Opinion
12-15-1954
Joseph TANZOLA, Plaintiff and Respondent, v. John DE RITA, Executor of Last Will and Testament of Angelo Pipolo, Deceased, Defendant and Appellant. * Civ. 20538.
Arnerich, del Valle & Sinatra, Los Angeles, for appellant. George J. Tapper and Jack D. Most, Los Angeles, for respondent.
Joseph TANZOLA, Plaintiff and Respondent,
v.
John DE RITA, Executor of Last Will and Testament of Angelo Pipolo, Deceased, Defendant and Appellant.
Dec. 15, 1954.
Hearing Granted Feb. 10, 1955.
Arnerich, del Valle & Sinatra, Los Angeles, for appellant.
George J. Tapper and Jack D. Most, Los Angeles, for respondent.
McCOMB, Justice.
From a judgment in favor of plaintiff after trial before the court without a jury, in an action to recover sums of money allegedly loaned to defendant's testator, defendant appeals.
Facts: Angelo Pipolo died on June 28, 1952. John DeRita was duly appointed executor of his estate. Thereafter plaintiff filed a creditor's claim which was rejected by the executor, whereupon plaintiff instituted the present suit to enforce his claim.
Plaintiff gave to defendant's decedent two checks, each in the sum of $6,000, one on November 11 or 12, 1949, and the other on December 16, 1949. Decedent and Mrs. Pipolo were married on November 26, 1949. These checks were endorsed with the decedent's name by Mrs. Pipolo and deposited in the bank by her.
Questions: First: Did the trial court err in permitting decedent's wife, Mrs. Pipolo, to testify to communications during the marriage between the decedent and herself with respect to the check dated December 16, 1949?
No. Decedent's wife, over objection that she was not competent to testify because her testimony was regarding a confidential communication and therefore inadmissible under the provisions of Section 1881, subdivision 1, of the Code of Civil Procedure, was permitted to testify that after their marriage her husband brought a check dated December 16, 1949, in the sum of $6,000 to her; that the check was placed on her desk at their pharmacy; that she endorsed her husband's name on the check and deposited it in the Citizens National Bank to the credit of Angelo Pipolo's account; that the word 'loan' was written in the upper left hand corner of the check.
Such testimony was admissible since the wife was not testifying to a communication made to her by her husband but to an act done by the husband in her sight, and to what she herself had done. The inhibition of section 1881, subdivision 1, of the Code of Civil Procedure is applicable only to communications made by one spouse to the other, not to acts that are performed by one in the presence of the other or to acts that are performed by one spouse. (See People v. Peak, 66 Cal.App.2d 894, 903, 153 P.2d 464.) Therefore the trial court's ruling was correct.
Second: Was there substantial evidence to sustain the trial court's finding that Mrs. Pipolo had authority to sign decedent's name to the two checks which were given him by plaintiff and upon which the word 'loan' was written?
Yes. Mrs. Pipolo testified as follows: 'I handled all of his banking for him, and all of his book work. Even during the time when I was home ill in bed for a year, he brought it out to me to take care of it for him because he didn't want to be bothered with it.'
'Q. Did that include signing his name on any occasion? A. On all occasions.'
The evidence further disclosed that decedent and Mrs. Pipolo had planned to be married some four years prior to the receipt of the first $6,000 check; that the loans in question were for the purpose of building a home in which decedent and Mrs. Pipolo intended to live after their marriage. Mrs. Pipolo testified further that decedent 'gave me complete authority to act in his behalf.'
Third: Was Mrs. Pipolo's authority to sign decedent's name required to be in writing under the provisions of Section 1624 of the Civil Code?
No. The contract upon which the suit was instituted was one which could have been performed within one year from the date of the making thereof, since the loan was in the nature of a demand loan, and there is nothing in the statute of frauds requiring that the authority of an agent to execute such a contract be in writing.
In addition, Section 2310 of the Civil Code provides that the act of an agent is ratified 'where an oral authorization would suffice, by accepting or retaining the benefit of the act, with notice thereof.' In the instant case decedent gave an oral authorization and retained the benefits of the acts which the agent performed pursuant thereto.
Fourth: Were plaintiff's causes of action on the two checks barred by the Statute of Limitations since the present action was not commenced until more than two years had elapsed after the loans had been made?
No. Since the loans were made in the form of two checks upon each of which the word 'loan' had been written, such transaction constituted an agreement evidenced by a writing. Therefore, the four year statute of limitations applied, Code Civ.Proc. § 337, and not the two year statute, Code Civ.Proc. § 339.
A case on all fours with the instant case on this point, Hester & Wise v. Chinn, Tex.Civ.App., 162 S.W.2d 450, is by a Texas court. The statute there is similar to that in force in California, and reads in part as follows: 'What actions barred in four years: There shall be commenced and prosecuted within four years after the cause of action shall have accrued, and not afterward, all actions or suits in court of the following description:
'1. Actions for debt where the indebtedness is evidence by or founded upon any contract in writing.' Vernon's Ann.Civ.St. art. 5527.
In the cited case, on the check in the lower left hand corner appeared the word 'loan.' The court there held as follows (at page 451): 'This is a suit which was instituted on August 2, 1939, by appellee to recover money in the sum of $4,000 (less a credit of $500) which he alleged he loaned to appellants on November 30, 1935.
