148 Minn. 352 | Minn. | 1921
In 1874 defendant, a farmer, married plaintiff’s mother, a widow. Plaintiff was then 9 years old, and became a member of the household. He now claims that at the age of about 14 years he undertook to leave the home and shift for himself; that, after a week’s absence, he was induced to return and work for defendant during the balance of his minority upon defendant’s promise that he should receive the “back forty” when defendant died; and that plaintiff fully performed his part, but that defendant, shortly before the commencement of this action, broke the agreement by conveying the “back forty” to some one else. He now seeks to recover for the services rendered defendant. The answer, in addition to denying the alleged promise, averred that plaintiff previously asserted a claim to compensation for all services rendered during his minority, and that, to buy peace, defendant had, for a valuable consideration, settled and discharged all claims that plaintiff so asserted. The statute of limitations was also pleaded in bar. The trial resulted in a verdict of $800 in favor of plaintiff. Defendant appeals from the order denying the motion for judgment notwithstanding the verdict or a new trial.
Nor was it improper to bring out why plaintiff left defendant’s home just before the alleged agreement was made. This bore on the probability of ah inducement for his return.
One Terwilliger, who occasionally worked for defendant when plaintiff was between his fifteenth and eighteenth years, was permitted to testify that at defendant’s table it was stated that, when defendant got through with this forty, plaintiff should have it, and that he believed the statement was made in the presence of defendant, but could not be entirely certain. What was said in respect to the first error assigned is applicable to this. The length of time since the talk was heard undoubtedly has effaced many of the details of the setting, and it is not to be expected that the witness could be as positive that defendant heard or took part in the talk as if the incident were of recent date. But this uncertainty does not necessarily exclude the testimony. It affects its weight.
If the issue could possibly arise in the case, it was correct to charge the jury that the burden was on defendant to show the cause of the action barred. The bar of the statute of limitations is a defense that must be pleaded. Hardwick v. Ickler, 71 Minn. 25, 73 N. W. 519; Gilbert v. Hewetson, 79 Minn. 326, 82 N. W. 655, 79 Am. St. 486; Schmitt v. Hager, 88 Minn. 413, 93 N. W. 110. It follows that the one who is under-the necessity of’pleading a defense must needs assume the burden of' proving it, unless the facts constituting the samé are admitted or proven by the other side.
In 1889 plaintiff sued defendant, claiming that the latter agreed to convey to him the “back forty” when he attained his majority and also transfer a span of horses. Defendant answered, denying the agreement, and also alleging that plaintiff had made a prior claim for compensation
It is further claimed that it appears from the answer in the suit started in 1889 that defendant repudiated the alleged agreement, hence a cause of action then accrued and was barred many years ago. In fact the court charged the jury that: “A claim of this kind becomes outlawed six years -after the plaintiff learned that the -defendant did not intend to fulfil the agreement.” There are two answers to this contention. The instruction did not state the law correctly. A verbal denial of the existence of a contract or a declaration of an intention not to comply with its terms by one of the parties, prior to the time he is required to perform the same and after the other party has fully performed, does not set the statute of limitations running as against the other party. Indeed, we cannot see how the bar of the statute could be invoked at all in this case, for, not earlier than the date when defendant conveyed the “back forty” to another son, and that was less than two years before this action was started, was there such a breach of the -contract that an action accrued to plaintiff. Again, plaintiff testified that instead of adhering to the repudiation of a contract as -alleged in the answer to the action of 1889, defendant, before the signing of the stipulation of the settlement thereof, expressly acknowledged the existence of the contract as now pleaded and promised to fulfil it. '
The basis of the two prior suits referred to and the circumstances of their termination, create a strong suspicion that the testimony has been
The order is affirmed.