Poe v. Poe

• Decision Date: 27 May 1938
• Docket Number: No. 1803.,1803.
• Citation: 118 S.W.2d 831
• Parties: POE v. POE.
• Court: Texas Court of Appeals

Page 831

118 S.W.2d 831

POE v. POE.

No. 1803.

Court of Civil Appeals of Texas. Eastland.

May 27, 1938.

Rehearing Denied July 8, 1938.

Appeal from District Court, Eastland County; B. W. Patterson, Judge.

Suit by Lillia A. Poe against S. N. Poe on an implied promise which allegedly arose from defendant's acknowledgment of the justness of a debt barred by limitations. Judgment for plaintiff, and defendant appeals.

Reversed and rendered.

Conner & Conner, of Eastland, for appellant.

Scott & Gilbert, of Cisco, for appellee.

GRISSOM, Justice.

Lillia A. Poe sued S. N. Poe upon an implied promise alleged to have arisen from an alleged acknowledgment by defendant of the justness of a debt barred by the statute of limitation, the barred debt being evidenced by a vendor's lien note dated February 3, 1913, due January 1, 1915. Plaintiff's original petition was filed June 22, 1936. The alleged acknowledgment of the justness of the barred debt was evidenced by a letter from defendant to plaintiff dated January 3, 1936. Defendant's answer contained pleas of the two and four year statutes of limitation, Vernon's Ann.Civ.St. arts. 5526, 5527.

Upon a trial to the court, judgment was entered for plaintiff for the unpaid balance of said vendor's lien note and foreclosure of the lien. Defendant has appealed.

The note was barred by the four year statute of limitation prior to the institution of the suit. A finding that defendant acknowledged in writing the justness, or existence, of the barred debt must find its support, if it is to be sustained, in the language of defendant's letter dated January 3, 1936. If the evidence is insufficient to sustain such a finding, the judgment cannot be upheld. The determinative question is whether or not said letter constitutes an acknowledgment of the justness of the barred debt within the contemplation of the provisions of Art. 5539, reading as follows: "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."

The letter is as follows: "Dear Aunt. How are you by this time. Hope you are well. I am all O.K. it is plenty cold up here. Well I hope you had a nice trip Xmas. I didn't get to stay at home very long just had to get back and go to work. I went in and talked to Jewel but he didn't no what to do, so I told him I would write you when I got back up here. So Aunt Lillie I'll be back before long and I'll talk to you and I no we will fix it up some way. So I will see you when I come home. Lots of good wishes from Silas."

Briefly stated, the circumstances surrounding the writing of the letter, as disclosed by parol testimony, were: Plaintiff had several times prior to the date of the letter talked with defendant with reference to his note and the payment thereof; in said interviews defendant told plaintiff, in substance, that he was not able to pay the note then, but he wanted, if he could, in the future to pay it, but he, on each occasion, refused to execute a new note or extension thereof. Defendant never denied owing the note. Plaintiff, knowing that she would be absent during the Christmas holidays of 1935, told Jewel Poe "to see Silas and to fix it up anyway Silas wanted to fix the note." During the Christmas holidays defendant visited in Eastland County, where plaintiff resides, and Jewel Poe talked to defendant about the note and asked "if he had the papers that were to be fixed up and he said: no, he would wait until she came back and that he would then fix it anyway she wanted it." When plaintiff returned to Eastland County defendant had gone to Borger and from there he wrote the letter alleged to constitute the acknowledgment of the justness of the debt. Plaintiff testified that said letter was the only instrument in writing signed by the defendant with reference to the note.

