35 S.W. 197
BONNER 
v. 
McCREARY.
Court of Civil Appeals of Texas.
November 30, 1895.
        Appeal from district court, Freestone county; Rufus Hardy, Judge.
        Action by Arabella W. McCreary, as survivor in community of herself and W. H. McCreary, deceased, 
against James I. Bonner, for money had and received. Judgment for plaintiff, and defendant appeals. 
Affirmed.
        Bell & Moses and Kittrell & Allen, for appellant. O. C. Kirven and W. R. Boyd, for appellee.
        LIGHTFOOT, C. J.
        The statement of the case by appellant is concurred in by appellee, and is as follows: Arabella W. 
McCreary filed this suit as survivor in community of herself and W. H. McCreary, deceased, against 
appellant, James I. Bonner, August 5, 1893, for money had and received, alleging, in substance, that 
Alford & Miller, commission merchants in Galveston, failed in business on August __, 1875, and at the 
time of their failure were indebted to her intestate, W. H. McCreary, deceased, in the sum of $1,768.20, 
and were also owing W. E. Bonner $241.34, John L. Bonner $73.39, and defendant, James I. Bonner, 
$977.45; making an aggregate indebtedness to said parties of $3,060.38. That shortly after the failure of 
Alford & Miller the above-named creditors (styled in plaintiff's petition "co-creditors") constituted James I. 
Bonner their common agent to go to Galveston, and make collection and settlement of all their claims 
against said Alford & Miller, each agreeing to bear his part of the expenses incurred proportionately to the 
amount of his claim. That James I. Bonner went to Galveston as such agent in
Page 198
August, 1875, and, acting for himself and the other co-creditors, made a settlement of all their claims with 
Alford & Miller, receiving from them $318.68 in cash and the following notes and accounts, indorsed to 
him by said Alford & Miller: Note on Drew Smith for $1,500, received in settlement at $1,421.87; note on 
J. I. Gathings for $460 gold, received at $524.40; note on Hays, McCreary & Tarkington for $389.76; note 
on E. A. Mehaphy for $321.44; note on J. I. Anderson et al. for $87, received at $60; account against 
Bonner Bros. for $24.43,—which amounted to $3,060.38, a sum equal to the aggregated claim of said co-
creditors against said Alford & Miller. That plaintiff's intestate and said W. E. Bonner and John L. Bonner 
continued James I. Bonner as their agent to collect the notes and claims received by him from Alford & 
Miller, and to distribute the money collected on said joint claims among said co-creditors (himself, 
plaintiff's intestate, and said W. E. and John L. Bonner) in proportion to the interest of the co-creditors, 
and that said James I. Bonner accepted and had never repudiated his agency. That he made collections of 
said claims from time to time, and that W. H. McCreary, plaintiff's intestate, and the other parties 
interested in the claims, at frequent intervals made inquiries of defendant as to the progress and prospect 
of collecting the claims, to which defendant invariably replied that nothing more had been collected, until 
about the year 1880, when he reported to them that he had collected about $1,000, and paid plaintiff's 
intestate $500 as his proportionate part of same. Plaintiff further alleged that defendant had collected all 
of said notes, and had received more than the aggregate amount of all the claims of said co-creditors 
against Alford & Miller, but he had fraudulently concealed the facts from her intestate and the other co-
creditors, and had appropriated same to his own use, affirmatively denying and fraudulently concealing 
the facts from her intestate. That intestate had unlimited confidence in the veracity of defendant, being a 
near relative of defendant, and that her intestate did not know that more than $1,000 had been collected 
until a short time before his death, which occurred February 4, 1893. That defendant had never accounted 
to her nor her intestate for the proportionate part of said collections that belonged to her and her 
intestate, and asked for judgment for $1,768.20, less $500, paid her intestate by defendant, together with 
interest from the several dates of collection, approximating $3,000. Defendant answered by general 
exception, special exception raising the issue of limitation and stale demand, general denial, and special 
answer, denying any agreement to represent plaintiff's intestate and the other creditors of Alford & Miller, 
as their agent, and to make a proportionate distribution of the money collected among them with himself; 
alleging that in settling with Alford & Miller he acted for himself and for the other creditors only as a favor 
to them, being his relatives, and that in so doing he was a gratuitous bailee to the extent of their interest 
in said notes; that he placed the notes in the hands of an attorney for collection as the common agent of 
all the parties interested in them, and of defendant alone, and that the attorney made most of the 
collections that were made, and made all of the disbursements; and pleaded that plaintiff's intestate was 
paid his full proportionate share of the money collected, setting forth the several payments made to him 
after deducting necessary expenses and attorney's fees, several of said notes having to be sued on, and 
that all of the money had not been paid, there being a balance due on the judgment against Drew Smith 
of several hundred dollars. Defendant pleaded his account for expenses incurred in making the collections, 
and also pleaded in offset his account against plaintiff's intestate, W. H. McCreary, deceased, amounting 
to $3,880.05, to which plaintiff replied by general and special exceptions and denial of defendant's 
allegations. The case was tried by a jury, and resulted in a verdict for the plaintiff for $635.46, and 
judgment was so rendered. From this judgment this appeal is prosecuted.
