51 Vt. 366 | Vt. | 1879
On the facts found by the County Court the action is barred by the Statute of Limitations as to the defendant, unless the payment of August 24, 1871, operated to remove the statute bar as to him. Section 28, c. 63, Gen. Sts., — the chapter which relates to limitations of actions — provides : “ If there shall be two or more joint contractors, or joint executors or administrators of any contractor, no one of them shall lose the benefit of the provisions of this chapter so as to be chargeable by reason only of any payment made by any other of them.” This section is a limitation of the common-law right of.one joint contractor to act as the agent of the other joint contractors in making a payment on the common debt so as to postpone the running of the Statute of Limitations as to them all. Under the provisions of this section, the only question is whether the payment of August 24,1871, was made by the defendant within the meaning of the statute. He passed the money to the plaintiff. But it is found that it was the money of Frank W. Corliss, another signer of the note, and that the defendant handed the money to the plaintiff at his request, and so informed the plaintiff at the time. This made the defendant the agent of Frank W. Corliss in making the payment, of which fact the plaintiff had knowledge, so that he was not misled in regard thereto. If the plaintiff has slumbered upon his rights against the defendant by reason of that payment, it is his own fault, and not the fault of the defendant. When the defendant informed the plaintiff that the money for that payment was furnished by Frank W. Corliss, and that he was passing it over to him at the request of Frank W., in legal effect he told him that it was a payment made by Frank W., and that he had no part in it, except as the agent of Frank W. He had no occasion to go further, and enter a protest that he was not to be affected by it. The section of the statute cited had already done that for him. When he acquainted the plaintiff with the fact that it was a payment made by Frank W. Corliss, he thereby negatived all presumption that it was his payment, arising from the fact that he was the instrument in passing the money to the plaintiff, and left it to have such effect only as a payment made by Frank W. Cor
Judgment affirmed.