*1 sought theory upon appellee monthly which a recov- the amount deducted his DCS from ery in pleadings his was that DCS had paid into trust fund. commissions and the wrongfully converted the funds withheld proposition. We are not with this in accord appellee’s monthly commission check. plan agreement not been a pension Had thе Furthermore, jury the that found DCS DCS, of gratuitous undertaking part on the agreed with York make all contributions appellee conceivably have been able might to the fund and also that DCS made the beneficiary to sue and recov third-party as contributions with funds deducted from his of contract. theory er on the of breach Thus, сommissions. pleadings based the However, to fund the agreement since the and the foregoing findings, we concluded duty on the plan purely voluntary, no that the issue wrongful of conversion was arose, appellee and as part a result DCS raised. appellants When in their brief chal- acquired right assert a cause аction lenged foregoing findings the on the Avinger Camp thereof. v. breach ground that the findings sup- were not bell, ported by evidence, concluded, we e., 505 1973) Dallas ref’d n. r. writ believe, still that the issue of conversion jury that became a viable issue some calling for dis- found his appellee right did not waive position though even did appellants spe- not complain plan funding of the of the cifically any discuss of the elements of con- funds from his commissions can withheld version in their brief. not serve to a cause action for create
Turning to the contract feature where no gratuitous breach of a contract case, appеllee points out such cause of the first existed breach of theory, although contract spe not instance. motion is overruled. cifically pled, was tried and submitted to jury by consent. points Further he out appellants admitted in brief their “the ultimate issue as to the contributions
to the pension plan is or not whether DCS
breached agreement with plaintiff as to
funding plan and the manner
which it was recognize, funded.” We as we
did in our original opinion, breach LINTZ, Appellаnt, Melvin theory contract was tried consent. However, attempted as we out in point
our original opinion, there is no evidence al., Appellees. et Eastman DILLON that DCS ever made any agreement with No. 8084. York individually, promising him that would make all pension contributions to the Texas, Appeals Court of Civil plan out of corporate York signed funds. Beaumont. pension plan agreement in his capacity Thus, as trustee. pension plan agree ment cannot be private construed as Rehearing Denied June agreement between York and DCS. On Motion for Rehearing appellee contends
that he was a third party beneficiary under pension plan agreement. Based on such
premise, he argues that since DCS contract
ed with the trustees to plan fund so,
failed to do it breached its contract and
therefore he a right, third-party had as
beneficiary, to enforce funding provi
sions of plan damages and recover *2 Forbes, L. Caplan, Arthur L.
Goodman Houston, appellant. for Houston, appellees. Knapp, Fred J.. DIES, Justice. Chief Dillon, Union sued Eastman Melvin Lintz recis- Dodd for and Sam Securities & of Omnitec for the sale a contract sion of to Lintz. Dillon by Eastman securities the basis of recission on sоught Plaintiff A(l) for Tex.Rev.Civ.Stat.Ann. securities, or on the failure A(2) of untrue because of material statements or omissions the Omnitec stock On March time the sale.1 Trial was to made at the regis- jury. without a was not the court The stock actually issued. Act, nor tered under the con- of fact and findings The court made Act of 1933. federal Securities under the clusions of law that: cause stock on paid Plaintiff defendant A(l) for failure based on art. 581-33 commenced 1969. Plaintiff the securities *3 February Dillon on against Eastman of limitations in art. 581— three-year statute on C; as a defendant (2) 28,1972, Eastman Dillon nor Dodd joined 33 neither Sam and A(2) because nei- Dodd violated art. 581-33 March or оmission
