Davenport v. Short

By the Court. Berry, J. It appears that the note, upon which this action is founded, matured more than six years before the action was commenced; but it further appeared in the complaint that .partial payments had been made thereon within less than six years before the commencement of the action. The complaint was not, then, demurrable on the ground that it clearly appeared upon its face that the statute of limitations had closed upon the plaintiff’s right of action before suit brought, under the rule heretofore laid down by this court in Kennedy vs. Williams, 11 Minn. 314; McArdle vs. McArdle, 12 Minn. 98; Eastman vs. St. A. F. W. P. Co., Ib. 137; Hoyt vs. McNeil, 13 Minn. 391. We are not disposed to extend the rule enunciated in those cases; but where it does not clearly appear upon the face of a complaint that the statute of limitations has run against the cause of action stated, we are of opinion that the running of the statute is “new matter constituting a defense,” and should, [26] under subdivision 2 of sec. 79, ch. 66, Gen. St., be pleaded by the party seeking to take advantage of it. The instruction given to the jury at plaintiffs request was in accordance with these views and was correct; and, inasmuch as the defendant did not plead the statute, it was not necessary for the plaintiff to make any proof as to the partial payments for the purpose of avoiding the bar of the statute. Whether right or wrong, then, the other instructions given and refused were immaterial, and it is manifest that .no harm could havo resulted to the appellant from the giving or refusing of the same respectively. Order denying new trial affirmed.