## Facts

- In July 1911, an assistant curator at the University of Kansas museum entered Garrity’s land without permission and removed a large fossil.
- Garrity claimed ownership of the fossil and alleged it was worth about $2,500.
- Garrity alleged the removal constituted a wrongful taking and conversion attributable to the University’s governing body (the Board of Regents) through its agent.
- In 1913, Kansas abolished the Board of Regents and created the State Board of Administration to oversee certain educational institutions and to execute institutional “trusts or other obligations.”
- Garrity sued the State Board of Administration, pleading facts supporting both conversion (tort) and an implied promise to pay the fossil’s value (implied contract), and asserted the Board was successor to the Regents.

## Issues

1. Whether allegations supporting both conversion and an implied promise to pay permit the plaintiff to waive the tort and proceed on an implied-contract theory for statute-of-limitations purposes.
2. Whether the State Board of Administration, created after the alleged wrong, is liable as statutory successor for the prior Board of Regents’ alleged tort (or related implied-contract obligation) absent express statutory language imposing such liability.

## Decision

- The court held the petition could be treated as stating an implied-contract claim; thus, the claim was not barred merely because the tort limitations period had run.
- The court held the State Board of Administration was not liable for the alleged prior tort of the Board of Regents because the enabling statute did not clearly impose successor liability for past torts.
- The demurrer was properly sustained, and judgment for the defendant was affirmed.

## Legal Principles

- When pleaded facts support both tort and implied contract, a plaintiff may waive the tort and sue on an implied promise to pay, applying the limitations period applicable to contract rather than tort.
- A statutory successor public board is not responsible for predecessor tort liabilities unless the legislature clearly assigns that liability in the creating statute.
- Recasting a claim as implied contract cannot create an obligation against a different entity that would not otherwise be liable for the predecessor’s conduct.

## Conclusion

Kansas recognized waiver of tort into implied contract to avoid a shorter tort limitations period when the facts support both theories, but refused to impose liability on a later-created administrative board for a predecessor board’s earlier tort absent clear statutory authorization.


Garrity v. State Bd. of Admin., 99 Kan. 695, 162 P. 1167 (Kan. 1917)