Reese v. Van Tassell

HENRIOD, Justice

Appeal from a'summaty judgment on account of loans made. Affirmed with' costs to' plaintiff. ' '' '

Defendant says by. affidavit in opposition to one by plaintiff to the ^ffect that it was understood the loans would be .payable on demand,. that they were payable “by me as, my ability to do so dictated.”. He then says that 1) the limitations statute bars plaintiff’s claim , (apparently relying on dates of the loans instead of due dates), and 2) he has had no ability to pay, which says the due dates have not yet arrived. Both contentions awryly kill the limitations statute . defense, since there ,is nothing to indicate other than that under 1) the loan? were payable on demand, as plaintiff contends, since no times are alleged as to when the statute would cpmmepfc'e, to run, and that under 2) the cohtentitm that there is no due date until the “ability to pay” comes along, requires either a) á'reasonable time for a due date to .be sej, .or b) that a due date never may occuripr “vest” by analogy to the rule against perpetuities.

Further, Van'Thssell’s: contention that ho demand was made on him for payment is refuted by his owli-■'■affidavit that admits that “the first I.knew of his desi.re to have me repay [was] t upon^ receipt of a letter from Robert McDonald,” the plaintiff’s attorney. ¡ Furthermore,i def,aidant’s inab'ility-to-pay contention 'Somewhat inconsists, with • the fact that-.before- filing his affidavit,Reese, by garnishment, tied up an amount in excess of $10,000 owed to defendant by a credit union. The defendant moved the court that $10,000 of the amount be paid to the clerk of the court pending appeal, and that the remainder be released to him, which was done. In addition, Van Tassell signed a promissory note for $7,667, payable $125 per month at 8 per cent, after the limitations period had expired, and delivered it with one payment to plaintiff, acknowledging the debt to that extent and presumably tolling the statute, — all stated in his affidavit. Under such circumstances we feel constrained to and do affirm.

CALLISTER, C. J., and TUCKETT, ELLETT and CROCKETT, JJ., concur.