Scott v. Christenson

• Decision Date: 28 April 1905
• Citation: 80 P. 731,46 Or. 417
• Parties: SCOTT v. CHRISTENSON et al.
• Court: Oregon Supreme Court

80 P. 731

46 Or. 417

SCOTT v. CHRISTENSON et al.

Supreme Court of Oregon

April 28, 1905

Appeal from Circuit Court, Marion County; Geo. H. Burnett, Judge.

Action by Charles Scott, executor of R.H. Scott, deceased, against M. Christenson and another. From a judgment for plaintiff defendants appeal. Reversed.

Frank Holmes, for appellants.

C.W Corby and H.J. Bigger, for respondent.

BEAN J.

This action was commenced in September, 1904, on a promissory note executed and delivered by the defendants to the plaintiff's testate on April 26, 1893, for $74, due one year after date, with interest at 8 per cent. per annum. The complaint alleges that no part of the note has been paid except $20.50 paid on January 19, 1897, and $2 on January 2 1899. The answer denies all the allegations of the complaint except the execution of the note and the plaintiff's representative capacity; and, for an affirmative defense, alleges that on or about November 20, 1895, one of the defendants paid on the note $55 in coin, and, at some time not stated, the other defendant paid and satisfied the remainder of the note in full, by the sale and delivery to the payee of a load of grain; that no payments have been made on the note by the defendants, or either of them, since the 20th day of August, 1896, and the action was not commenced within six years from the time of the last payment, and is therefore barred by the statute of limitations. The reply denied the allegations of the answer. A trial was had before a jury, and the court instructed them, among other things, that the defendants, having pleaded the statute of limitations, must establish such defense by a preponderance of the proof. The statute of limitations is an affirmative defense which a defendant is bound to plead specifically, unless it appears from the face of the complaint that the action is barred, and the general rule seems to be that the burden is on him to sustain such defense, when pleaded. 19 Am. & Eng.Enc.Law (2d Ed.) 332. But in this case the application of such a rule would require the defendants to prove that the payment of the $2 alleged by the plaintiff to have been made on the note within six years before the commencement of the action was not made. This would be equivalent to making the averments of the complaint in this regard prima facie true. In order to avoid a demurrer on the ground that the action was barred, the plaintiff was required to,...