Gustafson v. Cullen , 155 Wash. 107 ( 1930 )

I concur in the foregoing opinion in so far as it holds that the complaint states a cause of action.

I concur in the result of the holding therein that the cause of action, as pleaded, is not barred by the statute of limitations; but upon a different ground than that set forth in the opinion. I rest my concurrence upon the ground that respondent Cullen acquired the fund in trust for appellant Gustafson, and did not disclaim his trust obligation until a time within the statutory period of limitation for the commencement of the action, preceding the commencement of the action. It was then, the time of his disclaimer of his trust obligation, that the cause of action arose against him in favor of appellant.

I dissent from the view, as I understand it expressed in the foregoing opinion, that the action is not barred because of the time of discovery of the so-called fraud being less than three years prior to the commencement of the action, because I am of the opinion that this is not "an action for relief upon the ground of fraud," within the meaning of Rem. Comp. Stat., § 159, subd. 4, prescribing the period of limitation of time for the commencement of such an action; that is, I think the action is not grounded upon fraud. It seems to me our decision inHutchinson Realty Co. v. Hutchinson, 136 Wash. 184,239 P. 388, and a number of our prior decisions therein reviewed, support my conclusion.