Faires v. Cockerell

Defendants in error base this motion upon the proposition, that the contract entered into by plaintiffs and the defendants, as joint obligors, was indefinite as to the amount which would be required to be paid to accomplish the purpose of the contract, and therefore the cause of action in favor of one of the obligors against his co-obligor would not arise, and the statute of limitation would not commence to run until the matter had been fully determined, so that each party could know for what amount he was legally bound.

The foregoing proposition of law was not presented in the original presentation of this case, and we do not find that the facts as developed are such as to justify this court in determining the correctness of the proposition presented.

We are governed by the facts as found by the Court of Civil Appeals, and there are facts necessary to be found in order to apply to this case the law, as contended for by the defendants in error, which are not stated in the findings of the Court of Civil Appeals. We believe that the principles announced in the original opinion are applicable to this case in all of its different phases, and therefore we decline to express any opinion upon the abstract proposition presented. *Page 439

Admitting all that the defendants in error claim upon this motion, some of the plaintiffs could have determined, and must have known, that they had overpaid the proportion for which they were bound under that contract before the time that the release was executed by the receivers of the railroad company, which being the case, each had a right of action for the amount so paid in excess of his share of the obligation.

The motion for rehearing in this case will be overruled.

Overruled.

Delivered June 27, 1895.