Lips v. Egan
| Decision Date | 06 July 1955 |
| Docket Number | No. 39822,39822 |
| Citation | 178 Kan. 378,285 P.2d 767 |
| Parties | L. J. LIPS, Appellant, v. Lee M. EGAN, Appellee. |
| Court | Kansas Supreme Court |
Syllabus by the Court.
1. An action on a promissory note accrues or arises upon failure or default on the part of payor to pay off the note at the time and place it is due and payable where the place of payment is set out in the where along with the due date.
2. When an action is based on a promissory note payable at a certain bank in a certain state, the law of the place of payment controls so far as the statute of limitations is concerned.
3. In an action on a promissory note such as is set out in the opinion where the petition states that the defendant had been absent from the state of Kansas at all times except for a period of approximately one year before the action was commenced, it is held, the petition sufficiently states a cause of action as against a demurrer based on the bar of the statute of limitations.
C. E. Vance, A. M. Fleming, and Bert J. Vance, Garden City, and Charles H. Fleming, Scott City, were on the briefs for appellant.
Ray H. Calihan, Logan N. Green, Daniel R. Hopkins, and Ray H. Calihan, Jr., Garden City, were on the briefs for appellee.
This appeal was taken from an order of the trial court sustaining a demurrer to appellant's second cause of action as stated in his petition.
The petition, which was filed on October 5, 1942, contained three causes of action but since the first and third were admitted and judgment confessed thereupon by the appellee in his answer, we need not consider them on this appeal.
In order to understand clearly the theories propounded by the parties, it is necessary to set out the preliminary residential status of the parties at the time of the commencement of the action. Appellant was a resident of Kansas City, Jackson county, Missouri, and appellee was at all times and until sometime in 1941, a nonresident of and absent from the state of Kansas.
The second cause of action substantially stated that appellee had made, executed and delivered to appellant the following promissory note, marked as exhibit 'C', which was made a part of the second cause of action:
'$300.00 Kansas City, Missouri, June 16th, 1934
'On November 1st, 1934 I promise to pay to the order of
'L. J. Lips
'(Signed) Lee M. Egan
'Value received
'No Due 11/1/1934'
Appellant further alleged he was the legal owner and holder of the note and that no principal or interest had been paid. He asked for judgment for the principal of $300 together with interest of ten per cent per annum from November 1, 1934.
On December 30, 1942, appellee filed an answer to appellant's second cause of action in which he denied liability for the reason that the note was barred by the statute of limitations of Kansas and further that the allegations of the second cause of action failed to state a cause of action in appellant's favor and against appellee.
Approximately twelve years later, and on December 7, 1954, the demurrer to appellant's second cause of action which had been set out in appellee's answer, was sustained by the trial court, from which order appellant timely appealed to this court, assigning as his specification of error that the trial court erred in sustaining appellee's demurrer to appellant's second cause of action.
The only question presented for our determination is whether the cause of action under consideration as stated in the petition is barred by the statute of limitations.
Speaking generally, we are here dealing with a promissory note which was due on November 1, 1934. The cause of action accrued and the five year statute of limitation (G.S.1949, 60-306, First) began to run on that date. 34 Am.Jur., Limitation of Actions, § 146, p. 117; 54 C.J.S., Limitations of Actions, § 147, p. 77.
One exception to this general rule which tolls the statute of limitations is contained in G.S.1949, 60-309 as follows:
'If when a cause of action accrues against a person he be out of the state * * * the period limited for the commencement of the action shall not begin to run until he comes into ...
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...pay loss); Travelers Fire Ins. Co. v. Ranney-Davis Mercantile Co., 173 F.2d 844, 849-50 (10th Cir.1949) (same); Lips v. Egan, 178 Kan. 378, 379-80, 285 P.2d 767, 768-69 (1955) (cause of action for nonpayment arose in Kansas where note specified that payment was to be made in Kansas); Swift ......
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...Wickam, 112 Kan. 628, 211 P. 1117; Perry v. Robertson, 93 Kan. 703, 150 P. 223.8 Gibson v. Simmons, 77 Kan. 461, 94 P. 1013; Lips v. Egan, 178 Kan. 378, 285 P.2d 767; see Wojtylak v. Kansas & Texas Coal Co., 188 Mo. 260, 87 S.W. 506, 516; Hendricks v. Brooks, 80 Kan. 1, 101 P. 622.9 34 Am.J......
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...Martin, 76 Kan. 862, 93 P. 165; Shearer v. Insurance Co., 106 Kan. 574, 189 P. 648; Swift v. Clay, 127 Kan. 148, 272 P. 170; Lips v. Egan, 178 Kan. 378, 285 P.2d 767. Each of those cases stands for the proposition that the place of making a contract is irrelevant to the issue of where a cau......
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...The earliest Hoelting's claim against the defendants could have accrued was in December 1988, when Trailridge defaulted. See Lips v. Egan, 178 Kan. 378, Syl. p 1, 285 P.2d 767 (1955). Hoelting filed this action in November 1993, within 5 years of the accrual of the claim. The claim was not ......
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...Martin, 76 Kan. 862, 93 P. 165; Shearer v. Insurance Co., 106 Kan. 574, 189 P. 648; Swift v. Clay, 127 Kan. 148, 272 P. 170; Lips v. Egan, 178 Kan. 378, 285 P.2d 767. Each of those cases stands for the proposition that the place of making a contract is irrelevant to the issue of where a cau......