OPINION
Givens,
J.
ON REHEARING
Respondents
sought a rehearing on the ground that the following
statements in the original opinion,
"The
sole point now at issue is therefore whether the complaint
states a cause of action, the other special grounds of
demurrer not having been ruled on are not before us for
consideration. (Rosa v. Devingenzo, 53 Ida. 213 at
216-17, 24 P.2d 1051.)"
* * * *
"The
allegations of fraud -- aside from the application of the
statute of limitations, which is not now before us and we do
not consider -- were sufficient as against a general
demurrer. (Just v. Idaho Canal Etc. Co., Ltd., supra
at 649; James v. P. B. Steifer Mining Co. (Cal.),
171 P. 117.)" were erroneous as contrary to and in
conflict with the settled and repeated pronouncements of this
court to the effect that if a judgment is sustainable on any
ground of demurrer interposed but not considered or passed on
by the trial court, it will be affirmed, as announced in
Gagnon v. St. Maries Light Etc. Co., Ltd.,
26 Ida. 87, 141 P. 88; Feehan v. Kendrick, 32 Ida.
220, 179 P. 507; Jorgenson v. Stirling, 35 Ida. 785,
209 P. 271; MacLeod v. Stelle, 43 Ida. 64, 249 P.
254; Wormward v. Brown, 50 Ida. 125, 294 P. 331;
Earhart v. Wright, 50 Ida. 270, 295 P. 630;
American Ben. v. United Ben., 63 Ida. 755, 120 P.2d
1010.)
A
re-hearing was granted and the point, though raised in
respondents' original brief, was more fully argued and
presented.
Appellant
counters with the proposition that because respondents did
not insist that the trial court consider and pass upon the
other grounds of demurrer, they were impliedly overruled,
even though the trial court expressly stated he did not pass
on them, and not being cross-appealed from are waived.
Of our
decisions appellant cites, Guthrie v. Phelan, 2 Ida.
95, 6 P. 107, did not consider the situations we have here,
namely, where one ground of demurrer was sustained and other grounds were specifically not considered.
There the court evidently deemed the party waived the entire
demurrer by not properly bringing, as a matter of practice,
the question to the court for review. The same is true in
United States v. Alexander, 2 Ida. 386, 17 P. 746.
In other words, the court was apparently not considering a
situation where one ground of demurrer had been sustained and
others overruled, but was treating the demurrer as an
entirety and the same evidently had been the practical
construction placed upon these cases in later pronouncements
by this court. Smith v. Clyne, 16 Ida. 466, 101 P.
819, applied Guthrie v. Phelan and
United States v. Alexander, supra, as to the
relative disposition of issues of law and and fact but did
not hold as contended by appellant that grounds of demurrer
not passed on as herein, are deemed abandoned. The latest
case cited by appellant, Eastern Idaho Loan & Trust
Company v. Blomberg, 62 Ida. 497, 113 P.2d 406, while
referring to Guthrie v. Phelan, and
United States v. Alexander, supra, did not apply the
rule as holding that the demurrer had been abandoned or
waived, but did consider grounds of demurrer not shown to
have been passed
on by the court below. While the court in the authorities
cited above and relied upon by respondent did not apparently
consider the rule appellant contends was announced in the
authorities cited by him, we cannot presume the court was
unmindful of those cases.
We have
therefore concluded the rule as announced in Gagnon v.
St. Maries Light Etc. Co., Ltd., supra at 91, and
re-asserted in one form or another in the above cases, urged
by respondent, namely that "if the demurrer was good on
one ground stated, it would be the duty of this court to
sustain the trial court even though he sustained the
erroneous ground", has become so well entrenched in our
jurisprudence that it should not be departed from.
The
other grounds of demurrer challenge the complaint as being
insufficient to avoid the statute of limitations.
Consequently,
it is necessary to examine the paragraphs of the complaint as
amended, which seek to avert the bar of the statute. They are
paragraphs XIII and XIII-A.
