Phelps v. Williamson

The opinion' of the court was delivered by Isham, J. The judgment of the County Court, in this case, must be affirmed. The fact is distinctly found in the case, that within six years from the commencement of this action, the defendant while speaking of his liabilities, observed in relation to this particular note, “that he had signed the same with his son, and that in the end he thought he should have it to pay.” This was an unqualified acknowledgment that the note was signed by him; that it was still unpaid; and that his liability was then subsisting. The declaration was unaccompanied by any statement that the debt was unjust, or that there existed any matter upon which he relied as a defence, to protect him from the payment of the note. These circumstances bring the case within the rule, which has been recognized by the various cases decided in this state, that where there is an acknowledgment that the debt is still subsisting, and unpaid, unaccompanied by any denial of the justness of the debt, or of his liability to pay it, the law will raise an implied promise to pay the debt, which will be sufficient to prevent the operation of the statute. This was the rule given by ' Royce, late Chief Justice, in the case of Phelps v. Stewart et al., 12 Vt. 256, in which he says, “ that it is settled law in this state that an unqualified acknowledgment of the debt as unpaid and still subsisting, is evidence from which a new promise to pay is to be inferred.” In Joslyn v. Smith, 13 Vt. 357, the court remarked “that there is no necessity of any positive evidence of willingness to pay.” If the debt is recognized as a just debt and not paid, the law presumes willingness to pay, unless there is some protestation to the contrary. Carruth v. Paige, 22 Vt. 180. The application of this principle to this case is not affected by the statement, “ that enough had been paid to pay the debt, if it [233] bad been paid when it should have been.” This is not a denial of his liability on the note, or the expression of an unwillingness to pay it; on the contrary, the expression contains the implication that something was due on the note at that time, as the payments were not made in season to prevent the accumulation of the debt to a greater amount, than the payments made. In the case of Williams v. Finney, 16 Vt. 298, the defendant stated that he would call and settle with the plaintiff, but that there was not much due him. This was held sufficient to revive the debt, and charge him for whatever balance was found due on the claim. It does not appear from the caserthat any pretence was made, but that all the payments which were made on the note, were duly applied and endorsed. With this fact existing in the case, when the defendant acknowledged the execution of the note, and a subsisting liability to pay it, it wa^a recognition of a balance due thereon, as then existing; and whatever that balance may be, it is removed from the operation of the statute. This renders it unnecessary to pass upon the effect of the payments made and endorsed on the note; or upon the question, whether a subsequent recognition of those. endorsements; by another joint contractor, will be sufficient under the statute, to revive the debt against him; as the operation of the statute ha this case is removed by the personal acknowledgment of the defendant. Judgment affirmed.