Murtaugh v. Murphy

30 Ill. App. 59, 1888 Ill. App. LEXIS 215

• Court: Appellate Court of Illinois
• Decided: January 16, 1889
• Status: Published

Opinion

Gary, J.

May 10, 1887, the appellee sued upon an account beginning in January, 1880. An issue was made upon the statute of limitations of five years. There was no evidence of any promise, and of payment, only her testimony that “ whenever I needed money for my own use I got it from him. This I did on several occasions since 1880. The last payment I got from him was §9, in the fall of 1885, to pay a balance I owed a carpet weaver.”

The appellant testified that she did his washing for the rent, and never asked him for any money. Upon another point the appellant was contradicted by other testimony.

Among other instructions the jury were told: “If the jury believe that any witness who has testified in this case has testified falsely upon any material matter in this case, then the jury have a right to disregard his entire testimony, except so far as the same may be corroborated by other evidence.” This is error. Pope v. Dodson, 58 Ill. 360. The appellee intended, and the jury understood, this instruction to be pointed at the appellant. The instruction, besides omitting any reference to the evidence as the ground of belief by the jury (Freeport v. Isbell, 83 Ill. 440; Horne v. Walton, 117 Ill. 130),treats a mistake, however innocent, of the witness, as having the same effect upon his credibility as wilful perjury.

The appellant asked and the court refused this instruction : “The court instructs the jury that in cases like the one on trial, unless the suit is commenced within five years after the cause of action accrues, then the statute of limitations is a complete bar; that in the absence of any different contract, the defendant became indebted to the plaintiff (if he became indebted to the plaintiff at all) as soon as the work was done, and unless the jury believe that the defendant was to have time in which to pay for the work, then they are instructed to disallow all claims for work done more than five years from the commencement of this suit.” This was also error. If the appellee did get money from the appellant, as she testified, there is nothing in the case to indicate any application by the appellant of money so paid to any particular demand. And without such application by him, that is, without evidence that he, when he paid, intended that payment to apply as part payment of a larger demand, so identified as to be now ascertainable, such payment has no effect upon the running of the statute (Angell, Lim., Sec. 244; Taylor, Ev., Sec. 1081), and, therefore, no reference to that money was necessary to make the instruction proper.

As part of the account accrued more than seven years before the suit was commenced, the appellant was entitled to this instruction. As the judgment must be reversed for these errors, nothing will be said about the newly discovered evidence.

Reversed and remanded.