Aрpellant brought this action to recover upon a promissory note, executed аnd delivered by respondent to appellant’s assignor, representing the purchase рrice of certain machinery. Respondent answered the complaint, admitting the execution of the note but denying that there was anything due thereon or that anything had been paid thereon; and as a further and separate answer, setting forth, among other things, that the consideration for the note was a Case tractor and baler; that appellant’s assignor warranted the tractor to be as good as new, but that it was worthless for any purpose exсept junk, all of which was known to appellant’s assignor; and that there was an entire failure. of consideration for the note. In a second further and separate answer to the complaint, respondent referred to all of the allegations contained in his first separate answer, making the same a part of his second separate answer, and аlleged therein that he had been damaged in the sum of $800 on account of loss of profits by reason of the fact that the machinery did not come up to the warranties made by *503 aрpellant’s assignor; and prayed for judgment against appellant in the sum of $800.
Appellant demurred to the further and separate answers, raising the bar of the statute of limitations thereto. The demurrer being overruled, the cause was thereafter tried to the court and a jury, and vеrdict was rendered for respondent. This appeal is from the judgment.
It is first contended by appellant that the trial court erred in overruling the demurrer to respondent’s counterclaim, upon the ground that the same was barred by the statute of limitations, since it appears from respondent’s answer that the facts concerning the alleged fraud as set out in the countеrclaim were discovered and known by respondent for a period of over three yеars before the counterclaim was filed.
C. S., sec. 6611, subd. 4, the three-year statute of limitations to actions based on fraud does not apply to fraud relied upon purely as a defеnse where no affirmative relief is sought, but it does apply to counterclaims or cross-complaints seeking affirmative relief, and we think the counterclaim of respondent herеin subject to the objection urged against it.
(Frank v. Davis,
Appellant also assigns as error the giving by the court of certain instructions, upon the ground that they are contrary to law and not based on the facts in the case. The record does not сontain a transcript of the evidence, and we are therefore not in a position to say whether or not the instructions are based on the facts. The general rule would seеm to be to the effect that:
“If the evidence be not in the record, instructions given will be regarded as pertinent to the case made, unless clearly erroneous under any supposed state of facts.” (Newman v. Oregon Short Line R. R. Co.,34 Ida. 417 ,201 Pac. 710 .)
The instructions complained of appear to be pertinеnt to the case, and not clearly erroneous, within the rule above stated.
From what has bеen said it follows that the judgment of the trial court must be affirmed, and it is so ordered. Costs to respоndent.
Petition for rehearing denied.