Gates v. Powell , 77 Mont. 554 ( 1926 )

I cannot agree with what is said by my learned associate with respect to the statute of limitations. The general rule announced is correctly stated, but in my opinion we are not dealing with a case which comes within the general rule, but with a case with regard to which the legislature has provided a special rule for our guidance, by the enactment of section 9058, quoted in the opinion. As, under that section, "when a demand is necessary," the period of the statute must be computed from the time "when the right to make the demand is complete," a discussion of when plaintiff's right of action accrued is foreign to the question to be determined.

The general rule announced is in effect: "Except where, as is the case in several of the states, provision is made in the statute that when a demand is necessary before an action can be brought it shall be deemed to have been made at the time when the right to make the demand accrued * * * such a provision exists in the statutes of Tennessee (section 2780); New York (section 410); and Alabama (section 3241)." (1 Wood on Limitations, 2d ed., sec. 118.)

Our section was adopted verbatim from New York, and long before its adoption the supreme court of that state held: "The clear construction of that provision of the Code is that, in the absence of any agreement or understanding" with respect to the time of "repayment of moneys deposited, or a return of property delivered, the lapse of * * * [the statutory period applicable after the deposit or delivery] operates to defeat any claim." (Adams v. Olin, 140 N.Y. 150, 35 N.E. 448.)

Conceding that something in the nature of a bailment was created, the creation of such a trust could not take the case out of the operation of the statute, as "to hold otherwise would put it in the power of the party to destroy the beneficial effect of the statute." (Newsom v. County of Bartholomew, 103 Ind. 526,3 N.E. 163.)

Under the plain mandate of the statute, although the plaintiff was entitled to the property, if it was hers, as the defendant came rightfully into its possession, a demand was necessary before action could be commenced, but the statute began to run from the time "when her right to make the demand was complete," and not from the time when her right of action accrued by the making of the demand. (Brown v. Bronson, 93 A.D. 312,87 N Y Supp. 872; Duer v. Twelfth St. Church (City Ct. Brook.), 10 N.Y. Supp. 526; Wheeler v.Breslin, 47 Misc. Rep. 507, 95 N.Y. Supp. 966.)

There was no agreement or understanding between the parties. Plaintiff left the house without consulting defendant, She did not rely upon the fiduciary relation existing between them, for she then intended to, and did immediately, commence divorce proceedings, but, if by reason of the fiduciary relation existing, the case comes within the first exception to the rule announced in section 9058, still the accrual of her right of action is immaterial, as the statute runs from the time when she has actual knowledge of the facts upon which her right to make the demand depends, and she had such knowledge from the time she left the house and commenced her divorce proceeding.

She made her demand within time, but, as she waited thereafter until more than two years had elapsed from the time she left the property with her husband, in my opinion her action was barred, as, under section 9058, she must both make her demand and commence her action within the statutory period.

We may not agree with the policy of this statute, the like of which exists in so few states in the Union, but it is not the province of the court to repeal laws or to "pervert the purpose of a statute to prevent an unjust result." (In re Elm Street,etc., 208 A.D. 844, 204 N.Y. Supp. 906.) Our authority extends only to the interpretation and construction of the enactments of our co-ordinate legislative branch of the state government, regardless of the effect of a decision on the individual or as a precedent.

Holding these views, it is my opinion that the cause should be remanded, with direction to dismiss the action.

Rehearing denied December 29, 1926.