137 N.W. 286 | S.D. | 1912
On November 26, 1909, plaintiff commenced this suit against defendant to recover a balance of $1,124.32 claimed to be due upon an account consisting of numerous items of both debit and credit. As shown by the bill of particulars, the debit charges against defendant commenced April 23, 1901, and ended April 26, 1904; the last item being $97.50 cash claimed to have been advanced by plaintiff for defendant on that date. All the debit items charged against defendant accrued more than six years before -the commencement of the action, with the exception of the last item of $97.50. The items charged against defendant amounted in the whole to $4,119.51. The credit items in favor of defendant amount in the whole to $2,995.19, thus leaving an apparent balance of $1,124.32 in favor of plaintiff. All the credit items accrued more than six years before the commencement of the suit, excepting the last five, which are as follows: March 25, 1904, note $1,000; same date, check for $32.79; saíne date, currency $10; March 30, 1904, check, $16.15; same date, check, $38.63. So far as affects the question presented on this appeal, defendant by way of answer interposed the following defenses: (1) The 'statute of limitations against the entire account; (2) alleged that the $1,000 note of March 25, 1904, was given by defendant and accepted by plaintiff in full settlement and satisfaction of the entire account; (3) pleaded that the item of $97.50 was paid by the last four items on the credit side, that said last' four
Under the verdict of the jury, for the purposes of this appeal, this testimony must be taken as true, and which was amply sufficient to remove the bar of the statute as to the entire account by the giving and payment of said note.
It is contended by respondent that the pleadings were not sufficient to raise or present the question of the tolling of the statute of limitations, in this, that it was necessary for plaintiff to plead the facts upon which the statute might be tolled. We are of the opinion this contention is not tenable.
We do not desire to be understood as holding by this decision that the sufficiency of the evidence to sustain a verdic-t, either general or special, may be reviewed on a motion for judgment non obstante veredicto. This question has not been raised by the record in this case.
The order and judgment appealed from are reversed and set aside, and the lower court -directed to enter judgment in favor of plaintiff in accordance with the general verdict.