Larco v. Roeding

CROCKETT, J. This action is founded on an instrument in writing in a foreign language, made by one Ihmels, the defendant’s testator, in February, 1851, to the plaintiff; wherein, after acknowledging an indebtedness of eleven hundred and fifty-eight dollars to the plaintiff, he promises to pay it “when my circumstances hereafter may permit me”; or as the plaintiff’s counsel claims is the correct translation “when my future circumstances shall permit it. ” Ihmels died in October, 1866, leaving a will, which was duly probated, wherein the defendant was appointed executor, and duly qualified as such. The plaintiff duly presented his demand to the executor for allowance, who refused to allow the same ; and this action was commenced in February, 1867, to establish the demand as a valid claim against the estate.

The complaint, after setting out a copy of the instrument, and alleging that the debt remains unpaid, avers “that the circumstances of the said Ihmels posterior to the date of said instrument did not permit him to pay the same until within four years last past; but that after that date and before the death of said Ihmels he became able to pay the plaintiff’s claim, and so continued up to the time of his death, and his executor is now able to pay the said claim out of the assets in his hands as executor.”

The answer admits the execution of the instrument; but denies that the circumstances of Ihmels did not permit him to pay the demand until within four years next preceding his death, and avers the truth to be to the contrary; and as a defense relies on the statute of limitations.

[440]On the trial the plaintiff and defendant were examined as witnesses, each on his oto behalf, and other witnesses were also called. The court decided the canse for the defendant and entered judgment accordingly; but there were no findings, nor exceptions for want of findings. In making its decision, the court, amongst other things, announced that inasmuch as the claim was against the estate of a deceased person, the evidence was to be scrutinized more closely than if the suit was against Ihmels himself, and the same weight was not to be given to the testimony as it would have been entitled to if the suit had been against Ihmels; that notwithstanding the testimony of the plaintiff was admitted without objection, it was not entitled to the same weight as if Ihmels had been living; to which announcement the plaintiff excepted.

The plaintiff moved for a new trial, assigning as grounds: 1st, that the evidence was insufficient to justify the decision; specifying as the particulars that it did not appear from the evidence that the circumstances of Ihmels permitted him to pay the debt, until within four years before suit brought, nor that the cause of action accrued more than four years before his death; 2d, errors of law at the trial, assigning for the particulars the announcement of the court before mentioned; and that if the facts which the defendant’s testimony tended to prove had been fully proved, they would not have shown that the action was barred by the statute.