McDonald v. Ayres

Tex.) v. AYRES MCDONALD (269 ;.w.) @=>105(1) of 7.Limitation actions —Limitation money orders, payee 8539.) held to run of (No. not McDONALD v. AYRES. pay drawee where which denied funds with (Court Texas. Galveston. Civil obligation until determination latter’s Rehearing Feb. Denied 1925. had matured. 1925.) March acceptance, defendant’s Where terms of money plaintiff payable order drawn @=ol02(4) Limitation of actions 1. —Rule be- R. until had funds were drawee un- will not in favor of trustee limitation run longing to drawer in excess of latter’s indebted- trust, аpplies only repudiation ex- til him, denial that he had and his funds ness press or trust. direct throughout suit continued with which against will The of limitations rule that statute accounting, him for repudiation of until his express run in favor of trustee trust finally did not run R. it was deter- until applies trust. an or direct obligation had mined that defendant’s matured. @==>151(1) 2. Limitation of actions —Defend- Court, Appeal from Harris District Coun- acknowledgment plaintiff’s ant’s written ty Ashe,- ; Judge. E. Chas. part prevent ownership lim'i- of notе held against plaintiff’s running suit on tation Ayres Mc- K. R>.D. J. Action date note collected. note until Judgment defend- Donald. for plaintiff;, plaintiff action Where former between appeals. Affirmed. ant defendant, a writ- answer was defendant’s See, also, 242 S. W. 192. acknowledgment plaintiff own- ten note, establish failed to er of a defendant Houston, Moody, B.L. apply plaintiff’s in note claim to Houston, Woods, King John, & by plaintiff, stat- defendant indebtedness due pellee. plaintiff’s suit not bar of limitations ute after ‍​‌‌​​‌‌‌‌​‌‌​‌​​‌​‌‌‌‌‌​​‌‌​​​‌‌‌​‌‌​‌​‌​​​​‌​‌​‍date note thereon collected. PLEASANTS, The C. nature brief from best understood suit can be @=>!06 claim- Limitation of actions 3. —Plaintiff it is based. which statement facts required to sue held in note par- accounting between the -an during pendency appeal by In a de- therefor fixing accounting entered a decree from ties to fendant plaintiff’s share. county on March Harris court of district the 31, 1917, adjudged ac- in former Where was entered it was plaintiff’s accounting, fixing tion for was indebted herein creed by defendant, held from defendant $2,534.82, sum plain- appeal appealed, during pendency of such inter- owner was the required share to sue tiff was $11,861.24, executed in a note est prevent of limitations. of statute Company favor Judgment estopped held joint <®=»720>—Defendant account him.for lant held denying validity order on him accounting, of by himself money, validity аdjudged where its in a $2,534.82 in favor balance judgment, appel- was found accounting Where former action for be- allowed, among claim- other credits lant ed parties, tween same certain orders for $7,353.17 him obligations valid and against by appellee, following items: defendant, allowed as credits thereafter plaintiff purchased holders, them defendant as “Defendant'was allowed estopped in later suit on such order from May 22, а 1913, the sum as credit validity. denying their by plaintiff reason of an order drawn defendant, Ross, fur- favor of J. P. and a withholding Interest 19(I) —Defendant ther reason $801 credit of a draft for drawn owing plaintiff held not entitled to by plaintiff ,7, 1914, in fa- defendant against plaintiff. claim vor of J. P. and another credit reason plaintiff Where cross-debts between and de- by plaintiff of an order drawn adjudicated prior suit, fendant hacibeen in a Peyton John B. in the sum $925.41 thereafter collectеd note May 29, 1913, on which al- order defendant was part were him, proceeds, and withheld as a credit lowed the additional sum of $49.35 plaintiff’s excess of indebtedness to interest, making a total credit of properly he was denied interest on his defendant further allowed as $575 against plaintiff claim after the date of collect- by by plaintiff reason of order drawn on de- ing note. 8, 1914, Peyton fendant March in favor of Rehearing. On Motion for Pegadо, it total sum and amount such cred- $3,102.53.” being @==3148(1) Limitation of actions —Acknowl- edgment suspend of debt to limitations must appellant by allowed other credits party be for benefit of to whom debt due. wiped indicated out his For an of a debt to be suffi- indebtedness to left the latter suspend limitations, cient to must $2,534.82 to him in sum indebted be made benefit of debt is whom stated, having due. a one-half interest Digests @=>For other topic cases see same Key-Numbered and KEY-NUMBER in all and Indexes 269 S.W.