The mere failure to disclose a cause of action, or its mere concealment, is not fraudulent concealment for purposes of tolling a statute of limitations. Shipp v. O'Dowd, 454 S.W.2d 845, 847 (Tex.Civ.App.-Waco 1970, writ ref'd n.r.e.); Grace v. Parker, 337 S.W.2d 518, 521 (Tex.Civ.App. — Austin 1960, writ ref'd n.r.e.). Union Carbide's defense of the statute of limitations is established by the record as a matter of law.
11. Plaintiff is not barred by the Texas Statute of Limitations on its action for breach of contract. Courseview, Inc. v. Phillips Petroleum Co., 158 Tex. 397, 312 S.W.2d 197, Texas Supreme Court 1957; Al Parker Securities Co. v. Owen, 1 S.W.2d 271 (Commission of Appeals 1928); Grace v. Parker, 337 S.W.2d 518 (Tex.Civ.App.1960) writ ref. n.r.e. 12.
Plaintiffs' contention that a pleading of fraudulent concealment is unnecessary in any event is untenable. Plaintiffs' only pleaded cause of action for breach of contract, therefore, was properly held to be barred by limitation. Appellants urge application of Grace v. Parker, Tex.Civ.App. (Austin, 1960, writ ref. n.r.e.), 337 S.W.2d 518. The petition in that case specifically alleged fraudulent concealment, and it was held that the evidence established ' fraudulent concealment of the cause of action was established as a matter of law'. Summers v. Bransford-Hinds Building Co., Tex.Civ.App., (Eastland 1964, writ ref. n.r.e.) 383 S.W.2d 947, involved an expressly pleaded breach of implied warranty against a builder-vendor. See Humber v. Morton (Tex.Sup. 1968) 426 S.W.2d 554.
The rule as above stated has been upheld in many case. It has often been held to be applicable where there has been no affirmative act of concealment by the accused party. Grace v. Parker, Tex.Civ.App., 337 S.W.2d 518; Knox v. Stephens, Tex.Civ.App., 285 S.W.2d 883; Wichita Nat'l Bank v. United States F. G. Co., Tex.Civ.App., 147 S.W.2d 295; Davidson v. Atmar, Tex.Civ.App., 243 S.W. 662; Citizens Nat'l Bank v. Good Roads Gravel Co., Tex.Civ.App., 236 S.W. 153; Meyer Bros. Drug Co. v. Fry, Tex.Civ.App., 48 S.W. 752; Rayner Cattle Co. v. Bedford, 91 Tex. 642, 44 S.W. 410 (writ ref., 91 Tex. 642, 45 S.W. 554); Ark. Natural Gas Co. v. Sartor, 5 Cir., 78 F.2d 924; 26 Tex.Jur.2d 30. We believe the Receiver's cause of action is barred under Art. 5526(2), V.A.C.S. because (1) the Bank did not exercise any concealment, fraudulent or otherwise, of the five transactions of which the Receiver complains; and (2) the transactions themselves as shown by the undisputed evidence were not fraudulent. As we have held earlier in this opinion the representations of the Bank were not false-they were true.
In Sears, Roebuck Co. v. Blade, 139 Cal.App.2d 580, it was said at page 590 [ 294 P.2d 140], quoting from Tognazzini v. Tognazzini, 125 Cal.App.2d 679, at page 687 [ 271 P.2d 77]: "`When the facts are susceptible to opposing inferences, whether a party had notice of circumstances sufficient to put a prudent man on inquiry as to a particular fact, and whether by prosecuting such inquiry he might have learned such fact, are questions of fact to be determined by the trial court.'" In Grace v. Parker (Tex.Civ.App.), 337 S.W.2d 518, where the owner sued the building contractor, defense of the statute of limitations was raised, and the court found that a breach of contract (a defect in the foundation resulting from a failure to follow the plans and specifications, which defect was concealed) tolled the statute of limitations, further stating at page 521, that when there is a concealment of a material fact of the transaction, knowing the other party acts upon the assumption that no such fact exists, "`"the concealment is as much a fraud as if the existence of the fact was expressly denied or the reverse of it expressly stated." [Citation.]