Stratton v. Wood Const. Co.

• Decision Date: 11 June 1955
• Docket Number: No. 39783,39783
• Citation: 284 P.2d 636,178 Kan. 269
• Parties: Clyde W. STRATTON and Cora C. Stratton, Appellees, v. WOOD CONSTRUCTION CO., Inc., Appellant.
• Court: Kansas Supreme Court

Page 636

284 P.2d 636

178 Kan. 269

Clyde W. STRATTON and Cora C. Stratton, Appellees, v. WOOD CONSTRUCTION CO., Inc., Appellant.

No. 39783.

Supreme Court of Kansas.

June 11, 1955.

Syllabus by the Court.

The record in an action to recover damages for false and fraudulent representations made in connection with a sale of real estate examined, and held, the trial court did not err in overruling a general demurrer to the petition, presented and argued upon the premise such pleading, failed to state a cause of action because it showed on its face the action was barred by the statute of limitations.

Hylton Harman, Kansas City, argued the cause and was on the briefs for appellant.

Kester U. Snyder, Overland Park, argued the cause and was on the briefs for appellees.

PARKER, Justice.

This was an action to recover damages for misrepresentations made in connection with a sale of real estate. The appeal is from an order overruling a demurrer to the petition.

The action was commenced in the district court of Johnson County on January 31, 1953, by the filing of the petition. Omitting formal averments, allegations relating to punitive or exemplary damages, and its prayer, such pleading states in substance that prior to July 17, 1950, defendant was the owner of certain real estate in Johnson County and by and through its agents, servants and employees entered into oral negotiations with plaintiffs resulting in their purchase of such property; that during the negotiations preceding the sale defendant represented that all the streets and all lateral sewer lines affecting the real estate were furnished and the cost thereof paid so that plaintiffs would not have to pay anything for any of such improvements; that plaintiffs were ignorant of the true facts concerning the matters relating to payment of such improvements and, relying upon the truth of the representations of the defendant respecting them, orally agreed to purchase the property, describing it, for a stipulated price; that as a result of such representations plaintiffs entered into a written contract with defendant for the sale and purchase of such property on July 17, 1950, and would not have purchased it for any other price or terms except for their reliance upon the defendant's representations respecting the paid status of the streets and sewer lines affecting it; that the deal for the property was consummated by a deed delivered on September 26, 1950; that all the representations concerning the payment of such improvements were subsequently found to be false and fraudulent; and that although such improvements had been made prior to the sale the costs thereof, so far as they affected the property purchased, had not been paid.

In addition to what has been heretofore stated the petition alleges:

'That subsequent to the delivery of the warranty deed to plaintiffs and on about the 20th day of February, 1951, the County Commissioners of Johnson County, Kansas, acting in pursuance of the statutes hereinbefore referred to, did affix the said road improvement district known as 67th Street Terrace and Beverly Street Benefit District Road Project No. 77 and did determine and apportion the costs of said improvements against the said real estate of plaintiffs hereinbefore described, and did assess against plaintiffs' said real estate as their proportionate share of the costs of the benefit district numbered above the sum of Seven Hundred Eleven and 71/100 Dollars ($711.71) and did notify plaintiffs of said apportionment and assessment; that said assessment was made on an installment basis to run for a period of ten years, total cost which plaintiffs were required to pay for said benefit district being approximately the sum of Nine Hundred Twenty-Five and 22/100 Dollars ($925.22); that on the first day of November, 1950, the County Clerk of the county aforesaid, acting as ex officio county assessor, made a special apportionment and assessment against the real estate of plaintiffs for the sum of Two Hundred Forty-Five and 47/100 Dollars ($245.47) for their proportionate share of the above mentioned real estate in lateral sewer district No. 20-A, which said assessment for said sewer district being on an installment basis to cover a period of ten years, to bear interest, the total amounts which plaintiffs will be required to pay for said assessment being Three Hundred Nineteen and 11/100 Dollars ($319.11), which said assessments were made to cover the proportionate costs apportioned to the above described real estate for said street, curbing and guttering and said lateral sewer hereinbefore mentioned, each of which assessments were duly made under the statutes as hereinbefore mentioned, and upon making the same such assessments became valid, special tax liens against said real estate, and that such liens did then encumber, impair and cloud the title of plaintiffs in said real estate; that the receipt of the notices of the Board of County Commissioners of Johnson County on about the date alleged herein with respect to said benefit road district was the first knowledge plaintiffs had of said road improvements not being fully paid for and that the first notice and knowledge plaintiffs had of the said lateral sewer district improvements and assessments thereon by the Board of County Commissioners through the County Clerk of Johnson County, Kansas, was on about the first day of November, 1951, all contrary to the representations made by defendant, its agents and servants as aforesaid.'

Without challenging its sufficiency in any other manner the defendant demurred to the petition on the ground it failed to state facts sufficient to constitute a cause of action and when this demurrer was overruled appealed from that ruling to this court, where it is now conceded the sole question involved is whether the petition shows on its face that the cause of action therein set forth is barred by the statute of limitations. G.S.1949, 60-306, Third.

The first matter requiring attention is a contention advanced by appellees who insist appellant has no right to be heard because of the provisions of G.S.1949, 60-706, which we pause to note have been in our statute in its present form since G.S.1868, Ch. 80, § 90, providing that unless a demurrer specifies distinctly the grounds of objection to a petition it shall be regarded as objecting only that the petition does not state facts sufficient to constitute a cause of action. More specifically the essence of appellees' claim is that under this statute appellant's general demurrer in the court below did not raise the question whether the cause of action set forth in the petition was barred by the statute of limitations, hence such question is not subject to appellate review. The trouble with appellees' position on this point springs from the fact it finds no support in our decisions. This court has long been committed to the rule, see Zane v. Zane, 5 Kan. 134, since adhered to by more recent decisions, Schenk v. City of Kansas City, 134 Kan. 181, 5 P.2d 842; Pratt v. Barnard, 159 Kan. 255, 154 P.2d 133, that where the pertinency of a statute of limitations is obvious from the facts alleged in the petition a general demurrer will lie without such statute being specifically pleaded. For other decisions of like import see City of Phillipsburg v....