seventh headnote in that case reads as follows: "The abatement of the purchase money for goods sold with warranty of quality, express or implied, should be equal, at least, to the difference between the agreed price and actual value as reduced by defective quality. Purchasers are entitled to this abatement whether, in disposing of the goods, they lost anything or not. What they realized is of no consequence, except as it may tend to illustrate the question of value": And see the comments of Judge Bleckley on pages 90, 91. This decision is well supported by the au thorities, a few of which we will notice. In 2 Sedgwick on Damages, 474, 475, we find the following: "It results from the general rule that it is erroneous, in an action on a note given for the price of a chattel, for the court to charge the jury that, although they should find the covenant to have been broken, if at the time of the sale the chattel in its unsound state was worth the price for which it was sold, the defendant had sustained no damage. Nor is the rule affected by proof that the purchaser afterward sold the property for as much as or more than he paid for it. Where the property at the time of the sale had no market value, and it is impossible to get at its real value at that time if it had been as warranted, the price paid may be taken to represent that value. And it is sometimes said generally that the price at which the property was sold is evidence of its value at that time as if warranted. Where, in an action for damages for a breach of warranty, the consideration 461 given for the warranted article consisted in another article which was exchanged for it, evidence of the value of the exchanged property will be allowed, as tending to show what the value of the other would have been if it had corresponded with the warranty. The price realized on a second sale is admissible as one mode of determining the value." The author cites in support of his text our case in Atkins v. Cobb, 56 Ga. 86, and also Hunt v. Van Deusen, 42 Hun, 392, and Brown v. Bigelow, 10 Allen, 242, both precisely in point. In the case last cited it was held that: "The rule of law that the measure of damages in an action for breach of warranty on the sale of a chattel is the difference between the actual value of the article. sold and its value if it had been as warranted is not affected by proof that the purchaser subsequently resold it for an increased price, especially if it does not appear that such sale by him was without warranty": And see 2 Benjamin on Sales, Corbin's ed., 1160, 1161; Thornton v. Thompson, 4 Gratt. 121; Brock v. Clark, 60 Vt. 551.

The decision of this court in Henry v. Central R. R. etc. Co., 89 Ga. 815, does not conflict with the law as here laid down. That was an action of tort in which the plaintiff's right to damages was predicated upon the negligence of the carrier. It had made no express covenant or warranty of any kind to deliver the plaintiff's meat in any given condition, but was simply under a statutory duty of taking the proper care of the meat and delivering it to the plaintiff within a reasonable time. It was accordingly held that if the plaintiff, notwithstanding the damaged condition of a portion of the meat, by a sale of the same protected himself from actual loss, he could not recover from the railroad company because of its damaged condition. That case, therefore, stands upon an obviously different footing from that of the case at bar.

Judgment reversed.

SALES-BREACH OF WARRANTY-MEASURE OF DAMAGES -REMEDIES OF BUYER.-In executory sales, as of large quantity of brick to be delivered from time to time, an implied warranty of quality exists, and the purchaser is not bound to return the goods and rescind the contract, upon discovering a breach, but may set up his damages by reason thereof in a cross-action. The measure of damages is the difference in value between the articles sold and those delivered, at the time and place of delivery: Bushman v. Taylor, 2 Ind. App. 12; 50 Am. St. Rep. 228, and note. As to the buyer's remedy generally, see Morse v. Moore, 83 Me. 473; 23 Am. St. Rep. 783, and note; also, note to Getty v. Rountree, 54 Am. Dec. 146.

SCHOFIELD V. WOOLLEY.

[98 GEORGIA, 548.]

ATTORNEY AND CLIENT-MONEY

COLLECTED AS TRUSTS-LIMITATIONS.—If money collected by an attorney for a client is retained by the former, the fund does not constitute a continuing trust in the absence of fraud, nor prevent the running of the statute of limitations in favor of the attorney. On the contrary, the statute begins to run from the time that the receipt of the money by the attorney is known to the client, without regard to demand made by the latter.

ATTORNEY AND CLIENT-COLLECTIONS-STATUTE OF LIMITATIONS.-If an attorney collects money for his client in settlement of litigation instituted by him, and the client refuses to ratify the settlement or to receive the money, and institutes proceedings to set aside the settlement, and the attorney retains the money collected during the pendency of such proceedings, the repudiation of his act in collecting the money does not stop the running of the statute of limitations against an action to recover the money from him, especially when the proceedings to set aside the settlement are not instituted on reasonable or plausible grounds, and result in sustaining the act of the attorney.

ATTORNEY AND CLIENT-COLLECTIONS-STATUTE OF LIMITATIONS.-The fact that an attorney after collecting money for his client retains it, and informs his client in writing that he has collected it and will pay it over as soon as he has paid certain contingent fees chargeable against it, does not stop the running of the statute of limitations against an action to recover the money from him, although such contingent fees were never paid.

Dessau & Hodges and C. L. Bartlett, for the plaintiffs.

Erwin, Cobb & Woolley and King & Anderson, for the defendants.

549 SIMMONS, C. J. On April 18, 1893, a suit of which the present suit is a renewal, was brought against the administrator of Rutherford to recover a certain sum alleged to have been received by the intestate on March 7, 1883, from one Franklin, in settlement of a suit of the plaintiffs in which Franklin was defendant and in which the intestate represented the plaintiffs as an attorney at law. The declaration was demurred to on several grounds, the main ground being that it was barred by the statute of limitations. The demurrer was sustained, and the plaintiffs excepted.

