Snyder v. Dederichs

SHAW, J.

The complaint set forth a cause of action based upon an indebtedness which it is alleged defendant, after the statute of limitations had run against the same, in writing acknowledged and promised to pay, thus taking the ease out of the operation of the statute.

Upon such issue the court found adversely to plaintiff and gave judgment for defendant, from which the former, claiming such finding is not supported by the evidence, appeals.

Section 360 of the Code of Civil Procedure provides: “No acknowledgment or promise is sufficient evidence of a new or continuing contract, by which to take the ease out of the operation of this title, unless the same is contained in some writing, signed by the party to be charged thereby.” Since recovery upon the original promise to pay by defendant was coneededly barred, it devolved upon plaintiff to establish facts bringing the ease within the operation of the statute quoted.

[629]

To do this, plaintiff offered in evidence a letter addressed by her to defendant, wherein she referred to a loan of $750 made several years before to defendant by her husband, who advised her, she said, that if defendant was able to meet the obligation, she could use the money for her living expenses, and wherein she said: “I am very badly in need of funds, and trust you will make an effort to pay at least part of the amount. ’ ’ In reply to this letter defendant wrote plaintiff: “Tour letter received in regard to the money I did get from Willard. . . . Still if I would make money, and see my way through, I would send you some money, and I will the first chance that I make something I will help you. ... I loaned a party some money which he promised sure by next month I would get $300 of it. Should I succeed in this I will send you sure $150 or $200 of this. At the present time I cannot do anything on account I have not it. I Imow, Mrs. Snyder, the disposition how you feel, and I hope Willard makes some money soon. He has been working hard always the same as I and you know if I got it I would help you, but it is impossible to do so at the present time.” The case of

Powell

v.

Petch,