41 A.2d 627 | Pa. | 1945
At the conclusion of plaintiff's case the court instructed the jury to find for defendant on the ground that the claim was barred by the statute of limitations. This appeal challenges the propriety of that instruction.
On October 5, 1931, plaintiff, Raymond D. Barr, gave to defendant, R. S. Luckenbill,1 $6,500 and on February 14, 1933, $1,000, which he was to invest for plaintiff in securities to be approved by the latter. Pending such investment defendant was to have the use of the money for his own purposes and to pay 3% interest thereon.
On January 25, 1933, defendant notified plaintiff that he had "made arrangements" to lend to one Zuber, on his note to plaintiff in that amount, $4,500 at 6% interest. Zuber was the brother of a former wife of defendant, and plaintiff was acquainted with him. Defendant stated: "this will leave me owing you 3,000,"2 upon *510 which "I will still pay you 3%." Plaintiff repeatedly thereafter inquired of defendant in regard to the Zuber loan, the first time in April, 1933, and the last in the middle of 1934; he made requests for the interest and that defendant either endorse the note or obtain security for it. Defendant "most generally always" replied that he was having it "fixed up" and that "he was working on it". After February 1, 1933, defendant paid interest only on $3,000 instead of on the $6,500 as theretofore. No interest was ever received on the $4,500 loan, nor has any part of the principal been repaid by Zuber.
On July 26, 1940, defendant assigned to plaintiff two mortgages aggregating $2,687.64, and, shortly thereafter, some building and loan association stock amounting to $773.343 but from which plaintiff realized, in liquidating dividends, only $208.02. Defendant, in a letter of November 14, 1940, reminded plaintiff that, after making the Zuber loan, he had retained $3,000, and that the mortgages and stock "amounts to $3460.98 for which you destroy my note of $3000 or send it back to me"; from that time on, defendant ceased paying interest on the $3,000. Plaintiff admitted in his testimony that the mortgages and the proceeds of the building and loan association stock were accepted by him in full payment of the $3,000 indebtedness.4
In December, 1942, defendant, summoned to the office of plaintiff's counsel, delivered to him the Zuber note of $4,500 dated February 10, 1933. Whether plaintiff accepted and retained it, or refused to receive it, is not clear from the testimony. *511
On April 2, 1943, plaintiff instituted the present suit, alleging that of the original $7,500 he had been repaid $3,460.98, leaving a balance of $4,039.02, with interest due at 3% from February 1, 1933, to July 26, 1940, on $4,500 and thereafter on $4,039.02.
The money having been given to defendant with the understanding that he was to pay interest thereon pending investment, he thereby became the debtor of plaintiff, not his trustee: Pittsburgh National Bank of Commerce v. McMurray,
Plaintiff relies on two circumstances, which, he contends, tolled the statute. The first of these was the assignment on July 26, 1940, of the mortgages and the proceeds of the building and loan association stock, which, he asserts, constituted a part payment on account of the indebtedness of $7,500 and started anew the running of the statute as of that date. But "the [constructive] acknowledgment [of a debt arising from part payment within six years before suit brought] must not only be clear, distinct, and unequivocal of the existence of a debt, but . . . it must also be plainly referable to the very debt upon which the action is based": Burr v. Burr,
The second circumstance relied upon by plaintiff as having tolled the statute is the alleged concealment by defendant of the consummation of the Zuber loan. Plaintiff insists that, as the Zuber note was not actually delivered to him until December, 1942, it is from that time only that the statute should be held to have run against him. The principle is, of course, firmly established that *513
while "mere silence or concealment does not toll the running of the statute, . . . when the wrongdoer adds to his original fraud affirmative efforts to divert, mislead or prevent discovery, he gives to his original fraudulent act a continuing character which deprives it of the protection of the statute":Deemer v. Weaver,
There being no disputed facts, the court was justified in instructing the jury that plaintiff was too late in litigating his claim and that they should therefore render a verdict for defendant.
Judgment affirmed.