Patterson v. Colmer

Opinion by

Mr. Justice Trunkey:

This action is to recover money alleged to be due and owing on an alleged oral contract. The plaintiff avers in his affidavit of claim, that on November 17, 1868, he sold and conveyed a lot of land to the defendant, subject to the payment of a debt to William Bakewell, secured by bond and mortgage, “in consideration of which sale and conveyance, and as part of the purohase money therefor, said defendant agreed to and with said plaintiff to pay the debt aforesaid, amounting to the sum of $218, with interest from February 22, 1868, and deducted that Amount from the purchase money aforesaid.”

The affidavit of defense, among other things, avers that the last instalment of that debt was due on April 22, 1870, and sets up the defense that the plaintiffs claim is barred by the statute of limitations.

The contract, as stated by the plaintiff, shows a provision by the defendant to pay the debt presently. Certainly the defendant was bound to pay it as soon as it became due. Then he could tender the money to Bakewell, and then, if he did not pay or tender payment, there was a breach of his contract. His-contract was not to indemnify, it wae to pay the debt for Col-men The statute of limitations began to run as soon as the contract was broken by the defendant.

At present there is no occasion to notice other questions.

Judgment reversed and procedendo awarded.