Standard v. Thurmond

151 S.W. 627 | Tex. App. | 1912

By his promissory note dated March 28, 1907, appellant undertook to pay to appellee's order October 1, 1907, "waiving grace and protest," $213, interest and attorney's fees. By his suit commenced October 2, 1911, appellee sought a recovery on the note. As a defense against such a recovery appellant set up the statute requiring a suit based on such a cause of action to be commenced within four years from the time the cause of action accrues. Sayles' Stat. art. 3356. A judgment having been rendered in favor of appellee for the amount of the note, appellant prosecuted this appeal.

Appellant by his contract having waived the days of grace he otherwise would have been entitled to (Sayles' Stat. art. 318; 1 Daniel, Neg. Inst. § 633; Perkins v. Bank, 38 Mass. [21 Pick.] 485; Hirshfield v. Bank,83 Tex. 452, 18 S.W. 743, 15 L.R.A. 639, 29 Am. St. Rep. 660), it is clear, under the rules controlling in such cases (Geistweidt v. Mann, 37 S.W. 372; Watkins v. Willis, 58 Tex. 523; Smith v. Dickey, 74 Tex. 61, 11 S.W. 1049), that appellee's cause of action accrued October 2, 1907. To be without the bar of the statute, his suit must have been commenced within four years from that date. As four years from October 2, 1907, expired with October 1, 1911, and the suit was not commenced until the next day, it is plain that it was within the bar of the statute and could not be maintained. That October 1, 1911, was Sunday, did not operate to extend the time within which the suit otherwise must have been commenced. Insurance Co. v. Shrader, 89 Tex. 40, 32 S.W. 872, 33 S.W. 112, 30 L.R.A. 498, 59 Am. St. Rep. 25; Allen v. Elliott, 67 Ala. 437; Perkins v. Bank, 38 Mass. (21 Pick.) 485.

The judgment will be reversed, and a judgment will be here rendered that appellee take nothing by his suit.