Dixon v. Bartlett

SHAW, J.

The defendant appeals from the judgment upon the judgment-roll alone.

The complaint alleges that the defendant, in the state of Nevada, executed to the plaintiffs as copartners, a note of the following tenor: “Round Mountain, Nevada, 12/9-’08. One day after date I promise, to pay Dixon & Stebbins, or

[573]

order, $2806.00 (twenty-eight hundred and six dollars), for yalue received with interest at the rate of 1 per cent per month until paid. Henry J. Bartlett”; and that thereafter, on March 9, 1912, and on September 23, 1909, in San Francisco, California, “in a writing signed by said defendant, in consideration of the foregoing facts, he acknowledged said indebtedness and promised to pay the same,” but that he has not paid the same or any part thereof. The answer alleged that the action was barred by the two years’ statute of limitations. (Code Civ. Proc., sec. 339, subd. 1.)

Finding V is in part as follows: “That on or about the ninth day of March, 1912, and on September 23, 1909, at the city and county of San Francisco, state of California, in writings signed by the defendant, Henry J. Bartlett, he acknowledged the indebtedness evidenced by said promissory note and promised to pay the same. . . . The letters above mentioned are as follows, to wit.” The finding then sets out a copy of the two letters referred to, one dated March 9, 1912, the other September 23, 1909.

It is unnecessary to state the contents of the letter of September 23, 1909. The note fell due on December 10, 1908, and being executed in the state of Nevada, the statute of limitations would bar an action thereon at the expiration of two years thereafter. (Code Civ. Proe., see. 339, subd. 1.) This letter was written from San Francisco and was signed within the two years. Where a new promise is made before the action on the original debt is barred, the debtor “does not make himself liable a second time for the same debt, and the old promise is not merged in the new; he merely continues the original liability for a longer term. In other words, he merely waives so much of the period of limitation as has run in his favor.”

(Southern Pacific Co.

v.