*1 Sims, Sims, Inc., by appellee filed and not Anto- detainer suit was Sims & San Jack Cavender, nio, McFarling against it. appellant. Cf. 1971, S.W.2d 478 —Beaumont Branton, Antonio, ap- L. San James permissive Although, under the writ). no pellee. 8, 21.- Article provision of Section venue 28-A, might have conservator supra, PER CURIAM. County, it was not done filed suit at Travis Appellee filed to dismiss its motion in this case. jurisdiction appeal for want of this plain lan- under the appeal lies Since judgment County at Law Court appellee’s supra, guage of Article County awarding Number of Bexar One granted appeal motion to this dismiss appellee right possession of certain hereby and the same is dismissed. entry
premises appellee’s forcible damages detainer No were awarded. suit. Tex.Rev.Civ.Stat.Ann., pro
Article appeal judgment vides that no lies from county detainer court in forcible damages judgment suit unless awards In excess of Pizanie v. Citizens $100. Martin Dies BUSH, Appellant, (Tex. Company, vestment Civ.App. [14th Dist.] —Houston Don et STONE ref’d). al., Appellees. No. 784.
Appellant does not well set- this rule, urges inapplica- tled that same is Texas, Appeals of Court of Civil ble county because the court here lacked Corpus Christi. jurisdiction. contention is based Oct. 1973. provisions the venue set forth in Section 21.28-A, Code, Rehearing Article Insurance Tex.Rev. Denied Nov. Civ.Stat.Ann., V.A.T.S., provides in
part: “Except for causes of action based policy terms of an . insurance
any compa- against an suit filed insurance conservator, ny or its after entrance an order the Commissioner Insurance placing company such insurance in conser- effect,
vatorship is in and while such order brought competent shall be a court of Texas, jurisdiction County, in Travis “The conserva- elsewhere.” Further: company appointed tor hereunder for such competent ju- suit in court of file County, Texas risdiction in Travis in con- undisputed appellee It is trial, servatorship at time changed. Irrespective such status question by of the waiver of the venue court, the manda- both in the trial upon by appel- tory provision relied venue applicable in that forcible lant
OPINION
NYE, Chief Justice. is a suit on fraud. based and his plaintiff alleged *3 fraudulent by the of a employees use deprived $124,191.23. him Sum- scheme disposed plaintiff’s suit mary judgment employees. appeal was had against the No summary judgment. The defend- from the by special exception, alleged, ant plaintiff’s suit was barred the two limitations, by laches years statute of four not al- plaintiff’s petition did and because tend to show the lege any facts be- existence plaintiff and the defendant. tween special sustained all the ex- judge trial The ceptions, plaintiff’s suit dismissed prejudice, held that as a matter law of ac- plaintiff had failed a cause tion. a trial court has sustained
Where exceptions dismissed defendant’s grounds case action, allege a we failed to cause of us requires familiar rule that follow alleged by all of the facts consider determining plaintiff are true. In whether erroneous, the action the trial court was must in addition all of such al we consider rea legations and inferences sonably arise therefrom which would tend give a cause rise to establish of action deter of fact that should be issue White, jury. mined See Wheeler (Tex.Sup.1965). Willacy plaintiff was a farmer The County. also a The defendant was farmer the owner of the Gin Willamar plaintiff Raymondville. The located close and defendant became beginning in remained friends 1939and plaintiff Servando the next The Gonzales, years. such for Jr., Judin, Ellis, H. Barron, Gonzales if he McAllen, & trusted the defendant the same as appel- lant. family. a member of his own were fact, plaintiff’s lived for older brother Briscoe,
Gordon L. Harlingen, appel- many years in defendant’s father’s home. lee. at least one On occasion the
stayed the entire
proceeds
summer
the defend-
from such
The
from such
loans.
ant’s father’s
home.
and de-
the defendant and
loans
disbursed
repeated
agents.
fendant had
business contacts
hunted,
throughout
years. They
visit-
In connection with the
farm-
ed,
repeated
togeth-
and had
contacts
social
ing operation
paid
all of the
er.
defendant on
occasions in-
several
expenses
farming
at the end of the
vited the
hunt with him on a
provided
the defendant
Ranch,
special hunting
at the Yturria
lease
accounting
with an
said
be true and cor-
places.
aswell
other
particulars.
rect in all
During
continued from 1956 until 1965.
