Scott v. Christenson

80 P. 731, 46 Or. 417, 1905 Ore. LEXIS 55

• Court: Oregon Supreme Court
• Decided: April 28, 1905
• Status: Published

Opinion

Mr. Justice Bean

delivered the.opinion of the court.

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 two dollars 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.

1. 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. Ene. Law (2 ed.), 332.

2. In this ease, however, the application of such a rule would require the defendants to prove that the payment of the two dollars 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, and- did, plead the pajunent. This averment is denied by the answer, and the defense of the statute of limitations pleaded. The plea is grounded on the denial, and, if the burden is on the defendants, the result will be a presumption that such payment was in fact made. Now, the note was barred, and therefore furnished no evidence of a present liability against the. defendants, unless a payment was made thereon by them within six years prior to the commencement of the action. The burden of proof to establish such payment was on the plaintiff: Wood, Limitations (3 ed.), § 116; Harding v. Grim, 25 Or. 506 (36 Pac. 634). But the instruction, as given, relieved him of that duty, and imposed the burden of proving a negative on the defendants; and this, we think, ivas error. Whether the production by a plaintiff of a promissory note, with an indorsement of a payment thereon made by the promisee before the note is barred by the statute, is prima facie evidence of such payment, and shifts the burden to the defendant to show that the. payment'was not in fact made) as would seem to be the rule in some jurisdictions (Wood, Limitations, 3 ed., § 115; Shephard v. Calhoun, 72 Ill. 337; Bell v. Campbell, 123 Mo. 1, 25 S. W. 359, 45 Am. St. Rep. 505), is a question not necessary to be considered at this time.

Judgment reversed and new trial ordered. Reversed.