95 P. 520 | Utah | 1908
On the 27th day of November, 1889, E. A. Tripp, of Salt Lake City, Utah, representing himself as the agent of his brother, R. B. Tripp, entered into a written contract to sell
No error is assigned because of the failure of the court to find on the issues involving the merits of the case. As stated by counsel for appellant- in their brief: “It will be observed that the court passed upon the sole question whether the cause of action 'was barred, eliminating all other questions respecting the merits of the case. . . . The court in this case did not pass upon that phase of the case at all (referring to the merits), but simply based its decision upon the one, question, viz., whether or not the cause of action, if any there was, was barred by the statute of limitations.” And again they say: “There is, therefore, nothing for this court to consider1 — in fact, nothing it can legally pass upon — except this question.” Counsel for appellant contend that “the contract in question is a Utah contract, to be performed in Utah; that
“If when the cause of action accrues against a person, he is out of the state, the action may be commenced within the term herein limited after his return to the state; and if after the cause of action accrues he depart from the state, the time of his absence is not part of the time limited for the commencement of the action.”
In the ease of Burnes v. Crane, 1 Utah 179, this court, in harmony with the great weight of authority, held that the word “return” in section 2888, supra, as applied to absent debtors, includes nonresidents as well as citizens of the state who have gone abroad and returned to the state. The words “return to the state” are held to be equivalent to “come into the state:” (25 Cyc. 1227-1231; 19 A. & E. Ency. Law, 233; Buswell, Lim. & Adv. Poss. 117; Weber v. Yancy, 7 Wash. 84, 34 Pac. 473; Burrows v. French, 34 S. C. 165, 13 S. E. 355, 27 Am. St. Rep. 811; Wood v. Bissell, 108 Ind. 229, 9 N. E. 425; Stanley v. Stanley, 47 Ohio St. 225, 24 N. E. 493, 8 L. R. A. 333, 21 Am. St. Rep. 806; Whitcomb v. Keator, 59 Wis. 609, 18 N. W. 469; Parker v. Kelly, 61 Wis. 552, 21 N. W. 539.)
Respondent, however, insists that the cause of action, if any existed in favor of plaintiff, arose in South Dakota, and the action, being barred by the statutes of that state, cannot, under section 2899, Rev. St. 1898, be maintained in this state. This section provides:
“When a cause of action has arisen in another state or territory, or in a foreign country, and by the laws thereof an action thereon cannot there be maintained against a person by reason of the lapse of time, an action thereon shall not be maintained against him in this state, except*33 m favor of one who has been a citizen of this state and who has held the cause of action from the time it accrued.”
It is conceded that appellant acquired the claim upon which he bases his right of action by virtue of an assignment after the cause of action had accrued thereon. The question therefore arises, does appellant come within the exception mentioned in section 2899? In other words, has he, within the meaning of the statute, held the cause of action from the time it accrued ? It is contended on behalf of appellant that the purpose of the exception is to prevent the statute from running against causes of action generally which are held by citizens of this state who were citizens at the time such actions accrued, regardless of whether they acquired the causes of action before or after they arose, and that therefore appellant comes clearly within the spirit and intent of the exception. The language of the statute is plain, and free from ambiguity. In order to bring a party within the exception, two things must be shown to exist: First, that the party relying upon the exception was, at the time the cause of action arose, and ever since has been, a citizen of this state; and, second, that he had held the cause of action since it accrued. It being conceded that plaintiff acquired his cause of action by assignment after the cause of action accrued, he therefore does not come within the exception. The contention that the exception was intended to include all citizens of this state as a class, and that it was not made in favor of any particular set or class of citizens, and that the statute should be so construed, cannot, under the great weight of authority, prevail. While the general rule is that statutes of limitation generally are to be liberally construed, it is also a well-recognized doctrine that, when such statutes contain provisions excepting certain persons or classes from the operation of the statutes, those exceptions are to be strictly construed. And courts will not by construction extend the exception so as to include persons not expressly mentioned therein. Black, in his work on Interpretation of Laws, p. 332, referring to statutes of limitation, says:
*34 “But if the' statute itself is to be construed liberally, necessarily it follows that the exceptions which it makes in favor of particular persons or classes are to be construed with strictness. Accordingly the doctrine is now very fully established that implied and equitable exceptions are not to be ingrafted upon the statute of limitations where the Legislature has not made the exception in express words in the statute; the courts cannot allow them on the ground that they are within the reason or equity of the statute.”
In McIver v. Ragan, 2 Wheat. 24, 4 L. Ed. 175, the Supreme Court of the United States, speaking through Chief Justice Marshall, says:
“Wherever the situation of a 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. It would be going far for this court to add to those exceptions. It is admitted that the case of the plaintiff is not within them, but it is contended to be within the same equity with those which have been taken out of the statute.”
Tbe court then refers to the difficulties to plaintiff and parties similarly situated because of the strict construction placed on the statute by the trial court, and says:
“If this difficulty be produced by the legislative power, the same power might provide a remedy; but courts cannot, on that account, insert in the statute of limitations an exception which the statute does not contain.” (25 Cyc. 990; Allen v. Mille, 17 Wend. (N. Y.) 202; Bedell v. Janney, 9 Ill. 193; Favorite v. Booher’s Adm’r, 17 Ohio St. 548; Dozier v. Ellis, 28 Miss. 730; Sacia v. De Graaf, 1 Cow. (N. Y.) 356; Amy v. City (C. C.) 22 Fed. 418; Pryor v. Ryburn, 16 Ark. 671; Buswell, Lim. & Adv. Poss., 16.)