September,
day
On or about the
1st
period,
made all of the
entered
and defendant
payments
in connection with
whereby
the de-
into an oral
*4
purchase
“Postas Blancas”
tiff’s
the
agreed
process
and
all of
of
gin
fendant
Bryon Campbell.
payments
These
tract to
plaintiff’s
grain
raised
him.
cotton and
Campbell by the defendant
were made to
arrangement
to continue and re-
This
1969, Campbell’s
from 1956 until 1965.
by mutual
main in effect until terminated
plaintiff of
dis-
administrator notified
agree-
agreement.
the
Under
terms
payment of the note.
in the
crepancy
plaintiff
turn
to the de-
ment
was to
over
provide
Plaintiff
the defendant
asked
produce from his land
fendant all of the
de-
necessary
him
information to
with the
process and
The defendant was
for
sale.
paid
termine the
on the note.
price
total amount
market
pay plaintiff
the current
It was
the
to do.
then
defendant refused
pay
and
the
every
for
bale of cotton
plaintiff
then that
that the 1956
discovered
price
grain.
current market
for
payment
$2,509.90
on
in the amount of
due
known
acres
plaintiff owned 276
paid
purchase
the
of
farm had not been
his
purchasing.
he was
Blancas” which
that,
“Postas
wife
the
At
he
his
defendant.
and
two
a tenant
Additionally,
farmed as
he
suspicious.
became
wife went
Plaintiff’s
the
agreement
the
acre tracts. Under
gin
to the
defendant was
when the
purchase
all of the
was to make
and,
gin per-
the aid of the
plaintiff’s “Postas
money payments on
sonnel,
an audit of the books
conducted
plain-
pay
plaintiff;
farm for the
Blancas”
making copies
and
of all of the
records
rent-
the amount due
tiff’s landlords
plaintiff’s operation
pertaining
records
money
tracts; and make
ed farm
his
with the
As a
of
au-
defendant.
result
plaintiff’s
for
to the
dit,
advances
the secret fraudu-
discovered
farming ex-
expenses and
personal living
perpetrated
lent
scheme that defendant
over
agreed to take
The defendant
penses.
against him.
necessary in
bookkeeping chores
all of
fur-
accountings
The annual
which were
and to ren-
connection with
prepared
the defendant were
nished
plaintiff at
accounting to
der an
very
they
carefully so that
did
showing the
farming year
each
end of
or that
fraudulent scheme existed
pro-
of
amount
the total
produced,
amount
any way
would in
become sus-
received,
expenses and
ceeds
picious
inquiry as
put
otherwise
made.
disbursements
withholdings
plain-
to the fraudulent
pro-
all of the
money.
received
tiff’s
The defendant
grain
plaintiff’s
sale
ceeds
yearly
receiving
ac-
Plaintiff after
each
show-
accounting
cotton,
rendered
pick-
counting
compare the
would
cost
receipts
disbursements.
ing all
sold.
ing the cotton to the number of bales
obtained
Additionally, the defendant
average
The result would show that
the benefit
made for
loans
guaranteed
picking
compared
cost
to the number
when
proceeds
received the
An
(1943); Wise
comparable yield represented to assuming was all the If above by him not as correct was alleged by plaintiff are true and that facts compared pre- unreasonable when to the minds as to the ex reasonable could differ year yields. vious question applicability, tent of their then the plaintiff as to exercised whether plaintiff The reports relied is degree diligence requires that the law the annual accountings by furnished jury question one of fact for defendant and did not discover short- of law for the to decide. The mere Court ages until informed of discrepancy plaintiff opportunity that the fact had the payment by land grantor-mortga- his power investigate fraucf, is or to Í gee. The then promptly acted charge sufficient to him law with and thereafter discovered the fraudulent knowledge. party The-defrauded perpetrated scheme by on him the defend- or_ajsaie cognizant of facts as would have ant. This was shortly suit filed after the ordinarily intelligent pru- caused the discovery actual of the fraud. Hunt, investigate. I dent man to Ruebeck v.
supra;
Wright,
Tex.Civ.App.
