Faires v. Cockrill

• Decision Date: 20 May 1895
• Citation: 31 S.W. 190
• Parties: FAIRES v. COCKRILL et al.<SMALL><SUP>1</SUP></SMALL>
• Court: Texas Supreme Court

31 S.W. 190

FAIRES v. COCKRILL et al.¹

Supreme Court of Texas.

May 20, 1895.

Error to court of civil appeals of First supreme judicial district.

Action by M. Cockrill and others against J. E. Faires and others for contribution. There was a judgment for plaintiffs, which was modified by the court of civil appeals (29 S. W. 669), and defendant Faires brings error. Reversed.

Moore & Duncan, for plaintiff in error. Brown, Lane & Jackson, for defendants in error.

BROWN, J.

The following statement of the facts is sufficient for an understanding of the questions presented: J. E. Faires and the defendants in error, with other persons, were appointed, by a meeting of citizens, as an executive committee to secure the right of way for the San Antonio & Aransas Pass Railroad through Fayette county, and depot grounds at the town of Flatonia in that county, and they gave to that railroad company a written agreement binding themselves to secure the right of way and depot grounds, and to pay for the same. The contract provided that the railroad company should select the grounds, but at the time the agreement was signed Faires understood that the depot was to be located upon or near lands belonging to him, upon which understanding he signed the contract. The railroad company made the selection at that point, but afterwards changed the depot to another part of the town; and upon the trial Faires pleaded and sought to prove the facts. The court excluded the evidence, upon objection that such testimony tended to vary the terms of the written contract. The other parties to the contract, or some of them, paid out money for the right of way, depot grounds, and expenses in procuring them, some of which payments were made more than two years, but not four years, before the bringing of the suit. The depot was located, and the contract with the railroad company was completed in 1887, the suit being brought in 1893 by the plaintiffs against Faires and others to recover their pro rata part of the money so paid. Faires pleaded the statute of four and two years' limitation. The court below rendered judgment against Faires and others for the amount due. Faires alone brings the case to this court, upon two questions: First, that the court erred in excluding the evidence as to the understanding that the depot would be located as he claimed; second, that the court erred in holding that the plaintiffs' claim, or part of it, was not barred by the statute of limitations. Upon the first question the court of civil appeals rightly held that the evidence was not admissible, and it is unnecessary for us to discuss that question. On the second question the court of civil appeals held that the plaintiffs' cause of action was founded upon the written contract entered into with the railroad company, and that it required the expiration of four years from the date of each payment by the plaintiffs to bar their claim for contribution. This presents to us the following questions: First. Was plaintiffs' claim founded upon the written contract or upon an implied promise from each signer to reimburse the other signers of that contract for payments made by them in excess of their proportional part thereof? Secondly. What period of limitation applies to the plaintiffs' claim for contribution?

