Vermilyea v. Vermilyea

California Court of Appeal Apr 10, 1923 No. Civ. No. 3788.Published

Before: Craig, Finlayson, Works

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Holding. The court held that the statute of limitations began to run immediately upon the execution of the due-bill because it was an unconditional obligation, and since more than four years had elapsed before the maker's death, the claim was barred.

Issues

Whether the statute of limitations began to run upon the execution of the due-bill or upon the death of the maker.
Whether the accompanying letter modified the due-bill to require a demand as a condition precedent to a right of action.

Disposition. reversed

Quotations verified verbatim against the opinion

“Therefore, the statute began to run at once upon the execution of the writings.”

“More than seven years had elapsed from the date of the letter and writing accompanying it before the death of the maker. Hence the plaintiff’s right of action was barred and the demurrer should have been sustained.”

CRAIG, J.

Defendant demurred to the plaintiff’s amended complaint filed against the estate of Samuel E. Yermilyea, deceased, on the ground that the claim sued upon was barred by the four-year provision of the statute of limitations. The demurrer was overruled. The only question here presented is as to the correctness of this ruling.

The action is based upon two writings received by the plaintiff from the deceased inclosed in the same envelope, and which must be read together to determine the intent of their author and the legal obligation resulting from his act in executing them. The letter is as follows:

“In relation to that $1000 will say am glad you mentioned it for I should have given you. some writing before now that would be a legal obligation in case of my death, but have been expecting to make a sale of some of my property all the time and then intended to pay it off and so have put it off. I inclose a little statement in relation to the deal which would be paid by my estate if anything should happen. I have made the interest 7% as you will observe so no question could arise in relation to illegal interest in case of my death. I have deemed wise to make the statement fully full so you would not have to make any proof of the circumstances but could simply file the paper with my administrator in case of my death and the claim would be allowed. Of course I may die any moment, but hope to live some time yet, and if I do think -will be able to pay you the money before the summer is over.”

The statement to which reference is made reads:

“Due John K. Yermilyea, for value received, one thousand dollars, with interest thereon from October 4th, 1906, at the rate of seven per cent per annum.

“S. E. Yermilyea.”

[610]

Appellant contends that immediately upon delivery of the due-bill the statute of limitations pleaded began to run; that the letter was intended by the deceased to make provision against the running of the statute which, not being permitted by law, must be held ineffective. He asserts the -legal proposition, that, as public policy is the foundation of the statute of limitations, it cannot be waived in advance. This respondent does not dispute, but asserts that the statute did not begin to run in this instance because the contract contemplated indefinite delay in the payment of the amount due on demand, in which case he contends the law does not require that the demand be made within the statutory period of limitations, and that the statute does not begin to run until actual demand or the happening of an event designated in the contract as the extreme limit of time for payment, in this instance the death of the deceased.

Vermilyea v. Vermilyea

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CRAIG, J.

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