205 Pa. 293 | Pa. | 1903
Opinion by
Suit was brought on a bond more than twenty years after its maturity, and the question at the trial was whether the presumption of payment arising from the lapse of time had been rebutted by proof of payments on account of the bond or by proof of the continued insolvency of the obligor and his inability to pay.
The bond was for $47,300, due one year from its date, and was
The evidence in support of the contention that Mr. Guillou was unable to pay is contained in letters written by him between 1883 and 1886, the last being seven years before his death, to the attorney of the creditors of the estate. From these letters it appears that Mr. Guillou, because of the loss of rents, was pressed for funds, and was obliged to use his income to prevent the foreclosure of mortgages on his real estate. They show financial embarrassment and inability promptly to meet his obligations, but they also show that he possessed assets of considerable value, which he confidently expected would enable him to pay in full. They were not written to the obligee in this bond nor in answer to a demand for its payment, but to the representative of creditors who were pressing for the payment of other obligations held as collaterals under the agreement mentioned. They fail to show a continued and absolute inability to pay, from which nonpayment might be inferred. Mere poverty or insolvency of a debtor is not sufficient to rebut a presumption of payment after twenty years, unless it is such as to have created a continued inability to pay during the whole of that time. Proof of the insolvency of the debtor alone will not rebut the presumption of payment; much less will
During the trial a witness was asked, “ Look at that agreement and say how the agreement was made, what led up to it, and afterwards what was done under it. ” An objection to so much of the question as asked the witness how the agreement was made, was sustained. It is not clear what was meant by the first part of the question, and its tendency was to elicit statements that would not be competent evidence. The part of the question not objected to left it open to the plaintiff to show what led to the making of the agreement, and what was done under it. This was all that he was entitled to show. No exception was taken to the action of the court in striking out a part of the answer of a witness on motion of defendant’s counsel until after the nonsuit had been entered. The court was right in then declining to note an exception. The case was ended and the court could not properly put upon the record something that did not occur at the trial.
The judgment is affirmed.