—70 (Tes. SOUTHWESTERN REPORTER 269 1106 objec- dispose Company Keystone note of these above We will consider Mills and in judgment in tions to the order wbicb in mentioned. they presented. recover one-balf are to This suit was Upon appellant by record tbe the issues limitation the on of tbe amount collected was following just mentioned, facts: suit tbe amount discloses the This also and note January Appellant 12, col- filed orders above on and several оn drafts due tbe Keystone note; appel- Company lected amounting, Mills allowed wbicb bad been mentioned interest, principal the sum judgment to before men- and tbe in lant bim, 27, $13,583.09, July paid on Tbe tioned, been on wbicb bad not but appellee which of. and learned of the collection been by sold thereof holders and had tbe by definitely evi- note shown tbe to In addition transferred denial, general de- dence. He testified: general demurrer аnd speciálly pleaded statutes tbe fendant “The first McDonald time that I knew that against plain- years’ Keystone $11,- two and tiff’s had 861.24 was for collected the Mills note or- upon and it tbe drafts several after was collect- months recover suit in the dis- ed. It after the was tried was case his suit ders above described and my court, it- it recollection that trict and by collected of tbe note recover one-balf writ had refused was after of Court specially pleaded pellant. further it, had that I found out he error upon plaintiff recover entitled was but am not sure.” I $751.77, tbe because same the Ross for order superseded and can- was was in and included made There is no evidence subsequent be- by $801.90 for order celed any steps yvhether quiry to find out took with Tbe was tried fore mentioned. cause appellant Supreme note until tbe the had collected hearing jury court below. in tbe а writ of Court refused bad judge tbe trial instructed the-evidence the jury 1919, original 17, suit error following verdict: to return is no evidence to show you Jury: note knew that to by cause “Gentlemen of given $751.77, of of at to return favor are instructed a verdict that date. for Tbe order plaintiff $6,616.82, the sum and defendant for accepted to J. P. was thereon from date with interest appellant May 22, This was order cent, per annum, per rate of 6 given accepted by appellee appellant plaintiff against for the further defendant paid to be out of wbicb come $1,657.19, with thereon sum possession into for tbe account cent, per per annum.” date at rate of 8 of appellee’s amount of over Upon (Tbe return of the verdict indebtedness to paid therewith. Un- in accordance appellant, rendered and was order sold or appropriate assignments proposi- der appellee pri- transferred Ross complains appellant tions upon of this institution of this First, following grounds: because accounting be- On the undisputed appellant, tbe evidence tween before referred Company Keystone to, appellant’s Mills lant collected the answer contains follow- ing Keystone two before this suit years note than more averments in reference to tbe appellee’s Compаny note, filed, of which and therefore Mills are tbe of tbe col- suit: recover one-balf amount of such involved statute limita- lection was barred tbe by Key- remaining “The note was executed years, pleaded appellant; Company pur- tion of two sec- Mills stone the balance of the given price ond, because tbe order for chase $751.77 lands which interested, cover accepted also P. .and favor of J. Ross was unpaid purchase belong- money of other lands May 22, 1913, which individually plain- and in to defendant which years than four more before this any interest, tiff and which sold never filed, against appellant Keystone Company Mills at said order tbe lim- was barred as the them of lands same time sale to years pleaded by appellant; itation of four plaintiff has an interest. note is Said deposited because, third, unpaid being and has been it shown undis- still tbe subject registry its сourt or- of this further puted order evidence that ders.” superseded by was included in and subse- quent by appellee given order J. P. tbe estab- $801.90, appellee was not entitled to recover lishing is as upon was can- follows: became of no further celed and effect 90; fourth, force appearing “It further the court as a by the issuance of tbe $801.- Keystone paid consideration trial because tbe al- Company to Mills the defendаnt for lands recovery up lowed January conveyed by him, said July $2,538.82 on a Company executed and delivered against appellee, owned $11,861.