118 S.W.2d 831 | Tex. App. | 1938
Lillia A. Poe sued S. N. Poe upon an implied promise alleged to have arisen from an alleged acknowledgment by defendant of the justness of a debt barred by the statute of limitation, the barred debt being evidenced by a vendor's lien note dated February 3, 1913, due January 1, 1915. Plaintiff's original petition was filed June 22, 1936. The alleged acknowledgment of the justness of the barred debt was evidenced by a letter from defendant to plaintiff dated January 3, 1936. Defendant's answer contained pleas of the two and four year statutes of limitation, Vernon's Ann.Civ.St. arts. 5526, 5527.
Upon a trial to the court, judgment was entered for plaintiff for the unpaid balance of said vendor's lien note and foreclosure of the lien. Defendant has appealed.
The note was barred by the four year statute of limitation prior to the institution of the suit. A finding that defendant acknowledged in writing the justness, or existence, of the barred debt must find its support, if it is to be sustained, in the language of defendant's letter dated January 3, 1936. If the evidence is insufficient to sustain such a finding, the judgment cannot be upheld. The determinative question is whether or not said letter constitutes an acknowledgment of the justness of the barred debt within the contemplation of the provisions of Art. 5539, reading as follows: "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 *832 such acknowledgment be in writing and signed by the party to be charged thereby."
The letter is as follows: "Dear Aunt. How are you by this time. Hope you are well. I am all O.K. it is plenty cold up here. Well I hope you had a nice trip Xmas. I didn't get to stay at home very long just had to get back and go to work. I went in and talked to Jewel but he didn't no what to do, so I told him I would write you when I got back up here. So Aunt Lillie I'll be back before long and I'll talk to you and I no we will fix it up some way. So I will see you when I come home. Lots of good wishes from Silas."
Briefly stated, the circumstances surrounding the writing of the letter, as disclosed by parol testimony, were: Plaintiff had several times prior to the date of the letter talked with defendant with reference to his note and the payment thereof; in said interviews defendant told plaintiff, in substance, that he was not able to pay the note then, but he wanted, if he could, in the future to pay it, but he, on each occasion, refused to execute a new note or extension thereof. Defendant never denied owing the note. Plaintiff, knowing that she would be absent during the Christmas holidays of 1935, told Jewel Poe "to see Silas and to fix it up anyway Silas wanted to fix the note." During the Christmas holidays defendant visited in Eastland County, where plaintiff resides, and Jewel Poe talked to defendant about the note and asked "if he had the papers that were to be fixed up and he said: no, he would wait until she came back and that he would then fix it anyway she wanted it." When plaintiff returned to Eastland County defendant had gone to Borger and from there he wrote the letter alleged to constitute the acknowledgment of the justness of the debt. Plaintiff testified that said letter was the only instrument in writing signed by the defendant with reference to the note.
In Trainer v. Seymour,
In Coles v. Kelsey,
In Webber v. Cochrane,
In Cotulla v. Urbahn,
At page 218, 135 S.W. at page 1164, is found the following language: "The very fact that the acknowledgment is to be in writing evidences the purpose of the lawmaking body to place safeguards against the introduction generally of parol evidence to take the debt out of the bar of the statute. We cannot express our views more strongly than by quoting from Story in Bell v. Morrison, supra [1 Pet. 351, 7 L.Ed. 174], where he says: `If we proceed one step further, and admit loose and general expressions, from which a probable or possible inference may be deduced of the acknowledgment of a debt by a court or jury, that, as the language of some cases has been, any acknowledgment, however slight, or any statement not amounting to a denial of the debt, that any admission of the existence of an unsettled account, without any specification of amount or balance, and however indeterminate and casual, are yet sufficient to take the case out of the statute of limitations, and to let in evidence, aliunde, to establish any debt, however large, and at whatever distance of time, it is easy to perceive that the wholesome *834 objects of the statute must be in a great measure defective, and the statute virtually repealed.' We think the rule as adopted and settled in this court ought not to be further extended."
From the above authorities it is evident that our Supreme Court has decided that the acknowledgment of the justness, or existence, of a barred debt, in order to revive it, must be in writing and proof of such acknowledgment cannot be made by parol testimony. To hold otherwise would do violence to the language of the statute which provides that such acknowledgment shall not be admitted in evidence, unless in writing and signed by the party to be charged thereby. Of course, it has been held in many cases that where the existence of a debt is acknowledged in writing parol evidence may be admitted to identify the particular debt referred to in the writing, or to show that only one debt was owing to the person whose debt was acknowledged and that, therefore, the writing necessarily referred to that debt. We, therefore, conclude since evidently the letter relied on does not contain clear and unequivocal acknowledgment by defendant of the existence of any debt, the letter is insufficient to bring plaintiff's case within the provisions of Art. 5539. Gathright v. Wheat,
The recognized rule applicable to acknowledgments of barred debts, constituting a revival of the debt, or cause of action, under the statute, is stated by Justice Critz in Elsby v. Luna, Tex.Com.App., 15 S.W.2d 604, 605, as follows: "We understand the rule to be that, `This new promise need not be expressed in the writing, but may be implied from what is written.' `An unqualified and unequivocal acknowledgment in writing on the part of the debtor, of the existence of the indebtedness, unaccompanied by expressions indicating an unwillingness to pay same, will raise the implication of a new promise to pay the indebtedness.'"