Isaacks v.
;
(1908,
denied)
writ
The law is
S.W.
pre
clear that fraud
Edsall,
(Tex.Civ.
Edsall v.
been discovered. Knowledge of facts believe that the We would inquiry have excited in the mind of sufficient which taken most reasonably prudent person, pur if favorably case, his toward shows that he by sued him with diligence fraud, not aware of the he re nor was fraud, would lead to the discovery of is quired investigate to further than he did. equivalent knowledge of the fraud as a harvesting operation entire was con His Hunt, matter of law. Ruebeck v. 142 Tex. trolled the defendant. The cotton and grain person were sold the defend- hold a to a certain standard of dili company. ant’s The defendant gence protecting acted when own af bookkeeper, arm’s-length transaction, accountant fairs in an money inquiry lender. made required discovering fraud, accounting depends showed that the he re- on the relative circum appeared ceived to be As relationship reasonable. parties, stances of the picking cotton, appeared expecially to be where a condition of exists correct when tested the total number of parties. relationship between the “ Such bales reportedly expense sold and the informally . . arise . ported. yield ‘moral, social, The total from the purely personal’ domestic or crop, approximated yield pre- relationships, (citing authority) The ex years. vious Under these circumstances it istence of is to reasonable for the to believe be determined from the actualities of the the defendant was giving him a true persons between involved.” accounting proceeds crops. Thigpen supra. Where the v. fidu system devised ciary relationship the defendant was or an issue of fact exists (harvesting, selling, closed circle present, diligence account- 6*on this ing and payment), which the al- party prompt does not exact as defrauded leges was completely controlled the de- searching and as into the con inquiry fendant. These do not party par duct of the other as where that “as a matter of law” that the plaintiff]' strangers ties dealing or were with had knowledge of facts that strangers. i Biggers, Eastman S.W. required inquiry. him make further Sm 439 (Tex.Civ.App. 1968). The —Dallas Employers Liability Mutual Insurance Co. party mere fact that the defrauded has the Murphy, power investigate ^opportunity —Eastland e.). fraud, n. r. charge him sufficient fraud, knowledge
notice so as *6 running start of the statute limita why There another reason is question knowledge is a tions. The of the dismissed the trial court should have relationship fact is issue. a Where discovery pre rule suit. trust,_qr, confidence, the law seems to /viously primarily is to discussed be used impose upon duty Ed- “arm’s-length / transactions”. Edsall v. make a full of the facts so that disclosure sail, lenient supra. A different and more | may the fraud If he discovered. doesn’t applied is qne__who standard i this, do it has re- been held rule wEete—a—fiduciary.,jrglationship 1 defrauded — quiresCactual noticS^pf the fraud before parties. exists b£tee.en».the Courseview limitation is set into motion. statute Co., Phillips Inc. v. Petroleum 158 , Tittle, County Franklin Trinity-Un (1957); S.W.2d i (Tex.Civ.App. writ Maxwell, 101 versal Ins. Co. v. S.W.2d —Texarkana t-ref’d). dism’d). writ i —Austin alleged, I Under the of this case as rela- parties’ the case before us the 'relationship de between the tionship long period extended for a of time arm’s-length transac fendant was not an They of 26 worked to- years). excess (in tion, exactly nor it a transaction was contacts, gether, they repeated had purely fiduciary technical relation where family-type In the were close friends. apparent ship fraud exists. The present acted in one case the defendant it so obvious that the on face that made its partner as and a for sense a banker fraud should have been discovered as guaranteed plaintiff. He obtained Thigpen matter law. See collected The defendant loans him. (Tex.Sup.1962). The courts S.W.2d type proceeds re- of the them in each He held “trust”1 funds. 