- sum defendant its note to the 24, pleaded against date, as set-off claims. due —:— and. law could influence. And mence to vowed it must be such by jurisprudence, between their January 29, 1915, being defeat the technical ated only fore tinction and num, payable semiannually, Loekey, showing move limitation will not thаt to amount adjudged, Ayers, terest in transactions of men would be removed train of clesfield, with sisting, tained in said the this heretofore, been ror. This trust lant’s plied v. equity dress. could application of the rule repudiated pellant v. until his only appellant clerk of this court.” secured ed to the suit a much ship Supreme Court of Tex.) “But it does not If the record There Baker, ^[1] chancery. the mutual a Wingate, interest has been even court, so impounded thе half interest in and to said of the to an trustee, forms an a delivered give relief, alone can take brief, the is If it is due thereon: trust from aré the statute long 'by Pree. Oh. than was to, that he did the cestui sustained decisions, the and to said down to the is is the owner of an trust, in such cases the statute would may afford Civil run from and Court on had collected limitations: affirmance of statute; repudiation judgment trust, express under under trusts strictly no note. well Tex. applicatiоn Supreme as In 11 Tex. at the rate' of 8 vendor’s larger indebtedness confidence have the decreed that exception deed, exclusive testimony denied back to the no relief. When it a trust is the Court of such and trust, technically, trust that common law courts the statute will doctrine is the owner settled, the doctrine or did another an of common que He sought it can does follow, run or direct the time note, cognizance placed cases, It present time, rule interlocutory order, operation Court for writ claimed trust or his lien In the case if hold case is is technically (207 of the appearing the case of the not commence to run the and in contradis- principles disposing, of, decided undivided so, applies therefore be avoided as stated that has been his thus continuing interlocutory order, that appealed the upon ‍​‌‌​​‌‌‌‌​‌‌​‌​​‌​‌‌‌‌‌​​‌‌​​​‌‌‌​‌‌​‌​‌​​​​‌​‌​‍the fact the and credited the as trustee.” in the courts of Chancery, him, and S. judgment half per trust. remedy by refused act law operation parties, such as of and affordre- pellant in ever appellant of and entitled W. stated: though the extent 1919. trust every' belonging to, run, a said land trustee disa- note and the cent, per showed that part the the as is created said note is conclusively against ap assigns MCDONALD settled, trusts, cognizance; 686) registry sq Lord statute of Lockey laid down thе only by Kennedy the court equitable and sub- Wingate although business from its common ordered, pellee will statute, kind by the trustee applies except hereto- owner he appel to re- a suit suit up cases Mac- com- case. cre- the the has (269 an- the the ap re- er K. of v. a s.w.) his termination of the settled ing an was the mer whether so ment the court in a suit appeal actually relieve 1107, 1108, 1160; Ruling Case Law, 784. ning ought prior note awarded сould pendency edeas ligation press ment edged by by him and became judgment torney, collected, of the statute of failed partly belong for his set ship tion, materially tation. establish of the note when collected unless he could terest pellant proceeds of crual which was inal pellee change the ments to, est to indebtedness due him ment owner and which it or constructive and v. AYRES “If he [3] We are further of the ^[2] long pay appellee out. right holding pending. We think appeal thereon until suit, .not .between bond and the before set alsoWe trust between fixing appellee’s a one-half interest in to establish the in order to therein in' of before the final termination appea as limitation would not bar preferred half in the known of the collection Appellant’s This his claim to recover reply him in his answer and this was less than four the have been on that both in the writing the refusal of the appellant’s appeal writing of this case. character filing penalized, the of the appellant’s appeal operated answer was his appellee by note, ltherefrom, liability having agree could be the our note of case trusteeship his affect the executed note fully claimed to wait out, limitation, writing signed by appellee. Conceding appeal, appeal. which are parties. that the cited, with determined or enforced of became liable the appropriate did not determine his legal duty necessity when of the the was parties, indebtedness claimed prevent appellant appropriated unless limitation. having years the in the note did 242 S. W. date the note was the when no appellant says: If he had question would be the by appellee. under the aver- an Court on judgment in But even if he had рleaded by dormant plea writ trust appellant, affect the run create an awarding the indebtedness the acknowledg question in such inter appeal this appeal appellant, was filing of limita appellant rights, acknowl effect of the relation that supers brought of original implied his at by ap before a for an ob error, pend judg judg limi orig that part Cyc. over the not the de~ the ap- ap- ac ex in In (Tex. 269 SOUTHWESTERN REPORTER

