Ray v. Rood

• Decision Date: 08 February 1890
• Citation: 19 A. 226,62 Vt. 293
• Parties: ORMAN P. RAY v. CLARK A. ROOD
• Court: Vermont Supreme Court

19 A. 226

62 Vt. 293

ORMAN P. RAY v. CLARK A. ROOD

Supreme Court of Vermont

February 8, 1890

JANUARY TERM, 1890.

Judgment affirmed.

Henry Ballard, for the defendant.

OPINION

TAFT

I. The motion to dismiss the exceptions because they were not filed with the county clerk until after more than thirty days from the rendition of final judgment in said cause by the City Court, is denied; there is no statute requiring it. At what time they should have been filed with the clerk of the City Court, if at all, is a question not raised by the motion.

II. On the face of the account, some of the items included in the judgment were barred by the statute of limitations. From parol evidence unobjected to, the court found a new promise within six years. The defendant insists that no promise, unless it is in writing, will prevent the running of the statute; that a promise found upon parol evidence has no effect for that purpose.

The words of the statute are, that no acknowledgment or promise shall be held to affect a defense made under the provisions of the chapter relating to the limitation of actions unless such acknowledgment or promise is in writing signed by the party to be charged thereby. The statute requires the promise to be in writing, otherwise it shall not affect the defense, but the promise, if in parol, is not illegal; the statute takes away the right to prove it save by written evidence. If a party permits the promise to be shown by parol evidence he waives the statutory objection and the promise is effective to prevent the operation of the statute.

The defendant's claim, at the bar, that the evidence being admissible to show the validity of the account, in its inception, he was not obliged to except to it, as showing a new promise until argument, we do not consider, as the exceptions do not show that the question was made at any time during the trial, but the reverse appears, as the defendant's claim was that upon the evidence, the account, save one item, was barred by the statute. It is too late to raise the question for the first time in this Court.