It is conceived proper, in denying the petition for a rehearing herein, to add to what has been said in the main opinion that, from our original examination of the record in this cause we felt justified in concluding that the trust theory of the complaint was adopted for no other reason than to obstruct the successful interposition of the statute of limitations against plaintiff's right of action. We concluded, from what we conceived to be a painstaking examination and careful analysis of the complaint, that the facts pleaded, with the exception of a few general averments amounting to mere conclusions of the pleader, failed to show the transaction between *Page 574 the deceased and the defendant to have been of a fiduciary nature. The evidence, as disclosed by the record, fully sustains this conclusion. We were convinced that the relations, if, indeed, any at all existed at the time of Visher's death, between the defendant and the deceased, were merely those of ordinary debtor and creditor, bearing none of the essential characteristics of a trust, except the bare fact, as alleged, of the possession of money belonging to the deceased by the defendant. Under this view of the record, the evidence, we think, irrefragably established a bar to the action under the terms of section 337 of the Code of Civil Procedure. Upon the theory that the action was for money had and received upon a stated account, any evidence relevantly bearing upon the question of the alleged bar was admissible. Of equal soundness is the proposition that the moment the court finds, upon sufficient evidence, that the claim that an action is barred by the statute is sustained, and that such special plea is, therefore, well taken, any evidence that might have been offered and received in response to the issues upon the merits of the case, such evidence having no bearing whatever upon the special plea in bar, is, whether improperly admitted or not, of no consequence, and errors in the rulings of the trial court in admitting or rejecting evidence so confined to the merits are without significance or prejudice to any rights of the plaintiff or party against whom such rulings are made. But counsel argues in his petition that the errors of the trial court in the admission and rejection of evidence "become the more apparent" if, as we have held, the action is on an account stated, and adds: "We have already pointed out in the petition that where an account is stated between the parties thereto, it cannot be disputed, questioned, modified or changed except for mistake or fraud, which must be set up in the pleadings." This contention goes to the merits of the case, and, as we have suggested, has no force in its application to the evidence bearing upon the special plea in bar. It is only the statement of a cardinal rule of evidence to say that any competent proof was admissible which would show or tend to show that the debt declared upon was created at such point of time with reference to the time of the commencement of the suit as would bar a right of action thereon. And the defendant, if he so elected, could entirely ignore the issues involving the merits of the case and rely solely *Page 575 upon his special plea in bar. The record in this case discloses no errors in the rulings of the court admitting evidence directed to the issue tendered by the special plea.
The point made by appellant in his original argument, and vigorously renewed in his petition, that the filing by the defendant against the estate of a claim, showing that at one time defendant was indebted to the deceased, but that through disbursements of certain moneys for and on behalf of deceased by the defendant the latter became a creditor rather than a debtor of the deceased, is an acknowledgment of the debt, and restores to plaintiff a right of action for the same, is, we think, without merit, and so plainly did it so appear to us in our original investigation of the record that we did not feel called upon to give it extended notice in the main opinion. Counsel, however, seems to give the question such serious consideration in his petition for a rehearing that we feel justified in giving it, briefly, further attention. The argument is that the items set forth in the claim and which show money to have been paid out for the benefit of the deceased by the defendant, and which were so set out in said claim as a setoff to any amount which might at one time have been due deceased, cannot be considered, because they had not been presented, as required by law, to the administrator of the estate of said deceased for allowance and payment; that "such claims cannot be pleaded in bar of any action, or paid until they have been thus presented, and either allowed or disallowed"; that, therefore, the admission in said claim of the original indebtedness to the deceased constitutes an acknowledgment from which the law will imply a promise to pay the debt; hence the right of recovery thereon in the plaintiff is revived. The view, briefly expressed, as to this point in the original opinion, was that there could be no such acknowledgment of an "outlawed" debt as would restore a lost right of action thereon, where a party files or submits in writing against another a claim, as to which an action could not be maintained for any legal reason, said claim showing a mutual account, according to which it appears that at one time the claimant was indebted to the party against whom it is presented, but that the latter, at the time of the filing or submission of such claim, is indebted to the claimant. How can such a claim be construed to be an acknowledgment of an old debt when the defendant by the very nature of *Page 576 said claim in effect says: "Instead of being indebted to the plaintiff the latter is indebted to me"? It must, of course, be clear to the most obtuse understanding that by filing the claim it was the intention of the defendant to convey the notion that the plaintiff's intestate was indebted to him and not he to the estate. There is but one sensible interpretation of the language of the claim filed against the estate by the defendant, and that is that the defendant not only claims, but in substance declares, that he is in no way indebted to said estate in any sum or amount whatsoever. The contention that the items in said claim purporting to have been expended for the benefit of deceased by defendant are barred, or constitute an otherwise illegal demand upon the estate, cannot affect the determination of the question we are considering. Let it be granted that those items are barred and that the defendant could not maintain an action upon them. The decision of the question here can in no manner or degree be influenced by that fact. The sole question is as to the effect of the language of the claim so filed. Does it admit an old or any indebtedness, or does it deny it? It seems to us that there can be no two sides to the question. A declaration in writing in whatever form of language it may be made cannot revive a right of action once barred, unless it involves an express promise to pay the debt, or an acknowledgment from which the law will imply a promise. And, as we have seen from an examination of the authorities cited in the main opinion, such acknowledgment must be clear, distinct and direct — not vague, indeterminate and uncertain. It will not be contended that the claim contains language expressly promising to pay the debt, to recover which the suit is brought, and, as previously suggested, the very nature of the document itself — the very intrinsic character of it, in purpose and effect — completely negatives the idea of an admission of any acknowledgment of an indebtedness to the deceased or his estate by the defendant.
The petition for a rehearing is denied.
Chipman, P. J., and Burnett, J., concurred.
A petition to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on July 18, 1907. *Page 577