Lewis v. Houston , 11 Tex. 642 ( 1854 )

Lipscomb, J.

This suit was brought in the District Court of Walker county, by the plaintiff, to recover from thedefndant the sum of three hundred and fifty dollars, with interest, from the 12th day of April, 1843, and for the further sum of forty dollars with interest thereon from — day of- 1846.

It is alleged in the petition, that on the 23rd day of January, 1846, the said Houston assigned to the petitioner a certain judgment, obtained by said Houston, against Mirabeau B. Lamar, in satisfaction of a judgment obtained by one Jos. W. Meek against said Houston in the District Court of Washington county, which assignment is under the hand and seal of the said Houston, and is made profert of as part of the petition, in which the said Houston represents the judgment, so assigned, to have been recovered in the Supreme Court and to have been for eleven hundred and one dollars and seventy-three cents. It is averred that no such judgment was recovered by Houston against Lamar. Petitioner alleges that Houston recovered against Lamar, in the District Court of Harris county, Spring Term, 1843, judgment for eleven hundred and one dollars and seventy-three cents, principal, and two hundred and thirty-four and 13-100 dollars, interest; that of this sum the interest was released, and the further sum of three hundred and fifty dollars, leaving due on the said judgment, seven hundred and fifty one dollars and seventy-three cents, ■that Houston had guaranteed the said judgment, assigned, to be for eleven hundred and one dollars and seventy-three cents. It is alleged that petitioner did not discover the mistake until the month of February, Í849 ; that the petitioner had paid the sum of forty dollars, as costs, to the officers of Court in the suit of Meek.

The assignment of the judgment against Lamar, in satisfaction of Meek’s judgment against Houston, is pretty much in the terms stated in the petition, with the exception, that it does not contain any guarantee of the judgment, nor the amount against Lamar.

The plaintiff amended his petition, alleging that satisfaction of the judgment against Houston had been entered in Washington county.

The defendant pleaded the statute of two years limitation ; to which the plaintiff excepted; his exception was overruled ; and there was a judgment for the defendant.

The plaintiff assigns for error, the sustaining the plea of the statute of limitations of two years. He contends that the statute of two years does not apply to this case, because he says the suit is on a written contract. And 2nd. If the two years statute applies, it did not commence running, until the mistake was discovered, in the amount of the judgment against Lamar.

We cannot regard the action as founded on any written contract for the amount sued for. There is no guarantee in the assignment, that the judgment is of the amount stated, and therefore no written undertaking to pay the difference.

The first section of our statute of limitations has this provisions in it-: “ And all actions upon open accounts, other “ than such accounts as concern the trade of merchandize, be-61 tween merchant and merchant, their factors and servants, “ shall be commenced and sued within two years next after “ the cause of action or suit, and not after.” (Hart. Dig. Art. 2377.) We believe that this statute applies to all suits for money, not founded on a written agreement or promise, unless it be within the exception of between merchant and merchant, their factors and servants, concerning the trade of merchandize; that it is not limited in its application, to an open account for goods sold, or for anything sold. That is believed to be manifest, from the fact of open accounts for goods or other articles sold, being expressly provided for in Art. 2379 and 2380. We believe, therefore, that any open, unliquidated claim for money comes within the statute.

It would seem that if it were admitted that a mistake would prevent our statute from commencing to run, in any case, it ought not to be so held in a case like the present. The judgment was a matter of record. Why the plaintiff did not seek to have it satisfied, for almost four years, is out of the ordinary course of business; and had he sought, to have it satisfied, from that time he certainly must have known of any deficiency in the amount. The judgment had been rendered in 1843, and he had become the owner of it in January, 1846. Can he expect to gain credence, when he says that he did not find it out until 1849, although he knew that it had been rendered at the Spring Term, 1843. The facts, set out in his petition,, contradict his assertion, that he did not know it, or by ordinary attention to his interest, he could not have discovered it long before the time he alleges he made the discovery. This negligence and long delay would have denied to him any advantage, from his alleged ignorance of the mistake, on the principles of equity. The defence could never be set up at law, against the statute. This is sufficient to dispose of this case.

But, for myself, I would go further, and doubt whether mistake or even fraud, would take a case out of our statute of limitations. I can readily see why it would, from the English statute, and from the statutes of most of the States of our Union; but to my judgment, our statute will not permit such exceptions. The statute of James applies expressly to actions at law. It limits the time within which certain actions at law, particularly designating them, shall be brought; but does not, either expressly or by necessary implication, include suits in Chancery. Hence, it has therefore been correctly held, that it does not apply to Courts of Equity; and Courts of Chancery never regard the statute as obligatory, but only, in general, adopt it by analogy to the Common Law jurisdiction, as a reasonable time, to prevent the prosecution of stale demands and put an end to litigation. They are, however, not bound by it; and they may well say, that in clear cases of fraud and mistake, they will not adopt it, if relief is speedily sought, after the discovery of the fraud or mistake. This they clearly have a right to do, because the statute does not extend to suits in equity. But no distinction of actions is known to our system of jurisprudence; nor any between law and equity; and our statute makes no distinction. Where there is a distinction between law and equity,.in the prosecution of rights, the former is called an action and the latter a suit. Our statute of limitations is express in limiting the time within which an “ action or suit” shall be “ commenced or sued.” I therefore believe, that until an exception shall be made by legislation, taking mistake and fraud out of the statute, I am not authorized to make the exception.

There is, indeed, much reason, why such exception should not be made. It will be admitted by all, that the allegation of mistake or fraud will require the support of evidence to. establish it, as any other fact, and may be rebutted and explained in like manner, by proof; and it cannot be doubted that time, in its destructive march, may and will be just as likely to sweep away in its course, all such evidence, as readily as that of any other facts. The judgment of the Court below is affirmed.

Judgment affirmed.