In Trainer v. Seymour, 10 Tex.Civ.App. 674, 32 S.W. 154, plaintiff alleged certain letters signed by defendant as an acknowledgment of the debt, the letters being as follows: (1) "Your letter received several days ago. In reply, will say I hope you will be as easy as possible. Cotton is very low at present. Farmers are trying to hold for better prices. Will try to do something for you before a great while, and hope you will not push me." (2) "Your letter 2nd inst. to hand. Will say I will send more money as soon as I can, and hope that you can wait, as money is very scarce here now, especially with farmers." In said case, plaintiff offered to prove that when plaintiff left Texas she placed the note in witness's hand for collection; that the last three payments credited thereon were made to witness, and offered to prove that the note was executed by defendant and his brother; that defendant made the payments thereon; that the note was the only debt defendant owed plaintiff when the letters were written. Said evidence was held by the court to be insufficient and a verdict ordered for defendant. Judge Williams, writing the opinion for the court, said (page 155): "The sole question presented is whether or not the letters, in connection with the parol evidence, showed a sufficient acknowledgment of the debt to take the case out of the operation of the statute of limitation. In cases where there is an acknowledgment in writing of the existence and justness of a debt, parol evidence is admissible to show what debt is referred to. * * * The acknowledgment itself cannot be supplied by parol evidence, but must be contained in the writing. All of the cases in our reports hold that a sufficient writing must contain either an unequivocal acknowledgment of the indebtedness, or an unqualified promise to pay it, which will imply such an acknowledgment. `If the expressions be equivocal, vague, and indeterminate, leading to no certain conclusion, but, at best, to probable inferences only, it would not amount to an acknowledgment sufficient to take the case out of the operation of the statute.' Smith v. Fly, 24 Tex. 345 . The letters in question do not contain an acknowledgment of any indebtedness, except as `a probable inference.' They contain, it is true, a promise to remit money, but not as the payment of any debt. By the parol evidence it is shown that a debt then existed from Seymour to appellant, and it may be inferred that the letters had reference to the payment of it, but this is the very thing which the statute requires the acknowledgment to show. The case is not within those decisions where the writing acknowledges the existence of or promises to pay, a debt, in which parol evidence may be used to identify the debt referred to. Here no debt is acknowledged, and no payment of a debt is promised, and the essential fact, if shown at all, would have to be gathered from the facts shown by parol."

In Coles v. Kelsey, 2 Tex. 541, 556, 47 Am.Dec. 661, the Supreme Court of Texas first laid down the rules as to the sufficiency of evidence, under the statute, to constitute a revival of a barred debt. The court said: "It will, however, be well to lay down some rules, as to what will be a sufficient subsequent promise or acknowledgment to take the case out of the bar of the Statute. By an express provision in our Statute, `That when any action may appear to be barred by any 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.' This Statutory provision was designed to put an end to the almost infinite variety of decisions, as to what amounted to a subsequent promise. But the better opinion seems to be, that the only difference introduced by the provision, is, as to the character of the proof of the acknowledgment, and not as to what words would constitute such acknowledgment. In Story on Contracts, section 1013, the following doctrine will be found: `The operation of the Statute may also be frustrated, by an acknowledgment of the existence of the debt, or by a new promise to pay it. This promise, or acknowledgment, is considered as a new promise, founded upon the previous debt as a consideration, and must be sufficient in itself to support an action for the debt, independent of the original promise. The acknowledgment is to be considered not as a revival of the original agreement, but as a new and distinct agreement in itself.' And the same author proceeds in the next section to illustrate the text. `If there be no express promise to pay, a promise may be raised by implication of law, from the acknowledgment of the party. But such an acknowledgment must contain an unqualified admission of the debt, and a willingness to pay it. An acknowledgment of the original justice of the claim is not sufficient to take the case out of the Statute, unless accompanied with an admission of the party's present liability. If the acknowledgment be conditional, the remedy only revives on the performance of the condition. It is not necessary, however, that any specific sum should be acknowledged to be due, if the acknowledgment be sufficiently broad to include the debt, and sufficiently particular to show that it was the subject matter of the contract."

In Webber v. Cochrane, 4 Tex. 31, 36, it is said: "The rules of construction by which the sufficiency of an acknowledgment is to be determined, are unaltered; and the instrument of evidence alone is charged."

In Cotulla v. Urbahn, 104 Tex. 208, 214, 126 S.W. 1108, 135 S.W. 1159, 1162, 34 L. R.A.,N.S., 345, Ann.Cas.1914B, 217, the court, after quoting the statute, said: "It has been held from a...