See, also, Stein v. Hamman,
The language of the letter evidently relied upon by plaintiff as constituting an acknowledgment of the justness, or existence, of the barred debt, is as follows: "I went in and talked to Jewel but he didn't no what to do. * * * I'll be back before long and I'll talk to you and I no we will fix it up some way." What was to be "fixed up"? The letter does not show. That it was an acknowledgment of the justness of defendant's debt to plaintiff must be shown by the writing. We think it cannot be reasonably contended that such language should be construed as a "clear and unequivocal" acknowledgment of the existence of a subsisting indebtedness, from which the law will imply a promise to pay. McDonald v. Grey,
A promise to pay is inferred from a clear and unequivocal acknowledgment of the existence of the debt in the absence of expressions indicating an unwillingness to pay it. The letter contains no acknowledgment of the existence of a debt. The existence of the debt cannot be inferred and then imply therefrom a promise to pay. One inference cannot be based upon another. Kleis v. McGrath,
"The tendency of modern decisions has been to construe the statute more liberally in favor of debtors, and not to torture vague expressions into acknowledgments or promises, when the language does not clearly impart such construction. We think the statute should be construed so as to carry out the intention of the legislature, and to effect the object which was sought to be accomplished by it. The evil which the statute of limitations in reference to debts was intended to remedy was to prevent demands originally invalid, or which had been discharged, from being enforced after such a lapse of time as would probably make it impossible for defendants to procure the evidence by which a just defense could be established. The reason for the statute no longer exists when the defendant, within a short time before bringing the suit, has acknowledged the justness of the demand.
"But the rule which permitted a new promise to be proved by parol evidence became subject to abuse, and led, in England, to the passage of a statute which required the acknowledgment or promise to be in writing. Our own statute upon the same subject has been held to be substantially the same, though it is to be noted that Lord Tenterden's act uses the words `no *835 acknowledgment or promise,' while the statute of this state omits the word `promises' altogether. It would seem the omission might indicate some difference in intention.
"It would appear, therefore, that when a defendant clearlyacknowledges, in writing, that the debt is a just and subsistingobligation, and evinces that, although he is unable to pay at the time, he has no desire or purpose to repudiate any part of it, every evil which the statute of limitations was intended to remedy is obviated, and that no reason exists why the demand should not be enforced." Howard
Hume v. Windom,
Also see Wetzel v. Anderson Lundberg, Tex. Civ. App.
In Smith v. Fly,
In the present case the language of the written instrument does not refer in any manner whatsoever to a debt. The language of the letter, taken alone, may be as applicable to many other things as to a debt. It is most certainly "equivocal, vague and indeterminate, leading to no certain conclusion, but at best to probable inferences only." To hold that defendant acknowledged the justness, or existence, of the debt sued on would be to hold, contrary to the statute and decisions of our Supreme Court, that the acknowledgment may be established by parol testimony. That parol evidence is not competent to prove such an acknowledgment is well settled. 28 Tex.Jur. p. 266, sec. 169; 17 R.C.L. 898, sec. 256; Kleis v. McGrath,
"The rule that where a contract upon its face is incomplete resort may be had to parol evidence to supply the omitted stipulation applies only in cases unaffected by the statute of frauds. If the subject matter of the contract is within the statute of frauds and the contract or memorandum is deficient in some one or more of those essentials required by the statute, parol evidence cannot be received to supply the defects, for this would be to do the very thing prohibited by the statute." 22 C.J. p. 1290, sec. 1719.
The reason for such rule is equally applicable to the instant case.
Since the written acknowledgment of a barred debt, sufficient to revive it, must be plain and unequivocal, and since parol evidence is not competent to establish such acknowledgment, we are constrained to hold that the competent evidence adduced upon the trial of this case fails to show an acknowledgment reviving the debt evidenced by the vendor's lien note. The evidence, therefore, is insufficient to support a judgment for plaintiff against the defendant for debt and foreclosure of the vendor's lien. As plaintiff's testimony discloses that the letter of January 3, 1936, is the only competent evidence available to her in an effort to show an acknowledgment of the existence of the barred debt and since it is insufficient to establish such acknowledgment, it becomes our duty to reverse the judgment and render judgment that plaintiff take nothing. Gilmore v. Dennison, Tex.Com.App.,
(Italics in the opinion are ours.) *836