Prescott v. Town of Vershire
| Decision Date | 04 September 1891 |
| Citation | 22 A. 655,63 Vt. 517 |
| Parties | ROXANA PRESCOTT v. TOWN OF VERSHIRE |
| Court | Vermont Supreme Court |
MAY TERM, 1891
Judgment reversed and cause remanded.
J.K. Darling and John H. Watson, for the defendant.
An acknowledgment, in order to remove the statutory bar, must be such that a promise to pay the debt can be implied from it. The mere acknowledgment of an existing indebtedness is not enough, as that is consistent with a refusal to pay or a determination to take advantage of the statute. The acknowledgment 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.
To say nothing of whether the "acknowledgment or promise is in writing, signed by the party affected thereby," as required by statute, the character of what is relied upon to remove the statutory bar and the circumstances in which it was done, are not such that a promise to pay can be implied therefrom. It was no part of the duty of the auditors to report outstanding orders. Their general duty was, to examine and adjust the accounts of the other town officers and to report the same and the items thereof, and also the condition of the treasury. R. L. 2727. It was the duty of the selectmen to keep a record of orders drawn by them, and to present it to the annual meeting, with a general statement of the property and the finances of the town. R. L. 2696. The votes from year to year to "accept and adopt" the auditors' reports, were but the customary form of doing such business, and must have been so regarded by the meeting. They do not involve the idea of a promise to pay nor indicate a willingness to remain liable, but were simply formulas, and, at most, amount only to mere acknowledgments of existing indebtedness, which, as we have seen, is not enough.
As we understand that this ruling will most likely end the case, we do not decide the other questions raised.
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