Griffith v. Shannon
| Decision Date | 28 April 1926 |
| Docket Number | (No. 6985.) |
| Parties | GRIFFITH v. SHANNON et al. |
| Court | Texas Court of Appeals |
Appeal from District Court, Tom Green County; J. F. Sutton, Judge.
Action by A. B. Griffith against J. M. Shannon and another. Judgment for defendants, and plaintiff appeals, and defendants assign cross-error. Affirmed.
Stinson, Coombes & Brooks and Roy L. Duke, Wilson & Childers, all of Abilene, for appellant.
Harris & Harris and W. A. Wright, all of San Angelo, for appellees.
Appellant, A. B. Griffith, filed this suit against appellees, J. M. Shannon and A. F. Clarkson, and by a second amended original petition alleged a partnership between them, formed in the year 1886, for the purpose of building fences in the aggregate of 500 miles; that after the contracts for the building of the fences were completed, appellant went to Louisiana for the purpose of getting married, it being agreed that upon his return to Texas a settlement of the partnership profits for building the fences would be made, each of them being entitled to receive a one-third interest therein; that the partnership affairs ended with the completion of the work in 1886, with the exception of settling some outstanding accounts and paying over to appellant his share of the profits; that on or about December 26, 1886, appellant returned to Colorado City, the headquarters of the alleged partnership, and where each of the parties to it resided, for the purpose of having settlement on his contract, but upon returning discovered that the appellees had appropriated his interest in said business, and from all information obtainable had left the state of Texas, and probably the United States; that he made diligent inquiry for some two or three months thereafter as to the whereabouts of the appellees, but received no information; that he paid some few of the debts owing by the partnership, and then, having no further means of livelihood, moved out of the state of Texas in the early part of the year 1887, and went to the state of Colorado and other Western states, where he remained continuously, never returning to Texas for a period of 37 years.
The petition contained no allegation that appellant had ever corresponded with any one in Texas or elsewhere with reference to information leading to the whereabouts of either of the appellees. It alleged a general conclusion that he made diligent inquiry without alleging any fact upon which to base it.
Appellant further alleged that in August, 1923, he returned to Texas and located appellee Shannon in Tom Green county and appellee Clarkson in Sutton county, and that he immediately went to Shannon in 1923 and demanded of him settlement of the partnership account, alleging that he was due one-third of $26,250 as his share of the profits in the partnership enterprise, that Shannon requested him to get in connection with appellee Clarkson and then promised and agreed to settle with appellant, but that, after spending six days in San Angelo, waiting from day to day for Shannon to settle and to get in connection with Clarkson, Shannon finally told appellant that he would not settle with him, and that he would not pay him anything. The petition further alleged that appellees invested the sum of money derived from the partnership enterprise in lands and stock in Crockett and other Texas counties, and reinvested the proceeds derived from the sale of stock and land and other increase until the estate of Shannon valued over $1,000,000, and that of Clarkson over $50,000, which estates were alleged to have been derived and accumulated out of and by reason of the use of the funds aforesaid belonging jointly to appellant and appellees; and appellant asked that said estates be charged and held as a trust estate resulting from the use of the trust funds, and that he be adjudged to be the owner of an undivided interest of one-third thereof. Appellant prayed for an accounting of the partnership affairs, and for a decree of the court vesting him with title to one-third of the property owned and possessed by appellees. In the alternative, he prayed for judgment against the appellees, jointly and severally, for the sum of $8,750, with interest thereon from January 1, 1887.
To the allegations of appellant, appellees answered by general and special exceptions, raising the 2, 4, and 10 year statutes of limitation and stale demand, and by general and special denials. The trial court overruled the general demurrer and the special exception raising the 2 and 4 year statutes of limitation, but sustained the exception raising the 10 year statute of limitation and stale demand. The trial court also sustained the special exception addressed to the portion of appellant's petition which attempted to set up a promise to pay and settle the account in controversy by appellee Shannon. Appellant refused to amend, and the trial court dismissed the suit; from which action this appeal is perfected.
Appellees cross-assign error of the action of the court in refusing to sustain their special exceptions raising the question of 2 and 4 year statutes of limitation.
We are of the opinion that the trial court correctly sustained the exception raising the ten-year statute of limitation and stale demand to the cause of action alleged, and also the special exception relating to an alleged agreement to pay and settle the account by appellee Shannon.
Appellant predicates his propositions upon the fact that his petition alleged the existence of the partnership between himself and appellees, and that appellees took charge of the partnership assets and secreted and concealed themselves from the known whereabouts of appellant for 37 years, while he believed and was informed that appellees had gone beyond the jurisdiction of the state, and that, fraud being imputed by such allegations, the length of time ought not upon the principles of equity deprive him of his debt because of the statutes of limitation.
We are of the opinion that the petition alleges facts which would tend to make appellees trustees of a constructive trust, and further alleges facts which showed a repudiation of that trust, and knowledge on the part of appellant of such repudiation since he returned from Louisiana to Colorado City in 1886; and his cause of action, if any he had, arose at the time of such repudiation, and after a lapse of ten years would be barred.
In the case of Hunter v. Hubbard, 26 Tex. 537, the Supreme Court, in announcing the rule as to the run of the statute of limitation in favor of a trustee under an...
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Labaty v. UWT, Inc.
...party does not toll the running of the statute of limitations when the cause of action is not concealed."); Griffith v. Shannon, 284 S.W. 598, 600 (Tex.App.-Austin 1926, writ dism'd) ("Fraud and concealment, in order to prevent the running of the statute, must relate to concealment of the c......
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Guebard v. Jabaay
...60; Landers v. Evers (1940), 107 Ind.App. 347, 24 N.E.2d 796; Staples v. Zoph (1935), 9 Cal.App.2d 369, 49 P.2d 1131; Griffith v. Shannon (Tex.Civ.App.1926), 284 S.W. 598; see 54 C.J.S. Limitations of Actions § 206e (1948); Annot., 173 A.L.R. 584-86 (1948)) and plaintiff's allegations here ......
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International Union United Auto. Workers of America v. Wood
...held not to constitute a concealment of a cause of action. Staples v. Zoph, 9 Cal.App.2d 369, 49 P.2d 1131; Griffith v. Shannon, Tex. Civ.App., 1926, 284 S.W. 598; 173 A.L.R. 584; 54 C.J.S., Limitations of Actions, § 206, page It is argued that Wood was the agent of Ely, Kime and Getz in pr......
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Vaughn v. Sturm-Hughes
...particularly when Vaughn knew, 2 or reasonably should have known, that he had a cause of action. See Griffith v. Shannon, 284 S.W. 598, 600 (Tex.Civ.App.--Austin 1926, writ dism'd w.o.j.) ("Fraud and concealment, in order to prevent the running of the statute, must relate to concealment of ......