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Carr v. McGinley Corp. 105 S.W.2d 410 (Tex. Civ. App. 1937)

part of appellant, because it would hardly be expected that a diligent person seeking to find out in what respect
he had been defrauded in the transaction would seek the information concerning the particulars of said fraud
and deceit from the very persons whom he believed had perpetrated the fraud upon him. The pleading copied
above does not state on what date the information concerning the fraud was received by him. He merely states
that he learned the actual consideration paid for said leases on the date when certain depositions were received
from Laredo. What that date was the pleading does not state. The pleading nowhere gives the date when the
fraudulent acts of Wm. J. McGinley and H. J. Heartwell became known to him. The cross-action in this case
was filed over three years after the alleged fraudulent acts were committed and hence is barred by the two-year
statute of limitation. In the early case of Bremond v. McLean, 45 Tex. 10, it is said, "The mere statements in the
petition that plaintiff could not have discovered that the alleged representations of defendant were false and
fraudulent, by the use of reasonable diligence, evidently will not relieve him from the bar of the statute. If the
want of such knowledge will prevent the running of the statute, it is not sufficient for the plaintiff to assert
merely the conclusion that he could not have discerned that the representations made him were false, by the use
of reasonable diligence, but he must state the facts upon which he relies, that the court may see whether they
justify and support such a conclusion."

In McBurney v. Daughety (Tex. Civ. App.) 19 S.W.2d 113, 114, writ dismissed, it is said: "In Texas and most
jurisdictions the `statute runs from the time when the fraud is discovered, unless in the exercise of reasonable
diligence it might have been sooner discovered.' 37 C.J. 929, § 299b, and cases cited in note 1. The rule is also
well settled in Texas that, where one seeks to avoid the bar of the statute on the ground of the exercise of
reasonable diligence to discover fraud, he must allege the facts upon which he relies, so that the court may
determine from the pleadings whether he is entitled to the relief sought, assuming such allegations to be true."
Therefore we conclude that the pleadings of appellant in this case were insufficient on their face to toll the
statute of limitation with respect to his allegation of fraud in the face of appellee's plea of limitation. Therefore
we conclude that the trial court was fully justified under the law in instructing the jury to return a verdict in
appellee's favor.

414 The judgment of the trial court is in all things affirmed. *414

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