California, United States of America
The following excerpt is from R. Inc. v. Tsegeletos, 231 Cal.App.3d 967, 283 Cal.Rptr. 48 (Cal. App. 1991):
4 The court went on to make a finding which does not appear accurately to reflect the law, but which has no particular impact on the result of the present case. Thus, the court held, "In most of the states a partial payment upon an account tolls the statute. The rule is otherwise in this state, because of section 360 of the Code of Civil Procedure requiring a written acknowledgment, but it is a reasonable construction of the legislation fixing a different period of limitation upon an 'open book account' from an ordinary account to hold that the payment made and entered upon the open book account tolls the statute. It follows that the statute of limitations began to run on this account on August 13, 1914, and that the amended complaint filed May 15, 1918, was within the four years." (Id. at p. 763, 200 P. 625, emphasis added.) The use of the word "toll" was perhaps inartful because, by the relationship of the parties, the statute of limitations did not begin to run until August 13, 1914, not because it was "tolled," but because by the apparent understanding between the parties, the default did not occur until that date. The court evidently was attempting to explain that, unlike the usual debt which is fully due and owing as of the date it is created, an open book account may contemplate that the date of potential default will be deferred. If we were to take the court's mention of tolling at face value, however, it would follow that the limitations period ordinarily would begin as of the date of the last debit, but was tolled by a subsequent partial payment. It has already been established that . "a payment by a principal debtor will not operate to toll the statute of limitations as to a guarantor." (Purdy v. Maree, supra, 31 Cal.App.2d at 127, 87 P.2d 390.) Thus, taking the discussion in Furlow at face value, the statute of limitations would have begun to run against the guarantors here as of the date of the last debit, again in December 1980.
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