Neither the charter nor the by laws of the corporation cast any special duties on the vice president or director. The vice president was only required to act in the absence of the president, and no special duties of management were in terms cast upon the president. It was provided that he preside at all meetings, sign all certificates of stock, contracts, checks, etc., "and generally do and perform such other duties as are incidental to his office and not in conflict with these by-laws and the articles of association." No duty was cast on any individual director as such. The board of directors, as a body, were charged with the usual duty of care of the affairs of the corporation, but all the power and duty cast upon them was upon them as a board, and not individu- *The other matter is this: This action[410 ally. Obviously, therefore, under the testi- was commenced, as stated, in 1888, and the mony which we have referred to, from the claim for compensation as manager was for a plaintiff and the foreman of the ranch, the term extending from January 1, 1883, to Deservices which the plaintiff performed were cember 1, 1887, and the contention is that part not those of a director or vice president, but of this claim was barred by the statute of limoutside thereof, and similar to those of a gen-itations. The statutory provisions applicable eral manager. thereto are the following: It is unnecessary to refer to the testimony "Within two years. 1st. An action upon a which tends to weaken the scope of these gen-contract, obligation or liability not founded eral statements of the plaintiff and the fore- upon an instrument of writing; also on an man, because such conflict presents but a mere open account for goods, wares and merchanquestion of fact, upon which the verdict of dise, and for any article charged in a store acthe jury is conclusive. It is enough to sustain count: Provided, That action in said cases may the verdict that there was positive, direct, tes-be commenced at any time within two years timony to the existence of the facts as found. Neither is it clear, as contended by the defendant, that this claim for compensation as general manager was an afterthought, and in retaliation for a claim made by Kerr, the president, for interest; for, while it is conceded by the plaintiff that there was a dispute between 409]Kerr and himself as to the matter of interest, yet his version of that is substantially this: When he commenced work as general manager nothing was said in respect to his com- Now, whatever might be the rule, if all that pensation, but sometime afterwards, when sheep was involved in this case was a simple claim were purchased by the corporation from Kerr, for compensation as manager, there was withand the price agreed upon, a question was in the very terms of the statute a "mutual, raised as to interest upon the deferred pay-open, and current account" between the parments, and then, as he says, Kerr agreed to waive interest on condition that he waived any claim for compensation for his services as manager, and yet, notwithstanding this agreement, Kerr afterwards insisted upon and recovered interest from the corporation.

Lea Owsley, who was foreman at the ranch, | obligation to pay for the services. We concur testified that the plaintiff was "general manager with the supreme court of the territory, when of the business;" "made all contracts of every it says: "It was the peculiar province of the thing that came on the ranch;" "collected the jury, under proper instructions from the court bills;” “bought the feed, hay, and grain," and as to the law governing plaintiff's right to re"had general charge of everything-land, cover for the services claimed to have been cattle, ranch, and everything.' rendered, to determine from the evidence whether or not he was entitled to compensation therefor. The jury found the issue in plaintiff's favor. Plaintiff claimed $250 per month from January 1, 1883, to December 1, 1887, amounting to $14,750. The jury allowed him $8850 and $688.40 interest, amounting to $9538.40. While the evidence to sustain this verdict is not entirely satisfactory, and while, if submitted to this court originally on the printed testimony, a different conclusion might possibly be reached, yet, the jury having found for the plaintiff on part of his claim and the judge who heard the case in the court below having refused to set the verdict aside, we do not think it is so far unsupported by the evidence as to justify this court in doing so."

It is unnecessary to consider the contradictory testimony or to attempt to determine the actual facts in reference to this matter. It is enough that the jury by their verdict have practically affirmed the truth of plaintiff's story; and that sbows an understanding on the part of the parties in interest that he was to receive compensation for his services as manager, and that the two parties who owned substantially all the stock and properties of the corporation attempted to make an arrangement in respect to such compensation, which arrangement proved a failure, and proving a failure left the corporation under the implied

after the last charge is made, or the last payment is received." Utah Comp. Laws 1888. 3145.

