Galpin v. Barney

Pierpoint, J. As we think the defence of the statute of limitations must prevail in this case, it becomes unnecessary to consider the other questions that have been discussed. The plaintiff’s right to recover is barred by the statute, unless what was said to him by the defendant on the 4th of October, 1856, or what was done by Batchelder ‘on the same day, was sufficient to prevent its operation. When the plaintiff called on the defendant for the pay on the note, on the 4th of October, the defendant “told him he ought to have his pay, that it was right he should have it, but that he had lost a great deal in the business and was not worth anything, and he could not pay it.” When we consider that the debt to the plaintiff was one [630] that (although contracted in the name of the defendant and for which he was legally liable) was really a debt that was contracted by Batchelder in his own business, and in which the defendant had no interest, and that it was a debt that Batchelder ought to pay, the language used by the defendant can hardly be regarded as an acknowledgment of a subsisting debt against himself; he says the plaintiff ought to have his pay, that it wag right he should have it; this he could say without acknowledging that he was liable and ought to pay it. But conceding this to be an acknowledgment of the debt, that is not sufficient to take it out of the statute. “There must be an acknowledgment of the debt as still due, with an apparent willingness to remain liable for it, or at least without an avowed intention to the contrary.” This rule was established in Phelps v. Stewart, 12 Vt. 256, and has been adhered to in this state ever since. The acknowledgment must be such that a promise to pay the debt may fairly be inferred from it. In this case the defendant at the same time that he said the plaintiff ought to have his pay, also said that he had lost a great deal in the business, was poor and could not pay it. We think it would be impossible fairly to infer a promise to pay from such a declaration. When taken together with the facts as found by the referee, it sounds more like a declaration of an intention not to pay. The plaintiff seemed at the time so to regard it, for he immediately went to Batchelder and asked him to pay the note or renew it, thus showing that he did not understand the defendant to have said anything that would operate to renew the note. The referee has expressly found that the defendant did not promise to pay the note unless he did so by said Batchelder as his agent. When the plaintiff went to Batchelder and asked him to pay the note or renew it, Batchelder told him he had no authority to make a new note, but proposed to pay him a dollar and endorse it on the note, saying that would renew it. He therefore paid the plaintiff a dollar from his own money and endorsed it upon the note. This we think cannot have the effect to renew the note as against the defendant. It is difficult to see, if he had no authority to bind the defendant by giving a new note, how he could bind him by a new promise [631] to pay the old one. He does not appear to have professed to act as the agent of the defendant in making the payment and endorsement, but the fair inference from the report is, that both understood at the time the payment was made, that Batchelder was paying his own money and in his individual capacity. Judgment affirmed.