The plaintiff in error makes two objections to this record. 1. He denies the sufficiency of the original petition. 2. He insists that, the court of common .pleas erred in refusing to charge the jury as requested.
1. The first objection is based on the statute of limitations, which provides that actions on contracts or promises in writing can only be brought within fifteen years after the cause of action shall have accrued. Sections 12 and 13 of the code. The note sued on matured more than fifteen years before action brought. An exception, however, to the general rule of the statute is provided in section 24, thus : “ In any case founded on contract, when any part of the principal or interest sball have been paid, ... an action may be brought on such ease within the period prescribed for the same, after such payment,” etc. Fifteen years from the date of payment on the note had not elapsed before suit was brought. It having been decided, however, that where one of several debtors, though jointly liable, makes partial payment, the statute does not stop running in favor of those who have not paidnorauthorized payment to be made (16 Ohio St. 569; 25 Id. 349), the .plaintiff in error makes the point that the petition is defective in not averring that the payments were -made by him -or by his authority.
In actions other than those relating to the title of real estate, the rule, that a party, who seeks the protection of the statute of limitations, must plead it, has never been departed from in this state. It has been held, it is true (8 Ohio St. 215), that in a case where it appears on the face of a pleading that the cause of action therein stated is barred by the statute, the bar may be insisted on by a demurrer.
*250- When the bar of the statute is thus pleaded by a demurrer, it would unquestionably be the better practice to state the ground of demurrer specifically; but, without, holding that such specific statement is necessary, it is quite clear that if the statute be not pleaded by answer or demurrer in a proper, case the defense of the statute is to be regarded as waived. We do not overlook the fact that section, 89 of the code provides that “ if no objection betaken (to a petition) either by demurrer or answer, the defendant shall be deemed to have waived the same, except only the objection to the jurisdiction of the court, and that the petition does not state facts sufficient to constitute a cause of action.” But, notwithstanding an objection to the sufficiency of the facts is not declared by this section to be waived when not taken either by demurrer or answer, it by no means follows that a statement of facts sufficient to constitute a cause of action before its passage is now, by virtue of the section, made insufficient. The law, since the code, as it was before, is that a statement of facts otherwise sufficient to constitute a cause of action will support a judgment, although upon the face of the pleading it appear that the time of the statute had run against it, unless the bar of the statute is insisted upon either by the demurrer or answer.
In this case the bar was not insisted upon by answer. It is true, a general demurrer was filed to the petition, but afterward, and before the demurrer was determined, the defendant answered over to the merits of the action. Upon this answer issues of fact were joined and trial had. It must, therefore, be considered that the demurrer was waived or withdrawn. Calvin v. State, 12 Ohio St. 60. It is, therefore, too late now on error to insist on the statute of limitations.
If, however, the demurrer had been insisted on, I think it should have been overruled. The payments,, as alleged in the petition, were admitted. True, it is not alleged by whom they were made, but, when made, the defendant was liable on- the note, and the payments inured to his benefit. *251There is no legal presumption or inference, from anything-stated in the petition, that they were not made by him. If made by him, the cause of action was not barred as-against him. It is only where it appears affirmatively upon the face of the petition that the cause of action therein stated is barred by the statute, that such bar can bo pleaded by demurrer.
2. In regard to the alleged error in refusing to charge as-requested. We think the whole law of the case embodied in the requests to charge was given to the jury in the general charge of the court. Not, indeed, that the charge contained all that was requested, but all that the defendant had a right to demand. The principal objection arises on the fifth request. The'' point is, that the charge as given carefully excluded the defendant from the presumption' of an agreement to extend the time of the note arising from the payment and receipt of the $210, on January 28, 1856, and the indorsement thereof on the note as interest. That the facts referred to tended to prove such agreement, and, in the absence of other circumstances, such agreement would be presumed or inferred from such facts may be conceded yet such presumption or inference was a matter for the jury as triers of the fact to draw, rather than matter of law to be given in charge by the court. When the fact in issue is to be ascertained from other facts in evidence,, the sufficiency of the latter, as a general rule, is for the jury and not for the court to determine. The conclusion is one of fact and not of law.
The real question in this case was as to existence of an agreement between plaintiff and Dickey to extend the time of payment. On this question the court told the jury that “ if Woodford received the money and the indorsement on the note understanding it so — understanding that Dickey had paid two years’ interest — then Woodford could not collect the note till the two years had expired, and Yore would be discharged from liability if he was a surety.” The-charge on this point was as favorable to the defendant as-he had a right to ask. Motion overruled.