Clemens v. Perry

• Court: Texas Supreme Court
• Writing for the Court: Critz
• Citation: Clemens v. Perry, 51 S.W.2d 267 (Tex. 1932)
• Decision Date: 09 June 1932
• Docket Number: No. 1547-5864.,1547-5864.
• Parties: CLEMENS v. PERRY.

Page 267

51 S.W.2d 267

CLEMENS v. PERRY.

No. 1547-5864.

Commission of Appeals of Texas, Section A.

June 9, 1932.

Error to Court of Civil Appeals of Eighth Supreme Judicial District.

Suit by Charles Perry against E. W. Clemens, administrator of the estate of Ernst Knoke, deceased. A judgment for plaintiff was affirmed by the Court of Civil Appeals [29 S.W.(2d) 529], and defendant brings error.

Reversed and remanded.

Terrell, Davis, McMillan & Hall, of San Antonio, for plaintiff in error.

Dielmann & Forster and L. J. Gittinger, all of San Antonio, for defendant in error.

CRITZ, J.

This suit presents some very unusual and interesting questions, as will later appear. It was filed in the district court of Bexar county, Tex., by Charles Perry, against E. W. Clemens, administrator of the estate of Ernst Knoke, deceased, to establish an alleged claim against Knoke's estate. Trial in the district court resulted in a judgment for Perry, establishing his claim for the sum of $2,700 against Knoke's estate. On appeal this judgment was affirmed by the Court of Civil Appeals, and the administrator brings error.

It appears from the record before us that Clemens is the duly qualified and acting administrator of the estate of Ernst Knoke, deceased, and that prior to the institution of this suit Perry presented to the administrator a claim against the estate for $2,700, which was rejected and the suit followed.

The claim presented to the administrator in substance states:

1. That prior to his death, Ernst Knoke entered into a contract with Perry for services rendered, and to be rendered, in connection with the release of property belonging to the deceased and held by the Alien Property Custodian in Washington, D. C., and for other services.

2. That as evidence of the obligation to pay for said services the deceased, Knoke, executed and delivered to Perry a series of notes all dated July 16, 1921, and payable on demand.

3. That thereafter on September 14, 1923, Knoke, in order to further acknowledge his obligation, and to confirm the same, executed and delivered to Perry an instrument in writing as follows:

          "Piedras Negras, Sept. 14, 1923
                "Mr. Herman Clemens
                  "Austin, Texas
                

"or who may be my administrator at the time.

"Dear Mr. Clemens:

"I hereby acknowledge that my representative, Mr. Charles Perry, San Antonio, Texas, has in every respect fulfilled all of his contracted obligations toward me with reference to the release of my property held by the Alien Property Custodian, in Washington, and I request that you pay to said Charles Perry, or to his heirs, the five per cent commission guaranteed to him on our contract, on all of my property seized by the U. S. Government in Washington, on such assets as are to be released, and on any other valuables without any other order from me and unconditionally.

"In the event I should continue to need the services of Mr. Perry in this matter, he is to receive for such work no additional compensation, except that he is to be reimbursed in accordance with our contract, for cash expenditures, for trips, attorneys fees, telegrams, etc.

"I expressly stipulate that beginning today Mr. Perry is not tied to any particular place of residence, such as San Antonio, and that it is left to him to carry on his activities according to his own judgment, whether in the United States, Mexico, or elsewhere.

    "Respectfully, [Signed] Ernst Knoke."
                

4. That the notes in question are two for $1,000 each, one for $500, and two for $100 each, all dated July 16, 1921, and payable on demand to Perry. It is stated in the claim that there was originally another note for $500, which had been paid, leaving a balance due on the notes of $2,700, with legal interest from date thereof.

5. That the property of Knoke was held in custody by the alien property custodian at Washington, D. C., and before said notes could be renewed Knoke died, during the year 1926. It is then alleged that no administration was taken out on Knoke's estate until recently, and therefore claimant had no way of presenting his claim against the estate until the administrator was duly qualified at the last term of court. It is further alleged that under the Trading with the Enemy Act the statute of limitation does not run against this claim under the facts in such claim, and limitation does not run against such claim under the laws of Texas.

The above claim was presented to the administrator on September 11, 1928, and rejected by him on September 13, 1928, and the suit followed on September 19, 1928.

