168 Iowa 630 | Iowa | 1915
“The jury is instructed that while the defendant, Gibbons, does not plead the statute of limitations as a legal defense to this action, nevertheless, if the jury find from the evidence that after the time the plaintiff claims he paid the note in controversy, said defendant, Gibbons, visited Keokuk on business and pleasure on several occasions, he, Gibbons, met and conversed with plaintiff, Hubenthal, and, if you further find from the evidence that said Hubenthal did not say or intimate to Gibbons anything concerning said note, or that he had paid the said note or that said Gibbons was indebted to him in any way, and if you further find from the evidence that the plaintiff, Hubenthal, made no demand of any kind on said Gibbons to pay said note until August 6, 1907, such facts should be considered by you in connection with all the facts given in evidence in determining wherein lies the truth of the controversy. ’ ’
This was refused. Nor was the subject referred to in any manner in the instructions given.
We think that the requested instruction was peculiarly appropriate to the evidence in the case. Except for the non-residence of the defendant the law would have conclusively presumed payment by reason of the lapse of time. Because of the nonresidence the defendant was not entitled to this conclusive presumption. But under the circumstances shown the long silence of the plaintiff was very significant and clearly warranted an inference by the triers of fact that the debt had in some manner been satisfied. It was clearly the right of the defendant to have the attention of the jury directed to such fact. In the light of the long acquiescent conduct of all the parties to the contract, the facts shown in support of the defense are very persuasive. It is not readily conceivable that such a transaction could have been so completely forgotten by all the parties in interest if it had not been closed in some