Browne v. French , 3 Tex. Civ. App. 445 ( 1893 )

The appellant contends that the court erred in not rendering judgment in his favor against the appellees Christian and Rogers for the amount of the judgment obtained by the Crane-Breed Manufacturing Company, in their suit against French Browne, wherein they obtained judgment against H.G. French and the appellant for the sum of $1795.57, and $9.05 costs of suit.

The refusal of the court to so render judgment was, in effect, based upon the reasons, that the demand of Crane-Breed Manufacturing Company against French Browne was barred by limitation at the time their suit was brought; and the appellant being made a party to the suit and notified of its pendency, he had a good defense by limitation, which he should have interposed; and failing so to do, operated as a discharge of the appellees Christian and Rogers, who were bound only as sureties on the bond sued upon; and they not being parties to the suit nor notified of its pendency, the judgment obtained against the appellant and French was not conclusive against them, and they could in this suit interpose as a defense to the appellant's demand his failure to plead the statutes of limitation to the claim of the Crane-Breed Manufacturing Company.

The court below, in reaching this conclusion, passed upon other interesting questions which we deem not necessary to notice, as we dispose of the case upon a question which renders it unnecessary that these questions should be decided.

The pivotal question is, whether the demand of Crane-Breed Manufacturing Company against French Browne was barred by limitation at the time that suit was instituted thereon. If it be true that the claim was not barred, then it follows that French Browne would be liable and bound for the debt, and had no defense that would defeat it. This being true, the obligors in the bond sued upon would under the terms thereof be bound to discharge that debt as one of the assumed obligations stated in the bond, and should hold the appellant harmless from all liability therefrom.

The first question that we consider is, is the judgment of Crane-Breed Manufacturing Company against French and the appellant conclusive against the appellees as sureties on the bond sued on in this case, they not being parties to the suit or notified of its pendency? The obligation created by the bond so executed to appellant was, that the obligors should pay the debts of French Browne and hold the appellant harmless. It was not that they should be bound by any particular judgment, but simply a general promise to pay the debts.

The general rule upon this subject may be stated, that when it appears from the terms of the obligation that the surety has contracted to become bound by a judgment that has been or may be rendered in an action against his principal, it is conclusive against him, although he was not a party to the suit in which the judgment was obtained; but in an undertaking general in character, such as the bond sued upon in this case, the judgment obtained against the principal therein only creates a prima facie liability against the surety who was not made a party or given an opportunity to defend the suit in which the judgment was obtained. In such cases the judgment is not conclusive, and does not operate as an estoppel against the surety, and, when sought to be made liable therefor by the judgment creditors, he will be permitted to interpose any valid defense that would defeat the plaintiff's case existing at the time the judgment was obtained.

The court below correctly held that the judgment obtained by Crane-Breed Manufacturing Company against the appellant was not conclusive against the appellees Rogers and Christian.

We next consider the question, whether the demand of Crane-Breed Manufacturing Company against French Browne was barred by the statutes of limitation at the time of filing suit thereon, and whether the plea of limitation, if presented, would have defeated the recovery of judgment upon the claim.

The letters set out in the findings of fact, written by French Browne to the Crane-Breed Manufacturing Company, in effect acknowledge the justness of the debt, and the two last letters quoted, in our opinion, is a sufficient promise to pay it. These letters were written during the life of the account, and before it was affected by the operation of the statutes of limitation. From the statements contained in these letters, the inference is warranted that Crane-Breed Manufacturing Company had been requesting of French Browne a payment of their indebtedness to them. In reply to the request, French Browne ask their indulgence, stating that business looks up in the spring of the year, and "we ask you not to draw on us, but promise to send a remittance as soon as we possibly can." This letter is followed by one dated April 30, 1886, in which French Browne enclose a draft for $50, with a request that they be given credit for the amount, and in conclusion say, "will remit again in a few days."

At the time that the last letter was written, the account sued on had been contracted, with the exception of the item of $45, which was for goods sold after that time and after the appellant had retired from the firm of French Browne.

It is not essential that an express promise to pay should be made. All that is necessary, can a promise be implied from the words used? Asking a creditor's indulgence, with a promise to remit, subsequently followed up by actually remitting a part of the debt, with a promise "to remit again in a few days," constitutes an acknowledgment of the debt, with a promise not only to pay a part of it, but an implied promise to pay it all. Blakeman v. Fonda, 41 Conn. 561; Henry v. Roe, 83 Tex. 451; Lange v. Caruthers, 70 Tex. 720; Page v. Payne,41 Tex. 143; McDonald v. Grey, 29 Tex. 83 [29 Tex. 83]; 1 W. W.C.C., sec. 373; Erskine v. Wilson,27 Tex. 118; Chidsey v. Powell, 60 Am. Rep., 268; Russ v. Cunningham, 16 S.W. Rep., 447; 13 Am. and Eng. Encycl. of Law, 750-757; Buffington v. Davis, 33 Md. 511; Bliss v. Allard, 49 Vt. 351.

