Youngdale

After the statute of limitations had barred the remedy upon the promissory note in question, defendant wrote three letters which plaintiff contends constituted an unqualified and unconditional acknowledgment of the indebtedness, thus giving rise to an implied unqualified and unconditional promise to pay. Conversely, defendant contends that his promise to pay was express, not implied, and was conditioned upon his being able to make financial arrangements to meet the obligation, Obviously, an express promise necessarily excludes a promise by implication. (Sterling v. Title Ins. & Trust Co., 53 Cal.App.2d 736, 743 [ 128 P.2d 31 ].) Plaintiff appeals from an adverse judgment.

The general basis of an action such as this is well stated in Rodgers v. Byers, 127 Cal. 528, 530 [ 60 P. 42 ] :

If the promise to pay is express but co3iditional, then plaintiff must allege and prove the happening of the condition and the breach thereof by defendant. (Rodgers v. Byers, supra, p. 532 ; Hayes v. O’Marr, 81 Cal.App. 210, 212 [ 253 P. 749 ].) This, plaintiff did not do.

So the issue boils down to whether the letters written by defendant contained an express conditional promise to pay or only an…