Emmons v. Hayward

60 Mass. 501, 6 Allen 501

• Court: Massachusetts Supreme Judicial Court
• Decided: November 15, 1850
• Status: Published

Opinion

Metcalf, J.

The court are of opinion that the proper construction of the agreement sued on is, that payment should be made by the defendant, upon demand being made on him, after the assignees (the plaintiffs) should have made up their account preparatory to a second dividend under Gale’s assignment.

The plaintiffs made an insufficient demand on the defendant, in June, 1847, and brought a suit against him which was discontinued, on the defendant’s objection to the demand. Another demand was made upon the defendant, on the 23d of May, 1848, and this action was brought upon his refusal to pay.

The defendant relies on the statute of limitations; contending that a demand should have been made on him within a reasonable time after the date of his agreement, (March, 1835,) and that such reasonable time had elapsed more than six years before May, 1848, when the last demand was made. And so the judge ruled at the trial.

Upon consideration, we are all of opinion that this ruling was incorrect, and that, upon the facts of the case, the defendant cannot be allowed to object that the last demand was not made on him within a reasonable time. He brought a bill in equity, in 1836, which delayed the assignees’ proceedings for several years, and prevented their preparing an account previously to making a second dividend under the assignment. And we see no reason for ascribing this delay to the plaintiffs more than to the defendant. Indeed the only effort, which the facts show, to bring the proceedings on the bill to a close, was made by the plaintiffs. That effort was not made till a late day; yet the defendant cannot fairly complain that it was not made seasonably, and assert that he was, for that cause, legally exonerated from his liability to perform his promise. Whoever else has suffered by that delay, the defendant has not suffered, but has been benefited by it. He had the use of the property more than twelve years, before demand was duly made on him, without paying or being liable to pay for ffie use of it, or to pay interest for the proceeds thereof.

New trial granted.