Nelson v. Nelson

THE COURT.

Action against an estate to recover for services claimed to have been rendered by plaintiff at the special instance and request of the deceased. There were two demands set up in the fourth amended complaint under which the proceedings involved herein were had. One was for services rendered between the years 1866 and 1876 and the other for services rendered prior to the year 1894. For the purpose of avoiding the statute of limitations, plaintiff set forth in his said pleading a letter dated February 20, 1920, alleged to have been written from San Diego, California, by deceased to plaintiff, who was his brother, which letter contained the following statement: “Now, Andrew, we have been wondering if there was anything that we had or had not done, or if there was anything that had been written that was displeasing to you. We sincerely hope not. Surely there was nothing of the kind ever intended, for you and our brother Lafagat, long since passed on, are the only persons that were of any real assistance to us in my struggle which came on at and after the death of our father, and

[600]

sooner or later I fully intend that you shall be amply repaid.” The defendant demurred to this fourth amended complaint on a number of grounds, among which was that the causes of action set forth therein were barred by the statute of limitations. The demurrer was sustained without leave to amend and judgment was accordingly entered in favor of defendant. The writing was insufficient to avoid the statute. 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 case out of the operation of this title, unless the same is contained in some writing, signed by the party to be charged thereby. The acknowledgment of a debt, in contemplation of this statute must be a direct, distinct, unqualified, and unconditional admission of the debt for which the party is liable and willing to pay

(McGormicJt

v.

Brown,

36 Cal. 180 [95 Am. Dec. 170] ;

Powell

v.