Coles v. Kelsey

• Decision Date: 31 December 1847
• Citation: 2 Tex. 541
• Parties: JOHN P. COLES v. CHARLES KELSEY
• Court: Texas Supreme Court

2 Tex. 541

JOHN P. COLES

v.CHARLES KELSEY

Supreme Court of Texas.

December Term, 1847.

Appeal from Washington County.

A peremptory exception cannot be received after answer.

The practice of filing pleas at different times after the answer has been filed, without first obtaining the leave of the court, is an irregularity not to be sanctioned. [5 Tex. 255;11 Tex. 253;14 Tex. 490.]

If a cause of action appears on its face to be barred by the statute of limitations at the commencement of a suit, and the plaintiff relies upon a subsequent promise to remove the bar, he must allege that promise in his petition as the foundation of his action, and set out the original cause of action only as the consideration for the subsequent promise. [9 Tex. 73;30 Tex. 102.]

If the petition shows on its face that the cause of action was barred at the commencement of the suit, the defendant need not plead the statute in bar, but may avail himself of it under exceptions or demurrer. [4 Tex. 422;5 Tex. 391.]

A replication to a plea of the statute of limitations setting up a subsequent promise to remove the bar is bad, if it appear on the face of the petition that the action was barred at the commencement of the suit, because it is setting up a cause of action other than that upon which he relied when he brought his suit.

It is of no importance whether the subsequent promise was made before or after the bar was complete under the statute. If the plaintiff relied upon the subsequent promise to remove the bar, in either case he must declare upon that promise in his petition.

A subsequent promise to remove the bar of the statute must not only contain an acknowledgment of the debt, but it must express a willingness to pay it.

A letter containing the acknowledgment of a debt and a promise to pay will be construed to have been intended to apply to the debt upon which the suit is brought, it existing at the time, in the absence of proof of any other transaction between the parties to which the letter might have applied.

All the important facts adjudicated in this cause being stated in the opinion of the court and the dissenting opinion, the reporters deem it unnecessary to give a farther statement of them here.

Webb, for appellant.

J. Willie, for appellee.

Mr. Justice LIPSCOMB delivered the opinion of the court, Mr. Justice WHEELER dissenting.

The appellee filed his petition against the appellant in the district court of Washington county on the 11th day of May, 1846, in the following words, i. e.: “To the honorable the judge of the third judicial district: The petition of Charles Kelsey to your honor showeth that John P. Coles, of the county aforesaid, on the 4th day of March, A. D. 1840, executed his certain promissory note in the words and figures as follows, to wit:

‘Washington, 4th March, 1840. Two years after date I promise to pay Charles Kelsey, Esq., or order, fifteen hundred dollars, for value received.

+-------------------------+
                ¦(Signed)¦JOHN P. COLES.' ¦
                +-------------------------+
                

And on the same day the said John P. Coles executed his certain other promissory note in figures and words as follows, to wit:

‘Washington, 4th March, 1840. Twelve months after date I promise to pay to Charles Kelsey, Esq., or order, fifteen hundred dollars, for value received.

+-------------------------+
                ¦(Signed)¦JOHN P. COLES.' ¦
                +-------------------------+
                

On which last aforesaid promissory note is the following indorsement, to wit: “Pay to the order of James E. Kelsey, signed Charles Kelsey -- James E. Kelsey.” And your petitioner alleges that he is the owner and holder of both of the said promissory notes, the latter note being transferred as aforesaid, by indorsement. By means whereof the said John P. Coles has become liable to pay to your petitioner the sums of money expressed in the two promissory notes, with interest from the time they became due, to wit: upon the first of said notes from the 4th day of March, 1842, and on the last from the 4th day of March, 1841. Yet the said John P. Coles, though so indebted and liable as aforesaid, has not paid said amount or any part thereof, by which failure to pay, as the said Coles is bound by the terms of said notes, your petitioner is damaged in the sum of four thousand dollars; therefore he brings his suit, and prays that the said John P. Coles be summoned to appear at the next term of your honorable court, and that your petitioner may have judgment for his debt, damages and cost, and as in duty bound, etc.

(Signed) J. WILLIE, Att'y for Plaintiff.”

