DocketNumber: L. A. No. 5242.
Citation Numbers: 185 P. 181, 181 Cal. 479, 1919 Cal. LEXIS 378
Judges: Melvin
Filed Date: 10/29/1919
Status: Precedential
Modified Date: 10/19/2024
Plaintiff sued on two counts: One for balance due for goods, wares, and merchandise sold at an agreed price; the other for the reasonable value of such goods. The judgment was in favor of plaintiff for the full amount demanded. Defendant appeals.
The goods sold and delivered by plaintiff's assignor consisted principally of casing necessary for the use of defendant in the creation of an oil well on its property. The merchandise *Page 480 was delivered between the 31st of January and the 31st of August, 1911. Defendant paid one thousand five hundred dollars on account. The judgment prayed for and given was for a balance of $2,791.25. The complaint was filed July 8, 1916, more than four years after the last delivery of supplies to defendant, but it was alleged by the plaintiff and found by the court that within four years of the institution of the suit defendant acknowledged the indebtedness in writing and thereby promised and agreed to pay the amount due.
Defendant, by its answer, denied the indebtedness and alleged that the sum of one thousand five hundred dollars paid was the full and reasonable value of the goods, denying also that any certain price had been agreed upon. The answer also set up the bar of sections
Plaintiff's general demurrer to the part of the answer averring a counterclaim was sustained, admittedly upon the ground that such claim was barred by the statute of limitations.
At the trial defendant offered no proof regarding the reasonable value of the property purchased, the only issue being whether or not the statute of limitations operated in favor of the defendant. This issue was determined in favor of the plaintiff.
[1] Appellant insists that the judgment should be reversed because of error in sustaining plaintiff's general demurrer to defendant's counterclaim and error of the trial court in holding that plaintiff's claim was not barred. Undoubtedly, the bar of the statute of limitations should have been set up by a demurrer calling attention to the proper section of the code. (Bliss v. Sneath,
The court found that payments on account were made by defendant within four years prior to the commencement of the action; that one Howard A. Broughton, president of defendant corporation during all but one year of the period between the purchase of the casing and the filing of plaintiff's complaint, and a director during all of that time, "represented the defendant company in all its negotiations with the Union Well Supply Co.," plaintiff's assignor, and that in a series of letters between the seller and the purchaser of the casing "the letters written by the said Howard A. Broughton acknowledged the aforesaid obligation of the said defendant company, and contained a promise to pay said obligation, and were signed by the said Howard A. Broughton, and sent to and received by the said Union Well Supply Co., and were written and received within four (4) years prior to the commencement of this action."
The findings are sustained by the proof and are sufficient to take the case properly out of the purview of Title II, Part II, of the Code of Civil Procedure.
It was proved without contradiction that payments of five hundred dollars each were made, respectively, on April 12, 1912, June 10, 1912, and September 19, 1912. These payments were credited to defendant on the account generally and were not applied to any particular items. Respondent insists that the account was an open book account and that the statute of limitations runs from the payment of the last sum of five hundred dollars which was made within four years of the filing of its complaint, citing in this behalf subdivision *Page 482
2, section
In his letter to plaintiff of November 30, 1912, Mr. Broughton wrote: "My understanding is that I promised you some money by the first of the month. I did this with the assurance that I could safely make such a promise but have been grievously disappointed in receiving money that I had a right to depend upon." On December 9, 1912, he wrote a letter to plaintiff's representative containing, among other things, the following expressions:
"I promised you $500 by December 1st which I find I cannot pay and I am primarily interested in showing you that I did not make you the promise without justification. I am *Page 483 generally pretty careful about making definite promises but in this instance I felt I was absolutely safe in doing so. . . . Several days before going down to see you I wrote to my brother, sending him the original letters which I had received from your credit department, and explaining to him the necessity of making you a substantial payment, and asked him to wire me whether he would be able to do so. On the 29th of October he wired me that he would send $2,000.00 in ten days and that I could make definite promises based upon this. I received this wire while in Los Angeles and consequently felt perfectly safe in making you the promise which I made you. . . . The stockholders have until the end of this month in which to pay the assessment. At the end of that time we intend to reorganize and get out among our stockholders and get a subscription for $10,000.00 worth of stock. Out of this we will pay you in full and pay Fairbanks-Morse a small balance we owe them, which will be our total indebtedness. We will not commence work again on the well until you are fully paid.
"With the assurance we have of getting oil there, I cannot see any reason why we shall not be able to raise the sum stated and I shall insist on raising that amount at least." On March 24, 1913, he wrote: "I wrote Mr. Berry fully sometime ago as to our plan. It is to raise $10,000.00 with which to complete our well out of which we will pay you our indebtedness before work is resumed.
"I have nearly $6,000.00 subscribed and am working on several lines which ought to bring in the balance before long. I had expected to have it subscribed before this time, but find it slower work than I anticipated.
"I am doing the very best I can and will work it out all right and your bill will be paid, but it takes hard work to enthuse people on the oil situation now." And on November 1, 1913, after setting forth a plan of getting the stockholders in Honolulu to co-operate with certain investors in financing the company he closed with the following paragraph:
"I am doing everything that I possibly can, and as I have stated before, this bill will be paid before we start work."
It is to be remembered that the communications of Mr. Broughton were written upon letter-heads upon which, in addition to the corporate name, was printed his own as *Page 484 president; that he frequently used the pronoun "we" in reference to the indebtedness and the promise to pay it; that throughout the letters various references were made which were appropriate to the corporation; and that Mr. Broughton had very plenary powers in reference to binding the corporation in the very matter of this development. Under all the circumstances it would be sacrificing substance to form for us to hold that he could take the indebtedness out of the purview of the statute by subscribing the corporate name and adding "per Howard A. Broughton, President," yet could not do so by the subscription of his own signature alone. [2] We think that under the circumstances the letter-head was incorporated by reference in the communications and that the signature of the president appearing at the foot of each letter constitutes a sufficient promise to take the claim out of the bar of the statute of limitations.
All of the quotations from Mr. Broughton's letters, taken in connection with his undoubted authority to bind the defendant corporation, fully justify the findings of the court and the conclusion of law that an acknowledgment of the debt had been made as required by section
The judgment is affirmed.
Wilbur, J., and Lennon, J., concurred.
McCormick-Ormand Co. v. Nofziger Brothers Lumber Co. , 10 Cal. App. 241 ( 1909 )
Chandler v. Hart , 161 Cal. 405 ( 1911 )
Concannon v. Smith , 134 Cal. 14 ( 1901 )
Nicholson v. Randall Banking Co. , 130 Cal. 533 ( 1900 )
Cal. Safe Deposit & Tr. Co. v. Sierra Valleys Ry. , 158 Cal. 690 ( 1910 )
Newton v. Johnston Organ & Piano Manufacturing Co. , 180 Cal. 185 ( 1919 )
Murphy v. Stelling , 8 Cal. App. 702 ( 1908 )
Mercantile Trust Co. of S.F. v. Doe , 26 Cal. App. 246 ( 1914 )