#### EDMUND S. MOORE *vs.*JOHN R. HYMAN *&*AL.

A principal cannot maintain an action against his agent for money had and received, until a demand and refusal, but the proof oí a demand and refusal is not restricted to any particular form of words, but any declaration of the agent to the principal, which shows a denial of his right, puts him in the wrong, and gives to the principal a right of action.

Where the plaintiff had employed the defendant to sell for him a quantity'of fish, and in attempting to make a settlement, they differed as to six barrels of the fish, the plaintiff wishing the defendant to pay for six barrels offish more than he was willing to account for; *Held,*that this was not only evidence of demand, but was, in law, a demand. It was a denial of the plaintiff’s right, and whether correct or not, gave him an immediate right of action, and set the statute of limitations in action.

Appeal from the Superior Court of Law of Martin County, at a Special Term in-, 1851, his Honor Judge Dick presiding.

This was an action of assumpsit, brought in October, 1848. It was in evidence, that the plaintiff deposited with the defendants, some time in May, 1841, one hundred and fifty barrels of fish, to be sold by them on commission, and took their receipt. The defendants relied on the statute of limitations.

*39It was proved by a witness for the plaintiff, that the plaintiff said that one of the defendants came to his house ill 1843, and they would have made a settlement, but they did not settle on account of six barrels of fish, about which they differed. There was no other evidence of any demand by the plaintiff, until within a few weeks before the bringing of the suit.

The Court instructed the jury that the defendants were the agents of the plaintiff: that the statute of limitations did not begin to run until a demand by the plaintiff and refusal by the defendants: that what took place between the parties, in 1843, was not sufficient to put the statute in operation, and that the defendants had not sustained their plea.

There was a verdict for the plaintiff. The defendants moved for a new trial, which was refused, and judgment given against them, from which they appealed to the Supreme Court.

*B. F.*Moore, for the plaintiff.

*Biggs*and Rodman, for the defendants.

Nash, J.

In May, 1841, the plaintiff deposited with the defendants one hundred and fifty barrels of fish, to sell on commission. In 1843, one of the defendants called on the plaintiff to settle the account, and the case states that “ they would have made a settlement but they did not settle on account of six barrels of fish, about which they differed.” No other demand was made upon the defendants, until within a few weeks before the bringing of the action. The writ issued in October, 1848, and the defendants relied upon the plea of the statute of limitations. The jury were instructed, “ that the defendants being the agents of the plaintiff, the statute of limitations did not begin to run until a demand and refusal: that what took place between the parties in 1843, was not sufficient to put the statute of limitations into operation.” In other words, that there was no evidence of *40a demand by the-plaintiff and a refusal by the defendants, until within a few weeks before the action was brought.

As a general principle, it is true, that a principal cannot maintain an action against his agent for money had and received, until a demand and refusal, but the proof of a demand and refusal is not restricted to any particular form of words, but any declaration of the agent to the principal, cr any act which shows a denial of his right, puts him in the wrong, and gives to the principal a right of action. It is not necessary for the principal to seek the agent by going to his residence, nor is it necessary for him to say, *“*I demand a settlement” — if the parties meet at a,third place, either by accident or agreement, the demand may then be made. In this case one of the defendants went to the plaintiff’s house, for what definite purpose is not stated, but while there the parties attempted to make a settlement, and would have so done, but they differed as to six of the barrels of fish. As we understand it, the plaintiff wished the defendants to pay for six barrels of fish more than they were willing to account tor. We hold, that this was not only evidence of a demand, but was in law a demand — it was a denial of the plaintiff’s right, and whether correct or not, gave him an immediate right of action, and set the statute of limitations in action. See 1 American leading cases, *Burrill and Phillips*519, in note, 2 E. C. L. R. 356.

More than three years elapsed, after the attempted settlement in 1843, before the action was brought. The charge of his Honor was erroneous. The’statute was set in motion by the attempted settlement, and having commenced running, continued so to do; and the defendants did support their plea.

Per Curiam. Judgment reversed, and a *venire de novo*awarded.