Lincoln & Gustin v. Johnson , 43 Vt. 74 ( 1870 )

The opinion of the court was delivered by

Wilson, J.

This is an action of assumpsit in which the plaintiffs seek to recover the amount they claim is due upon a promissory note dated August 16th, 1845, for $338.95, upon which various endorsements were made-prior to the commencement of the suit. The defendant pleads the statute of limitations; to which the plaintiffs reply a new promise, within six years next before the 6th day of February, 1861, on which day the writ in this suit was issued. To take the case out of the statute of limitations the plaintiffs rely on the last endorsement on the note, which was made February 7th, 1861, for property which the plaintiffs bargained for several months before the date of that endorsement, but did not remove the property until the day on which the endorsement was made. It is claimed by the plaintiffs that the property operated as payment only from the time they took it into their custody. The defendant claims that if the property constituted part payment of the note at all, it should be treated as made at the time the plaintiffs bargained for it, which was more than six years prior to the commencement of the suit. Hence the general inquiry is, when did the transaction take effect as payment upon the note. We think the payment must, for the purposes of the statute of limitations, be regarded as made at the time the plaintiffs elected to take and the defendant consented they might take the property for that purpose. It is claimed by the plaintiffs that, until they had received the property, they were not bound to take it, and the defendant was not bound to allow them to take it away. It will be observed that the value of the property was less than $40, it would therefore seem that the agreement was not within the statute of frauds, but was binding, as between the parties, even while the property was in the possession of the defendant. There is, however, no occasion to decide what would be the rights of the parties, if either of them had rendered it impossible for the other to have obtained the benefit of the agreement. The plaintiffs can claim nothing beyond the legal effect of the transaction in which both parties concurred. The endorsement upon the note February 7th, 1861, did not remove the statute bar, but it was removed by the agreement as to the property, which was made more than six months before the date of that endorsement. The plaintiffs’ offer to take, and the defendant’s consent that they might take the property as payment upon the note, constituted a perfected and legal agreement as between the parties, for the purpose by them intended. The defendant did not agree to carry the property to the plaintiffs, and nothing remained to be done by the defendant to entitle the plaintiffs to take it. This is apparent, not only from the agreement, but also from the subsequent acts of the plaintiffs. The defendant did nothing in respect to the property after the agreement was entered into, but the plaintiffs, six months after that, in the absence of the defendant, took the property away, without any further negotiation with him in regard to it. • The agreement to take the property took effect at the time it was made, and the property operated as payment of that date. The endorsement upon the note, February 7, 1861, was the act of the plaintiffs alone; it was not according to the legal effect of the transaction, and not authorized or assented to by the defendant. If the plaintiffs claimed the property as payment upon the note, they were bound to treat it as such at the time the agreement was made, which was more than six years next before the suit was commenced, consequently the note was barred by the statute at the date of the plaintiffs’ writ.

The judgment of the county court is affirmed.