Opinion
Hearing Granted by Supreme Court Jan. 12, 1928.
Appeal from Superior Court, Los Angeles County; Hugh J. Crawford, Judge.
Action by J. H. Frantz against H. J. Mallen. From a judgment of dismissal, plaintiff appeals. Affirmed. COUNSEL
C. A. Ballreich, of Los Angeles, for appellant.
J. Marion Wright, of Los Angeles (B. L. Herlihy, of Los Angeles, of counsel), for respondent.
OPINION
KING, Presiding Justice pro tem.
Appeal from judgment of dismissal upon sustaining defendant’s demurrer to the complaint without leave to amend.
The complaint filed December 17, 1924, alleges that "defendant is a resident of Los Angeles county, Cal., and that during all the time herein mentioned said defendant was a resident of the state of Colorado, and during said time the plaintiff was, and still is, a resident of said state of Colorado."
It then goes on to allege that plaintiff and defendant entered into a written agreement in Colorado, set out in full in the complaint, by which in consideration for the purchase of certain shares of stock by plaintiff from defendant for $2,000, defendant agreed to purchase said stock from plaintiff, "and pay him $2,500 in cash therefor on or before August 4, A.D. 1920." If on or before August 4, 1920, defendant offered to pay plaintiff $2,500, and plaintiff refused, defendant not to be under any obligation to buy it. Plaintiff bought and paid for the stock.
The complaint then alleges that a week or two prior to August 4, 1920, desiring to turn the stock back and receive the $2,500, plaintiff inquired as to defendant’s whereabouts, and learned he was in Europe; that defendant never offered to buy back the stock; that in the fall of 1920, upon defendant’s return from Europe, plaintiff demanded the buying back of the stock by defendant, who refused, and still refuses. Soon after this demand defendant left Colorado, and plaintiff "knew not of his residence until some few months since, when he learned that he was in Los Angeles county, Cal." Judgment is prayed for $2,500, with interest at 8 per cent.
A demurrer was interposed upon the general ground of insufficiency, lack of jurisdiction of the subject-matter, and setting up subdivision 1 of section 337, Code of Civil Procedure, as a bar. The demurrer was argued January 22, 1925, and January 23d it was sustained without leave to amend.
February 16, 1925, plaintiff filed a notice of motion for leave to amend, to be heard February 20th, specifying that he would move to strike out of the court’s order the words "without leave to amend," and accompanying the notice with a copy of the proposed amendment, which alleged, upon information and belief, that defendant had not been a continuous resident of California for a period of four years, and "did not take up his residence in California till long after the first of the year 1921"; that the contract sued on was not at the commencement of the action, or now, barred by the statute of Colorado, which provides a six-year limitation period.
This motion was denied March 16, 1925, and March 20, 1925, an order was made dismissing the action. Plaintiff appeals.
Appellant attacks the ruling on the demurrer, which was doubtless based on the plea of the statute of limitations. He contends that no cause of action arose until demand was made; that defendant having become a resident of California, even if the California four-year period prevails, yet, the complaint not showing on its face that defendant has been a resident of California for four years, this period has not yet run.
The contract plainly provides that defendant will purchase the stock from the plaintiff and pay him "in cash therefor on or before August 4, A.D. 1920." It does not call for a demand or a notice, and none was necessary. The defendant’s agreement was to be performed on or before a definite date, and on that date the statute began to run.
The complaint in no place states that defendant is, or ever was, within the state of California, except possibly by inference from the allegation on information and belief "that the defendant is a resident of Los Angeles county, state of California," and even this is negatived by the allegation in the same paragraph-also on information and belief-"that during all the time herein mentioned said defendant was a resident of the state of Colorado."
The complaint also contains a statement that "some few months since he (plaintiff) learned that he (defendant) was in Los Angeles county, Cal."
The only other statement as to the whereabouts of defendant at any time from August 4, 1920, to date of the commencement of the action is an allegation that defendant was not in Colorado "on said date and for many weeks prior and subsequent thereto," and a further allegation that during the fall of 1920 defendant returned from Europe, presumably to Colorado, where plaintiff demanded payment, which was refused, and "soon after the demand above set out the defendant again left the state of Colorado."
Manifestly lex fori governs when the statute of limitations is pleaded, and, unless something is pleaded in the complaint to toll the running of the statute, his demand was barred four years from August 4, 1920, or under appellant’s contention, four years from "the fall of 1920," when demand was made, for four years had elapsed before December 17, 1924, when the complaint was filed.
A very clear discussion of the law of the forum is contained in a note in 6 L. R. A. (N. S.) 658, where this language is used:
"In the absence of a local statute of the forum changing the rule, it is established by the overwhelming weight of authority that the limitation of time for bringing the action upon a contract depends upon the law of the forum, and not upon the law of the place where the contract was made or where it is performable.
"In other words, the question of limitation is governed by the law of the forum rather than by the law of the place to which the contract is properly subject, so far as matters of substance are concerned. *** An action upon a foreign contract cannot be maintained if it would be barred by the statute of limitations of the forum, although not yet barred by the foreign law."
Appellant very earnestly contends "that the four-year statute of California was not available to the defendant, unless it appeared on the face of the complaint that he had been a continuous resident of this state for the full period of four years."
In this he is in error. The face of the complaint showing, as it does, that the four-year period has elapsed, plaintiff must allege such other facts as will prevent the running of the statute. Section 351, Code of Civil Procedure, relied on by appellant, provides that the action may be brought within the statutory period after defendant’s return, if he is out of the state at the time the cause of action accrues, and that his departure from the state after a cause of action accrues prevents the statute from running during his absence.
It will be noted that this section refers solely to the physical absence from, or presence in, the state by the defendant. No question of residence is involved. Hence the allegation of the complaint that defendant is a resident of Colorado, or that he is a resident of Los Angeles, does not in any way tend to show that he is or has been, in the words of our statute, "out of," or departed from, the state.
The case of Dougall v. Schulenberg, 101 Cal. 156, 35 P. 635, cited by appellant, clearly states as quoted in his brief: "The statute only commenced to run in their favor when they came to this state," and again: "Deducting the period during which the defendant was absent, he had not been in this state two years," etc. These quotations do not justify counsel’s deduction that the full term of two years’ residence was the question.
So in the case of McKee v. Dodd, 152 Cal. 637, 93 P. 854, 14 L. R. A. (N. S.) 780, 125 Am. St. Rep. 82, cited, the court referred to the fact that "the total length of his stay in this state aggregated less than two years"-not "lived in California" as argued by counsel.
There is nothing in the complaint whatever to show that the defendant had not been physically within the state of California the full statutory period of four years, and, the complaint plainly showing that this period had elapsed, the demurrer was correctly sustained.
Even if appellant’s motion to amend had been granted, the complaint would still have been vulnerable to the same attack, and the motion was properly denied.
The judgment is affirmed.
We concur: STURTEVANT, J.; NOURSE, J.