137 P. 25 | Cal. | 1913
The plaintiff appeals from a judgment given against it upon sustaining a demurrer to the complaint. This is the second appeal in the action. Upon a former trial judgment was given for the plaintiff, and upon appeal by the defendant, the judgment was reversed and the cause remanded for a new trial. (See MerchantsNat. Bank v. Bentel,
The grounds of demurrer assigned were that the complaint did not state facts sufficient to constitute a cause of action, that the action was barred by section
The facts alleged are as follows: 1. On August 23, 1906, the defendant borrowed of plaintiff five thousand dollars and gave to plaintiff his promissory note of that date, thereby promising to pay said sum to plaintiff one day after said date; 2. "The defendant remained indebted to plaintiff according to the terms" of said note until January 24, 1907. He then paid the plaintiff one thousand dollars and the interest on said note, leaving due thereon a balance of four thousand dollars. At the same time he substituted for said note and delivered to plaintiff instead thereof a promissory note of one W.H. Barlow, payable to said defendant on demand with nine per cent interest per annum at Barlow Bragdon's offices, dated July 8, 1906, for eight thousand dollars, of which four thousand dollars then remained unpaid. He indorsed this note at the time of the delivery by a general indorsement, merely writing his name on the back thereof; 3. There was at that time no agreement or understanding that the note of Barlow should be accepted in payment of the said indebtedness of the defendant to plaintiff. It was then understood and agreed that this said indebtedness should continue and that he would pay the same to plaintiff. His indorsement was intended by him and accepted by plaintiff as and for a guaranty to plaintiff that the Barlow note would be paid in satisfaction of defendant's debt to plaintiff; 4. On November 27, 1907, at the office of Barlow, "plaintiff demanded of said Barlow that he pay said note, and thereafter on the same day notified defendant that said note was not paid and demanded that he pay the same"; and, 5. No part of said sum of four thousand dollars due from defendant to plaintiff has been paid, except the interest up to September 13, 1907.
If the complaint is regarded as an attempt to set forth a cause of action against the defendant upon his indorsement of the Barlow note, it fails to state sufficient facts. There is nothing to show that presentment for payment was waived *476
or excused. Such presentment to the maker, accompanied with a demand for payment, is essential to fix the liability of the indorser of a promissory note upon his indorsement. (Applegarth
v. Abbott,
The appellant practically concedes this proposition. Its theory is that the complaint states a cause of action upon the original debt created by the transaction of borrowing and lending on August 23, 1906. It is argued on its behalf that the debt arose upon the implied agreement of the borrower to repay the money borrowed, that the giving of defendant's note for the sum borrowed did not extinguish that debt, but merely extended the time of payment thereof until the maturity of that note, and that the substitution thereafter of *477
the Barlow note for his own note, it not being taken as payment, did not extinguish the original debt or his own note, but again extended the payment of both to the time of the maturity of the Barlow note. Upon this theory, counsel say, the facts stated show a cause of action upon the debt of four thousand dollars due from the defendant to plaintiff, and therefore, that the complaint states facts sufficient to constitute a cause of action. The authorities in this state support the proposition stated.(Higgins v. Wortell,
The complaint cannot be regarded as a statement of a cause of action on the implied contract. No promise is alleged except that expressed in the original note given when the money was borrowed, nor is the indebtedness alleged in any other manner. If the complaint is good it is because it states a cause of action upon the note of August 23, 1906, due one day after its date. The third amended complaint was filed on October 25, 1911. If that date is taken as the beginning of the action, it is barred by the four years' limitation of section
The judgment is affirmed.
Sloss, J., and Angellotti, J., concurred. *479