Shurter v. Ricker, 6647.

• Decision Date: 19 January 1933
• Docket Number: No. 6647.,6647.
• Citation: 62 F.2d 489
• Parties: SHURTER et al. v. RICKER.
• Court: U.S. Court of Appeals — Fifth Circuit

62 F.2d 489 (1932)

SHURTER et al. v. RICKER.

No. 6647.

Circuit Court of Appeals, Fifth Circuit.

December 22, 1932.

Rehearing Denied January 19, 1933.

W. A. Wright and Clifton H. Tupper, Jr., both of San Angelo, Tex., for appellants.

C. O. Harris, L. B. Harris and M. E. Sedberry, all of San Angelo, Tex., for appellee.

Before BRYAN, SIBLEY, and HUTCHESON, Circuit Judges.

BRYAN, Circuit Judge.

On August 18, 1931, appellee, Rupert P. Ricker, brought suit against appellants, Alice B. Shurter and E. D. Shurter, her husband, to recover judgment for $10,000 as for money lent on March 14, 1927; and in aid of his suit he caused a writ of attachment to be levied on three whole sections and two half-sections of land in Texas, of which at that time Mrs. Shurter was the record owner. The issues raised by the pleadings were: First, whether the contract sued on, assuming that it existed, was governed by the laws of Texas or the laws of New York. If it was a Texas contract, the suit at once fails, regardless of any other question involved in it, because under the laws of that state it was unenforceable, since Mrs. Shurter, the alleged debtor, was a married woman. Texas Revised Civil Statutes (1925) art. 4623. Appellee concedes this, but contends that the proof disclosed a New York contract, in which state a married woman is undoubtedly liable to the full extent that she would be if she were a feme sole. Chemical National Bank v. Kellogg, 183 N. Y. 92, 75 N. E. 1103, 2 L. R. A. (N. S.) 299, 111 Am. St. Rep. 717, 5 Ann. Cas. 158. E. D. Shurter, the husband, was not shown to be liable for the alleged debt. His only interest as a party is that, after the attachment was levied, his wife conveyed the land to him. Second, whether, on the one hand, the transaction relied on by appellee in reality constituted a loan as he claims, or, on the other, only a gift, or at least a repayment or return of money previously advanced by appellants to appellee. Third, whether, if a debt was created in the first place, that debt was taken out of the bar of the statute of limitations, which admittedly had run before suit, by the acknowledgment of Mrs. Shurter in writing. At the close of the evidence both parties moved for a directed verdict. The district judge, in response to those motions, held that the transaction was governed by the law of New York; that a debt was originally created, which, though it had been barred by the statute of limitations, was revived by sufficient acknowledgments in writing signed by Mrs. Shurter, and, so holding, directed a verdict against Mrs. Shurter for the amount involved with interest; entered judgment in favor of Shurter, but held that the land which he claimed to own, but which was seized under the writ of attachment, was subject to be sold in satisfaction of the judgment.

At the time suit was brought appellee was a citizen of the state of Texas and appellants were citizens of the state of New York. On January 26, 1927, Mrs. Shurter wrote a letter to Ricker which in part is as follows: "Will you lend me, by April 15, for an indefinite period, ten thousand dollars without interest, without any security whatsoever, without any promise to pay, and without hope of reward? I am asking this on my own initiative and without the knowledge of anyone else. I am asking it with more anxiety in my mind and more hope in my heart than I can express, and the receipt of it would mean more to me than any words on paper can tell you."

On March 12, 1927, Ricker replied by telegram that he had just received that letter, and authorized her to make draft for the amount of money she requested. On March 14, 1927, Mrs. Shurter forwarded a draft for that amount, and it was paid by Ricker. The letter was mailed at Mrs. Shurter's place of residence in New York, and delivered as addressed to Ricker in Texas; and his reply telegram was sent from his place of residence in Texas, and delivered to her, as it was intended to be, at her residence in New York. For more than 20 years prior to 1926, when they moved to New York, appellants lived in Texas, and during practically all of that time the husband, Dr. E. D. Shurter, was a professor in the University of Texas at Austin. They became acquainted with appellee in 1914, while he was a student at the University. Soon after that he stated to them that he would have to give up his studies because of a lack of funds. Appellants talked the matter over with each other, and decided to advance the money necessary for appellee to complete his education; and they did so. Appellee himself says that appellants treated him as though he were their son, although he questioned the total amount of the advances, and claimed that in 1922, after he had begun to make money, he included in a settlement with them of some business transactions an amount equal to that which they had given him. Mrs. Shurter testified that she kept an account of the money she and her husband had paid out for Ricker's personal expenses, and from her testimony it appears that between the years 1914 and 1921 she had let him have from time to time amounts which aggregated between four and five thousand dollars. She denied that any of this money had been returned, saying that a return was not exacted; that appellee had said that, though he would not give a note, if he ever became able he would return the money he had received. The district judge found as a fact that none of the money so advanced had ever been returned. In addition to the money which appellants let appellee have, they gave him a half-section of land upon the occasion of his graduation in 1915. By 1922 Mrs. Shurter had bought and paid for Ricker's interest in the land they had given him, and also for three sections and a half of other land. This is the land which was seized under the writ of attachment. It is adjacent to other land owned by Ricker's father, and the whole forms a body of 18 sections. By the time Mrs. Shurter asked for the $10,000 involved in this suit, Ricker had become prosperous, but the Shurters were in straitened circumstances; they had to depend for the most part upon the income derived from leases of the Texas land for grazing purposes, which brought them in at least $900 a year. Some time later they executed oil leases from which they derived an additional income of $500 a year. They were living in a house without plumbing and with them lived Dr. Shurter's aged and invalid sister. Mrs. Shurter testified that at the time she asked Ricker for the $10,000 she understood he was a millionaire; that Ricker's mother had written to her a few days before that, inquiring whether she and Dr. Shurter would sell their ranch, stating that, if they would, her son would buy it; that she replied that the ranch "was a bank at our backs," but if they ever did sell it they wanted the Ricker family to have it as they were friends; that when she wrote for the $10,000 she did not consider that she was asking for a loan, but for a return of favors; that Ricker had said that he would pay when he could, and she thought the time had come when he could pay; and that she never would have considered asking for a loan. She further testified that, after she received the money, she told Ricker that she and Dr. Shurter were "reciprocating" in their wills, and that they had executed wills leaving him $15,000 and an interest in the mineral rights on their ranch; but that the wills...