Holmes v. Thompson, 5--3890

• Decision Date: 09 May 1966
• Docket Number: No. 5--3890,5--3890
• Parties: Roddy HOLMES et ux., Appellants, v. Vance M. THOMPSON et al., Appellees.
• Court: Arkansas Supreme Court

Page 400

402 S.W.2d 400

240 Ark. 818

Roddy HOLMES et ux., Appellants, v. Vance M. THOMPSON et al., Appellees.

No. 5--3890.

Supreme Court of Arkansas.

May 9, 1966.

Ward & Mooney, Donald F. Seay, Jonesboro, for appellants.

Shaver & Shaver, Wynne, James F. Daughterty, Augusta, for appellees.

GEORGE ROSE SMITH, Justice.

This is a foreclosure suit brought by the appellee Vance M. Thompson and his trustee upon three promissory notes, each secured by a separate deed of trust. The defendants, Roddy Holmes and his wife, pleaded the five-year statute of limitations as a bar to all three notes. Ark.Stat.Ann. § 37--209 (Repl. 1962). The chancellor sustained the plea as to one note but rejected it as to the other two. The correctness of the latter holding is the issue here.

This suit was filed on August 7, 1962. One of the notes, for $600, was then barred on its face, for the due date of its last annual installment was December 1, 1954. In finding that this note was not barred the chancellor evidently concluded that its maturity date had been extended by agreement. There is no contention, however, that either debtor signed a written acknowledgment of the debt, by which the running of the statute would have been tolled. Ark.Stat.Ann. § 37--216; Burnett v. Turner, 105 Ark. 290, 151 S.W. 249 (1912).

Thompson testified that when Holmes made an interest payment in the fall of 1956 Thompson agreed to extend the due date of the note to December 15, 1957. Thompson states that he, at Holmes's insistence, then made this endorsement on the back of the note: 'Int paid to 11--1--56 and agreed to extend all payment to 12--15--57.' The oral extension agreement, which Holmes denies having made, is now relied upon to arrest the running of the statute.

We are unable to find any semblance of a valid consideration for the asserted agreement. All Holmes did was to make a payment of interest that was unquestionably long past due. We have repeatedly held that such a payment is not a sufficient consideration for a supplementary contract. An early statement of the rule appears in Killough v. Payne, 52 Ark. 174, 12 S.W. 327 (1889): 'The consideration of this promise was the payment by Edgar, Gage & Co. of an undisputed debt due from them to Killough & Erwin * * *; but the payment of a sum which one is already legally bound to pay is not a valid consideration for a contract.'

The principle was restated in Feldman v. Fox, 112 Ark, 223, 164 S.W. 766 (1914): 'If no benefit is received by the obligee except what he was entitled to under the original contract, and the other party to the contract parts with nothing except what he was already bound for, there is no consideration for the additional contract concerning the subject-matter of the original one.' Later cases to the same effect include Buchanan v. Thomas, 230 Ark. 31, 320 S.W.2d 650 (1959), and DeSoto Life Ins. Co. v. Jeffett, 210 Ark. 371, 196 S.W.2d 243 (1946). We must reverse that part of the decree which permits the enforcement of the $600 note.

The other note, for $2,141, presents a different question. That note was payable in five successive annual installments beginning December 15, 1956, and was therefore not barred on its face when the...