Standard v. Thurmond

Decision Date28 November 1912
Citation151 S.W. 627
PartiesSTANDARD v. THURMOND.
CourtTexas Court of Appeals

Appeal from Taylor County Court; T. A. Bledsoe, Judge.

Action by W. P. Thurmond against W. J. Standard. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

Cunningham & Oliver, of Abilene, for appellant. Dallas Scarborough, of Abilene, for appellee.

WILLSON, C. J.

By his promissory note dated March 28, 1907, appellant undertook to pay to appellee's order October 1, 1907, "waiving grace and protest," $213, interest and attorney's fees. By his suit commenced October 2, 1911, appellee sought a recovery on the note. As a defense against such a recovery appellant set up the statute requiring a suit based on such a cause of action to be commenced within four years from the time the cause of action accrues. Sayles' Stat. art. 3356. A judgment having been rendered in favor of appellee for the amount of the note, appellant prosecuted this appeal.

Appellant by his contract having waived the days of grace he otherwise would have been entitled to (Sayles' Stat. art. 318; 1 Daniel, Neg. Inst. § 633; Perkins v. Bank, 38 Mass. [21 Pick.] 485; Hirshfield v. Bank, 83 Tex. 452, 18 S. W. 743, 15 L. R. A. 639, 29 Am. St. Rep. 660), it is clear, under the rules controlling in such cases (Geistweidt v. Mann, 37 S. W. 372; Watkins v. Willis, 58 Tex. 523; Smith v. Dickey, 74 Tex. 61, 11 S. W. 1049), that appellee's cause of action accrued October 2, 1907. To be without the bar of the statute, his suit must have been commenced within four years from that date. As four years from October 2, 1907, expired with October 1, 1911, and the suit was not commenced until the next day, it is plain that it was within the bar of the statute and could not be maintained. That October 1, 1911, was Sunday, did not operate to extend the time within which the suit otherwise must have been commenced. Insurance Co. v. Shrader, 89 Tex. 40, 32 S. W. 872, 33 S. W. 112, 30 L. R. A. 498, 59 Am. St. Rep. 25; Allen v. Elliott, 67 Ala. 437; Perkins v. Bank, 38 Mass. (21 Pick.) 485.

The judgment will be reversed, and a judgment will be here rendered that appellee take nothing by his suit.

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6 cases
  • Taylor v. Aetna Life Ins. Co., Civ. No. 57.
    • United States
    • United States District Courts. 5th Circuit. United States District Courts. 5th Circuit. Northern District of Texas
    • April 27, 1943
    ...but limitation was suspended until she did become that age. The action is then barred in four years from that date. Standard v. Thurmond, Tex.Civ.App., 151 S.W. 627; Texas & P. Ry. Co. v. Goodson, 2 Willson Civ. Cas.Ct.App. § 27. Payne v. Wittenberg, Tex.Civ.App., 239 S.W. Findings of fact ......
  • Koethe v. Huggins
    • United States
    • Court of Appeals of Texas
    • October 30, 1926
    ...note became payable on May 31, 1919. Brookshire v. Allen (Tex. Civ. App.) 32 S. W. 164, and authorities there cited; Standard v. Thurmond (Tex. Civ. App.) 151 S. W. 627; State Nat. Bank v. East Coast Oil Co. (Tex. Civ. App.) 208 S. W. 190, writ of error denied; Brown v. Chancellor, 61 Tex. ......
  • Payne v. Wittenberg
    • United States
    • Court of Appeals of Texas
    • February 28, 1922
    ...& Pacific Ry. Co., v. Moore (Tex. Civ. App.) 43 S. W. 67, decided in 1897, in which a writ of error was denied, and Standard v. Thurmond (Tex. Civ. App.) 151 S. W. 627, it was held that, in computing time during which limitation will run against such causes of action as that of the appellee......
  • Price v. Wood, 2838.
    • United States
    • Court of Appeals of Texas
    • November 21, 1935
    ...sue upon his note until the beginning of January 3, 1931, as appellant had all of January 2d in which to pay his note. Standard v. Thurmond (Tex.Civ.App.) 151 S.W. 627, is in point on the proposition that the cause of action accrued January 3d. In that case, the court "By his promissory not......
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