35% act- involved and that the at hand later He means were lationship for disbursement. money plaintiff to fraud had agent receiving for the discover the ed as plaintiff’s diligence in he he made an grain and used from the of cotton and sale quiry as he did on when the payments the occasion order disbursed Where, actually fraud was as plaintiff’s mortgagee and creditors. discovered. other here, guilty is an affirmative party notice Supreme 'The Court clarified of,.a fact, misrepresentation he fraudulent applies fiduciary rule as it permitted urge that should said, when what we have summarizes noRbe party discovered defrauded could have it stated that: investiga maHe’an diligently truth had say that perhaps “It more accurate Trinity-UniversanHsT" v. Max tion. Co. relation of trust existence well, (Tex.Civ.App.— change does not the rule confidence In all cases of dism’d). Austin discovering the fraud is diligence or embezzlement concealed fraud be application quired it does affect doing very wrong comes obvious that a rule, By en- (citations omitted) place after fraud has been dis taken ‘ relations, par- fiduciary tering into you But a trusting have covered. where ties as a matter of law to consent discoverTie it is hard to fraud their measured conduct standards yet to this is and harder But believe. loyalties finer exacted the courts question before the Court. The equity, (cites omitted) has used is whether cir- relationship is therefore one necessary to discover to be in determin- cumstances considered circum fraud when tested the relative ing might been dis- whether fraud stances and "conditions covered the exercise particular"facts' Surrounding this case. diligence. It excuse the defrauded in this case believe the situation We taking that would be party action S Limita- appropriately stated in 54 required transaction arm’s-length C.J.S. 189,p. of Actions tions searching making prompt § n ex- might investigation otherwise Fraud; Discovery of Amounts to “What pected. ! In some situations there is Necessity Diligence or Conceal- legal dis- duty to use means available for that: p. : it is said ment” where 193) ” (at | fraud, (Empha- . . covering . seize lightly will not “The courts added) sis *7 deny relief some small circumstance to have been Co., party plainly a shown Courseview, Phillips Petroleum Inc. those de- actually against who defrauded 397, 197, (1958). 158 312 205 S.W.2d him, he ground on did frauded and today is in Texas This rule followed that he discover the fact in a of decisions nationwide. number done; might have cheated soon as he (Tex. 363 247 Thigpen v. party defrauded only where the 434 S.W. Biggers, Eastman v. Sup.1962); the fraud 1968, plainly should have discovered no 2d (Tex.Civ.App. —Dallas inattention except inexcusable also, Fraud hist.); see Tex.Jur.2d discovery a charged with 88, 33; will Deceit, p. Limita and § C.J.S. Actions, 189, 188; A.L.R. p. knowledge tions of actual in advance § 3rd (1972). subject.”
' appropriated approximately from 12% [16] The defendant contends that he 2d 709 In Hogan v. Hidalgo —San County, 246 Antonio 1952) S.W. Dictionary, 4th Edition.
1. of “trust” —Black’s Law See definition opinion BISSETT, by in an Murray (dissenting). Chief Justice Justice Court said: affirmatively respectfully I It dissent. opinion are appears “We that defendants from the face of the Bush, negligence by invoke coun- which was filed Martin Dies , defendant, ty failing plaintiff, against Stone, to discover commissioners Don plain- they by Powell’s fraud had that the action cause of asserted after
knowledge facts, two-year such notice of tiff is barred statute in- Therefore, other facts excited did limitations. when quiry in a ordi- person given the mind of amend pleadings, though nary prudence that, pursued so, if rea- opportunity proper- to do trial court sonable diligence, would led to ly dismissed the case. knowledge defalcation, of such and that petition, As I read are
^ appellants position are in no to invoke support therein will plea behalf of their limitations finding, inference or conclusion negligence county commissioners relationship by the oral occasioned perform statutory in a failure to their agreement Sep- on that was made or about duties in the absence of some 1, tember 1956 continued 1956 until “from amounting to notice of such defalcation.” 