Squyres v. Christian

• Decision Date: 21 November 1952
• Docket Number: No. 15386,15386
• Citation: 253 S.W.2d 470
• Parties: SQUYRES v. CHRISTIAN et al.
• Court: Texas Court of Appeals

Page 470

253 S.W.2d 470

SQUYRES v.CHRISTIAN et al.

No. 15386.

Court of Civil Appeals of Texas, Fort Worth.

Nov. 21, 1952.

Rehearing Denied Dec. 26, 1952.

Gordon R. Wellborn, of Henderson, Lawrence & Lawrence, and Pollard, Reeves & Boulter, of Tyler, for appellant.

Dean W. Turner and T. A. Bath, both of Henderson, for appellees.

EARL P. HALL, Chief Justice.

Appellees, Mrs. Alice Christian, widow of C. O. Christian, individually and as guardian for Patsy Ann Christian and C. O. Christian, Jr., minors, and Doris Christian Rea, joined pro forma by her husband, instituted this suit on March 27, 1950, in the district court of Rusk County against appellantArthur Squyres.Appellees' cause of action is based on a new promise in writing on or about the month of April, 1944, to pay an old debt evidenced by a note executed by appellant Squyres to C. O. Christian in 1936, for the principal sum of $7,000, due one year thereafter.In their second count, appellees plead an action of fraud.Appellant plead the four-year statute of limitation upon said note and the two-year statute of limitation to the action of fraud.The case was tried to a jury and judgment entered for appellees in the sum of $18,900, with interest at the rate of ten per cent from date of judgment.

Appellee Mrs. Christian testified that she first discovered the note among the papers of her late husband in March, 1944; she asked appellant about it and was told he had borrowed some money from her husband.

Appellees plead, and introduced testimony, establishing the following defenses to the statute of limitation plead by appellant: (1)Appellant had told Mrs. Christian's husband that the statute of limitation would not run against the note; (2)he told Mrs. Christian after her husband's death that limitation would not run against the note; (3) that appellant having been employed by both Mrs. Christian and her husband from 1932 through 1948 to attend to their accounting and tax work, same placed them in a confidential relationship which would toll the statute; (4) that Mrs. Christian accepted appellant's statements as being true but did not discover their falsity until about June 8, 1948, when she received notice that an insurance policy, which had been taken out in her behalf as collateral for this note, had expired because of nonpayment of premium.

Issues submitted to the jury and its answers, upon which judgment was based, are substantially as follows: (1) At the time appellant secured the sum of $7,000 from C. O. Christianhe represented to Christian that limitation would not run against the note.(2) That C. O. Christian believed said representation.(3) That appellant represented to Christian he would repay said loan.(4) That appellant did not intend to repay said money at the time he secured same from Christian.(5) That C. O. Christian would not have advanced the money to appellant except for his belief in such representations made by appellant.(6) After appellant had borrowed said sum, he again represented to Christian that such note would never be barred by the statute of limitation.(7) That Christian believed such representation.(8) That Christian failed to bring action on said note because of his belief in such representation.(9) Shortly after the death of C. O. Christian, appellant represented to appelleeMrs. Alice Christian that limitation would not run against the note.(10) Mrs. Christian believed such representation.(11) That appellee Mrs. Christian discovered for the first time on June 8, 1948, that such representations made by appellant to her were false.(12) The reason why she had not brought suit before was because she believed such representations to be true.

Appellant objected to the submission of said issues on the ground that same were not supported by the evidence.Appellant timely moved for an instructed verdict and for judgment non obstante veredicto.Both motions were overruled by the trial court.

It is undisputed that appellant did accounting work as a public accountant for both Mr. and Mrs. Christian from 1932 until 1948; that appellant took out a policy of insurance naming Christian as beneficiary therein, and its having lapsed he took out another insurance policy, after Christian's death, maming Mrs. Christian as beneficiary on or about April 26, 1944, assigning the same to her on May 1, 1944.

Appellees have cited no case, and we have found none, to the effect that, first, the mere handling of a general accounting business establishes such a fiduciary relationship between an accountant and one of his clients as would toll the statute of limitation; and, second, that representations made by payor to payee of a note to the effect that limitation will not run on same does not establish fraud which would toll the statute of limitation.

We find there is no fiduciary relationship between the parties, even though appellee Mrs. Christian may have had confidence in appellant by reason of her business relationship with him.28 Tex.Jur., p. 162, § 73, Confidential Relationship;34 Am.Jur., p. 135, § 168.Confidential relationship does not excuse appellees of negligence of laches in the enforcement of their rights.20 Tex.Jur., p. 112, § 75.Appellant did not conceal any fact from either appellee Mrs. Christian or her late husband which would avoid bar...