Cotulla v. Urbahn

• Decision Date: 29 March 1911
• Citation: 135 S.W. 1159
• Parties: COTULLA v. URBAHN.
• Court: Texas Supreme Court

135 S.W. 1159

COTULLA v. URBAHN.

Supreme Court of Texas.

March 29, 1911.

Error from Court of Civil Appeals of Fourth Supreme Judicial District.

Action by Albert Urbahn against Joseph Cotulla. From a judgment of the Court of Civil Appeals (126 S. W. 13) affirming a judgment of the District Court for plaintiff, defendant brings error. Reversed and judgment rendered for defendant.

See, also, 126 S. W. 1108.

A. Winslow and Gregory, Batts & Brooks, for plaintiff in error. Atlee & Atlee and Wm. Aubrey, for defendant in error.

RAMSEY, J.

The original petition in this case was filed in the district court of Webb county on October 21, 1907. It declared on a note executed by Cotulla payable to Albert Urbahn for the sum of $4,152.50, dated December 29, 1898, and due on or before February 10, 1899; said note containing provisions as to interest and attorney's fees not necessary to be here set out. By answer filed March 14, 1908, plaintiff in error demurred to said petition on the ground that said note was barred by the statute of limitation of four years. On November 11th thereafter, defendant in error filed his first supplemental petition, in which he averred that the debt sued on was not barred by limitation for the reason that the maker thereof had within four years from the filing of his original petition, to wit, on the 15th day of February, 1905, "by written instrument duly signed by himself acknowledged such debt to be just, and expressly promised to plaintiff in such written instrument to pay same." Plaintiff in error excepted to this supplemental petition, because, among other things, it did not allege the substance of such written promise nor set out same by its terms. Thereafter, on November 16th, the defendant in error filed what is termed his first amended supplemental petition, in which he set up for the first time the following letters addressed to the Milmo National Bank of Laredo, Tex., which it was averred had and held the note sued on for collection:

                          "Cotulla, Texas. Dec. 9, 1904
                

"Milmo National Bank. Laredo, Texas— Dear Sir: Kindly let me know if you can wait until Jan. the fifteenth. I am corresponding with a party about sale of my land and will know by Jan. the first if they take it if they do I will have $35000.00 dollars and will settle at once if not will sell my cattle and settle about February the first I am sorry I kept you waiting so long but parties that I saw promised me money and then went back on their word and of course I couldn't keep my word with you. But I will pay you as soon as I can. Let me know by Sunday mail if you can wait as I am going away Monday to be gone a week. I remain yours truly, Joseph Cotulla."

                          "Cotulla, Texas. Jan. 27, 1905
                

"Milmo National Bank. Laredo, Texas— Gentlemen: I am called to San Antonio on account of my brother-in-law illness he was injured from being thrown from a buggy and is in a critical condition as soon as I can I will have everything fixed up and send to you hoping this will be all right, I remain yours truly, Joseph Cotulla."

                           "Cotulla, Texas, Feb. 11, 1905
                

"Milmo Nat. Bank. Laredo, Texas—Gentlemen: I have returned from San Antonio have made arrangements and will send the money Monday or Tuesday. Joseph Cotulla."

                         "Cotulla, Texas. May 9, 1905
                

"Milmo Nat. Bank. Laredo, Texas—Gentlemen: Was delayed with cattle they left Sunday and as soon as I get returns from them will send money. Yours truly, Joseph Cotulla."

Finally, on May 12, 1909, defendant in error filed his first amended original petition, which purports to amend and refers to his original petition, in which in proper form he sets up the original notes and the several letters hereinbefore copied. This petition was excepted to for the reasons (a) that the demand claimed to be evidenced by the letters pleaded was itself barred by the statute of limitation of four years; and (b) because there was nothing in the letters which showed that plaintiff in error ever promised to pay the note sued on in this case or any part thereof, and that said letters neither refer to the note here sued on nor state any fact or circumstance that could be construed as a promise to pay same. He further pleaded, among other things, that the letters aforesaid referred to a certain note in the sum of $4,000, which he owed at that time to the Milmo National Bank of Laredo, and to no other or different indebtedness. This demurrer being overruled, the case went to trial before the court with the assistance of a jury. On such trial defendant in error introduced the note sued on, the amount and date of which we have given, which note was credited with the sum of $525 as of date April 26, 1900. He also offered the four letters above set out.

