Jenkins v. DeWar

112 Tenn. 684

• Court: Tennessee Supreme Court
• Decided: April 15, 1904
• Status: Published

Opinion

Mr. Justice Shields

delivered the opinion of the Court.

Complainant filed his bill- June 18, 1898, to recover upon a note made by defendant August, 1891, payable upon demand, which he states was first made in 1898. It contains no allegation of a promise of payment made subsequent to the date of the note.

The defendant, answering, pleaded the statute of limitations of six years. Complainant offered evidence to prove that demand for payment was first made in July, 1898, and that defendants then promised to pay the note.

We are of the opinion that, upon the pleadings and facts stated, the note is barred.

It was payable on demand, and the right to mate demand accrued at its date — more than, six years before suit. Where a right exists, but a demand is necessary to entitle the party to his action, the statutes of limitation commence to run from the time the right to malte the demand is complete. Code 1858, section 2780, (Shannon’s Ed., section 4477). This is not in conflict with the case of Goodwin v. Ray, 108 Tenn., 614, 69 S. W., 730. It was decided on another question.

The hill contains no allegation that the defendants promised to pay the note within six years next before suit was brought and evidence of such a promise was irrelevant and inadmissible for any purpose.'

It is a well-settled rule of chancery practice in this state since replications to answer were abolished that, where a statute of limitation which would ordinarily bar the action has run, any intervening fact relied upon to take the case out of it- — such as disability of complainant, fraudulent concealment of cause of action, nonresidence of the defendant, or a promise to pay within the statute — must be alleged in the bill, and without such allegation evidence of it will not be heard. Gross v. Disney, 95 Tenn., 598, 32 S. W., 632; Sully v. Childress, 106 Tenn., 118, 60 S. W., 499.

This is in accordance with the rule that relief cannot be" had on proof alone. Gernt v. Cusack, 106 Tenn., 150, 59 S. W., 335.

The rule that a demurrer will lie where it appears upon the face of the bill that the suit is barred by a statute of. limitation (Thompson v. Railroad Co., 109 Tenn., 270, 70 S. W. 612) is also conclusive of the question. It is immaterial that the suit is upon the contract contained in the note, and that the statute only operates upon the remedy.

The facts which save the bar of the statute are material and necessary to maintain the suit upon demurrer, and they must, like all other material facts, be both alleged and proven.

When the fact relied upon is one which could have been pleaded in a replication, it may now be alleged in the original bill, or in an amendment, when made necessary by a defense set up in the answer.