Rose v. Dunk-Harbison Co.

SHINN, J.,

pro tem.

The court sustained a demurrer to plaintiff’s second amended complaint without leave to amend, and entered judgment of dismissal, from which plaintiff prosecutes this appeal. Numerous points were raised by the demurrer, and argument thereon is presented at length in the briefs of counsel. One of the grounds of demurrer was that the action is barred by the provisions of section 338, subdivision 3 of the Code of Civil Procedure, and this defense, we think, is good, and sufficient to support the judgment appealed from.

The action is to recover the value of certain corporate stocks, alleged to have been converted by the defendant, a stock brokerage house. The alleged conversion consisted of the alteration of defendant’s books so as to show a certain trading account of defendant’s customer, Emmason C. Rose, which was his separate property, to be held in joint tenancy by the customer and his wife, Beatrice S. Rose. Emmason C. Rose died on June 10, 1927, and the alteration of the books,

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relied upon as a conversion of the property, is alleged to have been made on or about that date. Beatrice S. Bose was appointed executrix of the decedent’s estate July 5, 1927. A decree of distribution was entered in the estate September 26, 1929, distributing to plaintiff herein an undivided one-half (%) interest in all the estate of said deceased, including the cause of action sued upon herein. Plaintiff did not arrive at the age of majority until June 11, 1931. He alleged in his second amended complaint that he did not learn of the alleged conversion of the stocks by defendant until about the month of October, 1931. He instituted this action June 8, 1932. The time elapsing between the date of the conversion and the entry of the decree of distribution was two years, three months, sixteen days. The time elapsing between the date when plaintiff became of age and the institution of the action was eleven months, twenty-seven days. These two periods, combined, g-ive a period of three years, three months and thirteen days, or three months and thirteen days beyond the statutory period.

It is the contention of appellant that the statute did not commence to run until the month of October, 1931, at which time plaintiff first learned that the stocks were not held in joint tenancy during the life of Emmason C. Bose and of the alleged alteration of defendant’s books. The contention of respondent, accepted by the trial court, is that the statute commenced to run on the date of the conversion June 10, 1927; that if it was tolled at all, it could only have been between the date of the decree of distribution and the date of plaintiff’s attaining his majority, and that it would run again from the latter date to the date of the commencement of the action. Bespondent does not concede that the running of the statute was suspended at any time, but we deem it unnecessary, under the views we entertain, to discuss the argument advanced upon that point. We think it admits of no doubt that the statute commenced to run on the date of the alleged conversion; that if interrupted at all during the period of plaintiff’s minority after the decree of distribution was entered, it was again put in motion when plaintiff became of age.