White v. Dow

23 Vt. 300 | Vt. | 1851

The opinion of the court was delivered by

Kellogg, J.

Upon the report of the auditor two questions are raised for consideration.

1. It is said, that the facts found by the auditor, and which are claimed by the plaintiff to be sufficient to remove the statutory bar, were found upon incompetent testimony and therefore should not be allowed to revive the plaintiff’s cause of action.

It is conceded, that since the case of McLaughlin v. Hill, 6 Vt. 20, the party, if objected to, has been held an incompetent witness to prove a new promise to take the case out of the statute of limitations. And we are not disposed to question the propriety of that decision. But we suppose it is always competent for the opposite party to waive the objection, and if waived, he cannot afterwards, in a subsequent stage of the case, avail himself of the objection. We do not see, why objection to the competency of the party to testify to a particular fact may not he waived, as well as objection to any other incompetent witness. We apprehend, that if the plaintiff, at the hearing before the auditor, had offered a witness, who was clearly incompetent by reason of interest, and this interest known to the opposite party, who made no objection to the reception of the testimony, he could not afterwards, in the county court, avail himself of that objection. It does not appear, that the defendant, at the hearing before the auditor, made any objection to the plainiff’s testifying in relation to a new promise, or any question as to the competency of the testimony, so given by the plaintiff. A majority of the court are therefore of opinion, that the objection was waived by the defendant, and that the facts found by the auditor upon the testimony of the plaintiff were properly found and should be treated as legal evidence in the case.

2. It is urged, that, conceding the facts found by the auditor to be legal evidence in the case, they are insufficient to obviate the effect of the statute.

The rule laid down in Phelps v. Stewart, 12 Vt. 256, it is believed, has been uniformly followed by the courts of this state, since that decision. It was there held, that, to take a case out of the operation of the statute by the admission of the party, there must be an unqualified acknowledgment of the debt, with an apparent willingness to remain liable for it, or at least no avowed intention to the contrary. Do the facts amount to such an acknowledgment of the plaintiff’s account? When called upon by the plaintiff to apply his claim upon the account due to Brown & Dow, the defendant replied, “no matter about it, it will all come rightand upon another occasion, when called upon to adjust the plaintiff’s account, his reply was, “he was too busy.” These expressions of the defendant clearly do not amount to a denial or repudiation of the account ; but we are all of opinion, that they do not amount to such an acknowledgment, or admission, as will save it from the operation of the statute.

The judgment of the county court is affirmed.