Hutchings v. Richardson

• Decision Date: 01 January 1879
• Citation: 51 Tex. 1
• Parties: ALSTON & HUTCHINGS v. JOHN D. H. RICHARDSON.
• Court: Texas Supreme Court

51 Tex. 1

ALSTON & HUTCHINGS

v.JOHN D. H. RICHARDSON.

Supreme Court of Texas.

1879.

ERROR from Madison. Tried below before the Hon. James R. Burnet.

Alston & Hutchings brought suit in the District Court of Madison county in 1873, to recover of Richardson $813 and interest, paid by them to defendant in May, 1870, through mistake, occasioned, as was alleged, by false and fraudulent representations of defendant. To the plaintiffs' original and amended petition the defendant demurred and pleaded the statute of limitations, which demurrer and plea were sustained by the court below and the cause dismissed. To this ruling of the court the plaintiffs excepted, and prosecuted a writ of error. They assigned as error the ruling of the court below in sustaining defendant's demurrer and plea and in dismissing the cause.

The allegations in the petition are to the effect “that plaintiffs paid to defendant a certain sum of money by mistake, occasioned by false and fraudulent representations of defer dant; that the plaintiffs were sureties on a claimant's bond for property attached by defendant, and as such liable to have a judgment rendered against them; that they lived in another county, a considerable distance from the county-seat of Madison county, with a river intervening; that they did not attend the courts of Madison county to give the matter their personal attention, or employ counsel to represent them, but, as is usual and customary, depended on their principal to attend to the matter; that when, afterwards, they were informed by defendant that the cause had been tried and he had recovered a judgment against them, they were prepared to believe the representations, because they thought they were liable to have such judgment rendered against them; that, having confidence in the integrity of defendant, as soon as a message was received from him the plaintiff Hutchings at once went to the defendant's house, not questioning the truth of the message, but to pay the supposed judgment; that defendant again represented it as a fact that he had recovered such judgment, and he and Hutchings went together to the district clerk's office to ascertain the exact amount of the judgment; that upon making inquiry of the clerk, he gave the amount of the judgment, which Hutchings understood to be the amount recovered by Richardson against him and his co-sureties, when in fact it was the amount of the judgment recovered by the said Richardson against one K. G. Martin. Under the above-stated circumstances it is alleged that the plaintiffs, Alston & Hutchings, by Hutchings, paid the defendant over $800.” The allegations further show that the defendant had recovered no judgment in the District Court against the sureties on the claimant's bond, or against Alston & Hutchings, as he had represented to them; that he could not legally have recovered such judgment; and, further, that the plaintiffs were not legally or morally bound to pay the defendant any sum of money whatever. This money was paid in May, 1870, and it is alleged that the mistake was not discovered until December, 1871, when one of the plaintiffs procured the assistance of an attorney to examine the minutes of the District Court, with a view of obtaining the proper data, to institute a suit against the estate of one John H. Calhoun, who was a co-surety on the claimant's bond, and it was then discovered, for the first time, that they had, on the representations and demand of defendant, paid him a large sum of money which they were neither legally nor morally bound to pay. This suit was brought within two years after such discovery.

Abercrombie & Goree, for plaintiff in error.

I. When money is paid by mistake under an ignorance or forgetfulness of facts, or under a misapprehension of the state of the contract by the party who pays it, if he be not legally nor morally obliged to pay, it may be recovered back. Nor is it any defense to an action to recover such money, that the other party had means of knowledge. (Story on Cont., 422, 423; Emerson v. Navarro, 31 Tex., 337;Williams v. Warnell, 28 Tex., 610.)

II. But the main question in this case is, whether the plaintiffs' original and amended petitions contain such allegations as, if proven to be true, would prevent the operation of the statute of limitations?

The law is well settled, that in cases of fraud or mistake the statute begins to run from the time of the discovery of such fraud or mistake, and not before. (Munson v. Hallowell, 26 Tex., 475, and authorities there cited; Emerson v. Navarro, 31 Tex., 334;Hudson v. Wheeler, 34 Tex., 356; 2 Story's Eq., 1521 a.)

We contend that the plaintiffs' pleadings allege such facts and circumstances as would, if sustained, prevent the operation of the statute until the discovery of their cause of action by plaintiffs; and, further, that such facts and circumstances of imposition, misrepresentation, and concealment of defendant are alleged as amount to a fraudulent concealment of plaintiffs' cause of action by defendant.

III. It seems to us that even if there were no allegations of fraudulent concealment and misrepresentation on the part of defendant, and the plaintiffs' pleadings had only shown that an innocent mistake was made by both parties, then the plaintiffs are entitled to relief, and the defendant should not be allowed to defeat their recovery by a plea of limitation. The statute should not interpose as a bar until the discovery of the mistake. In the case of Emerson v. Navarro, 31 Tex., 334, where an innocent mistake had been committed, unmixed with any ingredient of fraud, it was held that the statute did not commence to run until the discovery of the mistake. In the decision therein rendered the following language is used: “It must be borne in mind that the right sought in this proceeding is an equitable right; it is no breach of contract; it arises from no default of duty in the party defendant. But it is based upon the equitable principle that the defendant has got by the rule something which he ought not conscientiously to retain; that he has got something...