205 P. 253 | Mont. | 1922
prepared the opinion for the court.
This is an action on a promissory note. The complaint which was filed August 3, 1919, is in the usual form, and alleges that on April 10, 1908, at Butte, Montana, the defendant made, executed and delivered to the plaintiff his promissory note for the sum of $130, payable ninety days after date, bearing interest at the rate of one per cent per month from date until paid, and providing, for reasonable attorney’s fees in ease of suit thereon; that demand had been made upon the defendant for payment, but “that no part of the same has been paid. Pai’agraph 3 alleges that $100 is a reasonable attorney’s fee for the institution of this action.” The prayer is for the amount of the note and interest and $100 attorney’s fee.
The answer admits the execution and delivery of the note, that the same has not been paid, and in paragraph 3 “denies each' and every allegation contained in paragraph 3 of said complaint.” As a separate defense the answer avers that plaintiff’s right of action on the note is barred by the provisions of section 6445 (sec. 9029, Rev. Codes 1921) of the Revised Codes of 1907. To this answer' the plaintiff filed a reply denying that the action was barred under the statute, for the reason that between the tenth day of April, 1908, and the third day of August, 1919, the defendant departed from the state of Montana and was absent therefrom on various occasions aggregating more than five and one-half years, and that the time of said absences is no part of the time limited for the commencement of an action on said note.
The case was tried before a jury. A competent witness testified that $75 was a reasonable attorney’s fee for the in-, stitution and prosecution of the action.
The defendant himself, called as a witness on behalf of the plaintiff, testified that he left Butte in April, 1908, and was gone until September of that year, when he returned and remained until April, 1909; that between April 10, 1908, and
The plaintiff testified that he had made frequent demands upon defendant for payment of the amount of the note, but that the same had not been paid. Thereupon the plaintiff offered the note sued upon in evidence and rested his case.
The defendant in his behalf then showed that the complaint in the action was filed with the clerk of the court on .August 3, 1919, and rested. Whereupon counsel for plaintiff moved the court to direct the jury to return a verdict for the plaintiff for the amount of the note and interest, with the sum of $75 attorney’s fees, for the reason that it was admitted by the pleadings that the defendant made,' executed and delivered the note to the plaintiff, that the same had not been paid, although demand had been made therefor, that the uncontradicted evidence showed that $75 was a reasonable attorney’s fee for the commencement and prosecution of the case, and that there was no evidence in the case proving or tending to prove that the cause of action was barred by the statute of limitations. This motion was sustained, and the jury, having been instructed in accordance therewith, returned a verdict upon which judgment was entered in favor of plaintiff and against defendant for the sum of $130, with interest at one per cent per month from April 10, 1908, and the further sum of $75 attorney’s fees, with costs of suit. Motion for new trial was duly máde, and, having been overruled, the defendant has brought the ease to this court on appeal from the judg-' ment and the order denying his motion for a new trial.
The only question for our consideration is: Did the court err in sustaining plaintiff’s motion for a directed verdict?
There are a few early eases which sustain the defendant’s contention that the second clause of the section has no application to a person who is absent from the state when the cause of action accrues, but the better reasoning, as well as the great weight of authority, is to the contrary.
The first clause of this section originated in an old English statute (4 Ann., Chap. XYI, sec. XIX), and was adopted in Massachusetts as early as 1786, and in New York in 1788. The second clause was added to the New York statute at a later date, and was subsequently adopted in Massachusetts. In the case of Milton v. Babson, 6 Allen (Mass.), 322, the reason for, as well as the occasion of, adopting the second clause in Massachusetts is fully set forth: “As the law stood prior to the enactment of the Revised Statutes (Stats. 1786, c. 52, § 4) the statute of limitations did n»t begin to run in favor of a person, who at the time the cause of action accrued against him was without the limits of the commonw'ealth, until his return within tbe state. * * * Doubts and difficulties had arisen under the old statute in ascertaining what should be deemed a return or coming within the state, in the sense of the statute, sufficient to cause the period of time necessary to bar an action to begin to run. To do away with the embarrassment which had thus arisen in interpreting the old
The construction of this statute thus announced has been followed and adopted in a great number of cases, among which we cite: Whitcomb v. Keator, 59 Wis. 609, 18 N. W. 469; Stanley v. Stanley, 47 Ohio St. 225, 21 Am. St. Rep. 806, 8 L. R. A. 333, 24 N. E. 493; Todman v. Purdy, 5 Nev. 238; Davis v. Marshall, 37 Vt. 69; Conlon v. Lanphear, 37 Kan. 431, 15 Pac. 600; Gibson v. Simmons, 77 Kan. 461, 94 Pac.
Any other rule would not be supported by reason. If the construction contended for by'appellant were adopted, a person absent from the state when the cause of action accrued by coming into the state and remaining for a brief period could start the statute running against him, which in the statutory period would become a complete bar, 'although he might in fact be out of the state during nearly the whole period, while one present in the state when the cause accrued, would be obliged to remain in the state during the full term prescribed in order to avail himself of the bar of the statute. “A construction involving a conclusion so unreasonable, and leading to a result which makes the practical operation of the statute so manifestly unequal and un.just, cannot be supported unless required by language too clear to admit of any other interpretation.” (Whitcomb v. Keator, supra.)
In 17 Ruling Case Law, page 844, section 205, referring to the provisions of statutes like the one under consideration, the writer uses this language: “It is generally held that the time of the debtor’s temporary presence in the state must aggregate the statutory period to constitute a bar, since the running of the statute ceases as soon as the defendant departs from the state.”
And in Knox v. Gerhauser, 3 Mont. 267, which case involved a construction of the second clause of the section in question, it was decided: “That the successive absences of a person from the state must be aggregated together and deducted from the whole time which has elapsed since the cause of action accrued, and the remainder is the time the statute of limitations has run.”
Under the above authorities we hold that the plaintiff’s right of action on the note in suit was not barred by the statute, because the defendant had not been in the state of Montana
It is next urged that the court erred in not submitting to
In Lynd v. Picket, 7 Minn. 184 (Gil. 128), 82 Am. Dec. 79, the court, in passing upon the sufficiency of a denial like the one under consideration, said: “Where a party would controvert an allegation of value, he must allege that the article is of no value, or of the value as he claims it to be. Under such an allegation as this, the value might be one cent less than alleged in the complaint, and yet the answer would be literally true.”
The same rule as to such denials is laid down by the following authorities: Power v. Gum, 6 Mont. 5, 9 Pac. 575; Scovill v. Barney, 4 Or. 289; Welch v. Bigger, 24 Idaho, 169, 133 Pac. 381; Ronning v. Way, 18 Cal. App. 527, 123 Pac. 615; Conway v. Clinton, 1 Utah, 215; Dillon v. Spokane County, 3 Wash. Ter. 498, 17 Pac. 889; Bliss on Code Pleading, sec. 332; Pomeroy’s Code Remedies, sec. 509; Sutherland on Code Pleading, sec. 417.
The undisputed facts in the case disclosed that plaintiff’s
We recommend that the judgment and order be affirmed.
Per Curiam : For the reasons given in the foregoing opinion, the judgment and order appealed from are affirmed.
- Affirmed.