Steele v. Towne , 28 Vt. 771 ( 1856 )

The opinion of the court was delivered by

Bennett, J.

We think the first item in the plaintiff’s account is not barred by the statute of limitations. The plaintiff declared, and so testified, that, “ if he owed the plaintiff anything' he was willing to pay him.” The auditor has found that the services were rendered, as charged in the plaintiff’s account, and that the same have never been paid. Though the admission is conditional in its terms, yet, when it is proved that the defendant owes the plaintiff, it becomes absolute in its effect. The fact that the defendant, at the time, supposed he did not owe the plaintiff anything, and so Claimed, cannot alter the case. Iiis impression that he had paid the plaintiff does not evince aii unwillingness to pay him, if the fact of payment should be found against him. In Paddock v. Colby, 18 Vt. 485, there was a denial of anything due, yet a willingness to settle the debt, if established; and in Hill v. Kendall, 25 Vt. 528, the defendant said, if he had not paid the debt he would pay it j and, in both cases, a debt being found to be due the plaintiff, it was held that the statute bar was removed. This case is within the principle of those cases.

We think the other part of the plaintiff’s claim is within the statute of frauds. The defendant requested the plaintiff to bring the suits for Spear, and had authority to do so from Spear; and, when the plaintiff refused to bring the suits unless the defendant-would become responsible to him for his advances, he assured the plaintiff that “ Spear was good, and, if not, that he was.” The auditor finds that the defendant was not liable, except as above stated, and though it is found that Spear was not responsible, yet the defendant is not chargeable with" having acted in bad faith.

There was an original liability on the part of Spear. The defendant was the agent of Spear to carry the papers to the plaintiff and request the suits brought, and this agency was made known to the plaintiff. There is nothing in the case to show anything more than a collateral undertaking on the part of the defendant “ Speai is good, if not, I am.” The meaning of which is, if he does not pay you for the advances, I will. The case is always within the •statute 'of frauds, where the undertaking is collateral. What was said by the defendant to the plaintiff, at the time the writ in this case was served upon him, clearly had reference to the claim of of-the plaintiff for advances in the S,pear suits, that is, “ that it did not belong to him to pay,' — -it was the business of another man, and he had got into difficulty by carrying papers which belonged to another.” Though he said, in the conversation, the debt was of long standing, and he would pay it, yet there Was no consideration for this promise, and it could not convert a ■collateral promise int'o an original one.

We think that, notwithstanding what is said in the report about 'the plaintiff’s going into bankruptcy, in 1842, he may still maintain his action on this account. No charges or accounts against this defendant appeared upon the plaintiff’s books, and this claim of the plaintiff was not included in the schedule of claims annexed to the petition of the plaintiff té the district court of the United States, seeking for the benefit of the bankrupt law. Although the schedule professed to contain an accurate inventory of the plaintiff’s property, rights and credits, of every kind and description, yet the present claim was not before the district court, and was not a subject of their action; and we apprehend the defendant cannot set up the facts detailed in the report to toll the plaintiff’s right to maintain this action against him.

The judgment of the county court is reversed, and judgment entered up on the report, upon the principles herein settled.