Wynne v. P. J. Willis & Bro.

STAYTON, Chief Justice. Appellant,as assignee of the estate of Hudson & Son, insolvent debtors, who had made an assignment for the benefit of such of their creditors as would consent to take under it and release them, paid to appellees through their order in favor of Kaufman & Kunge the sum of $8452.17, which was their pro rata of the assigned estate. Appellees we,re creditors of Hudson & Son in a much larger sum, and they sent to the assignee a statement of the sum due them, but not sworn to as the statute requires, but did agree to take under the assignment and to release the debtors. Appellee paid as before stated, but other creditors of the insolvent •estate brought an action against him to recover the sum so paid, on the .ground that he was not authorized, to pay a claim not properly authenticated. They obtained a judgment against him, which was affirmed by this court. Wynne v. Hardware Co., 67 Texas, 40. [592] That judgment appellant has never satisfied in whole or in part, hut-now sues to recover from appellees the sum paid on their claim. The facts here stated, except the nonpayment of the judgment, are alleged in the petition. It is not made clearly to appear whether appellant seeks to recover on the ground that he made the payment under mistake of law, ’having-knowledge of all the facts, or on ground thus stated in brief of his counsel: “2. He shows to the court that the fact is, but was not known to him at the time of the payment, that before their acceptance of the assignment and filing of their claim defendants had entered into a secret agreement with Kaufman & Runge and the assignors, whereby they agreed in consideration, among other things, of the payment of $5000 by the assignors to accept the assignment, and agreed to accept said payment of $5000 and certain other considerations in the agreement mentioned in satisfaction of their judgment and in lieu of any benefit or dividend under the assignment; that the said sum of $5000 was accordingly paid the defendants under the agreement before this acceptance of the assignment, as well as the further sum of $2000 exacted outside the agreement; but he says that the defendants, wrongfully intending to deceive, mislead, and defraud petitioner, concealed said agreement from him, and accepted said assignment and filed their purported claim with him, wrongfully intending to induce him thereby, in ignorance of the facts, to pay said dividend, whereby he was deceived, misled, and induced to pay the same. He says there was no contract, agreement, or understanding between him and the defendants with respect to the payment of said dividend other than as stated, and especially was he not privy to any contract, agreement, or understanding, expressed or implied, in the direction endorsed by defendants on their said receipt to pay the same to Kaufman & Runge without recourse. He charges the liability of defendants to repay the money so paid them, with interest and counsel fees; demand and refusal.” This action was commenced on June 27, 1887, while the dividend was paid to order of appellees on October 13, 1881, with full knowledge that the claim had not been properly authenticated. On March 3,1883, creditors of Hudson & Son brought the suit against appellant to recover the sum by him improperly paid to appellees’ order, and recovered a judgment on December 7, 1884, against him, which on appeal was affirmed October 22, 1886. When suit was brought against appellant he notified appellees of its pendency and requested them to defend it, but this they did not. At the time dividend was paid appellant did not know of the secret agreement pleaded, but he did know of the agreement as early as February 3, 1883. Whether that agreement is susceptible of the interpretation put upon it-by appellant it is not now necessary to determine. [593] Appellees answered by demurrers general and special, thus setting up the statutes of limitation as a bar, and they further answered by a general denial, and pleaded the statutes of limitation of two and four years. Demurrers were all overruled, but on hearing the facts the court held that the action was barred by the statutes of limitation. We do not see any ground on which the correctness of this ruling can be seriously questioned. If appellant ever had cause of action it accrued more than five years before this action was brought; he had knowledge of the secret agreement pleaded for more than four years before this action was brought; and the fact that he requested appellees to defend the action brought against him in no manner interrupted the running of the statute. The claim was barred within two years after the cause of action arose, and that existed as fully immediately after the money was paid on order of appellees as did it when this action ivas brought. It is not perceived on what theory it could be held that anything occurring under the secret agreement alleged to have been made between Hudson & Son and appellees gave appellant cause of action. If other creditors consenting to take under the assignment would have right to recover from appellees any sum by them wrongfully received, throtigh which their dividends were diminished, appellant could not be subrogated to their rights unless he had paid to such creditors or to his successor the sum for which judgment was obtained against him on account of his wrongful payment to appellees. This he has not done in whole or in part; but had he, as limitation would run in favor of appellees against such creditors as well as appellant, he would have to assert the right acquired by subrogation subject to all defenses appellees could urge against it if prosecuted by other creditors. In any event the claim would be barred by limitation. It is unnecessary to inquire whether the general demurrer should not have been sustained. There is no error in the judgment, and it will be affirmed. Affirmed. Delivered March 21, 1890.