Brayton v. Rockwell

41 Vt. 621 | Vt. | 1869

The opinion of the court was delivered by

PiERPOiNT, C. J.

The only question presented by the bill of exceptions is, whether what was said by the defendant to the plaintiff at their interviews in May, 1862, and in the spring of 1868, was sufficient to take the plaintiff’s claim out of the statute of limitations. This action is brought upon three promissory notes. The notes were all barred by the statute before the interview in May, 1862. On that occasion, the plaintiff asked the defendant to renew the notes by giving a new note, or by endorsing something on them. The defendant declined to renew the notes in either manner, but said: “ I will come up soon, and have a general settlement of accounts, and if all accounts are all right, other matters will be all right.” In the spring of 1863, the plaintiff again asked the defendant to take up these notes and give a new one, or to endorse something on them, so as to revive them. The defendant again refused, but said: “ We have a long string of accounts to look over. If I find that all right and satisfactory, the notes will bo all right.” The declarations made on the two occasions are substantially the same. These declarations may be regarded as a recognition of an original indebtedness by reason of the notes, but they do not contain an express promise to pay, either absolute or conditional. Will the law imply a promise therefrom? In Phelps v. Stewart, 12 Vt., 256, it was held that to prevent the operation of the statute, there must be an acknowledgment of the debt as still due, with an apparent willingness to remain liable for it, or at least without any avowed intention to the contrary. The acknowledgment of an original indebtedness is not sufficient. Brainerd v. Buck, 25 Vt., 573. The acknowledgment must be such that a promise to pay the debt can be implied'from it. The naked acknowledgment of an existing indebtedness is not sufficient, as that is consistent with a refusal to pay or a determination to take advantage of the statute. The acknowledgment must be of such a character, or made under such circumstances as to indicate, or to be consistent with, a willingness to remain or be held liable for the debt. This is substantially the rule as recognized in all the eases since that of Phelps v. Stewart, and especially in Moore v. Stearns, 33 Vt., 308, where Judge Kellogg fully collates all the cases in this state.

In tbis case, at tbe time the plaintiff called upon the defendant, in May, 1862, both parties understood that the notes were barred by the statute, and that the defendant was discharged from all legal liability upon them. When asked by the plaintiff to renew his liability, he refuses; thus denying his present liability, and showing a determination not to become liable. At the same time he says, if, on looking over our. accounts, I find all right, your notes will be all right, he does not promise to pay the notes, if he finds the accounts right, or to make the notes right, or to do anything in respeet to them. Suppose at the time he had said the notes are all right, but I won’t renew my obligation to pay them, certainly no promise to pay them could be implied from such a statement. The whole declaration would have been inconsistent with such a promise. So of the declaration which he did make, when taken in connection with his refusal to renew the notes, which was at the same time, he may have considered the notes all right, or that they would be all right, for the very reason that they were barred by the statute. We think it manifest from the whole taken together, that he did not intend to renew his obligation to pay the notes ; and the plaintiff must have so understood it. This is shown by his second application to the defendant to renew the notes, or to do something to revive them.

There is not sufficient in this case to show that the defendant acknowledged a then existing liability or indebtedness, or a willingness to remain liable, or from which' to imply a promise to pay the notes.

The judgment of the county court is affirmed.