ther made an untrue statement point argues reply first Appellee’s Lintz; (3) if Dodd did of material are multi of Error Points appellant’s omissions, make such false statements or 418. of Tex.R.Civ.P. and in violation farious by this action art. 581—33 C was still barred Appellant with this contention. agree We his burden of because Lintz did not sustain Error, referring to a Points of has four 30, 1969, he proving prior Error of sixty-nine Specifications total of faults could not have discovered such the brief. care; appendix to (4) in an ordinary of if contained through the exercise primarily or are Eastman Dillon made false statements of Error Specifications These fact, this actiоn was omissions of material evidence” and “insufficient “no evidence” by also art. 581-33 C because Lintz barred actual appellant’s constitute points, and proving of did not sustain his burden Appellant’s of error. points substantive 1969, 28, he could not prior February are of his brief body Points of Error through have faults ex- discovered such stаtements, conclusory nothing more than care; (5) ordinary ercise of the transaction about the nothing by themselves and reveal under the exempt registration was Point of complaint. appellant’s and; 1933, Act Lintz was thirty-two “no contains Error No. 4 alone recovery by barred from the doctrine “insuffi twenty-four and points evidеnce” judgment The trial laches. court rendered points. cient evidence” defendants, Lintz instituted this and appeal. strongly disapprove Although we recognize we briefing, of this manner of 14, 1969, Dodd, On February a stockbro liberally to be briefing rules are that our Dillon, ker employed by Eastman tele concen litigants to allow cоnstrued so as to phoned Lintz and recommended Omnitec and substance on the energies trate their securities as an attractive investment. This We appeal. an technicalities of not the recommendation a solely was based on Supreme Court by our memorandum from Eastman Dillon’s re have instructed been suffiсiency search and department. a Dodd had not seen both the “pass on statement, sheet, financial balance or earn light ‘point’ merits of the record, ings nor was he aware of Omnitec’s thereunder.” argument statement and registration when he status recommended 577, 169 Tex. 140 Wagley, Fambrough v. purchase. Based on Dodd’s recommen v. Mack (1943); O’Neil dation, Lintz 1000shares of bought Omnitec (Tex.1976); Inc., Trucks, 542 S.W.2d basis, stock on a as and if issued” (Tex.Civ. Muskiet, 561 S.W.2d Eoff v. share, per 500 shares at and 500 $12¼ e.). r. ref. n. writ App—Beaumont per shares at share. This stock was $13x/4 review our standard apply this We will its plaintiff by sold to Eastman Dillon on brief. appellant’s examination by own accоunt. The sale was confirmed Specifi in his first argues Appellant February by and telephone erred in trial court of Error that days one or two business later. cation letter under, under, be reviewed and will sub- was tried Tex.Rev.Civ.Stat.Ann. art. 581-33 ch. Sec. stantially by Legislature. Tex.Laws law. See rewritten the 65th Tex.Rev.Civ.Stat.Ann. at 348. See However, (Supp.1978). this action Comment change in when the being a substantive claim under Tex. appellant’s finding run, we be- begins to period A(l) for fail- Rev.Civ.Stat.Ann. change in merely clarifying lieve that it ure to the securities limitations, language. be- three-year statute of establishes undisputed cause the evidence policy in It is a well-established three was filed within that the action not limitations does that a statute of agree We the “contract of sale.” has a cause of action begin to run until contention, reverse and accordingly Crosland, 417 S.W.2d Atkins v. accrued. appellant. judgment render Clay, 237 S.W.2d (Tex.1967); Cox the statute of The trial court found n. writ ref’d (Tex.Civ.App.—Amarillo to run on bеgan Juice, limitations Inc. v. S. e.); Puretex r. Lemon 1969, when Dodd to appellant instructed Dallas, Inc., & Biekes Sons of Omnitec on purchase 1000 shares writ Antonio —San *4 Juvenal, this as and if issued” basis. Under e.); Lowery ref’d n. r. v. interpretation, the statute of limitations (Tex.Civ.App. S.W.2d 119 —Amarillo began to securities register failure to the is some e.). Where therе writ ref’d n. r. action, the before securi- run more than two weeks right to the condition interpre- accrue, This the ties were even in existence. nor does not the cause of action the limita- conceivably run, allow tation would until begin to period limitation entirety in before the Lim period tion to run its 37 Tex.Jur.2d performed. condition is Pyra the securities ever obligation (1962); at 178 Actions itation of § Drainage County