Alston & Hutchings v. Richardson , 51 Tex. 1 ( 1879 )

Bonner, Associate Justice.

Although this ease shows upon the part of the plaintiffs a great degree of credulity and unusual readiness, if not undue willingness, to voluntarily pay a security debt without even first communicating with their principal, yet, as between the parties to the suit, we think the petition sets out a cause of action good on general demurrer.

The general rule is that money paid under a mistake of fact may be recovered back, and that, too, although the party may have had the means of knowledge. (City Bank v. National Bank, 45 Tex., 217.)

As regards the statute of limitations, the established rule in this court is that, in cases of fraud, it will begin to run from the time when, by the use of reasonable diligence, it could have been discovered. (Kuhlman v. Baker, 50 Tex., 630.)

We tliink, under the circumstances as shown by the record, that the alleged fraud could have been discovered by the use of reasonable diligence at the time when perpetrated; that the statute would begin to run from that date; and that the action was barred when the suit was brought:

Under our statute, however, limitation cannot be made available unless it be specially set forth as a defense. (Paschal’s Dig., art. 4629.)

Although it was at one time doubted whether the statute could be invoked unless by answer to the merits, yet it has been since repeatedly held, that when the pleadings show affirmatively that the demand is barred by limitation, it can be made available also by special demurrer. (Hudson v. Wheeler, 34 Tex., 356.)

In this case, the statute was not invoked by special demurrer, but by plea; yet the court below seems to have considered the question as on demurrer. That portion of the judgment is as follows: “And now come the parties and announce ready for trial, and, after argument of counsel on the pleadings, it is adjudged that the demurrer and plea of the statute of limitations of the defendant to plaintiffs’ original and amended petitions be sustained, and that the cause be dismissed.”

In thus treating limitation, under the pleadings, as a question of law, we think the court erred.

We regret to have to reverse this or any case upon a seeming technicality, yet it would be a dangerous precedent to permit a case to be dismissed by the court on the trial of the issues of law, however obvious may be the final determination on the merits, upon a question of law which can be made available by special demurrer only, when this is not interposed.

Judgment reversed.