Porter v. McKinzie , 20 Iowa 462 ( 1866 )

Dillon, J.

i. statute evidence' ouietendThe charge of the court, respecting the liability of the defendant for the last charge in the account was not excepted to. This part of the case we pass without further notice, except to say that the ev-¡¿{ence-was s0 conflicting, as not. to justify us in deciding that the District Court erred in refusing a new trial, on the ground that the verdict was against the testimony.

The verdict must therefore stand unless there was error in the instructions of the court. Among others the court gave to the jury the following instruction :

“ The statute of limitations against an account, is also avoided by the testimony of the defendant himself on oath. If he testifies that such account exists and remains unsatisfied, and if you find that these points have been established by the testimony of the defendant, the limitation will then form no bar to the claim.”

To this the defendant duly excepted.

All of the evidence upon which this instruction is based is set out in the statement of the case. The statute upon which it is founded is as follows:

“ In actions upon contracts the above limitations shall not apply, if from the answer of the defendant or from his testimony as a witness, it appears affirmatively that the cause of action still justly subsists.” Revision, § 2742.

The object of statutes of limitation is to protect parties from stale and unjust demands. There is no danger of a party unjustly suffering from a demand, which upon his oath he distinctly admits justly to subsist against him. Hence the wisdom of the exception contained in the above cited section of the statute. Revision, § 2742.

The instruction above copied was erroneous. The testimony did not warrant it, for the evidence of the defendant (and upon this point no other could be regarded) did not cause it affirmatively to appear, that the cause of action still justly subsisted. See Auter v. Miller, 18 Iowa, 405; Hunt v. Coe and Wells, 15 Id., 197.

Indeed, taking the defendant’s whole evidence, it is doubtful whether it showed that a cause of action ever justly existed against him. Certain it is that his testimony, as set out in the record, is not sufficient to remove the bar of the statute if this bar otherwise existed. It is to be noted that the statute requires it affirmatively to appear from the defendant’s evidence, and from that alone, that the cause of action still justly subsists. The instruction of the court did not follow the statute.

We cannot know but that the jury found against the plaintiff on the last item of his account; and if so, the whole account was barred, unless taken out of the statute by the testimony of the defendant.

Hence the materiality of the instruction under consideration. For the error in giving it, the judgment is reversed and the cause remanded for a new trial.

Reversed.