Woodsville Guaranty Savings Bank v. Ricker

Watson, J. The suit having been discontinued as to-Blanchard, the case is here against B. M. Ricker alone, and we shall refer to him as the defendant. The defendant not wishing to go to the jury upon any question of fact, the sole question before us is, Did the evidence show such an acknowledgment of the promissory note in question by him that a verdict for the plaintiff could reasonably and properly be based thereon? The evidence of this character is all contained in the three letters written by the defendant under dates of March 16,.. 1908, September 17, 1908, and May 15, 1909, respectively. There can be no doubt that in each of these letters the defendant acknowledged the note as an existing indebtedness, but this is not enough. To prevent the statutory bar, the acknowledg [344] "ment must be of such a character and made in such circumstances as to indicate or be consistent with a willingness to remain liable. Brayton v. Rockwell, 41 Vt. 621; Prescott v. Vershire, 63 Vt. 517, 22 Atl. 655. When the letter of March 16 was written by the defendant the note had yet five months to run before it would be outlawed as to him. It was in reply to a notice sent him by the treasurer of the plaintiff, under date of March 12, stating the amount of the interest on the note to April 1, and requesting its payment on or before that date, and further stating (on a separate sheet) that the bank must have the interest at least, “cannot'wait any longer.” B. F. Nicker, one of the principals on the note for whom'the defendant was in fact surety, was then in bankruptcy. In these circumstances the defendant, in that letter to the plaintiff’s treasurer, asks for the date of the note, the dates of the payments thereon, and then says, “ Frank’s bankruptcy (case) has not been settled yet you get all you can out of the other parties he and John Blanchard had the money.” We think thereby the defendant impliedly indicated a willingness to remain liable on the note; that the letter has the force of saying, “I want you to get all you can out of the other parties (for they had the money), and I am willing to pay the rest.” The case of Winchell v. Hicks, 18 N. Y. 558, is very much in point. There one Bowman had the money and was the principal for whom the other defendants were sureties. Before the statute had run the plaintiff called ■upon Hicks for payment of the note, being willing to forego the payment of the principal if the interest should be paid. Hicks replied in substance, “that he (plaintiff) must get it out ■of Bowman.” This reply of Hicks was held sufficient to bind him; that it meant in other words, “I am surety only, and though liable and willing 'to pay, if the principal fails so to do, I wish you to request him to pay it, and if he refuses or fails, you can call on me again.” - The letter of September 17, though written after six years from the maturity of the note had elapsed, contained, in this respect, in substance the same as the letter of March 16, with the further statement, “shall be home in two weeks and will see you then.” We think that these two letters (without considering the [345] third) were reasonably sufficient to justify the verdict ordered and the judgment rendered. Judgment affirmed.