If the action accrue when the party is under more than one coexisting disability, the statute will not be set in motion until they are all removed. Therefore if, when the right to an action accrues, a woman be married, under twenty-one years of age, and insane, and her husband died at thirty and she became sane at forty, the statutory period would not begin to run until she were forty. So long as there is nobody against whom the claimant can bring an action the statute of limitations does not run. Such cases arise when the administrators of the defendant have not been appointed, though it does not exclude the time between the death of the claimant and his administrator. 2 115. The Letter of the Law is Applied Strictly, without Regard to Hardchip or Misfortune. The statute does not run against a town until it is incorporated and has capacity to sue. There are exceptions, however, to this rule in California' and Georgia. The statutes of many states contain special provision for such cases, which statutes should be consulted. There has been a doctrine, which is no longer accepted, that an inherent equity would. create an exception to the rule, but the general law now is that the language of the act must prevail, and no reason, based on apparent inconvenience or hardships, can justify a departure from it. This is illustrated by a remarkable case in which a city eluded the service of summons during the whole period of ten years, the statutory period. Each year, as soon as the officers of the city were elected, they met and transacted what business was necessary, in a secret place, with doors locked and sentries posted, after which they filed their resignations, which by law took effect immediately, leaving no officer of the city upon whom the railroad company, who held the city's bonds, could serve summons. The court held that however dishonest and wrong morally it was for a debtor to evade services of process, it was not fraudulent in a legal sense, and that as it did not come within any express exception of the statute, the court could not make it one, as that would be making a law instead of administering it, the former of which is for the legislature, the latter for the courts. War is such a disability or condition as will prevent the statute from operating. It must affect the parties or be of such duration and character as to close the courts. War will not only prevent the statute from taking effect, but it will interrupt the running of the statute for the term that the war existed. 116. Statute Does Not Operate against the Government.-The state nor the United States are not barred unless it is so expressly provided in the statute." The business of the government being transmitted entirely through agents, who are so numerous and scattered, the utmost vigilance would not protect 113 Amer. & Eng. Ency. Law 737. 213 Amer. & Eng. Ency. Law 735. 3 Amy. v. Watertown (Wis.), 22 Fed. Rep. 418. 4 Slantey v. Schwalby (Tex.), 19 S. W. Rep. 264 [1892]; Jefferson City v. Whipple, 71 Mo. 519 [1880]. the public from losses and combinations to defraud the government. The government is, therefore, exempt from the operation of the statute upon the grounds of public policy, and not upon the notion of extraordinary prerogative. This exemption is accorded to the different branches of the government only when they act in the sovereign capacity. If the government engages in purely business transactions, as in banking, it is held to be divested of its sovereignty, and to no longer be exempted from the statute.' Rights of a public nature cannot be lost from the lapse of time, but when the rights involve a mere claim of dollars and cents and involve no question of governmental right or duty, the courts hold the government to the ordinary rules controlling courts of equity. In general, in ordinary business transactions, cities, towns, counties, and school districts are within the statute of limitations as much as the individuals with whom they do business." Trespass, nuisances, and other encroachments upon public property cannot be supported by possession and enjoyment for any length of time, for public rights cannot be lost by adverse possession, unless the statute has expressly included the government. Though the government is not required to plead the statute when plaintiff to a suit, it can plead the statute against its subjects when sued by them, and it seems its representative officers have no power to waive the statute.' The defense of limitations must be raised in the trial court; it cannot be raised for the first time on appeal." 117. Agreements to Waive the Protection of the Statute.-Agreements to waive the statute of limitations or to not plead it in certain actions, even though founded upon a good consideration, have been held void as against public policy. Such agreements may amount to a new promise to pay a claim and take the claim out of the statute as to the length of time already transpired, but not as to the future." The bringing of a suit by the claimant stops the statute running, and the rule is pretty well settled that the day on which the action accrues is excluded in computing the statutory period. In some states the action is begun by the actual service or by the delivering of summons to the sheriff. 