PEÑA v. VANCE, 21 Cal. 142

Cope, J. delivered the opinion of the Court Norton, J. concurring. The complaint alleges that in 1853 the plaintiff conveyed to the defendant a tract of land in the county of Solano, taking a bond for the payment of the purchase money.

The bond is set out in full, and is conditioned for the payment of the money within one year from the date thereof, and indorsed upon it is a memorandum, as follows: “ Received on the foregoing bond the sum of two hundred and fifty dollars, four cows at five hundred dollars, and a due-bill, payable in ten days, for $1,000, leaving $5,200, which the said Vance, named in said bond, is to pay interest upon at the rate of thirty dollars per month; and said sum so remaining due is to be paid by said Vance to said Peña in one year from this day.

Said interest of thirty dollars is to be paid at the end of each month.” This memorandum is dated November 6th, 1855, and is signed by the plaintiff; and the evidence shows that it was assented to by the defendant, who subsequently acted upon it, but did not sign it. He paid the interest until the sixth of November, 1856, at which time he also paid a portion of the principal—the balance of the principal (with the interest which has since accrued) being still due. The suit was commenced in August, 1860; and the defendant relies upon the Statute of Limitations as a bar to the action.

Section thirty-one of the statute provides, that “ no acknowledgment or promise shall be sufficient evidence of a new or continuing contract, whereby to take the case out of the operation of this statute, unless the same be contained in some writing, signed by the party to be charged thereby.” The first question that presents itself is, whether cases of part payment are included in the provisions of this section, or whether these provisions are to be limited in their application to cases where the acknowledgment or promise is evidenced by words only and not by acts. In Fairbanks v.

Dawson (9 Cal. 89) the same question came up for consideration, and it was held—Mr. Justice Field dissenting—that part payment, in the absence of any written acknowledgment or promise, was not sufficient to take the case out of the statute. In Barron v.

Kennedy (17 Cal. 574) the question was" again presented; but as the payments in that case were evidenced by writing, the rule laid down in the former case was held not to be applicable—part payment being regarded as evidence of a new promise. “ The statute,” said the Court, “ does not purport to make any change in the effect of acknowledgments or promises, but simply to alter the mode of them proof; and is directed, principally at least, against the admission of oral acknowledgments and promises, which constituted a fruitful source of embarrassment in the Courts of other States.

Its chief object was to require that to be evidenced by writing which previously consisted of verbal declarations only; and in Fairbanks v. Dawson this Court held, that it also covers an acknowledgment by payment. The counsel for the plaintiff asks us to reconsider this decision, and has presented a strong argument against its correctness.

The present case does not, however, require any departure from it.” The language used seems to imply that in a proper case the Court would reconsider the question, and suggests such doubts as to the correctness of the decision as render it an insecure guide in future transactions. On examination of the matter a second time, we are satisfied that the statute intended to exclude all acknowledgments and promises not in writing; and that a promise implied from the fact of part payment cannot with any propriety be made an exception.

The words of the statute are plain and unambiguous, and it is our duty to give effect to them, and carry out the intention of the Legislature as that intention has been expressed.

Interpretation is only to be resorted to in cases of ambiguity, and it would be an evasion of the statute to hold that, notwithstanding the generality of the terms employed, cases of part payment are not included. The words are: “ Ho acknowledgment or promise; ” and part payment is mere evidence of a promise, which is required to be in writing, and is not to he inferred from circumstances of which there is no written evidence. The English Statute, (9 Geo.

IV) commonly known as Lord Tenterden’s Act, is expressly limited to acknowledgments and promises in words only, and provides that nothing therein contained shall alter, take away, or lessen the effect of part payment. Our statute contains no provision of this character; nor is it limited to acknowledgments or promises in words only; its provisions are general, and exclude all acknowledgments and promises the evidence of which rests in parol merely. In Willis v.

Newham, (3 Younge & Jer. 518) it was held, however, that the English Statute changed the rule of evidence, and that parol proof was inadmissible even in cases of part payment. This decision, though followed for many years, was finally overruled, but simply upon the ground that the statute was so worded as to exclude cases of part payment. Under a similar statute in Massachusetts, verbal testimony has been held to he admissible ; and this, we believe, is the prevailing rule in other States where the statutes are the same. In Williams v.

Gridley (9 Met. 482) the decision was based upon the clause saving the effect of part payment, and the opinion shows that but for this clause the decision would have been different. In view of the comprehensive language of our statute, and the fact that there is no provision taking from its operation cases of part payment, we are of opinion that Fairbanks v. Dawson was correctly decided. The next question is, whether the subsequent agreement, of which there is no written evidence except the indorsement upon the bond, is sufficient to take the case out of the statute ?

The Court below held that the statute had run as against the bond, but that the subsequent agreement was a good and sufficient contract in itself, and furnished a right of action independent of the bond. Four years had not elapsed from the time the money became due under the agreement, and it was held that, treating the action as an action upon the agreement, the period of limitation had not expired. The statute commenced to run, of course, when the money became due; and whether the limitation had expired or not depends upon whether the agreement is to be regarded as an agreement in writing or byparol.

The only writing is the memorandum signed by the plaintiff; and it is clear that this alone is not sufficient to establish the agreement—the assent of the defendant being necessary to make it binding upon him. On his part, therefore, the agreement is not in writing; and the only effect which can be given to it is to treat it as a verbal contract, and so treating it, the right of action is barred by the statute.

The counsel for the plaintiff do not claim, however, that the case can be sustained upon this ground, but rely upon the bond as the basis of the action, and upon the agreement as taking the case out of the statute. In this point of view the case is too plain to admit of argument, for the statute recognizes no acknowledgment or promise unless in writing, and it is immaterial that the promise was made in consideration of forbearance. The promise was to pay the debt, and the statute undoubtedly intended that such a promise, in order to be available as against the limitation imposed, should be in writing.

The judgment is reversed and the cause remanded.