Eborn v. Zimpelman

Citations

• 47 Tex. 503

Syllabus

<p>1. Suit was brought, In 1871, against an administrator whose intestate, it was alleged, had executed, in 1846, the following instruments: “Borrowed and received from William Eborn, nine hundred dollars, which I promise to return when called for, with interest. February 3, 1846. (Signed) Thomas Eborn.” “Received of William Eborn, six thousand five hundred dollars, which I promise to invest in lands, or return the same when called for, with interest. May 14,1846. (Signed) Thomas Eborn.” The petition alleged that the money had been received on both instruments by the obligor, with tile understanding that he should go West and invest the same in lauds for William Eborn, and if he failed to do so, the money should be returned, with interest; that soon after the last instrument was executed, the obligor left Forth Carolina, in which State the transaction occurred, and was not heard from thereafter until 1870. The statute of limitations of four years was pleaded as a defense: Held—</p> <p>1. The receipt for nine hundred dollars, borrowed to be returned “when called for,” created a cause of action from its date, and against it the statute ran from the time of its execution.</p> <p>2. Against the receipt for six thousand five hundred dollars the statute began to run after the lapse of a reasonable time within which to apply the money as required; and after the lapse of such time, no demand was necessary.</p> <p>3. The claim was not an express trust, but must be regarded as a moneyed demand, barred by limitation, in the absence of a sufficient acknowledgment within four years before the institution of the suit.</p> <p>4. The averment that the maker of the instruments left soon after their execution, and that his whereabouts was not known to the holder of the obligation until 1870, does not make out such a case of fraud as constitutes ail exception to the statute of limitations ; there being no express charge of fraud, nor any allegation that efforts were made to ascertain