Peña v. Vance

Citations

• 21 Cal. 142

Syllabus

<p>A part payment does not take a debt from the operation of our Statute of Limitations, unless such payment is evidenced by a writing signed by the party to be charged thereby.</p> <p>Section thirty-nine of the Limitation Act excludes all acknowledgments and promises not in writing; and a promise implied from the fact of part payment constitutes no exception.</p> <p>Fairbanks v. Dawson (9 Cal. 89) affirmed.</p> <p>A memorandum indorsed upon an overdue bond, stating a receipt of a portion of the debt, and also extending the time and changing in some respects the terms of payment, signed by the obligee alone, but assented to by the obligor, is not a writing “ signed by the party to be charged thereby,” and does not affect the operation of the limitation statute.</p> <p>If the signing of such a memorandum by the creditor and the assent to it by the debtor be viewed as a new and distinct contract for the payment of money, it would be a mere verbal contract, an action upon which would be barred by the lapse of two years from the time of payment fixed by its terms.</p>