162 S.W. 441 | Tex. App. | 1913
Appellee sued appellant on a debt for $400, alleging that said debt was due prior to appellant being adjudged a bankrupt, but subsequent to such adjudication and prior to his discharge appellant made a new promise, in writing, to pay said debt, thereby waiving his discharge in bankruptcy. Appellant excepted to the plea setting up the written promise on the ground that the writing relied upon was not an express, clear, and unequivocal promise to pay the debt, which exception was overruled, and upon the trial, no jury being demanded, the court rendered judgment for appellee, from which this appeal was taken.
Appellant contends that the court erred in permitting appellee to testify that the amount listed in the bankruptcy court was the only amount due appellee by appellant at the time the letter was written, which was relied upon as the promise to pay. The objection made to the testimony was that plaintiff's pleadings contained no allegation upon which said question could be founded. The original petition contained the allegation that "defendant made a new promise to pay the debt of plaintiff." It was certainly admissible to prove that the letter relied upon could have referred to no other debt than the one sued upon, and to do so it was proper to prove that the debt sued upon was the only one due plaintiff by defendant at the time the letter was written. Browne v. French,
It is also contended that the court erred in refusing to sustain the exception to the written promise pleaded by plaintiff. The promise reads as follows: "I believed meantime to make you a part payment which at present is absolutely impossible for me. As I told you before, you will get all I owe you, although I understand that you would like better to have money than promises as I am not able right now to make you a cash payment. Please be patient a little longer and you will see that the confidence you put in me was not in vain." The debt sued upon was the one referred to by appellant. It is not necessary that the debt should be described, when, as is shown by the evidence, there is only one debt and the promise must have referred thereto. Browne v. French, supra; Mitchell v. Clay,
It is contended, however, that the promise was made upon the implied condition of ability to pay, and, as plaintiff failed to allege and prove defendant's ability to pay the debt, he cannot recover. There is a conflict in the decisions as to whether a promise to pay a debt barred by limitation or bankruptcy proceedings, which expressly states that payment will be made as soon as promisor is able, is conditional. Benton v. Benton,
Judgment affirmed. *443