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§ 2021. Laches of creditor in removing disability to sue.

"The bar of the statute cannot be postponed by the failure of the creditor to avail himself of any means within his power to prosecute or to preserve his claim." 16 Thus, though the Supreme Court of Kansas has always held that the death of the debtor suspends the operation of the Statute of Limitations," it has also held that the operation of the statute is suspended after the death of the debtor for the fifty days only, during which the creditor could not apply for the appointment of an administrator, or, at most, for a reasonable time after the expiration of the fifty days; 17 and this decision was not only accepted by the Supreme Court of the United States as establishing the law of Kansas, but was stated to be "in accord with well-settled principles." 18

W. 705; Allen v. Todd, 6 Lans. 222; Baucum v. Streater, 50 N. C. (5 Jones L.) 70. Of the cases cited above only one, Allen v. Todd, directly supports the proposition.

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It cannot be said that a person should assert a right before he has knowledge of, or is chargeable with knowledge of, the same. He must ordinarily have had such opportunity to ascertain his position as would be sufficient in the case of a man of ordinary intelligence and prudence under the circumstances of the case. . . . If, then, it was not practicable for plaintiff to discover the true condition of the sardines, it ought to be allowed a reasonable time within which to make that discovery, and the statute of limitations would not begin to run until such time. Shearer v. Park Nursery Co., 103 Cal. 415-419, 42 Am. St. Rep. 125, 37 Pac. 412; Felt v. Reynolds Rotary Fruit, etc., Co., 52 Mich. 602, 604, 18 N. W. 378; Lewey v. H. C. Fricke Coke Co., 166 Pa. 536, 543, 28 L. R. A. 283, 45 Am. St. Rep. 684, 31 Atl. 261; Beach v. Branch, 57 Ga. 362-366."

So in Texas & P. Ry. Co. v. R. W.

Williamson & Co., 106 Tex. 294, 187 S. W. 354, it was held that "where cotton was shipped on a through bill of lading from Texas via New Orleans to Liverpool, England, and a portion of it destroyed by fire while in defendant's possession, the consignor not being under duty to keep track of the shipment while in transit, the Statute of Limitations did not begin to run till plaintiffs, not being negligent, actually learned of the non-delivery."

16 Bauserman v. Blunt, 147 U. S. 647, 656, 37 L. Ed. 316, 13 S. Ct. 466, citing Richards v. Maryland Ins. Co., 8 Cranch, 84, 3 L. Ed. 496; Braun v. Sauerwein, 10 Wall. 218, 19 L. Ed. 895; United States v. Wiley, 11 Wall. 508, 513, 514, 20 L. Ed. 211; Kirby v. Lake Shore & M. S. Railroad, 120 U. S. 130, 140, 30 L. Ed. 569, 7 S. Ct. 430; Amy v. Watertown, 130 U. S. 320, 325, 32 L. Ed. 953, 9 S. Ct. 537.

17 Toby v. Allen, 3 Kans. 399; Hanson v. Towle, 19 Kans. 273; Nelson v. Herkel, 30 Kans. 456.

17 Bauserman v. Charlott, 46 Kan. 480, 26 Pac. 1051.

18 Bauserman v. Blunt, 147 U. S. 647, 13 S. Ct. 466, 37 L. Ed. 316.

§ 2022. Exceptions to the rule that the statute runs from accrual of a right of action.

Aside from any question of disabilities or of fraud or estoppel, there are at least six exceptions to the general rule that the statute begins to run upon a contract as soon as a cause of action arises upon it.

1. Where the breach of either a bilateral or unilateral contract is insufficient to support an action for a total breach of the contract. This may occur (a) where the breach is not sufficiently material, (b) where the breach is the non-payment of part of a debt, the whole of which is not due, or (c) where the contract is an independent obligation for continuing security.

2. Where the plaintiff though entitled to maintain an action for an entire breach of contract, may elect to have performance of the contract continue, and does so elect.

3. Where the plaintiff has undertaken a continuous performance though consisting of several items, and the defendant though he has expressly or impliedly promised to pay therefor, has not promised to do so at any particular time.

4. Mutual accounts.

5. Where there is a fiduciary relation between the parties. In these five cases the statute does not begin to run as soon as a cause of action accrues. In a sixth exceptional case it begins to run before the cause of action has accrued, namely, where the plaintiff has the power at any moment by making a demand to give himself a right of action.

§ 2023. Immaterial breach.

