70 Cal. 412 | Cal. | 1886
1. As was said by the learned judge of the Superior Court, “this action is not upon the original verbal promise. There is no averment that the defendant promised to pay plaintiffs what their services should reasonably be worth, and that they were worth ten thousand dollars. The averment is, [that in 1878 the defendant was indebted to the plaintiffs in the sum of ten thousand dollars for professional services, and that thereafter, on the 29th of July, 1878,] the defendant promised in writing to pay to the plaintiffs the sum of ten thousand dollars within two years from the twenty-ninth day of July, 1878; and the only promise in writing offered in evidence is the agreement to arbitrate. But that agreement contains no promise to pay ten thousand dollars, or any other specific sum of money. There was merely an agreement to submit matters in controversy
If the court below had allowed the proposed amendment to the complaint, the result must have been the same.
It is urged that the recital in the arbitration agreement—“ Whereas, the city of Sacramento is indebted to the firm of Curtis & Clunie for legal services rendered by said firm in the several actions, .... and whereas, the board of trustees of said city and said firm differ as to the amount of said indebtedness,” etc. — is an acknowledgment in writing such as is contemplated by section 360 of the Code of Civil Procedure.
While a debt barred by the statute of limitations may be revived by an implied promise created by a clear and unqualified acknowledgment of the debt, yet if the acknowledgment be accompanied by such qualifying expressions or circumstances, as repel the idea of a contract to pay, except to the extent or upon the conditions named, no implied promise to pay absolutely is created. (Biddel v. Brizzolara, 56 Cal. 380.) The acknowledgment must be a direct, unqualified, and unconditional admission of a debt which a party is liable and is willing to pay. The most positive acknowledgment of a pre-existing debt is insufficient if accompanied by a declaration which is inconsistent with an intention to pay. (McCormick v. Brown, 36 Cal. 185; Chabot v. Tucker, 39 Cal. 437.) If the debtor simply acknowledges an old debt, the law implies from that simple acknowledgment a promise to pay it, for which promise the old debt is a sufficient consideration. But if the debtor promises to pay the debt when he is able, or by installments, etc., the creditor can claim nothing more than the promise gives him. (Phelps v. Phelps, 3 Hare, 281.)
We agree with the learned judge below. “ The agreement to arbitrate does not contain any such an acknowl
It is insisted, however, that here the acknowledgment was made before the statute had run upon the original oral contract; that the defendant had no power to attach any condition, and that we must disregard the express promise, and look at the acknowledgment alone.
It has been said that a promise made before the statute has run vitalizes the old debt for another statutory period, while an acknowledgment or promise made after statute has run gives a new cause of action, for which the old debt is the consideration. This distinction would seem, however, only to have affected the question of remedy. (Wood on Limitations, 81.) Mr. Wood says: “The plaintiff may in the latter case, but not in the former, declare upon the new promise; “ but,” he adds, “the practice in most of the states is to declare upon the old debt, and when the statute is pleaded to reply- the new promise, and the issue is then upon the
In this state, under the. code, whenever the action is brought after the statute has run, the plaintiff can avoid a demurrer to his complaint only by averring the new promise. (Chabot v. Tucker, supra.) The declaration is always on the new promise.
Even if an unqualified promise made before the original cause of action was barred could be treated as merely modifying the original contract,—by extending the time of payment with reference to the statute of limitations,— a qualified and conditional promise, differing from the general promise to pay, must be held to be a distinct and substituted contract, and as the only contract in force after the original contract is barred. In an action brought on one promise a plaintiff cannot recover upon proof of another and different promise. The fact that the new contract was entered into before the original cause of action was barred cannot control nor change the terms or conditions of the new contract.
In the case at bar, the complaint alleged a new promise not proved. *
If the proposed amendment had been inserted in the complaint, the complaint would then have been subject to demurrer, because the complaint would have shown that no valid award had been made by the arbitrators.
Section 337 of the Code of Civil Procedure was properly pleaded. Even if it should be conceded that the first subdvision of 339 should have been pleaded (and
Order affirmed.
Ross, J., and Myrick, J., concurred.