JONES v. WILTON

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District Court of Appeal, Second District, Division 2, California.

JONES v. WILTON.†

Civ. 11251.

Decided: March 01, 1937

W. L. Engelhardt and A. G. Divet, both of Los Angeles, for appellant. A. P. G. Steffes, of Los Angeles, for respondent.

Plaintiff appeals from a judgment in favor of defendant after the trial court sitting without a jury held the cause of action alleged in the complaint as amended was barred by the Statute of Limitations. Section 337, Code Civ.Proc. (as amended by St.1935, p. 1740, § 2).

The essential facts are these:

A. Pleadings.

Material facts alleged in the original complaint filed October 1, 1935.III

“That on the 5th day of September, 1928, an account was stated between the Plaintiff and Defendant at which time the Defendant executed an agreement in writing by the terms of which agreement the Defendant promised and agreed to pay to Plaintiff the sum of Twenty Thousand Dollars ($20,000.00), for and in consideration of the services so rendered by the Plaintiff at the instance and request of the Defendant.”

IV

“That by the terms and conditions of said written agreement so executed by the Defendant, Defendant promised, undertook and guaranteed that said sum of Twenty Thousand Dollars ($20,000.00) together with interest thereon at the rate of Six Percent (6%) per annum would be paid to the Plaintiff on or before three years from and after September 5th, 1928.”

VI

“That no part of said sum of Twenty Thousand Dollars ($20,000.00) or said interest has been paid, or in any manner satisfied.”

VII

“That after said agreement was so executed and in the year 1929 the Defendant left the State of California, and remained out of and was absent from the State of California for a period of approximately four years.”

Material facts alleged in the Amended Complaint filed April 10, 1936.

III

“That on the 5th day of September, 1928, an account was stated between the plaintiff and defendant and said Los Angeles Housing Corporation and said Gibraltar Title Company, at which time the defendant and said Los Angeles Housing Corporation and said Gibraltar Title Company, executed an agreement in writing by the terms of which agreement the defendant and the said Los Angeles Housing Corporation and the said Gibraltar Title Company agreed that they were indebted to the plaintiff in the sum of Twenty Thousand ($20,000.00) Dollars, for and on account of said services so rendered by the plaintiff to the defendant and said Los Angeles Housing Corporation and said Gibraltar Title Company. That by the terms and conditions of said agreement and for the purpose of securing the payment of said sum of Twenty Thousand ($20,000.00) Dollars, the defendant and the said Los Angeles Housing Corporation and said Gibraltar Title Company agreed to assign to the plaintiff trust deeds from time to time until the total assignments to plaintiff of such trust deeds should aggregate the sum of $50,000.00.”

IV

“That the defendant and the said Los Angeles Housing Corporation and said Gibraltar Title Company, by the terms and conditions of said agreement, jointly and severally, undertook and agreed and guaranteed that the plaintiff would receive from said trust deeds the sum of $20,000.00 and interest at the rate of six (6%) per cent per annum from September 5th, 1928 within thirty–six (36) months from and after September 5th, 1928 and that the defendant and the said Los Angeles Housing Corporation and said Gibraltar Title Company, by the terms and conditions of said agreement further, jointly and severally, guaranteed the payment of said $20,000.00 with interest thereon at the rate of six (6%) per cent per annum from the date thereof until paid irrespective of whether plaintiff received anything from said trust deeds.”

VI

“That pursuant to said agreement the defendant did assign or cause to be assigned to the plaintiff a certain trust deed in the principal sum of $10,000.00, which said trust deed or other security assigned to the plaintiff by the defendant or the said Los Angeles Housing Corporation or said Gibraltar Title Company to secure the payment of said obligation in the sum of Twenty Thousand ($20,000.00) Dollars. That long prior to the commencement of this action said trust deed, which was a prior lien to the trust deed so given to the plaintiff, was foreclosed and said property was sold under said prior trust deed, and the security of said trust deed so assigned to the plaintiff was wholly lost and destroyed and said trust deed thereupon and thereafter had no value whatever.”

VII

“That there was unpaid to the plaintiff the said sum of Twenty Thousand ($20,000.00) Dollars, or any part thereof, within the said period of thirty–six (36) months, from and after September 5th, 1928, and that no part of said sum of $20,000.00, or of the interest thereof, has at any time or in any manner ever been satisfied or paid. That the plaintiff did not receive any sum whatever from said trust deed so assigned to the plaintiff, as aforesaid, and no part of said indebtedness of Twenty Thousand ($20,000.00) Dollars was in any manner liquidated.”

IX

“That plaintiff is informed and believes and therefore alleges the fact to be that after September 5th, 1931, the defendant left the State of California and remained out of and was absent from the State of California for a period of more than fifty–five days between the 5th day of September, 1931, and the 5th day of September, 1935.”

B. Evidence.

Introduced at the trial was evidence of the absence of defendant from the State of California for 166 days during the period from October 28, 1932, to September 5, 1935, and of an agreement signed by defendant, upon which plaintiff bases his cause of action reading in part thus:

“Los Angeles, California,

“September 5th, 1928.

“Mark F. Jones, Esq.,

“Los Angeles, Cal.

