68 P. 304 | Cal. | 1902
Plaintiff sues on three counts to recover for money alleged to have been loaned by plaintiff to defendant: (1) For money loaned by plaintiff to defendant more than four years before the commencement of the action, to wit, $1,000, at five per cent interest, which defendant has acknowledged in writing within four years, and alleging a payment of $300 in the year 1898, leaving due $850; (2) for the same amount, and that defendant promised in writing to pay plaintiff’s claim within four years last past; (3) on an account stated June 15, 1899, showing a balance due plaintiff
The court made the following findings: (1) That plaintiff did not loan to defendant, as alleged, or at any time, the sum named, or any other sum. (2) That plaintiff received from defendant $300 in 1898, but the same was not paid on any indebtedness owing by defendant to plaintiff, and it is not true that there was left a balance of $850, or any other sum due plaintiff. (3 and 4) That it is not true that defendant acknowledged said or any indebtedness to plaintiff, or promised plaintiff, in writing or otherwise, to pay the same. (5) It is not true that an account was stated between plaintiff and defendant June 15, 1899, or at any time; nor that a balance was found' due plaintiff from defendant at that or any time of $817.14, or any other sum. It is true defendant has not paid said sum. (6) That plaintiff never at any time loaned defendant any money, at his request or otherwise, and, if plaintiff had loaned the sum of money claimed in the amended complaint, the cause of action is barred by section 387 of the Code of Civil Procedure. As conclusion of law, the court found that defendant is entitled to judgment for costs.
Defendant does not deny that a loan of £200 was made to him, but he claims that it was made by his brother, plaintiff’s husband. Plaintiff claims that the evidence shows the loan to have been made by her, and therefore the first finding is not supported by the evidence. Upon this issue plaintiff claims that, although there may be a conflict in the evidence, yet, as most of the evidence submitted by her was in the form of depositions, this court is not bound by the usual rule; citing Wilson v. Cross, 33 Cal. 60. In the present ease some
Appellant contends that findings marked 3 and 4, and so much of finding 6 as is in favor of defendant on the statutes of limitation, are unsupported by the evidence. She claims that the first two causes of action are based on section 360 of the Code of Civil Procedure, which reads: “No acknowledgment or promise is sufficient evidence of a new or continuing contract, by which to take the case out of the operation of this title [relating to the time of commencing actions], unless the same is contained in some writing, signed by the party to be charged thereby.” The difficulty we find in applying the evidence introduced to prove an acknowledgment or promise is that it all relates to an indebtedness which plaintiff assumes was originally created in her favor by defendant, whereas the court found that defendant never borrowed any money from her, and never was indebted to her, and that the indebtedness which she now claims was acknowledged, or which defendant promised he would pay to her, was a debt due to her husband. Section 360 refers to the acknowledgment or promise of the party charged by the original contract, to the person in whose favor the contract was made. It does not refer to the undertaking of one to answer the debt or default of another, and plaintiff does not claim that her action arises from such a promise. If, therefore, it be conceded that the
As to the alleged account stated, it was prepared by plaintiff’s attorney, and sent to defendant with a blank indorsement acknowledging its correctness and a promise to pay it. But defendant declined to sign the paper. This account was stated long after it was barred by the statute, and defendant’s silence as to its correctness cannot be taken as may the silence of the debtor when served with a live stated account. An oral admission of an account stated which is barred does not remove the bar, because section 360, supra, stands in the way: Auzerais v. Naglee, 74 Cal. 60, 15 Pac. 371; Kahn v. Edwards, 75 Cal. 192, 7 Am. St. Rep. 141, 16 Pac. 779.
Appellant urges an estoppel by conduct against defendant. We fail to discover any elements of estoppel in the case; and, besides, an estoppel in pais cannot be urged as against the plain requirements of the statute that the promise must be evidenced by writing to remove the bar. Such proof thus becomes exclusive.
The judgment and order should be affirmed.
We concur: Gray, C.; Haynes, C.
For the reasons given in the foregoing opinion the judgment and order are affirmed.