McConnell v. Merrill

The opinion of the court was delivered by Royce, J. The only question presented by the exceptions is whether the evidence offered of the payment made and endorsed upon the note Nov. 19, 1877, would prevent the running of the Statute of Limitations as against the defendant Worthley. The payment offered to be shown was made from the proceeds of the property of the defendant Merrill, and the legal effect of the payment as affecting the defendant Worthley would depend upon the circumstances under which it was made. The plaintiff offered to show that after this writ was brought and Worthley’s property had been attached, he applied to the plaintiff to bring a second suit, and have the property of Merrill attached and sold, and-the proceeds applied upon the note, and verbally promised that he would pay all the expenses of the second suit, and of the sale of the property that might be attached in the same, have the proceeds endorsed upon the note, and would pay the balance that might remain 'due upon the note, saying that he wanted the suit brought for his own benefit; that plaintiff finally consented that the suit might be brought; that property of Merrill was attached and sold upon the writ, and the whole of the proceeds of the sale endorsed [155] upon the note Nov. 17, 1877, by Worthley’s direction. The court ruled as matter of law that these facts if proved would not prevent the running of the statute as against the defendant Worthley; that they would not amount to such a payment by Worthley as would prevent the running of the statute. This we hold was error. The payment was made by the procurement of Worthley and for his benefit, and was made under such circumstances that the creditor had a right to rely upon it as a payment made by him for the purpose of arresting the running of the statute. It is not necessary that the payment should be made from the funds of the party making it. Here the payment made was not a voluntary payment by Merrill, but was compulsory, and was procured to be made by Worthley; and the payment thus made, when accompanied by the promise of Worthley that he would pay the balance of the debt that might remain due, we think the creditor had a right to consider it as á payment made by Worthley. This view in our judgment harmonizes with the spirit and intent of the statute, while the adoption of the construction claimed by the defendant would operate as a fraud upon the plaintiff, and be in conflict with the theory of the law pertaining to the defenses of actions from lapse of time. This case is clearly distinguishable from Bailey v. Corliss, 51 Vt. 366. There the payment relied upon was a voluntary one. The defendant acted as the agent of the party making it, and informed the creditor at the time he handed him the money, whose it was, and what disposition he was requested to make of it, so that there was nothing in the conduct of the defendant that had a tendency to mislead the creditor, or to induce the belief that he intended to assume any new responsibility, or to waive any legal right. The judgment is reversed and cause remanded.