Smith v. Dickey

Decision Date17 May 1889
PartiesSMITH <I>v.</I> DICKEY.
CourtTexas Supreme Court

Carter, Wynne & De Berry, for appellant. Ball & McCart, for appellee.

GAINES, J.

This suit was brought by appellee against appellant to recover on an account for services in preparing sketches and estimates of an hotel building to be erected in the city of Fort Worth. Upon the trial the question of limitation arose, and the rulings of the court upon that question are assigned as error on this appeal. The sketches and estimates were completed by appellee, and delivered to appellant on July 3, 1883. His cause of action, there being no express contract as to the time of payment, then accrued. He did not bring his suit until July 3, 1885. Whether the cause of action was then barred or not depends upon the question whether, in computing the time, the day on which the cause of action accrued is to be excluded or included. In Watkins v. Willis, 58 Tex. 521, it is held that in computing the term of four years, in order to bar a suit upon a note, the day on which the note matures is to be excluded, but this was upon the principle that the payee had all of the day of maturity in which to pay the note, and hence the holder could not sue until the next day. In that case the plaintiffs brought their action within four years, including the day on which their cause of action accrued. In this case the cause of action accrued as soon as the sketches and estimates were delivered, and it follows that if that day is to be included in the computation the bar of that statute was complete when the suit was brought. But should the day of the accrual of the cause of action be included? There is no direct decision of this court upon the question. The action comes under the fifth class specified in article 3203 of the Revised Statutes, which reads as follows: "There shall be commenced and prosecuted, within two years after the cause of action shall have accrued, and not afterwards, all actions or suits in court of the following description." Then follows the description of the several classes. There has been no uniform or satisfactory rule laid down by this court as a guide for the determination of this question, but perhaps there is none more general or more satisfactory than that, when time is to be computed after an act done or the happening of an event, the day on which the act is to be done or the event is to happen is to be excluded from the count. Koltenbrock v. Cracraft, 36 Ohio St. 584; Bigelow v. Willson, 1 Pick. 485; Paul v. Stone, 112 Mass. 27; Chiles v. Smith, 13 B. Mon. 460; Brown v. Buzan, 24 Ind. 194; Insurance Co. v. Palmer, 81 Ill. 88; Goode v. Webb, 52 Ala. 452; Page v. Weymouth, 47 Me. 238; Towell v. Hollweg, 81 Ind. 154. This rule was expressly recognized in Burr v. Lewis, 6 Tex. 76, as applied to a statute which required an appeal-bond to be filed within 20 days after the adjournment of court. Hart. Dig. art. 789. In Lubbock v. Cook, 49 Tex. 96, the rule was again applied to the statute of limitations upon a writ of error, and it was there held that in computing the two years the day of the rendition of the judgment was to be excluded. The language of the statute there construed is "after the expiration of two years from the rendition of the judgment." Pasch. Dig. art. 1496. In State v. Asbury, 26 Tex. 82, a different rule was applied, and the day on which the offense was committed was held to be included in determining the question of limitation. But that was a criminal case,...

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34 cases
  • Silo Rest. Inc. v. Allied Prop. & Cas. Ins. Co.
    • United States
    • U.S. District Court — Western District of Texas
    • November 12, 2019
    ...of an event, the day on which the act is to be done or the event is to happen is to be excluded from the count." Smith v. Dickey , 74 Tex. 61, 11 S.W. 1049, 1050 (1889). In other words, "the day on which the cause of action accrued ... should not be counted in the computation." Id. The Texa......
  • Condor Petroleum Co. v. Greene
    • United States
    • Texas Court of Appeals
    • June 26, 1942
    ...it was sold is not shown. If the sale was on December 31st it was within the 2-year period provided by Art. 5526, subd. 4. Smith v. Dickey, 74 Tex. 61, 11 S.W. 1049. No breach of the contract is conclusively shown prior to appellee's demand for payment, and appellant's refusal to pay in Aug......
  • Capitol Hotel Co. v. Rittenberry
    • United States
    • Texas Court of Appeals
    • March 4, 1931
    ...this state. We think it announces the correct rule as declared in the Texas decisions cited in the original opinion and in Smith v. Dickey, 74 Tex. 61, 11 S. W. 1049; Emerson v. Kneezell (Tex. Civ. App.) 62 S. W. 551; and Hall v. Parry, 55 Tex. Civ. App. 40, 118 S. W. The contract of Februa......
  • Apache Corp. v. Apollo Expl.
    • United States
    • Texas Supreme Court
    • April 28, 2023
    ...should be computed to "favor parties, where penal consequences are sought to be enforced." 1 Tex. at 116 (emphasis added); see also Smith, 11 S.W. at 1050. That thumb on scale, of course, does not exist with respect to freely and mutually agreed contracts among equals. [25] Sellers emphasiz......
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