Judgment was rendered for the plaintiff to recover rent for a considerable period of time prior to six years before the commencement of the action. This, under the pleadings, involved the finding of an acknowledgment or new promise on the defendant's part within the six years. Such finding the court made. The defendant in his reasons of appeal seeks to attack this finding, (1) as involving a conclusion of mixed law and fact of such a character as to show either a misconception of the law or a misapplication of it to the facts found; and (2) as involving conclusions of fact without evidence.
In so far as the latter claim is concerned, the plaintiff contends that the defendant has, in the manner of his appeal and presentation of the evidence and rulings, so failed to comply with the statutory requirements that he has no standing to have corrections of the finding made by this court. The defendant clearly has sought to pursue the course of procedure permitted by § 797 of the General Statutes. That he has not in all respects correctly pursued it is doubtless true, as the plaintiff claims. He has in his reasons of appeal asked for no corrections of the finding as the statute contemplates and as good procedure dictates that he should. Instead, he has predicated error upon the finding of the defendant's acknowledgments without evidence. The purpose of the defendant, however, is clear, and as the plaintiff cannot have been misled, we are not disposed, in the absence of a judicial construction of the statute, to deprive the former by its strict enforcement of the rights and remedies which were his. *Page 10
An examination of the record discloses that there was no basis in evidence for the finding of an acknowledgment or new promise within the six years, except such as was furnished by the payments of rent by the son-in-law, and such evidence as there was of a direct verbal promise by the defendant. To the latter the court, judging from its memorandum of decision, seems not to have attached any importance. The finding, however, gives the plaintiff the benefit of something not arising from Birkenmeyer's payments, which something must by necessary inference, in view of the evidence, have been verbal promises. We have failed to discover any evidence which could be regarded as furnishing even a scintilla of proof of such a promise to pay arrearages of rent made within the six years. One or two vague and general statements of the plaintiff to the effect that the defendant "always agreed to be responsible for it from the time he had the first talk with him," and that he "always said he would pay," are pointed out as supplying such proof. In the first place there is no certainty as to the time covered by the statements, and in the next place the evidence plainly refers to the disputed obligation to pay rent at all rather than to arrearages.
There remains to be considered the payments by Birkenmeyer as justifying the finding of acknowledgements and promises. Birkenmeyer moved into the house on or about April 1st, 1895, and remained there three years. He paid monthly the current rent for his occupancy at the rate of $12.50 per month. He never paid any other sum or sums, and as an inevitable consequence never paid anything upon any other account or for any other purpose. The plaintiff claims from the finding that Birkenmeyer was the tenant of the defendant and made the payments at the latter's request and on his behalf. If we so assume, and carry the assumption to the full length of regarding Birkenmeyer as the defendant'salter ego, the plaintiff will not be helped out of his difficulty. That portion of the plaintiff's demand which is affected by the operation of the statute was eleven months old when Birkenmeyer became a tenant. Payments made *Page 11 for his occupancy as they became due were not payments upon account of the old obligation for accrued arrearages, and could by no legal possibility be given the effect of acknowledgments of such old obligation. They were not payments upon account. They were in satisfaction of newly-accruing demands and were specifically so paid and received. In order that part payment may be effective to remove the bar of the statute, it must appear not only to have been made on account of a debt but also on account of the debt for which the action is brought, and that it was made as a part of a larger indebtedness and under such circumstances as would warrant a jury in finding an implied promise to pay the balance. Wood on Limitation of Actions, § 97. The payments made in this case were not such as to afford the basis of an inference of an admission that a greater debt was due, or an implication of a promise to pay any balance. The court, therefore, must have misconceived or misapplied the law in making its finding.
The plaintiff in his brief makes the ingenious contention that he is entitled to recover the amount of three annual payments, even if it be held that the bar of the statute has not been removed. The argument to this end is as follows: The defendant was a tenant at will. A tenancy at will under an agreement to pay rent becomes in legal contemplation a tenancy from year to year. In tenancies from year to year, where no times of payment are stipulated, the presumption is in favor of annual payments and that these payments are not payable until the end of the year. This claim, assuming it to be well made, meets the practical difficulty that there is nothing in the facts to indicate what are the terminal days of the defendant's tenancy. The plaintiff assumes that November 2d 1891, marked its beginning. The finding leaves this more than doubtful. Beginning with some uncertain date in the father's lifetime the defendant has been continuously occupying as a tenant at will with the agreement to pay a reasonable rent. The plaintiff trustee found this situation. To the latter, the existing agreement to pay a reasonable rent was repeated. If any new status was *Page 12 created the finding fails to disclose how or when. Furthermore, the complaint is not framed to support a recovery upon any such theory. It seeks to recover for use and occupation either at an agreed monthly rate or a reasonable rate.
Upon the complaint and facts found the plaintiff is entitled to recover the reasonable value of the defendant's use and occupation of the premises from and after April 25th, 1894, and no more.
There is error and the cause is remanded for a reassessment of damages.
In this opinion the other judges concurred.