
    Riddle v. Backus.
    1. Evidence: statute of limitations. When the statute of limitations is interposed against a claim for work and labor under a contract which, if proved, takes the claim out of the statute, evidence to prove the contract and the value of the services is competent.
    2. -: contract proved by parol: statute of frauds. A contract for work and labor to be performed and to be paid for after the death of the employer may be proved by parol; and such a contract is not within the statute of frauds since the death might occur within a year.
    3. Statute of limitations: contract. Under a contract for work and labor to be paid for after the death of the employer, the statute of limitations will not commence to run until after the occurrence of that event.
    
      
      Appeal from Des Moines Circuit Court.
    
    Thursday, March 19.
    Action upon a promissory note, dated at Darien, (N. Y.) Nov. 20, 1865, for ten hundred and forty-seven dollars, payable to Hannah Backus or bearer, five years after date, with use. The action was commenced October 11, 1871. The answer admits the execution of the note, denies the capacity of plaintiff to sue, and sets up a counter claim for work and labor for seventeen years, from 1830 to 1847 inclusive, in managing a farm, at $150 per year,........................$2,550.00 1852, to removing plaintiff’s intestate to a different farm,....................................... 5 00 1855, to settling claims with railroad,............. 10.00 1858, to moving her again,....................... 5.00 . 1865, money paid for her,....................... ' 6.50
    Amounting in all to the sum of..............$2,576.50 aud defendant asks judgment for balance. There was a reply in denial, and a j>lea of the statute of limitations. A jury trial resulted in a verdict and judgment for defendant for $1,309.13. The plaintiff appeals.
    
      Samuel K. Tracy and M. D. Browning, for appellant.
    
      Halls <& Baldwin, for appellee.
   Code, J.

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.

2.-.- eon-by úaroi: statute of frauds: The testimony was competent and could not be excluded on 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.  