less than four given thаt this shows to him. Under seded lant’s note renewed of pellee plaintiff, Ross, fendant now in this cepted equitable money ty, Texas.” Ross said which over and to contains the defendant was lant. court limitation v. useless, rights. itation pellee’s vented termining R. A. ceeding est in appeal ceedings, right. termine Ms Civ. on his v. (Tex. (Tex. “Fifteenth. ^[4] By “Where We Any Hutchinson, defendant, Eubanks, legal pending in draft has not App.) barred was collected applied There is no for that оn answer, Ross and said »in Appellant’s (N. S.) might obligation Civ. appeal.” Civ. think given should not be the same suit 25 by appellant on said on suit on the and the his case, appellant was filed. assignment pro $751.77, remedy the time the Cavitt above the interest would writing excess of whether limitations Cyc. 1278; because the proceeds the 30 App.) App.) 242 S. W. person also obligation rights come May 22, 1913, principle for which draft Defendant following: appellant’s 1165; draft which was given by S. W. 92 Ross, the was included in appellee Tex. Civ. accepted draft, untenable holding to be did law 228 by defendant, Kan. county during answer into defendant’s been in advance by appellant, merit the be 25 amount cases counted has Case prevented from 386; appellate court Ross acknowledgment appel- hands from is liable not mature S. W. entitled to recover required no such Cyc. Fields owing appellee plaintiff paid 518, рendency further shows undisputed years’ tanto to filed suit was on have pleaded by contention against acknowledged of Cavitt v. it is said: Pease v. Southerlin for that App. 418, a draft or order order for rule the recover his 1173.” owing 141 P. out against Mm in de for' 269; it have v. therefor been statute he is thus by barring constitutes judgment fix- which suit subsequently Austin said original Harris coun- former the any pending the which was his contention Oapt. protect Hutchinson by any announced possession оrder barred 589, exercising legal pro vain evidence 35 S. could although ties date sums reasons plea $751.77 Amsler Semple to said super money inter- 52 L. (Tex. lim- and his indebtedness to pro- suit pre out ac- his ap- on should his act W. P. the trial court should been unnecessary detail. other claims set cover this think of lected the for judgment against appellee longing appellee. pellant either edness. The cross-debts between by appellee law rule applied by is well parties is unknown in cept and merchant. Civ. became indebted to there and this could make no difference to action a rule jurisprudence. lection of the debtedness him draft, his this tion ground der. Hanrick v. judged tion suit, ed obligations between Affirmed. We Appellee [5] We do balance equity failing the the two and was only recover interest App. so duly are founded. not be ordered. compensation cоnclusive orders stated. He running ^ssue the been not the complain which would purpose, amount, balance determined 455, both are apply either interest. no by cross-assignment complains money belonging to was struck between the is sufficient to due considered cross-debts, as thereafter court below orders is one compensation both of adjudged a not think him opinion sustained. allow refusing adjudicated could common-law 33 S. appellant’s recovery is based. him court discuss this interest at 10 Under accounts between Campbell law, It party, up right on which the indebtedness Gurley, rule he is in excess estopped by appelleé his him 6at W. 754. these orders were be does not below true the debtor. allow if and in appellant’s was rendered when validity this affirmed; debtor, without withhold on per the debt soon in a or v. jurisprudence ex 93 Tex. 478. law or say operation of recovery ‍​‌‌​​‌‌‌‌​‌‌​‌​​‌​‌‌‌‌‌​​‌‌​​​‌‌‌​‌‌​‌​‌​​​​‌​‌​‍payment it him рetition. appellee’s rule, appellee cent, of such indebt assignment pay it over to Park, parties Company note This But the prevail in our per is in no after our the the civil-law refusing raise for them of either We upon money and it has it was on the and force complaint evidenced merchant This rule whenever principle his adjudica cent, due same, 11 creditor opinion do not his col it’ parties on the in this claim could It claim civil- duty valid Tex. posi par rule him col law any his the re be ad in or If it 1109 Tes.) CHICAGO, PRODUCE CO. I. R. v. TRINITY