6 P.2d 283 | Cal. Ct. App. | 1931
The plaintiff sued to recover a judgment for damages because of an alleged breach of warranty contained in a construction contract. The defendant answered and a trial was had before the court. The court made a finding that the action was barred by the statute of limitations. The plaintiff has appealed.
The plaintiff frankly states that the only point in the appeal is whether the action is barred by the statute of limitations. (Stats. 1893, p. 57, sec. 2.) The alleged breach occurred in March, 1925; the contract was completed in February, 1926; the plaintiff presented his claim to the board of control (the successor of the board of examiners) on January 3, 1928; it was rejected by that board on February 16, 1928, and this action was commenced April 3, 1928. By the terms of the statute the plaintiff was bound to commence his action ". . . within two years after such cause of action shall have accrued . . .". [1]
The question first arises what was the plaintiff's cause of action. The trial court remarked that it was breach of warranty or nothing. That remark was clearly correct. [2] The next question is when does the statute commence to run when the cause of action is a breach of warranty. The plaintiff cites and relies on Gibbons v. United States, 15 Ct. of Cl. 174, and as reported on appeal in
[3] Because the defendant did not plead the statute of limitations in its demurrer, the plaintiff claims that the defense was waived. There are two complete answers. In the first place the plaintiff's complaint was so framed that the fact that its action was barred did not appear on the face of the pleading. That being so it was not demurrable. (16 Cal. Jur. 607.) [4] In the second place even though the facts do appear on the face of the complaint and the defense is not made by demurrer it does not follow that in California the defense may not be set up in the answer or that it is waived. The plaintiff cites and relies onCalifornia Safe Deposit Tr. Co. v. Sierra Valleys R. Co.,
The judgment is affirmed.
Nourse, P.J., and Spence, J., concurred.
A petition for a rehearing of this cause was denied by the District Court of Appeal on January 16, 1932, and an application by appellant to have the cause heard in the Supreme *305 Court, after judgment in the District Court of Appeal, was denied by the Supreme Court on February 15, 1932.