accrued against him: his omitting still farther to sue was no new neglect; it was no new cause of action, but merely the continued existence of the former cause.

Counsel below illustrated this rule of law very well by referring to the cause of action for defamation. If words, not in themselves actionable, be spoken, and special damage result, the party injured may sue within the time limited for such suits after the happening of the injury; because, in such case, the specific injury is the cause of action. But if words be spoken which are of themselves actionable, and special damage result also, in such case, notwithstanding or not regarding the time of the happening of the special damage, the statute of limitation will run from the time of speaking the words.

It seems to have been contended for the plaintiff, in the court below, on this first count, that Mr Plummer was bound to sue the indorser; that this was a continuing obligation; and that every day furnished a new fault and a new injury, till the claim on which he should have sued was extinguished. If this mode of argument be plausible, it is no more. The same reasoning would apply, and with equal force, to every case of implied promise. If one borrows money, it is his duty to pay; and he is in default every day, and commits a new injury, every day, until he does pay. Yet the statute runs in his favour from the day when he first ought to pay.

Mr Plummer was bound to sue at the first court because that was reasonable time; not suing then, he was from that moment liable to an action for negligence; and supposing him not to have sued at all, as this first count charges, his fault was then complete.

But the true view of the case, no doubt, is that attempted to be raised under the second count. Mr Plummer did sue; but he sued negligently, or unskilfully. He brought a suit against the right party, on the plaintiffs' note; but he misdescribed the plaintiffs. This was his error. Here was the negligence; and, therefore, here the cause of action. He might have been sued for this negligence the next day after he issued the writs; and the plaintiffs would have been entitled to recover such damages as they could show, at the time of trial, and on the trial, they had sustained. This original error in the attorney was a breach of duty, from which the failure in the suit resulted as a consequence. The failure in the suit was not his breach of duty; the loss of the debt was not his breach of duty. These were both but the consequences of that breach. They were its results, and they fixed the measure of damages, but were not the negligence which was alone the cause of action. It is established law, that the limitation of the statute is to be referred to that act or omission which gives the cause of action, without any regard to the consequences which ascertain the amount of damages. 1 Salk. 11.

In the view which the plaintiffs' counsel takes of this matter, it would necessarily follow, that after the first term, or court, in which Plummer could have sued, and ought to have sued, the plaintiff had a new cause of action against him, every day, for three years; each day's neglect being, as it is said, a new default, or new cause of action. If each day's neglect be a new default, and new cause of action, it is quite clear that the pendency of a suit for yesterday's default would be no bar to a suit founded on a default of to-day; and if these causes of action be, as is contended they are, all new, independent and distinct, then it follows that independent and distinct damages may be given in each. Arguments can be no more than specious which lead to results like these.

Mr Justice JOHNSON delivered the opinion of the Court.

This suit was instituted in the circuit court of the United States, in North Carolina, to recover of the defendants the amount of a loss sustained by reason of the neglect or unskilful conduct of their testator, while acting in the character of an attorney at law.

A promissory note was placed in his hands for collection, by the plaintiffs. He instituted a suit in the state court thereon, against Banks, the drawer, on the 7th of February 1820, but neglected to do so against Hawkins the indorser. Banks proved insolvent; and then, to wit, on the 8th of February 1821, he issued a writ against the indorser, but committed a fatal misnomer of the plaintiffs, upon which, after passing through the successive courts of the state, a judgment of nonsuit was finally rendered against them. Before that time, the action against the indorser was barred by limitation; to wit, on the 9th of November 1822, and this suit was instituted on the 27th of January 1825.

The form of the action is assumpsit; and the plea now to be considered is the act of limitation, which in that state creates a bar to that action in three years.

The case is presented in a very anomalous form; but in order to subject it to any known class of rules, we must consider it as coming up upon opposite bills of exceptions, craving instructions, on which the court divided. This court can only certify an opinion on the points so raised; that part of the agreement stated in the record which relates to the rendering of judgment on the one side or on the other, must have its operation in the court below.

