Vermont watchman and State journal. [volume] (Montpelier, Vt.) 1836-1883, 1848-06-08


to be noticed is, that after the note had been duly
protested for nonpayment, it was charged and kept
in separate account, and that Peck on propo-
sal to him to have il transferred to the general ac
count requested that i. might continue, for the sake
of convenience, to remain charged and kept, as il |
had been, in separate account. In May AZ, |
an account ofthis note, together with an account
Of the other note, separately stated, was render
ed to Peck. He acknowledged the receipt of
both accounts in June following, making no OBJ
lection whatever to the account Of this note, nor
indeed any objection to the account of the other
note, except that credit was not given the defen-
dants for certain demands, called the Truesdell |
and Burrows notes, for which they claimed an
allowance. Now, is not the request to have this
note remain charged and kept, as it had been, in
u separate account, coupled with the fact of an
account so charged and stated being rendered.
received, and retained without objection, an ac-
acknowledgement Of liability to pay the note and
can it be at all material whether the acknowledg
ment was before or after the assignment, wheth
er to the plaintiffs or the assignees?
have said that no objection was made TO the
account Of this note and such, think, is the Just
inference from the letter Of Peck But if the
objection was intended to apply to the account
OF this note as well as to the account Of the 9TH
er note, it was not an objection to the business or
correctness of any item in either account, but
|
The objection was that certain credit had not
been given, thereby implicitly admitting that the
note was proper item in the account In Camp.
bell Us. Webster 2 Man. Gran. g. Scott, 25S,
where the defendant, in answer to an account
sent him by the plaintiff, admitted it to be all
correct except that the plaintiff had not credit
ed for a certain claim he had, and said he would
pay the bill mentioned in the account if the
plaintiff would allow that claim, it was held, that
this amounted to an admission of liability to pay
the bill, a counter claim being made the only OBJ
lection to paying; and that an admission OF liza
bility amounted to an admission that all had been
done which was requested to constitute such La
blllty. This Is decisive, that the setting up in
the present case, Of u claim for a credit as the
only objection, with total silence as to the want
of notice, is an acknowledgment of liability to
pay the note in question, and thereby an admis
sion that notice had been givel.
z. The only remaining question in the case a.
rises upon the claim set up oy the defendants on
account of certain demands, called the Trues
dell and Burrows notes. aedged to have been
included in the purchase from the plaintiffs, and
to have been controlled or discharged by them.
The circumstances attending the Truesdell
debt appear to be these. On the 10Th Of Janua-
ry -35, resolutions were passed by the directors
OF the Branch Bank, recommending compfom-
Use OF the debt and an acceptance of an offer
which had been made by the Truesdes to pay
fifty per cent as a composition. The resolutions
were transmitted the same day to the parent
Bank, and the compromise so recommended was
approved of by the parent Bank on the l6th OF
the same month. The return made by The Branch
to the parent Bank on the LIST of June after, con-
talns the debt in the list of the suspended debt
marked as desperate is, of little or no val
ne. The same return states that the comprom.
Dppn into off, 50 r.
that the debt had not only been marked and re
turned as bad and hopeless as early at least as
the LIST of June IS, but had in fact then been
compounded, and was 50 stated in the return by
the payment OF fifty per cent. The debt notwlth-
standing, still continued on the books Of the
Branch, through some inadvcrtence or negli
gence, IN the list Of suspended debt, up to the
Ind OF March SO, to which time the contract o
purchase had relation - the debt never having
been transferred, as it is said it should have been
to the general account. The inference from al
this Is, that though the debt stood on the books
apparently as Il subsisting debt for balance Of
llfty per cent, 1t was not in fact subsisting debt
but had been cancelled and discharged. If this
tact was known 10 the defendants at the time oil
the purchase, the circumstance of the debt con
tlnulng on the books in the list of suspended
debt can be of no real Importance. 1t appears
that two of the defendants, Peck and Lyman, &C
IN ia TO September IS, when the Branch Of
nee closed This Of course included the time
when the resolutions referred to were passed, anC
the compromise in pursuance of them was car
RED into effect. These two defendants there
fore, one OF them being, as we have seen, the a
gent In making the purchase, must be presumed
to have had knowledge of the facts in relation tC
the debt; and if 50, it would seem to be very
clear that the defendants, especially as the pur
chase of the suspended debt was in the lump OF
an estimate OF its value in gross and at grea
discount on that estimate, cannot make the deb
IN question the foundation of a claim.
The other debt, the Burrows debt, consisting
of two notes, also stood on the books of tn
Branch i'll the list of suspended debt, apparently
a debt due, at the time Of the contract of pur
chase. 1t appears that compromise of TIM
debt had been agreed upon by and between tn
parent Bank and Burrows, and that the com
promise was carried into effect ON the LIST of Ma
-35, by giving up the two notes to Burrows, an
taking his note for 80 3 per cent. of the amount
Burrows failed to pay the note so given by him
and the compromise, by its own terms, becam
null and void; but the two notes which had bee
given up were retained by him. In the retur
made by the Branch to the parent Bank on tn
LIST OF June -35, before spoken of, this deb: i
mentioned in memorandum at the bottom a
hiving been compromised at 33 per cent
J which memorandum is signed by Mr. Lyman, on
Of the defendants, as director. The defendant:
therefore, are to be taken as having full knowl
, edge of the condition and circumstances of tn
debt at the time Of the purchase. They pur
chased the claim, whatever it was, in the state i
which it then existed as they purchased the 9th
er claims composing the lump Of the suspende
debt. For any thing that appears, the claim ex
lists IN the same state now as it dil then TIL
plaintiffs have not discharged it, intertered wit
1t in any way, or done any thing to deprive tn
defendants OF any right or benefit they coul
claim in or out OF it under the purchase. Tn
plaintiffs sold the debt as it was, as they sold tn
l rest Of the suspended debt, without any guardn
/, tee or representation whatever on their part an
: the appearance the books presented OF it coul
4 not have deceived or misled the defendants, tw
: Of them having oficialed as directors of tn
Branch at tue time the compromise was effected
1t must be presumed that these two defendant
J, one of whom, as before remarked was the ager
IN making the purchase, knew the terms Of tn
. compromise, and all that had been done in pul
= suance Of it. am obliged, therefore, to sa!
: that see no legal grounds, on which this CLAIM
Q any more than the other can be sustained.
Having thus disposed Of all the questions rails
, ed in the case, have only to say in conclusion
that the result from the wloe is that for the rea
sons given on some of the points reserved, tn