*1 evidence. supporting We without criticisms, in order hence open, to these taken, position bare our reasons ex- rather the record gone have into tensively. rehearing have grounds urged All considered, finding no rea- duly
been decision, mo- change our son to is
Overruled. W. A. Curtsinger, and I. both Johnson J. Angelo, appellant.
of San Aldredge, Madden, Dallas, Shults & appellee. METHODIST UNI EVANS v. SOUTHERN LESLIE, Chief Justice. VERSITY. appellant, Evans, Herman instituted No. this suit against the Southern Methodist Appeals of Eastland. of Civil Texas. Court appellee, to recover certain Sept. sums of paid during as tuition some years three or four attendance a student Rehearing 22, 1935. Denied Nov. of that institution. The long sets forth somewhat detail his reasons matriculation and his purposes plans degree, major- to take a music, ing in For etc. of this decision, it is to state in detail allegations the various of his say it to Suffice that when the cause came on court sustained exception plaintiff’s petition. to the On his amend, refusal the cause was dismissed judgment was entered for the defend- plaintiff appeals, ant. The insisting the court committed fundamental error in said rulings. sustained was that
plaintiff’s cause of action was not commenc- prosecuted years ed and within two after accrued, same and that the same was therefore barred. order to reach a correct conclusion point presented, it becomes necessary to determine whether the plaintiff by reason of his having been fraudulent representations enter into a contract re- sulting or whether the one for rescission aof fraud. is well The law settled that one make is induced to a contract who a choice and fraud has of two discovery of the fraud. He af- *2 919 by ered the action set the amended damages; forth for his and sue contract firm the petition pro- recovery to of be one the the it sue he and or rescind damages upon or alleged based fraud in form- parted with. perty he has sold procuring plaintiff pay the the to tuition under va- upon affirms remedy and counts er alleged plain- the repu- In the transaction; circumstances. the latter lidity of the original petition upon its tiff’s he to recover seeks counts and transaction diates the out, damages money paid as all of held, sums the two invalidity. As often damages professionally of to him in the actual choice utterly and the inconsistent $10,000, exemplary sum damages of and because rejects the other $10,000, upon at the the sum of al- based the and void cannot be valid contract leged charge that failed to the institution same time. carry “continuing out with him the good au to be would seem There tract” which he with he them when merely a that proposition thority for the the matriculated in and which and de fraud based damages suit alleges he carry it had no intention to out from plaintiff estops conclusively the made. allega- when An the examination of of re ground any on the obtaining relief plaintiff’s original tions contained the the fact that the perforce of scission. petition original and his first amended damages is recover suit to bringing of the petition discloses a marked and substantial in contract of the itself the ratification of difference in the of causes action thereby waiv parties, the between them, by respectively. Although plain- the Farrell v. Rick to rescind. ing right a accomplished, tiff attending while the et 522; Wachsmuth Civ.App.) 266 S.W. gradu- 104-hour credits towards 821; v. al. Sims hours, ation the basis of 127 or 129 and F. (C.C.A.) 72 Hayden Stuart v. there, by although grades his admitted S.W. Cohen v. Wolff ects, good subj were in some and excellent in 1408, 2, p. Rescission, vol. Black on others, alleges he what he received un- in the difference The fundamental worthless, and, § der the contract was in the action well of the two causes of alternative, alleges he of a character tender limitation of and the statute recognized, etc., received, of or willingness benefits a equally well to each as bar a applicable quo and desire to restore the status of the merely one for the suit If established. Also, parties prerequisite a to as rescission. from contract arising a petition simply in his amended he sues for limitation of fraud, statute the by paid, the of has amount tuition which he Daniel, 102 & v. Rhodes Gordon applies. exemplary and does not seek and the actual Nat. Bank 300, 116 Citizens’ Tex. clearly set forth and demanded as Gravel Roads v. Good original