59 P. 989 | Cal. | 1900
Action against defendant as a stockholder in the Paul O. Burns Wine Company, a corporation. Defendant pleaded the statute of limitations by demurrer, which being overruled, and defendant declining to answer, judgment passed for the plaintiff, from which this appeal is prosecuted. On August 15, 1894, the wine company was indebted to defendant and others in the sum of $30,000, to pay which it on that day made to defendant three promissory notes for $10,000 each, payable respectively September 25, 1894, October 15, 1894, and November 15, 1894, and they were indorsed by plaintiff and his assignors; on July 27, 1895, the wine company borrowed from one Cozzens the sum of $10,000, payable one year after date, *526 said money being borrowed to pay the above note for $10,000 falling due September 25, 1894, and it was so paid by the wine company; plaintiff and his assignors indorsed the note given to Cozzens; the wine company paid these several liabilities in part, and plaintiff and his assignors were compelled to pay the balance, which they did as follows: January 21, 1897, $3,000 on the Cozzens note; January 25, 1897, $400 to defendant; January 28, 1897, $20 to defendant; April 8, 1897, $1,200 on Cozzens' note; April 8, 1897, $1,150 to defendants; April 8, 1897, $50 to defendant; February 21, 1898, $6,073.75 to defendant on the note due October 15, 1894; February 21, 1898, $2,234.75 on the Cozzens note. The complaint was filed August 23, 1898.
Appellant's contention is, that the indebtedness of the wine company amounting to $30,000 on August 15, 1894, was created on that day within the meaning of section
Respondent's contention is, that the action is upon an indebtedness created by the fact that a payment was made by a surety of his principal's debt; that this debt is from the principal to the surety, and is not the other debt for which both were bound to the payee of the notes; that it is an entirely new and distinct debt, as would be the debt created had the principal borrowed the money from the surety, or from some one else, and with the money thus borrowed had paid the notes. In respondent's view of the case we concur. Plaintiff's and his assignors' primary liability was to the payee of the notes; by signing the notes they became responsible to the payee for the performance of the obligation of the wine company. (Civ. Code, sec. 2831) When they, as sureties, paid the obligations the wine company became *527
bound to reimburse them (Civ. Code, sec.
The rule is thus stated by Mr. Wood in his work on Limitations, volume 1, page 394: "Where a surety is compelled to pay a debt, the statute begins to run against his claim from the day of such payment, and not from the date of the original obligation" (see, also, 1 Brandt on Suretyship, sec. 230; see, also, cases cited in 24 Am. Eng. Ency. of Law, 792); and there can be no different rule where the principal is a corporation.
It appears from the complaint that the executors of Peter O. Minor, deceased, one of the sureties, paid $6,073.75 on the note falling due October 15, 1894, and appellant claims that this payment being made more than three years after the note was due the debt arising from the payment was barred as to the stockholders by section
The judgment should be affirmed.
Britt, C., and Haynes, C., concurred.
For the reasons given in the foregoing opinion the judgment is affirmed. McFarland, J., Temple, J., Henshaw, J.