Perkins v. Davis

109 Mass. 239

• Court: Massachusetts Supreme Judicial Court
• Decided: January 15, 1872
• Status: Published

Opinion

Moetoít, J.

The statute of limitations is a bar to the first count of the plaintiffs’ declaration, if the defendant acquired a domicil in tMs state more than six years before the date of ths writ, and retained it to that time. His occasional and temporary absences from the state would not prevent the statute from running. Collester v. Hailey, 6 Gray, 517. Langdon v. Doud, 6 . There was evidence before the referee, tending to show that the defendant left New Hampshire in June 1862, and came to Amesbury in this state to live, and that thereafter, until he moved to Wilmington in 1869, “ he called and intended Amesbury as his place of residence.” If he came to Amesbury to reside, with the bond fide intention of making it his home, he thereby acquired a domicil there. Whether he thus acquired a domicil, and whether he retained it for six years, were questions of fact to be determined by the referee. Thorndike v. Boston, 1 Met. 242. Williams v. Roxbury, 12 Gray, 21. There was evidence in the case bearing upon these questions, and the finding of the referee thereon is conclusive. Cochrane v. Boston, 4 Allen, 177. It follows, that the plaintiffs are not entitled to recover on the first count.

The second count of the plaintiffs is for money paid to the use of the defendant and at his request.1 There was evidence tending to show that the plaintiffs paid the amounts claimed, for the benefit of the defendant and at his request. The only defence set up to this claim is, that the plaintiffs did not notify the defendant of such payment, or make a demand on him therefor, before bringing this suit. We are of opinion that no demand was necessary. By the payment of the money at the defendant’s request,;a present debt arose in favor of the plaintiffs. Nothing further was to be done by them; but upon the payment the law raised an obligation from the defendant to the plaintiffs to repay them. No special demand and notice were necessary; but the bringing of the suit was a sufficient demand. Chaffee v. Jones, 19 Pick. 260. Shaw v. First Methodist Episcopal Society in Lowell, 8 Met. 223. Robinson v. Williams, 8 Met. 454. The result is, that the plaintiffs are entitled to recover the items included in their second count as found by the referee, with interest from the time of payment.

Judgment for the plaintiffs accordingly.