Bank of America v. Agles

BANK OF AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION (a National Banking Association), Respondent, v. WALTER C. AGLES et al., Appellants.

COUNSEL

Cyril Saunders for Appellants.

Samuel B. Stewart and George Chadwick, Jr., for Respondent.

OPINION

WOOD (Fred B.), J.

Defendants have appealed from a judgment against them upon their promissory note executed and dated June 13, 1951. The complaint was filed January 11, 1957. They rely upon their plea of the bar of section 337, subdivision 1 of the Code of Civil Procedure, the four-year statute of limitations, claiming that this was a demand note.

[1] By its terms this note was payable "on or before five (5) years from date." Plaintiff claims and the trial court held that this phrase made the note payable at a "fixed or determinable future time," within the meaning of that expression as used in section 3082, subdivision (3), and section 3085, subdivision (2), of the Civil Code, hence not "payable on demand" as the latter expression is used in section 3088 of the Civil Code. [171 Cal. App. 2d 528]

We are persuaded that the trial court correctly interpreted the phrase in question, that the statute of limitations did not commence to run until June 13, 1956; hence, that the complaint was filed well within the four-year period.

The judgment is affirmed.

Bray, P. J., and Tobriner, J., concurred.