Standard Surety & Casualty Co. v. Wynn

Decision Date21 June 1943
Docket NumberNo. 5564.,5564.
Citation172 S.W.2d 789
PartiesSTANDARD SURETY & CASUALTY CO. v. WYNN.
CourtTexas Court of Appeals

Appeal from District Court, Collingsworth County; A. S. Moss, Judge.

Suit by Standard Surety & Casualty Company against H. A. Wynn to recover on a promissory note. Judgment for defendant, and plaintiff appeals.

Judgment reversed and judgment rendered for plaintiff.

E. D. Slough, of Amarillo, for appellant.

Luther Gribble, of Wellington, for appellee.

PITTS, Chief Justice.

This is a suit filed in the District Court of Collingsworth County on October 29, 1942 by Standard Surety and Casualty Company, a corporation of New York City, appellant, against H. A. Wynn of Collingsworth County, appellee, for the collection of a debt evidenced as alleged by promissory note and ten letters written by appellee to appellant's attorney, copies of which letters being attached to appellant's pleadings and made a part thereof. Appellant further alleged that said note was of date July 28, 1936 for the sum of $508.14 originally with 8% interest and containing the usual 10% attorney fee clause, payable on January 1, 1937, to Gulf Oil Corporation; that the said note was transferred before maturity in due course to appellant, who, on January 22, 1942, placed same in the hands of Honorable E. D. Slough, Amarillo, Texas, its attorney, for collection; that said letters were written to appellant's said attorney and that they constituted such acknowledgments as to renew appellee's promise to pay said indebtedness, the balance of which was $776.14, including principal, interest and attorney fee, after appellee had paid appellant the sum of $50 on said indebtedness, since said note had been placed in the hands of said attorney for collection; and that appellant was relying on the contents of said letters for recovery.

Appellee's answer did not deny appellant's allegations except to challenge the sufficiency of them in a general and a special exception and alleged that the letters did not contain unconditional acknowledgments and were therefore insufficient to toll the statute of limitations, which statute he invoked as a defense.

The case was tried before the court without a jury and judgment was rendered for appellee, from which judgment an appeal was perfected to this court.

The record is short and there is only one assignment of error and a counterpoint thereto for consideration. Appellant contends that the letters in the record did preserve the indebtedness in question against a plea of four years statute of limitation and appellee contends that said letters were insufficient to so preserve said indebtedness.

The statement of facts is composed of the note in question, the ten letters in question and two letters from Honorable E. D. Slough to appellee.

Although it will add length to this opinion, it seems to be very material that the contents of the letters in question be set out in full since it is a proper construction of them that will determine the merits of this case.

The record discloses that the appellant offered in evidence the following letter:

                                     "January 22, 1940
                "Mr. H. A. Wynn
                "P. O. Box 63
                "Wellington, Texas
                    "Re: Standard Surety & Casualty Co
                

"Dear Sir:

"Our client above named has written to us about collecting the note you gave them July 28, 1936, in the amount of $508.14.

"We appreciate the fact that it probably would be difficult for you to remit this amount in full right at the present time, but we would like to have you write to us and explain your circumstances, your employment, and just when and how you can take care of the matter. If you wish to make monthly payments I am sure that can be arranged if you will suggest what amount you can pay each month.

                                     "Very truly yours
                                         "E. D. Slough"
                

The next ten letters being from appellee to E. D. Slough and are numbered for convenience consecutively 1 to 10, the contents of which are as follows:

No. 1—Dated March 8th, 1940.

                    "Standard Surety & Casualty Co
                

"Dear Sir:

"Your letter of January 22nd regarding my note to the above, I am sorry this letter did not come to my attention until recently.

"I have worried quite abit about that note and I have been selling cars tractors or anything to make a living and have not been in position to make payments on the note I am going to pay the note off as soon as I can get started in something that I can make monthly payments, it may be that some time in the next two or three months I can start paying and continue until I have paid the note in full.

"I surely hope this delay in answering has not caused you any anxiety and I will be in Amarillo some time this month and will call at your office and have a talk with you about the note.

                                    "Yours Truly
                                     "H. A. Wynn."
                

No. 2—Dated April 18th, 1940.

"Re: Standard Surety Co. N. Y.

"I received your letter and thought I would have some money by now to pay the note I owe the co. but I have just about been able to pay my current bills and I intended to come to Amarillo to see you but have not been so I could get up there, if you have anything in mind as to how I can arrange to make that satisfactory Please tell me and if it is possible I will do that.

"Thanking you for your kindness I beg to remain.

                                  "Yours Truly
                                   "H. A. Wynn."
                

No. 3—Dated April 29, 1940.

"Replying to your letter of a few days ago regarding a payment of some kind on my note I think I can make a payment of $10.00 by the 10th of May if that will be satisfactory.

