Christensen Grain, Inc. v. Garden City Co-op., Equity Exchange

• Decision Date: 11 April 1964
• Docket Number: Nos. 43585-,s. 43585-
• Parties: CHRISTENSEN GRAIN, INC., Appellant, v. The GARDEN CITY COOPERATIVE, EQUITY EXCHANGE, Appellee. CHRISTENSEN GRAIN, INC., Appellant, v. BROOKOVER FEED YARDS, INC., Appellee. CHRISTENSEN GRAIN, INC., Appellant, v. SEABOARD ALLIED MILLING CORPORATION, Appellee. to 43587.
• Court: Kansas Supreme Court

Page 81

391 P.2d 81

192 Kan. 785

CHRISTENSEN GRAIN, INC., Appellant, v. The GARDEN CITY COOPERATIVE, EQUITY EXCHANGE, Appellee.

CHRISTENSEN GRAIN, INC., Appellant, v. BROOKOVER FEED YARDS, INC., Appellee.

CHRISTENSEN GRAIN, INC., Appellant, v. SEABOARD ALLIED MILLING CORPORATION, Appellee.

Nos. 43585-to 43587.

Supreme Court of Kansas.

April 11, 1964.

Syllabus by the Court

1. In an action to recover the value of stolen goods from a party who converts them through an innocent purchase, the statute of limitations begins to run from the time of the conversion, not from the time the owner discovers the innocent purchaser to whom the goods were sold.

2. Daniel v. McLucas, 8 Kan.App. 299, 55 P. 680, which may be properly construed as holding contrary to the views expressed in paragraph 1 of the syllabus of this opinion is disapproved and overruled.

Dale E. Saffels, Garden City, argued the cause, Lloyd H. Haag, Garden City, with him on the briefs, for appellant.

Chas. Vance, Liberal, argued the cause, H. Hobble, Jr., Chester A. Nordling and Gene H. Sharp, Liberal, with him on the briefs, for appellee Brookover Feed Yards, Inc.

Harold Irwin, S. J. Glaves, Orval L. Fisher and Clarence N. Holeman, Wichita, on the briefs for appellee Garden City Cooperative Equity Exchange.

Frank S. Hodge and H. Newlin Reynolds, Hutchinson, on the briefs for appellee Seaboard Allied Milling Corp.

PARKER, Chief Justice.

These appeals present the question as to when the statute of limitations commences to run against the owner of stolen grain who seeks recovery against an innocent purchaser.

Three separate cases were filed in the district court of Finney County by the same plaintiff against three separate defendants with petitions presenting substantially the same facts. The district court made the same ruling in each of the cases with respect to pleadings. Plaintiff filed three separate appeals from such rulings and three separate abstracts with this court. Thereupon counsel for the respective parties filed a joint motion requesting that the cases be consolidated for appellate review and, upon the granting of such motion, stipulated that the decision in Case No. 43,585 would control the decisions in Cases Nos. 43,586 and 43,587. Therefore we proceed in this opinion on that premise.

The controlling facts are disclosed by the amended petition, allegations of which will be highly summarized.

The plaintiff, Christensen Grain, Inc., owns and operates a public warehouse for the storage, purchase and sale of grain. During 1959, 1960, and the first part of 1961, a trusted employee stole grain from plaintiff's public warehouse on numerous occasions. This grain, through the help of a farmer in the community, was sold by the employee and the farmer to grain elevators and feed yards in the vicinity, including the defendant, The Garden City Cooperative Equity Exchange. Plaintiff did not know that the grain was stolen or that part of it was sold to the defendant until May 2, 1961. The amended petition further alleges that written demand was made for the value of the grain on October 19, 1961, and prays for judgment for the value of the grain sold to the defendant plus interest. No claim is made in the amended petition that the defendant knew, or had reason to believe, the grain purchased by it was stolen grain or that fraud was involved in acquiring it.

With the amended petition in form, as heretofore indicated, defendant demurred thereto on the ground that pleading failed to state a cause of action. After a hearing the district court announced its ruling on the demurrer which, according to the journal entry of record, reads:

'* * * The court, having heard the argument of counsel, doth sustain said demurrer as to all of the various conversions therein alleged which occurred more than two years prior to the filing of this suit and doth overrule said demurrer as to all of said alleged conversions which occurred less than two years prior to the filing of this suit.'

Thereupon plaintiff perfected the instant appeal.

