Butt v. Burkett

California Court of Appeal Jan 21, 1937 No. Civ. 10069Published

Before: Knight

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Holding. The court held that the plaintiff's complaint failed to state facts sufficient to remove the bar of the statute of limitations because it did not plead a written acknowledgment that constituted a direct, unqualified, and unconditional admission of the debt.

Issues

Whether the alleged written acknowledgments and partial payment were sufficient to remove the bar of the statute of limitations on a promissory note.

Disposition. affirmed

Quotations verified verbatim against the opinion

“The acknowledgment must be a direct, unqualified and unconditional admission of a debt which a party is liable and is willing to pay.”

KNIGHT, J.

Plaintiff sued on a promissory note given for the principal sum of $5,500, and upon which there was claimed to be due an unpaid balance of $855. Defendants’

[613]

demurrer to the third amended complaint was sustained without leave to amend, and from the judgment of dismissal which followed, plaintiff appeals. The question involved relates to the application of the statute of limitations.

The note, a copy of which was embodied in the complaint, was executed on July 1, 1927, and made payable two years after date. Consequently, according to its terms, the legal remedy afforded for its collection expired by limitation of the statute on July 1, 1933; and the present action was not filed until May 22,1935. However, the complaint alleged that a payment was made on said note on January 9, 1934; also that the makers of the note have “at all times since the execution of said note and to and including the 9th day of January, 1934, admitted the existence of said obligation and have on many occasions subsequent to the execution of said note, both prior and subsequent to July 1, 1933, and within four years prior to the filing of this action, acknowledged to plaintiff in writing the existence of said obligation to plaintiff herein”. Plaintiff contends, therefore, that the foregoing alleged facts are legally sufficient to remove the bar of the statute of limitations. We are unable to sustain this contention.

Clunin

First Federal Trust Co.,

189 Cal. 248 [207 Pac. 1009], the Supreme Court reviewed many of the former decisions dealing with renewal acknowledgments, and it was there said: “It is clear from all these decisions that no writing is sufficient as an acknowledgment under section 360 [Code Civ. Proc.], unless it contains some reference to a debt, which, either of itself or with the aid of permissible evidence of extrinsic facts in explanation, amounts to an admission that there is a debt existing to the creditor to whom the writing is sent

which the debtor is liable to pay and willing to pay.”

Butt v. Burkett

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KNIGHT, J.

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