
    Andrew A. Sweet v. Erastus Hubbard.
    
      Receipt. Statute of Li/rnitations.
    
    Where a receipt in full is given, one item only excepted, which is specified in . the receipt, and in reference to which is added the words "which may be adj usted as the facts may prove,” it was held, that the date of receipt was the time when the statute of limitations began to run upon that item.
    Assumpsit on common counts. Plea, non-assumpsit and statute of limitations, on which issue was joined. Trial by jury, March Term, 1863, Peck, J., presiding. The plaintiff claimed to recover on the following order, to wit:
    “ M. J. Harrington, Esq., 72 Wall street, New York: Please pay Erastus Hubbard 'or his order one hundred dollars left with you by S. H. Mattison for me, and much oblige,
    “Yours, &e., A. A. Sweet.
    Montpelier, September 6th, 1849.”
    The defendant plead non-assumpsit and the statute of limitations; that is, non-assumpsit within six years ; on which issue was joined by replication that the defendant did promise within six years.
    The plaintiff introduced a paper, of which the following is a copy, for the purpose of removing the statute of limitations, to wit:
    Montpelier, February 2, 1855.
    “ Eeceived of A. A. Sweet one dollar in full, of whatsoever name or nature against him, without any after reckoning or computation whatsoever, one item only excepted, to wit: A
    matter of cash of S. H. Mattison of New York city, which may be adjusted as the facts may prove.
    “Witness: J. E. Langdon. Erastus Hubbard and for
    “Hubbard & Blake.”
    It appeared that from the year 1846 for several years down as late as 1850, or a little later, the parties had considerable dealings together of various descriptions, mostly relating to stoves and tin ware, in which business each was engaged, occupying adjoining stores, and that at the date and on the occasion of the execution of the said receipt, the parties had a general settlement. It appears that during the early part of their dealings the defendant was carrying on business alone, and the latter part, from December 1849, he had a partner by the name of Blake, who, it appeared, died before this settlement.
    The view of the case taken by the court renders a further statement of the matters in evidence unnecessary.
    The court decided that the receipt itself, unconnected with the parol evidence in the case, did not. take the ease out of the statute of limitations, but if the jury should find from the parol evidence, in connection with the receipt, that the defendant in substance although not in terms promised that if it should turn out or be ascertained or shown that he had the money or the avails of the order, he would pay it, or if they should find that the defendant in substance promised to pay it, if it should turn out or be ascertained or shown, that he had it, and that it had not already been accounted for by him, it would take the case out of the statute, otherwise not, and charged the jury accordingly to which the plaintiff excepted.
    
      Wmg, Lu/nd S Taylor for the plaintiff.
    The receipt here shows that there was a dispute about the facts connected with the item named in the receipt, but it can be construed in no other way than that the defendant was willing to pay what was in fact due, and excepted that, so that the facts might be ascertained, and is precisely within the ruling in Paddock v. Colby et al., 18 Vt. 485 ; Poe y. Conway, 2 H. & J.. 307,
    
      B. F. Fifield for the defendant,
    claimed that there was no error in the charge of the court, and cited Moore v. Stevens, 33 Vt. 308.
   Barrett, „J-

The only question is, as to the effect of the receipt of the defendant upon the operation of the statute of lim~ itations on the cash item named in said receipt.

Assuming the law to be settled, that the acknowledgment must be such as carries with it a willingness to remain liable on the claim in question, it is to be determined whether the receipt does that. The item named in the receipt was excepted from the settlement, and the receipt imports that it was then the subject of claim by the plaintiff. In making the settlement, that was left for future adjustment, as the facts should prove to be. This implies that, if the facts should prove to be, that the defendant had the money unaccounted for and unpaid as between him and the plaintiff, he was to be accountable for it, and was willing to adjust -it accordingly. The only thing on which the defendant’s liability was left to depend, was the facts as to his existing accountability; and if they should show him accountable, the only inference from the language of the receipt is, that he wfis willing to respond. There was error in the charge in this respect.

Judgment reversed and case remanded.  