balance of the purchase price, to which he agreed; that the plaintiff at the same time agreed to and afterwards did assist the defendant to get the remainder of said purchase price, which was paid to it on January 7, 1884; and that on January 12 the plaintiff duly demanded of the defendant payment of said three thousand dollars with legal interest thereon from June 1, 1875, which it refused.

The defendant demurs, for that, "it appears on the face of the complaint that said action was not commenaed within the time prescribed by law," and "is barred by the statute of limitations.'

The code of C. P., section 66, provides that the defense of the statute of limitations may be made by demurrer when it appears on the face of the complaint that the action has not been commenced within the period prescribed by law.

The contention of the defendant is that it appears from the complaint, that whatever was to be paid to the plaintiff for his services in procuring a purchaser of the property, was due and payable on May 31, 1875, when the service was performed, or at the farthest on July 26, when the purchaser paid the first installment of the purchase money and the plaintiff received the two-fifths of the commission claimed by him, and that at the expiration of the six years thereafter, to wit: July 26, 1881, the claim for the balance of three thousand dollars was barred by the lapse of time.

The plaintiff's answer to this proposition is, that by the agreement of July 26, the payment of his claim was postponed until the defendant should receive the remainder of the purchase money, which did not occur until January 7, 1884, at which time the statute commenced to run against the claim and not before, citing Webber v. Williams College, 23 Pick., 302; Ang. Lim., 111, section 120; Lichty v. Hugus, 55 Pa. St., 434; Irving v. Veitch, 3 Mees. & Wels., 90.

According to the complaint this three thousand dollars was due the plaintiff at the date of this agreement, and had been since June 1; from which time he seeks to recover interest on that sum. Without doubt, if the arrangement made between the parties on July 26, 1875, constituted a valid agreement, the day of payment was postponed until January 7, 1881, and the statute did not commence to run until that time.

But it does not appear that there was any consideration for the plaintiff's promise to delay action in the premises. The defendant neither gave nor forbore anything in consideration of or on account of the plaintiff's promise While, on the other hand, the plaintiff undertook the further service of helping to obtain the remainder of the purchase money without, as appears, any compensation therefor. The promise was then a mere nudum pactum, which did not, in law, prevent the plaintiff from maintaining an action in the meantime, to recover whatever was due him from the defendant. And from the time the plaintiff's right to sue commenced, the statute commenced to run against it, and cut it off by June 1, 1881.

As was substantially said in Chace v. Chapin, 130 Mass., 128, of a similar agreement between the maker and payee of a note, to

postpone the day of payment thereof: There is no advantage to the defendant nor disadvantage to the plaintiff, growing out of the agreement, which can constitute a consideration for the plaintiff's promise to postpone the payment of the sum then due him, and therefore it is not binding on him. Notwithstanding the promise, he could, at any time within six years from June 1, 1875, have maintained an action against the defendant to recover the unpaid commission. See also, Sharpley v. Abbott, 42 N. Y., 447.

The cases cited by counsel for the plaintiff do not support his contention in this respect.

In Irving v. Veitch, supra, the agreement to postpone the payment of the defendant's notes was made on a valuable consideration. Besides, there were payments made on them within six years before the action was commenced, which circumstance of itself was sufficient evidence of an acknowledgment whereon to raise an implied promise to pay the notes.

In Litchy v. Hugus, supra, it was decided that the statute will not run against the claim of an attorney for compensation for services until the undertaking, in which he is engaged, is performed or the relation of attorney and client is terminated. To the same effect is the citation from Angel, supra.

But the relation of attorney and client never existed between these parties. And, however analogous the relation between them may have been to that of attorney and client, it came to an end on June 1, 1875; and the only relation that existed between them. thereafter, was that of debtor and creditor. The plaintiff was not employed for a continuous and indefinite service, but to do a specific thing-a job-to find a purchaser for the defendant's land at an agreed compensation. This he did on May 31, 1875, and was then entitled to his commission.

Afterwards the plaintiff, on receiving two-fifths of what was due him, agreed to wait for the payment of the remainder until the happening of a certain event.

