Farmers' Shipping Ass'n v. Nordgren

FULLER, C. Plaintiff, the respondent here, commenced this action upon a promissory note to it given by defendant. Defendant pleaded a counterclaim for debt for the value of grain delivered to plaintiff. By way of reply the plaintiff pleaded the statute of limitations against defendant’s counterclaim. Verdict was directed for plaintiff, for the amount of the note sued upon, and defendant-appeals. The defendant, as appellant, contends that respondent was estopped to plead the statute of limitations against his counterclaim, for the reason that, when he signed the promissory note upon which plaintiffs action is based it was agreed with him by the plaintiff that the statute of limitations would not run against the demand which is stated in the counterclaim. [157] ■ He claims error in the direction of verdict for plaintiff. Appellant shows in his testimony that he was a stockholder in plaintiff corporation, and that, when he was informed of an assessment upon his share of stock, and asked to sign a promissory note to the respondent, to cover the assessment, he declared that the amount of the note should be taken out of the money due to him from respondent for wheat which he had delivered to the respondent and for which he had not been paid. Respondent’s officers desired to look up appellant’s claim, for the value of the wheat, in the books maintained by respondent, and appellant testified that: “I said that ought to be done quick, because I did not like to wait so much longer until the running of the statute of limitations and they said that the statute of limitations would not be running in this case. They said that was time afterwards, and then I signed the note.” With 'a record substantially similar to that presented in the case of Farmers’ Shipping Association v. C. C. Nordgren, 56 S. D. 152, 227 N. W. 576, opinion filed Nov. 26, 1929, the contentions here, and the proceedings had below, are identical with that case. In the opinion in the last-mentioned case it was considered that there was no evidence to support a verdict for defendant upon his claim that plaintiff was estopped to plead, in the reply, the statute of limitations against defendant’s counterclaim for the value of grain; that the question for that reason could not be properly submitted to the jury; and, the defendant’s counterclaim being outlawed according to undisputed evidence, a direction of verdict for plaintiff for the amount of the note sued upon in the complaint was proper. That conclusion is here adopted in this appeal. The judgment and order appealed from are accordingly affirmed. SHERWOOD, P. J., and POLLEYj CAMPBELL, and BURCH, JJ., concur. BROWN, J., dissenting. ■