Shorick v. Bruce

21 Iowa 305 | Iowa | 1866

Wright, J.

i. statute mun,er.de" Our statute provides that when a pleading shows affirmatively that its cause of action is barred by the statute of limitations,-it may be assailed by demurrer. § 2961.

Defendant having availed himself of this statute, our opinion is that the demurrer was well taken as to so much of the petition as relates to the work and labor performed in 1858 and 1859, and that it should have been overruled as to that performed in 1860. The action should have been brought within five years after the cause of action accrued. As this action was commenced in I860, it is very clear, if there were no other work and labor, that the- first charge or item would be barred. • Plaintiff, however, seeks' to avoid the bar by claiming: Hirst, that he shows a continuous open current account, and that therefore the statute would not begin to run until the date of his last item of November, 1864. And in the second place, he insists that as his ward was of unsound mind and incapable of bringing his action, the statute would not begin to run until in October, 1864, when plaintiff was appointed guardian. Neither of these positions are well taken.

2.._oon-coun°“s a0‘ The petition shows very clearly that this work was performed under several and distinct contracts; and it is a most radical error to treat this as a case of “ continuous, open, current account.” The cause of action accrued was full and complete as to the first-charge or item on the 1st of December, 1859.- There is no pretense or averment.that the subsequent labor was performed in pursuance of or under the first contract. It is.as though defendant owed a debt payable at several times or by installments; There the time would begin to run, as to each installment, from the day of the expiration of the respective times of payment. Ang. on Lim., § 110. And the like rule applies here.

3._in„ üo£s.per" The thought that the statute would not run because Wilson, the ward, was a person of unsound mind, or incapacitated to sue, finds no support, either in the statute or in the rules of the common law. See this subject discussed in Campbell v. Long, 20 Iowa, 382. The statute makes no exception in favor of lunatics or those of unsound mind. Not laboring under any-of the disabilities mentioned, they are not exempt from the operation of the statute. Ang. on Lim., §§ 474, 194-5.

4._oon. tractforia II. What has been said in effect disposes of the demurrer to the second part of the petition. The work, as there' charged, was performed between the first days Januaiy aud July, 1860; tbe action was commenced June 7, 1865. . Defendant claims that all of this claim was barred which shows work performed prior to June 7, 1860. Our view of it is that the contract was entire; that the ward worked six months at the agreed price of twelve dollars per month; that the labor was continuous and the contract continuing. Not only so, but before a pleading can be assailed by demurrer for this cause, it must show affirmatively, that the cause of action is barred. It is not a fair construction of the language employed by the pleader that the ward worked under a contract made from month to month, but rather that he was employed by and performed services for defendant for six months for so much per month.

The demurrer was sustained as to both items. This was erroneous as to so much of the petition as counted upon the labor in 1860 and correct as to that performed in 1858-9.

Reversed.