Texarkana Motor Co. v. Brashears
| Decision Date | 20 March 1931 |
| Docket Number | No. 3976.,3976. |
| Parties | TEXARKANA MOTOR CO. v. BRASHEARS. |
| Court | Texas Court of Appeals |
Appeal from District Court, Bowie County; R. J. Williams, Judge.
Action by R. G. Brashears against the Texarkana Motor Company. Judgment for plaintiff, and defendant appeals.
Modified, and affirmed as modified.
On March 27, 1928, the Texarkana Motor Company sold a Buick automobile to the appellee for $950. The motor company had recently acquired the automobile as a used car. The appellee paid $105 cash and executed eleven notes of $56 each, and was allowed $300 credit in trade for another used Buick automobile. The appellee brought the present suit on May 29, 1930, to recover pecuniary damages, based on alleged false and fraudulent representations inducing the purchase of the automobile. The representations alleged were that the automobile was of the 1927 model and had not been driven more than 2,600 miles, was in good running condition, and was in first-class mechanical condition. The damages sought was $814.95, which was what the automobile was worth, less than what it would have been had the automobile been as it was represented to be, and in addition thereto $300 as special damages, being the amount spent on the automobile purchased for replacing burned out rods. The defendant pleaded general denial and the statute of limitation of two years.
The case was submitted to the jury upon special issues, and the jury findings, stated in substance, were: That the agent of the defendant in negotiating the sale of the Buick automobile represented to the plaintiff that the automobile was "in first class mechanical and running condition," and that the plaintiff relied and was induced to buy the automobile upon the representations so made. That the representations "were false and untrue"; that "there was a defect in the lubricating system" of the automobile delivered to the plaintiff. That the Buick automobile at the time of the sale to the plaintiff was of the cash market value of $300; that the automobile traded in by the plaintiff was of the market value of $150. That the plaintiff expended $300 for installing the connecting rod which was burned out, due to the defective lubricating system of the automobile received by him. The jury made the further special findings of fact that the plaintiff by reasonable effort could have corrected the defect in the lubricating system by February 1, 1929, and at the cost of $450. In keeping with the verdict of the jury the court entered judgment for the plaintiff in the sum of $800. There is evidence to support the verdict of the jury.
E. Harold Beck and L. E. Keeney, both of Texarkana, for appellant.
Elmer L. Lincoln, of Texarkana, for appellee.
LEVY, J. (after stating the case as above).
The plaintiff was allowed to testify over the objection of the appellant, in substance, that while the automobile in evidence was in the shop of the Dilby Auto Company undergoing repairs, he (plaintiff) obtained information through Joe Speers, the mechanic, that the automobile "was of the 1925 model, a defective model, defective in the oiling system, and not properly distributing oil, and at a speed exceeding thirty-five miles the connecting rod did not equally distribute oil and would inevitably burn out." Appellant insists such evidence was hearsay and the objection to its introduction should have been sustained. Although giving the particular defects pointed out, yet the witness was merely undertaking to state when and the circumstances under which he gained his knowledge about the condition of the automobile. In that view there was no legal objection to the evidence. Assuming, however, there was technical error in admitting the evidence, such error must be regarded as harmless when tested by the record as a whole. Rule 62a. The witness Speers in testifying himself gave the very evidence about the automobile as is complained of in the bill of exception. Other witnesses also testified to the facts reproduced by the plaintiff in this testimony. And the court did not submit to the jury for finding upon any issue of whether or not the appellant represented that the automobile was of the particular model of 1925 and would hold up at the speed as described by the plaintiff and the other witnesses.
The appellant pleaded in bar of the suit the statute of limitation of two years, and insists that the plea should have been sustained. It is the settled rule in this state that the statute of limitation begins to run from the time when and only when the fraud is discovered, unless in the exercise of reasonable diligence it might have been sooner discovered. Bass v. James, 83 Tex. 110, 18 S. W. 336; Port Arthur Rice Milling Co. v. Rice Mills, 105 Tex. 514, 143 S. W. 926, 148 S. W. 283, 150 S. W. 884, 152 S. W. 629. This rule really means that when the statute of limitation is pleaded in bar of the action and the evidence on the part of the defendant goes to show that the bar of the statute applies, then and in that event there devolves upon the plaintiff in the action the burden to produce evidence showing when he first discovered the fraud and the circumstances of discovery, so that the court may see he did not discover the fraud until less than the statutory time before the commencement of the suit and by due diligence such fraud could not have been found out sooner. Raley v. D. Sullivan & Co. (Tex. Com. App.) 207 S. W. 906; Clement v. Clement, 44 Tex. Civ. App. 574, 99 S. W. 138. In the absence of such evidence by the plaintiff in the action, the prima facie evidence of the defendant, that the bar of the statute applies, would stand as conclusive. But when the plaintiff in the action has produced evidence of the kind stated, then the prima facie evidence of the defendant, that the bar of the statute applies, would not stand as conclusive. In such circumstances there would have to be determined by the court or the jury upon the whole evidence, the fundamental question of whether or not the action was barred by the statute of limitation. Unless it was as a fact barred, as tested by the rule applied in fraud cases, the defense of limitation could not prevail. Looking to the facts in the present case, it is believed the court was not authorized to hold, as a pure matter of law, that the cause of action was barred. The evidence fully raised the issue of matters avoiding limitation, which the jury should have determined in the first instance, taking the case out of the operation of the statute. Therefore, the point made by the appellant would be controlled in this record by the...
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