Bray v. Cohn

HART, J.

A demurrer to the complaint upon the ground that this action was barred by the provisions of section 339, subdivision 1 thereof, of the Code of Civil Procedure, was sustained, without leave to amend, and thereafter judgment entered in favor of respondent. From said judgment this appeal is taken.

On the thirtieth day of January, 1899, the respondent, Cohn, executed and delivered to the Bank of British Columbia, at the city of San Francisco, his promissory note for the sum of $3,000, with interest at the rate of seven per cent per annum, said note being payable one day after date. At the request of Cohn and for the purpose of enabling him to secure said money, and “as part of the same transaction,’’’one Moses Samuel, in writing, promised and agreed with said Bank of British Columbia, “that if said defendant did not pay said promissory note, he (said Samuel) would pay the same.” On or about the thirtieth day of January, 1899, Cohn departed from the state of California, and did not return until about the twenty-third "day of July, 1901, and defendant, during the period between the said thirtieth day of

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January, 1899, and the said twenty-third day of July, 1901, was absent from the state. Shortly after Cohn’s departure from the state, the Bank of British Columbia made a demand on Samuel for payment of accrued interest upon the note, which interest was paid by him, and the said Samuel continued, upon the demand of said bank, to pay the interest accruing from time to time on said note until the seventh day of August, 1900, when, written demand having previously been made upon him by the bank for its payment, Samuel paid the principal and the unpaid interest upon said note. Thereupon, the complaint alleges, the bank surrendered and delivered said note to said Moses Samuel. Thereafter Samuel assigned the note to the plaintiff, who filed his complaint, declaring upon said note, on the fifteenth day» of June, 1905, a little less than four years after the return of the defendant to the state.

The contention of the appellant is that the payment by his assignor of. the note and the surrender and delivery to him of the same by the bank amounted to an assignment thereof, and that, therefore, he was subrogated to all the rights exercisable by the original payee thereunder. Upon this assumption (and if well founded his contention would be true), he claims that he was entitled to institute suit for recovery upon the note at any time within four years from the date of the return of the defendant to this state. In support of this position, appellant relies upon section 2848 of the Civil Code, and insists that section 1473 of said code has no application to sureties.