Barr v. Lewis

71 Miss. 727

Opinion

Campbell, C. J.,

delivered the opinion of the court.

True, the act of Barr, the attorney to whom Black had intrusted the claim for collection, in surrendering it to Sullivan, did not bind Black, and his estate cannot be charged by reason of that, but the legal obligation which rested on Black in his life-time to exercise reasonable diligence and vigilance in looking to his attorney for this claim, which he had committed to him for collection, and exacting an account of him, was devolved by law on his administratrix as his representative, who was bound to perform this duty, and is liable in her representative capacity for its neglect, and on that ground Black’s estate is answerable for this debt, if it is not barred by the statute of limitations.

If any is applicable, it is the six years statute of limitations. It is not applicable, because the death of Black, and the delivery of the note to Barr, and by him to Sullivan, and the collection of the money, all occurred in 1876, and since the wholesome provision contained in § 2694 of the code of 1880, there has not been a right of action in an executor, administrator, guardian, or other trustee, so far as the record shows, so as to bring the case within its just terms, and for that reason it cannot be applied to the case so as to stop the running of the statute of limitations.

H. A. Barr, for appellant,

Filed a suggestion of error, making the following points : The money claimed by plaintiff never came into the hands of Black, and it did not fail to reach him by reason of any negligence or dereliction of duty on his part. Certainly he incurred no liability in going to Texas on account of his health, and in leaving the note in the hands of a lawyer for collection. So far as the record shows, he never heard of the note from the time he turned it over to the lawyer. A short time after the money was collected he returned to his home, and soon thereafter died. Upon what ground can it be claimed that he was in default ? The law does not require impossibilities. One cannot be held responsible for failing to perform duties when the circumstances preclude him from pei’formance. Unless the law has become a- travesty upon justice, Black cannot be held responsible for failing to do that which was impossible. If Sullivan had been the lawyer of Black, a different rule might obtain. The facts show that Sullivan got the money, and never paid it over. He or his estate is liable for it. Neither Black nor his administratrix incurred any liability.

The right of action to charge Black, or his estate, for account of his responsibility in the matter, accrued to the guardian of the minor, J. L. Lewis, and that guardian died in 1879, and, under the code then in force, there was a right of action in the minor to whom the fund belonged, and the statute of limitations did not apply to him, and this right of action which accrued under the code of 1871 continued, subject to that code, unless a bar accrued before suit brought under the code of 1880, as provided by § 2692 of that code, and, as already stated, a bar did not accrue by virtue of § 2694 of that code, for the reason that the right of action is not shown to have been in any trustee for him, and therefore that section does not apply. That section had no existence as law until November 1,1880, and it does not affect this case, because of the absence of the conditions designated by it, to wit; legal title or right in action of a trustee for the minor who might and should have asserted his right to the money.

Without § 2694 of the code of 1880, it is indisputable that-J. L; Lewis, the quondam minor, was not barred of his right of action when this suit was instituted. This appears by many decisions in this state.

Affirmed.

Campbell, C. J.,

delivered the response of the court to suggestion of error.

The sickness and absence and inability and death of Black, and the fact that the money did not come to his hands or the hands of his lawyer, and that no negligence or dereliction of- duty while he lived is imputable to him, do not, in any manner, affect the question of legal liability of his estate. He certainly incurred the liability of a trustee in becoming commissioner and acting as such, and did not acquit himself by giving the note to Barr for collection. His duty was to look after the matter, and hold his attorney to his legal responsibility, and, when he died, this duty devolved on his administratrix, who was charged with the responsibility of her intestate as to all past acts. She should have looked to Barr, and held him accountable for the note, and he, in turn, could look to Sullivan or his estate. The fact that she may not have known of the matter until this suit was instituted, makes no difference as to the right of the complainant, as the suit was not barred by limitation, as shown in the opinion, and therefore it is to be considered as if she had timely notice of all the facts.

It would be gratifying to us to see responsibility fixed where it ultimately belongs, but the complainant is undoubtedly entitled to the decree obtained,'on the plainest legal rules, and our regret that the burden does not at once fall where it seems ultimately to belong, furnishes no reason for denial of the unmistakable legal right of the complainant to resort primarily to the estate of Black, and let its representative seek redress' where it should be obtained.

Suggestion denied.