Kelley v. Shropshire, 6 Div. 523

CourtSupreme Court of Alabama
Citation199 Ala. 602,75 So. 291
Docket Number6 Div. 523
PartiesKELLEY et al. v. SHROPSHIRE. [*]
Decision Date26 April 1917

Appeal from City Court of Birmingham; John C. Pugh, Judge.

Action by H.E. Shropshire against George B. Kelley and others. Judgment for plaintiff, and defendants appeal. Transferred from Court of Appeals under Acts 1911, p. 450, § 6. Reversed and remanded.

The complaint claims damages for that during the months of September, October, and December, 1908, and February, 1909 plaintiff entered into an agreement or contract with defendants, whereby defendants undertook to make a certain survey of lands owned by plaintiff and another, and to make a map and subdivision of said land to be placed on record, and whereby certain lands were dedicated or intended to be dedicated to the public for public highways, with lots abutting on the lands so dedicated, and defendants were engaged in the business of civil engineering, among other things, and held themselves out to the public as being skilled in such profession, and as having skill and ability in that regard, and at the time of entering into said contract, plaintiff agreed to pay defendants certain moneys as a reward for their services, and it thereby became the duty of defendants to exercise care to perform said work in a skillful manner, and to do said work correctly, and to survey said lands correctly, and to make a correct map of the same but plaintiff avers that defendants were so negligent in that regard that they made a map of said lands owned by plaintiff which said map was not correct, and which said map defendants negligently certified to be correct, whereby plaintiff placed said map on record, and as the result of said errors mistakes, and negligence on the part of defendants, plaintiff was put to great expense, annoyance, and inconvenience in having new maps made correctly, and in rewriting deeds and mortgages and conveyances, and other injuries not necessary to be here set out. Defendants interposed the general issue and the statute of limitation of six years; also pleas of res judicata, setting up that these defendants individually and as partners sued said H.E. Shropshire upon an account by reason of the very contract which is referred to in the complaint, and in answer to said complaint said Shropshire filed a plea of recoupment, which plea is set out in full, and it is averted that in said plea of recoupment said Shropshire claimed damages of $2,000, and asked for judgment for the excess, setting up the same cause of action in his plea as is set up in this cause of action, based upon the same contract and the same alleged breach thereof; that the cause of action was tried before a judge and jury in a court of competent jurisdiction, and the issues were found in favor of plaintiff in that case, who are defendants in this case, and against the said H.E. Shropshire, who was defendant in that case, and who is plaintiff in this case.

H.K. White, of Birmingham, for appellants.

M.M. Ullman, of Birmingham, for appellee.


Though it be conceded, in deference to the argument for appellee, that his complaint is in tort, his action, according to the uncontradicted evidence, was barred by the statute of limitations, and appellants should have had the general affirmative charge which the record shows they requested in writing.

Neither in the pleadings nor in the evidence was anything said of fraud to bring the case within the influence of section 4852 of the Code, which provides for actions seeking relief on the ground of fraud a peculiar limitation which begins to run from the discovery of the fraud. That suggestion is found only in the brief of counsel where it takes the form of a statement that in the case of a fiduciary relation between the parties the omission to disclose what it was the duty of the defendants to disclose is a fraudulent concealment which will postpone the running of the statute. Appellee had a contract with appellants by which the latter, who were civil engineers, undertook to lay off a tract of land into lots and make a plat or map of it for appellee. It is alleged only that they did this negligently, and negligently certified an inaccurate plat or map. To say that appellants were fiduciary agents of appellee would...

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56 cases
  • Cline v. Ashland, Inc.
    • United States
    • Alabama Supreme Court
    • 5 Enero 2007 519 (quoting Home Ins. Co. v. Stuart-McCorkle, 291 Ala. 601, 608, 285 So.2d 468, 473 (1973), quoting in turn Kelley v. Shropshire, 199 Ala. 602, 604-05, 75 So. 291, 292 (1917)). The majority's explanation that Garrett's radiation exposure fell within the second class of cases because the......
  • Spain v. Brown & Williamson Tobacco Corp.
    • United States
    • Alabama Supreme Court
    • 30 Junio 2003 run, `"when, and only when, the damages are sustained."' Garrett v. Raytheon Co., supra, at 519, quoting [Kelley] v. Shropshire, 199 Ala. 602, 605, 75 So. 291, 292 (1917). At the time of the first legal injury, the period of limitations begins to run, whether or not the full amount of da......
  • Griffin v. Unocal Corp.
    • United States
    • Alabama Supreme Court
    • 25 Enero 2008
    ... ...         368 So.2d at 519 (quoting Home Ins. Co. v. Stuart-McCorkle, 291 Ala. 601, 608, 285 So.2d 468, 473 (1973), quoting in turn Kelley v. Shropshire, 199 Ala. 602, 604-05, 75 So. 291, 292 (1917)) ...         The majority's explanation that Garrett's radiation exposure ... ...
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    • 23 Septiembre 2008
    ... ... Harco Drugs, Inc., 435 So.2d 218, 220 (Ala.1983) (quoting Kelly v. Shropshire, 199 Ala. 602, 75 So. 291, 292 (1917)) (emphasis in Moon ). CERCLA applies to claims that are "brought under State law for ... property damages, ... ...
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