Thrall v. Estate of Mead, 40 Vt. 540

Thrall v. Estate of Mead

40 Vt. 540 | Vt. | 1868

*544The opinion of the court was delivered by

Peck, J.

The six dollar and eighty-seven cent note, dated March 14th, 1832, “ 'payable in officers fees as constable,” although not in terras expressed to be payable on demand or on request, is by legal construction so payable. The mode of payment specified is such that it required processes to be put into the maker’s hands by the plaintiff for service, or notice to the maker what services were required of him, before he could make the payment specified. The note was, therefore, payable on request or on demand. The general rule in such case is, that no action accrues to the creditor until request or demand. The general rule also is that the statute of limitations does not commence to run in such case until demand is made, although the debt is absolute and only requires a demand of payment to perfect the right of action. If this rule has no limitation as applicable to cases of this kind, the county court erred in bolding as matter of law that the note was barred by the statute. But in such case the creditor may be guilty of such unreasonable neglect in omitting to make demand as will set the statute in operation without demand. Some such rule would seem to be necessary to protect parties from stale demands of this character. In some eases it has been left to the jury to presume a demand as matter of fact from lapse of time and other circumstances. But this is hardly a sufficient protection against the mischief that would ensue without some rule of law on the subject. An entire exemption of such demands from the statute unless demand is proved, would enable creditors in contracts of this character io hold them indefinitely, or until all evidence of a demand or payment has become extinguished or put beyond the reach of the debtor, by lapse of time, even when a seasonable demand has been made, or the debt actually paid. The difficulty is in assuming as matter of law a definite period of time as such neglect of the creditor to make demand, which should put the statute in operation. There are reported cases in which it is held that the creditor may have the whole period of the statute of limitations in which to make demand, and if he make no demand in that time, the statute will then '’‘commence running. Where there is nothing peculiar in the terms, of the- contract or other circumstances *545indicating that the parties contemplated any longer delay than is to be inferred from the fact that the note or contract is payable on demand, all at one time, perhaps the rule adopted in the eases alluded to is sufficiently liberal towards the creditor. But in Stanton v. The Estate of Stanton, 37 Vt. 411, the court refused to apply this rule. But that case was put expressly upon the peculiar terms of the note. The note was for a considerable amount, being for four hundred dollars, payable in produce or wood from the farm, on demand, as he, (the payee,) may want to use the same. The note had run a few months over twelve years, when the payee died ; and it was admit-, ted no demand had been made. The court held that as the note was in effect payable from time to time, as the payee might want to use the produce or wood, or both, it was not like a note payable on demand simply, and that it was not barred by the statute. Considering the small amount of the note in "question in this case, and the terms of the note, the reason is stronger in this case in favor of assuming six years as such delay in making demand as will put the statute in operation, than in that case. But we need not decide that that rule should be applied to this note, for there are other facts which render such decision unnecessary. It appears that the maker was constable at the date of the note, and. continued to be so till 1845, a period of thirteen years, when he ceased to hold the office. The maker of the note died in 1859. It is stated in the case that the action was commenced prior to August 1st, 1860. This probably was stated to show that the plaintiff was a competent witness.. This is an appeal from commissioners on the estate of the intestate. From this we infer that what is termed the commencement of the action, is the presentation of the claim before the commissioners, which could not have been earlier than 1859. All that it is necessary to decide in relation to this small note is that the statute began to run a sufficient time before 1859 to bar the note. This gives the plaintiff, in which ■to make demand, more than the period necessary to raise the common law presumption of payment. By this we do not intend to be understood that a shorter period would not be sufficient to bar the note. The county court made the same ruling as to the larger note, subject to the effect of a part payment or promise in 1859, which the jury-*546failed to find. This note was dated February 19th, 1827, and payable in grain in installments. So far as the plaintiff had an interest in it, it was payable one hundred dollars April 1st, 1830, one hundred dollars April 1st, 1831 and one hundred dollars April 1st, 1832. It came into the plaintiff’s hands March 31st, 1829. June 9th, 1829, the plaintiff and Mead made a written agreement, in substance, that the plaintiff should not call on Mead for the grain until the last installment became payable ; and in the mean time Mead was to render such services as constable for the.plaintiff as the plaintiff should call for from time to time, and which were to apply on the notes ; and whatever should be due when the last installment became payable should be paid in grain at that time, with the right on the part of Mead to pay whatever he chose to in grain as the installments became payable. The plaintiff’s evidence tended further to show that afterwards, and before April 1st, 1832, the parties agreed that the payment of the balance due upon these three installments should be postponed to an indefinite period, and that the plaintiff should still continue to receive his pay in the services of Mead as constable ; Mead agreeing to render such services as called for from time to time, and if any balance still remained due after deducting such services, “ the same should be payable at any time after April 1st, 1832, in grain, after giving Mead reasonable notice to pay said grain,” and that the plaintiff had never ascertained the amount of Mead’s services, or applied it on the note, and had never notified Mead to pay the balance in grain. It is insisted on the part of the defendant that the agreement as to the mode of payment and the extension of the time, was without consideration and void. We are referred to several cases to establish this proposition. The cases cited are not applicable. They are cases where the debt was already due and payable in money when the new agreement was made. There is a manifest distinction between süch case and a case like this, where the original contract is payable in specific articles, or property,- and the new contract is made before the debt has become payable, and the debtor relying on the new agreement suffers the time specified in the original contract for payment to expire. In such case it would be a fraud to allow the creditor to collect the debt in money *547when the original contract expires, and repudiate the new agreement, and thus convert the debt into money contrary to the agreement, and to the prejudice of the debtor. But in case of a debt already due and payable in money, where the agreement is made to extend the time, it requires some new.consideration to bind the creditor ; because the debtor by relying on the promise of the creditor to delay payment, is not in a legal sense prejudiced, as the original debt is not thereby changed in the mean time in its character or mode of payment. After this last agreement between these parties no right of action existed according to the general rule until demand according to the agreement. As Mead ceased to be constable in 1845, and was not after that constable, sheriff or deputy sheriff, whatever balance there remained unpaid on the note, was payable in grain on reasonable notice or demand by the plaintiff. As the note was no longer payable from time to time as called for, but payable on demand, we hold that six years from 1845 was the limit of a reasonable time to make demand, and that at the expiration of that six years the statute began to run ; especially as it appears that the dealings of the parties ceased in 1843. As fourteen years elapsed from 1845 to the death of Mead, and the presentation of the claim before the commissioners, the court properly held the note barred by the statute.

Judgment affirmed.