Since a breach of contract may be so slight as not to allow a recovery by the injured party of entire damages for the contract, and in case of a bilateral contract may not even justify him in refusing to continue performance on his own part, 19 no cause of action for breach of the entire contract has yet arisen, and though by delay for the statutory period, he may lose his right to recover damage for the slight breach which has already occurred, as a separate injury, yet if later the breach becomes material, or another and a material breach is com

19 See supra, § 842.

mitted, the statutory period in an action for the entire breach of the contract should be calculated from the time when the plaintiff was first able to sue for an entire breach of the contract. 20

$ 2024. Instalment debts.

When an obligation, whether unilateral or bilateral, for any performance except the payment of money is substantially broken, the law transmutes the contractual obligation into a right of action for money damages. How far this principle may be varied by the election of the injured party to continue the contract will be presently considered." It is, however, inapplicable to unilateral or independent obligations for the payment of money. Where money is promised as one of two dependent promises a substantial breach of contract involves a right to unliquidated damages, 22 and where a unilateral obligation for any performance other than the payment of money is substantially broken the same is true. This is doubtless because the law cannot give the injured person exactly what he was promised; but an obligation to pay money, originally unilateral, or becoming so by performance on the part of the creditor, remains after breach an obligation to pay that sum of money, and if by its terms the money is payable in instalments, no breach, however serious, as to earlier instalments can resolve the creditor's right into a single claim for damages on the entire contract. A separate cause of action arises on each instalment and the statute runs separately against each. 23

20 In Douglass v. Railroad Co., 51 W. Va. 523, 532, 41 S. E. 911, the court said: "I do not see that omission to make fences or cattle guards alone calls for any damage, certainly not for compensatory damages. If there could be an action for nominal damages simply for such omission, as I suppose there can be, I do not see how it would be barred under a covenant to build and maintain them; but when actual loss occurs from that omission as the proximate cause, limitation runs from the date of the loss, as to compensatory damages, and the date of the con

struction of the road, or when the fences or guards should have been made is immaterial."

21 Infra, § 2027.

22 Where the seller of personalty is allowed to recover the contract price on breach of an executory contract to sell, there is no real exception because the property passes to the buyer though it may be against his will (see supra, §§ 1365 et seq.), and thereupon the debt for the price is a unilateral obligation.

23 This was otherwise in the early law. See supra, §§ 1290, 1292, n.

Thus where instalments of compensation for services have been earned, 24 or where any unilateral money obligation is payable in instalments, 25 the statute runs on each instalment as it becomes due.

Where interest is due on a debt if no time was fixed by the contract for the payment of interest, the statute will not run on the obligation to pay interest until the principal is due.26 And even though by the terms of the contract interest is payable at a particular time, it has been held that interest will not run on this obligation until the principal or some portion of it is payable. But as there is no doubt that an independent action will lie before maturity of the principal for interest contracted to be paid at stated times, 28 the contrary view is

24 In Ennis v. Pullman Palace Car Co., 165 Ill. 161, 173, 46 N. E. 439, the court said: "Where an attorney is conducting a single suit, it has been held that the Statute of Limitations cannot commence running until the services contracted for have been performed by the ending of the suit, or by the termination of the retainer in some other mode. (Walker v. Goodrich, 16 Ill. 341.) But where attorneys are regularly employed at a salary given for advice and legal superintendence and other services rendered from day to day, there is no reason why they should not stand upon the same footing as other salaried employees so far as the Statute of Limitations is concerned. . . ." (Citing Phillips v. Broadley, 11 Jur. 264; Adams v. Fort Plain Bank, 36 N. Y. 255; Mosgrove v. Golden, 101 Pa. St. 605; Hale's Exrs. v. Ard's Exrs., 48 Pa. St. 22.) "In other words, where wages are due at fixed times, the statute runs from the date when due." (Citing Mims v. Sturtevant, 18 Ala. 359; Beach v. Mullin, 34 N. J. L. 343; In re Gardner, 103 N. Y. 533, 9 N. E. 306, 57 Am. Rep. 768; Davis v, Gorton, 16 N. Y. 255, 69 Am. Dec. 694; Rider v. Union India Rubber Co., 5 Bosw. 85; Turner v. Martin, 4 Rob.

661; Butler v. Kirby, 53 Wis. 188, 10 N. W. 373.) To these cases may be added St. Louis, I. M. & S. R. Co. v. Love, 74 Ark. 528, 86 S. W. 395; Sidway v. Missouri Land &c. Co., 187 Mo. 649, 86 S. W. 150; Ga Nun v. Palmer, 202 N. Y. 483, 487, 96 N. E. 99, 36 L. R. A. (N. S.) 922; Bartel v. Mathias, 19 Oreg. 482, 24 Pac. 918; Gallagher v. Silver Brook Coal Co., 61 Pa. Super. 1.

