Webber v. Cochrane
| Decision Date | 31 December 1849 |
| Citation | 4 Tex. 31 |
| Parties | WEBBER v. COCHRANE. |
| Court | Texas Supreme Court |
The twelfth section of the act of limitations of February 5, 1841, does not make any alteration in the legal construction to be put upon an acknowledgment, but merely requires a different mode of proof.
The phrase “acknowledgment of the justice of the claim,” as used in the statute, imports an admission at the time that the claim is a subsisting debt, nothing more. If such admission be unaccompanied by any circumstances repelling the presumption of a willingness or intention to pay, the liability and consequent promise are necessary legal inferences. (Note 7.)
The following acknowledgment was held to be sufficient under the twelfth section of the act of limitations: “The within obligation and interest is just, due, and unpaid, after deducting the above credits of $203.12 1/2. Dec. 21st, 1844.
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¦(Signed)¦JOHN F. WEBBER.” ¦
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Error from Travis. The only question in the case was whether the following acknowledgment of the justice of a claim took it out of the operation of the statute of limitations:
“The within obligation and interest is just, due, and unpaid, after deducting the above credits of $203.12 1/2. Dec. 21st, 1844.
JOHN F. WEBBER.”
There was a general denial of indebtedness by Webber, but the benefit of the stutute of limitations was not claimed by the pleadings, neither by plea nor by exception. It was, however, assigned for error.Oldham & Sneed, for plaintiff in error. The plaintiff in error relies upon the opinion of the majority of the court in Coles v. Kelsey, (2 Tex. R., 541,) as governing the question presented in this case. It is there held that, in order to revive a cause of action barred by a statute of limitations, “there must be an acknowledgment of the debt existing, and an expression of a willingness to pay it; both must concur; an acknowledgment of the debt is not sufficient; but there must be an expression of a willingness to pay.”
The question may be put in this case which is asked by the court in that: “Do these two ingredients, necessary to make an acknowledgment within the statute, concur” in the acknowledgment disclosed by the petition of the plaintiff below? There is an acknowledgment that the debt is due and unpaid, but this, this court has said, is not sufficient. The second ingredient, an expression of a willingness to pay it, is wanting.
Hamilton & Green, for appellee. In the Coles and Kelsey case there are some rules laid down as to what will be a sufficient subsequent promise to take the case out of the bar of the statute that will no doubt be invoked by the plaintiff in error The rules so laid down, however, are not, we suppose, to be understood as anything more than the expression of an opinion upon a question not involved in the case. It would, therefore, not be thought improper, if the case required it, to question the correctness of those rules. Whatever may be said of the decisions of the courts of the States of the Union and of England in construing slight admissions into promises, and however far these decisions may have departed from the true intent and meaning of the several statutes under which they were had, they furnish no reason why our courts should require a party, under our statute, to do more than the statute itself requires in order to bind himself.
The statute is in the following language: “That when an action may appear to be barred by a law of limitations, no acknowledgment of the justice of the claim made subsequent to the time it became due shall be admitted in evidence to take the case out of the operation of the law, unless such acknowledgment be in writing and signed by the party to be charged thereby.”
If the language of the statute had been different, and had required a promise to pay instead of an “acknowledgment of the justice of the claim,” it might, it seems to us, be contended, in strictness of law, that an acknowledgment of the justice of the claim would have been sufficient, the law implying the ““promise.” (Pothier on Obligations, 2d vol., 31; 11 Ala. R., 353; 3 Harring. R., 558; 5 Miss. R., 208; 2 Brev. R., 31; 5 S. & M., 564.)
If the construction given by a long and uninterrupted train of adjudications upon the effect of such admissions under similar statutes be not sufficient to settle what constitutes the act required of a party in order to charge him, still it is most respectfully contended that the law-making power has a right to determine what that act shall be. An acknowledgment of the justice of the claim, in writing and signed by the party, is what our statute requires, and nothing more. So far as we are acquainted with the rules of construction applied to similar statutes, they have been strict only as against the party claiming their benefit. The rule is reversed, however, when more is required than the law itself imparts.
There cannot be said to exist any necessity for extreme decisions by this court for the protection of the rights intended by the statute to be secured to parties who claim its protection, or to correct the tendency of former adjudications calculated to impair its beneficial provisions; for our courts have not yet become obnoxious to the charge of frittering away by construction any of the benefits intended by the act for those who invoke its aid.
The “acknowledgment of the justice of the claim” required by the statute is not only full and complete in the subsequent undertaking of the plaintiff in error, but he admits that the debt is “due and unpaid.” This is a promise to pay in contemplation of the statute. It is dated and signed by him, and, in connection with the original obligation, taken either as matter of proof or as a portion of the new undertaking, constitutes as full and complete a cause of action as it is possible to imagine.
The right of the plaintiff below to raise the question presented to this court in the assignment of error is denied. There was no demurrer, exception, or plea of the statute of limitations. The party pleaded a denial of indebtedness. He had his election to rely upon an issue of fact or of law or both. He chose the former, and he is bound by it. The party who commits the first error in pleading is bound by it. (7 Leigh R., 325; 9 Port. R., 206; 12 Ohio R., 120.)
The plaintiff in error is precluded from having an inquiry by this court into the error assigned; as much so as if the judgment was by confession. (Burton v. Varnell, 1 Tex. R., 635.)
The object in bringing the cause up being obviously for delay, an affirmance of the judgment is asked, with damages.
LIPSCOMB, J., being within the prohibited degrees of relationship to one of the parties, did not sit.
The question presented for consideration is whether the...
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