116 S.W. 40 | Tex. | 1909
Certified question from the Court of Civil Appeals of the Sixth District, as follows:
"In the above styled cause appellants, plaintiffs in the trial court, by their action commenced November 14, 1906, among other things sought to recover, as against appellees, damages for deceit alleged to have been practiced on them by appellees in the sale to them of 1,808 acres of land in Red River County. From the allegations in the plaintiffs' petition it appeared that in January, 1902, Hocker and Cheatham, owning the 1,808 acres, and being anxious to sell same for $10,000, arranged with appellees to represent them in effecting a sale of same, agreeing, if they effected a sale, that they might retain for their services in doing so any sum in excess of $10,000 realized therefrom; that this agreement between appellees and Hocker and Cheatham, and the fact that the latter were willing to sell the land for $10,000, it was understood between them, was to be kept secret from prospective buyers, for whom, either alone or jointly with themselves, it was understood between appellees and Hocker and Cheatham, the former should pretend to act in purchasing the land; that taking advantage of confidential relations, fully set out in the petition, existing between appellee Daniel, who carried on the negotiations, and appellants, appellees, concealing the fact that they represented Hocker and Cheatham in the sale of the 1,808 acres, by pretending to act with and for appellants in negotiating for a joint purchase of same on their own and appellants' account, and by falsely representing that the land was not subject to *301 overflow from Red River, except during extraordinary rises, when it was subject to overflow therefrom during ordinary rises, and by falsely representing that the land was worth $20,000, and was a bargain at $12,500, when it was worth only $7,000 induced appellants, jointly with themselves, to enter into a contract with Hocker and Cheatham to purchase the land at the price of $1,500; and by the same means, shortly thereafterwards, to wit, on January 21, 1902, induced appellants to assume appellees' part of said contract, and to become the sole purchasers of said 1,808 acres.
"The trial court held that the cause of action stated for the deceit was subject to the bar of the two years statute of limitations, and, sustaining appellees' exceptions on that ground, dismissed the suit. Following Blount v. Bleker, 13 Texas Civ. App. 227[
"The cause being yet pending before it on a motion for a rehearing, in which the conflict between its holding and that of the Court of Civil Appeals in Machine Co. v. Hancock, supra, and, perhaps, Stanford v. Finks, 45 Texas Civ. App. 30[
The four years statute referred to in the question is article 3358, which fixes that time as the limitation for every action other than for the recovery of real estate for which no limitation is otherwise prescribed. The question whether or not it applies to the case stated in the certificate is therefore to be solved by ascertaining whether or not a limitation is otherwise prescribed.
Another provision of the statute of limitation which, in view of former decisions, may, we think, be held to embrace this action, is subdivision four of article 3354, which fixes two years as the period applicable to "all actions for debt where the indebtedness is not evidenced by contract in writing." It will be noted that this is not restricted to cases in which the indebtedness is evidenced by contract not in writing, but that it includes all actions for debt except such as *302
are evidenced by or founded upon contracts in writing, and this exception is made because the first subdivision of article 3356 applies the four years period to "actions for debt where the indebtedness is evidenced by or founded upon any contract in writing." It follows that if a cause of action be for a debt, in the sense of this statute, the debt need not be evidenced by or founded upon contract at all to come within the two years statute. O'Connor v. Koch, 9 Texas Civ. App. 586[
Where formerly there was only one provision for "actions of debt" applying alone to cases depending on written contracts, there now are two, one of which still controls that class of cases, while the other controls all other actions of debt. As this word is not used in its narrow technical sense, but embraces demands for unliquidated damages, the language of subdivision four, article 3354, compels the further conclusion that the cause of action for such damages need not rest in contract. Mellinger v. Houston,
Before the adoption of the Revised Statutes a limitation was prescribed for actions upon "open accounts," and in Lewis v. Houston,
That there were actions for which no limitation was provided before the adoption of the Revised Statutes had always been recognized by this court, and that omission was supplied by article 3358. Before that *303
article was adopted the courts, proceeding upon analogies, applied periods of limitation to actions for which none were prescribed by statute, adopting the time fixed for actions bearing the closest analogy to that under review. Tinnen v. Mebane,
In Smith v. Fly the cause of action was held to be an equitable one for the correction of a mistake in a conveyance of land whereby less was conveyed by the deed than had been paid for. A large part of the opinion is devoted to the proposition that a direct action at law for the recovery of the money paid, as for money had and received, would not lie, because of the obstacle presented by the deed, and that the right of the plaintiff was to sue for the correction of the mistake, and, incidentally, for the recovery of the money; and it was this cause of action to correct the mistake to which the court intimated the two years statute did not in terms apply. What is said in Blount v. Bleker, 13 Texas Civ. App. 227[
Other cases applying the four years statute, such as Cooper v. Lee,
