Powers v. Schubert

• Decision Date: 17 March 1920
• Docket Number: (No. 6333.)
• Citation: 220 S.W. 120
• Parties: POWERS v. SCHUBERT.
• Court: Texas Court of Appeals

Page 120

220 S.W. 120

POWERS v. SCHUBERT.

(No. 6333.)

Court of Civil Appeals of Texas. San Antonio.

March 17, 1920.

Appeal from Guadalupe County Court; J. B. Williams, Judge.

Action by W. R. Powers against Albert H. Schubert. From a judgment for defendant, plaintiff appeals. Affirmed.

Wurzbach & Wirtz, of Seguin, for appellant.

Greenwood & Short, of Seguin, for appellee.

MOURSUND, J.

Appellant, Powers, on June 2, 1919, sued appellee to recover $292.70 and $86. The claim for $292.70 was based upon the following allegations: That on or about March 16, 1916, plaintiff and defendant entered into a contract to the effect that defendant would superintend the clearing of certain land for plaintiff, and would draw on certain merchants on plaintiff's account for cash and merchandise, and would be liable to plaintiff for any amounts above those which should accrue under the contract; that defendant between March 31, 1916, and about August 7, 1916, drew $292.72 more than accrued for his services and the payments made to laborers and other expenses. The details were fully stated, but need not be mentioned here. Plaintiff alleged that said sum was converted to defendant's use or negligently paid out by him. The item of $86 was alleged to be due for pasturage.

The defendant's answer consisted of a general demurrer, special exceptions, a general denial, a special answer stating the facts as he contended them to be, and alleging that plaintiff still owed him $180, and a cross-action for said sum of $180.

Plaintiff's first supplemental petition contained various exceptions to the answer and cross-action, a general denial, and a special answer to defendant's allegations.

The defendant in his first supplemental answer specially excepted to plaintiff's petition on the ground that it appeared therefrom that plaintiff's cause of action accrued more than two years before the commencement of the suit, and was therefore barred by the two-year statute of limitation. He also pleaded such statute, and specially denied all allegations contained in plaintiff's pleadings.

Plaintiff by second supplemental petition excepted to defendant's plea of limitation, and then pleaded that a large part of his demand was based upon written orders by defendant, and that on or about July 31, 1918, defendant through his authorized agent, Albert Arend, promised and agreed to pay or settle the account of plaintiff sued upon, said promise or agreement being in writing, and constituting a renewal or extension of the indebtedness sued upon; also that defendant by letters renewed and promised to pay said indebtedness.

Defendant specially excepted to such pleading, and denied the allegations thereof.

Plaintiff by trial amendment pleaded that, in the event it should appear that his cause of action was barred by limitation, then that the cause of action set up in defendant's cross-action accrued more than two years prior to the filing of such cross-action, and was barred by the two-year statute of limitations.

The cause was submitted on special issues, with the result that the jury found defendant owed plaintiff the $292.70 item sued for, and did not owe him the $86 item. The court, over the objection of both parties, submitted certain issues relating to the time when plaintiff discovered that defendant owed him the $292.70 and whether he used reasonable diligence to discover whether there was a difference in the amount received by defendant and the amount he was entitled to receive. These issues, submitted over objection, were treated by the court as immaterial, and judgment rendered for defendant on the ground that the plaintiff's claim for said $292.70 was barred by limitation.

There can be no doubt that plaintiff alleged a cause of action with respect to said $292.70 upon which he could have instituted suit at any time after August 7, 1916.

When the defendant, by exception and plea, urged the statute of limitation, it became necessary for the plaintiff to file an amended petition or a replication setting up such facts as he depended on to show that the cause of action should be considered for purposes of limitation as having accrued at a time within two years preceding the filing of the suit. McDonald v. McGuire, 8 Tex. 361; Oldham v. Medearis, 90 Tex. 506, 39 S. W. 919; Ortiz v. De Benavides, 61 Tex. 60; Pitman v. Holmes, 34 Tex. Civ. App. 485, 78 S. W. 961.

The plaintiff seems to have recognized this general rule; for he filed a replication setting up that the money was partly obtained on written orders, and that there had been a renewal agreement, but did not plead failure to discover that he had a cause of action and use of due diligence. It is contended in his brief that this was unnecessary, and two theories are presented in support of the contention. One is that because defendant was plaintiff's agent a general denial would be sufficient to authorize proof of failure to discover the misapplication or negligence and facts showing diligence to make such discovery; in other words, that the right to sue does not accrue until such discovery or until such time as by the exercise of reasonable diligence discovery could have been made. We find no authority sustaining such contention. A cause of action for negligence or misappropriation by an agent accrues at the time of the wrongful act, and the statute commences to run at that time, and not from the time of ascertaining the damages. Wood on Limitations (4th Ed.) §§ 123 and 200; Meechem on Agency, § 1346; Boyd v. Beebe, 64 W. Va. 216, 61 S. E. 304, 17 L. R. A. (N. S.) 660, and note; Fortune v. English, 226 Ill. 262, 80 N. E. 781, 12 L. R. A. (N. S.) 1005, and note, 117 Am. St. Rep. 253, 9 Ann. Cas. 77.

In this case, if it be regarded as one upon an express or implied promise to repay, the cause of action accrued at the time the defendant ceased to work for the plaintiff. The distinction between the date of accrual — that is, the date upon which plaintiff could, maintain a suit — and the date to which the beginning of the bar of the statute may be suspended for good cause must not be lost sight of. It appears to us that appellant's theory is based upon a misconception of opinions which do not discuss the question whether the right to sue existed as soon as the wrongful act was committed, but whether the bar of the statute of limitations would be postponed by reason of fraudulent concealment. One of the cases relied on is that of Ash v. Frank Co., 142 S. W. 42, decided by this court. In that case, as is shown by the record, the plaintiff pleaded fully in avoidance of the bar of the statute, relying upon fraudulent concealment and alleging the facts showing what diligence he had exercised. The court did not discuss the question when the cause of action accrued — that is, when plaintiff was entitled to sue — but did discuss the question of when limitation would run in view of the pleadings and evidence. The case was one in which the agent was guilty of actual fraud, in which case mere silence on his part is regarded as a continuation of the fraud and a concealment of the cause of action. American Nat. Bank of Macon v. Fidelity & Deposit Co. of Maryland, 131 Ga. 854, 63 S. E. 622, 21 L. R. A. (N. S.) 962, and note. Appellant also relies on the case of Thomason v. Rogers, 155 S. W. 1040, which was also a...