The only element of uncertainty left by these letters, when considered solely by themselves without the aid of any presumption or extrinsic facts, is to the debt to which they relate. But this is not a practical difficulty in this case, for the facts gathered from the record indisputably show that these letters relate and refer to the account sued upon by the Crane-Breed Manufacturing Company. Mitchell v. Clay, 8 Tex. 447 [8 Tex. 447]; 13 Am. and Eng. Encycl. of Law, 757; Russ v. Cunningham, 16 S.W. Rep., 447.

But in addition to the fact as stated, there is a rule of law which may be invoked in this case that makes the acknowledgment and promise contained in the letters apply and relate to the account sued upon by Crane-Breed Manufacturing Company. It is, that if no other debt is shown to be due to the plaintiff by the defendant, the promise will be held to apply to the debt sued upon. Russ v. Cunningham, 16 S.W. Rep., 447; Mitchell v. Clay, 8 Tex. 444; Erskine v. Wilson,27 Tex. 118; Wood on Lim., 1 ed., 162, sec. 68.

In this case no other debt was shown to exist. The effect of these letters is to create a new promise and to remove the bar of the statute; and as this new promise is in writing, it follows that limitation would only commence to run from the time that the promise was made, and the debt would only be barred within four years from that time. The action by Crane-Breed Manufacturing Company against French and the appellant being within that time, the demand was not barred by the statutes of limitations. Chidsey v. Powell, 60 Am. Rep., 268; 13 Am. and Eng. Encycl. of Law, 758; Henry v. Roe, 83 Tex. 451.

Although the suit of Crane-Breed Manufacturing Company was upon the account, which in itself was barred, and not upon the new promise, the defense of limitation, if it had been interposed, would not have availed the appellant anything; nor would it have been a good defense if interposed by the appellees if they had been parties to the suit, because Crane-Breed Manufacturing Company could have set up and pleaded the acknowledgment of the debt and the promise to pay as shown by the letters, and the setting up of this cause of action would have met and overcome the defense of limitation. It can not be said that the suit, being upon the account which was barred, would require the appellant, as an act of diligence to the sureties, to plead the statute of limitation, when as a matter of fact such defense would not prevail because of the written acknowledgment and promise to pay the debt sued upon. If, as a fact, the real debt was not barred, although it was barred in the form in which it was in suit, the appellant should not be required to plead limitation when in the nature of things it would not operate to defeat a recovery by the creditor. Pleading limitation under the circumstances would have been a futile attempt to interpose a defense that was without merit. This the appellant was not required to do.

To conclude, can the appellant, he having paid nothing towards the satisfaction of the judgment obtained by Crane-Breed Manufacturing Company, maintain this action against the obligors in the bond here sued upon; and does the fact that the judgment was obtained against him for a debt that the obligors in the bond assumed to pay create such a breach of the bond as gives the appellant his action for damages against such obligors? If the obligors bind themselves to pay the debts of the obligee upon consideration, as they did in this case, and suffer a judgment to be obtained against the obligee for the debt for which they are bound, a breach of the bond immediately results, for the results of which the obligee may sue. Pope v. Hays, 19 Tex. 377; 10 Am. and Eng. Encycl. of Law, 415, 416.

The judgment of the court below is reversed, and judgment here rendered in favor of appellant against H.G. French and appellees C.M. Rogers and Matilda Christian for the amount of judgment recovered by the Crane-Breed Manufacturing Company in their cause number 8865 against W.E. Browne et al., in the District Court of Travis County, Texas, on the 8th day of March, 1889, for the sum of $1795.57, and the further sum of $9.05, costs in said suit, less the sum of $45, it being an item in said account of Crane-Breed Manufacturing Company for which the appellees were not liable; with interest on said judgment at the rate of 8 per cent per annum from the 8th day of March, 1889; and judgment in favor of appellant is further rendered against the appellees and H.G. French for the amount of the judgment rendered in his favor by the court below. The judgment here rendered, in so much as it affects appellee Matilda Christian, is to be paid out of the community estate of the said Matilda and Edward Christian.

Reversed and rendered.

Justice KEY did not sit in this case.