Bremond v. McLean

45 Tex. 10 | Tex. | 1876

Moore, Associate Justice.

The exceptions of the defendant to the plaintiff’s petition should have been sustained. It does not appear from the petition that plaintiff suffered any injury from the alleged false and fraudulent representations as to the character of the note transferred to him, or that the note would or could possibly have been of any greater value to him than it was if appellant’s representations respecting it had been true. The defendant refused to indorse the' note, but, as the plaintiff charges, represented that it was what was known and called a railroad-stock note, and that it had been given by Spence, the maker, to the Houston and Texas Central Railroad Company for his subscription to the' capital stock of said company; and upon its payment, its-equivalent in value in the stock of said company would be-issued. But it is not alleged that defendant represented that the' stock of said company for which the note was given was held by said company, or any one else, as a security for the payment of said note, or that such was the fact. On the contrary, it appears from the evidence adduced on the trial, that while said railroad company only issued conditional certificates for stock to persons paying their stock subscriptions in notes such as this was represented to be, yet, when the company transferred these notes without indorsement, as was the case with this note, if a stock note, the maker became at once entitled, on presentation of this conditional certificate, to an unconditional certificate for his stock. There is nothing stated in the petition from which it can be inferred that plaintiff was led to suppose that the unconditional certificate of stock had not been previously delivered to Spence, or that the holder of the note could prevent this being done, whenever he, or some one to whom he might assign Ms stock, should demand it. Evidently, from anything alleged in the petition, the fact that the note was given for capital stock in said railway company gave it no more real value than if it was executed on any other valid consideration. The plaintiff having taken it without indorsement, had no security for its payment except the solvency of the maker. The consideration which induced its execution was wholly immaterial. The false representations of the defendant in reference thereto could in no way injure the plaintiff, and consequently are not actionable. But if said false representations were of such a character as to entitle plaintiff to maintain a suit upon them, the right of action was evidently barred by limitation. The statute, giving it the most favorable construction for plaintiff, would unquestionably, if not suspended, commence to run from thó discovery of the fraud and deceit, or from the time when, by the use of ordinary and reasonable diligence, plaintiff’ might have discerned it. If the plaintiff took the note on the faith of its having been given for capital stock in the Houston and Texas Central Bailway Company, and with the belief that this fact added anything to its value, or tended in any way to secure its payment, when the maker failed to pay it on its becoming due, he was surely put upon inquiry as to the fact, and, it must be supposed, would have sought to avail lrimself of such security. Certainly he would have done so after he had sued the maker to insolvency. The note was due in I860. Suit was brought upon it at the first term of the court thereafter. And plaintiff was informed by his attorney, shortly after his return home 'at the close of the war, that nothing could be collected on the judgment. He saw Spence, the maker of the note, before his death, which seems to have occurred in 1867, and was informed by him that lie coulcl pay nothing. And after his death plaintiff knew that his estate was utterly insolvent. Though the plaintiff could evidently have learned that the note was not given for stock, by inquiring from Spence or at the office of the company, he made no effort to inform himself on the subject. He must have learned that it was not a note of this character, if he had endeavored to avail himself of the security, if any, it entitled him to as a stock note, if the alleged representations were regarded as material; yet he did nothing of the kind. Hear ten years had elapsed from the date of the alleged false representations prior to the 30th of March, 1870, when, unquestionably, the statute of limitations would commence to run, if he had then learned of the fraud and deceit practiced upon him by the defendant. If he had not then become informed as to it, there had been certainly ample time for him to have clone so by the use of the least degree of diligence. Indeed, he could not have failed to have learned that the note was not given for stock in said company long before that time, if he attached any value to it on that account, except through the grossest carelessness and negligence. His ignorance of the facts, under such circumstances, certainly will notprevent the statute from running. The mere statements in the petition that plaintiff coulcl not have discovered that the alleged representations of defendant were false and fraudulent, by the use of reasonable diligence, evidently will not relieve him from the bar of the statute. If the want of such knowledge will prevent the running of the statute, it is not sufficient for the plaintiff to assert merely the conclusion that he coulcl not have discerned that the representations • made him were false, by the use of reasonable diligence, but he must state the facts upon which he relies, that the court may see whether they justify and support such a conclusion. The exception to the petition, on this ground, was well taken, and should have been sustained. And the verdict of the jury, on the plea of limitations, was against the law and evidence, and the court should have set it aside and granted a now ' trial.

The judgment is reversed and the cause remanded.

Reversed and-remanded.