Titus v. Wells Fargo Bank & Union Trust Co.

• Decision Date: 18 February 1943
• Docket Number: No. 10186.,10186.
• Citation: 134 F.2d 223
• Parties: TITUS et ux. v. WELLS FARGO BANK & UNION TRUST CO.
• Court: U.S. Court of Appeals — Fifth Circuit

134 F.2d 223 (1943)

TITUS et ux. v. WELLS FARGO BANK & UNION TRUST CO.

No. 10186.

Circuit Court of Appeals, Fifth Circuit.

February 18, 1943.

B. D. Tarlton and Hal F. Rachal, both of Corpus Christi, Tex., for appellants.

Marcellus G. Eckhardt, Jr., of Corpus Christi, Tex., and L. Hamilton Lowe, of Edinburg, Tex., for appellee.

Before SIBLEY, HUTCHESON, and McCORD, Circuit Judges.

HUTCHESON, Circuit Judge.

Brought on allegations of diversity of citizenship in a federal court in Texas, by Wells-Fargo Bank and Union Trust Company, plaintiff, a California corporation, against Louis Titus and his wife, Alice Titus, alleged to be resident citizens of Nueces County, Texas, the suit was to recover on two separate written contracts of guaranty, which had matured more than four years prior thereto. Each contract provided "The undersigned hereby guarantees * * * as a continuing guaranty and irrespective of any statute of limitations and unconditionally and at all times * * *". Both defendants plead the Texas Statutes of Limitations of four years. The defendant, Alice Titus, plead her coverture. There was a pretrial stipulation that at the time of the execution of the guaranty agreements, the defendants were residents of Washington, D. C., and were only temporarily in California, and an agreement that plaintiff is entitled to judgment against both defendants unless precluded by the defense of the statute of limitations, or as to Mrs. Titus by her plea of coverture. On the trial it was conceded: that the agreement to waive the statute of limitations was valid in California where the contract was executed and was to be performed, and because it was, it was also valid in the District of Columbia where defendants resided when the contract was made; and that the contract was valid and enforcible when made against both defendants because Mrs. Titus' coverture would not be a defense to a suit brought either in California or the District of Columbia. It was also conceded that if the contract had been made in Texas, to be performed there, the agreement to waive the statute of limitations would be unenforcible against both defendants, and Mrs. Titus' joinder with her husband in a contract of guaranty would be unenforcible as to her as subversive of the statutes of Texas and contrary to its public policy.

The district judge, treating the agreement to waive the statute as going not to the remedy for the enforcement of the contract but to its substance, concluded that made in California to be performed there, and valid there, and in the District of Columbia where the defendants resided when it was made, that it did not contravene the public policy of Texas when sought to be enforced there. He, therefore, rejected the defense of the statute of limitations and held the contract valid and enforcible. As to the defense of coverture, he held that, valid...