"In an action brought to recover a balance due upon a mutual, open and current account, where there have been reciprocal demands between parties, the cause of action shall be deemed to have accrued from the time of the last item proved ia the account on either side." Utah Comp. Laws, 1888, 3149.

ties, and into that account the matter of such compensation entered as one of the items, and so the court did not err in refusing this instruction asked by the defendant: "When services in the management of a farm and household are performed under a general retainer, without any express agreement as to the time or measure of compensation or the term of the employment, and such services continue for a series of years, no payments being made, the law for the purpose of determining when the statute of limitations begins to run will not imply an agreement that the payment of compensation shall be postponed until the termination of the employment. but will regard the hiring as from year to year, and the wages as payable at the same time."

Not only was there an account presented by the plaintiff for $4852.23, for moneys paid out at the instance and request of the defend

4.

There can be no laches in failing to assert rights of which a party is wholly ignorant, and whose existence he had no reason to apprehend.

Laches is a good defense to a suit in equity to set aside a survey which had stood unchallenged for over twenty-five years, where all the facts alleged to sustain the suit were known to plaintiff for more than twenty years before the suit was brought. [No. 128.] Argued Dec. 4, 5, 1893.

aut, from January 1, 1883, to December 1, 1887, &
411] *and also one for the further sum of
$1133.25, for feeding, caring for, and keeping
its borses during the same time, but also in its
answer the defendant presented by way of
counterclaim, first, an account against plaintiff
and Owsley, as partners, for the pasturage of
certain cattle, varying in number from 56 to
299, from the year 1883 to June 10, 1888, at
twenty five cents per head a month, on which
only $414.40 was admitted to have been paid;
also a claim against plaintiff and said Owsley
jointly for the sum of $325.75 for horses sold
and delivered to them; and finally, as a last
counterclaim, defendant alleged: "That
prior to and at the commencement of this ac-
tion the plaintiff was and still is indebted to
defendant in the sum of $3614.51, a balance
upon an account for money loaned, paid out
and expended to and for plaintiff and for goods
and materials furnished to him, and for divers
and sundry other items and matters of charge,
all on open running current account and at
plaintiff's request, between January 27, 1883,
and June 10, 1888. That said sum of $3614.51
was, at the commencement of this suit, and is
due from and unpaid by plaintiff to defendant,
and no part thereof has been paid."

On the trial the defendant offered the account taken from its books, running from January 27, 1883, to June 10, 1888, an account consisting of hundreds of items, and filling twelve pages of the printed record. Obvious ly, there were between the parties open, mutual, and current accounts, and as one item in those accounts was this claim for compensation as manager, and this, whether that was to be payable monthly or annually, we see no error in the record, and the judgment is affirmed.

Mr. Justice White, not having been a member of the court when this case was argued, took no part in its decision.

412] *JOHN Halstead, Appt.,

v.

A. G. GRINNAN ET AL.

(See S. C. Reporter's ed. 412-425.)

1894.

Decided March 19,

APPEAL from a decree of the Circuit Court of the United States for the District of West Virginia, dismissing a suit in equity brought by John Halstead, plaintiff, agains A. G Grinnan et al., to obtain a decree that plaintiff is the owner of an undivided half of a tract of land, and for a partition and new survey setting off to him the one half, so as to connect with another tract of land, and denying rehearing in two other cases heard with the above case. Affirmed.