XIII
"That
the said R. E. Simpson, who was the owner of
the certificates of stock herein above described, and this
plaintiff, did not discover the fraud of the said officers,
directors and managing agents of the said Oakes and Company,
in purporting to convey said real property to the said The
Western Loan and Investment Company, and Eugene Looney, to
evade the payment of the par value of the certificates of
stock herein above described pursuant to the resolution of
the stockholders of said Oakes and Company, adopted between
February 1st, to February 7th, 1926, until on or about March
21st, 1941."
XIII-A
"That
the officers, directors and managing agents of the aforesaid
Oakes and Company, a corporation, and defendant, The Western
Loan and Investment Company, who were one and the same named
persons as alleged in paragraph XIII, of the Amended
Complaint, continued to manage, operate and control the
corporate affairs of the said Oakes and Company, a
corporation, from on or about February 1st, 1926, up to and
including November 30th, 1935, when its charter was forfeited
for non-payment of its annual corporation tax as alleged in
paragraph II, of the Amended Complaint, and thereafter from
November 30th, 1935, up to on or about March 21st, 1941, for
the purpose of carrying out the terms and provisions of the
resolution adopted from February 1st to February 7th, 1926,
viz; to apply the assets of the corporation to the retirement
of the capital stock of the corporation, including the stock
of plaintiff herein as described in paragraph IV, of the
Amended Complaint; and that pursuant to the terms of said
resolution, the aforesaid officers, directors and managing
agents of the said Oakes and Company, a Corporation, and the
defendant, The Western Loan and Investment Company, consented
that the assets of the said Oakes and Company, a Corporation,
including the real property herein described as Lot 16, Block
145, Twin Falls Townsite, Twin Falls County, Idaho, should be
applied to the retirement of the capital stock of the
corporation including the stock of the plaintiff herein above
described, which arrangement was consented to by R. E.
Simpson, predecessor of plaintiff and accepted by plaintiff;
that on or about March 21st, 1941, the defendants herein
refused to comply with the terms of said resolution, and
refused to apply the assets of the said Oakes and Company, a
Corporation, including the real property
herein last above described, to retire the capital stock of
plaintiff; that at no time prior thereto had defendants given
notice to R. E. Simpson, predecessor of plaintiff, or to
plaintiff, that the aforesaid arrangement, to which
defendants had consented, would not be complied with."
Suit
was commenced herein March 4, 1941. If not tolled, concededly
barred by the statute. It may be conceded that though
appellant or her predecessor in interest knew the
consideration as recited in the deed, namely $ 10.00, was
less than the real value of the property sold and that they
had not received any proceeds therefrom, they were not
necessarily charged thereby with notice or knowledge of the
repudiation of the trust. (Brasch v. Brasch, 55
Ida. 777 at 785, 47 P.2d 767.)
This
court however in harmony with other jurisdictions has
uniformly held that to avoid the bar of the statute, the
circumstances, time and place of discovery and why the
discovery was not sooner made must be alleged in detail and
with particularity.
"It
will be observed upon an examination of the amended complain
that there is no averment that during the period over which
the transactions complained of extended
the appellants or any of them made or caused to be made the
slightest inquiry touching the transaction in connection with
the sale of the stock of the Boise power company to Blanchard
& Company, through its agent, the City Trust Company, that no
examination was made of the books of the corporation, that no
information was sought from Cunningham, the general manager
of the corporation, and that the sale of appellants'
stock, with the exception of Ingraham's, was made to the
Mainlands direct.
"In
cases of this character where fraud, concealment and
ignorance of the facts are relied upon to suspend the running
of the statute of limitations, there must have been such
concealment as would prevent a person from exercising due
diligence from discovering the facts. What diligence was used
is a question of law to be determined by the court from the
complaint. Mere conclusions of law are not sufficient to
remove the bar of the statute. The particulars of the
discovery must be alleged. It should be stated when the
discovery was made, what it was, how it was
made, and why it was not made sooner. The amended complaint
is silent as to how the contract was obtained, neither are
there any reasons assigned why the contract was not sooner
obtained. In other words, the circumstances of the discovery
are not fully stated. The fact that Cunningham gave out no
information of his transactions with the Mainlands would not
be sufficient, or the fact that the plaintiffs knew nothing
of the transaction between the Mainlands and Cunningham until
they procured a copy of the contract between Cunningham...
