Action of assumpsit to recover from the defendant, in the
character of an attorney at law, the amount of a loss sustained by
reason of neglect or unskillful conduct.
A promissory note was by the plaintiff placed in the hands of P.
for collection. He instituted a suit in the state court thereon
against the drawer on 7 May, 1820, but neglected to do so against
the endorser. The drawer proved insolvent. On 8 February, 1821, he
sued the endorser, but committed a fatal mistake by a misnomer of
the plaintiffs, upon which, after passing through the successive
courts of the state, a judgment of nonsuit was finally rendered
against the plaintiffs. Before that time, the action against the
endorser was barred by the statute of limitations, to-wit on 9
November, 1822. This suit was instituted on 27 January, 1825. The
statute of limitations of North Carolina interposes a bar to
actions of assumpsit after three years.
The questions in the case were whether the statute of
limitations commenced running when the error was committed in the
commencement of the action against the endorser or whether it
commenced from the time the actual damage was sustained by the
plaintiffs by the judgment of nonsuit -- whether the statute runs
from the time the action accrued, or from the time that the damage
was developed or be came definite.
Held that the statute
began to run from the time of committing the error by the misnomer
in the action against the endorser.
The ground of action here is a contract to act diligently and
skillfully, and both the contract and the breach of it admit of a
definite assignment of date. When might this action have been
brought is the question, for from that time the statute must
run.
When the attorney was chargeable with negligence or
unskillfulness, 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 that the damage is
not the cause of the action.
This was an action of assumpsit, to which was pleaded the
statute of limitations.
It was alleged, and proof offered, that on 28 January, 1820, the
testator of the defendants, who was a collecting
Page 29 U. S. 173
attorney accustomed to collect for John V. Wilcox & Company,
received from them for collection a note which had been drawn by
Edmund Banks on 2 October, 1819, payable to John Hawkins two months
after date and by him endorsed, on 9 November, 1819, to Hinton
& Brame, and by them subsequently to the plaintiffs.
On 7 February, 1820, the testator, Kemp Plummer, instituted a
suit in the name of John V. Wilcox and Thomas Wilcox, who composed
the firm of John V. Wilcox & Company, against Banks, and at
August, 1820, recovered a judgment against him. Banks proved
insolvent, and on 8 February, 1821, the testator caused a writ to
be issued in the names of John V. Wilcox, Arthur Johnson, and Major
Drinkherd, as co-partners in the firm and style of John V. Wilcox
& Company, against Hawkins, the endorser of the note.
This action, thus instituted and docketed as a suit by John V.
Wilcox & Company against John H. Hawkins was, after various
delays, brought to a trial in April, 1824, when the plaintiffs were
nonsuited, and this nonsuit was affirmed on an appeal to the
supreme court at June term 1824.
Thereupon the present suit was instituted,
viz., on 27
January, 1825, by John V. Wilcox and Thomas Wilcox, co-partners
under the firm and style of John V. Wilcox & Company, against
the testator of the defendants; and on his death this suit was
revived against them by
scire facias.
Two breaches were assigned in distinct counts by the plaintiffs
in their declaration:
The first, that the testator neglected to institute any suit for
them against the endorser until 9 November, 1822, on which day the
remedy against the endorser was barred by statute.
The second, that he instituted and carried on for them the suit,
as hereinbefore stated, against the endorser negligently and
unskillfully, and before the same was terminated, the remedy
against him was barred as aforesaid, as fully appears by the
record.
The jury found a verdict for the plaintiffs subject to the
opinion of the court on the statute of limitations. The time
allowed by this statute for bringing all actions on the case
Page 29 U. S. 174
is three years after the cause of action accrues, and not
afterwards.
In the circuit court, it was contended by the defendants that on
the first count of the declaration, the cause of action arose from
the time when the attorney ought to have sued the endorser, 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 marker, and that on the second count his cause of action
arose at the time of committing the blunder in the issuing of the
writ in the names of the wrong plaintiffs.
It was contended by the plaintiffs that on the first count their
cause of action accrued when the testator of the defendants
suffered the remedy to be extinguished by a neglect to sue on or
before 9 November, 1822, and on the second count when the suit
unskillfully brought and prosecuted was terminated or, at all
events, on 9 November, 1822.
It was agreed that if the positions taken on the part of the
defendants be correct on both counts, then a judgment is to be
entered for the defendants.
If those taken by the plaintiffs be correct, then a judgment is
to be entered for the plaintiffs on both counts; or if either of
the positions thus taken by the plaintiffs be correct, then a
judgment to be entered for the plaintiffs on the count wherein the
statute ought not to bar.
On which questions the judges divided in opinion, and directed
the difference to be certified to the supreme court.
Page 29 U. S. 180
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 unskillful 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 7 February, 1820, but neglected to do so
against Hawkins the endorser. Banks proved insolvent, and then,
to-wit, on 8 February, 1821, he issued a writ against the endorser,
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 endorser was barred by limitation -- to-wit, on
9 November, 1822, and this suit was instituted on 27 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
Page 29 U. S. 181
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 22 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' 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 v.
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 today 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
skillfully, 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.
Page 29 U. S. 182
When the attorney was chargeable with negligence or
unskillfulness, 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 v. 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 v. 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 v. McCarthy,
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 v. 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 v. 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
Page 29 U. S. 183
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
endorser, 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 endorser, 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.
