
    Hall v. Roberts et al.
    
    
      (Supreme Court, General Term, First Department.
    
    December 29, 1890.)
    Limitation op Actions—When Statute Begins to Run.
    Defendants’ testator signed a writing by which he admitted that he was indebted to plaintiff in a certain sum, the same to be payable only when testator should have: sold a certain ship. Testator also agreed to give plaintiff notice of the sale, and. pay the sum due to plaintiff within 10 days thereafter. The vessel was sold,'but. no notice was given to plaintiff. Held, that the statute of limitations did not begin to run against plaintiff until he ascertained that the ship had been sold.
    Appeal from circuit court, New York county.
    Action by William M. Hall against Susan L. Roberts and John F. Patterson, as surviving executors and trustees of Marshall O. Roberts, deceased. Plaintiff appeals from a judgment entered on the dismissal of the complaint, at the trial.
    Argued before Van Brunt, P. J., and Brady and Daniels, JJ.
    
      James K. Averill, (George F. Betts, of counsel,) for appellant. Vanderpoel, Cuming & Goodwin, (Almon Goodwin and John Yard, of counsel,)for respondents.
   Brady, J.

This action was brought to recover the sum of $30,000, with, interest, upon a written obligation, in which Marshall O. Roberts, the defendants’ testator, admitted himself indebted to the plaintiff' in the sum mentioned, and which was to be due, and payable, when the steam-ship Illinois, of 2,500 tons burden, should be disposed of by sale, gift, or loss, and which, he held to sell and dispose of, and from the proceeds pay the plaintiff the amount named. But in that instrument it was agreed between Messrs. Roberts and Hall that neither the whole nor any part of the sum mentioned should be due and payable until the sale and transfer of the steam-ship was-perfected, in which event Roberts promised and agreed to notify Hall of her disposal, and, within 10 days thereafter, pay the full amount in lawful currency of the United States, as stipulated. It was conceded on the trial that this action was not commenced until the 2d of August, 1888. After the-learned counsel for the plaintiff had presented, in his opening, the facts and circumstances attending and surrounding the claim, the defendants moved to dismiss the complaint. The motion, after the admission stated, was predicated of the counsel’s opening, from which it appeared that Mr. Roberts had died in the year 1880; that the plaintiff had made inquiries of him as to-the sale of the vessel; and that Mr. Roberts had denied that the vessel was-sold, but that after the death of Mr. Roberts he had employed persons to ascertain whether the Illinois was sold, but was unable to obtain information until 1887, when he learned from Mr. Patterson, an executor of Mr. Roberts, that it had been sold in 1864, about eight months after the contract was-made; and further, that the bill of sale was not registered nor recorded in the custom-house until 1865. It thus appears that up to the year 1880 inquiries were made by the plaintiff of Mr. Roberts as to the sale of the vessel, but that no information of that circumstance was given him; and that he-did not learn of the sale of the vessel until 1887, less than two years prior to-the commencement of this action, and notwithstanding that he had employed persons to discover whether the sale had or had not taken place.

When the motion to dismiss the complaint was made, and after the admission which has been referred to, the learned justice presiding asked the counsel for the plaintiff if he had any acknowledgment in writing, or any evidence-further than that he had stated, to take the.cause of action out of the operatian of the statute of limitations; and his answer was, “Ho, sir;” whereupon the motion was granted, and the plaintiff duly excepted. It will be observed upon an examination of the agreement, that neither the whole nor any part of the sum of $30,000 to be paid should become due or payable until the sale and transfer of the vessel was perfected, and until within 10 days after the notification of such sale by Mr. Roberts, a notification which was never given, and, therefore, the statute of limitations had not begun to run under the terms of the contract. The money was neither due nor payable until the expiration of 10 days after the notification mentioned. This was not only an appropriate, but a very reasonable, provision in the agreement, inasmuch as it appears from a previous part of it that the vessel was held by Mr. Roberts to sell and dispose of, and he was to pay to the plaintiff from the proceeds of the sale, if one were made, the sum mentioned in the agreement. The conclusion expressed, as to the notice to be given, seems to be a very plain proposition, although no authorities have been found upon the precise question presented. The nearest approach to it that has been found is the case of Keller v. Manufacturing Co., 39 Hun, 348. There it appeared that the defendants were to render an. account on or before the 10th day of each and every month, and that the payments should be made within 10 days after the making of such return, the account relating to the number of pounds of wire hardened and tempered by the use of a patented invention. The returns-were made regularly down to, and including, the 30th of September, 1871, but from that day to the 24th of August, 1872, no returns were made as contemplated, and they were refused, although the use of the invention was continued. The action was commenced on the 22d of August, 1878, and the-statute of limitations was interposed as a defense. It was rejected, however, upon the ground that the omission of the defendant to render monthly accounts for the period mentioned prevented the running of the statute against its obligation to malee the payments within' 10 days after making the returns, inasmuch as no returns having been made, the period of 10 days had'not set in motion; the statute had at no time commenced to run, and could not, under the agreement, as long as the returns were not made. There is no difference in principle between that and the present case. Here no part of the $30,000 could become due and payable until the expiration of 10 days after notice of the sale of the vessel by Mr. Boberts, in whose custody the ship was placed for that purpose, and the plaintiff had a right to rely upon Mr. Huberts’ performance of the contract in accordance with its terms. He seems, however, to have been, more vigilant than the contract required, inasmuch as-he made frequent inquiries of Mr. Boberts from the time of the making of the agreement until 1880, and it would seem up to the death of Mr. Boberts, as to whether or not a sale had been accomplished, and was advised by him that none had been made. In the one case there were no returns made, and, consequently, the statute did not apply; in the other, no notice was given, and the statute, therefore, did not commence to run. As already stated, we can discover no difference in principle between the cases. The learned counsel for the respondents seems to think that the decision of the question in regard to the statute of limitations was not concurred in, in that case, by a majority of the court; but this is an error. The learned counsel for the appellant has urged upon the consideration of the court the doctrine of estoppel, and has cited a number of cases bearing upon the misleading statements of Mr. Boberts, and also upon the proposition that the statute of limitations has no application to this case for the reason that Mr. Boberts was the trustee of an expressed trust. It is not, however, deemed necessary to proceed to the consideration of either of these propositions, and for the reason stated. The statute of limitations did not begin to run at most until Mr. Hall ascertained, namely, in 1887, that the vessel bad been sold, the obligation to give notice resting upon Mr. Boberts and his representatives. The statements made in regard thereto.are binding upon the defendants, because the dismissal of the complaint was made upon the opening of the counsel for the plaintiff, which contained a statement of the facts and circumstances creating the claim, and characterizing and explaining the delay in the bringing of the action. The case is one which should have been submitted to the jury. The dismissal of thecomplaint was therefore erroneous, and the judgment must accordingly be reversed, and a new trial ordered. All concur.  