United States Trust Co. v. Stanton

Pratt, J.

The defense of the statute of limitations must prevail, unless the testimony of George P. Leveridge as to the date of the last payment on the bond is sufficient to take the case out of the operation of the statute. We do not think it should be allowed that effect. The cross-examination shows the witness had no present memory of the transaction. He infers that the payment was made at the date recited on the writing, but he does not claim any knowledge on the subject. He does not remember receiving the money, and frankly says that, if his father had told him to make the indorsement, he would have done so, in reliance upon the order. A change of 13 days in the alleged date of payment would complete the 20 years required for the bar of the statute. It is entirely consistent with the evidence of the witness that the payment may have been made 13 days before the indorsement, in which case the action is barred.

We think the evidence sufficient to establish payment. It appeared that the principal defendant was employed by the executors to protect the estate during four years. They had the right to employ counsel to defend litigations, and to pay the counsel by a credit on the bond made by him, then in their possession. The proof of his services, coupled with the evidence that after he rendered them no demand was made for payment of the bond, and no attempt made to foreclose the mortgage, is strong evidence that they were regarded as applied upon the bond. To hold otherwise would be to impute neglect and misconduct to the executors, for which we find no warrant in the evidence. The value of the services thus rendered was not allowed to be shown. That, we think, was error. If it equaled or exceeded the amount of the bond, it would be cogent evidence of payment. Judgment reversed, and new trial ordered.