Standard v. Thurmond

Court of Appeals of Texas

Standard v. Thurmond

151 S.W. 627, 1912 Tex. App. LEXIS 1022

CourtCourt of Appeals of Texas

DecidedNovember 28, 1912

StatusPublished

Cited by6 cases

This text of 151 S.W. 627 (Standard v. Thurmond) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Standard v. Thurmond, 151 S.W. 627, 1912 Tex. App. LEXIS 1022 (Tex. Ct. App. 1912).

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Opinion

WILLSON, C. J.

By his promissory note dated March 28, 1907, appellant undertook to pay to appellee’s order October 1, 1907, “waiving grace and protest,” $213, interest and attorney’s fees. By his suit commenced October 2, 1911, appellee sought a recovery on the' note. As a defense against such a recovery appellant set up the statute requiring a suit based on such a cause of action to be commenced within four years from the time the cause of action accrues. Sayles’ Stat. art. 3356. A judgment having been rendered in favor of appellee for the amount of the note, appellant prosecuted this appeal.

[1-3] Appellant by his contract having waived the days of grace he otherwise would have been entitled to (Sayles’ Stat. art. 318; 1 Daniel, Neg. Inst. § 633; Perkins v. Bank, 38 Mass. [21 Pick.] 485; Hirshfield v. Bank, 83 Tex. 452, 18 S. W. 743, 15 L. R. A. 639, 29 Am. St. Rep. 660), it is clear, under the rules *628 controlling in such cases (Geistweidt v. Mann, 37 S. W. 372; Watkins v. Willis, 58 Tex. 523; Smith v. Dickey, 74 Tex. 61, 11 S. W. 1049), that appellee’s cause of action accrued October 2, 1907. To be without the bar of the statute, his suit must have been commenced within four years from that date. As four years from October 2, 1907, expired with October 1, 1911, and the suit was not commenced until the next day, it is plain that it was within the bar of the statute and could not be maintained. That October 1, 1911, was' Sunday, did not operate to extend the time within which the suit otherwise must have been commenced. Insurance Co. v. Shrader, 89 Tex. 40, 32 S. W. 872, 33 S. W. 112, 30 L. R. A. 498, 59 Am. St. Rep. 25; Allen v. Elliott, 67 Ala. 437; Perkins v. Bank, 38 Mass. (21 Pick.) 485.

The Judgment will be reversed, and a judgment will be here rendered that appellee take nothing by. his suit.

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WILLSON, C. J.

By his promissory note dated March 28, 1907, appellant undertook to pay to appellee’s order October 1, 1907, “waiving grace and protest,” $213, interest and attorney’s fees. By his suit commenced October 2, 1911, appellee sought a recovery on the' note. As a defense against such a recovery appellant set up the statute requiring a suit based on such a cause of action to be commenced within four years from the time the cause of action accrues. Sayles’ Stat. art. 3356. A judgment having been rendered in favor of appellee for the amount of the note, appellant prosecuted this appeal.

[1-3] Appellant by his contract having waived the days of grace he otherwise would have been entitled to (Sayles’ Stat. art. 318; 1 Daniel, Neg. Inst. § 633; Perkins v. Bank, 38 Mass. [21 Pick.] 485; Hirshfield v. Bank, 83 Tex. 452, 18 S. W. 743, 15 L. R. A. 639, 29 Am. St. Rep. 660), it is clear, under the rules *628 controlling in such cases (Geistweidt v. Mann, 37 S. W. 372; Watkins v. Willis, 58 Tex. 523; Smith v. Dickey, 74 Tex. 61, 11 S. W. 1049), that appellee’s cause of action accrued October 2, 1907. To be without the bar of the statute, his suit must have been commenced within four years from that date. As four years from October 2, 1907, expired with October 1, 1911, and the suit was not commenced until the next day, it is plain that it was within the bar of the statute and could not be maintained. That October 1, 1911, was' Sunday, did not operate to extend the time within which the suit otherwise must have been commenced. Insurance Co. v. Shrader, 89 Tex. 40, 32 S. W. 872, 33 S. W. 112, 30 L. R. A. 498, 59 Am. St. Rep. 25; Allen v. Elliott, 67 Ala. 437; Perkins v. Bank, 38 Mass. (21 Pick.) 485.

The Judgment will be reversed, and a judgment will be here rendered that appellee take nothing by. his suit.

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