The complaint in this action is as follows:
"The plaintiff, J.E. Thompson, as his cause of action against the defendant, H.P. Larsen, states that, prior to May 13, 1917, he was engaged in the business of fishing for crabs on Alsea bav. and that he was making more than the sum of $5.25 per day at said business; that at all times herein expressed, the *Page 430 said defendant owned a ranch consisting of about 1100 acres of land located about 20 miles north of Florence, Oregon, on the Pacific Coast, that on or about May 1, 1917, the said defendant desired to employ this plaintiff to work upon, manage, and operate the said farm for him and promised this plaintiff that if he would quit his business of fishing for crabs and accept employment from the defendant in the management, working upon, and operating the said farm he would pay this plaintiff more money than he was making in said business in which he was then engaged; that this plaintiff accepted employment from the said defendant for said consideration and worked for the said defendant upon his said farm for said agreed consideration from the morning of May 13, 1917, up to noon on September 8, 1917; that the total time which this plaintiff devoted to the said defendant in working upon, managing, and operating the said farm was 117 1/2 days; that the agreed consideration for the said services was more than the said sum of $5.25 per day, or a total of $616.88; that said defendant has paid this plaintiff the sum of $152.06 and not more to apply upon the consideration for the said services; and that there is now due from the defendant to the plaintiff for said services and entirely unpaid the sum of $464.88 with interest thereon at the rate of 6 per cent per annum from September 8, 1917."
The defense to this complaint is the general issue and new matter to the effect that the plaintiff did nothing but keep stock off of four acres of ground on the farm mentioned and that after the plaintiff quit work the parties had a full settlement by which it was agreed that there was due the plaintiff $182, which the defendant paid him. This in turn is denied by the reply. It will be observed that the action was commenced on November 4, 1922, more than five years after the cause of action accrued. The judgment *Page 431 went for the plaintiff for the full amount demanded and the defendant appeals.
The complaint is subject to some criticism in that it does not allege that the defendant knew or was informed what the plaintiff was making in the business of catching crabs, so that there may be some doubt as to whether the minds of the parties met on the amount to be paid. The only question presented on the appeal arose in this way, on cross-examination of the plaintiff. He was asked:
"Q. * * Why did you wait so long to bring the case?
"A. Because he was a brother-in-law of mine, living there, and I thought I could get the money any time that I attempted to settle with him.
"Q. You were needing money all the time weren't you?"
This question was objected to on the ground that it was immaterial. The court sustained the objection, whereupon the counsel for the defendant said:
"We expect to show by the witness that he was hard up, and needed money at the time."
The ruling of the court was, as stated:
"He had a right to wait five years if he wanted to, he was within the statute."
The ruling of the court thus made was excepted to by the defendant.
There is a species of evidence defined in Section 794, Or. L., thus:
"An inference is a deduction which the reason of the jury makes from the facts proved, without an express direction of law to that effect."
It is said in Section 796:
"An inference must be founded, —
"1. On a fact legally proved; and *Page 432
"2. On such a deduction from that fact as is warranted by a consideration of the usual propensities or passions of men, the particular propensities or passions of the person whose act is in question, the course of business, or the course of nature."
Considering the ordinary desire of men to possess their own property and to collect what is due to them, it would be admissible to show that the plaintiff, at the time the debt accrued, was in need of the money from which fact the jury could infer that in pursuit of such desire, heightened possibly by actual need, he had collected it. Either party has a right to produce any evidence relevant to the issue and to furnish for the jury a foundation for a legitimate inference. As said in Ayres v. Ayres, 69 N.J. Eq. 343 (60 A. 422):
"One ground for a presumption of payment growing out of lapse of time is that a man is always ready to enjoy what is his own. Whatever will repel this will take away the presumption of payment, and for this purpose it has been held sufficient that the party was a near relation."
