27 Pa. 278 | Pa. | 1856
The opinion of the court was delivered by
The account upon which this suit was brought, commenced on the 24th October, 1843, and ended on the 8th- February, 1845. All of the charges were made more than six years before suit was brought, except three, amounting to $8.45. The suit was instituted on the 11th January, 185Í, and was tried on the 1st day of January, 1856. The defendant pleaded the statute of limitations. To show a promise within six years before suit was brought, the plaintiff called Terrence J. Cantwell, who testified as follows:—
“About the last of the second week of February, 1845, I presented a copy of a bill to Dr. Emerson in New York, between the 11th and 16th of February, 1845. Dr. Miller gave me the bill to present to Dr. Emerson. I gave the paper to Dr. Emerson in New York. He looked at the bill slightly, and said he would attend to it before he went away; was then on his way to Europe. He did not say he would pay it. Said he would settle or attend to it. Said he had not his money for his horses about him; or that it was on deposit. My impression is, the bill was over $200. Mr. Miller gave the bill to me, and told me, that the doctor had told him to send it. I told the doctor that I had brought the bill he had requested Miller to send on. In reply to that, after I had presented it, he said he would attend to it, fix it, or settle it before he went away.”
The defendant left New York for Europe in February, 1845,
The Court of Common Pleas instructed the jury, that if this evidence was believed, the bar of the statute was removed. This instruction is complained of by the plaintiff in error: “ 1st, Because the evidence did not establish the identity of the account presented by the witness with that upon which the suit was brought; 2d, Because the witness was not the agent of the plaintiff ; 3d, Because the testimony did not prove an admission of indebtedness, nor a promise to pay.”
The witness did not pretend to know that the items in the bill presented by him to the defendant, Avere the same as those in the book given in evidence upon the trial, but he said that the account was sent on at the defendant’s request; that the balance was over $200, and that he left the bill with the defendant. Now, without in the least degree intending to impair the force of the requirement that the evidence of identification should be clear, we are of opinion that in this case it was sufficient; and we are the more readily led to this conclusion for the reason that the bill was left Avith the defendant, and if it differed from the book, all that the defendant had to do was to produce it on the trial. Failing to do this, the fair presumption is that there Avas no difference between the íavo. Neither is there any difficulty upon the question of agency. Whatever was done by the witness, Avas at the request and by the direction of the plaintiff; and a promise made to him is free from the objection that it was made to a stranger. But, aside from these objections, was the evidence sufficient to take the case out of the statute ? An acknowledgment of a debt, or a promise to pay, within six years before suit brought, prevents the effect of the statutory inhibition; but the evidence of the acknowledgment or promise must be “ clear, plain, unambiguous, and express; and so distinct and palpable in its extent and form as to preclude hesitation.” What is the proof in the case before us? It is evident that the witness did not recollect with precision the answer given by the defendant to the presentation of the bill; and when it is considered that nearly eleven years had transpired between the occurrence and the trial, it is not at all remarkable that the memory of the witness was doubtful and uncertain. The state of his recollection is shown by the difference in his statements of Avhat took place. At first, he said, “ the defendant said he would attend to it before he went away;” then, that “ he would settle or attend to it;” and again, that he would “attend to it,” “fix it,” “or settle it” before Tie went aivay. ' Now, which of these expressions did the defendant use ? Did he say that he would attend to it ? or, that he would fix it ? or, that he would settle it ? The witness does not tell us, for the reason that his memory is defective; but he does recollect that he did not say that he would
From these authorities, and others of a like tenor,, we are of opinion that the evidence in the case before us was insufficient to remove the bar of the statute. If the defendant meant to be understood as admitting the debt, or promising to pay it, why did he not say that it was right, or that he would pay it ? Why use the equivocal words testified to by the witness, “ settle, attend to, or fix,” neither of which necessarily implies that he was indebted, much less do they amount to an express promise to pay. The stringency of the rule here applied may work injustice in this particular case, but a relaxation of it would most certainly be
Judgment reversed and venire de novo awarded.