Taylor Bros. Co. v. Duden

• Decision Date: 27 January 1948
• Docket Number: 7026
• Citation: 188 P.2d 995,112 Utah 436
• Court: Utah Supreme Court
• Parties: TAYLOR BROS. CO. v. DUDEN et al

188 P.2d 995

112 Utah 436

TAYLOR BROS. CO. v. DUDEN et al

No. 7026

Supreme Court of Utah

January 27, 1948

Appeal From District Court, Fourth District, Utah County; Joseph E Nelson, Judge

Action by Taylor Brothers Company against Don H. Duden and Donna Duden Peterson for possession of a piano and bench sold to Don H. Duden on a title retaining note. From an adverse judgment, Donna Duden Peterson appeals.

Affirmed.

Christenson & Christenson, of Provo, for appellant.

I. E Brockbank, of Provo, for respondent.

McDONOUGH C. J., and PRATT, WOLFE, and LATIMER, JJ., concur.

OPINION

WADE, Justice.

Taylor Brothers Company, the respondent herein, commenced an action against Don H. Duden and Donna Duden Peterson, as defendants for the possession of a piano and bench sold to Don H. Duden on a title retaining note. Don H. Duden who was served outside the state did not appear or answer but Donna Duden Peterson answered claiming title to the property and pleading that as to her, respondent's action was barred by the provisions of Sec. 104-2-24, Subsection (2), U.C.A.1943. From a judgment in favor of Taylor Brothers Company, the defendant, Donna Duden Peterson, appeals.

This case was tried by the court on stipulated facts and the only question presented to this court for determination is whether the trial court erred in holding that the action was not barred by the Statute of Limitations.

It is appellant's contention that the action is barred by the provisions of Sec. 104-2-24(2), U.C.A.1943, which provides that an action for the taking, detaining or injuring of personal property including an action for the recovery thereof must be brought within three years. Respondent argues that the action is not barred, and that in any event, Sec. 104-2-24(2) is not applicable because its right to recover is based on a written contract and therefore its action could only be barred under the provision of Sec. 104-2-22(2), U.C.A.1943, which provides that an action on a written contract must be brought within six years.

The facts as stipulated were: That on December 22, 1938, Don H. Duden purchased a piano and bench from Taylor Brothers Company and as consideration for such purchase executed a title retaining note in favor of Taylor Brothers Company. That at the time of the purchase he stated to respondent herein that he intended to give it as a Christmas present to his wife Donna Duden, who is now Donna Duden Peterson, the appellant herein. The piano and bench were delivered to the home of Don H. Duden on December 25, 1938, and he then gave it to his wife, who has had it in her possession ever since until it was taken from her by the sheriff under claim and delivery proceedings instituted by the respondent herein. Donna Duden Peterson admitted by her answer that respondent had made demand on her for the possession of the piano and bench apparently just prior to the filing of the complaint in this action and that she had refused to deliver the property to it.

It is appellant's contention that since she was not a party to the written contract, respondent's cause of action as against her was one for claim and delivery and therefore was barred by the provisions of Sec. 104-2-24(2), U.C.A1943, because this action was commenced more than three years after she had obtained possession of the piano and bench.

Respondent based this suit on its contract with Don H. Duden and elected to take immediate possession of the property. Donna Duden Peterson was made a party defendant to the suit because she had possession as the donee of Don H. Duden. It is respondent's theory that the rights of a transferee of personal property by the purchaser under a conditional sales contract are analogous to that of a vendee of mortgaged real property who has not assumed the obligation of the mortgagor. This court has held that such a vendee may plead the bar of the Statute of Limitations at the expiration of six years after the cause of action against the mortgagor has arisen. See Graves v. Seifried, 31 Utah 203, 87 P. 674 and Boucofski v. Jacobsen, 36 Utah 165, 104 P. 117, 26 L.R.A.,N.S., 898. In those cases it was held that the statute of limitations inured to the benefit of a third party who was not a party to the contract even though the mortgagor had waived or could not avail himself of that defense. This is so because as stated in 34 Am.Jur. page 294, Sec. 379:

'Although, it is generally true that the statute of limitations is a plea personal to the debtor, it is nevertheless established that where there is a privity between the party who could, if sued, plead the statute and the party offering to plead it, the latter may plead it to save his property. Such is the case with heirs, mortgagees, transferees of mortgaged property, and, unless the grant is fraudulent, vendees. * * *'

However, in the instant case we are not confronted with the question of whether the Statute of Limitations inures to the benefit of a third party. We are not concerned here with the question as to whether Donna Duden Peterson, had she so desired, and if the facts had warranted, could have plead the bar of the Statute of Limitations requiring action on written contracts to be commenced within six years, as being the privy between the party who could, if sued, have plead the statute. We are here concerned with which statute of limitations is applicable under the facts of this case. To determine this we must look to the nature of the cause of action respondent had against appellant. See 34

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