Standard Surety & Casualty Co. v. Wynn
Decision Date | 21 June 1943 |
Docket Number | No. 5564.,5564. |
Citation | 172 S.W.2d 789 |
Parties | STANDARD SURETY & CASUALTY CO. v. WYNN. |
Court | Texas 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.
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:
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.
No. 2—Dated April 18th, 1940.
No. 3—Dated April 29, 1940.
No. 4—Dated May 12, 1940.
No. 5—Dated July 4th, 1940.
No. 6—Dated November 5th, 1940.
No. 7—Dated December 28th, 1940.
No. 8—Dated March 17th, 1941.
No. 9—Dated April 7th, 1941.
No. 10—Dated March 22nd, 1942.
Appellee offered the following letter from E. D. Slough to said appellee, which is as follows:
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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Schultze v. Schultze
...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......
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