209 S.W.2d 791 | Tex. App. | 1948
This is an appeal from the 57th Judicial District Court of Bexar County, Texas, in which Mrs. Emma Schultze sued F. D. Schultze and Willie Schultze, as independent executors of the estate of Marie Schultze, deceased, on a promissory note for $6,000.00, which was executed by said executors in renewal and extension of the unpaid balance due on a note for $7,000.00 executed by said Marie Schultze before her death, to plaintiff. Said note for $7,000.00 was dated July 21, 1920, and was payable in seven annual installments of $1,000.00 each and bore interest at 7%. Said renewal note was dated June 17, 1935, was payable on or before five years after date and bore the same rate of interest. The trial was to the court without a jury and resulted in a *792 judgment for plaintiff, from which the defendants appealed to the Court of Civil Appeals for the Fourth Supreme Judicial District at San Antonio. Upon equalizing the dockets of the Courts of Civil Appeals, by the Supreme Court, this cause was duly transferred to this court for decision.
The controlling questions presented here are (a) whether on the date of execution of said renewal note in the sum of $6,000.00 the original note for $7,000.00 was barred by limitation, and (b) whether the date of maturity fixed in said renewal note, "on or before five years after date", was an unconditional promise to pay at the expiration of said five year period. Appellants contend that said original note was barred by limitation before the date of said renewal note, and, therefore, they, as such executors, had no legal right to renew and extend the same. But in the alternative, if it be held that said original note was not barred by limitation, then the renewal note had not matured and the suit was prematurely brought by reason of a provision in said renewal note that the proceeds from the first sale of estate, real estate should be applied on said note. Appellee counters both of said contentions.
We here set out said original note in full: "$7,000.00
San Antonio, Texas, July 21, 1920 On or before seven years after date, I promise to pay to the order of Mrs. Emma Schultze, Seven Thousand Dollars ($7,000.00) payable in the City of San Antonio, Bexar County, Texas, with interest at the rate of seven percent (7%) per annum, from date until paid, interest payable annually, together with ten percent (10%) for collection fees, if suit is brought on this note, or if it is placed in the hands of an attorney for collection, or collected through the Probate Court. Defaulting interest to draw the same rate of interest as principal.
I promise to pay this note in installments of One Thousand Dollars ($1,000.00) on the 21 day of July of each year until the entire note is paid, but I am to have the option to pay off one or more additional installments of One Thousand Dollars ($1,000.00) at any annual period.
(Signed) Marie Schultze"
On the back of said note appear the following endorsements:
"July 15, 1926
I, Marie Schultze, acting herein by F. D. Schultze, my duly authorized attorney in fact, do hereby renew my promise to pay and hereby promise to pay the $1,000 which matured on the within note on July 21, 1922.
Marie Schultze
By F. D. Schultze
Attorney in Fact
"July 16, 1927
I, Marie Schultze, acting hereby by F. D. Schultze, my duly authorized attorney in fact, do hereby renew my promise to pay this note and promise to pay the same, and I, F. D. Schultze, warrant that I have authority to act herein for the said Marie Schultze.
Marie Schultze
By F. D. Schultze
Atty. in Fact
"October 13, 1930
I, Marie Schultze, hereby acting by F. D. Schultze, my duly authorized attorney in fact, do hereby renew my promise to pay this note and promise to pay same; and I, F. D. Schultze, warrant that I have authority to act herein for the said Marie Schultze.
Marie Schultze
By F. D. Schultze
Atty. in Fact"
Independent of any renewal and extension, said original note would have become barred by limitation on July 21, 1931, which would have been four years from its maturity. But giving effect to the endorsements on the back of same, the last of which was dated October 13, 1930, the statute of limitation was thereby tolled until October 13, 1934. Browne v. French et al., Tex. Civ. App.
We shall now examine a few of the many cases bearing upon the issue as to whether said above quoted endorsements were sufficient to toll the statute of limitation. In the early Supreme Court case of McKay v. Overton,
The case of Browne v. French et al., supra [Tex. Civ. App.
The late case of Standard Surety Casualty Co. v. Wynn, Tex. Civ. App.
The Amarillo Court concluded in said Wynn case as follows [Tex. Civ. App.
We might review many other cases similar on the facts, in which the bar of the statute was held to be tolled. To do so would unduly prolong this opinion. Under authority of McKay v. Overton, supra, the *794 endorsements on the original note for $7,000.00 were undoubtedly sufficient to toll the statute as to said note. Said endorsements were made before the death of Marie Schultze and their anthenticity is not questioned. This view is reinforced by recitals in the renewal note, which note we here set out in full.
