
    ROCK OF AGES CORPORATION v. EL PASO MONUMENT CO.
    (No. 2228.)
    Court of Civil Appeals of Texas. El Paso.
    Feb. 7, 1929.
    Loomis &'Kirkland, of El Paso, for appellant.
    J. U. Sweeney and J. E. Quaid, both of El Paso, for appellee.
   WALTHALL, J.

This cause was tried and disposed of on plaintiff’s (appellant here) first amended original petition, defendant’s (appellee here) answer to plaintiff's first amended original petition, and plaintiff’s first supplemental petition.

No statement of facts is found in the record. The trial court mads and filed findings of fact, and, there being no controversy as to the court’s findings, we state them here. They are substantially as follows:

On the 25th day of August, 1925, plaintiff, Rock of Ages Corporation, sold and delivered to defendant, El Paso Monument Company, a bill of goods, on account, amounting to the sum of $730.72. On April 16, 1927, nothing had been paid on said account, and on April 17, 1927, defendant, of that date, executed a promissory note in the sum of $730.-72, payable to plaintiff at El Paso, Tex., payable in $73 monthly payments after date, with interest from maturity at the rate of 10 per cent, per annum, providing for the payment of attorney fees (the note is fully stated in the court’s findings). The note( was forwarded to the plaintiff. Prior to that time the claim (plaintiff’s account) had been sent to plaintiff’s attorneys, Loomis & Kirkland, for collection. On receipt of the note, plaintiff forwarded same to C. H. Kirkland of the above firm. On receipt of the note from plaintiff, Kirkland wrote defendant that on behalf of plaintiff, he declined to accept the note, giving his reason therefor. Thereafter there were negotiations in regard to the payment of the claim, defendant asking for time and time granted by Kirkland in accommodation to defendant. The note was never returned to defendant, but retained by Kirkland. Thereafter the sum of $425 was paid by defendant on said claim, leaving an unpaid balance of $325.72. On the 2d day of December, 1927, plaintiff, by its original petition, brought suit on the account for the above-stated unpaid balance. On December 30, 1927v defendant answered and pleaded, among other things, the two-year statute of limitations (Vernon’s Ann. Civ. St. 1925, art. 5526). On the filing of the plea of limitation as above, plaintiff notified defendant that it accepted the said note, and on April 10, 1928, filed its first amended original petition, declaring upon said note as its cause of action, and asked judgment thereon. The trial court concluded, in effect, that plaintiff, having sued upon the account and waited until defendant’s answer pleading the statute of limitation before noting acceptance of the note, was not entitled to recover on the note, and so entered judgment.

Opinion.

Appellant’s original petition, filed on December 2, 1927, was based on the unpaid balance of the account, and not on the note. To that suit appellee pleaded the statute of limitation of two years.

Appellant, on April 10, 1928, filed its first amended original petition, on which the case was finally tried, in which it based its cause of action on the note. To which appellee answered, in effect, that its former plea of limitations was a bar to appellant’s cause of action, and again renewed its plea.

Appellant submits that the promissory note tendered and delivered, though not accepted when tendered, but held by appellant while negotiations with reference to the account ■were being bad, and payments on tbe note were being made, and tbe note thereafter baying been accepted, tbe note became a binding obligation, a new promise upon wbicb suit could be maintained. All of tbe facts stated in tbe proposition are Aot made to appear. Appellant bad declined to accept the note immediately after it was tendered, and bad so notified appellee. While payments were made on tbe indebtedness thereafter, and while appellant bad possession of tbe note, the facts do not show, as stated in the proposition, that payments were made on ■the note. Tbe court found that “tbe sum of $425.00 was paid on said ’ claim, leaving a balance of $325.72.” Acceptance of the note having been refused as a settlement of tbe account prior to tbe payment on tbe “claim,” and appellee so notified, it would necessarily follow, as found, that the payments were made on tbe account and not on tbe note. Appellant evidently so understood it, and first sued on tbe account, and after tbe payments bad been made.

We have concluded, under tbe facts of this case, that tbe note sued on, not having been accepted when tendered, but rejected, it never became a binding obligation between the parties upon wbicb suit could be maintained. It would seem that, after tbe tender of tbe note in settlement of the account, and a definite refusal to accept it in settlement, and notice to that effect given, the matter of tbe tender of tbe note was closed, and, in order to renew the note, another transaction must be bad with reference to the note in which both parties must agree; that is, there must be a new tender of tbe note and an acceptance. If it could be said, as suggested by appellant, that it accepted tbe note after it bad been rejected, the conditions at tbe time of such acceptance bad very materially changed. Appellee bad then paid more than one-half of the indebtedness that existed at tbe time of tbe acceptance of the note, and tbe unpaid balance bad then become barred.

Tbe rule in this state seems to be well settled that, in order for a new promise to eliminate limitations and renew tbe debt already barred, tbe new promise must contain an unqualified admission of a subsisting indebtedness and expressing a willingness to pay the same. Wetzel v. Anderson & Lundberg (Tex. Civ. App.) 8 S.W.(2d) 687, and eases referred to.

It was held in Woolwine v. Storrs, 148 Cal. 7, 82 P. 434, 113 Am. St. Rep. 183, that a written request for an extension of time for tbe payment of a note, accompanied by a written promise to pay tbe same at tbe end of that time, cannot save the debt from tbe operation of tbe statute if tbe holder of tbe note does not accept tbe proposition thus made. R. C. L. vol. 903, note 13.

If it be conceded, wbicb we do not, that tbe note was revived 'by tbe acceptance after-Its rejection, and then became a new promise, tbe new promise must acknowledge tbe justice of tbe claim as.it was at the time of such acknowledgment, and express or imply a willingness to pay. Krueger v. Krueger, 76 Tex. 178, 12 S. W. 1004, 7 L. R. A. 72. At tbe time of tbe acceptance of tbe note, tbe claim was barred, suit brought on the account, and ap-pellee bad pleaded thé statute of limitations to tbe account, tbe only consideration suggested for the note

The court was not in error in entering judgment against appellant.

Tbe case is affirmed.  