Campbell v. Culver

they are above stated were clearly established, and the principal question which they present for our consideration is whether the plaintiff’s cause of action, if he has one, is barred by the statute of limitations. It is conceded that the present action was commenced more than six years after the defendants violated their agreement; and, if the statute commenced t'o run when that breach occurred, manifestly it furnishes a complete defense to the plaintiff’s claim. But, upon the other hand, if, as claimed by the plaintiff’s counsel, the statute did not begin to run until some injurious consequences resulted from the defendants’ breach, then it is equally clear that the case was improperly disposed of in the courts below, for the action to redeem was commenced, and all the expenses incident thereto were incurred, within six years immediately preceding the commencement of the present action. We are of the opinion that this contention of the learned counsel cannot be sustained. By the requirements of the statutory law of this state an action of this nature must be commenced within six years “after the cáuse of action has accrued” (Code Civ. Proc. § 380), and this period of limitation “must be computed from the time of the accruing of the right to relief by action” (Code Civ. Proc. § 415). Consequently the simple question here presented is, when did a right of action accrue to the plaintiff’s assignor? Obviously, as we think, when the defendants, in violation of their agreement, omitted, within the time allowed by law, to either pay the tax which had been assessed against the property of Mrs. Fox, or notify her that the same was payable. It is true that such omission probably caused no immediate injury beyond such as would have been adequately compensated by the awarding of nominal damages; but substantial damage is not essential to a cause of action, for, as was said in an early case, “a violation of a right, with a possibility of damage, forms the ground of the action.” Allaire v. Whitney, 1 Hill, 484 . In this case it appears that the tax which the defendants agreed to pay became due June 23, 1890, and that it was not then paid. It follows, therefore, that the failure to pay or to take proper measures to protect their principal was a breach of the contract; that such breach created a right of action for nominal damages, if nothing more; and that, if further and substantial damages subsequently accrued, they were not the result of a new or continuous breach of contract, but related back to the original breach which gave the right of action for their recovery, and but for which no such right would exist. While no case arising under precisely the same circumstances as this has been brought to our notice, the principle to which we have just adverted is amply supported by authority. In Bank v. Childs, 6 Cow. 238 , a bank notary had negligently omitted to protest a note which had been indorsed to the bank for collection by the holders. Within six years thereafter the bank was sued by the holders of the note for such neglect, and compelled to pay damages. Thereafter, in an action of assumpsit by the bank against the notary, it was held that the cause of action arose immediately on the omission to protest; and, the bank not having sued until more than six years had elapsed, it was barred by the statute of limitations. In Argali v. Bryant, 1 Sandf. 98 , the defendant was

negligent in publishing incorrectly in a newspaper the amount of capital contributed to a partnership by a special partner. At the time of such erroneous publication no substantial damages resulted; but thereafter, and in consequence thereof, the plaintiff became liable as a general partner for the entire indebtedness of the firm. It was held that the statute of limitations began to run from the time when the error was committed, the court saying that "the plaintiff’s right to commence a suit was totally distinct from the measure of his damages.” The last-mentioned case was cited with approval by the commission of appeals in Northrop v. Hill, 57 N. Y. 351 , which was an action brought to recover damages for fraud in the sale of certain real estate, wherein it was held that, inasmuch as the action was not commenced within six years after the discovery of the fraud, it was barred by the statute of limitations, although the damages which resulted from an eviction accrued within that period of time. In commenting upon the Argali Case, it was said by Dwight, Commissioner:

“The cause of action in that case was derived from the breach of the implied contract on the part of the newspaper proprietor to publish the partnership notice with due care and diligence. That breach was complete when the newspaper containing the notice was issued. All that subsequently followed was merely the development of the damages resulting from the original wrong.”

Many other cases of like import in which a similar doctrine is enunciated might be cited, but we think those to which reference has already been made sufficiently demonstrate the fallibility of the plaintiff’s contention. It may be proper to suggest in this connection that the provision of the Code of Civil Procedure (section 382, subd. 5) which declares that in certain cases a cause of action is not deemed to have accrued until the discovery by the plaintiff of the facts constituting the same, has no application here, inasmuch as the plaintiff’s action is founded upon a breach of contract, and not upon fraud. Exkorn v. Exkorn, 1 App. Div. 124 , 37 N. Y. Supp. 68 ; Oaks v. Howell, 27 How. Prac. 145. As we are unable, after careful examination, to discover any way in which the plaintiff can be relieved from the unfortunate dilemma in which he is placed in consequence of his own laches or that of his assignor, we are constrained to affirm the judgment appealed from.

Judgment affirmed, with costs. All concur; SPRING and LAUGHLIN, JJ., concurring in result only.