Lawson v. Tripp

• Decision Date: 28 March 1908
• Docket Number: 1766
• Court: Utah Supreme Court
• Parties: LAWSON v. TRIPP et al

95 P. 520

34 Utah 28

LAWSON v. TRIPP et al

No. 1766

Supreme Court of Utah

March 28, 1908

APPEAL from District Court, Third District; M. L. Ritchie, Judge.

Action by John L. Lawson against Robert B. Tripp and others. From a judgment of dismissal, plaintiff appeals.

AFFIRMED.

Frick Edwards & Smith for appellant.

Henderson Pierce, Critchlew & Barrette for respondents.

McCARTY C. J. STRAUP, J., and CHIDESTER, District Judge, concur.

OPINION

McCARTY, C. J.

On the 27th day of November, 1889, E. A. Tripp, of Salt Lake City, Utah, representing himself as the agent of his brother, R. B. Tripp, entered into a written contract to sell to John A. Groesbeck certain real estate situated in Salt Lake City, Utah, and received the sum of $ 500 as part payment of the purchase price of the property. The balance, $ 9,500, was to be paid in 10 days from the date of the contract, and "when a warranty deed and good title is delivered and accepted." The contract also provided that the vendors were to furnish to the vendee on or before December 6, 1889, an abstract of title to the premises. This contract was sent to R. B. Tripp, who at the time resided in South Dakota, where he has ever since continuously resided. There he assented to the contract. On January 30, 1890, Groesbeck sold and assigned to John L. Lawson all his right, title, and interest in and to said contract. On August 30, 1903, Lawson began this action against E. A. Tripp and R. B. Tripp to recover damages for a breach of the contract mentioned. It is alleged in the complaint, among other things, that John A. Groesbeck, after making the payment of the $ 500 hereinbefore referred to on the contract, continued able, ready, and willing to carry out and fully perform all the terms and conditions of said contract on his part to be performed, and continued able, ready, and willing to pay the sum of $ 9,500, balance of the purchase price, upon the delivery to him by the defendants of an abstract of title and a warranty deed showing a good and marketable title thereto as provided in said contract. (4) "That the defendants have continuously since the 27th day of November, 1889, failed, refused, and neglected to furnish or deliver an abstract of title to said property, a warranty deed, or any deed, to said premises conveying a good and marketable title to said real estate to the said John A. Groesbeck or to this plaintiff, although said John A. Groesbeck and this plaintiff have often requested the same of the defendants." The complaint further alleged that the defendant "R. B. Tripp has been absent from the state of Utah continuously since the 27th day of November, 1889, to the present time, with the exception of about twenty days, during which time . . . he has been in the state of Utah." A demurrer was interposed on the ground that the action was barred by the statute of limitations. The demurrer was sustained as to E. A. Tripp, and the action dismissed as to him and proceeded against R. B. Tripp alone. R. B. Tripp answered, and after putting in issue the allegations of the complaint, set forth certain separate and specific defenses, among which were: (1) The bar of the statute of limitations, arising under section 2970, Rev. St. Utah 1898; (2) that the defendant tendered a deed in due form for the premises, together with abstract of title showing a good and marketable title to be delivered on receipt from Groesbeck of the balance, $ 9,500, of the purchase price, and that said tender was refused; (3) that the bar of the statute of limitations arising under the provisions of the Revised Statutes of Utah, and particularly under section 2899, by reason of the fact that under the laws of South Dakota, where defendant had at all times resided, the action had become barred, and was therefore barred within the state of Utah. Evidence was introduced both by plaintiff and defendant in support of their respective claims and theories regarding the merits of the case. The court, however, failed to find on any of the issues involving the merits, but found in effect that the contract was a South Dakota contract, and that the cause of action was barred by the statute of limitations, and entered judgment of dismissal in favor of defendant on that ground alone. To reverse the judgment, plaintiff has appealed to this court.

