8 S.D. 263 | S.D. | 1896
This was an action by a bank depositor to recover from the defendant bank the balance claimed to be due him as such depositor. The defendant answered, denying many of the allegations of the complaint; and pleaded, as a counterclaim or defense, a balance of $273.59, claimed to be due the defendant on a promissory note executed by one Rice to the plaintiff, and indorsed by said plaintiff, and which had become the property of the defendant bank, and which amount it had deducted from plaintiff’s account. To this counterclaim or defense the plaintiff, in a reply, pleaded the statute of limitations in bar. The plaintiff recovered judgment for the full amount of his deposit, and the defendant appeals. The note on which the counterclaim is based bears date July 28, 1884, and was by its terms payable on or before July 28, 1885. The plaintiff, as payee, transferred the note before its maturity. This action was commenced subsequently to December 1, 1891, more than six years after the maturity of the note, and the defendant bank claims to have applied the sum of $273.59 of the plaintiff's deposit to the payment of the balance due on said note, at about
Appellant contends, first, that the evidence is insufficient to support the finding that a demand was made upon the bank for the money due the plaintiff, prior to the commencement of the action. Without intimating any opinion as to the necessity for such a demand, we think there was, in the absence of any conflicting evidence, proof sufficient to support the finding of the court. This brings us to the important question involved in this case, namely, was the evidence that the note was barred by the statute sufficient to support the plaintiff’s reply and the court’s conclusion of law? Appellant contends that the court erred, in its conclusion of law that the note was barred, for the reason that the plaintiff gave no evidence in support of his reply, and that the facts pleaded in his reply, being deemed in law to be controverted by the defendant, must be regarded as not proven. This contention of the appellant is not tenable, under the facts proven in this case. The plaintiff pleaded the