Gathright v. Wheat

• Decision Date: 25 May 1888
• Citation: 9 S.W. 76
• Court: Texas Supreme Court
• Parties: GATHRIGHT <I>v.</I> WHEAT.

9 S.W. 76

GATHRIGHT

v. WHEAT.

Supreme Court of Texas.

May 25, 1888.

Appeal from district court, Dallas county.

Action by I. B. Gathright against C. M. Wheat on a promissory note. A general demurrer to the complaint was sustained, and plaintiff appeals. The letter written by defendant, and referred to in the opinion, is as follows:

                                                          "DALLAS, TEX., March 27, 1885
                

"Mr. S. Dabrelle — My DEAR SIR: Yours of February 10th came duly to hand, and should have been answered sooner, and would have been but for that which has proved, at least in once sense, a curse to me; I mean hope. I have been encouraged to believe that I would get enough to relieve me of every obligation on earth from a certain source, and from that source not one cent have I had, and to-day I am sadly discouraged as to my ever getting more than a mere pittance, as I understand that litigation and costs have almost consumed all. I am here, and considerably behind, and about only one prospect, and that is now to sell my house, which I am endeavoring to do to relieve myself of pressing embarrassments. You have not been treated as I would want one to treat me, but my only excuse is positive inability to have done otherwise. I trust you may never be called upon to suffer what I have.

                       "Respectfully,                                   C. M. WHEAT."
                

M. G. Stirman, for appellant.

GAINES, J.

This suit was brought by appellant against appellee on a promissory note for $1,213.30, made by appellee on the 26th day of October, 1867 and payable one day after date, to one Samuel Dabrelle. The petition alleged the execution and delivery of the note to Dabrelle, and the transfer of the same to plaintiff, and also averred that, previous to the transfer, the defendant had written a letter to Dabrelle in which he acknowledged the justness of the debt, and promised to pay the same. The letter is, however, set out in the amended petition, and speaks for itself. It is dated a few months before the bringing of this action. A general demurrer was sustained to the petition, and, plaintiff declining to amend further, the suit was dismissed. We are of the opinion that the letter of the defendant to Dabrelle does not contain such an acknowledgment of the indebtedness, or such new promise, as to remove the bar of the statute of limitations. The most that can be said of it is that it does not deny that the defendant owes the debt, and does not express an unwillingness to pay....