Cleveland v. Duryea's Administrators

1 Cin. Sup. Ct. Rep. 324

• Court: Ohio Superior Court, Cincinnati
• Decided: April 15, 1871
• Status: Published

Opinion

Storer, J.

By the pleadings there is no denial of the original indebtedness, the only defense set up being the statute of limitations. The statute in force in Ohio at the time this suit was brought has alone been pleaded. "When the cause of action arose, whether at the time the goods were sold and delivered, or whether credit was allowed for payment, does not appear definitely, but we may infer from the pleadings that it accrued in St. Louis, where the defendant resided. It can not have accrued in New "York, for it does not appear that both parties, buyer and seller, were within that jurisdiction at the time the purchase was made.

It is not claimed that the limitation prescribed by the laws of either New York or Missouri are relied upon. The answer presents the Ohio statute alone. The original, as well as the amended reply, does not set up the fact that, by any exception contained in our statute, the limitation there prescribed can be avoided. It is only alleged that when the cause of action accrued, the defendant had absconded and left the State, and his residence was not known to the plaintiffs’ intestate until two years befoi-e the commencement of this action.

On a careful examination of the bill of exceptions, we can find no evidence to sustain the reply. On the contrary, the defendant is proved to have remained where the contract was originally made until after the debt was due, of all which the plaintiffs’ intestate was fully aware. It is farther in pi’oof that the defendant publicly left St. Louis, closing his business there, changing his residence to Cincinnati, in 1861, where he pursued the same employment he had formerly been engaged in without any concealment. So far, then, as the defendant’s residence aixd his removal and the allegations connected with those statements go, we do not find that the plea of the statute is answered.

But it is said the promise made by the defendaxxt in his letter of December, 1861, is an aixswer to the statute. "We apprehend, however, it can not be regarded as defeating the statute of limitations, but as giving only to the creditor the privilege of withholding the legal prosecution of his claim for the additional period that elapsed between the time the debt became due and the date of the new promise. As it is not showix by either pax'ty when the debt actually became due, we are left to apply the ordinary rule, that where merchandise is not sold for cash, the ordinary credit must have been understood between the buyer and seller.

It is difficult, then, to say when the statute began to run, although it is evident whexx the letter was written the limitation of the statute had commenced. But between the date of this new promise and the bringing of this action eight years had elapsed, and as no written promise — as our statute requires to revive the debt — has been proved, we must conclude the plea of the statute must be' sustained. The verbal promises, made in 1867 and 1868, can not be admitted to defeat the plea as a substitute for what our law expressly requires shall be in writing.

As we have already said, we are not permitted to take notice of the law of either Missouri or New York unless it is pleaded, and in the absence of all evidence as to what the laws of those 'States require, we are bound to consider only the-statute of our own State.

■ We think the judgment should be reversed, and the parties have liberty to amend their pleadings by setting up as a reply to the defendant’s plea the statute of the State where the cause of action originally arose.

’ Cause remanded for further proceedings.