80 P. 731 | Or. | 1905
delivered the.opinion of the court.
This action was commenced in September, 1904, on a promissory note executed and delivered by the defendants to the plaintiff’s testate on April 26/1893, for $74, due one year after date, with interest at 8 per cent per annum. The complaint alleges that no part of the note has been paid, except $20.50 paid on January 19, 1897, and two dollars on January 2, 1899. The answer' denies all the allegations of the complaint, except the execution of the note and the plaintiff’s representative capacity, and, for an affirmative defense, alleges that on or about November 20, 1895, one of the defendants paid on the note $55 in coin, and; at some time not stated, the other defendant paid and satisfied the remainder of the note in full, by the sale and delivery to the payee of a load of grain; that no payments have been made on the note by the defendants, or either of them, since the 20th day of August, 1896, and the action was not commenced within six years from the time of the last payment, and is therefore barred by the statute, of limitations. The reply denied the allegations of the answer. A trial was had before a jury, and the court instructed them, among other things, that the defendants, having pleaded the. statute of limitations, must establish such defense by a preponderance of the proof.
Judgment reversed and new trial ordered. Reversed.