25 Davis v. Herrington, 53 Ark. 5, 13 S. W. 215; De Uprey v. De Uprey, 23 Cal. 352; Gaston v. Gaston, 114 Cal. 542, 46 Pac. 609, 55 Am. St. Rep. 86; Washington L. & T. Co. v. Darling, 21 D. C. App. Cas. 132; Shorick v. Barnes, 21 Ia. 305, 307; Gonsoulin v. Adams, 28 La. An. 598; Burnham v. Brown, 23 Me. 400; Stark Bros. Co. v. Gooding, 175 Mo. App. 353, 162 S. W. 333; Berry v. Doremus, 30 N. J. L. 399; Robertson v. Pickerell, 77 N. C. 302; Pelton v. Bemis, 44 Ohio St. 51, 4 N. E. 714; Bush v. Stowell, 71 Pa. St. 208, 10 Am. Rep. 694; Gilbert v. Haywood, 37 R. I. 303, 92 Atl. 625 (alimony).

26 Greenwood v. Fenton, 54 Neb. 573, 74 N. W. 843.

27 DeCordova v. Galveston, 4 Tex. 470; Grafton Bank v. Doe, 19 Vt. 463, 47 Am. Dec. 697.

28 Walker v. Byrd, 15 Ark. 33;

preferable.29 Where coupons for interest are attached to a money obligation, the coupons being separable and independent obligations, 30 it is well settled that the statute runs upon them separately, 31 even though the coupons have not been detached, 32

The expiration of the time permissible for bringing action for non-performance of one instalment will not bar an action. for subsequent defaults in the performance of a contract if it still continues in force. 33 Analogous in principle is a promise to render a certain performance on each occasion when a contingency shall happen. A promise by a surety company to indemnify the obligee of a bond whenever loss occurs from a specified cause, gives a separate right for each such occasion.34

§ 2025. Acceleration of maturity.

Contracts frequently provide that on failure to pay one of several instalments at maturity the whole performance becomes due. English courts have interpreted this literally and have therefore held that after lapse of the statutory period from the

Calhoun v. Marshall, 61 Ga. 275, 34 Am. Rep. 99; Wehrly v. Morfoot, 103 Ill. 183; Bahr v. Arndt, 9 Ia. 39; Hershey v. Hershey, 18 Ia. 24; Carter v. Carter, 76 Ia. 474, 41 N. W. 168; Bannister v. Roberts, 35 Me. 75; Andover Savings Bank v. Adams, 1 Allen, 28. Interest so contracted for may also be recovered in a separate action after maturity of the principal. French v. Bates, 149 Mass. 73, 79, 21 N. E. 237, 4 L. R. A. 268.

29 The statute was held a bar to recovery of interest more than six years before the action in Dearborn v. Parks, 5 Me. 81, 86, 17 Am. Dec. 206.

30 Nesbit v. Riverside District, 144 U. S. 610, 36 L. Ed. 562, 12 S. Ct. 746; Edwards v. Bates County, 163 U. S. 269, 41 L. Ed. 155, 16 S. Ct. 967.

31 Amy v. Dubuque, 98 U. S. 470, 25 L. Ed. 228; Nash v. ElDorado County, 24 Fed. 252; Griffin v. Macon

County, 36 Fed. 885, 2 L. R. A. 353; Reynolds v. Lyon County, 97 Fed. 155; Smythe v. Inhabitants of New Providence, 253 Fed. 824; Broadfoot v. Fayetteville, 124 N. C. 478, 32 S. E. 804, 70 Am. St. Rep. 610; Galveston v. Loonie, 54 Tex. 517. The statutory period applicable to the bonds is also applicable to the coupons, though it begins to run at a different time. Smythe v. Inhabitants of New Providence, 253 Fed. 824.

32 Amy v. Dubuque, 98 U. S. 470, 25 L. Ed. 228.

33 Breach of one instalment of a divisible contract may, however, operate as a breach of the entire contract. See supra, § 866.

34 Sanders v. Coward, 13 M. & W. 65; Deposit Bank v. Hearne, 104 Ky. 819, 48 S. W. 160; Thruston v. Blackiston, 36 Md. 501, 510; McKim #. Glover, 161 Mass. 418, 37 N. E. 444; Green v. Petersen, 218 N. Y. 280, 112 N. E. 746.

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