Meyer v. Binkleman

• Decision Date: 01 April 1880
• Citation: 5 Colo. 262
• Court: Colorado Supreme Court
• Parties: MEYER ET AL. v. BINKLEMAN.

5 Colo. 262

MEYER ET AL. v. BINKLEMAN.

Supreme Court of Colorado

April, 1880

Appeal from District Court of Custer County.

THE case is stated in the opinion.

Mr GEORGE A. ADAMS, for appellants.

Mr. W A. OFFENBACHER, and Messrs. BLACKBURN & DALE, for appellee.

BECK. J.

The appellee brought suit in the district court against the appellants on three promissory notes, dated respectively December 15, 1869, January 5, 1870, and June 10 1870. The first mentioned two notes were each payable three months after date, and the last mentioned six months after date. The complaint alleges that payments were made upon all the notes, specifying the dates when they were made, and that a certain amount of money remains due and unpaid on each note, The dates of the last two payments alleged to have been made on each note were April 2, 1873, and August 15, 1873.

A demurrer to the complaint was filed, setting up the six years' Statute of Limitations. The demurrer was overruled, and the same defense was set up by way of an answer.

The trial resulted in a verdict and judgment for the plaintiff.

The bill of exceptions having been stricken from the record, but two of the assignments of error are relied upon for a reversal of the judgment, viz.:

First. The court erred in overruling the demurrer.

Second. The pleadings admit that no payments have been made on said notes by either of the defendants within six years, and will not therefore sanction the judgment.

After defendants' demurrer was overruled, they answered to the complaint, setting up in the answer the same defense relied upon in the demurrer.

This was a waiver of their demurrer. The defense relied upon was that the action was barred by the Statute of Limitations. The cases of Smith v. Richmond, 19 Cal. 477, and Sturges v. Burton, 8 Ohio St. 215, cited by appellants' counsel, lay down the familiar rule, that if it appears upon the face of the complaint that the action is barred, and no facts are alleged taking the demand out of the operation of the statute, a demurrer will lie; but if the fact does not appear upon the face of the complaint, the defense must be made in the answer. There is nothing in these cases to support the proposition that a complaint upon a promissory note, alleging payments thereon within six years is demurrable if it fail to state that the payments were made by or at the instance of the makers of the note.

The case of Kennedy v. Williams, 11 Minn. 314, cited by the same counsel, is in direct conflict with the doctrine contended for. Like the case at bar, that was an action on a promissory note, for a balance alleged to be due. The complaint alleged that the same of $454.50 had been paid thereon, without stating when or by whom the payment was made. The court said that for aught that appeared, the payment may have been made at a date late enough to save the statute, and that it could not therefore be said on the face of the complaint that the action was barred.

The allegations of the complaint in this case are more specific. It is alleged that payments were made upon each note on April 2, 1873, and August 15, 1873. Suit was instituted April 2 1879. No question can arise as to whether a payment was made late...