Visher v. Wilbur

The complaint in this action alleges: “ . . . That on or about the 1st day of January, 1894, one Sebastian Visher deposited and left with the defendant, I. R. Wilbur, the sum of $1,722.77, lawful money of the United States, upon the express agreement and condition that the same should be held by the said I. R. Wilbur in trust for the said Sebastian Visher, and should draw interest from the time of such deposit to the time of payment at the rate of seven per cent per annum, and that the same should be paid to the said Sebastian Visher upon his demand therefor.” Following this allegation is an averment that on the first day of April, 1896, the defendant rendered to the deceased an itemized statement, showing the original balance due from said defendant to said Sebastian to be the sum of $1,993.95, and also showing various items of expenditure made by defendant for and on account of said intestate of plaintiff, aggregating the sum of $1,309.60, leaving, at the time of the rendering of said statement, the sum of $684.35 still due and unpaid. It is this last-mentioned sum which the plaintiff in his complaint alleges to be the money held by defendant in trust for the benefit and use of his intestate during the lifetime of the latter. By the complaint we are informed that Sebastian Visher died intestate on the fifteenth day of November, 1898, in San Joaquin county, and that on the twenty-eighth day of December, 1903, the plaintiff, having previously made due application therefor, was granted, by the superior court of San Joaquin county, letters of administration upon the estate of said deceased. It is alleged that, after his appointment as such administrator, the plaintiff made demand upon the defendant for payment to and settlement with him, as such representative of the estate of the deceased, of the amount shown to be the balance due said estate by the statement rendered to deceased in his lifetime by said defendant.

The defendant had judgment, from which, upon a bill of exceptions, plaintiff presents this appeal.

The evidence taken consisted mainly of the testimony given by. the defendant. The court found that “it is not true that on or about the 1st day of January, 1894, Sebastian Visher deposited and left with the defendant the sum of $1,722.77 ... or any other sum upon any agreement or condition that the same should be held by the defendant in trust for said Sebastian Visher; that it is not true that on or about the first day of April, 1896, or at any other time, the said defendant made or gave to said Sebastian Visher a statement in writing of the amount of moneys held by him in trust for said Sebastian Visher as set forth and alleged in said complaint or otherwise.” The third finding of the court is as follows: “It is true that on or about the first day of April, 1896, the said defendant made and gave to Sebastian Visher the written statement of account in the words and figures as set forth in said complaint, and that said written statement of account was made and given by the said defendant to said Sebastian Visher as the written statement of account of the

It would serve no useful purpose to present or attempt an elaborate review of the facts established by the evidence contained in the record. It may, however, be well to remark, as affording some explanation of the reason for the gifts found by the court to have been made by the defendant to the deceased, in the latter’s lifetime, that the defendant was the son in law of the deceased; that the most amiable and cordial personal relations appeared to have always existed between them—in fact, their personal relations seem to have

That the cause of action set forth in the complaint is barred by the provisions of section 337 of the Code of Civil Procedure, we think the evidence clearly establishes. The language of that section is to the effect that the time within which an action may be commenced “upon any contract, obligation, or liability founded upon an instrument in writing executed in this state,” shall be four years after such 'cause of action shall have accrued.

Counsel for appellant alleges in his complaint, and he argues in his briefs the case principally from that standpoint, that the relations existing between the defendant and the deceased in the latter’s lifetime were, as to the money to recover which this action is brought, those of trustee and cestui que trust; or, in other words, that said money was deposited by the deceased with the defendant upon the express understanding and condition that the same should be held in trust by defendant for the benefit and use of said Sebastian Visher. There is much force in the suggestion of counsel for the respondent that, upon the theory that the object of the action is the enforcement of a trust, there results such a wide variance between the allegations of the complaint and the proofs that a judgment responding to that issue would find exceedingly frail, if any, support from findings founded upon the evidence presented by the record. The evidence indisputably shows the relations of the parties to have been at all times nothing more than the ordinary relations of debtor and creditor, and that the particular transaction from which the alleged indebtedness arose was in no manner impressed with the qualities of a trust. There is nothing in the written statement of account, as pleaded in the complaint, from which it may be inferred that the moneys to which it relates were deposited with the defendant to be by him held in trust for the deceased. On the contrary, the statement, upon its face, is of a character to indicate that it was only intended as an adjustment of certain accounts between the parties. The

