Aldrich v. Morse , 28 Vt. 642 ( 1856 )

The opinion of the court was delivered by

Isham, J.

This is an action of debt on an allowance of commissioners. The claim ■ was allowed on the 8th of September, 1843, and a balance was found due from the defendant to the estate of Josiah W. Rogers, on which the plaintiff is administrator. To this claim the defendant has pleaded the statute of limitations. Tlie question arises, whether the statute bar has been removed by a subsequent promise to pay the debt. It appears that soon after the allowance by the commissioners, this claim, together with the effects of that estate, were sold at public auction, by the administrator, to Stevens and Keyes, for the sum of twenty dollars. Under that sale, Stevens and Keyes became the joint owners of this claim.

To avoid the statute of limitations, it was proved, that on the 4th of August, 1847, Stevens presented this claim to the defendant. The defendant then proposed to pay him what he had paid for his part of the claim, being ten dollars, and five dollars in addition for his trouble, if he would discharge his half of the debt, and said that that was all he could afford to pay. The proposal was accepted by Stevens, and on the payment of that sum by the defendant, Stevens discharged him from one-half of the claim. At the same time, the defendant told Stevens that he would give the same sum to Keyes for his half of the claim, but would not give any more, and requested Stevens to make that proposition to him. The general principle governing cases of this character, is well settled in this state. To remove the statute bar, there must not only be an acknowledgement of a subsisting debt, but it must not be accompanied with any unwillingness to pay it; for an implied promise, at least, to pay the claim, is necessary to prevent the operation of the statute. On the application of this principle to this case, it is clear that the statute bar is not removed from this claim by the transaction which took place with Stevens. The proposal to pay, and the actual payment of ten dollars, was not made under those circumstances from which a promise, express or implied, can be inferred, to pay the balance of the debt; and his statement, that that was all he could afford to pay, was an express declaration of his unwillingness to pay the remainder of the claim. The proposal to pay the same to Keyes, which Stevens was authorized to make to him, was accompanied with the declaration that he would pay no more. That cannot be considered as an acknowledgement of a subsisting indebtedness on that claim, and a willingness to pay it; every feature of the testimony rebuts such an inference. It was merely an offer to compromise the matter on those terms, accompanied with an express refusal to pay any more. As Keyes refused to accept the proposal made by the defendant, the plaintiff, for his benefit, cannot recover the sum which was offered as a compromise of the matter. We think the evidence is insufficient to remove the statute bar.

The judgment of the county court is affirmed.