Jetty v. Craco

SHINN, P. J.

The first cause of action of the complaint alleged that within two years last past defendant became indebted to plaintiff for money loaned in the sum of $4,125, which defendant promised to repay, and credit was given for $225 paid on account. In the second cause of action it was alleged that the loans were obtained by means of fraudulent representations and pretenses of the defendant. The representations, in brief, were that defendant had fallen in love with plaintiff and wished to marry her after he had freed himself from an existing marriage; that he needed the money to finance a trip to the Orient for the purchase of merchandise; that he would sell the same and “more than repay the plaintiff for the monies advanced.” It was alleged that defendant had no intention of performing his promises and that plaintiff was deceived by the same to her damage in the sum of

[878]

$3,900 and interest. Defendant filed an answer denying all the material" allegations of count I of the complaint and he pleaded that the cause of action “.... is barred by the provisions of section 339 of the Code of Civil Procedure of the State of California.” The answer did not plead the statute of limitations as a defense to the second cause of action.

The court found that plaintiff loaned defendant $4,125 and “that said money was repayable by defendant to plaintiff within a reasonable time after his return from a trip to the Orient; that said defendant returned from the Orient on or about February 7, 1950, and that such sum became due after March 8, 1950.” It was found that defendant was entitled to a credit of $225 and that interest should be allowed on $3,500 from August 23, 1949, and on $400 from February 7, 1950, in the total amount of $874.36. It was further found that defendant represented that when the merchandise, purchased in the Orient, was returned to the United States the same would be sold and plaintiff amply repaid for the monies advanced by her. It was found that defendant made other representations as alleged by plaintiff but that they were not fraudulently made “. . . at a time when said defendant had no intention of repaying the money paid by plaintiff.” Judgment on the first cause of action was in accordance with the findings and in favor of defendant on the second cause of action.

In the findings referred to there is an implied finding that a reasonable time for a repayment of the money after defendant returned would be not less than 29 days, namely, February 7th to March 8, 1950, and also an implied finding that a reasonable time for payment elapsed after March 8, 1950, and prior to March 7, 1952, when the action was filed.