Schultze v. Schultze
| Decision Date | 12 March 1948 |
| Docket Number | No. 2641.,2641. |
| Citation | 209 S.W.2d 791 |
| Parties | SCHULTZE et al. v. SCHULTZE. |
| Court | Texas Court of Appeals |
Appeal from District Court, Bexar County; C. K. Quin, Judge.
Action by Mrs. Emma Schultze against F. D. Schultze and Willie Schultze, as independent executors of the estate of Marie Schultze, to recover on a note executed by executors in renewal and extension of unpaid balance due on a note executed by deceased before her death, to plaintiff. From a judgment for the plaintiff, the defendants appeal.
Judgment affirmed.
Brewer, Matthews, Nowlin & Macfarlane, of San Antonio, for appellant.
L. M. Bickett, of San Antonio, for appellee.
This is an appeal from the 57th Judicial District Court of Bexar County, Texas, in which Mrs. Emma Schultze sued F. D. Schultze and Willie Schultze, as independent executors of the estate of Marie Schultze, deceased, on a promissory note for $6,000.00, which was executed by said executors in renewal and extension of the unpaid balance due on a note for $7,000.00 executed by said Marie Schultze before her death, to plaintiff. Said note for $7,000.00 was dated July 21, 1920, and was payable in seven annual installments of $1,000.00 each and bore interest at 7%. Said renewal note was dated June 17, 1935, was payable on or before five years after date and bore the same rate of interest. The trial was to the court without a jury and resulted in a judgment for plaintiff, from which the defendants appealed to the Court of Civil Appeals for the Fourth Supreme Judicial District at San Antonio. Upon equalizing the dockets of the Courts of Civil Appeals, by the Supreme Court, this cause was duly transferred to this court for decision.
The controlling questions presented here are (a) whether on the date of execution of said renewal note in the sum of $6,000.00 the original note for $7,000.00 was barred by limitation, and (b) whether the date of maturity fixed in said renewal note, "on or before five years after date", was an unconditional promise to pay at the expiration of said five year period. Appellants contend that said original note was barred by limitation before the date of said renewal note, and, therefore, they, as such executors, had no legal right to renew and extend the same. But in the alternative, if it be held that said original note was not barred by limitation, then the renewal note had not matured and the suit was prematurely brought by reason of a provision in said renewal note that the proceeds from the first sale of estate, real estate should be applied on said note. Appellee counters both of said contentions.
On or before seven years after date, I promise to pay to the order of Mrs. Emma Schultze, Seven Thousand Dollars ($7,000.00) payable in the City of San Antonio, Bexar County, Texas, with interest at the rate of seven percent (7%) per annum, from date until paid, interest payable annually, together with ten percent (10%) for collection fees, if suit is brought on this note, or if it is placed in the hands of an attorney for collection, or collected through the Probate Court. Defaulting interest to draw the same rate of interest as principal.
I promise to pay this note in installments of One Thousand Dollars ($1,000.00) on the 21 day of July of each year until the entire note is paid, but I am to have the option to pay off one or more additional installments of One Thousand Dollars ($1,000.00) at any annual period.
(Signed) Marie Schultze"
On the back of said note appear the following endorsements:
"July 15, 1926
I, Marie Schultze, acting herein by F. D. Schultze, my duly authorized attorney in fact, do hereby renew my promise to pay and hereby promise to pay the $1,000 which matured on the within note on July 21, 1922.
I, Marie Schultze, acting hereby by F. D. Schultze, my duly authorized attorney in fact, do hereby renew my promise to pay this note and promise to pay the same, and I, F. D. Schultze, warrant that I have authority to act herein for the said Marie Schultze.
I, Marie Schultze, hereby acting by F. D. Schultze, my duly authorized attorney in fact, do hereby renew my promise to pay this note and promise to pay same; and I, F. D. Schultze, warrant that I have authority to act herein for the said Marie Schultze.
Marie Schultze
By F. D. Schultze
Atty. in Fact"
Independent of any renewal and extension, said original note would have become barred by limitation on July 21, 1931, which would have been four years from its maturity. But giving effect to the endorsements on the back of same, the last of which was dated October 13, 1930, the statute of limitation was thereby tolled until October 13, 1934. Browne v. French et al., Tex. Civ.App., 22 S.W. 581. If that be true, then said note would not have become barred until October 13, 1938. However, the renewal note was dated June 17, 1935. We may here state that said Marie Schultze died on March 20, 1932, and appellants immediately filed her will for probate and qualified as such joint independent executors.
We shall now examine a few of the many cases bearing upon the issue as to whether said above quoted endorsements were sufficient to toll the statute of limitation. In the early Supreme Court case of McKay v. Overton, 65 Tex. 82, a note due one day after date was renewed before four years had elapsed by the following endorsement: In holding said endorsements effective to prevent the bar to the statute, the court said:
The case of Browne v. French et al., supra [Tex.Civ.App., 22 S.W. 584], involved an open account and before the debt became barred, the debtor wrote letters acknowledging the justness of the debt and promised to pay it, "as soon as we possibly can." On appeal, the court said: "The effect of these letters is to create a new promise, and to remove the bar of the statute; and, as this new promise is in writing, it follows that limitation would only commence to run from the time that the promise was made, and the debt would only be barred within four years from that time."
The late case of Standard Surety & Casualty Co. v. Wynn, Tex.Civ.App., 172 S.W.2d 789, involved a note which was not paid in full within four years from date of maturity. Before the expiration of said four year period, the debtor in letters made numerous promises to pay the same in installments and did make one payment within and one payment after said period. The trial court sustained the plea of limitation, but on appeal to the Amarillo Court of Civil Appeals, the case was reversed and rendered in favor of appellant. While it was not held that partial payments would within themselves toll the statutes of limitation, yet "A payment accompanied by the written acknowledgment and promise to pay required by law will defeat the plea against the original promise," quoting from Stein v. Hamman, et al., Com.App., 118 Tex. 16, 6 S.W.2d 342, 353. The court further quoted from the Commission of Appeals in the case of Starr et al. v. Ferguson, 140 Tex. 80, 166 S.W.2d 130, in which a similar letter not accompanied by a remittance was sufficient to toll the statute. Said case quoted from Windom v. Howard, 86 Tex. 560, 26 S.W. 483, 485, the following: "An unqualified acknowledgment of an existing debt implies a promise to pay it, and is sufficient, unless the acknowledgment be accompanied by some expressions indicative of an unwillingness to pay."
The Amarillo Court concluded in said Wynn case as follows [Tex.Civ.App., 172 S.W.2d 793]:
We might review many other cases similar on the facts, in which the bar of the statute was held to be tolled. To do so would unduly prolong this opinion. Under authority of McKay v. Overton, supra, the endorsements on the original note for $7,000.00 were undoubtedly sufficient to toll the statute as to said note. Said endorsements were made before the death of Marie...
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