Powell v. Petch

MELVIN, J.

The plaintiff, I. W. Powell, was a brother of defendant’s decedent. In 1890 the former entered into negotiations to purchase certain real property in the state of Washington and sold to his brother a half interest in said property, taking as part payment of the consideration therefor Robert B. Powell’s note for one thousand five hundred dollars. On December 10, 1892, this note was replaced by another for the principal sum of one thousand five hundred and sixty dollars, the sixty dollars representing interest due on the note of earlier date. Thereafter R. B. Powell paid but one installment of taxes. After that his brother paid all of the taxes for five or six years and then ceased to make such payments. The property was sold for taxes in 1901 or 1902. In April, 1908, Robert B. Powell, who resided in Eureka, California, wrote to plaintiff, who lived in Victoria, British Columbia. The letter, which was duly received, contained, among other things, the following passage: “What is the

status

of my indebtedness to you regarding the lot you bought

“!

The money that I advanced Nonie was intended to offset it, but let me know the condition.” The “Nonie” mentioned was a daughter of plaintiff, to whom admittedly her uncle had given certain sums of money. After the death of Robert B. Powell, plaintiff brought this action to recover the

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principal and interest alleged to be due on the note, and also the sum of forty-four dollars claimed as advances made in behalf of Robert B. Powell by plaintiff for the payment of taxes on the property. Defendant demurred, setting up the bar of the statute of limitations, subdivision 1, section 337; subdivision 1, section 339, and section 1499 of the Code of Civil Procedure. The demurrer was overruled and the same statutes were pleaded in the answer. The judgment was in favor of plaintiff. Prom it the defendant appeals.

The sole question presented by this appeal relates to the passage from Robert B. Powell’s letter which we have quoted above. Did the words there used amount to such a promise as gave a new cause of action on the outlawed promissory note ? Section 360 of the Code of Civil Procedure is as follows: “No acknowledgment or promise is sufficient evidence of a new or continuing contract, by which to take the case out of the operation of this title, unless the same is contained in some writing, signed by the party to be charged thereby.”