220 S.W. 120 | Tex. App. | 1920
Appellant, Powers, on June 2, 1919, sued appellee to recover $292.70 and $86. The claim for $292.70 was based upon the following allegations: That on or about March 16, 1916, plaintiff and defendant entered into a contract to the effect that defendant would superintend the clearing of certain land for plaintiff, and would draw on certain merchants on plaintiff's account for cash and merchandise, and would be liable to plaintiff for any amounts above those which should accrue under the contract; that defendant between March 31, 1916, and about August 7, 1916, drew $292.72 more than accrued for his services and the payments made to laborers and other expenses. The details were fully stated, but need not be mentioned here. Plaintiff alleged that said sum was converted to defendant's use or negligently paid out by him. The item of $86 was alleged to be due for pasturage.
The defendant's answer consisted of a general demurrer, special exceptions, a gen eral denial, a special answer stating the facts as he contended them to be, and alleging that plaintiff still owed him $180, and a cross-action for said sum of $180.
Plaintiff's first supplemental petition con tained various exceptions to the answer and cross-action, a general denial, and a special answer to defendant's allegations.
The defendant in his first supplemental answer specially excepted to plaintiff's petition on the ground that it appeared there from that plaintiff's cause of action accrued more than two years before the commencement of the suit, and was therefore barred by the two-year statute of limitation. He also pleaded such statute, and specially *121 denied all allegations contained in plaintiff's pleadings.
Plaintiff by second supplemental petition excepted to defendant's plea of limitation, and then pleaded that a large part of his demand was based upon written orders by defendant, and that on or about July 31, 1918, defendant through his authorized agent, Albert Arend, promised and agreed to pay or settle the account of plaintiff sued upon, said promise or agreement being in writing, and constituting a renewal or extension of the indebtedness sued upon; also that defendant by letters renewed and promised to pay said indebtedness.
Defendant specially excepted to such pleading, and denied the allegations thereof.
Plaintiff by trial amendment pleaded that, in the event it should appear that his cause of action was barred by limitation, then that the cause of action set up in defendant's cross-action accrued more than two years prior to the filing of such cross-action, and was barred by the two-year statute of limitations.
The cause was submitted on special issues, with the result that the jury found defendant owed plaintiff the $292.70 item sued for, and did not owe him the $86 item. The court, over the objection of both parties, submitted certain issues relating to the time when plaintiff discovered that defendant owed him the $292.70 and whether he used reasonable diligence to discover whether there was a difference in the amount received by defendant and the amount he was entitled to receive. These issues, submitted over objection, were treated by the court as immaterial, and judgment rendered for defendant on the ground that the plaintiff's claim for said $292.70 was barred by limitation.
There can be no doubt that plaintiff alleged a cause of action with respect to said $292.70 upon which he could have instituted suit at any time after August 7, 1916.
