Cairo Coop. Exchange v. First Nat'l Bank of Cunningham

229 Kan. 184 (1981)

624 P.2d 420

THE CAIRO COOPERATIVE EXCHANGE, Appellant, v. THE FIRST NATIONAL BANK OF CUNNINGHAM, Appellee.

No. 50,622

Supreme Court of Kansas.

Opinion filed January 27, 1981.

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

HERD, J.:

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.