"$6,000.00
San Antonio, Texas, June 17, 1935
On or before five (5) years after date, for value received, we promise to pay to the order of Mrs. Emma Schultze at San Antonio, Texas, the sum of Six Thousand ($6,000.00) Dollars, together with interest thereon at the rate of seven (7%) per cent per annum, interest payable annually, beginning on July 21, 1935, and on the 21st day of July of each year thereafter until the full amount of this note is paid.
If this note is placed in the hands of an attorney for collection or if suit is brought on this note, or if it is collected through the probate or bankruptcy court, we agree to pay ten (10%) per cent additional hereon as collection fees.
This note is executed in renewal and extension of the balance of principal remaining unpaid on a certain note in the original principal sum of Seven Thousand ($7,000.00) Dollars, signed by Mrs. Marie Schultze, payable to the order of Mrs. Emma Schultze, dated July 21, 1920, the payment of which original note was, thereafter, duly extended from time to time. And the indebtedness evidenced by this renewal note represents a valid debt and obligation of the estate of the said Marie Schultze, now deceased, of which estate the undersigned are independent executors.
It is agreed that the proceeds of the first sale of real property belonging to the estate of Marie Schultze, deceased, which may be sold at any time after the date of this note, will be applied to and credited upon the principal and interest of this note.
(Signed) F. D. Schultze
(Signed) Willie Schultze
Independent Executors of the estate of Marie Schultze, deceased."
We further set out at length findings 7 and 8 by the trial court, supported by uncontradicted testimony, and by which under the law, we are bound:
"7. After the death of the said Marie Schultze (the maker of said original note for $7,000.00), during the year 1934, and prior to the month of October, 1934, the plaintiff herein, acting by and through her son, Walter Schultze, as her agent and attorney, made demand upon the said Fritz Schultze and Willie Schultze, as independent executors of the estate of Marie Schultze, deceased, for the payment of the balance of the indebtedness evidenced by said note for $7,000.00; and, thereupon, the said Fritz Schultze and Willie Schultze, as such independent executors, at a conference with plaintiff's said agent and attorney, at a time prior to October, 1934, and before said note for $7,000.00 was four years past due, asked and requested that plaintiff withhold the filing of any suit on said note for $7,000.00, and then and there stated that said note represented a valid, binding, and legal obligation of the estate of the said Marie Schultze, deceased, which was then due and owing; and said two executors then and there stated and represented to the said Walter Schultze, who was then and there acting as the agent and attorney of plaintiff, that, if plaintiff would refrain from instituting a suit upon said indebtedness, the executors of said estate would pay said indebtedness in full; and, in this connection, said executors stated and represented to plaintiff's agent and attorney that the estate was then indebted in a large sum of money to the Groos National Bank of San Antonio, Texas, that the estate owed a considerable amount of taxes, and that the executors did not consider it to be an opportune and appropriate time to make a sale of any property of the estate at the then depressed prices which might be obtained for the same; and said executors expressly acknowledged the validity of the indebtedness and agreed and promised to pay the same in full to plaintiff, provided plaintiff would refrain from instituting a suit on the said indebtedness and from obtaining a judgment thereon and satisfying the same out of property of the estate to be sold at an execution sale. The plaintiff believed and relied upon said statements and representations of the two executors, *795 accepted and acted upon their renewal of said indebtedness and their promise to pay the same, and refrained from filing any suit to enforce the collection of said indebtedness, as requested by the executors.
"8. On numerous occasions subsequent to the date of the death of the said Marie Schultze, the two executors promised and agreed to pay the indebtedness evidenced by said original note for $7,000.00; and, from time to time, they repeated to plaintiff's said agent and attorney the request that plaintiff refrain from instituting a suit upon said indebtedness, in consideraton of their renewed promise to pay said indebtedness in full. Finally, after plaintiff, through her agent and attorney, had made repeated further requests for payment and had urged defendants, as such executors, to sell sufficient property of the estate to pay said indebtedness, the executors executed and delivered to plaintiff a renewal note in the principal sum of Six Thousand Dollars ($6,000.00), hereinafter mentioned."
