Hanley v. Oil Capital Broadcasting Ass'n

• Decision Date: 02 June 1943
• Docket Number: No. 8073.,8073.
• Citation: 171 S.W.2d 864
• Parties: HANLEY v. OIL CAPITAL BROADCASTING ASS'N et al.
• Court: Texas Supreme Court

171 S.W.2d 864

HANLEY v. OIL CAPITAL BROADCASTING ASS'N et al.

No. 8073.

Supreme Court of Texas.

June 2, 1943.

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

Action by James H. Hanley against the Oil Capital Broadcasting Association and another to recover attorney's fees for services rendered in obtaining a permit to construct and operate a radio station and other legal services rendered before the Federal Communications Commission. A judgment for plaintiff in part was affirmed by the Court of Civil Appeals, 167 S.W.2d 631, and plaintiff brings error.

Reversed and rendered.

Jack Flock and Craven Beard, both of Tyler, for plaintiff in error.

Frank Bezoni, of Tyler, for defendants in error.

BREWSTER, Commissioner.

On May 28, 1940, petitioner, James H. Hanley, a lawyer residing in Washington, D. C., sued respondents, Oil Capital Broadcasting Association and Roy G. Terry, for attorney's fees for services rendered in obtaining a permit to construct and operate Radio Station K O C A, at Kilgore, Texas, and for other legal services rendered before the Federal Communications Commission, from April 9, 1935, to January, 1940. Respondents answered with a general denial and a special plea that "many of the items sued for by the plaintiff show that such services * * * were rendered more than two years prior to the filing of this suit, for which reason the same is now barred by the two year statute of limitations."

The jury found that the services were rendered by Hanley as alleged, to the value of $1,763.60. However, they found that four items, of the value of $1,100, were performed more than two years before this suit was filed. The trial court rendered judgment in Hanley's favor for $663.60 but denied him recovery of the $1,100 because it "was barred by the two-year Statute of Limitations at the time of the filing of suit herein, and that there was no sufficient acknowledgment in writing by defendants herein to take said indebtedness out of the operation of said Statute of Limitations, and the pleadings are insufficient to sustain an issue of said items being sustained on written acknowledgment and promise to pay the same." On appeal of Hanley, this judgment was affirmed by the Court of Civil Appeals at Galveston. 167 S.W.2d 631.

Two questions are presented here, namely, (1) whether certain letters written by respondents were a sufficient "acknowledgment in writing," under Art. 5539, R.S. 1925, to render the two-year statute of limitation inapplicable to Hanley's demand, and (2) whether Hanley's petition was sufficient to present the issue of "acknowledgment in writing", under that article.

In the agreed statement of facts it appears that Hanley sent respondents several itemized statements of account, the first dated December 15, 1937, the last, November 1, 1939. After alleging the performance of his services and the sending of these statements, Hanley's petition alleges that under date of September 30, 1938, Terry wrote him as follows: "You are entirely right about lawyers needing something to sustain themselves and I have your name at the head of the list for a check for $100. Things have been pretty slow of late but I am quite sure I can make remittance very shortly. I appreciate your attention and time you have given the K F R O and other matters;" that on August 12, 1939, pursuant to Hanley's statement and request for payment, Terry again wrote him as follows: "Now regarding money matters, I am expecting and hope to settle some claims that I have in the very near future, which will enable me to liquidate the indebtedness of the station. In the meantime there is little I can do, however, I feel there is no doubt that I will make these settlements in mind shortly and that I shall be able to liquidate my obligations."

These letters appear in the agreed statement of facts.

Art. 5539, supra, has been the law in Texas, without amendment, since February 5, 1841. Gammel's Laws of Texas, vol. 2, p. 630. Naturally, the sufficiency of the acknowledgment "to take the case out of the operation of the law" has been written on many times. Our decisions seem uniformly to recognize that, although it does so result in some cases, it was never the purpose of the act to permit debtors to escape their obligations. Rather, the evil it sought to remedy "was to prevent demands originally invalid or which had been discharged from being enforced after such a lapse of time as would probably make it impossible for defendants to procure the evidence by which a just defense could be established." Therefore, the reason for the statute no longer exists when the defendant, within a short time before the suit is filed, has acknowledged the justness of the demand. Howard et al., Adm'rs, v. Windom, 86 Tex. 560, 26 S.W. 483. And, if the...