73 Vt. 188 | Vt. | 1901
This action is brought to recover the amount of a promissory note given for one hundred and thirty-eight dollars and seventy-eight cents, dated May 18, 1883, payable to the plaintiff one day after date, signed by the defendant, and purporting to be witnessed. The defendant pleaded the statute of limitations of six years, also of fourteen years. In September, 1893, eleven dollars and seven cents were endorsed on the
On June twenty-nine, 1893, the plaintiff brought suit to recover the amount of the note, and therein several trustees were summoned. In September, 1893, the plaintiff’s counsel and the defendant agreed that if the defendant would pay twtenty-five dollars in cash, the suit should be discontinued. The payment was made and the suit was discontinued. In the summer of 1899, plaintiff’s counsel obtained a memorandum of the costs in that case and applied in payment thereof thirteen dollars and ninety-three cents of the twenty-five dollars, and just before the bringing of the suit at bar, he endorsed the rest of the twenty-five dollars, being eleven dollars and seven cents, on the note as a payment made thereon in September,- 1893. The getting of the memorandum of costs and the making of this' endorsement on the note were without the knowledge or consent of the defendant. When the former suit was brought and discontinued, the note was the only claim the plaintiff had against the defendant. The suit at bar was brought within six years after the agreement for the discontinuance of the former suit, but not within fourteen years after the note became due. Judgment was rendered for the plaintiff to recover the amount due upon the note, to which defendant excepted.
It is contended by the defendant that this agreement and the carrying out of the same constitute a settlement of the suit and of the cause of action on which it was based; but we think this contention is unsound. The agreement was to- discontinue the suit and it had that effect. The cause of action remained unsettled, and the plaintiff was at liberty to bring another action thereon: 1 Chitty Pl. 198.
Judgment reversed, and judgment for the defendant to recover his costs.