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1 Wright 675

Cole v. Kerr

Ohio Supreme Court

Decided August 15, 1834

Ohio Supreme Court · decided 1834-08-15

<p>Statute of limitations — debt—setoff—bill of particulars — settlement—prior notes and receipts— solvency and insolvency — presumption.</p> <p>Where debt is brought on a simple contract to avoid the statute of limitations, a setoff of the same nature will be regarded as in debt also, to apply the law to both parties alike.</p> <p>'"'Before a party can be restricted in his proof to a bill of particulars, it [676 must be first shown, that one has been demanded and given.</p> <p>The giving posterior notes or receipts are circumstances from which we may infer a settlement of prior demands.</p> <p>In demands of longstanding, a jury might infer payment from the solvency of the debtor, or they might excuse the delay from his insolvency.</p>

Decided 1834-08-15

WRIGHT, J.

¶1We have no evidence that any bill of particulars has been demanded of the defendant, or delivered to the plaintiff. If such be the case you must show the bill, that we may see if this claim is embraced in it.

¶2As to the second objection, it is true that until the 1st of June, 1824, no statute in Ohio imposed any limit to the action of debton a simple contract: (3 O. 387.) That omission of the legislature, the present plaintiff has availed himself of to save his debt, tie must yield to his adversary the same law he exacts from him. If, in debt, the defendant cannot set up a bar, the plaintiff will not be permitted to interpose a bar against a demand of the same nature, under pretence that he might bring assumpsit for it. The liabilities of the parties must be regarded in the same light, and be either assumpsit or debt, as the plaintiff shall have elected to proceed.

¶3The third objection is without weight when addressed to the court. It may furnish one ground of argument to the jury, to induce them to believe the first obligation cancelled, when the second was given. The objection is overruled.

¶4The defendant then asked of a witness, if Cole was not insolvent in 1816, and from thence until 1819.

¶5677] *WRIGHT, J. Under what circumstances the notes were originally given, or their collection has been delayed, it is competent to prove to the jury. If the obligor was solvent, it would be a circumstance from which, in connection with others, payment might be inferred — if insolvent, that might, on the contrary, excuse the delay in bringing suit.

¶6The plaintiff in rebutting the defendant’s evidence, offered sundry receipts for money from the defendant to the plaintiff, dated before and since the date of the receipt from the plaintiff, given in evidence.

¶7*701WRIGHT, J. We have some doubt as to the admissibility of this evidence, but inasmuch as there have been many dealings between these parties, of long standing, and of their former relations as co-partners, we will admit it.

¶8Verdict for the defendant.

¶9Motion for a new trial overruled.

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