We here call attention to the following recital in said renewal note: "This note is executed in renewal and extension of the balance of principal remaining unpaid on a certain note in the original principal sum of Seven Thousand ($7,000.00) Dollars, signed by Mrs. Marie Schultze, payable to the order of Mrs. Emma Schultze, dated July 21, 1920, the payment of which original note was, thereafter, duly extended from time to time. And the indebtedness evidenced by this renewal note represents a valid debt and obligation of the estate of the said Marie Schultze, now deceased, of which estate the undersigned are independent executors," and said note was signed by said executors officially. Here was a definite acknowledgment in writing that the renewal note represented a valid debt and obligation of the estate of Marie Schultze to the extent of the unpaid principal of the original note, and that said original note had been duly extended from time to time. This admission against interest was undoubtedly made in good faith at the time, and appellants paid all accrued interest on the original note, and on the renewal note for more than four years, or to be exact, until October 25, 1939. As was said in the case of Alamo Lumber Co. v. Fahrenthold, Tex. Civ. App.
And in Sutton v. Schoellkopf, Tex. Civ. App.
To the same effect is the case of Adkins v. Goodloe, Tex. Civ. App.
Under the facts in this case, we think that appellants, as such executors, were as fully bound as if they had been acting in their individual capacities. Appellee pleaded facts tending to show that appellants were estopped from pleading limitation against said original note. On this issue the trial court found that "In any event, upon the issue of limitation, the court concludes that said independent executors, defendants herein, by reason of their repeated promises to pay said indebtedness and their requests made of plaintiff that she refrain from instituting suit upon said indebtedness, were and are estopped from setting up a plea of limitation to plaintiff's cause of action upon the indebtedness sued on." That an executor may be estopped from pleading limitation the same as an individual debtor, is recognized in Kyle v. House,
See also findings of fact Number 7 and 8 by the trial court set out above. We also think that appellants having expressly acknowledged in said renewal note that said *796 indebtedness was a valid debt and obligation against the estate of Marie Schultze, and that it had been duly renewed and extended from time to time, estops appellants from now asserting that said note was barred by limitation. We also sustain the trial court in its findings that said original note was not barred by limitation at the date of said renewal note.
Appellants contend that if it be held that said renewal note is a valid obligation, this suit was prematurely brought, such contention being based upon the last paragraph thereof, which is as follows: "It is agreed that the proceeds of the first sale of real property belonging to the estate of Marie Schultze, deceased, which may be sold at any time after the date of this note, will be applied to and credited upon the principal and interest of this note."
Appellants insist that the quoted provision modifies and controls the maturity date of the note. We think the contention is wholly without merit. The instrument itself admits of no such construction. To so construe it, would place it within the power of appellants to postpone indefinitely the maturity of said note. The record discloses that at the date of the trial, April 14, 1947, no sale of any real estate belonging to said estate had been made. Approximately twelve years had elapsed already, and any sale might easily have been deferred for years thereafter. No express words limiting or modifying "on or before five years after date, * * * we promise to pay", appeared in said note, nor could such words be supplied by implication from any provision of the instrument. The record shows that appellee had long been pressing for settlement of the note. Appellants, while admitting the validity of the debt and that the original note had been duly renewed and extended from time to time, yet pleaded for more time within which to sell estate property, because to sell voluntarily, or in pursuance of judgment and execution while property values were depressed would mean a heavy loss to the estate. The renewal note resulted from the negotiations between the parties, but it was provided that the proceeds of the first sale should be applied as a credit on the note.
No provision was made for subsequent sales until the note was discharged, should the first sale be inadequate for the purpose. The provision as to the application of the proceeds of the first sale had nothing to do with the date of maturity of the note. Had a sale been made, appellee would have been entitled to have the proceeds credited on the note. Since no date was fixed within which a sale must be made, appellee was powerless to compel a sale under that provision of the instrument, and as to the time element, it was purely unilateral
We hold that the promise to pay, "on or before five years after date" was wholly unconditional, and that five years having elapsed from the date of the note, the suit was not prematurely brought. See Standard Surety Casualty Co. v. Wynn, Tex. Civ. App.
Appellants complain of the alleged commingling of findings of fact and conclusions of law by the trial court. After careful consideration, we think that reversible error is not shown. The parties filed in addition thereto, an agreed statement of facts, which was also certified by the trial judge. Moreover, appellants have shown no injury accruing to them by reason of such alleged error, nor that they were thereby prevented from effectually prosecuting their appeal. We see no reversible error resulting from such alleged error. Rule 434, Texas Rules of Civil Procedure; Russell v. Lehman, Tex. Civ. App.
The judgment of the trial court is affirmed. *797