49 Vt. 350 | Vt. | 1877
The opinion of the court was delivered by
It does not appear by the report, of the auditor, that any defence was made on the trial before him except the Statute of Limitations. Hence, we infer that the defendant assented to the trial and adjudication by the auditor, of the claims growing out of the lease of the plaintiff’^ farm to him. This is to be treated as a waiver of any objection that might otherwise have been made to the adjudication of said claims on account of the form of action.
The evidence introduced by the plaintiff to take his claims out of the Statute of Limitations, was the letter written to him. by the defendant on the 5th day of September, 1870. That letter, it appears, was written in answer to letters he had previously received from the plaintiff, and in it he says: “ In regard to settlement, I am ready any day after this week, and I am willing to leave it out to be settled; still, if we could settle it ourselves, it would be better,” and asks the plaintiff to write when he can or will look this business over. These expressions are unequivocal admissions of the existence of an unsettled account between the parties, and of his readiness, and willingness to settle it, and this, by the decisions in Blake & Hart v. Parleman, 13 Vt. 574, and Hunter v. Kittredge’s Estate, 41 Vt. 359, and the cases there cited, is sufficient to take the claims out of the Statute of Limitations, unless the admissions were accompanied with an unwillingness to pay the balance that might be found due on such settlement. In the letter above referred to, after saying that he was not disposed to wrong the plaintiff out of a cent, he says that he don’t see where he gets his statement of what he put onto the farm; and states the amount that he and the plaintiff had each put onto the farm; from which it would appear that he had put on more than the plaintiff had. We do not think this language can be construed as. the expression of an unwillingness to pay any
In Blake & Hart v. Parleman, the defendant requested one Williams to call upon the plaintiff and settle his account, saying that he had .paid them more than was due; and it was held that the defendant’s saying to Williams that he thought he had more than paid the plaintiffs, did not show an unwillingness to pay a balance, should one be found due. So that the legal effect of the letter’as evidence was, to remove the statute bar ; and judgment is reversed, and judgment on the report for the plaintiff for $195.66, and interest from the 12th of September, 1876.