Nagle v. Moody & Jemison

Bonner, Associate Justice. The controlling question in this case is this: Did the statute of limitations of two years, pleaded by defendant Eagle, commence to run from the dates of the payment by Moody & Jemison of the drafts drawn on them by him, or from the dates of the last sale made by Moody & Jemison of the cotton consigned them by Eagle to meet these drafts? It is apparent from the testimony that the dealings between the parties were mutual and continuing in their character; [270] that Nagle was to ship cotton to Moody & Jemison, and that the latter were to accept his drafts drawn against the cotton. Evidently the statute of limitations would not have commenced to run in favor of Moody & Jemison for the proceeds of the cotton until after an account of sales had been rendered by them, or after a reasonable time within which the same should have been rendered, or until there had been a conversion by them of these proceeds, either openly or impliedly by law. Fulkerson v. White, 22 Tex., 674. On the other hand, the cotton was the primary fund upon which Moody & Jemison not only had the right to rely for the repayment for advances made upon the same, but which Nagle could compel them to exhaust before he could be called upon to pay otherwise, these advances, made through his drafts drawn upon the faith of this cotton, and to meet which it was consigned to Moody & Jemison. Grimes v. Hagood, 27 Tex., 693. Until the cotton had been sold or otherwise accounted for, the balance due from the one to the other, and which in this case is the true cause of action, could not have been ascertained, and hence the statute would not have commenced to run prior to that date, or not sooner than a reasonable time within which it could have been thus sold or accounted for. The last sale being within less than two years before the institution of the suit, the bar of the statute had not intervened. That Moody & Jemison had charged Nagle with interest from dates of payment of his drafts, and had credited him with interest from dates of sales of cotton, should not, under the circumstances of this case, have the effect to make these dates the accrual of the cause of action, any more than would other agreements, either express or implied, that interest would be charged before maturity. It was a mere incident to the course of dealing between the parties, and was a fair and reasonable method to keep the accounts, so that exact justice could be done to both. Affirmed. [Opinion delivered April 30, 1880.]