Huycke v. Latourette
| Decision Date | 03 December 1958 |
| Citation | 332 P.2d 606,215 Or. 173 |
| Parties | Austin H. HUYCKE and Marcelle Huycke, husband and wife, Appellants, v. Earl C. LATOURETTE and Security and Investment Company of Oregon City, a corporation, Respondents. |
| Court | Oregon Supreme Court |
Frank W. King, Portland, for appellants.
Glenn R. Jack, Oregon City, for respondents.
The plaintiffs commenced this action against the defendants to recover damages alleged to have been suffered in the purchase of certain real property in Clackamas County.
The defendants demurred to plaintiffs' complaint. The demurrer was sustained by the trial court and the plaintiffs electing not to amend, but to stand upon the allegations of their complaint, the complaint was dismissed.
From this judgment of dismissal the plaintiffs appeal.
The pertinent portions of the complaint necessary to this opinion are as follows:
'III.
'IV.
'That relying on the defendants' representations, both by word and by action, these plaintiffs purchased said property from the defendants for the sum of $30,000.00 on the 28th day of June, 1951.
'V.
'That the representations described above were false in the following particulars:
'That the building located on said premises was and had been struck with dry rot, which fact the defendants well knew, and because of the fact, said building was unsound.
'That the defendants knew that the representations were false, that they were made with the intent that the plaintiffs rely thereon, that the plaintiffs did rely thereon and purchased said premises, all to their damage in the sum of $3680.09.
'VI.
'That in making said representations the defendants acted wilfully and maliciously and with utter disregard to the rights of these plaintiffs, and that the plaintiffs did not discover that said representations were false until the 27th day of November, 1953.'
A ground of each defendant's demurrer is that the complaint discloses plaintiffs' cause of action to be barred by the statute of limitations.
Our statute of limitations provides that, where the gravamen of an action at law is fraud or deceit, the action must be commenced within two years 'from the discovery of the fraud or deceit.' ORS 12.110. The language of this statute 'from the discovery of the fraud or deceit' means 'from the time the fraud was known or could have been discovered through the exercise of reasonable diligence.' Linebaugh v. Portland Mtg. Co., 116 Or. 1, 8, 239 P. 196, 198.
It is to be noted that plaintiffs purchased the property on June 28, 1951. The action was commenced November 5, 1954. Thus, more than three years elapsed after the alleged fraudulent representations were made and before the action was commenced. If nothing more was alleged, then, of course, the demurrer would lie. The sole question then is whether or not the allegation 'that the plaintiffs did not discover that said representations were false until the 27th day of November, 1953,' is a sufficient allegation to plead the tolling of the statute.
While some courts recognize a rule that it is sufficient in an action for fraud to merely allege that the misrepresentation was not discovered within the time granted by the statute to bring the action, the majority of jurisdictions require that when the complaint shows the action was not commenced within the time fixed by the statute of limitations it is necessary, in order to toll the...
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...v. Farmers Insurance Group, 250 Or. 207, 441 P.2d 594 [(1968)]; Heard v. Coffey, 218 Or. 275, 344 P.2d 751 [(1959)]; Huycke v. Latourette, 215 Or. 173, 332 P.2d 606 [(1958)]; Taylor v. Moore, 87 Utah 493, 51 P.2d 222 [(1935)]; Strong v. Clark, 56 Wash.2d 230, 352 P.2d 183 [(1960)]; and Davi......
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Bridgmon v. Walker
...plaintiffs must also set forth the reasons for not discovering the fraud and thereby negative lack of diligence. The case of Huycke v. Latourette, Or., 332 P.2d 606, supports the defendants' contention. In that case the court relied upon several Oregon cases in which it was held that a comp......
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Heise v. Pilot Rock Lumber Co.
...in that regard must specifically and precisely plead the facts showing that the statute of limitations does not apply. Huycke v. Latourette, 215 Or. 173, 177, 332 P.2d 606; Heard v. Coffey, Or., 344 P.2d 751. Further, the exercise of reasonable diligence to discover the fraud is essential. ......