Bullock v. Simon
Decision Date | 25 March 1955 |
Citation | 132 Cal.App.2d Supp. 881,281 P.2d 916 |
Court | California Superior Court |
Parties | 132 Cal.App.2d Supp. 881 Byron J. BULLOCK, Plaintiff and Respondent, v. Andrew E. SIMON et al., Defendants and Appellants. C. A. 8648. Appellate Department, Superior Court, Los Angeles County, California |
Philip H. Simon, Jr., Los Angeles, for appellants.
Robert E. Austin & John N. Helmick, Los Angeles, for respondent.
Action upon a lost promissory note, resulting in judgment for plaintiff from which defendants appeal.
As alleged in the complaint and testified to upon the trial by plaintiff, the note was dated October 10, 1947, payable in installments of $30 per month, but with the provision that 'default in the payment of any installment when due shall cause the whole note, principal and interest, to become immediately due and payable.' The action was filed August 17, 1953 and as admittedly the last payment made by the defendant was November 15, 1947, it was barred by the statute of limitations, which was pleaded by the defendants, unless the 'credits' hereinafter mentioned constituted payments thereon which operated to toll the statute.
From the statement on appeal, it appears that the defendant, A. Virginia Simon, at the time of the execution of the note and for several years thereafter was an employee of plaintiff; that defendant There is no evidence that plaintiff ever unconditionally agreed to or gave any credit upon the note for vacation pay prior to June, 1953, although when he then purported to endorse such credits upon the copy of the note, he antedated them as of August 19, 1948, August 15, 1950, August 25, 1951, and August 25, 1952. Neither is there any proof that defendant was ever advised that she had been given such credits upon the note. Thus the question is presented as to whether such purported credits constitute 'payment on account of principal or interest due on a promissory note made by the party to be charged', within the meaning of this language as used in section 360, Code of Civil Procedure.
Prior to 1947 a mere payment unaccompanied by a written promise was insufficient to toll the statute of limitations, and insofar as we have been able to ascertain none of the appellate courts of this State have had occasion to construe the language of the amendment. In other jurisdictions, however, the rule has long obtained that the statute may effectively be tolled by a payment on account, but the decisions are not in entire harmony as to what constitutes a payment by the debtor. See Annotation, 124 A.L.R. 234. The greater weight of authority, however, appears to support the view that the mere entry of a credit by the creditor without the consent of the debtor is without effect upon the statute of limitations and likewise the fact that the debtor knows of the unauthorized entry of credit on his debt and makes no objection thereto is not alone sufficient to constitute a ratification of the credit so as to toll the statute.
In Brooklyn Bank v. Barnaby, 1910, 197 N.Y. 210, 90 N.E. 834, 27 L.R.A., N.S., 843, where a bank, as it had the right to do, sold collateral securing a promissory note held by it, notifying the maker thereof who made no objection thereto, it was held that the crediting of the amount of the proceeds upon the note did not constitute payment by the maker so as to toll the statute, the court saying, 90 N.E. at page 839, 27 L.R.A.,N.S., at page 851:
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Martindell v. Bodrero
...whether the $200 payment made by the corporation may be considered to have been made by 'the party to be charged.' Bullock v. Simon, 132 Cal.App.2d Supp. 881, 281 P.2d 916, defines to a limited extent the connection between the payment and the party to be charged therewith. In Bullock, the ......