                                      "Yours Truly
                                       "H. A. Wynn"
                

No. 4—Dated May 12, 1940.

"Attached please find my check for $5.00 to apply on my note to the N. Y. Surety Co.

"I may have some more to make a payment soon but this is all I can pay at this time.

                                    "Yours Truly
                                     "H. A. Wynn."
                

No. 5—Dated July 4th, 1940.

"Replying to your letter of June 20th I have been waiting to sell a car so I could make another payment to this time I have not collected but will make a payment by the 15th, of this month.

                                       "Yours Truly
                                        "H. A. Wynn"
                

No. 6—Dated November 5th, 1940.

"Replying to your letter of a few days past I do not have a payment at the present but will have some time this month and will mail same to you Thanking you for your kindness. I remain.

                                     "Yours Truly
                                      "H. A. Wynn"
                

No. 7—Dated December 28th, 1940.

"Replying to your letter dated December 27th. I have been trying to get a payment to make on the note but have not been so I could but I will have some money coming in on the 10th of January and will make at least a $10.00 payment and will do my best to continue them until I get so I can pay the balance in full.

"Thanking you again for your kindness I remain

                                     "Yours Truly
                                      "H. A. Wynn"
                

No. 8—Dated March 17th, 1941.

"I received your letter several days past and would have answered but I had some money that I was supposed to get in and I could make your payment, But I have not received it to date, I will have enough to make another payment by the first if I do not get that money in.

                                          "Yours Truly
                                           "H. A. Wynn"
                

No. 9—Dated April 7th, 1941.

"Attached please find my check for $5.00 to apply and I will have some more this month that I can send you.

                                        "Yours Truly
                                         "H. A. Wynn"
                

No. 10—Dated March 22nd, 1942.

"Replying to your letter of March the 9th regarding my March payment I have been doing my best to get some money together to send but I have not so far I may be able to send it in the First of April with the other payment.

                                       "Yours Very Truly
                                        "H. A. Wynn"
                

Appellee offered the following letter from E. D. Slough to said appellee, which is as follows:

                                "April 20, 1940
                         "Re: Standard Surety & Casualty
                          Company of N. Y.
                

"Dear Sir:

"We have your letter of April 18th regarding this matter, in which you inquire if or not we have anything in mind as to how you can take care of it.

"You have explained your circumstances to us quite thoroughly, and we appreciate that it would be difficult for you to make a substantial payment at this time. However, even though you are not able to make a large payment, it would look much better on the face of the situation if you would pay a little from time to time as you have it—say $10.00 or $15.00, and more when you are able to. This would help us to convince our client that you are trying to pay it.

"We have not been, and are not now disposed to cause you any trouble in the matter, but we would like to get something on it.

                                    "Very truly yours,
                                    "E. D. Slough"
                

Appellee construes his letter No. 1 as a conditional promise, while appellant construes it as an unconditional promise with an attempt...

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7 cases
  • Schultze v. Schultze
    • United States
    • Texas Court of Appeals
    • 12 March 1948
    ...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......
  • California Chemical Company v. Sasser
    • United States
    • Texas Court of Appeals
    • 28 December 1967
    ...Ins. Co . of New York v. Davis, Tex.Civ.App., 174 S.W.2d 84; Windom v. Howard, 86 Tex. 560, 26 S.W. 483; Standard Surety & Casualty Co. v. Wynn, Tex.Civ.App., 172 S.W.2d 789.' The case of American Surety Co. of New York v. Hughes, 185 S.W.2d 235 (Tex.Civ.App., Galveston, 1945, wr. ref.) hea......
  • Trautmann Bros. Inv. Corp. v. Del Mar Conserv. Dist.
    • United States
    • Texas Court of Appeals
    • 3 April 1969
    ...will be effective. We follow these holdings. See Cain v. Bonner, 108 Tex. 399, 194 S.W. 1098, 3 A.L.R. 874; Standard Surety & Casualty Co. v. Wynn, Tex.Civ.App., 172 S.W.2d 789, 793, no writ; Sharp v. Frizzel, Tex.Civ.App., 153 S.W.2d 543, 544, no writ; Montague County v. Meadows, 21 Tex.Ci......
  • Medal v. Kvaerner Process Systems US, Inc., No. 14-03-01334-CV (TX 6/1/2004)
    • United States
    • Texas Supreme Court
    • 1 June 2004
    ...we should liberally construe the letter because Medal received it before the statute of limitations had run. See Standard Sur. & Cas. Co. v. Wynn, 172 S.W.2d 789, 793 (Tex. Civ. App.—Amarillo 1943, no writ) (noting it takes "less evidence" to extend the statute of limitations on a debt if t......
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