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Wahl v. McCaddon

79 Cal. App. 294 Court Third Appellate District. Decision date 1926-09-11 Docket Civ. No. 3139 English

Delivered by FINCH, P. J.

Contents

Majority

p. 294
[Civ. No. 3139.
Third Appellate District.
September 11, 1926.]
ELIZABETH WAHL, Respondent, v. JAMES A. McCADDON, as Administrator, etc., et al., Appellants.

Headnote

[1] Statute op Limitations — Action on Promissory Note — Evidence.—In this action in so far as it is based upon a certain promissory note,'it is held that at the time the action was commenced it was not barred by the statute of limitations.
(1) 37 C. J., p. 1127, n. 78.
1. -See 16 Cal. Jur. 574.
APPEAL from a judgment of the Superior Court of San Diego County. C. N. Andrews, Judge.
Affirmed.
The facts are stated in the opinion of the court.
James E. O’Keefe for Appellants.
John H. McCorkle for Respondent.

This is an appeal by the defendant McCaddon from a judgment in favor of the plaintiff. [1] The only question presented by the appeal is whether, at the time the action was commenced, it was barred by the statute of limitations in so far as it is based upon a certain promissory note.

In January, 1922, Alice C. Moore, now deceased, was indebted to John Wahl, also now deceased, in certain sums of money, evidenced by three promissory notes, secured by mortgages on real estate, the note in question being dated February 2, 1917, and payable one year after the date thereof. During the month first mentioned the parties to the notes executed an instrument, reciting the execution of the notes and that Alice C. Moore was desirous of securing an extension of time for the payment thereof, and providing as follows: “Now therefore in consideration.of one dollar, the receipt whereof is hereby acknowledged, it is mutually agreed between the said John Wahl and said Alice Copeland Moore that the time of payment of the principal sum- as mentioned in each of the three promissory notes and in

p. 295
accordance with the terms and conditions thereof is hereby extended for a period of one year from the 27th day of January, 1922, and the said Alice Copeland Moore on her part hereby promises to pay said notes and each one thereof on the date when the same become due under said extension and hereby confirms the execution of said notes and said mortgages and hereby assumes the payment thereof and each thereof.” Thereafter said John Wahl died and, on the administration and settlement of his estate, the three notes were distributed to the plaintiff. Alice C. Moore also died and defendant MeCaddon was duly appointed administrator of her estate. This action was commenced April 10, 1924.

It so clearly appears that the action was not barred at the time of the commencement thereof that it is deemed sufficient to cite the following: Code Civ. Proc., see. 360; Southern Pac. Co. v. Prosser, 122 Cal. 413 [ 52 Pac. 836 , 55 Pac. 145 ]; Wilcox v. Gregory, 135 Cal. 217 [ 67 Pac. 139 ]; Dixon v. Bartlett, 176 Cal. 572 [ 169 Pac. 236 ]; Curtis v. Holee, 184 Cal. 726 [ 18 A. L. R 1024 , 195 Pac. 395 ]; Minifie v. Rowley, 187 Cal. 481 [ 202 Pac. 673 ]; Searles v. Gonzalez, 191 Cal. 426 [ 28 A. L. R 78 , 216 Pac. 1003 ].

The judgment is affirmed.

Pullen, J., pro tem., and Plummer, J., concurred.

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