Our statute of limitations, so far as it affects the question before us, is as follows: Article 3203: "There shall be commenced and prosecuted within two years after the cause of action shall have accrued, and not afterwards, all actions or suits in court of the following description: * * * 2. Action for debt where the indebtedness is not evidenced by a contract in writing." Article 3205: "There shall be commenced and prosecuted within four years after the cause of action shall have accrued and not afterward, all actions or suits in court of the following description: * * * 1. Actions for debt where the indebtedness is evidenced by or founded upon any contract in writing." In Holliman v. Rogers, 6 Tex. 91, Holliman, as principal, and O'Neill and Grace, as his sureties, made a note payable to Frank or bearer. Grace paid the note, and suit was instituted in the name of Rogers against Holliman to recover the amount of the note. Rogers sued for benefit of Grace, though it does not so appear directly in the case. The suit was upon the note, and the question was directly presented as to whether or not a suit could be maintained upon the note under such circumstances. The court, Judge Lipscomb delivering the opinion, held that when Grace paid the note it was extinguished, and no suit could be maintained upon it, but that the suit should have been upon the implied promise which the law raises from Holliman to indemnify the surety in case he paid the debt. In Sublett v. McKinney, 19 Tex. 439, Sublett drew a draft in favor of Gen. Sam Houston on McKinney and Williams, who accepted the draft, and paid it on the 26th day of November, 1841. Suit was filed on the draft against Sublett's administrator, he having died September 2, 1844. McKinney and Williams had no funds of Sublett in their hands, and the former accepted the draft for his accommodation. Sublett pleaded the statute of limitations of two years. The supreme court held that the right of action of the accommodation acceptor was upon the draft, and that it required four years to bar the action. That case would justify the conclusion drawn by the learned judge who wrote the opinion of the court of civil appeals in this case that the period of limitation would be four years, and would run from the date of the payment. The opinion in Sublett v. McKinney was written by Judge Wheeler, who was on the court at the time the case of Holliman v. Rogers was decided. The same question was not before the court for decision in Close v. Fields, 2 Tex. 232, but Judge Wheeler, who wrote that opinion, said, in discussing a kindred question: "It may, however, be here remarked that according to the principles of liability of the drawer to the acceptor for accommodation the acceptor can never sue on the bill; he must sue for money loaned or paid to the use of the drawer," —citing Chit. Bills, p. 537, in which it is said: "In the case of an acceptor for the accommodation of the drawer, such acceptor, if he has been obliged to pay, may sue the drawer on his implied contract to indemnify him, but not on the bill itself." Daniel, Neg. Inst. § 532. Tutt v. Thornton, 57 Tex. 35, was decided by the commission of appeals before the law required the supreme court to approve their decisions, and is not, therefore, to be considered as an authority in the sense that it has been decided or passed upon by the supreme court. In that case Tutt gave his note to Heckler, and before it was delivered Thornton wrote his name upon the back of it, for the accommodation of Tutt. He afterwards paid the note, and it was transferred to him, whereupon he sued Tutt upon the note, striking out his indorsement on the back of it. The court held that the cause of action was upon the note. In this case the judge followed the case of Sublett v. McKinney. In Carpenter v. Minter, 72 Tex. 370, 12 S. W. 180, Judge Collard, for the commission of appeals, held that a surety who pays the note of his principal is entitled to sue upon the note, and to recover all that the payee of the note could have recovered, including attorney's fees, although the surety paid the note before suit, and the note provided for attorney's fees in case of suit. In that case it is said: "The right of the surety, after payment of his principal's note, was not on the implied assumpsit for the amount paid, but to sue on the note itself." The opinion was adopted by the supreme court. Jackson v. Murray, 77 Tex. 644, 14 S. W. 235, was also decided by the commission of appeals after the law required the supreme court to approve their opinions. In that case, Collard, J., delivering the opinion, hold that the cause of action of a surety against his cosurety for contribution was upon the implied promise, and not upon the note. The opinion was adopted by the supreme court. Thus it will be seen that the cases in our own court are in conflict upon this question, the authoritative decisions being Holliman v. Rogers and Sublett v. McKinney. It becomes necessary for us to settle the question upon authority and principle, for which purpose we will briefly examine the cases and cite some of the authorities. In the case of Sublett v. McKinney, Judge Wheeler states the doctrine that a surety who pays the debt of his principal is entitled to be subrogated to the rights of the payee as to all securities which he may have from the principal debtor, and from this premise he reasons to the conclusion that this subrogation applies with equal force and justice to the debt itself. In support of this proposition or conclusion he cites Ex parte Crisp, 1 Atk. 133; Morgan v. Seymour, 1 Ch. R. 64; Parsons v. Briddock, 2 Vern. 608; Lumpkin v. Mills, 4 Ga. 343. In the case of Ex parte Crisp the question was as to the right to have the securities of the principal creditor assigned upon payment of his debt, and the court held that such right would, in a proper case, be enforced. But in that case the assignment of the debt itself was not involved. We have not been able to find the case of Morgan v. Seymour, and suppose it is a mistake in the citation. The case of Parsons v. Briddock likewise involved the right to an assignment of an independent security. The plaintiffs were the sureties of the defendant in the judgment, and, he being arrested, gave bail. Judgment being rendered upon the debt and against the bail, the sureties paid the judgment, and brought an action to compel the assignment of the judgment against the bail. Lumpkin v. Mills, 4 Ga. 343, involved the question of subrogation to the very debt, it being a specialty, and therefore entitled, under the laws of that state, to priority in payment out of the estate of the deceased...