
    SMITH v. NESBITT et al.
    (No. 2902.)
    (Supreme Court of Texas.
    May 4, 1921)
    Limitation of actions <&wkey;24(2) — Cause of aotion for failure to make agreed payments to another held governed by four-year statute, as based on contract in writing.
    The recitals in deed of public school lands on which there was due the state a certain sum per acre that, as part of the consideration for the deed, the grantees assumed the obligation and debt, including principal and interest, payable to the state, constituted an express agreement by the grantees to pay their grantor’s obligation to the state, including each installment of interest, and their grantor’s cause of action against them for breach of such agreement by failure to pay such interest installments was one for debt evidenced by and founded upon a contract in writing, to which the four-year statute of limitations was applicable, and not a cause of action to be reimbursed money paid as surety, to which the two-year statute would apply; for, although the grantor had paid the interest installments before suit, his right of action did not arise from defendants’ duty or implied promise to reimburse him, but from breach of their duty themselves to pay the installments.
    Certified Questions from Court of Civil Appeals of Second Supreme Judicial District.
    Suit by J. B. Smith against 6. G. Nesbitt and others. From a judgment sustaining defendants’ exceptions to certain items in the complaint and defendants’ motion to dismiss for lack of jurisdiction, plaintiff appealed to the Court of Civil Appeals, which reversed and remanded the cause. On motion for rehearing the court presented certified questions. First question answered in the negative, making answer to second unnecessary.
    Hunter & Hunter, of Fort Worth, for plaintiff.
    B-. K. Goree, of Fort Worth, for defendants.
   GBEENWOOD, J.

The following statement is taken from the certificate of the Court of Civil Appeals, viz.:

“On August 13, 1915, J. B. Smith, appellant, filed suit in the county court of Tarrant county for civil cases against G. G. Nesbitt et al., alleging that on May 25, 1910, plaintiff conveyed to the defendants certain public school lands in Reeves county upon which was due the state the sum of $1.87% per acre; that the consideration for said conveyance on the part of defendants was the payment of $1,313 cash, and the execution and delivery of four vendor’s lien notes of even date with deed in the sum of $1,313 each, payable to plaintiff, and the assumption by defendants in said deed of the obligation and debt, including principal and interest, payable to the state of Texas; that the interest due the state was payable on November 1st of each year and amounted to the sum of $73.31; that defendants refused and failed to pay the interest due the state' for the years 1911, 1912, and 1913; and that plaintiff, in order to preserve his vendor’s lien to secure the unpaid purchase price due him from defendants, and evidenced by the four vendor’s lien notes hereinabove described, was forced to pay, and did pay, the interest for said three years as follows: Interest for 1911, paid March 11, 1912, $72.31; for 1912, paid June 10, 1913, $72.62; for 1913, paid July 23, 1914, $72.55. No vendor’s lien was retained in the deed to secure the payment of the interest due the state and assumed by defendants. It was alleged that by reason of the assumption by the defendants of the obligation due the state, as hereinabove stated, defendants became liable to the plaintiff .for said sums of money paid by plaintiff, with interest thereon at the rate of 6 per cent, per annum from the respective dates of payment; that defendants also refused to pay the four vendor’s lien notes, hereinabove mentioned, and plaintiff was compelled to sue defendants thereon and foreclose his lien upon the said land, upon which suit he recovered after several years’ litigation with defendants.

