Herman v. Brown

California Court of Appeal May 11, 1949 No. Civ. 16761Published

Before: Drapeau

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Holding. The court held that a written acknowledgment of a debt, delivered to the creditor by the debtor, is sufficient to interrupt the statute of limitations regardless of the addressee, and that a debtor who induces a creditor to delay action through promises of payment is estopped from pleading the statute of limitations.

Issues

Whether a written acknowledgment of debt addressed to an administrator but delivered to the creditor satisfies the requirements of Code of Civil Procedure section 360.
Whether a debtor is estopped from pleading the statute of limitations when the creditor was induced to delay action by promises of payment.

Disposition. affirmed

Quotations verified verbatim against the opinion

“The letter of June 8, 1942, hereinabove recited in full, is an unequivocal and unqualified acknowledgment of the indebtedness here sued upon, signed by the debtor.”

“It was delivered to the creditor before the statute of limitations had run against the debt, and together with the letter of January 9, 1945, was sufficient to interrupt the running of the statute against the note here sued upon.”

“a debtor who induces his creditor to defer action, by means of promises to pay the indebtedness or settle the claim, is estopped to plead the statute of limitations.”

DRAPEAU, J.

Defendant appeals from that portion of the judgment herein which awards to plaintiff the sum of $6,110.41 on the first cause of action alleged in her amended complaint which was based on a promissory note for $4,000, dated September 1, 1938, due two years after date, and executed by Victor C. Emden.

The answer alleges that said cause of action is barred by sections 335 to 337, inclusive, of the Code of Civil Procedure. At the trial respondent testified that when the maker of the note died on August 31, 1945, she was in possession of the note in question, and also of two letters dated June 8, 1942, and January 9, 1945, respectively, attached to the amended complaint as exhibits A and B, reading as follows:

[759]

“June 8, 1942.

To My Administrator:

‘ ‘ The purpose of this letter is to advise that, as of this date there are outstanding two notes executed by me in favor of Solomon Herman and/or Frances Herman. One note is dated September 1, 1938, in the amount of $4000.00 and one note is dated June 1, 1942, in the amount of $2000.00.

‘ ‘ Should these notes be outstanding and unpaid at the time of my death, I desire that they be immediately paid out of my estate.

“In connection with these notes there is a bonus agreement which is to remain in full force and effect, and said Solomon Herman and Frances Herman are to receive the full benefits of the bonus agreement.

“Victor C. Emden”

“The Washington Hotel Washington, D. C.

Jan. 9-45.

Dear Frances:

‘ ‘ Thanks for the stories they are already on the seas if you have any more pass them on.

“Yes what a difference a year makes last year this time I thought it was curtains. But at this writing I am fine.

“I just thought I would mention it had I passed on you have a letter that would have taken care of our business matter.

Herman v. Brown

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DRAPEAU, J.

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