Sanderson v. Milton Stage Co.

18 Vt. 107 | Vt. | 1846

The opinion of the court was delivered by

Kellogg, J.

The notice given by Smith to Thomas about the first of July, 1837, not having been assented to by Thomas, or acted upon by either of the copartners afterwards, was not a dissolution of the copartnership. If, however, it were in law a dissolution of the copartnership, it could not affect the plaintiff’s right to recover, inasmuch as no notice of the same was given to the plaintiff. Story on Partnership 247.

Nor can the statute of limitations avail the defendants, under the circumstances of the case. The examination of the account by Smith, the active partner, on the 16th of August, 1837, and the payment then made, amounted to such a recognition of the entire account (there being expressed no repudiation of, or dissent from, any of the items,) as to take the same out of the operation of the statute of limitations. In Phelps v. Stewart et al., 12 Vt. 256, the court say “ the rule to be extracted from the recent decisions in this state, is, that there must be an acknowledgment of the debt as still due, with an apparent willingness to remain liable for it, or at least without an avowed intention to the contrary.” With this rule we are entirely satisfied. The conduct of Smith in examining the account, paying a part of it, and expressing no dissatisfaction with the remaining part, was “ an acknowledgment of the entire account, with an apparent willingness to remain liable for it.”

The judgment of the county court is reversed, and judgment rendered for the plaintiff upon the report for the amount of his account.