E. S. Putnam v. George Swain

• Decision Date: 08 May 1929
• Citation: 146 A. 6,102 Vt. 90
• Parties: E. S. PUTNAM v. GEORGE SWAIN
• Court: Vermont Supreme Court

146 A. 6

102 Vt. 90

E. S. PUTNAM v. GEORGE SWAIN

Supreme Court of Vermont

May 8, 1929

February Term, 1929.

Judgment reversed, and judgment for defendant to recover his costs.

John J. Wilson for the defendant.

Present WATSON, C. J., POWERS, SLACK, MOULTON, and WILLCOX, JJ.

OPINION

SLACK

This is an action of contract to recover the amount due on two promissory notes which the defendant gave to the plaintiff. The defendant pleaded payment and the statute of limitations. Trial was by court, resulting in a judgment for plaintiff, and the case is here on defendant's exceptions.

The only question for review is whether certain transactions evidenced by indorsements which appear on the notes were of such character as to prevent the running of the statute of limitations.

It appears that these indorsements are in the handwriting of the plaintiff, and were made without the direction, authority, or knowledge of the defendant; that ever after the giving of these notes to the time of the trial there was an unsettled book account between the parties, as well as another note not in issue, and not affected by the statute; and that "such indorsements were made as representing just and proper items of credit owing by plaintiff to defendant, as of the dates of such indorsements."

In the circumstances, the indorsements themselves were not sufficient proof of payment to toll the statute. G. L. 1868; Bailey v. Danforth, 53 Vt. 504; Cleaveland v. Dinsmore, 59 Vt. 436, 8 A 279; McDowell v. McDowell's Estate, 75 Vt. 401, 56 A. 98, 98 Am. St. Rep. 831; Crahan v Town of Chittenden et al., 82 Vt. 410, 74 A. 86. Nor is it claimed otherwise. But the plaintiff insists that the findings, in effect, show payment at the time of the several indorsements, and that since it appears that defendant made no application of such payments he had the right to apply them as he did.

It is true that voluntary part payment of a debt, whether barred by the statute or not, if made without protestation of further liability, is a recognition of such debt by the debtor, from which the law not only implies an admission of the existence of the balance as a subsisting debt, but also a promise to pay it which prevents the operation of the statute. It is likewise true that when a debtor makes payment to one who holds several demands against him without specifying on which debt it is to be applied, the creditor may generally apply it on whichever he chooses. Robinson v Doolittle, 12 Vt. 246; Ayer...