Noyes v. Estate of Hall.

not appear. Said Wheeler had the charge of the establishment, and did such custom work as was brought in; and among other things, did work for the plaintiff to the amount of $15.43, and the plaintiff let Wheeler have such articles of provisions and produce as he wanted to some over two dollars more than Wheeler charged for the work, expecting the same to go in payment therefor, and charged the same to Wheeler on his book. Finding the work charged by the defendant, at the time of the giving of said due-bill, he objected to it, and informed the defendant that he had paid Wheeler for the sum; and thereupon the parties stopped for the plaintiff to ascertain about the charges by sending to Wheeler. The plaintiff sent a copy of his account to Wheeler, and Wheeler returned to him a receipt for the same, amounting to about two dollars more than the $15.43, charged for Wheeler's work.

The defendant objected to the testimony in relation to the amount of the Wheeler receipt, and the agreement to deduct that amount from the $212.21, on the ground that parol evidence was inadmissible to alter, vary, or explain the writing of the parties upon the defendants book, but the objection was overruled and the testimony admitted,

All of the foregoing items; viz, the charges for the taxes, the notes and the $15.43, were allowed in favor of the plaintiff by the auditor and referee, and also by the county court. Exceptions by the defendant.

W. Hebard for the defendant.

The taxes charged in the plaintiff's account were not proper subjects of book account, and cannot be recovered in that form of action. There was no money or other thing delivered, for which the right to charge subsisted; Slasson v. Davis et al, 1 Aiken 73; Nason v. Crocker, 11 Vt. 463; Carpenter v. Dôle, 13 Vt. 578.

The distinction between what may and what may not be charged on book, is to be drawn from the character, and not from the amount of the deal; Leach et al v. Shepard, 5 Vt. 363.

These taxes were never charged to Hall; and if Mr. Hall was ever liable to him on account of these taxes, it must be established in some common law action.

The whole account, on both sides, is outlawed. A promise to

Noyes v. Estate of Hall.

waive the statute would only amount to a new promise, and would run but six years; Munson v. Rice, 18 Vt. 53.

To take the debt out of the statute by an acknowledgment, there must be no expressed unwillingness to remain liable for the debt; Phelps v. Stewart et al, 12 Vt. 256.

Hall on every occasion protested that the was not owing Noyes. When the defendant denies his indebtedness, it is virtually denying the justice of the claim; and in such case, an agreement not to take advantage of the statute is not a sufficient acknowledgement to avoid the operation of the statute; Carruth v. Paige, 22 Vt. 179.

But whether the acknowledgement was sufficient to remove the statute bar in relation to the account or not, it could have no such effect upon the notes.

The only evidence of a new promise in relation to the notes, came from Mr. Sturtevant. Hall said to Sturtevant that "it would not do for Noyes to sell those notes, as he had an offset against them;" equivalent to saying "they are paid." This is the same doctrine contained in Carruth v. Paige, above cited.

The item of $15.43 was improperly allowed.

G. Rolfe and C. M. Lamb for the plaintiff.

The facts found by the auditor and referee bring this case within the rule established by numerous authorities in this state, that an admission of a present indebtedness, or an acknowledgement of subsisting demands, or the expression of a willingness to settle and adjust existing accounts and demands, is equivalent to a promise to pay, and thus takes the case out of the operation of the statute of limitations; Olcott v. Scales, 3 Vt. 173; Barlow v. Bellamy, 7 Vt. 54; Phelps v. Stewart, 12 Vt. 256; Blake v. Parleman, 13 Vt. 574; Chapin v. Warden, 15 Vt. 560; Minkler v. Est. of Minkler, 16 Vt. 194; Carruth v. Paige, 22 Vt. 179; and in such case, the opinion, belief, or protestation even, of the party promising, that he does not owe, will not alter his liability in this respect; Williams v. Finney, 16 Vt. 297; Paddock v. Colby, 18 Vt. 485; Burton v. Stevens, 24 Vt. 131; Cooper v. Parker, 25 Vt. ́

502.

The plaintiff's claim for the amount of the Wheeler receipt was properly allowed. From the facts, as detailed, the auditor must

Noyes v. Estate of Hall.

have found that the defendant had no right to claim this of the plaintiff, and that the defendant agreed to deduct it from the amount minuted on the defendant's book, on the production of a receipt from Wheeler; and the county court in accepting the report, must have found the same facts directly, or must have inferred such facts from matters stated by the auditor and referee in his report, and their judgment therein will not be disturbed in this court; Stone et als v. Foster, 16 Vt. 546; Birchard et al v. Palmer, 18 Vt. 203; Barber v. Britton et al, 26 Vt. 112.

