Steiner v. Davis

BARNARD, P. J.

This is an appeal from a judgment after a demurrer to an amended complaint had been sustained and the plaintiff had refused to amend. The only question involved is whether it appears from the face of the complaint that the cause of action attempted to be set up was barred by the statute of limitations.

The action is one to recover a balance upon a promissory note for $3,000 dated May 6, 1919, payable three years after date to Mrs. B. W. Kies and signed “Byron Dade Davis”. A copy of the note is set forth in the complaint and at the bottom thereof appears the following: “Renewed Apr. 21, 1926 B. D. Davis”. It is also alleged that on or about April 21, 1926, the defendant for a valuable consideration and in writing renewed said note for a period of three years from and after that date on the same terms and conditions as those contained in the original note, and that the note and obligation as thus renewed became due and payable on April 21, 1929. It is further alleged that Sarah A. Kies was also known as Mrs. B. W. Kies, that she died on June 17, 1929,

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that the plaintiff qualified as the executrix of her will on September 16, 1929, that by the terms of her will the defendant was bequeathed $2,000 to be applied upon the principal of said note, that the remaining $1,000 is owing and unpaid, and that interest on the note was paid by the defendant up to May 6, 1929, The original complaint was filed on September 10, 1930, arid the plaintiff has appealed from a judgment in favor of the defendant.

The appellant contends that the effect of the words “Renewed Apr. 21, 1926” placed upon the bottom of the note by the respondent was to renew the note for the same period of time and on the same terms as provided in the original note, that is, to renew it for a period of three years from and after that date and make the same payable on April 21, 1929, in which event the statute of limitations would not run until April 21, 1933. The respondent contends, on the other hand, that this was neither a renewal nor an extension and that, at best, this notation on the note had the effect of an acknowledgment of the debt at that time with the result that the statute had fully run on April 21, 1930, some months before this suit was filed.

There appear to be no cases in this state which bear directly upon the question before us. In