Crispi v. Emmott

• Decision Date: 14 July 1960
• Docket Number: No. 13518,13518
• Citation: 337 S.W.2d 314
• Parties: J. G. CRISPI, Administrator of the Estate of Lloyd R. Day, Deceased, Appellant, v. A. V. EMMOTT, Appellee.
• Court: Texas Court of Appeals

Page 314

337 S.W.2d 314

J. G. CRISPI, Administrator of the Estate of Lloyd R. Day Deceased, Appellant, v. A. V. EMMOTT, Appellee.

No. 13518.

Court of Civil Appeals of Texas, Houston.

July 14, 1960.

Hill, Lowry, Lee & Koster, Ralph G. Koster, Houston, for appellant.

Clyde B. Meyer, Houston, for appellee.

WOODRUFF, Justice.

Appellee, A. V. Emmott, filed suit January 10, 1959 against J. G. Crispi, as Administrator of the Estate of Lloyd R. Day, to establish a claim for 937.75 alleged to be due on a $1,000 promissory note executed by Lloyd R. Day on December 29, 1953 payable to appellee on or before April 1, 1954. Appellee alleged extensions of the note, as hereafter stated. In a trial to the court without a jury, judgment was rendered in Emmott's behalf for $937.75 against Crispi as administrator and ordering that it be certified to the Clerk of the Probate Court. From this judgment the administrator has appealed. No findings of fact or conclusions of law were requested or made.

It was stipulated that Day died October 29, 1957 and on November 8, 1957 Crispi filed application to be appointed administrator of Day's estate. Crispi, having been appointed, qualified on February 2, 1958 by filing oath and bond, and on November 6, 1958 appellee filed his claim against Day's estate with Crispi as Administrator, who rejected it. Within 90 days Emmott filed this suit. See V.A.T.S., Probate Code, Sec. 313; Decedents Estates, Sec. 608, Vol. 14-A Tex.Jur., p. 570.

Omitting the formal allegations, appellee alleged in his petition:

'* * * Lloyd R. Day at the time of his death was justly indebted and owed the Plaintiff the sum of $852.50, same being the balance due, less a credit of $147.50, on that certain promissory note dated December 29, 1953, due on April 1, 1954, and extended on several occasions as more fully appears from the endorsement thereon to April 1, 1958, executed by the said Lloyd R. Day and payable to the order of this Plaintiff in Houston, Texas in the principal sum of $1,000.00, and which note providing for 10% as attorney's fees, all now aggregating the sum of $937.75, principal and attorney's fees, now past due and unpaid * * *.'

Attached to the petition was a copy of appellee's claim, accompanied by a photostatic copy of the note. On its reverse side under a column headed 'Credits' appears the notation, '12/31/54 (Principal) $147.50. (Received Payment) Credit for work not completed.' Under another column headed 'Endorsement' were the following handwritten notations:

'October 15, 1954 note and mtg. extended to April 1, 1955

April 10, 1955 extended to 4/1/56

April 5, 1956 extended to 4/1/57

April 8, 1957 extended to 4/1/58

These extensions are taken from my accts. Receivable ledgers of the Lloyd R. Day accts. (Tax Acctg System).'

Appellant Crispi, in addition to a general denial, answered by pleading in bar the four year statute of limitation, excluding the interval between Day's death and Crispi's qualifying as administrator.

After filing his answer, but before trial on the merits, appellant presented a motion for judgment on the pleadings, asserting the endorsements were taken from accounting records which constituted selfserving and unilateral attempts to extend payments on the note without any allegations of a valid consideration. The motion was overruled by the trial court and that ruling is assigned as appellant's first Point of Error.

In our opinion, the motion was properly overruled. Though Rule 90, Texas Rules of Civil Procedure, recites that defects in pleadings may be pointed out by motion or exception, it expressly provides that general demurrers shall not be used. Too, it is settled that special demurrers cannot be used to accomplish the purpose of a general demurrer. Maxwell v. Maxwell, Tex.Civ.App., 204 S.W.2d 32, n. r. e. It is equally clear, in our opinion, that Rule 90 does not contemplate the preliminary motion practice in lieu of a general demurrer. Gehrke et al. v. State of Texas, Tex.Civ.App., 315 S.W.2d 684; McDonald's Texas Civil Practice, Sec. 7.18, Vol. 2, p. 637.

Appellant's remaining five Points assign as error the action of the trial court in granting appellee judgment on oral extensions of the note without sufficient pleading or proof of any consideration or mutual agreement; in admitting in evidence over appellant's objections oral transactions between appellee and deceased Day in violation of Art. 3716, Vernon's Ann.Civ.St.; and in admitting entries from records which were neither properly qualified nor shown to be germane to such records.

Appellee Emmott was the only witness. Testifying in his own behalf, he stated he was in the bookbinding business. On December 29, 1953 he had a 'business transaction' with Mr. Lloyd R. Day, who did tax work as 'Tax Accounting System.' When he was asked, 'In the conduct of your business affairs with Mr. Day, did you have occasion to sell him any goods or commodities or furnish him any services?' Appellant objected because it involved a transaction with the deceased. The objection was overruled and Emmott was permitted to testify: 'He was publishing some tax books and we were putting the binding on them, furnishing the labor and material.' Upon Emmott's being asked, 'Now, were any arrangements made for credit or extension of credit at this time?' Appellant again objected and requested, 'May I have a continuing objection under the Dead Man's Statute?' Whereupon the court stated, 'Your objection to this question, Counsel, might be good, but I don't know about the next one. He just asked him if he had some arrangements with him.' The witness then answered, 'Yes, sir, we did.'

Appellee's counsel then asked, 'In connection with your arrangements about the extension of credit with Mr. Lloyd R. Day, I will ask you whether or not he gave you this note for the sum of $1,000.00?' to which Mr. Emmott answered, 'Yes, he did.' Again appellant objected, 'to the fact he gave him a note as a transaction with the deceased,' and was overruled. Mr. Emmott confirmed his 'counsel's' statement that the note was dated December 29, 1953, and was due in the sum of $1,000 'on or before April 1, 1954.' Upon being asked if any payment or credit was made on the note, Emmott stated, 'He gave me the not knowing exactly how much the work we were going to do would be. We approximated it at $1,000.00.' As to 'This $1,000.00' Emmott stated Day owed $852.50 because 'I gave him credit on the back of the note for $147.50 on December 31, 1954.' Appellee testified he handled the taking of the note. He, too, had made the entries thereon. After crediting $147.50, the balance due was $852.50 on December 31, 1954. No amount had been received thereafter. The note was made payable April 1, 1954 because the 'main part of Day's income was from income tax work between January 1st and March 15th.'

Appellee's counsel, addressing Mr. Emmott, then stated, 'I am going to show you this note and looking on the back under 'Endorsements' if you will tell us on the various days and dates on which you extended that note?' Mr. Emmott replied, 'On Oct. 15, 1954 the note was extended to April 1, 1955. On April 10, 1955 it was extended to April 1, 1956. On April 5, 1956 it was extended to April 1, 1957. On April 8, 1957, it was extended to April 1, 1958,' obviously reading from the endorsements on the back of the note. He said he made the endorsements 'personally.' At that point the court asked, 'You say endorsements?' Appellee's counsel explained, 'This writing on the back.' The court then queried, 'They constitute...