I concur in the foregoing opinion save in so far as it holds that an action to recover money paid upon a contract in writing which was, in fact, usury, is barred by the three-year statute of limitations.
Under Rem. Rev. Stat., § 157, paragraph 2, "An action upon a contract in writing, or liability express or implied arising out of a written agreement," is barred unless commenced within six years after the accrual of the cause of action.
In the case of Caldwell v. Hurley, 41 Wn. 296,83 P. 318, this court considered the section of the statute of limitations above referred to, and held that it applied *Page 542 to an action for a contribution between cosureties upon a promissory note. In that case, the court said:
"Said subdivision 2 of § 4798, Bal. Code, differs from the statutes of limitation of most, if not all, the other states. In fact, after a painstaking research, we have found no similar statute. The peculiar feature of our statute is that an impliedliability arising out of a written instrument is included in the same clause with an express liability arising out of a written contract. The legislature evidently thereby intended that a certain class of actions should be included within the terms of said section which had not in other states been associated or connected with actions on written instruments or actions founded upon written agreements. The liability for contribution of appellant and respondent is an implied liability which arose by reason of their becoming co-sureties on the note. If they had not entered into the written contract which resulted from their signing their names on the back of the note, at the time, under the circumstances, and for the purpose, found by the court, there would be no liability. This liability now exists, is contractual in its nature, and is the direct result of that written agreement by which respondent was compelled to make the payment for which he now seeks contribution. The allegations of the amended complaint, and the facts found by the court, show a cause of action in favor of respondent on account of an implied liability arising out of a written agreement. To place any other construction on our statute would be to hold that the words contained in the last clause of said subdivision 2 were placed there without purpose or meaning."
While the question here presented is of course entirely different from that determined by this court in the case cited, it seems to me that the reasoning of the court is applicable here, and that the obligation to repay money usuriously exacted is contractual in its nature, although, in a sense, contrary to the express terms of the contract between the parties, and is the direct result of (or arises out of) that written agreement *Page 543 by which appellant was compelled to make the payment which he now seeks to recover.
In the case of Ihrke v. Continental Life Insurance Investment Co., 91 Wn. 342, 157 P. 866, L.R.A. 1916F, 430, it was stated that an action to recover payments made on a written contract for the purchase of real estate upon the ground of fraud was based "upon an implied liability arising out of a written agreement," and could be brought within six years. See also Lindblom v. Johnston, 92 Wn. 171, 158 P. 972;Oregon-Wash. R. Nav. Co. v. Seattle Grain Co., 106 Wn. 1,178 P. 648, 185 P. 583; Pioneer Mining Ditch Co. v.Davidson, 111 Wn. 262, 190 P. 242; Warren v. Rickles,129 Wn. 443, 225 P. 422; Puget Sound Power Light Co. v.Seattle, 142 Wn. 580, 253 P. 1083; Seattle Lodge No. 211,L.O.O.M. v. Goodwin Real Estate Co., 143 Wn. 210, 255 P. 96;Voorhees v. Nabob Silver-Lead Co., 174 Wn. 5,24 P.2d 114.
The statute of this state fixing the six-year limitation is very broad, and in my opinion covers such a payment as is here sought to be recovered. On this point, therefore, I dissent from the conclusion reached by the majority. *Page 544