The case of Webber v. Williams College, supra, is not in point. The plaintiff held the note of the defendant, which would become due within the year. The defendant wrote to the plaintiff asking a year's delay, and saying, that the right of the latter to sue should not be prejudiced by the delay. The creditor answered, denying the request, but did, in fact, delay bringing an action on the note for a year and until the statute had run.

The defendant pleaded the statute, and the court held with the plaintiff. The matter is very summarily and somewhat obscurely disposed of; the court saying that the defendant's offer was "a good waiver of the statute of limitations." The expression, "waiver of the statute," is misleading and not applicable to the case. A party may be said to waive the statute by not pleading it, when he might, but not otherwise. And the better opinion seems to be, that the bar of the statute cannot be waived or renounced in advance, as that would put it in the power of individuals to dispense with the law

contrary to the public policy and peace it is intended to promote and preserve: Ang. Lim., sec. 247, note.

But whatever may be said of the grounds of the decision, there is no doubt of its correctness. It was a clear case of an acknowledg ment of the existence of the debt by the debtor, under circumstances that indicated a willingness to pay the same, from which the law implied a promise to pay that might be enforced by an action within the statutory period thereafter. And so the case is characterized in Sharpley v. Abbott, supra, 447, and in Angel on Limitations, sec. 247, note.

And so the agreement in this case, so far as the defendant is concerned, may be the equivalent of an acknowledgment of the debt. But it does not appear from the complaint to have been reduced to writing and signed by the defendant.

The code of C. P., section 24, provides that, "No acknowledg ment or promise is sufficient evidence of a new or continuing contract," to take a case out of the operation of the statute of limitations, "unless the same is contained in some writing, signed by the party to be charged thereby."

But, I presume, the rule in pleading a contract within the statute of frauds, applies in this case. It is sufficient to allege the matter according to its tenor or legal effect, without stating that it was in writing, and, if the adverse party wishes to take advantage of the statute, he must aver that it was not in writing, as a matter of defence or reply, as the case may be: Lamb v. Starr, 1 Deady, 353.

Assuming, then, that the agreement of July 26 was in writing, it was, in effect, a valid acknowledgment of an existing debt that the defendant was willing to pay. And, from this, the law would imply a promise by the defendant to pay, grounded on the consideration of the antecedent liability, from which point of time the statute of limitations commences to run against the claim anew: Bell v. Morrison, 1 Pet., 351; Ang. Lim., chap. 22.

The acknowledgment, however, does not take the case out of the operation of the statute prospectively, but only as to the past. It commences to run again simultaneous with the new promise, and in six years thereafter bars the remedy thereon.

Now, the acknowledgment, in this case, being made on July 26, 1875, the statute had run against the action of the new promise, on the same day, in 1881.

It is admitted that this action is barred by lapse of time, unless the transaction of July 26 has the effect to save it. But, as we have seen, it is void as an agreement to postpone the day of payment for want of a consideration; and, though good as an acknowledgment from which the law would imply a new promise to pay, an action thereon has since been barred by lapse of time.

The demurrer must be sustained, and it is so ordered.

CONROY V. OREGON CONSTRUCTION COMPANY.

March 6, 1885.

CONTRIBUTORY NEGLIGENCE.-What is known as "contributory negligence" is a defense; and therefore in an action by a servant against his master, to recover damages for an injury to the person sustained while in the employment of the latter, the plaintiff need not allege that his own negligence did not contribute to the result.

"ON OR ABOUT" A CERTAIN DAY.-In an action for an injury to the person arising from the negligence of the defendant, it was alleged in the complaint that the injury occurred "on or about" a certain day; Held, that this was not a statement of any distinct day or time and therefore it did not appear from the complaint that the action was barred by lapse of time; and such defense, if made at all, must be made by answer.

TIME IN PLEADING.-When time is not an essential element of the cause of action, under the code, a demurrer will not lie to a complaint for want of a date to a material fact alleged therein, but the remedy for such omission is a motion to make more definite and certain in this respect; and if it appears on the face of such amended complaint that the action is barred by lapse of time, the defense may be made by demurrer.

