majority">Delany, J. Com. App.—

In our opinion the first assignment of error is well taken. The defendant in his answer admitted the execution of the note, but charged that it had been executed by him through mistake, and was without consideration; and further, that it had been procured by the fraudulent contrivances of the plaintiff.

Putting his admission into writing, in the language prescribed by rule 31 (47 Tex., 622), he asked that it be entered of record and that he be allowed to open and close in the conduct of the cause. This the court refused, and the defendant was compelled to take the burden of proof, while the plaintiff was allowed to open and close.

We believe that rule 31 was intended to secure to the defendant a substantial right, and a deprivation of that right by the ruling of the court is error for which the judgment will be reversed, unless it appear that the defendant has not been injured thereby.

Many questions are raised and discussed by appellant’s counsel, but we cannot undertake to follow them. A few points decided, and the whole case is at an end.

The defendant, having admitted the execution of the note, could escape a judgment only by showing that, for some reason or other, he was not bound to pay it. This he attempted to do by alleging that at and before the date of the note the plaintiff was indebted to him largely more than the amount of the note, but that the plaintiff had fraudulently concealed this fact from him, and had *377thus induced him to sign the note. This is one phase of the defense. The other was that the plaintiff was his confidential clerk and book-keeper; the trusted manager of his affairs, and was in duty bound to inform him of all the facts affecting his interest; and that the plaintiff, knowing his ignorance of such matters, had withheld the necessary information, and thus had procured the note. And along with this plea he made an exhibit of the plaintiff’s supposed indebtedness to him, which largely overbalances the note sued on. But all the transactions out of which this supposed indebtedness of plaintiff to defendant arose had occurred some time before the execution of the note.

The plaintiff in reply set up the statute of limitations of two years.

Upon this state of the case the defendant, who is appellant in this court, insists that the statute of limitations does not apply. If we understand him, he insists that as his claim was not barred when the note was given, it should be considered as a. valid payment on the note, or at least as a valid offset against the note, and hence" not affected by limitation. In our opinion this position cannot be maintained. Lowe v. Dowbarn, 26 Tex., 508; Holliman v. Rogers, 6 Tex., 91.

Upon the question of fraud the court instructed the jury that fraudulent concealment by the plaintiff would permit the running of the statute against the defendant until the facts were discovered, or until, by the use of ordinary diligence, they might have been discovered by him.

This charge is not only correct as a matter of law, but it was peculiarly applicable to the facts of this case. The defendant, according to his own testimony, was put upon inquiry at the time when the note was given. He had constant access to the bonks at all times. Long before the suit was brought he took possession of the books; had them examined, and kept them in his possession until the trial. In our opinion he cannot be heard to plead ignorance of the true state of the facts. The evidence shows that the business was loosely conducted and the books perhaps clumsily kept; but we think that the proof of fraud on the part of the plaintiff was slight indeed.

The court refused to charge the jury that mistake was sufficient to permit the running of the statute. This, in our opinion, was not error. See Wood on Limitations, pp. 108-9, note.

In instructing the jury concerning the fraudulent conduct charged upon the plaintiff, the court told them that it should be clearly proved. Appellant complains of this as an improper charge, and refers us to the case of Sparks v. Dawson, 47 Tex., 138.

*378But the charge here is not like the one which was condemned in that case; nor do we think that it was entirely improper under the circumstances.

Upon the whole case, although we believe there were some errors committed by the court, still we think the case would not have resulted otherwise than it has, and therefore the errors are immaterial.

The judgment should be affirmed.

Affirmed.

[Opinion adopted March 25, 1884.]

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