Moore v. Dilworth
| Decision Date | 26 January 1944 |
| Docket Number | No. 8178.,8178. |
| Citation | 179 S.W.2d 940 |
| Parties | MOORE v. DILWORTH. |
| Court | Texas Supreme Court |
J. W. Ragsdale, of Victoria, O. F. Burney, of Floresville, Looney & Clark and Everett L. Looney, all of Austin, for plaintiff in error.
DeWitt Murray, of Floresville, Miller & Miller, of Gonzales, and Coleman Gay, of Austin, for defendant in error.
On January 17, 1938, John W. Moore sued C. E. Dilworth on a promissory note in the principal sum of $22,500, executed by Dilworth and payable to Moore. Such note bears date January 18, 1931, and was due three years after date. Dilworth answered, and pleaded as a defense to this note his discharge in bankruptcy. Moore then filed an amended petition, in which he alleged that he did not file his note as a claim in the Dilworth bankruptcy proceeding because Dilworth, while such proceedings were pending, and before he was discharged, promised him, Moore, that if he, Moore, would not file such note as a claim in the bankruptcy proceedings, he, Dilworth, would pay same. Also, Moore pleaded that after Dilworth was discharged in bankruptcy he often, in the years 1935, 1936, and 1937, promised that he would pay the note. Dilworth replied to Moore's pleadings, and again pleaded his discharge in bankruptcy and pleaded the two year statute of limitation. Trial in the district court resulted in a judgment for Moore. This judgment was reversed by the San Antonio Court of Civil Appeals and judgment rendered for Dilworth. 173 S.W.2d 191. Moore brings error.
We are in accord with the holding of the Court of Civil Appeals to the effect that any cause of action Moore may have had against Dilworth on Dilworth's promise to pay this note, made prior to Dilworth's discharge in bankruptcy, was barred by the two year statute of limitation at the time this suit was filed [Vernon's Ann.Civ.Stats. art. 5526]. In this connection, this record shows that Dilworth's discharge occurred on April 13, 1934, and this suit was originally filed on January 17, 1938.
The only evidence contained in this record touching any promise by Dilworth to pay this note, made after bankruptcy, is contained in the testimony given by Moore. He testified that on several different occasions, between the time when Dilworth was discharged in bankruptcy, which was April 13, 1934, and the time when Dilworth sold his home, which was in 1938, Dilworth orally told him that he would pay this note. When Moore was pressed to give the time, or times, when these promises were made, he absolutely failed to even indicate any particular year. In regard to this matter we quote as follows from the Q. and A. transcript of his evidence:
The evidence in this case shows that Dilworth sold his home in 1938. In regard to what occurred between Moore and Dilworth after Dilworth sold his home, we quote as follows from Moore's testimony in the Q. and A. statement of facts:
The opinion of the Court of Civil Appeals in substance holds that Moore's testimony is insufficient in law to establish a legally enforcible oral promise on the part of Dilworth to pay this note, made after Dilworth's discharge in bankruptcy. We are in accord with this holding. When we come to examine Moore's testimony, we find that he absolutely fails to fix any time, or approximate time, when Dilworth made any promise or promises to pay this note. Under Moore's testimony such promise or promises could have been made at any time during some three or four years. Moore has no legal claim against Dilworth unless Dilworth made a legally enforcible contract to pay this obligation after he was discharged in bankrnptcy. The burden was on Moore to prove such a contract. Certainly no...
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