'The principal question in the case is whether the instrument sued on does itself contain a contract for appellants to repay to appellee so as to make the four-year statute of limitation applicable.
'The written instrument sued on consists of a check, dated November 30, 1935, drawn by appellee on the South Texas Commercial Bank of Houston, for the sum of $4,000, payable to the order of appellants. On the face of the check, in the lower left-hand corner, appellee had written the word 'Loan'. The endorsements on the check are as follows, and in this order: 'Hester & Wise, for deposit, Paul E. Wise, trustee'. 'Dec. 2, 1935, paid through Houston Clearing House, Prior Endorsements guaranteed, National Bank of Commerce.' * * *
'We overrule appellants' first point. The instrument in writing sued on by appellee is so complete that, except for appellants' pled-defense and evidence given in support thereof (the nature of which is sufficiently indicated by the jury's findings), appellee would have been entitled to judgment thereon after proving the delivery of the check, the endorsement thereon, and the fact that it was duly honored by the bank drawn on. The obligation of appellants to repay the loan was not one 'implied by law' as that term is usually employed; that is to say appellants' obligation to repay the loan did not arise out of quasi contract, but out of true contract. When appellee made the loan and appellants accepted it, in virtue of that transaction appellee was the lender and appellants the borrowers; appellee was the creditor, and appellants the debtors. The obligation of a borrower or debtor to repay the money lent him is not a quasi contract obligation, but a true contract obligation. The word loan embodies the concept that the one who accepts it will repay it. If the money is accepted on any understanding between the parties other than that it is to be repaid, it is a gift or some character of transaction other than a loan. The parties do not have to write into a loan transaction in so many words that the borrower agrees to repay it, because the parties by voluntarily assuming a creditordebtor status or relation to each other, with reference to the money lent, agree that this shall be done, and words are unnecessary to be expressly written, where the transaction is in writing. The obligation of an endorser is not one resting in quasi contract, but by voluntarily assuming the status of an endorser, the endorser voluntarily assumes the obligations attached to being an endorser. In this connection, see Guaranty Bond State Bank of Athens v. Fraternal Bank and Trust Company, Tex.Civ.App., 68 S.W.2d 305, at pages 306 and 307.
'As stated in Cowart v. Russell, 135 Tex. 562, 565, 144 S.W.2d 249, 250: 'It is well settled that 'in order for an action to be one for an indebtedness evidenced by or founded upon a contract in writing, as referred to in the above quoted statute (i. e., Article 5527, Subd. 1), the action must be between the immediate parties to the contract, or those for whose benefit it was made, or their privies, and the written instrument relied upon must itself contain a contract to do the thing for the nonperformance of which the action is brought.' Shaw v. Bush, Tex.Civ.App., 61 S.W.2d 526, 528, writ refused.'' (See also O'Brien v. King, 174 Cal. 769, 164 P. 631.)
The rule is establish in California that the order to come within the four year statute the writing in question need not contain an express promise to pay. It is sufficient if the writing acknowledges the debt and sets forth a state of facts from which the obligation or liability to pay necessarily and directly flows. (Tagus Ranch Co. v. Hughes, 64 Cal.App.2d 128, 130, 148 P.2d 79; see also Sannickson v. Brown & Others, 5 Cal. 57, and Ashley v. Vischer, 24 Cal. 322.)
Fifth: Did the fact that the original complaint was labeled a suit on 'an oral agreement' bar plaintiff from subsequently contending in the amended complaint that it was on a written agreement?
No. The statement on the original complaint of the pleader was a mere conclusion of law which was not binding upon the pleader, the controlling feature being the facts which appear in the pleading or from the evidence. (Deming v. Smith, 19 Cal.App.2d 683, 690, 66 P.2d 454; Shive v. Barrow, 88 Cal.App.2d 838, 842, 199 P.2d 693; Shaw v. McCaslin, 50 Cal.App.2d 467, 472, 123 P.2d 102.)
Under the foregoing rules the label 'oral agreement' placed by plaintiff on his original complaint was a mere conclusion of the pleader, not binding upon plaintiff in the face of the specific facts which appeared contrary to the conclusion of the pleader. Such conclusion was mere surplusage and properly disregarded by the trial court.
Sixth: Did the trial court abuse its discretion in refusing to grant defendant's motion for a new trial?
No. The grounds for the motion for a new trial as set forth in defendant's affidavits were answered in counter affidavits filed by plaintiff and it has not been made to appear that the trial court abused its discretion in finding in support of the allegations in the counter affidavits.
Affirmed.
MOORE, P. J., and FOX, J., concur. --------------- * Opinion vacated 285 P.2d 897. 1 Section 1881, subd. 1, Code of Civil Procedure reads: 'A husband can not be examined for or against his wife without her consent; nor a wife for or against her husband, without his consent; nor can either, during the marriage or afterward, be, without the consent of the other, examined as to any communication made by one to the other during the marriage; but this exception does not apply to a civil action or proceeding by one against the other, nor to a criminal action or proceeding for a crime committed by one against the other, or for a crime committed against another person by a husband or wife while engaged in committing and connected with the commission of a crime by one against the other; or in an action for damages against another person for adultery committed by either husband or wife.'