The plaintiff in error testified in his own behalf, in substance, to the effect that all these letters related and referred to the $4,000 due the bank, which was then due, on which he had theretofore been sued, and that they had no reference to the note here involved, and that he had "never heard anything of the note sued on in this case from the time I executed and delivered it to Mr. Albert Urbahn until I was served with a citation in this suit, and did not have this note in my mind at the time I wrote any of the letters to the Milmo National Bank, and did not intend by writing any of these letters to promise to pay the note sued on in this case." He also produced a receipt by L. R. Ortiz, sheriff of Webb county, dated July 7, 1905, for $1,588.18 in full payment of an execution issued, on a judgment in favor of said bank against him, on May 9, 1905, as well as a letter from the sheriff stating that he had canceled a chattel mortgage given by him for the security of the bank's debt. In further confirmation of his contention, he offered in evidence certified copy of the bank's petition filed September 1, 1904, in which the note to the bank for $4,000 was set out in hæc verba. He also produced and tendered as evidence the following letter from the bank: "The Milmo National Bank, Laredo, Texas, April 20, 1905. Mr. Joseph Cotulla, Cotulla, Texas—Dear Sir: Your note for $4,000.00 is due and payable at this bank today and prompt attention to payment or renewal of same is requested. Respectfully yours, M. T. Cogley, Cashier." In rebuttal Mr. M. T. Cogley, cashier of the bank, gave evidence to the effect, in substance that the note here in suit was placed in the hands of the bank about the time of its execution for collection, and so remained until about the time suit was brought; that about the time of its maturity plaintiff in error was notified; and that he was sure he received the notice. He identified the letters above referred to, and repeated that on these several dates the bank held the note for collection; that Cotulla authorized and had knowledge of the credit of $525 on the note; and that he had several times since said credit spoken to plaintiff in error concerning the note. He also said: "These letters were general and referred to all claims which the Milmo National Bank held for collection against Mr. Cotulla." He admitted that the $4,000 note due the bank had been sued on, but was unpaid at the time the letters were written.

In response to special issues, the jury found (1) that the Milmo National Bank held the note sued on herein for collection at the date of the several letters admitted in evidence; (2) that the plaintiff in error had been notified and knew prior to writing said letters that said note was held by the bank for collection; and (3) that the letters in question referred to the indebtedness due A. Urbahn as well as the indebtedness due the bank. On these findings the court rendered judgment in favor of Urbahn against plaintiff in error in the sum of $8,675.99, besides costs of suit. This judgment was by the Court of Civil Appeals for the Fourth Supreme Judicial District affirmed on February 5, 1910, and is now before this court on writ of error for review and revision. We have made this full statement of the case to render clear the only two questions which we deem it necessary to discuss.

1. The first question, among those apparently most relied on, is that, since more than four years had intervened between the date of the last letter relied on to relieve the debt from the bar of the statute and the date of the filing of the defendant in error's first amended original petition, in any event, the cause of action is barred, and that this bar will not be relieved against by the supplemental petitions filed before the expiration of four years from the date of such new promise. We think it cannot be doubted that the decision of this court in Howard & Hume v. Windom, 86 Tex. 566, 26 S. W. 483, is squarely opposed to this contention. In that case, as in this, the allegations of a new promise were first presented in a supplemental petition. An exception to this being sustained because not proper matter to be thus pleaded, the plaintiff in that suit filed an amended original petition alleging the same facts. It thus appeared that the action at least as to one of the letters there pleaded was barred "unless the running of the statute was suspended by the filing of the supplemental petition." Discussing this question, the court say: "It is earnestly insisted on behalf of defendant in error that because the promise contained in that letter was not pleaded in its proper place, and because that pleading was stricken out upon exception, it should be treated as of no effect for any purpose, and that the promise should be deemed as having been set up for the first time in the amended original petition. But in this conclusion we do not concur. The supplemental petition, as it is named, contains all the substantial averments of a petition upon a new promise, with an appropriate prayer for relief; but does not contain all of the formal allegations required by the statute and rules of this court, either for an original or...