Farrar v. Bessey

The opinion of the court was delivered by Royce, Ch. J. This was an action of book account, brought to. recover a balance claimed to be due from the wife. The whole of the plaintiff’s account, except one item of fifty cents, on the debit side, and two items of credit, amounting to two dollars and fifty cents, accrued before the intermarriage of the defendants. They presented no account before the auditor, but relied on the statute of limitations. To this defense two answers were attempted before the auditor, but only one of them is now insisted on. This is based upon the fact, that the three items referred to accrued within six years before the commencement of the action. And these entries are found to have been justified by real transactions between the parties. But the report shows, that this part of the account accrued after the defendants had intermarried. When it accrued, the wife was no longer capable of contracting a debt against herself, nor was she entitled to claim the benefit of these credits, except as payments made by her husband upon her debt. In legal effect, this part of the account arose between the plaintiff and the husband alone ; so that the account properly existing with the wife, was not brought down to a time within the six years. Gay et ux v. Estate of Rogers, 18 Vt. 342. It is found by the auditor, however, that the services of the wife, which constituted these two items of credit, were, by the express consent of both defendants, received to be applied in part payment of the previous account against the wife. They must have the application which was then intended. And the general rule is, that the admission 92 of a debt by part payment, is sufficient to warrant tbe implication of a new promise to pay the unsatisfied balance. Strong v. McConnell, 5 Vt. 338. Joslyn v. Smith, 13 Vt. 353. Munson v. Rice and Sanderson v. Milton Stage Co., 18 Vt. 53-107. But to authorize the implication of such new promise, from part payment, or other acknowledgment of a debt, the party whose promise is to be implied, must be legally capable of making a valid and binding express promise. And. as a feme covert cannot make such a promise in her own right, especially while living with her husband, it follows that no effectual promise of the wife can be implied in the present case, from the fact of this part payment of her debt. This is a legitimate and obvious conclusion, from the doctrine held in Pittam v. Foster et al. 8 C. L. R. 67. And we think it must, from the decision of this court in Powers v. South-gate and wife, 15 Vt. 471, that no promise of the husband, which could affect the rights of his wife, under the statute of limitations, was to be implied from the payment made by him. The cause of action against the wife, was therefore barred ; and the present suit, founded on the assumption of her continuing liability, could not be sustained. The judgment of the county court is accordingly affirmed.