On the trial before Daniel, Judge, a verdict was taken for the plaintiff, subject to the opinion of the court whether, upon the following facts, the plaintiff had any cause of action.
The plaintiff resided in the State of Massachusetts, and had no agent residing in this State. The defendant collected the amount of one of the notes, and might have collected the other; no demand was made before the commencement of the action.
The presiding judge was of opinion that to sustain the action it was necessary that a previous demand should be shown, or that at least there should have been a known agent of the plaintiff within this State, authorized to receive the money, and directed the verdict to be set aside and a nonsuit entered, whereupon the plaintiff appealed.
In this Court no counsel appeared. Both the law and justice of this case have been, in my opinion, duly administered, for the defendant had done no act to put him in the wrong. He was not bound to leave the State to go in pursuit of the plaintiff, and the latter had no agent here to whom the payment could be made. If a man receive money to a special purpose, as to account or merchandise, it cannot be demanded of him as a duty till he has neglected or refused to apply it according to the trust *Page 58 (80) under which he received it, and the declaration must show a misapplication or breach of trust; and though a verdict for the plaintiff will aid such a declaration, and it will be presumed afterwards that the defendant refused to account, yet here the objection was taken at the trial and the point reserved. The law distinctly recognizes the principle that if goods are consigned to a factor for sale on commission, that a contract arises that he will account for such as are sold, pay over the proceeds, and redeliver the residue unsold whenever a demand is made. Nor will an action lie against him for not accounting, till after a demand made of an account; and from that period only will the statute of limitations begin to run against the plaintiff.
If this is a just rule as applicable to persons living under the same government, it is more so where the plaintiff has left the country and put it out of the defendant's power to pay the money. (1 Salk., 9; 1 Taunton, 571.) I therefore think a nonsuit ought to be entered up.
Judgment affirmed.
Approved: White v. Miller, 20 N.C. 53; Waring v. Richardson, 33 N.C. 77;Kivett v. Massey, 63 N.C. 240; Comrs. v. Lash, 89 N.C. 159;Bryant v. Peebles, 92 N.C. 176; Wiley v. Logan, 95 N.C. 358; Moore v.Garner, 101 N.C. 374.