On this ground last stated the court refused to apply the rule in that case because the litigation was between a widow and the estate of her deceased husband. It must not be confused with the statute of limitations, for in that same case the court stated:
"That a presumption of the payment of a debt arises where more than 20 years have elapsed since its accrual is well settled, but it is equally true that this presumption may be rebutted by an explanation of the delay, or the production of proof sufficient to satisfy the court that the debt remains unpaid, and it `does not act like a statutory limitation, but as a rule of evidence as well as a rule of public policy.'" *Page 433
In Young v. Doherty, 183 Pa. 179 (38 A. 587), the Supreme Court of Pennsylvania approved an instruction of this kind:
"Sometimes, however, a presumption of payment arises in a less period than twenty years; as, for instance, if it were shown that the plaintiff were in needy circumstances, and that the defendant was abundantly able to pay, the inference would naturally arise from such circumstances that some demand or effort to collect the note would have been made at a much earlier period than within sixteen years, which is about the time that has elapsed since this suit was instituted."
The following extract is quoted with approval in the Appeal ofLyons, In re Gilbraith's Estate, 270 Pa. 288 (113 A. 361), citing from Carpenter v. Hays, 153 Pa. 435 (25 A. 1127):
"The presumption grows stronger as each period of payment goes by. In the nature of things it is less potent against a claim for two or three months' wages than for 2 or 3 years'. * * As said by our late brother Clark in Gregory v. Com., 121 Pa. 611 (15 A. 452, 6 Am. St. Rep. 804), `The presumption will gather strength with each succeeding year, and the evidence to overthrow it must, of course, be correspondingly increased.'"
According to the syllabus in Hughes v. Hughes, 54 Pa. St. 240,
"A shorter period than twenty years aided by circumstances which contribute to strengthen the presumption of payment of a bond, etc., from lapse of time may be submitted to a jury as grounds for the presumption of the fact of payment. * *
"To aid the presumption of payment from lapse of time, evidence of the needy circumstances of the obligee and of the easy and solvent circumstances of the obligor, would in most cases be competent." *Page 434
In Garnier v. Renner, 51 Ind. 372, the defendant, a party to a note held by the plaintiff, and upon which the action was brought, offered to prove that the plaintiff came to him anxious to sell some stock in a corporation, saying that he needed the money, and persisted in that thought until the defendant purchased his stock at a discount. The court there said:
"Payment, like any other fact, may be proved by circumstantial, as well as direct evidence. In the absence of a statute of limitations, payment was presumed, in the absence of explanatory circumstances, after twenty years. But it might, and still may be inferred, by the jury or court trying the cause, from circumstances, coupled with the lapse of a shorter period. * *
"The circumstance sought to be proved by the defendant, and excluded by the court, was of such a nature as tended strongly to support the theory of the defendant, that the note had been paid."
In Bean v. Tonnele, 94 N.Y. 381 (46 Am. Rep. 153), it is said:
"The presumption of payment from a great lapse of time is founded upon the rational ground that a person naturally desires to possess and enjoy his own, and that an unexplained neglect to enforce an alleged right, for a long period, casts suspicion upon the existence of the right itself. This presumption may be fortified or rebutted by circumstances. The fact that a plaintiff 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 we think, a circumstance tending to fortify the presumption that the demand has been paid or otherwise satisfied."
See, also, In re Keenan's Estate, 73 Hun, 177 (25 N.Y. Supp. 877). The same rule of evidence is declared in Daniel v.Whitfield, 44 N.C. 294, Strong v. *Page 435 Slicer, 35 Vt. 40, Beckley v. Jarvis, 55 Vt. 348, andStone v. Hupper, 58 Vt. 409 (5 A. 387).
The testimony reported in the record is in some respects quite vague and contradictory as between the parties, making a close question of fact, so that each party should have the benefit of all the legitimate testimony he can produce. From the remark of the court in sustaining the objection to the testimony offered it seems that the learned trial judge confused the statute of limitations, which when properly pleaded is a bar, with the inferences to be drawn from the fact proved merely as a matter of evidence. The plaintiff's answer excusing his inaction on the ground of the relationship between the parties rather strengthened his position, and the defendant had a clear right to offset that by the pursuit of the further inquiry and show, if he could, that the plaintiff was in need of the money at the time. There was error as indicated.
BROWN, J., concurs in this dissenting opinion. *Page 436