Nunnelly v. First Federal Bldg. Loan Ass'n of Ogden

I concur. I reserve from my concurrence, however, some matters in the last part of the opinion. I think there should be no question about either the propriety or the logic of raising the question of the statutes of limitations by demurrer.

Nor can I concur in the statements that there is any conflict, or apparent conflict, between the holding in this opinion and the opinion in the case of Salt Lake City v. Salt Lake InvestmentCompany, 43 Utah 181, 134 P. 603, *Page 378 and therefore any attempt to overrule or limit the investment company decision is unnecessary and erroneous. In the investment company case the complaint showed by direct allegations that the facts upon which the alleged fraud was predicated were at the time of the alleged fraud, and at all times since, within the knowledge of the plaintiff. It also showed that the fraud of which plaintiff complained was primarily the fraud of plaintiff's agent rather than the fraud of defendant. After pleading such facts, plaintiff sought to avoid the bar of limitations by merely pleading that it had not discovered the fraud earlier. This court held that where one admits he was in possession of all the facts upon which he seeks to predicate fraud (and he is charged with knowledge of the law) he cannot avoid the bar of the statute unless he pleads facts to show why he was unaware of the facts which he now claims constituted a fraud. I find nothing in the investment company case which even implies a holding that in a case such as this it is necessary to plead more fully than here done to avoid the bar of the limitations statute.

MOFFAT, J., deceased. *Page 379