Lange v. Carothers

• Decision Date: 15 May 1888
• Citation: 8 S.W. 604
• Parties: LANGE v. CAROTHERS.
• Court: Texas Supreme Court

8 S.W. 604

LANGE v. CAROTHERS.

Supreme Court of Texas.

May 15, 1888.

Appeal from district court, Milam county.

Heffley & Wallace, for appellant. Ford & Ford, for appellee.

WALKER, J.

November 1, 1886, Lange sued Carothers upon an open account for merchandise made in 1881 for $944.47. November 22, 1886, the case was tried before the judge. The account was proved as alleged. In order to take the account out of the statute of limitations, the plaintiff read in evidence the following letter: "THORNDALE, TEX., November 14, 1882. Messrs. Focke, Wilkins & Lange, Galveston, Tex. — GENTLEMEN: Yours of the 11th inst. to hand, and contents noted. In reply I can only say that I am not at present able to pay anything. I am not in any business at present, and in fact have done nothing to make any money since I was closed up. I have studied matters over thoroughly, and have concluded to make you this proposition: I have a suitable house, and in a good location for a country store, and in the center of my old customers, to whom I sold about $1,000 to $1,200 per month while I was in business before. A number of them have insisted on me trying to open up a small stock here, about six miles from Thorndale. Now, if you gentlemen see fit to investigate this matter, and if it should prove satisfactory, and you have a mind to furnish me $1,000 worth of goods, and give me time, I can pay you up in 12 to 15 months. I will go into any kind of an agreement to make you secure. I will run the business in your name, or any other name that would be agreeable to yourselves or me, until you are paid, or satisfactory arrangements are made otherwise. I will agree, further, to deposit all proceeds of sales to your credit at the Rockdale Bank, subject to your drafts, reserving only the right to appropriate a small portion of the profits only, — say a salary for my individual expenses, as, of course, I must live. I could not expect to do much business for a short while; but, as soon as the thing got thoroughly advertised, I am sure I can sell a good many goods. The nearest stores are: One north, 6 miles, one south, 6 miles, Rockdale, 15 miles east, and Taylor, 16 miles west, of me. A good farming country all around me. For reference as to my character and habits, I give you Mr. J. W. Hamblin, W. F. Fokes, Mr. Wm. Bange; post-office, San Gabriel, Milam county, Tex. These gentlemen can also tell you what my prospects would be for a business here. I will also say that the Rockdale Bank folks can tell you the character of the above parties I have referred you to, as also can almost any of Rockdale merchants. I will also refer you to the firm of Hudson, Watson & Co., of Burnet, Burnet county, Tex. This is all the way I see to pay you any way soon, as I have literally nothing; and unless I can get up something of the kind I will be obliged soon to hire myself for a salary. Let me hear from you at once; and, of course, if the thing does not suit you, you have only to say so. I will, if I am ever able, pay you; but the prospects are gloomy now. I have been unfairly dealt with, or I would not now be in the position I am; and I am sorry to say my brother, who ought to have stood with me,...