— Defendant executor appeals from a judgment rendered by the court without a jury, by which plaintiff was awarded recovery of money allegedly loaned to defendant’s decedent, Angelo Pipolo, and evidenced by two checks. Plaintiff’s claim therefor had been rejected by defendant executоr. We have concluded that the trial court did not err in admitting certain testimony of decedent’s surviving wife, claimed by defendant to be a privileged marital communication; that other claims of error are likewise without merit; and that the judgment should be affirmed.
Plaintiff alleged and the trial court found that on November 10, 1949, plaintiff loaned Pipolo $6,000 by delivering plaintiff’s personal check to Pipolo in that amount; on December 16, 1949, plaintiff loaned Pipolo another $6,000 by delivery of a second cheek. Meanwhile, on November 26, 1949, Pipolo and his surviving wife, Olga, intermarried. She endorsed the two checks with Pipolo's name and deposited them in the Pipolo bank account.
At the trial Mrs. Pipolo, as plaintiff’s witness, testified that the decedent, Pipolo, had operated two prescription pharmacies; that she had been his employe for some seven or eight years prior to their marriage and as such had done, among other dutiеs, “all of his book work. . . . Shortly after I went to work for him, I should say in 1942 or ’43 . . . He said he couldn’t be bothered with the trivial book work and he wanted me to handle all of his deposits, all of the transactions pertaining to the bank. . . . [¶] e gave me permission to [endorse his name and said that] . . . Rather than to trouble him when he was busy, he wanted me to sign his *4 name and make his deposits for him. ’ ’ Thereafter ‘11 handled all of his banking for him, and all of his book work,” including “signing his name ... On all occasions . . . Particularly in endorsing his name on checks and making his deposits. ... [He said] That if he wasn’t present at any time, I was to sign his name . . . [to] Anything pertaining to the pharmacy or anything pertaining to his, pеrsonal business. . . .” The witness and decedent first became engaged to be married in 1945, and in 1949 they commenced building a home. Decedent lacked money to complete the home, and in October or November, 1949, before the marriage, decedent in the presence of the witness asked plaintiff “if he could lend him $12,000 in order to complete the home, and Mr. Tanzola agreed. . . . He said he would lend it to him with the understanding that if he needed the money, that Mr. Pipolo would pay it back on demand, and Mr. Pipolo said he would then borrow the money on the completed home, if it became necessary. . . . Mr. Tanzola agreed to let him have it, when he needed it, which Mr. Pipolo explained would be very soon, in the next few weeks.” Thereafter, on November 11 or 12, 1949, the first $6,000 check from plaintiff arrived in the mail' at one of the pharmacies. The check, payable to decedent, bore the word “loan” on its face, and after еndorsing decedent’s name on the back, the witness deposited the check in decedent’s checking account at the bank.
Subsequently, on November 26, 1949, the witness became Mrs. Pipolo. Over objection by defendant on the ground that matters thereafter occurring constituted privileged communications betwеen husband and wife within the provisions of subdivision 1 of section 1881 of the Code of Civil Procedure, the trial court permitted the witness to further testify as follows: “Mrs. Pipolo, did you see a check which I now show you, dated December 16, 1949, in the sum of $6,000? A. I did. . . .
“What and where did you see this particular check dated December 16, 1949? A. My husband brought it to mе. He had called on Mr. Tanzola and picked it up . . .
“Q. By Mb. Most [Plaintiff’s attorney] : Let me caution you to forget what your husband did. Where did you first see this check? A. It was placed on my desk at the pharmacy.
“Q. Approximately when ? A. I believe on the same day that his check was picked up . . .
“Q. Where did you see this . . . [check] immediately be *5 fore it came into your pоssession? A. In the hands of my husband ... At the pharmacy . . .
“Q. I show you a signature on the back, ‘Angelo Pipolo’, and ask you who wrote that signature? A. I did. . . .
“Q. What did you do with that check after signing it? A. I took it to the Citizens National Bank and deposited it into Mr. Pipolo’s [personal] account.”
Mrs. Pipolo further stated that the word “loan” also aрpeared on the face of this second check when she first saw it; the check was payable to Angelo Pipolo.
Deposit of two $6,000 items in the Pipolo checking account on approximately the dates of the two cheeks was confirmed by testimony of a bank employe; the emplоye also stated that on February 2, 1949, decedent “gave a power of attorney to Olga Metrovitseh, ’ ’ the witness who later became Mrs. Pipolo. The power of attorney, addressed to the bank and signed by decedent, bore a sample signature of Olga Metrovitseh and stated that “with reference to my checking account” she “is hereby authorized to sign and endorse checks, notes and drafts, and transact all business with your bank in my name, as my attorney.” There was no evidence that the power of attorney was revoked during Mr. Pipolo’s lifetime. However, following the marriage and on December 7, 1949, the name of the account was changed from that of Angelo Pipolo only, to ‘ ‘ Angelo or Olga Pipolo. ’ ’
Defendant’s first contention on appeal is that the testimony of Mrs. Pipolo concerning the check of December 16 (i.e., as to events' occurring after the marriage) was admitted in violation of the provisiоn of subdivision 1 of section 1881 of the Code of Civil Procedure that neither husband nor wife can “during the marriage or afterwards, be, without the consent of the other, examined as to any communication made by one to the other during the marriage ...” The view of the trial court as expressed in ruling upon defendant’s objections to such testimony was that it was admissible so long as it did not involve a communication between husband and wife, and that the wife can testify to matters she knows of her own knowledge in the absence of communication. In this view the court was correct.
[la] In discussing the attorney-client privilege, likewise found in section 1881 оf the Code of Civil Procedure, this court observed in
City & County of San Francisco
v.
Superior Court
(1951), 37 Cal.2d
221,
234-235 [
“The privilege is given on grounds of public policy in the belief that the benefits derived therefrom justify the risk that unjust decisions may sometimes result from the suppression of relevant evidence . . .
“The privilege embraces not only oral or written statements but actions, signs, or other means of communicating information by a client to his attorney. [Citations.] ‘ (A)l-most any act, done by the client in the sight of the attorney and during the consultation, may conceivably be done by the client as the subject of a communication, and the only question will be whether, in the circumstances of the case, it was intended to be done as such. The client, supposedly, may make a specimen of his handwriting for the attorney’s informаtion, or may exhibit an identifying scar, or may show a secret token. If any of these acts are done as part of a communication to the attorney, and if further the communication is intended to be confidential . . . , the privilege comes into play. ’ ("8 Wigmore, supra, § 2306, p. 590.) ”
It is further established that the burden is upon the party seeking to suppress the evidence to show that it is within the terms of the statute.
(Sharon
v.
Sharon
(1889),
As pointed out by defendant himself it was declared in
In re De Neef
(1941),
It has also been held that the fact of communicating, as distinguished from the substance thereof, does not fall within the privilege. Thus, in
Poulson
v.
Stanley
(1898),
In аn annotation in 10 American Law Reports 2d 1389, 1390 (see also
Thus, in
Sampson
v.
Sampson
(1916),
With reference to business transactions, it was held in
Lurty’s Curator
v.
Lurty
(1907),
Applying the various rules laid down by the cases to the situation here presented, the conclusion is inescapable that defendant failed to sustain his burden of showing that the evidence to which he objected called for or entailеd a disclosure of any marital communication, either confidential or otherwise. The only testimony of Mrs. Pipolo which comes even close to the ambit of the privilege was that decedent brought the December 16 check to her and placed it on her desk at the pharmacy, that immediately before it came into her possession she saw it in the hands of her husband, and that except for bank stamps the check as produced at the trial was. in the same form as when she first saw it — i.e., it was payable to Pipolo and bore the word “loan” on its face. Prom the facts that for a number of years before marriage Mrs. Pipolo had “handled all of his banking for him,” and that before the marriage took place arrangements for the $12,000 loan *9 had been made in Mrs. Pipolo’s presence and the first $6,000 check had been received by her, endorsed with Pipolo’s name and deposited in his bank account, it seems apparent that she was already fully cognizant of the circumstances of the transaction, that in handling the second as well as the first of the two checks she was acting as his employe or business assistant, and that no communication from husband to wife as such was intended or effected when Pipolo placеd the second check on her desk. Her subsequent endorsement of it with his name and deposit of it in the Pipolo bank account, pursuant to customary practice initiated and authorized by power of attorney long before the marriage, likewise clearly did not constitute a marital communication. No error appears in the admission of the testimony of which defendant complains.
Defendant next contends that plaintiff’s causes of action were founded on an oral agreement rather than on written instruments, and so were barred by the two-year limitations’ statute found in subdivision 1 of section 339 of the Code of Civil Procedure. This contention is without merit. Defendant concedes that the evidence is without conflict. The action is based upon two written instruments, i.e., checks with the word “loan” written upon their faces and both endorsed in writing by one to whom the evidence establishes decedent had given full authority, both oral and written, tо make such endorsements on his behalf. Consequently, as held by the trial court, the four-year limitations’ statute applies. (Code Civ. Proc., § 337; see
Lawrence Barker, Inc.
v.
Briggs
(1952),
Finally, defendant urges that the trial court abused
*10
its discretion in denying his motion for a new trial upon the ground of newly discovered evidence. Affidavits submitted by defendant in support of his motion were answered by counter-affidavits filed by plaintiff, and no abuse of discretion is shown from the fact thаt the trial court chose to decide the motion in accordance with the allegations of plaintiff’s affidavits rather than those of defendant. Affidavits are competent evidence where authorized by statute or where they are not objected to on proper grounds by the party against whom they are offered
(Falk
v.
Falk
(1941),
The judgment is affirmed.
Gibson, C. J., Shenk, J., Carter, J., and Traynor, J., concurred.