majority"> COSHOW, J.

The defendant relies on this appeal on this statement from 1 Wigmore on Evidence, 218, Section 159:

“The fact that a creditor during the period when he might have enforced his demand by suit, if he had one, was in indigent circumstances and needed the use of his means is a circumstance tending to fortify the presumption that the demand has been paid or otherwise satisfied, * * .” 21 R. C. L. §§ 135, 155.

In re Keenan’s Estate, 73 Hun, 177, (25 N. Y. Supp. 877); Bean v. Tonnele, 94 N. Y. 381 (46 Am. Rep. 153); Hamilton v. Hamilton, 18 Pa. St. 20 (55 Am. Dec. 585); Morrison v. Collins, 127 Pa. 28 (17 Atl. 753, 14 Am. St. Rep. 827). In 4 Wigmore on Evidence, 3565, Section 2517, this rule is stated:

‘ ‘ The discharge of a claim by payment is often said to be presumed after a lapse of time depending on the circumstances of the particular case; the inference being based on the principle of Eelevancy already examined {ante, § 159). But the multiplied statutes of limitation have reduced the occasion for invoking any other rule, and it is not frequent that *425 a real rule of presumption is intended to be laid down. ’ ’

21 R. C. L. 134, Section 152, lays down this rule:

“The length of time which is required to elapse before the presumption of payment will arise is different in different jurisdictions. As a general rule, however, twenty years, is the period adopted, though it is variously fixed at sixteen years, fifteen years, and sometimes ten years.”

Section 153 in same page reads:

“The presumption of payment never arises from lapse of time alone, short of the period fixed by law. •In a given case, if there are no circumstances tending to aid the presumption of payment, and the presumption does not arise for want of the necessary time, it would be the duty of the court so to instruct the jury and withdraw it from their consideration. It is true, however, that time has always been regarded as an auxiliary to other facts and circumstances on questions of payment, possessing more or less importance as the period may have been longer or shorter, and it may in connection with other circumstances establish the fact of payment.”

The same authority in Section 151 reads:

“The courts have frequently said in discussion that the presumption applies only to debts not embraced by the statute of limitations, but there appears to be no good reason why a defendant may not avail himself of the presumption of payment, if it is applicable, although the action is brought on an obligation covered by a statute of limitations.”

In the instant case the plaintiff brought his action in a little more than five years after the cause of action accrued. No presumption of payment could arise on account of the lapse of time. If other circumstances had been proved, which was not done or attempted, it would have been proper foj; the defend *426 ant to have shown that the plaintiff was in indigent circumstances and that the defendant was able to pay from which circumstances the jury might have inferred the debt had been satisfied. But the issue here is the amount of the debt. Plaintiff alleges a contract for a specific amount. The defendant does not plead or attempt to prove the reasonable value of the services, but denies the .special contract to pay $5.25 per day and alleges he paid plaintiff $182 in full settlement. The plaintiff admits having received $152. The answer attempts to set out what work was required of the plaintiff, but the actual work done by the plaintiff under his contract with the defendant is immaterial in view of the fact that all of plaintiff’s time was required and plaintiff’s allegation and proof that he was to be paid an amount equal or in excess of what he had been earning catching and marketing crabs. The evidence that he had been earning $5.25 per day is not disputed. Plaintiff is supported in his testimony in regard to his earning power by his father and one of his sisters. They also support the testimony of the plaintiff to the effect that he was importuned by the defendant upon the express promise of the defendant that the latter would pay him as much or more than he could make fishing for crabs and that the plaintiff reluctantly consented to accept the defendant’s offer.

It is not stated when the payments were made by the defendant to the plaintiff. There were at least three payments made but the particular dates they were made during the five years intervening between the time the account accrued and the institution of this action are not given. Upon cross-examination the plaintiff testified that the reason he had not asked the *427 plaintiff for money sooner was that the defendant was his brother-in-law and he thought he could get his money any time. Our statute prescribes, “That a person takes ordinary care of his own concerns.” Or. L., § 799, subd. 4. The indulgence of a debtor by a creditor, especially when members of the same family, for a period of five years is not unusual. In our opinion it was not error for the court to sustain the objection. It certainly was not error for the court to state: “He had a right to wait five years if he wanted to. He was within the statute.” The only effect the anticipated answer could have had lawfully was the inference deducible from the delay and the needy condition of plaintiff. His needy condition would not have been a defense. It might have been considered by the jury in weighing the credibility of the witness. In view of the principal issue in the instant case, which is the amount agreed to be paid for plaintiff’s services, we believe the question and anticipated answer were both immaterial.

But if we concede that the ruling rejecting the proffered evidence was error, it does not necessarily follow that it was reversible error. The evidence is overwhelming that the plaintiff was earning an average of $5.25 per day; that he was earnestly urged by the defendant to go on to the land about twenty miles distant from his home for defendant’s benefit; that while there he was deprived of the comforts of his home, camped in a barn and guarded the land from trespass of livestock belonging to other parties; that the defendant promised to pay him as much or more than he was earning crab fishing. The only denial made by the defendant is as to the amount the plaintiff was to receive for his services. Defendant does not set up any agreement in regard to that. He *428 made three separate payments and both he and his wife testified that the plaintiff said the last payment was more than he expected to receive. As explanatory of the nature of the evidence introduced by the plaintiff, we direct attention to the testimony of J. S. Thompson, father-in-law of the defendant Larsen and father of the plaintiff. Mr. J. S. Thompson testified on cross-examination as follows:

“Q. Now, you have taken quite an interest in this case, haven’t you?

“A. Well, yes, of course I have * *

“Q. You are very much interested in seeing that this comes out all right?

“A. I am interested in all of the children as far as that is concerned.

“Q. Well, you are interested in this case, too.

“A. Well, this case, I am interested in it, but then it is not because it is John * * I am interested in Mr. Larsen and we have never had any trouble. Him and I have never had a word yet. He has always been good to me and I have been to him and if I thought Mr. Larsen was in the right, I would do all I could on his side just as I would on the other.”

One of the sharply contested issues was in regard to.the amount of the payments made by the defendant to the plaintiff. Plaintiff admits having received $152. The defendant alleges and testified that he had paid plaintiff $182. The jury found for the plaintiff on that item. In view of this result it is not at all likely that a different verdict would have been returned if plaintiff had answered the question propounded. After a careful reading of the evidence we believe that the great weight of the evidence is in favor of the plaintiff, and though we considered the ruling of the court on the only matter submitted on this appeal to be erroneous, we believe the judg *429 ment should he affirmed under the authority of Article VII, Section 3-e, Constitution of Oregon.

The intrinsic value under ordinary conditions of plaintiff’s services is not important. His services were sought by the defendant during the war when laborers were scarce and wages were high. Defendant was anxious to have a trustworthy person in actual possession of the land to protect defendant’s interests therein. Defendant was negotiating for tH'e purchase of the land and could not himself be there. It is therefore immaterial whether there were four acres inclosed or 1,000. The real issue submitted to the jury was whether or not the defendant promised to pay to the plaintiff the amount claimed by the defendant. The defendant does not pretend that he paid him more than $182. The question of presumption of payment really is not relevant because the controversy hinged on ’Whether he should have paid him $616.88 or $182. There was no pretense on the part of defendant that he had paid more than $182. There is then no ground for invoking the presumption of payment.

The judgment is affirmed.

Affirmed.

Bean, Rand and Belt, JJ., concur. McBride, C. J., concurs in result.

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