From the statement we have made it is evident that the claim as filed with the administrator was based on the original contract, the instruments alleged to be notes, and the letter of date September 14, 1923.

After the rejection of the above claim, Perry filed this suit in the district court. The petition, omitting formal parts, alleges in substance:

(a) That on July 16, 1921, Ernst Knoke, now deceased, entered into a contract with Perry whereby Knoke obligated himself to pay Perry a sum equal to 5 per cent. of all property seized by the United States government in Washington, D. C., through the Alien Property Custodian acting under the Trading with the Enemy Act; that under said contract the plaintiff, Perry, was to perform certain services in connection with the recovery and release of said property so seized, and also other services.

(b) That in order to definitely set the figures of the money thus to be paid, Knoke executed a series of promissory notes dated July 16, 1921, amounting to $3,200, of which the sum of $2,700 remains unpaid, and that by reason of the contract and notes Knoke became liable and bound and obligated himself to pay to the plaintiff the sum of money in said notes provided.

(c) The petition then pleads the letter of date September 14, 1923, copied under "3" above of our statement of the claim filed with the administrator, and then pleads that in said letter Ernst Knoke acknowledged that Perry had fulfilled all of his contractual obligation towards him, and directed that the 5 per cent. guaranteed commission be paid plaintiff, which plaintiff alleges is a balance of $2,700.

(d) That the letter was delivered to Perry in consideration of the performance of his part of the services which he had contracted to perform for Knoke, and that said sum is now due and payable, etc.

(e) Perry then pleads the death of Knoke, the probate of his last will in Comal county, Tex., qualification of the administrator, and the presentment and rejection of his claim.

(f) Perry then pleads that all of the property of Ernst Knoke, deceased, at the time the contract was made and at the time the suit was filed, was in the hands of the United States Alien Property Custodian. The amount and value of such property is not alleged:

(g) Perry then finally pleads as follows: "Plaintiff says that said claim as represented by said notes in the sum of $2,700.00, of which $2,000.00 is represented by two notes each in the sum of $1,000.00, payable to Charles Perry on demand; $500.00 by one note, and $200.00 by two notes, each in the sum of $100.00, payable in like manner as said other notes; that said letter or order dated September 14th, 1923, was given in confirmation, recognition and renewal of the obligation represented by said notes for the aggregate sum of $2,700.00; that said sum is still due and unpaid and is due plaintiff, the legal and equitable owner and holder of said notes."

(h) The claim filed with the administrator is attached to the petition as an exhibit and made a part thereof.

The prayer is for the establishment of the claim, together with legal interest, costs of suit, and for general and equitable relief.

By trial amendment Perry pleaded that Knoke was a German citizen and was such during all the times involved in the transactions relating to this suit, and up to the date of his death; but that during all such time he actually resided in the Republic of Mexico, where all the transactions between them occurred. Plaintiff then alleges that prior to the expiration of four years after the execution of the note here sued on, to wit, on July 1, 1925, he made a trip to Mexico to see Knoke, and at such time found him ill mentally and of unsound mind, and that such condition remained unchanged until his death, in 1926. It is then alleged that on account of such fact the statute of limitation did not run against the plaintiff.

The trial amendment then alleges that if plaintiff is mistaken about Knoke's mental condition not suspending the statute of limitation, the letter of date September 14, 1923, above set out, constituted an original and new obligation of Knoke, and was given in full consideration of the performance by Perry of the services contracted, and fully performed, and that by reason of said letter defendant is bound and obligated to pay plaintiff the compensation contracted for in the sum of $2,700, etc.

Perry also filed a supplemental petition which contains a general demurrer and certain special exceptions to the administrator's answer, and then pleads certain matters not necessary to particularly notice here, but which will be considered further along in this opinion.

The answer of the administrator will not be detailed here. It is enough to say that it is sufficient to raise all questions which we later discuss in this opinion.

By proper assignments the administrator contends that the contract made the basis of this suit is void, because in violation of certain provisions of the act of Congress known as the "Trading with the Enemy Act" (50 USCA Appendix § 1 et seq.).

The original contract made the basis of this suit was entered into in the Republic of Mexico between Knoke, a German subject, then residing in Mexico, and Perry, also a German subject, residing in the United States and in the state of Texas. The original contract, including the instruments alleged to be notes, was entered...