73 Ind. App. 484 | Ind. Ct. App. | 1920
Appellee filed a claim against the estate of Evadna ’R. Emerson, deceased, of which estate appellant is the administrator. The claim having been disallowed was transferred to the issue docket, where trial resulted in a verdict and judgment for appellee. The only error assigned is the action of the court in overruling appellant’s motion for a new trial.
The claim as filed, and which became the complaint on the trial of the cause, omitting caption and verification, is as follows: “Mary E. McCune says that the decedent, Evadna R. Emerson, was indebted to her in the sum of $360.00 which was due and payable at the death of said decedent, said claim being based upon the fact that the decedent had borrowed the sum of $225.00 from claimant’s mother, Cynthia Meenach, and that said Cynthia Meenach assigned the claim and chose in action she held against said Evadna R. Emerson to this claimant; that as a part of the agreement made at the time said money was borrowed said decedent was to pay 6 % interest thereon from said time until it was paid; that there are no credits or deductions to which such estate is entitled, and there are no set-offs or counterclaims against said claim that have come to plaintiff’s knowl
The undisputed evidence is in substance that in January, 1907, Cynthia Meenach, who was the mother of appellee and appellant’s decedent, loaned to decedent $225, taking no note or other evidence of indebtedness therefor, but with the understanding on the part of both that decedent was to pay six per cent, interest for the money and, if the principal was not paid until after the death of the borrower, the same was to be paid by her estate; that on February 4, 1907, before her death in March, 1907, Cynthia Meenach, in consideration for services performed by appellee, made a written assignment of her said claim to appellee, said assignment in writing setting forth that the claim was for money loaned to decedent, and was assigned to appellee for services rendered in nursing and caring for assignor; that, after the assignment,' appellant’s decedent voluntarily paid to appellee some interest on the’ debt, one payment having been made in October, 1915; and there was evidence tending to show that no payment of principal or interest had been made for more than six years prior to October, 1915.
Error is predicated upon the action of the court in refusing to give to the jury the following instruction tendered by appellant: “If you find from the evidence that the claim and account claimed to have been assigned was due more than six years prior to October, 1915, and that no payment, either of interest or otherwise, has been made thereon within six years prior to said October, 1915, then any payment of interest in October, 1915, would not revive said account and the collection of said account is barred by the Statute of Limitations, and your verdict should be in favor of the estate of Evadna R. Emerson.”
We find no error. Judgment affirmed.