dissenting.
The impact of the majority decision in this case will, in all probability, be minimal; 1 but, since I am of the opinion that it does violence to the jurisprudence of this state, I respectfully dissent.
I first point to the self-evident fact that plaintiff seeks to recover upon a cause of action which did not exist at the common law but is one created solely by statute. Thus, I invoke the rule enunciated in State of California v. Copus, 158 Tex. 196, 309 S.W.2d 227, 231 (1958):
“[WJhere the statute creates a right and also incorporates a limitation upon the time within which the suit is to be brought, the limitation qualifies the right so that it becomes a part of the substantive law rather than procedural, and that unless suit is brought within the time allowed by statute no right of action can be maintained even though the law of the forum provides for a longer period of limitation. Stumberg, Conflict of Laws, 2d Ed. p. 150.”
Accord: Franco v. Allstate Insurance Company, 505 S.W.2d 789, 792 (Tex.1974); Francis v. Herrin Transportation Co., 432 S.W.2d 710 (Tex.1968); Cohen v. C. H. Leavell & Co., Inc., 520 S.W.2d 793, 796 (Tex.Civ.App. —El Paso 1975, no writ). See also 51 Am. Jur.2d, Limitation of Actions § 15, at 600 (1970).
I suggest that the opinion of the majority is in conflict with the holdings in the cases cited immediately above.
I dissent primarily because the majority has mistakenly applied a statute enacted in 1977 to a transaction which occurred in 1969. In so doing, the Court has permitted an “active and sophisticated trader” in the stock market to speculate at the defendants’ risk for more than three years.2
As noted in the majority opinion, the parties entered into a contract of sale on *152February 14, 1969, whereby 1,000 shares of stock of Omnitec Corporation were sold to plaintiff on a “when, as and if issued basis.” This suit was filed on February 28, 1972.
At all times material to this suit (including the transaction between the parties on February 14, 1969, to and including the entry of the judgment in the trial court on May 20, 1977), Tex.Rev.Civ.Stat.Ann. art. 581-33 A(l) (1964), under which plaintiff prosecuted and maintained his suit, had a limitation provision reading:
“C. No person may sue under Subsection A(l) of this Section 33 more than three (3) years after the contract of sale.” (emphasis supplied)
The trial court found as a fact and concluded as a matter of law that this barred plaintiff’s recovery.
The majority has now mistakenly applied the current or 1977 amendment of the blue sky law to this case which originated before it became effective. Effective August 29, 1977, the statute was amended so that Tex. Rev.Civ.Stat.Ann. art. 581-33 H (Supp. 1978) now reads:
“H. Statute of Limitations.
(1) No person may sue under Section 33 A(l) of 33 F so far as it relates to Section 33 A(l):
(a) more than three years after the sale; . . . .” (emphasis supplied)
The legislative change is simple but important. Limitations began to run under the statute governing this suit when the contract of sale was consummated — now the critical date is the sale.
The majority refuses to hold plaintiff to the language of the statute creating his cause of action. He could recover only if he brought his suit within three years “after the contract of sale.” This was a condition precedent to his maintenance of his cause of action. If he sued within the time specified in the statute, he could proceed — otherwise his cause of action no longer existed.
There was a contract of sale entered into between the parties on February 14, 1969, although it was a conditional contract. The condition did not qualify the existence of the contract; rather, it constituted a condition precedent to defendant’s obligation to pay the agreed purchase price therefor. See generally, Hohenberg Bros. Co. v. George E. Gibbons & Co., 537 S.W.2d 1, 3 (Tex.1976). See also Delisle Construction Co. v. Schwarz-Jordan, Inc., 561 S.W.2d 619, 621 (Tex.Civ.App. — Beaumont 1978, application pending), and Modine Manufacturing Co. v. North East Independent School Dist., 503 S.W.2d 833, 842-843 (Tex.Civ.App.— Beaumont 1974, writ ref’d n. r. e.), and authorities therein cited.
The majority permits a sophisticated investor to sit by and watch while a stock gradually dwindles in value until it becomes worthless. He does so realizing that if it should appreciate in value, he can claim the gain; but, if it finally becomes worthless (as it did), he can get his money back with legal interest while he was speculating with defendants’ money.
I would follow Chief Justice Williams in Stone v. Enstam, 541 S.W.2d 473, 478 (Tex.Civ.App. — Dallas 1976, no writ), wherein the original statute was applied. I decline to use the 1977 version of the statute of “limitations to achieve a windfall for a plaintiff who speculated and lost; instead, I would affirm the judgment of the trial court.
. The 1977 amendment to the statute discussed hereinafter has cleared up the question presented by this case as discussed in this dissenting opinion.
. It was stipulated that “Mr. Lintz was an active and sophisticated trader” in the stock market, having accounts with eight or more brokers in Houston and even held a seat on the Chicago Board of Trade sometime prior to the events forming the basis of this suit.