
    REMY v. SAYEG.
    (No. 10329.)
    Court of Civil Appeals of Texas. Dallas.
    Dec. 8, 1928.
    Moroney & .Moroney, of Dallas, for appellant.
    Hexter, Rice & Hexter, of Dallas, for ap-pellee.
   LOONEY, J.

John M. Sayeg sued L. B. Remy, and alleged substantially that on December 20, 1921, defendant gave plaintiff his promissory note for $700, due 60 days after date, February 18, 1922, and pledged a diamond scarf pin, of the value of $400, as security ; that, about one month after the note matured, the parties entered into a parol agreement, extending- the note for one year from its original due date; and further alleged that about October 25, 1926, defendant acknowledged in writing the justness of the debt; wherefore, plaintiff asked judgment for his debt, and foreclosure of the lien on the pledge.

The defendant urged, both by exception and plea, the statute of limitation of two and four years (Rev. St. 1925, arts. 5526, 5527). The case was tried to the judge who, after overruling defendant’s exceptions, rendered judgment in favor of plaintiff for debt and foreclosed tbe lien.

The questions presented by defendant for reversal arise under bis pleas of limitation.

It is evident tbe note was barred by tbe four years statute of limitation when the suit was filed; however, plaintiff relies on tbe pa-rol extension of one year to rescue tbe claim from tbe bar. Defendant contends that tbe agreement to extend was invalid for want of consideration, and further that, even if valid, tbe cause of action based thereon was barred by tbe two years statute.

The evidence justifies tbe conclusion that, after tbe note matured, tbe parties made a verbal agreement to extend tbe note for one year from its original due date. Thus impliedly, plaintiff agreed not to sue upon tbe note and defendant agreed not to pay within tbe stipulated time. Under tbe new arrangement, plaintiff secured tbe benefit of an interest-bearing obligation for a definite period, and defendant secured tbe benefit of forbearance for the same period. These fácts, in our opinion, evidence a valid extension agreement.

The leading case in this state on this subject is Benson v. Phipps, 87 Tex. 578, 580, 29 S. W. 1061, 47 Am. St. Rep. 128. This has been cited and followed in tbe following, to wit: Delta County v. Blackburn (Tex. Civ. App.) 90 S. W. 904; Carter-Battle Grocer Co. v. Clarke (Tex. Civ. App.) 91 S. W. 882; Wright v. Deaver, 52 Tex. Civ. App. 130, 114 S. W. 165; Fambro v. Keith, 57 Tex. Civ. App. 302, 122 S. W. 40; Matthews v. Towell (Tex. Civ. App.) 138 S. W. 169; Manes v. Bletsch (Tex. Civ. App.) 239 S. W. 307, 308; Howth v. Case (Tex. Civ. App.) 280 S. W. 238, 241; Case v. Howth, 116 Tex. 434, 438, 293 S. W. 800.

We agreed with appellant, however, that tbe cause of action, based on tbe parol extension agreement, was barred by tbe two years statute when the suit was instituted.

Where a new promise, such as tbe one under discussion, is relied upon to avoid a plea of limitation, whether made before or after the bar is complete, it constitutes tbe cause of action and must be declared upon. Coles v. Kelsey, 2 Tex. 542, 47 Am. Dec. 661; Howard v. Windom, 86 Tex. 560, 565, 26 S. W. 483; Cain v. Bonner, 108 Tex. 399, 401, 194 S. W. 1098, 3 A. L. R. 874. Where tbe new promise rests in parol, tbe two years statute controls. Article 5526, subdivision 4, R. S. 1925; First State Bank v. Bowman (Tex. Civ. App.) 203 S. W. 75, 76.

As tbe extension expired February 18, 1923, tbe cause of action based thereon was barred by tbe two years statute prior to tbe institution of tbe suit.

Plaintiff also relies upon a written acknowledgment of tbe justness of tbe debt to remove tbe case from the bar. The letter of tbe defendant relied upon is as follows: “I am perfectly willing to pay tbe note if Mr. Sayeg will return to me tbe same diamond that I put up for collateral. This pin will have to be passed on by the man from whom tbe pin was purchased in New York.”

This letter, in our opinion, is a sufficient acknowledgment of tbe justness of tbe claim to avoid tbe plea of limitation. Tbe implication is inescapable that, by expressing a willingness to pay on return of tbe diamond pledged as security, defendant recognized tbe note as a just and subsisting obligation against him. Tbe note mentioned in tbe letter is evidently tbe one involved in tbe suit; if not, tbe burden was upon defendant to show to tbe contrary (Mitchell v. Clay, 8 Tex. 443, 447). So we conclude that tbe letter was a sufficient acknowledgment to take tbe case from tbe bar of limitation.

Defendant contends further that tbe offer to pay was conditional, and that plaintiff failed to aver and prove compliance with tbe stipulation, or that be was ready, able, and Willing to comply.

Where a debt is barred, tbe debtor is at liberty to prescribe tbe terms on which’he is willing to pay, and tbe creditor can only avail himself of the new promise upon these terms. Mitchell v. Clay, 8 Tex. 443; Salinas v. Wright, 11 Tex. 572, 575; McDonald v. Gray, 29 Tex. 80; Rowlett v. Lane, 43 Tex. 274, 276.

Defendant’s offer to pay was conditioned on tbe return to him by plaintiff of tbe same diamond pledged as security. This was tbe vital fact, and as a means of identity be stipulated that tbe question should be passed Upon by tbe man in New York from whom tbe pin was purchased. This stipulation was never complied with in terms, but we find from tbe undisputed evidence that plaintiff accepted defendant’s terms and offered to have tbe identity of tbe pin passed upon by tbe man in New York from whom it was purchased, but was unwilling, to surrender tbe pin to defendant unless his debt was first paid. Át tbe trial, plaintiff produced a diamond stick pin and testified, that it was tbe original pin pledged by defendant and offered to deliver same to defendant on payment of the debt. After bearing tbe evidence, the court rendered judgment in favor of plaintiff for tbe debt and foreclosed tbe pledgee’s lien on tbe diamond pin, evidently on a finding, among others, of tbe fact that tbe pin exhibited in court was tbe identical one pledged.

Believing tbe court was justified in finding that plaintiff accepted defendant’s proposal and endeavored to comply, and did substantially comply, we are unwilling to disturb tbe judgment, and it is accordingly affirmed.

Affirmed.  