Jones v. Sennott

57 Vt. 355 | Vt. | 1885

The opinion of the court was delivered by

Veazey, J.

The action is assumpsit upon a promissory note. The defence was a discharge in bankruptcy; to which the plaintiff replied a new promise. The testimony of the plaintiff tended to show a new promise, after the discharge in bankruptcy, to the plaintiff’s son Henry, acting in her behalf. The note in suit was a renewal of a former .note, but given before the bankruptcy proceedings were instituted. When the son had the talks with the defendant in which, as the son testified, the new promise was made, he had with him the old note, and did' not know that a new one had been given. Thei’e was but one debt. The son testified that the defendant promised to pay the indebtedness. The defendant in his testimony denied making any promise, but admitted that the son asked bim to pay something “ on the indebtedness, or something like that,” to his mother; and admitted that he did not owe her anything else other than the note in suit.

The court charged the jury, among other things, on the question of the alleged promise, that there must have been a mutual understanding between the defendant and the plaintiff’s son as to what the defendant was promising to pay, whether the old note or the new one, and that the son as well as the defendant must have understood what the promise applied to, that is, which of the two notes. To this, exception was taken. The court think this exception must be sustained. The material thing was whether the defendant promised to pay his debt to the plaintiff. There was but one debt, and the defendant knew it, and knew he owed it, but for the discharge in bankruptcy. There being but one debt, and the defendant and Henry so understanding it, and the promise, if any, being made in reference to that debt, it is immaterial that Henry understood that the debt was evidenced by the old note only, and that the promise applied to that note. If the defendant understood what he was promising, and that he was promising to pay his debt to the plaintiff, it was sufficient.

The above instruction was repeated and made prominent in the course of the charge, so that the jury might well understand that it was a condition of the plaintiff’s right of recovery, notwithstanding the rule was correctly stated in other connections.

For this error judgment is reversed, and the cause remanded. ■

The petition for new trial must be dismissed on the ground that the petitioner was guilty of laches. If the petitioner’s son, who acted for her and had charge of the suit, and was the principal witness for the petitioner, had used anything like the same diligence before the trial that he apparently did after it, he would have obtained the evidence now produced. True, lie may not have known, as he told his counsel, that any one heard the defendant. make the alleged promise in Mr. Huntington’s store; but he knew that Mr. Huntington, or some person in charge of that store, was present. He fails to show that he made any inquiry to find out whether any one present heard his talk with the defendant. The case had been once tried before a magistrate, so that the attitude of the defendant was known. Without passing upon other grounds of defence argued, we think the petition is glaringly defective in the respect stated, and it is dismissed with costs.