“Defendants demurred generally to plaintiff’s petition, and as to items alleged to have been paid March 11, 1912, and June 10, 1913, pleaded the two-year statute of limitations, alleging that as to said two items paid by plaintiff, if they were so paid, plaintiff paid them as a surety of said defendants, and that the two-year statute of limitation would apply, and that plaintiff was barred from a recovery thereon. Defendants further pleaded to the jurisdiction of the court, alleging that the amount sued for, after the elimination of said two items, was below the jurisdiction of the county court, and prayed that the cause be dismissed for want of jurisdiction.
“The trial court sustained the defendants’ exception as to items of interest for 1911 and 1912, and also sustained defendants’ motion to dismiss the cause ‘upon the ground that, the two items aforesaid having been stricken out on the exceptions to plaintiff’s petition, the court had no jurisdiction of the amount remaining and involved in said suit, to wit, the sum of $72.55.’ From this judgment plaintiff appealed to this court. In an opinion, a copy of which accompanies this certificate, in cause No. 8437, entitled ‘J. B. Smith, Appellant, v. G. G. Nesbitt et al., Appellees,’ this court held that the four-year statute of limitation, and not the two-year, applied, and further held that the trial court erred in sustaining the plea to the jurisdiction, or the motion to dismiss for want of jurisdiction. The judgment of the trial court, therefore, was reversed, and the cause remanded, and the case is now before us on a motion by appellees for a rehearing and to certify, and on a motion by appellant to reform the judgment, and to reverse and render.
“We have concluded that appellees’ motion to certify should be granted, and herein present the following questions for your honors’ determination, to wit:
“(1) TÍnder the facts stated, did this court err in holding that the four-year statute of limitation, and not the two-year, applied?
“(2) Did this court err in holding that there was error in the action of the trial court in dismissing said cause for want of jurisdiction?”

We answer to question 1 that appellant’s action was one for debt where the indebtedness was evidenced by and founded upon a contract in writing, and hence there was no error in holding that the statute of limitation of four years applied.

The recitals in the deed constitute an express agreement on the part of appellees to pay the obligation of appellant to the state, including each installment of interest. The failure of appellees to discharge each interest installment, at maturity, amounted to a breach of their agreement with appellant, entitling him to maintain a cause of action against appellees. The fact that the interest was to be paid to another did not change the actual loss to appellant, by reason of appel-lees’ failure to perform! their agreement. Appellant’s estate would be as truly increased by diminishing his liabilities as by increasing his assets. The suit by appellant was simply an action to enforce appellees’ express contract in writing to pay a part of the agreed consideration for appellant’s right in the school land.

Had appellant sued prior to payment by him of the interest installments, it is doubtless true that appellees could, under proper pleadings, have had full protection against a double recovery, by suitable directions as to the application of the recovery awarded to áppellant But the fact of nonpayment by appellant would not have defeated his cause of action to enforce appellees’ contract.

The proposition requires no extensive treatment that a cause of action does not arise from, nor depend upon, any implied promise from a principal to a surety of reimbursement of moneys paid, when the asserted cause of action could have been maintained though the moneys had not been paid.

The principles which support our answer to the certified question were stated by the Supreme Court of Massachusetts in Furnas v. Durgin, 119 Mass. 506, 507 (20 Am. Rep. 341), in the following language:

.“But there is' no reason why an agreement may not be made which shall bind the party so contracting to pay the debt which another owes, and thus relieve him or his estate from it, and, if the promise thus made is not kept, why the promisee should not recover a sum sufficient to enable him so to do. Such is the construction to be given to the agreement in the case before us. As a consideration for the property conveyed to him, the plaintiff conveyed the Hyde. Park estate to the defendant, who contracted not to indemnify the plaintiff against, but to pay, the mortgages upon it, and, if he has failed to do this, the plaintiff should be entitled to recover the amount which the defendant thus agreed to pay. It is a portion of the consideration money due the plaintiff, which he was to receive by payment of a debt for ■which he was liable, which he thus recovers, when the defendant fails to perform his promise.”

See, also, Chancellor of New Jersey v. Towell, 80 N. J. Eq. 223, 82 Atl. 861, 39 L. R. A. (N. S.) 365, Ann. Cas. 1914A, 710; Blood v. Crew Levick Co., 177 Pa. 606, 35 Atl. 871, 55 Am. St. Rep. 744; 1 Jones on Mortgages, § 750.

Our answer to question 1 renders it unnecessary to answer question 2. 
      ®s»For other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
     