Markwell v. Kahlkoff
| Decision Date | 05 March 1935 |
| Citation | 258 Ky. 231 |
| Parties | Markwell et al. v. Kahlkoff. |
| Court | United States State Supreme Court — District of Kentucky |
1. Limitation of Actions. — Statute of limitations must be pleaded.
2. Limitation of Actions. — Question of limitation cannot be raised by demurrer.
3. Limitation of Actions. — In action on note, counterclaim for use and occupation of room which plaintiff had rented from defendant which alleged that plaintiff made frequent promises to pay rent, and that at no time during occupancy had as much as 5 years elapsed beween making of promises, and that plaintiff had promised to pay rent within 5 years next before filing of answer, held not demurrable on ground that claim was barred by limitation.
4. Frauds, Statute Of. — Statute of frauds has no application to contract which, though indefinite as to time of performance, is capable of being performed by one of the parties within one year, and is so performed (Ky. Stats., sec. 470, subd. 7).
5. Frauds, Statute Of. — Original promise of plaintiff suing on note to pay rent for room which he actually occupied during all the time for which rent was sought to be recovered held not within statute of frauds on ground that promise was not performable within one year (Ky. Stats., sec. 470, subd. 7).
6. Set-Off and Counterclaim. — In action on note, counterclaim for rental of room occupied by plaintiff held not sustainable since not arising out of contract or transaction stated in petition nor connected with subject of action (Civil Code of Practice, sec. 96).
7. Set-Off and Counterclaim. — In action on note, defendants' answer, pleading that plaintiff had occupied room on defendants' premises for period of 22 years, and for which he had repeatedly promised to pay rent, although not available as counterclaim, was available as set-off (Civil Code of Practice, sec. 96, subd. 2).
8. Taxation. — Plaintiff held not barred from maintaining action on note on which tax had been paid, notwithstanding that such note was a renewal of other notes on which tax had not been paid (Ky. Stats., sec. 4019a-13).
Appeal from Jefferson Circuit Court
C.P. BRADBURY for appellants.
JOHN IRICK for appellee.
Reversing.
Charles Kahlkoff brought this suit to recover on a promissory note for $636, executed and delivered to him by J.R. Markwell and Albert Markwell on January 2, 1932, and payable six months from date, with interest at the rate of 6 per cent. The Markwells filed an answer and counterclaim. Motions to make more definite and to strike were overruled. A demurrer was sustained to the first paragraph of the answer and counterclaim, and overruled as to the second paragraph. Thereupon the defendants, the Markwells, filed an amended answer and counterclaim. The demurrer thereto was overruled. Later on the order overruling the demurrer was set aside, and the demurrer to the first paragraph of the answer as amended was sustained. Then the Markwells tendered a second amended answer, counterclaim, and set-off. Plaintiff filed a reply to paragraph 2 of the original answer and counterclaim. The motion to file the second amended answer, counterclaim, and set-off was overruled. A rejoinder was then filed to the second paragraph of the reply, and a demurrer was filed to the rejoinder and sustained. Judgment on the petition was then rendered, and the defendants have appealed.
It is first insisted that the court erred in sustaining the demurrer to the first paragraph of the amended answer and counterclaim. In the first paragraph the original answer and counterclaim asserted a counterclaim of $1,535 for the use and occupation of a room which plaintiff rented from J.R. Markwell in the year 1911, and occupied until the year 1933. It was alleged that at the time the room was rented plaintiff promised and agreed to pay J.R. Markwell a reasonable rental therefor, and that $60 per year was a reasonable rental. In the first paragraph of the amended answer and counterclaim it was alleged that plaintiff made frequent promises to pay the rent on the room, and that at no time during the occupancy and use of the room by plaintiff had as much as five years elapsed between the making of such promises, and that he had promised to pay them the rent within five years next before the filing of the answer and counterclaim.
Clearly the first paragraph of the answer and counterclaim as amended was not demurrable on the ground that the claim for rent was barred by limitation. Though, formerly, it was held that a demurrer should be sustained where the petition showed on its face that the action was barred, Johnson v. Robertson, 45 S.W. 523, 20 Ky. Law Rep. 135; Bradford v. Bradford, 43 S.W. 244, 19 Ky. Law Rep. 1245, it is now the settled rule that, with certain exceptions not here material, the statute must be pleaded, and the question of limitation cannot be raised by demurrer. Davie's Ex'r v. City of Louisville, 159 Ky. 252, 166 S. W. 969; Davidson v. Kentucky Coal Lands Co., 180 Ky. 121, 201 S.W. 982; Baker v. Begley, 155 Ky. 234, 159 S.W. 691; Lyttle v. Johnson, 213 Ky. 274, 280 S.W. 1102.
Equally untenable is the claim that the contract sued on falls within the statute of frauds, providing that no action shall be brought to charge any person upon any agreement which is not to be performed within one year from the making thereof, unless the agreement or some memorandum thereof be in writing and signed by the party to be charged or his authorized agent. Ky. St. sec....
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