It is thus apparent that, whatever might have been the reason or motive of defendant in sending to deceased the statement in question, the document constituted, if anything, an adjustment of the accounts between the parties. And, ‘ as soon as an account ceases to be open, and the balance is ascertained and assented to, it becomes a stated account, and the balance is at once subject to the operation of the statute;

But counsel for appellant, evidently persuaded that the trust theory of his complaint is utterly untenable under the evidence adduced, contends that several letters written by the defendant and a claim filed by him against the estate of the deceased, which were received in evidence, amount to such an acknowledgment in writing of the proscribed liability as to warrant the implication of a new promise, and thus the right of action thereon has been revived. These letters were, with one exception, written prior to the appointment of plaintiff as administrator of the estate of the deceased, and all of them, with the exception of one, which was written to plaintiff.’s wife, were addressed to the plaintiff. Assuming that those written prior to appellant’s appointment as administrator contain language which would constitute, if written to the creditor or his agent duly authorized to act for him with reference to the particular matter, a sufficient acknowledgment to take the debt out of the operation of the statute, we cannot see how such letters, having been addressed to persons between whom and the defendant there was no privity of contract, could in any view have the effect of reviving the right of action upon the indebtedness pleaded and to which it is claimed they refer. The plaintiff, at the time of the receipt of the letters, while interested as an heir in whatever estate the deceased might have left, was not an agent or representative of or otherwise duly authorized to act for and in behalf of the estate. The test would be, it seems to us, was the party to whom the acknowledgment, if any, was made legally competent to make a contract with respect to the subject as to which the statute had run? Could the plaintiff, before appointment as administrator, have legally negotiated and consummated a binding contract in behalf of the estate? “Under the modern rule,” says Wood on Limitations, third edition, section 79, “that an acknowledgment or promise must be such as fairly raises an implied promise to pay the debt, it follows as a matter of course that the acknowledgment or promise must not only be made by a person legally competent

But even if these letters, so addressed to plaintiff before he became vested with any legal power over the estate and its affairs, could properly be construed to have been addressed to one having the authority to contract for the estate (and it seems that upon principle they cannot be so construed), it is clear that their language cannot be construed either into an express promise to pay, or an acknowledgment from which a promise to pay the old debt can be implied by the law. There is nothing in the language of the letters which indicates that they refer to the particular claim upon which plaintiff declares with that clearness, directness and distinctness made requisite in such a case by the law, nor, in fact, is it even of that direct, distinct and unequivocal nature as to any preexisting liability which is essential to an acknowledgment from which the law may imply a promise. It is, of course, well understood that, in order to resuscitate a cause of action which has once been relegated to a state of repose by the operation of the statute of limitations, it is necessary under the law (Code Civ. Proc., sec. 360) that there must have been executed, as to the debt, obligation or liability originally giving rise to such cause of action, an instrument in writing, signed by the party to be charged. This is not only true, but where there is no express promise, such instrument must contain an acknowledgment from which the law may imply a promise to pay. (Biddel v. Brizzolara, 56 Cal. 382 .) And such acknowledgment must be a direct and unqualified admission of an existing debt which the party is willing to pay. (Biddel v. Brizzolara, 56 Cal. 382 ; McCormack v. Brown, 36 Cal. 180 , [ 95 Am. Dec. 170 ]; Farrell v. Palmer, 36 Cal. 187 .) “If there be no express promise, but a promise is to be raised by implication of law from the acknowledgment of the party, such' an acknowledgment ought to contain an unqualified and