On which petition summons issued on the 16th day of July, 1846. On the 3d of December of the same year, the following answer was filed, i. e.:

“And now comes the said John P. Coles, by attorney, and for answer says that the causes of action mentioned in the plaintiff's petition did not accrue or arise at any time within four years next preceding the commencement of the suit or the filing his said petition, nor did he, the defendant, at any time within four years before the commencement of suit, promise or assume to pay the promissory notes mentioned in said plaintiff's petition, or either of them, and this he is ready to verify, etc.

(Signed) WILLIAMSON & WEBB, for Defendant.”

There were several other pleas filed, as appears upon the record, some ten or twelve days after the above, but by what authority does not appear. There does not appear to have been leave given by the court to amend, and the first of them is a peremptory exception, which could not be received after answer; they will not, therefore, be noticed, further than to take the occasion to remark that the practice of filing pleas at different times, and after the answer has been filed, without first obtaining the leave of the court, is an irregularity not to be sanctioned, and calculated to perplex and leave it uncertain whether such pleas were received and went to the jury or not. When the case went to the jury, after the plaintiff's counsel had read his petition, and the defendant's attorney his pleas, the plaintiff's attorney read the notes sued on; he then called a witness and proved the handwriting of the defendant to the signature of a letter addressed to the plaintiff, dated 13th May, 1842, which letter he read to the jury as evidence The letter is in substance, so far as material:

That he was sorry that it was not in his power to have done anything for the plaintiff up to that time. That every exertion will be made on defendant's part to pay plaintiff as soon as he can; that defendant has been engaged in settling a farm on the Brazos, which was found to be a laborious business, and from which nothing had been realized, but that there was a prospect of a fine crop that year; that there is no money in the country; that the bills in circulation are doubtful and many of them valueless, and when offered that it was not known whether they ought to be received or not. He hopes to be able to make a payment that winter; that war with Mexico had again commenced, unknown to what extent the injury may be from it; everything dull; land not selling, except a small tract occasionally on time.

There was a verdict for the plaintiff for the amount of the notes, and interest. The defendant made a motion for a new trial, on the ground that the verdict was contrary to law and evidence, which was overruled by the court, and the defendant appealed.

The appellant mainly relies on one ground for reversing the judgment of the court below. That the court erred in permitting the letter from Coles to Kelsey to go to the jury.

The most important points presented by the record are: Was the subsequent acknowledgment, supposed to be contained in the letter of the appellant to the appellee, evidence under the state of the pleadings in this case? And secondly, was the letter a sufficient acknowledgment, under the statute, to take the case out of its operation? We will take up the questions in the order they have been here presented. It is important to examine how this question would be disposed of under the decisions made in the common law courts, and, as our statute is not materially different from the English statute of 21, James I, chap. 16, sec. 3, only ours providing for the bar intervening at the expiration of four years, and the English six, from the accrual of the cause of action, to inquire how the statute was taken advantage of in the courts of England, it will be more necessary to look into these authorities, because the statute of most of the states has been borrowed from the statute of James, and the decisions of the courts in those states have followed the English authorities.

In the 2d Saunders, 63, note 6, on the case of Hodsden v. Harridge, we find the following remarks by Sergeant Williams: “And indeed at first it was not considered necessary for the defendant to plead this statute; for in Trinity term, 4 Corolus, 1, which was soon after the making of the act, a motion was made in arrest of judgment in assumpsit, that the promise was alleged in the declaration, to be made beyond the time limited by the statute, and all the court held, that if it appear by the plaintiff's own showing that the action was not brought within the time limited by the statute, he cannot maintain his action; or if the contract in assumpsit or debt be alleged to be within the time, but on non-assumpsit or nil debet, pleaded, it appears in evidence that the contract was beyond the limited time, the action lies not and the defendant shall take advantage thereof, if it be specially found by the jury; for the statute is in the negative, “that he shall not maintain such action but within the time limited by the statute.” Croke Car. 115, Brown v. Hancock, and in the cases of Freeman v. Stacy, and Shewin v. Cartright, Hut. 109. It was so holden on special verdict.”

The same objection having been made in a subsequent case, the court was equally divided upon it, Jones and Whitlock, justices, being of opinion...