Schuck v. Bramble

Stockbridge, J., delivered the opinion of the Court. This suit was instituted by the plaintiff on November 8th, 1909. The declaration contained seven counts, the first six being the common counts in assumpsit, and the seventh a special count, charging “that the defendant, while the receiving teller of the Canton National Bank, handled large sums of money and negotiable paper belonging to the plaintiff, and while in such capacity as receiving teller of the Canton National Bank he did at various times wrongfully convert to his own use large sums of money belonging to the plaintiff, ⁴¹³ aggregating in the total the sum of $40,000,” that the plaintiff had made a demand for the money, and been refused. A demurrer having been filed to this declaration, the plaintiff amended by striking out the first six counts, and still later, on December 30th, 1912, under leave of Court, again amended his declaration by adding five additional counts.

These counts, so added, allege in varying form the conversion of the money and negotiable paper by the defendant, or its conversion by the defendant while in the capacity of an employee of the plaintiff. No suggestion is contained in any of them that the alleged tortious acts were in any manner connected with the employment of the defendant by the Canton National Bank. The conversion, if there was any, if made while acting in the defendant’s capacity as receiving teller, was one for which the bank itself would be responsible, while if made by the defendant independently of his employment by the bank, would result in no liability on the part of the bank, even though the defendant was at the time in the bank’s employ. This was, therefore, setting up in the five counts added in December, 1912, a new theory of liability from that on which the first count had proceeded, and was in effect a new suit.

To the second amended declar*ation the defendant filed three pleas; the first, non cul; the second, that the cause of action did .not accrue within three years before suit brought, that is, the plea of limitations; and the third, that the cause of action did not accrue within three years before the filing of the second amended declaration. Upon a motion of ne recSpiaiur, the third plea was rejected as a plea to the first count of the declaration, but the motion was overruled as to the other counts. These pleas were duly traversed and issue was joined on the replication, and thereafter the plaintiff filed an amended replication as to the third plea, to the effect that the bar of the statute of limitations could not be invoked, because the plaintiff had been kept in ignorance by the fraud of the defendant, thus bringing the action within the provisions of Article 57, section 14 of the Code (1912). which ⁴¹⁴ provides that, “In all actions where a party has a cause of action of which he has been kept in ignorance by the fraud of the adverse party, the right to bring suit shall be deemed to have first accrued at the time at which such fraud shall, or with usual and ordinary diligence might have been known or discovered.” The only question which this record presents for determination is whether or not the statute of limitations can be invoked as a bar to the action, and is raised by the rulings of the Court granted at the conclusion of the plaintiff’s evidence, withdrawing the case from the consideration of the -jury, and directing the verdict for the defendant upon these grounds. It has already been pointed out that the last five counts of the second amended declaration introduce an entirely new element into the case from what was contained in the original declaration, and therefore, under the rules as laid down in Schulze v. Fox, 53 Md. 37 ; Di Giorgio Co. v. Stock, 116 Md. 201 , and Hamilton v. Thirston, 94 Md. 256 , the cause of action set out in the last five counts must have originated subsequent to the 30th December, 1909, or if originating before, have been kept from the knowledge of the plaintiff by the fraud of the defendant, or have been of such a character as not to be discoverable as the result of usual and ordinary diligence on the part of the plaintiff.

The effect of the section of the Code already quoted has been frequently passed upon by this Court, beginning with the leading case of Wear v. Skinner, 46 Md. 264 . In many States a question has arisen as to the time when the Statute of Limitations should be treated as beginning to run; in some it is held to begin to run from the date when the conversion is alleged to have taken place; in others from the time when an actual knowledge is shown to have come to the party alleging the conversion; but in this State by the language of the statute the right of action accrues at the time át which the fraud “shall or with usual and ordinary diligence might have been known or discovered.” That fraud may be either an actual concealment of facts, or the fraud may be of such a character as to conceal itself, ⁴¹⁵ whereby the plaintiff remains in ignorance without any lack of diligence on his part, and it is not necessary to constitute such fraud, that there shall be any special effort on the part of the defendant in the way of concealment. This being the condition of the law it becomes necessary to examine the facts in the case as testified to, to determine the applicability vel non of the section of the statute referred to. Albinus Schuck began dealing with the Canton Rational Bank in 1893, and from that time on for