Uvalde Rock Asphalt Co. v. Ralls-Schmidt

GRAVES, Justice. Appellant sought recovery of an alleged balance due from the appellee, under a paving certificate issued by the city of Houston on June 23d of 1924 against her, under her then name, as a feme sole, of Mrs. G. A. Ralls, as for the paving improvement of her separate property, asking also the foreclosure of claimed statutory and contract liens securing the same; in answer, the ap-pellee pled the two and four-year statutes of limitation (Vernon’s Ann.Civ.St. arts. 5526, 5527) against the claim, further alleging that she had married Mr. Schmidt shortly after the date of the declared upon paving certificate and its accompanying contract lien, that is; in July of 1926, and was still married to him at the date of this trial, adding that the parties here, oñ June 28th of 1926, prior to such marriage, had in writing agreed to accelerate the maturity of any balance then and thereafter to become due from her on this paving certificate whereby it was thereafter to mature in $25 installments per month, which rearrangement had resulted in appellant’s claim having become long since barred; in rejoinder, appellant replied that it had never known until the filing of the appellee’s amended assertion of that fact that she had so married Mr. Schmidt, and further averred that, in any event, she had on May 16th of 1929, *483 in her same capacity as a feme sole and in her original name as such, renewed and agreed to pay any balance then and thereafter to become due upon its claims, hence she was now not only estopped to claim otherwise, but was bound under the law by such renewal, notwithstanding she may have then been, unknown to it, so the wife of Mr. Schmidt; the appellee, in finally pleading, denied owing any part of the debt sued upon, averring that it had been paid.' After a trial before the court without a jury, on closing, of appellant’s evidence, the learned trial court entered judgment in the appellee’s favor upon this recited finding: “No jury being demanded, all matters of fact as well as of law were submitted to the court, who after hearing the evidence offered by plaintiff (the defendants having offered no testimony, but having moved for Judgment upon the conclusion of plaintiff’s evidence, reserving the right, however, to offer proof, if the court should overrule such motion), the court is of the opinion that the claims sued upon by the plaintiff are barred by limitation, and the court so holds.” Although, as stated supra, the ap-pellee alleged her marriage to Mr. Schmidt, she neither offered any proof of that fact, nor of her asserted payment of any part of the claim so sued upon against her; it may be conceded (in fact that is the conclusion of this court) that the rearrangement between the parties of June 28th of 1926, which was prior to the appellee’s marriage to Schmidt, did constitute an agreement to accelerate into $25 monthly payments the whole paving claim against her, and that it all would have been barred at the time this suit was filed on March 19th of 1932, but for the acknowledgment and reinstatement thereof claimed by appellant to have taken place on May 16th of 1929, but this court is wholly unable to agree with the appellee that (even if she had proved her allegation that she was then the wife of Mr. Schmidt and had been since July of 1926) she was not bound by that transaction because of such coverture; on the contrary, this court holds (1) that the two letters between the parties of that date and evidencing that transaction amounted to an acknowledgment of the debt and a renewal of it by her; and (2) that she was bound thereby, being then, as she therein undertook to do, fully empowered in her pre-existing name as a feme sole, to so renew the debt and bind her separate property for it. The letters referred to under the first of these conclusions were as follows: “Houston, Tex., May 16, 1929. “Uvalde Rock Asphalt Company, 820 Dow-ling Street, Houston, Texas. “Enclosed find check for $121.80, which I understand brings the note up to date, and incidentally gives me a little more time to raise the balance due. “Please mail me statement of balance due to complete payments due you. “Cordially yours, “Mrs. G. A. Ralls.” “Houston, Tex., May 21, 1929. “Mrs. G. A. Ralls, 708 Esperson Building, Houston, Texas. “Dear Madam: We are enclosing statement of your Westheimer Road paving account, showing a, balance due, after applying your payment of May 16th for $121.80, of $244.44. This represents the third, fourth and fifth installments, all of which are past due. “We will extend this account to not later than November 1, 1929, and will expect you to pay this as soon as possible before then. Please acknowledge receipt of this statement and confirm this extension, and oblige “Yours very truly, “Uvalde Rock Asphalt Company “By M. B. Hardin.” That they amounted to acknowledgment of the debt, and an implied promise thereafter to pay it, is established by these authorities: Article 5539, R.C.S. of Texas, 1925; article 5522, R.C.S. of Texas, 1925; Webber v. Cochrane, 4 Tex. 31; Stein v. Hamman, 118 Tex. 16, 6 S.W. (2d) 352, 9 S.W. (2d) 1104; Elsby v. Luna (Tex.Com.App.) 15 S.W. (2d) 604; Howard v. Windom, 86 Tex. 560, 26 S.W. 483; Sewell v. Wilcox (Tex.Civ.App.) 290 S.W. 264; Watson v. First Nat. Bank (Tex.Com.App.) 285 S.W. 1050; Caterpillar Tractor Co. v. Churchill (Tex.Civ.App.) 40 S.W. (2d) 971; Acers v. Acers, 22 Tex.Civ.App. 584, 56 S.W. 196. As concerns the second of them, it is well settled that a married woman may execute an extension agreement without the joinder of her husband, when the purpose of it, as was the undisputed fact in this instance, is the extension of the time of payment of a lien upon her separate property, since such a contract would be for the benefit of her separate estate. Speer’s Marital *484 Rights (3d Ed.) § 186, p. 250; Texas Jurisprudence, vol. 23, § 178, p. 214. It follows that the court’s determination that the bar of limitation existe,d was error, and since the appellee offered no proof whatever upon her claim of the payment of the debt sued upon, that judgment should be here rendered against her in appellant’s favor for the balance due, together with the foreclosure of the two liens, as declared upon in its trial petition. Reversed and rendered.