Butt v. Burkett

Plaintiff sued on a promissory note given for the principal sum of $5,500, and upon which there was claimed to be due an unpaid balance of $855. Defendants’

The note, a copy of which was embodied in the complaint, was executed on July 1, 1927, and made payable two years after date. Consequently, according to its terms, the legal remedy afforded for its collection expired by limitation of the statute on July 1, 1933; and the present action was not filed until May 22,1935. However, the complaint alleged that a payment was made on said note on January 9, 1934; also that the makers of the note have “at all times since the execution of said note and to and including the 9th day of January, 1934, admitted the existence of said obligation and have on many occasions subsequent to the execution of said note, both prior and subsequent to July 1, 1933, and within four years prior to the filing of this action, acknowledged to plaintiff in writing the existence of said obligation to plaintiff herein”. Plaintiff contends, therefore, that the foregoing alleged facts are legally sufficient to remove the bar of the statute of limitations. We are unable to sustain this contention.

In Clunin v. First Federal Trust Co., 189 Cal. 248 [ 207 Pac. 1009 ], the Supreme Court reviewed many of the former decisions dealing with renewal acknowledgments, and it was there said: “It is clear from all these decisions that no writing is sufficient as an acknowledgment under section 360 [Code Civ. Proc.], unless it contains some reference to a debt, which, either of itself or with the aid of permissible evidence of extrinsic facts in explanation, amounts to an admission that there is a debt existing to the creditor to whom the writing is sent which the debtor is liable to pay and willing to pay.” (Italics ours.) In so holding the court pointed out that the first decisions in this state upon the subject showed some uncertainty with respect to the character of writing by which the acknowledgment should-be shown, but that in subsequent cases the law was crystallized into a clear statement of the rule. And then taking up those subsequent cases, the court went on to say: “In McCormick v. Brown, 36 Cal. 180 , 185 [ 95 Am. Dec. 170 ], where thé court was considering the effect of a letter as an acknowledgment of a debt, it was said: ‘The acknowledgment referred to in

Here none of the written acknowledgments plaintiff relied upon were pleaded in haec verba, nor were the contents of any of them set forth from which it might be determined that either singly or collectively they amounted to a direct, unqualified and unconditional admission of the debt which defendants were liable for and willing to pan}; nor did plaintiff plead that such was their legal effect. As will be noted, all that was alleged was that defendants “acknowledged to plaintiff in writing the existence of said obligation to plaintiff herein”. It is evident, therefore, that in that state of the pleading the trial court under the authorities above cited properly held that the facts alleged were legally insufficient to remove the bar of the statute of limitations.

Nor did the fact that a payment was made on the outlawed debt satisfy the requirements of said section 360, for in this regard it is now well settled that in order to constitute

We find nothing in any of the eases cited by plaintiff which is at variance with the views above expressed, or which would tend to sustain the sufficiency of the complaint. To the contrary, the law declared in several of them, notably in Searles v. Gonzalez, 191 Cal. 426 [ 216 Pac. 1003 , 28 A. L. R. 78 ], Concannon v. Smith, 134 Cal. 14 [ 66 Pac. 40 ], and Shirley v. Shirley, 83 Cal. App. 386 [ 256 Pac. 823 ], clearly supports the trial court’s ruling.

The judgment is affirmed.

Tyler, P. J., and Cashin, J., concurred.