Irwin v. Basham

• Citation: 507 S.W.2d 621
• Decision Date: 31 January 1974
• Docket Number: No. 18256,18256
• Parties: Joe A. IRWIN, Appellant, v. George V. BASHAM, Jr., Appellee.
• Court: Court of Appeals of Texas. Court of Civil Appeals of Texas

Page 621

507 S.W.2d 621

Joe A. IRWIN, Appellant, v. George V. BASHAM, Jr., Appellee.

No. 18256.

Court of Civil Appeals of Texas,

Dallas.

Jan. 31, 1974.

Rehearing Denied Feb. 28, 1974.

John R. Bryant, Dallas, for appellant.

Whilliam W. Sweet, Jr., H. T. Bowyer, Bowyer, Thomas & Sweet, Dallas, for appellee.

BATEMAN, Justice.

Joe A. Irwin appeals from a summary judgment that he take nothing in his suit against George V. Basham, Jr. for profits alleged to be due him as a result of real estate dealings between them. We affirm .

The parties entered into an oral agreement in January 1960 for the purpose of doing business together in acquiring, developing, and disposing of real estate and interests therein for profit. Basham was to furnish the necessary funds, office facilities and bookkeeping services, while Irwin agreed to locate and purchase and sell the real estate. Title to all such property was to be taken in Basham's name, and the parties agreed to share equally in the profits of the business. Basham advanced to Irwin $100 per week against his share of the profits.

Three similar suits had been filed on the same cause of action. The first was filed on June 1, 1967, as a petition for intervention in another suit. This intervention was dismissed without prejudice on June 29, 1967. The second was filed July 8, 1967, and was dismissed voluntarily by Irwin. The third (No. 67--11259--G) was filed on December 10, 1967, and in that case summary judgment was rendered for Basham. However, that judgment was reversed and remanded because Basham had not carried his burden of establishing as a matter of law that there was no genuine issue of fact as to any of the essential elements of Irwin's cause of action. Irwin v. Basham, 478 S.W.2d 110 (Tex.Civ.App.--Beaumont 1972, writ ref'd n.r.e .) After remand, the case went to trial, but on October 18, 1972, before the trial was completed, Irwin took a nonsuit. The present suit, No. 72--8966--B, involving the same issues, was filed on November 30, 1972. Basham answered by general denial and by pleading the two-and four-year statutes of limitations, and that the cause of action was barred by a written release dated April 19, 1962 . Irwin then filed a supplemental petition attacking the release for lack of consideration, as being unconscionable, and invalid because of mutual mistake, waiver and estoppel.

The Release

After the reversal of the judgment in suit number 67--11259--G the oral deposition of Irwin was taken and it is part of the summary-judgment evidence in the record now before us. We do not find it necessary to discuss the questions raised concerning the validity of the release since we conclude that Basham has established his defense of limitation as a matter of law.

Limitations

The statutes in question (Vernon's Tex.Rev.Civ.Stat.Ann. arts. 5526, 5527, 5529 (1958)) are in pertinent part substantially as follows:

Article 5526 bars in two years actions for debt not evidenced by a contract in writing.

Article 5527 bars in four years actions for debt evidenced by or founded upon a written contract; also actions by one partner against his co-partner for settlement of the partnership accounts. It also provides that 'the cause of action shall be considered as having accrued on a cessation of the dealings in which they were interested together.'

Article 5529 bars in four years every other action than for the recovery of real estate, to which no other limitation statute applies.

Irwin argues that since this is a partition suit no statute of limitation applies. We do not agree. The authorities he cites all relate to land partition suits. This is not such a suit; it is one for accounting and to recover a share of profits alleged to have been realized from the business in which the parties had been engaged. Even if the parties could be considered as cotenants of land, or of profits from the operation, the appropriate statute of limitations began to run when Basham repudiated the rights of Irwin as cotenant and Irwin had notice of such repudiation. 15 Tex.Jur.2d, Cotenancy, § 29, at 193; Wingo v. Rudder, 103 Tex. 150, 124 S.W. 899 (1910).

It appears conclusively from the evidence that in April 1962 Basham repudiated the agreement and denied that Irwin had any further interest in the operation and that this repudiation was accepted and acted upon by Irwin. In our opinion, therefore, Irwin's cause of action, if he had one, accrued at that time and that limitations began to run from that date.

Both parties in their depositions denied that they were partners. If that is true, it appears to us to be inescapable that Irwin was Basham's employee. In that event Irwin is faced with the two-year statute, Article 5526. Krueger v. Young, 406 S.W.2d 751 (Tex.Civ.App.--Eastland 1966, writ ref'd n.r.e.); Gay v. Crow, 111 S.W.2d 782 (Tex.Civ.App.--Waco 1937, writ dism'd); Schlather v. Grobe, 246 S.W. 414 (Tex.Civ.App.--San Antonio 1922, no writ).

If, on the other hand, the true relationship was a partnership, Irwin's case would be governed by the four-year statute, Article 5527, which provides that the cause of action for settlement of partnership accounts shall be deemed to have accrued on cessation of dealings in which they were interested together. Price v. Wrather, 443 S.W.2d 348, 353 (Tex.Civ.App.--Dallas 1969, writ ref'd n.r.e.).

If neither the employer-employee relationship nor a partnership existed, Article 5529 would apply, and it is also a four-year statute. Under all three of these statutes it is essential to determine when the cause of action accrued. It appears clear to us that this occurred in April 1962, but if not, then it certainly accrued no later than June 1, 1967, when Irwin filed his intervention in the other suit pending against Basham. That intervention was dismissed on June 29, 1967 'without prejudice to the refiling of same.' Irwin then, on July 8, 1967, filed the second suit (No. 67--6483--I).

If it be considered that the cause of action accrued in April 1962, it was barred by the two- as well as the four-year statutes of limitations before the first suit, or intervention was filed on June 1, 1967. If, however, the cause of action accrued on June 1, 1967 the limitation statute was suspended during the twenty-eight days elapsing between the filing and the dismissal of the intervention. It began running again on June 29, 1967, the date of dismissal. It would have been tolled again upon the filing of the second and third suits but for the fact that in both of those cases Irwin voluntarily nonsuited. The general rule is recognized that 'a suit voluntarily abandoned does not interrupt the statute of limitations.' Shields v. Boone, 22 Tex. 193, 197 (1858); Flatonia State Bank v. Southwestern Life Ins. Co., 133 Tex. 243, 127 S.W.2d 188, 192 (1939) ¹; 37 Tex.Jur.2d, Limitation of Actions, § 98, at 249 (1962); Griffith a. Associated Employers' Reciprocal, 10 S.W.2d 129, 131 (Tex.Civ.App.--Eastland 1928, no writ); Shirley v. Waco Tap R. Co., 78 Tex. 131, 10 S.W. 543 (1889); Berry v. Humble Oil & Refining Co., 205 S.W.2d 376, 385--386 (Tex.Civ .App.--Waco 1947, no writ).

In Berry the court qualified the holding by indicating that the plea of limitation might be overcome by alleging and proving an 'excusable reason' for not having brought his suit within the limitation period. To the same effect see also Chambers v. Shaw, 23 Tex. 165 (1859) and Flatonia State Bank v. Southwestern Life Ins. Co ., 133 Tex. 243, 127 S.W.2d 188, 128 S.W.2d 790 (1939). The explanation must be of a nature sufficient to show that the...