Fidelity & Casualty Co. v. Callaghan & Graham

• Decision Date: 23 October 1907
• Parties: FIDELITY & CASUALTY CO. v. CALLAGHAN & GRAHAM.
• Court: Texas Court of Appeals

104 S.W. 1073

FIDELITY & CASUALTY CO. v. CALLAGHAN & GRAHAM.

Court of Civil Appeals of Texas.

October 23, 1907.

Appeal from Jefferson County Court; D. P. Wheat, Judge.

Action by the Fidelity & Casualty Company against Callaghan & Graham. Defendants pleaded the statute of limitations and a plea in reconvention. From a judgment for defendants on the statute of limitations, and for plaintiff on defendants' cross-action, plaintiff appeals. Reversed and rendered.

Crook, Harris & Lawhon, for appellant. Molette & Wilkerson, for appellees.

NEILL, J.

This is a suit by appellant against appellees to recover $189 alleged to be due for the premium on an employer's liability insurance policy, executed on August 3, 1902, by appellant to appellees. It was alleged by plaintiff that defendant agreed to pay $540 premium, but that the amount of the premium was based on the compensation paid to the employés during the period the policy was in force, that the estimated pay roll during the intended life of the policy was $12,000, and that defendants paid their employés during the actual life of the policy the sum of $4,200, and that, therefore, plaintiff was entitled, in consideration of the insurance, to the sum of $189, as the premium on said policy. The defendants answered by a plea of the two-year statute of limitations, and a plea in reconvention for several amounts aggregating $216.12. On the trial, which was by the court without a jury, the court sustained the defendants' plea of limitation, and rendered judgment against the plaintiff, and, after hearing the evidence, rendered judgment against the defendants on their cross-action. From the judgment, the plaintiff alone has appealed.

In actions for debt, where the indebtedness is evidenced by or founded upon a contract in writing, the four-year statute applies, but, where the indebtedness is not evidenced by a contract in writing, the two-year statute bars the action. Therefore the only question to be determined is, was the contract upon which the suit is based evidenced by writing? It is undisputed that the insurance policy described in plaintiff's petition was in writing and issued to the defendants by the insurance company upon a written application made by them to the plaintiff which stated the terms of the policy and the basis by which the amount of premium was to be determined. It is true that neither the application nor policy, taken either separately or together, contained an express promise to pay...