Green v. Seymour

• Decision Date: 02 January 1887
• Citation: 12 A. 206,59 Vt. 459
• Parties: GREEN & HAZARD v. H. P. SEYMOUR
• Court: Vermont Supreme Court

12 A. 206

59 Vt. 459

GREEN & HAZARD v. H. P. SEYMOUR

Supreme Court of Vermont, Franklin County

January 2, 1887

GENERAL ASSUMPSIT. Heard on demurrer to the plaintiff's replication to the plea of the Statute of Limitations, April Term, 1886, ROYCE, Ch. J., presiding. Judgment sustaining the demurrer and adjudging the replication insufficient. Plea that the causes of action did not accrue within six years etc.

Replication:

"For replication, etc. Because they say that prior to the commencement of this suit, to wit: on the first day of August, 1881, it was mutually agreed and understood by and between the said plaintiffs and the said defendant for sufficient consideration then and there stated and expressed between them; that is to say, the defendant then and there agreed to and with the plaintiffs, that in consideration that the said plaintiffs would cause the said plaintiff E. G Green and one S. C. Green then a partner with said E. G Green to pay to the said defendant a certain sum or balance in money, to wit: 300 dollars in full settlement of all accounts between the said defendant and the said E. G. and S. C. Green as such partners, (which said settlement and the terms thereof are in writing, and are hereby referred to and are not herein set forth to avoid prolixity) that he the said defendant would take no advantage of the Statute of Limitations in the final settlement of the said several causes of action in the said declaration mentioned, and each and every one of them; and in consideration of the said promise of the said defendant then and there made as aforesaid, they the said plaintiffs caused the said E. G. and S. C. Green to pay to the said defendant said sum of money, to wit: 300 dollars in settlement of all accounts between the said defendant and the said E. G. and S. C. Green as such partners as aforesaid," etc.

Judgment reversed, demurrer overruled, and cause remanded.

Geo. T. Mooney and Cross & Start, for the plaintiffs.

It was not necessary to allege that the promise was in writing. 1. Chit. Pl. 304; Hotchkiss v. Ladd, 36 Vt. 593. The fact that it is not in writing is a matter of defence, and may be waived. Montgomery v. Edwards, 46 Vt. 151.

An agreement by a debtor that he will not take advantage of the Statute of Limitations, removes the statute bar. Paddock v. Colby, 18 Vt. 485; Stearns v. Stearns, 32 Vt. 678; Burton v. Stevens, 28 Vt. 131.

The consideration was sufficient.

M. Buck & Son, for the defendant.

The replication is obnoxious for duplcity. 1 Chit. Pl. 579, 649. It is uncertain. 1 Chit. Pl. 643. The replication is bad in that it is not alleged that the agreement was in writing, and signed by the defendant as required by the statute. R. L. s. 974; 1 Chit. Pl. 480, 528, 534, 583.

OPINION

ROSS, J.

The demurrer to the replication raises but two questions in regard to its sufficiency; first, whether a sufficient consideration for the defendant's agreement to waive the Statute of Limitations is set forth; and, secondly, whether it is necessary to allege that such agreement is in writing, signed by the defendant. The question of the duplicity of the replication is not assigned as a special cause of demurrer. It cannot be raised by a general demurrer, except to pleas in abatement. 1 Chitty Pl. 650; Walker v. Sargeant, 14 Vt. 247. As said in 4 Bac. Abr. 119: "But though duplicity in pleading be a fault, yet must the same be taken advantage of on a special demurrer, that is, the party must show wherein the doubleness consists; and it is not sufficient to demur quia duplex and caret forma, etc., but he must lay his finger on the very point that is so." Carpenter v. McClure, 37 Vt. 127.

It is questionable if any consideration, other than the original indebtedness, is necessary to support a new promise to pay the debt, or which, in legal effect, is the same, an agreement to waive the Statute of Limitations in regard to the debt. But if it is necessary to allege an independent consideration for such an agreement, the replication must be held good. It alleges that which might be both a damage to the plaintiff Green and a benefit to the defendant, the bringing about of a settlement of open matters between another firm, of which the plaintiff Green was a partner, and the defendant, at a specified sum. Effecting a settlement of another independent open matter, at a specific sum, between another party and the defendant would seem of itself to be a sufficient consideration for the defendant's agreement to waive the statute of limitations, in this matter in which the plaintiff was also interested. Hence, if a consideration--other than the original indebtedness--is necessary to sustain such an agreement, a sufficient independent consideration is alleged in the replication.

To be effective to remove the Statute of Limitations, such agreement or promise must be in writing, signed by the party to be affected thereby. R. L. sec. 974. In this respect the statute is analogous to the Statute of Frauds which declares that no action shall be maintained on certain promises, contracts and agreements unless in writing, signed by the party to be charged. At the common law the agreements or promises, named in both statutes, were binding, although unwritten and unsigned. These statutes provide that to be operative to bind the party making them the promises and agreements named, must be evidenced by a written instrument signed by the party to be affected. The general rule in regard to alleging in pleading matters affected by such statutes is well stated in 4 Bac. Abr. 655, as follows: "If a statute makes certain circumstances necessary to the validity of an act, which was valid at the common law without such circumstances, this does not alter the manner of pleading which was used before the making of the statute;" instancing that 29 Car. 2, c. 3, required a tenant for years to assign his term in writing, but that such assignment being good by parol at the common law, may be pleaded...