This brings us to the decisive question presented by this appeal, namely: Did the alleged cause of action accrue in this state, or did it arise in South Dakota ? If it arose in the latter state, it follows, from the construction we have given the exception found in section 2890, Rev. St. 1898, that the action is barred; but if the cause of action accrued in Utah, it is not barred, and the judgment of the trial court must be reversed. Counsel for respondent contend that the term “when a cause of action has arisen,” as used in section 2899, Rev. St. 1898, should be construed as meaning when the courts of a state have jurisdiction of the. particular subject-
“A primary right possessed by the plaintiff and a corresponding primary duty devolving upon the defendant; a delict or wrong done by the defendant which consisted in a breach of such primary right and duty; a remedial right in favor of the plaintiff, and a remedial duty resting on the defendant springing from the delict; and, finally, the remedy or relief itself. Every action, however complicated or however simple, must contain these essential elements. Of these elements the primary right and duty and the delict or wrong combined constitute the cause of action.”
And again, in section 775 of the same work, the author says:
“The ‘cause of action’ consists in, first, the primary right, and the facts from which it flows; and, second, the breach of that right, and the facts constituting such breach. These, taken together, create a remedial right and are the cause of action.”
In the case of Bach v. Brown, 17 Utah 435, 63 Pac. 991, in an opinion written by Mr. Justice Bartch, it is said:
“ ‘Cause of action,’ in the sense here indicated, is synonymous with ‘right of action,’ and includes the omission or act without which no right of recovery could exist. In this ease it includes-the omission which constituted the violation of duty agreed to be discharged, and arose at the*36 time when and place where that duty was to be discharged . . . That which gives cause for complaint is the breach. Hence, whenever the breach occurs, whether by commission or omission, the cause of action arises; and, when the contract is to be performed at a place stipulated, the act or omission, which is the ground work for complaint, will be regarded as having occurred at that place.” (Bliss, Code Pleading, sec 113.)
Applying the foregoing principles of law, as announced by such able writers as Pomeroy and Bliss, and as declared by this court in Bach v. Brown, supra, it necessarily follows, as we have hereinbefore stated, that the wrong out of which the cause of action alleged in the complaint arose was defendant’s failure to perform his part of the agreement. That is, it was the wrong done, the 'legal duty violated by defendant in omitting to carry out his part of the contract at. the place where the contract was to be performed. The contract in this case does not fix the place of performance. The court, however, found that the contract was- made in South Dakota, and we think the record supports the finding. It appears that when E. A. Tripp drafted and signed the contract he had no power of attorney or authority of any kind from his brother, B. B. Tripp, to make the contract. The record shows that the contract was at no time signed by Groesbeck. After the contract was drawn and signed by E. A. Tripp, he immediately forwarded it by mail to K. B. Tripp at his home in South Dakota and informed him of what had been done in the premises. B. B. Tripp replied by letter assenting to the contract. . The case is therefore reduced to these propositions: A contract is written in. Utah and is signed on behalf of the vendor, who resides in South Dakota, by one who is wholly unauthorized to make or sign the contract Until the vendor signed the instrument purporting to be a contract, or assented to it, there was no contract. Until then the minds of the vendee and vendor did not meet, and the writing was but a mere offer or proposal. It matters not where the writing was drafted, whether in Utah or elsewhere. The question is not where was the contract drafted or written, but where was it made? It is an elementary principle of the law of contracts that the place where
It is also a well-recognized rule that, when no place of performance is fixed by the contract, it will be presumed that the contract is to be performed where made. (3 Page on Contracts, 1717; 9 Cyc. 669; Lewis v. Headley, 36 Ill. 433, 87 Am. Dec. 227; First Nat. Bank of Toledo v. Shaw, 61 N. Y. 294; Pritchard v. Norton, 106 U. S. 137, 1 Sup. Ct. 102, 27 L. Ed. 104; 22 A. & E. Enc. Law (2d Ed.) 1325, and cases cited in note 2.) Counsel for appellant concede this to be the law. But they contend that the contract was made in this state, and that it is a Utah contract; and from this premise, in their brief, they reason as follows: “There being nothing in the contract fixing any other place of performance, the law made it performable in Utah and nowhere else. If it was thus to be performed in Utah, a failure to perform any part must inevitably result in constituting a breach in Utah and not elsewhere. Erom this flows the logical result that a cause of action, if any arose at all, must have arisen in Utah and not elsewhere. Logically no other conclusion is possible.” (Citing Deseret Irr. Co. v. MeIntyre, 16 Utah 398, 52 Pac. 628, and Brown v. Bach, supra.) But the court found that the contract was made in South Dakota, and was therefore a South- Dakota contract, and, as we have stated, the record supports this finding. Therefore, applying the rule of law contended for by appellant, the correctness of which must be conceded, to the finding that the contract was made in South Dakota, it necessarily follows that the cause of action arose in that state and not in Utah. Hence the finding of the trial court, that the
The judgment is affirmed, with, costs.