Chastain v. Texas Christian Missionary Soc.

• Decision Date: 17 January 1935
• Docket Number: No. 3120.,3120.
• Parties: CHASTAIN v. TEXAS CHRISTIAN MISSIONARY SOC.
• Court: Texas Court of Appeals

78 S.W.2d 728

CHASTAIN v. TEXAS CHRISTIAN MISSIONARY SOC.

No. 3120.

Court of Civil Appeals of Texas. El Paso.

January 17, 1935.

Rehearing Denied February 7, 1935.

Appeal from District Court, Dallas County; Royall R. Watkins, Judge.

Action by Texas Christian Missionary Society against P. L. Chastain, administrator. Judgment for plaintiff, and defendant appeals.

Affirmed.

Walter B. Branan, of Dallas, for appellant.

E. Taylor Armstrong and Robert G. Storey, both of Dallas, for appellee.

HIGGINS, Justice.

In due time the Texas Christian Missionary Society, a corporation incorporated under the laws of Texas, presented for allowance to P. L. Chastain, administrator of the estate of Silas R. Dale, deceased, a claim against said estate evidenced by note of the deceased which reads:

                        "Permanent Fund Estate Note
                "$5,000.00                Fort Worth, Tex
                                          "March 29, 1928
                

"For value received, on or before Twenty-five years after date, I promise to pay to the Texas Christian Missionary Society, or order at Fort Worth, Texas, the sum of Five Thousand and 00/100 Dollars, ($5,000.00), with interest at the rate of One per cent per annum until paid, the interest payable Annually as it accrues.

"The principal of this note is to become a part of the Permanent Fund of the above named organization, but the interest may be used in the regular work of Texas Missions.

"This note shall become due and payable within Two years after my death in the event such occurs prior to the date for maturity as indicated above.

                                     "[Signed] S. R. Dale
                "[Signed] J. B. Holmes, Witness"
                

Two days later the claim was rejected in writing by the administrator. On the eighty-ninth day after such rejection this suit upon the note was filed by the society. The defendant answered. Some months after the institution of the suit, the society filed an amended petition upon which the case was tried. In response to a peremptory charge, verdict was returned and judgment rendered in favor of the society for the amount of the note with interest from March 29, 1932, to which date interest had been paid by the deceased. The judgment was ordered certified to the county court to be paid in due course of administration. The pleadings of the defendant need not be stated. They present all questions raised.

Appellant's brief contains numerous assignments of error, but the main insistence going to the merits of the suit may be stated:

1. The suit is barred by limitation under article 3522, R. S.

2. The note is invalid for want of consideration and certainty in date of payment and because it is testamentary in nature.

The suit was filed within ninety days after the rejection of the claim by the administrator. The plea of limitation is therefore without merit unless the amended petition set up a new cause of action. It is unnecessary to state the allegations of the first and amended petitions further than to say that both petitions declare upon the same note, setting up its terms, the death of Dale, the appointment and qualification of appellant as administrator, the presentation of the claim to the administrator, its rejection by him in writing on April 14, 1932, with prayer for judgment against the administrator. There can be no question that both petitions declared upon the same note.

The original petition sufficiently stated a cause of action good against general demurrer. The amendment corrected some formal amendable defects in the original petition, but this cannot be considered as stating a new cause of action. 28 Texas Jur., title Limitation of Actions, §§ 119, 120, and 122; Tolbert v. McBride (Tex. Sup.) 12 S. W. 752.

In this connection it is further contended there is a fatal variance between the claim presented to and rejected by the administrator, and the note sued upon. This is untenable.

J. B. Holmes, secretary of the society since 1917, testified:

"Q. The instrument you present here was a gift, wasn't it? A. You refer to this—of Mr. Dale?

"Q. Yes. A. In part, and in part not. He was purchasing that bond in which he was directly interested, carrying out his stewartship for life; guaranteeing the preaching which he desired to be done, and on continually as a memorial fund.

