Theriot v. Smith

On Motion for Rehearing Appellee contends that since estoppel was first raised by Appellant in his 2nd Amended Petition, at which time more than two years had elapsed since the time of the purported promise, that the claim was barred by the two year Statute of Limitations, Vernon's Ann.Civ.St. art. 5526. This contention is overruled in view of Article 5539b, Tex.Civ.Stats. Under this statute it has been repeatedly held that an amendment of pleading setting up additional grounds for liability, but upon the same debt and between the same parties, does not make a different transaction so as to prevent tolling of limitations. An excellent discussion of this question is made by Justice Hale in O'Quinn v. Scott, Tex.Civ.App., 251 S.W.2d 168, writ of error refused. See also: Thompson v. Van Howeling, Tex.Civ.App., 49 S.W.2d 961; First State Bank & Trust Co. of Rio Grande City v. Ramirez, 133 Tex. 178, 126 S.W.2d 16; Moore v. City of Beaumont, Tex.Civ.App., 195 S.W.2d 968; and 146 Tex. 46, 202 S.W.2d 448. Appellee's motion for rehearing is accordingly overruled.