29 Tex. 80 | Tex. | 1867
It is free from all doubt that an acknowledgment which will, by its immediate effect, take a debt out of the bar of the statute of limitation, must be clear and unequivocal, and neither qualified by conditions nor limitations. (Smith v. Fly, 21 Tex., 353; 2 Pars. on Notes and Bills, 469.)
The terms upon which the debtor predicates his promise or undertaking to pay such a debt are entirely within his own option and discretion, and the creditor can only avail himself of the new promise upon the stipulations with which it is coupled by the debtor; and the burden of showing that this has been done is upon the creditor. (Mitchell v. Clay, 8 Tex., 443; Smith v. Eastman, 3 Cush., 355; Ang. on Lim., 291.)
Whether made before, or after the bar of the statute is completed, the creditor cannot avail himself of an acknowledgment or promise upon condition, or as a matter of compromise, unless it is accepted within the time and upon the terms proffered. This fundamental doctrine in respect to all offers of compromise is as essential and as well recognized in cases of this kind as in any others. (Pool v. Relfe, 23 Ala., 701.)
The only question of the least embarrassment presented by the record of this case is, as to the construction and true import of the letter of the appellant, which is claimed by appellee to be an acknowledgment of the justice of that part of the original debt for which he sues. Was the letter intended as a proffer of compromise of a dispute between the parties as to the validity of the note or original debt and appellant’s liability for its payment? Was the admission of a willingness to pay the principal made upon the condition of a release of the interest? Or was it the purpose of appellant, while he admitted freely and unconditionally the justice of the principal of the debt, to appeal to appellant’s liberality and sense of justice as to the interest? We are unaided in the construction of this letter by the light of th§ circumstances under which it was written, beyond those developed by its contents. There may have been, and probably were, circumstances, with the aid of which we might easily determine the true import which it bore in the minds of the parties at the time it was written and received. Guided merely by the letter itself and such facts as are in the record, we are lead to the conclusion, that it was properly construed by the judge in the court below to import an unconditional acknowledgment of the prin
It appears from the record, that the verdict and judgment are for a larger amount than appellants were entitled to recover, but a remittitur having been filed in this court for the excess, the judgment will be reformed and rendered at appellee’s cost for the amount adjudged below, less the sum remitted.
Reversed and reeormed.