Sorenson v. United States, 14379.
| Decision Date | 11 October 1955 |
| Docket Number | No. 14379.,14379. |
| Parties | Hans J. SORENSON, Appellant, v. UNITED STATES of America, Appellee. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Vernon F. Gant, Modesto, Cal., for appellant.
Perry W. Morton, Asst. Atty. Gen., J. Harold Weise, Sp. Asst. to Atty. Gen., Roger P. Marquis, Edmund B. Clark, Attys., Dept. of Justice, Washington, D. C., Lloyd H. Burke, U. S. Atty., John E. Lynch, Asst. U. S. Atty., San Francisco, Cal., for appellee.
Before DENMAN, Chief Judge, HEALY, Circuit Judge, and JAMES M. CARTER, District Judge.
Sorenson appeals from a decision of the District Court holding him and his former partner, Theo. O. Lydecker, liable to the United States Government for rentals on a lease with the Department of Agriculture of certain property owned by the Government and a contract with the Commodity Credit Corporation for the delivery of certain dehydrated potatoes. It is not questioned that the United States may sue on these contracts.
A. The Lease Agreement. The partners leased certain lands from the United States at an agreed rental, which lease was amended changing the date for the rental payments. Thereafter the partnership was dissolved, Lydecker assuming all Sorenson's liabilities under the lease. Thereafter the lease was again amended changing the amounts of the rentals and the dates of the payment. It is not questioned that the alterations after the dissolution of the partnership are material.
Sorenson contends that the district court erred in not holding him free of liability on the lease under the provisions of California Corporations Code, § 15036(3) which reads:
"Where a person agrees to assume the existing obligations of a dissolved partnership, the partners whose obligations have been assumed shall be discharged from any liability to any creditor of the partnership who, knowing of the agreement, consents to a material alteration in the nature or time of payment of such obligations." Emphasis added.
We agree with the district court that Sorenson has not maintained his burden of proof, that the United States had knowledge before the last modification of the lease that Lydecker had agreed to assume the existing obligation to pay the rentals on the original lease. The evidence shows no more than that the partnership had been dissolved. Nothing was shown of Lydecker's assumption of Sorenson's liability.
B. The suit on the potato contract with the Commodity Credit Corporation was not barred by the statute of limitations.
The Commodity Credit Corporation is empowered by Congress to make such contracts in the usual course of its corporate business and the contract was so made. Concerning such usual contracts made in the course of its business, 15 U.S.C.A. 714b(c) provides:
"No suit by or against the Corporation shall be allowed unless (1) it shall have been brought within six years after the right accrued on which suit is brought * * *."
Sorenson contends for the first time on appeal that the suit was so barred and for the purposes of this opinion it is assumed that the suit was brought against him more than six years after the claimed breach of the contract.
Rule 8(c) of the Federal Rules of Civil Procedure, 28 U.S.C.A., provides, so far as pertinent:
Emphasis added.
Concerning the failure, as here, of Sorenson to set forth in his answer or by motion or at the trial his defense of the above statute limiting the time on which the suit in the potato contract could be brought, Rule 12(h) of the Federal Rules of Civil Procedure, 28 U.S.C.A. provides:
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