VASSERE v. JOERGER

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District Court of Appeal, Third District, California.

VASSERE v. JOERGER.†

Civ. 5672.

Decided: May 25, 1937

W. H. Morrissey, of Redwood City, for appellant. Carter, Barrett, Finley & Carlton, of Redding, as amici curiae, for respondent.

This is an appeal from a judgment sustaining the demurrer of defendant to an amended complaint without leave to amend and dismissing the action.

In this action, which was commenced February 15, 1935, it is alleged that within four years last past defendant became indebted to plaintiff for services rendered, in the sum of $1,622.13, which indebtedness was acknowledged in a writing set out in the complaint. The complaint then alleged that no part of this amount had been paid, and prayed for judgment.

The acknowledgment set out in the complaint is:

“Feb. 14, 1931.

“This is to certify that I, Louis P. Joerger, owe John Vassere $776.69 for wages due to date with interest included to date and promise to pay same on or before March 1st, 1931. Interest to be charged from this date to March 1st at rate of 7% per annum.

“Louis P. Joerger.”

“March 4th, 1932.

“This is to certify that I owe John Vassere $496.44 for additional wages with interest at the rate of 7%.

“Louis P. Joerger.”

“August 23rd, 1932.

“This is to certify that I owe John Vassere $349.00 for additional wages with interest at 7%.

“Louis P. Joerger.”

The demurrer to this amended complaint was that the purported cause of action was barred under the provisions of section 339 of the Code of Civil Procedure.

Appellant contends the action was based upon a written promise, and the action was not barred until four years after the date of the instrument (Code Civ. Proc. § 337, as amended by St.1933, p. 2116). The first of the written acknowledgments fixed the due date of the amount as March 1, 1931. This case, however, clearly falls within the rule applied in Southern Pac. Co. v. Prosser, 122 Cal. 413, 52 P. 836, 55 P. 145, 147, which distinguishes between the acknowledgment of a debt before the statute has run, and one in which the statute has already run, and holds that the acknowledgment of a debt, before the statute has run, vitalizes the old debt for another statutory period from the date of the acknowledgment and the action is upon the original obligation, while in the case of an acknowledgment made after the statute has run, the action is upon the new promise, for which the old debt is a consideration. As expressed by Chief Justice Beatty, in Southern Pac. Co. v. Prosser, supra: “When a debtor makes a new promise before an action is barred upon the original contract, he does not make himself liable a second time for the same debt, and the old promise is not merged in the new. He merely continues his original liability for a longer term. In other words, he merely waives so much of the period of limitations as has run in his favor. But when his legal obligation is at an end, by reason of the lapse of the full period of limitation, or of a discharge in bankruptcy, a new promise creates a new obligation, and is itself the basis of the action.”

This principle was also applied in Maurer v. Bernardo, 118 Cal.App. 290, 5 P.(2d) 36, where several cases are collected and cited supporting the rule. McCormick v. Brown, 36 Cal. 180, 95 Am.Dec. 170, construing section 360 of the Code of Civil Procedure, holds “the acknowledgment or promise made while the contract is a subsisting liability establishes a continuing contract; and when made after the bar of the statute, a new contract.” Therefore, since the original obligations were not barred at the time of the acknowledgment in writing, they were renewed or extended for a period of two years only from the dates thereof, and it is obvious that the action was barred.

Complaint is also made of the action of the trial court in entering an order precluding plaintiff from offering evidence on the count set forth in the amended complaint.

The defendant demanded a bill of particulars, the plaintiff failed to comply with this demand within five days as provided by section 454 of the Code of Civil Procedure, and defendant noticed a motion to exclude evidence thereof at the trial. This motion was granted conditionally, the court granting plaintiff an additional ten days in which to file a bill of particulars. No bill was ever filed, and upon that ground it was proper for the court to enter a judgment of dismissal of the action.

Appellant relies upon the case of Henning v. Clark, 46 Cal.App. 551, 189 P. 714, 716, as authority for the proposition that he was not required to furnish a bill of particulars. In that case, however, as the court in its opinion said, “plaintiff here did not sue upon an account, but upon a settlement agreement arrived at after a consultation between the parties.”

For the foregoing reasons the judgment must be affirmed, and it is so ordered.

Mr. Presiding Justice PULLEN delivered the opinion of the court.

We concur: THOMPSON, J.; PLUMMER, J.