"Q. What do you mean by memorial? A. We have three forms of memorial for which is given bonds; three authorized amounts for which is given a memorial bond; five thousand, ten thousand and twenty-five thousand dollars, which are the three forms in which we create memorial funds; of course, any amount ranging between the five and the twenty-five thousand dollars or more would be considered but we have those specifically designated memorial funds in which he was interested; and this bond in particular, though, that could have been a different bond had they desired to devote some of this money to some other character of preaching other than that in which Mr. Dale was primarily interested.

"Q. Well, you speak of a memorial, do you mean you erect a monument to his memory? A. Not a marble monument, if that is the idea, but on the established records of the church, and for this five thousand dollars, we maintain as a separate fund, as a perpetual fund, in memory and in the name of S. R. Dale.

"Q. Well, do you mean by that that you keep it on your books in his name? A. Yes, sir.

"Q. Do you mean by that that you put the money in the bank — A. No, we loan the money. The society is responsible for it.

"Q. Well, do you keep any separate statements of that except on the books? A. No other place to keep it except on the books and records, if that is what you mean.

"Q. You spoke about this bond, No. 136, is it? A. Yes, sir.

"Q. How come the society to issue that bond? A. This particular one?

"Q. Yes, sir. A. At the request of Mr. Dale.

"Q. At his request? A. Yes, sir. Consideration for the note itself; in part.

"Q. In part. Did you give him a bond at the time he delivered you the note? A. No, sir. The note was delivered to me in person. I carried it back to our officials who passed, upon receiving it, a resolution of record in our minutes and ordered this bond executed to him, and they signed the bond as president and secretary, by the order of the governing board, and I mailed it then to him.

"Q. You mailed it to him? A. Yes.

"Q. When? A. Well, that is a thing that I would have to go entirely by memory without looking up the records. I have a letter there on file if you wish me to get it showing the exact date that we mailed it. * * *

"A. What we gave to Mr. Dale is incorporated in this bond which has five or six different valuable considerations, one of which is the right to exchange any payments on that bond in money from him to us or property from him to us, which is specified here that he could do for an annuity bond which would cause us to pay him interest during his life-time and during the lifetime of his wife. All that—

"Q. All that is set out in that instrument? A. Yes, sir, it is all here."

The bond referred to by the witness reads:

                           "Permanent Fund Bond
                "No. 130.                       $5,000.00
                

"Texas Christian Missionary Society

"A corporation Affiliated With the Co-operating Christian Churches of Texas.

"Whereas S. R. Dale of Dallas County of Dallas, State of Texas, has executed a Permanent Fund Estate Note in the sum of Five Thousand and no/100 Dollars ($5,000.00) in favor of the Texas Christian Missionary Society of Fort Worth, Texas, dated March 29th, A. D. 1928, and payable on or before Twenty-five years after date with interest from date at the rate of one per cent per annum, interest payable Annually as it accrues. Therefore said Society, in exchange therefor executes and delivers to the above named party, this Permanent Fund Bond in favor of S. R. Dale and his wife Mary E. Dale thereby binding itself to hold the proceeds of said note in perpetuity as a part of its regular Permanent Fund as a Memorial to the name of S. R. Dale and wife, but with the specific understanding that such Fund shall be subject to the following conditions and agreements, To-wit:

"Conditions and Agreements

"1. Payments may be made on said note at any time either in cash or by the delivery to said Society, by merchantable title, of property at its appraised value.

"2. When the total paid or credited on the said note, or paid to said Society under any other contract, condition or agreement, by the maker of said note equals the sum of Five Thousand Dollars, they shall be called Life Patrons: when the total paid or credited to said part— in the same manner equals the sum of Ten Thousand Dollars, h____ shall be called Fellow in Perpetuity; when the total paid or credited to said part— in the same manner equals the sum of Twenty-Five Thousand Dollars, h____ shall be called Benefactor. At the request of a Benefactor the Society agrees to maintain an Evangelist perpetually as a part of said Memorial.

"3. While the Society agrees that the income from the payments or credits on said note shall be used in harmony with the...