Hayes v. O'Marr

YORK, J.

The only point involved on this appeal is as to whether the action was barred by the statute of limitations.

The appeal, which comes here on the judgment-roll alone, is from a judgment in favor of defendant. The action is based upon an alleged breach of contract to pay money. It appears that the defendant and his wife, Kate O’Marr, executed a promissory note in favor of plaintiff on July 1, 1913, for $1,000, payable in one year from date. Interest was paid up to December 1, 1921. It does not appear in what manner interest was paid until the last payment was made, which was on December 8, 1921. This payment, it may be assumed, was made by check, signed by the defendant, since the letter written and signed by defendant at that time says: “you will find hear inclosed my check for interest.”

The cause of action on said note was barred four years after July 2, 1914. It is settled that when the new promise or acknowledgment of indebtedness is made after the bar of the statute, the new promise creates a new obligation, and is itself the basis of the action.

(Concannon

v.

Smith,

134 Cal. 14 [66 Pac. 40].) This action must, therefore, be considered as based upon a new contract. The check, which-is assumed to have been signed by the defendant, was accompanied by the statement that defendant could not pay the note then. The letter, as set out in the findings, said:

“San Diego, Calif., Dee. 8, 1921.

“Mr. Jerry Hayes

“Dear Sir,

“I reseaved a letter from Mr. Frank T. Hook asking me to pay note $1000.00 and Interest $64.17. I cant pay note now untill I sell som property. ' I havnt sold the hous I bilt last winter when you was hear. I am in hopes to sell befor

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spring you will find hear inclosed my check for interest hope it will he sadisfaetory.

“Tours Very truly,