The tendency of the testimony was not "to alter, vary or explain the writing of the parties," but to prove an independent fact; that is, an agreement to refund the amount on producing Wheeler's receipt, which amount the defendant was not entitled to retain ; 1 Greenleaf's Ev. Sec. 284.

The opinion of the court was delivered by.

BENNETT, J. We see no reason why, from the facts reported, the plaintiff may not recover, in this form of action, for the amount of the monies paid by the plaintiff for the taxes which he had in his hands, for collection, against the intestate. There were all the time mutual and running accounts between the parties, and the case finds that it was understood between them that the taxes should be adjusted and settled with their other accounts, as matters of mutual deal and account.

We think the defense set up under the statute of limitations can not succeed. In March, 1843, the parties commenced. a settlement of their dealings, and found the amount of Hall's claims against the plaintiff to be $212.21, and, not having time to complete the settlement, the plaintiff gave the intestate his due bill for that sum, to apply on settlement, and it was then agreed that "neither party would take any advantage of the statute of limitations having run, or being about to run upon the other's claims, but would thereafter settle without any objection on that account." It is evident, from the facts reported, which may be referred to, that this agreement was kept upon foot by the parties, at least down to the spring of 1851, when Hall said to the plaintiff's son that he and the plaintiff had a settlement to make, and that there were some things outlawed on both sides, but they had agreed to take no ad

Noyes v. Estate of Hall.

vantage of the statute of limitations, and that he was ready to settle at any time. The notes in question are included in the term claims, and were clearly within the agreement of the parties, excepting them from the effect of the statute of limitations. The opinion that Hall may have expressed that he should not be owing the plaintiff upon a final settlement, cannot have any effect upon the agreement to waive the statute.

We think the item of $15.43 in the plaintiff's account, should be allowed him, notwithstanding the same sum was included in the intestate's account, and went to make up a part of the $212.21, for which the due-bill was given. This item of $15.43 was for carding wool and dressing cloth, done by one Wheeler, in the employ of Hall; but it is found that the plaintiff, from time to time, let Wheeler have produce, expecting that it would go in payment of this account, and charged the same to Wheeler.

When the parties suspended their settlement, the auditor finds that the plaintiff objected to this item in Hall's account, upon the ground that he had paid it in produce to Wheeler, and the settlement was delayed to ascertain how that fact was. In doing this, there was an implied admission by Hall that Wheeler had the right to receive pay, and the plaintiff might transfer his account against Wheeler to his account against Hall. At the time the due-bill was given, this charge of $15.43 was a subsisting item in Hall's account, and the charge of the plaintiff, though made to Wheeler, was a subsisting account, to be applied in' payment, and both were kept upon foot, subject to a future application. The effect of the finding of the auditors was not to contradict or vary the operation of the due-bill, but to set up a subsisting item in the plaintiff's account, which would, in effect, balance so much of Hall's account embodied in the due-bill. This being the effect of the finding of the auditor, I see no reason why we should not give it full operation.

Judgment affirmed.

Shedd v. Powers.

WILLIAM R. SHEDD v. JOHN POWERS AND JOHN POWERS, JR.

Constructive possession.

A constructive possession limited to the bounds given in the deed under which the party claimed, and not extended to an old line beyond, to which, for a part of the distance, there had been more than fifteen years actual occupancy.

TRESPASS for cutting timber. The cause was referred, and, before the referee, the only question was whether the cutting complained of was on lot No. 137, in owned by the plaintiff, or on lot No. 136, which lay south of and adjoining No. 137, the north part of which was owned by the defendants.

There was no dispute as to the north-east, south-west and southeast corners of lot No. 136, but there was as to the north-west corner. The plaintiff claimed that a maple tree, at the point C, as indicated on a plan attached to the referee's report, was the corner; while the defendant claimed the corner to be at the point B, on said plan. The cutting was at the west end of the strip of land between the lines A B and A C,-A being the conceded north-east corner of lot No. 136, and A B its north line, as claimed by the defendants, and A C the north line, as claimed by the plaintiff, as indicated on said plan.

On the 9th of December, 1818, one Samuel Powers was in possession of and owned lot No. 136. On that day he conveyed, by deed, to John Powers, one of the defendants, sixty acres from the north side of the lot; and immediately after the execution of that deed, the said Samuel and John, the grantor and grantee, run out said sixty acres, marking the maple at C, as the north-west corner of the lot, and of the sixty acres. The defendants claimed to extend his line to B, which was some eighteen rods north of C, and would give him about seventy-one acres.

When that part of the town in which these lots are located was divided into severalty, and these lots run out, the range lines only were run, which were the north and south lines, and the corners marked. The defendants proved that between sixty and seventy years ago a line was run and marked from A to B, which the referee found was run as and for the dividing line between lots Nos. 136 and 137, which were one hundred acre lots. Soon after the execution of said deed of December 9th, 1818, the defendant John