Lombardi v. Tranchina

WOOD (Fred B.), J. In this action against the executrix of the will of Candida Lombardi upon a claim for $2,800, the trial court found that “although the plaintiff did advance the sum of $2,800.00 to his father, Sebastian Lombardi, to pay off an obligation upon which his mother, Candida Lombardi, was jointly liable, the said decedent Candida Lombardi never agreed to repay said loan out of her own funds and property and plaintiff’s right to recover or any obligation he may have had against his mother is now barred by the statute of limitations,” specifying sections 339, subdivision 1, and 360 of the Code of Civil Procedure. The evidence supports these findings, contrary to plaintiff-appellant’s contentions.

Two parcels of land in San Joaquin County, known to the parties as the Tracy ranch, stood in the name of Sebastian Lombardi as sole owner. In 1933 he borrowed $5,700, secured by deeds of trust on these two parcels. His wife Candida signed the notes with him and joined in the execution of the deeds of trust.

By September, 1937, the unpaid balance of this debt amounted to $2,800. Plaintiff went with his father to the office of the obligee, paid the amount due, and received and retained in his own possession the cancelled notes and the deeds of reconveyance. Candida was not present upon that occasion and there is no evidence that she was at the time-aware of this transaction. This supports the finding that she made no express promise to repay plaintiff. At most it would support (defendant concedes it does support) an implied promise, an obligation imposed by law, to repay. Subsequent events bear out this view of the situation.

From the time plaintiff made this $2,800 advance until about April, 1941, checks for gas royalties accruing from time to time in respect to the Tracy ranch, were delivered or mailed to plaintiff. Until March 21, 1939, plaintiff cashed these cheeks and kept the proceeds, amounting to $982.69, which he treats as a credit in part payment of his $2,800 claim. Sebastian died early in 1941. In April, 1941, Candida, executrix of Sebastian’s will, caused the mailing of the gas checks to plaintiff to be discontinued. Upon that occasion, Candida told her attorney that plaintiff had been paid long ago; hearsay evidence, but it went'in without objection. The fact that plaintiff did not cash the gas checks which he received after March, 1939, lends support to Candida’s statement. In 1947, as the result of a title search incident to a proposed sale of the Tracy ranch, Candida’s attorney discovered the [777]