The allegations of the petition were clearly proved. Plaintiff's demand was not upon an acknowledgment of the debt, nor upon a contract of extension of the debt. There was no acknowledgment in writing alleged, and it is clear, under what was decided in Real Estate Abstract Co. v. Bahn, 87 Tex. 583, 29 S.W. 646, 30 S.W. 430, that there was no contract of extension based upon a consideration. Plaintiff based his right to recover, notwithstanding the statute of limitations, squarely upon the fact that, at defendant's request and importunity that plaintiff would not sue, he would not at any time plead the statute against the debt, upon which request and promise plaintiff relied and forbore to sue. The rule upon this subject, laid down in Wood on Limitations, § 76, and well supported by authority, is in effect that such a promise, which the creditor acts upon, if made before the statutory bar has taken effect, operates, by estoppel, to deprive the debtor of the benefit of the plea. It is apparent that where the statute has taken effect, and the promise is made then, the creditor is not placed in a worse position than that he occupied when the promise was made, by the interposition of the plea. But the case is clearly different where the debt is not subject to the bar of the statute at the time the promise is made.
In the case before us the cause of action accrued in 1895, and according to the allegations and proofs the defendant, in each
year since then until the action was brought, in person or through his authorized agent, besought plaintiff not to sue him, promising in no event to plead the statute against the claim, and by such conduct obtained the indulgence, of which he now complains by making this defense. The justness of the debt is placed beyond question by the evidence, and plaintiff's allegations were established beyond any question. Equity will not permit the statute to be invoked under such circumstances. Our views on the subject are in accord with those expressed in a case which goes into a full and clear discussion of the question. Holman v. Bridge Co., 117 Iowa 268, 90 N.W. 833,62 L.R.A. 395, 94 Am. St. Rep. 293; also Bridges v. Stephens,132 Mo. 524, 34 S.W. 555.
Judgment affirmed.