DocketNumber: No. 5860.
Citation Numbers: 12 P.2d 774, 52 Idaho 200
Judges: LEEPER, J.
Filed Date: 6/24/1932
Status: Precedential
Modified Date: 5/5/2017
The complaint charges the defendant bank with wrongfully acquiring certain funds of the plaintiff district, the wrongful nature of the taking having heretofore been established in two companion cases recently decided by this court. (Common SchoolDist. No. 27 v. Twin Falls Nat. Bank,
This action is based upon a wrongful conversion, no matter what form the action may take. Appellant takes the position that its original complaint sounds in contract, and seeks to make this more certain by the proposed amendment. It is true that plaintiff may either sue in tort or may waive the tort and sue upon the implied contract for money had and received. The election is immaterial so far as an application of the appropriate statute of limitations is concerned, since the substance of the action governs the latter consideration and not the form. Plaintiff alleges in detail the facts of the conversion perpetrated by the defendant, and seeks recovery therefor. Whether the original complaint *Page 203 sounded in tort or in contract, the applicable statute of limitations is C. S., sec. 6611, which provides, inter alia,
"Within three years: . . . .
"3. An action for taking, detaining or injuring any goods or chattels, including actions for the specific recovery of personal property.
"4. An action for relief on the ground of fraud or mistake. The cause of action in such case not to be deemed to have accrued until the discovery, by the aggrieved party, of the facts constituting the fraud or mistake."
See Havird v. Lung,
Construing correlative statutes, the court of appeals of California said this:
"No doubt the form of the action is one upon an implied contract, but the criterion for determining the particular statute of limitation applicable is, not the form of the action, but the substance of it and the nature of the right, the violation of which creates the right of action. This is particularly true in those jurisdictions where common-law forms of action have been abolished. Bates v. Bates Machinery Co.,
"The substance and nature of the right which gave respondent a cause of action in this case was not contract. Appellant never in fact and reality agreed to pay back the money received for the stock. The contract implied by law is merely a fiction of law and does not, therefore, go to the substance of this cause of action. A fiction of law is introduced to promote justice, and not to work a wrong contrary to the real truth and substance of the thing." (MacDonald v. Reich Lievre,
This rule has been sustained in a long line of California cases decided both before and after the foregoing, and hereafter noted.
The statute says "an action." It does not place the limitation upon an action in tort, but upon any action based upon a wrongful taking, detaining or injuring goods or chattels, or for relief on the ground of fraud or mistake. Any other conclusion would lead to an anomalous situation, with both a three-year and a four-year limitation applying to the same action, depending merely upon the form in which the pleader chose to cast his complaint. While there is conflict in the authorities, the rule which we have announced appears to be sustained both by the weight of authority and the better reasoning.1 *Page 205
In this view of the case it becomes unnecessary to determine whether or not the amendment definitely charging a breach of an implied contract offered by appellant was erroneously rejected. The appellant also sought to amend by alleging that it did not discover the conversion until within the three-year period. The fact of discovery becomes controlling only when the action is based upon the ground of fraud or mistake, and does not have any application to a mere tortious taking which does not involve fraud in its commonly accepted significance.
"This is not 'an action for relief on the ground of fraud or mistake' under the fourth subdivision of section 4054 (Now C. S., Sec. 6611), in which case the cause of action is 'not to be deemed to have accrued until the discovery by *Page 206 the aggrieved party of the facts constituting the fraud or mistake,' as this subdivision applies only to actions for fraud or mistake within the common acceptance of this term, . . ." (Havird v. Lung, supra.)
This is not an action for fraud or mistake within the common acceptance of those terms. It is an action for a misappropriation, whatever be its form, and the subject matter of the amendment was immaterial for any purpose. Counsel for appellant has called our attention to Bannock County v. Bell,
The judgment is affirmed. Costs to respondent.
Givens and Varian, JJ., and Sutton, D.J., concur.
Budge, J., concurs in conclusions reached.
CALIFORNIA: Gum v. Allen,
ILLINOIS: Handtoffski v. Chicago Consol. Traction Co.,
IOWA: Wilson v. Stever,
KANSAS: Ericson v. Charles,
KENTUCKY: Howard v. Middlesborough Hospital,
LOUISIANA: Stephenson v. New Orleans Ry. Light Co.,
NEW YORK: Monahan v. Devinney,
OKLAHOMA: Seanor v. Browne,
PENNSYLVANIA: Landes v. Borough of Norristown, (Pa. Supp.) 13 A. 189.
RHODE ISLAND: Griffin v. Woodhead,
TENNESSEE: Bodne v. Austin,
TEXAS: Kelly v. Western Union Tel. Co.,
VIRGINIA: Birmingham v. Chesapeake O. Ry. Co.,
WISCONSIN: Klingbeil v. Saucerman,
The minority rule is expressed in the following cases:
UNITED STATES: Payne v. Ostrus,
ALABAMA: Sellers v. Noah,
ARKANSAS: St. Louis, I. M. S. Ry. Co. v. Mynott,
CONNECTICUT: Hickey v. Slattery,
GEORGIA: Patterson v. Augusta S. Ry. Co.,
ILLINOIS: Keirsey v. McNeemer,
INDIANA: Staley v. Jameson,
IOWA: Matthys v. Donelson,
KANSAS: Trousdale v. American,
KENTUCKY: Menefee v. Alexander,
LOUISIANA: American Heating Plumbing Co. v. West EndCountry Club,
MINNESOTA: Burke v. Mayland,
MONTANA: Stagg v. Stagg,
MICHIGAN: Christy v. Farlin,
NEW YORK: Williams v. Flagg Storage Warehouse Co., 128 Misc Rep. 566,
OHIO: Gilette v. Tucker,
TENNESSEE: Whitaker v. Poston,
Sellers v. Noah , 209 Ala. 103 ( 1923 )
Bell v. Bank of California , 153 Cal. 234 ( 1908 )
Basler v. Sacramento Etc. Ry. Co. , 166 Cal. 33 ( 1913 )
Krebenios v. Lindauer , 175 Cal. 431 ( 1917 )
Union Tool Co. v. Farmers Etc. Nat. Bk. , 192 Cal. 40 ( 1923 )
Miller Lux v. Batz , 131 Cal. 402 ( 1901 )
MacDonald v. Reich Lievre, Inc. , 100 Cal. App. 736 ( 1929 )
Wetzel v. Pius , 78 Cal. App. 104 ( 1926 )
Kelsey v. Tracy , 42 Cal. App. 409 ( 1919 )
Pacific Nat. Bank v. Corona Nat. Bank , 113 Cal. App. 366 ( 1931 )
Gum v. Allen , 119 Cal. App. 293 ( 1931 )
Marty v. Somers , 35 Cal. App. 182 ( 1917 )
Harding v. Liberty Hospital Corp. , 177 Cal. 520 ( 1918 )
Lowe v. Ozmun , 137 Cal. 257 ( 1902 )
Allsopp v. Joshua Hendy Machine Works , 5 Cal. App. 228 ( 1907 )
School Dist. No. 27 v. Twin Falls Nat. Bk. , 50 Idaho 668 ( 1931 )
Prewett v. First Nat. Bank of Hagerman , 45 Idaho 451 ( 1928 )
Hickey v. Slattery , 103 Conn. 716 ( 1926 )
Wilson v. Stever , 202 Iowa 1396 ( 1927 )