A. H. Phillips v. James S. Holman, 26 Tex. 276

Bell J. The only questions which we deem it necessary to discuss in this case, arise upon the plea of the statute of limitan tions. We do not think that the contract between the parties created in Holman that kind of “technical and continuing trust” which cannot be affected by the statute of limitations. It is true, the contract did not contemplate any particular period of time within which it was to be performed; but it nevertheless implied that it should be performed within a reasonable time, and devolved upon Holman the obligation, after the lapse of a reasonable time to account to Phillips upon the contract.

The time, when the statute of limitations would begin to run upon this contract, would perhaps be when Phillips would be entitled to call upon Holman for an account, and to enforce an account. This right would arise in Phillips, either because a reasonable time had elapsed, for Hoiman to. have performed the contract by disposing of the certificates, of stock which were placed in his hands, or because he had in fact, made some disposition of the stock, of which Phillips became informed.

If, as the evidence seems to establish, Holman parted from the certificates of stock in 1888, and in lieu of them became possessed' of lots in the city of Galveston, which lots were sold in 1840, and a portion of the proceeds of the sales paid over to Phillips, this would be notice to Phillips of such proceedings on the part of Holman as would entitle him to call upon Holman for a full accounting; and from that time the statute of limitations would begin to run.

Holman pleaded the statute, and Phillips replied that Holman left the Republic of Texas in 1840, and remained away until the annexation of Texas to the United States, and after annexation still remained absent from the State of Texas until the-latter part of the year 1858. The evidence shows that Holman left the Republic of Texas in 1840, and was generally absent for several years. One witness states that he saw him in the city of Galveston in 1844 or 1845.

Another witness states that he saw him in Texas in 1842, in 1843, and in 1844,-—that he saw him again in 1848, met him frequently during the intervals between, the sessions of the legislature, and thinks that he was in attendance on almost every session of the State legislature. When this witness saw him in 1842, and 1843, it was at the town of Washington, and he thinks Holman was in attendance on the Texas-congress.

It is settled that the clause of our statute of limitations which declares that the time of the debtor's absence from the State shall not be taken or accounted as part of the time limited by the Act, includes each departure from the State and the whole time of absence. (Fisher v.

Phelps, Dodge & Co, 21 Tex., 551.) In the-present case after Holman had shown facts which set the statute of limitations in motion in his favor, the burthen was upon Phillips to show, that Holman had been absent from Texas for such periods-of time, as would, if taken from the whole period of time from, the accrual of the cause of action to the institution of the suit, reduce that period to less than four years; or, to. state the proposition! in jplainer terms, it devolved upon Phillips to show that Holman had not been in Texas, four years in all,.between the time when the cause .of action accrued, and the institution of the suit.

But we are of .opinion that the jury might well find that fact upon evidence, for example, that Holman left Texas in 1840, and had not returned to Texas in 1850. In other words, we do not think the burthen was upon Phillips to show the precise periods of time during which Holman was absent from Texas, from the time the • cause of action accrued until the institution of the suit. This would be too heavy a burthen upon the plaintiff, and would require him to make proof, "which in many cases, resting upon facts such as are developed by the testimony in this case, it would be impossible to make.

We think that when Phillips had shown facts from which the jury might reasonably conclude that Holman had not been in Texas four years between the time of the accrual of the cause of action and the institution of the suit, it then devolved upon Holman to rebut such reasonable conclusion, by showing the contrary. This view leads us to the conclusion that the court below erred in refusing to give the fifth in number of the instructions asked by the counsel for the plaintiff; for which error the judgment is reversed and the cause remanded. Reversed and remanded.