Leigh v. Linthecum
| Decision Date | 30 April 1867 |
| Citation | 30 Tex. 100 |
| Parties | WILLIAM LEIGH v. BYRD LINTHECUM. |
| Court | Texas Supreme Court |
The 12th section of the statute of limitation reads as follows: “When an action may appear to be barred by a law of limitation, no acknowledgment of the justice 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.” Pas. Dig. art. 4617 a, note 1027 a.
If the new promise be conditional, or depends upon facts to be settled, the plaintiff must prove a compliance with such condition, or the happening of the events upon which he relies. And if the promise is based upon a settlement of accounts between the parties, he must aver and prove such settlement or the true state of the accounts.
ERROR from Rusk. The case was tried before Hon. CHARLES A. FRAZER, one of the district judges.
This suit was brought by the plaintiff in error against the defendant in error, upon a note executed by the latter to the former, on the 8th February, 1841, and upon a supposed acknowledgment of the justice of and promise to pay the claim, made on 15th March, 1854. The suit was instituted on 1st March, 1858. The acknowledgment relied on to take the claim out of the statute of limitation was contained in a letter written by the defendant to one James J. Peters, and is in the following language, viz.:
The defendant demurred to the petition, and specially excepted, first, that the acknowledgment was not sufficient to take the demand out of the operation of the statute of limitation; second, that the acknowledgment was conditional and contingent; third, that the demand was barred by the statute of limitation of four years. He also plead the general issue, and substantially the same matters as those embraced in his exceptions.
The only evidence adduced upon the trial was the note and letter above mentioned, and an acknowledgment of the defendant that the note described in the petition is that referred to in the letter from the defendant to Peters. At the spring term, 1859, of the district court of Rusk, the parties waived a jury, and submitted the case upon the law and facts to the court. The court gave judgment for the defendant, and the plaintiff brought this writ of error.
Armstrong & Parsons, for plaintiff in error. The statute of limitation is the only question in this case.
We think it clear, that the acknowledgment contained in this letter brings this case within the scope of the true intent and meaning of the 12th section of the act of 5th February, 1841 (O. & W. Dig. art. 1453), and within the rule laid down in the cases of Webber v. Cochrane, 4 Tex. 31, and Coles v. Kelsey, 2 Tex. 541, and consequently takes the case out of the operation of the statute of limitation. No form of words is necessary to create an acknowledgment of this kind (Story, Con. § 1015 a), nor is it necessary that any specific sum should be acknowledged to be due. Story, Con. § 1014.
William Stedman, for defendant in error. It is well settled, that an acknowledgment of the justice of a demand, to have the effect to take a case out of the operation of the statute of limitation, “must contain an unqualified admission of a subsisting indebtedness.” “It must show positively that the debt is due, either wholly or in part, and must be unqualified.” Smith v. Fly, 24 Tex. 353;Mitchell v. Clay, 8 Tex. 443. The case of Sutton v. Burrass, 10 Leigh, 381, is a very strong one.
This action may be held as being founded on the letter of the 15th of March, 1854,...
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Robertson v. Warren
...the Supreme Court. Coles v. Kelsey, 2 Tex. 541, 47 Am. Dec. 661; State v. Williams, 14 Tex. 102; Grayson v. Taylor, 14 Tex. 675; Leigh v. Linthecum, 30 Tex. 100; Riggs v. Hanrick, 59 Tex. 570; Heisch v. Adams, 81 Tex. 97, 16 S. W. In the absence of any evidence as to what was in the origina......
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Rappmund v. Zaiontz, 1973.
...and effect it would be like resting a presumption upon a presumption. We agree with the appellee that the opinion in William Leigh v. Byrd Linthecum, 30 Tex. 100, 101, is most nearly, if not in fact in point in this case. The letter relied upon in that case to toll the statute of limitation......
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... ... Kelsey] 2 Tex. 544 [47 Am. Dec. 661]; [Mitchell v. Clay] 8 Tex. 443; [Salinas v. Wright] 11 Tex. 576; [McDonald v. Gray] 29 Tex. 84; [Leigh v. Linthecum] 30 Tex. 100; [Ex parte Towles] 48 Tex. 420." The doctrine so declared has since received no modification in this state, so far as we ... ...
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