Quinn v. Press
| Decision Date | 22 May 1940 |
| Docket Number | No. 7483.,7483. |
| Citation | 140 S.W.2d 438 |
| Parties | QUINN v. PRESS et al. |
| Court | Texas Supreme Court |
W. F. Davis, of Wichita Falls, pro se.
T. R. Boone, E. T. Duff, and Kearby Peery, all of Wichita Falls, for defendants in error.
This suit was brought in the District Court of Wichita County by Mary Foley Press, joined pro forma by her husband, on October 14, 1935, against W. F. Davis and J. G. Quinn. The plaintiff alleged, in substance, that in June, 1930, at which time she was unmarried, she loaned $5,000 to defendant Davis, secured by a deed of trust upon certain properties described in her petition, situated in Wichita County, and the amount of the loan being evidenced by two notes of $2,000 and $3,000, respectively, dated June 2, 1930, and due, respectively, June 2, 1932, and June 2, 1935, and providing for payment of interest at stated dates. The parties will be referred to as they appeared in the trial court.
Plaintiff's suit was one of fraud against both J. G. Quinn and W. F. Davis, but for reasons hereinafter shown no further notice need be taken of plaintiff's suit against defendant Davis. With respect to defendant Quinn, plaintiff alleged that at the time she made the loan to Davis, she was defrauded by reason of Quinn's representations that the properties securing the loan were worth $20,000, when in truth such properties were valueless except as to one tract of land thereafter foreclosed on under the terms of the deed of trust by the plaintiff, and which was alleged to be of the value of $1,500. She alleged that altogether she realized $2,500 as a result of said loan by collections from the defendant Davis and by reason of such foreclosure, and she laid her damages in the amount of the unpaid portion of such loan,—namely, $2,500.
In the second or alternative count of plaintiff's petition she alleged that defendant Quinn was acting for her as her agent in the matters concerning such loan, and that he negligently failed to exercise due diligence to ascertain the values of the properties mortgaged, whereby she was damaged and defendant became liable to her in the said sum of $2,500.
The defendant Quinn generally and specifically denied the allegations in plaintiff's petition, and alleged that he assisted her with respect to the loan merely as a friend, and wholly without payment to himself. The defendant further pleaded that plaintiff's suit was barred by the two years' statute of limitation.
The case was submitted to the jury upon special issues, and the answers of the jury to two of these issues are determinative of this case; and they will be discussed later on in this opinion. The findings of the jury in response to other issues thought to be material were substantially as follows: That defendant Quinn did represent to plaintiff prior to the making of the loan that the collateral security to be placed on the loan was worth $20,000, and that such representations were untrue; that plaintiff in making said loan believed such representations and relied thereon; that plaintiff suffered damage by reason of not having collateral security to the value of $20,000 on said loan, and that the damage suffered by her was $2,500; that the values of certain of the properties securing said loan, free of all debts, at the time the loan was made, were respectively as follows: (a) The W. F. Davis subdivision of a tract of land, $2,500; (b) Davis' interest in the property known as the Bernard Martin Filling Station, $2,500; (c) Davis' interest in the property known as the Williams-Dwyer Filling Station, $5,000; and that the other properties given to secure the loan were, at the date of the loan, valueless. The jury further found that defendant Quinn agreed to look after the securities for plaintiff for the loan in question prior to the time the loan was made; that he failed to use ordinary diligence in making an investigation relative to the value of such properties, and that had he used such diligence he could have ascertained their value prior to the time the loan was consummated.
Special issues 13 and 22, together with the answers of the jury thereto, are here copied in full.
Neither party objected to any issue submitted by the court to the jury, nor was any request made for the submission of additional issues. From the findings of the jury, and after motion for judgment by both plaintiff and defendants, the court denied plaintiff's motion and rendered judgment for both defendants. An appeal was perfected by the plaintiff from the judgment of the district court to the Court of Civil Appeals, Press v. Davis, 118 S.W.2d 982, and that court affirmed the judgment of the district court as to the defendant Davis, but reversed the judgment as to the defendant Quinn, and rendered judgment for plaintiff against said defendant in the sum of $2,500. The case has been brought to this court by the granting of defendant Quinn's application for a writ of error.
If the plaintiff's cause of action was barred by the two years' statute of limitation, then it necessarily follows that the judgment of the trial court was the only judgment that could have been rendered.
It was the basic contention of plaintiff in the Court of Civil Appeals, and in this court, that notwithstanding plaintiff's cause of action was one sounding in fraud, yet under the facts of the case limitation did not begin to run against her until she had exhausted her remedy on the loan...
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