Benton v. Holland

58 Vt. 533 | Vt. | 1886

The opinion of the court was delivered by

Taft, J.

Assumpsit to recover the amount due on promissory notes. Plea, Statute of Limitations. The claims in suit are barred unless kept alive by payment made by an assignee in a proceeding in insolvency, which the plaintiff claims was invalid for the reason that it was had while the United States Bankruptcy Law was in force. It is conceded in argument that payment made by an assignee under valid proceedings is not such a payment as to interrupt the running of the statute as against the original debtor. The plaintiff claims that by reason of the alleged invalidity of the proceedings, the payment made by the assignee had the same effect to keep the claim alive as though made by the debtor himself. It is law in this State that part payment of a debt, if made without protestation against further liability, is a recognition and acknowledgment of the debt, from which a promise to pay the residue will be implied. Ayer v. Hawkins, 19 Vt. 26; Goodwin v. Buzzell, 35 Vt. 9. A part payment of the debt must be made under such circumstances that a promise to pay the remainder can be implied from them. The case at bar does not depend upon the validity or invalidity of the insolvency proceedings, but upon the circumstances attending the payment. Can you imply from the circumstances in this case a promise to pay the amount remaining due on the notes? We think not. The payment was made by one who was not a party to the contract, and under no obligation to pay the debt; and it would be unreasonable to say that it carried with it any evidence of a renewed promise of the defendants to pay what remained due. After the insolvent proceedings were commenced the defendants did nothing, save to submit to. them. They permitted their property to be taken and applied upon the claims against them for the purpose of extinguishing the demands, not of recognizing them as continuing liabilities. Their whole purpose was to end them. The creditors took the defendants’ property at the time the proceedings were begun, and took it, the debtors not objecting, by force of, or rather under the forms of, law, and the assignee acting for the creditors made the payment; and, as was said in Bowker v. Harris, 30 Vt. 424: “ It would be doing violence to the obvious reason and sense of the transaction to imply from it a promise to pay. The implication is directly the other way.” It has been held in Iowa that an enforced part payment will not affect the running of the statute. Thomas v. Brewer, 7 N. W. Rep. 571. The payments in the case at bar, bear a strong resemblance to enforced ones.

Let the judgments be affirmed.