Cornell v. Edsen

• Decision Date: 26 March 1914
• Citation: 139 P. 602,78 Wash. 662
• Parties: CORNELL v. EDSEN.
• Court: Washington Supreme Court

139 P. 602

78 Wash. 662

CORNELL v. EDSEN.

Supreme Court of Washington

March 26, 1914

Department 2. Appeal from Superior Court, King County; H. A. P. Myers Judge.

Action by Charles Cornell against E. P. Edsen. From a judgment on the pleadings, for defendant, plaintiff appeals. Affirmed.

R. E Thompson, Jr., of Seattle, for appellant.

E. P Edsen and Edward Judd, both of Seattle, for respondent.

MORRIS J.

Appeal from an order granting judgment on the pleadings. The complaint recites that the respondent is an attorney, and that on December 1, 1904, appellant, having a good cause of action against an insurance company for loss sustained under one of its policies, employed respondent to commence an action against the insurance company; that respondent, as such attorney, commenced such action, and that on May 15, 1905, the same came on to be heard in the superior court for King county; that the trial judge, after hearing the cause upon its merits, continued the same for further advisement and that while said cause was so being held by the trial judge, and before any decision had been announced, the respondent, without the knowledge or consent of appellant, did on July 20, 1905, dismiss the cause of action without prejudice; that appellant did not obtain knowledge of such dismissal until four weeks prior to the commencement of this action, but at all times believed, as he was led by respondent to believe, that the trial judge had decided his cause of action adversely to him; that his cause of action against the insurance company is now barred by lapse of time; and that, on account of the misrepresentation of respondent, he has suffered a loss of his cause of action, to his damage in the sum of $560, for which judgment is demanded.

Two defenses were set up by answer, but it is evident that the one given effect in the ruling complained of is that which pleads the statute of limitation. Appellant seeks to avoid the statute by asserting that the cause of action is based upon fraud, and the statute would not begin to run until after its discovery, founding his argument upon section 159, subd. 4, Rem. & Bal. Code, providing that actions for relief upon the ground of fraud are barred within three years, but that the cause of action in such case shall not be deemed to have accrued until the discovery by the aggrieved party of the facts constituting the fraud. This provision has no application to the case presented, because it is not 'an action for relief upon the ground of fraud.' We have held that this provision 'has reference to suits by parties to contracts who are asking to be relieved from contracts that they were fraudulently induced to make, as where a deed has been fraudulently obtained, and suits of that character where fraud is the substantive cause of the action.' Wagner v. Law, 3 Wash. 500, 28 P. 1109, 29 P. 927, 15 L. R. A. 784, 28 Am. St. Rep. 56. To the same effect is Morgan v. Morgan, 10 Wash. 99, 38 P. 1054, citing authorities interpreting like statutes. The appellant is not here seeking to relieve himself of the burden of some obligation or liability he was induced to assume or undertake by reason of some fraudulent act on the part of respondent, and which he would not have assumed or undertaken except for such fraudulent act. There is here no prayer addressed to a court of equity for relief because of fraud or misrepresentation. It is cases of this character that come within the meaning of the statute. It is said in Brown v. Cloud County Bank, 2 Kan. App. 352, 42 P. 593, in referring to the bar of this statute: 'This limitation applied in express terms to 'an action for relief on the ground of fraud.' This cannot be held to apply to every case wherein a fraudulent transaction may be, either directly or incidentally, inquired into. It must be a case where the party against whom the statute is urged as a bar is seeking relief to which he claims himself entitled because of the fraud of the opposite party. In other words, the fraud must be a part of the substantive cause of action on which the right to relief is founded, and without which no cause of action exists.'

All that appellant is here seeking is damages claimed to have been suffered because of the wrongful act of respondent. The action is plainly...