Byers

Upon a former appeal in this case the judgment and an order denying a new trial were reversed because there was a fatal variance between the allegations of the original complaint and the proofs. (Rogers v. Byers, 127 Cal. 531 , [ 60 Pac. 42 ].) It was there held that certain letters contained conditional promises to pay and did not support the averments of the complaint. After the remittitur was filed in the court below, the plaintiff amended her complaint by declaring upon such conditional promises, in separate counts. In other words, she stated three causes of action, each of which rested on a letter from defendant, containing a conditional promise to pay a certain note. The defendant died before the trial and the executor of his last will was substituted as defendant in this action. The executor answering denied the allegations of the amended complaint, and as a separate defense alleged that each cause of action stated therein was barred by the provisions of section 337 of the Code of Civil Procedure. The court found for plaintiff on all of the issues, and judgment having passed for plaintiff the defendant appealed. In the bill of exceptions plaintiff specifies many particulars…