Sargeant v. Town of Sunderland , 21 Vt. 284 ( 1849 )

The opinion of the court was delivered by

Kellogg, J.

This was an action on book account, and the questions presented for the consideration of this court arise upon the auditor’s report. The county court rendered judgment upon the report for the plaintiff.

It is urged, in opposition to the judgment, that the plaintiff’s account is barred by the statute of limitations. It is true, that the debit side of the plaintiff’s account shows all the charges, except one, to have been of more than six years’ standing anterior to the commencement of this suit; and consequently the statute bar must prevail, unless there are facts disclosed in the case, which save it from the operation of the statute. This bar may be avoided in various ways. If there are mutual charges between the parties, continued to within six years of the commencement of the suit, it constitutes it a running account and takes it out of the statute; so if the defendants have, within six years, admitted the account to be due, without any repudiation of it, or manifestation of an unwillingness to remain holden for it, it is such a recognition of the same, as will save it from the operation of the statute. It was so held in Phelps v. Stewart, 12 Vt. 256. So if the defendants have made payments upon the account generally, within six years next before the commencement of the suit, it will be a sufficient admission of indebtedness upon the account to avoid the statute bar.

It appears from the plaintiff’s, account, that in December, 1843, he rendered services for the defendants, and charged the same. This, however, is resisted, upon the ground that the application to the probate court did not authorize any proceedings under it. If it be admitted, that the written application to the probate court was insufficient to sustain a commission for inquisition and the appointment of a guardian, it will by no. means follow, that the plaintiff is not entitled to compensation for a commission for inquisition, issued upon such application. The right to compensation cannot be made to depend upon the sufficiency of the application. The applicants, having requested the action of the probate court in the matter, cannot be permitted, after having induced such action, to set up technical defects in the application, as a defence to a claim for such services. To allow such a defence would be allowing the applicants to take advantage of their own wrong. Nor would the fact, that the plaintiff had erroneously judged the application to be sufficient, when it was clearly insufficient, deprive him'of his right to compensation. We see no reason, then, why this item should not be allowed.

But the allowance of this item will not save the previous portion of the account from the operation- of the statute, inasmuch as it was all more than six years previous to the charge of December, 1843. .The report, however, shows, that the treasurer of the town of Sunderland, in 1839, paid to the plaintiff six dollars, which is credited to the account generally. This item of credit is resisted by the defendants upon the ground, that the payment is not sufficiently proved, and, if proved, that it does not appear, that the same was authorized by the town. That the plaintiff was competent to testify to the fact of payment we think can hardly be denied, for it has been held by this court, that the examination of the parties is general in relation to the account, andextends to all circumstances connected with it. It has been held, that the party may testify to a payment, or settlement. May et al. v. Corlew, 4 Vt. 12. That the testimony of the plaintiff upon this point was believed by the auditor and the county court we cannot doubt.

The fact, that the payment was made by the treasurer of the town, being established, the law will presume, in the absence of all proof to the contrary, that the payment was made with the approbation of the town. He was one of the principal officers of the town, charged with the keeping of the funds of tlie town and was the disbursing officer of the town. Such a payment can only be accounted for upon the supposition, that the treasurer paid it in his official capacity, and with thé sanction and approbation of the town. And this view of the case is strengthened by the fact, that a previous payment was made by the same individual, Graves, when he’ was treasurer of the town, which payment was proved by the defendants before the auditor and its allowance claimed. The county court must have found the fact of the payment of the six dollars, in 1839, by the treasurer of the town, and that the same was made by the authority of the town and was to be applied to the account generally. This payment was made, before the statute had run upon any portion of the account; and the effect of it was to save the account from the operation of the statute for six years longer, — within which time the present suit was brought.

If we are correct in this conclusion, the result is, that the account is not barred by the statute of limitations, and consequently the judgment of the county court is affirmed.