118. New Promises May Interrupt the Running of Statute and Forfeit Its Protection.-A contractor or party to a contract, express or implied, may have lost the protection that the statute would have afforded him by making new promises, acknowledging the debt, or part payments upon a long standing account or contract. An express promise to pay a debt, or acts or words from which the law can imply a promise will make a new cause of action Rep. 261. 1 See United States v. North Amer. C. Co. (C C.), 74 Fed. Rep. 145. 13 Amer. & Eng. Ency. Law 715. 313 Amer. & Eng. Ency. Law 716. 4 Shaver v. Sharp Co. (Ark.), 34 S. W. Eiseman v. Heine (Sup), 37 N. Y. Supp. 861; Pickett v. Edwards (Tex.), 25 S. W. Rep. 32. 13 Amer. & Eng. Ency. Law 717. which can be sued upon any time within the full statutory period; it starts the statute anew from the date of the express or implied promise. Any acknowledgment of the debt, such as part payment, unless accompanied by declarations or circumstances which clearly indicate that the act is not an acknowledgment of the debt or claim, will be sufficient for the law to imply a new promise to pay. Part payment of the principal, payment of interest, or an acknowledgment indorsed upon a note is usually sufficient to start the statute afresh, but the payments must be voluntary, so that a promise may be implied. If the promise is "to pay as soon as I can" or on the happening of a certain event, then it must be shown that the promisor has since been able to pay or that the event has transpired. The acknowledgment must specify the amount of the debt and the debt referred to if it cannot be in some manner connected with the debt or account to which it relates. It is sufficient if the amount can be computed. An acknowledgment that one owes another for services has been held sufficient, and the wages may not have been agreed upon. Usually the acknowledgment must be in writing by the debtor or his authorized agent, and must be communicated to the creditor or his agent.' 119. Injury Concealed by Fraud, so that Right of Action was Not Known. -Cases frequently arise in construction-work where the cause of action is not discovered at the time it accrues, as where inferior work or poor materials have been used and their use concealed from the owner, and have not been discovered for some years thereafter. It is an established rule in courts of equity that fraudulent concealment of the cause of action on the part of the contractor will deny him the protection of the statute of limitations so long as the owner remains ignorant of his rights or the injury he has suffered. However, this is no special rule, for it is a general practice for courts of equity to give relief to one on whom fraud has been practiced. Courts of law have sometimes followed the rule, though not universally, and it has been generally applied in courts having concurrent jurisdiction of both law and equity cases.' When fraudulent practice has been concealed, the time will not begin to run in favor of the perpetrator of the fraud until the fraud has been discovered, or until it might have been discovered if reasonable diligence had been exercised." The party defrauded must be diligent, and a clue to facts which if followed up diligently would have led to a discovery has been held equivalent to a discovery. The recording of a deed has been held sufficient notice, so that there should have been a discovery." 113 Amer. & Eng. Ency. Law 748 et seq. Leake's Digest of Law of Contracts 977; Troup . Smith. 20 Johns. (N. Y.) 33; 13 Amer. & Eng. Eucy. Law 728. Kirby v. Lake Shore, etc., R, 120 U. S. 130; Amy v. Watertown, 130 U. S. 320. 4 Norris v. Haggin, 28 Fed. Rep. 275, and cases cited. 5 Beattie v Pool, 13 S. Car. 383; but see Herndon v. Lewis (Tenn.), 36 S. W. Rep. 953. The fact that the contractor has made no special effort to conceal the fraud does not give him the protection of the statute in a court of equity,' but at law the fraud must have been committed by affirmative acts. Concealment without fraud, it seems, is not sufficient to toll the statute, nor is fraud without concealment. In some states the statute is tolled, i.e., inoperative, only in such actions for relief on the ground of fraud as were originally recognized in equity, while in other states and in England the statute is made to run only from the time the fraud was discovered or might have been discovered with reasonable diligence. Each case must be decided by the law of the state by which it is governed. It is sufficient for the purpose of this work to give a general idea of the law, so that engineers, architects, and contractors may avoid difficulty and litigation. 