ACTION for damages for injury to the person. The opinion states the facts.

C. E. S. Wood, for the plaintiff.

George H. Williams and George H. Durham, for the defendant.

DEADY, J. This action is brought by the plaintiff, a citizen of California, against the defendant, a corporation under the laws of Oregon, to recover fifty thousand dollars damages for injuries to his person, sustained while in the employ of the defendant."

The action was commenced on November 12, 1884.

The complaint alleges that "on or about" November 13, 1882, the plaintiff, while in the employ of the defendant as foreman of a gang of Chinese laborers, engaged in the construction of the railwaay known as the "Oregon Short Line," near Meacham's station, in this state, was ordered by George Gray, a person in the immediate charge of the business for the defendant, "to fire certain blasts;" that in so doing he "exercised all possible skill and precaution,' but, nevertheless, the said blast exploded prematurely and caused great injury to the plaintiff, including the loss of his sight; and that the cause of said explosion "was the defective and faulty fuse supplied to the plaintiff by the defendant" of which the latter had

notice.

The defendant demurs, for that, (1) It appears the action is barred by lapse of time; and, (2) The complaint does not state facts sufficient to constitute a cause of action.

On the argument, the only point made in support of the second cause of demurrer, was, that it did not appear from the complaint that the plaintiff was aware of the defect in the fuse; and therefore it does not appear but that his own negligence contributed to his injury.

But the allegation in the complaint that the plaintiff used "all possible skill and precaution," in firing the blast in question, is equivalent to an allegation that he was not guilty of any negligence in the premises. And if knowledge of the faulty condition of the fuse would, under the circumstances, make his conduct negligent,

an averment that he acted prudently or not negligently, is equivalent to a denial of such knowledge.

But I do not think it necessary for the complaint to contain any allegation on the subject. The law does not presume that anyone is negligent-especially when such negligence may or will result in his own personal injury.

True, if it appears on the trial, whether from the evidence of the plaintiff or defendant, or both, that the former was guilty of "contributory negligence," as it is called, he cannot recover. But he is neither bound to allege or prove that he was not guilty of such negligence, in order to make out a case against the defendant. It is matter of defense; and if the defendant would avail himself of it, he must allege and prove it.

So much upon principle; but on authority the rule is unsettled in the state courts. In Thompson on Negligence, 1,176, it is stated that eighteen of the states of this union are nearly evenly divided on the question, whether "contributory negligence" is a part of the plaintiff's case or a matter of defense; while in New York and other states the decisions are irreconcilable. But the learned author, speaking for himself, says, 1,175, that such negligence is properly a matter of defense.

Since the publication of this work the supreme court of this state appears to have decided that it is a part of the plaintiff's case. At least there is a dictum to that effect in Walsh v. O. R. & N. Co., 10 Or., 253.

But the decisions of the national courts, including the supreme one, are otherwise, and that is sufficient to control the action of this court.

In Knaresborough v. Belcher S. M. Co., 3 Saw., 446, it was held that a complaint which only alleged that the plaintiff sustained an injury from a defective platform negligently provided by the defendant was sufficient; and that knowledge of such defect on the part of the plaintiff, as evidencing contributory negligence, must be shown by the defendant.

In Holmes v. Oregon and California Railway Co., 6 Saw., 289; this court held that contributory negligence is a defence, the burden of proof to establish which, is on the defendant; at the same time saying, " Any other rule than this, violates all the analogies of the law, and is practically illogical and unjust."

In Railway Company v. Gladmon, 15 Wall., 401, the supreme court decided that want of care on the part of the plaintiff, or what is termed "contributory negligence," is a defence.

The first ground of demurrer is based on subdivision 7 of section 66, of the code of C. P., which permits a demurrer to the complaint when it appears therefrom that the action has not been commenced within the time limited by law. According to the complaint, the injury was sustained by the plaintiff, and the right of action therefor accrued "on or about" November 13, 1882; and the action was commenced on November 12, 1884. The action was barred, Code