174 S.W.2d 84 | Tex. App. | 1943
This is a suit for debt. Plaintiff alleged that a letter dated September 24, 1938, written and signed by defendant to plaintiff, constituted a sufficient acknowledgment of the existence of the debt under Article 5539, Revised Civil Statutes, to authorize a promise to be implied that defendant would pay his debt to it. The trial court sustained defendant's special exceptions 1 and 2 to the plaintiff's original petition, which exceptions were to the effect that the letter of September 24, 1938 was not an acknowledgment of the debt as required by the provisions of Article 5539, supra, and that such debt was barred by both the two year and four year statutes of limitation. Articles 5526 and 5527, Revised Civil Statutes. Plaintiff declined to amend and the court dismissed the cause of action and taxed plaintiff with the costs. Plaintiff has appealed from this order.
The judgment is assailed substantially on the grounds that the two and four year statutes of limitation did not apply because the suit was grounded upon a letter written and signed by defendant to plaintiff, in which defendant acknowledged the debt and expressed no unwillingness to pay it; and because said letter from defendant to plaintiff, when interpreted in the light of other letters and documentary evidence duly pleaded by the plaintiff, constituted a sufficient acknowledgment of the existence of the debt to authorize the promise to be implied that defendant would pay it, said suit having been filed within four years from the date said letter was written.
The pertinent parts of the letter are: "Just received your letter, but I am sorry to have to tell you I cannot send you anything for the present. I have had pretty hard luck this summer as I have been sick two months today. I had to go to the hospital and the doctor told me I must not do any work this fall and winter. Cotton was very sorry in this part of the country on account of boll weevils. Will not make enough to pay my taxes so you see this puts me in a pretty bad shape." *85
Plaintiff alleged substantially that in the years of 1932 and 1933 it became surety for appellee on four contract bonds given by defendant, as principal, to the State of Texas to guarantee the performance of certain road improvement contracts which appellee had secured from the State Highway Department; that defendant failed to complete his contracts with the State Highway Department, and that plaintiff advanced the necessary funds to complete the same; that in March, 1934, defendant requested statement of his account and the plaintiff sent to him a detailed statement showing a balance owing of $2,353.42, and a copy of this account was marked as an exhibit and attached to its petition; that defendant at no time denied owing the debt but either expressly or by necessary implication in his correspondence with plaintiff acknowledged the justness of the debt. The plaintiff pleaded verbatim the correspondence and documentary evidence on which it relied. On July 12, 1935, plaintiff wrote defendant, in part, as follows: "* * * As to making a payment now, we shall be glad for you to send us a check for $1,000.00 and pay the balance when it is convenient for you to do so."
On July 16, 1935, defendant wrote plaintiff, in part, as follows: "Am sending you check for $1,000.00 to apply on what I owe you and am sorry I could not pay all I owe you this time * * *."
On July 25, 1936, defendant wrote plaintiff, in part, as follows: "Am sending you check for $200.00, would have sent it sooner but was on a deal to sell my mixer and thought I would have more to send you. * * * If the man takes mixer will send you the money as soon as I get it."
Thereafter, on October 27, 1936, defendant wrote plaintiff, in part, as follows: "Am sending you check for $200.00 to apply on my account, only wish I could send you more but cannot just now * * *."
Thereafter, on December 23, 1937, defendant wrote plaintiff, in part, as follows: "Thought I would write you again to let you know that I have not been able to sell anything else but a few set of harness and have not collected the money for them yet, but will send you the money when I get it * * *."
On April 6, 1938, plaintiff sent defendant a statement of his account, which statement showed a balance due and owing as of that date of $1.220.42. Thereafter, on April 12, 1938, defendant wrote plaintiff, in part, as follows:
"In regard to what I owe you I am sorry to say I cannot pay any of it just now. I have a lot of harness, wagons and two trucks for sale but no sale for anything. * * * when I do make some money or sell anything, will send you all I can spare.
"I am sorry this has been such a long drawn out affair, but it seems it could not be helped as I have done all I could in every way and if you will still bear with me I still hope to get you paid * * *."
On September 22, 1938, plaintiff wrote defendant as follows:
"It has been some time since we heard from you which causes us to again inquire if you are not in a position to make another payment to us on the old debt. The end of the year is rapidly approaching which causes us to be doubly anxious to have a payment.
"Will you please let us hear from you telling us what amount we may expect from you before the end of the year."
The letter of September 24, 1938, hereinbefore quoted, was defendant's reply to the foregoing letter.
Article 5539, Revised Civil Statutes, provides "When an action may appear to be barred by a law of limitation, no acknowledgment of the justness of the claim made subsequent to the time it became due shall be admitted in evidence to take the case out of the operation of the law, unless such acknowledgment be in writing and signed by the party to be charged thereby."
It is clear to us that the defendant's September letter standing alone, is not such "an unequivocal acknowledgment of the indebtedness, or an unqualified promise to pay it, which will imply such an acknowledgment" as contemplated by the foregoing statute. Trainer v. Seymour,
Since we are of the opinion that defendant's September letter to plaintiff, standing alone, was insufficient to revive the debt, and since we are of the further opinion that we cannot look to defendant's previous correspondence with plaintiff to determine the legal effect of such letter, we think the judgment of the trial court must be affirmed, and it is so ordered.