There were two counts in the declaration: the one laying the breach in not suing at all, until the note became barred; thus treating as a mere nullity the suit in which the blunder was committed; and the other laying the breach in the commission of the blunder; but both placing the damages upon the barring of the note by the act of limitation. As this event happened on the 22d of November 1822, this suit is in time if the statute commenced running only from the happening of the damage. But if it commenced running either when the suit was commenced against the drawer, or a reasonable time after, or at the time of Banks's insolvency, or at the time when the blunder was committed; in any one of those events, the three years had run out. And thus the only question in the case is, whether the statute runs from the time the action accrued, or from the time that the damage is developed or becomes definite.

And this we hardly feel at liberty to treat as an open question.

It is not a case of consequential damages, in the technical acceptation of those terms, such as the case of Gillon vs. Boddington, 1 B. & P. 541, in which the digging near the plaintiff's foundation was the cause of the injury; for in that instance no right or contract was violated, and by possibility the act might have proved harmless, as it would have been had the wall never fallen. Nor is it analogous to the case of a nuisance; since the nuisance of to-day is a substantive cause of action, and not the same with the nuisance of yesterday, any more than an assault and battery.

The ground of action here, is a contract to act diligently and skilfully; and both the contract and the breach of it admit of a definite assignment of date. When might this action have been instituted, is the question; for from that time the statute must run.

When the attorney was chargeable with negligence or unskilfulness, his contract was violated, and the action might have been sustained immediately. Perhaps, in that event, no more than nominal damages may be proved, and no more recovered; but on the other hand, it is perfectly clear, that the proof of actual damage may extend to facts that occur and grow out of the injury, even up to the day of the verdict. If so, it is clear the damage is not the cause of action.

This is fully illustrated by the case from Salkeld and Modern; in which a plaintiff having previously recovered for an assault, afterwards sought indemnity for a very serious effect of the assault, which could not have been anticipated, and of consequence could not have been compensated in making up the verdict. The cases are numerous and conclusive on this doctrine. As long ago as the 20th Eliz. 1 Croke, 53, this was one of the points ruled in the Sheriffs of Norwich vs. Bradshaw. And the case was a strong one; for it was altogether problematical, whether the plaintiffs ever should sustain any damages from the injury. The principle has often been applied to the very plea here set up, and in some very modern cases. That of Battley vs. Faulkner, 3 B. & A. 288, was exactly this case; for there the damage depended upon the issue of another suit, and could not be assessed by a jury until the final result of that suit was definitely known. Yet it was held, that the plaintiff should have instituted his action, and he was barred for not doing so. In the case of Short vs. M'Carthy, which was assumpsit against an attorney for neglect of duty, the plea of the statute was sustained, though the proof established that it was unknown to the plaintiff until the time had run out. And the same point is ruled in Granger vs. George, 5 B. & C. 149. In both cases the court intimating, that if suppressed by fraud, it ought to be replied to the plea, if the party could avail himself of it. In Howell vs. Young, the same doctrine is affirmed, and the statute held to run from the time of the injury, that being the cause of action, and not from the time of damage or discovery of the injury.

The opinion of this court will have to be certified in the language of the defendants' supposed bill of exceptions, to wit, 'that on the first count in the declaration, the cause of the action arose at the time when the attorney ought to have sued the indorser, which was within a reasonable time after the note was received for collection, or at all events, after the failure to collect the money from the maker. And that on the second count his cause of action arose at the time of committing the blunder in issuing the writ in the names of wrong plaintiffs.'

This cause came on to be heard on the transcript of the record from the circuit court of the United States for the district of North Carolina, and on the points and questions on which the judges of the said circuit court were opposed in opinion, and which were certified to this court for its opinion, in pursuance of the act of congress in such case made and provided, and was argued by counsel; on consideration whereof, it is ordered and adjudged by this court, that it be certified to the said circuit court of the United States, for the district of North Carolina, 'that on the first count in the declaration, the cause of action arose at the time when the attorney ought to have sued the indorser, which was within a reasonable time after the note was received for collection, or at all events at the failure to collect the money from the maker; and that on the second count his cause of action arose at the time of committing the blunder in issuing the writ in the names of wrong plaintiffs; all of which is accordingly hereby certified to the said circuit court of the United States for the district of North Carolina.