Opinion
No. 50,622
Opinion filed January 27, 1981.
OPINION ON MOTION FOR REHEARING
BANKS — Checks — Restrictive Indorsement — Liability of Bank for Conversion — Statute of Limitations — Prejudgment Interest.
Review of the judgment of the Court of Appeals in 4 Kan. App. 2d 458, 608 P.2d 1370 (1980). Appeal from Kingman district court, division No. 2; CHARLES H. STEWART, judge. Judgment of the Court of Appeals affirming the district court is reversed in part and affirmed in part. Judgment of the district court is reversed in part and affirmed in part. Opinion filed January 27, 1981. Original opinion modified and motion for rehearing denied.
(For original opinion see Cairo Cooperative Exchange v. First Nat'l Bank of Cunningham, 228 Kan. 613, 620 P.2d 805.)
J. Eugene Balloun, of Payne Jones, Chartered, of Olathe, argued the cause and L. Franklin Taylor and Ronald L. Bodinson, of the same firm, and Terry D. Bertholf, of Hutchinson, were with him on the brief for the appellant.
Thomas L. Theis, of Sloan, Listrom, Eisenbarth, Sloan and Glassman, of Topeka, argued the cause and David D. Gaumer, of Wunsch, Wunsch, Gaumer Solomon, of Kingman, was with him on the brief for the appellee.
The opinion of the court was delivered by
Appellee, The First National Bank of Cunningham, filed a motion for rehearing which we have considered and find it should be denied and the opinion clarified as to the amount of judgment to be awarded to Cairo Cooperative Exchange and modified as to prejudgment interest.
We held Cairo had proven a case of conversion and breach of express contract. The statutes of limitations for those two actions are two and five years respectively, K.S.A. 60-513 and 60-511. The judgment to Cairo is limited to the amount of those checks with restrictive indorsements honored by the bank within five years prior to filing the action and the award of prejudgment interest is reduced to the statutory amount of 6% per annum from the date of wrongful payment.
We adhere to the original opinion except as herein modified.
McFARLAND and PRAGER, JJ. adhere to their dissents in the original opinion.