Cleveland v. Dinsmore
Decision Date | 07 March 1887 |
Parties | CLEVELAND v. DINSMORE. |
Court | Vermont Supreme Court |
Exceptions from Franklin county court, September term, 1885; Royce, C. J., presiding.
Heard on referee's report, and exceptions filed thereto. Judgment for defendant. The facts appear in the opinion.
Farrington & Post, for plaintiff.
Edson, Cross & Start, for defendant.
The vital question in the case is whether the fourth or fifth indorsements upon the note in suit express valid payments thereon, so as to bar the running of the statute of limitations. An indorsement, standing alone, is not, under our statute, sufficient proof of an actual payment. But other proof may be adduced which will verify it as a valid payment, and remove the bar. The evidence tended to show that both indorsements covered voluntary payments by the defendant upon the note, but the referee does not say whether they were such or not. This is a question of fact for the referee to decide, and he cannot return the evidence to the court, and compel the court to find the facts. The referee is paid by the state to determine the facts. He may refer any question of law arising thereon to the court. But the court should have his finding as the basis of its action, precisely as in case of a verdict by a jury. Here the questions of fact are, was the four dollars and a half a voluntary payment upon this note, and was it understood by the defendant that the use of the rake was to be applied on the note? In other words, does either of said indorsements cover an intended payment on this note?
As the case is not ripe for any action of the court, the judgment is pro forma reversed, the cause remanded, with directions to recommit the same to the referee to complete the work assigned to him.
NOTE.
LIMITATIONS—INDORSEMENT-ON NOTE. As to the effect of a voluntary part payment of a debt in removing the bar of the statute of limitations, see Hubbard v. Clark, (N.J.) 7 Atl. Rep. 26, and note.
In Iowa an indorsement on a note of a payment made thereon, signed by the payor, will not toll the running of the statute, as that can be effected only by an admission of indebtedness, or a new promise to pay, which must be in writing, and signed by the person to be charged thereby. Hale v. Wilson, 30 N. W. Rep. 739.
Entries by a creditor in his own books are not admissible as evidence of payments on account so as to remove the bar of the statute. Libbey v. Brown, (Me.) 7 Atl. Rep. 114.
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