House of Falcon, Inc. v. Gonzalez, 1435
Decision Date | 13 June 1979 |
Docket Number | No. 1435,1435 |
Citation | 583 S.W.2d 902 |
Parties | HOUSE OF FALCON, INC., Appellant, v. Jose H. GONZALEZ et al., Appellees. |
Court | Texas Court of Appeals |
House of Falcon, Inc. sued Jose H. Gonzalez, Lillie A. Gonzalez and Bego Enterprises, Inc. for royalty payments which purportedly accrued on an open account after the reproduction of certain musical compositions. Defendants denied these allegations and further asserted that the statute of limitations barred the plaintiff's claim. Recognizing that the limitations period for its claim had run, the plaintiff contended that the defendants had later acknowledged the barred debt; that the plaintiff was a third party beneficiary of a contract between the defendants and third parties; and that plaintiff could bring this action as the assignee of the same third parties' right to sue the defendants. The case was submitted to the trial court without a jury on an agreed statement of facts. The trial court found that the limitations defense did bar the appellant's cause of action and entered a take nothing judgment against the plaintiff. See Tex.Rev.Civ.Stat.Ann. art. 5526(5) (1958). Plaintiff appeals. We affirm.
The agreed statement of facts indicates the following facts and circumstances. Ramms Music Company was a division of House of Falcon, appellant. Ramms began licensing Bego Enterprises, Inc., sometime prior to January 1, 1969, to publish certain musical compositions. During the period from January 1, 1969, to October 4, 1970, Bego reproduced several compositions and consequently publisher royalties accrued to Ramms on an open account. The royalties were due on or before thirty days after the termination of each quarter of the year for records produced during that quarter. The parties agreed that the unpaid royalties for the period from January 1, 1969, through October 24, 1970, amounted to $7,500.00.
On November 17, 1970, the appellees sold all of the assets of Bego Enterprises, Inc. to Royalco International Corporation and Arnoldo Ramirez. Section 2(f) of the contract for the sale between appellees and Royalco provided:
The present cause of action was filed on November 6, 1974, and the plaintiff's original petition was thereafter amended several times. Then in March of 1975, Royalco assigned to House of Falcon all rights and causes of action it had against the appellees under the contract of November 17, 1970, in consideration for, among other things, the House of Falcon's agreeing to refrain from suing Royalco for royalties due. Subsequently, in March of 1976, House of Falcon purchased all the assets of Royalco.
House of Falcon made numerous demands upon the appellees for payment of the royalties due, but all were refused. The trial below and appeal here followed.
Appellant brings forward four points of error. In its points 1 and 2 appellant contends its cause of action was not barred by limitations because section 2(f) of the November 17, 1970, agreement between the appellees and Royalco was an acknowledgment of the debt appellees owed to House of Falcon for certain accrued royalties.
Tex.Rev.Civ.Stat.Ann. art. 5539 (1958) provides:
"When an action may appear to be barred by a law of limitation, no acknowledgment of the justness of the claim made subsequent to the time it became due shall be admitted in evidence to take the case out of the operation of the law, unless such acknowledgment be in writing and signed by the party to be charged thereby."
In connection with this statute, where a debtor acknowledges in writing the justness of a creditor's claim, the creditor may bring suit on this new promise evidenced by the written acknowledgment. Allied Chemical Corp. v. Koonce, 548 S.W.2d 80, 81 (Tex.Civ.App. Houston (1st Dist.) 1977, no writ).
In order for a written instrument to be sufficient to take a debt, otherwise barred, out of the operation of the statute of limitations under Article 5539 it must contain two elements; namely, an unequivocal acknowledgment of the justness of the claim, and an expression of a willingness to pay. Mullens v. Bailey, 374 S.W.2d 455, 457 (Tex.Civ.App. Corpus Christi 1964, no writ). And, where the party sought to be charged with acknowledging a debt clearly acknowledges the existence of the debt against him, it is implied that he promises to pay the same. Stein v. Hamman, 6 S.W.2d 352, 353 (Tex.Comm'n App.1928, opinion adopted); Trautman Bros. Inv. Corp. v. Del Mar Conserv. Dist., 440 S.W.2d 314 (Tex.Civ.App. Waco 1969 writ ref'd n. r. e.). See 30 Baylor L.Rev. 153 (1978).
In addition to the above requirements, there are further requirements of form. First, the acknowledgment must in some way refer to the obligation or there must be introduced parol evidence that the statement was intended to acknowledge the debt being sued upon when the evidence indicates more than one debt is owing to the creditor or that there were no other debts between the parties other than the one being sued upon. Cotulla v. Urbahn, 104 Tex. 208, 135 S.W. 1159 (1911); Martindale Mortg. Co. v. Crow, 161 S.W.2d 866, 871 ( ); Hutchings v. Bayer, 297 S.W.2d 375, 378 (Tex.Civ.App. Dallas 1956, writ ref'd n. r. e.). And, secondly, the amount acknowledged must be susceptible of ready ascertainment, though it need not be specified. Mandola v. Oggero, 508 S.W.2d 861 (Tex.Civ.App. Houston (14th Dist.) 1974, no writ); Hutchings v. Bayer, supra.
We find none of the aforementioned requirements has been met by the purported acknowledgment before us. First, we find no expression of a willingness to pay a particular debt. Secondly, section 2(f) of the contract is equivocal and does not specify or acknowledge any particular debt. It merely states that the seller will be responsible for the debts if incurred prior to October 24, 1970, and will indemnify the buyer for any liability, obligation, cost or expense related to any action for expenses incurred prior to October 24, 1970. It is no more than an apportionment of liability and indemnity clause between the parties.
A similar type indemnity provision was considered in Mandola v. Oggero, supra. There the...
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