Schroeder v. Jahns
Before: Rhodes
Synopsis
Pleading Statute of Limitations.—The general allegation in an answer, that the action is barred by the statute prescribing two or any other number of years as the limitation for bringing the action, is not the correct method of pleading the Statute of Limitations.
Limitation of Actions in Cases of Trust.—A deposit of money by one with another, to be held by him in trust for the depositor until he shall demand it, constitutes an express continuing trust, and no right of action will accrue to the cestui que trust until the trustee assumes a position in hostility to the trust relation, either by refusing to pay the money on demand, or by some other act, nor will the , Statute of Limitations commence running until a demand is made for the money, or the trustee has violated his contract.
Same.—In such case, if no demand be made on the trustee, and he does not violate his contract in his lifetime, but demand is made ori his administrator after his death, the Statute of Limitations does not commence running against the intestate, but the cause of action accrues against the administrator.
Answer setting up Statute of Limitations. — If the complaint in an action against an administrator avers that the intestate received plaintiff's money in his lifetime, to keep the same for plaintiff as the depositary thereof until the same should be demanded of him, and that the money remained in the intestate's hands at the time of his death, subject to plaintiff's order, an answer which sets up as a defense that the cause of action did not accrue to plaintiff within two years next before the death of the intestate, and that the same is barred by the Statute of Limitations, does not raise any issue in the case.
Defective Finding of Facts.—If the answer sets up a counterclaim and the Court finds that the defendant introduced no evidence as to the counterclaim, the finding is defective; but if the evidence is all before the appellate Court, and it appears that no testimony was introduced by either party as to the counterclaim, the judgment will not be reversed on account of the defective finding.
By the Court, Rhodes, J. The plaintiff sued the defendant, as the administrator of Hermann Schroeder, deceased, to recover a balance due him for moneys before that time deposited by him with Hermann [278]Schroeder; and he charges that Hermann Schroeder received the moneys “ in trust for the said plaintiff, to he kept by him, the said. Hermann Schroeder, as a depositary thereof, until the same should be demanded, by him the said plaintiffthat he promised to keep the same in 'safe deposit for the plaintiff, subject to his order, and that the same remained in the hands of Hermann Schroeder at the time of his death subject to the order of the plaintiff; and he also charges that he presented his claim for the moneys against the estate of the deceased to the defendant, as administrator, who rejected the same. The defendant fully denies the alleged indebtedness’ of his testator, and that he received or held the moneys of the plaintiff in any manner, and he sets up the Statute of Limitations of two years, and of four years, in separate answers, and he alleges, by way of counterclaim, that the plaintiff is indebted to the estate of the deceased in the sum of about one thousand dollars, for moneys laid out and expended, etc., by the defendant’s testator.
Judgment was rendered for the plaintiff upon the finding of the Court, and the defendant appeals from the judgment and the order denying his motion for a new trial.
The first point relied upon by the defendant is that the finding of the Court did not dispose of the issues made by the second and third defenses of the Statute of Limitations, but as the statute of four years is clearly inapplicable to the facts of the case, and as the argument of counsel applies equally to both defenses, the second defense, setting up the limitation of two years, will alone be considered in this connection.
The defendant alleges in that defense that the causes of action did not accrue to the plaintiff “ within two years next before the death of the said Hermann Schroeder, and that the same, if any, are barred by the statute prescribing limitations for the bringing of actions in thiá State.”
The last clause of the defense—that the cause of action is barred by the statute—is not a statement of a fact, but of a conclusion of law. The fact averred in the defense is that the cause of action did not accrue within two years next before [279]
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