75 P. 1051 | Kan. | 1904
Lead Opinion
The opinion of the court was delivered by
A rehearing of this cause was allowed mainly for the purpose of a further consideration of the application of the statute of limitations to the causes of action stated in the petition. Counsel' for the parties have presented.the question again with
Counsel for plaintiff in error press upon our attention the question whether, where the legislature, having confined the exception to “action for relief on the ground of fraud,” there is any reason or warrant for applying it to other causes of action. It is insisted
The effect of making an exception to an act of limitation was considered in Swickard v. Bailey, 3 Kan. 507. It was there said :
“This action shows conclusively that the legislative mind was directed to the subject we are considering. The provision is not as broad as in the judgment of
See, also, Perry v. Wade, 31 Kan. 428, 2 Pac. 787, and Stinson v. Aultman, 54 id. 537, 38 Pac. 788.
In Bank of the State of Alabama v. Dalton, 9 How. 522, 529, 13 L. Ed. 242, in the matter of engrafting on a statute of limitation exceptions not found therein, the court said :
“The legislature having made no exception, the courts of justice can make none, as this would be legislating. In the language of this court in the case of McIver v. Ragan, 2 Wheat. 29 [4 L. Ed. 175] : ‘ Wherever the situation of the party was such as, in the opinion of the legislature, to furnish a motive for excepting him from the operation of the law, the legislature has made the exception, and it would be going far for this court to add to those exceptions.’ The rule is established beyond controversy.”
The supreme court of Tennessee, in discussing the matter of exceptions to a statute of limitations where the legislature had made none, remarked that it was “well convinced that this court has no such power; that it is our duty to administer the law regardless of particular cases of hardship, and that it belongs exclusively to the legislature to alter the law if it is oppressive or inconvenient. It is believed that such has been the course of decision, with slight aberrations in reference to the act of limitations for centuries.” (Cocke and Jack v. McGinnis, Mart. & Yerg. 361, 17 Am. Dec. 809.)
The same question was before the supreme court Of
“In the construction of statutes of limitation, general words are to have a general operation ;• and where thefe cannot be found in the statute itself some ground for restraining it, it cannot be restrained by arbitrary addition or retrenchment. No exceptions can be claimed in favor of particular persons or cases, unless they are expressly mentioned.”
There may be strong reasons for making an exception where there is concealment of a cause of action or where the element of fraud enters somewhat into the breach of the contract upon which an action is brought. The legislature, however, after considering' the subject, did not deem it wise to make such exception, but on the other hand positively declared that concealed fraud should operate to toll the statute in the single action brought for relief on the ground of fraud. While concealment is alleged and wrongs akin to fraud are charged by the grain company, it does not ask that the contract be set aside because of the fraud, but, relying oh that contract, asks to recover the loss sustained by its breach.
The fraudulent concealment that a right of action for the breach of a contract exists does not change the nature of the action nor shift it into the class named in subdivision 8 of section 18 of the civil code. In fact, the petition in this case did not allege a fraudulent concealment of the cause of action, but only went so far as to say that “defendant succeeded in concealing the fact of such discrimination from plaintiff until less than eighteen months prior to the filing of this petition.” How it succeeded in concealing the fact is not stated. Whether it was by silence, misrepresentation, or some affirmative action,
“Of course the mere concealment of a cause of action, or the concealment that a cause of action had ever accrued or ever had any existence, does not of’, itself bring the case within the above-quoted provisions of subdivision 3, § 18, of the civil code, nor does-it prevent the statute of limitations from running.”
In Stinson v. Aultman, supra, it was held that the-provision with reference to the accrual of a cause of' action upon the discovery of the fraud of the defendant, has no application to an action based on a contract. In discussing the claim that the fraudulent conduct of the defendant prevented the plaintiffs from enforcing their contract, it was said :
“What they do claim is that his fraudulent conduct prevented them from knowing that they had a claim which they might enforce against him — prevented them from collecting the amount of the Newman note from Stinson himself. The concealment by Stinson of the fact that they at one time had a cause-of action which they might have enforced against him does not alone, and of itself, constitute a legal fraud.
