275 S.W. 229 | Tex. App. | 1925
The sufficiency of the acknowledgement or promise is made clear in the following quotation from Smith v. Fly,
"The rule laid down by the Supreme Court of the United States, in the case of Bell v. Morrison, 1 Pet. 351, and which has been adopted by this court, is, that the acknowledgment must show positively, that the debt is due, either wholly or in part, and must be unqualified. Judge Story there held, that if there be accompanying circumstances which repel the presumption of a promise or intention to pay, or if the expressions be equivocal, vague, and indeterminate, leading to no certain conclusion, but at best to probable inferences only, it would not amount to an acknowledgment sufficient to take the case out of the operation of the statute."
Further, quoting from Webber v. Cochrane, supra, and which is consistently followed:
"The phrase, `acknowledgment of the justness of the claim,' as used in the statute, imports an admission at the time, that the claim is a subsisting debt; and, if unaccompanied by any circumstances repelling the presumption of the party's willingness or intention to pay, his liability and consequent promise are necessary legal inferences from the facts of the case."
Therefore, in the light of these rules, and in order to make application of the same to the letter in this particular case, the statements therein must be, as is required, considered and regarded as a whole, to gather the real and full intention of the writer thereof. Beginning, the letter expresses surprise at the request made for the execution of a note "on (for) what I owe you." And continuing, the accompanying statements affirmatively express rather than negative the intention and willingness to pay or make an effort to pay the debt "I owe you," although and notwithstanding the appellee had "not done anything you promised" to do previous to the date of the letter. The statement, intended as a reply to the appellee's request made in her letter, says:
"So now [that], as [though] you have not done anything that you promised, I am going to ask you all to make a settlement with May, and then I will do or make some way or effort to pay you."
He then couples the request for "you all to make a settlement with May" with the simple proposition, "If you all want to settle peaceably," which "I had rather" do, "write us or come and we will fix it up, or meet you anywhere;" otherwise "the only way to do this is to let the court settle it and give it to a lawyer." The words, "make a settlement with May," as used, as appears from the evidence as well as the face of the letter, evidently have reference to the cross-action of May in the land suit. As shown by the evidence, "the land suit was the only thing to have a settlement with her about," and the statements imply that "May" was claiming in her cross-action some special interest in the land about which the suit was pending, and that the appellee and the other parties to the suit were claiming that "May has no interest there." The natural meaning of the statement is that appellant was desirous of bringing about a compromise settlement of the cross-action independently of court action thereon. Therefore the statements in the letter appear to express the two ideas in appellant's mind and purpose, which were (1) to effect a compromise agreement by all the parties to the lawsuit of the cross-action therein; and (2) to make payment of the money borrowed by him from appellee. There is no room for doubt as to whether or not the statement evidences or is tantamount to a promise to pay the debt and prolong the time of payment, for it uses the words, "I will do or make some way or effort to pay you." And in the light of appellee's letter, to which this letter was an answer, the words "on (for) what I owe you" point to and sufficiently identify the loan of $1,400, implying that it is an unpaid indebtedness, and showing no disposition to question it in whole or in part. It is tantamount to a positive and unqualified admission that the debt is owing in whole. But the promise to pay, as it is made, had relation to a certain named contingency or request which must be taken into consideration in determining whether that promise was qualified or conditional, operating to bring it within subdivision 2 above stated. The request for a compromise agreement of the cross-action was entirely independent and separable from the promise to pay the money owing appellee, and the words used do not necessarily require the construction that the intention of appellant was to make the literal performance by the appellee of a compromise agreement a condition precedent to payment at all by him of the loan. The words are not so precise, express, and strong as to express only such intention. The words used, "I am asking you all to make a settlement with May," are rather in the form of a formal request, implying neither what was asked must be rendered, nor, on the other hand, that it would be a favor. It was a mere *232 proposition on the part of appellant, optional as to compliance or not.
Neither was time an essential of performance by appellant. And the request was not addressed to appellee alone, but to "you all," meaning appellee and the other parties to the suit, in joint agreement. Anything less than a joint agreement of all the parties would not meet the terms or intention of appellant. Her single, separate agreement would be of no benefit or advantage to appellant, as he evidently considered in the words used. The appellee had no authority to make and the appellant was not authorized to demand of her, an enforceable agreement binding all the parties to compromise the suit. Each party to the suit had as much right as the other to say and determine when or whether the controversy over the land should be settled without suit. As a mere matter of inducement for appellee to act in respect to the thing, it would not be construed or given legal effect as a condition so as to defeat legal liability on a debt not vital to liability in the first instance.
As the agreement to compromise the cross-action was not made a condition precedent to the payment of the debt, nor intended to be the consideration for the promise to pay the debt, no legal reason exists for upholding and enforcing the promise to pay the debt on appellant's part. A simple proposition, optional of performance by appellee, amounts to nothing, within the scope of the law, as the consideration for the promise of appellant to pay the debt. To constitute a valid agreement, as a promise for the promise of the other, there must be mutual obligations upon both at the same time. In this case the statements express an agreement, within the terms of the law only upon one side, and therefore subdivision 2 is not applicable.
The facts bring the case within both subdivisions 1 and 3. Therefore the judgment should be affirmed, and it is accordingly so ordered.
