11 Tex. 642 | Tex. | 1854
This suit was brought in the District Court of Walker county, by the plaintiff, to recover from thedefndant the sum of three hundred and fifty dollars, with interest, from the 12th day of April, 1843, and for the further sum of forty dollars with interest thereon from — day of- 1846.
It is alleged in the petition, that on the 23rd day of January, 1846, the said Houston assigned to the petitioner a certain judgment, obtained by said Houston, against Mirabeau B. Lamar, in satisfaction of a judgment obtained by one Jos. W. Meek against said Houston in the District Court of Washington county, which assignment is under the hand and seal of the said Houston, and is made profert of as part of the petition, in which the said Houston represents the judgment, so assigned, to have been recovered in the Supreme Court and to have been for eleven hundred and one dollars and seventy-three cents. It is averred that no such judgment was recovered by Houston against Lamar. Petitioner alleges that Houston recovered against Lamar, in the District Court of Har
The assignment of the judgment against Lamar, in satisfaction of Meek’s judgment against Houston, is pretty much in the terms stated in the petition, with the exception, that it does not contain any guarantee of the judgment, nor the amount against Lamar.
The plaintiff amended his petition, alleging that satisfaction of the judgment against Houston had been entered in Washington county.
The defendant pleaded the statute of two years limitation ; to which the plaintiff excepted; his exception was overruled ; and there was a judgment for the defendant.
The plaintiff assigns for error, the sustaining the plea of the statute of limitations of two years. He contends that the statute of two years does not apply to this case, because he says the suit is on a written contract. And 2nd. If the two years statute applies, it did not commence running, until the mistake was discovered, in the amount of the judgment against Lamar.
We cannot regard the action as founded on any written contract for the amount sued for. There is no guarantee in the assignment, that the judgment is of the amount stated, and therefore no written undertaking to pay the difference.
The first section of our statute of limitations has this provisions in it-: “ And all actions upon open accounts, other
It would seem that if it were admitted that a mistake would prevent our statute from commencing to run, in any case, it ought not to be so held in a case like the present. The judgment was a matter of record. Why the plaintiff did not seek to have it satisfied, for almost four years, is out of the ordinary course of business; and had he sought, to have it satisfied, from that time he certainly must have known of any deficiency in the amount. The judgment had been rendered in 1843, and he had become the owner of it in January, 1846. Can he expect to gain credence, when he says that he did not find it out until 1849, although he knew that it had been rendered at the Spring Term, 1843. The facts, set out in his petition,, contradict his assertion, that he did not know it, or by ordinary attention to his interest, he could not have discovered it long before the time he alleges he made the discovery. This negligence and long delay would have denied to him any advantage, from his alleged ignorance of the mistake, on the principles of equity. The defence could never be set up at law, against the statute. This is sufficient to dispose of this case.
But, for myself, I would go further, and doubt whether mistake or even fraud, would take a case out of our statute of
There is, indeed, much reason, why such exception should not be made. It will be admitted by all, that the allegation of mistake or fraud will require the support of evidence to. establish it, as any other fact, and may be rebutted and explained in like manner, by proof; and it cannot be doubted that time, in its destructive march, may and will be just as likely to sweep away in its course, all such evidence, as readily as that of any other facts. The judgment of the Court below is affirmed.
Judgment affirmed.