Boer v. Revesz

PAGE, Circuit Judge. The only question presented by this writ is whether the District Court for the Northern District of Illinois erred in sustaining a general demurrer to the declaration of plaintiff in error. The declaration, filed June 1, 1925, alleges, in substance: That plaintiff, a citizen of Indiana, because of representations made to her by defendants, citizens of Illinois, was induced, on or about January 15, 1917, to deliver to defendants $7,150, for which she received an instrument in writing as follows: “Chicago, Ill., Jan. 15, 1917. “Received from Mrs. M. Domoko’s Oden Boer seven thousand and one hundred fifty dollars for (foreign money) kronen 55,000 to be remitted to Magyar Kirahji Postaresidenee Takarekpentztar Budapest. “Resvesz & Szoeke, per Revesz.” That defendants agreed they would, within a reasonable time thereafter, deposit to plaintiff’s credit in the Royal Hungarian Post Savings Bank, 55,000 kronen and deliver to her a passbook therefor, and in event they failed within a reasonable time to deliver the passbook they would return, upon request, the $7,150; that defendants did not deposit the 55,000 kronen to her credit, or deliver a passbook to her therefor, and, upon her demand, made January 15, 1919, refused to return the $7,150 or deliver such passbook, thereby breaching their contract, to her damage in the sum of $12,000. The record does not disclose in what particular the court found the declaration defective, nor do we have the aid of a brief from defendant in error, but counsel for defendant in error, on oral argument in this court, urged that the declaration is defective, because he is unable to tell therefrom whether the plaintiff is relying upon a written undertaking or an oral one, and he therefore did not know what statute of limitations to plead, and that, in any event, it appeared that the statute of limitations had run against the action. Whether the statute of limitations had run is a question which cannot, [104] under the Illinois practice, be raised by a general demurrer. Heimberger v. Elliot Switch Co., 245 Ill. 448, 450, 92 N. E. 297. The statute of limitations is an affirmative defense. We are of opinion that the declaration, though informal, states a good cause of action, and that the judgment should be, and it is, reversed, and the cause remanded, with direction to overrule the demurrer to the declaration.