Tagus Ranch Co. v. Hughes

BARNARD, P. J.

This is an appeal from a judgment of dismissal based upon the sustaining of a demurrer without leave to amend.

The complaint alleged the execution of a written instrument dated November 3, 1938, addressed to the plaintiff and signed by the defendant and acknowledged by him before a notary public. The material part of this instrument reads as follows:

“I, John W. Hughes, being of lawful age, not acting under duress, and being of sound mind, of my own free will, hereby confess and acknowledge that I have stolen and embezzled from you the sum of Nineteen Hundred Sixty Three & 80/100 ($1963.80).”

A second cause of action is based upon a similar instrument containing the same language except for the amount named, which instrument was addressed to R. C. Merritt and which had been assigned to the plaintiff.

This action was commenced more than two years but less than four years after the date of these instruments and the sole question presented on this appeal is whether the action is one upon a contract, obligation or liability founded upon an instrument in writing within the meaning of subdivision 1 of section 337 of the Code of Civil Procedure.

In

O ’Brien

v.

King,

174 Cal. 769 [164 P. 631], the court said:

“A

cause of action is ‘founded upon an instrument of writing’ when the contract, obligation, or liability grows ‘ out of written instruments not remotely or ultimately, but immediately. ’ ” And again: ‘‘We adhere to the declaration that promises ‘merely implied by law’ from a situation evidenced by a writing, i. e.,

quasi

contracts, are not within the statutory provision under discussion. The promise must be one arising di

[130]

reetly from the writing itself, and included in its terms. But in determining whether the obligation is ‘supported by an express promise or stipulation in the written instrument, ’ we must regard, as included in the terms of the writing, all obligations and promises which its words necessarily import.”