arising number this adequate article three not otherwise in forcible i take it that article three governing commercial paper and to funny things happened within the facts of this case the defendant's brother of the wall pops up and writes a personal check to the point of which brings him back within none was going to me i did it for the corporation but we understood that in fact it really was the corporation was getting the money for him ok that's certainly a possibility if he didn't put it in his pocket and it there's no statement as to from whom but if any payment is received that payment in and of itself will start a new ten year period i mean you know nobody goes around paying other people's debts out of the goodness of their hearts that just doesn't happen in the real world and i think the court is bound to point out what's going on and it just entered from mr mallison the issue that you make relative the representation of a position taken in another proceeding same party same issue which then brought this proceeding and now with me in to build your will who raises it says would agree upon was that lewis never made paid well he was a member of the preparation the did he directed that bad preparation make those payments one could say  those facts and you say well wait a minute this is an attempt to manipulate a case this is a rich family who run the favor for whatever reason in the world doesn't work like that that no that one hundred thousand dollars to be repaid with interest but the question arises what is that interest i was it to be determined your pa but that's not the standard we use in the courts of law that's the issue and the court determined liability only and set a trial for the interest rate we did appear at the trial we brought forth an accountant we had an affidavit the defendant did not refute the accountants determination of the interest and some  court determine the interest based on the accountants proffer testimony with respect to the a political statue of limitations here i think it is clear based on the foregoing argument that it is either the ten year statute of limitations under section t six or the five years the actual imitation of this action to all five and it is the plane's plaintiff's position that regardless of the resolution of that issue this complaint was timely filed and that is so because of two reasons first the complaint was filed approximately two months after the plaintiff may demand upon the defendant to repay this loan and second because the complaint was filed within four years of the last payment which this minutely caused his company to repay to the plaintiff for amount owed under the note this is taking aside the issue of whether the brother in law made a payment or not the last payment which of this limitations under either section two of six or two of the case we said to our brief was st francis medical center versus vernon and in that case a hospital brought an action against a patient for services they rendered progeny six years ago and attached to the complaint was an item my statement of account which showed that any defendant made a payment for the services rendered progeny six years after the services were runners and there the court held that the statue of limitations under section two zero five was told by the payments made that offended him is that he caused his company which he was president director and shareholder of to make numerous payments to the plaintiff on account of this note for the money owed to the plaintiff the last payment being caused by this defendant was september twenty sixth two thousand and three again within four years of the of the filing of the complaint we also believe that where there is no time stated for repayment the repayment requires a demand in my case on makes this clear as well we cited schreiber versus hackett in the case of a commodities trader loan twenty five hundred dollars to another commodities trader in consideration for an oral promise to repay the loan and demand approximately five years just over five years later the plaintiff may demand on the defendant and four months later the complaint was filed the parties agreed in that case that the five year statute of limitations under section two or five applied just agree interpretation is that an actual demand for performance is an express condition precedent to the duty of performance thus an action does not lie unless demand has been made and the statute of limitations begins to run from the date of demand in this case regardless whether the limitation period runs from the time of the manned or from the time the defendant immediately caused payment to be made on this note cause of action is filed within the five year limitation period under section two will five whatever was is that i don't believe so i believe the defendant admitting his requests for admissions that he caused his company to make these payments on account of the note that he owed it to the plaintiff that's undisputed that's in the request for missions and that is up until september twenty sixth two thousand and three so the fact that the defendant missed that he caused these payments to be made to the plaintiff on account of this note i think makes that no longer