Strong v. McConnel

| Vt. | Jan 15, 1833

The opinion of the Court delivered by

Baylies, J.

In this case a report of auditors in favor of the plaintiff and against the defendant was made to the County Court, and was accepted, and judgement was rendered thereon by said Court, to which the defendant excepts, and a full record of the proceedings in the action is brought here to be inspected by the Court, and for the correction of errors, if any there be.

1st. As the plaintiff was retained in the cause of the de fondant Hall, just as it was coming on for trial, September Term, 1818, it is possible, that three dollars was a full, compensation for the services rendered at that term by the. plaintiff “ with such preparations as he had.” And at subsequent terms of the Court, the plaintiff might, with better preparations, merit ten dollars for an argument. It was a question of fact for the auditors to decide, whether the three dollars, agreed upon, was to be a compensation for each argument, that the plaintiff might make ; or was to be a Compensation for only the first argument. The auditors have decided, that the three dollars was a compensation for the first argument; and have found for the plaintiff to recover ten dollars for each subsequent argument. I do not perceive that the auditors erred in making this decision, if the plaintiff’s claims were not barred by the Statute of Limitations as the defendant contends.

2d. It appears from the record, that the plaintiff’s last argument was at January Term 1822, and is the last item of charge on his book. It also appears, that the defendant paid to the plaintiff nine dollars towards this account, on the 26th November, 1822, and the same was credited. And it also appears, that the debt and credit of the plaintiff’s account were showed to the defendant a short time before the commencement of this suit, and “ the defendant said the credit was right, and admitted he had never paid the plaintiff any other sum on account, except said nine dollars.” It also appears that the plaintiff’s writ bears date the 8th, and was served on the ISth of October 1828. Hence I conclude, that the plaintiff’s last item of charge was dated six years and eight months before the date of the plaintiff’s writ, and the plaintiff’s account’was barred by the Statute of Limitations, when the writ issued, unless taken out of the Statute by defendant’s paying nine dollars towards the account on the 26th Nov. 1822, which was 49 days short of six years when the writ issued. The defendant’s admission, that the credit was right, and he never paid the plaintiff any other sum on account, except said nine dollars, tends to show, that the credit was not fictitious; but was given by the plaintiff according to the money he received of the defendant on the account. Here I would use the language of Lord Kenyon, C.J. in the case of the Executors of Tuthill vs. Spaulding et al. 6 T. R. 189. He says “it is not doubted, but that a promise, or acknowi-edgment within 6 years will take the ease out of the Statute; and the only question is, whether there is not evidence of an acknowledgment in the present case.— Here are mutual items of account; and I take it to have been clearly settled, as long as I have any memory of the practice of the courts, that every new item of credit in an account, given by one party to the other is an admission of there being some unsettled account between them, the amount of which is afterwards to be ascertained; and any act, which the jury may consider as an acknowledgment of its being an open account is sufficient to take the case out of the Statue. Daily experience teaches us, that if this rule be now overturned, it will lead to infinite injustice.” “ A part payment of the demand, clearly revives the debtor’s liability as to the remainder. But to obviate the effect of the Statute, it is not necessary that the debt- or should make a new promise to pay the money. It is sufficient that he recognizes, or admits the existence of the debt, although, so far from making a promise to pay it, he, at the same time, disputes his liability, and asserts, that he never will satisfy the claim, as it did not arise within six years.” Chit, on Contracts, 317, and cases there referred to.

In view of the above principles of law, it was for the auditors to find, whether the defendant by paying a part of the plaintiff’s account, did not admit, that there was an open unsettled account between them, and take the case out of the Statute of Limitations. I have no doubt, but part payment of the account revived the defendant’s liability, as to the remainder. If the defendant ever contended that at the time he paid it (the’ $9,) it was all he owed the plaintiff” it would not afiect the defendant’s liability, So long as there was no evidence in the case, tending to prove his assertion to be true.

3d. If either party thinks the evidence- laid before the auditors for them to find a particular fact is illegal, or inadmissible, such party may request the auditors to report such evidence, and the objections to it; and if the auditors neglect, or refuse to make such report, it would be error* ^ut *n eas8 ^ie auditors were not requested to report the evidence of a particular fact, because it was illegal or inadmissible; but to report the whole evidence in ^le case >nstead of the facts. This the auditors refused, to do and it was not error.

The judgement of the County Court is affirmed..