In some of the states fraudulent concealment of a cause of action is made to extend the time of bringing the action for the period of limitation after the discovery that a cause of action exists; but the code of this state makes no such provision, except as to actions for relief on the ground of fraud. So far as actions founded upon agreements or contracts are concerned, the operation of the statute depends upon the nature of the cause of action and not upon the time that a plaintiff discovers that he has a right of action. The action accrues when the contract is violated and not at the time when the plaintiff learns* that it has been violated. In the absence of a statute making concealment an exception to the statute of limitations, the courts cannot create one, however harsh and inequitable the enforcement of the statute may be. (Fee’s Administrator v. Fee, 10 Ohio, 469, 36 Am. Dec. 103 ; Lathrop and wife v. Snellbaker, 6 Ohio St. 276; Howk v. Minnick, 19 id. 462, 2 Am. Rep. 413 ; The State, ex rel., v. Standard Oil Company, 49 id. 137, 30 N. E. 279, 15 L. R. A. 145, 34 Am. St. Rep. 541; Smith v. Bishop, 9 Vt. 110, 31 Am. Dec. 607; Jas. Peak v. Lafayette Buck and wife, 3 Baxt. 71; Troup v. Smith, 20 Johns. 32; Allen v. Mille, 17 Wend. 202; Exkorn v. Exkorn, 1 Hun, App. Div. 124, 37 N. Y. Supp. 68; Miller v. Wood et al., 116 N. Y. 351, 22 N. E. 553 ; Freeholders of Somerset v. Veghte, 44 N. J. L. 509 ; P. P. Mast & Co. v. Easton, 33 Minn. 161, 22 N. W. 253 ; Jacobs v. Frederick, 81 Wis. 254, 51 N. W. 320; Blount v. Parker, 78 N. C. 128; Wood, Lim., 3d ed., § 274.)
Attention is called to McMullen v. Loan Association, 64 Kan. 298, 67 Pac. 892, 56 L. R. A. 924, 91 Am. St. Rep. 236, as an authority in favor of an implied exception. In that case a fiduciary relation existed between the parties, McMullen being in fact an agent. He had control of the business and funds of the association and his position made it easy for him to cover 'up the fraudulent conversion of the funds. It was his duty to speak and disclose the actual condition, but because of his fraudulent acts and concealment the association did not learn of the breach of trust and the wrongs done for a considerable time. The relation of trust and confidence placed that case in another class, wherein the general rule of equity applies, that the statute of limitations does not begin to run until the breach of trust or default in performance of duties is brought to the knowledge of the principal.
It follows from what has been said that the district court was in error in sustaining the petition of .the grain company.
Concurrence Opinion
(dissenting) : The writer is unable to reach this conclusion. As the court has decided that there are no exceptions to the statute of limi
One who fraudulently conceals the wrong inflicted, and thus prevents another from beginning an action, ought not to be allowed to avail himself of his wrong and thus defeat the action of the injured party. This doctrine was announced in the early case of Voss v. Bachop, 5 Kan. 59, where it was held that a party may be estopped by his own acts from setting up the statute of limitations, and that where the delay in bringing an action is caused by the wrong of the defendant, and not by the laches of the plaintiff, the defendant cannot claim the protection of the statute. In the other Kansas cases cited the point we have here was not directly drawn into question or determined, except in McMullen v. Loan Association, supra. There, in an action on a written obligation, it was held that fraudulent concealment of the wrong postponed, the running of the statute till the plaintiff discovered or should have known of the wrong. The averments in the petition in this case are sufficient as against a demurrer to charge a fraudulent concealment. It was alleged that the discriminations against the plaintiff were covertly and fraudulently made, and that they were concealed by plaintiff until less than eighteen months before the commencement of the action. The averment of the