No error is assigned because of the failure of the court to find on the issues involving the merits of the case. As stated by counsel for appellant in their brief: "It will be observed that the court passed upon the sole question whether the cause of action was barred, eliminating all other questions respecting the merits of the case. . . . The court in this case did not pass upon that phase of the case at all (referring to the merits), but simply based its decision upon the one question, viz., whether or not the cause of action, if any there was, was barred by the statute of limitations." And again they say: "There is, therefore, nothing for this court to consider--in fact, nothing it can legally pass upon--except this question." Counsel for appellant contend that "the contract in question is a Utah contract, to be performed in Utah; that a breach, if any occurred, occurred in Utah, and that therefore a cause of action, if any exists, arose in Utah." Section 2875, Rev. St. 1898, provides that "an action upon any contract, obligation, or liability founded upon any instrument of writing," etc., must be commenced within six years. Appellant, however, insists that R. B. Tripp, having continuously resided outside of the state since the alleged breach of the contract, the cause of action arising thereon is within the exception provided for by section 2888. This section reads as follows:

"If when the cause of action accrues against a person, he is out of the state, the action may be commenced within the term herein limited after his return to the state; and if after the cause of action accrues he depart from the state, the time of his absence is not part of the time limited for the commencement of the action."

In the case of Burnes v. Crane, 1 Utah 179, this court, in harmony with the great weight of authority, held that the word "return" in section 2888, supra, as applied to absent debtors, includes nonresidents as well as citizens of the state who have gone abroad and returned to the state. The words "return to the state" are held to be equivalent to "come into the state:" (25 Cyc. 1227-1231; 19 A. & E. Ency. Law, 233; Buswell, Lim. & Adv. Poss. 117; Weber v. Yancy, 7 Wash. 84, 34 P. 473; Burrows v. French, 34 S.C. 165, 13 S.E. 355, 27 Am. St. Rep. 811; Wood v. Bissell, 108 Ind. 229, 9 N.E. 425; Stanley v. Stanley, 47 Ohio St. 225, 24 N.E. 493, 8 L. R. A. 333, 21 Am. St. Rep. 806; Whitcomb v. Keator, 59 Wis. 609, 18 N.W. 469; Parker v. Kelly, 61 Wis. 552, 21 N.W. 539.)

Respondent, however, insists that the cause of action, if any existed in favor of plaintiff, arose in South Dakota, and the action, being barred by the statutes of that state, cannot, under section 2899, Rev. St. 1898, be maintained in this state. This section provides:

"When a cause of action has arisen in another state or territory, or in a foreign country, and by the laws thereof an action thereon cannot there be maintained against a person by reason of the lapse of time, an action thereon shall not be maintained against him in this state, except in favor of one who has been a citizen of this state and who has held the cause of action from the time it accrued."

It is conceded that appellant acquired the claim upon which he bases his right of action by virtue of an assignment after the cause of action had accrued thereon. The question therefore arises, does appellant come within the exception mentioned in section 2899? In other words, has he, within the meaning of the statute, held the cause of action from the time it accrued? It is contended on behalf of appellant that the purpose of the exception is to prevent the statute from running against causes of action generally which are held by citizens of this state who were citizens at the time such actions accrued, regardless of whether they acquired the causes of action before or after they arose, and that therefore appellant comes clearly within the spirit and intent of the exception. The language of the statute is plain, and free from ambiguity. In order to bring a party within the exception, two things must be shown to exist: First, that the party relying upon the exception was, at the time the cause of action arose, and ever since has been, a citizen of this state; and, second, that he had held the cause of action since it accrued. It being conceded that plaintiff acquired his cause of action by assignment after the cause of action accrued, he therefore does not come within the exception. The contention that the exception was intended to include all citizens of this state as a class, and that it was not made in favor of any particular set or class of citizens, and that the statute should be so construed, cannot, under the great weight of authority, prevail. While the general rule is that statutes of limitation generally are to be liberally construed, it is also a well-recognized doctrine that, when such statutes contain provisions excepting certain persons or classes from the operation of the statutes, those exceptions are to be strictly construed. And courts will not by construction extend the exception so as to include persons not expressly mentioned therein. Black, in his work on Interpretation of Laws, p. 332, referring to statutes of limitation, says:

"But if the statute itself is to be construed liberally, necessarily it follows that the exceptions which it makes in favor of particular persons or classes are to be construed with strictness. ...