Buescher v. Lastar

Opinion

ROTH, P. J.

Respondent Buescher recovered a judgment against appellant Lastar for the full amount of a demand note which was barred by the statute of limitations (Code Civ. Proc., § 337) on the theoiy that a written acknowledgment of its continued validity as provided for by Code of Civil Procedure section 360

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was made by appellant the maker of the note.

The facts as stipulated and found by the trial court cryptically summarized reflect that the note was made by appellant to respondent on September 10, 1965; no time for its payment was expressed therein; the statute of limitations expired on September 10, 1969, and the statute

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was pleaded. On July 1, 1970, appellant wrote to respondent saying, “ ... about repaying the loan. Well at this time it is impossible.” On March 3, 1971, respondent wrote to appellant “can you give me any commitment ... as to repayment. We can’t just let it ride year after year..on March 11, 1971, áppellant wrote to respondent: “In prior letters I told you financially I am down. Well I went to a few places and they request a copy of the note. I can’t do anything without it so if you could send a copy we will see what can be worked out.” On October 10, 1971, respondent wrote to appellant: “I need some money. . . . [H] Let’s make some kind of arrangement covering the note you owe me. [If] I don’t want to have to take the matter up with a lawyer, as that will be more expensive for both of us. [If] So as a gentleman won’t you please come up with a reasonable regular payment to pay off this note.” On October 18, 1971, appellant wrote to respondent: “In regards to money, I just don’t have any .... [1] If you feel you must take the matter up with an attorney this would be entirely up to you, but as far as I can see you would have veiy little to gain since we have very little.”

The letters referred to above were signed by the respective senders and the excerpts above are those which are pertinent.

The trial court found the following and we agree: “The above quoted expressions in the letters from defendant . . . each constitute an acknowledgment of the debt created by the September 10, 1965 promissory note. Each such acknowledgment is unconditional, and there is no indication in any one of the aforesaid three letters from defendant to plaintiff of an unwillingness to pay said debt.”