1965”, by majority page as said (emphasis supplied) opinion. alleged its Plaintiff that he defendant became “close friends plead things There are four 1965”, during years through true, a fact tiff which taken as establishes “pursuant agreement” to said he delivered rise to giving or an of fact inference his harvests to defendant for the confidential that should 1961”, “1956 and that defendant They prior busi- jury. are: 1) solved complete “maintained posses- control and contacts; type re- ness the banker-client 2) bookkeeping September sion principal agent and lationship; 3) through September I con- 1961”. type relationship; the close 4) the rela- clude from those averments that friendly family-type ties. tionship between great emphasis on appellee places The which resulted from the did plead. what the failed beyond September extend question not the at all where the trial court friendship that their ceased at the end my opinion, dismissed suit. the relation- subsequent trial that must be ship resolved on plaintiff, according between pleaded, (tak- relationship, is whether the facts that are pleadings, arm’s-length was an en as inferences true) the reasonable not a of trust confidence. therefrom, entitles obtained during the frauds occurred a trial on merits when faced period September that commenced on plea has de- limitations one who September 1956 and terminated on frauded him. *8 filed on 1961. Suit was December years more the last than nine after hold the at We met committed, fraud was and almost five answering least the the minimum burden of years friendship after the between statute by pleaded. of limitations the facts Therefore, and defendant ceased. believe We the a trial on deserves more, plaintiff’s asserted of without cause the merits. judgment of the trial limitations., clearly by action was barred accordingly court is reversed and the cause Plaintiff that he did discover alleged is remanded for trial. frauds fall of his
the until the when inspected Reversed and remanded. and defendant’s books wife
893 Walker, clearly they plain Mr. stated as related to records insofar Justice applicable beginning rules to farming operations years for the tiff’s But, running in an of the statute of limitations hereafter will arm’s-length relationship, detail, in in the most as follows: only noted some allege dili general terms does “The that the statute rule is well settled gence him to discover the exercised time begins at of to run such limitations practiced charged have been fraud discovered, ex- is fraud are, in allegations him defendant. Such diligence might have ercise of reasonable the re opinion, to meet my insufficient arm’s-length In an discovered. pleading rules in a quirements of the of party ex- the defrauded transaction grounded action is case where the ordinary protection ercise care for misrepresentation. I fraud because of As charged of is own and his interests petition, plaintiff’s of ac view the cause knowledge all of facts which would run, began to tion accrued and limitations by reasonably prudent been discovered actually not from the time the frauds were person similarly And failure situated. discovered, from time the frauds buc diligence is not to exercise reasonable use of might have been discovered mere in the hon- confidence excused Sipper, diligence. Sherman v. party. esty integrity the other and (1941); 137 Tex. S.W.2d 319 Baker, (1879); Kuhlman Tex. Moore, (Tex. ap- It
Carver v. 288 S.W. noted that a different rule also App. relationship, 1926). plied Comm’n in a to-wit: analysis allegations hand, An contained “On the other limitation does plaintiff’s petition respecting begin in in run of a favor trustee shortages against for cotton each of the cestui the latter has no- until trust, repudiation reveals: tice of a duty investigate least at knowledge
until
the cestui has
inquiry.
.
.”
sufficient
excite
.
contained
experi-
was an
enced,
farmer,
large-scale
de-
who trusted
implicitly
con-
fendant
and had
utmost
integri-
honesty
fidence in
defendant’s
planted
in Grain
harvested
ty. I
that a
recognize
rule
years,
two of the
1961. Plaintiff
can,
and often
and confidence
production figures
did not
nor
does,
purely personal
relation-
arise from
alleged shortages
pounds
any
oth-
time,
ship, when,
long period
over
planted
er unit of
the acreage
for
measure
parties
together
joint
have worked
Instead,
grain.
simply
stated
acquisition
development
property
year 1960,
for the
not credit
defendant did
previous
the particular
acres,
grain produced
him for
sought
to be enforced.
Fitz-Gerald
damage
$4,206.60,
sum
Hull,
(1951).
make defendant a “banker” for
relationship existed
any
confidential
sup-
nothing
There is
in the
pleadings
Conclusions
between him and defendant.
ports
parties
an
inference
were
to that effect are not sufficient.
“partners”.
