(concurring).
I concur in the result. In doing so, however, I am con*294strained to set forth the reasons which do not permit me to join in the majority opinion.
My difficulty arises with the treatment which my associates accord the defense of the Statute of Limitations. In all other respects I am in agreement with the majority. I cannot, however, subscribe to a decision that would give plaintiff its day in court by passing over the question of whether the Statute of Limitations has run against plaintiff until the trial of the issues proves the existence of duress. As I understand the opinion, duress tolls the Statue of Limitations until such duress is removed. The cases at 75 A. L. R. 658 and 121 A. L. R. 1294, relied upon by the majority, are to that effect. Those decisions, however, are in no way factually related to the issues before us. Furthermore, they subscribe to a principle which has no bearing whatsoever on this case.
Plaintiff has alleged a type of duress which forced it to continue making overpayments. The allegation of duress thus goes to the recovery of those overpayments, not to the bringing of the action. The majority, however, rely on this latter type as the basis of their decision. Such a rationale is factually and legally unsupported by the issues before us. Thus I do not consider that duress, as pleaded in the complaint, affected plaintiff’s right or will to bring an action to annul the Kansas price orders — thus creating its own cause of action.
In considering the question of whether the Statute of Limitations is a bar to recovery, the lower court applied the rule it established in Cities Service v. Western Natural Gas Co., C. A. 674, 1958, Del. Super. Ct., where the learned Trial Judge ruled:
“In cases such as the one before the Court, a right of action does not accrue until the law which forbids the recovery is declared void.”
The applicable Delaware Statute of Limitations provides in part:
*295« * * * no action to recover a debt not evidenced by a record or by an instrument under seal, no action based on a detailed statement of the mutual demands in the nature of debit and credit between parties arising out of contractual or fiduciary relations, no action based on a promise, no action based on a statute, and no action to recover damages caused by an injury unaccompanied with force or resulting indirectly from the act of the defendant shall be brought after the expiration of three years from the accruing of the cause of such action * * *.” (Emphasis Supplied.) 10 Del. C. § 8106.
With regard to that statute, I consider the crux of the matter lies in the meaning of the phrase, “accruing of the cause of such action.” One treatise discussed the question as follows:
“Statutes of Limitation commence to run against a cause of action from the time it accrues, or from the time when the holder thereof has the right to apply to the court for relief, and to commence proceedings to enforce his rights. The time when the cause of action has accrued within the Statute of Limitations means the time when plaintiff first became entitled to sue.” Wood on Limitations, 4th Ed., 684 Sec. 122a.
The majority fails to note that a delineation exists between an action brought by plaintiff to void the Kansas price orders and an action in Delaware to obtain a recovery of the overpayments.
Assuming arguendo that plaintiff could have prevailed in a Delaware Court prior to Cities Service v. State (1958), supra, seeking recovery of the overpayments on federal constitutional grounds, my conclusion would still be the same. Such a suit would have then operated to create a previously non-existent cause of action in Delaware. Thus prior to such a ruling, no cause of action had accrued in this State to make the Statute of Limitations operative. If our courts on the other hand refused to hear this action and gave full *296faith and credit to the Kansas price orders, an appeal to the Supreme Court of the United States might have likewise resulted in creating plaintiff’s cause of action in Delaware. Plaintiff might also have attacked these price orders in Kansas or any other court of competent jursdiction. Be that as it may, until such an affirmative ruling was properly obtained, either annulling or refusing to enforce the application of the Kansas price orders, no cause of action had previously accrued in Delaware for the recovery of the overpayments. My point is, therefore, that until such a ruling was obtained, a cause of action had not accrued and plaintiff was under no duty to create it.
On that basis, the Statute of Limitations was inoperative until 1958 when the Kansas price orders were nullified by the Supreme Court of the United States in Cities Service v. State (1958), supra. It was then that plaintiff’s cause of action to recover these overpayments accrued in Delaware and the Delaware Statute of Limitations became operative. In this respect, a New Jersey court has ruled:
“While the Statute of Limitations is one of repose and security, it was never intended to defeat a remedy before the right existed.” Hughes v. Eureka Flint & Spar Co., 20 N. J. Misc. 314, 26 A. 2d 567 (1939).
A cause of action accrues within the meaning of the Statute of Limitations when the plaintiff can first enter a court and rely on an existing right to sue forthwith. New York & Pennsylvania Co. v. New York, 300 Pa. 242, 150 A. 480 (1930).
Since we are in agreement that the plaintiff’s cause of action accrued as a result of the Supreme Court’s ruling in Cities Service v. State (1958), supra, the only question to be determined is whether plaintiff was under a legal duty prior to 1958 to bring an action in a court of competent jurisdiction for the purpose of setting aside the Kansas price *297orders, thus establishing its cause of action to recover the overpayments. The defendant contends that such a duty existed on the plaintiff’s part. There can be no question concerning the plaintiff’s right to bring such an action. However, defendant has not cited any authority to show that plaintiff was required to create its cause of action and I would not impose one on it. With regard to the Statute of Limitations, the only duty upon a prospective litigant is that he institute his suit within the prescribed period once the cause of action has accrued.
Thus until the enforcement of a right is recognized in a Delaware court, the Delaware Statute of Limitations cannot run. The accrual of a cause of action is a prerequisite to its operation. Likewise, a competent decree invalidating, or refusing to enforce or recognize the Kansas price orders was a necessary concomitant to the accrual of plaintiff’s cause of action in the case at bar.
I would therefore hold that no cause of action accrued in Delaware until the Kansas price orders were annulled in Cities Service v. State (1958). The question of duress, as posed by the majority, is thus obviated and the Court is not faced with the dilemma of projecting into the future a nebulous and erroneous factual situation which cannot sustain its theories.
The state of the present proceedings deserves note. This appeal comes to us on a motion to dismiss. As such, we are confronted with the question of whether the allegations of the complaint are sufficient to state a cause of action. Duress is present among the allegations, but I fail to perceive that it is anything more than an element relating to the recovery of the overpayments.
The majority opinion on the other hand interjects a type of duress which subverts the will of a plaintiff to bring an action to remove that duress. Plaintiff has certainly not made *298any allegations to that effect, and I therefore cannot concur with a decision which is based on such non-existent duress.
There is an element of judicial restraint which, as part of the Rule of Law, requires us to consider only those issues that are properly before us. We should not anticipate questions which may develop at a later date — trying to decide them now by hinging the application of our judgments on their occurrence.