Brickley v. Finley

• Decision Date: 11 July 1940
• Docket Number: No. 3910.,3910.
• Citation: 143 S.W.2d 433
• Parties: BRICKLEY v. FINLEY et al.
• Court: Texas Court of Appeals

Page 433

143 S.W.2d 433

BRICKLEY v. FINLEY et al.

No. 3910.

Court of Civil Appeals of Texas. El Paso.

July 11, 1940.

Rehearing Denied September 26, 1940.

Appeal from District Court, Reeves County; J. A. Drane, Judge.

Suit on note by E. M. Brickley against O. Z. Finley and another. From a judgment for defendants, the plaintiff appeals.

Affirmed.

Neel & Starley, of Monahans, and John E. Hall, of Carrizozo, N. Mex., for appellant.

Hubbard & Kerr, of Pecos, for appellees.

PRICE, Chief Justice.

This is a suit by the appellant Brickley against the appellees O. Z. Finley and C. O. Finley to recover upon a promissory note executed by the defendants, dated December 21, 1932, payable six months after date. The petition first declares upon the note in the usual manner, and then alleges:

"5. Plaintiff further alleges that said defendant O. Z. Finley did on the 11th day of April, 1935, in writing extend and promise to pay said note, and that said defendant has from time to time, in writing, promised to pay said note.

"6. That the defendant, C. O. Finley, did in writing on the 22nd day of April, 1936, and at various and other times extend and promise to pay said note and indebtedness."

C. O. Finley answered by general demurrer, special exception to the effect that the cause of action was barred by the four-year statute of limitation, general denial, and a plea of the four-year statute of limitation.

On April 11, 1939, Brickley filed first supplemental petition, in which it was alleged that on April 22, 1936, C. O. Finley did in writing, signed by him, acknowledge the justice of the claim, and further set up writings signed by C. O. Finley acknowledging the justice of the claim, dated September 20, 1935, August 28, 1935, April 7, 1935, and December 14, 1934.

April 17, 1939, O. Z. Finley answered by general demurrer, special exception presenting the point that the action was barred by the four-year statute of limitation, general denial and plea of the four-year statute of limitation.

On April 17, 1939, Brickley filed what he designated as his second supplemental petition in answer to the original answers of the defendants. In this pleading the plaintiff demurred generally to the answers, denied generally the allegations contained therein, and alleged that on December 17, 1934, O. Z. Finley did in writing and above his signature acknowledge the justness of the debt, his liability thereon, and did promise expressly and impliedly to pay same in the following words: (There is then copied letter from O. Z. Finley to Brickley dated December 17, 1934). Like allegations were made concerning letters written by O. Z. Finley dated April 11, 1935, December 10, 1935, and April 26, 1936. Each of said letters being copied in full. Like allegations were made concerning letters written by C. O. Finley dated December 14, 1934, April 7, 1935, September 20, 1935, and April 22, 1936. Other allegations in this supplemental petition are to the effect that by reason of the foregoing promises and representations plaintiff withheld filing suit on the indebtedness and reducing same to judgment, but that defendants had failed and refused and now fail and refuse to pay said indebtedness to plaintiff's damage as alleged in his original petition.

April 17, 1939, O. Z. Finley filed an answer to the second supplemental petition setting up the following: a general demurrer thereto, a special exception to the effect that the matters therein pleaded are irrelevant and immaterial and of no binding force or effect. To that portion of the second supplemental petition pleading the letters of O. Z. Finley dated December 17, 1934, April 11, 1935, December 10, 1935, and April 26, 1936, and to the allegations in connection with said letters, O. Z. Finley specially excepted upon the ground that "said allegations last quoted are indefinite, present but the conclusion of the pleader, while the letters referred to are of themselves entirely insufficient to toll the statute of limitation, or to permit recovery herein." He further denied generally the allegations in said second supplemental petition and specially pleaded the four-year statute of limitation.

On April 17, 1939, C. O. Finley filed a like answer to the second supplemental petition. His special exception and plea of limitation being directed against the letters written by him set up in the second supplemental petition.

On April 17, 1939, the court overruled all of the exceptions of the defendants to the plaintiff's pleadings, to which the defendants each excepted. On the same date the case was tried without a jury, and judgment rendered denying the plaintiff any relief.