arose. v. Ellis mid Life Ins. Co. 1, 136 No. Dist. accept analysis We cannot such an v. Reliance ref’d); Dunn 1940, writ Waco of the statute of limitations in art. 581-33 Co., 405 S.W.2d Ins. Life & Accident C, particularly light Supreme in of our 1966, writ Christi (Tex.Civ.App. Corpus— “is directive that since art. 581-33 Court’s Martin, 503 e.); v. Washington n. r. ref’d given remedial in nature it be the should S.W.2d 330 —Amarillo Demp possible scope.” widest Flowers v. case, enforce the writ). present the In sey-Tegeler & Febru embodied rights any ment of Flowers, was question In the was conditioned agreement ary in “person” whether or not the used word On being issued. first upon the securities The corporations. art. 581-33 included were securities when did, any Court noted that held that it enforce became issued, rights parties’ the inten other construction “would defeat It accrued. action able, cause and their corpo tion of Legislature by permitting of limita day was on unregistered rate securities dealers to sell run. began tions securities to the free of fear public (at 115) from civil same ra suits.” This additionally found court trial case, applicable tionale is in present appli by barred was appellant’s leads to the conclusion that the statute of We disa laches. doctrine cation limitations for failure to securities Court Supreme finding. Our this gree begin should not to run before the securities M. Smith v. Howard in Barfield has stated are in existence. 834, 840 Amarillo, 426 S.W.2d Company of (Tex.1968) that: that art. 581-33 point must also out We ele- of some the absence “Generally in in largely revised 1977. Tex.Rev.Civ. was extraordinary such estoppel or (Supp. art. 581-33 and Comment ment of Stat.Ann. inequita- render as would stat- circumstances 1978). regard With to the three-year right petitioners’ to art. 581-33 the enforcement applicable limitations ble ute of a suit bar will not actions, laches phrase delay, “contract of sale” after a limita- set forth change period in lan- short of the changed was to “sale.” This as tion statute.” discussed in the Comment guage is not KEITH, Justice, dissenting. The trial failure to court found that Lintz’s make a complaint demand or to Eastman majority decision impact of the filing Dillon or Dodd action on this will, be mini- probability, in all this case injured prejudiced and 1mal; but, opinion I since am specific finding the defendаnts. No of this jurisprudence does violence to made as to how Eastman Dillon and Dodd state, respectfully I dissent. injured. were of the rec- Our examination case, ord in this with the factual fact that keeping to the self-evident point first Barfield, analysis in leads us to the supra, a cause of upon to recover seеks conclusion that this is not a situation where common action which not exist at the did the doctrine of laches should be used to by statute. solely law created but one statutory period. reduce the limitation Thus, I invoke the rule enunciated State Copus, 158 Tex. of California the trial court found that the Since registered (1958): sеcurities were not under the S.W.2d Act, and since he did not right a statute creates “[WJhere exempt find that the securities were upon incorporates also act, registration though under the state he is to be time within which the suit did hear we have testimony point, right brought, qualifies the limitation no recourse but to judg reverse and render рart so that it of the substan- becomes ment appellant against appellee, and that procedural, tive law rather than Though Eastman Dillon. may this result brought unless suit is within the time seem harsh in the case an experienced can right allowed statute no buyer who watched the securities decline in *5 though the law of the bе maintained even value nearly filing three years before provides longer period of forum for a suit, this outcome evidently is the clear Laws, Stumberg, limitation. Conflict Legislature intention of the under art. 581— p. 2d Ed. 150.” 33. Failure to the securities is se, per regard actionable to the without Insurance Com Accord: Allstate Francо v. particular knowledge expertise or 789, (Tex.1974); Fran pany, 505 S.W.2d individual buyer. Co., v. Herrin 432 S.W.2d Transportation cis & (Tex.1968); H. Leavell Cohen v. C. joined Dodd was as a more defendant Co.,Inc., 793, (Tex.Civ.App. 520 S.W.2d years than three after the cause of action 1975, writ). 