Wheelock, Son & Co. v. Doolittle

18 Vt. 440

Opinion

The opinion of the court was delivered by

Wiilliams, Ch. J.

It cannot be necessary, that we should periodically review the decisions made in different states on the subject of the statute of limitations. There may have been some inconsistencies in the early decisions, in admitting too slight evidence to take a debt out of the operation of the statute; and there have been some inconsistencies, as manifest, in endeavoring to restrict those decisions. The rule, which we have established, is this, — there must be an acknowledgment of a subsisting debt and a willingness to pay it, or at least no avowed determination to the contrary. Part payment is such an acknowledgment, if no claim is made at the time, that the payment, is intended to be in full.

With respect to joint contractors, or partners, it has been established, that an acknowledgment made by one is sufficient to remove the statute bar, and operates against all, whether the acknowledgment was made before or after the dissolution. In such joint contracts there is a community of interest, and a strong presumption, that a party would not make such an admission against his interest, for the purpose of charging his joint contractor as well as himself. The authorities have made no distinction, either in the case of a sole or a joint debtor, whether the promise, or acknowledgment, was before or after the statute had run.* The debt is none the less morally and justly due, whether a longer or shorter time has elapsed, since it was contracted. In Goddard v. Ingram, 43 E. C. L. 999, a debt was revived against partners by a payment in part, made by one of the firm, in fraud of the others, after the dissolution of the co-partnership, and after the debt was barred by the statute. In Patterson v. Choate, 7 Wend. 441, an admission by one partner, made twelve years after the dissolution of the co-partnership, was held sufficient to revive a debt otherwise barred by statute. The effect of an admission by a joint contractor was considered and decided in the ease of Joslyn v. Smith, 13 Vt. 353; and, indeed, that case must be considered as deciding the. principle, on which this case rests.

If the principle is admitted, as it must be, that a sole debtor may revive a debt by an acknowledgment, made as well before as after -the statute has run, and that one joint contractor, or partner, after the dissolution of a co-partnership, may revive a debt against his joint contractors, or partners, it seems to follow, that it can make no difference in the latter case, any more than in the former, whether it was made before or after the statute had run on the demand.

There is a question, which might have arisen in this case, but which we presume the evidence did not warrant the parties in bringing to the notice of the court, — that is, the effect of an admission of one joint contractor, made subsequent to July, 1840, when the Revised Statutes took effect, though in reference to a debt contracted before, — whether such a case is excepted from the operation of the statute, because the debt was contracted before, or whether, in every case where the admission was made after the statute came in force, the promise, or acknowledgment, of a joint contractor should affect himself only. This question has not been raised and is not decided.

The judgment of the county court is affirmed.

Footnotes

*

This remark is undoubtedly true in this ease; and probably in this state, where all that is required is an unqualified acknowledgment of the debt and an express or implied willingness to remain liable for it, it can never be important to inquire, whether the acknowledgment was made before or after the statute had run upon the debt. But in England, where, even before the statute 9 Geo. 4, c. 14, an express promise was required, to remove the statute bar, (A’Court v. Cross, 3 Bing. 329; Tanner v. Smart, 6 B. & C. 603; Gould v. Shirley, 2 M. & P, 581; Hayden v. Williams, 7 Bing. 163,) and where, if a condition is annexed to the promise, the proof must bring the case within the condition, or the promise will be inoperative, (Scales v. Jacob, 3 Bing. 638; Tanner v. Smart, 6 B. & C. 603; Hayden v. Williams, 7 Bing. 163,) it has been strongly intimated, that slighter admissions, made previous to the running of the statute, would be sufficient to prevent its operation, and that even an acknowledgment, made at such a time, might suffice. Burrough, J., and Park, J., in Scales v, Jacob, 3 Bing. 638, [13 E. C. L. 88-91.] Ld. Denman, Ch. J., in Gardner v. McMahon, 3 Ad. & El., N. S., 566, [43 E. C. L. 870.]