“Dear Sir:

“Confirming our conversation of August 27th, 1928, please be advised that in view of the fact that you have rendered various and divers services to the Los Angeles Housing Corporation, Gabraltar Title Company and to Hugh Wilton, over a period of some two years, and in view of the fact that we have not paid you for your services, and in accordance with the adjustment of said indebtedness which we have made, and the account which we have stated and agreed upon, we hereby agree as follows:

“That outside of the fee due you in the case of Wilton v. Spalding, we hereby admit that we are indebted to you in the sum of $20,000.00. As a means of paying you, and liquidating said indebtedness, I agree to assign to you a one–half interest in a $7,000 equity in the Normandie Street first trust deed which I will have in payment of my services in erecting a building upon said premises, and which premises are known as 1814 North Normandie Street, in the City of Los Angeles, California; and I also agree to assign to you a one–half right, title and interest in my equity in any other first trust deeds which I maye take for my services in constructing buildings from time to time until the total assignments to you of said interest aggregate $50,000. * * *

“And I further guarantee that you will receive from said trust deeds at least $20,000 and interest at 6% per annum from date hereof, within 36 months from date hereof, and in the event that there is not paid from said assignments to you the last named sum within said time, then we hereby jointly and severally agree to pay you any deficiency so as to make the total payments received by you from said trust deeds at least $20,000 and interest thereon at 6% per annum from date until paid. And we hereby jointly and severally guarantee the payment of said $20,000 with interest thereon at the rate of 6er annum from the date hereof until paid, irrespective of whether you ever receive anything from said assignments; and we jointly and severally hereby waive any notice of non–payment of any sums due and owing you on said assignments, and guarantee the payment of the same up to the extent of $20,000.00 and interest thereon at the rate of 6% per annum from date, * * *

“If I, we or any of us, fail to deliver to you $50,000 worth in interest in first mortgages or trust deeds as above stated, on or before six months from the date hereof, then we agree to pay you upon your demand the sum of $20,000 together with interest thereon at the rate of 6% per annum from date hereof. * * *

“Very truly,

Hugh Wilton

“[Seal] Los Angeles Housing Corporation

“By Hugh Wilton, Pres.

“C. Taylor, Secy.

“Gibraltar Title Company

“By Hugh Wilton, Pres.

“C. Taylor, Secy.”

The questions presented for our determination are these:

First: Did the complaint as amended state a new and different cause of action from that alleged in the complaint?

Second: Did the Statute of Limitations commence to run March 5, 1929, that is 6 months after the date of the execution of the contract hereinbefore set forth, or September 5, 1931, 36 months after the execution of the contract?

The first question must be answered in the negative. The rule is that an amended complaint does not state a new cause of action if both the complaint and the complaint as amended have the same, identical purpose or deal with the same subject–matter. 16 Cal.Jur. 547; Hemmeon v. Amalgamated Copper Mines Co., 95 Cal.App. 400, 403, 273 P. 74. It is patent from a reading of the complaint and complaint as amended that each is based on the same primary right, to wit, an account stated September 5, 1928, supported by an agreement executed by the defendant on the same date. The allegations in the complaint as amended are no more nor less than an amplification of similar allegations in the complaint. The contract executed by defendant would have been admissible under the allegations of either pleading.

As to the second question defendant's contract read in part as follows:

“And I further guarantee that you will receive from said trust deeds at least $20,000 and interest at 6% per annum from date hereof within 36 months from date hereof and in the event that there is not paid from said assignments to you the last named sum within said time then we hereby jointly and severally agree to pay you any deficiency so as to make the total payments received by you from said trust deeds at least $20,000 and interest thereon at 6% per annum from date until paid * * *

“If I * * * fail to deliver to you $50,000 worth in interest in first mortgages or trust deeds * * *, on or before six months from the date hereof, then we agree to pay you upon your demand the sum of $20,000 together with interest thereon at the rate of 6% per annum from date hereof.” (Italics ours.)

It seems clear from a reading of the entire contract that the first provision quoted, supra, constituted a promise upon the part of defendant to pay to plaintiff $20,000 thirty–six months after the date of the execution of the agreement, to wit, September 5, 1931, while the second paragraph quoted was an acceleration clause for the benefit of plaintiff. The rule is settled in California that the obligation in a contract containing an acceleration clause does not mature upon default of the condition precedent to the operation of such clause, unless the promisee elects to declare the obligation due. Congregational Church Bldg. Society v. Osborn, 153 Cal. 197, 200, 94 P. 881; Moore v. Russell, 133 Cal. 297, 300, 65 P. 624, 85 Am.St.Rep. 166; Richards v. Daley, 116 Cal. 336, 338, 48 P. 220; Mason v. Luce, 116 Cal. 232, 235, 48 P. 72; Belloc v. Davis, 38 Cal. 242, 249; Andrews v. Zook, 125 Cal.App. 19, 21, 13 P.(2d) 518.

In the present case there is no evidence that plaintiff ever elected to exercise his rights under the acceleration clause. Therefore, since the obligation did not mature until September 5, 1931, and the uncontradicted evidence disclosed that defendant had been absent from the State of California 166 days between October 28, 1932, and September 5, 1935, the Statute of Limitations (section 337 Code Civ. Proc.) had not run at the time of the filing of the complaint on October 1, 1935. In view of the fact that the complaint as amended did not state a new and different cause of action from that alleged in the complaint, the determinative date is October 1, 1935, and not April 10, 1936, the date the complaint as amended was filed.

The judgment is reversed.

McCOMB, Justice pro tem.

We concur: CRAIL, P. J.; WOOD, J.

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