120. Bad Work Concealed When under Inspection and Supervision of Engineer. How far the inspection and supervision of work by the owner's architect or engineer would excuse the contractor from the charge of fraudulent concealment would be a matter of fact in each case. If there was no express act on the part of the contractor to conceal bad work, no deception. practiced upon the inspectors, such as enticing them away, or working secretly at hours when the work was supposed to be idle, or of bribing them to pass imperfect work, it may well be doubted if poor work not in accordance with the contract would be called fraudulent, or that it could be said to be concealed. This would be especially true when the fact of an inspector's being appointed and every clause of the contract shows that it was feared, if not expected, that the contractor would take advantage of every opportunity to slight the work and effect every saving possible to himself.* Collusion between the contractor and engineer or architect by which the latter was to pass work or materials which it was his duty to reject or report to his employer would without doubt amount to a fraud which would give relief in equity to the owner or proprietor. A failure on the part of one holding fiduciary relations or relations of confidence and trust to report what it was his peculiar duty to disclose has been held a fraudulent concealment. It has been held that fraudulent concealment by an agent of the amount collected for his employer prevented the running of the statute. A petition based on fraud which was practiced more than the statutory period before the beginning of the suit should allege that the fraud was discovered within the period of limitations." 121. Liability of Engineer for Misconduct after Statutory Period has Elapsed. It seems that an engineer or architect or attorney cannot be prosecuted for misconduct, negligence, or mistake in designing, examining, 113 Amer. & Eng. Ency. Law 683. Rep. 197. McCalla v. Daugherty (Kan. App.), 46 Pac. Rep. 30. + See Sec. 849a, infra. or inspecting work or drafting papers, etc., after the statutory limit (usually six years) from the time the act or negligence was committed, although it was not known to the employer and was not discovered by him until the period of limitation had elapsed. It has been held, therefore, that one who has been employed to examine titles or securities and has done so in a negligent manner, whereby money loaned upon it has been lost, the right of action dates from the negligence or misconduct.' The cause of action accrues the moment the employee fails to do what he agreed to do. In some states the time is limited by statute in which a person may bring his action after he has discovered the fraudulent concealment. In Alabama only one year is given, in Michigan and Kansas two years, and in Colorado three years. In Missouri the discovery must be made within ten. years, and in Kentucky the action must be brought in ten years or it is barred, whether the fraud be discovered or not. An action for breach of a contract will lie at once on a positive refusal to perform, though the time specified for performance has not arrived.' When extra work or extra expense is required to carry out changes in the plans of work done under a contract, the period of limitations does not begin to run while the contract is executory." LAW OF CONTRACTS. PROOF OF TERMS OF COLLATERAL CONTRACT. PAROL OR VERBAL AGREEMENTS. 122. Parol Evidence Not Admissible to Vary or Contradict a Written Contract.*-Parol evidence of what was said or done before or at the time of making a written contract is not admissible to alter, vary, or contradict the express terms of that contract. The proposition is of too long standing and is too well recognized as one of the foundation principles of the law to be questioned. It is a general rule of law that when parties have deliberately put their engagements in writing in such terms as import a legal obligation, without any uncertainty as to the object or the extent of such engagement, it is conclusively presumed that the whole engagement of the parties and the extent and manner of their undertaking were reduced to writing." In such case to add to it by implication would be to vary its terms and legal effect." 1 Leake's Digest of Contracts 977; Short McCarthy, 3 B. & Ald. 626; Brown v. Howard, 2 B. & B. 73; Howell v. Young, 5 B. & C. 259; Wilcox v. Plummer. 4 Pet. 172; Argall v. Bryant, 1 Sandf. 99; Rankin v. Shaeffer, 4 Mo. App. 108. 2 Donovan 2. Sheridan (Super. N. Y.), 24 N. Y. S. 116. Gibbons v. United States, 15 Ct. of CI. 174 [1879]: and see Wilkinson v. Johnston (Tex.), 18 S. W. Rep. 746; O'Brien v. Sexton (Ill.), 30 N. E. Rep. 461 [1892]; and Knight . Knight (Ind.), 30 N. E. Rep. 421 [1892]. As to responsibility when injury results from an undiscovered defect in the engineering works, see Underhill on Torts 17. 4 Bishop on Contracts 175, 355, 58, and cases cited; 17 Amer. & Eng. Ency. Law 420. 5 McKinley v. Williams (C. C. A.), 74 Fed. Rep. 94. Merchants' Ins. Co. v. Morrison, 62 Ill. 242 [1871]; see also 69 Ill. 226, 13 Ill. App. 503. This presumption may be overcome if the parol evidence be admitted without *See Secs. 559-563, infra. |