The fact that defendant
paid plaintiff’s
during
debts
his
plaintiff’s
including
allegations,
All of
a re-
1961 does not establish
set
subjective
and his
feelings
conclusions
lationship
and confidence with
of trust
rela-
petition,
forth
show that his
spect
any
in this
This suit is
issue
case.
tionship
at arm’s
with defendant was
defendant,
not based
the failure
allega-
In
length.
particular,
are no
there
pay
agent,
money
due
relationship
a
tions of
that show
fact
allegations
tiff’s
There are
creditors.
because
and confidence
this case
trust
joint
a
venture between
establish
relationship.
long-time purely personal
of a
defendant,
they
or that
were
perform agreement
The mere failure to
together
any
associated
Plain-
business.
itself
carry
promise
out a
cannot
allege
agree-
tiff does not
that the 1956
rela-
give rise to a trust
confidence
part
ment
was induced
fraud on the
tionship
a
relation-
that creates
nothing
defendant.
There is
prom-
promisor
ship between the
under
to indicate that
isee,
itself
not in
since such a breach does
parties
disability, that
duty
an abuse of confidence
constitute
equal
capable
dealing
with each other on
constructive
requisite to
existence of a
terms,
or that
made the
Trusts,
221, p.
trust.
See
§
Am.Jur.
performed
thereunder
of an
because
by defendant.
overmastering dominance
be-
Nothing
friendly
than
relations
more
Moreover,
of confidence
if the existence
in de-
tween the
and confidence
veracity that
integrity
in the
plaintiff’s part are shown
fendant on
excuse
had in defendant is
sufficient
pleadings.
enough
This is
of reasonable
relieve
use
and con-
of trust
or establish a
important a matter
so
discover
law,
raise a
fidence as a matter of
or to
grain
true
of cotton
quantity
as the
order
respect
fact issue with
thereto.
farms,
this excuse
produced
then
confi-
of trust and
to create
rela-
long
so
as the
effective
dence,
continued,
tionship of
and confidence
trust
agency
approximate
which
then commence
and limitations would
kind,
relationship, or
professional
some
quantity
that the
run, not from the time
be-
tie;
family
something
there must be
production
of cotton
dili-
ordinary
use
been discovered
friendship and unilateral
sides
*10
895
19
113
McBurney
Daugherty,
S.W.2d
relation-
from
that the
gence,
the time
1929,
dism’d).
writ
(Tex.Civ.App.
to ex-
and confidence ceased
ship
of
—Austin
110, 18
S.W.
James, 83
Bass v.
ist.
duty
a
party claiming fraud has
assuming, arguendo,
Here,
(1892).
336
protecting
in
diligence
reasonable
use
exist, accord-
relationship did
a
that such
Thigpen v.
affairs.
own business
that can
inferences
ing to
person
a
that
trusts
supra. The fact
allegations,
plaintiff’s own
from
drawn
is not
placed confidence
another
1961,
September
on
ceased
in in-
diligence
lack of
to excuse
sufficient
friendship be-
longer
was no
and there
relating
busi-
aspects
all
to his
vestigating
the end
and after
from
tween
300
Lindsey Dougherty, 60 S.W.2d
ness.
event, more
In either
;
ref’d)
writ
(Tex.Civ.App.—Amarillo
before suit
years elapsed
two
than
Boren,
Tex.Civ.App.
Boren v.
filed.
(1905,
ref’d).
writ
S.W.
rule in this State
long
It
comparison
that a
Plaintiff’s
are
of fraud
vague allegations
to the
picking
cost of
the cotton
the bar
case out of
take the
sufficient to
appeared
of cotton sold
number of bales
al
The mere
of
statute of limitations.
him,
years past
and that in
did not discover
that the
legation
comparable
experienced
yield
he
by the
have
the fraud
nor could
discovered
fac-
reported,
so
are insufficient
not,
it
diligence
does
use of reasonable
diligence when
allegations of
tested
tual
self,
prevents the run
afford a
basis
in the foregoing
rules
cases.
announced
ning of the statute. Plaintiff should
accountings
A mere examination
further;
facts
gone
alleged
he
should
nothing else
themselves
he
not have discovered
that showed
part
plaintiff,
be-
dili
the fraud
the use of reasonable
hardly
expected
it would
cause
Baker, supra; Bre
gence. Kuhlman v.
person seeking
find
diligent
out whether
McLean,
(1876);
Lo
mond v.
