14 Pa. Super. 266 | Pa. Super. Ct. | 1900
Opinion by
This was an action of assumpsit for a balance alleged to be due for medicines furnished and medical services rendered between July 21, 1890, and January 3, 1893. The action was brought February 24,1898. To avoid the bar of the statute of limitations, as to the items more than six years old, the plaintiff introduced the testimony of Paul A. Benson, which was to the effect, that in February, 1894, after Mrs. Brown had received a statement of the account, she gave him a receipted bill for a small account she had against the plaintiff and $50.00 in money and directed him to pay the plaintiff the same in full satisfaction of his claim, and to get a receipt from him to that effect; that the plaintiff refused to give a receipt in full; that, after reporting to Mrs. Brown and her attorney, they directed him, to use his language, “ to go back and pay the money and take a receipt for the $50.00 and the $13.00, of the bill which I did; at least my recollection is I got a receipt, and I don’t know but my instructions were to pay it, and that they were not particular about the receipt.” So far as the identification of the debt or account, upon which the payment was to be applied, is concerned, there is no difficulty. Nor, if the case rested here, would there be any serious doubt as to the effect to be given to the payment. But the witness further testified that Mrs. Brown disputed the amount of the bill, and claimed that the amount tendered and paid was all she owed the plaintiff, and, moreover, that he, the witness, told the plaintiff that that was all she would pay him, and if he wanted the balance of his claim he would have to sue for it; that she would not pay it unless she had to. This, it is to be noticed, is the testimony of the plaintiff’s witness, and is the only testimony bearing on the question.
A payment on account stops the running of the statute, because it is deemed a constructive acknowledgment from which a promise to pay the balance is to be inferred. But the supposition that there is more virtue in a part payment than in a new promise is groundless, and no decision gives it counte
A. E. Sisson was not an incompetent witness by reason of his being the administrator of the deceased defendant, and as such, a party to the record. This of course must be, and is, conceded. It is equally clear, that he was not incompetent by reason of his having been Mrs. Brown’s attorney at the time the instructions testified to by Mr. Benson were given. He was not a surviving or remaining party to the thing or contract in action, he had no interest adverse to any right of the deceased party thereto, and the testimony he proposed to give did not consist of confidential communications made to him by his client. He was not within any of the exceptions to the general rule of competency, and we have no authority upon the ground of supposed inequality to exclude witnesses from testifying whom the legislature has not made incompetent. As to the substance of the testimony he proposed to give, it seems sufficient to say, that, if it was relevant for the plaintiff to show that Mr. Benson was acting under instructions given to him by Mrs. BroAvn and her attorney, it was equally relevant for the defendant to introduce the testimony of another witness Avho was present at the time. The effect to be given to the testimony is another question. It Avas relevant for the purpose of contradicting the testimony of Mr. Benson as to what took place at that time, although it may not have been relevant for every purpose, and probably would not have been admissible if Mr. Benson had not been called by the plaintiff to testify as to the same occurrence.
The assignments of error are sustained, the judgment is reversed and a venire facias de novo awarded.