Carrasco v. Greco Canning Co.

SPENCE, J.

Plaintiff, as the assignee of Fortunate E. Greco, brought this action alleging that “within two years last past defendant became indebted to Fortunate E. Greco for work and labor done and performed ... at the special instance and request of said defendant in the sum of $1,300, which said sum defendant promised and agreed to pay therefor. ’ ’ The complaint was filed on June 4, 1940. The defendant denied said allegations and affirmatively alleged that at all times mentioned in the complaint up to September 1939, said employee had been employed by defendant at the agreed salary of $265 per month, which salary had been fully paid. It was further alleged that the alleged cause of action was barred by the provisions of section 339 of the Code of Civil Procedure and by “laches, delay and estoppel.” The trial court found that all the allegations of the complaint were true. It further found that “there was an agreement between Fortunate E. Greco, the plaintiff’s assignor and the defendant Greco Canning Company, a corporation, for an increase in salary of $50 per month from July 1, 1937, to September 30, 1939 ’ ’; that said employee was in the employ of defendant between those dates and that the sum of $1,300 remained due, owing and unpaid from defendant to plaintiff. The trial court also found against .defendant’s pleas that the cause was barred. Judgment was entered in favor of plaintiff in the sum of $1,300 and defendant appeals.

Defendant contends that the claim was barred by the provisions of section 339 of the Code of Civil Procedure and that the trial court erred in finding to the contrary. It points to the fact that the only agreement shown by plaintiff’s evi

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dence was an oral agreement made in June, 1937, between the employee and his father, who was then president of the defendant company, to pay the increase of $50 per month beginning on July 1, 1937. Their testimony showed that the employee had an opportunity to take another position and that the father then agreed “to give me an advance of $50 a month beginning July 1st, and when he agreed to give me that, it was also agreed between us that that was going to be paid to me at a later date, that the money would accrue to me and for me.” The employee was asked “And was that to be paid to you upon your demand?” He answered “That was to be paid me any time that I demanded it in the future, it was accruing for me.” The following is found in the testimony of the father: “ Q. Now, which was the agreement, that it was to be paid upon demand by him, or at your pleasure ? A. The agreement was that it was to be paid on demand by him, but I stalled him. The pleasure was mine to give it to him whenever I thought it was the right time. Q. Well, the agreement really was that it was to be paid on your pleasure. A. No, on demand.”