Upon the trial plaintiff introduced in evidence the note in question and letters written by O. Z. Finley to Brickley dated December 17, 1934, April 11, 1935, December 10, 1935, and December 14, 1934; letters of C. O. Finley to Brickley dated April 7, 1935, September 20, 1935, and April 22, 1936. It was further shown that the letters above mentioned were written in regard to the defendants' note.

In support of the judgment of the trial court the appellees submit three propositions which read:

"1. Appellant's original petition seeking judgment upon a note barred by limitation, standing in the record unamended, would not support judgment upon a new promise to pay, if such an unconditional new promise existed (set out in supplemental petition), and the trial court properly entered judgment against appellant herein for the reason his pleadings would not support judgment.

"2. If the supplemental petition herein should be construed in aid of and as an amendment to the original petition, there would be no proper pleadings sufficient to support judgment for appellant, in that the letters set out in the supplemental petition were plead in explanation of the note sued upon and therein the letters set out were not made the basis of the cause of action, but the cause of action remained upon the note barred by limitation."

"3. The letters written by appellees, if properly plead and if properly received in evidence, were qualified promises to pay and conditioned upon appellees' abilility in the future to pay. And there being no pleading or proof as to the fulfillment of the conditions and circumstances which would permit appellees to pay the note sued upon, the trial court properly decided in favor of appellees."

We think appellees' first proposition amounts to this: That where a cause of action stated in the original petition is founded on a debt evidenced by a note barred by limitation, that a judgment founded on a cause of action asserted in a supplemental petition on a subsequent written promise to pay such debt is not sustained by the pleading.

It is clear that it is not the function of a supplemental petition to state a cause of action. Its proper function is a reply to special matters of defense urged in the answer. Coles v. Kelsey, 2 Tex. 541, 542, 47 Am.Dec. 661; Cotulla v. Urbahn, 104 Tex. 208, 135 S.W. 1159, 34 L. R.A.,N.S., 345, Ann.Cas.1914B, 217.

Here exceptions were urged to the cause of action asserted in the supplemental petition, but the objection was not raised, we think, that plaintiff, by his supplemental petition, could not, or, perhaps, rather, should not, assert a cause of action. Appellees' proposition that the original petition did not declare on a written promise to pay the debt evidenced by the note, or the note, is perhaps correct. All the allegations that might be considered to have a bearing on this matter in the original petition have been hereinbefore set forth. We will assume, without specifically deciding, that appellant's position in this respect is well taken. Canon v. Stanley, Tex.Civ.App., 100 S.W.2d 377.

The original petition, taken in connection with the second supplemental petition, does undertake to declare upon the various written promises set forth in the said supplemental petition.

As has been stated, this is not the best pleading or the proper way to plead. However, the objection was not urged by specific exception. In such a case, in our opinion, the supplemental petition and original petition may be considered together. Stoker v. Patton, Tex.Civ.App., 35 S.W. 64, writ denied.

Unless the action is founded on a new promise, the action of the trial court was clearly correct. It is elementary that where a debt is barred by limitation and a written acknowledgment coupled with a promise to pay is relied upon, that such new contract is the cause of action. The old debt is sufficient consideration, however, for the new promise.

Appellees assert that the letters introduced and relied upon by appellant were qualified or conditional promises to pay, conditioned upon appellees' ability in the future to pay. If the letters are each properly construed as asserted by appellees, the judgment of the trial court is correct. There was no evidence introduced showing the existence of any of the special conditions asserted by appellees to condition the promise of payment. Unless, inherently and intrinsically, the letters amount to an acknowledgment of the debt, and an unconditional express or implied promise to pay same, the judgment is correct.

Although it will somewhat lengthen this opinion, we see no way to intelligently consider the matters involved without setting out in full the letters relied upon. Their proper construction is determinative of this case on its merits.

On December 17, 1934, defendant O. Z. Finley wrote appellant Brickley, as follows:

"Your Christmas Greetings just received of Dec. 12th.

"Brickley I wrote you some time back it would be impossible for me to pay you anything this Fall. The man I was in with fell down and I have to pay all the bill.

"I could talk to you much better than I can write. I have spent many a month at labor paying interest on that note and I will some day pay the note, but I can't do so now.

"And if you think a judgment will help you any I grant...