Weatherwax v. Hills

TYLER, P. J.

Action upon a promissory note.

The complaint alleges that defendant, on the second day of July, 1919, made, executed and delivered to Hayes & Hayes, Bankers, his promissory note in the sum of $3',000 and, at the request of defendant, plaintiff indorsed and guaranteed payment of the same. Thereafter plaintiff pur

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chased the note. Subsequent to its purchase by plaintiff, defendant made several payments thereon at various times up to the tenth day of October, 1926. The complaint further alleges that the places of residence of defendant, after the execution of the note, were in the states of Washington and Oregon; and recites, on information and belief, that defendant has not resided in the state of California for periods aggregating more than three years since the note was executed. Under a separate cause of action plaintiff alleged an acknowledgment of the debt by defendant and a new promise to pay.

The answer set up, as a defense, the statute of limitations and also the fact that defendant was a resident of the state of California at the time of the execution of the note and prior to the date of commencement of the action, and was actually within the state for a period of time aggregating more than four years.

The court found that defendant had lived out of the state part of the time since the making of the note, but that the evidence was insufficient to support the allegation that defendant had not resided in the state for periods aggregating more than three years since such time. It further found, however, that at the time certain payments were made by defendant to plaintiff upon the note, they were accompanied by writings which were sufficient to constitute a new promise which tolled the statute of limitations. Judgment was thereupon rendered for the balance of the amount due in the sum of $1616 with interest, $200 attorneys’ fees and costs.

The question here presented is whether or not the correspondence carried on between the parties constitutes an acknowledgment or new promise sufficient to- take the case out of the operation of the statute of limitations. It appeared in evidence that after the execution of the note, defendant, for a part of the time, was absent from the state of California and the parties had, during this period, correspondence concerning payment of the note. It is upon this correspondence that the trial court found that defendant had acknowledged the debt and promised to pay the same. The present action was commenced in April, 1928. On the fourth day of August, 1925, defendant wrote plaintiff as follows: