Youngdale v. Gahwiler

AGEE, J. After the statute of limitations had barred the remedy upon the promissory note in question, defendant wrote three letters which plaintiff contends constituted an unqualified and unconditional acknowledgment of the indebtedness, thus giving rise to an implied unqualified and unconditional promise to pay. Conversely, defendant contends that his promise to pay was express, not implied, and was conditioned upon his being able to make financial arrangements to meet the obligation, Obviously, an express promise necessarily excludes a promise by implication. (Sterling v. Title Ins. & Trust Co., 53 Cal.App.2d 736, 743 [128 P.2d 31].) Plaintiff appeals from an adverse judgment.

The general basis of an action such as this is well stated in Rodgers v. Byers, 127 Cal. 528, 530 [60 P. 42] :

" [W] hen the statute of limitations has barred the remedy upon the original obligation, and an acknowledgment or a promise made after such time is relied upon, the action is not upon the original obligation, but is upon the new acknowledgment, and the implied promise raised by the law, or is upon the new express promise.”

If the promise to pay is express but co3iditional, then plaintiff must allege and prove the happening of the condition and the breach thereof by defendant. (Rodgers v. Byers, supra, p. 532; Hayes v. O’Marr, 81 Cal.App. 210, 212 [253 P. 749].) This, plaintiff did not do.

So the issue boils down to whether the letters written by defendant contained an express conditional promise to pay or only an express unqualified and unconditional acknowledgment of the indebtedness, from which the law implies an unconditional and unqualified promise to pay.

The position of an appellate court in determining an issue based entirely upon writings is stated in Meyer v. State Board of Equalization, 42 Cal,2d 376, 381 [267 P.2d [158257]] : “The sole evidence being the written documents Avithout qualifying testimony, their legal effect is a question of law, and the interpretation given to them by the trial court is not binding upon appeal . . . [Citations.]”

The note was for $5,000, and was secured by a mortgage. It was executed on February 9, 1948, by defendant and his wife, from whom he was later divorced. The payee Avas OliA'ia Olson, Avho died on November 25, 1957. Plaintiff was appointed as her executor on December 26, 1957. The three letters referred to aboAre were AA'ritten by defendant to the attorney for Miss Olson and, later, her executor, on March 26, 1957, January 24, 1958, and February 12, 1958, respectively.