Mitchell v. Clay

• Decision Date: 01 January 1852
• Citation: 8 Tex. 443
• Parties: MITCHELL v. CLAY.
• Court: Texas Supreme Court

8 Tex. 443

MITCHELL

v.CLAY.

Supreme Court of Texas.

1852.

It is perfectly well settled that the acknowledgment of a debt, if accompanied with a promise to pay conditionally, is of no avail unless the condition be complied with or the event happen upon which the promise depends. (Note 87.)

An offer to pay a debt which is barred by the statute of limitations in specific articles is a conditional promise, and will not avail the creditor as an acknowledgment of the justice of the claim unless the offer be accepted within a reasonable time.

An acknowledgment of indebtedness in general terms will be held to apply to the particular debt sued on unless the defendant show there was another debt due from him to the plaintiff; subject to this qualification, the question of the application of the acknowledgment is for the jury to decide.

What is a reasonable time must depend upon the places of residence and the relative positions of the parties, their means of intercommunication, and the other facts and circum. stances of the case.

Error from Navarro. The appellee sued the appellant upon a bill of exchange barred by the statute of limitations, and relied on an acknowledgment in writing made within four years next before the commencement of the suit to take the case out of the operation of the statute.

The writing containing the acknowledgment relied on was set out in the petition, as follows:

“CHAMBERS CREEK, 26 th May, 1845.

To W. Y. MCFARLAND, Esq. DEAR SIR: I purpose letting Mr. Tacitus Clay have the following-described lands, in payment of a draft I let W. McCary have on Dr. Thomas Hunt, originally for $2,000: one-fourth of a league of the headright of Ann Maria Vaca, lying on Trinity, land and timber first-rate for this country; one-third of a league out of the headright of Wm. Cole, land and timber first-rate. The above I propose to take fifty cents per acre, or leave it to any disinterested person. One-third league on Richland, good land and timber, price as above. I refer you to B. J. Chambers, of Robertson county, for information respecting Trinity land.

+--------------------------------------+
                ¦Yours, respectfully,¦THOMAS J. SMITH.”¦
                +--------------------------------------+
                

The petition contained an averment that the plaintiff had been at all times ready and willing, and offering to accept this proposition agreeably to its terms, but that neither the deceased in his lifetime nor the defendant as his administrator would pay the said debt in money or land, though requested.

The defendant excepted to the legal sufficiency of the petition, and pleaded among other matters the statute of limitations. The exceptions were overruled.

On the trial Wilson Y. McFarland, a witness for the plaintiff, testified that he was employed by the plaintiff to collect the bill of exchange described in the petition; that he brought suit against the defendant's intestate, Smith, in the Robertson District Court; that he afterwards received the letter of Smith set out in the petition; that at the District Court of Robertson county, thereafter, he saw Smith, and offered to accept the proposition contained in the letter, with which the latter refused then to comply. Another witness also testified that he was present at a conversation between the plaintiff and the defendant Smith two or three years before the trial, (which was in September, 1849,) in which the plaintiff offered to receive payment of the debt in lands, but Smith refused his assent.

The court instructed the jury that “if they could rationally infer, from the facts stated in the letter declared upon by the plaintiff, that the defendant acknowledged the justness of the plaintiff's demand, they would find for the plaintiff, provided there were no other facts in the case to induce them to come to a different conclusion; and if they could not thus rationally infer such acknowledgment, they would find for the defendant.”

There was a verdict and judgment for the plaintiff.

Gillespie and Sayles, for plaintiff in error.

W. Y. McFarland, for defendant in error.

WHEELER, J.

It is perfectly well settled that the acknowledgment of a debt, if accompanied with a promise to pay conditionally, is of no avail, unless the condition to which the promise is subjected by the defendant is complied with or the event has happened upon which the promise depends. (Angell on Lim., 249.)

Where, to a demand of above six years'...