Bryan v. Nicolas

DRAPEAU, J. pro tem. Demurrer to plaintiff’s amended complaint was sustained with leave to amend. Upon failure to amend, after notice, judgment for defendant was made and entered, from which plaintiff appeals.

Inasmuch as the decision necessarily turns upon whether a cause of action is stated by the amended complaint, the following is substantially its content:

Plaintiff and defendant appear as administrator and executor, respectively, for the estates of the two decedents. While these parties are both dead, they will nonetheless for the sake of brevity be referred to as plaintiff and defendant.

It is alleged that in 1925 defendant executed and delivered to plaintiff a promissory note for $2,000 due two years after date, and, as collateral security for the payment thereof, assigned and deposited with plaintiff a certain note and trust deed of a third party; that thereafter in 1928 defendant executed and delivered to plaintiff a second promissory note for $1,500 due two years after date, and agreed that said third party note and trust deed would be collateral security for payment of this second note too; that there is still due on the notes $400 and interest on the first, and $1,000 and interest on the second; that in 1932, with fraudulent intent, defendant requested plaintiff to return to her the third party note and trust deed, so that she might impress still another party with her financial stability. Plaintiff, relying on defendant’s promise to return the said note and trust deed then loaned them to defendant, for the purpose stated. Defendant never returned the note and trust deed, although often requested so to do, but defendant orally agreed to take care of her obligation to plaintiff in defendant’s last will. This promise defendant made with no intention to perform, and when she died, there was no mention of plaintiff in her will; that the first discovery of the fraud alleged was by plaintiff administrator, after the death of both parties, who made demand for delivery of the trust deed and note March 13, 1943, upon defendant executor. WTherefore, plaintiff administrator prays the court to impress said trust deed and note with a trust and deliver the same to him.

The complaint in this action having been filed July 15, [900194]3, obviously, plaintiff’s cause of action is barred by the statute of limitations, if it is for recovery on the promissory notes, the latest of which was due in 1930. (Code Civ. Proc., § 337.)