Appell Petroleum Corp. v. Moreman Tire Co., Inc., 4167
| Decision Date | 26 May 1967 |
| Docket Number | No. 4167,4167 |
| Citation | 416 S.W.2d 470 |
| Parties | APPELL PETROLEUM CORPORATION, Appellant, v. MOREMAN TIRE COMPANY, Inc., Appellee. . Eastland |
| Court | Texas Court of Appeals |
Perkins, Floyd, Davis & Oden, Lawrence H. Warburton, Jr., Alice, for appellant.
Fischer, Wood, Burney & Nesbitt, Jerry E. Fischer, Corpus Christi, for appellee.
Moreman Tire Company, Inc., sued Appell Petroleum Corporation upon a debt for merchandise sold and delivered to it on open account and for attorneys' fees. The suit was originally based on a verified account. The defendant pleaded the two year statute of limitation. Thereupon, by amended petition, Moreman pleaded that Appell had in writing acknowledged the justness of said account and promised to pay it in a letter from appellant to appellee, contending that such letter removed the debt from the operation of said statute. In a trial to the court, judgment was rendered for Moreman against Appell for the full amount of the debt, $642.86, plus $350.00 attorneys' fees. Appell Petroleum Corporation has appealed.
Appellant's first 7 points assert the court erred in rendering judgment for Moreman for the full amount of its account because the letter relied upon did not constitute a written acknowledgment of the debt and a promise to pay same executed by or on behalf of the defendant and there was no evidence to sustain a finding that it did . Appellant says the court erred in rendering judgment for any amount in excess of $67.26, the last purchase in said account, because said letter did not remove said debt from the bar of the two year statute of limitation and, as a matter of law, all but said last item was barred by said two year statute.
As to the judgment for the full amount of said account, it was agreed upon the trial that, if said letter did not operate to remove the account from operation of the statute, all of it except the $67.26 item was barred by the two year statute. It was also agreed that, if said letter did operate to take said debt out of the statute, the account was true and correct and there was no defense to it.
On September 18, 1964, Appell Petroleum Corporation wrote Moreman Tire Company as follows:
Gentlemen:
With the oil business in its current slump, our company has gotten behind on its accounts payable including the monies due to you. This we certainly regret as we have always paid our accounts in the past.
At the present time, we also have a large amount of accounts receivable and certainly appreciate your position. We do expect, however, to receive payment on a number of these accounts within the next 60 days, and these monies are to be dedicated toward the payment of our accounts payable.
In addition, we are currently in the process of obtaining some additional long term financing and the additional monies obtained from this sum will also be dedicated to your account.
Would you please give us at least another 60 days before taking any action on your account to complete this program of payment on your account.
We do thank you for your many kindnesses in the past and appreciate this courtesy from you at this time.
Sincerely yours,
APPELL PETROLEUM CORPORATION
R. E. Ramee'
Said letter was attached to Moreman's amended petition two years before the trial. Moreman alleged therein that:
'By that certain letter dated September 18, 1964 executed and delivered on behalf of defendant, a copy of which letter is set forth in Exhibit 'B' attached hereto and made a part hereof, Defendant acknowledged that its said debt owing to Plaintiff on account...
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...Cove Lumber & Builders, Inc. (Corpus Christi, Tex.Civ.App.1975) 526 S.W.2d 738, no writ; and Appell Petroleum Corp. v. Moreman Tire Co. (Eastland, Tex.Civ.App.1967) 416 S.W.2d 470, no writ. In the absence of special exception, pleadings will be liberally construed in favor of the pleader to......
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