23 Wash. 758 | Wash. | 1901
The opinion of the court was delivered by
The complaint, for cause of action against defendant (respondent), alleges substantially that in 1889 certain residents of Pierce county, at Steilacoom, made a proposal in writing to aid in the construction of a motor railway between Tacoma and Steilacoom. These persons were designated as the parties of the first part, and through certain trustees named as parties of the second part proposed to any company, person, or persons, who
“I hereby accept the foregoing proposition and bonuses, and agree to construct, equip, and operate a line of electric railway as therein required, on or before Feb. 28, 1891. On behalf of Tacoma and Steilacoom Railway Company. T. O. Abbott, President.”
The defendant’s intestate, Saltar, was one of the persons who signed the proposal, and in the following form:
“John Saltar, one thousand-($1,000) dollars, or five lots in Steilacoom, at my option.”
About the 9th of February, 1891, the railway company, plaintiff’s assignor, performed the conditions on its part to be performed of the terms of the proposal and acceptance, and at the same time duly notified said Saltar in writing of its performance in all the matters and things by it to be performed, and demanded of Saltar that he make the election in the agreement specified, and perform the condition required to be performed on his part. Saltar
1. Appellant maintains there was error in the order permitting the filing of the second demurrer setting up the bar of the statute of limitations. It is urged that the
“Under the weight- of the authorities the statute of limilations is not, now at least, generally regarded as an unconscionable defense. We regard this so well settled that we deem a citation of many authorities unnecessary, but refer to Wood v. Carpenter, 101 U. S. 135.”
It is observed in 13 Enc. Pl. & Pr., p. 209:
“Although according to some authorities the plea of limitation is classed among those not deemed meritorious, yet the statute of limitations is not now generally regarded as an unconscionable defense.”
The filing of the amendatory demurrer was within the discretion of the superior court. See Roche v. Spokane County, 22 Wash. 121 (60 Pac. 59).
2. It is further maintained that the bar of the statute cannot prevail against the claim, because no date certain is fixed in the contract when the promise of Saltar became enforceable, and therefore, Saltar was entitled to a reasonable time after the performance of the consideration by the railway company within which to make the election of the form of his payment of the subscription which he had reserved to himself; and that even if there was no election reserved to Saltar, and his promise had been simply to pay one thousand dollars, as there is no definite
It would seem that the obligation of the subscriber as set forth in the contract was to make payment of his subscription upon the completion of the railway. It does not seem that he had the election of the time when he would pay. He must, however, elect at the time what he would pay; and about nine years had elapsed since the accrual of the cause of action.
Hpon the facts stated in the complaint, the superior court’s ruling upon the demurrer is approved and the judgment affirmed.
Dunbar, C. J., and Fullerton and Anders, JJ., concur.