Clark v. Burn

86 Pa. 502 | Pa. | 1878

Chief Justice Agnew

delivered the opinion of the court,

The judgment in this case overturns an express decision, and takes a step backward from the modern doctrine upon the Statute of Limitations. Groce and Clark gave their joint note to Ilinkson. Hinkson endorsed payments of interest and principal on the note within six years from its date; but failed to specify by whom the payments were made; and no evidence was given to show that any payment was made by Clark. Upon this state of facts was the bar of the Statute of Limitations removed as to Clark ? The simple proposition is that a general endorsement by the plaintiff will take the case out of the statute as to all the parties. This contravenes the principle of Shaffer v. Shaffer, 5 Wright 54 (opinion by Judge Strong), that it is the payment which raises the presumption of an acknowledgment of the debt, the endorsement being only evidence of the payment, the time of which must be otherwise proved. Clearly he only,- who made the payment, can be presumed to acknowledge the debt. To- assert that because one man pays, another acknowledges, is so palpably illogical, I am at a loss to understand the ratiocination. If we observe the source of the evidence, the case is still worse. This source is the party himself. Concede that his entry of payment being against his interest when proved to have been, made within six years, it may be accepted as prima facie evidence of the fact of payment by some one; this is its whole effect. When this entry is used to renew a debt barred by the statute, by what kind of legal reasoning can an entry which specifies no one'be made to cover this defendant, or how can a payment be imputed to one who is not known, or shown to have made it ? If the creditor can thus by a general entry, designating no one making the payment, bind all and prevent the bar of the statute, he does by his entry, what the party who made the payment cannot do, he has constituted him as tbe agent of the others to make an acknowledgment,. having the force of a new promise to pay the residue. This proves the unsoundness of the position that the entry affords a prima facie presumption, calling on the defendant to repel it. Evidence, to be prima facie, must apparently apply to the defendant. Rut this entry, which is the only evidence, applies not to him, and to assume that he is bound by it, is to assert that he, whoever it was who made the payment, is authorized to make an acknowledgment binding on him to bar the statute. This is palpably unsound. On principle, the case is with the defendant. But to sustain the decision the case of Coleman v. Fobes, 10 Harris 156, must be overruled. That case in express terms overruled Zent’s Amr. v. Heart, 8 Barr 337. Coleman v. Fobes was a well-considered case, and contains a searching examination of the authorities, as well as the principles applicable to the statute. It is also on all fours with this case. The entry on the note was in these words: “ Received, Smethport, January 18th 1840, on this note $12.18.” In the parol proof, it was shown that the payment was made by a surety in the note, and the court below held that the payment took away the bar of the statute as to the principal. This court reversed the judgment, holding that even a surety was not the agent of the principal to make an acknowledgment to take the case out of the statute; and that the acknowledgment stands on the footing of a new. promise, which one joint debtor cannot make for another. Coleman v. Fobes is, moreover, wholly at variance with the doctrine of a prima facie presumption. Eor if a bona fide payment by a surety accepted, and endorsed by the creditor in general terms, designating no one, cannot raise an acknowledgment by the principal to take the case out of the statute, much less can a mere endorsement of payment, designating no one, raise an acknowledgment of each and all the debtors, to stand as the equivalent of a new promise to bar the statute. Mere joint promissors are not .the agents of each other, and even partners whose agency has ceased by dissolution, cannot bind each other by a new promise or an acknowledgment: Levy v. Cadet, 17 S. & R. 126; Searight v. Craighead, 1 Penna. 135; Houser v. Irvin, 3 W &. S 347; Schoneman v. Fegley, 7 Barr 433. The theory of the law, says Gibson, C. J., is not that the old promise is revived, but that the subsequent confession of the debt is evidence of a new one, and he who has no authority to act for another cannot bind him by acknowledging that he is indebted, or by expressly promising for him that he shall pay: Houser v. Irwin, supra. The force of Coleman v. Fobes is sought to be broken by stating that the affirmative evidence of payment by the surety proves that the principal did not acknowledge the debt. But that is a concession to the weakness of this case. It admits that the party who did not make the payment is not bound; and yet without any evidence that he did pay, imputes the payment to him for the very purpose of barring the statute, when the undoubted rule is that a barred debt cannot be taken out of the