Riddle v. Backus

Code, J.

i. evidence: nations. The defendant claims that he was a nejffiew of the payee of the note and that he rendered her the services sued for in his counter claim under the agreement that he was to be paid therefor at her death, she being at the time of the agreement a widow aged about fifty years, and the defendant being then about twenty-one. The testimony is not all before us, in the abstracts upon which the case is submitted, and hence we cannot determine that the verdict is not supported by the evidence.

*83 2.-.- eon-by úaroi: statute of frauds: *82 The testimony was competent and could not be excluded on *83 tlie ground that the counter-claim was barred by the statute of limitations, because the very question of fact to he tried was, whether it was so barred. If, by the 1 1 terms ox tlie agreement, the services were not to be paid for uutil her death, tlie Statute would not commence to run till .that event transpired. Nor would such a contract be' within the statute of frauds, on the ground that it was in jiarol and was not to he performed within a year, because the death might occur within a year from the time of making the agreement.

The instructions to the jury were entirely fair and correct. They need not be set out in full. The court told the jury, in 3^, Statute oi substance, that the giving of tlié note was precontract ' sumptive evidence of a settlement of the accounts between tbe parties, and tlie defendant must overcome it by evidence tliat bis counter claim was not settled; that if tlie services were rendered under a parol agreement, and were not to be paid for till the death of Hannah Backus, then the statute would not begin to run till her death; but if no such agreement was proved as to the time of payment, and the services were rendered more than five years before the commencement of the action, the statute would bar the counterclaim therefor.

We do not discover any error of law in the proceedings, and must therefore order the judgment

Affirmed.