Jefferson v. J. E. French Co.

GIBSON, C. J.

A demurrer was sustained to plaintiff’s complaint upon the ground that the action was barred by the statute of limitations, and the question is whether the applicable statute is section 339, subdivision 1, of the Code of Civil Procedure (two years for an action “upon a contract, obligation or liability not founded upon an instrument of writing”) or section 343 (four years for an action as to which no other limitation is specified).

The complaint alleged that under an oral agreement plaintiff was employed as sales manager of defendants’ automobile agency in August 1953 at a specified salary, payable monthly, plus 10 per cent of the profits, payable annually. He received all of his monthly salary payments, and he was also paid certain sums as his percentage of the profits for the years 1955, 1956, and 1957, but no payments were made to him on account of profits for 1953, 1954, and 1958. On February 2, 1959, he commenced this action alleging that there is a balance due him which can be ascertained only by an accounting, and the prayer of the complaint is for an accounting of the profits for 1953-1958 and for judgment in such amounts as are determined to be due. Plaintiff does not suggest any reason why the statute should not be regarded as commencing to run at the end of each of the years with respect to which he seeks profits. Before the entry of judgment plaintiff waived any claim to profits for the two-year period prior to the commencement of the action, and he has stipulated that the judgment should be affirmed if it is held that subdivision 1 of section 339 is the applicable statute.

Plaintiff argues that his action is essentially equitable in nature and that such actions are governed by the four-year limitation of section 343. But the primary purpose of the action is to recover money under the oral contract, and the nature of the right sued upon, not the form of action or the relief demanded, determines the applicability of the statute of limitations.

(Leeper

v.

Beltrami,

53 Cal.2d 195, 213-214 [1 Cal.Rptr. 12, 347 P.2d 12];

People

v.

Union Oil Co.,

48

[719]