petition. express No such 4, 5526, subd. article or intimation is to found the statement be seq., 124, 44 and p. Tex. § Jur. petition suggesting re- original a proposition. next under the cited authorities purpose of “rescinding scission. of a con be one the suit If annulling place finds said contract” a ' fraud, the tract petition. in the amended first time 1925, 5529) (R.S. art. limitation of statute After careful of consideration these Co-op. Inv. v.Co. Texas a bar. applies as petition, of elements the amended and oth- (Tex.Com.App.) Clark forth, ers to set and without Evans any opinion to expressing sufficiency as the 129, Civ. 5 Tex. petition to properly amended state the (Tex.Civ.App.) 26 S.W. Kasch Conrads of action for rescission a cause under the 798, 8, cases. § C.J. peculiar circumstances of this we have stated, Hence, controlling petition the amended concluded evi- plain the nature of the is as to question to such an extent dences disclosed his action as present tiff’s cause such a cause of pleader action peti His first amended fraud that we transcript, up in the was filed tion, brought holding that the not be warranted would 1933, merely to a peti the amended amounted said November controversy, barred the two- damages and therefore tion, 1934. Without July Hence, allegations, limitation. we are plaintiff’s according year statute peti- fraud, hold October constrained he discovered suit for rescission presents Evidently trial court consid- in effect These four-year statute authorities disclose that an action which trial court that the rescind a applicable pro- comes under alone is applying sustaining visions of Interpreting the above statute. erred of limitation. two-year statute cause action as re- *3 scission of a contract not in writing, we judgment of the error, the For this applied prescribed the limitation by the remanded. the cause court is revérsed above interpretation statute. If our It ordered. is so appellant’s correct, suit is con- above Rehearing. On clusion is sound. There is therefore no conflict this opinion we held In our holding and following of an oral was cisions, appellee: as asserted David tract. son v. Brady Commercial Nat. Bank of appellee com- rehearing, for In its motion S.W.(2d) Kuhn opinion in its over- plains that this court al. v. Shaw 223 S.W. appellant the suit of fact looked the Ferguson (Tex. v. Washburn et al. Civ. implied oral contract. was based an App.) 4 S.W.(2d) Citizens’ Nat. Bank if motion that this court It is stated of Cameron et al. Good Roads Gravel petition pleads should hold that the Co. (Tex.Civ.App.) Walter of fraud a cause of action Hancock, A. Wood Mowing Mach. Co. v. rescission, nevertheless and asks App. Tex. Civ. Harri asking for the rescission appellant would be City Sulphur son Springs (Tex. Civ. oral alleged “implied contract.” of an App.) City of Wink v. R. B. motion: is stated in the that connection it George Mach. appellant whether “It is immaterial reading 653. A casual of these cases implied an for breach of asks will disclose that not one of them involved appellant asks oral contract or whether applied right of rescis implied oral contract. rescission sion of a contract brought a suit alleged by appel- that it is The fact remains purpose. being a rescission contract, implied be an oral ‘where lant to they point are pretermit not and we the indebtedness is evidenced a con- ” discussion of these authorities with which writing.’ tract in we be in conflict. Consider it, point here in As we understand ing the nature of the cause involved in each is not so much the suits, proper period those limita plaintiff’s right it is the to re contract as applied. correctly was years, regard scind the same within four The manner in which this case comes less whether the was oral or us, presented before nothing is or consider- appellant’s writing. If the suit is one for except ed the fundamental error upon contract, rescission of a the decisions are which our decision is based. uniform effect that was first for considera- limitation, statute of and not the tion, sustained, cause dismissed. limitation, applies, statute of and that re Naturally, we have taken the allegations gardless of whether the contract was oral of the pleadings as true and we do not think writing. Article that under the law would be warranted Evans v. 5 Tex. Civ. in expressing opinion upon phas- other Co-op. Inv. Co. v. Clark merits, es or of the lawsuit. The motion rehearing Com.App.) S.W. 381.