The first letter addressed to the plaintiff by the defendant upon the subject of the alleged debt due the estate from defendant was written under date of May 18, 1903—over seven months prior to plaintiff’s appointment as administrator, etc.—and was evidently occasioned by a demand made upon defendant for a settlement of the balance which appeared to be due the deceased from the statement referred to. This letter, which is of considerable length (and which was admitted in evidence upon the offer of the defendant), from its beginning to its conclusion, repeatedly declares that at the time of the death of plaintiff’s intestate the latter was indebted to the defendant in a large sum of money, and that the defendant owed the deceased nothing at the time of his death. This statement, he asserts, he could establish to the satisfaction of plaintiff if the latter would call at his office and inspect his books and papers showing the accounts between the deceased and the defendant. A garbled quotation from this letter by appellant in his brief, embracing only a part of the only sentence in the letter upon which he could place any construction favorable to his contention, can afford him no comfort, because there is nothing in the quoted language from which any sort of an acknowledgment of the old debt may be drawn. The second letter, under date of June 12, 1903, written, it will be noticed, over six months before plaintiff was appointed administrator of the estate, reiterates the denial that defendant was in any way or to any extent indebted to Visher at his death. The letter dated March 15, 1904, addressed to plaintiff, is brief and reads as follows: “Dear Sir and Brother: Your favor of the 14th is just received and noted. In answer will say that if the Visher estate has any valid claim against me I will pay it if I ever get money enough to do so. Please send me the claim.” There was also received in evidence a letter dated

Complaint is'made that the court erred in a number of rulings upon the admissibility of evidence to the prejudice of appellant’s rights. We have examined the record with care, and have found no errors prejudicial to appellant, either in the rulings or the findings of the court. The evidence, as previously stated, fully supports the findings, and from every standpoint from which the record may be viewed, we think the judgment is in perfect harmony with the facts and the law.

The judgment appealed from will, therefore, be affirmed.

Chipman, P. J., and Burnett, J., concurred.

A petition for a rehearing of this cause was denied by the district court of appeal on June 20, 1907, and the following opinion was then rendered thereon:

It is conceived proper, in denying the petition for a rehearing herein, to add to what has been said in the main opinion that, from our original examination of the record in this cause we felt justified in concluding that the trust theory of the complaint was adopted for no other reason than to obstruct the successful interposition of the statute of limitations against plaintiff’s right of action. We concluded, from what we conceived to be a painstaking examination and careful analysis of the complaint, that the facts pleaded, with the exception of a few general averments amounting to mere conclusions of the pleader, failed to show the transaction between

The point made by appellant in his original argument, and vigorously renewed in his petition, that the filing by the defendant against the estate of a claim, showing that at one time defendant was indebted to the deceased, but that through disbursements of certain moneys for and on behalf of deceased by the defendant the latter became a creditor rather than a debtor of the deceased, is an acknowledgment of the debt, and restores to plaintiff a right of action for the same, is, we think, without merit, and so plainly did it so appear to us in our original investigation of the record that we did not feel called upon to give it extended notice in the main opinion. Counsel, however, seems to give the question such serious consideration in his petition for a rehearing that we feel justified in giving it, briefly, further attention. The argument is that the items set forth in the claim and which show money to have been paid out for the benefit of the deceased by the defendant, and which were so set out in said claim as a setoff to any amount which might at one time have been due deceased, cannot be considered, because they had not been presented, as required by law, to the administrator of the estate of said deceased for allowance and payment; that “such claims cannot be pleaded in bar of any action, or paid until they have been thus presented, and either allowed or disallowed”; that, therefore, the admission in said claim of the original indebtedness to the deceased constitutes an acknowledgment from which the law will imply a promise to pay the debt; hence the right of recovery thereon in the plaintiff is revived. The view, briefly expressed, as to this point in the original opinion, was that there could be no such acknowledgment of an “outlawed” debt as would restore a lost right of action thereon, where a party files or submits in writing against another a claim, as to which an action could not be maintained for any legal reason, said claim showing a mutual account, according to which it appears that at one time the claimant was indebted to the party against whom it is presented, but that the latter, at the time of the filing or submission of such claim, is indebted to the claimant. How can such a claim be construed to be an acknowledgment of an old debt when the defendant by the very nature of

The petition for a rehearing is denied.

Chipman, P. J., and Burnett, J., concurred.

A petition to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on July 18, 1907.