8 Minn. 59 | Minn. | 1862
By the Court
The Respondent brought his
The Defendant, Neiner, answered, setting up several defen-ces. ITe admitted the execution of the note as alleged, but denied that any interest had been paid upon the note by Swain & Neiner, subsequent to March 80th, 1853, or that any sum had been paid by them on said note after that date, and that any sum paid on the note thereafter was paid without the knowledge or consent of the Defendant, and denied knowledge or information sufficient to form a belief as to the other allegations of the complaint.
He then alleged that the cause of action did not accrue withinrsix years from the commencement of this suit, that in the month of July, 1853, tire Defendant came to Minnesota, where he has ever since resided and remained.
He also alleged that in 1853 the Plaintiff had agreed to look to other parties for payment of the note, and had released him. The Plaintiff replied to the new matter. There was a trial by jury and verdict for Plaintiff, upon which judgment was entered.
This action is not brought upon the note, but for money paid by a surety for the benefit of his principal. The cause of action arose when the money was paid by the surety, if ever, which in this case is alleged to have been in 1859. The Defendant first denies the payment of the note, then alleges that the cause of action did not accrue within six years from the commencement of suit, and alleges certain facts to show that the Plaintiff did not pay the note within six years from the time Defendant made the last payment. This plea, taken in connection with the denials' in the first part of the answer, would seem to be objectionable on various grounds. To render it effectual as a defence, it must be held as equivalent to
The Plaintiff proved payment of the note and rested. The Defendant, Keiner, was sworn and asked when the last payment was made on the note by him, or with his consent. The purpose of the evidence being stated to be, to show that no payment had been made on the note within six years. The question was objected to by Plaintiff as immaterial; but the objection was overruled. The witness answered that it was some time in the spring of 1853 — about the last of March or first of April, 1853. This was all the evidence offered by Defendant, so tar as the case shows.
Assuming that the Plaintiff could not recover, if he paid the amount due on the note, more than six years after the last payment was made by Defendant, we think there is nothing in the evidence to preclude the jury from finding that the payment was made within such time. .The evidence does not fix the precise day when the payment was made by Plaintiff, nor when the last payment was made upon the note by Rei-ner. Both are proved to have been about a certain time. The jury may have believed that the note was paid by Plaintiff within six years from the time the last payment was made by Reiner, and in the evidence reported to this Court, we cannot say that such finding is contrary to the evidence. Nor does it appear from the papers before this Court, that the evidence here presented was all the evidence offered upoD the trial 5 and in such case every reasonable intendment is to be made in favor of the verdict.
The paper book (or what probably was intended for such.) contains so imperfect an account of what transpired on the trial of the cause, that it is almost impossible for this Court to
One of these propositions is as follows : “ That unless Rei-ner was liable to Clark (the payee of the note) at the time of the alleged payment by Barnsbaek, he is not liable to the latter for the amount voluntarily paid by him. Declined to charge as being immaterial to the case.”
Under the refusal to charge as above it may be urged that the jury did not take into consideration the evidence, with any view of determining the time when the Defendant made his last payment on the note, or the precise time when the Plaintiff paid the sanie. In this view it will be necessary to consider whether there was any error in the refusal to charge as requested.
The Defendant, in pleading the statute of limitations, has connected with and made a part of that plea certain statements with reference to themote, as the time it fell due, when the Defendant made the last payment upon it, and that Defendant had not since, in writing or otherwise, promised to pay the same, &c. He has evidently treated the note as the cause of action, which is an error. These statements regarding the note are not made and intended as a separate defence, but as a part of the defence of the statute of limitations. As
The third defence of the answer sets up in substance an agreement between J. E. Swain and Brother, the Plaintiff and his co-surety, and the payee of the note, James E. Clark, whereby Clark, in consideration of an additional rate of interest, agreed to extend the time of payment for two years from the date of such agreement, and that in consideration of such extension Swain and Brother, with the consent of the sureties, promised to pay Clark the $1,000, with twelve per cent, interest, which were accepted by Clark, with the consent of the sureties, in lien of the promissory note. -
The reply denied, in a qualified manner, certain parts of this defence, and denies positively that the promises and undertakings specified in the answer were ever accepted in place of the note, and denies that the acceptance of said promises was any other than that Clark would forbear payment on the note for two years. No evidence was introduced to sustain the defence ; but it appears that the counsel for the Defendant requested the Court to charge that the denials of certain specified portions of the reply did not amount to denials of the allegations in the answer, to which they had reference, and left the facts stand admitted as plead. The Court refused so to charge.
The objection here urged would seem to be aimed rather at the form and manner in which the denial is stated, than to its
In this case we see no error in the refusal of the Court to charge as requested. The reply does not purport to deny all the allegations of the defence. Certain portions are admitted, and other parts, constituting the gist of the defence, are particularly specified, and either directly denied, or stated in a modified form. Substituting the statements and denials in the reply, for the allegations to which they have reference in the answer, and there would be no defence averred.
The order refusing a new trial is affirmed.