Kraft v. Thomas
| Decision Date | 02 May 1890 |
| Docket Number | 14,291 |
| Citation | 24 N.E. 346,123 Ind. 513 |
| Parties | Kraft v. Thomas, Executor |
| Court | Indiana Supreme Court |
From the De Kalb Circuit Court.
Judgment reversed, with directions to overrule the demurrer to the first paragraph of the appellant's answer, and for further proceedings not inconsistent with this opinion.
E. D Hartman, for appellant.
C. A McClellan, for appellee.
This was a suit by appellee against the appellant upon the following instrument of writing, viz.:
The complaint alleges that C. P. Coleman died, testate, on the 4th day of March, 1886, and that the appellee is his duly qualified executor; that after qualifying as such executor he called upon the appellant and presented said note, and demanded payment thereof, and that the appellant promised to pay the same in a short time; that he has since failed and refused to pay the same, and that the same is due and remains unpaid.
To this complaint the appellant filed the following answer: "The defendant, Edward Kraft, for answer to the plaintiff's complaint, admits the execution of the instrument of writing sued on in this cause, but says that the cause of action set forth in the plaintiff's complaint did not accrue within twenty years before the death of the plaintiff's testate said Conrad P. Coleman."
The court sustained a demurrer to this answer, and the appellant excepted.
The correctness of this ruling is the only question before us for consideration.
The appellee has not favored us with a brief in this cause, and we are not informed as to the ground upon which the court sustained the demurrer to this answer.
The instrument of writing set out with the complaint is a promissory note. Long v. Straus, 107 Ind. 94, 6 N.E. 123; Witty v. Michigan Mutual Life Ins. Co., 123 Ind. 411, 24 N.E. 141.
The complaint in the cause proceeds upon the theory that the note is of such a character that no action could be maintained upon it unless such action was preceded by a demand of payment.
The answer above set out proceeds upon the theory that an action could be maintained upon this note without a previous demand, or if a demand was a condition precedent to a right to sue, that unless such demand was made within the period of the statute of limitations the right of action was barred.
This note is one payable generally, at no particular place, on demand. On such a note no demand is necessary before the commencement of an action to recover the amount thereof, the commencement of suit being a sufficient demand. Bradfield v. McCormick, 3 Blackf. 161; Fankboner v. Fankboner, 20 Ind. 62; Burnham v. Allen, 1 Gray, 496; Mercer v. Patterson, 41 Ind. 440.
A period of more than twenty-one years elapsed between the date of the note in suit and the death of the payee, so that if a right of action existed without a demand the right was barred at the time of the death of the testator, for the statute begins to run when the right of action accrues. Wright v. Tichenor, 104 Ind. 185, 3 N.E 853; Rous v. Walden, 82...
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