Nassar v. Nelson , 1938 Tex. App. LEXIS 755 ( 1938 )

MURRAY, Justice.

This suit was instituted on November 2, 1934, in the Ninety-Third district court of Hidalgo county by appellee, M. R. Nelson, against appellants, Antonio Nassar and Jose Nassar, seeking to recover the sum of $7,000, alleged to be due by appellants to appellee on an oral contract.

On December 22, 1936, appellee filed his first amended original petition, which was the pleading upon which he went to trial. In this amended petition appellee alleged that in March, 1931, the United States of America, acting through its proper agencies, determined to acquire land in the city of McAllen, to be used for the construction thereon of a post office and federal building. Appellants and others became interested in seeing said building located on South Main street, in the city of McAllen, and suggested to appellee, Nelson, that he submit a proposal to sell to the government a tract of land of sufficient size, located in either block 29 pr block 36, of said original town of McAllen. At said time appellee was the owner of a number of lots in each of these blocks, but* did not believe the government would pay him what he regarded as the value of the lots. In this connection the Nassar brothers agreed to pay Nelson the sum of $7,000 if he would submit a proposal to the government; the money to be paid when the proposal was accepted by the government. The Nassars agreed to pay $5,000 of this sum as contemplated benefit to property owned by them and $2,000 for contemplated benefit to property owned by one Zambrano.

In keeping with this agreement, Nelson did submit a proposal to sell a sufficient tract of land for such post office site to the government out of block 29. On June 27y 1931, this proposal was accepted by the United States goverment. Shortly thereafter, Nelson demanded of the Nassar brothers that they pay to him the sum of $7,000, as they had agreed to do. Appellants then asked appellee not to require them to pay such sum at that time, but to give them until such time as the title was actually vested in the government, which request was granted. Considerable trouble arose concerning the title to part of the tract of land, resulting in the government having to institute condemnation proceedings, as had been provided for by the contract of sale existing between Nelson and the government. As a result of this delay title was not finally vested in the government until January 27, 1933.

Shortly thereafter, appellee again demanded of appellants that they pay to him the sum of $7,000, but they again requested that payment be postponed until the construction of the building had actually been commenced; this request was also granted, according to the allegations of the amended petition, although the record shows that the suit was actually filed several days before the construction of the building was begun. The United States government actually began the construction of the building on or about December 1, 1934.

It is plain from the amended petition that all of the agreements were oral and that the agreement to pay the $7,000, when the bid was accepted by the government, was barred by the two years’ statute of limitation, unless the statute was tolled by the subsequent agreements. American Rio Grande Land & Irrigation Company v. King, Tex.Civ.App., 107 S.W.2d 1085; article 5526, R.C.S.1925.

The subsequent agreements to defer the time of payment of the $7,000 were not based upon any mutual consideration, and were therefore nuda pacta. First State Bank of Eustace v. Bowman, Tex. Civ.App., 203 S.W. 75. According to the allegations of the petition, the $7,000 was due when the bid was accepted by the government. This happened orí June 27, 1931, more than two years before the suit was filed. Appellants never agreed to do anything more than they were already obligated to do in consideration of the indulgence extended to them by appellee. They did not agree to pay any more money, or any interest on the money then due and payable by them. There was no consideration for such extension agreements.

The petition showing on its face that the debt was barred by the two years’ statute of limitation, the trial court should have sustained appellants’ demurrers to the petition, and his failure to do so constitutes reversible error. Accordingly, the judgment is reversed and the cause remanded.

Reversed and remanded.