Smith v. the Parlier Winery, Inc.

MARKS, J.

This is an action on a promissory note executed by The Parlier Winery, Inc., to Wylie M. Giffen and assigned to plaintiff.

On June 1, 1928, The Parlier Winery, Inc., executed and delivered to Wylie M. Giffen its promissory note for $28,000, payable one day after date with interest at the rate of seven per cent per annum. On June 1, 1929, the following writing was delivered to Giffen:

“June 1, 1929.

“At a special meeting of the Board of Directors of Parlier Winery held on the above date, the following resolution was adopted:

“Resolved: That the vice-president and secretary of the Parlier Winery extend the note of Wylie M. Giffen for eighteen months for twenty-eight thousand dollars ($28,000).

“(Seal) W. J. Lohman, Secty.

“Wm. W. Parlier, Vice-Pres.”

This action was commenced on October 31, 1933. Judgment went for plaintiff and this appeal followed.

The sole question to be decided is: Assuming that the writing of June 1, 1929, is a sufficient acknowledgment of the indebtedness to toll the statute of limitations under the

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provisions of section 360 of the Code of Civil Procedure, when does the statute of limitations again commence to run,— immediately upon the execution of the document, or eighteen months thereafter? It is obvious that as the action was commenced on October 31, 1933, more than four years after the due date of the note, and more than four years after the execution of the instrument dated June 1, 1929, the cause of action was barred by the provisions of subdivision one of section 337 of the Code of Civil Procedure, unless there was a valid contract extending the time of payment of the note for eighteen months after June 1, 1929.

Appellants urge that there was no valid agreement extending the due date of the note for eighteen months after June 1, 1929, because (1) the agreement, if any, was parol, and, (2) it was not supported by any consideration.