21 Cal. 142 | Cal. | 1862
Norton, J. concurring.
The complaint alleges that in 1853 the plaintiff conveyed to the defendant a tract of land in the county of Solano, taking a bond for the payment of the purchase money. The bond is set out in full, and is conditioned for the payment of the money within one year from the date thereof, and indorsed upon it is a memorandum, as follows: “ Received on the foregoing bond the sum of two hundred and fifty dollars, four cows at five hundred dollars, and a due-bill, payable in ten days, for $1,000, leaving $5,200, which the said Vance, named in said bond, is to pay interest upon at the rate of thirty dollars per month; and said sum so remaining due is to be paid by said Vance to said Peña in one year from this day. Said interest of thirty dollars is to be paid at the end of each month.”
This memorandum is dated November 6th, 1855, and is signed by the plaintiff; and the evidence shows that it was assented to by the defendant, who subsequently acted upon it, but did not sign it. He paid the interest until the sixth of November, 1856, at which time he also paid a portion of the principal—the balance of the principal (with the interest which has since accrued) being still due. The suit was commenced in August, 1860; and the defendant relies upon the Statute of Limitations as a bar to the action.
Section thirty-one of the statute provides, that “ no acknowledgment or promise shall be sufficient evidence of a new or continuing contract, whereby to take the case out of the operation of this statute, unless the same be contained in some writing, signed by the party to be charged thereby.”
The next question is, whether the subsequent agreement, of which there is no written evidence except the indorsement upon the bond, is sufficient to take the case out of the statute ? The Court below held that the statute had run as against the bond, but that the subsequent agreement was a good and sufficient contract in itself, and furnished a right of action independent of the bond. Four years had not elapsed from the time the money became due under the agreement, and it was held that, treating the action as an action upon the agreement, the period of limitation had not expired. The statute commenced to run, of course, when the money became due; and whether the limitation had expired or not depends upon whether
The judgment is reversed and the cause remanded.