It appears from the declaration that the plaintiffs refused to ratify the settlement in pursuance of which the money sued for had been paid to Rutherford, and that a suit to set aside the settlement was instituted by them on February 11, 1889, which suit resulted, on March 1, 1891, in a verdict in favor of the defendants therein. On the day on which this verdict was rendered, Rutherford died. It further appears that on March 9, 1883, two days after the money was collected by Rutherford, "he promised in writing that he would pay over to the petitioners said money after he had paid certain contingent fees due and owing to certain local counsel whom he had employed to assist him 550 on the trial of said cause, the amount of whose fees had not been determined." It is alleged that this money was held in trust by Rutherford to pay himself a contingent fee, to pay contingent fees of assistant counsel, and to pay the balance to the plaintiffs; that this had not been done, and was a subsisting trust. There is no allegation of fraud. It was contended that, under the facts alleged, there was a continuing trust until the death of the intestate, and that the statute of limitations did not begin to run until after demand had been made upon the administrator.

It is true, a subsisting, recognized, and acknowledged trust is not within the operation of the statute of limitations; but this rule applies only to those technical trusts which are cognizable alone in a court of equity: Code, sec. 3196; 2 Wood's Limita

tion of Actions, sec. 200; Douglas v. Corry, 15 Am. St. Rep. 604, and cases cited; and the relation of an attorney to his client, where the attorney retains in his hands money collected for the client, does not constitute such a trust. In the case of Southern Star etc. Co. v. Cleghorn, 59 Ga. 782, it was said by Bleckley, J: "An attorney's possession of the money of his client is more like that of a mere agent or bailee. It would be deviating from the ordinary use of language to call the client's money trust property; and the sole duty of the attorney in respect to it is to pay it over. He has no right to control and manage it as a trustee in possession. In this regard his powers do not extend beyond those of an attorney in fact appointed to collect; the latter is not a technical trustee: Bowen v. Johnson, 12 Ga. 9. Prior to the code the rank of a claim against a deceased attorney at law for money collected in his lifetime was on a par with bonds or other obligations: Smith v. Ellington, 14 Ga. 379. We think it has not been advanced. If it was, all deposits and bailments (where conversion has followed) have undergone a similar advancement, for in a general sense they are all trusts." In Wood on Limitations of Actions, second edition, section 18, page 54, it is said: "The liability of an 551 attorney for money of his client which has come into his hands, in the absence of fraud, is simply that of an agent or factor, and creates a simple contract debt only. The rule is, that where an attorney collects money for his client, the statute begins to run from the time of its receipt, and that, too, without regard to notice or demand by the client." Upon the question whether notice or demand is required the authorities differ, but it is said that, "in the absence of proof, the law will presume notice and demand made in a reasonable time after the money is collected, and at that time the action will be deemed to have accrued": Weeks on Attorneys, sec. 263.

In the present case, it appears that the plaintiffs had notice of the collection within two days after the money was received by the defendant's intestate; but instead of authorizing the payment of fees of counsel from this fund, as proposed or promised by the defendant's intestate, the plaintiffs refused to ratify the settlement, and brought suit to have it set aside. It cannot be said, therefore, that there was any trust to apply the money for the purpose stated. And it is clear that a repudiation of his act in collecting the money will not stop the running of the statute, especially when the result of the proceeding to set aside the settlement was to sustain what had been done by the attorney, and

when, so far as appears, there were not even plausible grounds for such a proceeding.

The statute of limitations is a statute of repose, and it would seem that if there is any case to which the statute should apply, it is a case like this, where parties for whom an attorney has collected money wait for six years, with full knowledge of all the facts, before taking any steps to have the action of the attorney declared not binding upon them, and for ten years and until the attorney's lips are sealed in death, before bringing an action to recover the money collected.

552

All actions upon contracts not in writing, whether express or implied, being barred after four years from the time the cause of action arose, when not otherwise provided, and all actions upon simple contracts in writing being barred after six years (Code, secs. 2917, 2918, 2923, and the contract of an attorney to pay over money collected for a client being no exception to the statute, it follows from what has been said that the present action was barred.

Judgment affirmed.

AND CLIENT

LIMITATIONS OF ACTIONS-ATTORNEY CAUSES OF ACTION BETWEEN.-The statute of limitations begins to run from the time of the collection of money by an attorney for his client, which should have been paid over, where there has been no fraudulent concealment of the receipt of the money: Douglas v. Corry, 46 Ohio St. 349; 15 Am. St. Rep. 604. See, also, Wilder v. Secor, 72 Iowa, 161; 2 Am. St. Rep. 236, and note.

ATTORNEY AND CLIENT-COLLECTIONS BY ATTORNEY FOR CLIENT-TRUSTS.--The duty of an attorney to pay over money collected for his client does not give rise to a continuing and subsisting trust within the meaning of a statute excepting such trusts from the operation of the statute of limitations: Douglas v. Corry, 46 Ohio St. 349; 15 Am. St. Rep. 604, and note.

LIMITATIONS

OF ACTIONS-ACKNOWLEDGMENT-WHAT IS SUFFICIENT.-An acknowledgment sufficient to remove the bar of the statute of limitations must contain a clear and unequivocal acknowledgment of the debt, a specification of the amount of it, or a reference to something by which the amount can be definitely and certainly ascertained, and an express or implied promise to pay it: Ward v. Jack, 172 Pa. St. 416; 51 Am. St. Rep. 744, and note. See Nelson v. Hanson, 92 Iowa, 356; 54 Am. St. Rep. 568.