
    Hall, Respondent, vs. Stevens, Appellant.
    
      January 15
    
    February 5, 1895.
    
    
      Conversion: Limitation of actions: Waiver: Fraud: Evidence.
    
    1. At the close of his charge the trial judge stated that the question whether the action was barred by the statute of limitations was-raised by the pleadings, but, inasmuch as it had not been insisted, upon on the trial, he thought it unnecessary to say anything to-the jury about it. This statement not having been objected to by defendant’s counsel, it will be assumed on appeal that defendant had waived that defense.
    •1. In an action for the conversion of personal property commenced more than six years thereafter-, plaintiff alleged that defendant had fraudulently concealed the fact from him until a short time before the action. Held, that it was not error to allow plaintiff to show when and from whom he obtained knowledge thereof, although defendant was not then present, it being stated by the court that such evidence was not to be considered as evidence of the conversion.
    Appeal from a judgment of the county court of Winnebago county: 0. D. Cleveland, Judge.
    
      Affirmed.
    
    On June 4, 1881, one Charles E. Warner bought a buggy from the plaintiff, and to secure the payment of $35 of the purchase price thereof gave back to the plaintiff a note for that amount, secured by a chattel mortgage on the buggy and certain crops. Said mortgage was filed June 6,1881. Thereupon Warner sold the buggy to Julius Stevens, who-died soon after. On March 29, 1893, the plaintiff commenced this action in a justice’s court, and alleged in his complaint, in effect, that April 25, 1882, the defendant, son of the said Julius Stevens, deceased, unlawfully took, carried away, and converted said buggy to his own use, and fraudulently concealed the fact from the plaintiff, to his damage in the sum of $40. The defendant answered by way of a general denial, and setting up the six years statute of limitation. The plaintiff recovered judgment in the justice’s court, and the defendant appealed tberefrom to tbe county court. Upon tbe retrial in tbe county court, tbe jury returned a verdict in favor of tbe plaintiff for $19.46. Erom tbe judgment entered thereon tbe defendant appeals.
    For tbe appellant tbe cause was submitted on tbe brief of James Freeman.
    
    
      F. W. Houghton, for tbe respondent,
    to tbe point that tbe statute of limitations does not begin to run till tbe fraud is discovered, cited R. S. sec. 4222, subd. 1; Wood, Lim. of Act. § 183, and cases cited in note 2, p. 382; Manufacturers' Bcmk v. Perry, 144 Mass. 313; Gibbs v. Guild, 9 Q. B. Div. 59; Bailey v. Glover, 21 Wall. 342, 341-349; Munson v. Ilollowell, 26 Tes. 415; Stidham v. Sums, 14 G-a, 181; Ger-rish v. Seaton, 13 Iowa, 15; Glews v. Traer, 51 id. 459; Perry v. Wade, 31 Kan. 428; Dufitt v. Tuha/n, 28 id.. 292; Fritschler v. Koehler, 83 Ky. 18; Pealee, Appellcmt, 80 Me. 50; Kelley V. Kealley, 16 id. 11; Humphrey v. Carpenter, 39 Minn. 115; Hughes v. Dittrell, 15 Mo. 513; Pa/rker v. Kuhn, 21 Neb. 413; Douglas v. Flkms, 28 N. H. 26; Decker v. Decleer, 108 N. T. 128; Bank v. Mclntire, 40 Ohio St. 528; Hughes v. First Hat. Bank, 110 Pa. St. 428; Calhoun v. Bwrton, 64 Tex. 510.
   Cassoday, J.

Error is assigned because the trial court did not bold that tbe plaintiff’s claim was barred by the statute of limitations. At the close of tbe charge, tbe court stated to tbe respective counsel that “ there is a question raised here by tbe pleadings as to whether this cause of action accrued within six years, but, inasmuch as it has not been insisted on on the trial, I don’t think it is necessary to say anything to this jury about it, and I -will let what I have said stand as my charge, to the jury.” This court has repéatedly held, in effect, that where the trial court thus makes a statement of fact in regard to the case, which is acquiesced in by coungel by failing to make any objection or correction at tbe time, tbe same must be regarded as a verity in tbe case. Ye must therefore assume that tbe defendant waived tbe defense of tbe statute of limitation. Tbe theory of tbe plaintiff was that tbe fact of tbe buggy being fraudulently disposed of by tbe defendant was unknown to tbe plaintiff until a short time before tbe commencement of this action. Ye perceive no error, therefore, in allowing tbe plaintiff to prove when and from whom be obtained such information, merely because tbe defendant was not present at tbe time; especially as tbe court remarked, at tbe time of tbe ruling: “ Of course, this is no evidence to be considered by tbe jury that Stevens took tbe buggy.” Tbe evidence is sufficient to support tbe verdict.

By the Court.— Tbe judgment of tbe county court is affirmed.  