At the outset it may be stated that counsel for the respective parties, with commendable candor, have impliedly, for not expressly, conceded certain matters, both in their briefs and on oral argument, which materially simplify a proper understanding of the all-decisive issue here involved. These matters may be stated thus:

1. That the instant action is founded in tort, not on implied contract, and that the two-year statute of limitations (G.S.1949, 60-306, Third.) applies.

2. That the appellee did not know, or had no reason to believe, that the grain in question was stolen and was in fact an innocent purchaser for value of such grain.

3. That, although the record is somewhat indefinite, the action was commenced in the district court during the latter part of October, 1961. With specific reference to this particular point it may be said our review of the record leads to the conclusion it was commenced on October 31, 1961.

Notwithstanding what has just been stated specific dates are not important. The parties present a single question for determination, i. e., when does the statute of limitations begin to run in an action to recover the value of stolen property from an innocent purchaser?

The appellant contends that the statute does not commence to run until the owner of the stolen property discovers the innocent purchaser to whom the stolen property was sold.

On the other hand the appellee contends that the statute commenced to run against the appellee at the time it committed the tort, i. e., made the innocent purchase of the stolen grain.

After careful consideration of all arguments advanced by the parties in support of their respective positions we are constrained to agree with appellee's contention.

The applicable provision of the statute of limitations is to be found in G.S.1949, 60-306, Third. It provides:

'Within two years: An action for trespass upon real property; an action for taking, detaining or injuring personal property, including actions for the specific recovery of personal property; an action for injury to the rights of another, not arising on contract, and not hereinafter enumerated; an action for relief on the ground of fraud--that cause of action in such case shall not be deemed to have accrued until the discovery of the fraud.' (Emphasis supplied.)

An action for the taking of personal property (conversion) must be brought within two years from the time of the conversion. See Smith v. Bridgeport Machine Co., 151 Kan. 444, 446, 100 P.2d 65; Preston v. Shields, 159 Kan. 575, 156 P.2d 543.

The third subdivision of G.S.1949, 60-306, contains but one exception, i. e., a cause of action for fraud shall not be deemed to have accrued until the fraud is discovered.

This court has held on numerous occasions that where the legislature has made a specific exception to a statute of limitations any exceptions not mentioned are excluded by implication.

In Railway Co. v. Atchison Grain Co., 68 Kan. 585, 75 P. 1051, we held:

'The enumeration by the Legislature of specific exceptions to a statute of limitations by implication excludes all others.' (Sy1. p1.)

The above case was approved in Regier v. Amerada Petroleum Corp., 139 Kan. 177, 30 P.2d 136, which reads:

'It is said that there is a radical difference of judicial opinion upon the subject, but the court determined that the rule adopted should be the one enforced in Kansas. In Baxter v. Krause, 79 Kan. 851, 101 P. 467, Railway Company v. [Atchison] Grain Co., is cited with approval on the theory that the courts will not ingraft a new exception upon a statute of limitations; exceptions by implication being not favored. The case is cited again in Caspar v. Lewin, 82 Kan. 604, 109 P. 657, 666, wherein the case is referred to as follows:

"It is the law in this state that when the language of a statute is plain and unambiguous there is no room left for a judicial interpretation which will change the effect of the language employed. Ayers v. Comm'rs of Trego County, 37 Kan. 240, 15 P. 229. This principle has been applied in some striking instances. Thus, in Railway Co. v. [Atchison] Grain Co., 68 Kan. 585, 72 P. 1051 , the court refused to read into the statute of limitations an exception to meet the fraudulent concealment of a breach of contract.' (p. 627.)

'In Rucker v. Hagar et al., 117 Kan. 76, 230 P. 70, 71, the court said:

"Warranty sounds in contract, fraud sounds in tort, and liability predicated on breach of warranty is contract and not tort liability. The assertion that plaintiffs could sue on the contract of warranty within two years after discovery of the fraud must mean that they could sue on the contract of warranty within two years after discovery of the breach of warranty, and consequently does not state the law. The subject received careful consideration in the case of Railway Co. v. [Atchison] Grain Co., 68 Kan. 585, 75 P. 1051, 1 Ann.Cas. 639.' (p. 79.)

'Later cases cited and approving the rule of Railway Company v. [Atchison] Grain Company, supra, are Blitz v. Matzger, 119 Kan. 760, 241 P. 259; Emanuel Home v. Bergin, 127 Kan. 593, 274 P. 284; City of Coffeyville v. Metcalf, 134 Kan. 361, 5 P.2d 807.' (139 Kan. pp. 182, 183, 30 P.2d p. 139.)

The same question was again discussed...