Gordon v. Rhodes & Daniel

• Court: Texas Supreme Court
• Writing for the Court: Williams
• Citation: Gordon v. Rhodes & Daniel, 116 S.W. 40, 102 Tex. 300 (Tex. 1909)
• Decision Date: 17 February 1909
• Parties: GORDON et al. v. RHODES & DANIEL.

116 S.W. 40

GORDON et al. v. RHODES & DANIEL.

Supreme Court of Texas.

February 17, 1909.

Certified Questions from Court of Civil Appeals of Sixth Supreme Judicial District.

Action by J. D. Gordon and others against Rhodes & Daniel. From a judgment for defendant, plaintiffs appeal to the Court of Civil Appeals, which certifies a question to the Supreme Court. Question answered.

Lennox & Lennon, for appellants. McGrady & McMahon, for appellees.

WILLIAMS, J.

Certified question from the Court of Civil Appeals of the Sixth district as follows:

"In the above-styled cause appellants, plaintiffs in the trial court, by their action commenced November 14, 1906, among other things, sought to recover, as against appellees, damages for deceit alleged to have been practiced on them by appellees in the sale to them of 1,808 acres of land in Red River county. From the allegations in the plaintiffs' petition it appeared that in January, 1902, Hocker and Cheatham, owning the 1,808 acres, and being anxious to sell same for $10,000, arranged with appellees to represent them in effecting a sale of same, agreeing, if they effected a sale, that they might retain for their services in doing so any sum in excess of $10,000 realized therefrom; that this agreement between appellees and Hocker and Cheatham, and the fact that the latter were willing to sell the land for $10,000, it was understood between them, was to be kept secret from prospective buyers, for whom, either alone or jointly with themselves, it was understood between appellees and Hocker and Cheatham, the former should pretend to act in purchasing the land; that taking advantage of confidential relations, fully set out in the petition, existing between appellee Daniel, who carried on the negotiations, and appellants, appellees, concealing the fact that they represented Hocker and Cheatham in the sale of the 1,808 acres, by pretending to act with and for appellants in negotiating for a joint purchase of same on their own and appellants' account, and by falsely representing that the land was not subject to overflow from Red river, except during extraordinary rises, when it was subject to overflow therefrom during ordinary rises, and by falsely representing that the land was worth $20,000 and was a bargain at $12,500, when it was worth only $7,000, induced appellants, jointly with themselves, to enter into a contract with Hocker and Cheatham to purchase the land at the price of $12,500, and by the same means, shortly thereafterwards, to wit, on January 21, 1902, induced appellants to assume appellees' part of said contract and to become the sole purchasers of said 1,808 acres.

"The trial court held that the cause of action stated for the deceit was subject to the bar of the two-years statute of limitations, and, sustaining appellees' exceptions on that ground, dismissed the suit. Following Blount v. Bleker, 13 Tex. Civ. App. 227, 35 S. W. 864, Cooper v. Lee, 75 Tex. 121, 12 S. W. 483, and Vodrie v. Tynan (Tex. Civ. App.) 57 S. W. 681, this court held, in conflict with the ruling in Bass v. James, 83 Tex. 110, 18 S. W. 336, and Machine Co. v. Hancock, 4 Tex. Civ. App. 302, 23 S. W. 385, that the four-years statute, and not the two-years statute, should be applied in such a case; and it appearing from allegations in the petition that plaintiffs were ignorant of the fact that the land was subject to overflow during ordinary rises of Red river, and did not discover it was so subject until the spring and summer of 1905; and it further appearing from allegations in the petition that they did not sooner discover that the land was so subject to overflow because there was nothing upon or about it to indicate it was so subject, and because weather conditions which would enable them to make such discovery did not exist until 1905—this court further held that the trial court erred in holding as matter of law that it appeared from the face of the plaintiffs' petition that their cause of action for the deceit alleged was barred.

"The cause being yet pending before it on a motion for a rehearing, in which the conflict between its holding and that of the Court of Civil Appeals in Machine Co. v. Hancock, supra, and, perhaps, Stanford v. Finks (Tex. Civ. App.) 99 S. W. 452, is urged, on the foregoing statement from the record, the Court of Civil Appeals for the Sixth Supreme Judicial District of Texas certifies to the Supreme Court for its determination the following question: Was the two or the four years statute of limitations applicable to the cause of action stated by appellants?"

The four-years statute referred to in the question is article 3358, Rev. St. 1895, which fixes that time as the limitation for every action, other than for the recovery of real estate, for which no limitation is otherwise prescribed. The question whether or not it applies to the case stated in the certificate is therefore to be solved by ascertaining whether or not a limitation is otherwise prescribed.

Another provision of the statute of limitation which, in view of former decisions, may, we think, be held to embrace this action, is subdivision 4 of article 3354, which fixes two years as the period applicable to "all actions for debt where the indebtedness is not evidenced by contract in writing." It will be noted that this is not restricted to cases in which the indebtedness is evidenced by contract not in writing, but that it includes all actions for debt except such as are evidenced by or founded upon contracts in writing, and this exception is made because the first subdivision of article 3356 applies the four-years period to "actions for debt where the indebtedness is evidenced by or founded upon any contract in writing." It follows that if a cause of action be for...