45 Tex.
the entries contained therein
were true
Taylor,
(Tex.Civ.
gan v.
correct would make such
determination
h.);
App.
n. w.
Cohen v.
—Austin
solely on the basis of the
con-
information
Shwarts,
(Tex.Civ.App.1895,
S.W.
reports
in the
tained
that were furnished
h.).w.
n.
very person
posi-
him the
who was in a
perpetrate
upon
tion
a fraud
him. See
person
When
seeks
avoid the bar
Corporation,
McGinley
Carr v.
ground
statute
limitation
(Tex.Civ.App.
n. w.
—Texarkana
fraud,
upon
it is incumbent
him to
h.).
relies,
facts
which
so
court
the_
determine
from
petition
Plaintiff’s
de-
shows
while
whether he
entitled
sought.
relief
misrepresent
yields
fendant did
true
appears
If it
from
nevertheless, there
accountings,
several
readily
means were at
hand
discover
(in
posses-
defendant’s
existence
complained of,
fraud
and such means of
sion) at all
records
true
accurate
times
information
would have been
used
production
the actual
person
ordinary
prudence
care and
operations.
farming
Plaintiff
bound
business,
conduct
then he
his own
to have had
of the existence
notice
will be held to
every-
have had notice of
records,
those
and would have been
thing
a proper
use of such means
actually
easy
matter for
to have
Bond,
would disclose. White v.
362 S.W.
inspected
within a reasonable
such records
2d 295 (Tex.Sup.1962);
Sip-
Sherman v.
year.
crop
each
time after
close of
per, supra;
March,
Powell v.
and records. perpetrated, plaintiff, by ing alleged shortages the last fraud was was available to used, readily successfully during years ques- methods then each in of fraud, why alleged tion. The shortages detected the there is no cotton for the reason years out, to then could 1956 to when averaged resort such methods before accomplished purpose. year’s amount to about of each pro- not have the same 17% Thus, James, supra. appears year duction. For the Bass v. al- leged plaintiff’s actually produced that his farm allegations that own cotton, reported of detecting of at hand bales means the fraud were paid only alleged during years question. all of in bales. short- Such would, age (195 year bales) comprised for that my judg- of means information ment, production year, of the for the plain- used have been farmer 35% $32,943.30. had an position in value of Such tiff’s the transaction of business shortage, during very which occurred pertaining farming operations. to his Therefore, following making first should be held to have agreement, should have alerted to everything inspec- had notice of which an something wrong tion fact that posses- of the records in with defendant’s disclosed; accounting. sion would defendant’s It is and the failure difficult plaintiff’s understand how a farmer seasonably avail himself skill, ability previous experience such means avenues of information that or land, farming large tracts of presents available to him could have al- issue court, shortage crop lowed of his law for the and not a cotton decision 35% single year, average shortage or an fact for the determination question, go over the un- jury. Boren, supra. Boren v. 17% quantity grown noticed. The cotton Plaintiff’s show that he ac- by plaintiff and delivered defendant was cepted accountings the annual without plaintiff’s business, so basic to question, attempt verify and made no tiff’s investigate failure determine kept entries therein contained. He production figures himself true produc- relating records his own to the important such a vital and matter farms, tion of cotton and from his can neglect, be attributable to his own expenses are no al- incurred. There circumstances, which under the constituted legations that access to defendant’s record ordinary diligence. want of concerning production figures appears It so conclusively from the alle- plaintiff’s plaintiff, farm were denied gations plaintiff’s petition that he had defendant, such records were concealed discovering alleged, means the fraud defendant, request by plain- after failed to exercise the tiff, supply plaintiff refused to with infor- quired it, himof law to discover mation concerning oper- farming ordinary minds in regard could not differ ations. Plaintiff does not that de- it, special and that exception defendant’s him, overcharged fendant or that he was cause of action was barred paid price the market for the cotton two-year statute of limitations was and grain produced reportedly from his correctly I sustained. would affirm farms. judgment of the trial court.