statute, unless by the clear, unqualified and precise acknowledgment of the debtor himself, or by a new promise to pay. Now, to impute an acknowledgment to him, without evidence, that the act from which the inference is drawn is his act, is to raise a legal inference from that, which is or may be the act of another. This is plainly contrary to the undoubted and well-settled doctrine of the statute, that its bar can be set aside, only by the acknowledgment of the party himself who pleads it. Hence, to raise a new promise, or its equivalent acknowledgment, from a prior joint duty to pay, is to rest the evidence of a new duty to pay, upon a duty already barred by the statute. It confounds the effect of payment by him who made it, with the evidence which must be given by the creditor to raise a new promise by him who did not make it. It is from the act of payment only, an acknowledgment is inferred. It requires a second inference to reach him, who did not make the payment. This is not only contrary to the doctrine upon the statute, that its bar cannot be removed, except by a clear, unequivocal and certain acknowledgment, but contrary to the general rule of evidence that an inference cannot be founded on an inference. It is said if such an endorsement -will not bind both, it will bind neither. True, but this is only the legitimate effect of the statute which creates the bar; and then how can an uncertain and equivocal endorsement by the creditor have a greater force than an uncertain or equivocal acknowledgment by the debtor ? Neither can toll the statute. It can be tolled only by an express promise or an acknowledgment, so certain and unequivocal, that not only the debt, but the debtor is made certain. The position that a general entry of payment by the creditor, designating no one, will be the evidence of a new promise to pay, after the duty to pay is barred, by the statute, of all who subscribed to the original duty to pay, conflicts with all the modern decisions upon' the necessity of certainty in the acknowledgment. The rule is forcibly stated by Justice Sharswood, in Johns v. Lanz, 13 P. F. Smith 324. “ The decisions of this state (he remarks) apply very strict rules to acknowledgments to take a case out of the Statute of Limitations, and very rightly so. We mean to adhere to them in letter and spirit. The present state of the law is well summed up by our Brother Agnew in one of the latest. In order to take a case out of the operation of the statute, the acknowledgment of the debt must be clear, distinct and unequivocal. It must be so distinct and palpable in its extent and form as to preclude hesitation.” Citing Wolfensberger v. Young, 11 Wright 516. The same rule is stated by Justice Read, in McClelland’s Ex’rs v. West, 9 P. E. Smith 487. “It must be an express acknowledgment of a subsisting debt. Nothing but an unequivocal admission of indebtedness is such evidence of a promise to pay as will take a case out of the Statute of Limitations.” Now take the case before us — a note drawn by two, or it might be half a dozen persons, and payment of five dollars endorsed, designating no one. What is more uncertain or equivocal ? As a fact on which a new promise is to arise, who paid it ? This is not merely equivocal, but unknown. What right has a jury, from an unknown fact, to infer a certain and distinct conclusion ? All the authorities agree that the presumption of a promise arises on the act of payment, not the duty of pajnnent. The duty of payment arises on the original promise, but non constat who performed this duty ? and this is the only basis of a presumption. In this case, who made the endorsed payment ? Who says Clark did ? He furnished no evidence against himself — it is no legal conclusion. If it be, the law removes the bar of the statute by a legal inference, and not the party by his promise or acknowledgment. The effect is the law raises the new promise, and not the only party who can waive the bar. Yet we are asked to hold that the creditor’s uncertain act, his loose entry, is a clear, distinct and unequivocal acknowledgment, or new promise, of Maris T. Clark, who is connected with the efficient act by no proof whatever, and say to him, though discharged by lapse of time: “Prove yourself clear.” This is a plain inversion of the doctrine of the statute, that there must be an agency to make, and to receive the acknowledgment or promise. “To be binding (says Justice Paxson), it ought to be made under circumstances which indicate an actual intention to pay the debt, not a mere loose declaration:” McKinney v. Snyder, 28 P. E. Smith 500. Here Clark never said or did anything. Many cases furnish illustrations of the rule. One will suffice: Weaver v. Weaver, 4 P. E. Smith 153. All proclaim the sound doctrine that the statute is not to be frittered away by mere presumptions. The statute has no favor with a jury, which seldom rises to the compre- . hension of the philosophy, that partial evil is often universal good.

Judgment reversed, and a venire facias de novo awarded.

Sharswood, Merour and Paxson, JJ., dissent; Paxson, J., filing a dissenting opinion.