Warren & Bliss v. Bishop
22 Vt. 607
Vt.
1850
Check Treatment

The opinion of the court was delivered by

Royce, Ch. J.

That a balance ascertained and struck, upon a mutual settlement of book accounts, may properly be charged as an item in a new account, was sеttled by the cases cited, of Gibson v. Sumner, and Spear v. Peck. And the auditor has found the fact, (though the defendant did not аdmit it before him,) that the accounts between the plaintiffs and the defendant, existing before the first of January, 1844, were adjusted by the defendant and ‍​​‌‌​​​​‌​‌​​‌​​‌​​‌‌​‌‌​‌‌‌​‌​​​​​​‌‌‌‌‌​‌‌​‌‌‌‍one of the plaintiffs, and the amount of the first item in the subsequent account mutually agreed upon as the balance. The legality of that charge, in point of form, is therefore fully sustained by the doctrine of those cases.

Under the construction which was given, in Stevens v. Richards, 2 Aik. 81, to our statute regulating the action of account on boоk accounts, and which has been uniformly acted on in subsequent cases, there can be no doubt, that the parties were competent witnesses before the auditоr, to prove the stating of the former account, and their agreement upon the balance found against the defendant. They are general witnesses as to all facts, transactions and agreements, on which the account, or any of its items, was bаsed; — every matter affecting the original validity and justice of the account, to which other witnesses could properly testify. So, too, they are wit*611nesses, to the same extent, in reference to actual payment and satisfaction of the aсcount; but probably not to its simple release or discharge by a sealed instrument. It has long been the ‍​​‌‌​​​​‌​‌​​‌​​‌​​‌‌​‌‌​‌‌‌​‌​​​​​​‌‌‌‌‌​‌‌​‌‌‌‍doctrine in Connecticut, that, in the action of book debt, one party may testify to admissions by the other, which tend to show that the charges in the accоunt were rightfully made. Johnson v. Gunn, 2 Root 130. Bryan v. Jackson, 4 Conn. 288. Peck v. Abbe, 11 Conn. 207. The same has also been adjudged by this court in the action on boоk account; and even where the admission was made in a writing, which had been lost, and was not produced. Reed v. Talford, 10 Vt. 568. Warden v. Johnson, 11 Vt. 455. Clark v. Marsh, 20 Vt. 338.

But the principal question in the case concerns the liability, whiсh the defendant incurred by stating the account and making the promise reported by thе auditor. If it be granted, that merely stating an account, and agreeing upon the balance, will ever create a new liability and cause of action, without the aid оf an express promise, (and as to this the authorities are somewhat conflicting,) thаt effect can be produced in those cases only, where the party found ‍​​‌‌​​​​‌​‌​​‌​​‌​​‌‌​‌‌​‌‌‌​‌​​​​​​‌‌‌‌‌​‌‌​‌‌‌‍in аrrear was under a subsisting liability, in some form, upon the account adjusted. And such was not the condition of the defendant ; for his indebtedness to the plaintiffs had been legally dischargеd. It is urged, indeed, that the accounting was conclusive upon the defendant. But that must be understood of the truth of the account and the balance found, and not of the obligation to pay. Even a promise, unless induced by some new consideration, will not bind a party in a different right from that in which he was already liable, nor to a greater extent. Drue v. Thorn, Aleyn 72; Mitchinson v. Hewson, 7 T. R. 348, and Rann v. Hughes, there cited in note.

This being a case, then, where the law would not imply an obligation from the naked fact of stating the account, the right of the plaintiffs to recover upon this first item of their present account, must depend on the nature and extent ‍​​‌‌​​​​‌​‌​​‌​​‌​​‌‌​‌‌​‌‌‌​‌​​​​​​‌‌‌‌‌​‌‌​‌‌‌‍of the defendant’s promise in rеference to it. As the debt had not been paid, but merely discharged by operatiоn of law, we are not disposed to question the validity of any express undertaking for its рayment, though resting *612simply upon moral obligation. At the same time, the plaintiffs were not in а condition to prescribe terms, and could only be content with such an undertaking, as thе defendant chose to give. And the only promise appearing in the report was, to pay this balance by the defendant’s share in the avails of certain demands, thеn in the hands of Warren, one of the plaintiffs. Had the defendant then legally owed the dеbt in question, the promise would probably be construed as implying a guaranty, that the demands could be made available to satisfy the debt. But, under the circumstances, we think it merеly operated to appropriate his disposable interest in the demands tо that special purpose, It is therefore considered, that the auditor errеd, in treating the promise as an absolute undertaking for the payment of the entire balance claimed.

The judgment of the county court, accepting the report, is accordingly ‍​​‌‌​​​​‌​‌​​‌​​‌​​‌‌​‌‌​‌‌‌​‌​​​​​​‌‌‌‌‌​‌‌​‌‌‌‍reversed, and the cause recommitted to the auditor.