The opinion of the court was delivered by
Royce, Ch. J.The only question presented by the report of the referee is as to the legal effect of the payment of the $15, in July, 1879. At the time that payment was made, the plaintiff Way had an account of his own against the defendant, amounting to $9.44, and also the account of the plaintiffs which this suit is brought to recover for, and asked the defendant for some money on the accounts. Thereupon the defendant paid Way $15, which overpaid. Way’s account $5.56, which sum was afterwards, and about the time this suit was brought, credited to the defendant by the plaintiffs.
No direction was given by the defendant as to the application of the money paid by him, and it does not appear that Way had any other accounts or claims at that time against *704the defendant than those above mentioned. It has long been settled in this State that part payment of a debt barred by the statute, if made without protestation against further liability, is a recognition and acknowledgment of such debt at the time of making the payment from which a promise to pay the residue shall be implied. Ayer v. Hawkins, 19 Vt. 26. And upon the neglect of the debtor to direct the application of a payment made by him, the right to make it generally devolves upon the creditor. In the absence of any specific directions as to the application of a payment, the intent of the party making it, as ascertained from the circumstances under which it was made, may control the right to make it. Here there is no fact found that tends to show that the debtor intended any different application than the one that was made; so Way had the right to apply the money to pay his own account, and what remained as part payment of the account of the plaintiffs.
Part payment is an implied acknowledgment of the existence of the claim upon which the payment is made, from which the law implies a promise to pay the balance, unless such implication is rebutted by something that transpired when the payment was made. It is found that the defendant, when spoken to by Way about the account of the plaintiffs, had always insisted that he would not pay it, and claimed that there was enough money in the plaintiff Corliss’ hands to pay it. It is not found that those claims were made at the time of the payment, and it was mcumbent on the defendant to show that they were, in order to rebut the implication arising from the payment. If any presumption is allowable, it would be that the defendant did not deny his liability at the time when he was paying the money.
The judgment is affirmed.