        The facts proved and the verdict and judgment thereon justify the conclusions: That, as alleged in 
plaintiff's petition, Alford & Miller, commission merchants in Galveston, failed in business in August, 1875. 
They were indebted to W. H. McCreary in the sum of $1,768.20; to W. E. Bonner, $241.34; John L. 
Bonner, $73.39; and to defendant, James I. Bonner, $977.45.—making an aggregate indebtedness to said 
parties of $3,060.38. That shortly after such failure Alford & Miller turned over to James I. Bonner, 
defendant herein, as agent for the above-named parties and for himself, a large amount of money and 
notes and accounts to be applied to such indebtedness. That said defendant collected such notes and 
accounts, or a large proportion thereof, and paid over to W. H. McCreary certain amounts, leaving a 
balance still due to him. That McCreary subsequently died, and this suit is brought by Arabella W. 
McCreary, as survivor. That said W. H. McCreary relied upon the good faith of his agent, the defendant 
herein, believing that he was making to him correct statements of the amounts collected; and such agent, 
having charge and control of all such collections, neglected and failed to make to said W. H. McCreary in 
his lifetime correct statements in regard to the amounts collected, when the defendant in truth and in fact 
collected a sufficient amount, after taking out the payments made to W. H. McCreary, and all expense 
incurred in and about such collections, so that he was due to the estate of said McCreary at the time of 
the trial below the sum of $635.46.
Page 199
        1. The first assignment of error presented by appellant is that the "court erred in overruling 
defendant's general exceptions, and special exception and pleas of limitation and stale demand to 
plaintiff's original petition, because said petition nowhere shows that W. H. McCreary could not, by the 
exercise of ordinary diligence, have discovered his cause of action against defendant for the collection of 
the money herein sued for before plaintiff claims said cause of action was discovered." This assignment is 
rather general under the rules, but we will consider the same. It was alleged and proved that appellant 
was the agent of W. H. McCreary, and it was alleged in the petition that appellant made collections on said 
claims from time to time, and that W. H. McCreary, plaintiff's intestate, and other parties interested in the 
claims, at frequent intervals made inquiries of appellant as to the progress and prospect of collecting the 
claims, to which defendant invariably replied that nothing had been done in the way of collections, until 
about April, 1880, he reported to them that he had collected about $1,000, and paid plaintiff's intestate 
$500, his proportionate part of the same. It was further alleged that defendant at that time collected all of 
said notes, and received more than the aggregate amount of the claims of said co-creditors; that the 
appellant concealed the facts from W. H. McCreary. Under such circumstances, the possession of the 
agent was the possession of the principal, and the statute of limitation did not run against it. In the case 
of Merle v. Andrews, 4 Tex. 216, Judge Lipscomb rendered an opinion in a case very similar to this, where 
the statute of limitation was invoked by an agent. He says: "It was said, however, that this money 
demand was barred by the general statute of limitation, because suit had not been brought within two 
years from the time the cause of action accrued. We are not informed by the evidence at what time the 
money went into the hands of the agent, nor of what time the principal had notice of its being in his 
hands. The statute surely could not begin to run until the principal had notice that it had been collected, 
and a majority of the court believe that between an agent and his principal it does not commence running 
until a demand has been made on the agent. Until that demand has been made, it seems to me that the 
possession of the money by the agent would be the possession of his principal." This doctrine seems to us 
to be perfectly sound. If the statute could not begin to run until the principal had notice that the money 
had been collected, the facts in this case show that McCreary never had notice that all this money had 
been collected, although he made repeated inquiries of his agent in regard to it. The doctrine is well 
established that a fraudulent concealment by an agent of the amount collected for his principal would 
prevent the running of the statute of limitation. Munson v. Hallowell, 26 Tex. 475; Mechem, Ag. 369 et 
seq.
        2. The court did not err in refusing to direct the jury to find a verdict for the defendant under the 
facts of this case. The issues were clearly drawn as to whether or not this money had been collected, 
whether or not the appellant had accounted to his principal, and whether or not he had kept from him the 
fact that the money had been collected; and the evidence upon these points justified the submission of 
the question to the jury.
        3. The next assignment is to the effect that the court erred in refusing to set aside the verdict of the 
jury, because there was no proof that defendant had ever made affirmative false statements to McCreary 
whereby the truth was concealed from him that the money had been collected, so as to stop the running 
of the statute. This assignment is not well taken. The testimony upon this point was sufficient to sustain 
the verdict of the jury.
        4. The eighth assignment, being the next presented in appellant's brief, is, in substance, that the 
court erred in not setting aside the verdict of the jury, because the defendant showed that he accounted 
for all the funds that came into his hands, less expenses. The issues were clearly defined upon this point. 
The charge of the court was perfectly fair, and the verdict was amply sustained by the testimony.
        The assignments of error are numerous, and the remaining assignments relate principally to the 
charge of the court and the refusal to give special charges asked by appellant's counsel. We have carefully 
examined the charge of the court, and the special charges requested, and find that the case was fairly 
submitted by the court to the jury, and the testimony was ample to sustain the finding, and that justice 
has been done between the parties. The jury found in favor of the plaintiff below for the sum of $635.46. 
The amount sued for was about $3,000. It is clear from all the surroundings that the jury were not 
governed by passion or prejudice. We find no error in the judgment, and it is affirmed.