51 Am. —El no See also accrued, Paso properly and the trial court found 15, Jur.2d, Actions at 600 against the action him for failure to Limitation of § A(l) under art. 581-33 (1970). by art. 581-33 C. majority opinionof the suggest I that the We therefore order that defendant East- cases holdings in conflict with man pay plaintiff Dillon to Melvin Lintz a immediately above. cited $12,750.00, equal plus sum to interest at the majority primarily because the dissent 28, percent рer rate of 6 annum from March enacted in mistakenly applied has a statute 1969, 1977, May 20, until plus interest in 1977 to a transaction which occurred 20, 1977, May percent at the rate of 9 permitted has doing, 1969. In so the Court per annum. plaintiff We further order that sophisticated an “active trader” Melvin Lintz return the 1000 shares Om- the defend- speculate stock market at nitec securities to defendant Eastman Dil- years.2 ants’ more than three risk for appel- lon. All against costs are taxed lee. opinion, majority As noted in the sale on parties contract of
REVERSED and RENDERED. entered into a ket, having eight bro- accounts with or more 1. The 1977 amendment to the stаtute discussed up question kers in Houston and even held a seat on hereinafter has cleared presented by Chicago sometime in Board of Trade this case as discussed dissenting opinion. forming events this suit. stipulated an ac- “Mr. Lintz was It was mar- sophisticated in the stock trader” tive qualify the existence 14, 1969, 1,000 condition did not wherеby shares of February contract; rather, it constituted a condi Corporation stock of Omnitec were sold obligation to defendant’s tion plaintiff on a as and if issued basis.” price therefor. pay agreed purchase February This suit was filed on Hohenberg Bros. Co. generally, See (includ- At all material to this suit times & Georgе E. Gibbons Construction parties also Delisle ing the transaction between See Schwarz-Jordan, Inc., 561 S.W.2d Co. v. including the to and 1978,applica the trial court on entry judgment in —Beaumont Manufacturing and Modine pending), tion 1977), Tex.Rev.Civ.Stat.Ann. Dist., Independent v. North East School Co. A(l) (1964), 581-33 under which S.W.2d suit, his had prosecuted and maintained e.), and n. r. Beaumont writ rеf’d reading: provision cited. authorities therein may sue under Subsec- person “C. No 33 more tion of this Section The majority permits sophisticated in- the con- (3) than three vestor to sit and watch a stock while (emphasis supplied) tract sale.” gradually it dwindles value until becomes con- The trial court found as a fact and realizing worthless. He does so if it this barred cluded as a matter of law that value, appreciate should he can claim the plaintiff’s recovery. but, gain; if finally it becomes worthless (as did), get money he can his back with mistakenly applied has now majority legal speculating interest while he was of the blue the current or 1977 аmendment money. defendants’ originated before sky law to this case which Williams Justice August Effective I would follow Chief it became effective. (Tex. Enstam, 541 Tex. Stone v. so that the statute was amended writ), wherein Civ.App. (Supp. H Rev.Civ.Stat.Ann. —Dallas I decline applied. original 1978) now reads: the statute version of to use the 1977 “H. of Limitations. Statute plain for a to achieve a windfall “limitations under may sue Section person No *6 lost; instead, speculated tiff who F far as it relates of 33 so the trial judgment of affirm the would A(l): Section court. (a) years three more than sale; (emphasis supplied) . . . .” simple but im- legislative change
The began to run under
portant. Limitations when the governing
the statute this suit consummated —now
contract of sale was sale.
the critical date is the COLE, Appеllant, Norman Charles to hold refuses majority creating his language only if he recover He could action. cause of COLE, Appellee. Sarah Louise “after three suit within brought his No. 19479. condition was a This of sale.” the contract Texas, Appeals of Civil Court cause of of his to his maintenance Dallas. specified time within the he sued action. If statute, proceed he could —otherwise longer existed. his cause Rehearing June Denied into a contract of sale entered
There was parties
between the a conditional contract.
although was