26 Pa. 284 | Pa. | 1856
The opinion of the court was delivered by
The constructive acknowledgment of a debt arising from part payment within six years before suit brought, is sufficient from which to infer a promise to pay. But this inference cannot be made until the part payment is clearly established. Even where the acknowledgment is express, instead of constructive, or the promise direct, rather than inferential, no ambiguity or uncertainty in the one or the other can be tolerated. True, it was said in Hazelbaker v. Reeves, 2 Jones 264, and Davis v. Steiner, 2 Harris 275, that if the acknowledgment of the existence of a debt is clear, distinct, and unequivocal, the extent and form of the debt need not be stated in the acknowledgment, but may be proved in the same manner as though the statute had not been pleaded. These cases are scarcely to be reconciled with other adjudications by this court, upon the same point, and were not allowed the force of authority either in Suter v. Sheeler, 10 Harris 309, or in Shitler v. Bremer, 11 Harris 413. The better rule undoubtedly is, that the acknowledgment must not only be clear, distinct, and unequivocal of the existence of a debt, but that it must also be plainly referable to the very debt upon which the action is based. It matters not where the uncertainty lies, whether in the acknowledgment or in the identification, its existence is equally fatal to the plaifitiff’s recovery.
Take the case in hand for an illustration of the principle. There is a statutory bar to the plaintiff’s cause of action; to remove this bar, she relies upon a promise to pay within six years before the commencement of the suit. To sustain the promise, she neither gives evidence of an express agreement to pay, nor of a
The judgment of the District Court in favour of the plaintiffs is reversed, and judgment is here entered for defendant with costs.