Madox v. Humphries , 24 Tex. 195 ( 1859 )

Wheeler, C. J.

We are of opinion, that the court erred in instructing the jury, that the plaintiff’s cause of action accrued, and the statute of limitations commenced to run against him, from the commencement of the former suit, the 22d of December, 1856.

The filing of the petition, was the commencement of the suit, but it gave the defendant therein, no cause of action. It was not a breach of the contract, nor was this plaintiff deprived of any of its benefits, by the filing of the petition in that suit. He was still free to proceed in the performance of the contract, and the enjoyment of all the benefits which it conferred, until the service upon him of the writ of injunction. Suppose, that before service of the process, the suit had been dismissed; would it be contended, that the merely having filed the petition, would give the party named as defendant therein, a cause of action ? Certainly not. The service of the injunction, was a breach of the contract, because it prevented the defendant from further performance, or deriving any further benefit from his contract, as effectually, as if he had then been evicted. Then, (on the 17th of January, 1857,) but not before, the cause of action accrued, and the statute of limitations commenced to run.

The plaintiff’s right of action, is not affected, by proof that the value of the use of the premises for two years, was worth as much as the improvements. The compensation to be received for the improvements, was settled by the contract of the parties. The judgment is reversed, and the cause remanded.

Reversed and remanded.