VALLEY RY. CO. & G. (269 J.W.) rehearing giving due Rehearing. motion Motion On consideration, ad- constrained to we feel holding [6, in our 7] The ques- upon here former to our conclusions presented by appeal, and overrule tions pleading opinion, to in our referred motion. liability for demands set-off to given Ross, awas P. of J. in favor R. CHICAGO, I. G. RY. CO. v. TRINITY acknowledgment of his debt sufficient (No. 119.) VALLEY PRODUCE CO. lim suspend the statute to itation (Court of Civil and cannot of Texas. Waco. is unsound 5, 1925. On Motion for Rehear- appellee’s suit holding that our sustain April ing, 1925.) when -this not barred order was decisions our settled It is well was filed. <&wkey;>500(2) Appeal and error Exceptions — debt shown to have been acted on not reviewed. suspend sufficient to exceptions Under district court rule petition benefit made to reviewed, must be cannot be unless City of they is due. debt whom the were acted on trial court. Jankowiskie, 13 S. Tex. Houston v. Damages &wkey;U88(2) <&wkey;482(3) —Railroads Rep. 57; v. Holland Am. St. W. —Finding as to fire and responsibility App.) We (Tex. W. 854. S. Civ. Shannon value of held property destroyed supported opinion plaintiff’s are, however; still testimony. By the barred. Testimony' support held sufficient find- acceptance appellant’s ings property destroyed by terms it as to value of ‍​‌‌​​‌‌‌‌​‌‌​‌​​‌​‌‌‌‌‌​​‌‌​​​‌‌‌​‌‌​‌​‌​​​​‌​‌​‍fire agents funds and had fact that defendant until railroad’s start- ed it. in ex hands in his cess him; suffi 3. Railroads <&wkey;>457 Responsible for spread — pay the order. The record cient of fire started by employees. times that all denied had at company responsible Railroad or such funds with which he had property struction of of others fire started employees premises true der. spreading on its therefrom. had such funds appellant appealed January 29, 4. Trial submitting &wkey;>362Court, issue — judgment, not become it did damages amount by fire, cannot add until refusal final of writ оf error terest from date of loss. no our ascertaining Court. means jury Where is authorized to find amount came when funds damage by fire, merely of destroyed, adding property value of into party hands He was supplement finding cannot destruction; suit, from date of to the is not shown and it jus he knew facts which would County Error from Court; Dallas Frank tify G. concluding him in lia Harmon, Judge. bility on the order matured. Under had. circumstances, these required we do think he was it was Trinity Valley Action Produce Com- bring pany thereon Chicago, Rock & Island finally appellant’s obliga Railway determined Company. Judgment Gulf ' tion had matured. brings and defendant error. Re- following proposition think the We affirmed, from formed and on condition of remit- brief sufficient titur. pellant’s plea of limitation the order: Phillips, Porter, Townsend and Martin Winfrey, Dallas, promises B. all “When one to third party ‘any out of sums of error. owing’ by actively another, such one to Biggers, Dallаs, Wilson & for defendant denies that fund has come into existence in error. payment promised, from which the carrying through complicated such denial BARCUS, J. This cause is before' us prolonged litigation, asserting all the while rehearing. opinion motion for The hereto- willingness payment to make whenever should fore written is withdrawn and this is filed be determined that existed funds out made; should be third as the of the court. justified awaiting the determination day a former this cause was At dismissed demanding pay- existence of fund jurisdiction. want Plaintiff error ment, begin and limitation should not to run asking motion, filed its for certiorari judg- his action therefor until perfect trial court record in order to he is ment informed existence of his jurisdiction. show court has been, of action cause effect, theretofore granted the additional motion was rec- concealed the affirmative ac- contingent tion of been filed in debtor.” ords the trial court have <@=»For topic Key-Numbered KEY-NUMBER, other see ‍​‌‌​​‌‌‌‌​‌‌​‌​​‌​‌‌‌‌‌​​‌‌​​​‌‌‌​‌‌​‌​‌​​​​‌​‌​‍same Digests oases in all and Indexes

Case Details

Case Name: McDonald v. Ayres

Court Name: Court of Appeals of Texas

Date Published: Feb 5, 1925

Citation: 269 S.W. 1105

Docket Number: No. 8539.

Court Abbreviation: Tex. App.