There .is great force in the argument that the making of some exceptions by the legislature indicates that no others were contemplated. Nevertheless, exceptions not mentioned in the statute are recognized and applied. No exceptions are named where 'the state is a party, and yet the statute of limitations will ■not avail as against an action brought by the state. Other exceptions are implied' where parties are disabled by law from instituting an action. To hold that the fraudulent concealment of a wrong done by defendant will prevent him from claiming the protection of the statute of limitations cannot be regarded as the creation of an exception to the statute. It is rather a rule of interpretation, by which it is held that the legislature did not contemplate that one who committed a wrong and fraudulently concealed it should invoke the protection of a statute designed to ’prevent fraud. It is the application of the principle that no one can avail himself of his own wrong and fraud to obtain an advantage over another in a court of justice, a principle applicable in the enforcement of all statutes and in the use of all remedies. Speaking of that statute, the supreme court of Rhode Island said :
“It was clearly not intended to thwart the fundamental maxim that no one may take advantage of his
There is a general agreement of the authorities that the fraudulent concealment of a cause of action on the part of the defendant will prevent the running of the statute in his favor when a proceeding is brought against him in a court of equity, and no reason is seen why the same rule should not apply in all actions id this state. The' distinctions between actions at law and suits in equity have been abolished, and statutes of limitation are to be interpreted and applied according to equitable principles, whatever the character of the action, because such statutes operate upon the cause and not upon the form of action. So it was said in McMullen v. Loan Association, supra, that the general trend of authority in this country and in England, is to apply the rule to actions at law as well as suits in equity, and that to hold that a party could plead a statute of limitations to protect a wrong committed and concealed by him until the period of limitation had expired would be to make a law designed to prevent fraud the means by which to make it successful and secure." It is true the statute of limitations is not prolonged by a mere want of knowledge that an action in favor of a party has accrued. But there is
Some of the authorities tending to sustain these views are : Bree against Holbech, 2 Doug. 654a; Granger against George, 5 B. & C. 149; Gibbs v. Guild, 8 Q. B. D. 296, L. R. 9 Q. B. 59 ; Clark against Hougham, 2 B. & C. 149 ; Short against M’Carthy, 3 B. & A. 626 ; Sherwood v. Sutton, 5 Mason, 143, Fed. Cas. No. 12,782; First Massachusetts Turnpike v. Field et al., 3 Mass. 201, 3 Am. Dec. 124; Homer v. Fish, 1 Pick. 435, 11 Am. Dec. 218 ; Welles v. Fish, 3 id. 73 ; Bishop v. Little, 3 Greenl. 405 ; Cole v. McGlathry, 9 Me. 131; McKown v. Whitmore, 31 id. 448 ; Thurston v. Lowder, 40 id. 197 ; Pennock v. Freeman, 1 Watts, 401 ; Harrisburg Bank v. Forster, 8 id. 12 ; Brisker v. Lightner’s Executor, 40 Pa. St. 199 ; Morgan v. Tener, 83 id. 305 ; Lewey, Appellant, v. Fricke Coke Co., 166 id. 536, 31 Atl. 261, 28 L. R. A. 283, 45 Am. St. Rep. 684; Jones v. Conoway and wife et al., Ex’rs of Rees, 4 Yeates, 109; Persons v. Jones, 12 Ga. 371, 58 Am. Dec. 476 ; Snodgrass v. Br. Branch Bank at Decatur, 25 Ala. 161, 60 Am. Dec. 505, and note ; Alvis v. Oglesby, 87 Tenn. 172, 10 S. W. 313 ; Herndon v. Lewis et al., 36 S. W. (Tenn.) 953 ; Peck v. The Bank of America, 16 R. I. 710, 19 Atl. 369, 7 L. R. A. 826; Reynolds v. Hennessy, 17 id. 169, 20 Atl. 307, 23 Atl. 639 ; The District Township of Boomer v. French, 40 Iowa, 601; Bradford v. McCormick, 71 id. 129, 32 N. W. 93 ; Carrier v. The Chicago, R. I. & P. Ry. Co., 79 id. 80, 44 N. W. 203, 6 L. R. A. 799; Cook, etc., v. Chicago etc. Ry. Co., 81 id. 551, 46 N. W. 1080, 9 L. R. A. 764, 25 Am. St. Rep. 512; Munson v. Hallowell, 26 Tex. 475, 84 Am. Dec. 582; Bonner v. McCreary, 35 S. W. (Tex.) 197 ; Bailey v. Glover, 21
The rule established by the court, however, determines the insufficiency of the first count of the petition, and, therefore, the decision first made as to the ruling on that count will be set aside. Without any difference of opinion, the court held, and still holds, the averments of the second and third counts of the petition to be insufficient.
The result of our determination is that our former judgment will be modified as to the first count of the petition, and the judgment of the district court will be reversed and the cause remanded for further proceedings. 1
Concurrence Opinion
(concurring specially) : I agree with the conclusion reached by the court, but desire to add that I do not think the allegations of the petition in this case are such as to raise the question whether the operation of the statute of limitations may be postponed by the fraudulent concealment by defendant of circumstances without knowledge of which plaintiff could not know of the existence of his cause of action.
