55 Ind. App. 272 | Ind. Ct. App. | 1913
This action was tried in the court below on appellant’s fourth and fifth paragraphs of complaint. The facts averred in said fourth paragraph are in substance as follows: That appellee is the father of appellant, and on April 15, 1884, was appointed her guardian by the Wabash Circuit Court, she being a minor under the age of 21 years; that on February 23, 1899, said guardian had in his hands $2,027.05, for which he as such guardian was accountable to appellant; that appellant became 21 years of age on January 3,1899; that on May 23, 1899, said guardian filed his final report with said court, by which he showed that he had made full settlement with his said ward, and had paid her the full balance of said trust fund in said sum of $2,027.05, and filed with said report, a receipt to that effect bearing appellant’s signature; that appellant signed said receipt, but that said guardian at no time paid her said sum or any part thereof; that appellant had always lived in appellee’s family, and had full confidence in him, and in his judgment, and had been taught to be obedient to him, and that in all business affairs she depended on appellee and was influenced and controlled by his judgment; that under such circumstances, appellee, preparatory to making and filing his said final report, represented to appellant that he had no money with which to pay her the balance due her under said guardianship, and that if appellant would sign a receipt to the effect that she had been paid
As we have shown, there was evidence to the effect that by the terms of such contract, appellee agreed to pay said sum to appellant in about five years, and other evidence that he would pay it when he was able, and that he thought he would be able in about five years. The action being based on the new contract is not barred by the statute, unless six years elapsed between the accrual of the action and its commencement. If said peremptory instruction had not been given, and if the trial had been permitted to proceed in due course, the jury might have found from the evidence
The judgment is reversed, with instructions to sustain the motion for a new trial.
Note.—Reported in 103 N. E. 668. As to effect on statute of limitations of acknowledgment or new promise, see 62 Am. Dec. 101; 102 Am. St. 751. See, also, under (1) 31 Cyc. 319; (3) 39 Cyc. 533; (4) 38 Cyc. 1533, 1565; (5) 21 Cyc. 187, 198; (6) 21 Cyc. 50; (7) 21 Cyc. 199.