Johnstone v. E & J Manufacturing Co.

McCOMB, J. From a judgment in favor of plaintiff after trial before the court without a jury in an action to recover $22,702, the alleged reasonable value of services alleged to have been rendered to defendants, defendant C. N. Erickson appeals.

[587]The evidence being viewed most favorably to plaintiff (respondent) , the essential facts are:

Plaintiff, a physican and surgeon, in 1925 conceived the idea of manufacturing a resuscitator and gas anesthetic machine. He entered into a partnership with defendant Erickson to manufacture the same. This they did until 1926 when plaintiff and said defendant incorporated the E & J Manufacturing Company, Inc. portions of the stock being purchased by plaintiff and said defendant. The corporation continued the business formerly conducted by the, partnership.

August 1, 1933, defendant Erickson purchased the E & J Manufacturing Company, Inc. stock owned by plaintiff, and thereafter continued the business himself under the firm name of E & J Manufacturing Company. From August 4, 1933, to and including May 10, 1938, plaintiff at various times furnished to defendant Erickson technical and professional services and advice in connection with the business which said defendant was operating. Such services were not rendered pursuant to any written agreement or contract nor was any time specified for the payment of the services. From August 1, 1937, to May 10, 1938, plaintiff devoted only six and one-half hours of time to defendant, which services were of the reasonable value of $10.00 an hour. All other services were prior to August 1, 1937. The present action was filed July 31,1939.

This is the question which it is material for us to determine:

Did the statute of limitations (Code Civ. Proc. § 339, subd. 1) fixing a two year period of limitations upon actions not founded upon a written obligation or falling under the provisions of section 337 of the Code of Civil Procedure bar plaintiff’s right of recovery for services rendered to defendant prior to August 1,1937?

This question must be answered in the affirmative. It is the general rule that an action upon a contract, obligation, or liability not evidenced by an instrument in writing is barred two years after the cause of action arises (Code Civ. Proc. § 339, subdiv. 1).

There are two recognized exceptions to this general rule:1