Statement by Mr. Justice Brewer:

On January 24, 1885, plaintiff tiled in the District Court of the United States for the District of West Virginia his bill of complaint against A. G. Grinnan, the Forest Hill Mining & Manufacturing Company, Robert Soutter, trustee; William Wyant, and the unknown heirs of William K. Smith, deceased. At that time there was no circuit court in the district, the district court having the powers of a circuit court, but before the final disposition of this case a circuit court was established by the Act of Congress of February 6, 1889 (25 Stat. at L. 655) and to it the case was transferred. On November 30, 1887, the plaintiff, by leave of court, filed an amended and supplemental bill. Intermediate those dates, and on May 4, 1887, there was filed in that court the records of two cases transferred from the state circuit court of Greenbrier county, entitled, respectively, "A. G. Grinnan v. 8. C. Long et al.," and "F. B. Chewning v. J. F. Coran et al." The plaintiff Halstead had been made party defendant in those cases, and notified by publica. tion, and after decrees by default against him he appeared in each case by petition, praying for an opening of the decree and a rehearing,

Laches-lapse of time-ignorance-delay of over and, while those applications were [413

twenty years.

pending, removed cases as above stated to the United States court. To the original and sup1. The length of time during which the party neg-plemental bills in the case commenced in the lects the assertion of his rights, which must pass in order to show laches, varies with the peculiar

circumstances of each case, and is not, like the

matter of limitations, subject to an arbitrary

rule.

2. Laches is an equitable defense controlled by equitable considerations, and the lapse of time

district court, Grinnan and Wyant duly an-
swered. Proofs were taken, and the three
cases being heard together, on May 26, 1888, a
final decree was entered as follows:
"John Halstead

must be so great, and the relations of the defend- Wm. Wyant & Others.

ant to the rights such, that it would be inequitable to permit the plaintiff to now assert them.

NOTE.-As to laches, when a good defense, see note to Felix v. Patrick, 38: 720.

As to length of time as bar to relief in cases of fraud; statute of limitations as a plea in equity; state claims; cases of undiscovered fraud: when laches bars remedy, see note to Hammond v. Hopkins, 38: 135. As to statute of limitations, when not applicable to trusts, see note to Gibson v. Charter Oak L. Ins. Co. 35: 1029.

A. G. Grinnan

V.

S. C. Long and Others.

F. B. Chewning

V.

J. F. Cowan and Others.

In
Equity.

In Heard Equity. together.

In
Equity.

"These causes this day came on to be heard together and were argued by counsel; where

The burden of this controversy rests on these facts: On June 15, 1859, A. G. Grinnan, W. K. 414] Smith and A. G. Grinnan as *trustee, conveyed to the Forest Hill Mining & Manufact-contention of the plaintiff was that such sururing Company (hereinafter called the Forest Hill Company) a tract of land in the county of Fayette, in the then state of Virginia (now West Virginia) containing 2000 acres, more or less, and also another tract and a right of way described in the deed, as follows:

by the county surveyor, Robson was made in 1859. In 1861 the same surveyor made a plat showing the Forest Hill tract of 2000 acres, and the Huddleston tract, as surveyed, with the adjoining lands, which plat, or so much of it, at least, as is material, will be found on the following page.

A mere glance at this plat shows that the Huddleston tract is so surveyed that the part set off to the Forest Hill company at no point touches the 2000 acre tract, but is separated therefrom by a narrow strip a part of the land reserved to Grinnan and Smith. Now, in reference to this map, the plaintiff alleges, in his amended and supplemental complaint, as follows:

strong is the desire of every man to have the full enjoyment of all that is his, that, when a party comes into court and asserts that he has been for many years the owner of certain rights, of whose existence he has had full knowledge and yet has never attempted to enforce them, there is a strong persuasion that, if all the facts were known, it would be found that his alleged rights either never existed, or had long since ceased. We have had before us lately several cases in which this defense has been presented, and in which the rules determining it have been fully stated and its value clearly demonstrated. Hammond v. Hop kins, 143 U. S. 224 [36: 134], and cases cited in the opinion; Felix v. Patrick, 145 U. S. 317 [36: 719]: Foster v. Mansfield, C. & L. M. R. Co. 146 U. S. 88 [36: 899]; Johnston v. Standard Min. Co. 148 U. S. 360 [37: 480]. The length of time during which the party neglects the assertion of his rights, which must pass in order 417] to show *laches, varies with the peculiar circumstances of each case, and is not, like the matter of limitations, subject to an arbitrary rule. It is an equitable defense, controlled by equitable considerations, and the lapse of time must be so great, and the relations of the defendant to the rights such, that it would be in equitable to permit the plaintiff to now assert them. There must, of course, have been knowledge on the part of the plaintiff of the existence of the rights, for there can be no laches in failing to assert rights of which a party is wholly ignorant, and whose existence In other words, he admits that eighteen years he had no reason to apprehend. And yet, as before he brings this suit he saw the map which said by Mr. Justice Brown, speaking for the discloses the survey, and it is apparent at a court in Foster v. Mansfield, C. & L. M. R. glance, as he himself alleges, that the part set Co. supra: "The defense of want of knowl-off to the Forest Hill Company does not, at any edge on the part of one charged with laches is point, touch the 2000 acre tract. one easily made, easy to prove by his own oath, and hard to disprove; and hence the tendency of courts in recent years has been to hold the plaintiff to a rigid compliance with the law which demands, not only that he should have been ignorant of the fraud, but that he should have used reasonable diligence to have in formed himself of all the facts."

"The map filed with the deposition of T. 8. Robson, marked 'T. S. R. No. 2,' was made from a survey made by said Robson in 1861, and your orator believes that it shows correctly the location of the Forest Hill tract of 2000 acres and the Huddleston tract and the division made by him in 1859 and their relations to each other. Your orator avers that he saw this map for the first time in about 1867. It will be seen by this map, which is asked to be read and considered as a part of this bill, that the division of the Huddleston tract made by T. S. Robson in 1859 is so made that the part retained by Grinnan intercepts that part laid off to the Forest Hill company from the Forest Hill tract of 2000 acres, so that they do not join each other."

But beyond this direct admission there is testimony tending to show that both he and his grantor had knowledge at a much earlier date. The Forest Hill Company was organized in the year 1859. The plaintiff was a stockholder in the company. Dr. Hale was its president, and, after the deed to plaintiff and up to the time of this suit, he continued to reIn this case there is no question as to plain side, as the agent of the plaintiff, on this 105 tiff's knowledge. In the deeds from Grinnan acres, set off to the *Forest Hill Company. [420 and Smith to the Forest Hill Company, and The northern part of this Huddleston tract from that company to the trustees, the de- along the Kanawha river was comparatively scription is of a piece, or parcel, of a certain level, and it is evident that the Forest Hill tract "to be surveyed off the western side of Company bought with a view of putting up said tract by a line running from the northerly buildings on this level ground near the river, to the southerly side of said tract." And in and with the understanding that the grantors the deed from the trustee to plaintiff, which should immediately cause the survey to be was made on June 6, 1864, the description is of made. The survey was in fact made that same a lot, piece, or parcel of land containing 100 fall, and the company entered into possession acres, more or less, "as the same was ascer of the land surveyed off to it. and erected tained and bounded by the survey made subse- buildings thereon, in the course of its improvequently to the execution of the said deed, and ments, placing some fences along the division in pursuance thereof," so that in the deed made line between the two parts of the tract as surto the corperation, of which he was a stock-veyed by the county surveyor. This is the holder, twenty-five years before the commencement of this suit, was a provision for a survey, and in the deed to himself, made more than twenty years before this suit, was a declaration that the survey called for by the previous deed had been made. When, therefore, he took title he took it with notice that a survey had been made, and would not now be 418 heard to *say that he had no knowledge of that fact. Further, the survey which was made

testimony of the president of the company in respect to the matter:

"Ans. There were six or seven dwellinghouses-small cottage bouses-a coal mine and oil factory, and all the necessary machinery and plant, and my own house, some twelve or fifteen acres enclosed in fence and cultivated. There was a blacksmith shop, cooper's shop, barn, and stable. That is all I think of.

"25th Q. Were not said improvements con