81 Neb. 600 | Neb. | 1908
The appellant seeks to recover upon two promissory notes given to him by Andrew Allen, since deceased. One note was given October 21, 1889, due six months after date, for $340. The other note was given November 6, 1889, for $260, due six months after date. Appellant filed his claim therefor against the estate of Andrew Allen, deceased, and later appealed to the district court from the order of the county court rejecting the claims. Upon appeal in the district court the appellant filed his petition setting forth the said notes, each of which contains the following provision: “The drawers and indorsers severally waive presentment for payment, protest, and notice of protest and nonpayment of this note. And the payee or holder of this note may renew or extend the time of payment of the same from time to time as often as required, without notice, and without prejudice to the rights of such payee or holder to enforce payment against the makers, sureties and indorsers, and each of them, parties thereto, at any time when the same may be due and payable.” The note last above described bears an indorsement of date April 11, 1894, of $187.25. For answer to the petition filed in the district court, the administratrix alleged “that the said indebtedness, if any there was, was long since paid by the said Andrew Allen in his lifetime, and there is nothing due and owing from the estate of the. said Andrew Allen, deceased, to the said John R. Allen. Further answering the administratrix alleges that she does not admit that the estate of Andrew Allen, deceased, is indebted to the said John R. Allen in any sum whatever, but she alleges' that if any such debt existed the same is barred by the statute of limitations, for the reason that more than five years have elapsed since the
A trialjn the district court resulted in a finding and
But it is further contended by the appellant that a written extension of the time for payment urns unnecessary; that, by reason of the right given the holder to extend the time of payment whenever necessary, the notes for this reason stand extended, or, in other words, remain unmatured so long as he forbears suing thereon. Such construction cannot be placed upon this agreement. Apparently it was not given this construction by either party. The indorsement made after the bar of the statute indicates that the appellant did not consider that the notes were extended automatically; and it ap
As this action is against the estate of the maker of the notes, it is contended by the appellant that, inasmuch as the pleadings do not disclose the date of the maker’s death, the answer does not sufficiently plead the statute of limitations. It is argued that, if the maker’s death occurred before the statute would otherwise have barred the action, the running of the statute came to an end, and the plea is without weight. The reply is in the nature of an admission of the bar of the statute and an avoidance thereof by pleading, first, the extension of time for the payment of the notes by the maker from time to time; and, second, by pleading that the administratrix is estopped from pleading the bar of the statute by reason of a certain letter written to the appellant by deceased in his lifetime. In the reply appellant virtually admitted that the notes would have been barred by the statute were it not for the matters pleaded in avoidance. It
The judgment' of the district court is responsive to the pleadings herein, and Ave recommend that it be affirmed.
By the Court: For the reasons given in the foregoing opinion, the judgment of the district court is
Affirmed.