Braun v. Fassnacht ( 1946 )

Pee Cukiam.

The appeal is from a judgment of nonsnit in the District Court. The suit is based on a promissory note for $170 made by defendant-respondent to the order of plaintiff-appellant, dated September 21st, 1939, due November 21st, 1939. Suit was begun on October 26th, 1945, so that if the nonsnit stands, the statute has run and a new suit would be fruitless.

But we think that clearly the judgment of nonsnit shonld be reversed. The sole ground of nonsuit as urged was a variance between the copy of the note as annexed to the state of demand, and the note itself as produced at the hearing, and excluded from evidence. As to the former, it is enough to say that the state of demand counted on a note dated September 21st, 1939, payable November 21st, 1939, made by defendant and delivered to plaintiff. The annexed copy was therefore mere surplusage; and indeed fails to show a signature. But the specification of defenses, on this branch of the case, merely set np that more than six years had elapsed since the note “was made.” Of course this was no defense, as the statute did not begin to run until the note was due, and the suit was actually begun within six years after that time.

The judgment will he reversed and the cause remanded for retrial. We would be disposed to enter final judgment in this court, pursuant to section 2:32-214, hut for the fact that the record exhibits a defendant’s counter-claim for services, which he is entitled to press at the trial.