Davis v. Crawford

Rugg, J.

The only question raised by these exceptions is when the statute of limitations began to run upon the following instrument:

“ Boston, July 14, 1898.
“ I have this day received from Elmer G. Davis two hundred dollars for use and investment in the Cottonwood mine situated in Chaffee Co., Colorado, Whitehorn District; and I agree that if said mine proves successful that I will pay him from the first profits or returns received by me the sum of four hundred dollars, and if no such profits or returns are received by me within six months from this date I. agree to return to said Davis the said two hundred dollars with interest.
“ Jay B. Crawford.”

Tt was agreed that $200 was paid to the defendant upon July 14, 1898; that the mine referred to in the agreement did not prove successful, and there was no profit or return received within six months from July 14, 1898, or at any other time, and that no demand was made upon the defendant for the return of the money until within a few days before the bringing of this action. It is plain that upon these facts the statute of limitations did not begin to run until January 14,1899. The contract is not to pay upon demand, but a specific agreement to pay in two contingencies two different amounts: if the mine proves successful, $400 are to be paid out of the profits, and if no profits are made within six months from its date, then the $200 with interest is to be returned. Upon the facts agreed, nothing could have been due until the expiration of six months. Any action brought before that time would have been premature. *311Therefore, the statute of limitations did not begin to run until January 14,1899, and the present action instituted on January 7, 1905, is not barred.

Exceptions overruled.