Opinion
No. 10892.
December 13, 1924.
Appeal from District Court, Young County; H.R. Wilson, Judge.
Action by the Humble Oil Refining Company against O. J. Wood and another. Judgment for plaintiff, and defendants appeal. Affirmed.
Brown Graham, of Graham, for appellants.
John C. Townes, Jr., and Hines H. Baker, both of Houston, and Fred T. Arnold, of Graham, for appellee.
The Humble Oil Refining Company purchased from O. J. Wood oil leases standing in his name covering two half sections of land in Throckmorton county. The consideration for the purchase was $2,400 cash, which was then paid by the purchaser by a check drawn in favor of O. J. Wood. Some two months later, the Humble Oil Refining Company executed and delivered to O. J. Wood another check for the same amount, which was cashed by O. J. Wood. The oil company sued to recover the amount received by O. J. Wood on the second check, upon allegations that through mistake it was issued and delivered in payment for the two leases for which payment had already been made; in other words, that the payment for those leases had been duplicated through mistake and oversight. Upon the trial of the case the jury found that that contention was true, and upon that finding judgment was rendered against O. J. Wood and his son, C. L. Wood, from both of whom it was alleged plaintiff purchased the leases and to whom it made both payments. The defendants have prosecuted this appeal from that judgment.
The suit was brought within two years from the date of the duplicate payment, which the jury found was made, and therefore it was not barred by any statute of limitation. Such being the nature of the cause of action, we overrule appellants' contention that it was a suit for equitable relief, and that the demand was stale, since nearly two years elapsed after plaintiff discovered the mistake before the suit was instituted, and therefore the relief should be denied. Article 5687, Rev. Stats.; McLane v. San Antonio National Bank (Tex.Civ.App.) 68 S.W. 66. If the suit should be held not to be an action for debt within the meaning of article 5687 of the statutes, then the only statute of limitation which could apply would be article 5690, which is the statute of limitation of four years.
Furthermore, by analogy, statutory periods of limitation are applied to the equitable defense of stale demand, when considered separately and apart from questions of ratification, waiver, or estoppel. Smith v. Fly, 24 Tex. 352, 76 Am.Dec. 109; Emerson v. Navarro. 31 Tex. 335, 98 Am.Dec. 534; Story on Equity, § 1520; McLean v. Stith, 50 Tex. Civ. App. 323, 112 S.W. 355.
Since O. J. Wood was the legal owner of the leases and conveyed them to the plaintiff and received both checks, which were payable in his name and were collected by him, he cannot be heard to say that he was not legally liable to the plaintiff for the second payment, because of the fact, which was unknown to the plaintiff, that his son, C. L. Wood, was the real owner of the leases, title to which stood in the father's name, and that he received all the money on both checks.
The testimony was ample to support the finding of the jury of the duplicate payment and the further finding of the jury that the second check was not given for two other leases alleged to have been sold later to plaintiff, as pleaded by the defendants; the evidence showing that the legal title to such other two leases still stands in the name of O. J. Wood and that no written conveyance thereof has ever been made by him to, or claimed by, the plaintiff.
For the reasons noted, all assignments of error are overruled, and the judgment is affirmed.