Bissell v. Adams

35 Conn. 299 | Conn. | 1868

Hinman, C. J.

We are of opinion that the acknowledgment of these debts as still subsisting, by the payments made by Wilmarth from time to time, almost up to the time when this suit was commenced, are, under the circumstances, a sufficient recognition of them as still due, to remove the bar of the statute of limitations as to both of the defendants. It is true that an acknowledgment by one partner after the dissolution of the partnership, and after the statute has attached to the debt, will not generally remove the bar created by the statute. Especially is this so if there is ground for supposing that the acknowledgment was collusively made for the purpose of onerating a joint promisor with the payment of the debt. Coit v. Tracy, 8 Conn., 268. But in this case the plaintiff became the owner of the notes before the partnership of Wilmarth & Adams was dissolved, and a long time before the notes became due; and although the payments were made to him by Wilmarth, yet there was nothing in the circumstances under which.they were made to lead any one to suppose that they were made on his account alone; and being made before the statute had attached to the notes, the plaintiff had a right to infer that they were made on account of both parties, because both were at the time liable.

Indeed, after the decisions upon this subject in this court we must consider the question as settled in Connecticut in a case like this. We perceive no difference in principle between this case and that of Clark v. Sigourney, 17 Conn., 511. That was a case of two joint makers of a note, and it was expressly held that a promise made by one of them to pay it was sufficient to take the case out of the statute of limitations against both; and as the promise in that case was made before the statute had attached, it seems in its circumstances to be almost identical with the case under consideration. And the current of decisions by this court has been uniform on this subject. Lord v. Shaler, 3 Conn., 131; Bound v. Lathrop, 4 Conn., 336; Caldwell v. Sigourney, 19 Conn., 37. It is unnecessary therefore to discuss the propriety of our decisions upon the subject, as we ought to be controlled by them, whatever may be thought of their propriety in every instance.

We advise the Superior Court that the plaintiff is entitled to judgment for the amount found due by the auditor.

In this opinion the other judges concurred.