Palmer v. Woodward's Estate

[572] The opinion of the court was delivered by Boss, J. The only contention is whether a portion of the «mount found due the plaintiff by the referee is barred by the Statute of Limitations. The referee finds that none of the items allowed is barred by the Statute of Limitations if either of three items named are proper credits to, or payments by, the intestate upon the indebtedness. The third item, for timber for the Methodist church, he finds at the time the credit was given was •a proper item of credit but that afterwards, how long he does .not find, the intestate gave this item to the church, so that at •the time of the hearing it should not stand as a credit. Finding •that it was a proper credit when delivered is equivalent to finding that then it was a proper payment by the intestate upon the plaintiff’s account. At that time this payment was a legal recognition of the plaintiff’s account as a subsisting indebtedness. 'The Statute of Limitations would not begin to run on the accountruntil after the making of that payment. The subsequent action •of the parties, by which this item was withdrawn as a credit, would not remove its effect as. a recognition of the plaintiff’s -account as a subsisting, indebtedness against the intestate at the time it was delivered as a payment theron. The only way the •credit could properly be withdrawn, as such payment, was for the plaintiff to chai’ge the amount of this item to the intestate when the subsequent arrangement was 'made by which it was-.given by the intestate to the church. But such withdrawal was not a withdrawal of his legal recognition of the plaintiff’s account , «s a subsisting indebtedness. It would still stand as a legal pay.ment on the account though balanced by the charge arising from the subsequent arrangement by which it was given to the church. Without considering the other], items, we think that the findings of the referee in regard to this item are sufficient to save thefull amount allowed from the operation of the Statute of Limistations. The judgment of the County Court is affirmed.