When the defendant, by exception and plea, urged the statute of limitation, it became necessary for the plaintiff to file an amended petition or a replication setting up such facts as he depended on to show that the cause of action should be considered for purposes of limitation as having accrued at a time within two years preceding the filing of the suit. McDonald v. McGuire,
The plaintiff seems to have recognized this general rule; for he filed a replication setting up that the money was partly obtained on written orders, and that there had been a renewal agreement, but did not plead failure to discover that he had a cause of action and use of due diligence. It is contended in his brief that this was unnecessary, and two theories are presented in support of the contention. One is that because defendant was plaintiff's agent a general denial would be sufficient to authorize proof of failure to discover the misapplication or negligence and facts showing diligence to make such discovery; in other words, that the right to sue does not accrue until such discovery or until such time as by the exercise of reasonable diligence discovery could have been made. We find no authority sustaining such contention. A cause of action for negligence or misappropriation by an agent accrues at the time of the wrongful act, and the statute commences to run at that time, and not from the time of ascertaining the damages. Wood on Limitations (4th Ed.) §§ 123 and 200; Meechem on Agency, § 1346; Boyd v. Beebe,
In this case, if it be regarded as one upon an express or implied promise to repay, the cause of action accrued at the time the defendant ceased to work for the plaintiff. The distinction between the date of accrual — that is, the date upon which plaintiff could, maintain a suit — and the date to which the beginning of the bar of the statute may be suspended for good cause must not be lost sight of. It appears to us that appellant's theory is based upon a misconception of opinions which do not discuss the question whether the right to sue existed as soon as the wrongful act was committed, but whether the bar of the statute of limitations would be postponed by reason of fraudulent concealment. One of the cases relied on is that of Ash v. Frank Co.,
The other theory is that an agreement was made between plaintiff and the defendant some time after the termination of the work to the effect that they would measure the land in the fall of 1917, and then have a settlement. Appellant contends that such agreement would bring the case within the rule involved in the cases of Stribling v Moore,
It being apparent that it was necessary to plead the matter relied on to suspend the operation of the statute, it is evident that all the evidence introduced in an attempt to prove such matters was irrelevant and inadmissible. McDonald v. McGuire, supra. It also follows that the issues relating thereto submitted by the court were immaterial, and not entitled to consideration in the decision of the case. Rich v. Tel. Co.,
This is not an action for debt evidenced by a contract in writing. The fact that defendant gave written orders on the merchants for part of the money and goods received by him does not bring the case within the statute. The contract under which the work was done was a verbal one, and included, according to the petition, an express agreement that defendant would be responsible to plaintiff for any mistakes or overpayments or loss suffered by plaintiff in the performance thereof. Whether the suit be viewed as one upon an express verbal agreement to repay, or an implied agreement, or as one for a tort, it is evident that no ground exists for applying any other statute of limitations than that of two years. Dwight v. Matthews, 60 S.W. 805.
The letter relied on to take the claim out of the operation of the statute was not sufficient for such purpose. It contained a demand that plaintiff pay defendant $78 claimed to be due for supervising the grubbing of the land. It also contained the statement by the agent who wrote the letter that defendant had mentioned that plaintiff claimed to have a small account against defendant, and, if this was the case, to let the agent know the amount, and he would see that they would get the matter straightened without going to court. It is obvious that there was no acknowledgment of the justness of plaintiff's claim, or promise to pay same. The letter discloses that defendant did not know the amount of plaintiff's claim, but believed it to be a small one, and that de fendant was asserting a claim growing out of the same transactions upon which plaintiff bases his claim. There was no such acknowledgment or promise as is required by statute Thompson v. Texas L. C. Co., 24 S.W. 856
In view of the foregoing conclusions, it is evident that upon the undisputed evidence relevant to the issues made by the pleadings the defendant was entitled to a judgment with regard to the item of $292.70. Such a judgment was rendered by the court, and we do not believe it should be reversed because of findings upon immaterial issues.
Lest we be met with a suggestion that plaintiff might have amended so as to make the issues material, we will say that, although objection was made to their submission upon the specific ground that there was no pleading, no trial amendment was tendered. We will also say that, had the pleadings been amended and a judgment rendered for plaintiff, we would have been compelled to set the same aside if an appeal had been taken. The evidence is insufficient to postpone the operation of the statute of limitations. Plaintiff, after he learned the work had stopped, wrote defendant several times for a settlement, and asked him for a settlement. The defendant did not by any fraud prevent plaintiff from measuring the land and estimating the amount of his claim. In the spring or summer of 1917 he and defendant met and agreed to measure the land that is following fall and then have a settlement If this agreement was not based upon any consideration, it did not prevent plaintiff from proceeding to measure the land and *123
file his suit. He exercised no diligence whatever to ascertain the amount of his claim, or whether he had a claim, although he believed he might have one. For somewhat similar facts see Standford v. Finks,
We have considered all of the assignments of error, and conclude that the judgment should be affirmed.
