I dissent from the majority opinion in this case, and will briefly state my reasons therefor.
In the first place it should be borne in mind that the respondent, Thomas J. Dockery, morally, is just as innocent of any fraud or wrong doing in this case as is the appellant itself, and probably' more so, for the simple reason that he was lulled into supineness, not only on account of the splendid reputation Hilbert, his partner, bore for honesty, integrity and moral rectitude, in the community where he resided, but also on account of the implicit confidence which characterizes the fiduciary relation that exists between partners, akin — I was going to say — to that of husband and wife, but I will not sully that relation by comparing it with any other relation that exists.
Under that view of the case, the law should not be strained beyond the ordinary rule in order to hold Dockery liable for the misdeeds of Hilbert; nor upon the other hand, should it on that account be relaxed in order to relieve him from any legal obligation he owes to the college. The rights of each should be tested according to the cold letter of the law governing such cases. *Page 562
I dissent from the majority opinion for three reasons:
First: Because this was what is called and known in financial circles, as a real estate loan; and it clearly appears from even a casual reading of the record in the case that the loss resulted to the college through its own negligence in not demanding the deed of trust, which it was agreed should be furnished to it as security for the loan, notwithstanding the conceded fraud of Hilbert, for which Dockery was only legally liable.
It stands undisputed, that had the college demanded the deed of trust, at any time within a period of some three or four years after the loan was effected, which ordinary business prudence required, the fraud of Hilbert, and the innocence of Dockery, would have instantly appeared, and the college could have enforced its claim against the land upon which Hilbert had agreed in writing to give the deed of trust, which of course was an equitable mortgage; and the land was more than ample to repay the loan.
Second: Because, as previously stated, the most ordinary business prudence on the part of the college would have exposed the fraud of Hilbert, and when so exposed the law then imposed upon appellant the duty of bringing suit for the redress of its wrongs within five years from that time, which was not done in this case.
Clearly, in my opinion, the cause was barred by section 4273, Revised Statutes 1899, and was not saved by the exeception there provided for.
The subsequent payment of the interest on the loan by Hilbert was not sufficient to bring the case within section 4290 for the obvious reason that it was plainly the duty of the appellant to have demanded the security for the loan, the deed of trust, long before the first interest-paying day arrived; and had it performed that duty, fraud would have been exposed to the light, as clear as the noonday sun. *Page 563
Third: It is an elementary rule of pleading, that in order for a party to avail himself of an exception or saving clause, in .a Statute of Limitation, he must plead the facts which bring his case within that clause, and if he fails to do so, it will be unavailing to him at the trial of the cause.
In the case at bar, counsel in open court conceded, and the record shows, that the appellant did not comply with this rule of pleading; but counsel seek to escape the effect of it by saying that the evidence tending to show said exception was introduced without objection, and therefore respondent waived the right to now invoke that rule.
If the record showed the facts to be as just suggested, then there would be much force in that position. But as I read the record, the objection was timely and properly made, and was by the court overruled, and exceptions were duly saved. Clearly that was sufficient to preserve the question for review by this court; and the mere fact that counsel for appellant offered and the court admitted other evidence of like character to that admitted over the objections of respondent, did not waive the previous objection made to the same class of testimony. In other words, it is not necessary to preserve the right to have this court to review the rulings of the trial court to repeat objections made to the introduction of testimony. One objection to the same class of evidence is as good as a dozen. This is so firmly settled in this State that it requires the citation of no authorities to support it.
DISSENTING OPINION.