Baxter v. King

KOFORD, P. J.

Plaintiff appeals from the judgment for defendant after order sustaining demurrer to plaintiff’s amended complaint. The demurrer, besides demurring generally, raised the statute of limitations by appropriate specifi

[193]

cations. The complaint in many respects is like the one passed upon in

Prichard

v.

Mercantile Trust Co. and King,

65 Cal. App. 327 [224 Pac. 103]. The defendant there was sued as administratrix, but here individually. The complaint alleges that plaintiff was a partner of Fred G-. King; that he conducted the partnership business in his own name from 1892 until the time of his death in 1920; that a large sum of the profits of said business was invested by said King for said partnership in the purchase of a large number of shares of stock in the Boston-Pacific Oil Company, a corporation, and that the certificates representing said stock “which had been issued to him in his lifetime in his name being in his possession at the time of his death as a part of the assets and property of said partnership, belonged to plaintiff as the sole surviving partner of said partnership.” Allegation Number VI is as follows:

“That said defendant made representations to said corporation that she was the administratrix of the estate of Fred G. King, and that the stock and dividends mentioned belonged to the estate of Fred G. King, and demanded said dividends of said corporation and was paid by said corporation the sum of twenty-five thousand one hundred and forty-six dollars and sixty-eight cents ($25,146.68), on and after the 19th day of July, 1921, and converted the said amount to her own use and refuses to deliver said sum or any part thereof to plaintiff as the sole and surviving partner of the firm of Fred G. King, and still detains the said sum of money from plaintiff to her damage or her interest in said sum, in the sum of twelve thousand five hundred and seventy-eight dollars and thirty-four cents ($12,578.34), and the interest thereon at the rate of seven per cent (7%) from the said time of the conversion thereof.”

The complaint was filed July 15, 1924, which was more than two years, but less than three years, after the alleged cause of action accrued. The cause is not barred by the statute, therefore, if it is one included in subdivision 3, section 338, of the Code of Civil Procedure, which requires to be commenced within three years “an action for the taking, detaining or injuring any goods or chattels including actions for the specific recovery of personal property.” But if the cause alleged is one included in subdivision 1 of see